Monthly Archives: July 2017

Profiling or ignorance of the law?

R. v. Gonzales 2017 ONCA 543 – this decision arose out of an investigation into a spate of daytime break-ins into homes in the southern part of York Region. Plainclothes police officers in unmarked vehicles patrolled the area, looking for suspicious activity. One such officer on patrol observed two young Latino men driving a rental van through a neighbourhood. The van pulled into a garage and the men entered the home. The officer made further inquiries and determined the vehicle rental was overdue. Five days later, the same officer saw the accused driving a similar van. The van continued past the home it stopped at during the prior sighting. The officer believed the van was avoiding him and conducted a traffic stop. The officer approached the van. He could see through the side windows that the van was full of large cardboard boxes. Each box was sealed closed. The officer was curious about the contents of the boxes. At the driver’s door of the van, the officer displayed his badge and warrant card. Gonzales, the driver, asked why he had been stopped. The officer told Gonzales that he wanted to ensure that Gonzales was a licensed driver entitled to operate the van. Gonzales handed over the documents the officer requested. The officer returned to his truck to verify the documents provided by Gonzales. He believed the occupants of the van were in possession of marihuana (the officer smelled fresh marihuana). He intended to arrest them for that offence. Although he was armed, the officer was not wearing a protective vest. He called for assistance to make the arrest and waited for other officers to arrive before returning to the van.

When additional officers arrived, the officer told them about his observations and his plan to arrest the occupants of the van for possession of marihuana. He also explained his intention to look in the van. All officers approached the van. The original officer told Gonzales that he was under arrest for possession of marihuana. A uniformed officer advised Gonzales of his right to counsel (although the officer was delayed in giving Gonzales his caution), searched him incident to arrest, handcuffed him, and put him in the rear of a police cruiser for transport to the police station. Back at the station, Gonzales was strip searched.

A subsequent search of one box revealed it contained packaged marihuana. Police then obtained a warrant to search the van, resulting in the seizure of 252 pounds of marihuana and $105,000 in cash. Police obtained a second warrant for the residence and seized a further 185 pounds of marihuana, $27,000 in cash, a firearm and ammunition. The trial judge admitted the evidence seized from the home and the van despite a breach of the accused’s right to counsel. The accused was convicted of three firearm offences and possession of marihuana for the purpose of trafficking. He was sentenced to five years’ imprisonment. The accused appealed the conviction and sentence.

Although the appeal was premised on other grounds, I will focus this post on the ground that Gonzales was arbitrarily detained, thus resulting in a Section 9 Charter violation. As backdrop, in this case, the trial judge concluded that the detention was lawful under s. 216(1) of the HTA, even though the primary motivating factor was the officer’s pursuit of his investigation of the daytime, residential break-ins in the area. Accordingly, it was necessary to consider whether the detention fell within the scope of s. 216(1) of the HTA.

Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.), at para. 21; R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.

In addition to requiring the production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown v. Durham, at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, [1992] 3 S.C.R. 615, at pp. 623-24. However, s. 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns: Brown v. Durham, at para. 24; Mellenthin, at p. 623-24. Sound familiar so far? It should, most jurisdictions have similar legislation.

Sometimes, a traffic stop may have more than one purpose. However, the mere existence of another purpose motivating the stop, beyond highway regulation and safety concerns, does not render the stop unlawful. But the additional purpose must itself not be improper, or proper but pursued through improper means, and must not entail an infringement on the liberty or security of any detained person beyond that contemplated by the purpose that underpins s. 216(1): Brown v. Durham, at paras. 31, 34, 37-39 and 45.

Gathering police intelligence falls within the ongoing police duty to investigate criminal activity. And so it is that it is permissible for police to intend, within the confines of a stop and detention authorized by s. 216(1), to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity: Brown v. Durham, at paras. 31 and 33; R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 254-55. Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor (e.g. articulable cause): Simpson, at pp. 492-493.

The evidence of the officer that conducted the traffic stop was that he was in the area for a single purpose. And that purpose had nothing to do with highway regulation or vehicular safety. As he testified, he was there — in plainclothes driving an unmarked vehicle — to investigate an untoward number of daytime residential break-ins in the area. He drove around and kept his eyes open for any signs that might assist in matching suspects with crimes. So, with his testimony making no reference to a lawful stop under the HTA, the basis for the stop must have been at common law to investigatively detain the occupants of the vehicle.

Turning now to the Waterfield test (I have highlighted this in earlier posts), the first requirement was easily met (common law and statutory duty to investigate crime and apprehend those who may be responsible for it). In the second analysis, was that duty justifiable in this instance? The officer had no information to link the van or its occupants to the daytime residential break-ins he was investigating. The officer knew about the number of break-ins and the time and manner of entry. But neither the police in general, nor this specific officer, had a description of any individuals or vehicles that might have been involved in or associated with these activities. The officer had seen the same van in the same area twice in five days. Each time, there was a driver and a passenger. However, on the first occasion, what happened satisfied the officer that there was no connection between the van and the break-ins; they entered the house. The officer did not see them leave. He thought that one of the men may have lived there. Scarcely the stuff of articulable cause or reasonably grounded suspicion, said the ONCA. Similarly, nothing on the second occasion could ground a reasonable suspicion – the same vehicle, two young men, a look from the driver to the officer as the driver drove through the intersection, nothing more. The ONCA ruled that the stop was an arbitrary detention and that the trial judge erred in holding otherwise.

Since the ONCA ruled that the traffic stop and subsequent detention was arbitrary, it offended s. 9 of the Charter because it was not based on any reasonable suspicion that the occupants of the van were involved in any way in the investigation of the residential break-ins that the officer was then pursuing. And it was that detection that permitted the officer to smell the raw marihuana; to see the sealed boxes; and to observe the accused’s reaction to police questions. It was these circumstances that provided the officer with the grounds necessary to arrest the accused, and it was that arrest that permitted the search incident to arrest that located the packaged marihuana in the sealed packets in the sealed cardboard box in the van, which led to the search warrant for the van, which led to the search warrant for the house. All of which led to the evidence that constituted the case for the Crown.

The ONCA ruled that all of the evidence seized flowed from an arbitrary detention conducted without reasonable suspicion of involvement in crime. The circumstances involved serious police misconduct that was part of a wider pattern of pulling over suspicious individuals without cause (as Justice Watt put it, evidence emerged from the officers at trial that this stop was part of a larger pattern of pulling over “suspicious” persons and asking them what they were doing in the neighbourhood). According to the ONCA, the officer had no grounds to believe that the occupants of the van had anything to do with the daytime residential break-ins he was investigating. He had seen the same van with two occupants enter a garage on the street five days earlier. He concluded then that there was no connection of the van or its occupants to the break-ins. The officer was not there doing traffic enforcement and had no traffic-related reason to pull the vehicle over. The officer knew or should have known that he had no basis to signal the vehicle to stop and to detain its occupants. A proper s. 24(2) Charter analysis required exclusion of the evidence seized from all searches. The convictions were set aside and replaced with acquittals.

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Filed under Arbitrary Arrest or Detention, Search and Seizure