Two Toronto police officers were patrolling a neighbourhood on bicycle where there had recently been several complaints about young people smoking marijuana in the area. At about 10 am they heard tires squealing. Both saw a Ford Focus travelling at a high rate of speed and with music blaring. There were children and pedestrians in the area; they decided to investigate.
Newell was the driver. No one else was in the car. Police approached and asked Newell for his license and registration, to which Newell responded that the vehicle was a rental in his fiancée’s name. Officers informed Newell of why he was being stopped and noticed that that Newell was sweating heavily, shaking and appeared nervous. Officers were able to confirm that the vehicle was a rental.
Both the officers thought it odd that Newell appeared to be so stressed and nervous for a simple traffic stop. One officer inquired about Newell’s obvious distress and Newell indicated that he did not like being around police. At that point the officer asked whether Newell had anything in the car that the police should know about; Newell replied in the negative. Both officers testified that this is a standard question asked during traffic stops for the purpose of ensuring officer safety.
During this initial conversation with Newell the officers were standing by the driver’s side door, Newell was seated in the driver’s seat and the window was rolled down. One of the officers noted the odour of marijuana emanating from the vehicle and asked Newell about it. In response Newell locked the doors of the vehicle and rolled up the window to about 1 inch from the top. When asked why he had locked the doors and rolled up the window Newell responded that he was scared and wanted to speak with his mother and fiancée, Ms. Sutton.
Officers told Newell to go ahead and call using his cell phone and asked that Newell request that his fiancée bring the rental agreement.
Newell was asked to produce his driver’s license, which he did through the inch big slot at the top of the window. Newell’s hands were shaking so badly he was barely able to accomplish this task. The license produced was not in Newell’s name. Mr. Newell throughout this interaction was refusing to exit his vehicle.
Because the officers were on bicycle they requested that a cruiser with computer access be sent to the scene to facilitate and expedite the investigation.
The fiancée was reached and arrived on scene as did Newell’s mother. The mother was hysterical, screaming and crying and had to be calmed by officers. The fiancée in contrast was said to be a positive influence over Newell, who was continuing to refuse to exit the vehicle. Eventually the fiancée convinced Newell to exit the vehicle.
Newell exited holding a pencil case and tried to pass it off to his fiancée. Police intercepted the pencil case and it was opened by the fiancée, revealing a quantity of marijuana. Newell was arrested and during a pat down search officers discovered a loaded handgun in the waistband of Newell’s jeans. He was then arrested on the possession of the gun.
At trial, Newell argued that his section 8 rights had been violated. Molloy J found that the initial stop was valid as was the extended detention. Molloy J explained:
I recognize that the detention continued for longer than is typical for a routine traffic stop. However, this was caused entirely by Mr. Newell's own actions, as follows:
a) he gave the officers a fake driver's license, which they were unable to verify through dispatch;
b) he provided a false explanation for the discrepancy in the driver's license, which prompted the officers to call for a squad car with a computer to come to the scene so that they could run searches themselves;
c) he knew he did not have lawful authority to drive the rental car, but told the officers his girlfriend could bring the rental agreement to satisfy them;
d) he refused to get out of the car, and the officers had reasonable grounds to believe that he was not authorized to drive it;
e) he asked for permission to call his mother and his fiancée, which the officers agreed to in the hopes of calming him down, as he seemed very upset;
f) when officers spoke to Ms Sutton on the phone, she confirmed that Mr. Newell was not listed as an authorized driver on the rental agreement for the car;
g) Ms Sutton told the officers she would bring the rental agreement to the scene, which if it appeared to be in order, would have enabled her to drive the car rather than having it towed and they therefore waited for her to get there; and,
h) rather than forcibly removing Mr. Newell from the car, the officers waited for Ms Sutton in the hopes that she could convince him to get out of the vehicle voluntarily.
When faced with a suspicious situation and a person under detention who appeared to be far too upset and nervous than was warranted by a routine traffic stop, the officers maintained their calmness and courtesy, as indeed was acknowledged by Ms Sutton. They chose not to escalate the situation by a violent confrontation, which was a wise decision. As a result of their patience, the detention went on far longer than usual for this type of traffic stop. That is to the credit of the police officers involved. The delay was caused entirely by Mr. Newell and the officers' decision to accommodate him rather than risk a violent confrontation. There was no breach of his Charter rights as a result of the length of the detention [paras 30-31]; [emphasis added].
With respect to the search of the pencil case Molloy J found that the search was reasonable in the circumstances of this investigative detention:
Before they had completed their investigation, they were not prepared to have Mr. Newell simply pass over this property to Ms Sutton without knowing what it was. Subjectively and objectively, that was entirely reasonable and prudent. They were concerned about their own safety when Mr. Newell, who had been clutching the case in a bizarre manner, attempted to pass it off to someone else. That also was reasonable and prudent. They offered the option of placing the pouch on top of the car, to which Mr. Newell objected. Whether purposely, or as a result of some confusion, Ms Sutton opened the case, at which time the drugs were in plain view. The officers did not breach Mr. Newell's Charter rights [para 37].
Once the marijuana had been discovered police had reasonable and probable grounds for Newell’s arrest and thus the pat down search was lawful.
Despite these findings, Molloy J found that Newell’s section 8 Charter rights were infringed when police officers improperly questioned him about whether there was anything in the car that the officers should be concerned about. Molloy J found that this line of questioning was not related to the lawful purpose of the traffic stop.
While, as will be discussed hereafter, Molloy J did not exclude any evidence as a result of this finding, it is one worth commenting upon. With respect, it is hard to understand how this questions amount to a violation of section 8. The question was not particularly invasive, Newell was free not to answer (or lie as he did) and the answer was not one which appears to be capable of revealing his biographical core of information. While questioning may amount to a “search”, there is an important line that must be considered between effectively policing and unconstitutional conduct – as was delineated in R v Suberu, 2009 SCC 33.
Despite this finding Molloy J correctly pointed out that nothing flowed from this breach:
Mr. Newell did not make an incriminating statement. Nothing flowed from the question being asked, other than the fact that it may have made Mr. Newell feel uneasy. However, at this point, Mr. Newell was driving without a license, had no legal right to be driving the car he was in, and had given a forged driver's license to the police. He had plenty of reasons to be uneasy [para 43].
In conducting the analysis under section 24(2) of the Charter Molloy J expressed concern over the systemic nature of this type of breach, explaining that:
I do have concerns about the systemic nature of this breach. Both Officers Gillespie and Davies testified that this is a routine question they ask on every traffic stop. Anecdotally, I can say that I have heard similar comments by officers in other cases. A similar question was asked in R. v. Beepath and in R. v. Grant (although in the latter case involving the detention of a pedestrian on a sidewalk). If asking this type of question is in fact a routine practice by police officers in Toronto, it is one that should stop. If the question in this case had resulted in Mr. Newell making an incriminatory statement, the fact that this would have been a conscriptive evidence along with the systemic nature of the breach would likely have resulted in the exclusion of the evidence under s. 24(2) of the Charter. I would hope that information directives and/or education programs directed towards the police will address this issue soon [para 48].
Molloy J ultimately admitted the evidence and found Newell guilty of all but one count on the 12-count indictment.