Her Majesty the Queen v. Gonzales

[Indexed as: R. v. Gonzales]

Ontario Reports

Court of Appeal for Ontario

K.N. Feldman, Watt and Huscroft JJ.A.

June 30, 2017

136 O.R. (3d) 225 | 2017 ONCA 543

Case Summary

Charter of Rights and Freedoms — Arbitrary detention or imprisonment

Police officer on patrol in residential neighbourhood where break-ins had occurred observing two young men in new van and ascertaining that van was rented and overdue at rental agency. Men entering residence. Officer observing van in neighbourhood being driven by accused five days later. Officer not testifying that stopped van for any purpose related to Highway Traffic Act but rather to see if occupants were suspects in break and enters. Officer detecting smell of fresh marijuana in vehicle and observing large sealed boxes in van. Trial judge erring in finding that initial stop was authorized by s. 216(1) of Highway Traffic Act. Accused's initial detention leading to arrest for possession of marijuana, search of vehicle and residence and strip search. Officer not having reasonable grounds to suspect that accused was involved in break-ins when stopping van. Stop and detention of accused violating his rights under s. 9 of Charter. Even if stop had not violated Charter, mere possibility of concealed evidence not justifying strip search following arrest. Combination of violations of accused's Charter rights being serious and having significant impact on accused's Charter-protected interests. Evidence of marijuana and firearm found in van and residence excluded under s. 24(2) of Charter.

Canadian Charter of Rights and Freedoms, ss. 8, 24(2) — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 216(1).

Facts

The accused was charged with firearms offences and possession of marijuana for the purpose of trafficking. A police officer was patrolling a residential neighbourhood where a rash of break-ins had occurred when he saw two young "Latino" men in a new van. The van pulled into a driveway and the men entered a residence. The officer ascertained that the van was a rental and that it was overdue at the rental agency. Five days later, the officer saw the same or a similar van in the neighbourhood. The driver of the van, the accused, looked at the officer. The officer pulled the van over with the intention of investigating the break-ins. He saw that the van was full of large cardboard boxes. When the accused opened the driver's side window, the officer detected a smell of fresh marijuana coming from inside the van. He called for backup. When the other officers arrived, he arrested the accused for possession of marijuana, opened one of the cardboard boxes and found marijuana in Ziploc bags. The accused was strip searched at the police detachment. The officer's observations, including the contents of the box that he opened, were included in an information to obtain a search warrant for the van but it did not include the information that the accused was a co-owner of the address the van had been seen at on the prior occasion. When the van was searched, the police found 252 lbs of packaged marijuana and $105,000 in cash. The police then obtained a search warrant for the residence which the men had entered. The ITO included the results of the search of the van. Police found another 185 lbs of marijuana in the residence along with a firearm and several rounds of ammunition. The trial judge found that the accused's rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms were not violated. He found that the accused's rights under s. 10(b) of the Charter were violated by a delay in informing him of his right to counsel, but that no evidence was discovered as a result. The trial judge dismissed the accused's application to exclude the evidence found in the van and the residence under s. 24(2) of the Charter. The accused was convicted. He appealed his conviction and his five-year sentence.

Decision

Held, the conviction appeal should be allowed.

The trial judge erred in finding that the initial stop was authorized under s. 216(1) of the Highway Traffic Act. Section 216(1) authorizes a police officer to stop vehicles for highway regulation and safety purposes. Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is, road safety concerns. On the officer's own evidence in this case, his sole reason for stopping the van was to pursue his investigation of the residential break-ins. The stop was also not authorized at common law, as the officer did not have reasonable grounds to suspect that the accused was involved in the break-ins, or any other criminal activity. The accused was arbitrarily detained contrary to s. 9 of the Charter.

When the officer smelled the fresh marijuana and saw the cardboard boxes in the van, he had reasonable grounds to arrest the accused (apart from a consideration of the effect of the initial arbitrary detention). The search of one of the cardboard boxes was incident to that arrest and did not violate the accused's rights under s. 8 of the Charter.

The trial judge erred in finding that the strip search was reasonable because the officer had reasonable and probable grounds to arrest the accused. Reasonable and probable grounds beyond those that justify the arrest are required to render a strip search reasonable. The mere possibility of an individual concealing evidence is not enough to justify a strip search to find that evidence. The circumstances in this case did not establish more than a mere possibility, if that, that the accused was concealing evidence that a strip search would locate. The strip search was unlawful and violated the accused's rights under s. 8 of the Charter.

The trial judge's analysis under s. 24(2) of the Charter was not entitled to deference as he found only one Charter violation, the s. 10(b) violation. The initial arbitrary detention permitted the officer to smell the fresh marijuana and see the boxes; those observations provided the officer with reasonable and probable grounds to arrest the accused; the arrest led to the discovery of marijuana in one of the boxes; and that discovery led to the search warrant for the van, which led to the search warrant for the house. In combination, the seriousness of the police misconduct and the strong negative impact of the breaches on the accused's Charter-protected interests constituted an unanswerable case for exclusion of the evidence under s. 24(2) of the Charter.

Judgment

APPEAL by the accused from the conviction entered on October 4, 2013 and the sentence imposed on June 11, 2014 by McIsaac J., sitting without a jury.

Counsel:

Gregory Lafontaine, for appellant.

Ghazala Zaman and Kelvin Ramchand, for respondent.

The judgment of the court was delivered by

Reasons for Decision

The Background Facts

The police investigation

[8] In September and early October 2009, an increase in daytime residential break-ins in the Copper Creek area of Markham was reported to the Property Crimes Unit of York Regional Police. In response, the police increased their presence and the frequency of their patrols in the area. The reports did not include descriptions of any suspects or vehicles thought to be involved.

The first sighting: September 30, 2009

[9] Early in the afternoon of September 30, 2009, Detective Vernon Ward was patrolling and conducting surveillance on some streets where several break-ins had occurred. He was driving a truck, unadorned by any police markings or insignia.

[10] Detective Ward noticed a brand new van being driven along one of the streets. There were two younger men in the van, of "Latino descent". The officer considered what he saw "suspicious". A van occupied by two younger men, in a residential area, a melange of completed and unfinished homes, coming from an area with no access and following a route with no apparent purpose or destination.

[11] The van's occupants cast a suspicious look at Det. Ward as he waved them through an intersection. The van pulled into a driveway of a home at [number omitted] Hislop and entered the garage. The garage door closed behind the van. Detective Ward watched the home for about an hour. No one entered. No one left. The officer then left the area.

[12] While surveilling the house at [number omitted] Hislop, Det. Ward made some inquiries about the van that had entered the garage. The vehicle had been rented by a person with a Toronto address and was overdue for return to the rental company. Detective Ward considered the possibility that one of the occupants of the van lived at [number omitted] Hislop. He could see no connection between the van or its occupants and the break-ins in the area.

The second sighting: October 5, 2009

[13] Early in the afternoon of October 5, 2009, Det. Ward returned to the same area to continue his patrol and surveillance. He saw a van similar to the one he had seen five days earlier. As the van passed by, Det. Ward saw two men in it. Gilbert Gonzales was the driver. Both men looked towards him as they drove slowly through an intersection. Detective Ward followed.

[14] The van drove by [number omitted] Hislop, made a U-turn and parked down the street four or five houses away. Detective Ward pulled in behind the van. He intended to make a traffic stop of the van to pursue the investigation of the break-ins. The driver had not committed any highway traffic offence. The van then moved away from its parking spot, passed by [number omitted] Hislop and turned onto another street. Detective Ward followed. He was suspicious of this vehicle given his impression that the driver was trying to avoid him.

The traffic stop

[15] When Detective Ward signalled him to do so, the driver of the van pulled over. The officer approached the van. He could see through the side windows that the van was full of large cardboard boxes. Each box was sealed closed. Detective Ward was curious about the contents of the boxes. At the driver's door of the van, the officer displayed his badge and warrant card. Gilbert Gonzales, who was the driver, asked why he had been stopped. The officer told Gonzales that he (Ward) wanted to ensure that he (Gonzales) was a licensed driver entitled to operate the van. Gonzales handed over the documents the officer requested.

The smell

[16] When Gilbert Gonzales opened the window on the driver's door of the van, Det. Ward smelled the odour of fresh marijuana coming from the interior of the van. This odour and Gonzales' apparent nervousness prompted Det. Ward to consider the possibility that the large sealed cardboard boxes contained drugs.

[17] Detective Ward returned to his truck to verify the documents provided by Gonzales. He believed the occupants of the van were in possession of marijuana. He intended to arrest them for that offence. Although he was armed, Det. Ward was not wearing a protective vest. He called for assistance to make the arrest and waited for other officers to arrive before returning to the van.

The arrest

[18] When additional officers arrived, Det. Ward told them about his observations and his plan to arrest the occupants of the van for possession of marijuana. He also explained his intention to look in the van.

[19] Detective Ward and the other officers approached the van. Detective Ward told Gonzales that he was under arrest for possession of marijuana. A uniformed officer advised Gonzales of his right to counsel (although the officer was delayed in giving Gonzales his caution), searched him incident to arrest, handcuffed him and put him in the rear of a police cruiser for transport to the police station. Back at the station, Gonzales was strip searched.

The initial search of the van

[20] Detective Ward opened the side door of the van. He removed one of the large cardboard boxes and opened it. Inside, the officer found two sealed, large black industrial plastic bags. When the officer opened one of the bags, he found several clear freezer-type Ziploc bags. In each was what appeared to be marijuana. He replaced the contents, closed the box, put it back inside the van and waited to obtain a search warrant to continue his search of the van, the boxes and their contents.

[21] Apart from the box he opened and the contents of which he examined, Det. Ward did not conduct any further search of the van, open any other boxes or examine their contents.

[22] Detective Ward arranged for the van to be towed to a police station to await issuance of a search warrant to permit a more extensive search of the van and its contents.

The search warrant for the van

[23] Police obtained a telewarrant authorizing a search of the van. The ITO included information about the surveillance on September 30 and the further observations made on October 5, including the boxes in the van and the contents of the box opened by Det. Ward. The affiant also described the ongoing investigation into the deluge of residential break-ins in the area where the van was stopped and its occupants arrested.

[24] In the ITO the affiant noted Gonzales' address as provided on the rental agreement for the van -- [number omitted] Gilley Road in Toronto -- but failed to indicate that a property search disclosed that Gonzales was also a co-owner of [number omitted] Hislop.

[25] When the van was searched, police found a substantial amount (252 lbs) of packaged marijuana. In a garbage bag between the front seats of the van, police found $105,000 in Canadian currency.

The search warrant for [number omitted] Hislop

[26] After the van was searched, police sought and obtained a second search warrant for [number omitted] Hislop. The ITO included the results of the search of the van, as well as Gonzales' connection to the premises at [number omitted] Hislop.

[27] During a search of [number omitted] Hislop, police found another 185 lbs of marijuana along with a large quantity of freezer-style Ziploc bags, vacuum sealer equipment, empty cardboard boxes and $27,000 in cash. They also seized debt lists, cellphones, a money counter, a firearm and several rounds of ammunition.

The trial proceedings

[28] The trial proceeded as a blended voir dire and trial before a judge of the Superior Court of Justice sitting without a jury. The trial judge found a single breach of s. 10(b) of the Canadian Charter of Rights and Freedoms. After the trial judge ruled that the things seized from the van and house were admissible as evidence, trial counsel for the appellant made no submissions. The trial judge made findings of guilt and entered convictions on three firearms counts and a single count of possession of marijuana for the purpose of trafficking.

[29] Gonzales was sentenced to a global sentence of five years' imprisonment.

The Grounds of Appeal

[30] Gilbert Gonzales (the "appellant") appeals both conviction and sentence. He raises several grounds of appeal.

[31] On the appeal from conviction, the appellant advances a number of grounds which I would formulate as errors in:

(i) concluding that the appellant had not been arbitrarily detained;

(ii) concluding that the arrest of the appellant and search of the van allegedly incidental to that arrest were lawful;

(iii) failing to find a breach of s. 10(a) of the Charter when the appellant was detained;

(iv) failing to find that the post-arrest strip search of the appellant was unreasonable; and

(v) failing to exclude evidence obtained by the search of the van incident to arrest, and the van and house at [number omitted] Hislop under warrant.

[32] On the appeal from sentence, the appellant submits that the trial judge erred in jumping the joint submission on sentence.

The Appeal from Conviction

Ground #1: Arbitrary detention

[33] To provide a proper setting in which to evaluate this claim of error, it is beneficial to recall some features of the testimony of Det. Ward about his decision to pull over the appellant's van.

The essential facts

[34] Detective Ward was one of several officers patrolling and surveilling a residential area where a significant number of daytime break-ins had occurred. The officers involved were in plainclothes and drove unmarked vehicles.

[35] On September 30, 2009, five days before the appellant's arrest, Det. Ward had seen a brand new van, occupied by two younger-looking "Latino" men driving in an area where several break-ins had occurred. The van came from an area to which there was no access, then entered the garage at [number omitted] Hislop. The occupants had given Det. Ward a suspicious look as they passed by. Detective Ward watched the house for a further hour but saw no signs of activity in or around it.

[36] On that same day, Det. Ward learned that the van had been rented from a car rental company by a Gilbert Gonzales of a Toronto address. The vehicle was overdue at the rental agency. Detective Ward concluded that either the driver or passenger in the van had some connection with [number omitted] Hislop, perhaps living there. He did not think that there was any link between the vehicle or its occupants and the break-ins he was investigating. He had no reason to stop it for any highway traffic or safety reason.

[37] On October 5, 2009, Det. Ward saw the same or a similar van in the area in which he was conducting surveillance. The appellant was the driver. Both occupants of the van looked at Det. Ward prompting the officer to think that perhaps they had "made" him as a police officer. This time, the van did not pull into [number omitted] Hislop, rather drove by and stopped a few houses beyond it. When Det. Ward pulled up behind the van, the vehicle pulled away.

[38] Detective Ward signalled the driver of the van to pull over. The driver complied. Ward wanted to investigate the occupants to determine whether they were linked to the break-ins. The officer had no basis to stop them for any highway traffic or safety contravention. Detective Ward pulled the van over because he wanted to identify its occupants and to have a look inside the vehicle to see whether it contained any stolen property, gloves or anything else that would link it or its occupants to previous or future break-ins.

[39] Detective Ward told the appellant, who was the driver, that he wanted to see his licence, ownership and insurance. The appellant complied and also turned over a copy of the rental agreement. The appellant avoided responding to Det. Ward's inquiries about why he (the appellant) was in the area. With the driver's window lowered in the van, Det. Ward smelled the odour of fresh marijuana and could see several large sealed cardboard boxes in the rear of the van. The officer thought the boxes might contain drugs. He began to formulate grounds to arrest the occupants for possession of marijuana. The smell. The nervous appearance and evasive responses of the appellant. The refusal of the appellant to tell Det. Ward what he was doing and what was inside the boxes.

[40] Detective Ward returned to his truck. He verified the accuracy of the appellant's documents. He advised dispatch that he needed assistance with a traffic stop. Detective Ward then waited in his truck for assistance to arrive. About seven minutes later, three officers arrived. Detective Ward advised the other officers his belief that the occupants were in possession of marijuana, explained his reasons and his plan to arrest the occupants of the van. They approached the van, told the occupants that they were under arrest for possession of marijuana and had them get out of the vehicle.

The ruling of the trial judge

[41] In a ruling that decided several issues raised on applications made at the outset of trial, the trial judge summarized the testimony of Det. Ward about the reasons he signalled the van driven by the appellant to pull over on October 5, 2009. The trial judge rejected any suggestion of an investigative detention and an argument that what occurred was a pretext stop. He considered the real driver of the stop was the authority provided by s. 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") [at paras. 14-15]:

. . . I am satisfied that a fair reading of all [Det. Ward's] evidence on this point confirms that what was really driving this interception was the power conferred by the Ontario Highway Traffic Act (" HTA ")[.]

Suffice it to say, in the absence of the applicant satisfying me that there was no legitimate highway traffic purpose to this stop, even though the predominant motivation may have related to the investigation of this rash of residential burglaries, this complaint [of a pretext stop] must fail. Borrowing a phrase from [defence counsel]'s oral submissions, the police may have been conducting a wide-ranging "catch and release" program to gather intelligence about potential perpetrators of these property offences, they were doing so in statutorily mandated waters. If I were to accede to the complaint in this context, I fear that I would be placing an unreasonable limit on legitimate police investigatory powers. I am not prepared to go that far given the limited intrusion into the applicant's liberty interests in relation to the highly regulated privilege to operate a motor vehicle on a public highway.

[42] The trial judge then compared the circumstances of this case with those in Brown v. Durham (Regional Municipality) Police Force, where police stops were authorized by s. 216(1) of the HTA and concluded [at para. 17]:

The parallels between that case and the instant case are compelling:

-- Both were motivated to provide intelligence for legitimate police interests;

-- Both were selective in the sense of targeting only "suspicious" members of the driving public and were, in that sense, not arbitrary;

-- Both involved "plain view" assessments of the drivers, passengers, vehicles and equipment; and

-- Both were limited to the requirements of the HTA and did not involve intrusive searches of persons and property.

The arguments on appeal

[43] The appellant says that what occurred here was an arbitrary detention. This was a pretext stop, not authorized by law. The stop could not be justified, as the trial judge said, under s. 216(1) of the HTA. Detective Ward acknowledged that his singular purpose was to further the criminal investigation of the break-ins. He had no intention, much less basis, to investigate any highway traffic or highway safety issues.

[44] The appellant calls to mind that s. 216(1) requires articulable cause, that is to say, a reason, legitimately connected to highway safety concerns, for stopping a motorist. There was here no basis to found a reasonable suspicion that the appellant was violating any law pertaining to highway regulation and safety, or that there were other more generalized safety concerns about the vehicle he was operating. Section 216(1) cannot be invoked to legitimize unauthorized stops or searches or arbitrary apprehensions.

[45] The decision in Brown v. Durham that the trial judge found dispositive has no application. In Brown v. Durham, unlike here, there were legitimate highway safety concerns, in addition to criminal intelligence purposes. That there was a "dual purpose" to the stops in Brown v. Durham did not make them constitutionally invalid. But the evidence revealed but a single purpose here, a purpose which had nothing to do with s. 216(1). The trial judge's finding to the contrary is unreasonable, and based on a misapprehension of Det. Ward's evidence.

[46] The respondent resists any suggestion that the initial detention of the appellant was arbitrary.

[47] The respondent says the police have authority to investigatively detain persons based on reasonable suspicion, that is to say, reasonable suspicion of a nexus between the person who is to be detained and a recent or ongoing criminal offence. Here, there was a constellation of facts sufficient to ground a reasonable suspicion. Current information about daytime residential break-ins in the area where the van and its occupants were seen twice within a week. The apparently random nature of their driving pattern.

[48] In addition, the respondent continues, a sufficient HTA purpose animated this stop: the need to confirm that the occupants were in lawful possession of the vehicle and lawfully licensed and insured to operate it. This invoked the dual purpose doctrine relied upon by the trial judge.

The governing principles

[49] Several principles have a say in an assessment of this ground of appeal.

[50] First, the Charter guarantee against arbitrary detention.

[51] The purpose of the guarantee against arbitrary detention in s. 9 of the Charter is to protect individual liberty from unjustified state interference: R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, at para. 20. Absent a law to the contrary, individuals are free to do as they please. On the other hand, the police, more broadly the state, may act only to the extent that the law empowers them or it to do: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, at para. 15.

[52] A law, whether originating in a statutory enactment, the common law or some combination of sources, may authorize and prescribe the limits on a detention. Provided the detention is at once authorized by law and does not exceed any limitations the law imposes upon it, the detention is lawful and thus not arbitrary within s. 9 of the Charter: Mann, at para. 20.

[53] In approaching a complaint of arbitrary detention, a court should consider first whether some lawful authority sanctions the detention, then, if permitted, whether the detention falls within or beyond any applicable limits on that authority.

[54] In this case, the trial judge concluded that the detention was lawful under s. 216(1) of the HTA, even though the primary motivating factor was Det. Ward's pursuit of his investigation of the daytime, residential break-ins in the area. Accordingly, it is necessary to consider whether the detention falls within the scope of s. 216(1) of the HTA.

[55] Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham, at para. 21; R. v. Ladouceur, [1990] 1 S.C.R. 1257, [1990] S.C.J. No. 53, at p. 1288 S.C.R.; R. v. Simpson (1993), 12 O.R. (3d) 182, [1993] O.J. No. 308, 79 C.C.C. (3d) 482 (C.A.), at p. 492 C.C.C. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the on-board computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.

[56] In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown v. Durham, at para. 24; Ladouceur, at pp. 1286-87 S.C.R.; R. v. Mellenthin, [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, at pp. 623-24 S.C.R. However, s. 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns: Brown v. Durham, at para. 24; Mellenthin, at p. 623-24 S.C.R.

[57] A trial judge's finding that highway regulation or safety concerns was a purpose that animated a traffic stop is a finding of fact. As a consequence, the finding is subject to deference and cannot be set aside by this court unless it is unreasonable or based upon a material misapprehension of the evidence adduced at trial: Brown v. Durham, at para. 27.

[58] Sometimes, a traffic stop may have more than one purpose. However, the mere existence of another purpose motivating the stop, beyond highway regulation and safety concerns, does not render the stop unlawful. But the additional purpose must itself not be improper, or proper but pursued through improper means, and must not entail an infringement on the liberty or security of any detained person beyond that contemplated by the purpose that underpins s. 216(1): Brown v. Durham, at paras. 31, 34, 37-39 and 45.

[59] Gathering police intelligence falls within the ongoing police duty to investigate criminal activity. And so it is that it is permissible for police to intend, within the confines of a stop and detention authorized by s. 216(1), to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity: Brown v. Durham, at paras. 31 and 33; R. v. Storrey, [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at pp. 254-55 S.C.R.

[60] Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor: Simpson, at pp. 492-93 C.C.C.

[61] Police duties and their authority to do things in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it helped the police perform their assigned duties. Where that conduct interferes with the liberty or freedom of an individual, it will be lawful only if and to the extent it is authorized by law: Simpson, at p. 493 C.C.C.

[62] Absent statutory authority to legitimize police conduct, the common law may provide a place of refuge. Precedents support a two-step analysis where police conduct interferes with an individual's liberty. The first inquiry or step requires a determination of whether the police conduct that gives rise to the interference falls within the general scope of any duty imposed upon an officer by state or at common law. Where this threshold has been met, the second step or stage requires a determination of whether the conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty: Mann, at para. 24. This is the Waterfield test, first expressed by the English Court of Criminal Appeal, and adopted, refined and incrementally applied by our courts: Mann, at para. 25. See, also, R. v. Waterfield, [1964] 1 Q.B. 164, [1963] 3 All E.R. 659 (C.A.).

[63] The second step or stage involves and requires a balancing of the competing interests of the police duty and the liberty interests at stake. This entails consideration of whether an invasion of individual rights is necessary for the police to perform their duty, and whether the invasion is reasonable, in light of the public purposes served by effective control of criminal conduct, on the one hand, and respect for the liberty and fundamental dignity of individuals, on the other: Mann, at para. 26. Several factors exert an influence in applying this second test, the justifiability assessment:

(i) the duty being performed;

(ii) the extent to which some interference with individual liberty is necessary to perform that duty;

(iii) the importance to the public good of the performance of that duty;

(iv) the liberty intruded upon;

(v) the nature and extent of the intrusion; and

(vi) the context in which the police/citizen confrontation took place.

See Mann, at para. 26; Simpson, at pp. 499-500 C.C.C.

[64] Where a person is detained by police in the course of efforts to determine whether that person is involved in a criminal activity being investigated, that detention can only be justified if the detaining officer has some articulable cause, or said in another way, reasonable grounds to suspect, the person is involved in the investigated activity. This standard includes both objective and subjective components: Mann, at paras. 27 and 33; Simpson, at p. 500 C.C.C.

The principles applied

[65] As I will explain, I would give effect to this ground of appeal and hold that the traffic stop made by Det. Ward was an arbitrary detention in breach of s. 9 of the Charter.

[66] The principal basis upon which the trial judge found the stop and subsequent detention was lawful, thus not arbitrary, was that it was authorized by s. 216(1) of the HTA. I disagree.

[67] Recall that the authority for which s. 216(1) provides is circumscribed by its purpose -- highway regulation and safety. To determine the police purpose in effecting a stop and detection, we must consider the evidence of the officers involved, the persons detained and any other evidence, testimonial or real, concerning the circumstances and conduct of the stop. In this case, that takes us to the testimony of Det. Ward.

[68] Detective Ward was in the area where the stop occurred for a single purpose. And that purpose had nothing to do with highway regulation or vehicular safety. As he testified, he was there -- in plainclothes driving an unmarked vehicle -- to investigate an untoward number of daytime residential break-ins in the area. He drove around and kept his eyes open for any signs that might assist in matching suspects with crimes.

[69] The trial judge was obliged to ground the findings necessary to engage s. 216(1) on the evidence adduced on the voir dire and any reasonable inferences that might arise from that evidence. The record reveals no basis upon which to reject Det. Ward's testimony that his purpose in stopping the van was to pursue his investigation of the residential break-ins, his raison d'être for being in the area in the first place. This he planned to do by looking into the interior of the van for any indicia associated with break-ins: contraband, gloves, tools of the trade and such. Not only did Det. Ward identify his purpose as other than traffic regulation or vehicular safety, but he denied that the latter was the, or even a, purpose for the stop.

[70] The trial judge's finding that "what was really driving this interception was the power conferred by the Ontario Highway Traffic Act (" HTA ") in particular, s. 216(1)" cannot stand. It is unreasonable, bereft of evidentiary support. It turns the evidence of Det. Ward denying any such purpose on its head, converting his denial into positive proof of the contrary. And it misapprehends the substance of his evidence that his purpose of stopping the vehicle was to pursue the investigation into residential break-ins.

[71] In responding to an argument advanced by defence counsel at trial that this was a "pretext" stop, the trial judge also suggested that the stop was a "dual purpose" stop and thus constitutionally permissible. Essential to this justification are two proper purposes: s. 216(1) of the HTA and pursuit of the investigation into residential break-ins. But as we have already seen, s. 216(1) of the HTA afforded no basis for the stop, thus could not be invoked as a constituent or component of a constitutionally permissible "dual purpose" stop.

[72] The elimination of s. 216(1) of the HTA as a basis for the stop leaves for consideration the availability of any authority Det. Ward may have had at common law to investigatively detain the appellant.

[73] None can gainsay that Det. Ward's pursuit of the investigation into residential break-ins in the area where he detained the appellant falls within the scope of his common law and statutory duty to investigate crime and apprehend those who may be responsible for it. This satisfies the first requirement under Waterfield.

[74] The second threshold to be met under Waterfield requires a consideration of whether the stop, albeit within the general scope of common law and statutory police duties, involved an unjustifiable use of the powers associated with that duty.

[75] To begin, a police officer has no general authority to detain a person whenever that detention will assist the police officer in the execution of their duty. Thus, Det. Ward had no general authority to detain the appellant because doing so would assist him (Ward) in carrying out his investigation of residential break-ins.

[76] To justify the detention requires a constellation of objectively discernible facts that gave Det. Ward reasonable cause to suspect that the occupants of the van were criminally implicated in the residential break-in activity under investigation.

[77] Detective Ward had no information to link the van or its occupants to the daytime residential break-ins he was investigating. The officer knew about the number of break-ins and the time and manner of entry. But neither the police, nor Det. Ward, had a description of any individuals or vehicles that might have been involved in or associated with these activities. Detective Ward had seen the same van in the same area twice in five days. Each time, there was a driver and a passenger. However, on the first occasion, what happened satisfied Det. Ward that there was no connection between the van and the break-ins. The occupants had access to [number omitted] Hislop. They entered the house. Detective Ward did not see them leave. He thought that one of the men may have lived there. Scarcely the stuff of articulable cause or reasonably grounded suspicion.

[78] Similarly, nothing that happened on October 5, 2009 could ground a reasonable suspicion. The same vehicle. Two young men. A look from the appellant to Detective Ward as the appellant drove through the intersection. Nothing more.

[79] The stop on October 5, 2009 was an arbitrary detention. The trial judge erred in holding otherwise.

Ground #2: The arrest and search incident to arrest

[80] This ground of appeal focuses upon the arrest of the appellant and the search of one of the sealed boxes found in the interior of the van. Discrete but related claims of constitutional missteps are made in connection with both the arrest and the search.

[81] To situate this claim of error in its proper environment requires a brief reference to some features of Det. Ward's evidence.

The relevant circumstances

[82] Shortly after Det. Ward walked up to the van and displayed his badge and warrant card at the driver's window, the appellant lowered the window. Detective Ward smelled fresh marijuana from inside the van. On approaching the vehicle, Det. Ward also noticed several large cardboard boxes piled on the floor of the van, some abutting the back of the front seats. Each box was sealed closed with tape. When asked about the contents of the boxes, the appellant said nothing.

[83] Detective Ward had prior experience in drug investigations. He was familiar with the smell of raw marijuana from having participated in dismantling grow ops. He described the odours from the van as "skunky".

[84] Detective Ward returned to his truck with the appellant's licence and insurance and the rental agreement for the van. He intended to arrest the appellant for possession of marijuana as soon as more officers arrived to assist with the arrests. He also planned to search the van incident to arrest, in particular, to determine the contents of the sealed boxes.

[85] After the appellant had been arrested, Detective Ward opened the side door of the vehicle, removed a box, opened it and looked at its contents. Inside an industrial-size green garbage bag, he found sealed Ziploc bags containing marijuana. Detective Ward closed up the box and began to prepare an ITO for submission to a justice of the peace for a telewarrant to search the van.

The ruling of the trial judge

[86] In brief reasons, the trial judge found that the arrest of the appellant without warrant was lawful under s. 495(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. He was satisfied that Det. Ward's experience in drug investigations, coupled with the particularity of his description of the odour; the confirmatory opinions of other officers who participated in the arrest; and the appellant's refusal to reveal the contents of the boxes met the standard of reasonably grounded belief described by s. 495(1)(b).

[87] The trial judge was also satisfied that the single box search was incidental to arrest and that there was a reasonable likelihood that drugs would be found in the sealed boxes.

The arguments on appeal

[88] The appellant says that his arrest for possession of marijuana was based solely on Det. Ward's evidence that he smelled raw marijuana when the appellant lowered the window on the driver's side of the van. Smell alone does not constitute a reasonably grounded belief that the appellant committed an indictable offence. It follows, the appellant argues, that the arrest was at once unlawful and arbitrary.

[89] The appellant contends that whether a set of circumstances amounts to reasonable grounds to authorize an arrest involves a question of law that is subject to review on a standard of correctness. The standard involves both subjective and objective elements, which the trial judge conflated in his conclusory statement without an analysis. Here, the objective component is of critical importance. It cannot be met by speculation or consideration of irrelevant factors. Among the factors the trial judge considered, none were of any relevance to the issue except the confirmatory opinions of the other officers. But those provided negligible, if any, support when considered along with the fact that Det. Ward had already advised the other officers of his grounds, in particular the smell of the marijuana; and the manner in which the marijuana was packaged rendering an ambient odour unlikely.

[90] In connection with the search of the single sealed box and its contents, the appellant contends that, absent an arrest or detention predicate that is itself lawful, the dependant search incident to it must equally be a constitutional casualty. For the authority to search is parasitic. An unconstitutional arrest or detention cannot found a constitutional search incident to it.

[91] The respondent offers a different characterization of the arrest and search: both were lawful, neither arbitrary nor unreasonable.

[92] The respondent says that there is no legal barrier or impediment to an experienced police officer relying on the smell of marijuana as a basis upon which to justify an arrest without warrant. In this case, the odour was specifically described by an officer with experience in drug investigations, including dismantling grow ops where the smell of raw marijuana would be prevalent. Besides, there were additional factors. Hesitation in lowering the window. Confirmation of the order by two other experienced officers. In the end, it was open to the trial judge to conclude that the cumulative effect of this evidence amounted to reasonable grounds for the purposes of s. 495(1)(b) of the Criminal Code. His conclusion is entitled to deference.

[93] Turning to the search of the single carton in the van, the respondent says that this search was incidental to the lawful arrest of the appellant. Its purpose was to discover evidence of the offence on which the appellant had been arrested. The search authority invoked extends to a motor vehicle within the arrested person's control. And the search was limited in scope, not extending beyond a single carton immediately behind the driver's seat.

The governing principles

[94] A peace officer may arrest without a warrant

(i) a person who has committed an indictable offence or who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence; or

(ii) a person whom the officer finds committing a criminal offence.

See Criminal Code, s. 495(1)(a) and (b).

[95] The Criminal Code requires that an arresting officer subjectively have reasonable grounds on which to base an arrest. But more is required. In addition, the grounds must be justifiable from an objective point of view. To say the same thing in another way, a reasonable person in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, nothing more than reasonable grounds need be shown. Not a prima facie case. And not proof beyond a reasonable doubt: Storrey, at pp. 250-51 S.C.R.

[96] Possession of marijuana is only an indictable offence where the amount in a person's possession exceeds 30 grams, based on the totality of the circumstances, including but not limited to the smell of marijuana in the vehicle: R. v. Loewen, [2011] 2 S.C.R. 167, 2011 SCC 21, at para. 4.

[97] No bright line rule prohibits the presence of the smell of marijuana as the source of reasonable grounds for an arrest. However, what is dispositive are the circumstances under which the olfactory observation was made. Sometimes, police officers can convince a trial judge that their training and experience is sufficient to yield a reliable opinion of present possession. As with any item of evidence, it is for the trial judge to determine the value and effect of the evidence: R. v. Polashek (1999), 45 O.R. (3d) 434, [1999] O.J. No. 968, 134 C.C.C. (3d) 187 (C.A.), at para. 14; R. v. Morris, [2013] O.J. No. 1583, 2013 ONCA 223, 106 W.C.B. (2d) 279, at para. 8; R. v. Hoang, [2013] O.J. No. 2922, 2013 ONCA 430, 107 W.C.B. (2d) 661, at para. 5.

[98] It is beyond controversy that a search incident to arrest has its genesis in a lawful arrest. No further showing of reasonable grounds for the search itself is required: Cloutier v. Langlois, [1990] 1 S.C.R. 158, [1990] S.C.J. No. 10, at p. 185-86 S.C.R. However, the search must be truly incidental to the arrest. There must be some reasonable basis for the search, for example, to ensure the safety of the public and police; to protect evidence from destruction; or to discover evidence. To be truly incidental to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. This involves both subjective and objective elements. The police must have one of the purposes for a valid search incident to arrest in mind when conducting the search. And the searching officer's belief that this purpose will be served by the search must be reasonable: R. v. Caslake, [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at paras. 19, 20 and 25.

[99] Where the justification for a search incident to arrest is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the arrest has been made: Caslake, at para. 22. A search incident to arrest may include a search of an automobile of which the arrested person is in possession, but the scope of that search will depend on several factors: Caslake, at para. 23; Polashek, at paras. 25-26.

The principles applied

[100] Leaving until later consideration of the impact of the arbitrary detention on the lawfulness of the arrest, I would not give effect to either branch of this ground of appeal.

[101] Turning first to the lawfulness of the arrest, I am satisfied that the trial judge reached the proper conclusion despite his consideration of two factors that appear to me to be irrelevant.

[102] The trial judge relied on several factors in concluding that Det. Ward had reasonable grounds to arrest the appellant:

(i) Detective Ward's evidence that he smelled raw marijuana when the appellant lowered the driver's door window of the van;

(ii) the specific attributes Det. Ward ascribed to the odour;

(iii) the experience of Det. Ward in drug, in particular, marijuana investigations;

(iv) the evidence of the officers assisting in the arrest that they too smelled marijuana; and

(v) the appellant had refused to answer Det. Ward's questions about the contents of the boxes.

[103] The trial judge stated the statutory conditions precedent to arrest without a warrant under s. 495(1)(b) of the Criminal Code were met in this case. This paragraph, unlike s. 495(1)(a), does not, in terms, require that the officer have reasonable grounds to believe that a person has committed an indictable offence. What is required is that the officer personally observe facts or events that can support a reasonably grounded belief that a person is presently committing the offence. Depending on the circumstances, an odour of fresh or raw, as opposed to burnt or smoked, marijuana, on its own, may be sufficient to ground an arrest under s. 495(1)(b).

[104] In reaching this conclusion that the arrest was lawful, the trial judge considered two factors that are irrelevant.

[105] The first, that the appellant failed to respond to Det. Ward's query about the content of the boxes, is problematic because the appellant was under no obligation to answer that question. To consider his failure to respond -- in other words, his silence -- as a factor extracts a price for the exercise of a constitutional right. But the trial judge went on to say that, excising this factor, he would reach the same conclusion.

[106] The second, that other officers who participated in the arrests also smelled marijuana, is problematic for a different reason. The olfactory observations of these officers did not figure into Det. Ward's initial determination. Detective Ward also told them of his grounds for the arrest in which the issue of raw or fresh marijuana figured prominently. The opinion of the other officers, at least as it seems to me, was not a relevant consideration in assessing whether the arrest was reasonably grounded.

[107] Despite consideration of irrelevant factors or circumstances in reaching his conclusion on this issue, I would not interfere with the conclusion the trial judge reached. Unlike in Polashek, the evidence here described the odour as that of raw or fresh marijuana, an observation that spoke to an offence that was then ongoing. The officer was experienced in drug investigations. He had participated in dismantling grow ops, something that could support an inference that he would be familiar with the smell of vegetative marijuana. And his observations were made in connection with a van filled with large sealed boxes. I would not interfere with the trial judge's conclusion on this point.

[108] The search of the single sealed carton was a lawful search incident to arrest.

[109] The single carton search took place immediately following the arrest. It involved the vehicle driven by the appellant, the vehicle from which the odour of fresh or raw marijuana emanated. The box examined was immediately behind the driver's seat, the position occupied by the appellant on arrest. There was a reasonable prospect that search of the sealed box would reveal the source of the odour, thus evidence of the offence for which the appellant was arrested. The search was minimally intrusive, the officer choosing to await issuance of a warrant to examine the several remaining identical boxes.

[110] I would reject this ground of appeal subject to what I will have to say later about the impact of the prior arbitrary detention on the lawfulness of the arrest.

Ground #3: Failure to comply with section 10(a) of the Charter

[111] This ground of appeal asserts a failure to advise the appellant of the reasons for the initial detention prior to arrest. The appellant does not suggest that he was not told of the reasons for his arrest.

[112] A brief reference to the circumstances of the initial encounter between Det. Ward and the appellant will be of service in understanding the complaint advanced.

The essential background

[113] Detective Ward was pursuing his investigation of several daytime residential break-ins when he signalled the appellant to pull over to the roadside. He approached the driver's door and asked the appellant to lower the window. From outside the vehicle, Det. Ward could see several boxes piled up in the back. When the window was lowered, the officer could smell fresh marijuana. From his observations of the odour, the boxes, the appellant's mannerisms and his failure to respond to direct questions, Det. Ward suspected that the appellant was in possession of marijuana, possibly in the boxes.

[114] Detective Ward asked the appellant for his driver's licence, insurance and ownership. The officer explained to the appellant that he wanted to be sure that he (the appellant) was entitled to operate the van, validly licensed and properly insured. Detective Ward said nothing about the break-ins or the drugs.

[115] Detective Ward awaited assistance from other officers for about seven minutes after he had returned to his truck. During that time, the appellant and his passenger remained in the van. Ward was armed, but not wearing a protective vest. He summoned assistance for his own safety.

The ruling of the trial judge

[116] The trial judge considered some authorities describing the informational duties of the police under s. 10(b) of the Charter and applied them in his determination of the claim of an infringement of s. 10(a). He was satisfied that because of Detective Ward's vulnerability, he was entitled to defer for seven minutes his obligation to tell the appellant the reasons for his detention. In the result, the trial judge was satisfied that the officer had not breached s. 10(a) of the Charter as a result of the delay.

The arguments on appeal

[117] The appellant acknowledges that delivery of the information required by s. 10(a) can be delayed because of officer safety concerns. But, the appellant says, no such concerns reasonably arose here. The occupants of the van were co-operative. They did nothing that could be construed as threatening behaviour.

[118] The respondent supports the conclusion reached by the trial judge. The smell of marijuana and the other observations made by Det. Ward were contemporaneous with the initial stop. In the usual course, it would be incumbent on Detective Ward to provide the s. 10(a) Charter advice to the occupants of the van immediately. But a reasonable delay in doing so is permissible where police safety is at risk as it was here. Detective Ward was alone. There were two men in the van. Although the officer was armed, he was not wearing a protective vest and did not have available to him all his use of force equipment. The driver was acting suspiciously. He refused to answer direct questions about his presence in the area and the contents of the sealed cartons. He was slow to provide the requested documents.

[119] The respondent points out that the delay here, solely for the purpose of police safety, was a mere seven minutes. The delay was justified. No breach has been established.

The governing principles

[120] A few brief points about the operation of s. 10(a) inform my determination of this ground of appeal.

[121] First, the substance of the right.

[122] Section 10(a) includes both temporal and substantive aspects. The beneficiaries are those who are arrested or detained. The phrase "on arrest or detention" serves not only to define the class of beneficiaries -- those arrested or detained -- but also to assist, together with the adverb "promptly", in marking out when the right accrues. The provision describes the substance of the information to be conveyed -- "the reasons" for the arrest or detention. At a minimum, s. 10(a) requires that individuals who are arrested or detained for investigative purposes be advised, in clear and simple language, of the reasons for their detention: Mann, at para. 21.

[123] A functional equivalent of the term "promptly" in s. 10(a) is the phrase "without delay", which appears in s. 10(b). There, the phrase is synonymous with "immediately", but does permit delay on the basis of concerns for officer or public safety: R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at paras. 2 and 41.

[124] The right to prompt advice of the reasons for detention is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it. But there is another aspect of the right guaranteed by s. 10(a). And that is its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. Meaningful exercise of the right to counsel can only occur when a detainee knows the extent of his or her jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, at pp. 886-87 S.C.R.

[125] To determine whether a breach of s. 10(a) has occurred, substance controls, not form. It is the substance of what an accused can reasonably be supposed to have understood, not the formalism of the precise words used that must govern. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or in the alternative, to undermine the right to counsel under s. 10(b): Evans, at p. 888 S.C.R.

The principles applied

[126] As I will briefly explain, I would not accede to this ground of appeal.

[127] For all practical purposes, the original purpose for the traffic stop -- pursuit of the residential break-in investigation -- disappeared when the odour of marijuana drifted out of the driver's window, the several sealed large cartons hoved into view; and the responses and mannerisms of the appellant bespoke "up to no good".

[128] Ideally, Det. Ward should have provided the s. 10(a) disclosure without delay when this constellation of circumstances came together. But, he was alone with two occupants of a motor vehicle that was fully operable on a residential street. Armed, but not fully protected. And concerned about his safety. A seven-minute delay before arrest and the full informational package does not amount to an infringement of s. 10(a) in these circumstances.

Ground #4: The strip search

[129] The final assertion of constitutional infringement relates to a post-arrest strip search of the appellant at the police station. The submission was advanced briefly in the appellant's factum. It requires little factual elaboration.

The essential background

[130] Police officers at the division, to which the appellant was taken after arrest, strip searched him. Det. Ward was unaware of the strip search. There is no suggestion that the strip search was not conducted in a reasonable manner.

The rulings of the trial judge

[131] The trial judge rejected the complaint summarily. In his view, since there were ample grounds to justify the appellant's arrest, "this complaint evaporates". No additional factors suggested that the strip search was not warranted.

The arguments on appeal

[132] The appellant says that the strip search was unreasonable because it was incidental to an arrest that was itself unlawful because it originated from an arbitrary detention. It necessarily follows that since a strip search can only be justified as incidental to a lawful arrest, that if the arrest itself was unlawful, the strip search is equally so. The strip search was highly intrusive and an egregious breach of s. 8 of the Charter.

[133] The respondent urges a different conclusion. The authority to conduct a strip search falls within the right to conduct a search incident to arrest. As long as the search is related to the purpose of the arrest, it will be justified. In this case, the appellant was arrested for possession of a controlled substance for the purpose of trafficking. Strip searches are warranted in such cases to discover secreted drugs and prevent their disposal.

The governing principles

[134] The principles that govern strip searches are well established and not the subject of disagreement between the parties.

[135] First, the common law search incident to arrest power includes the authority to conduct a strip search: R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83, at para. 26. But the authority to conduct strip searches is subject to limitations: Golden, at para. 26.

[136] Second, as with all searches incident to arrest, a strip search must be incident to the predicate arrest. In other words, the search must be related to the reasons for the arrest itself. For example, where the arrest is for an offence involving possession of contraband and the purpose of the search is to discover contraband secreted on the arrestee's person: Golden, at para. 92; Caslake, at para. 17.

[137] Third, strip searches must not be carried out as a matter of routine, an inevitable consequence of every arrest: Golden, at paras. 90-95.

[138] Fourth, in addition to the reasonable grounds which must underpin the arrest for it to be lawful, additional reasonable and probable grounds must also justify the strip search: Golden, at paras. 98-99.

[139] Finally, and it follows logically from the necessity of reasonable and probable grounds to justify the strip search, the mere possibility of an individual concealing evidence is not sufficient to justify a strip search to locate that evidence: Golden, at para. 94.

The principles applied

[140] As I will explain, I would give effect to this ground of appeal and hold that the strip search of the appellant was unreasonable, thus a breach of s. 8 of the Charter.

[141] To take first the trial judge's reasons for his conclusion that the strip search was not unreasonable. The trial judge concluded that since the appellant's arrest was based on reasonable grounds, the submission that the strip search was unreasonable "evaporates" in the absence of any additional grounds.

[142] As we have seen, the inquiry into the unreasonableness of a strip search is not co-extensive with the basis for the arrest to which it is said to be incident. As with all searches incident to arrest, a strip search must be for a purpose related to the arrest. But reasonable and probable grounds beyond those that justify the arrest are required to render the strip search reasonable. And where the purpose of the strip search is to discover or prevent the destruction of evidence, the mere possibility that evidence might be found falls short of what is required.

[143] From what I have said, it follows that the trial judge erred in treating as dispositive of the lawfulness of the strip search the existence of reasonable grounds for the predicate arrest. Further, to the extent that his statement [at para. 35] "[t]here were no additional factors advanced suggesting this strip search was not warranted" suggests that it was for the appellant to adduce evidence, it comes uncomfortably close to reversing the burden of proof. After all, this was a warrantless search that is presumptively unreasonable. The burden of overcoming presumptive unreasonableness lies on the Crown, not the appellant.

[144] Assuming the arrest of the appellant was lawful, the evidence adduced simply cannot support a conclusion that would sustain the strip search as lawful. In combination, the circumstances do not establish more than, if even, a mere possibility that the appellant was concealing evidence that a strip search would locate. Recall the contents of the single box searched immediately upon arrest. An industrial-size garbage bag. Large vacuum-sealed Ziploc bags, each containing what appeared to be bulk marijuana. Not apparently capable of secretion.

[145] In the result, I am satisfied that the strip search was unlawful and that the trial judge erred in concluding otherwise.

Ground #5: Admissibility of the search evidence

[146] The final ground of appeal against conviction requires a tally of the impact of the Charter infringements on the admissibility of the evidence seized by the police in their searches of the appellant, the van and the house at [number omitted] Hislop.

[147] The trial judge found a single breach of the information component of s. 10(b) when arresting officers failed to advise the appellant of his right to retain and instruct counsel until 18 minutes after his arrest. In the interim, they had examined the appellant's purse and conducted an inventory of the cash found on him on a search incident to his arrest.

The decision of the trial judge

[148] The trial judge admitted evidence of all the marijuana, cash and related paraphernalia found during the searches of the appellant, the van and the house at [number omitted] Hislop. He was satisfied that the s. 10(b) breach was neither wilful nor reckless, albeit moderately serious. The impact on the appellant's Charter-protected right was non-existent. The evidence was extremely reliable and fundamentally important to the proof of the case for the Crown.

The arguments on appeal

[149] According to the appellant, consideration of the Grant lines of inquiry should result in exclusion of the evidence of the results of the searches.

[150] The appellant says that what occurred here were serious breaches of several Charter rights protecting various interests. Arbitrary detention. An unlawful arrest. A breach of the information component of the right to counsel. An unreasonable strip search. These breaches had a profound impact on a wide variety of Charter-protected interests. The first two lines of inquiry under Grant strongly favour exclusion, a conclusion not displaced by the third.

[151] The respondent contends that should this court find reversible error in the trial judge's Charter ruling, the Grant analysis favours admissibility.

[152] The respondent says that the infringements were not serious and, in any event, attenuated by good faith. What occurred is not indicative of a systemic or flagrant disregard of the appellant's Charter rights. The search of the box in the van incident to the appellant's arrest was minimally intrusive. The delay to await a warrant reflective of good faith.

[153] The impact of the infringements on the appellant's Charter-protected rights was not significant. The appellant had a reduced expectation of privacy in a rented van that was overdue. The delay in providing s. 10(b) advice did not disadvantage the appellant who did not make any incriminating statements. Warrants were sought for the van and house and executed in a reasonable manner.

[154] The respondent points out that the third line of inquiry under Grant favours admission of the evidence. This is real evidence: 437 pounds of marijuana and $125,000 in cash. Not to mention guns and ammunition. It is reliable evidence and essential to the case for the Crown. In its absence, the case for the Crown is gutted.

The governing principles

[155] The principles that control this determination are the three lines of inquiry mandated by Grant to assess and balance the effect of admitting constitutionally tainted evidence on society's confidence in the justice system:

(i) the seriousness of the Charter-infringing state conduct;

(ii) the impact of the breach on the Charter-protected interests of the accused; and

(iii) society's interest in the adjudication of the case on its merits.

See Grant, at para. 71.

[156] The first two lines of inquiry work together. Singly and in combination they pull towards exclusion of constitutionally tainted evidence. The strength of the claim for exclusion equals the sum of the first two inquiries. The third and final inquiry resists this combined influence, pulling in the opposite direction with especial force when the evidence is reliable and crucial to the case for the Crown: R. v. McGuffie (2016), 131 O.R. (3d) 643, [2016] O.J. No. 2504, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 62; R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

[157] Where the first two lines of inquiry under Grant advance a strong case for exclusion, the third line of inquiry will rarely, if ever, tip the balance in favour of admissibility. On the other hand, where the first two lines of inquiry offer weaker support for exclusion, the third line of inquiry will almost certainly confirm the admissibility of the evidence: McGuffie, at para. 63; Grant, at para. 140. See, also, R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at paras. 81-89.

[158] Under the first line of inquiry which assesses the seriousness of the Charter-infringing state conduct, extenuating circumstances, such as the need to prevent the disappearance of evidence and good faith may attenuate the seriousness of the breach. But care must be taken to ensure that ignorance of Charter standards is neither rewarded nor encouraged and that negligence or wilful blindness does not become a proxy for good faith. Evidence that the Charter-infringing state conduct was part of a pattern of abuse tends to support exclusion: Grant, at para. 75.

[159] The second line of inquiry, which focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused evokes an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. We look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests: Grant, at paras. 76-77. The more serious the impact on the accused's Charter-protected interests, the greater the risk that admission of the evidence may signal to the public the Charter rights, high sounding as they may be, are of little avail to the citizen, thus breeding public cynicism and bringing the administration of justice into disrepute: Grant, at para. 76.

[160] Under the third inquiry, the fact that the constitutionally tainted evidence may facilitate the discovery of the truth and the adjudication of the case on the merits must be weighed against the factors favouring exclusion so that the interests of truth may be balanced against the integrity of the justice system: Grant, at para. 82; Mann, at para. 57.

[161] The inquiries directed by Grant require both fact-finding and the weighing of various, often competing interests: McGuffie, at para. 64. No overarching rule governs how the balance is to be struck: Grant, at para. 86. On appellate review, the decision to admit or exclude evidence under s. 24(2) [of the Charter] is entitled to deference, absent an error in principle, a palpable and overriding error of fact or a determination that is unreasonable: McGuffie, at para. 64.

The principles applied

[162] As I will explain, the trial judge erred in his s. 24(2) analysis. Those errors require appellate intervention and a reappraisal of the admissibility of the evidence. That reappraisal leads to an exclusion of the evidence.

[163] At the front end of any s. 24(2) analysis is a determination of the fact, nature and extent of Charter infringement. The trial judge found a single infringement -- a failure to provide the informational component of s. 10(b) immediately upon arrest. He further found that this infringement did not result in any evidence being obtained.

[164] The trial judge erred in failing to find that the traffic stop offended s. 9 of the Charter and, as a result, failed to consider its impact on the police conduct that followed and the admissibility of the seized evidence under s. 24(2).

[165] The traffic stop and subsequent detention was arbitrary, thus offended s. 9 of the Charter because it was not based on any reasonable suspicion that the occupants of the van were involved in any way in the investigation of the residential break-ins that Det. Ward was then pursuing. And it was that detection that permitted Det. Ward to smell the raw marijuana; to see the sealed boxes; and to observe the appellant's reaction to police questions. And it was these circumstances that provided Det. Ward with the grounds necessary to arrest the appellant. And it was that arrest that permitted the search incident to arrest that located the packaged marijuana in the sealed packets in the sealed cardboard box in the van. Which led to the search warrant for the van. Which led to the search warrant for the house. All of which led to the evidence that constituted the case for the Crown.

[166] It follows from what I have said that the trial judge's s. 24(2) analysis is not entitled to deference. His errors in failing to recognize the full extent of the Charter infringements that occurred here, in particular the front end arbitrary detention, led him to conduct his s. 24(2) analysis on a much more restricted basis than was required. His errors require our intervention and a reappraisal of the admissibility of the evidence.

[167] In my respectful view, a proper analysis under s. 24(2) requires exclusion of the products of the searches of the appellant, the van and the house at [number omitted] Hislop. In combination, the seriousness of the police misconduct and the strong negative impact of the breaches on the appellant's Charter-protected interests constitute an unanswerable case for exclusion. Doubtless, society has a significant interest in a trial on the merits. The evidence that is the subject of the complaints about unconstitutional conduct is reliable and crucial to proof for the case for the Crown. But society's immediate interest in an adjudication of the merits of this particular case must give way to the more important long-term interests served by its exclusion in this case.

[168] This case involves serious police misconduct. Detective Ward had no grounds to believe that the occupants of the van had anything to do with the daytime residential break-ins he was investigating. He had seen the same van with two occupants enter a garage on the street five days earlier. He concluded then that there was no connection of the van or its occupants to the break-ins. The officer was not there doing traffic enforcement and had no traffic-related reason to pull the vehicle over. The officer knew or should have known that he had no basis to signal the vehicle to stop and to detain its occupants.

[169] Detective Ward was an experienced police officer. He was not faced with a situation in which the law was uncertain or had recently changed. The controlling legal principles were well established. Little, if anything, can be offered in mitigation.

[170] A final point on the seriousness of the Charter-infringing state conduct. Evidence emerged from the officers at trial that this stop was part of a larger pattern of pulling over "suspicious" persons and asking them what they were doing in the neighbourhood. That the misconduct was part of a pattern of abuse tends to support exclusion of the evidence.

[171] The serious negative impact of the Charter breaches on the appellant's Charter-protected interests also favours exclusion. The arbitrary detention negated the appellant's personal liberty, his right to be left alone. The detention led directly to the basis for an arrest, which led to the search incident to arrest which revealed marijuana and furnished the grounds to apply for a warrant to search the vehicle and later the house where the incriminating evidence was found. In other words, there was a strong causal connection between the initial arbitrary detention and the discovery of the incriminating evidence that constituted the entirety of the case for the Crown. And we should not forget the subsequent strip search, for which there was no basis, which offends the principles laid down in Golden about a decade earlier.

[172] The first and second inquiries under Grant present a formidable case for exclusion, one beyond the capacity of the third line of inquiry to reverse.

Conclusion

[173] For these reasons, I would allow the appeal from conviction, set aside the convictions entered at trial and enter verdicts of acquittal. I do not reach the appeal from sentence.

Conviction appeal allowed.

End of Document