Judge rules Kingston Police traffic stop breached Charter rights

An Ontario Superior Court of Justice judge has tossed out evidence gathered in a drug trafficking case and chided Kingston Police for what he called a “troubling systemic attitude” within the police force, after determining that a 2016 “dirty license plate” traffic stop was merely a ruse and breached several sections of the Canadian Charter of Rights and Freedoms.

On Friday, Dec. 30 2016, while the Kingston Police Drug Squad was conducting an investigation into drug trafficking operations in the city of Kingston, they observed an individual entering a brown BMW SUV and being taken to a parking lot near his apartment. The court case files state that the BMW was driven by another male and had a Quebec licence plate. Once the car was parked, the driver reached behind the passenger seat and handed the first suspect a brown and gold cylinder as well as a cereal box-sized package with green and white Christmas wrapping paper.

The first suspect exited the vehicle and removed a large box with blue and white sides from the trunk, then took the items into his residence and the BMW departed. A Kingston Police officer followed the BMW and kept in contact with a Kingston Police sergeant who was coordinating the investigation. The sergeant requested that the officer in charge at the police station instruct a general patrol officer to conduct a traffic stop of the vehicle under the Highway Traffic Act. His goal, according to testimony in court, was to identify the driver of the vehicle.

A patrol officer conducted the traffic stop and identified the suspect through his driver’s licence. The suspect was told that he had been stopped for a dirty licence plate, and was not advised of the true reason for the stop, nor was he provided with his rights to counsel, according to court documents. The suspect was sent on his way after being identified.

Shortly after the traffic stop, police arrested the first suspect. His keys were obtained and his apartment was searched under the authority of a search warrant that had previously been obtained. One of the items seized during that search was the large box with blue and white sides, which officers had observed being passed by the second suspect to the first. Inside was a large quantity of suspected cannabis. The police charged both suspects with possession of cannabis for the purposes of trafficking. The police used the second suspect’s identity, which had been obtained during the traffic stop, to obtain an arrest warrant.

A month and a half later, on Wednesday, Feb. 15, 2017, a Kingston Police officer observed the same brown BMW in Kingston. He stopped the vehicle and arrested the suspect pursuant to the outstanding arrest warrant. A subsequent search of the suspect’s vehicle resulted in the seizure of large quantities of cannabis, cocaine, and methamphetamine. The suspect was charged with three counts of possession for the purposes of trafficking. He subsequently filed an application asking that the evidence be excluded, submitting that the police had engaged in a “ruse” or “pretext” traffic stop on Friday, Dec. 30, 2016, and arguing that the evidence had been gathered in a manner that infringed on his rights under the Canadian Charter of Rights and Freedoms, specifically s. 9 charter rights (the right not to be arbitrarily detained or imprisoned), s. 8 of the charter (unreasonable search or seizure), and, as he was not advised of the true reason for his detention, nor his right to counsel, also sections 10(a) and 10(b) of the charter. Finally, he argued that his arrest violated his s. 7 charter rights (life, liberty and security of the person).

While the Crown asserted in court that the traffic stop had been for a dual-purpose, with the applicant’s dirty licence plate as the primary purpose and the secondary purpose to identify the driver due to his suspected connection with an ongoing drug investigation, the presiding judge, J. Graeme Mew, disagreed.

“The traffic stop was unlawful. The evidence clearly demonstrates that (the suspect)’s allegedly dirty licence plate was merely a ruse used to justify the stop,” said Judge Mew.

In his decision, Judge Mew said one of testifying Sergeants was “refreshingly candid about the purpose of the traffic stop.” Asked if the stop was merely a pretext to find out who was driving the vehicle, the Sergeant responded, “That’s correct.” He was also asked about whether he had any knowledge of any breach of the Highway Traffic Act by the applicant. The Sergeant responded “… so whatever the officer that was going to stop him, he was going to do whatever he needed to be done.”

Another Sergeant, who was the “road boss” of the surveillance team, also testified, and when asked about the reason for stopping the applicant’s vehicle, he responded, “Well, I think the primary reason was we wanted the driver identified for this ongoing investigation”.

The Kingston Police constable who conducted the road stop also testified during a discovery proceeding. He said that a broadcast went out over the radio from the drug/street crime unit requesting a uniformed officer to stop a vehicle in order to identify the driver. The constable was able to get behind the vehicle and completed the traffic stop. He testified that he informed the driver that the reason for the stop was his dirty licence plate. He checked the suspect’s driver’s licence and took it back to his vehicle. From the licence, he obtained the suspect’s information and confirmed it with the drug/street crime unit.

Under oath, the constable confirmed that the licence plate, while dirty, was not obstructed. He testified “It was my reason for telling him to stop, but my reason for stopping him was at the request of the surveilling units, which isn’t uncommon.”

During cross-examination, it was put to the constable that he had written in his police notes that the purpose of the stop was due to a dirty licence plate. He was asked whether this was the reason for the stop, to which he responded “No, I was requested to stop.”

The judge concluded, based on the testimony of the officers, that there were no legitimate highway safety concerns in this case. The sole purpose of the stop was to obtain the identification of the suspect, a purpose which is unrelated to an officer’s authority under the Highway Traffic Act. The stop was arbitrary and the constable did not have the basis to detain the suspect at that point in time. Accordingly, the judge ruled that the suspect’s s. 9 charter right was infringed.

The suspect also submitted that the constable asking for his driver’s licence constituted an unreasonable search and seizure contrary to his rights under section 8 of the charter. While answering police questions do not always give rise to a s. 8 claim, said the judge, consent to answering those questions must be one that is informed and given at a time when the individual is fully aware of his or her rights. This was certainly not the situation in this case, said Justice Mew.

“He was not aware of the true reason for his detention, nor of his right to counsel. As such, his decision to surrender his licence information to the police cannot be said to have been consensual,” Mew said.

Similarly, Judge Mew found that the suspect’s charter rights to a reasonable expectation of privacy had been breached by being forced to surrender the information contained on his driver’s licence, specifically, his name.

“While acknowledging that a reasonable expectation in one’s name is not present in many contexts…where someone is under police detention, and feels compelled to provide the information, there may be a reasonable expectation of privacy. In the present case, (the constable) had a specific purpose in mind when asking for identification. He was not asking out of curiosity or for another innocent purpose. He intended to provide the identification to the surveilling units to implicate the applicant in a drug investigation. In other words, the applicant’s identification was a piece of incriminating evidence,” said Mew.

“Because (the constable)’s questions as to (the suspect)’s identity arose during an arbitrary detention, during which (he) had not been advised of his right to counsel or silence, I find that (the suspect) was entitled to a reasonable expectation of privacy in the content of his driver’s licence. Further, there was a reasonable basis to infer that (the suspect) felt compelled to give answers to the officer’s questions. Thus, the information that was seized was in violation of his right to freedom from unreasonable search and seizure under s. 8 of the charter.”

Finally, Judge Mew found that the suspect’s s. 10(a) and (b) rights under the Charter were breached, as the constable failed to inform him of the reason for his detention, and also to his right to counsel.

“The evidence is clear that (the constable) told (the suspect) that the reason for the stop was his dirty licence plate. At no time did (the constable) inform (the suspect) that he was being investigated for implication in an on-going drug investigation. Thus, s. 10(a) of the charter was breached when (the constable) failed to inform (the suspect) of the real reason for his detention,” said Mew.

“Section 10(b) is engaged from the moment an individual is detained. Police have an obligation to inform a detainee of his or her rights to counsel ‘without delay.’ The immediacy of this obligation is subject only to concerns for officer safety, public safety, or to reasonable limits that are prescribed by law… Given my finding that the nature of the detention was for criminal investigative purposes, the police were obliged to advise the applicant of his right to retain and instruct counsel immediately. This did not occur and so the applicant’s right to counsel was breached.”

Because of the multitude of Charter rights breaches, Judge Mew felt compelled to exclude the evidence gathered during the investigation subsequent to the traffic stop.

“In this case, a clear causal connection exists between the arbitrary detention and subsequent search leading to (the suspect)’s identification. Without this identification, a warrant for his arrest would not have been authorized. The arrest under this warrant produced the impugned evidence. It is conceded that, if this evidence is excluded, the charges against the applicant cannot be sustained,” said Mew.

“(The constable) detained the applicant without any reasonable grounds to believe that he was involved in any crime, in violation of his s. 9 rights. He then used the detention to conduct an unauthorized search of his driver’s licence in violation of his s. 8 rights. He used his driver’s licence to obtain his identity. Throughout the detention, (the suspect) was never informed of the true reason for his detention, nor of his right to counsel. His actions show a clear disregard for constitutional rights,” said Judge Mew in his decision.

In explaining his decision, Judge Mew was highly critical of the strategies employed by Kingston Police in this case.

“The charter breaches in this case were not the result of an innocent mistake. While the police did not deliberately set out to breach the charter, their actions demonstrated an indifference to charter rights. Ignorance of, or failure to conform with, charter standards should not be rewarded or encouraged. Indeed, the Brown decision, which held that using an Highway Traffic Act violation as a ruse is not authorized at law, was released as long ago as 1998. The officers should have known this,” Mew explained.

“Most troubling is that this seems to be a systemic attitude within Kingston Police. During the preliminary inquiry, (the constable) testified that (the suspect)’s licence plate ‘wasn’t obstructed, it was my reason to tell him for the stop, but my reason for stopping him was at the request of the surveilling units, which isn’t uncommon,'” he continued.

“Where police continue to engage in conduct specifically denounced by the court, the violation is serious… The court must disassociate itself from this conduct. Furthermore, systemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious. Overall, I find that the officer’s conduct was towards the higher end of the spectrum of severity.”

Justice Mew continued to express his opposition to the “systemic attitude” displayed by Kingston Police.

“There are circumstances in which the use of a ruse can be regarded as a legitimate policing technique, notwithstanding that charter violations may occur as a result, where ruses were regarded as legitimate because of the nature of ongoing investigations. And, as the Court of Appeal recognized in Brown, so-called ‘dual purpose stops’ can be lawful, provided that there are genuine Highway Traffic Act concerns,” he said.

“In the present case, however, the officers concerned openly acknowledged that the traffic stop was a ruse. No attempt was made to excuse the police conduct on the basis of protecting the ongoing drug investigation or otherwise. Although the applicant was told that he had been pulled over for a dirty licence plate, the police conceded that this was an artifice. Significantly, the evidence was that making traffic stops at the request of surveilling units is not uncommon.”

Finally, Mew explained his consequent conclusion.

“Ultimately, well-trained police officers would know that they cannot, as a general rule, conduct pretext traffic stops. By doing just that in this case, the police ran roughshod over the applicant’s constitutional rights. That is unacceptable. While my ultimate disposition of this matter is a very close call, balancing all of the factors as best I can, I have concluded that the evidence obtained as a result of the unlawful stop and subsequent actions of the police in violation of the applicant’s charter rights should be excluded.”

When reached for comment regarding the case, Kingston Police provided only a brief statement, stating that, given the recent nature of the judge’s decision, it was still being reviewed.

“This decision was based on case law. We will be looking into this matter and will take further steps as required,” said Kingston Police Media Relations Officer Const. Cam Mack in an email response.

When asked what those further steps might be, Mack did not elaborate further. As to whether Kingston Police were considering appealing the ruling, Mack stated that “an appeal would be at the direction of the Crown Attorney’s office. As far as I know they have no plans to appeal.”