R. v. Snape
Ontario Superior Court of Justice
Whitby, Ontario
Ferguson J.
Oral judgment: February 19, 2002.
This case illustrates the problem with the police detaining people without reasonable grounds. If you are not charged with having something in your car you shouldn’t have when you read this case, imagine it was you stopped in the park for a few moments of peace and quiet at the end of the day.
Application by the accused Snape to exclude evidence on the basis of a breach of his rights under the Canadian Charter of Rights and Freedoms. Snape was detained by police in a public park. As a result of the detention, evidence was obtained leading to charges against Snape. The officers detained Snape while engaged in investigating drug or alcohol-related activity and their purpose was to see if any such activity was taking place in Snape’s vehicle. From their previous experience, the officers knew that such activity occurred frequently in the park where Snape was detained. Snape’s vehicle was parked at the edge of the parking lot near some trees with its lights off and began reversing as the police vehicle arrived. The police vehicle cut off Snape’s exit and he was ordered to stop. It was not yet dark at the time and was not a time of day when use of the park for legal activity would be unusual.
HELD: Application allowed. The officers’ actions violated Snape’s rights under section 9 of the Charter. There was no cause to detain Snape. There were no objective facts which gave the police reasonable cause to suspect that Snape was criminally implicated in drug or alcohol-related activity. The location was not one where the police had reason to believe all activity was criminal. The police had no reason to suspect that Snape was involved in criminal activity. The detention was not justifiable. It was only after the detention that the officers learned of any reason to provide grounds for arrest and obtain the evidence relied on to support the charge. The incriminating evidence would not have been discovered but for the Charter breach. The breach was a serious one and to admit the evidence would bring the administration of justice into disrepute.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 8, 9, 24.
Counsel:
T. Boodoosingh, for the Crown.
R. Rusonik, for the accused.
1 FERGUSON J. (orally):– The first issue raised is whether the defence has proved a breach of s. 9 of the Charter.
2 The accused was detained when his vehicle was stopped as a result of two police actions: by the unmarked cruiser cutting off his exit while the accused was trying to reverse, and by P.C. Odei ordering him to stop. As in Simpson, (1993), 12 O.R. (3d) 182, this was a confrontational detention.
3 I accept the testimony of the officers that they detained the accused while engaged in investigating drug or alcohol related activity and that their purpose for the detention was to see if any drug or alcohol related activity was taking place in the accused’s vehicle. This proves that they were acting in the course of their duty.
4 The focus then turns to the issue of whether the detention was justified.
5 The first aspect to be considered is whether they had articulable cause to detain the accused. I must look at the entire circumstances and determine if there was a constellation of objectively discernable facts which gave them reasonable cause to suspect that the accused was criminally implicated in drug or alcohol related activity.
6 I note in passing that the first action taken to detain the accused was taken by the driver of the police vehicle. He did not testify and so I did not hear any direct evidence as to the basis of his suspicion.
7 From the testimony of the two officers who did testify, I find that the three officers attended at the parking lot at the park for the purpose of investigating whether any drug or alcohol related activity was taking place in the park. From their previous experience, they knew that such activity occurred frequently in the park. On entering the park, they saw a lone vehicle parked at the edge of the parking lot near some trees with its lights off.
8 As the police vehicle arrived, the lone vehicle began reversing. There was some testimony that it was reversing rapidly but because of the conflicts in the testimony of the officers and their obvious difficulty in remembering the events, I find that the evidence does not establish that the vehicle was reversing rapidly. In the context, I cannot find it to be suspicious that a vehicle would leave a parking lot at the same time an unmarked police vehicle arrived. There was no detail as to the manner of the accused’s vehicle moving which seemed significant to me.
9 I am not satisfied on the evidence that it was dark at the time, although it was probably dusk. It was not a time of day when use of the park for legal activity would be unusual. There were no other objective facts relied on.
10 I accept the testimony that the location of the accused’s vehicle was one where the police had discovered drug and alcohol related activity in the past when cars parked there in the dark but, as noted, I find it was probably only dusk at the time of this detention.
11 The situation in the present case is not as stark as in Simpson because in Simpson, the officer had no personal knowledge that the location was one where criminal activity occurred. However, I conclude the circumstances of the present case could not provide articulable cause. I believe there are three reasons why there is no articulable cause in this case.
12 First, the location is not one where the police had reason to believe all activity was criminal; for example, as in a crack house. This was a public park where a wide variety of legal activities occurred.
13 Second, the facts related to the parking of the car and the time of day cannot support a conclusion that this was a situation which is more likely than not associated with illegal activity.
14 Finally, as stated in Simpson at page 504, the police had no reason to suspect that the accused in particular, or the driver of the vehicle, was involved in criminal activity. There was no significant evidence relating to the occupant of the vehicle other than the place and time of day.
15 As one officer agreed, there were several reasons why a vehicle might be in that location at that time. There were no circumstances to make drug activity a more likely reason than any other. The officer confirmed this when he said that their purpose was to investigate whether the occupants possessed not just controlled substances but also alcohol. It would seem unlikely to me that a vehicle was driven to a park of this type and location at that hour of the day for the purpose of consuming alcohol.
16 Although I need not proceed with the analysis any further, I shall do so in case the Court of Appeal finds I erred in concluding there was no articulable cause.
17 The second aspect to consider is whether the detention was justifiable even if there was articulable cause. I find it was not. This degree of interference with a citizen’s liberty is not necessary to investigate drug offences. The officers did not suggest it was. It was my impression that they did not even consider whether the detention was based on articulable cause or was justified. They appear to carry out such stops as a matter of routine.
18 The degree of the initial detention involved in stopping the vehicle was not very intrusive but the right interfered with, that of moving about in society without governmental interference, is a fundamental right.
19 Having considered all the circumstances, I conclude this detention was not justifiable. I find there was a breach of s. 9.
20 Next, I must turn to whether a remedy should be granted under s. 24.
21 It was only after the detention that the officers learned of any reason to provide grounds for arrest and obtain the evidence relied on to support the charge.
22 The incriminating evidence would not have been discovered but for the Charter breach. In my view, the breach was a serious one. In this case, the police had the perception that it was lawful to stop and investigate for drugs or alcohol any car parked in a public park where drug or alcohol activity was common. As was said in Simpson, this was a dangerous and erroneous perception.
23 The primary concern of the court here is that to admit the evidence would give the appearance that the court was condoning a police practice which was condemned in Simpson; that is, that the police have the power to stop anyone who happened to be at any place which the police had reason to believe could be the site of ongoing criminal activity.
24 I conclude that the admission of the evidence obtained would bring the administration of justice into disrepute. I therefore conclude that the evidence obtained should be excluded.
25 In view of this conclusion, there is no need to consider the s. 8 argument.
26 In the absence of the excluded evidence, there is no evidence to support the charge. The case is dismissed.
qp/d/qlala/qlhcs