Court of Appeal for Ontario

Date: 2017-06-30

Docket: C59129

Judges: MacPherson, Blair and Epstein JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Zwelakhe Mhlongo Appellant

Counsel

Nathan Gorham, for the appellant

Victoria Chan and Anya Weiler, for the respondent

Hearing

Heard: May 17, 2017

On appeal from: The conviction entered on April 18, 2014 by Justice Robert J. Nightingale of the Superior Court of Justice, sitting with a jury.

Decision

R.A. Blair J.A.:

Introduction

[1] Mr. Mhlongo appeals from his conviction for possession of cocaine for the purposes of trafficking. His grounds of appeal are founded on the trial judge's refusal to exclude the evidence of cocaine and cash seized by the police during events surrounding a vehicle stop for a Highway Traffic Act ("HTA") offence.

[2] For the reasons that follow, I would allow the appeal.

Facts

[3] On July 27, 2012, the appellant was a front-seat passenger in a rental car being driven by his friend, Justin Booth. In the back seat was another friend, Glen Thomas. At approximately 7:15 p.m., the car was pulled over and stopped by P.C. James Richardson, a member of the Hamilton Police force.

[4] P.C. Richardson had parked his cruiser in an alleyway in an area in Hamilton known to be a drug area, and close to what was believed to be a "crack house". He said he noticed a black Honda vehicle (the vehicle driven by Mr. Booth) drive by him at an extremely slow rate of speed, which caught his eye, and that he noticed as well that the front passenger was not wearing his seat belt as the vehicle passed by. He pulled out behind the Honda and, after conducting a data search while following the vehicle, had reason to believe that it had unauthorized licence plates attached to it, contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8. He pulled the car over into a parking lot to investigate that infraction and called for back-up.

[5] Over the course of the next three-quarters of an hour the following series of events took place.

The Arrest of Mr. Booth

[6] As P.C. Richardson approached the Honda, the appellant got out of the car. P.C. Richardson ordered him to get back into the car, which he did.

[7] P.C. Richardson then asked the driver, Mr. Booth, for his ownership papers and driver's licence, and the passengers for their identification. Mr. Booth provided his driver's licence. The appellant provided his health card with his photo on it and the ownership and insurance documents, which were in the glove compartment. Mr. Thomas gave only a false name, orally.

[8] P.C. Richardson returned to his cruiser and, after conducting a computer search, confirmed that the licence plates on the vehicle did not belong to it. He returned to the rental car, arrested Mr. Booth and placed him in the rear of the cruiser.

[9] It was 7:25 p.m.

[10] The appellant and Mr. Thomas were then asked to get out of the vehicle while P.C. Richardson conducted a search of it. Another police officer, P.C. Michael Stone, one of the two officers who had arrived on scene in response to P.C. Richardson's call for back-up, stood nearby while the two passengers waited outside the vehicle.

The CPIC and Niche Searches

[11] Following the arrest of Mr. Booth, P.C. Richardson conducted computer checks of the passengers, using the CPIC and Niche RMS database systems.[^1] He acknowledged in cross-examination that he was conducting a criminal investigation of the appellant at this point in time, and that he did not then have any specific crime in mind. He had asked for the passengers' identification with this purpose in mind.

The Incident Regarding Mr. Thomas

[12] The CPIC and Niche searches led to an incident relating to Mr. Thomas, who had originally given the false name.

[13] As a result of running the name appearing on the appellant's health card through a CPIC check, P.C. Richardson discovered that the appellant had a criminal record. He also learned that the rear passenger was likely Glen Thomas, who was known to have a tattoo on his shoulder. If that were the case, P.C. Richardson believed that Mr. Thomas was in breach of a recognizance that prohibited him from being in the company of someone with a criminal record.

[14] By this time, it was approximately 7:48 p.m.

[15] At P.C. Richardson's direction, P.C. Stone approached Mr. Thomas and asked to see his shoulder. Upon request, Mr. Thomas revealed his shoulder tattoo. However, when P.C. Richardson then returned to the rental car and insisted that Mr. Thomas tell him his real name, Mr. Thomas took flight. P.C. Richardson and another officer gave chase, followed by P.C. Stone, telling the appellant to remain where he was. The appellant was alone for a short time after that.

[16] Mr. Thomas was caught and arrested within a minute or so of taking flight.

The Arrest of the Appellant

[17] The third part of the chronology then unfolded.

[18] When P.C. Richardson was returning from his chase of Mr. Thomas, he told P.C. Stone to detain the appellant because, although he had no specific crime in mind at the time, P.C. Richardson thought that something else might be going on besides the HTA offence. He conceded that if the appellant had in fact been detained in those circumstances it would not have been legal. However, what happened next led to the appellant's arrest on the drug offence.

[19] P.C. Stone testified that before he could detain the appellant he observed the appellant walk towards a white vehicle parked next to the rental car in the parking lot. He saw the appellant make a downward motion with his hand, as if he were throwing something on the ground under the white car. He then saw the appellant approach the driver's door of the white vehicle and ask the driver for a cigarette.

[20] P.C. Stone decided to detain the appellant so that he could retrieve the evidence of what he believed had been thrown under the car. He placed the appellant in handcuffs and told the appellant that he was being detained for further investigation. It was 7:57 p.m.

[21] P.C. Stone did not immediately conduct a search of the appellant, nor did he advise the appellant of his right to counsel. He went to the white vehicle and found a bag containing approximately 23.5 grams of cocaine under the car and a smaller bag of 0.45 grams of cocaine in the area where the appellant and Mr. Thomas had been standing.

[22] The appellant was arrested at 7:58 p.m. He was subjected to a pat-down search that yielded an iPhone, a Blackberry and $420 in cash. The appellant was advised of his right to counsel at approximately 8:00 p.m.

The Trial Judge's Disposition

[23] The appellant applied for an order excluding the evidence of the cocaine and cash, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that the police had violated his s. 8, s. 9 and s. 10(b) rights. The trial judge found a breach of s. 8 (unlawful search and seizure) and an understandably brief breach of s. 10(b) (the right to counsel), but no breach of s. 9 (arbitrary detention). In spite of finding the s. 8 and short-lived s. 10(b) breaches – but against the background of that Charter analysis – he exercised his discretion to refuse to exclude the evidence under s. 24(2). He concluded that the police had not acted in bad faith and – after balancing the criteria set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 – that the admission of the evidence would not bring the administration of justice into disrepute.

Analysis

[24] The resolution of this appeal revolves primarily around whether the trial judge erred in his s. 9 analysis. Did the detention of the appellant, initially lawful for purposes of the HTA investigation, remain lawful throughout until his arrest, as an incident of that investigation (as the trial judge concluded), or did it become unlawful the moment Mr. Booth was arrested and the HTA investigation was concluded (as the appellant contends)? The answer to this question, in turn, depends on whether the trial judge properly applied the decision of this Court in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214.

[25] If the trial judge erred in his s. 9 analysis, and the appellant was detained for criminal investigative purposes for more than 30 minutes before being given his s. 10(b) rights to counsel, the s. 10(b) analysis leads to a different conclusion as well. In the face of a breach of three Charter rights in these circumstances, the Grant analysis would favour exclusion of the evidence, in my view.

Section 9 (Unlawful Detention)

[26] The Crown conceded that the appellant was detained when P.C. Richardson told him to get back into the vehicle when he first got out immediately after the traffic stop, and he complied. Defence counsel conceded that P.C. Richardson had a valid reason to stop the vehicle and detain the driver and passengers during the investigation of the HTA offence.

[27] The trial judge agreed that, because the police had a valid reason to stop the vehicle and conduct the HTA investigation, they were justified in taking control of the driver and passengers for this purpose. The initial detention of the appellant was therefore lawful. He then considered, and rejected, the appellant's argument that the detention became arbitrary, and therefore unlawful, when the appellant was subjected to a groundless criminal investigation following Mr. Booth's arrest. Relying on this Court's decision in Harris, the trial judge concluded that the justification for the detention pursuant to the HTA investigation continued while P.C. Richardson checked the appellant's identification through the police data system. The request for the appellant's identification, in the trial judge's view, did not prolong or alter the nature of his detention.

[28] Accordingly, on the trial judge's analysis, there was no arbitrary detention of the appellant between 7:25 p.m. and 7:48 p.m., when the computer checks were completed and the officers returned to deal with Mr. Thomas. When P.C. Stone physically detained the appellant nine minutes later, he was entitled to do so in view of the information he had at the time.

[29] The trial judge therefore concluded that there was no violation of s. 9. Respectfully, I disagree.

[30] In my view, the trial judge erred in law and made palpable and overriding errors of fact in arriving at the foregoing conclusion. The error in law consisted of his misinterpretation of the principles enunciated in Harris. The errors in fact relate to his finding that the appellant's detention for criminal investigative purposes did not commence until he was detained by P.C. Stone just prior to his arrest at 7:58 p.m. On his own evidence, P.C. Richardson was satisfied at the time of Mr. Booth's arrest (based on the appellant's photo on his health card), that the appellant was who he said he was and what he (P.C. Richardson) then intended to do was to undertake a criminal investigation of the appellant through the database checks.

[31] I agree with Mr. Gorham that this Court's decision in Harris does not establish a sweeping legal principle that, once a passenger has been lawfully detained in the course of an HTA stop, the detention remains lawful for as long as it takes the police to conduct an investigation of the passengers' identity for whatever purpose. As I read it, Harris stands for the proposition that, once a passenger is lawfully detained as an incident of a proper HTA stop and investigation, and the continued detention remains otherwise lawful, the detention is not rendered unlawful by an unconstitutional request for the passenger's identification and the follow-up police check of that identification. To put it another way, the improper request for the passenger's identification for a purpose unrelated to the HTA stop and investigation will be a breach of s. 8 of the Charter, but that breach does not, itself, render a continued detention that is related to the continuing HTA investigation unlawful.

[32] There are significant differences between this case and Harris, however.

[33] Mr. Harris was a passenger in a vehicle that was stopped pursuant to a valid HTA investigation. The investigating police officer asked all occupants for identification, and did so for purposes that were not related to the HTA investigation (i.e., to conduct a general CPIC search in order to obtain information about criminal records and whether persons were on probation or bail or under some level of surveillance). The officer carried out the CPIC checks of all occupants at the same time and thus, the CPIC check of Mr. Harris and his continued detention took place while the HTA investigation was still ongoing.

[34] The trial judge in Harris found – and this finding was accepted on appeal – that "the CPIC check of the driver was enmeshed in the check of the passenger [Harris]". She also found that when the police officer asked Mr. Harris for his identification, the detention changed from lawful to arbitrary. Writing for the majority,[^2] Doherty J.A. rejected the latter conclusion and held that the continued detention of Mr. Harris during the period of time it took to complete the CPIC checks was not rendered unconstitutional simply because of the unlawful request for Mr. Harris's identification. Central to that determination was the continuing nature of the HTA investigation and the fact that the passenger check was "enmeshed" in that exercise.

[35] The following passages, from paras. 24-27 and 46 of this Court's decision in Harris, illustrate this:

The trial judge also rejected the defence submission that when Constable Lipkus returned to his vehicle to run Harris's identification through CPIC, he had already finished his investigation of the driver and could not rely on the Highway Traffic Act investigation to justify the continued detention of Harris. The trial judge held, at para. 48 that "the CPIC check of the driver was enmeshed in the check of the passenger [Harris]."

The trial judge went on to hold that when Lipkus asked Harris for identification for purposes that had nothing to do with the enforcement of the Highway Traffic Act, Harris's detention changed from lawful to arbitrary. She said, at para. 41:

... I find, however, that the characterization of the detention changed as matters unfolded. Once the officer moved beyond detaining Mr. Harris for the purposes of investigating issues relating to driving offences, Mr. Harris' detention became arbitrary.

I cannot agree that the request of Harris for identification for purposes unrelated to the Highway Traffic Act altered the constitutionality of his detention. Harris was detained by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Act violation, and Lipkus's lawful assuming of control over the movements of the passengers in the vehicle. On the trial judge's factual findings, Lipkus's request for identification did not prolong or alter the nature of Harris's detention. He remained in exactly the same position he would have been in had Lipkus questioned only the driver.

Harris's detention, that is the limitation on his personal physical freedom imposed by Lipkus's actions, was not arbitrary in the sense that it was random or without individualized cause. The detention flowed from the officer's observations of the vehicle, his decision to pursue the Highway Traffic Act investigation, and the reasonable steps he took to assume control of the occupants of the vehicle. As the trial judge observed, these observations gave Lipkus proper grounds to detain the passengers in the vehicle during the Highway Traffic Act investigation. In my view, the request that Harris identify himself, even though improper for the reasons set out below, did not render Harris's detention arbitrary.

For the reasons set out above, I do not agree that the improper questioning of Harris rendered his detention arbitrary or unlawful. Harris was lawfully detained as an incident of the Highway Traffic Act stop and investigation. The justification for that detention operated when Harris was asked for identification and continued to operate when Lipkus checked that identification through CPIC. As I do not find that Harris was arbitrarily detained when asked for identification, I do not reach the question of whether the arbitrariness of a detention automatically triggers the rights guaranteed by s. 10(b) of the Charter.

[36] In short, the request for Mr. Harris's identification (even though itself unlawful as a breach of s. 8) did not render his continued detention during the CPIC check unlawful under s. 9 because:

(i) the HTA investigation was still ongoing;

(ii) the identification request did not prolong or alter the nature of the passenger's detention; the passenger remained in exactly the same position he would have been in had the police questioned only the driver.

[37] This case is quite different.

[38] Here, the HTA investigation with respect to the unauthorized plates – the basis for the traffic stop – was completed, at least from the perspective of the appellant's involvement, once Mr. Booth was arrested. The trial judge accepted that P.C. Richardson pulled the vehicle over to investigate the unauthorized plates and that he did not ask the appellant for identification on account of the seat belt issue. P.C. Richardson acknowledged that he was satisfied as to the appellant's identification by the time of the driver's arrest, having looked at his photo on the produced health card. A police database check was not needed for that purpose.

[39] On P.C. Richardson's own evidence he returned to the cruiser to conduct the data system checks on the appellant and Mr. Thomas after the Booth arrest. He conceded that he was conducting a criminal investigation of the appellant at that time, and a groundless one at that. The following exchange from his cross-examination makes this clear:

Q. So, you were satisfied as to his identity right when you looked at the photo card, right?

A. I was satisfied with his identity. Yes, sir.

Q. All right. So, when you started running him, and that's the expression that you use when you're putting someone's name in the computer, right. So, when you were running him through these police databases, you are conducting a criminal investigation into Mr. Mhlongo, right?

A. Yes.

Q. You had no basis whatsoever to conduct a criminal investigation into Mr. Mhlongo, right?

A. I have no specific crime, if that's what you're asking?

Q. Yes.

A. At that point, no, I didn't have a specific crime.

Q. We all understand that, you know, you may have sniffed that something was going on here, and that your officer's "spidey sense", for lack of a better expression, I think you know what I mean, was maybe tingling a little bit. But you will agree that you had no real reason, no articulable basis to believe that Mr. Mhlongo was implicated in any sort of criminal activity, right?

A. At that time, no.

[Emphasis added.]

[40] In the face of that evidence, it is palpable and overriding error, in my view, to find – as the trial judge appears to have found – that the appellant was not detained for criminal investigative purposes prior to his physical detention and subsequent arrest by P.C. Stone at or around 7:58 p.m.

[41] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45, the Supreme Court of Canada clarified that a police officer may detain an individual to investigate a criminal offence "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" [emphasis added]. No such grounds existed here, either at the time of the HTA stop or at the time the police checks of the appellant were conducted following the arrest of Mr. Booth and termination of the HTA investigation.

[42] Nor can it be said – as was the case in Harris – that P.C. Richardson's request for identification "did not prolong or alter the nature of [the appellant's] detention" or that "[h]e remained in exactly the same position he would have been in had [P.C. Richardson] questioned only the driver."

[43] Had it not been for the request for identification, neither the appellant nor Mr. Thomas would have remained in detention following Mr. Booth's arrest and the termination of the HTA investigation; there would have been no CPIC or Niche search of their names; it would not have been discovered that the appellant had a criminal record, that the back-seat passenger was Mr. Thomas, and that Mr. Thomas was in breach of a recognizance by being in the company of the appellant. The entire scenario evolving from the knowledge the police obtained through the flight and arrest of Mr. Thomas to the discarding of the drugs by, and the arrest of, the appellant, would not have occurred.

[44] I am satisfied in the circumstances of this case, therefore, that the appellant's detention turned from lawful to arbitrary (and therefore unlawful) once Mr. Booth was arrested, the HTA investigation was completed from the appellant's perspective, and the subsequent investigation of the appellant for criminal act purposes commenced. His right not to be detained unlawfully, pursuant to s. 9 of the Charter, was violated. This would have been at, or very shortly after, 7:25 p.m.

[45] The unlawful detention continued until the appellant was subsequently detained after P.C. Stone witnessed him throw what turned out to be cocaine under the white vehicle – very shortly before his arrest at 7:58 p.m.

Section 10(b) (the Right to Counsel)

[46] While the Crown conceded at trial, and the trial judge found, that P.C. Stone should have provided the appellant with his right to counsel when he was detained and handcuffed at 7:57 p.m., rather than three minutes later, and following his arrest, at 8:00 p.m., the trial judge treated this violation as a brief, justifiable, and relatively inconsequential one. However, once it is determined that the appellant was detained for criminal investigative purposes when he was, as described above, the s. 10(b) analysis takes on a different complexion.

[47] Section 10(b) states that:

Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right.

[48] In R. v. Suberu, 2009 SCC 33, 245 C.C.C. (3d) 112 the Supreme Court of Canada established that the police duty to inform a detained person of his or her s. 10(b) rights "is triggered at the outset of an investigative detention" (para. 2), and (at para. 41) that:

In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately".

[49] A brief stop of a vehicle for purposes of a valid HTA investigation does not trigger s. 10(b) rights: Harris, at para. 47. That is not this case, however. Given my conclusion that the nature of the appellant's detention was transformed from a detention for valid HTA-investigation purposes to a detention for criminal investigative purposes at the time of, or very shortly after, Mr. Booth's arrest at 7:25 p.m., it follows that the police were obliged to advise the appellant of his right to retain and instruct counsel immediately thereafter. They did not do so. The appellant was not advised of his right to counsel until 8:00 p.m., over 30 minutes later.

[50] In these circumstances, it is not particularly significant whether the police violated the appellant's s. 10(b) rights by not providing him with his right to counsel at 7:57 p.m., as opposed to 8:00 p.m. He was entitled to be advised of those rights at or about 7:25 p.m. That is what constitutes the s. 10(b) violation in the circumstances of this case.

Section 8 (Protection from Unreasonable Search and Seizure)

[51] Relying on Harris and on this Court's decision in R. v. Johnson, 2013 ONCA 177, 297 C.C.C. (3d) 87, the trial judge concluded that P.C. Richardson's request for the appellant's identification for purposes of a general criminal investigation, rather than simply for valid HTA-investigation purposes, constituted a breach of the appellant's right to be protected from unreasonable search and seizure. The request for identification in circumstances of the appellant's detention pursuant to the traffic stop amounted to a warrantless seizure without reasonable cause.

[52] As Doherty J.A. explained in Harris, at paras. 40-41 and 44:

In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection.

The seizure was unreasonable. As in Mellenthin, [the police officer] had no reason to suspect Harris [the passenger] of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris's identification. The purpose of the stop did not justify an at large inquiry into Harris's background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, [the police officer] expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris's identification of himself provided the entrée into that broader and unrelated inquiry.

I conclude that Harris was subject to a seizure when he gave [the police officer] his identification. The seizure was warrantless and without reasonable cause.

[53] The Crown does not contest the trial judge's finding of a s. 8 breach.

Section 24(2)

[54] The trial judge's errors in failing to find a s. 9 breach and in failing to recognize the nature and duration of the s. 10(b) breach undermine his s. 24(2) analysis in which he concluded that the evidence of the cocaine and cash should be admitted at trial, and deprive it of the deference to which it would otherwise be entitled. In the circumstances, it falls to us to revisit the analysis. In doing so, however, I will have regard to the factual findings of the trial judge.

[55] Section 24(1) of the Charter permits a person whose Charter rights have been infringed or denied to apply to the court for a remedy. Section 24(2) provides a particular remedy: the exclusion of evidence obtained in a manner that infringed or denied a person's Charter rights, where the admission of that evidence would bring the administration of justice into disrepute.

[56] In Grant, the Supreme Court of Canada crafted the balancing analysis to be undertaken by a court in determining whether such evidence should be excluded in such circumstances. Noting, at para. 67, that the purpose of s. 24(2) is "to maintain the good repute of the administration of justice", McLachlin C.J. and Charron J., writing for the majority, summarized the appropriate approach, at para. 71, as follows:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[57] For the reasons outlined above, when balancing what have come to be known as "the Grant factors", I do so against a different Charter-violation backdrop than that considered by the trial judge. The results of the analysis differ accordingly.

Seriousness of the Charter Breach

[58] The trial judge conducted his analysis on the basis of their having been a relatively low-threshold s. 8 Charter breach and a relatively brief s. 10(b) violation. He made a finding that the police officers had not acted in bad faith or in wilful and deliberate breach of the appellant's rights, and had not attempted to mislead the court in their testimony. Given his view that detention concerns did not arise until after the appellant was seen to throw the object under the white vehicle, he was able to conclude that the seriousness of the s. 10(b) violation was diminished because the police were justified in acting as they did by the "urgency and necessity" of the situation surrounding the drug find and arrest.

[59] He therefore determined that the first Grant factor weighed in favour of inclusion of the impugned evidence.

[60] Once it is accepted, however – as I conclude – that the appellant was held, unlawfully, in investigative detention for more than half an hour, without being provided with his right to counsel during that period, and that there were therefore three consecutive Charter breaches committed – two, at least (s. 9 and s. 10(b)), quite serious in nature – the analysis points in the opposite direction, in my view.

[61] On the trial judge's analysis, the s. 8 violation was less serious than might otherwise have been the case. He concluded that P.C. Richardson reasonably believed (although perhaps mistakenly) that the appellant had not been wearing a seat belt when the Honda passed his cruiser in the alley, that he could have ticketed the appellant for that infraction (although he did not), and in those circumstances would have had a lawful means to ask the appellant for identification (although, as noted above, on the trial judge's findings, P.C. Richardson did not in fact ask the appellant for his identification on account of the seat belt issue).

[62] Looked at in isolation, this view of the s. 8 violation, on a spectrum of less serious to more serious s. 8 violations, may be less serious. However, the s. 8 violation provided the entrée to the two serious ss. 9 and 10(b) violations that followed. Once the latter violations are in the mix, the s. 8 violation cannot be viewed in isolation for purposes of the "seriousness of the breach" analysis.

[63] Two other considerations played into the trial judge's approach to that analysis. The first was his finding that the police officers had not acted in bad faith, or in deliberate or wilful breach of the appellant's Charter rights, or in an attempt to mislead the court in their testimony. The second was his view that the appellant was not detained for criminal investigative purposes until P.C. Stone physically detained and handcuffed him at 7:57 p.m.

[64] In spite of the appellant's vigorous attack on the trial judge's findings with respect to bad faith generally, the finding was open to him on the record, and I see no basis for interfering with it. I accept those findings for purposes of the s. 24(2) analysis. That said, given my conclusion that there were three consecutive Charter breaches – two of which are serious – it is also open for me to observe that the police conduct in these circumstances can fairly be described as demonstrating at least a sustained indifference to the appellant's Charter rights. I do not accept the finding of no-bad-faith as enough to tip the first Grant factor analysis in favour of admitting the evidence.

[65] It was the trial judge's failure to appreciate the presence of a s. 9 breach, and his consequent view that the appellant's s. 10(b) rights were only triggered upon his physical detention by P.C. Stone at 7:57 p.m. that were central to the trial judge's conclusions respecting the seriousness of the breaches. This is apparent from his comments at paras. 52-54 of his reasons:

In this case, there was no warrantless search of anything for the purpose of finding drugs. In fact, there was no search or unreasonable search of Mhlongo or even an attempt made to question Mhlongo or obtain incriminating evidence or statements from him. The cocaine was found only after Mhlongo himself in sight of Stone threw it away under the white car. The officer's evidence is clear that although he intended to detain Mhlongo as he approached him, he never did so until after Mhlongo himself had thrown the object under the car which turned out to be cocaine when the police officer retrieved it.

In addition, Stone obviously knew he had to act quickly to retrieve what Mhlongo had thrown under the car as the driver of that car was in it. He had just assisted when one of the passengers who ran away had to be caught and restrained and it was not unreasonable for him in all the circumstances that evening to detain Mhlongo briefly while he searched for what he had just discarded. He admits he should have given him his right to counsel when he detained him in the back of his cruiser. However, he obviously believed in the urgency of immediately retrieving what was discarded and avoid[ing] the potential of Mhlongo also leaving the scene as the rear passenger had done shortly before. There was the potential and real risk of destruction of evidence if the vehicle started to move before the police officer checked underneath it. The urgency and necessity of this police action diminishes the seriousness of the Charter violations as upon retrieving the evidence, Stone immediately placed Mhlongo under arrest and read him his rights to counsel.

There was no expectation of privacy that Mhlongo had in the discarded cocaine thrown under the car which also diminishes the seriousness of the violations.

[66] While acceptable in the context of the trial judge's approach, this analysis is of little assistance in the context of the s. 9 and much more prolonged s. 10(b) breaches. I view the unlawful detention of the appellant for purposes of a criminal investigation - in circumstances where P.C. Richardson concedes he had no basis at all for such a detention - as well toward the serious end of the breach spectrum, and the failure to provide the appellant with his right to counsel for more than half an hour after the commencement of that unlawful detention as even further along that spectrum.

[67] The first Grant factor points strongly towards exclusion of the impugned evidence, in my view.

Impact of the Breach on the Charter-Protected Interests of the Appellant

[68] Similar considerations lead me to hold that the second Grant factor also points strongly towards exclusion.

[69] The trial judge was entitled to conclude, as he did, that the appellant was not "humiliated or treated in a poor fashion" by the police, even though the events took place in a public parking lot. Prior to his arrest, he was not subjected to a search of his person, publicly. The trial judge again observed that "[a]lthough running a CPIC search on Mhlongo may have been an invasive and unwarranted search into his private personal information, there was no questioning, physical detention or search of him that lead to any incriminating evidence."

[70] The balance of the trial judge's analysis regarding the impact of the breach hinged again on his view of the relevant timing of the s. 10(b) violation and his determination that the appellant was in effect the author of his own misfortune by discarding the cocaine in sight of P.C. Stone, thereby giving up any right to privacy in it and triggering the events that logically followed its discovery.

[71] Again, I take a different view.

[72] The unlawful detention was what gave rise to the appellant's immediate right to counsel. By failing to inform him of his s. 10(b) rights, the police deprived the appellant of any meaningful opportunity to assert his legal rights during the investigative detention and, ultimately, he incriminated himself by throwing the drugs in his possession under the white vehicle. Protection against self-incrimination is an important concern underlying the s. 10(b) right: see Suberu, at paras. 40-41. Had the appellant been informed of his rights – as he should have been, at or around 7:25 p.m. – events might well have unfolded differently.

[73] It is not enough to say, as the Crown asserts, that the computer searches of the appellant's name (flowing from the s. 8 breach) were inconsequential because they yielded no incriminating evidence with respect to the drug charge or, as the trial judge found, that the appellant created his own difficulties by intentionally discarding the drugs and giving up any privacy rights in them. The right to counsel is designed to guard against the very eventuality of self-incrimination.

[74] The second Grant factor strongly favours exclusion of the evidence.

Society's Interest in Adjudication of the Case on the Merits

[75] I agree with the trial judge and Crown counsel that the third Grant factor favours admission of the evidence. The seized drugs provided real and reliable evidence and were essential to the proof of a serious crime. Society has an important interest in the adjudication of such cases on the merits.

Balancing the Grant Factors

[76] It does not necessarily follow from the foregoing that "exclusion" wins over "admissibility" by a 2:1 score, however. As Grant stipulates, "[t]he court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute" (para. 71). See also R. v. Harrison, 2009 SCC 34, 245 C.C.C. (3d) 86, at para. 36.

[77] I am satisfied, though – after considering all the circumstances and, in particular the serious s. 9 breach and the lengthy s. 10(b) breach – that the admission of the impugned evidence here would bring the administration of justice into disrepute and that, in balancing all the factors, the evidence should therefore be excluded. As Doherty J.A. said in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63: "[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility." This is consistent with the jurisprudence generally, which cautions against resorting to the third Grant factor in a systematic fashion to require the admission of reliable evidence obtained in plain disregard of an accused's Charter rights: see, for example, R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 63; Harrison, at paras. 36 and 40.

Disposition

[78] For the foregoing reasons, I would allow the appeal and set aside the appellant's conviction. Since the excluded evidence was essential to the proof of the Crown's case, I would enter an acquittal.

Released: June 30, 2017

"JCM" "R.A. Blair J.A."

"JUN 30 2017" "I agree J.C. MacPherson J.A."

"I agree Gloria Epstein J.A."

Footnotes

[^1]: The Canadian Police Information Centre (CPIC) and Niche RMS databases are available only to police. They contain not only records of criminal convictions, but can also include information about outstanding warrants, court orders, charges, police contacts and investigations relating to individuals and locations.

[^2]: McMurtry C.J.O. agreed with Doherty J.A. O'Connor A.C.J.O. concurred in the result, and with the s. 9 analysis, but differed from the majority on the s. 8 analysis.