COURT OF APPEAL FOR ONTARIO DATE: 20210830 DOCKET: C67651

Fairburn A.C.J.O., Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mustafe Bakal Appellant

Counsel: Lance Beechener, for the appellant Jeffrey Pearson, for the respondent

Heard: February 10, 2021 by video conference

On appeal from the convictions entered by Justice John M. Johnston of the Superior Court of Justice on July 3, 2019.

Fairburn A.C.J.O.:

A. Overview

[1] In the early morning hours of August 13, 2017, a woman called 911 to report that she had just been assaulted by the appellant, Mustafe Bakal, who was her boyfriend at the time. She told the 911 operator that the appellant had just left the apartment with a firearm in the waistband of his pants. That 911 call precipitated a quick police response.

[2] With the assistance of the appellant’s cell phone service provider, Detective Constable (“D.C.”) Meredith of the Toronto Police Service (“T.P.S.”) was able to successfully track the appellant’s phone moving in an eastbound direction from Toronto toward Ottawa. The tracking information was conveyed to the Ontario Provincial Police (“O.P.P.”), who were then able to locate the appellant and his brother travelling in a vehicle on Highway 401 just east of Kingston, Ontario. The police stopped the vehicle and arrested the appellant for assault.

[3] When the vehicle was searched incident to the arrest for assault, a vacuum-sealed package of what was believed to be cocaine was located in a hidden compartment in the trunk. The police then stopped the search and obtained a telewarrant for further inspection, after which they discovered two loaded firearms hidden in a locked compartment in the centre console of the vehicle.

[4] At their trial for multiple firearm and drug related offences, the appellant and his brother alleged various violations of the Canadian Charter of Rights and Freedoms, seeking the exclusion of all evidence seized from the motor vehicle. While the appellant’s brother succeeded in that pursuit (including in relation to a serious s. 10(b) breach that the trial Crown acknowledged), the appellant did not. Ultimately, the appellant was convicted of multiple drug and firearm counts, resulting in a global custodial sentence of six years. The charges against his brother were dismissed.

[5] This appeal is predicated on three alleged errors said to have been made by the trial judge. Two of those errors are said to be rooted in the trial judge’s reasons for dismissing the appellant’s s. 8 Charter application. The appellant contends that the trial judge erred by concluding that: (1) the exigent circumstances doctrine justified the warrantless tracking of his cellular phone; and (2) the search incident to arrest doctrine justified the initial warrantless search of the motor vehicle.

[6] The third alleged error relates to what the appellant argues was the improper admission of expert evidence at trial related to drug pricing and jargon. The appellant maintains that if this court concludes that the expert evidence should not have been admitted, then acquittals must be entered because, without that evidence, the verdicts were necessarily unreasonable. Conversely, if the expert evidence was properly admissible, the appellant acknowledges that the reasonableness of the verdicts cannot be questioned.

[7] For the reasons that follow, I would dismiss the appeal.

B. The General Facts Leading up to the Police Response

[8] Shortly before 3 a.m. on August 13, 2017, the complainant called 911 to report that she had just been assaulted by her boyfriend. The complainant conveyed to the 911 operator that, after assaulting her, the appellant had left the apartment with a gun in the waistband of his pants. The complainant said that the appellant “always” carried his gun with him and, while he had threatened her with his gun in the past, he had not specifically done so that night. Rather, the appellant had told the complainant that he was going to “cho[ke] [her] and put [her] to sleep and throw [her] over the balcony”.

[9] The complainant told the 911 operator that the appellant had taken a suitcase containing her belongings with him when he left the apartment. While she did not know where the appellant had gone, she said that he had family in both Toronto and Ottawa. She also provided his cell phone number.

[10] Shortly after the 911 call was made, Constable (“Cst.”) Cicchirillo of the T.P.S. arrived at the apartment. The complainant provided him with a few additional details, including about the assault and firearm. She said that the assault occurred in the bedroom and included the appellant banging her head against the wall multiple times, pushing her onto the bed, and choking her with both of his hands. The complainant also explained that the appellant’s gun was on the bedside table during the assault and that she “didn’t want to get shot.” When asked whether the appellant threatened her with the gun, she said: “No, but it was right there at the time.” She described the gun as resembling Cst. Cicchirillo’s service firearm.

C. The Warrantless Tracking of the Appellant’s Cell Phone

(1) The Facts Leading up to the “Pinging” of the Cell Phone

[11] D.C. Meredith worked as an investigator in the Major Crime Unit of the T.P.S. While it was unusual for an investigator in that unit to be involved in a domestic allegation, D.C. Meredith got involved because of the information about the gun.

[12] After listening to the information being conveyed over the police radio and speaking with Cst. Cicchirillo (who had just spoken to the complainant), D.C. Meredith formed the view that it was critical for public safety that the appellant be located as quickly as possible. In his view, this required the use of an investigative technique known as “pinging”, a colloquial term used to refer to an exchange of signals between a cell phone tower and a cell phone. As cell phone towers only cover a certain geographical radius, the exchange of signals can provide information about the general location of the cell phone at the time the signal exchange occurs: R. v. Grandison, 2016 BCSC 1712, at paras. 64-65.

[13] Given D.C. Meredith’s opinion about the urgency of the situation, he asked a T.P.S. civilian supervisor to contact the appellant’s telecommunications provider to request the company’s assistance in “pinging” the appellant’s cell phone. The civilian supervisor declined to do so because, in his view, there was no urgency associated with finding the appellant and the matter could wait until judicial authorization had been obtained.

[14] In contrast, it was D.C. Meredith’s belief that time was of the essence: “there was a male who was unlawfully in possession of a firearm who had just committed an offence of violence while he had the firearm and it was in the public interest … and for the public safety to get the firearm and, if I didn’t, … I’d be in neglect of my duty”. Accordingly, D.C. Meredith contacted the telecommunications company himself and asked for its assistance in locating the appellant’s phone. The company agreed to assist. Over the next short while, the “pings” demonstrated that the appellant’s cell phone was moving in an eastbound direction along Highway 401. That information was conveyed to the O.P.P., allowing officers to locate the vehicle in which the appellant was travelling.

(2) The Trial Judge’s Reasons

[15] The appellant claimed at trial that his s. 8 Charter rights had been infringed when his cell phone was tracked without a warrant. He argued that there were no exigent circumstances that could justify this warrantless tracking, given that the complainant was safe and in police protection at the time that the “pinging” occurred. As there was no immediate risk of danger, the police should have been required to obtain a warrant before tracking his cell phone.

[16] The trial judge dismissed that argument, concluding that, while the complainant may well have been safe, exigent circumstances remained. Given the appellant’s history of violence, his assaultive behaviour that night, the proximity of the firearm to the acts of violence, and the placement of the firearm in the waistband of the appellant’s pants when he left the apartment, the trial judge determined that there was a strong inference that the appellant was prepared to use the firearm on short notice. In these circumstances, the trial judge concluded that exigent circumstances justified the warrantless tracking of the appellant’s cell phone in an effort to locate him.

(3) The Appellant’s Argument on Appeal

[17] For the most part, the appellant repeats on appeal the same argument he advanced before the trial judge. He maintains that, given the complainant had been moved out of harm’s way, there were no objective circumstances justifying the warrantless search. The appellant emphasizes that there was no suggestion that he used or threatened to use the gun during the alleged assault of the complainant, and he did not threaten to shoot or harm anyone after he left the apartment. Therefore, the appellant says that there was nothing that could justify a warrantless tracking of the appellant’s cell phone.

(4) Exigent Circumstances Justified the Warrantless Tracking

[18] In the normal course, the police need prior judicial authorization to track a cell phone, which in turn provides information about an individual’s whereabouts: Criminal Code, R.S.C. 1985, c. C-46, s. 492.1(2). The question for determination on appeal is whether the warrantless approach taken was justified on the basis that the police were operating in exigent circumstances. I see no error in the trial judge’s conclusion that this was the case.

[19] This warrantless search doctrine, involving as it does exigent circumstances, is not designed to promote efficiency or expediency. Rather, its singular purpose is to accommodate those situations where the state can forgo obtaining prior judicial authorization because of the urgency of the matter at hand. In particular, the police can act without prior judicial authorization where there exists an imminent threat to police safety or public safety or in circumstances where there exists a risk of imminent loss or destruction of evidence: R. v. Paterson, 2017 SCC 15, at paras. 32-33; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 52; R. v. Kelsy, 2011 ONCA 605, at para. 24.

[20] The exigent circumstances doctrine has deep roots in both the common law and statute: see e.g. Criminal Code ss. 117.02, 487.11, 529.3; Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(7). While the respondent made reference on appeal to the fact that the warrantless tracking of the appellant’s cell phone was provided for under s. 117.02(1)(b) of the Criminal Code, I will only briefly address this point as no submissions or authorities were provided to justify that suggestion.

[21] Undoubtedly, s. 117.02(1)(b) reflects an important codification of the common law exigent circumstances doctrine where firearms and other forms of weaponry are involved. It is frequently used to search motor vehicles and other locations for firearms: see e.g. R. v. T.A.V., 2001 ABCA 316, at paras. 23-26; R. v. Narayan, 2007 BCCA 429; Virgo c. R., 2013 QCCA 1114. The provision reads as follows:

Where a peace officer believes on reasonable grounds that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, … and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed. [Emphasis added.]

[22] It is not clear that the warrantless tracking of a cell phone to locate a person is provided for under s. 117.02(1)(b). Included in the list of outstanding questions would be: whether “pinging” a cell phone constitutes “evidence of the offence”; if it is evidence of the offence, whether it is evidence “likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house”; and, if these requirements were met, whether the search of one of those locations without a warrant would lead to the seizure of a “thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.”

[23] While I would not rule out the application of s. 117.02(1)(b) for purposes of the investigative technique used in this case, in my view, it would be unwise to determine the matter in the absence of submissions on the point. This is particularly true in this case given that the common law fills the void. Indeed, it is the common law that the trial judge leaned on to resolve the question of exigent circumstances at trial.

[24] I reject the appellant’s assertion that there were no exigent circumstances present because he did not pose an imminent risk to others. While the exigent circumstances doctrine should be invoked only where it is “necessary”, the factual matrix within which the decision to track the appellant’s cell phone was made met that requirement: Kelsy, at para. 35.

[25] The police are charged with the responsibility of protecting the community’s safety. To this end, what the police knew was that the appellant had just violently assaulted his girlfriend on a bed while his firearm lay next to them. The police had been informed that the appellant had a history of violence, including previously threatening his girlfriend with his gun. They also knew that he had left this highly volatile situation with his firearm in the waistband of his pants. It is against that factual backdrop that the trial judge concluded that the concerns over public safety were well-founded.

[26] The trial judge also concluded that, had there been time, the police could have obtained a tracking warrant.

[27] Section 492.1 of the Criminal Code was amended in 2015 to create two types of tracking warrants, one for the tracking of “transactions” and “thing[s]” (s. 492.1(1)) and the second for tracking “an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual” (s. 492.1(2)): Protecting Canadians from Online Crime Act, S.C. 2014, c. 31, s. 23. [1] When it comes to tracking individuals (s. 492.1(2)), a reasonable grounds standard is operative: “A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe …”. See: Robert W. Hubbard, Peter M. Brauti & Scott K. Fenton, Wiretapping and Other Electronic Surveillance: Law and Procedure, loose-leaf (2020-Rel. 76) (Aurora, Ont.: Canada Law Book, 2000), at ch. 3-13.

[28] Although not strictly necessary to the reasoning process in this case, I agree with the trial judge that, if there had been time, a tracking warrant pursuant to s. 492.1(2) of the Criminal Code could have been obtained. Indeed, the warrant likely would have been issued on the force of the complainant’s information alone. Yet the police were operating in exigent circumstances and, quite simply, did not have the time to obtain a tracking warrant.

[29] While it was suggested to D.C. Meredith in cross-examination that he could have obtained a telewarrant to track the appellant’s cell phone in 15 minutes, the officer rejected that suggestion. So did the trial judge. So do I.

[30] Section 487.1(1) of the Criminal Code allows an application for a s. 487 warrant to be made by telephone or other means of telecommunication where a peace officer believes that “it would be impracticable to appear personally before a justice”. Several other warrant provisions incorporate s. 487.1 by reference: see e.g., ss. 529.5, 487.092(4), 487.05(3), 487.01(7). Notably, s. 492.1 of the Criminal Code is absent from that list of provisions.

[31] In any event, a telewarrant is not free for the asking. To be sure, a telewarrant application carries the same degree of solemnity as an application that would be determined after being dropped at a courthouse in the light of day. While s. 487.1 provides for more flexibility in terms of how an application for a warrant is placed before a justice, it does not alleviate the normal demands placed upon an affiant in relation to preparing that application. Nor does it relieve the application justice from taking the time necessary to properly consider the application to determine whether the requested authorization should be granted.

[32] In my view, even if a telewarrant had been available for purposes of obtaining prior judicial authorization to track the appellant’s phone, the police would have been hard pressed to obtain one in the less than three hours that transpired between when it became clear that the appellant had to be located and when he actually was located a few hundred kilometres away.

[33] For all of these reasons, I would not give effect to this ground of appeal.

D. The Search of the Motor Vehicle Incident to Arrest

(1) The Facts Leading up to the Search Incident to Arrest

[34] Once it was determined that the appellant’s cell phone was travelling in an eastbound direction, D.C. Meredith contacted the O.P.P. to ask for their assistance. While D.C. Meredith said that he believed that the appellant was headed for Ottawa, he also said that “the only thing we know for sure is, he’s heading eastbound on [Highway] 401.” D.C. Meredith also said that the appellant was wanted for a domestic assault in Toronto and that a warrant would be issued for his arrest.

[35] Cst. Snider was the O.P.P. officer involved in locating the vehicle, stopping it, arresting the appellant for domestic assault, and conducting the search of the vehicle. While a cursory search was originally done at the scene, the vehicle was quickly towed to the police detachment to permit for a safer search environment.

[36] Once at the police detachment, and before continuing the search, Cst. Snider called D.C. Meredith to discuss the alleged domestic assault and to gain a better understanding of what he should be looking for within the vehicle. Cst. Snider stated that he knew that, pursuant to the search incident to arrest doctrine, he could only search for “offence-related property to the domestic assault.”

[37] While Cst. Snider knew that there was “speak of a firearm”, until he spoke with D.C. Meredith, he was unsure as to whether the firearm was “offence-related property”. He testified that D.C. Meredith told him that the firearm was “related” to the assault and that this information had been received from the “victim of the domestic assault”. The content of that discussion is clearly memorialized in Cst. Snider’s handwritten notes, which were provided as part of the record on the Charter application: “Advised firearm was related to domestic assault. Info from victim.”

[38] The call with D.C. Meredith occurred at 6:46 a.m., and the search incident to arrest at the police detachment commenced at 7:01 a.m.

[39] Recall that the complainant told the police that the appellant had taken her suitcase, which was full of her possessions. Cst. Snider testified that he located suitcases in the back of the vehicle and that one of them contained women’s clothing and a passport bearing a female’s identification.

[40] The police also located a compartment in the trunk of the vehicle. Once opened, it appeared to contain a vacuum-sealed package of cocaine. A short time later, a superior officer directed that the search be stopped and a telewarrant obtained. A number of hours later, with the telewarrant in hand, the search recommenced, and two loaded firearms were found hidden in a locked compartment in the centre console of the vehicle. Both had their serial numbers removed. One had its trigger guard removed.

(2) The Trial Judge’s Reasons

[41] The trial judge concluded that Cst. Snider subjectively believed that he was entitled to search the vehicle incident to the arrest of the appellant for assault and that it was objectively reasonable to conduct that search in the circumstances.

[42] While the trial judge acknowledged that the firearm was not “used” by the appellant in the course of the assault, he emphasized that the assault occurred in the bedroom, that the appellant had his gun on the bedside table in the same room, and that the complainant feared that she would be shot. He described the gun as being “part of the events that unfolded in the condominium in Toronto on that early morning.”

[43] The trial judge concluded that Cst. Snider was entitled to rely upon the information he had received from D.C. Meredith “as to the circumstances of the assault”, and that those circumstances formed his reasons for searching the vehicle incident to arrest. Cst. Snider was “entitled to search the vehicle for any evidence related to the assault and threats alleged by [the complainant].”

[44] The trial judge then went on to express serious concerns regarding D.C. Meredith’s credibility. The details around why that is so are beyond the scope of these reasons. What is important is that the trial judge was so concerned with D.C. Meredith’s evidence that, “[t]o the extent that” he had to rely upon D.C. Meredith’s evidence, he would only do so if it was “corroborated.” While it was true that Cst. Snider relied in part upon D.C. Meredith’s information “to form his belief that the firearm was involved in the assault”, the trial judge found that Cst. Snider was also searching the vehicle for “other offence-related evidence and not exclusively for the firearm.” According to the trial judge, Cst. Snider was “entitled to do that.” Ultimately, the trial judge concluded the following:

I do find the search was incident to the lawful arrest. The grounds formed by [Cst.] Snider, in my view, were not tainted by [D.C.] Meredith to the point that it was not a lawful search incident to arrest.

(3) The Appellant’s Position on Appeal

[45] The appellant advances two broad arguments regarding the search incident to arrest: (1) the trial judge erred by extending the search incident to arrest doctrine too far by including searches for what he describes as “collateral evidence” to corroborate a complainant’s version of events; and (2) the trial judge erred by concluding that Cst. Snider had a lawful basis to search the vehicle incident to arrest despite D.C. Meredith providing false and misleading statements to Cst. Snider.

(4) The Firearm was Related to the Assault

[46] The appellant takes issue with the following statement from the trial judge’s reasons:

While the firearm was not involved as part of the actus reus of the assault, according to [the complainant], in any event, it was present. It was evidence at the scene. The firearm may well have been evidence to corroborate the complainant[’s] version of what she claimed happened in that condominium bedroom. In other words, locating a firearm could be seen as evidence to bolster [the complainant’s] statement that the [appellant] had the handgun at the time of the assault, and the threats. Again it is clear that she is not alleging the gun itself was involved in the assault. [Emphasis added.]

[47] The appellant contends that it is a step too far to use the search incident to arrest doctrine to seize evidence that might bolster the credibility of a complainant on what the appellant refers to as collateral matters. The appellant suggests that such an extension of the doctrine would lead to unbridled warrantless search powers because virtually anything could be seen to bolster a complainant’s credibility.

[48] In support of this position, the appellant points to R. v. Caslake, [1998] 1 S.C.R. 51, at para. 22, where Lamer C.J. emphasized that for the police to search incident to arrest, “there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested” (emphasis in original). The appellant argues that the trial judge’s reasons are unfaithful to Caslake, as they improperly expand the scope of the search incident to arrest doctrine beyond its intended limit to capture all forms of evidence, not just that which is necessary to proving the offence.

[49] I reject the suggestion that Caslake, or any other authority for that matter, places the types of restrictions advocated for by the appellant upon the search incident to arrest doctrine. Before addressing why that is so, I will first address why the firearm was much more than evidence that would serve to “corroborate the complainant[’s] version of what she claimed happened in that condominium bedroom.”

[50] To be clear, the firearm was not some benign object lying on the bedside table beside the bed where the complainant was being choked. Rather, it was a deadly weapon that she had been previously threatened with and that she was afraid may actually be used during the violent assault. As before, she told the police that the firearm “was right there at the time” and that she “didn’t want to get shot”.

[51] The firearm was very clearly part and parcel of the offence, part of the physical and psychological domination taking place during the assault. While it was not “used” in the sense of being pointed at the complainant during the assault, it was plainly “related” to the assault and would be entirely relevant at a later trial for assault. It would also be entirely relevant to any sentencing proceeding that may ensue were the appellant to be convicted. Therefore, it was not merely corroborative of the complainant’s account, but fundamentally linked to the offence.

[52] In any event, I reject the suggestion that the search incident to arrest doctrine turns on the nuanced distinction the appellant draws between “collateral” and non-collateral evidence. Even if the appellant were right, and the firearm could be properly characterized as “collateral” in nature because it could only serve to bolster the complainant’s credibility, the search incident to arrest doctrine would justify its seizure.

[53] The search incident to arrest doctrine is a warrantless search power that strikes a vital balance between the privacy interests of individuals and the objectives of law enforcement: Cloutier v. Langlois, [1990] 1 S.C.R. 158; Caslake, at para. 14; R. v. Golden, 2001 SCC 83, at para. 46. There are three legitimate goals that can justify searching incident to arrest: (1) ensuring the safety of the police and the public; (2) protecting evidence from destruction; and (3) discovering evidence “of the offence for which the accused is being arrested”: Caslake, at para. 22 (emphasis in original).

[54] Cst. Snider made clear that he searched the vehicle to discover evidence. While one can imagine another officer having said that the search was done for safety, staying with Cst. Snider’s justification for the search, I will remain focused upon the evidence discovery component of the search incident to arrest doctrine.

[55] There are three conditions that must be satisfied to certify the validity of a search incident to arrest: R. v. Stillman, [1997] 1 S.C.R. 607, at para. 27. First, the arrest must be lawful: Caslake, at para. 39. There is no complaint on appeal about the lawfulness of the appellant’s arrest. Second, the search must be “truly incidental” to the lawful arrest, meaning that the search must be directed at achieving a “valid purpose connected to the arrest”: Caslake, at para. 19. And, third, any search incident to arrest must be conducted reasonably: R. v. Fearon, 2014 SCC 77, at para. 27; R. v. Saeed, 2016 SCC 24, at para. 37.

[56] Searching incident to arrest is undoubtedly an extraordinary power because: (1) it permits the police to search without a warrant; and (2) it permits the police to search in circumstances where judicial authorization might not even be available: Fearon, at para. 16. This latter observation means that, for a search incident to arrest to take place, the police need not possess the reasonable grounds that would be required to obtain prior judicial authorization: Caslake, at para. 20. Rather, all the police need is “some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable”: Caslake, at para. 25.

[57] I take the appellant to be arguing that where a search incident to arrest is directed at discovering evidence, it will only be justified where there is a real prospect of securing actual evidence of the offence that can be admitted at trial. On this basis, the appellant contends that there was nothing the police would be justified in looking for within the vehicle incident to arrest.

[58] Respectfully, I do not accept this submission. In my view, the common law animating the principles around the doctrine of search incident to arrest is clear. There is nothing in that body of jurisprudence that limits the police to searching only for evidence that is admissible at trial as going to prove an element of the offence. To the contrary, the police can search for those things that relate directly to the arrest. While those things may, from time to time, be admissible at trial as proof of the offence, when the police are searching for those things, they are not concerning themselves with questions of admissibility. Rather, as the common law directs, they are concerning themselves with whether there is a direct link between the arrest and what is being looked for.

[59] The common law makes good, practical sense – sense that can be applied on the ground in real search incident to arrest scenarios. Importantly, the common law does not expect the police to ask themselves pristine questions about the elements of an offence and how what they are looking for might tie into those elements. Nor does the common law expect the police to consider complicated questions of admissibility.

[60] Rather, the common law requires the police to ask whether the search is “truly incidental to the arrest in question”: Caslake, at para. 17. Officers must take into account all of the known information when deciding whether what they are looking for is truly incidental to the arrest. At the end of the day, what is required is that the police are able to clearly explain why they did what they did and how it was connected to the arrest. On that basis, an after-the-fact reviewer will be able to determine whether a “valid purpose connected to the arrest” was being pursued and, if so, whether it was “objectively reasonable” in the circumstances: Caslake, at paras. 19, 25.

[61] Cst. Snider understood exactly that. As Cst. Snider explained, it is precisely why he called D.C. Meredith, so that he could discuss the alleged domestic assault and gain a better understanding of what related to the arrest and, therefore, what he was entitled to look for in the vehicle. As he put it, he could only search for “offence-related property”. He was right, and he did just that.

(5) The Impact of D.C. Meredith’s False and Misleading Statements

[62] The appellant advances two arguments related to the trial judge’s adverse credibility findings as they related to D.C. Meredith.

[63] First, the appellant asserts that the trial judge’s conclusion about D.C. Meredith’s credibility should have resulted in a finding of an unlawful search because Cst. Snider based his reasons to search only upon what he was told by D.C. Meredith. I do not agree with this suggestion.

[64] The appellant’s argument conflates the rejection of a witness’s credibility on a voir dire with the need to reject everything that the witness has said on an earlier occasion. That is not so.

[65] Importantly, this is not a case where a trial judge determined that the information supplied by D.C. Meredith to Cst. Snider was inaccurate. To the contrary, and as previously discussed, it was entirely accurate and well supported in the record. While it is true that the trial judge had difficulty with D.C. Meredith’s credibility in his capacity as a witness on the Charter voir dire, those credibility findings did not touch on the accuracy of the information that D.C. Meredith conveyed to Cst. Snider. Accordingly, the trial judge was right to conclude that “[Cst.] Snider was entitled to rely on the information that he received from [D.C.] Meredith as to the circumstances of the assault, and that those formed the grounds for his belief and the grounds to search the vehicle incident to arrest.”

[66] Second, the appellant argues that, even if this court concludes that the firearm was related to the domestic assault (which I have concluded), there is nothing supporting the suggestion that D.C. Meredith knew that to be the case when he advised Cst. Snider that, as reflected in Cst. Snider’s notes, the: “firearm was related to the domestic assault. Info from victim.” It is the appellant’s position that D.C. Meredith merely invented that suggestion when he spoke to Cst. Snider and that it is pure happenstance that his invention turned out to be true. According to the appellant, the fact that it turned out to be true should not excuse that it was an invention in the first place and, therefore, the search incident to arrest should be found unlawful.

[67] I reject the suggestion that D.C. Meredith was inventing anything.

[68] The appellant emphasizes that Cst. Cicchirillo agreed with defence counsel’s suggestion in cross-examination that the firearm was “not related to the assault”. In my view, this observation on Cst. Cicchirillo’s part does not advance the appellant’s cause. The fact is that Cst. Cicchirillo’s evidence is riddled with detailed accounts about what the complainant had shared with him about the appellant’s firearm.

[69] Police officers do not provide evidence on Charter voir dires to assist the court with the law. Rather, like all witnesses, they testify to assist the court with understanding the facts and it is up to the court to settle upon the actual facts and then draw legal conclusions from them. To this end, Cst. Cicchirillo testified about facts that established the clear legal nexus between the firearm and the assault. The fact that he did not characterize the firearm as related to the assault is neither here nor there.

[70] While Cst. Cicchirillo could not recall exactly what he told D.C. Meredith, what is clear from both of their testimonies is that they spoke to each other after Cst. Cicchirillo spoke to the complainant, meaning after Cst. Chicchirillo learned the information about the firearm being related to the assault. What is also clear from Cst. Cicchirillo’s evidence is that, while he could not recall the specifics by the time of trial, he knows that he told D.C. Meredith about the firearm.

[71] Like Cst. Cicchirillo, D.C. Meredith did not have good notes about what they discussed. What D.C. Meredith recalled by the time of trial was that Cst. Cicchirillo told him that the complainant had informed him that the appellant had a firearm. While by the time of trial D.C. Meredith could not recall telling anyone that the firearm was related to the assault, Cst. Snider’s notes memorialized the fact that D.C. Meredith had done just that.

[72] Therefore, of central importance is the fact that Cst. Snider had a note memorializing what he says that D.C. Meredith told him: that the firearm was related to the assault and that that information had come from the victim. That is true; that is accurate; and that is correct. Accordingly, I reject the appellant’s suggestion that D.C. Meredith was engaged in an elaborate invention when he spoke to Cst. Snider and told him what is actually true: “Advised firearm was related to domestic assault. Info from victim.” When looked at in context, it is clear that, while this case involved some foggy police memories by the time of trial, foggy police memories do not make for Charter breaches. Rather, looked at in its full context, as the trial judge did, it is clear that Cst. Cicchirillo learned from the complainant of the nexus between the firearm and the offence and passed that information on to D.C. Meredith, who in turn passed it on to Cst. Snider. Cst. Snider then memorialized that accurate information in his notebook.

[73] Against that factual backdrop, it is clear that both Cst. Cicchirillo and D.C. Meredith will want to take better notes in the future. What is equally clear is that D.C. Meredith was not inventing anything. He simply forgot the specifics of his conversations with colleagues by the time of trial.

[74] Accordingly, Cst. Snider had lawful grounds to search the vehicle incident to arrest. As such, the appellant’s s. 8 Charter rights were not violated during the search incident to arrest of the vehicle.

E. The Expert Evidence

[75] The trial Crown proffered the expert evidence of a police officer, Detective Sergeant (“D.S.”) Canham of the O.P.P. Organized Crime Section, to testify about various subjects pertaining to drug trafficking, including drug pricing and drug jargon. The appellant opposed the admission of that evidence on the basis of D.S. Canham’s lack of training in the matter of drug jargon and the fact that he does not have “the requisite degree of expertise and the experience to offer a fair, informed, balanced and reliable opinion on the definition and meaning of language that is used by suspected drug traffickers.”

[76] At the conclusion of the voir dire, the trial judge ruled as follows:

The issue that I struggle with and have struggled with over the break is on the issue of [D.S. Canham’s] expertise in jargon and language, and whether this officer’s expertise or experience meets the threshold reliability. At the end of the day, for reasons that I am going to expand on, I do find that he meets the threshold reliability. I will allow him, therefore, to testify in both of those areas.

[77] We are informed by the parties that the reasons for this ruling do not appear to have been provided. Even so, this court has held that a failure to provide reasons for an evidentiary ruling is not fatal, “provided that the decision is supportable on the evidence or the basis for the decision is apparent from the circumstances”: R. v. Tsekouras, 2017 ONCA 290, at para. 156, leave to appeal refused, [2017] S.C.C.A. No. 225. In this case, as in Tsekouras, the absence of reasons on the ruling is not fatal on this issue. In my view, considered in the entire context, the record provides an adequate basis upon which to decide the matter.

[78] The appellant points to the fact that D.S. Canham is a member of the O.P.P., the same police service as Cst. Snider. The appellant contends that this should have been a relevant factor in determining the admissibility of the expert evidence.

[79] I do not take the appellant to be saying that, standing on its own, the fact that D.S. Canham is a member of the same police service as Cst. Snider necessarily disqualified him based on lack of impartiality. Nor could that argument be advanced: see R. v. Mills, 2019 ONCA 940, at para. 62. Whether of the same police service or not, the real question for determination is whether the expert was unable or unwilling to carry out the duties of an expert: Mills, at para. 62. Here, D.S. Canham stated that he had “zero involvement” in the investigation into the appellant, and he clearly explained his understanding that he had an obligation as an expert to “give impartial opinion.” I see no difficulty on this record with the expert being proffered from the same police service as the one that conducted the investigation.

[80] In challenging the admissibility of this expert evidence, the appellant also emphasizes that D.S. Canham did not have any specific training in the area of drug jargon. The appellant also points to the fact that evidence about drug jargon is not capable of scientific validation.

[81] Expert evidence does not need to be predicated upon years of training. From time-to-time, police officers will testify as experts on the basis of expertise that has been obtained through practical experience on the job over many years: Mills, at para. 54; R. v. Sekhon, 2014 SCC 15, at paras. 73-74, per LeBel J. (dissenting, but not on this point). While D.S. Canham had not taken a course in drug jargon, his experience with on-the-ground policing was vast, involving approximately twenty years of involvement with drug trafficking investigations. He had been working in a milieu involving drug culture for many years and had come to know the language used by those involved in its trade.

[82] Moreover, expert opinion evidence does not have to be capable of scientific validation. To make this point, I would simply adopt what Doherty J.A. said in R. v. Abbey, 2009 ONCA 624, at para. 109, leave to appeal refused, [2010] S.C.C.A. No. 125: "[m]ost expert evidence routinely heard and acted upon in the courts cannot be scientifically validated." Examples abound, including psychiatrists testifying about the existence of mental states; doctors testifying about the causes of injury or death; and accident reconstructionists testifying about the location or causes of accidents: Abbey, at para. 109. Like these types of expertise, the evidence about drug jargon cannot be supported by scientific error rates, resting as it does upon "specialized knowledge gained through experience and specialized training in the relevant field": Abbey, at para. 109; Mills, at para. 53.

[83] Finally, the appellant maintains that D.S. Canham was partial, in the sense that he was disposed to only assisting the Crown’s case, and that he did not meet the test for threshold reliability.

[84] A few examples are provided to demonstrate D.S. Canham’s alleged partiality, including the witness being confronted with and outright rejecting the suggestion that a “zip”, which he said referred to an ounce of cocaine, could in fact be an ounce of marijuana. Indeed, the expert went so far as to suggest that he did not need to check on the Internet to see whether “zip” could be used to refer to marijuana because, in his experience, “zip was a common term for an ounce of cocaine” and he’s “never heard anyone call an ounce of marijuana a zip.”

[85] In oral submissions, the appellant gave another example of what is said to be demonstrative of the expert’s lack of reliability and his partiality. At one point, the expert testified in-chief that drug prices have not changed that much over the years, only to later acknowledge in cross-examination that he did not know the price of cocaine per kilogram in some earlier years.

[86] In my view, what is referred to on appeal as examples of partiality are really just examples of the expert being unprepared to accede to suggestions put on cross-examination. While it may be true that at points the expert was dug in a little more than others experts may have been, these were all matters for the trial judge to take into account in determining the weight he would place upon the expert opinion.

[87] In the end, it was open for the trial judge to accept the expert evidence. Importantly, it did not overwhelm the inquiry. Rather, the trial judge’s reasons make it clear that he considered the expert evidence as only one piece of circumstantial evidence in arriving at his conclusion on the appellant’s guilt. This is underscored by the following passage in the trial judge’s lengthy reasons:

I do consider the expert’s evidence, particularly as it relates to the general drug chatter on the cell phones. I take into account the fact that each individual had two cell phones. I do take into account that in this day and age sometimes people have more than one phone. I take into account the quantity of cocaine that was seized. I take into account that two firearms were located, that both were loaded. I take into account that the Bakal brothers were stopped after leaving Toronto.

Taking into account all of the circumstances, the location of where the items were seized, I conclude that Crown counsel has proven beyond a reasonable doubt that both individuals in the vehicle had possession and control of both the drugs and the two firearms. [Emphasis added.]

[88] Therefore, it cannot be said that the trial judge erred by admitting D.S. Canham’s expert evidence pertaining to drug pricing and drug jargon.

[89] As this ground of appeal does not gain traction, and in accordance with the appellant’s position, there is no need to consider the argument regarding unreasonable verdicts.

F. Disposition

[90] For the reasons above, I would dismiss the appeal in its entirety.

“Fairburn A.C.J.O.”

“I agree R.G. Juriansz J.A.”

Paciocco J.A. (Concurring):

A. Overview

[91] I, too, would dismiss the appeal, but on a different basis. I agree with Fairburn A.C.J.O. that the exigent circumstances doctrine justified the warrantless tracking of Mustafe Bakal’s cellular phone, and that the expert evidence was properly admitted by the trial judge. However, unlike my colleague, I am persuaded that the trial judge erred in finding that the search of the motor vehicle incident to the arrest that led to the discovery of the handguns was lawful. In my view, the search that led Cst. Snider to find the handguns was, in fact, unconstitutional.

[92] I agree with my colleague that Cst. Cicchirillo and the police dispatcher had objective grounds linking the handgun to the assault. But that is not enough. Cst. Snider conducted the search of the motor vehicle. As a matter of law, it is Cst. Snider who required grounds for the search and he lacked objective information that could link the handgun to the assault for which Mr. Bakal was arrested. To be sure, Cst. Snider conducted the search in reliance on D.C. Meredith’s grounds, and if D.C. Meredith had the requisite grounds for the search that would have been enough. But no evidence was led during the Charter voir dire that D.C. Meredith had objective information linking the handgun to the assault for which Mr. Bakal was arrested. Indeed, the evidence was to the contrary. Unfortunately, the trial judge missed this crucial fact, and thereby erred in upholding the constitutionality of the search.

[93] Despite finding a Charter violation I would deny this ground of appeal. In my view, the repute of the administration of justice requires that the evidence obtained during the unconstitutional search of the motor vehicle be admitted.

[94] I therefore join my colleague in the outcome of her decision, but not in all her reasoning.

B. The Legal Principles

[95] Four legal principles animate my conclusion that the trial judge erred in finding that the search of the motor vehicle incident to Mr. Bakal’s arrest was lawful.

[96] First, given the intrusive and powerful authority that searches incident to arrest entail, courts are obliged to “strictly interpret” the “central guiding principle … that the search must be … truly incidental to the arrest”: R. v. Balendra, 2019 ONCA 68, at para. 44; R. v. Fearon, 2014 SCC 77, at para. 16. Of relevance to this case, “the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search”: R. v. Santana, 2020 ONCA 365, at para. 28, per Doherty J.A.; R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 21-22; 26-27. It follows that if Cst. Snider lacked the lawful authority to search the hidden compartments of the motor vehicle for evidence of the alleged assault incident to Mr. Bakal’s arrest, the search was unconstitutional. The fact that there may have been other legal avenues available to Cst. Snider for searching those hidden compartments does not change this, a point I will return to below, when determining that the evidence obtained must be excluded pursuant to s. 24(2) of the Charter.

[97] Second, a subjective/objective test applies to searches incident to arrest, including for the purpose of discovering evidence. As Cromwell J. noted in Fearon, at paras. 21-25:

[T]he police must be attempting to achieve some valid purpose connected to the arrest. That turns on what they were looking for and why. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted, and the officer conducting the search must reasonably believe that this purpose may be served by the search.

This is not a standard of reasonable and probable grounds, but simply a requirement that there be some reasonable basis for doing what the police did. For example, if the purpose of the search is to find evidence, there must be some reasonable prospect of finding evidence of the offence for which the accused is being arrested.

[In R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851] Binnie J. reiterated the important point made in Caslake and Golden that a search is properly incidental to arrest when ‘the police attempt to achieve some valid purpose connected to the arrest, including ensuring the safety of the police and the public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of the evidence’: para. 49, quoting Caslake, at para. 19. As Binnie J. put it, “[t]he important consideration is the link between the location and purpose of the search and the grounds for the arrest” … the basis of the warrantless search is not exigent circumstances, but connection or relatedness to the crime for which the suspect has been arrested … (Emphasis added.)

[98] Third, as the above passage confirms, it is “the officer conducting the search” who “must reasonably believe that” a valid purpose “may be served by the search”. When evaluating the constitutionality of the conduct of the officer conducting the search, it is not enough that others, including other police officers, may have had lawful grounds to act. The issue is whether the state agent exercising the challenged police power had the authority they purported to be exercising: R. v. Gerson-Foster, 2019 ONCA 405, at paras. 77-78.

[99] Fourth, there is an exception to the third principle just described that permits officers who do not personally have the requisite grounds, to exercise police powers on the instruction or advice of other officers who do have the requisite grounds. However, an officer who lacks the requisite grounds cannot confer authority on other officers to act lawfully: R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 1166-1167; Gerson-Foster, at para. 84. As noted by the majority in R. v. Ahmad, 2020 SCC 11, at para. 32, “[T]he hunch or ‘mere suspicion’ of one police officer cannot become something more simply because it was shared with other officers”.

[100] To illustrate this fourth point in the context of this case, even if Cst. Snider personally lacked the objective grounds for the search he conducted, it would have sufficed if D.C. Meredith had the requisite grounds since Cst. Snider was conducting the search at D.C. Meredith’s behest. The problem is that D.C. Meredith did not have the requisite grounds.

C. The Requisite Objective Knowledge Was Lacking

(1) Cst. Snider’s Grounds

[101] Cst. Snider testified that his purpose in searching the motor vehicle incident to arrest was to discover evidence of the offence for which Mr. Bakal was arrested, namely, the alleged domestic assault. In law, he could search only for items he reasonably believed to be linked to that assault. It is evident from his testimony that Cst. Snider understood this.

[102] At the time of the initial roadside search, Cst. Snider had only “minimal information” that he obtained from the “call for service”, specifically, that Mr. Bakal was in possession of a semi-automatic handgun as well as several kilograms of cocaine, and that an arrest warrant would be issued for a domestic assault which had happened in Toronto. Although there was “speak of a firearm” Cst. Snider had no information as to whether the handgun was “offence-related property” linked to the alleged assault. Indeed, when testifying about his knowledge at the time of the roadside search about the role, if any, that the handgun played in the assault he said, “[t]he information on that is still not clear in regards to the firearm, if it’s offence-related property or what the status of that is.” At this point, Cst. Snider clearly lacked the objective grounds to search for the handgun as evidence of the assault for which Mr. Bakal was arrested.

[103] Cst. Snider testified that after Mr. Bakal was arrested and the vehicle was impounded and brought to the police detachment, he “want[ed] to gain a better understanding of what [he would] be looking for within the confines of the vehicle”. He therefore contacted D.C. Meredith, who had sought the assistance of the OPP in arresting Mr. Bakal. During their conversation, D.C. Meredith advised Cst. Snider that “the firearm was believed to potentially have been related to the domestic assault, information from the victim”. However, in his testimony Cst. Snider confirmed that he was not told that the handgun had been used in the commission of the offence, or that it had been present during the assault.

[104] Simply put, Cst. Snider was aware that D.C. Meredith believed, based on unspecified information from the complainant, that the handgun was potentially related to the assault. But even after speaking personally to D.C. Meredith, Cst. Snider had no specific information supporting the reasonableness of that belief.

[105] Armed with knowledge that D.C. Meredith was of the view that the handgun was potentially related to the assault, Cst. Snider proceeded to search for the handgun. He conducted a more intrusive search of the motor vehicle, including by forcefully opening the two hidden compartments that had been discovered. [2] The handgun that Cst. Snider was searching for was found along with another handgun in the second compartment that had been forcibly opened.

(2) D.C. Meredith’s Grounds

[106] Although Cst. Snider personally lacked objective information linking the handgun to the assault, he was entitled to rely on D.C. Meredith’s grounds in searching for the handgun, but only if D.C. Meredith had the requisite grounds. However, there is no evidence that D.C. Meredith had an objective basis for believing that the handgun was evidence of the assault. To be sure, D.C. Meredith did testify that he believed that the handgun had been used during the domestic assault, but that conclusory statement, even if credited, affirms only his subjective belief, not the objective foundation for that belief. An examination of D.C. Meredith’s evidence shows that he lacked a reasonable or objective basis for his subjective belief that the handgun was potentially related to the domestic assault.

[107] Specifically, D.C. Meredith testified that he had received information “over the air” that the complainant was assaulted by Mr. Bakal and that he “banged her head against the wall, punched her in the face and choked her”. He provided no evidence about having been told that a handgun was used in the assault or was present when the assault occurred.

[108] D.C. Meredith also testified that he had received information over the air that Mr. Bakal was seen walking away from the complainant’s apartment, and that he was in possession of two suitcases and a handgun and a quantity of cocaine. This information provided D.C. Meredith with a sound basis for concluding that Mr. Bakal had a handgun with him when he left the apartment, but no basis for reasonably inferring that the handgun was linked to the assault.

[109] Based on his testimony, this is the total of what D.C. Meredith knew. He testified explicitly that he did not believe he received any further information from Cst. Cicchirillo. He also said that when he attended at the scene he was not following through with the details of the assault. When asked if he inquired whether the handgun had been used in the commission of the assault he said, “no”, and he gave the same answer when asked if he had inquired into whether Mr. Bakal had possession of the handgun during the assault. When pressed again on whether he asked Cst. Cicchirillo, “look, did this firearm have anything to do with the assault?”, D.C. Meredith replied, “I don’t recall if I did, no.” He also agreed with the suggestion that he did not know even when testifying whether the handgun was related to the assault.

[110] Simply put, at no point did D.C. Meredith testify to having any knowledge relating to any role that the handgun played in the assault.

[111] In my view, Cst. Cicchirillo’s testimony that he told D.C. Meredith that there was “the possibility of a handgun in play” cannot be relied upon to conclude that D.C. Meredith had a reasonable basis for inferring that the handgun was linked to the assault. Cst. Cicchirillo’s reference to a handgun “in play” is simply too obscure to have reasonably enabled D.C. Meredith to infer that the handgun was linked to the assault.

[112] Indeed, when Cst. Cicchirillo’s evidence about telling D.C. Meredith that there was a handgun “in play” is read in context it becomes clear that Cst. Cicchirillo was testifying that he told D.C. Meredith that there was a handgun “in play” in the community, not that the handgun had been “in play” in the assault. I say this for three reasons.

[113] First, when the entire answer Cst. Cicchirillo gave relating to the handgun being “in play” is considered, it is apparent that he was telling D.C. Meredith that the handgun was in play in the community. Specifically, he said:

We were discussing what was – what was – we were discussing the possibility of a handgun in play and someone – I mean, [the] possibility of someone having a handgun in public basically is a concern (Emphasis added.)

[114] Second, when asked during cross-examination whether he told D.C. Meredith anything “beyond the fact that [Mr. Bakal] had [a handgun] at some point and that it was black”, Cst. Cicchirillo testified, “that’s it. I just told him he had a gun, she says he had a gun”. Cst. Cicchirillo’s answer is consistent with his having told D.C. Meredith that the handgun was in play in the community and is inconsistent with the suggestion that he told D.C. Meredith that it was in play during the assault.

[115] Third, when asked specifically if he told D.C. Meredith what the complainant said about the gun being located on the table while the assault was underway, Cst. Cicchirillo answered, “no”. Once again, this answer is consistent with his having told D.C. Meredith that the handgun was in play in the community, but it is not consistent with the suggestion that he told D.C. Meredith the handgun was in play during the assault.

[116] I am therefore persuaded that on the evidence presented during the Charter voir dire, the Crown failed to establish that D.C. Meredith had the objective basis required to support a search for the handgun incident to arrest.

(3) Conclusion on the Objective Grounds

[117] In my view, the Crown failed to establish that either the searching officer, Cst. Snider, or the directing officer, D.C. Meredith, had an objectively reasonable basis linking the handgun to the assault.

[118] With respect, I cannot accept my colleague’s view that it can be inferred that the officers exchanged the objective foundation for the search but had foggy memories about having done so. The Crown bore the burden of establishing the reasonableness of this warrantless search. It is inconsistent with the Crown’s burden to infer that forgotten evidence would have supported the Crown’s position. The absence of evidence of the objective basis for a warrantless search, whether attributable to forgotten memories or not, is a basis for allowing the Charter challenge, not for defeating it.

[119] Indeed, as I have described, the inference that the officers must have exchanged the objective information that Cst. Cicchirillo possessed is inconsistent with the affirmative evidence.

[120] It was therefore unlawful for Cst. Snider to open the hidden compartments to search for the handgun incident to Mr. Bakal’s arrest for assault.

D. The Trial Judge’s Decision

[121] The trial judge nonetheless upheld the search for the handgun as a lawful search incident to arrest. I see ambiguity in his reasons. The trial judge said that “[Cst.] Snider was entitled to rely on the information that he received from [D.C.] Meredith as to the circumstances of the assault, and that those formed the grounds for his belief and the grounds to search the vehicle incident to arrest”. This passage suggests that the trial judge relied upon D.C. Meredith’s grounds to support Cst. Snider’s search. But after addressing credibility problems with D.C. Meredith’s evidence, the trial judge appears to have upheld the search for the handgun not based on Cst. Snider’s reliance on D.C. Meredith’s grounds, but because Cst. Snider was searching for “other offence-related evidence” when he found the handgun. Specifically, the trial judge said:

Notwithstanding my concern about [D.C.] Meredith’s evidence, I do accept that [Cst.] Snider had grounds incident to arrest to search the vehicle. It is true that [Cst.] Snider did rely in part on [D.C.] Meredith’s information to form his belief that the firearm was involved in the assault. However, [Cst.] Snider also testified that he was searching the vehicle for other offence-related evidence and not exclusively for the firearm. In my view, he was entitled to do that. There was a connection, subjectively and objectively.

[122] Neither line of reasoning withstands scrutiny. If the trial judge upheld the search based on Cst. Snider’s reliance on D.C. Meredith’s grounds, he erred in failing to consider whether D.C. Meredith had an objective basis for his belief that the handgun was linked to the assault. As I have explained, no such grounds existed.

[123] Alternatively, if the trial judge concluded that Cst. Snider had the requisite grounds because he was conducting a search for other offence-related evidence when he found the handgun, this too would have been in error. For a search incident to arrest to be valid there must be a “link between the location and purpose of the search and the grounds for arrest”: R. v. Nolet, 2010 SCC 24, at para. 49 quoted in Fearon, at para. 25 (emphasis added). Therefore, police may only search a place for evidence incidental to an arrest if they reasonably believe that they will find such evidence in the place searched: Fearon, at para. 21; R. v. Rutten, 2006 SKCA 17, at para. 30. As indicated, the handguns were found in a hidden compartment in the motor vehicle. Although there was a reasonable basis for believing that cocaine or handguns could be found in the hidden compartments that were forcibly opened, recall that Cst. Snider purported to justify his search as a search for evidence incidental to the assault for which Mr. Bakal was arrested. There was no reasonable basis for believing that evidence linked to the assault, such as the female clothing Cst. Snider referred to, would have been secreted inside a hidden compartment. In my view, the seizure of the handguns cannot be upheld based on the theory that Cst. Snider was searching for offence-related property when he found them, and the trial judge erred in finding to the contrary.

E. Section 24(2)

[124] Although the search for the handgun was contrary to s.8 of the Charter, I would not remedy that breach by excluding the evidence. The balancing of the three factors identified in R. v. Grant, 2009 SCC 32 requires that the evidence, including the handguns and the cocaine, be admitted into evidence in Mr. Bakal’s prosecution.

(1) The Seriousness of the Violation

[125] The first Grant factor concerns the seriousness of the Charter-infringing state conduct, a determination that is heavily influenced by the state of mind of police officers relating to the Charter breach. The strongest pro-exclusionary factor is the trial judge’s finding that D.C. Meredith gave “disingenuous, if not downright deceitful” testimony during the Charter voir dire. This reprehensible behaviour strikes at “the integrity of the judicial system and the truth-seeking function of the courts” which “lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter” and this significantly aggravates the seriousness of the Charter breach: R. v. Harrison, 2009 SCC 34, at paras. 26-27; R. v. Pino, 2016 ONCA 389, at paras. 102-103. However, whether dishonest testimony during a Charter voir dire will lead to exclusion depends on all the circumstances: R. v. Lai, 2019 ONCA 420, at paras. 36-37. In this case, three factors mitigate the need for the court to dissociate itself from such behaviour by excluding the evidence.

[126] First, the false testimony was not about the search for the handguns, the legal issue now under consideration. Specifically, the trial judge found that D.C. Meredith “was not forthright in his testimony related to whether he had knowledge that Mustafe Bakal left the condominium in Toronto with cocaine”. Although D.C. Meredith was found to have misled the court on this issue because he believed it had some relevance to the Charter application, that lie did not relate to the issues now under consideration.

[127] Second, and more importantly, Cst. Snider, who conducted the search, clearly did so in good faith, which reduces the taint of D.C. Meredith’s behaviour: R. v. James, 2016 ONSC 4086, at paras. 47, 49.

[128] Third, there were legal avenues available that would have permitted the officers to search for the handgun, had those legal avenues been used. As my colleague intimates, a search incident to arrest for the firearms may have been justifiable for officer safety or on the same exigent circumstances that permitted the motor vehicle to be tracked to the location where the initial search occurred. Indeed, there is authority suggesting that a search incidental to arrest may be conducted for evidence “which may … assist [the police] in their determination as to whether the arrested person should be held”: R. v. Lim, [1990] 1 C.R.R. (2d) 136, at para. 31, per Doherty J., as he then was, aff’d (1993), , 12 O.R. (3d) 538. In this case, possession of a firearm in a car while leaving the scene of a domestic assault would certainly have informed that decision.

[129] I am not suggesting that the availability of Charter-compliant means to secure unconstitutionally obtained evidence will always mitigate the seriousness of the breach. Rather, if police knowingly use illegal means to search in order to forgo legal avenues, the breach will be undertaken in bad faith and this will aggravate the seriousness of the breach: R. v. Buhay, 2003 SCC 30, at para. 63; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 76; R. v. Côté, 2011 SCC 46, at para. 82. Where, however, the failure to pursue Charter-compliant means to secure unconstitutionally obtained evidence arises from the non-negligent failure of the police to know the law, the availability of those means can mitigate the seriousness of the breach: R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at paras. 43-44.

[130] Although the breach remains serious because of D.C. Meredith’s “disingenuous, if not downright deceitful” testimony and his failure to take the modest investigative steps necessary to ensure that there were proper grounds to encourage a search for the handgun, this is the only Grant factor that offers any support for exclusion.

(2) The Impact of the Breach

[131] The second Grant factor, the impact of the breach on Mr. Bakal, does not offer any such support. Mr. Bakal did not have a reasonable expectation of privacy in the place that was searched, namely, the motor vehicle. Although that search was aggressive, causing damage to the motor vehicle, it was not Mr. Bakal’s motor vehicle that was impacted. The impugned search did not touch upon Mr. Bakal’s person or property, other than to rid him of possession of a handgun he could not legally possess.

(3) Society’s Interest

[132] The third Grant factor focuses on society’s interest in the adjudication of the case on its merits. This factor works decidedly in favour of inclusion. The charges are serious, the evidence is reliable, and its exclusion will entirely gut the Crown’s case.

F. Conclusion

[133] In the circumstances, I am persuaded that the admission of the unconstitutionally obtained evidence would not bring the administration of justice into disrepute. It would therefore be improper to exclude it.

[134] Accordingly, I would reject this ground of appeal.

Released: “August 30, 2021 JMF”

“David M. Paciocco J.A.”

[1] Notably, s. 487.11 of the Criminal Code allows for warrantless tracking in exigent circumstances: see, Kelsy, at para. 27; R. v. Chuhaniuk, 2010 BCCA 403, at para. 68. The difficulty is that s. 487.11 has not kept stride with the amendments to s. 492.1, meaning that it does not make reference to what is now s. 492.1(2), the provision that allows for the tracking of an individual’s movements. Section 487.11 reads: “A peace officer … may … exercise any of the powers described in … s. 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant” (emphasis added). The respondent does not rely upon s. 487.11 as providing a statutory basis for the exercise of exigent circumstances in this case, presumably because it does not make reference to s. 492.1(2).

[2] Although a telewarrant was secured after cocaine was found in the first hidden compartment that had been forced open, the trial judge upheld the search for the handgun based on the search incident to arrest.