



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cuff, 2018 ONCA 276

DATE: 20180321

DOCKET: C61796

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wendell Cuff

Appellant

Marianne Salih, for the appellant

Lisa Csele and Sharon Reynolds, for the respondent

Heard: March 7 and 9, 2018

On appeal from the convictions entered on November 10,
    2015 by Justice Catrina D. Braid of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

OVERVIEW

[1]

This is an appeal from convictions for
    possession of cocaine for the purpose of trafficking and fail to comply with a
    probation order. The convictions rest on a pre-trial ruling dismissing the
    appellants application for the exclusion of evidence arising from alleged
    breaches of ss. 8 and 9 of the
Charter
.
This appeal turns on the correctness of
    that ruling. The appellant maintains that the trial judge erred in concluding
    that:

(i)

he had
    no reasonable expectation of privacy in a vehicle he had been driving;

(ii)

the
    vehicle was seized and searched with legal authority; and

(iii)

it was
    unnecessary to resolve whether he was arbitrarily detained.

[2]

We dismiss the appeal for the reasons that
    follow.

GENERAL BACKGROUND

[3]

Cst. Wilson was
    conducting speed e
nforcement when he observed the
    appellant driving well in excess of the speed limit. The officer took pursuit
    and the appellant eventually brought the motor vehicle he was driving to rest
    in the parking lot of a multi-unit apartment complex. Cst. Wilson positioned
    his vehicle behind the one driven by the appellant.

[4]

As Cst. Wilson was looking at his police
    computer, the appellant got out of his car and approached the officers vehicle.
    Cst. Wilsons drivers side window was down. The officer asked the appellant
    for his licence, insurance and registration. After one to two seconds, the
    appellant ran. Cst. Wilson called for backup and then gave chase on foot.

[5]

Cst. Morton came to assist. He saw a male he
    believed to be the driver running through a field. The officer yelled out to
    the man that he was a police officer and to stop because he was being placed
    under arrest for failing to identify himself. The man looked back at Cst.
    Morton and continued to run. When the officer caught up to him, the appellant
    was placed under arrest for failing to identify himself pursuant to s. 33(3) of
    the
Highway Traffic Act
,
R.S.O. 1990, c. H.8
(
HTA
). The appellant was placed in handcuffs.

[6]

At some point following his arrest, the
    appellant said that his name was Wendell Cuff. Another officer who arrived on
    scene was able to confirm the appellants identity. Although the appellant had lost
    weight since the officer had last seen him, once given his name, the officer
    confirmed that it was Mr. Cuff.

[7]

The vehicle stop had taken place just after 2:50
    p.m. It was 3:08 p.m. by the time that the appellant and officers arrived back
    at the parking lot where the vehicles had been left. The appellant was provided
    with his right to counsel. The officers then commenced computer checks. At 3:39
    p.m. the police discovered that the appellant was on probation, which included
    a term to keep the peace and be of good behavior. Although the police witnesses
    were unclear about who made the decision to arrest for breach of probation, the
    trial judge found as a fact that the appellant was arrested for the breach at
    that time. Cst. Morton was then asked to transport the appellant to the police
    station.

[8]

The vehicle had been left locked and the appellant
    did not have keys in his possession. Despite an extensive police search for
    evidence the appellant may have discarded when he fled, the keys were not found.
    Cst. Wilson testified that he was concerned about the ownership of the vehicle.
    Although he was able to determine that the vehicle was registered to a
    business, the officer had nothing to confirm that it was in the appellants
    lawful possession or had any connection to the private parking lot the
    appellant had left it in.

[9]

The vehicle was towed at 4:10 p.m. to the place
    where the Brantford Police Service stores impounded vehicles. The police then
    conducted an inventory search of the vehicle, resulting in the discovery of a bag
    in the backseat. The bag contained the appellants health card, temporary
    drivers licence and what Cst. Wilson believed to be cocaine. The search was
    halted, the vehicle was resealed and a search warrant was obtained. The
    subsequent search revealed 72.2 grams of cocaine. This seizure gave rise to the
    drug-related conviction.

STANDING

[10]

The appellant maintains that the trial judge
    erred in finding that he had no standing to assert a s. 8
Charter
claim with respect to
the
    vehicle. The appellant emphasizes that, despite his admitted flight from the
    police, he did not abandon his privacy interest in the vehicle. We do not agree
    that the trial judge erred in reaching her conclusion on the standing issue.

[11]

The onus was on the
    appellant to establish his standing to raise a s. 8
Charter
challenge:
R. v. Edwards,
[1996] 1 S.C.R. 128, at para. 45;
R.
    v. M. (M.R.),
[1998] 3 S.C.R. 393, at
    para. 31. It was for him to establish on a balance of probabilities that, in
    the circumstances of this case, he had a reasonable expectation of privacy in
    the motor vehicle where the cocaine was found.

[12]

The trial judge
    correctly approached the standing issue as a threshold one and specifically noted
    the appellants onus of establishing his personal right to privacy in the
    vehicle. She considered the facts of this case against each of the
Edwards
criteria for determining whether the
    appellant had met his onus.

[13]

Although the appellant did not testify, the trial judge
    noted that there was evidence from which a subjective privacy interest could be
    inferred. In particular, she considered the fact that he may have locked the
    doors before he took flight and that the vehicle had been parked at an
    apartment building where his brother resided. Ultimately, though, the trial
    judge concluded that any minimal subjective privacy interest the appellant may
    have had in the vehicle was not objectively reasonable in all of the
    circumstances.
In particular, the trial
    judge considered the following:

(i)

While the appellant had been present in the vehicle when
    driving it, he had deliberately removed himself from the vehicle when he fled.

(ii)

Although the appellant had possession of the vehicle while
    driving it, and it appeared that he had locked the doors before he fled, he did
    not regain possession of it when he and the police officers returned to the
    scene. Nor could he have regained possession, given that the keys had either
    been lost or discarded.

(iii)

The appellant did not own the vehicle.

(iv)

There was no evidence suggesting that the appellant had a
    historical connection to the vehicle.

(v)

There was no evidence that the appellant occupied the vehicle
    with the owners consent and, therefore, no evidence to suggest he had any
    right to admit or exclude anyone from the vehicle.

[14]

We see no error in the trial judges approach. Her legal
    analysis is rooted in the
Edwards
criteria. In the circumstances of this
    case, it was open to the trial judge to conclude
that the appellant had failed to establish his s. 8
Charter
interest in the car.

[15]

In any event,
the trial judges finding
    in this regard had no impact on the s. 8 motion as she went on to consider and
    resolve the other s. 8 arguments, as though the appellant had standing
to advance them.

We now move on to consider those arguments.

THE SEIZURE AND SEARCH OF THE VEHICLE

[16]

The
appellant maintains that the trial judge erred in concluding that the
    vehicle was lawfully seized
.
He makes two specific
    arguments: (a) the trial judge failed to appreciate that Cst. Wilson did not
    have a subjective belief that he was operating under
s. 221(1) of the
HTA
when the vehicle was seized; and, in any event, (b) s. 221(1) of the
HTA
did not apply because the vehicle was
    not apparently abandoned within the meaning of the statutory provision.

[17]

As
    for the appellants first argument regarding the seizure of the vehicle, he
    maintains that an officer must turn his or her mind to the basis of the seizure
    before it is carried out. The appellant points to a portion of Cst. Wilsons
    evidence to suggest that he did not have the subjective belief that he had
    authority to seize the vehicle under s. 221(1) of the
HTA
.
    Accordingly, the appellant maintains that the seizure of the car was unlawful.
    We do not agree
.

[18]

Cst. Wilson initially testified that he thought that the
    vehicle had been abandoned and that he was acting pursuant to the
HTA.
He
    was extensively cross-examined on his subjective belief. It was only after
    counsel had suggested to him that s. 221(1) of the
HTA
only applies
    when vehicles are left on highways, that the officer conceded that he may not
    have had authority to seize the vehicle. Although this may have been a damaging
    admission in some contexts, the trial judge specifically noted in her reasons that
    the cross-examination on this point was potentially misleading. We agree. In
    particular, we note that s. 221(1) of the
HTA
allows for the seizure
    of vehicles apparently abandoned near a highway. Accordingly, the officers
    original evidence about his reliance on the
HTA
was correct. Section
    221(1) of the
HTA
provided authority for the seizure. The provision
    reads:

221

(1) A police officer or an
    officer appointed for carrying out the provisions of this Act who discovers a
    vehicle apparently abandoned on or near a highway or a motor vehicle or trailer
    without proper number plates may take the vehicle into the custody of the law
    and may cause it to be taken to and stored in a suitable place.

[19]

Considering his evidence in its totality, it is clear that,
    as found by the trial judge, Cst. Wilson held the subjective belief that the
HTA
provided him the authority to seize the vehicle. We see no error in the trial judges
    conclusion to this effect
.

[20]

The appellants second argument
    is that the facts of this case did not support a seizure under s. 221(1) of the
HTA
because the
    appellants flight cannot be fairly construed as apparent abandonment.

[21]

In finding that the
    vehicle had been apparently abandoned, the trial judge focussed on two
    authorities that have since been appealed to this court and resolved:
R.
    v. Ellis,
2016 ONCA 598,
132
    O.R. (3d) 510
;
R. v.
    Dunkley,
2016 ONCA 597,
131
    O.R. (3d) 721
. Having regard to all of the
    circumstances, the trial judge concluded that the vehicle had been apparently
    abandoned within the meaning of s. 221(1) of the
HTA.
We see no error in her approach.

[22]

As noted by this court in

Dunkley,
at para. 44, whether a vehicle has been
    apparently abandoned is fact-specific. See also
:
Ellis,
at para. 63. Having regard to the
    following circumstances, it was open to the trial judge to find apparent
    abandonment:


(i)

the vehicle was not
    registered in the appellants name;

(ii)

the appellant was unable
    to produce documentation for the vehicle;

(iii)

the vehicle was left on
    private property, parked behind an apartment building;

(iv)

the police on scene had
    no reason to associate the appellant with the apartment building and, in fact,
    they believed that he did not live in Brantford;
[1]


(v)

the appellant had run
    from the vehicle after being signalled by the police to stop the vehicle; and

(vi)

the keys to the vehicle
    could not be found.

[23]

While the appellant attempted to align the facts in this
    case with those in

Dunkley,
where this court concluded that simply running from a vehicle left at a
    gas station did not constitute apparent abandonment for the purposes of s.
    221(1), we see the facts in this case as being much closer to those in

Ellis.
In particular, like in
Ellis
,
    the appellant attempted to distance himself from a vehicle he had been driving
    by parking it on private property. Like in
Ellis
, the police were
    unable to link the vehicle the appellant had been driving to the location where
    he had left it. And, like in
Ellis
, the police did not believe that
    they could leave the vehicle the appellant had been driving on the private property
    where he had left it
.

[24]

We see no error in the trial judges approach or conclusion
    that the vehicle had been apparently abandoned. Accordingly, it was open to
    the police to seize the vehicle under s. 221(1) of the

HTA
.

[25]

Following the hearing in this matter, the parties were asked
    for submissions as to whether s. 217(4) of the

HTA
provides additional authority for the seizure. Section
    217(4) provides that where the police make an arrest without a warrant, they may
    detain the motor vehicle with which the offence was committed until the final
    disposition of any prosecution under this Act or under the
Criminal Code
.
     Although we heard from the parties on this issue, given our conclusion that
    the trial judge did not err in her approach to s. 221(1), it is unnecessary to
    address this other potential means by which the vehicle could have been lawfully
    seized
.

[26]

Having properly seized the vehicle, the police were under an
    obligation to keep the vehicle and its contents safe. To fulfill this
    responsibility, the police had to conduct an inventory search of the vehicle
:
R. v. Nicolosi
(1998), 40 O.R. (3d) 417 (C.A.), at paras. 29-30.

[27]

Although the appellant argues that the police were really
    searching the vehicle for a purpose unrelated to inventorying its contents, the
    trial judge specifically rejected this suggestion. The trial judge accepted the
    evidence given by the police officers, finding each of them credible. She
    concluded that their primary motivation to search was to inventory the contents
    of the car. This is a purpose that is consistent with this courts judgment in

Nicolosi
.
The fact that the police may have
    suspected that they would find drugs while searching the vehicle did not alter
    their authority to conduct an inventory search
:
R. v. Wint,
2009 ONCA 52, 93 O.R. (3d) 514, at para. 11,
    leave to appeal refused [2009] S.C.C.A. No. 164. Once they found the drugs, the
    police acted responsibly, ceased their search, resealed the car and obtained a
    search warrant
.

[28]

This ground of appeal must also fail
.

DETENTION

[29]

The trial judge concluded that it was
    unnecessary to decide whether the appellants s. 9
Charter
interests had been breached because any such breach would have had
    no impact on the admissibility of evidence located within the lawfully seized
    vehicle.

[30]

The appellant maintains that the trial judge
    erred in failing to give a s. 9
Charter
ruling.
    We agree. The fact that the evidence sought to be excluded had been discovered during
    a constitutionally sound search did not mean that a s. 9
Charter
violation could not have had an impact on the question of
    admissibility. As this court reinforced in
R. v. Pino,
2016 ONCA 389,
130 O.R. (3d) 561
, at para.
    56, the obtained in a manner requirement for exclusion under s. 24(2) of the
Charter
calls for consideration of contextual, temporal and
    causal relationships between
Charter
breaches
    and the discovery of evidence sought to be excluded. In our view, if the
    appellant had been arbitrarily detained, this
Charter
breach could have resulted in a s. 24(2) inquiry. As such, it falls
    to us to consider the s. 9 issue.

[31]

The appellant raises three specific arguments on
    this point. First, the appellant submits that s. 149(1) of the
Provincial
    Offences Act,
R.S.O. 1990, c. P.33 (
POA
) required that he be released as soon as he provided his name to
    the police and they were satisfied of his identity. Section 149 reads:

149
(1) Where a police officer, acting
    under a warrant or other power of arrest, arrests a person, the police officer
    shall, as soon as is practicable, release the person from custody after serving
    him or her with a summons or offence notice unless the officer has reasonable
    and probable grounds to believe that,

(a) it is necessary in the public interest for the
    person to be detained, having regard to all the circumstances including the
    need to,

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to
    the offence, or

(iii) prevent the continuation or repetition of
    the offence or the commission of another offence

The appellant maintains that, as the
    police did not
harbour
any of the concerns set out in
    s. 149, they were required to release him by way of a summons under s. 22 of
    the
POA
.

[32]

Second, the appellant maintains that, although
    the police were entitled to charge him with breaching his probation, they were
    not authorized to arrest him without warrant for this offence.

Section 495(2) of the
Criminal
    Code
states that the police shall not arrest a person
    without a warrant for an indictable offence listed in s. 553, except in certain
    delineated circumstances. Failure to comply with a probation order constitutes
    a s. 553 offence. Section 495(2) reads:

A peace officer shall not arrest a person without
    warrant for

(a) an indictable offence mentioned in
    section 553,

in any case where

(d) he believes on reasonable grounds that
    the public interest, having regard to all the circumstances including the need
    to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or
    relating to the offence, or

(iii) prevent the continuation or repetition
    of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

The appellant argues that none of the
    criteria within s. 495(2) applied to his arrest for breach of probation.
    Accordingly, he maintains that the failure to comply with this provision constituted
    another s. 9 breach.

[33]

Finally, the appellant argues that, even if the
    police had the authority to arrest him without warrant for breach of probation,
    they had a duty under s. 497(1) of the
Criminal Code
to release him as soon as practicable by way of summons or
    appearance notice, unless the criteria within s. 497(1.1) were satisfied. To a
    large extent, those criteria overlap with the ones set out in s. 495(2).

[34]

We do not accept these arguments.

[35]

The appellant was lawfully arrested for failing
    to identify himself under s. 33(3) of the
HTA.
Although s. 33(3) allows that a person who provides his correct
    name and address will be deemed to have provided reasonable identification,
    the appellant did not do so until after he had already been arrested. Given the
    appellants almost immediate flight upon being requested to provide his
    documentation, he was properly deemed to have been refusing to identify
    himself. In these circumstances, his arrest for failing to identify himself was
    entirely justified.

[36]

Following the appellants arrest, the police
    were involved in a serious investigation into who he was, where he lived, and who
    owned the vehicle he seemed so anxious to flee from. The police searched the
    area for about forty minutes after the appellants apprehension to determine if
    he had discarded anything. Although the s. 33(3) offence was not continuing, this
    did not mean that the arrest under this provision had come to an end. Cst.
    Wilson was clear that he was uncertain who owned the vehicle and was concerned
    that it may have been stolen. Among other things, one of the reasons to detain
    under s. 149 of the
POA
is to prevent the
    commission of another offence. In this environment of uncertainty, while the
    investigation was continuing, it was open to the police to detain the appellant
    as they did.

[37]

Computer checks were appropriately done. Within
    about thirty minutes of the appellants apprehension, his breach of probation
    had been discovered. Against the factual backdrop of this case, it was open to
    the police to arrest the appellant on a s. 553 offence for the same reasons that
    justified the ongoing detention under s. 149 of the
POA
.
These same facts also provide
    the rationale for detaining the appellant under s. 497(1.1). Releasing the
    appellant in these circumstances could have led to the continued breach of his
    probation or the commission of another offence.

[38]

The appellants s. 9
Charter
rights were not breached. Having regard to our ss. 8 and 9 conclusions,
    there is no need to address the appellants s. 24(2) arguments.

SECTIONS 10(a) and 10(b)

[39]

The appellant argues for the first time on
    appeal that his ss. 10(a) and (b)
Charter
rights
    were breached. We do not have the benefit of specific evidence on this point or
    the trial judges ruling on the issue. It would be unfair to hear this issue
    for the first time on appeal without having given the Crown the ability to lay
    the evidentiary foundation to properly respond:
R. v. Richards,
2015 ONCA 348,
323 C.C.C. (3d) 490
, at para.
    49. We decline to do so.

CONCLUSION

[40]

The appeal is dismissed.

Paul Rouleau
    J.A.

Grant Huscroft
    J.A.

Fairburn J.A.





[1]
Although it was later discovered that the appellants brother lived at the
    apartment building, none of the officers at the scene of the arrest knew this
    to be the case.


