Decisions of the Court of Appeal

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pera, 2023 ONCA 160

DATE: 20230309

DOCKET: C65915

Simmons, Paciocco and Zarnett JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Zaki Pera

Appellant

Mindy Caterina, for the appellant

Andrew Cappell, for the respondent

Heard: February 6, 2023

On appeal from the convictions entered on March 28, 2018, by Justice Anastasia M. Nichols of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]          The appellant appeals from convictions for possession of heroin for the purpose of trafficking, possession of a loaded prohibited firearm and breach of probation.

[2]          The main issues on appeal are whether the trial judge erred in failing to find that the police breached the appellant’s ss. 9 and 10(a) Charter rights during a motor vehicle stop and further erred in failing to exclude evidence of a gun and drugs found in the appellant’s car under s. 24(2) of the Charter.

[3]          For the reasons that follow, we dismiss the appeal.

Background

[4]          On April 16, 2017, at 4:59 p.m., based on information he had received from a confidential informant (the “CI”), a Barrie police officer, Officer Bromley, stopped the appellant’s car to investigate whether the appellant had a gun.

[5]          However, because of what he described as officer safety concerns, Officer Bromley did not advise the appellant of the real reason for the stop. Rather, he told the appellant he was investigating a possible probation violation.

[6]          While speaking to the appellant, Officer Bromley smelled vegetative (unsmoked) marijuana. The appellant produced a small bag of marijuana and a prescription authorizing its use. Based on the presence of the drug and prescription, and what he perceived as the appellant's "slow lethargic tone" of speech, at 5:09 p.m., Officer Bromley demanded the appellant perform a standard field sobriety test (“SFST”).

[7]          According to Officer Bromley, as the appellant was getting out of his car, he reached for his waistband, leading the officer to believe he was reaching for a gun. Officer Bromley arrested the appellant for possession of a firearm, placed him in handcuffs and did a pat down search. When he did not find a gun, Officer Bromley advised the appellant he was no longer under arrest.

[8]          While the SFST was underway, another officer on scene, Officer Tombs, spotted an oxycodone prescription bottle, not in the appellant’s name, in plain view in the appellant’s car.

[9]          Accordingly, although the appellant passed the SFST, at 5:23 p.m., Officer Bromley arrested him for possession of oxycodone, advised him of his right to counsel, and transported him to a police station. A short time later, the appellant’s girlfriend, who had a prescription for oxycodone, attended the police station and claimed the prescription bottle and oxycodone pills found in the appellant’s car.

[10]       In the meantime, an officer preparing a search warrant for the appellant’s car (the “SW officer”) confirmed that the CI had previously provided reliable information leading to the seizure of a large quantity of cocaine and other narcotics. Based on all the available information, the SW officer concluded there were reasonable and probable grounds to arrest the appellant for possession of a firearm. The appellant was informed he was under arrest on that charge around the same time his girlfriend arrived at the police station to claim the oxycodone.

[11]       Later the same evening, the police obtained a search warrant to search the appellant’s car. During their search, the police found a loaded 9 mm Ruger handgun, 13.14 grams of a heroin/fentanyl mixture and 50.02 grams of crack and powder cocaine.

The Trial Judge’s Decision

[12]       The trial judge rejected the appellant’s arguments that his ss. 9 and 10(a) Charter rights had been breached. Officer Bromley’s knowledge of the CI and the CI’s information was sufficient to support the initial vehicle stop and investigative detention. Officer safety concerns justified the use of a ruse and a brief delay in informing the appellant of the true reason for the stop: R. v. Balatoni, 2003 CanLII 28191 (Ont. S.C.). The basis for the appellant’s detention then evolved because of the odour of vegetative marijuana and the subsequent discovery of oxycodone.

[13]       The trial judge was satisfied Officer Bromley had grounds for the SFST demand and that the appellant was lawfully arrested for possession of oxycodone. Further, by the time the appellant’s girlfriend attended the station and claimed the oxycodone, the SW officer had formed reasonable and probable grounds to arrest the appellant for possession of a firearm. In light of the evolving nature of both the investigation and the reasons for the appellant’s continuing detention, the trial judge was satisfied there was no breach of his ss. 9 and 10(a) Charter rights.

[14]       In the alternative, the trial judge held that if she was in error and there was a s. 9 and/or s. 10(a) Charter breach, the evidence should not be excluded under s. 24(2) of the Charter. The police received credible information justifying the initial traffic stop and investigative detention. The police acted with restraint throughout and there was no indication “that the police did not act in good faith given the evolution of the investigation.” Although there was a meaningful impact on the appellant’s liberty and privacy interests, the evidence was reliable and essential to the prosecution.

[15]       Following the trial judge’s Charter ruling, the appellant’s trial proceeded by way of an agreed statement of facts which led to the appellant’s convictions.

Discussion

[16]       As noted above, the main issues on appeal are whether the trial judge erred in failing to find that the police breached the appellant’s ss. 9 and 10(a) Charter rights and further erred in failing to exclude the evidence of the gun and drugs found in the appellant’s car under s. 24(2) of the Charter.

(1)         The alleged ss. 9 and 10(a) Charter breaches

[17]       The appellant argues that the evidence demonstrates that Officer Bromley deliberately breached his ss. 9 and 10(a) Charter rights from the outset of the stop in order to obtain incriminating evidence against him and that the serious nature of the breaches warrants exclusion of the evidence. The deliberate breaches consisted of lying about the true nature of the stop and manufacturing a false basis for the SFST demand and the appellant’s continued detention. The appellant also argues that, in finding that the SFST demand was justified, the trial judge failed to consider the proper test for making such a demand, and, in any event, materially misapprehended important evidence.

[18]       In support of his claim that the ss. 9 and 10(a) Charter breaches were deliberate, the appellant points to Officer Bromley’s failure to immediately inform him of the reason he was being detained in relation to both the firearm and impairment investigations, the officer’s acknowledgement in cross-examination that he wanted to look inside the appellant’s car to see if he could obtain evidence and the officer’s further acknowledgement that, based on the information he had when he stopped the appellant, he could have ordered the appellant out of his car immediately, placed the appellant in handcuffs and advised the appellant he was being investigated for possession of a firearm.

[19]       The appellant also asserts that Officer Bromley’s evidence made clear that, despite his professed safety concerns, the officer permitted the appellant to reach across the interior of his car to retrieve various items, including his prescription for marijuana and a baggie containing marijuana. This conduct, says the appellant, belies the officer’s alleged justification for lying to him about the reason for the stop.

[20]       Concerning the SFST demand, the appellant relies on the fact that two other officers on scene who had as much as or more contact with the appellant than Officer Bromley did not notice any issue with the appellant’s speech. The appellant submits that the trial judge materially misapprehended the evidence in relying on findings that Officer Bromley had “the most interaction with” the appellant, and “most of the conversation” with him, to accept his evidence that he observed an issue with the appellant’s speech that supported the SFST demand.

[21]       Viewed as a whole, the appellant contends that the evidence demonstrates that Officer Bromley deliberately chose to violate his ss. 9 and 10(a) Charter rights to obtain evidence and that the violation occurred from the very outset of the stop.

[22]       The appellant also submits that the speculative possibility identified by the trial judge that the appellant had consumed marijuana prior to driving was insufficient to support a valid SFST demand.

[23]        Finally, the appellant submits that Officer Bromley’s failure to make the SFST demand until 5:09 p.m., 10 minutes after he stopped the appellant, constitutes a further breach of the appellant’s s. 10(a) rights.

[24]       The Crown concedes that the trial judge erred in failing to find a s. 10(a) Charter violation for the delay in advising the appellant that he was being detained for a firearms investigation. The Crown acknowledges that, at the latest, the appellant should have been informed that he was being investigated for possession of a firearm as soon as he was out of his car and Officer Bromley had confirmed he did not have a weapon on his person. However, the Crown submits that the police did not otherwise violate the appellant’s Charter rights and that, even on a fresh s. 24(2) analysis, the evidence concerning discovery of the gun and drugs in the appellant’s car should not be excluded.

[25]       We agree with the Crown that Officer Bromley breached the appellant’s s. 10(a) Charter rights by failing to inform him that he was being investigated for possession of a firearm once he was out of his car and the officer confirmed he did not have a weapon on his person. Further, finding this breach on appeal warrants conducting a fresh s. 24(2) Charter analysis. However, we reject the appellant’s submissions that the trial judge erred in failing to find that Officer Bromley deliberately breached the appellant’s ss. 9 and 10(a) Charter rights from the outset of the stop and in finding a valid SFST demand.

[26]       Officer Bromley testified he did not tell the appellant that he was detaining him concerning a firearm investigation because he did not know how the appellant would react if told the real reason for the stop. The trial judge accepted that Officer Bromley acted out of officer safety concerns. Further, in her alternative s. 24(2) analysis, the trial judge noted that the police acted with restraint and treated the appellant with respect. She found no reason to believe “the police did not act in good faith.” The fact that Officer Bromley could have been more aggressive in his approach and immediately ordered the appellant out of the car or that he could have been more cautious in his dealings with the appellant by prohibiting the appellant from reaching across the car does not undermine these findings. The trial judge was entitled to accept Officer Bromley’s evidence that he did not tell the appellant the true reason for the stop out of officer safety concerns. Although the trial judge did not find a s. 10(a) Charter breach, her findings of fact are entitled to deference and negate the appellant’s claim of a deliberate s. 10(a) Charter breach in failing to immediately advise the appellant of the true reason for the stop. It is not our function to retry this case, which the appellant’s submissions invite us to do.

[27]       Concerning the SFST demand, we reject the appellant’s argument that the trial judge misapprehended the evidence about the extent of Officer Bromley’s dealings with the appellant. In holding that Officer Bromley had the most interaction with and most of the conversation with the appellant, the trial judge was referring to the point at which he “form[ed] his suspicion”.  Officer Rasmussens did not have any dealings with the appellant until after Officer Bromley formed his suspicion and the SFST demand was made.

[28]       Moreover, the fact that Officer Tombs was present when Officer Bromley was speaking to the appellant between 4:59 and 5:04 does not mean Officer Tombs was “interacting with the appellant” during that period.

[29]       Nor does the fact Officer Tombs chatted with the appellant while Officer Bromley went to his vehicle between 5:04 and 5:09 p.m. undermine the conclusion that Officer Bromley had the most interaction with the appellant when Officer Bromley formed his grounds for the SFST demand. Officer Bromley was the only officer on scene with information that the appellant had a gun. He was undoubtedly the officer most intensely engaging with the appellant.

[30]       As for the validity of the demand, s. 254(2)(a) of the Criminal Code, R.S.C., 1985, c. C-46[1] which was in force at the time of these events, required only that to make an SFST demand, an officer have “reasonable grounds to suspect that a person has … a drug in their body and that person has, within the preceding three hours, operated a motor vehicle or vessel”.

[31]       Here, the observation of the appellant driving the motor vehicle, the presence of the marijuana in the car, the appellant’s prescription, and the officer’s observation of the appellant’s manner of speech, were sufficient in combination to meet these requirements.

[32]       Concerning the timing of the demand, the trial judge was satisfied that the “continuum of events that unfolded after the vehicle stop” explained the delay between 5:04 and 5:09 p.m., while Officer Bromley returned to his cruiser after speaking to the appellant. However, the appellant relies on the fact that Officer Bromley had already run his license plates before stopping him to contend this delay was unreasonable.

[33]       Had marijuana consumption been the officer’s only concern at the time, such a delay in making the demand may have been unreasonable. However, Officer Bromley had received information from a CI who was known to him and who he believed was involved in the Barrie subculture indicating that the appellant had drugs and a gun in his vehicle.  As we have said, the trial judge accepted his evidence that he had officer safety concerns. In all the circumstances, we are not satisfied that the trial judge erred in failing to find a s. 10(a) Charter breach because of this five-minute delay.

(2)         The fresh s. 24(2) Charter analysis

[34]       The test for demonstrating that evidence should be excluded under s. 24(2) of the Charter is well established. It requires balancing the following three factors to determine whether, overall, admission of the evidence would bring the administration of justice into disrepute: (1) the seriousness of the Charter-infringing state conduct ; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

(i)           Seriousness of the Charter-infringing state conduct

[35]       As the trial judge did not find a Charter breach, her conclusion that any breach was not serious is not entitled to deference. However, absent palpable and overriding error, her findings that the police acted with restraint, treated the appellant with respect and that there is “no indication that the police did not act in good faith” are entitled to deference.

[36]       The appellant submits that the trial judge erred in these findings because she failed to take account of the deliberate nature of the s. 10(a) Charter breach, and the manufactured basis for the SFST demand. The appellant also raises breaches of the appellant’s s. 7-protected right to silence when Officer Bromley questioned him following the vehicle stop, a violation of the appellant’s s. 10(b) rights and misconduct by the police in applying for the search warrant.

[37]       We have already rejected the appellant’s first two claims. Concerning the alleged ss. 7 and 10(b) breaches, this argument was raised for the first time on appeal. The trial judge made no error in failing to consider it and we decline to consider it on appeal in the circumstances.

[38]       As for alleged misconduct in applying for the search warrant, the appellant submits that the evidence demonstrates that Officer Bromley knowingly provided the SW officer with false information and that the SW officer improperly omitted relevant information from the information to obtain (“ITO”). He submits that these factors taint the trial judge’s findings of fact concerning the seriousness of the Charter breaches.

[39]       We do not accept these submissions. The appellant abandoned his s. 8 Charter application at trial and did not challenge the validity of the search warrant. Based on our review of the record, we conclude that Officer Bromley told the SW officer the appellant produced marijuana from the glovebox of his car, rather than from a woman’s purse on the floor, a fact Officer Tombs confirmed at trial, because he made an assumption and mistakenly relied on it. We are not persuaded this error amounted to a level of misconduct that should have affected the trial judge’s assessment of the seriousness of the Charter breach. We reach the same conclusion about the SW officer’s failure to include in the ITO the fact that the appellant’s girlfriend claimed the oxycodone or the fact that Officer Bromley failed to inform the appellant of the true reason for stopping him. Preferably, both pieces of information should have been included in the ITO, but neither would have had any impact on whether the search warrant could have been issued.

[40]       Overall, while we agree that Officer Bromley breached the appellant’s s. 10(a) Charter rights by failing to inform him he was being investigated for possession of a firearm once he was out his vehicle, we see no basis for interfering with the trial judge’s conclusion that there was no indication that the police did not act in good faith and therefore that any breach was not serious.

(ii)         The impact of the breach on the appellant’s Charter-protected interests

[41]       In her alternative s. 24(2) analysis, the trial judge concluded the impact of any breach on the appellant’s Charter-protected interests was “meaningful” because he was detained for a significant amount of time and handcuffed at various points during his interaction with police.

[42]       Although the police had other valid grounds for detaining the appellant and handcuffing him apart from the firearms investigation issue, none of those grounds panned out and the appellant was not told of the valid basis for investigating him – or given the opportunity to consult counsel concerning that basis – until two hours after he was stopped. In the circumstances, we adopt the trial judge’s finding that the impact of the Charter breach on the appellant’s Charter-protected interests was meaningful. That said, to the extent this factor points towards exclusion of the evidence, it does not point strongly in that direction.

(iii)        Society’s interest in an adjudication of the case on its merits

[43]       In her alternative analysis, the trial judge found that this factor favours inclusion of the evidence as the guns and drugs are reliable evidence essential to the continuation of the prosecution. We observe as well that this evidence was found during the execution of a lawful search warrant and disclosed serious offences creating a danger to the public. Although the police breached the appellant’s Charter rights, there is no indication that their conduct was such as to require exclusion of the evidence under this factor.

(iv)        Conclusion on s. 24(2) analysis

[44]       Balancing the three Grant factors, we are not satisfied that admission of the evidence would bring the administration of justice into disrepute.

Disposition

[45]       Based on the foregoing reasons, the appeal is dismissed.

“Janet Simmons J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”