CITATION: R. v. Harris, 2007 ONCA 574 |
DATE: 20070824 |
DOCKET: C45463 |
COURT OF APPEAL FOR ONTARIO |
MCMURTRY C.J.O., O’CONNOR A.C.J.O. and DOHERTY J.A. |
BETWEEN: |
HER MAJESTY THE QUEEN |
Appellant |
and |
MILTON HARRIS |
Respondent |
Rick Visca and Amber Pashuk for the appellant |
Jonathan Dawe for the respondent |
Heard: May 22, 2007 |
On appeal from the acquittal entered by Justice Kathleen J. Caldwell of the Ontario Court of Justice dated March 31, 2006 reported at [2006] O.J. No. 1321. |
DOHERTY J.A.: |
[1] Milton Harris, the respondent, was a passenger in a motor vehicle stopped by the police after the driver failed to signal a left turn. The officer asked all of the occupants, including Harris who was sitting in the front passenger seat, to identify themselves. They did so. The officer checked the names through the Canadian Police Information Centre (“CPIC”) and discovered that Harris was apparently on bail, a term of which required him to abide by a curfew. That curfew had long passed. The officer returned to the vehicle, arrested Harris, handcuffed him, took him back to the police cruiser, and searched him. During that search, the officer discovered a quantity of crack cocaine tucked into the waistband of Harris’s underwear. He charged Harris with possession of cocaine for the purposes of trafficking and advised him of his right to counsel.
[2] Harris brought a Charter application at the outset of his trial alleging several constitutional violations. The trial judge found that Harris was arbitrarily detained and subject to an unconstitutional search when he asked him to identify himself while he was detained in the vehicle. She further held that Harris was denied his right to counsel while under arbitrary detention. The trial judge concluded that the cocaine seized from Harris was obtained as the result of these constitutional violations and should be excluded under s. 24(2) of the Charter. Without the cocaine, the Crown had no case and Harris was acquitted.
[3] The Crown appeals submitting that there were no constitutional violation and alternatively that the cocaine should not have been excluded from evidence.
[4] I would allow the appeal. I would hold that Harris was not arbitrarily detained when asked for identification and was not denied the right to counsel. I do agree, however, with the trial judge’s finding that the officer’s request that Harris identify himself constituted an unreasonable search and seizure. I would not, however, exclude the cocaine from evidence pursuant to s. 24(2) of the Charter. I would order a new trial.
[5] This court has the benefit of the trial judge’s detailed and careful reasons on the Charter application. I take my summary of the relevant events from those reasons. I also accept her findings of fact.
[6] Constable
Lipkus and his partner were on patrol in a marked police car at about 1:00
a.m. in downtown
[7] Lipkus followed the vehicle for a short distance and then directed the driver to pull over to the side of the road. He left his patrol car and approached the van. Lipkus saw three people in the van, the driver, Harris, who was sitting in the front passenger seat, and a woman sitting in the back seat. Lipkus also noticed that Harris was not wearing his seatbelt as required by law. At the same time, Lipkus saw Harris lean forward with his left hand down the small of his back. Lipkus became concerned about his safety and ordered everyone in the car to keep their hands where he could see them. They did so.
[8] Constable Lipkus asked the driver for his licence, ownership and insurance. The driver produced the necessary documentation. Lipkus asked Harris and the other passenger for identification. Lipkus testified that he was contemplating giving Harris a ticket for failing to wear his seatbelt. He also testified that he routinely asked all passengers in vehicles stopped vehicle for Highway Traffic Act purposes to identify themselves. Lipkus put it this way:
It is just a routine – routine investigation – it helps us conduct our investigation thoroughly. If there is anything pertinent or anything important that these three parties will have on them or this vehicle that could involve, as I said, anything from probations to recognizance, whether the vehicle was stolen or not, to numerous types of other information, it allows us to act as police officers and enforce the laws.
[9] Lipkus testified that he used the identification to obtain information through CPIC about driver’s licences, criminal records, whether persons were on probation or bail, or whether they were under some “level of surveillance”. The trial judge summarized his evidence in these terms, at para. 19:
[T]he primary purpose, at least in his mind, for these checks was to obtain as much information as possible so that the individual in question can be as thoroughly investigated, simply for general purposes, as CPIC will allow.
[10] The trial judge specifically rejected the officer’s testimony on cross-examination that the request for information related to officer safety concerns. She also concluded that the request for identification was unrelated to Harris’s seatbelt violation:
It is clear from P.C. Lipkus’ evidence that his request for Mr. Harris’ identity did not relate to driving offences. He did testify that he was considering charging Mr. Harris for a seatbelt violation but it is clear that there was no nexus in his mind between this consideration and his request for Mr. Harris’ name. It is clear from the portion of his evidence that I have quoted at paragraph 18 above that he asked for Mr. Harris’ name simply out of routine and that this was the routine that he followed whenever he pulled a vehicle over. [Emphasis added.]
[11] The driver and both passengers gave Lipkus the information he requested. Lipkus informed Harris that he was not wearing a seatbelt. He then told the three occupants of the vehicle that he was going back to his police vehicle to “do a couple of checks” and that he would return momentarily.
[12] Lipkus went back to his vehicle and ran the names of the two passengers through CPIC. He had already run the licence plate of the vehicle through CPIC and identified the owner. It is not entirely clear from his evidence, but it would appear that Constable Lipkus checked the information provided by the driver with the information provided through CPIC at the same time that he ran the names of the passengers through CPIC.
[13] The information provided to Constable Lipkus by CPIC indicated that Harris was on bail, one of the terms of which provided for a curfew. Harris was in breach of that term. Based on the CPIC information, Constable Lipkus decided to arrest Harris for breaching his bail. In fact, the charges giving rise to the bail had been withdrawn six days earlier, thereby vacating the bail. The bail information had not, however, been removed from CPIC system. The trial judge concluded, and I agree, that Lipkus acted reasonably in relying on the information provided by CPIC in forming reasonable and probable grounds to arrest Harris.
[14] Constable Lipkus returned to the van and told Harris to get out of the vehicle. He placed Harris under arrest for breaching his bail, handcuffed him, and took him back to the police car. At the police car, Lipkus conducted a quick search of Harris to make sure that he did not have any weapons or devices that could be used to escape from custody. During this search Lipkus noticed a significant bulge sticking out of Harris’s lower back. On further investigation, Lipkus discovered a package containing 17 grams of cocaine. He arrested Harris for possession of the cocaine and advised him of his right to counsel. Harris told Lipkus that he understood his right to counsel and named his lawyer. No issue is taken with the search of Harris after his arrest.
[15] Lipkus went back to the van and told the driver and the other passenger that they were free to go. Lipkus decided not to give the driver a ticket for the improper left turn. He also did not turn his mind to whether Harris should be given a ticket for the seatbelt violation. Lipkus explained that once the cocaine was discovered, the scope of his investigation changed and he focused on the drug offence and not the Highway Traffic Act, R.S.O. 1990, c.H.8 matters.
[16] Harris did not testify on the Charter voir dire.
(i) Was Harris detained when asked for identification?
[17] A person is detained when physically restrained by the police. Psychological restraint will also constitute detention. A person who complies with a police direction or command reasonably believing that he or she has no choice is detained for the purposes of ss. 9 and 10 of the Charter: R. v. Therens (1985), 18 C.C.C. (3d) 481 at 505 (S.C.C.); R. v. Mann (2004), 185 C.C.C. (3d) 308 at 319 (S.C.C.).
[18] Crown counsel accepts that the driver was detained from the moment he pulled his vehicle over in compliance with the direction of Lipkus. He argues, however, that Harris, as a passenger in the vehicle, was not subject to any police demand and was, therefore, not detained, even though his physical movements were obviously impeded when the vehicle was pulled over.
[19] The
trial judge doubted the correctness of this submission. So do I. It is
inconsistent with trial decisions in this province: e.g. see R. v. Pinto,
[2003] O.J. No. 5172 (S.C.J.); R. v. J.R.M., [2005] O.J. No. 4708
(Ont. C.J.). It also runs against the unanimous recent decision of the United
States Supreme Court in Brendlin v. California (2007) 551
[20] The trial judge, however, did not proceed on the basis that Harris was detained from the moment the vehicle was pulled over. Instead, she focussed on Constable Lipkus’s direction as he approached the vehicle to all of the occupants that they keep their hands where he could see them. She characterized this as a demand and concluded, at para. 36:
In my view, however, it would have cast an aura of psychological oppression over the occupants. It appears that the officer gave no explanation for the demand, which would add to the oppressive atmosphere. It was inevitable that Mr. Harris would have felt compelled not only to remain at the scene but also to answer any questions that followed. [Emphasis added.]
[21] As the determination of whether a person is detained demands a fact-specific inquiry, it is appropriate that this court consider the question of detention on the same factual basis as did the trial judge. I, therefore, decline to decide whether Harris was detained when the vehicle was stopped.
[22] I agree with the trial judge’s conclusion that Harris would reasonably understand that he was not free to leave the vehicle after Constable Lipkus ordered him to keep his hands in open view. Harris was under psychological constraint at least from the point when Constable Lipkus made that demand. He remained in detention for the rest of his encounter with the officer. It follows that Harris was detained when Constable Lipkus asked him to identify himself.
(ii) Was the detention arbitrary?
[23] The trial judge accepted that Constable Lipkus was entitled to pull the vehicle over for the apparent violation of the Highway Traffic Act. She specifically rejected the defence contention that the traffic violation was a pretext for the stop so that Constable Lipkus could gather police intelligence by questioning the occupants of the vehicle. The trial judge also accepted that Lipkus acted lawfully when he took control of the movement of the passengers in the vehicle as he approached the vehicle. Consequently, on her analysis, which I accept, Harris was lawfully detained at least until Lipkus asked him for identification.
[24] The trial judge also rejected the defence submission that when Constable Lipkus returned to his vehicle to run Harris’s identification through CPIC, he had already finished his investigation of the driver and could not rely on the Highway Traffic Act investigation to justify the continued detention of Harris. The trial judge held, at para. 48 that “the CPIC check of the driver was enmeshed in the check of the passenger [Harris].”
[25] The trial judge went on to hold that when Lipkus asked Harris for identification for purposes that had nothing to do with the enforcement of the Highway Traffic Act, Harris’s detention changed from lawful to arbitrary. She said, at para. 41:
… I find, however, that the characterization of the detention changed as matters unfolded. Once the officer moved beyond detaining Mr. Harris for the purposes of investigating issues relating to driving offences, Mr. Harris’ detention became arbitrary.
[26] I cannot agree that the request of Harris for identification for purposes unrelated to the Highway Traffic Act altered the constitutionality of his detention. Harris was detained by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Act violation, and Lipkus’s lawful assuming of control over the movements of the passengers in the vehicle. On the trial judge’s factual findings, Lipkus’s request for identification did not prolong or alter the nature of Harris’s detention. He remained in exactly the same position he would have been in had Lipkus questioned only the driver.
[27] Harris’s detention, that is the limitation on his personal physical freedom imposed by Lipkus’s actions, was not arbitrary in the sense that it was random or without individualized cause. The detention flowed from the officer’s observations of the vehicle, his decision to pursue the Highway Traffic Act investigation, and the reasonable steps he took to assume control of the occupants of the vehicle. As the trial judge observed, these observations gave Lipkus proper grounds to detain the passengers in the vehicle during the Highway Traffic Act investigation. In my view, the request that Harris identify himself, even though improper for the reasons set out below, did not render Harris’s detention arbitrary.
(iii) Did the lawful detention render the request for identification lawful?
[28] The
Crown argues that the lawful detention of the driver and the passengers in
the vehicle for Highway Traffic Act purposes gave the police the authority
to question the driver and the passengers for legitimate police purposes
even though those purposes were unconnected to the Highway Traffic Act investigation. In
advancing this submission, the Crown relies on Brown v. Durham Regional
Police Force (1998), 131 C.C.C. (3d) 1 (Ont.
[29] I agree with Mr. Dawe, counsel for Harris, that the Crown misreads Brown. Brown does not suggest that once the police are engaged in a lawful stop under the Highway Traffic Act, they may pursue any other legitimate police interests. Brown holds that the existence of additional legitimate police interests cannot render unconstitutional police conduct that is justified under the Highway Traffic Act. For example, in Brown, the police were authorized by the Highway Traffic Act to obtain identification from the operators of the motorcycles. They used the identification not only for Highway Traffic Act purposes, but for more general police intelligence gathering purposes. At para. 31 of Brown, I said:
… The police are entitled on a s. 216(1) stop to require drivers to produce their licences. That requirement is consistent with the highway safety concerns which underlie the power granted by the section. In addition to ensuring that the driver is properly licensed, the police may wish to identify the driver for other purposes. It may be, as in this case, that the police are interested in knowing the identity of all those who are connected with what they believe to be organized criminal activity. The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail any infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the HTA, I see no reason for declaring the legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and the detention. [Emphasis added.]
[30] Later at paras. 38 and 39, I observed:
While I see no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with means to pursue objects which are themselves an abuse of the police power or are otherwise improper … [Emphasis added.]
When I refer to improper police purposes I include purposes which are illegal, purposes which involve the infringement of a person’s constitutional rights and purposes which have nothing to do with the execution of a police officer’s public duty. Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the Highway Traffic Act even if they also have highway safety concerns when making the stop. [Emphasis added.]
[31] Brown would assist the Crown if it could point to some lawful authority for questioning Harris, a passenger in the vehicle, in the course of the investigation of the driver for making an improper turn. If the Crown could do so, then Brown holds that the police could also use the information obtained from the passengers for other legitimate police purposes.
[32] Lipkus did not ask Harris for identification in relation to any potential Highway Traffic Act violation. Lipkus wanted the information so that he could conduct a CPIC search to determine, among other things, whether Harris was on bail or any other form of judicial order. The identification information was also used by Lipkus in a more general way to gather and record information about the movements of individuals who happen to be detained in the course of Highway Traffic Act stops. As Lipkus’s request that Harris identify himself could not be justified as an incident of the Highway Traffic Act stop, Brown offers no assistance to the Crown in establishing the constitutionality of Lipkus’s request that Harris identify himself. To the contrary, Brown, at para. 45, supports the appellant’s position on this appeal by impliedly accepting the trial judge’s finding in Brown that the officer’s powers under the Highway Traffic Act did not encompass the authority to ask passengers in detained vehicles for identification.
(iv) Did the request for identification infringe s. 8 of the Charter?
[33] Section 8 of the Charter protects against unreasonable searches or seizures. A seizure is a non-consensual taking by a state agent of anything in which the person asserting a s. 8 right has a reasonable expectation of privacy. The thing taken may be tangible or intangible. Information can be seized. At its most fundamental, s. 8 preserves an individual zone of privacy against state intrusion. The state can enter into that zone if the intrusion meets a reasonableness standard: see R. v. Colarusso (1994), 87 C.C.C. (3d) 193 at 233 (S.C.C.).
[34] Answers to police questions may or may not give rise to a s. 8 claim. As with other aspects of the s. 8 inquiry, a fact-specific examination of the circumstances is necessary. Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions, I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information from the detained person.
[35] R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.) presents a somewhat similar fact situation to this case and offers insight into when police questioning will constitute a search or seizure. In Mellenthin, the accused was pulled over by the police at a roadside checkpoint operated for the purpose of examining the roadworthiness of vehicles. The stop was arbitrary but constitutional. The police officer used the opportunity afforded by the stop to randomly investigate other potential crimes. He questioned the driver about the contents of a bag that the officer noticed in the back of the vehicle. The driver’s answers to the questions eventually led the officer to physically seize the bag. He discovered narcotics in the bag and charged the driver with possession of the narcotics.
[36] Cory J. held that the officer had no lawful authority under the guise of a safety check to question the driver about the contents of the bag or to physically seize the bag from the driver. Cory J. further concluded that the improper questions constituted the beginning of an unreasonable search that culminated in the unreasonable seizure of the bag. He said, at p. 487:
However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant’s words, actions and manner of driving did not demonstrate any symptoms of impairment. Check-stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [Emphasis added.]
[37] Cory J. rejected the contention that the accused voluntarily answered the questions. In doing so, he noted that the accused was under detention and that it could reasonably be inferred that he felt compelled to respond to the questions put to him by the police officer. The same findings were made in this case. Those findings justify characterizing the questioning as a seizure of the information provided by the answers.
[38] The Crown next argues that a person has no or, at its highest, a minimal expectation of privacy in his or her name. The Crown submits that merely providing one’s name reveals little, if anything, of any personal nature concerning that person. In some contexts, there will be considerable merit to this submission. However, in the present case, Harris was under police detention. Lipkus was not asking Harris to identify himself out of some sense of curiosity or so he could greet Harris by name should they meet again. Lipkus had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way. That information included whether Harris had a criminal record, was subject to any outstanding court orders and, if so, the terms of those orders. Although Crown counsel submits that the officer’s request for identification was “not directed at obtaining incriminating information in relation to unrelated criminal conduct”, I think that was precisely one of the reasons Lipkus asked Harris for identification. Why else would Lipkus use the identification to determine whether Harris was in breach of any outstanding court orders?
[39] Given the information readily available to Lipkus through CPIC, I see no functional difference between Lipkus asking Harris to identify himself and then checking that identification through CPIC, and Lipkus asking Harris a series of questions about his criminal past, his bail status, and the terms of any bail that Harris might be under. Lipkus’s immediate access to information available on CPIC made Lipkus’s request for identification the equivalent of Lipkus asking Harris whether he was breaching any court orders at that moment.
[40] A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.). In the circumstances, Harris’s identification in response to the officer’s question constitutes a seizure and attracts s. 8 protection.[2]
[41] The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris’s identification. The purpose of the stop did not justify an at large inquiry into Harris’s background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris’s identification of himself provided the entrée into that broader and unrelated inquiry.
[42] In support of the contention that the request for identification could not constitute a search or seizure under s. 8, Crown counsel relies on cases like R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.) and R. v. Hall (1995), 22 O.R. (3d) 289 (C.A.). Those cases accept that the police may in the course of their duties properly request identification from individuals in circumstances where the police have no reason to suspect that individual of any misconduct. Grafe and the other cases, however, turn largely on the finding that the person who was asked for identification was not under police detention or any other form of compulsion to answer the request for identification. If, as in this case, a request for identification is made in circumstances of detention in which the detained individual reasonably feels compelled to answer the request for identification, then the question assumes a coercive quality in the nature of a demand, which suggests a state seizure of the response: see Mellenthin, supra; R. v. Young (1997), 116 C.C.C. (3d) 350 (Ont. C.A.).
[43] The
Crown also relies on R. v. Grant (2006), 209 C.C.C. (3d) 250 at 264-65
(Ont.
[44] I conclude that Harris was subject to a seizure when he gave Lipkus his identification. The seizure was warrantless and without reasonable cause. There is no evidence that Harris was aware of, much less waived, any rights under s. 8 of the Charter. I agree with the trial judge’s conclusion that the police violated Harris’s rights under s. 8 of the Charter.
(v) Was there a breach of s. 10(b) of the Charter?
[45] The trial judge accepted that a brief roadside detention contemplated by a Highway Traffic Act stop and investigation was incompatible with the requirement that a detained person be advised of his right to counsel and be afforded an opportunity to exercise that right. The trial judge went on to hold, however, that when that detention became arbitrary and unlawful, as it did here when Harris was asked to identify himself, the right to counsel under s. 10(b) of the Charter was engaged. It was common ground that Harris was not advised of his right to counsel until after the cocaine was discovered and he was arrested. The trial judge concluded that there was a violation of s. 10(b) of the Charter.
[46] For the reasons set out above, I do not agree that the improper questioning of Harris rendered his detention arbitrary or unlawful. Harris was lawfully detained as an incident of the Highway Traffic Act stop and investigation. The justification for that detention operated when Harris was asked for identification and continued to operate when Lipkus checked that identification through CPIC. As I do not find that Harris was arbitrarily detained when asked for identification, I do not reach the question of whether the arbitrariness of a detention automatically triggers the rights guaranteed b s. 10(b) of the Charter.
[47] As
Mr. Dawe acknowledges in his factum, it was accepted at trial that the police
are not required to give a detained person his s. 10(b) rights during a brief
lawful Highway Traffic Act roadside stop. That concession was not
qualified on appeal. I think the concession is consistent with those cases
that hold that the exercise of the rights guaranteed by s. 10(b) is incompatible
with the brief roadside detention contemplated by a stop made for road safety
purposes: see R. v. Orbanski (2005), 196 C.C.C. (3d) 481 (S.C.C.); R.
v. Smith (1996), 105 C.C.C. (3d) 58 (Ont.
[48] I am satisfied that Harris was lawfully detained as part of a Highway Traffic Act brief roadside detention. It flows from counsel’s concession, which I accept as well founded, that this detention did not trigger the rights set out in s. 10(b) of the Charter. Lipkus did not offend against s. 10(b) when he did not advise Harris of his right to counsel before asking him for identification.
[49] The absence of any advice to the appellant of his right to counsel before asking him for identification while not constituting a violation of s. 10(b), does have some relevance to Harris’s assertion that constitutional rights were infringed when he was asked for identification. The absence of any advice to the appellant either that he could refuse to provide identification or that he could speak to a lawyer before doing so is further confirmation that the officer’s request for identification was in fact in the nature of a demand for identification, which constituted a seizure.
(vi) Was the cocaine properly excluded under s. 24(2) of the Charter?
[50] The determination of whether evidence should be excluded under s. 24(2) involves the weighing and balancing of various competing factors. An appellate court will defer to a trial judge’s ruling under s. 24(2) absent an identifiable error in principle, a material misapprehension of the evidence relevant to the ruling, or a clearly unreasonable conclusion: R. v. Buhay (2003), 174 C.C.C. (3d) 97 at 116-18 (S.C.C.). Where the appellate court is satisfied that the trial judge has fallen into one of the errors described above, the appellate court may perform the s. 24(2) calculation afresh and determine the admissibility of the evidence: Grant, supra, at 265-66.
[51] Counsel for Harris submits that as Crown appeals are limited to questions of law alone (Criminal Code s. 676(1)(a)), this court’s power to review a decision excluding evidence under s. 24(2) of the Charter is narrower than an appeal brought by an accused where a judge refuses to exclude evidence under s. 24(2). I disagree. The ultimate question of admissibility is a question of law. If the trial judge excludes evidence under s. 24(2) and that decision is tainted by an error in principle, a misapprehension of material evidence, or is arrived at by virtue of an unreasonable assessment of the evidence, the resulting exclusion of the evidence will constitute an error in law that is appealable by the Crown: Buhay, supra, at 116.
[52] In excluding the cocaine, the trial judge found that the admission of the cocaine would not affect the fairness of Harris’s trial. She went on, however, to determine that the seriousness of the Charter violations and the deleterious effect of receiving the evidence on the due administration of justice operated in favour of excluding the cocaine. In concluding that the Charter breaches were serious, the trial judge referred to the number of the violations. She found three separate Charter violations. The trial judge also placed some significance on what she described as the officer’s “unreasonable ignorance” of the limits of his authority when conducting a routine Highway Traffic Act stop. The trial judge characterized this ignorance as institutional and not personal to Lipkus.
[53] For the reasons given above, the trial judge erred in finding a series of constitutional violations beginning with an arbitrary detention, followed by an unreasonable search, and culminating in a denial of Harris’s right to counsel. As I have explained, there was one breach, a breach of s. 8 occasioned by the improper request for identification.
[54] Jurisprudentially,
the trial judge was on solid ground in finding that the multiple nature of
the Charter violations aggravated the seriousness of the breach for
the purposes of s. 24(2): see e.g. R. v. Calderon (2004),
188 C.C.C. (3d) 481 at 510 (Ont.
[55] I am satisfied that the trial judge’s conclusion that the violation in this case was serious was directly influenced by her erroneous conclusion that there were a series of distinct Charter violations. On the view I take, the seriousness of the Charter breach must be considered in the context of a single inappropriate question in what was otherwise a proper exercise of police authority. The trial judge’s erroneous findings that there were breaches of ss. 9 and 10(b) of the Charter justifies a fresh assessment in this court of the admissibility of the cocaine under s. 24(2).
[56] In proceeding with my s. 24(2) analysis, I accept the trial judge’s credibility assessments and her findings of fact insofar as they are relevant to the s. 24(2) analysis.
[57] R. v. Collins (1987), 33 C.C.C. (3d) 1 at 16-21 (S.C.C.) identifies the three questions that must be addressed when determining the admissibility of constitutionally tainted evidence under s. 24(2) of the Charter:
· would the admission of the evidence affect the fairness of the trial?
· how serious was the constitutional misconduct? and
· what would be the effect on the administration of justice flowing from the exclusion of the evidence?
[58] The trial judge proceeded on the basis that the admission of the cocaine would not affect the fairness of the trial. Counsel for the respondent has approached the appeal on the same basis. I too will proceed on the basis that the admission of the cocaine would not affect the fairness of the trial.[3]
[59] I turn next to the seriousness of the breach. Where, as is conceded here, the fairness of the trial would not suffer were the evidence to be admitted, the seriousness of the breach will be the key consideration in determining inadmissibility under s. 24(2). Were the court to admit evidence obtained through a serious breach of an accused’s Charter rights, the admission of that evidence could reasonably be seen as judicial condonation of the unconstitutional conduct of the police. That condonation would tend to bring the administration of justice into disrepute: K. Roach, Constitutional Remedies in Canada (Aurora, Ont.: Canada Law Book, 1994) at para. 10.1564.
[60] On my review of this record, there are four factors that are significant in measuring the seriousness of the s. 8 breach. First, there was no urgency or exigent circumstances justifying Lipkus’s conduct. To the contrary, the situation as described by Lipkus was the opposite of one in which there was urgency. On his evidence, he routinely used Highway Traffic Act stops to improperly question passengers in the detained vehicles. The absence of any urgency tends to make the violation more serious.
[61] A second important consideration is the characterization of the conduct by Lipkus that amounted to the Charter violation. As the trial judge found, Lipkus did not act deliberately or wilfully in breaching Harris’s rights. He did, however, show an unreasonable ignorance of the scope of his authority. The unreasonable nature of Lipkus’s mistake as to the scope of his authority means that he cannot be said to have acted in good faith when he requested identification: Buhay, supra, at 122-23.
[62] Police
misconduct resulting in a Charter violation can be placed on a continuum
for the purposes of accessing the seriousness of that conduct. Lipkus’s
conduct falls somewhere between the two extremes of a good faith error and
a blatant disregard for constitutional rights. Having regard to the manner
in which Lipkus conducted himself, I would place his breach considerably
nearer the good faith end of that continuum: see R. v. Kitaitchik (2002),
166 C.C.C. (3d) 14 at 26-27 (Ont.
[63] The third factor to be considered is the nature of the breach viewed from the perspective of those whose rights are infringed. I cannot accept the Crown’s characterization of this breach as “minimally intrusive”. The use of the broad powers associated with Highway Traffic Act stops to routinely investigate passengers who have nothing to do with the concerns justifying those stops must have a significant cumulative, long-term, negative impact on the personal freedom enjoyed by those who find themselves subject to this kind of police conduct. While for persons in some segments of the community, these stops may be infrequent, this record suggests that for others the stops are an all too familiar part of their day-to-day routine. Viewed from the perspective of those who are most likely to find themselves stopped and questioned by police, I think this form of interrogation is anything but trivial. It seems to me at some point it must become provocative.
[64] This brings me to the fourth, and I think determinative, factor relevant to the seriousness of this specific breach of s. 8. The trial judge accepted Lipkus’s evidence that Harris was not wearing a seatbelt and that the officer informed him of such and was considering giving Harris a ticket for the seatbelt violation.
[65] Had Lipkus decided to give Harris a ticket for not wearing a seatbelt, he was entitled under the Highway Traffic Act to ask Harris for identification so that he could issue the ticket. He was entitled to do this even if, as the law stood at the time, Harris was under no statutory duty to provide identification.[4] As Lipkus was entitled to request identification for the purposes of giving Harris a ticket for the seatbelt violation, if Harris provided the identification, Lipkus could, under the authority of Brown, conduct a CPIC inquiry using that identification. Had this occurred, the inquiry would of course yielded the same results as the inquiry actually conducted by Lipkus.
[66] The trial judge did not refer to the possibility that Lipkus may have requested identification from Harris for the purpose of giving him a ticket, had he not erroneously believed that he could ask Harris for identification as part of his routine procedure. Presumably, the possibility of getting identification from Harris in connection with a seatbelt violation was irrelevant to the trial judge’s s. 24(2) analysis. In my view, it does have relevance to that inquiry.
[67] It is a fair inference that had Lipkus properly understood the limits of his authority on a Highway Traffic Act investigation, he would have turned his mind specifically to whether he should issue a ticket to Harris for not wearing a seatbelt. I think it is a fair inference that had Lipkus understood that he needed a specific reason for requesting identification from the passenger, he would have adverted to the seatbelt violation and requested an identification for the purposes of issuing a ticket to Harris. There is no reason to think Harris would have responded any differently had Lipkus requested identification for the purpose of giving Harris a ticket for not wearing a seatbelt. In my view, Harris would have felt just as compelled to answer the question and would have identified himself.
[68] All of this leads me to conclude that Lipkus had available to him lawful means by which he could have obtained Harris’s identification and proceeded in exactly the way he did. The events that followed Harris’s identification, culminating in the seizure of the cocaine, would have unfolded in exactly the same way had Lipkus requested identification for the purposes of giving Harris a ticket.
[69] The availability through lawful means of evidence obtained by a Charter breach sometimes aggravates the seriousness of that breach and sometimes mitigates the seriousness of that breach.[5] One line of authority views an officer’s failure to use lawful means to obtain the evidence as indicative of the officer’s blatant disregard for the subject’s Charter rights, thereby making the breach more serious: see Collins, supra, at 29; Buhay, supra, at 124; R. v. Law (2002), 160 C.C.C. (3d) 449 at 465 (S.C.C.).
[70] A second line of authority finds that the availability of the same evidence through lawful means diminishes the seriousness of the Charter breach. In these cases, however, the courts have concluded that the police acted in good faith, reasonably believing they were entitled to do that which was ultimately held to be unconstitutional. The combined effect of a good faith error by the police and the availability of the same evidence through lawful means significantly diminishes the seriousness of the Charter breach: see R. v. Duarte (1990), 53 C.C.C. (3d) 1 at 23 (S.C.C.); R. v. Wong (1990), 60 C.C.C. (3d) 460 at 487 (S.C.C.); Colarusso, supra, at 232.
[71] The facts of this case do not fit perfectly into either line of authority. First, it cannot be said that Lipkus’s decision to request identification from Harris under his misconception of his general powers associated with Highway Traffic Act stops, rather than pursuant to the specific power associated with giving Harris a ticket for a seatbelt violation, displayed a blatant disregard for Charter rights. This is not a case where the officer’s conduct suggests a “shortcut” around procedural protections such as the requirement of a warrant. As it turns out, Lipkus was entitled to do exactly what he did. He was simply wrong as to the basis upon which he could proceed as he did.
[72] While the facts of this case do not suggest a blatant disregard for Charter rights, the facts also do not fall into those cases that treat the availability of an alternative means of obtaining the evidence as significantly diminishing the seriousness of the violation. Lipkus did not act in good faith, but rather acted on an unreasonable misunderstanding of the scope of his powers.
[73] The availability of the same evidence through lawful means does not mitigate the seriousness of the breach as much as it would had Lipkus acted in a reasonable good faith belief that he was entitled to question Harris. I am, however, satisfied that it does diminish the seriousness of the Charter breach. Lipkus had the lawful authority to ask Harris exactly the same question that he in fact asked him. There is a strong likelihood that had he turned his mind to the seatbelt violation, Lipkus would have requested identification for that purpose, would have received exactly the same answer from Harris, would have conducted exactly the same CPIC inquiry, would have obtained exactly the same information, and would have proceeded exactly as he did. Lipkus’s error as to the reason he was entitled to demand identification had no effect on the nature of the question, Harris’s response, or the events subsequent to that response. The availability of a lawful basis to ask the question had Lipkus turned his mind to it, in my view, renders the breach less serious than it otherwise would have been.
[74] In the end, I conclude that the breach, while not trivial, was not sufficiently serious to warrant the exclusion of crucial, reliable evidence.
[75] I turn briefly to the third and final question raised by the s. 24(2) analysis – how would the administration of justice be affected by the exclusion of this evidence?
[76] The cocaine was reliable evidence that was essential to the proof of a serious crime. It cannot be doubted that the exclusion of this kind of reliable, crucial evidence must have a negative impact on the repute of the administration of justice in the eyes of reasonable, informed people. That negative impact must be accepted where admitting the evidence would undermine the fairness of the trial, or where the breach is sufficiently serious that the court must separate itself from the fruits of that breach.
[77] The fairness of Harris’s trial would not be compromised by admitting the cocaine. Nor is the breach sufficiently serious to justify the exclusion of this kind of evidence. In these circumstances, the negative impact on the administration of justice occasioned by excluding the cocaine was not counterbalanced by other justice interests promoted by excluding the evidence: see R. v. Lewis (1998), 122 C.C.C. (3d) 481 at 497 (Ont. C.A.); Grant, supra, at 272.
[78] For the reasons set out above, I do not think that the respondent has demonstrated that the admission of the cocaine would bring the administration of justice into disrepute. It should not have been excluded under s. 24(2).
[79] I would allow the appeal, set aside the acquittal and direct a new trial on all three charges.
“Doherty J.A.”
“I agree R.R. McMurtry C.J.O.”
O’CONNOR A.C.J.O. (Concurring):
[80] I have read the reasons of Doherty J.A. and concur with his conclusion that we should allow the appeal, set aside the acquittals and order a new trial on all three charges.
[81] I adopt the facts as set out in Doherty J.A.’s reasons. I agree with his conclusions that the trial judge erred in holding that the respondent’s rights under ss. 9 and 10(b) of the Canadian Charter of Rights and Freedoms had been breached, that is, the right to be free from arbitrary detention and the right to be informed of one’s right to counsel.
[82] Doherty J.A. would also hold that the trial judge did not err in finding that Constable Lipkus breached Harris’ right to be free from an unreasonable search and seizure. Nevertheless, Doherty J.A. would admit the evidence of the narcotics seized under s. 24(2) of the Charter.
[83] Unlike Doherty J.A., I conclude that the trial judge erred in holding that Constable Lipkus breached Harris’ right to be free from an unreasonable search and seizure pursuant to s. 8 of the Charter. For the same reasons as set out by Doherty J.A., I would also admit the evidence under s. 24(2) of the Charter, in the face of what he found to be a s. 8 breach.
[84] In reaching my conclusion, I have accepted the following findings of fact by the trial judge. Lipkus had grounds to stop the vehicle in which Harris was a passenger and to ask the driver for his identification documents. Further, he acted properly when he directed the occupants to keep their hands where he could see them. He had seen Harris moving his hands towards the small of his back and he was understandably concerned about safety.
[85] When he approached the car, Lipkus observed that Harris did not have his seatbelt fastened. He asked Harris and the other passenger for identification. While he had contemplated giving Harris a ticket for failing to wear a seatbelt, that was not the reason he requested identification. Rather, he testified that he routinely asked passengers in vehicles that he had stopped for Highway Traffic Act, R.S.O. 1990, c. H.8, purposes to identify themselves. He did this in order to check their names through the Canadian Police Information Centre (“CPIC”) from which he might obtain information about their driver’s licences, criminal records, whether persons were on probation or bail, or whether they were under some “level of surveillance”. In short, Lipkus checked the police data bank to apprise himself of any information the police had stored about the person.
[86] After Harris identified himself, Lipkus conducted a CPIC check which revealed that Harris was on bail and that his bail order provided for a curfew which had long since passed.
[87] The trial judge found that Harris was detained after Lipkus ordered him to keep his hands in open view and that Harris felt compelled to identify himself when Lipkus asked him to do so.
[88] In my view, Lipkus did not breach Harris’ s. 8 rights when he asked him to identify himself. I make three points that underlie my conclusion.
[89] First, Lipkus’ request for Harris’ name did not in itself constitute an unreasonable search and seizure under s. 8 of the Charter. When he provided his name, Harris revealed nothing of a personal and confidential nature about himself. His name did not touch on a “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”, nor did it reveal any “intimate details of [his] lifestyle and personal choices” as would be required to be protected under s. 8 of the Charter: see R. v. Plant (1993), 84 C.C.C. (3d) 203 at 213 (S.C.C.).
[90] Harris had little, if any, expectation of privacy in his name. People routinely identify themselves in a wide range of contexts and situations. Generally, an individual’s identity is broadly known within his or her community and can be easily ascertained by others. In this case, for example, Lipkus might have asked the driver or the other passenger for Harris’ name.
[91] To date, courts have not held that a person’s identity is constitutionally protected under s. 8 of the Charter. In R. v. Grant (2006), 209 C.C.C. (3d) 250 (Ont. C.A.), police officers stopped and questioned the accused in circumstances that gave rise to this court concluding that he had been arbitrarily detained. On stopping the accused, the police asked him what was going on and then asked him for his name and address. The accused identified himself by producing an OHIP card. Subsequent questioning led to the accused admitting he possessed marijuana. At para. 33, Laskin J.A., for the court, said: “The divide between questions that begin a search and questions that do not is sometimes not easy to draw. In this case, I am not persuaded that the police’s question to the appellant ‘if he had anything that he shouldn’t’ began a search. In my view, the search began, at the earliest, after the appellant admitted to possession of the marijuana”.
[92] Clearly, the court in Grant did not consider that the police officer’s request for the accused’s name, even in circumstances where the accused had been arbitrarily detained, constituted a search that warranted protection under s. 8 of the Charter. Moreover, in R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), the court had affirmed the principle that there is a right for police officers to ask questions even when there was no belief that an offence has been committed. A police officer’s right to ask questions does not depend on there being a duty on a citizen to answer.
[93] Second,
in my view, Lipkus did not conduct an unreasonable search and seizure by
obtaining the information about Harris contained in the CPIC system. This
information, which included the details of a bail order, had been entered
into the system on an earlier date. As a national repository of police information,
CPIC is a vital shared resource within
[94] In my view, an individual such as Harris, does not have a reasonable expectation of privacy with respect to information in CPIC, at least insofar as police officers are concerned. A reasonable and prudent individual would assume that information about him or her emanating from a public court process will be available to police officers through an information data system such as CPIC.
[95] The issue arises in this case, however, because Lipkus was only able to access the CPIC information after Harris had identified himself. Thus, the argument goes, by asking his name, Lipkus was in effect conducting a search and seizure with respect to the information in the system. Had he not asked Harris’ name, he would not have been able to make the link to that information.
[96] That may be so, however, I do not think that it changes the fact that Harris did not have a reasonable expectation of privacy with respect to the information about the bail order, at least insofar as police officers were concerned. The fact is that the information was available to law enforcement officers and access to it by a police officer could not result in an intrusion upon a reasonable privacy interest so as to constitute a search within the meaning of s. 8 of the Charter.
[97] In my view, this case is distinguishable from R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.), where the Supreme Court of Canada found that a police officer’s questions and subsequent seizure of a bag of marihuana breached the accused’s s. 8 rights. In that case, the accused was pulled over for a roadside check of the roadworthiness of his car. The police officer questioned the accused about a bag in the back of the car. The accused’s answers eventually led the officer to seize the bag in which he found narcotics. Cory J. concluded that the officer did not have authority to question the accused about the bag or to seize the bag. He found that the improper questions constituted the beginning of an unreasonable search that resulted in the unreasonable seizure of the bag.
[98] This is a different case. In Mellenthin, the police officer did not have any information about the bag or its contents. He had no basis to suspect that the bag contained narcotics. In the circumstances of a random stop, he had no authority to ask the accused about the bag or to eventually seize it.
[99] In contrast, in this case, the information about Harris’ bail order was already in the police data system and Lipkus was entitled to access that system. Harris had no reasonable expectation that the information would be kept private from police officers in any circumstances. I do not think that obtaining Harris’ name which enabled Lipkus to access the CPIC information can be equated to asking and then seizing a bag which was in the sole possession of the accused.
[100] The third part of my analysis addresses the fact that the trial judge found that Harris felt compelled to identify himself when asked. It is suggested that the compulsion to answer played a role in turning the request for his name into an unconstitutional search and seizure.
[101] It is worth noting that there was nothing improper about the compulsion. Lipkus directed the occupants of the car to keep their hands where he could see them. In the circumstances, he was entitled to do so for safety purposes. The compulsion, as found by the trial judge, resulted from this direction, nothing else.
[102] In
any event, compulsion to provide information does not in itself constitute
the basis for an unreasonable search and seizure. As the Supreme Court of
[103] As I said above, I do not consider that the question asking Harris to identify himself and the follow-up search of the CPIC system constituted an intrusion upon a reasonable privacy interest of Harris. Thus, the fact that Harris may have felt compelled to identify himself, does not operate, in my view, to render what was otherwise constitutional into a breach of s. 8 of the Charter.
[104] I note that counsel for Harris did not argue either at trial or on appeal that his client’s rights under s. 7 of the Charter to be free from self-incrimination had been breached. Accordingly, I need not address that issue. I raise this point only to add that even if it were found that in the circumstances of this case there had been a breach of s. 7, I would still admit the evidence of the narcotics seized under s. 24(2) of the Charter. I would do so for essentially the same reasons that Doherty J.A. would admit the evidence in the face of what he found to be a s. 8 breach.
[105] In the result, I would allow the appeal, set aside the acquittals and order a new trial on all three charges.
RELEASED: “DOC” AUG 24 2007”
“Dennis O’Connor A.C.J.O.”
[1] Brendlin holds
that the passenger in a vehicle stopped by the police is seized for the purposes
of the Fourth Amendment of the Constitution of the
[2] Section 7 of the Charter was not argued. It may be that on these facts the appellant’s claim could be more easily assessed as a self-incrimination claim under s. 7. Whether the claim is made under s. 7, the broad description of an individual’s legal rights, or s. 8, one of the specific examples of those rights, the essentials are the same. Individuals are entitled to be left alone by the state absent justification for state interference. Could the state justify compelling Harris to provide information to an agent of the state to be used by that agent to investigate Harris?
[3] It is arguable that the cocaine is derivative of conscriptive evidence (Harris’s identification of himself). Subject to the discoverability of evidence through other means, the admission of evidence that is derivative of conscriptive evidence will undermine the fairness of the trial: see R. v. Stillman (1997), 113 C.C.C. (3d) 321 at 359-61 (S.C.C.).
[4] Counsel for the appellant submits that 1996 amendments to the Highway Traffic Act that would have placed the duty on a passenger to identify himself were never proclaimed in force. Counsel further observes that more recent amendments to the Highway Traffic Act that may oblige a passenger to identify himself were not in force at the time of the relevant events: see Highway Traffic Amendment Act (Seatbelts) (2006), c. 25.
[5] Where the fairness of the trial is in issue, the availability of the evidence through lawful means tends to diminish any unfairness flowing from the admission of the evidence: see Stillman, supra, at 361.