COURT OF APPEAL FOR ONTARIO

DATE: 20231212 DOCKET: COA-22-CR-0164

Doherty, Trotter and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

David Griffith Appellant

Counsel: Chris Rudnicki, for the appellant Marie Comiskey and Andrew Choat, for the respondent

Heard: November 22, 2023

On appeal from the convictions entered on June 22, 2022 by Justice Paul B. Schabas of the Superior Court of Justice, with reasons reported at 2022 ONSC 3558.

REASONS FOR DECISION

[1] The appellant, David Griffith, was convicted of two counts of possession for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and one count of possessing the proceeds of crime contrary to s. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Griffith appeals his conviction based on the trial judge’s admission of evidence that was found to be obtained in a manner that breached the appellant’s ss. 8, 9, and 10(b) rights under the Canadian Charter of Rights and Freedoms. Initially, the appellant also appealed sentence, but he has abandoned his sentence appeal.

[2] For the reasons that follow, we dismiss the conviction appeal. The sentence appeal is dismissed as abandoned.

OVERVIEW

[3] On October 26, 2019, several police officers responded to a 9-1-1 call that someone was seen brandishing a firearm at a retail plaza. Leading these officers were Detectives Jeffrey Correia and Juan Carlos Valencia. The suspect was described as having a dark complexion, medium build, dreadlocks, wearing a blue jacket and being 5 foot, 6 inches tall and in his 30s. The suspect had entered a variety store and argued with the proprietor before lifting his jacket to show a gun tucked into his waistband. The suspect was reported to have left the variety store and was seen near a barber shop in the same plaza.

[4] Detectives Correia and Valencia arrived on the scene in plainclothes and unmarked cars. Det. Correia arrived at the scene first and observed a man with dreadlocks somewhat matching the description of the suspect. The suspect was speaking to another man. That other man was the appellant, Mr. Griffith, who was wearing a satchel and who “bore no resemblance whatsoever to the suspect.”

[5] The two men were observed standing shoulder to shoulder, speaking to each other beside a white car for about seven seconds. The two men briefly separated and then talked again for another five seconds. The suspect got into the back seat of the white car and Mr. Griffith walked away and stood with his young son in front of a nearby barber shop.

[6] When Det. Valencia arrived, Det. Correia left his car and approached the white car with his gun drawn and shouted “police” and “don’t move.” The suspect was arrested for possession of a firearm and informed of his right to counsel. Det. Valencia turned his attention to the appellant and told him that he was placed under investigative detention for possession of a firearm. The appellant did not resist. Almost immediately, Det. Correia directed Det. Valencia to place the appellant under arrest for possession of a firearm. Detective Valencia immediately did so. The appellant was handcuffed but was not provided his right to counsel immediately.

[7] Both the suspect and Mr. Griffith were subject to a pat-down search incident to their arrests. No firearm was found. Detective Valencia patted down the satchel that Mr. Griffith was carrying and felt a “hard” object in it. Det. Valencia thought that the object might be a gun. He unzipped the satchel and saw a plastic bag with what he suspected was cocaine, as well as a jar containing what looked like marijuana, which was the hard object he said he thought might have been a gun. He also found a cellphone, grinder, approximately $3,000 in cash, and what he believed to be more cocaine.

[8] Det. Valencia arrested Mr. Griffith for possession of a controlled substance and then informed him of his right to counsel. The entire interaction from initial detention to being placed under arrest and being informed of his right to counsel took about one minute.

[9] The drug seizure led to a search of Mr. Griffith’s vehicle, which yielded more drugs. After deploying police around the plaza, no firearms were found.

DECISION BELOW

[10] Several admissions were made by Mr. Griffith such that the only issues before the trial judge were whether the arrest and search of the appellant and his car were lawful and whether the resulting evidence should be excluded pursuant to s. 24(2) of the Charter.

[11] The trial judge found that the police officers had grounds to place the appellant under investigative detention, but not to arrest him. The appellant was not the subject of the 9-1-1 call and Mr. Griffith’s only connection to the suspect was that he was seen talking to him for a matter of seconds as the police pulled into the plaza.

[12] Despite seeing that Mr. Griffith was under investigative detention and the situation was calm, Det. Correia ordered the appellant placed under arrest for possession of a firearm. Det. Correia testified that he did this because he believed the appellant was “potentially in possession of a firearm.” The trial judge found that this did not constitute the reasonable grounds to believe Mr. Griffith had a firearm, that are necessary for an arrest. Therefore, the trial judge found that the appellant’s arrest was arbitrary and a breach of s. 9 of the Charter. As a result, he also found that the search was unlawful because it was tainted by the unlawful arrest.

[13] The trial judge also found that the appellant’s s. 10(b) right to counsel was breached because Mr. Griffith was not told of his right to counsel immediately upon his detention.

[14] Despite finding these breaches, the trial judge admitted the evidence that resulted from the searches under s. 24(2) based on the analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[15] On the Grant analysis’ first prong, the trial judge found that neither the s. 9 nor the s. 10(b) breach were serious, favouring admission. The seriousness of the s. 9 breaching conduct was minimized because the order to arrest the appellant, while unjustified, was done in good faith by an officer “acting in the heat of the moment in a dangerous situation.” The trial judge found that, but for the unlawful order to arrest the appellant, Det. Valencia’s pat-down search of the appellant and his satchel, would have been lawful as incidental to the appellant’s lawful investigative detention. The trial judge similarly found that the seriousness of the conduct that breached s. 10(b) was also minimized because of the short time lapse between the initial detention and when the appellant was informed of his right to counsel.

[16] On the second prong, the trial judge found that the impact of the breaches on the appellant’s Charter-protected interests did not favor exclusion. He found that the search of the appellant did not impair the appellant’s s. 8 or s. 9 Charter interests beyond what would have occurred had the officer detained the appellant for investigative detention purposes as he was entitled to do in the circumstances. Similarly, the s. 10(b) breach was found to have had little impact on Mr. Griffith’s Charter-protected interests as the evidence sought to be excluded was not obtained by reason of the violation of s. 10(b) of the Charter.

[17] On the third prong, the trial judge held that exclusion of the evidence would undermine the truth-seeking function of the justice system. And so, the public interest in a trial on the merits weighed in favour of inclusion and the evidence was admitted.

ISSUES

[18] The appellant raises two issues on appeal:

Did the trial judge err in finding that the seized evidence was inevitably discoverable because police had grounds to place Mr. Griffith under investigative detention?
Even if the evidence was discoverable, did the trial judge err in double-counting it in the Crown’s favor under the Grant analysis?

ANALYSIS

[19] The findings of the trial judge are entitled to deference. As this court stated in R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 21: “The three-prong Grant inquiry requires trial judges to find facts and engage in nuanced balancing exercises, ones that call for the weighing of numerous factors and competing interests. Strong deference is owed to determinations that arise from that process.” Absent an error in principle, palpable and overriding factual error, or an unreasonable determination, a s. 24(2) decision is entitled to deference: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.

(1) The trial judge did not err in holding that the pat-down search would have been lawful as a search incident to investigative detention

[20] The appellant conceded at trial that police had reasonable grounds to suspect that he was connected to criminal activity. He contends, however, that while Det. Valencia had the right to briefly detain him to ask about the 9-1-1 call, he did not have the authority to place him under arrest. Moreover, the appellant argues that just because Det. Valencia had the authority to place Mr. Griffith under a brief investigative detention does not mean that he had carte blanche to search his person and property.

[21] To support this, the appellant argues that a search incident to investigative detention is significantly narrower in scope than a search incident to arrest. The appellant argues that while the arrest power provides a broad authority to search to protect safety, to protect against the destruction of evidence, and to discover evidence for use at trial, investigative detention is predicated only on reasonable grounds to suspect that the individual is connected to a particular crime and that such a detention is necessary. This lower standard, it is argued, indicates a constrained search power that can only be justified to the extent that it is reasonably necessary to protect the officer or the public: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34-35, 40-45; and R. v. McKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250.

[22] The Crown argues that Det. Valencia had a reasonable suspicion that the appellant may have obtained a gun from the suspect. This reasonable suspicion grounded his authority not only to detain the appellant but to conduct a pat-down search of his person. The Crown notes that police may detain a person when they have reasonable grounds to suspect that person is connected to a particular crime and the detention is necessary to investigate that crime: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 39-46.

[23] In light of what the police knew at the time they arrived on scene, the danger posed by the potential presence of a firearm, and having observed the interaction between the suspect and Mr. Griffith, the trial judge did not err in concluding that the police had the reasonable grounds to suspect necessary to justify investigative detention. In order to ensure his safety and that of the public, Det. Valencia was entitled to conduct a pat-down search of the appellant to search for the gun. This authority extended to a pat-down search of the appellant’s satchel as well.

[24] A search incident to an investigative detention is not necessarily limited to the detainee’s person alone and may extend to other places where the police reasonably believe that a detainee could have access to a weapon that poses a risk to the safety of the officers and the public: Mann, at paras. 40-45. The precise extent of the search depends on the facts of each case: see R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, at paras. 52-58; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 34-36, 44-56; and R. v. Buakasa, 2023 ONCA 383, at paras. 32, 48-49.

[25] It was open to the trial judge to conclude that the additional step of opening the satchel was justified. The potential risk was supported by Det. Valencia feeling a “hard object” inside the satchel, the dangerous situation where a suspect threatened someone with a firearm no more than 15 minutes before, and by a person matching the description of the suspect standing next to, and talking with, Mr. Griffith moments prior.

[26] In our view, there is no basis to disturb the trial judge’s finding that the search could have been performed as incidental to the appellant’s investigative detention.

[27] In addition, the appellant urges the court to reconsider the evidence and factual findings made by the trial judge in support of his argument that a pat-down search of the satchel was not warranted given the narrow parameters of investigative detention, and that if it was, opening the satchel on the basis of feeling a hard substance was not justified. Such retrying of the case below is not the role of this court.

[28] This ground of appeal fails.

(2) The trial judge did not err in his discoverability analysis

[29] The Supreme Court in Grant set out three factors to assess and balance in applying s. 24(2):

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. (at para. 71)

[30] The appellant argues that the trial judge erred by double counting the discoverability of the evidence in the Crown’s favour in his Grant analysis. Specifically, it is argued that discoverability was wrongly considered under both the first and second prong of the Grant analysis.

[31] The appellant relies on R. v. O’Brien, 2023 ONCA 197, 424 C.C.C. (3d) 108, for the proposition that discoverability can not be used to favour of inclusion in the first and second prongs of the Grant analysis. In O’Brien, police officers infringed the defendant’s s. 8 rights by compelling him to produce passwords to his electronic devices. One device was not password-protected. The Crown on appeal argued that the fact that police did not need the password to search that device diminished the seriousness of the breach. Justice Paciocco rejected that submission: “The fact that evidence was discoverable without a breach is relevant and potentially important to the second Grant factor … but has nothing to do with the seriousness of the police misconduct”: at para. 28. The appellant argues that the trial judge made this same error.

[32] Specifically, the appellant argues that the trial judge inappropriately attenuated the seriousness of the breaching conduct because the police could have found the drugs through a lawful search pursuant to the investigative detention. The appellant focuses on the trial judge’s statement at para. 40:

However, the evidence was that Det. Valencia only did a pat-down search of Griffith looking for a weapon. As part of the pat-down search, Det. Valencia was entitled to “pat-down” the satchel worn by Griffith, which is what he did. Det. Valencia testified that before he opened the satchel, he felt something “hard” in it which alarmed him as it might have been a gun. Only then did he open the satchel and find the cocaine and glass jar with marijuana. In my view, therefore, the manner of the search was reasonable having regard to the potentially dangerous situation. But for Det. Correia’s order to place Griffith under arrest, it would have been an entirely lawful search. This minimizes the seriousness of the breach and in these circumstances the breach of s. 8 also does not favour exclusion.

[33] The appellant argues that this constitutes inappropriate double counting of the evidence’s discoverability because, subsequently, under the second prong of the Grant analysis, the trial judge recognized that the evidence would have been discovered in the absence of the Charter breaches. This is because Det. Valencia would have conducted a safety search of the appellant during his investigative detention and therefore found the drugs even without the appellant’s arrest.

[34] We do not see any application of O’Brien to the circumstances of this case. Contrary to the appellant’s submission, the trial judge did not use discoverability to weigh in favour of inclusion in the first prong of the Grant analysis. Instead, the trial judge concluded that, at para. 38: “the direction to arrest Griffith by Det. Correia, while unjustified, was an action taken in good faith by an officer acting in the heat of the moment in a dangerous situation. In my view, therefore, the breach of s. 9 of the Charter was not serious and does not favour exclusion.” The trial judge added that the search, while “technically unauthorized” as it flowed from the unauthorized arrest, was permissible had the appellant remained in investigative detention.

[35] It was this fact, and not the inevitable discovery of the evidence, that formed the basis for the trial judge’s conclusion that the breach was not serious and did not favour exclusion. The trial judge did not refer to discoverability in this section of his reasons and we do not accept the appellant’s argument that his conclusion on the first prong of Grant relied on the discoverability of the evidence.

[36] On the second prong of Grant, the impact of the breaches on the appellant’s constitutional rights, the trial judge appropriately concluded that, “the evidence was ‘independently discoverable’ and the impact is reduced.” This conclusion was available to the trial judge and did not constitute double counting for the purposes of the Grant analysis.

[37] For these reasons, we see no error in the trial judge’s Grant analysis.

[38] Because we find no error in the trial judge’s Grant analysis, there is no need to conduct the appellant’s requested fresh Grant analysis.

[39] Consequently, this ground of appeal also fails.