Winston Ellis had a handgun. Ellis carried that handgun in a hidden compartment by the gearshift in an Acura. Ellis had no lawful purpose or permit for that handgun. Ellis also had a bunch of outstanding warrants. Given those particular circumstances you would think that Ellis would not have been racing that Acura in the downtown core of the City of Toronto, but that is exactly what led to police noticing Ellis and ultimately finding his gun. Ellis was charged with three criminal offences in relation to that hidden gun; at his trial he sought to have the gun excluded from evidence claiming that his section 8, 9 and 10 Charter rights had been violated. Much like Mr Vader and Mr Newell whom I recently blogged about, that argument failed: 2013 ONSC 908.
It was early in the morning, when Ellis decided to race an Acura against another vehicle. Perhaps Ellis thought no one would be around, perhaps he didn’t care. Sgt Martin saw and cared; he called for backup and followed as the vehicles raced through a residential area. The racing vehicles parted ways and Sgt Martin could only follow one; he stayed with the Acura. Ellis sped away from the marked police cruiser and found himself on a dead end street; he abandoned the car in a driveway and fled on foot through the backyard of the property.
Minutes later Sgt Martin located the Acura and spotted Ellis and another man, Gonzalez, walking past the dead-end street and looking back towards the car. The backup arrived on scene and intercepted Ellis and his friend. Officers conducted a pat down search and found the keys to the Acura in Ellis’ pocket; at that point officers returned the keys to Ellis. They testified that the keys were returned because the search was for safety reasons and in the officers’ opinion the keys did not pose a threat. Officers also discovered that Ellis had a number of outstanding warrants, that he was affiliated with a gang and that he may be armed and dangerous.
Before informing Ellis of why he was being detained and that he had a right to contact a lawyer, one of the officers engaged Ellis in a conversation in which Ellis stated that he had neither driven the Acura that night nor knew where it was. The Crown conceded that Ellis’ section 10 rights had been violated and undertook not to rely on any of the statements made by Ellis. The Crown maintained that the investigation was otherwise Charter compliant but in any event if any breaches were found no evidence should be excluded pursuant to section 24(2); Campbell J agreed.
Upon completion of the pat down search, police escorted Ellis back to the Acura where the keys were confiscated and the Acura searched. Sgt Martin quickly discovered a hidden compartment near the manual gearshift and a loaded .25 caliber handgun therein.
Campbell J gave short shrift to the Ellis’ argument on arbitrary detention:
Significantly, the immediate results of this investigative detention revealed information that made the eventual arrest of the accused an inevitable and unavoidable reality. First, the police learned the identity and residence of the accused when he produced his driver's licence. His home address matched the home address of the owner of the abandoned Acura. This immediately tied the accused to the Acura and the earlier careless driving. In my view, this evidence, without more, gave the police reasonable and probable grounds to arrest the accused for the provincial offence of careless driving. Second, the CPIC background check, based only upon the identity of the accused, revealed that the accused had a number of warrants outstanding for his arrest. This information also gave the police reasonable and probable grounds to arrest the accused. Indeed, the existence of these warrants also made the arrest of the accused an inevitable event [emphasis added]; [para 52].
Furthermore, Campbell J had no difficulty with the initial pat down search of Ellis’ pockets, he found that, the:
brief pocket search of the accused was executed reasonably. Once Cst. La Vella learned that the only hard or sharp objects in the accused's pockets were his cell phones and his car keys, he immediately returned all of these items to the accused. With respect to the keys in particular, Cst. La Vella testified that he let the accused keep his keys as they were not a weapon, and their possession by the accused was not unusual or problematic. Had this search been conducted only on the pretext of officer safety, but in reality for the purpose of securing any car keys in the accused's possession, as defence counsel for the accused suggested, it seems highly unlikely that police would then have permitted the accused to retain possession of his keys. Furthermore, while the accused was detained, he was not placed in handcuffs or otherwise physically restrained. In other words, Cst. La Vella did not take more restrictive measures that might have assisted in ensuring his safety during his detention of the accused [para 63].
Campbell J held that the seizure of the keys was incident to Ellis’s arrest despite the fact that Ellis was not arrested for some minutes after the seizure. Campbell J held:
It is important to recall that the police first discovered that the accused (and not Mr. Gonzalaz) was in possession of car keys for an Acura during the course of the reasonable pat-down protective "officer safety" search of the accused. The police did not come to possess the knowledge as to the presence of these keys in the pocket of the accused through any illegal or unconstitutional means. Moreover, as I have already indicated, once the police discovered the accused resided at the same apartment on Jane Street as the owner of the abandoned Acura, and the accused had a set of car keys to an Acura in his pocket, it was inevitable that he would be arrested for carelessly driving the abandoned Acura. With that information, the police had reasonable and probable grounds to believe that the accused had been the driver of the Acura that Sgt. Martin had earlier pursued. It took some time for the various police officers, who were investigating the Acura, the accused and Mr. Gonzalaz from different locations and perspectives, to put all of the available information together and arrest the accused, but it was, in my view, an unavoidable consequence of the results of their investigations. In other words, the arrest of Mr. Ellis was just a matter of time.
Contrary to the argument by the accused, the mere fact that the police seizure of the keys preceded the arrest of the accused by a few minutes does not change the legal analysis. Indeed, the law is clear that a search that takes place prior to an arrest will still be viewed as incidental to that arrest if, prior to the search, there in fact existed reasonable and probable grounds for the arrest [paras 68-69].
Given Campbell J’s findings with respect to link between the Acura and Ellis and Ellis’s imminent arrest it is perhaps surprising that he concluded that the search of the vehicle was not Charter compliant, at least not as a search incident to arrest.
Sgt Martin testified that he believed that he was entitled to search the vehicle for two reasons: first, as a lawful search incident to Ellis’ arrest; second, as an inventory search coincident with impounding the vehicle.
Campbell J rejected that the search was lawfully conducted incident to Ellis’ arrest, finding instead that:
[…] this warrantless search and seizure power is not applicable in the circumstances of the present case. It is important to recall that the accused was physically arrested by the police near the intersection of Baby Point Avenue and Jane Street. At that time, the Acura was parked some distance away in a private driveway on Thornhill Avenue. Cst. Aleksandrowicz estimated the distance between these two locations to be approximately 50 metres. Accordingly, it cannot reasonably be said that the Acura was within the accused's immediate surroundings or under his immediate control at the time of the search. The necessary spatial proximity between the arrest of the accused and the location of the Acura, which might potentially justify a search of the vehicle to prevent the accused from securing a weapon or destroying evidence inside the vehicle, was simply not present in this case [para 77]
With respect to Sgt. Martin’s testimony that he thought that he was entitled to perform an inventory search, Campbell J agreed and held that the search and seizure of the firearm was lawful and in accordance with section 8 since:
[…] in my view, Sgt. Martin was correct in concluding that, in the circumstances of this case, s. 221(1) of the Highway Traffic Act lawfully permitted the police to impound the Acura and perform an inventory search for its valuable contents.
The evidence disclosed that the accused had quickly abandoned the Acura, in an effort to avoid being stopped, investigated and arrested by the police. Indeed, knowing that the police were trying to track him down as a result of his careless driving through a residential neighbourhood and knowing that he had outstanding warrants for his arrest, the accused sought to distance himself quickly from the Acura that would have connected him to the careless driving offence, and which would have resulted in his arrest on the outstanding warrants. See: R. v. Lamour, [2007] O.J. No. 1754 (S.C.J.) at para. 33-49; R. v. Waugh (2010), 251 C.C.C. (3d) 139 (Ont.C.A.) at para. 21-24; R. v. Patrick, [2009] 1 S.C.R. 579, at para. 20, 22-25. In my view, in all of the circumstances, it is fair to say that the accused abandoned the Acura. In United States v. Pittman, 411 F.3d 813 (2005, C.A., 7th Cir.), which involved factual circumstances analogous to the present case, Circuit Judge Posner, in concluding that the investigating police officers had properly conducted a warrantless inventory search of an abandoned vehicle, observed, at para. 8, that "[i]f the driver of a car flees at the approach of the police, this is pretty good evidence that he's abandoned the car - that he doesn't want to be associated with it and therefore isn't going to reclaim it."
The accused abandoned the Acura in a private driveway "near a highway." According to s. 1(1) of the Highway Traffic Act, the term "highway" is defined as including "a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles ..." Clearly, Thornhill Avenue is a "highway" for purposes of s. 221(1) of the Highway Traffic Act. See: R. v. Hajivasilis, 2013 ONCA 27. By parking the Acura in a short private mutual driveway immediately adjoining Thornhill Avenue, the accused abandoned the Acura near a highway.
These circumstances justified the police decision to take the abandoned Acura "into the custody of the law" and cause it to be "taken to and stored in a suitable place." By removing the Acura from the private mutual driveway, the police permitted the affected residents on Thornhill Avenue to regain the use of their driveway and, thus, their access to Thornhill Avenue. If Sgt. Martin had not reached this sensible conclusion, the abandoned Acura would have continued to impede or prevent vehicular access by these residents to the Thornhill Avenue "highway" and their private driveway. By impounding the Acura, Sgt. Martin gave practical and purposeful effect to the legislative intention underlying the enactment of s. 221(1) of the Highway Traffic Act.
Once the vehicle was taken into police custody for safekeeping, the police were lawfully entitled to perform an inventory search of the contents of the vehicle [paras 83-87].
DGM