R. v. St. Clair, 2021 ONCA 895

COURT OF APPEAL FOR ONTARIO

DATE: 20211215 DOCKET: C66388

Feldman, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Stasky St. Clair Appellant

Counsel: Riaz Sayani, for the appellant Samuel Greene, for the respondent

Heard: June 15, 2021 by video conference

On appeal from the convictions entered on August 8, 2018 and the sentence imposed on November 23, 2018 by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury.

B.W. Miller J.A.:

Overview

[1] The appellant had been prescribed marijuana for medical purposes and was licenced to possess marijuana under the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 (the “Regulations”). When he was arrested for possession of marijuana, he produced a card issued by his licenced supplier. The arresting officer was ignorant of the Regulations and believed the card to be a fake. Search incident to arrest produced a handgun with oversized magazine and a quantity of cocaine. The appellant applied for a declaration that his rights under ss. 8 and 9 of the Charter had been violated, and that the gun and drugs be excluded from evidence.

[2] For the reasons given below, I would set aside the rulings on s. 8 and s. 9, but uphold the ruling to admit the evidence under s. 24(2). Accordingly, I would dismiss the appeal against conviction.

Background

[3] In the early morning of August 9, 2017, two police officers on routine patrol observed the appellant squaring up to four or five young men in a parking lot, and a tow truck parked in a live lane of traffic in an adjoining gas station. Concerned that a fight was about to break out, they pulled into the parking lot, causing the group of young men to disperse, and the appellant to return to his car. On speaking to the tow truck driver, they learned that the appellant had been driving recklessly, and had nearly “T-boned” the tow truck while turning into the gas station. The tow truck driver urged the officers to “go get him.”

[4] Detective Constable Kwang-Jae Lee approached the appellant’s vehicle to speak with the appellant. He could smell fresh marijuana coming from either the appellant himself or from the inside of the car. He also observed other indicia of marijuana possession and use, including grinders and loose marijuana flakes, inside the car. Det. Cst. Lee formed the opinion that the appellant was unlawfully in possession of marijuana and arrested the appellant for marijuana possession.

[5] Upon learning of his arrest, the appellant said that he had a licence for medical marijuana. The appellant then produced a plastic card issued by MedReleaf bearing the appellant’s name, date of birth, and MedReleaf patient identification number. It also stated the name of the appellant’s physician and the prescription expiry date. The card indicated the appellant was authorized to consume 3 g of marijuana per day. The card also stated:

This card, when presented in conjunction with a valid piece of government issued photo identification serves to verify that the named individual is a registered patient of MedReleaf Corp.

The front of the card displayed the MedReleaf logo with a phone number and website address.

[6] Det. Cst. Lee did not believe that the card authorized the appellant to possess marijuana. His reasons for not believing the appellant were: (1) the card looked old, faded, and dirty; (2) the card looked similar to others he had seen that falsely asserted that the bearer was legally entitled to possess marijuana – cards issued by illegal dispensaries in Toronto and from suppliers outside of Canada; (3) the circumstances looked consistent with someone using marijuana recreationally rather than medicinally – multiple grinders in view, the spread of flakes of marijuana on the centre console of the car, and Blackwood cigars sticking out of the appellant’s pants; and (4) the appellant did not produce the type of documentation the officer expected – a government issued licence bearing the appellant’s photo, a prescription from a physician or product packaging referencing a prescription. He testified that he had come across many kinds of licenses in his police career, including licenses authorizing individuals to possess items that would otherwise have been illegal, such as firearms licenses. In his opinion, the card produced by the appellant did not resemble those cards. Det. Cst. Lee did not take any further steps to determine whether and under what conditions the appellant was authorized to possess marijuana.

[7] On the date of the incident, marijuana possession remained illegal in Canada, subject to an exemption for medical use as provided by the Regulations. The regulatory framework had been revised multiple times since the medical exemption was first established. The most recent regulations had been enacted within the 12 months prior to the incident. Det. Cst. Lee testified at trial that he knew marijuana could be legally possessed for medical use, but stated that he had not read the Regulations or been briefed on them. Consequently, he was unaware of the provisions of the regulatory scheme. He testified that he had not received any training on how to identify fake cards purporting to authorize marijuana possession.

[8] On arrest, the appellant was subjected to a pat down search, and the officers located a plastic bag containing marijuana and a marijuana grinder in his pockets. There was no evidence on the voir dire as to whether this marijuana was obtained from MedReleaf. The appellant was handcuffed and detained in the police cruiser. The search of the vehicle did not produce any marijuana product packaging or copy of a physician’s prescription for marijuana use.

[9] Det. Cst. Lee’s partner then searched the appellant’s car incidental to arrest. He discovered an after-market compartment in the car containing a loaded semi-automatic handgun with an overcapacity magazine. The appellant was again placed under arrest for unlawful possession of a handgun, oversized magazine, and ammunition.

[10] The appellant was taken to the police station and strip-searched. A plastic bag containing packages of crack and powder cocaine was found between the appellant’s buttocks. The appellant was charged with possession of the cocaine for the purpose of trafficking.

[11] On a pre-trial application to exclude the gun, ammunition, magazine, marijuana, and cocaine from evidence, the appellant argued that the officer had lacked reasonable and probable grounds for arresting the appellant after being presented with the MedReleaf card, which rendered the arrest unlawful under s. 9 and the searches incident to arrest unreasonable, contrary to s. 8 of the Charter.

[12] The Crown conceded that: (1) the appellant was legally entitled to possess marijuana for medical purposes; (2) the card the appellant produced was issued to him by MedReleaf, which had a licence to distribute marijuana for medical purposes in Canada; and (3) the card’s factual statements were all correct. The appellant was authorized to possess marijuana sourced from MedReleaf.

[13] The trial judge concluded that Det. Cst. Lee’s subjective belief that the appellant possessed marijuana unlawfully did not become objectively unreasonable after the appellant produced the MedReleaf card. He found that the officer had considered the exculpatory explanation – the appellant’s assertion that he was authorized to possess marijuana, and the production of the MedReleaf card in support – and reasonably rejected it on the basis that he believed the card to be fake. The trial judge found that having disbelieved the appellant’s exculpatory explanation, Det. Cst. Lee was not required to take any further steps to find evidence that might support the appellant’s claim. He found, further, that Det. Cst. Lee would have been entitled to search the car and the accused’s person even if he had believed the appellant’s card to be genuine, because the card would not have excluded the possibility that the appellant possessed more marijuana than he was legally authorized to possess.

[14] The trial judge held in the alternative that even if the arrest had been unlawful, he would not have excluded the evidence because Det. Cst. Lee was acting in good faith and made “an honest and understandable mistake” in concluding he had grounds for the appellant’s continued detention. Although the breaches of the appellant’s Charter rights would have been significant, so was society’s interest in adjudication of the case on its merits. The trial judge concluded that a Grant analysis would have favoured admission.

Issues

[15] The appellant raised the following grounds of appeal:

1. the trial judge erred in concluding that the arrest did not become unlawful after the appellant produced the medical marijuana licence;
2. the trial judge ought to have excluded the drug and firearm evidence.

Analysis

Overview of the regulatory regime

[16] Prior to the decriminalization of the possession of marijuana for non-medical purposes in 2018, the regulatory regime governing possession of marijuana for medical purposes was continually in flux. At the time of the appellant’s arrest, possession of marijuana remained an offence, with an exemption for medical use set out by the Regulations. The Regulations were repealed in 2018 when Parliament enacted the Cannabis Act, S.C. 2018, c. 16.

[17] The Regulations established a regime in which health care practitioners could authorize persons under their professional treatment to possess and consume specified quantities of cannabis as part of that professional treatment: Regulations, ss. 3, 7, and 8. Section 7 required health care practitioners to provide a “medical document” to persons under their treatment. Section 8 required the document to set out the practitioner’s contact and professional registration number, the name and contact details of the person under their care, and the daily quantity of marijuana that the person was authorized to use over a specified time period. Section 8(4) required the medical document to be signed and dated by the practitioner providing the document.

[18] A person furnished with a s. 8 medical document authorizing use of marijuana would be eligible to apply to a licensed producer to be registered as a client of that producer: Regulations, s. 130. An applicant would be required to provide the producer with the applicant’s original medical document and certify the accuracy of the information it contained.

[19] If the applicant was accepted as a client, the producer would be required to provide the client with a “registration document” containing information including the name of the producer, the name of the client, the client’s date of birth and address, and a unique identifier number: Regulations, s. 133.

[20] The Regulations established labelling requirements to be attached to the container of the marijuana products provided to the client. This included a label stating, among other things, the name, telephone number, and email address of the producer: Regulations, s. 84(1). Additionally, the producer was required to attach a client label stating the client’s name, the name of the health care professional who provided the client’s medical document, the name of the licenced producer, and the authorized quantity as set out on the client’s medical document. The producer was also required to provide the client with a separate copy of the client label: Regulations, 87(1)(b).

[21] A person authorized to possess marijuana under the Regulations was required, on demand, to “demonstrate to a police officer that the possession or production is authorized”: Regulations, s. 15. Similarly, a licenced producer was obligated, at the request of the police, to disclose whether a person was a client of the producer and what substance and daily quantity was authorized by the medical document issued to that person: Regulations, s. 121(1).

[22] The Regulations did not specify what would constitute a sufficient demonstration that a person’s possession of marijuana was authorized.

Issue 1: the s. 8 and 9 violations

[23] As the trial judge explained, police officers have the authority, under s. 495(1) of the Criminal Code, R.S.C., 1985, c. C-46, to arrest a person without warrant if they have reasonable and probable grounds to believe the person has committed an indictable offence. The Crown bears the burden of establishing that the arrest was lawful: R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at para. 75.

[24] For the arrest to be lawful, the officer must subjectively believe there are grounds for arrest, and those grounds must be “justifiable from an objective point of view”: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 21. The officer’s belief will be objectively reasonable if a reasonable person, with the officer’s knowledge, experience and training, assessing the totality of the circumstances known to the officer at the time of the arrest, could have concluded that there were grounds to arrest the appellant: R. v. Storrey, at pp 250-51; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168; R. v. Canary, at para. 22; and R. v. Stairs, 2020 ONCA 678, 153 O.R. (3d) 32, at para. 24.

[25] The trial judge found that Det. Cst. Lee believed the appellant to have committed the offence of unlawful possession of marijuana. The issue before this court is whether the trial judge erred by finding that the officer’s belief was objectively reasonable in light of the appellant’s exculpatory explanation and production of the MedReleaf card. The trial judge’s finding is reviewable on a standard of correctness: R. v. Shepherd, [2009] 2 S.C.R. 527, at para. 20.

[26] Det. Cst. Lee was ultimately wrong in concluding that the MedReleaf Card was inauthentic, and wrong in concluding that the appellant was not licenced to possess marijuana sourced from MedReleaf. Det. Cst. Lee’s mistaken conclusions did not necessarily render his belief objectively unreasonable. An officer is entitled to rely on conclusions based on a reasonable belief that certain facts exist even if that belief turns out to be mistaken: R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40.

[27] He was also under no obligation to accept or investigate every exculpatory explanation offered by the appellant: R. v. Chehil, [2013] 3 S.C.R. 220, at para. 34, but he was obliged to consider all information before him, including the degree to which the MedReleaf card supported the appellant’s explanation, unless he had “good reason” to believe it to be unreliable: R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 21, leave to appeal refused, (1998), [1997] S.C.C.A. No. 571.

[28] As I explain below, the reasons given by Det. Cst. Lee for concluding that the appellant was unlawfully in possession of marijuana do not hold up to scrutiny. He admitted on cross-examination that what he believed to be indicia of recreational marijuana use – the presence of multiple grinders, flakes of marijuana on the console of the car, Blackwoods cigars – were equally consistent with use for medical purposes. Similarly, his reasons for concluding the MedReleaf card was “fake” – that it was old, dirty, did not have a user photo, and was similar to other fake licences in an unspecified respect – are not just incorrect, but unjustifiable. There was no explanation as to how the officer thought the physical condition of the card – old, dirty – could bear on its authenticity. Neither does the officer’s evidence that this card appeared similar to other fake cards he had seen provide good reason to believe the card was not what it purported to be. None of the specific indicia of inauthenticity that he had observed in his experience applied to this card: it was not issued by an American dispensary nor by one of the Toronto dispensaries known by Det. Cst. Lee to be operating illegally. Det. Cst. Lee’s belief that this card otherwise appeared similar to fake cards he had previously seen (based on criteria he did not articulate) presupposed that those comparators were in fact fake. But given Det. Cst. Lee’s ignorance of the content of the Regulations – and specifically the forms of documentation they contemplated – his prior judgments about the authenticity of cards he had seen did not offer a secure baseline for comparison and could not be safely relied on.

[29] Det. Cst. Lee’s final reason for believing the card to be fake was his expectation that a licenced user of marijuana would be given a government issued licence with, in his words, a government logo and photograph. This was based on an incorrect assumption about the operation of the Regulations. In reality, the Regulations did not make any provision for a formal license to be carried by the user, as, for example, the Firearms Licences Regulations, SOR/98-199 make provision for a formal license to be possessed by a person possessing a firearm. Det. Cst. Lee applied an irrelevant criterion in assessing the authenticity of the MedReleaf card.

[30] Was his mistaken belief about the state of the law nevertheless reasonable?

[31] It is important to be precise about the nature of Det. Cst. Lee’s error. This was not an error about the state of the law similar to that in R. v. Tim, 2020 ABCA 469, 21 Alta. L.R. (7th) 95, leave to appeal granted and appeal heard and reserved October 7, 2021, [2021] S.C.C.A. No. 11, where a majority of the Alberta Court of Appeal held that an officer could not be faulted for wrongly believing that a particular drug was one of the approximately 300 drugs listed on the Appendix of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Neither was it an error arising out of the competing interpretations of common law powers, or of the intricacies of applying law to novel situations. The officer was uninformed of how the Regulations functioned, and in the place of that knowledge, proceeded on the basis of what he assumed the law might be, based on what the Ontario legislature and Canadian Parliament had enacted in regulating other matters. Det. Cst. Lee made frequent reference in his testimony to his experience applying other regulatory regimes, including the firearms and prescription pharmaceutical control regimes. This experience was relied on by the trial judge to establish the reasonableness of Det. Cst. Lee’s mistaken assumption that a valid card would be government-issued with similar features.

[32] Although this chain of reasoning is relevant to the assessment of the officer’s conduct in the s. 24(2) analysis below, I do not agree that it renders his mistaken belief in the state of the law objectively reasonable. Although he was able to anticipate some aspects of the scheme – that a user would be provided with a prescription as well as personalized packaging from a licenced supplier, and this could be used to demonstrate authorized possession – he was entirely mistaken about others, particularly the government issue of a form of licence. Given the multiplicity of means that governments use to implement regulatory schemes, it was not objectively reasonable for the officer to proceed on the basis of assumptions about how the scheme might work.

The search of the car

[33] Given that the arrest was unlawful, so too was the search incident to arrest.

[34] I am not persuaded by the Crown’s argument that the search was justified because the officer needed to determine whether the appellant was in possession of more marijuana than he claimed to be entitled to possess. Such a search may have been justified if there were some reason to suspect that the appellant had more than the prescribed quantity in his possession. Here, there was no reason to suspect there was more marijuana to be found. Were the Crown’s argument accepted, it would authorize a search of any vehicles, premises, and the person of everyone asserting an authorization to possess controlled substances in limited quantities. Such a proposition has no support in the law.

[35] In summary, the trial judge erred in determining that the appellant’s arrest did not infringe his right to be free from arbitrary detention under s. 9 of the Charter, or that the search of the vehicle and of the appellant consequent to arrest were unreasonable per s. 8 of the Charter. As a consequence, both the search of the vehicle and the search of his person consequent to arrest constituted unreasonable searches per s. 8 of the Charter.

S. 24(2)

[36] The trial judge concluded that the s. 24(2) analysis established that the handgun, ammunition, magazine, and drugs discovered should be admitted into evidence.

[37] Although no deference is owed to the trial judge’s conclusion given his conclusion that there was no Charter violation, deference is owed to the factual findings he made relevant to that conclusion. Those factual findings should not be disturbed absent error in principle, palpable and overriding factual error, or an unreasonable determination. As I explain below, although I disagree with some of his analysis regarding the seriousness of the state conduct, I agree that the admission of the evidence would not, in the circumstances, bring the administration of justice into disrepute. I would dismiss the appeal on this ground.

[38] In determining whether the evidence should be excluded, the three-part inquiry mandated in R. v. Grant, [2009] 2 S.C.R. 353, at para. 71 applies: (1) the seriousness of the Charter-infringing conduct of the police, (2) the impact on the Charter-protected interests of the appellant; and (3) society’s interest in the adjudication of the case on its merits.

[39] As the Supreme Court of Canada held in Grant, at para. 70, “s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.”

Seriousness of the state conduct

[40] As the trial judge noted, at this stage of the analysis the court must consider whether the admission of the evidence would send a message to the public that courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct: Grant, at para. 72. The “more severe or deliberate the state conduct … the greater the need for courts to dissociate … by excluding [the] evidence”: Grant, at para. 72.

[41] The trial judge concluded that the arrest and the searches were performed “honestly and in good faith” and the breaches were based on “an honest and understandable mistake by the police.”

[42] I agree that the officers acted honestly and without bad faith – but an absence of bad faith does not necessarily equate to a finding of good faith: R. v. Le, [2019] 2 S.C.R. 692, at para. 147. The lack of training provided by the Toronto Police Service on the Regulations was an institutional failing. A police officer who uses his best guess at the content of Regulations, relying on his experience to form conclusions about what they likely provide, is not acting in a “manner…consistent with what [he] subjectively, reasonably, and non-negligently believe[d] to be the law”: R. v. Le, at para. 147. Viewed from the perspective of the “long-term repute of the justice system,” the officer ought to have been able to recognize the card as legitimate, ought to have understood its evidentiary value in the scheme of the Regulations, and ought to have known rather than assumed that there would be packaging and a client label associated with the marijuana in the appellant’s possession.

[43] Although the police conduct, both institutionally and individually, cannot be described as good faith, the actions of Det. Cst. Lee nevertheless lie at the less serious end of the fault spectrum. The regulations governing the use of marijuana were not static but continually in flux during this period: R. v. Spencer, [2014] 2 S.C.R. 212, at para. 77. His Charter breach was not deliberate, and Det. Cst. Lee applied what he genuinely believed the law would require based on his experience as a police officer. To a degree, his expectation of what the law would require – that the user would be provided with packaging and a prescription similar in nature to what a user of pharmaceutical drugs would be given - was correct. In this overall context, the breach is less serious. As in R. v. Omar, [2019] 2 S.C.R. 576, the trial judge’s key finding was not that the officer acted in good faith, but that the officer’s conduct fell at the less serious end of the spectrum. Accordingly, I conclude that this factor weighs towards inclusion of the evidence.

Impact of the Charter violations

[44] Under the second prong of the Grant analysis, the court must consider the extent to which the breaches impacted the Charter-protected interests of the appellant.

[45] As the trial judge rightly noted, the appellant “had a significantly reduced expectation of privacy” in his car, which supported the admissibility of the handgun, the magazine, and the ammunition.

[46] The appellant argues that the trial judge erred in his analysis of the second prong by failing to consider the additional impact of the s. 9 violation in that analysis, and that had he done so, he would have concluded that the second factor also moved towards exclusion of the handgun, magazine, and ammunition. I do not agree. There was no adjudication of the question of whether the appellant would have been able to make an adequate demonstration of his authorization to possess marijuana purchased from MedReleaf. On the evidence presented on the voir dire it is unlikely that he could have. Presentation of the card by itself – unaccompanied by the product packaging with the client label – would not likely have been accepted as sufficient. The search of the vehicle did not produce any product packaging. Under these circumstances, there could well have been grounds for arrest, notwithstanding that the appellant had a valid client card. So although the trial judge did not expressly mention the s. 9 violation in his analysis of this step of the test, considering that violation would not change the result of the analysis.

[47] The low expectation of privacy the appellant had in the motor vehicle, coupled with the unlikelihood that the appellant could have demonstrated his authorization to possess the marijuana bears on the impact of the subsequent strip search on the appellant’s Charter rights. Typically strip searches imply a serious infringement of privacy and personal dignity: R. v. Golden, [2001] 3 S.C.R. 679, at paras. 98-99. But given that the appellant would likely have been arrested in any event and subjected appropriately to a strip search after the discovery of the firearm and ammunition, the seriousness of this violation is significantly attenuated.

Truth finding function of the trial

[48] The final prong of the Grant analysis “asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant, at para. 79. The reliability and importance of the evidence are serious considerations at this phase of the analysis. Here, there is nothing in the manner in which the evidence was obtained that undermines its accuracy or the fairness of the trial. It is real evidence and highly reliable. Exclusion of it would effectively terminate the prosecution: Grant, at paras. 79-84.

[49] The trial judge was alive to these factors and found it “important to recall … that the City of Toronto and the greater Toronto area continue to be troubled by gun violence and drug trafficking – offences which seem all too frequently to be committed in tandem, and often with tragic results.” The trial judge found that exclusion of reliable evidence, essential to a prosecution of very serious offences, would bring the admission of justice into disrepute, and that this factor favours the admission of the cocaine, the ammunition, the magazine, and the handgun. I see no basis to interfere with this finding.

Conclusion on s. 24(2)

[50] The trial judge, taking all of the above factors into account, determined that the evidence ought to be admitted. Although I disagree with his characterization of the state conduct at the first stage of the analysis, I nevertheless come to the same conclusion that that step in the analysis favours admission of the evidence, and that a consideration of all the factors together in the circumstances of this case lead to the conclusion that the evidence be admitted.

DISPOSITION

[51] I would find that the trial judge erred in not finding a violation of the rights of the appellant under s. 8 and s. 9 of the Charter, but did not err in admitting the evidence under s. 24(2) of the Charter. Accordingly, I would dismiss the appeal against conviction. The appeal of sentence was not argued before us and I would dismiss the appeal of sentence as abandoned.

Released: December 15, 2021 “KNF” “B.W. Miller J.A.” “I agree. K. Feldman J.A.” “I agree. David M. Paciocco J.A.”