



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nartey, 2013 ONCA 215

DATE: 20130408

DOCKET: C55721

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jesse Nartey

Respondent

Jennifer Mannen, for the appellant

Timothy E. Breen, for the respondent

Heard: March 21, 2013

On appeal from the acquittal entered on June 12, 2012 by
    Justice Donald A. Ebbs of the Ontario Court of Justice.

ENDORSEMENT

[1]

This Crown appeal arises out of the trial judges ruling pursuant to s.
    24(2) of the
Charter
, excluding the evidence obtained on a warrantless
    search of a driver and his vehicle following a
Highway Traffic Act
stop.

[2]

The Crown argues that: (1) the trial judge erred in law by making a
    finding of fact for which there was no evidence and that tainted his entire
Charter
analysis: and (2) the nature and extent of the trial judges questioning of the
    police witnesses gave rise to the appearance that he had pre-judged their
    evidence and demonstrated a reasonable apprehension of bias.

[3]

We are not persuaded by either argument and accordingly dismiss this
    appeal.

Background

[4]

Some background is necessary.

[5]

Only police officers testified at the
voir

dire
. Their
    testimony was, in substance, as follows.

[6]

Shortly after midnight, two police officers observed a vehicle exit the
    parking lot of a notorious strip bar and then fail to come to a complete stop
    before making a turn at a red light. On the basis of this
Highway Traffic
    Act
violation, the officers pulled the vehicle over some distance after
    the red light and asked the driver for his licence, registration and insurance.
    The officers returned to their cruiser and the senior officer prepared to write
    up a Provincial Offence Act notice. He then received information, via the
    computer in the cruiser, that the driver had been convicted of possession for
    the purpose of trafficking, was subject to two firearm prohibitions, and had a
    street gang association. The officers observed motion in the drivers car. The
    senior officer described the driver as reaching into the back seat, grabbing a
    small black duffle bag, placing it in the front passenger seat and then
    appearing to rifle through the bag. When the driver tossed the bag into the
    back seat, it looked less full and less heavy. This movement, combined with the
    fact that the driver was a patron of the strip bar and the drivers record,
    caused the senior officer to have concern for their safety.

[7]

On the senior officers direction, both officers immediately got out of
    their cruiser and approached the drivers vehicle. The senior officer asked the
    driver to step out of his vehicle and undergo a pat-down search to make sure he
    was not in possession of a weapon. The driver was cooperative. The pat-down
    search did not disclose a weapon but the senior officer felt what he believed
    to be a large wad of cash in the drivers pocket. He did not search the pocket.

[8]

In order to ensure officer safety, and despite feeling that he was in
    somewhat uncharted territory in doing so, the senior officer then decided to
    search the vehicle. He noticed Bounce dryer sheets sticking out of the vents
    and four air fresheners hanging in the vehicle, and smelled fresh, unburnt
    marijuana. On the basis of that evidence, and the wad of cash he believed he
    had felt when he conducted the pat down search, he proceeded to arrest the
    driver for violation of s. 4(1) of the
Controlled Drugs and Substance Act
.
    The senior officer then continued the search of the drivers vehicle and found what
    looked to him to be about one- half pound of marijuana and two loaded guns in
    the locked glove compartment.

[9]

Two bags of crack cocaine were later discovered on the drivers person.

[10]

The
    black bag referred to in the senior officers testimony was not in the photos
    of the drivers vehicle or its contents taken after his arrest, and was not an
    exhibit at trial.

The trial judges ruling

[11]

The
    trial judge concluded that once the police officers obtained information via
    the computer with respect to the driver, the
Highway Traffic Act
stop turned
    into an unjustified investigative detention. For several reasons, including
    that he did not accept the senior officers testimony regarding the black bag,
    the trial judge rejected the senior officers evidence that the pat down search
    and subsequent search of the vehicle were motivated by concerns for the
    officers safety.  The trial judge found that the officers were on a fishing
    trip.

[12]

As
    a result, the pat down search and the subsequent search of the vehicle were
    unlawful.

[13]

In
    his s. 24(2) analysis, the trial judge characterized the senior officer as
    having attempted to tailor his evidence to fit a pattern which is allowed by
    the courts. On the basis of this misconduct, he concluded that the drugs and
    weapons found as a result of the searches had to be excluded as evidence in
    order to avoid bringing the administration of justice into disrepute. In the
    course of his s. 24(2) analysis, the trial judge also commented that he was not
    persuaded that the driver had in fact made a rolling stop.

Finding of fact for which there was no evidence

[14]

The
    onus was on the driver to establish that his detention was unlawful.

[15]

The
    Crown argues that the trial judge made a finding that the driver had not made a
    rolling stop, when the only evidence before him was that of the police officers
    that the driver had done so, and that this legal error tainted the trial
    judges subsequent
Charter
analysis.

[16]

We
    do not agree.

[17]

The
    presence or absence of a rolling stop did not underpin the trial judges
    conclusion that there was an improper investigative detention. As indicated
    above, he concluded that the
Highway Traffic Act
stop, even if valid,
    became an improper investigative detention once the officers received the
    information with respect to the driver on their computer. That conclusion is
    not challenged on this appeal.

[18]

A
    review of the record together with the trial judges reasons makes it clear
    that the focus on the
voir dire
was on whether the warrantless
    searches of the driver and his vehicle following the
Highway Traffic Act
stop were justified on the ground of officer safety. The onus was on the Crown
    to justify these warrantless searches, and the trial judge concluded that the
    Crown had not met that onus. The credibility findings made by the trial judge
    in assessing the officers evidence in relation to the grounds for the searches
    led him to doubt all of their evidence, including their evidence that the
    driver had made a rolling stop at a red light. The trial judge stopped short of
    making a finding of fact that the rolling stop had not occurred. We see no
    error of law within s. 676(1)(a) of the
Criminal Code
upon which the
    Crowns appeal against the respondents acquittal can succeed.

Reasonable apprehension of bias

[19]

While
    the extent of the questioning engaged in by the trial judge was unwise, we are
    not persuaded that it would cause an informed person, viewing the matter
    realistically and practically, and having thought the matter through, to
    conclude that the trial judge, consciously or unconsciously, would not decide
    the matter fairly: see
Committee for Justice and Liberty v. Canada
    (National Energy Board)
, [1978] 1 S.C.R. 369, at pp. 394-95.

[20]

Indeed,
    we note that the Crown did not object to the questioning during the course of
    the
voir

dire
. It waited until it received the ruling which
    it now appeals, suggesting that as the
voir

dire
unfolded it
    was unclear to the Crown itself  very much an informed person  that the
    extent of the questioning displayed bias or a reasonable apprehension of bias.

Disposition

[21]

In
    the result, we dismiss this appeal.

Robert J. Sharpe J.A.

David Watt J.A.

Alexandra Hoy J.A.


