ONTARIO COURT OF JUSTICE DATE: 2022.12.15 COURT FILE No.: Toronto 19-21017
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
JULIAN XAVIER PICCOLO Applicant
REASONS FOR JUDGMENT Charter and Trial (Blended)
Heard on December 5 & 6, 2022 Released on December 15, 2022
Mr. A. Gibbons.......................................................................................... counsel for the Crown Ms. B. Wu........................................................................ licenced paralegal for Mr. Piccolo and Mr. A. Pillai.............................................................................................. counsel for Mr. Piccolo
I. Introduction & Procedure
1After a traffic stop that went awry, Mr. Piccolo was charged with two counts of failing to comply with terms of his judicial interim release imposing a curfew and prohibiting the possession of weapons (both of which were subject to exceptions). In the late evening hours of November 29, 2021, PC MacNeil and his partner DC Charette stopped a dark sedan that was travelling at 95 km/h on Lakeshore Blvd., where the posted limit is 60 km/h. When PC MacNeil arrived at the driver’s side of the car, Mr. Piccolo (the registered owner, as it turned out) was in the front passenger seat, but no one was sitting in the driver’s seat. Moments later, a male opened the rear passenger-side door and ran toward Lake Ontario. Mr. Piccolo was detained at the scene, and eventually placed under arrest. The other male was found later, after he had jumped into the lake, and was arrested for impaired driving after his roadside breath sample yielded a “fail” on an approved screening device (ASD). Later, police found two machetes in the car – one under each front floor mat.
2Before trial, counsel filed a Notice of Application alleging that Mr. Piccolo’s rights pursuant to ss. 8, 9, 10(a) and 10(b) of the Charter had been breached by the arresting officer. He sought a stay of proceedings or, in the alternative, exclusion of the weapons that were seized from the car. Based on the Notice, the focus of the application could fairly be said to have revolved around Mr. Piccolo’s pre-arrest detention and search of his person, the police failure to provide him with an opportunity to speak to counsel during that detention and the search of the car.
3Ms. Wu and Mr. Pillai attended at trial with Mr. Piccolo, and advised that Ms. Wu, a licensed paralegal, would have carriage of the matter. Given the Crown’s summary election, the charges are within the scope of practice of a paralegal. She conducted the entire trial on his behalf, with Mr. Pillai alongside for most, but not all, of it. Mr. Piccolo consented to Ms. Wu’s representation throughout.
4At the outset of the trial, Ms. Wu clarified her position concerning the Charter remedies sought by Mr. Piccolo: a stay of the count alleging a breach of curfew, and exclusion of the weapons seized in relation to the alleged breach of the no weapons condition. The trial proceeded in blended fashion, on consent of all parties.
5With respect to the merits, Mr. Piccolo conceded that he was the subject of the predicate release order and that he was the person who was detained and arrested at the scene. The Crown called five police officers. Mr. Piccolo did not call evidence on the Charter voir-dire or the trial proper.
6Mid-way through trial, Mr. Gibbons invited me to dismiss the count alleging a breach of curfew. This is because, while the officer had grounds to arrest Mr. Piccolo, the prospect of conviction was dim. The traffic stop took place at 9:50 p.m., 10 minutes before Mr. Piccolo’s curfew. That curfew was also subject to exceptions: if Mr. Piccolo was at, or traveling to and from work or school, or in the company of his surety or his father. Consequently, Mr. Piccolo abandoned his application for a stay of that count.
7At the end of the trial, in addition to the issues remaining in Mr. Piccolo’s Notice, Ms. Wu argued that the post-arrest delay in the implementation of Mr. Piccolo’s right to counsel further violated his s. 10(b) rights. Mr. Gibbons correctly pointed out that Mr. Piccolo had not pled this delay in his Notice. However, based on Ms. Wu’s cross-examinations, this argument was predictable. After being offered an opportunity to consider whether to seek to call more evidence, Mr. Gibbons declined and made his submissions. Ms. Wu also indicated that Mr. Piccolo took no issue with the existence of grounds for his arrest.
8Mr. Gibbons maintained that no Charter violations had been occasioned; in the alternative, they were technical and the evidence – Mr. Piccolo’s identity and the machetes – would have been discovered in any event. With respect to the post-arrest delay of the right to counsel, he pointed out that police did not attempt to elicit evidence.
9As to the merits, Mr. Gibbons argued that the only reasonable conclusion was that Mr. Piccolo had knowledge and control of the machetes. He was the registered owner of the car, he appeared shifty when PC MacNeil first approached the car, and the edge of the floor mat closest to the front of his seat was unhooked and visibly raised from the floor (by the handle of the machete).
10Ms. Wu’s argument was two-fold: first, the Crown had not proved beyond a reasonable doubt that Mr. Piccolo had been in possession of the machetes, which were concealed; second, the Crown had not proved beyond a reasonable doubt that the machetes were not knives that Mr. Piccolo was permitted to possess by virtue of the exception to the prohibition allowing him to do so “for culinary purposes.”
11Ms. Wu filed a number of leading authorities, including R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (regarding investigative detention), R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 (regarding search incident to arrest), R. v. Mellenthin, [1992] 3 S.C.R. 615 (search during a RIDE stop) and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (right to counsel) and R. v. Nguyen, 2008 ONCA 49 (s. 10(a)). Mr. Gibbons relied on one additional case: R. v. Valentine, 2014 ONCA 147 at para. 47 (safety concerns related to the release of a detainee to a car in which there might be weapons). I have also reviewed R. v. Harris, 2007 ONCA 574 and some of its progeny, as they provide important guidance regarding issues that can arise when police detain, question and search a passenger in the context of a traffic stop.
12For the reasons that follow, I have found that Mr. Piccolo’s rights pursuant to ss. 8, 9, 10(a) and 10(b) of the Charter were violated and that exclusion of the weapons from his trial is required to preserve the long-term repute of the administration of justice. As a result, Mr. Piccolo is entitled to a dismissal of the remaining count of failing to comply with his no weapons condition.
II. Facts
13Based on a careful review of the officers’ testimony and the body-worn camera (BWC) footage, the events can be summarized as follows.
14On the evening of November 29, PC MacNeil and Charette were conducting traffic enforcement on the Lakeshore. PC MacNeil had been an officer for approximately two-and-a-half years and PC Charette for 18. They determined that Mr. Piccolo’s car was speeding and, at 9:50 p.m., they pulled behind it with their emergency lights on. The car slowed down abruptly in the middle of three eastbound lanes on the Lakeshore, but it kept creeping forward. After the PC MacNeil blared his horn, it stopped suddenly in the middle lane, where it remained for the rest of the investigation. PC Charette began to run the plate number but made a data entry error. During this time, PC MacNeil noticed that the car rocked from side to side. He did not wait for PC Charette to correct her search before proceeding to the driver’s side of the car. No one was in the driver’s seat. Mr. Piccolo was in the front passenger seat. Because the windows were tinted and it was dark out, PC MacNeil could not see if anyone was occupying the back seat. He asked Mr. Piccolo who was the driver. Mr. Piccolo, who did not answer, seemed to be “shifty, moving his hands around.” By this time, PC Charette had found out that the car in question was associated with persons considered “armed and dangerous.” She did not read any further. Instead, she got out of the scout car to tell PC MacNeil what she had learned. It is then that the male fled from the back seat and PC Charette chased him without telling PC MacNeil what she had learned.
15To PC MacNeil, a person trying to put distance between himself and the car gave rise to concerns that there might be weapons in the car. He asked Mr. Piccolo “who was the driver?” and “why did he run?” Getting no answers, he decided to detain Mr. Piccolo by ordering him out of the car “for safety and to determine what was going on.” While Mr. Piccolo was vocal in his questioning of the officer’s grounds, he was physically compliant. PC MacNeil quickly took physical control of Mr. Piccolo near the rear right passenger door. By 9:53, he had handcuffed Mr. Piccolo to the rear. By 9:57, he had lodged Mr. Piccolo in the back seat of the scout car, still in handcuffs.
16Between 9:53 and 9:57, the following things took place: PC MacNeil patted Mr. Piccolo down, and asked “Is that your wallet? With your ID?” Mr. Piccolo replied, “don’t touch my stuff man, I just want to go home.” He also told PC MacNeil that he was the registered owner of the car, that his paperwork and plates were in order, that he needed to go home and that the officer should just give him a speeding ticket and let him go. Throughout, Mr. Piccolo asked why he was being held. At 9:55, he said “you never said why I am here.” At this point, PC MacNeil told him that he was “detained”. Mr. Piccolo asked, “for what? for what?” PC MacNeil told him “til I figure out why someone ran” and “that’s failing to stop.” At 9:53, PC MacNeil told an officer who arrived “I’m good, go help her” [referring to PC Charette]. At 9:56, other officers came by. PC MacNeil told them “I’m good right now,” and that Mr. Piccolo was detained “until we figure this out.” They continued on their way.
17At 9:57, DC Fenty arrived and immediately helped PC MacNeil. His primary goal was safety. He searched Mr. Piccolo’s left side while PC MacNeil searched the right. PC Fenty told Mr. Piccolo “you have the right to speak to a lawyer; you don’t have to say anything.” Three items were removed from Mr. Piccolo’s person: Mr. Piccolo’s cell phone, wallet and another item I could not identify. PC MacNeil seized the cell phone by reaching into Mr. Piccolo’s right front pants pocket. It is unclear where on Mr. Piccolo’s person the wallet and the other item had been. All three were placed on the roof of the car.
18At 9:57, with Mr. Piccolo lodged in the police car, PC MacNeil testified that he had no further safety concerns. As PC Charette said, “there were several units everywhere.” PC MacNeil returned to the car, searched the contents of Mr. Piccolo’s wallet, and removed his driver’s licence. At 9:59, PC MacNeil told another officer that he had “a passenger in custody in [his] car right now” and that the rear passenger ran “which I believe must have been driving.” [1] He testified that when he located Mr. Piccolo’s ID in his wallet, he investigated him. Until that moment, he did not know Mr. Piccolo’s identity. He also took photos of the car’s VIN to provide to dispatch. He ran Mr. Piccolo’s name on the police system, where he learned that Mr. Piccolo had a 10:00 p.m. curfew and a no weapons condition. He did a Google search of Mr. Piccolo’s address in Richmond Hill and determined that it would be impossible for him to make it home in 10 minutes. For that reason, and despite the fact that Mr. Piccolo was not technically in breach, he formed grounds to believe that Mr. Piccolo was in violation of his curfew condition. But when he arrested him is not clear.
19At 10:04, Mr. Piccolo asked PC MacNeil to talk to “my lawyer.” PC MacNeil told him he would be able to, but not from the police car, from where he could not do so privacy. He did not read Mr. Piccolo his rights at this time. Instead, between 10:05 and 10:11, he was outside talking to other officers, including PC Charette, and appearing to investigate the area of the other male’s flight. At 10:11, he turned off his BWC.
20PC MacNeil was not sure of the exact time when he arrested Mr. Piccolo, but he read him his rights to counsel at 10:18 p.m. He testified that his plan was to facilitate Mr. Piccolo’s right to counsel once they had arrived at the station.
21Between 10:18 and 11:06, the following events took place. The Sergeant on the scene, Sgt. McNab, instructed PCs Galaniyeva and Casasola to search the car where they quickly found the two machetes and a stolen licence plate. PC MacNeil responded to a call to deliver an ASD to officers who had apprehended the male who had fled. He did so, helped them by pre-testing the device and then watched while the test was administered. During that time, PC Charette remained in the scout car with Mr. Piccolo. PC MacNeil returned to the scout car. He could not say whether he ever informed Mr. Piccolo of the charge for breaching the no weapons condition.
22At 11:06, PC MacNeil and PC Charette transported Mr. Piccolo to 14 Division. They arrived at 11:15 and had to wait until 11:54 to begin the parade. The parade ended at 12:16 a.m. At 12:35 a.m. or later, Mr. Piccolo spoke to counsel.
III. Applicable Legal Principles
23The onuses are shared between the parties in this case. Mr. Piccolo bears the onus to demonstrate that his s. 9 and 10 rights were violated. The Crown bears the onus to demonstrate that the searches – of Mr. Piccolo’s person, wallet and car – and the delay in implementing Mr. Piccolo’s right to counsel [2] were Charter-compliant.
Sections 9 and 10 of the Charter – investigative detentions
24Section 9 protects against arbitrary arrest or detention. In R. v. Mann, 2004 SCC 52, supra, at para. 34, the Supreme Court of Canada explained that investigative detentions must be premised on reasonable grounds to suspect. The Court explained as follows:
The detention must be viewed as reasonably necessary on an objective view of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstance, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of the interference….
25At para. 52, the Supreme Court added that an officer may place an individual under investigative detention “if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary.”
26Such detentions must be brief, and they do not impose on the individual an obligation to answer a police officer’s questions: ibid, at para. 45.
27During the detention, a search power does not exist as a matter of course. “[T]he officer must believe on reasonable grounds that his or her safety, or the safety of others, is at risk.” This question is to be viewed “in light of the totality of circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or intuition”: ibid, at para. 40.
28Importantly, unlike searches incident to arrest, investigative detentions do not authorize police officers to search a person or their property for evidence. “While the police have common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest”: ibid, at para. 35.
29Sections 9 and 10 require police to advise individuals who are detained for investigative purposes in clear and simple language the reasons for their detention; they are also to be advised of their right to counsel. Absent exceptional circumstances, both must happen immediately.
30Car passengers present a somewhat special case. In R. v. Harris, 2007 ONCA 574, supra, the Ontario Court of Appeal explained that the detention of a passenger during a lawful traffic investigation is not arbitrary. Also, during the brief investigative period in the context of an ongoing traffic investigation, s. 10(b) rights are suspended. While asking a passenger to identify themself does not make a detention arbitrary, there is no authority under the Highway Traffic Act (HTA) or elsewhere for demanding that a passenger identify themselves. Such questioning may amount to a search or seizure, contrary to s. 8. (I note that this is contrary to the Crown’s position that police are entitled to identify those whom they have in their custody and that the failure to identify oneself can contribute to grounds for a search like the one PC MacNeil conducted in relation to the wallet.)
31A person under detention may reasonably believe that they are compelled to give the officer information; such compulsion can be inferred based on the circumstances. While one’s name may not attract a significant degree of reasonable expectation of privacy, requests for identification provide “an entrée into [a] broader and unrelated inquiry.” One has a reasonable expectation of privacy in the information that a police officer can find on police databases.
32An investigative detention spurred by a traffic investigation can become arbitrary if takes place after the HTA investigation has concluded or prolongs or alters the nature of the passenger’s detention: see R. v. Mhlongo, 2017 ONCA 562 at para. 36.
Section 10 of the Charter - generally
33Sections 10(a) and 10(b) operate together. The Ontario Court of Appeal explained their interrelated purposes succinctly in R. v. Nguyen, 2008 ONCA 49 at para. 20:
while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it.
34At para. 21, the Court continued:
Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.
35Individuals must be advised of their s. 10 rights immediately upon detention, subject to safety concerns or instances in which the right is suspended. Section 10(b) places the following obligations on police who arrest or detain a person:
- To inform the detainee of their right to retain and instruct counsel without delay and of the existence of legal aid/duty counsel;
- If the detainee has indicated a desire to exercise their right, to provide the detainee with a reasonable opportunity to do so (except in urgent or dangerous circumstances);
- To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (except in cases of urgency or danger).
See R. v. Suberu, 2009 SCC 33, supra and R. v. Bartle, [1994] 3 S.C.R. 173 at pp. 191-92.
Section 8
36As I have noted above, police questions of a person detained for investigative purposes can constitute a search or seizure. Persons have a reasonable expectation of privacy in their identity, the information police can find about them in their databases, their person and the contents of their pockets, wallet and car. When such searches are warrantless, as here, they are presumptively unreasonable, and the Crown bears the burden of demonstrating that they are lawful. To do so, the Crown must demonstrate that they were authorized by law, the law itself was reasonable and the manner in which the search was carried out was also reasonable: see R. v. Mann, 2004 SCC 52, supra, at para. 36, citing R. v. Collins at p. 278.
IV. Analysis
Section 9, 10(a) and 10(b)
37Based on R. v. Harris, 2007 ONCA 574, supra, Mr. Piccolo’s initial detention was not arbitrary, per se. It could not be said to have been longer than his detention would have been if the driver had remained and been issued a speeding ticket. Nor was PC MacNeil’s decision to ask Mr. Piccolo to exit the car, given that it remained in the middle of three active lanes of traffic. However, the extent to which the detention interfered with Mr. Piccolo’s liberty was arbitrary and unnecessary in view of what PC MacNeil was trying to accomplish: to safely figure out who had been driving. In my view, PC MacNeil’s concerns about weapons in the car were no more than suspicion based on vague concerns for officer safety. The pat-down of Mr. Piccolo was unnecessary. By 9:53, PC MacNeil’s safety concerns had dissipated. He had the situation in hand and told other officers he did not need their help. Even if I am wrong about that, handcuffing Mr. Piccolo to the rear when he was physically compliant was wholly unnecessary. PC MacNeil should have escorted Mr. Piccolo to a safe place on the sidewalk or boulevard on the south side of the Lakeshore. Instead, he quickly took physical control of him, handcuffed him, patted him down and then searched him more thoroughly. Those features, which are akin to an arrest, exceeded what was necessary in the circumstances. The de facto arrest continued in aggravated form while Mr. Piccolo was lodged in the police car.
38Once PC MacNeil had determined that he believed the male who fled was the driver, Mr. Piccolo’s ongoing detention became arbitrary. At that point, the HTA investigation was complete from the perspective of Mr. Piccolo’s involvement, as it was in R. v. Mhlongo, 2017 ONCA 562, supra (at paras. 38 and 42). The Crown did not argue that Mr. Piccolo was a suspected party to offences being investigated once PC MacNeil had determined that the driver was the person who fled. But he argued that Mr. Piccolo was “connected” to that investigation, based on para. 52 of R. v. Mann, 2004 SCC 52. That paragraph must be read in conjunction with para. 34, in which the Supreme Court talks about individuals who are suspected to be “implicated in the criminal activity under investigation” (my emphasis). Connection cannot refer to someone who was simply associating or found with a person who is suspected of a particular offence where they are not also suspected to be a party. There is no authority for the proposition that a witness can be detained for the duration of a police investigation into the conduct of someone with whom they had merely been associated, in a car or elsewhere. Moreover, Mr. Piccolo’s ongoing detention cannot be described as necessary (also required by R. v. Mann, 2004 SCC 52, at para. 52).
39Unlike the situation in R. v. Harris, 2007 ONCA 574, supra, it cannot be said that PC MacNeil’s conduct “did not prolong or alter the nature of [his] detention” or that “he remained in exactly the same position he would have been in had [the officer] questioned only the driver”: see R. v. Mhlongo, 2017 ONCA 562, supra, at para. 42.
40For these reasons, I find that Mr. Piccolo was arbitrarily detained from 9:57, when PC MacNeil came to believe that the other male had been the driver, until the moment of his formal arrest, sometime around 10:18. What is more, his detention from 9:53 onward was a de facto arrest.
41While Mr. Piccolo’s s. 10(b) rights were suspended during the HTA investigation, when PC MacNeil was trying to figure out who had been the driver, his s. 10(a) rights were not. Despite Mr. Piccolo’s questions, PC MacNeil did not tell him why he was detaining him for approximately 4 minutes. Assuming that PC MacNeil’s initial safety concerns were reasonable, they dissipated at 9:53, when Mr. Piccolo was in handcuffs and PC MacNeil declined the help of his fellow officers. At that point, he should have advised Mr. Piccolo of the reason for his detention. Mr. Piccolo’s questions made it plain that he did not know why he was being detained. While the situation was clearly odd, and Mr. Piccolo must have understood that, I am not in a position to infer that he understood that he was lawfully detained while PC MacNeil determined whether he was the person who had been speeding.
42During the investigation, other officers presumed that Mr. Piccolo’s s. 10(b) rights had been addressed. While this is relevant to my s. 24(2) analysis, PC MacNeil’s conduct is the central focus in this case.
43Mr. Piccolo’s s. 10(b) rights were reanimated once it was determined that the HTA investigation no longer concerned him. Having decided not to release Mr. Piccolo until everything was figured out, PC MacNeil should have advised Mr. Piccolo of his right to counsel at 9:57. While PC Fenty had done so quickly, the information he provided was incomplete. In particular, Mr. Piccolo was not informed that his rights were to be implemented without delay.
44There is no question but that Mr. Piccolo invoked his right. PC MacNeil was cross-examined about his failure to facilitate Mr. Piccolo’s access to counsel without delay. In particular, given the absence of safety concerns and the large number of officers at or near the scene, it was put to him that he should have arranged to have Mr. Piccolo transported to the division immediately after his arrest. PC MacNeil responded that a Sergeant wouldn’t do that, that PC Charette, his partner, wouldn’t do that alone and that he and PC Charette were responsible for doing so, since they were the arresting officers. That, he said, is “generally how we do it.”
45With respect, when what is done “generally” leads to a predictable delay in the implementation of the right to counsel, officers must take different steps to see to the delivery of the guarantees provided by s. 10(b). In R. v. Taylor, 2014 SCC 50, supra, at para. 33, the Supreme Court put it this way:
Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.
46Mr. Piccolo was denied the opportunity to speak to counsel from 9:57 p.m. until after 12:35 the following morning. There were no exceptional circumstances capable of justifying that delay, or any significant part of it. PC MacNeil did not have to spend time looking at the boulevard that the fleeing male had crossed. He did not have to deliver the ASD to the other officers, much less wait for the test to be completed. If what he meant when he said that his partner wouldn’t transport someone alone is that she couldn’t, PC MacNeil is wrong. If he believes that officers other than arresting officers should not transport a detainee, once again he is wrong. In fact, that happens routinely, and in cases much more serious than this one. If what PC MacNeil meant when he said that a Sergeant wouldn’t transport a detainee is that an officer in charge of a group of subordinates who are actively investigating should not do so, he is undoubtedly right. But that Sergeant can and should be asked to detail someone to transport the detainee if the arresting officer is not able to do so promptly.
47Accepting, without deciding, that Mr. Piccolo could not speak to counsel privately from the scene, the delay remains grossly unreasonable.
Section 8
Questioning during the investigative detention & the search of the wallet
48Mr. Piccolo was not immediately advised of the reason for his detention. PC MacNeil asked him questions about who the driver was and why the male had fled. Very quickly, PC MacNeil took physical control of Mr. Piccolo and handcuffed him. Mr. Piccolo told PC MacNeil that the car was his. In these circumstances, I would infer that he did so under a feeling of compulsion. The questions and answers were a search or seizure for purposes of s. 8. They were not authorized by law.
49Even assuming that PC MacNeil’s concerns about safety justified the pat-down, they did not justify the ensuing search inside Mr. Piccolo’s pockets and removal of personal items. PC MacNeil believed that what he had felt was a wallet, not a weapon. His subsequent search of Mr. Piccolo’s wallet was not a search authorized by law. It was a search for evidence that had nothing to do with the driver who had fled. As PC MacNeil said, he then investigated Mr. Piccolo. The only reasonable conclusion is that PC MacNeil removed the wallet with the intention of searching it for identification to enable him to investigate Mr. Piccolo. What he obtained was information with respect to which Mr. Piccolo had a reasonable expectation of privacy. That information, in turn, is what enabled PC MacNeil to form his grounds to arrest Mr. Piccolo for breaches of his release when he did. In my view, the arrest was tainted by the illegal searches that preceded it.
50However, Ms. Wu did not contest the Crown’s position regarding the existence of grounds to arrest Mr. Piccolo. In argument, she first conceded the point. When I asked her to explain what the grounds were, she had difficulty, and reverted to stating that she was not contesting to the Crown’s position. While I am not bound by that position, I have tried to understand its basis. Perhaps Ms. Wu took the position that the police database searches would have been conducted based on the fact that Mr. Piccolo had told PC MacNeil that he was the owner of the car. In my view, that admission on his part was the result of impermissible questioning. Alternatively, she may have been of the view that the car was going to be searched and impounded in any event, if only because of the arrest of the other male, and that the weapons would have been found. Or perhaps she was of the view that PC MacNeil would have had the grounds to arrest Mr. Piccolo for breach of curfew on the basis that he was about to commit that offence, pursuant to s. 145. Lastly, I recognize that I, as the trial judge, am not fully aware of the material that has been disclosed to the defence. For these reasons, I have decided to accede to her position.
The car
51PC Galaniyeva testified that, before the search, she had been told that two men had been arrested. She had been told that Mr. Piccolo had been arrested for breach of his curfew and that he had a no weapons condition. She knew that the male who had fled was suspected of having a weapon, possibly a firearm, because PC Charette had put over the air that he had been holding his waistband while running away from her. She also knew that the car was associated with persons believed to be “armed and dangerous.” Her partner, PC Casasola testified to the same understanding, except that he learned of the no weapons condition after the search. He agreed that he had been with PC Galaniyeva throughout and had received the same information as she had.
52I found PC Galaniyeva’s detailed evidence to be credible and reliable. It also makes sense that the Sergeant’s briefing would have mentioned the results of the search of Mr. Piccolo’s name. But the discrepancy is of little importance. Having arrested both males in these circumstances, the search of the car incident to arrest for evidence of weapons, among other things, was authorized by law and did not breach Mr. Piccolo’s s. 8 rights.
53If I am wrong about that, I agree with the Crown that the weapons would have been discovered in any event. The car was in a live lane of traffic and its driver had been arrested for impaired driving. It would have been impounded and searched in that process.
V. Section 24(2)
Obtained in a manner
54The Crown did not dispute the notion that if breaches were made out, the evidence was obtained in a manner that infringed the Charter. The breaches and the seizure of the weapons were part of the same transaction, and they were connected temporally and contextually, if not strictly causally: see R. v. Tim, 2022 SCC 12 at para. 78.
The Grant analysis
Seriousness of the police misconduct
55I would characterize PC MacNeil’s conduct as at least negligent, and therefore serious. While not wilful, the breaches cannot be said to have been committed in good faith. The situation he came upon was initially confusing and dynamic, but it settled down very quickly. Yet, Mr. Piccolo’s arrest-like and groundless investigative detention continued for over 20 minutes. The questioning and search of Mr. Piccolo’s person and wallet were also performed without valid grounds. Mr. Piccolo was not properly advised the reasons for his investigative detention or of his right to counsel. PC MacNeil’s failure to facilitate Mr. Piccolo’s access to counsel for over two hours, and the reasons he gave for that failure, reflect a profound ignorance of that important and well-established right that is at least negligent. Had PC MacNeil been a more senior officer, I would have characterized his conduct as cavalier, if not reckless. The fact that the area was flooded with officers, one of whom was a Sergeant, aggravates the s. 10(b) breaches. I acknowledge that PC MacNeil was alive to his obligation to hold off from attempting to elicit evidence once Mr. Piccolo was in the scout car. But that in no way renders the s. 10(b) breaches merely technical in this case. This factor pulls strongly in favour of exclusion.
Seriousness of the impact on the accused’s Charter-protected interests
56The impact on Mr. Piccolo’s Charter protected interests was very serious. His bodily integrity and privacy were violated by the illegal search of his pockets. His reasonable expectation of privacy was violated by the immediate questioning, the search of his wallet and the police database checks. For at least 20 minutes, Mr. Piccolo was detained unlawfully. The manner in which he was detained for that period, which amounted to a complete deprivation of his liberty and freedom of movement, was arbitrary. He was not properly advised of his rights for a significant period and was therefore in a very vulnerable position vis-à-vis the state. For over two hours, he had no lifeline to counsel or the outside world. At para. 90 of R. v. Tim, 2022 SCC 12, supra, the Supreme Court wrote that “[t]he greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.” This factor also pulls strongly in favour of exclusion.
The importance of adjudication on the merits
57The weapons are real evidence whose reliability was not affected by the breaches. Their admission would better serve the truth-seeking function of the trial. Their exclusion would gut the Crown’s case. The remaining count, failure to comply with judicial interim release by possessing weapons, is a serious version of that offence and one which the public has an interest in seeing prosecuted. This factor pulls in favour of admission, but I would not say that it does so strongly.
Balancing
58At issue is the long-term repute of the administration of justice. I have found that the police acted negligently with respect to well-established Charter rights and that the impact on Mr. Piccolo was very serious. On balance, my conclusions concerning the first two lines of inquiry clearly outweigh society’s interest in the truth-seeking function of a trial on the merits. The admission of the impugned evidence in this case would bring the administration of justice into disrepute.
VI. Conclusion
59The weapons are excluded from these proceedings. The Crown is unable to prove beyond a reasonable doubt that Mr. Piccolo was in violation of the no weapons condition of his release.
60Mr. Piccolo is entitled to be found not guilty and there is no need for me to address the case on the merits.
Released: December 15, 2022 Justice Patrice F. Band
[1] He told another officer the same thing at 10:06 p.m. [2] See R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495.