R. v. KopcsanyiWritten on the 16 May 2008 Case Name: R. v. Kopcsanyi
Between Her Majesty the Queen, Respondent, and Gabriel Kopcsanyi and Mihai Dobai, Applicants
[2008] O.J. No. 2088
Court File No. CRIMJ(f)2083/07
Ontario Superior Court of Justice
N.M. Mossip J.
Heard: May 14, 2008. Judgment: May 16, 2008.
(67 paras.)
Criminal law -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Legal rights -- Procedural rights -- Right to be informed of the specific offence -- Protection against arbitrary detention or imprisonment -- Protection against unreasonable search and seizure -- Right to retain and instruct counsel without delay -- Remedies for denial of rights -- Exclusion of evidence -- Application by two accused to exclude drugs found in their vehicle on basis of Charter breaches -- Accused stopped during routine sobriety check -- Officer noted large Tupperware container on floor and looked inside on basis of officer safety -- Drugs found in container -- Application allowed -- Applicants arbitrarily detained -- Applicants' s. 10(a) Charter rights to be informed promptly of reason for detention was breached -- Search of container unreasonable and not justified on basis of officer safety - By making only one call to duty counsel, police breached accuseds' s. 10(b) rights -- Canadian Charter of Rights and Freedoms, ss. 8, 9, 10, 24(2).
Application by two accused to exclude cocaine and marihuana found in their vehicle on the basis of Charter breaches. The driver and his passenger were charged with possession for the purpose of trafficking. The drugs were found in a Tupperware container on the floor of the front passenger seat. The accused alleged the officer had not right to look into the container on the sole ground of officer safety. The accused was stopped during a routine traffic stop. The officer intended to check for driver sobriety. The officer noted an unmuzzled pit bull in the back and requested that the accused look for a muzzle. When the passenger exited the vehicle after being told to pick up a cigarette butt, the officer noticed the large Tupperware container. The officer became fearful that it might contain a gun and did not want the passenger to have access to the container. When the accused wanted to push the container under the seat, the officer became more concerned and opened the contained finding the drugs. The accused were arrested. Although both accused requested to contact counsel, the police made only one call to contact duty counsel. HELD: Application allowed. The applicants were arbitrarily detained during the time that the police officers had the driver looking for the muzzle. There was a breach of the applicants' 10(a) Charter rights to be informed promptly of the reason for the detention. At no time did the police specifically tell either accused why they had been pulled over, let alone why the driver was ordered out of his car to search for a muzzle for the dog. The stop went beyond a Highway Traffic Act sobriety test stop and the accused were entitled to know what the police were investigating. The officer should not have asked the passenger any questions about the drugs found until he had spoken to a lawyer as requested. There was no attempt to call back duty counsel or to ask the passenger if he wanted him to call another lawyer before he asked questions. Calling duty counsel once, and doing nothing more, did not give an accused a reasonable opportunity to exercise their right to speak to counsel. The applicants' s. 10(b) rights with respect to the implementation component were violated. There was nothing particularly suspicious about the car or the two men that night. The police had no information to cause them to be suspicious about the car or the two men. It was an unreasonable search. The police were highhanded in their dealing with the accused from the outset. The conduct of the police towards the accused was deliberate, wilful, and flagrant. The violations were not motivated by a situation of urgency of necessity. The officers' conduct showed a pattern of disregard for the Charter rights of the accused. The administration of justice would suffer more by receiving the evidence than excluding it.
Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 8, s. 9, s. 10(a), s. 10(b), s. 24(2)
Counsel: Steve Coroza, for the Respondent. Leora R. Shemesh, for the Applicant, Mr. Kopcsanyi. Mihai Dobai, Self-Represented.
RULING ON CHARTER APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8, 91 and 10(a) and (b) and 24(2) 1 N.M. MOSSIP J.:-- An application was brought by Gabriel Kopcsanyi to exclude cocaine and marihuana found in a vehicle driven by the applicant as a result of the search of a Tupperware container in the vehicle by the Peel Regional Police, on the basis of alleged Charter breaches. 2 As a result of the seizure of the drugs, Mr. Kopcsanyi and Mr. Dobai, the passenger in the vehicle, were both charged with possession of narcotics for the purpose of trafficking; in addition, Mr. Kopcsanyi was charged with refusing to comply with a demand made to him by a police officer to provide forthwith a sample of his breath for analysis by means of an approved screening device. Real Issue 3 Although other Charter breaches were alleged and will be dealt with in this Ruling, both counsel agreed that the real issue for me to resolve on this voir dire is whether Constable Vertolli had the right to look in the Tupperware container which held the drugs, found on the floor of the front passenger seat, on the sole ground of officer safety. Evidence on the Voir Dire 4 The Crown called the two police officers who were involved in the events which gave rise to the charges against the applicant. 5 The evidence of the officers was brief and may be summarized as follows:
Constable Vertolli
* He has been an officer with Peel Regional Police for 10 years. * He has been in the Regional Breathalyzer Unit for approximately four years. This unit tests impaired drivers and travels the streets checking drivers for sobriety. * On November 13th and 14th, 2006, he was partnered with Constable Kozuska in an unmarked car. A person can see into this car, and could see the emergency lights throughout the car, and a cage in the car between the front and back seats. * At approximately 1:24 a.m. on November 14th, 2006, he and his partner made a routine traffic stop of the vehicle the applicants were in. * The traffic stop was made to do a sobriety check; the vehicle was exiting a drinking establishment late at night and to the officers appeared to be driving slowly, which suggested the driver did not want to be pulled over by the police. * The police officers slowed their vehicle down so the applicants' vehicle could pass. He saw the driver, passenger and what he believed was an unmuzzled pitbull in the back seat of the vehicle. * The officers activated their vehicle's lights and siren and the applicants' vehicle was pulled over. This happened 1/2 km to 1 km from the drinking establishment, Diamonds. * This officer approached the passenger side of the vehicle and spoke to Mr. Dobai who was smoking a cigarette. As he approached the vehicle he saw the dog pacing back and forth in the back seat. He was concerned about the dog because it was not muzzled; he has had bad experiences with dogs and he was fearful of the dog. * He asked Mr. Dobai what he had to drink and he said he'd had two drinks. * He asked the driver where the dog's muzzle was. The driver started looking for the muzzle in the car. He told the driver if the dog went to attack him he would shoot the dog. * Mr. Dobai threw his cigarette out the window. He asked Mr. Dobai if he was going to pick up his cigarette or did he want him to give him a ticket for littering. * Mr. Dobai stepped out of the vehicle to retrieve his cigarette butt. When he did that the officer saw a white Tupperware container on the floor in front of the passenger seat. * He testified the container was a large. one (12" x 12"); that he became fearful about what might be in the container, he thought it might be a weapon, a knife or a gun. He wanted to know what was in the container before Mr. Dobai got back inside the car and had access to it. * He testified that he had been involved in a roadside stop that involved a gun; that gun was on the floor under the passenger seat. * He testified that he asked the driver "what's this" and the driver reached over to try to put the container under the passenger seat and said "it's nothing." * At this point he became more concerned and told the driver "no, leave it, give it to me now please." * The driver handed the container to him; he opened it and smelled marihuana; the marihuana was wrapped in a white bag; he saw another white substance which he believed was cocaine, in a clear ziplock bag. * He arrested Mr. Dobai at 1:32 a.m. He testified he told Constable Kozuska to arrest Mr. Kopcsanyi for possession for the purpose of trafficking. * He testified that the driver reaching over to try and hide the Tupperware container lasted about five seconds. The whole series of events lasted about six to eight minutes. * He saw a black knapsack on the floor of the passenger scat. The car was searched and nothing else was found. * Mr. Kopcsanyi's reaction to his question "what's this", was a facial expression of "concern"; there was no extreme nervousness. Mr. Dobai looked more nervous. * He gave Mr. Dobai his rights to counsel at 1:38 a.m. and told him what he was under arrest for. When given his rights, Mr. Dobai asked to speak to duty counsel. At the police station, the officer contacted duty counsel, but they never called back. * He took Mr. Dobai to the interview room and asked him questions before he spoke to duty counsel. * He gave Mr. Dobai the number for duty counsel when he left the station. * He did not give any rights to counsel when he asked the question "what's this?"; he did not believe he had to as he was asking about the Tupperware container for officer safety. * On cross-examination, he agreed that the applicants' vehicle, was pulling out of Diamonds' parking lot when they first observed it and that it takes a bit of driving to get up to 50 to 60 km per hour. * He agreed the car was stopped 1/2 km to 1 km away from Diamond's and that he observed the vehicle for one to two minutes. * He did not ask either of the applicants if the dog was a pitbull. * He has no specific training on pitbulls; later when he read the new act, with regard to pitbulls, he understood the act did not say that a pitbull had to be muzzled in a car. * He told Mr. Kopcsanyi to find the muzzle for the dog; he had free reign to look for the muzzle in the car; he did not go to the trunk or open it. * While Mr. Kopcsanyi was looking for the dog's muzzle, he was dealing with Mr. Dobai. * He testified that Mr. Dobai was not able to re-enter the car once he has seen the Tupperware container. If nothing had been on the floor, Mr. Dobai would have got back into the car. * Mr. Kopcsanyi put his knee on the seat and reached across to actually touch the container and try to push it under the seat as he said "nothing" to his question of "what's this?" * He cannot see into the container and that is why he is concerned; he thought there was a weapon in the container; he wants to make sure there is no weapon before Mr. Dobai gets back into the car. * He did no investigating or checking about the vehicle or occupants before he asked "what's this?" * He agreed there was nothing about these two men which heightened his concern for his safety. His only signs were slow driving and slight nervousness by Mr. Dobai after he asked "what's this?" * His safety concerns were heightened by what he says Mr. Kopcsanyi did in trying to hide the container. * He did not have Mr. Dobai's name; he did not have any particulars about either men or the vehicle. There was nothing suspicious about the car itself. * To him it was the "totality" of everything; the slow driving for 1-2 minutes for 1/2 km to a km, and exiting a liquor establishment late at night. * His safety concerns were heightened when he saw the Tupperware container; there are always safety concerns when the police pull over a car. * He wanted to know what was inside the Tupperware container for safety concerns. * As a police officer he believes he can investigate anything that is readily accessible to a person, that he cannot see into; he is entitled to know what is in that thing for safety concerns. * He was not thinking about drugs, when he saw the container, he has never located a gun or knife in a Tupperware container. * Mr. Kopcsanyi was not given a choice about the officer looking in the container; he would have gone into the car to get the container if Mr. Kopcsanyi had not handed it to him. It would not have mattered what he said in answer to this question, he was going to look in the container. * Once he opened container, he told Constable Kozuska to arrest Mr. Kopcsanyi and that he had a large quantity of drugs. * For the safety of himself and his fellow officer he did not have time to get a warrant; there were exigent circumstances and for officer safety, these things allow him to know what is in the container without getting a warrant to do so. * With regard to the rights to counsel issue, he agreed he did not place a second call to duty counsel and did not ask Mr. Dobai if he wanted him to call someone else as duty counsel had not returned his call, before he started to ask him questions in the interview room. * On re-examination, the officer agreed he asked Mr. Dobai questions before he spoke to duty counsel because he wanted to get particulars about him; ask him about the incident; and to try to get him to confess if they were not his drugs. * He agreed that as for searching items in a car, that it is "situational" in that it depends on the time of day, where he is, what the incident is about, e.g. if the driver is coming from a licensed establishment. * If he can actually see inside a bag that there are no weapons, he would not search the bag. * He testified that the dispatcher runs the plates once they call them in as being on the vehicle they have stopped. The dispatcher would tell them if there are any problems with the car that show up after the plates are run.
Constable Kozuska
* He has been with the Peel Regional Police since August 2003 and been with the Regional Breath Unit for six months. * He had the roadside screening device in his car, he had tested it to make sure it was operational. * He repeated some of the background information given by Constable Vertolli with regard to the pulling over of the applicants' vehicle. * He activated the emergency equipment to pull the vehicle over once it passed him. He testified they were pulling the vehicle over to test the driver for sobriety and he also wondered about whether the dog in the back seat that he believed was a pitbull should be muzzled at all times. * He approached the driver's side to ask a few questions to decide if he should do a sobriety test. * He testified that Mr. Kopcsanyi's eyes seemed to be watery, red/rimmed/bloodshot; pupils dilated, slow reaction and his face was flushed. He smelled alcohol when they engaged in a conversation. * He engaged Mr. Kopcsanyi in a series of questions; as a result of the conversation and his observations he was suspicious he was impaired. He wanted him to exit the vehicle to do a roadside test. He asked the driver for his ownership, license and insurance documents. * He asked Mr. Kopcsanyi to exit the vehicle and look for the muzzle for the dog. He looked in his back seat; then went to the trunk. He then walked back to driver's side door. He could not remember what Mr. Kopcsanyi did then. * He heard Constable Vertolli arrest the passenger for possession for the purpose of trafficking and he arrested the driver for that. His understanding is that if passenger is arrested for possession for the purpose, the driver is also arrested, because its his car and he's in control. * He was also arrested for failure to provide a breath sample. * After he was arrested for possession for purpose, then he took the handcuffed Mr. Kopcsanyi to his cruiser, and told him he was going to make a breath demand. * He was still investigating whether to do the roadside test when he arrested him for drugs. * He first saw the Tupperware container when he was escorting Mr. Kopcsanyi back to his cruiser; the lid was open and he saw the white powder substance and the marihuana. * When he arrested him for possession for purpose, he did not give him rights to counsel then; he was still investigating further for the drinking and driving. * When he took Mr. Kopcsanyi back to the station, he placed a call to duty counsel; he did not receive any return call from duty counsel nor did front desk while he was there, * Once he left the cell area, that was the last time he spoke to Mr. Kopcsanyi. * In cross-examination, he agreed with defence counsel that the applicants' car appeared to be driving about 40 km per hour. * He agreed he did not call the plates in before the car stopped; he did not know who the owner of the car was that night. * His concern as he approached the car was the dog. * He was going to investigate about the pitbull and its lack of muzzle. * He did not say anything to the driver about the pitbull; about whether it was a pitbull or if it had to be muzzled. * He had a suspicion regarding sobriety when he was dealing with Mr. Kopcsanyi; when he said he had a muzzle for the dog, he let him look for it. * He had the suspicion he had alcohol in his system and that is enough to make a demand for a breath sample. * The dog and the demand for a breath sample are the only two concerns he has. * He testified that he did not remember if Mr. Kopcsanyi got back in the car after he searched the back seat and the trunk for the muzzle. He was referred to his preliminary inquiry testimony where he said Mr. Kopcsanyi did not go back into the car after he searched the trunk as far as he could remember, he did not recollect Mr. Kopcsanyi reaching over into the front seat. * He heard Constable Vertolli say that he had one under arrest for possession for the purpose. * At the time he arrested Mr. Kopcsanyi he had not seen the drugs; nor did he know where they were found by Constable Vertolli. * 1:49 a.m. he read Mr. Kopcsanyi his rights to counsel for both charges. * He testified another police unit vehicle, a tow truck and animal control unit arrived on the scene. * He testified that Mr. Kopcsanyi made 8 attempts to blow and that the mouthpiece was not changed during those attempts; but he believed the mouthpiece was working properly. * He testified that when he and Constable Vertolli went to serve a Part III notice on Mr. Kopcsanyi, they asked for and took his passport because they decided he was a flight risk. Analysis/Findings/Position of Parties Standing 6 In the course of submissions by the Crown with respect to whether or not either of the applicants had standing to bring the s. 8 Charter breach application, the Crown relied on R. v. Belnavis [1997] 3 S.C.R. 341 to argue that there was some possibility Mr. Kopcsanyi did not have standing even as the driver, and that certainly Mr. Dobai, as the passenger, did not have standing to bring the application. 7 The application under s. 8 was brought by Mr. Kopcsanyi's counsel and it was assumed, certainly by defence counsel, that Mr. Dobai would benefit from her argument on the s. 8 application. The issue of him not having standing to bring the s. 8 application was not specifically addressed prior to submissions. 8 The court had discussions with counsel about this issue, which was somewhat complicated by the fact that Mr. Dobai was self-represented. Ms. Shemesh had done an excellent job of trying to include him in any benefit she might obtain for her client Mr. Kopcsanyi on the Charter application. The issue of standing had not been canvassed with Mr. Dobai, and therefore he did not present any evidence on the voir dire, which might have been relied on by him to argue that he should have standing to make a s. 8 application. 9 After the Crown heard the summary of evidence that Mr. Dobai would give with respect to his direct connection to the car the applicants were in, and the evidence as to his relationship with Mr. Kopcsanyl, the Crown conceded that Mr. Dobai as the passenger, in these specific and unique circumstances, would be able to make the s. 8 Charter breach argument as well. Based on the summary of Mr. Dobai's proposed evidence, and the location of the Tupperware container, it is likely I would have granted Mr. Dobai standing in any event, if that issue was not resolved. 10 Based on the Crown's concession, with respect to Mr. Dobai, and based on my understanding from the decision of Belnavis, that there would be no difficulty with Mr. Kopcsanyi meeting the test, we proceeded with the application on the basis that both Mr. Kopcsanyi and Mr. Dobai had standing to bring the s. 8 Charter breach application, and that this ruling on all of the alleged Charter breaches would have the same impact for both men.
S. 9 - Arbitrary Detention; S. 10(a) - Reason for Detention 11 Defence counsel conceded that both men could lawfully be detained when their vehicle was pulled over pursuant to the provisions of the Highway Traffic Act, which allow the police to make a breath demand at the roadside to test for sobriety. Defence counsel's submission is that the applicants' detention took on a different nature from being one where a car was stopped for a test for sobriety, when approximately 14 minutes were taken up to look for the muzzle for a dog that was in the back seat of the car. Defence counsel's submission is that at this point the persons were not detained for a sobriety test reason, but were detained for an investigation into whether the dog has been properly muzzled. Defence counsel's submission is that the police at this point were on a fishing expedition with respect to the car, the pitbull, and anything else that they suspected was unusual about the occupants or the car. 12 The delay to look for the muzzle was exacerbated, according to the defence, by the fact that Officer Vertolli made it clear that if Mr. Kopcsanyi did not find the muzzle he would shoot the dog if there were any problems. Further defence counsel submits that the police were not acting reasonably in the pitbull investigation, as they did not even ask if the dog was a pitbull; they did not ask whether the driver knew if the dog had to be muzzled while in the car, and they did not have any specific knowledge about the pitbull legislation and whether the dog had to be muzzled or not. Ultimately, it is the position of the defence that the applicants were both arbitrarily detained during the time that Mr. Kopcsanyi was looking for the muzzle for the dog. 13 The position of the Crown is that this was a sobriety test stop "gone sideways"; that the detention of the applicants was solely related to the sobriety test, and was therefore a proper detention. The instruction to Mr. Kopcsanyi to look for the muzzle was to ensure that nothing happened with respect to the dog and was for a relatively short time. It was during this time, when Mr. Kopcsanyi was looking for the muzzle that Constable Kozuska was continuing to investigate as to whether or not he was going to make a breath demand. It was all happening at the same time and that there was nothing improper or arbitrary about the detention. 14 In the unusual circumstances of this case, I find that the applicants have met their onus and that they were arbitrarily detained during the time that the police officers had the driver, Mr. Kopcsanyi looking for the muzzle for the dog. Further I find there was a breach of the applicants 10(a) Charter rights to be informed promptly of the reason for the detention. I find that at no time did the police officers specifically tell either of the applicants why they had even been pulled over, let alone why the driver was ordered out of his car to search for a muzzle for the dog. 15 Perhaps, if all that happened was some questions about drinking, the purpose of the stop might have been obvious to most members of the public. Roadside stops to determine the sobriety of drivers have been held to be a constitutionally permissible limit on the freedom from arbitrary detention set out in s. 9 of the Charter. (See R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.); R. v. Ladouceur, [1990]1 S.C.R. 1257). 16 In this case, a lot more was happening; questions about where they had been; what they had been drinking; threats of a littering charge; of shooting a dog; of ordering a search of a dog's muzzle. At no time were the applicants specifically told why any of this was going on; and on it went for almost 15 minutes before the applicants were arrested on the drug charges. 17 I find that the stop went beyond a Highway Traffic Act sobriety test stop and that as such, the applicants were entitled to know what the police were investigating: Highway Traffic Act offences; pitbull legislation violation; littering by-law; criminal investigation. As such I find the applicants were arbitrarily detained and in addition that their s. 10(a) right to know promptly why they was detained were also breached.
S. 10(b) - Rights to Counsel 18 The position of the defence is that the police for the most part complied with the informational component of the s. 10(b) Chatter right but that there was a breach of the implementation part of this section. The police informed both Mr. Kopcsanyi and Mr. Dobai that they had been arrested; Mr. Dobai knew why right away but, Mr. Kopcsanyi only knew the exact reason for his arrest on the two charges, after he failed to provide a breath sample. Both men asked to speak to duty counsel when they were given their rights to counsel. The two police officers called duty counsel, at the police station, but it is uncontroverted that duty counsel never returned their calls, either while they were with the applicants in the cells, or when they had left the cells, nor did the front desk receive any return calls from duty counsel. 19 It is also uncontroverted that Constable Vertolli went on to question Mr. Dobai before he had spoken to counsel, which he had requested when he was given his s. 10(b) rights by the officer. 20 It has long been the law (see R. v. Prosper [1994] 3 S.C.R. 236, for example), that the police must "hold off" in questioning a person who has been arrested, if that person indicates that they wish to seek the advice of counsel, until they have spoken to counsel. 21 Of course there will always be situations of urgency or safety of the public, for example where in such an extraordinary case, the police may ask questions of an arrested person contrary to this general rule. 22 However, in the ordinary course and certainly such as in the case before me, Constable Vertolli ought not to have asked Mr. Dobai any questions until he had spoken to a lawyer as requested. There was no attempt to call back duty counsel or to ask Mr. Dobai if he wanted him to call another lawyer before he asked questions. Constable Vertolli made it clear that he spoke to Mr. Dobai simply because he wanted information from him, and in fact wanted to see if he could get him to "confess" that the drugs were not his. 23 In the circumstances of this case, in my view, Constable Vertolli was not entitled to ask these questions of Mr. Dobai until Mr. Dobai had a reasonable opportunity to exercise his right to speak to counsel. Calling duty counsel once, and doing nothing more, does not give an accused person a reasonable opportunity to exercise their right to speak to counsel. 24 Once Mr. Dobai had exercised that right, and spoken to a lawyer, the police are entitled to continue to ask that person questions even if the person states they were told not to talk to the police for example. This continued questioning may be subject to the courts scrutiny if the arrested person gives a statement to the police that he or she later argues was not given voluntarily and contrary to the right to remain silent. 25 Nothing was done by the police for either of the applicants except one call to duty counsel. Neither men were asked if there was someone else that could be called or whether a second call to duty counsel should be made. The entire time the applicants were in police custody they never received any legal advice about their situation, notwithstanding their specific request that they be entitled to do so. 26 Defence counsel does not suggest that there are statements from either Mr. Kopcsanyi or Mr. Dobai that the Crown seeks to enter. However, the s. 10(b) breach, specifically with respect to Mr. Dobai, is one further factor defence counsel asks me to consider in any s. 24(2) analysis I might undertake. 27 I find the applicants' s. 10(b) rights with respect to the implementation component were violated; more should have been done to assist the applicants in exercising their declared request to speak to counsel while in police custody. S. 8 - Unreasonable Search & Seizure 28 This is the most serious and important aspect of the application by the defence. As set out above, the application to exclude evidence because of a s. 8 breach applies to both applicants. The breach is alleged to have occurred when Constable Vertolli specifically requested to look in the Tupperware container found on the floor of the front passenger side of the vehicle after Mr. Dobai exited the vehicle at the request of the officer to pick up his cigarette butt. 29 It is not disputed that the request to look in this Tupperware container was done by Constable Vertolli solely for his stated reason of officer safety. The question I must resolve is, whether that belief was reasonable, in all of the circumstances of this case, such that the search of the Tupperware container where the drugs were found was legally justifiable. 30 The onus of course is on the Crown with respect to the s. 8 issue as this was a warrantless search of the container and is prima facia unreasonable. 31 A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. (See R. v. Collins, [1987] 1 S.C.R. 265 at para. 23.) 32 The Crown submitted that the search was reasonable because it was based on a belief by Officer Vertolli that he needed to do so for officer safety. The Crown submitted that the belief of Officer Vertolli was reasonable given the circumstances of the time of night, where the car had just exited, and the look of concern on Mr. Dobai's face when Constable Vertolli asked about the Tupperware container. In addition, Constable Vertolli relied on the action of Mr. Kopcsanyi in trying to hide the container, and saying it was "nothing" when he was asked about it. 33 The position of the defence is that firstly, Officer Vertolli made up the evidence with respect to Mr. Kopcsanyi reaching across the front seat to try to hide the container. Defence counsel based this submission on the fact that the two police officers contradicted each other with respect to this evidence. Constable Kozuska testified at the preliminary hearing that he did not recall seeing Mr. Kopcsanyi reach across the front seat to look for anything or try to hide anything, after Mr. Kopcsanyi had searched for the muzzle in the trunk of the car. At the trial, he testified that he did not remember where Mr. Kopcsanyi went when he left the trunk and came to the front of the car. He did testify at this trial that he believed he would have remembered if he had seen Mr. Kopcsanyi reach into the front of the car and he did not recall seeing that. Secondly, defence argues that it makes no sense that Mr. Kopcsanyi would have done this in front of the two officers. 34 Defence submits that there is absolutely nothing that ought to have given Officer Vertolli a reasonable suspicion for officer safety With respect to the Tupperware container. There was nothing known about the men or the car. There was nothing in their behaviour to cause Constable Vertolli any concern, and the officer had no experience of weapons being hidden in Tupperware containers that would cause him to be specifically concerned about the container possibly having a weapon in it. 35 Defence counsel submits that Officer Vertolli simply wanted to know what was in the container and that it was his position that he was entitled. In almost all circumstances to look into something he saw in a car that he could not see inside of. 36 The Crown's position was that Officer Vertolli made it clear in re-examination that his statement that he was entitled to look into anything that he could not see inside of, was "situational". Having qualified his right to look into anything in a car, it is the Crown's submission that based on the circumstances of that evening that Officer Vertolli's belief that he needed to see inside of that Tupperware container for officer safety was a reasonable one and therefore the search was not unreasonable given the time of night, and where the men had come from; the fact that the car had been driving slowly, and that there was some concern on Mr. Dobai's face when Officer Vertolli asked about the Tupperware container and the attempt to hide the container by Mr. Kopcsanyi. The Crown submitted that Constable Vertolli was entitled to be "suspicious" that there might be a weapon in the Tupperware container and that his suspicion was reasonable and therefore the search was reasonable. 37 There is case law with respect to the issue of officer safety and it certainly is a basis for a warrantless search, and in the correct circumstances, is recognized as such by the courts. The cases set out the court's acceptance of the lawfulness of a pat-down, or a flashlight search of a motor vehicle where officer safety, or public safety is reasonably at risk. 38 In the case of Mellenthin, Mr. Justice Cory wrote:
There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can I place any particular significance upon the fact stressed by the appellant that the police only made use of a flashlight after the request had been made of the appellant to produce the necessary papers and not [page 624] when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as a necessary incident to the check stop routine.
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. Cheek 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. 39 The case before me has some similarities to the decision of the B.C.C.A. in R. v. Dreyer, [2008] B.C.J. No. 308, and I found the following paragraphs instructive:
As mentioned, the officer testified that he was motivated by safety concerns in opening the bag. Safety can be a valid purpose for a search incidental to arrest R. v. Caslake, [1998] 1 S.C.R. 51, 121 C.C.C, (3d) 97; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, 185 C.C.C. (3d) 308. But here the appellant was detained outside the car at the time of the search, and in the circumstances it is hard to imagine any hazard to the officers or the public.
...
If In the course of a liquor search illicit drugs come into plain view, seizure can be valid. This is not such a case. What the judge has permitted is an expansion of a search authorized for a limited purpose to a general search for contraband on a hunch. He has allowed the police to rummage for whatever might look suspicious, regardless of the authorized limits of the search. This is a serious error in law. 40 It is clear that a police officer must have something much more than a suspicion or hunch that officer safety is at risk to rely on this as a basis for a warrantless search. In the decision of R. v. Calderon [2004] O.J. No. 3474, Mr. Justice Laskin, writing for the majority wrote at para. 78:
A warrantless search may be justified in the common law in two ways: (1) by characterizing the search as a search incidental to an investigative detention and (2) by characterizing the search as a search incidental to arrest Mann at pare. 40 confirms that the Police do not have an unrestricted power to search incidental to an Investigative detention. A search incidental to an investigative detention is justified for "protective" purposes: officers must believe, orb reasonable and probable grounds, that their safety or the safety of others is at risk. See also R. v. Ferris (1998), 126 C.C.C. (36) 298 (B.C.C.A.). Neither Osborne nor Rome claimed that he searched the appellants' car because his safety or the safety of others was at risk. 41 In considering this issue of officer safety in the case of R. v. Plummer [2007] O.J. No. 2818, Mr. Justice Durno at paragraph 156 and 157 wrote:
I accept Ratych's evidence that he was honestly concerned for the safety of the people in the vicinity, as well as his and Hunt's. Objectively, that was a reasonable conclusion. The applicant was seated in a parked car close to a door used by drug purchasers. He was surprised to see police, and acted suspiciously as if he was concealing something when the officers past. The officers had some information, of unknown reliability, that the applicant was possibly armed and dangerous. Those factors made Ratych's decision to conduct a "pat-down" search reasonable and lawful.
Once the vest was found, P.C. Ratych believed it gave credence to the reliability of the alert. That was a reasonable conclusion. Once the vest was found, Mr. Rusonik conceded that if the officers saw the suspicious movements and knew of the alert, they could search the bag and car, at least in the area where Mr. Plummer was seated. I agree. I also agree with Mr. Patton that the officers would not have been entitled to search the trunk. 42 The circumstances described in those paragraphs are very different than the evidence Constable Vertolli gave on the voir dire. At its starkest the evidence of Constable Vertolli was that the car was driving slowly out of a driveway, it was late at night, the occupants of the car had just exited an adult entertainment club, and there was some concern on Mr. Dobai's face when he asked about the Tupperware container. That evidence, even taken at its highest, cannot, in my view, objectively form a reasonable suspicion that officer safety was at risk if Constable Vertolli did not search the Tupperware container, let alone form a reasonable basis to search the container. 43 I accept the submissions of the defence with respect to this issue. I do not find that there was anything of any significance that should have given Officer Vertolli a reasonable suspicion that officer safely was at risk if he did not see inside the Tupperware container. I base this on the evidence of the two officers that there was nothing particularly suspicious about the car or the two men that night; nor did they have any information to cause them to be suspicious about the car or the two men. 44 I am frankly unable to resolve whether or not Mr. Kopcsanyi reached across the front seat as Constable Vertolli said he did. It does seem odd that he would do that in front of two police officers and try to hide a container and say it's "nothing" when they are staring right at him. It's possible he did that, but I cannot resolve this evidence in my mind. In any event, I do not have to resolve it because I do not think it would have mattered to Constable Vertolli whether Mr. Kopcsanyi I reached across to try to hide the container or not, as he believed he was entitled to ask and look inside of that container regardless of that additional action by Mr. Kopcsanyi. 45 It is clear in my mind, from Constable Vertolli's evidence that he believed that once he saw something in a car that he could not see inside of, that caused him some concern, he was entitled to look inside of it, whether the concern was justified or not. There was nothing about the car, the occupants, or the circumstances that Constable Vertolli was able to articulate at least to me, that laid a foundation to find that his concerns about officer safety were reasonable. 46 In my view, Constable Vertolli simply wanted to know what was in that Tupperware container; believed he had the right to know what was in a container that he could not see into; asked to see into it, and the drugs were found. It was an unreasonable search and there was a breach of both applicants' s. 8 right to be free of unreasonable search and seizure. S. 24(2) 47 As a result of the Charter breaches that I have found the applicants submit that the evidence obtained in the search of their vehicle should be excluded pursuant to s. 24(2) of the Charter. 48 This section of the Charter has been analyzed on numerous occasions by Courts of Appeal and the Supreme Court of Canada. Trial judges routinely look to the analysis in The Queen v. Collins [1987], 33 C.C.C. (3d) 1 (S.C.C.) and R. v. Stillman [1997] 113 C.C.C. (3d) 321 (S.C.C.), which set out what three factors the court should consider and balance, in deciding whether to admit or exclude evidence at trial:
1) The effect of admitting the evidence on the fairness of the trial; 2) The seriousness of the Charter violations; 3) The effect of excluding the evidence on the repute of the administration of justice. 49 The first factor, trial fairness, focuses on whether the evidence was of a conscriptive, or non-conscriptive nature. The defence agrees that the drugs are non-conscriptive, real evidence which would have been found on any search of the motor vehicle. Such evidence has been found to not generally affect trial fairness for an accused even if unconstitutionally found. 50 I am satisfied the admission of the marihuana and cocaine found in the Tupperware container would not affect the trial fairness for the applicants. 51 The second factor, the seriousness of the Charter violations, looks at both the significance of the violation and the nature of the police conduct that brought about the violation. (See R. v. Buhay, [2003] 1 S.C.R. 631 (S.C.C.)). 52 In this case, I found that there was a s. 9 arbitrary detention; s. 10(a) and s. 10(b) violation of both applicants' rights, and of Mr. Dobai's in particular. There is no evidence as to any statement given by Mr. Kopcsanyi before he was able to talk to a lawyer and I cannot speculate about that, however, he was not in my view properly given an opportunity to speak to counsel in the police cells. As I said both applicants were in the custody of the police for a considerable time without having the benefit of speaking to counsel which they both had requested. The s. 8 violation that I have found is the most serious Charter breach, though in the circumstances of this case, all of the Charter breaches were serious. Lastly, there is also the evidence that the two police officers went to the home of Mr. Kopcsanyi after his release, when they were serving him with a notice for trial, and seized his passport, without any authority to do so, and ultimately had to return that passport. 53 Specifically, I consider the s. 8 search and seizure breach to be a serious one. Although there is a lower expectation of privacy in a motor vehicle than a home as the case law has confirmed, there is still a significant expectation of privacy in a car. 54 It is always stressful to be pulled over by the police when a member of the public is driving a motor vehicle. I find based on the evidence, that this particular interaction between the applicants and the police was not one that would be fondly remembered by the applicants, nor one that the public would be proud of. I find that the police were highhanded in their dealing with the applicants from the outset. This may have partly been because of their heightened alarm caused by the dog in the back seat of the car and which they believed was a pitbull. There is no evidence that the dog growled at them, barked at them, snapped at them, or did anything aggressive toward them. However, both officers testified that the dog definitely alarmed them. In retrospect I wonder whether the dog caused them more alarm than the two occupants of the vehicle, and perhaps mode them unnecessarily aggressive in how they dealt with the applicants. 55 Although it is not in any way a Charter breach, I do find Constable Vertolli threatening to shoot the dog, even if he only said that he would do so if it attacked him, was clearly a threat that would have alarmed the applicants and heightened everyone's already anxious states. Moreover, to threaten to issue a litter ticket to Mr. Dobai for throwing his cigarette butt out the window, was also provocative and was not an attempt to calm the situation; it was a confrontational and an aggressive statement. Once Mr. Dobai has exited the vehicle and Constable Vertolli saw the Tupperware container, he had no intention of letting Mr. Dobai back into the vehicle until he knew what was in the Tupperware container. Based on the evidence as I have found it Constable Vertolli had no right to know what was in the Tupperware container, but he acted as if he did. Further the applicants were detained for an inordinate time without knowing why, looking for a dog muzzle. 56 Instead of Mr. Kopcsanyi being taken immediately for the breath test, the police officers got distracted by the unmuzzled dog in the back scat, which there is no evidence, was making any moves towards them. Mr. Kopcsanyi should have been taken to give his breath test right away, and Mr. Dobai probably should have never been told to get out of his car to pick up his cigarette butt. If those two things had happened differently, this case would not be before the courts. 57 I cannot say I find the officers deliberately acted in bad faith, but I do think that the officers overstepped their authority. There was also in my view, a clear misunderstanding by Constable Vertolli as to his right to be able to look at anything that he cannot see into in a car; in my view, he basically thinks he can rationalize this desire by saying that officer safety is engaged. It is true that the officer tried to distance himself from this bald statement in re-examination by saying it was "situational", however, I have a sense that there would be very few situations that Officer Vertolli does not think he is entitled to look into containers, bags, purses, duffle bags, etc., that he cannot see inside of for officer safety reasons. 58 I note that the officer did not come to court and try to say that he has tempered his view on this issue in anyway, and I did find that troubling. As I said in my finding on the unreasonable search and seizure issue, there was no real objective evidence that Officer Vertolli had to rely on to use the rationale of officer safety to look in the Tupperware container. Accordingly I do find that the conduct of the police towards the applicants that night was deliberate, wilful, and flagrant. The violations. were not motivated by a situation of urgency of necessity. The officers' conduct showed a pattern of disregard for both the applicants' Charter rights. 59 The police officers in my view were distracted by the dog from what they should have been doing, which was taking the breath test on Mr. Kopcsanyi. 60 All of this behaviour of the police is further compounded by the police officers attending at Mr. Kopcsanyi's house, after his release, to take his passport when they had no authority to do so. 61 With respect to this second branch of the 24(2) test, I consider the Charter breaches serious, particularly when combined with the police conduct set out above. There was no evidence before me to say whether this conduct was as a result of a systemic or institutional failure or because of inadequate training, and so I do not rely on that basis in this analysis. I do find that the police conduct itself, was significantly unwarranted. I am therefore compelled to conclude that the multiple violations of the applicants' Charter rights in the present case are very serious. 62 The third branch of the test relates to the effect of the exclusion of the evidence on the administration of justice; would excluding the evidence have a more serious impact on the repute of the administration of justice than admitting it. This factor is generally related to the seriousness of the offence and the importance of the evidence to the case for the Crown. 63 I note that the amount of drugs seized, although significant, is nowhere near the quantity, such as in the case of R. v. Harrison, [2008] O.J. No. 427 where 77 lbs of cocaine were located in the car. In this case, we have a quarter of a pound of marihuana worth approximately $1,100.00 to $2,500.00 and two ounces of cocaine worth approximately $4,700.00. These are not insignificant amounts, and they are clearly enough to warrant a charge of possession for the purpose of trafficking, however, they pale in comparison to 77 lbs of cocaine which was the amount found in Harrison. The factors which favoured admission in the case of R. v. Grant, [2006] O.J. No. 2179, for example, are also not in this case, that is, a loaded gun, and the accused being in close proximity to a school. 64 I acknowledge the seriousness of the drug-related offences, and that the prosecution against the applicants cannot succeed if the evidence of the drugs is excluded. This is a harsh reality. 65 However, the negative effect of routinely admitting evidence as a result of a disregard for individual constitutional rights cannot be ignored. 66 Accordingly, considering my finding with respect to trial fairness, and balancing the second and third set of factors together and considering the conduct of the police, I am satisfied that the administration of justice would suffer more by receiving the evidence than excluding it. 67 The applications an behalf of both applicants is granted, and the evidence of the marihuana and cocaine is excluded from this trial. N.M. MOSSIP J. cp/s/qlrxc/qlclg/qltxp/qlaxw |
