Counsel:

Ms. A. Esson, counsel for the Crown

Mr. R. Rusonik, counsel for Mr. McKennon

       HILL J. (orally):—

INTRODUCTION

¶ 1      In this case, Gregory McKennon and Sean McLean elected trial by judge alone on a six count indictment. After a prosecution decision not to proceed on two counts and a directed verdict respecting three counts and a prosecutorial stay of all charges against McLean, McKennon awaits verdict on the single count that he unlawfully possessed "a firearm, to wit, a handgun without being the holder of a license under which he may possess it contrary to s. 91(1) of the Criminal Code of Canada".

FACTUAL OVERVIEW

¶ 2      Police Constable McSherry, at the time a trainee officer, was a member of a group of Peel Regional Police Service officers who arrested McKennon and others in August, 2002 on school property for causing a disturbance. The accused was not convicted of anything arising out of this incident.

¶ 3      On February 21st, 2003, at an intersection in Brampton, Ontario, Constable McSherry was on routine patrol waiting to turn left at a traffic light when a Honda vehicle registered to the accused turned the corner to his left and passed him going in the opposite direction. At this point, the officer had just over a year's experience on the job.

¶ 4      On the officer's evidence, he "quite clearly" observed the passenger in the McKennon vehicle, Sean McLean, not to be wearing his seatbelt. Constable McSherry further testified he also recognized McKennon from the arrest about six months earlier. The officer stopped the McKennon vehicle, on his testimony, with the intent of processing, in some fashion, the Highway Traffic Act seatbelt infraction he described to the court. Constable McSherry communicated by radio to dispatch that he was out on a "traffic stop".

¶ 5      The investigating officer informed the court that on arrival at the driver's window of the Honda, he observed wisps of smoke and smelled the scent of freshly burnt marihuana. On his evidence, he told the occupants the reasons for the stop and that he "could smell marihuana coming from the vehicle".

¶ 6      He requested driver and vehicle documentation from McKennon who fumbled in the vehicle glovebox before producing the vehicle ownership as well as a driver's license from his wallet. No proof of insurance was produced from the multitude of papers in the glovebox.

¶ 7      Constable McSherry saw a dime bag, a small quantity of marihuana, on the floor between the feet of the passenger. Constable McSherry testified that McLean, whose hands were trembling, did not look at him, but seemed to be stealing glances at the glovebox as McKennon searched in the papers. McLean was unable to produce any identification when asked, but did reluctantly identify himself orally.

¶ 8      Constable McSherry testified that he returned to his cruiser to check the identity of both parties in the Honda. He had already decided to arrest the Honda occupants for a Controlled Drug and Substances Act offence. On his evidence, he had some officer security concerns as a result of the presence of drugs, McKennon fumbling in the glovebox despite the ownership being clearly visible in that receptacle, and on account of McLean's apparent nervousness.

¶ 9      Rather than secure the evidence and prevent the parties from fleeing, the officer returned to the cruiser, on his evidence, without seizing the marihuana, seizing the vehicle keys or removing either occupant one at a time for arrest.

¶ 10      On Constable McSherry's evidence, as he walked back to his cruiser, he saw "a great deal of movement going on by both parties inside the vehicle". McLean's "head disappeared from view for a couple of seconds, like he was leaning forward". Constable McSherry testified that as he was on his car computer performing the identity background checks. He intended to call for backup so that two officers would be present to increase officer security in affecting the arrest of two individuals. However, before making such a request Constable Morgan drove by and was hand-signalled to stop.

¶ 11      After a briefing of sorts, during which McSherry claims to have again seen ongoing movement by the occupants in the Honda with McLean again leaning forward, on the officer's evidence, McSherry arrested McLean and Morgan arrested McKennon.

¶ 12      Once the arrestees were placed in different cruisers, McSherry searched the Honda and located Exhibit #2, the illegal firearm, shoved almost entirely out of sight behind the liner at the rear of the glovebox. According to Constable McSherry, there was "some bend" to the rear divider of the receptacle. Additional marihuana was located under the driver's seat and one burned marihuana cigarette in a rear seat ashtray. When told of discovery of the gun McKennon said, according to Constable McSherry, "what gun, that's not mine".

¶ 13      A subsequent warrantless search of the Honda at a Peel Regional Police facility resulted in the seizure of a number of items, including two blue ski masks or balaclavas. Constable Morgan testified he was "tasked" by CIB to search the vehicle. Constable Custodio's notes indicate that the 21 Division search of the Honda was a "continued" search, while in testimony he said simply it involved property retrieval apparently akin to an inventory search.

¶ 14      McLean and McKennon testified McLean only removed his seatbelt once the Honda was stopped or being stopped by Constable McSherry. Both denied any marihuana consumption in the vehicle on the afternoon of February 21, 2003, although McKennon acknowledged the marihuana in the Honda to be his and further acknowledged that he used his car to smoke marihuana rather than in his residence.

¶ 15      McLean testified that because he dropped his pager he removed his seatbelt to retrieve it. McKennon recalled a clunking sound and McLean fidgeting in his pockets as the vehicle stop was occurring.

¶ 16      Both occupants of the vehicle testified that Constable McSherry at the outset raised the topic of marihuana and inquired about the substance on the passenger floor before removing and arresting McLean. Neither accused party agreed with the officer's testimony that he left them alone in the Honda while he returned to his cruiser to use his "in car" computer.

THE CHARTER APPLICATION

¶ 17      Gregory McKennon moved to exclude seized evidence in this case on the basis of the alleged violation of his s. 8 and s. 9 Charter rights. More specifically, it was submitted that because no reasonable grounds existed for McSherry's stop of the Honda and its two black occupants, the officer should never have been in the position he was to make observations, visual and olfactory, of the Honda interior and the Honda once stopped.

¶ 18      The defence expanded its illegal warrantless search argument to include the discovery of the ski masks at the police detachment search.

ANALYSIS

¶ 19      In R. v. Pinto (2003), 46 M.V.R. (4th) 263, (Ont. S.C.J.) at page 245, I observed:

¶ 20      Traffic stops, non-compliant with the lawful enforcement authority are arbitrary. As Justice Doherty stated in R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.) at 202:

¶ 21      Similar observations have been made in R. v. Calderone, [2004] O.J. No. 3474 (C.A.) and R. v. Brown (2003), 173 C.C.C. (3d) 23, 64 O.R. (3d) 161 (Ont. C.A.).

¶ 22      Traffic stops are generally low visibility interactions between the state and the citizen and scrutiny by the courts is critical to curb abuses of power such as they might exist. We have come to expect accurate and honest evidence from police officers testifying about traffic stops in order to understand whether lawful authority was constitutionally exercised.

¶ 23      The note-taking of the three police witnesses in this case is entirely unsatisfactory. The defence submitted that the officers collaborated in some measure in writing their notes. The witnesses denied this. None made contemporaneous notes, although here at trial Morgan and Custodio initially claimed they had in part. Why contemporaneous notes were not made was not answered by the witnesses. Contemporaneity promotes accuracy and a fulsome independent account even if jot or rough notes are subsequently posted up to a more polished narrative or summary.

¶ 24      The officers could not provide times as to when each made notes on February 21, 2003. Any note writing appears to have transpired after discussions with the C.I.B. officers who did not testify in this trial.

¶ 25      After examination, Constable McSherry acknowledged his notes reflected "several omissions or errors", despite a claimed understanding on his part that notes are to be accurate and "to include important items".

¶ 26      Considered against the Constable's testimony, the notes excluded reference to several important matters, some more so than others, including:

¶ 27      In May of 2003, Constable McSherry had the opportunity to read a Crown counsel memorandum, quite properly seeking full input as to how it was proposed to establish that McLean, the passenger, had knowledge of the presence of the firearm in the Honda. In his testimony, the officer stated that he understood in response to the memo he must be "detailed" and that he "endeavoured to provide a complete account of what happened".

¶ 28      Initially in his testimony the witness said that in preparing a will-state reply to the memo, he used his notebook for "dates, times". In cross-examination, the officer added that his original notes were employed as well for "some details" in preparing the reply two to three months after the events.

¶ 29      Under oath at the preliminary inquiry, Constable McSherry testified that he used his notebook only for the date of the stop of the Honda. The will-say statement:

¶ 30      On this latter point, while Constable McSherry agreed the "wording is different" and there existed in the will-state document an "error in wording on his part", the witness disagreed that this difference was in any way significant.

¶ 31      Returning to the note-taking theme, prior to trial Constable Morgan engaged in reported self-correction of an aspect of his notes in which he had stated observing Constable McSherry seize the gun on opening the front passenger glovebox. The witness testified that note was "a mistake" and he had no idea why he had written it. Beyond this example, Constable Morgan finally agreed in cross-examination that in his notes he "made mistakes - they were not as accurate as he would like".

¶ 32      Constable Custodio testified in this trial 20 months after the date of arrest that he can recall writing his notes in the police facility cafeteria away from the other officers involved in the Honda incident. When pressed as to how he could recall such an innocuous fact with the passage of time, and given that he does write notes in the C.I.B. offices on some cases, he replied "I just did". The officer claimed he had memorized seven or eight times of events and was able to subsequently incorporate the times, unassisted by documents or a third party, into his notebook.

¶ 33      I tend to the view that in a traffic stop case the discharge of proof regarding compliance with the Constitution and with the individual s. 9 Charter right should generally be upon the government. This is so where the alleged arbitrariness arises from a submitted absence of reasonable and probable grounds for the detention, especially in the context of an assertion of ulterior motivation for the detention. Vehicle stops are frequently based on subjective assessments of vehicle or driver impropriety without real or lasting evidence of an officer's impression. In traffic stops there is in effect a warrantless seizure of the vehicle and its occupants, permitting additional warrantless visual and olfactory searches and seizures in circumstances where the existence of the lawful grounds for the vehicle stop reside with the police. Unlike detention effected by a warrant of arrest, there is no judicial authorization of vehicle stops.

¶ 34      While Crown counsel accepted that in this case the prosecution ought to establish on a balance of probabilities that the stop was not arbitrary, because the stop was inextricably connected to the searches triggered by police presence at the Honda, a placement of the onus, as it turns out, makes no difference to the resolution of this case. In other words, whether one says the prosecution failed to establish the stop was not arbitrary or one says the defence established the stop was arbitrary on the balance of probabilities, the result on the record here is identical.

¶ 35      On the basis of this record, I am unable to make a finding that the officers' notes are accurate or when they were made, or whether they were made partly in a collaborative effort. At the end of the day, the main concern is the credibility and reliability of Constable McSherry's evidence. Quite apart from the fact that Constable McSherry's testimony is largely contradicted by the only other two persons present for the initial vehicle stop, McKennon and McLean, the state of the officer's notes, the embellishments in the will-state document, the differences on matters under oath at trial and the preliminary inquiry, not all of which have been reviewed, all call into question the ability to have the necessary degree of confidence in the legitimacy of the vehicle stop.

¶ 36      But there is more, notable differences from Constable Morgan's testimony, which I am inclined to accept. Despite testifying to seeing wisps of smoke come out of the driver's window, this is not communicated to Constable Morgan. As to the approach of the officers to execute the arrests, Constable McSherry testified that he and Morgan just "split up" and it was not "predetermined" which officer would arrest which suspect. Morgan, on the other hand, testified that a hasty plan was made, including assignments as to who would arrest which occupant.

¶ 37      At trial, Constable McSherry testified that before the arrests he gave Constable Morgan a quick briefing, including the observations of movements by the Honda occupants, movements which McSherry maintained occurred prior to the CPIC checks and again during the briefing of Morgan. Constable Morgan testified that not only was he told nothing by McSherry about such movements, but also that the briefing by McSherry took place facing the Honda. In Morgan's words, the occupants were "static and not moving" and "they were compliant".

¶ 38      On the totality of the record, it cannot be concluded that Constable McSherry made a lawful traffic stop. With this conclusion, even if I were able to do so, the court need not determine any unlawful reason motivating the constable's actions.

SHOULD THE EVIDENCE BE EXCLUDED, THE OBSERVATIONS AND THE SEIZURES

¶ 39      Non-conscriptive real evidence pre-existing any Charter breach and not affecting the fairness of the trial is generally admissible, even if unconstitutionally obtained. That, however, is not an absolute rule: see R. v. Mann (2004), 185 C.C.C. (3d) 308 (S.C.C.) at 330 and 331 per Iacobucci, J.; R. v. Buhay, [2003] 1 S.C.R. 631, 174 C.C.C. (3d) 97 (S.C.C.) at 126 and 127; R. v. Calderone, supra.

¶ 40      Where the court cannot conclude the traffic stop leading to the searches and seizures was not arbitrary, there has been a serious breach of constitutional rights, given the notorious stringency to which the state is held in justifying searches flowing from such stops. Further, admitting the seized evidence on the record in this case would tend to diminish the message in this jurisdiction that the government must lawfully obtain its proffered evidence in vehicle stops and transparently and clearly articulate the grounds for any seizures.

¶ 41      In the end result, the accused is acquitted. Exhibit #2 and the ammunition are ordered forfeited.

QL UPDATE:  20041215
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