R v. Dautruche, 2024 ONCA 426

Background

Kensky Dautruche fled from police in the course of a traffic stop. His vehicle, where he was the sole passenger, skidded off the road and ended up tightly lodged against a hedge and snowbank. Mr. Dautruche, who had a suspended license at the time, was arrested for flight from police after he emerged from the passenger’s side of the vehicle. During a search of the vehicle following Mr. Dautruche’s arrest, police found a bag of crack cocaine on top of the snow where the driver’s side window would have been.

Mr. Dautruche appealed two convictions for possession of cocaine and crack cocaine for the purpose of trafficking contrary to the Controlled Drugs and Substances Act on the basis that: (1) the search of his vehicle was not a valid search incident to arrest, and (2) that the trial judge erred in inferring that Mr. Dautruche must have thrown the bag of cocaine out of the driver’s side window of the vehicle without considering alternative possibilities.

Search Incident to Arrest

The common law permits the police to search a lawfully arrested person and seize anything in their possession or the surrounding area of the arrest, which includes a vehicle, to guarantee the safety of the police and the arrested person, prevent the person’s escape, or provide evidence against them. The law enforcement purposes for the search must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable.

Officers must not only objectively search within the permissible scope but must also turn their mind to this scope before conducting the search. The subjective aspect of the test forces police officers to satisfy themselves that there is a valid purpose for the search before it is carried out.

Mr. Dautruche’s appeal was based on the contention that the arresting officer did not have a subjective belief that searching his vehicle might reasonably uncover evidence related to his flight from police.

In upholding the search as valid, the Ontario Court of Appeal noted that, despite initial testimony that the search of the vehicle was “almost a search incident to arrest”, the officer had a subjective belief that a search of the vehicle might shed light on why Mr. Dautruche fled from police, which was objectively reasonable. While police knew Mr. Dautruche’s license was suspended, the arresting officer was alive to the possibility that he had another reason to flee such as impairment or possession of contraband.

Further, even if a breach had been found, the most that could be said was that the arresting officer failed to properly turn his mind to the scope of his common law search incident to arrest powers, in circumstances where a better informed officer would have recognized that they could properly search the vehicle for evidence of Mr. Dautruche’s motive for fleeing.

Failure to Consider Alternative Possibilities

The Court of Appeal also did not disturb the trial judge’s conclusion that the only rational inference from the totality of evidence was that Mr. Dautruche threw the bag of cocaine out the driver’s side window: it was after 2:00 am, the driver’s side window was open and against an eight-foot-tall hedge and freshly fallen snow, the snow around the vehicle remained undisturbed save for the ripples created by the vehicle, there was no snow on the bag and it would have taken mere seconds to eject the cocaine from the vehicle. In these circumstances, the trial judge was entitled to find that Mr. Dautruche’s possession of the bag of cocaine had been proven beyond a reasonable doubt.

Conclusion

Although the vehicle search in this case was found to be valid, R v. Dautruche is a reminder that officers must ensure they satisfy themselves that there is a valid law enforcement purpose for a search incident to arrest before instigating the search or they may risk exclusion of the evidence.

R v. Quirk, 2024 ONCJ 232

Background

Mr. Quirk was driving just after 2:30 am, bouncing back and forth in his lane and crossing into the incoming one, when he drew the attention of Niagara Regional Police.

After he was pulled over, Mr. Quirk decided to drive off at lawful speed as an officer was exiting his cruiser, resulting in a brief pursuit. After stopping, Mr. Quirk stumbled out of his car and started walking away, ignoring police directions to return to his vehicle.

An officer smelled alcohol on his breath and advised Mr. Quirk that he was under arrest for impaired driving. Mr. Quirk responded with “No”. When the arresting officer repeated that he was under arrest and tried to establish physical contact, Mr. Quirk’s response was “do you want to go?”. The arresting officer decided to try and ground Mr. Quirk, who continued to resist, refusing repeated orders to present his hands. With assistance from three other officers, the police used body strikes to restrain Mr. Quirk and to force him to surrender his arms and hands.

At the police station, Mr. Quirk was paraded before the booking sergeant and provided a list of injuries. His choice of counsel was unavailable and Mr. Quirk decided to consult duty counsel after being provided other options. Ultimately, no breath sample was taken as police decided to take Mr. Quirk to the nearby hospital as a result of his persistent complaints of pain and injury. At the hospital, an officer raised access to counsel again but Mr. Quirk said his lawyer was probably sleeping and would give the same advice as duty counsel. Blood samples were taken at the hospital, demonstrating a blood alcohol concentration of 189 mg of alcohol in 100ml of blood.

Trial Result

At trial, Mr. Quirk alleged excessive use of force and denial of proper access to counsel. Mr. Quirk has the burden of proof, on a balance of probabilities, to prove excessive use of force. In dismissing the Charter allegation of excessive use of force, the Court noted that he did “not come anywhere close to meeting that onus”, as:

• Quirk refused to surrender his hands, a danger to police;
• Quirk’s verbal intimidation of violence set the scene for the grounding; and
• Nothing in the medical and other records filed suggested that the force was excessive.

The Court also dismissed Mr. Quirk’s allegation of denying proper access to counsel. The Court found that the right to counsel “cannot be turned into a weapon against a finding on the merits when a defendant has made his or her own choices” and that it would be a “disservice to the credibility of the Charter to acquiesce to the suggestion that he was denied reasonable access to counsel of choice”, when he made mature, conscious, rational choices with respect to his right to counsel.”

Ultimately, the Court found Mr. Quirk guilty of the offence of obstructing police and excess blood alcohol. Although impaired driving was highly probable, it was not proven beyond a reasonable doubt and he was found not guilty.

Sergeant Schultz

At the end of his decision, however, Justice O’Donnell raised a concern about the officers’ evidence in this case, drawing a parallel to the fictional Sergeant Schultz from Hogan’s Heroes and his famous line, “I see nothing, I hear nothing, I know NOTHING!”.

Justice O’Donnell’s concern was that, despite there being four officers close together actively involved in restraining Mr. Quirk, none of them were able to testify as to what other officers did in that situation.

Justice O’Donnell wrote:

There was a recurrent theme in this trial for witnesses, police officers of the Niagara Regional Police, to have observed and recalled only what they themselves did. That theme is not limited to this trial.

 

We are…entitled to expect that witnesses will not strait-jacket their memory by consciously “failing” to observe, record in the case of professional witnesses and recount all that happened to the best of their ability. This includes, in the case of police officers, observations of what their fellow officers did or did not do…

 

…yet when it came to what any other officer did during the arrest of Mr. Quirk, they were all Sergeant Schultz…the idea that, kissing distance apart…he had no meaningful awareness at all of what his partner was doing perhaps two feet away, or less, simply beggars belief. It is more plausible that this form of supposed tunnel vision reflects a desire to avoid one officer’s memory undermining another officer’s testimony in order to achieve the officers’ desired objective.

To be clear, there was no contrary narrative to the police’s reliable and convincing testimony in this case. Justice O’Donnell admits that in one sense, his concerns did not matter in the case before him as every trier of fact is entitled to accept all or none of what any given witness says. However, Justice O’Donnell was clear that the conviction was made despite his “significant misgivings” about the evidence of several officers in what the judge described as instances of willful blindness to the actions of other officers in their immediate vicinity.

Conclusion

The Crown proved, beyond a reasonable doubt, that Mr. Quirk was guilty of serious offences despite Justice O’Donnell’s concern about the officers’ testimony in this case. R v. Quirk is a cautionary tale and reminder for officers to ensure that there are no notable gaps in their evidence at trial, like the actions of other officers around them, to ensure judges do not have similar concerns about willful blindness or an officer being selective about what evidence to give in court.