R. v. Hanif

Court Information

Court File No.: Kitchener 13-6747
Date: April 21, 2015
Court: Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

Shazam Hanif

Before: Justice G. F. Hearn

Heard on: December 9 and 10, 2014, January 6 and February 27, 2015

Reasons for Judgment released on: April 21, 2015

Counsel

Mr. R. Prendiville — counsel for the Crown

Mr. D. Witmer — counsel for the defendant Shazam Hanif

HEARN J.:

BACKGROUND

1Shazam Hanif has entered pleas of not guilty to counts of possession of a prohibited weapon and possession of cannabis marihuana for the purpose of trafficking. The events leading to the charges took place on November 7, 2013. The accused entered his pleas on December 9, 2014 and the matter has proceeded to trial thereafter, ultimately being reserved to today's date for judgment.

2Prior to the commencement of the trial, counsel for the accused filed a Notice of Application alleging various Charter breaches under ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms and seeking the exclusion of certain evidence pursuant to s. 24(2) of the Charter. The Crown filed a response to that application on December 3, 2014 setting forth its position that no such breaches had occurred and, if so, the evidence sought to be excluded after a proper analysis under s. 24(2) should not be excluded.

3The trial proceeded as a blended hearing and although there were no admissions at the commencement of the trial, during the course of the trial the accused acknowledged the marihuana found in the trunk of the vehicle in the care or control of Mr. Hanif on the night in question was of a sufficient quantity that whoever possessed that particular marihuana possessed it for the purpose of trafficking. There also was an admission that the substance found within the vehicle by Cst. Kinghorn on the night in question was cannabis marihuana and the knife located a prohibited weapon.

4The Crown has called a number of witnesses on the trial and application. The defence elected to call no evidence at trial but did call Mr. Hanif to give evidence on the application.

EVIDENCE OF THE CROWN

Evidence of Constable Robert Schelling

5Constable Schelling played a small role in the investigation involving Mr. Hanif on November 7, 2013. He was on duty as a constable with the Waterloo Regional Police Service on that date and was dispatched to the Kingsdale Community Centre in the parking lot area at 12:25 a.m.

6He arrived at the area at 12:28 a.m. and noted Cst. Kinghorn present as well as a black Acura motor vehicle.

7He was advised by Cst. Kinghorn he had observed an "odour or smell of an alcoholic beverage in the motor vehicle" and believed that the four occupants of the vehicle had already exited the motor vehicle upon his arrival. He could not recall if there were other officers besides Cst. Kinghorn present.

8A search of the motor vehicle was conducted and marihuana was located within the motor vehicle. This officer had nothing to do with that search. The officer could not even recall if the search was conducted before or after he arrived at 12:28 a.m.

9This officer had dealings with a female occupant of the vehicle at 12:33 a.m. That individual was Margaret Munroe.

10In cross-examination the officer seemed uncertain and was not "a hundred percent certain", notwithstanding what he had indicated in-chief, whether the occupants of the vehicle were inside or outside of the vehicle at the time of his arrival.

11He described his interaction with Ms. Munroe, found her behaviour somewhat "unusual" as she had asked to go to the bathroom a number of times and eventually, on instructions from Cst. Kinghorn, placed Ms. Munroe under arrest at 12:33 a.m. in regards "to possession of a controlled substance". At this time the officer recalled other officers being present besides himself and Cst. Kinghorn and specifically he recalled Cst. Dopson and Cst. Dolderman, the canine officer, being present. Again, he was uncertain if they had arrived before or after himself.

Evidence of Constable Agnes Wyrzykowska

12This Waterloo Regional police officer was also on duty on November 7, 2013. She had been requested by "the investigating officer", presumably Cst. Kinghorn, to attend the scene as there were two females under arrest. She was requested to attend shortly after 12:25 a.m. and arrived at the scene at 12:44 a.m., some 20 minutes thereafter.

13Upon her arrival she was advised there were four parties under arrest for possession of a controlled substance. She observed the vehicle, noted the accused already being in the custody of Cst. Kinghorn and was introduced to Margaret Munroe.

14The officer was requested to conduct a search of Ms. Munroe, which resulted in no findings. She also conducted a search of Kelsey Snively whom she advised was another occupant of the vehicle who was also detained. Again, the search of Ms. Snively resulted in no findings.

15This officer further searched a purse belonging to Ms. Munroe that had been found in the rear passenger area behind the driver's seat of the vehicle. That search resulted in the finding of a cell phone, identification for Ms. Munroe and a clear plastic wrapper in which a small amount of a substance believed to be marihuana was located.

16This officer also was involved with Cst. Dolderman who turned over a joint of marihuana which was found inside a clear tube container by Cst. Dolderman. She also observed Cst. Dolderman to locate a black nylon bag from the trunk area in which the officer noted there was a "large quantity of marihuana".

17The officer had some dealings with a male occupant, Tyrell Cruz-Walker, who had been placed in her cruiser and had been arrested, read his rights to counsel and caution on a charge of possession of a controlled substance by Cst. Kinghorn in her presence. This officer had no dealings with the accused at the scene.

18At the time the officer arrived at the scene it was her understanding all four persons were under arrest. At the end of her dealings at the scene all of those individuals except the accused had been released unconditionally.

19With regard to the trunk area, this officer was able to confirm the trunk was not able to be accessed from the interior and was a separate self-contained area that was accessed by the trunk door being opened.

Evidence of Constable Michael Dopson

20Constable Dopson was another officer dispatched to the community centre on November 7, 2013. This officer was the acting sergeant on this particular shift and testified there had been a call from Cst. Kinghorn that a vehicle had been stopped and other units were being requested to attend "basically for officer safety and to assist him with an investigation".

21When Cst. Dopson arrived he was advised by Cst. Kinghorn that he was investigating a "care or control issue with alcohol involved with the driver". He had been dispatched at 12:36 a.m. and arrived on the scene some four minutes later, at 12:40 a.m.

22The officer testified when he arrived there were several people in the black motor vehicle. He had discussion with Cst. Kinghorn who advised he believed that he had a "drunk driving or drunk care and control investigation". Constable Kinghorn smelled alcohol in the vehicle and was "getting all the parties out".

23This officer dealt with Kelsey Snively. While he was speaking with her, Cst. Kinghorn advised he had found drugs in the car and all individuals that had been in the vehicle were to be arrested for possession of drugs. All of this occurred within two minutes of the officer arriving on scene. Ms. Snively showed signs of alcohol consumption and acknowledged to the officer that she had consumed alcohol. At the end of his dealings with her, she was released unconditionally from the scene.

Evidence of Constable William Dolderman

24Constable Dolderman is another officer who happens to be a canine handler. He was requested to attend the scene in the early morning hours of November 7, 2013. He attended in a police van and had two dogs with him.

25The officer arrived with the dogs at 12:38 a.m. and noted there to be several officers already present. He spoke with Cst. Kinghorn who briefed him on what was taking place.

26At 12:45 a.m. Cst. Kinghorn advised Cst. Dolderman that he had arrived in the parking lot of the park which was closed. He had approached the vehicle, advised he had smelled alcohol and asked the occupants to step out. Constable Dolderman was also advised by Cst. Kinghorn that he had observed the driver put something in a console and advised Cst. Dolderman that he thought it was something to do with "hiding alcohol".

27Constable Kinghorn as a result searched the console, located marihuana and at 12:33 a.m. had arrested the parties. This officer was then called by Cst. Kinghorn at 12:34 a.m. to attend the scene.

28At 12:55 a.m. one of the service dogs was used to search the vehicle and a number of items were located by this officer.

1. There was a boxing glove located on the dash of the vehicle which contained inside it a baggie with marihuana residue as well as a coin wallet with unused dime bags. The officer could not recall where on the dash the glove had been located.

2. In the console, which had to be opened by the officer, there was a clear plastic container with a marihuana cigarette inside it.

3. In the pocket on the back of the passenger front seat the officer located zip-lock bags again with marihuana residue inside them.

4. In the trunk of the vehicle a black bag was located. Upon opening the bag a "fairly large amount of dime bags" that were unused were located together with individually wrapped parcels of marihuana.

29To access the vehicle, the officer had to open the doors and the console and also had to open or have opened the trunk which could only be accessed from outside the vehicle.

30In cross-examination the officer confirmed he had been specifically requested to attend at the scene for the use of the dog in a search of the vehicle. It was his understanding when he arrived and spoke with Cst. Kinghorn that Cst. Kinghorn "thought the driver was putting something alcohol related into the console". When the items were located they were identified and left where he and the dog had found them to be removed by another officer.

Evidence of Constable Adam Kinghorn

31Constable Kinghorn is a member of the Waterloo Regional Police and at the time of the events before the court had been with the service it appears for about four years. He is the investigating officer in this matter.

32On November 7, 2013 he was on patrol alone in a cruiser when he conducted what he referred to as "not a routine traffic stop in a dead-end alley kind of area". It turns out it was a dead-end street adjacent to a community park. He described generally how he had seen a motor vehicle with four occupants and had some concerns about alcohol either "within the vehicle or in relation to the driver". As a result of some observations he made thereafter he testified he engaged in an "investigative detention" and subsequent to a search found a large quantity of marihuana and a prohibited weapon, a switchblade.

33When questioned more specifically, he set out that on the night in question he had driven by the area where the vehicle was without noticing the vehicle at first as the vehicle was parked in an area which was in "complete darkness". When he observed the vehicle he noted it was running but its lights were off. He had observed it as he had driven by the area on a second occasion.

34He parked his cruiser nose-to-nose with the other vehicle about four metres away. He observed four occupants to be within the vehicle. All of this was observed around "roughly 12:23 a.m.".

35Prior to exiting his vehicle he did a motor vehicle search and discovered the vehicle was registered to an adult female in her mid-50's. As a result, because of where the vehicle was parked and the number of occupants, he thought "it was unlikely it would have been her in the vehicle".

36He called in the traffic stop and made it clear that in this particular case there was a concern about officer safety as there were "four parties on board". He noted the area was "a popular spot" for "teens hanging out in their cars, usually smoking either cigarettes or marihuana and possibly drinking". He was not really sure at that point but assumed "that something nefarious was about", although he was not sure what.

37Constable Kinghorn made it very clear in his evidence on more than one occasion that as a result of the number of occupants, the time of night and, apparently, the visibility there would have been a "tactical disadvantage" for the officer if any of the occupants were to attack him. As a result of his contact with dispatch he assumed, but could not specifically recall, that back-up would be arriving.

38As I understand the officer's evidence, he then stepped out of his cruiser and approached the vehicle. He did so without any other officers arriving and confirmed he was still alone at that point in time.

39He approached the vehicle and advised the occupants that they were trespassing under the Trespass to Property Act as it was forbidden to be in the park, apparently as posted and in accordance with a by-law, from 11:00 p.m. to 6:00 a.m. He asked the occupants what they were doing. The response from someone was that they were "hanging out" and they just did not have anywhere else to go to do so. The officer testified at some point he "observed" the odour of an alcoholic beverage from within the vehicle. He did not know if it was off someone's breath or from an open beer bottle but he could detect the odour. He inquired of the group if anyone had been consuming alcohol and specifically asked the "driver", or at least the person sitting in the driver's seat as the vehicle was never operated, who turned out to be the accused, if he had been consuming alcohol. The accused denied possession or use of alcohol but the two female passengers in the back seat acknowledged consuming alcohol previously that night.

40The officer then requested identification from all occupants. When asked why he did that, he stated it was for a variety of reasons but for "an investigative end". He wanted to inform himself if there were any safety concerns, if they had a history of break and enters, and also to ensure that the accused was a licensed driver and the occupants were of age for consuming alcohol.

41The accused did produce a valid driver's licence in his name with a photo likeness. The officer later learned that the accused was the registered owner's son. He stated the picture was a likeness of the accused. All of the other occupants of the vehicle provided their health cards, all bearing likenesses of themselves and the officer identified those individuals. At least one of those individuals was determined to be not of age to consume alcohol. The officer described all occupants as being "compliant and completely co-operative at that point".

42Upon receiving the various items of identification the officer returned to his cruiser to conduct "queries as to the identities of these parties". He made the appropriate searches and seemed keen to offer to the court that the female passengers had "fairly brief criminal histories" but both the driver and the male passenger had "significantly more so that I had to peruse through so I'd say a couple of minutes".

43While all this "perusing" was being done the officer also was apparently "trying to keep my eyes on the vehicle at all times". He acknowledged he had to look down at his screen on occasion to get the information that he would later relay to the court, but while he was observing the vehicle he noted the driver to have reached into the back seat and "grabbed an item". The officer was not sure what it was but the item was brought to the front seat, rummaged through and then returned to the back seat. He was able to observe this as his headlights and take-down lights illuminated the area where the vehicle was situated. It is of importance to note that the officer had actually written in his notes he had observed a backpack being moved from the back seat to the front seat, although he did not have any independent recollection of that at the time of giving evidence.

44The officer offered that upon checking the criminal records history he noted the male passenger had been "flagged for violence in the past" and that the driver "had a history with robbery". (Of note, it was not until cross-examination the officer confirmed the robbery charge was as a youth and had been pled down to a theft under and was noted as such on the record the officer reviewed.)

45As a result, the officer waited until another officer arrived, whom he believed to be Cst. Dopson, followed shortly thereafter by Cst. Schelling. He advised those officers that the vehicle was in an area where it was not to have been, that it was trespassing and that he had a potential Liquor Licence Act infraction "at minimum and possibly an impaired driver". That conversation, the officer recalled, was specifically with Cst. Dopson but may have also been heard by Cst. Schelling.

46In response to what was in some way a leading question, the following exchange took place between the Crown and the officer:

"Question: And, can you add then just a little bit of perspective on having learned the things you did from CPIC and from thinking of the things that you thought from your observations of the movement within the vehicle. Why was it that you waited for back up to arrive before you took next steps?

A. Well, I had some concerns as to what that object might have been, as I mentioned previously this is a spot that's well known for drug activity and I am well aware that a lot of – being that it's a dangerous 'profession,' drug dealing, that a lot carry weapons to protect themselves, and I was concerned especially with the number of occupants and obviously me not being able to keep an eye on all four of them at all times, that quite potentially they grabbed a weapon at some point."

47The officer then returned to the subject vehicle accompanied by his colleagues. Due to an apparent concern for some reason the officer had about the possibility the driver had a weapon, he attended at the passenger's side of the vehicle to give him some "time and distance between the driver" and to "have further interactions and to continue my investigation".

48Upon approaching the vehicle he requested all four of the occupants step out of the vehicle so he could detect whether the odour of alcohol was coming from the driver and to enable him to "assess the driver's sobriety". He also had some concerns about what was in the vehicle and felt that by getting the occupants out of the vehicle he was "putting myself in a more advantageous or safe situation".

49The three passengers got out without issue but the accused, according to this officer, made a motion, "entered the centre console" which was between the driver's seat and the passenger's seat, "rummaged around really quickly and then closed it back up". The officer did not see what the accused was doing or, as he put it, what he was "grabbing or concealing", but the officer did note "obviously at this point in time my 'spider sense' was kind of going off again. I was definitely concerned with what, what the purpose of that motion was specifically."

50The officer asked the accused what he was doing and the accused stated he was retrieving his wallet so that he could provide the officer with identification. The officer still had the accused's driver's licence in his hand and, as he did not observe a wallet being produced, he found it "unusual".

51The accused did exit the vehicle eventually and when asked by the Crown what the officer's thinking was at that point, the officer noted, "In my mind, I'd gone down the path where I suspected strongly that the male was concealing either a weapon or drugs in the centre console and that was the sole purpose for the actions – the two actions that I had observed with him rummaging through items in the car."

52As a result, the officer placed all of the occupants, including the accused, under "investigative detention". He advised them they were being investigated for "drug possession" and the driver "possibly for being impaired". He testified he indicated to the group that due to his safety concerns because of the "afore-mentioned movements", he would be searching each individual.

53This officer conducted the "field search" of the accused. He did not find any weapon "which is what I was looking for". Nothing of concern was found by the search of the others by his "partners".

54Still, the officer testified because he was "progressing into this investigation" he was going to have to allow the parties to re-enter the vehicle and he felt that would put him back in the position of "risk". He then decided to "search the driver's side of the vehicle and pointedly the spot where he concealed the unknown object or where I suspected he concealed an unknown object in the centre console."

55The officer then reached into the vehicle, opened the console and located a spring-loaded folding knife with approximately a three-inch blade and a three-inch handle. He also located a small package of marihuana in the console "on top in plain view".

56It is acknowledged the knife was a prohibited weapon and that the accused was not a holder of the necessary licence to possess it, if he did in fact possess it, and further that the substance in the package found within the same console was marihuana. (The knife is Exhibit #1. The marihuana and the package are marked as Exhibit #2.)

57All of these findings took place "a little bit before 12:33 a.m.". As a result, the officer then "arrested" all four parties for possession of a prohibited weapon and possession of marihuana. The arrests take place, according to this witness, at 12:33 a.m.

58The officer handcuffed the accused, conducted a search of his person again and this time located $35.00 in cash and two cell phones. He lodged the accused in the rear of his cruiser and read rights to counsel and criminal caution, both of which were done at 12:51 a.m. Other than a brief reference to the search there is nothing else to indicate what else took place between 12:33 a.m. and 12:51 a.m. The officer then read similar rights to the male passenger at 12:54 a.m.

59The officer testified after finding the marihuana a canine unit had been requested to attend at the scene. Constable Dolderman then arrived. This officer provided information to Cst. Dolderman whom he testified had arrived at about the time he was reading the rights to counsel and caution to the accused. Constable Dolderman advises he arrived actually at 12:38 a.m. Upon completing those rights Cst. Dolderman had completed the search of the vehicle and turned over a "Smelly Proof" bag which was located in a boxing glove that this officer stated had been placed on the dash of the front passenger seat where the male passenger had been situated. The boxing glove had been observed by this officer and he was able to recall the location where the glove was situated. This officer also had located a marihuana cigarette in a cigar tube in the centre console of the vehicle. Constable Dolderman located a single strap backpack which contained a large quantity of marihuana, a scale and a grinder from the trunk area of the vehicle. These various items have also been marked as exhibits. (See Exhibits #3 and #7.) As a result of these additional findings, the officer testified he developed grounds at about 1:12 a.m. to arrest the accused for possession for the purpose of trafficking in cannabis marihuana and instructed the other officers to release the other three occupants of the vehicle unconditionally. He did so because he did not believe he had the grounds to arrest them or continue their arrest as the vehicle was registered to the mother of the accused and he did not believe the others had knowledge of the items. There is nothing in this officer's evidence to indicate how he came to that conclusion.

60This officer also referred to a "large sum of cash" (approximately $800.00 in various denominations) and a third cell phone that this officer retrieved from the centre console which was apparently "not picked up by Cst. Dolderman". The officer noted the bills in different bundles wrapped with hair elastics which he pointed out were similar to those used by the accused who presented in court with a ponytail. He also noted the marihuana was packaged in a manner that was meant to be sold which in his "experience" was consistent with trafficking in the substance. Ultimately there is an acknowledgement that whoever possessed the substance which was found in the trunk possessed it for that purpose.

61As a result of the new charge, rights to counsel and caution were again read to the accused at 1:39 a.m. At that time the accused requested to speak with counsel. The officer confirmed that at no other time during the course of the evening were rights to counsel read to the accused other than following his initial arrest.

62During his evidence the officer described the findings the canine had made in the trunk area. The black bag which contained the marihuana was observed by the court. It contained, as well, a marihuana grinder and a scale. Also during his initial search of the console, although he "hadn't noted it specifically", he had observed some money and a cell phone. After the finding in the trunk this officer re-entered the car and seized the cash and the cell phone. Again he described the bundles of currency found within the console and as well offered that he located business cards for a haircutting business which bore the name "Shaz H." A cell phone was located which required a password to access but the officer offered that he "observed" a message on the display that had been sent approximately three hours previously to that phone indicating "How 'bout a quarter?". This message was apparently "plainly visible on its touch screen". The timing with respect to that message was given to the best of the officer's recollection as he offered that his "individual recollection is not the greatest". This phone had been found in the accused's pocket and was one of two phones that were seized from the accused. Another phone was located but the officer had not made note of where all the phones had been found, although one was found on the accused's person and of the other two, one was found in the vehicle and one was found also on the accused. The officer could not recall "which was which."

63In cross-examination the officer was led through his evidence with respect to approaching the vehicle initially. He confirmed he was on "pro-active patrol" and not there for "a specific end" when put to him that he was there to enforce a Kitchener by-law which prohibited attendance at the park during the hours patrolled.

64He confirmed from "outward appearances" the individuals in the vehicle were "simply hanging out" as they had indicated to him. He did not observe them doing anything wrong, although he had smelled alcohol emanating from the vehicle. There, however, was a denial of consumption by the accused and also a denial of there being any alcohol in the vehicle.

65The officer then elaborated somewhat on his evidence with respect to the odour of alcohol. He now described it as being "overwhelming" from the driver's side window and that he could "smell it clearly". The officer then corrected himself and indicated "overwhelming might have been an overstatement but it was significant". He found this somewhat inconsistent with the statements of the occupants.

66He did confirm he did not observe any alcohol and thought that this was initially "potentially" a care and control drinking and driving issue. He, however, asked for identification of all occupants. He denies he could have asked the accused to step out of the vehicle to perhaps isolate the alcohol odour. He had concerns for his "safety" as there were four individuals in the vehicle and he was waiting for another officer to attend, although he seemed a little indefinite that he had received information another officer was coming by.

67It was put to the officer he had no grounds to detain the occupants. The officer replied that they were trespassing under the Trespass to Property Act and he was conducting an investigation. He believed he had the right to detain them to continue the investigation to "potential care and control of the motor vehicle while impaired". The reason for their detention, and he confirmed he was in fact detaining the occupants, was for the investigation under the Trespass to Property Act as well as for the "potential that they were committing an offence under the Criminal Code, being care and control of a vehicle".

68He agreed he could have told them to simply move along but he detained them as their presence "in the first place was suspicious". The officer requested their identification, told them they were trespassing and also told them that he suspected there was alcohol "on board" and that somebody was consuming alcohol. However, he did not think he went "so far as" to explain he was investigating the accused for being in care or control. The officer noted, however, at that point "he had a very faint suspicion that might be a possibility".

69It is clear from cross-examination the officer felt that he could detain the individuals as they were committing an offence under the Trespass to Property Act and did so to determine "the reason they were there". This included apparently "a number of different concerns being the potential", one which was the accused was drinking and driving and the "potential that they were there for something else". The purpose of asking for identification was that he would not charge the occupants with trespass without knowing who they are.

70He confirmed he did a background check and found that the accused had a robbery charge. The officer then offered that that line of questioning by "my friend" (referring to the Crown) had been cut off but upon further questioning noted the robbery charge had been pled down to a theft.

71He acknowledged the occupants of the vehicle were co-operative and polite. They were not belligerent, upset or aggressive and when asked for identification they produced it. It was put to the officer the theft charge related to an event in 2010 when the accused was a youth, and noted he had not seen that on his background check but it was "probably there". It seems that the "actual charge is what caught my eye". It was clear the officer was aware at the time that the charge related to a matter as a youth.

72The officer reaffirmed his evidence with respect to the production of the driver's licence by the accused and the likeness and consistency with the picture on the licence to that of the accused at the time. A photocopy of the accused's current driver's licence was produced and the officer confirmed this may or may not have been similar to the photo on the licence produced in 2013. (See Exhibit #8.)

73With respect to the removal of the occupants from the vehicle, the officer acknowledged he advised the accused and the others that they were under "investigative detention". Pat-down searches were conducted. Once he and the other officers were satisfied there was no risk as far as weapons were concerned, he then searched the vehicle. Up to that point at no time had the officer advised any of the occupants of any right to contact counsel. No sobriety testing was conducted and the officer was clear that once the accused was out of the vehicle there was no odour of alcohol detected on his breath. With respect to the issue of care or control sobriety tests, the officer acknowledged he did not have the necessary suspicion in that regard once he had the accused out of the vehicle.

74He did indicate, however, at that point his investigation "had progressed beyond just that matter to potential possession of drugs or a weapon, a prohibited weapon".

75The officer denied that after he conducted the searches and the other officers had arrived he went to the driver's side door. He was adamant that he had gone to the passenger's side door, although he had not made a specific note of that. From the observations he testified to while in his cruiser, his "sense of awareness was extremely heightened". He also testified the centre console opened to the passenger side of the vehicle.

76In the officer's notebook, however, he had not noted anything about officer safety when he had asked the occupants to exit the vehicle. In fact, his notes had indicated that was done to assess where the odour of an alcoholic beverage was "emanating from" and to assess "the driver's sobriety". It was only later, not at the time of the incident, that the officer had in fact noted concerns about safety in his notes.

77The officer adamantly denied that when he returned to the vehicle and asked the accused what he was doing with respect to the console, the accused had indicated he was getting his wallet. He denied the accused did get his wallet and handed his health card to the officer. The officer denied that initially, but then indicated the accused had said he was "grabbing his identification" to which the officer responded that he already had it, referring to the driver's licence previously provided, and this caused him some concern. The concern also apparently for the officer was heightened as the accused was having a "crisp, clear conversation with me and it didn't add up". This led the officer to believe the accused was not under the influence "any more". Again, there was nothing in the officer's notes to indicate the conversation about the wallet but the officer apparently had an independent recollection of that.

78With respect to the observations the officer had made while in the cruiser checking the backgrounds of the occupants, he again referred to the accused reaching back, retrieving something and fidgeting with it, and then returning it to the back passenger seat area. In his notes the officer had indicated it was a backpack but in cross-examination he now indicated he "could have been mistaken". As the officer put it, "In my will state it may have been a mistake on my part, having already learned that there was a backpack in the trunk, I may have made that mistake in my note or in my will state." This is in reference to the backpack which is ultimately seized from the trunk area. There is nothing in this officer's evidence nor in the evidence of any of the other officers to suggest there was any backpack found within the vehicle in the backseat area.

79There was a bit of dodging and weaving on this particular issue as the mention of the backpack had been clearly noted in the notes of the officer. Ultimately it appears the officer did not know at all what the object was that he says he had seen the accused removing from the back seat to the front seat and then back again. This whole area of the officer's evidence is both rather confusing and concerning.

80Notwithstanding the officer's apparent error in recording the presence of a backpack, the officer indicated whatever it was did cause some concern because he does not often see people reaching in the back seat to grab objects. Given that and the time of night and not knowing what was in the vehicle, he had serious concerns about his safety. He had, as he put it, a "gut feeling" that "something was amiss".

81The officer confirmed he told the other officers that he was looking into a "care and control issue". He did not believe the accused's explanation as to why he was in the console as he had already been provided with identification and he had not requested additional identification. He denied he had concerns about the identity of the accused when the licence was produced and viewed the photo on the licence, but did acknowledge he never told the accused that he was satisfied with the identification as indicated on the driver's licence.

82The officer's evidence again is unclear, but it would now in cross-examination appear he placed the accused under investigative detention for "possession of narcotics and the impaired". At that point the officer was concerned what was in the centre console and what the accused had removed or put in the console. He did agree he wanted to find out what was in the console but stated it was for "my safety". The officer specifically denied he had told any of the other officers that were present he had believed the accused had put "alcohol in the console".

83The officer's response in that area was as follows:

"Answer: No...I never said that because at this point in time, the only time I had conversation with the officers prior to re-approaching the vehicle, he had yet to go into the centre console. He went into the centre console after I re-approach and I'd already asked him to step out of the vehicle."

84As the officer put it, the centre console had not yet come into "my area of concern". He did agree, however, that when he approached the vehicle for the second time two other officers were present, Csts. Dopson and Schelling. The officer was also quite clear that at no time did he think alcohol was being placed into the console. His concern in fact was that what was contained in the console was drugs or a weapon. At the time of the investigative detention he had not advised the accused with respect to the issue of weapons, only "drugs and care or control".

85After the absence of an odour of alcohol and the field search outside of the vehicle, the officer agreed that he had no reason to arrest the accused. He also agreed that he had no grounds to get a warrant to search the vehicle. The officer still, however, had concerns as the accused's behaviour was "consistent with consuming something" and he suspected that the accused had concealed drugs or a weapon. As a result, he was concerned for his safety if the accused was allowed back into the vehicle. He agreed that he in fact had "extended the search to the area of reach within the motor vehicle". He did this because he did not know what had been "concealed" in the console and because of the "violent past" of the occupants.

86The officer stated the search for weapons was pursuant to an investigative detention as he had "read recent case law that suggested that that was a possibility and I felt a need to do so".

87The officer did not try to justify the search of the vehicle for the presence of alcohol as that "wasn't my focus by any stretch". In fact, at that point before he even went to the console he had satisfied himself there was no longer an issue with respect to alcohol. When the console was opened by the officer, he noted immediately the knife and a small quantity of marihuana which were "right on top", but the money that was later found was not initially noticed and not in plain view.

88This officer also confirmed the boxing glove that was located by Cst. Dolderman and the canine was on the front dash area on the passenger side where the passenger, another male, would have been seated. The officer had no realization that any drugs had been seized from the back seat of the vehicle.

89In reply, the officer confirmed when the occupants were asked to remove themselves from the vehicle the three occupants did and the accused opened the console, rummaged through it, shut it quickly and claimed he was retrieving his wallet to provide identification to the officer. At no time did the officer see the accused with anything in his hands, nor did he find a wallet.

EVIDENCE OF THE DEFENCE ON THE APPLICATION

90The accused, Mr. Hanif, elected to give evidence on his own behalf on the application. The evidence of the accused dealt only with the issue concerning his entry into the console when the officer re-approached the vehicle.

91The accused's evidence is that at the time of trial he was 20 years of age and the driver's licence which had been produced to the officer in November of 2013 had a photo likeness of him when he was 16 years of age. He stated he produced that licence to the officer who gave him an uncertain look and he entered the console to search for his health card as he expected the officer to question his identity.

92The officer after receiving the driver's licence and the proof of identification from others went back to his cruiser and then returned, to the best of the accused's recollection, to the driver's side of the vehicle. The accused had produced his wallet and a health card but the officer indicated he did not need another piece of identification. The accused then placed his wallet back into the console. Shortly after that the officer demanded all of the occupants get out of the vehicle, which they did. The accused described why he had believed the officer was going to query his identification and noted the differences with respect to the passage of time in the photographs shown both on the driver's licence and the health card. His evidence in this regard was fairly specific and was effectively unshaken in cross-examination.

ISSUES TO BE DETERMINED

93The accused elected to call no evidence at trial, only on the application. The issues to be determined in this matter then are as follows:

1. Was Mr. Hanif arbitrarily detained contrary to s. 9 of the Charter?

2. Was Mr. Hanif subject to an unreasonable search and seizure contrary to s. 8 of the Charter?

3. Were Mr. Hanif's s. 10(b) rights breached as a result of the failure of Cst. Kinghorn to advise Mr. Hanif of his rights to counsel upon detention?

4. If the court is satisfied that any or all of the above are resolved in favour of Mr. Hanif, what remedy should follow as a result of a proper analysis under s. 24(2) of the Charter?

5. If the Charter issues fail or if evidence is not excluded under s. 24(2), has the Crown established to the degree required that Mr. Hanif was in possession of the cannabis marihuana found within the vehicle including the marihuana found in the console, otherwise in the interior of the vehicle and in the trunk, or any of those items?

6. If the Crown establishes possession of the item found in the console or in the interior of the car but not is able to satisfy the court beyond a reasonable doubt that Mr. Hanif was in possession of the items found in the trunk of the vehicle, can Mr. Hanif be found guilty of possession of cannabis marihuana for the purpose of trafficking as set out in the count or only the included offence of simple possession?

7. Has the Crown established beyond a reasonable doubt that Mr. Hanif was in possession of the spring-loaded knife which is acknowledged to be a prohibited weapon and was found in the console of the vehicle by Cst. Kinghorn?

ANALYSIS OF THE FACTS AND PRINCIPLES OF LAW TO BE APPLIED

94The initial issue that is to be considered is the question of whether or not there has been a violation of ss. 8, 9 and/or 10 of Mr. Hanif's rights under the Charter.

(a) Issue of Detention

95Section 9 of the Charter provides everyone has the right not to be arbitrarily detained or imprisoned. The case law clearly indicates police must have reasonable and probable grounds to arrest. It is not enough that a police officer believes reasonable and probable grounds exist.

96A police officer may also briefly detain for investigative purposes where in the totality of the circumstances the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. The officer is not permitted to operate on a mere "hunch" in detaining a person. See Regina v. Mann, 2004 SCC 52. The purpose of the power of investigative detention is the preservation of peace, the prevention of crime and the protection of life and property. See Regina v. Dedman, [1985] 2 S.C.R. (2d).

97To be reasonable the detention must be based on a constellation of discernible facts that give the detaining officer reasonable cause to suspect the detainee is criminally implicated in the activity under investigation. In Regina v. Simpson, 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482, the Ontario Court of Appeal noted as follows:

"A hunch based entirely on intuition gained by experience cannot suffice, no matter how accurate that hunch might prove to be. Such subjectively-based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a hunch."

98In Regina v. Mann, supra, the test as set out in Regina v. Waterfield, 1964 1 QB 164, was adopted. The powers of the police to investigate crime are not unlimited. In assessing the legal significance a police action that interferes with individual liberty, it is first necessary to consider whether the actions of the police fall within a general police duty. Assuming that they did, it is then necessary to consider whether the police actions were justified.

99In Mann at paras. 34 and 35 Justice Iacobucci stated the following:

"[34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

"[35] Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest."

100The test for determining whether an investigative detention is justifiable was recently affirmed in Regina v. Peterkin, 2015 ONCA 8. There, the test noted in Mann was adopted and the court noted that to be justifiable the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police.

(b) Search Powers Incidental to Investigative Detention

101A search incidental to an investigative detention is a warrantless search. Such searches are presumed to be unreasonable unless they can be justified and found to be reasonable. (See Regina v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265). Pursuant to Collins warrantless searches are deemed reasonable if:

(a) they are authorized by law;

(b) the law itself is reasonable; and,

(c) the manner in which the search was carried out was also reasonable.

The Crown bears the burden of demonstrating on a balance of probabilities that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner.

102In Mann the Supreme Court set out various principles with respect to searches incidental to investigative detention. Those principles were reiterated and adopted in Peterkin where the court stated in paras. 42 to 45 the following:

"[42] The Waterfield analysis has also been applied to recognize a power of search incidental to investigative detention.

"[43] Under the first prong of Waterfield, the interference clearly falls within the general scope of the common law duty of police officers to protect life and property: Mann, at para. 38. However, the power to search incidental to an investigation does not exist as a matter of course: Mann, at para. 40. Nor can the power to conduct a safety search of an investigatively detained person be equated with the power to conduct a search incident to lawful arrest: Mann, at para. 45.

"[44] The main issue on this appeal is what test properly applies under the second prong of Waterfield to determine when a safety search incidental to an investigative detention is justifiable. The Supreme Court of Canada has held safety searches incidental to investigative detentions are justified where the officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk: Mann, at para. 40. The search must be grounded in objectively discernible facts to prevent fishing expeditions on the basis of irrelevant or discriminatory factors: Mann, at para. 43.

"[45] The Supreme Court articulated two further reasonableness criteria that must be established for a safety search incidental to an investigative detention to be justified. First, the officer's decision to search must be reasonably necessary in light of the totality of the circumstances: Mann, at para. 40. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition: Mann, at para. 40. Second, the safety search must be exercised in a reasonable manner: Mann, at para. 45."

103In Peterkin as well the court referred to Regina v. Clayton, 2007 SCC 32, where the Supreme Court held the police had acted within the scope of their common law powers when they investigatively detained the accused, finding investigative detention was justified as the police had a reasonable suspicion the accused "could be in possession of hand guns". As a result of various factors as well as that, the lives of the officers and the public were at risk.

104The Supreme Court in Clayton held that a safety search incident to investigative detention is justified if the officer believes on reasonable grounds that his or her safety or that of others is at risk.

105Recently in Regina v. MacDonald, 2014 SCC 3, the Supreme Court dealt with the issue of the authority for safety searches in general. That issue in that case did not arise as a result of a search incidental to investigative detention but the court recognized a protective safety search power over and above a search that can be conducted pursuant to an investigative detention. That power can take place when a police officer is acting in the execution of his or her duties and has reasonable grounds to believe a person he or she is dealing with is armed and dangerous. Still, even in MacDonald the court approached that particular issue with some caution. When speaking for the majority, Mr. Justice LeBel indicated as follows:

"...although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16 (CanLII), [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on 'reasonable and specific inferences drawn from the known facts of the situation (Mann, at para. 41).'"

106In this case the Crown relies heavily on the principles set forth by the Ontario Court of Appeal in Regina v. Plummer, 2011 ONCA. In that case the facts are clearly very distinguishable from the facts before this court. They are, briefly, the accused had met his girlfriend who had parked her car in a fire lane beside the accused's apartment. The accused was wearing a bulletproof vest and carried a handgun in his waistband. Police were on patrol and noted the vehicle to be parked facing the wrong way in a no parking zone. As they passed the car they noted the accused and saw what they described as an expression of surprise on the accused's face and then saw the accused make some movement downwards in his seat. They noted him to bend forward and slouch down. The officers felt these movements were consistent with the concealment of drugs.

107They did a u-turn, approached the van and asked the occupants for their names. The officers were also in possession of information concerning the accused in the form of an officer safety alert that had been circulated within the police force the week earlier. That alert had described the accused as possibly being armed with a handgun and in possession of a bulletproof vest.

108The officers then re-approached the vehicle, asked the accused to step out as they believed they had grounds to search the accused on the basis of the alert and his apparent effort to hide something. The accused got out, the officer conducted a pat-down search and felt the bulletproof vest. The officer then proceeded to the car to search the vehicle and noted the gun in plain view at the top of an open bag on the floor in the front passenger seat. (Although the trial judge had found ultimately the officer had checked initially under the seat and then likely located the gun under items in the bag, which was the overnight bag of his girlfriend.)

109The trial judge ultimately found the accused was not arbitrarily detained, the search of the bag was reasonable and also concluded that even if he had found a breach he would not have excluded the evidence of the gun.

110On appeal the accused argued, among other things, that the investigative detention only permitted a limited pat-down search of the person being detained and did not extend to the search of the vehicle and the bag contained in the vehicle.

111There, the Court of Appeal agreed a search conducted in accordance with the principles set out in Mann is anchored in a safety concern and is limited to weapons. The court, however, found there was nothing in Mann that confined a search incidental to an investigative detention to only the person detained. The court stated at paras. 57 to 58 as follows:

"[57] The principle enunciated in Mann is that s. 8 Charter rights must give way to the specific, articulable and reasonable safety concerns that an officer harbours for him/herself and nearby members of the public. The balance between the right to be free from unreasonable searches and legitimate safety concerns is at the core of Mann. The appellant's bright line approach shifts the focus from this balance to a different factor, the location of the search.

"[58] There is no logic in this shift. If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity."

112The Court of Appeal also took issue with the appellant even having standing to allege a violation of s. 8 rights as a result of no reasonable expectation of privacy in the bag of his girlfriend. In the case before this court, standing was questioned by the court but counsel agreed, and the court accepts, Mr. Hanif, notwithstanding he was not the registered owner of the vehicle, appears to have been in the care or control of the vehicle and had a reasonable expectation of privacy in the vehicle.

113Of note, Mr. Justice Sharpe in concurring with the decision of Mr. Justice MacPherson in a dismissal of the appeal noted the appeal was readily decided on the standing issue. On the specific facts of the case the court agreed the officers were entitled to search the bag in the car as incidental to the investigative detention to ensure their own immediate safety. Commencing at para. 74 to and including para. 79 Justice Sharpe indicated as follows:

"[74] R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 establishes 'a limited power of protective search', defined, at para. 45, to be 'a protective pat-down search of the detained individual.' Mann represented a modest but significant expansion of police powers. No Canadian case extends that power to cover additional searches of vehicles or items in vehicles. Mann states, at para. 17, that the courts 'must tread softly' when asked to expand police powers, and that the creation of new police powers is 'better accomplished through legislative deliberation than by judicial decree'. It was 'for that very reason' that the Court refused 'to recognize a general power of detention for investigative purposes' referring, at para. 18, to the need for the court to exercise 'its custodial role' to control and constrain 'the unregulated use of investigative detentions in policing…and the potential for abuse inherent in such low-visibility exercises of discretionary power.'

"[75] The cautionary note sounded in Mann is rooted in the historic role of the courts, standing between the individual and the state, and reluctant to grant or recognize new police powers that encroach on individual liberty: see James Stribopolous, 'The Limits of Judicially Created Police Powers: Investigative Detention After Mann' (2007) 52 Crim. L.Q. 299. In my view, we should follow Mann's caution in a case like the present, when we are asked to expand the scope of a search incidental to an investigative detention.

"[76] A search incidental to an investigative detention is defined and limited by the immediate concerns of officer safety. This reflects an important difference between the narrowly focussed and strictly limited protective search that may accompany an investigative detention, and the broader power to search consequent to a lawful arrest. It is necessary to maintain that distinction and to confine the scope of a search incidental to an investigative detention within strict limits. Here, the police did not arrest the appellant, presumably because they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon or some other valuable evidence. This is a tendency that the courts should resist.

"[77] However, on the facts as found by the trial judge, I agree that a modest extension of the Mann pat-down search was justified in this case. Although the officers had the appellant under their temporary control, the situation was fluid. The appellant's earlier actions, when he appeared to conceal something in the vehicle, combined with the Officer Safety Alert indicating that he might be carrying a gun, gave rise to a legitimate serious concern that he had immediate access to a weapon that he could use if the officers were to simply release him and return to their own vehicle.

"[78] On those specific facts, I agree that the officers were entitled to search the bag in the car as an incident of the investigative detention to ensure their own immediate safety. While this does represent a modest extension of the protective pat-down search in R. v. Mann, it is limited by the concern for immediate officer safety that underpins Mann.

"[79] However, I would emphasize that this should not be read as giving the police carte blanche power to permit searches of bags or vehicles incident to investigative detention. Such a search demands satisfactory proof of a serious concern for officer safety that requires something more than the initial pat-down."

(c) Right to Counsel Incidental to Investigative Detention

114Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The purpose of that right has been expressed by the Supreme Court of Canada as ensuring "that a suspect is able to make a choice whether to speak to the police investigators that is both free and informed". See Regina v. Sinclair, 2010 SCC 35. See also Regina v. Peterkin, both the appeal decision as well as the trial decision concerning comments on right to counsel upon detention for investigative purposes.

115Section 10(b) also gives effect to that right by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations. See Regina v. Willier, 2010 SCC 37.

116In Regina v. Suberu, [2009] O.J. No. 333, at para. 41 the Supreme Court of Canada stated:

"[41] A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s.10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase 'without delay' must be interpreted as 'immediately'. If the s.10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises."

117In this particular case there appears to be no issue that Cst. Kinghorn's evidence at its highest would indicate, although the accused as well as the others were informed of the reason for the investigative detention, at no time were rights to counsel provided to any of the occupants including the accused. The first time the accused received his rights to counsel was after the initial search of the vehicle and Cst. Kinghorn arrested the accused for possession of the controlled substance. It was only thereafter when the findings in the trunk occurred that he was read his rights to counsel again with respect to the upgraded charge of possession for the purpose. No rights to counsel then were read to the accused or anyone else at the time the investigative detention was initiated.

118In dealing with the Charter issues it is relevant to note the various times events took place at the scene. This is not necessarily an easy exercise as the Crown witnesses either failed to give the times in their evidence, were imprecise or were inconsistent in dealing with times of arrival and exactly what took place during those periods of time.

119I would find, however, the relevant times are follows:

1. Constable Kinghorn initiated the "not routine" traffic stop at "roughly 12:23 a.m.".

2. Constable Schelling arrived on scene at 12:28 a.m. after being dispatched at 12:25 a.m.

3. Constable Wyrzykowska was dispatched shortly after 12:25 a.m. and arrived on scene at 12:44 a.m.

4. Constable Dopson was dispatched at 12:36 a.m. and arrived on scene some four minutes later at 12:40 a.m.

5. At some point between 12:23 a.m. and 12:33 a.m. Constable Kinghorn had:

   (a) approached the vehicle initially, had conversation with the occupants and demanded identification from the occupants including the accused;

   (b) had returned to his cruiser and conducted various searches to confirm the identity of the occupants;

   (c) had waited for other officers to arrive (according to his evidence, at least Csts. Dopson and Schelling) and then approached the vehicle for a second time, demanded the occupants all exit the vehicle and conducted an investigative detention. According to the evidence of Cst. Schelling, he arrived at 12:28 a.m. and could not recall if the occupants were in or out of the vehicle and Cst. Dopson in his evidence states he arrived at 12:40 a.m. at which time Cst. Kinghorn was just "getting all the parties" out of the vehicle.

   (d) Someone's watch is obviously off, but I find Cst. Kinghorn entered the vehicle after the investigative detention, searched the console, found the knife and a small quantity of marihuana and then, according to his evidence, at 12:33 a.m. arrested all of the occupants, including the accused, for possession of a controlled substance.

6. Constable Dolderman was called by Cst. Kinghorn at 12:34 a.m. to attend the scene, arriving at 12:38 a.m. At 12:45 a.m. he had conversation with Cst. Kinghorn and then conducted a search of the entire vehicle, including the trunk area with the assistance of a canine.

7. For some time after 12:33 a.m. until the search of the vehicle by Cst. Dolderman was completed all occupants, including the accused, were given a pat-down search by various officers. At 12:51 a.m. after the findings in the trunk the accused was arrested for possession for the purpose and read his rights to counsel, cautioned and lodged in the cruiser. All other occupants were released unconditionally from the scene.

120Constable Kinghorn's evidence is that in the ten minutes between 12:23 a.m. and 12:33 a.m. he did a number of things, the timing of which is uncertain. What is certain is that he made the arrest, according to his evidence, at 12:33 a.m. Constable Kinghorn states he did not approach the vehicle for the second time until he was accompanied by the two other officers he believed to be Csts. Schelling and Dopson. Constable Dopson did not even arrive on scene until 12:36 a.m., some three minutes after Cst. Kinghorn says he arrested everyone after previously demanding they exit the vehicle in the presence of Cst. Dopson and Cst. Schelling. Constable Schelling's evidence is of little use as he is not even be able to recall whether when he arrived the occupants of the vehicle were in the vehicle or out of it.

121All of this really just goes to the reliability of Cst. Kinghorn's evidence with respect to his continuing reference during the course of his evidence to officer safety. If he was so concerned about officer safety one wonders why he approached the vehicle in the first place by himself given the fact that he apparently requested another officer who turned out probably to be Cst. Schelling who was dispatched at 12:25 a.m., two minutes after Cst. Kinghorn stated he stopped in front of the vehicle. Given the evidence of the other officers with respect to timing, it appears Cst. Kinghorn is in error as to who was present when he approached the vehicle the second time. Finally, given Cst. Schelling's evidence, who could probably be the only officer whose timing would coincide with the second visit to the vehicle that he cannot even recall if the people are in or out of the vehicle, the court cannot be certain Cst. Kinghorn did not attend the second time on his own, require everybody to exit the vehicle and then the other officers arrived at or after that time.

122Constable Kinghorn is the investigating and lead officer in this matter. He is an officer who apparently reads case law involving the extent of searches incidental to investigative detention. He testified he has "spider sense" and as a witness presents more as an advocate than an objective and credible historian of the events at the "dead-end/street" on the night in question as well as with respect to the interaction he had with the accused and the others.

123I find ultimately Cst. Kinghorn's issue on the night in question was not a concern about officer safety, although that might have been a very secondary issue. His primary purpose, I find, was to gather evidence for what he believed was "nefarious activity" from the moment he saw the motor vehicle occupied by the accused and the others.

124The officer safety concern which he expressed on numerous occasions during his evidence, I find, was not his primary concern at all, but was elevated as such during the course of the officer's evidence to effectively lead the court down the road the officer wished the court to travel. There is absolutely nothing in the evidence of any of the officers, including Cst. Kinghorn, in its totality to indicate any concern prior to his initial entry into the vehicle when he searched the console to cause the officer to believe there were weapons or drugs. His conduct was as the result of a hunch only, a hunch that turned out to be perhaps well-founded but the results do not make it any more than a hunch to begin with.

125I find Cst. Kinghorn's evidence is not reliable, nor credible with respect to the repeated concerns about officer safety. His evidence in that regard I find was simply a ruse to justify his entry into the motor vehicle.

126Among other things already noted, I note:

1. Constable Kinghorn states he initially approached the vehicle, smelled the odour of alcohol from inside of the vehicle (in his evidence the odour went from "overwhelming" to "significant"), noted the trespass violation but really had nothing at all to indicate the accused had alcohol on his breath or acknowledged consumption. Further, there were no physical observations made by the officer that would indicate the accused had consumed alcohol. Still, the officer detains everyone in the vehicle and takes their identification. With respect to that particular issue, I accept Mr. Hanif's evidence that the officer expressed or inferred, at least to Mr. Hanif, that he was not entirely convinced of the accuracy of the photo likeness of Mr. Hanif on his licence as he presented on that day. I accept that Mr. Hanif, whether it was stated by the officer or not, clearly had that impression. That is why he ultimately went into the console to seek other identification in the form of a health card which I find in fact he did produce to the officer. I do not accept Cst. Kinghorn's evidence with respect to that second interaction and the issue with respect to Mr. Hanif concealing something in the console.

2. The officer then returned, armed with the identification of everyone to his cruiser. His evidence then seems to be pointed at directing the court's attention to the violent history of the occupants, at least the two males. No particulars were provided with respect to the male passenger in the front passenger seat but the officer in-chief referred to Mr. Hanif's previous conviction for robbery. It was only during cross-examination that it was determined and was within the knowledge of the officer at the time that the robbery was really pled down to a theft under and was a youth record from some years before. Be that as it may, all of this information apparently alerted the officer again to "officer safety", a factor that he did not seem too concerned about when he approached the car on the first occasion, so he waited for other officers to arrive.

3. During this timeframe he states he saw the accused make a movement from the back to the front, a movement that caused him some concern. All of this of course is observed while he is also trying to keep his eyes on the vehicle as well as the screen in his cruiser providing information, as the accused and the male passenger had "significantly more criminal history than the others" and it took "a couple of minutes" to review it. The court heard nothing about this history, save and except as previously noted.

   In any event, the officer noted the accused "grab an item", rummage through it and then return it to the back seat. In his evidence in-chief he did not refer to the item but in his notes that he made at or about the time he refers to the item that he saw being moved from the back to the front and then returned as a "backpack". He dodged and weaved around that particular issue in cross-examination as the only backpack that seems to have been found within the vehicle at all was found in the trunk with the quantity of marihuana and other items. This officer's evidence with respect to that observation is simply not accepted. Not only does he ultimately acknowledge he never saw a backpack (nor again was one ever found), he never even mentions that issue to the other officers when they arrive.

   In fact, he mentions nothing about the possibility of weapons or something otherwise of concern in the car. He continually refers to weapons and drugs but drugs, I find, were in his imagination only at that point as were the weapons. The parties appeared to be polite and co-operative when the officer first approached. When Cst. Schelling arrived Cst. Kinghorn, according to Cst. Schelling, only tells him that he observed "an odour or a smell of an alcoholic beverage in the motor vehicle" and that was the reason for the investigative detention. Constable Kinghorn told Cst. Dopson that he was investigating a "care or control issue with alcohol involved with the driver". He also advised Cst. Dopson he was conducting a "drunk driving or drunk care and control investigation" and was in the process of getting the occupants out of the motor vehicle. He says absolutely nothing to these officers about weapons or drugs.

4. When out of the vehicle none of the occupants were given their rights to counsel. None of the occupants were advised of the reason for the detention, save and except it was apparently to enable the officer to assess the driver's sobriety and isolate the odour of alcohol. Again, no mention of weapons or drugs.

5. The grounds presumably, or the suspicion more appropriately, for the "drug possession" detention as testified to by Cst. Kinghorn was a result of the officer when he attended with the other officers who missed all of this apparently, or at least missed giving evidence of this, and demanded all of the occupants exit the vehicle so he could isolate the odour of alcohol. He states he then saw the accused rummage "really quickly" through the console and close it back up. This raised further suspicion and caused the officer's "spider sense" to "kind of going off again". Interestingly enough, this concern the officer apparently had was not expressed to anyone, not the occupants of the vehicle, including the accused, nor his fellow officers. In fact, he tells one of the officers that he thought the accused had put alcohol in the console.

6. Upon the investigative detention being initiated the officer then returned to the console and found the items he referred to in his evidence which prompted him very quickly, given the timing involved, to phone Cst. Dolderman to conduct a canine search of the vehicle. That search could certainly not be justified as the officer continually attempted to do as a result of an officer safety issue. Everyone was out of the vehicle and had been placed under arrest after the findings in the console and no one was re-entering the vehicle at that point. All of the occupants including the accused had been given a pat-down search upon detention and, indeed, even a more thorough search after the group was arrested at 12:33 a.m. for possession of the items found in the console.

7. Again, I accept the actions with respect to the console were as described by Mr. Hanif in his evidence on the application and I do not accept the evidence of Cst. Kinghorn in that regard.

8. Constable Kinghorn's safety concerns were vague, not well defined and in no way equate with objectively reasonable grounds to believe officer safety was at risk as set out in Regina v. Mann. Even if there was a sufficient basis for an investigative detention, a pat-down search revealed nothing. The search power incident to investigative detention is merely a protective one based on officer safety and does not extend to a search for evidence generally. Further, even assuming there was a legitimate investigative detention relating to a drinking and driving matter as Cst. Kinghorn apparently related to his colleagues, the search of the console was, as I have indicated earlier, not at all related to officer safety. Ultimately, it was simply a search by Cst. Kinghorn for evidence and everything flowed thereafter.

127I find Cst. Kinghorn's evidence was presented with a mission. That mission was to have the court find the officer's actions were well considered, were for officer safety purposes at all times, that the search of the vehicle, namely the console, was based on observations the officer had made from his own cruiser (but never relayed to anyone else), and his apparent observations when he asked the occupants to exit and the accused fumbled with the console (again relayed to no one else). None of that is confirmed by the evidence of any of the other officers present at the scene and I am not prepared at all to accept Cst. Kinghorn's evidence as to his observations of Mr. Hanif with respect to the console. On the contrary, I accept Mr. Hanif's evidence in that regard.

128When one hears Cst. Kinghorn give his evidence and the manner in which he gave that evidence it is clear to the court Cst. Kinghorn has considered this matter in hindsight. He makes a point, for example, of talking about the hair elastics on the money found on his second search of the console and how they were similar to the elastics used by the accused who appeared in court with a ponytail. First of all, I am not certain that is even correct because I did not examine the elastics, and I am sure the officer did not. Secondly, there were females in the vehicle as well and I have heard nothing with respect to their hairstyle, nor the hairstyle of the front male passenger who Cst. Kinghorn described as having been "flagged for violence" in the past. That is just an example of the manner in which Cst. Kinghorn has, I find, presented his evidence, in a fashion to support and buttress the conduct of the officer on that night.

129To be clear, I have every concern for officer safety but in this case it seems to me Cst. Kinghorn has overstated that concern significantly and used it as a justification and ploy for his intrusion into the vehicle. He expanded the investigation into a broader and unrelated investigation and he had no basis for doing so other than a hunch. The explanation of the officer as to his conduct is not reasonable nor credible. The initial detention was arbitrary at the time, it no longer facilitated the drinking and driving concern or the trespass, and thereafter only facilitated a search for evidence of criminal conduct of a general nature. The accused and the others were polite and co-operative and the search was unlawful as it was not driven by reasonable and probable belief that evidence of a specific criminal offence would be obtained nor by a reasonable concern for officer safety.

130Ultimately I find Mr. Hanif was arbitrarily detained and arrested, that he was subjected to an unreasonable search that being the search of the vehicle, and upon investigative detention had not been advised of his rights to counsel. I find the search and seizure of the items found within the vehicle was unreasonable. The initial search that led to his arrest for possession of a controlled substance was not a proper extension of a search on an investigative detention in the circumstances of this case and the search thereafter conducted by Cst. Dolderman and the canine cannot be justified as a reasonable search incidental to arrest or otherwise. There is nothing in the evidence to indicate Cst. Kinghorn or any of the officers had reason to suspect that drugs or weapons were present or involved in the vehicle on the evidence that I find is credible and reliable. The officer's concerns about safety were also not reasonable in the circumstances. I find there have been breaches of ss. 8, 9 and 10(b) of the Charter.

ANALYSIS OF SECTION 24(2)

131Having found Mr. Hanif's rights under ss. 8, 9 and 10 of the Charter to have been infringed it is necessary then to consider whether the evidence obtained as a result of the search of the vehicle should be admitted into evidence.

132The issue of exclusion of evidence was considered by the Supreme Court of Canada in Regina v. Grant, 2009 SCC 32 (CanLII), [2009] SCJ 32, where the court stated at para. 71:

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

133At the first stage then the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation the greater the need for the court to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law.

134The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on those interests the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

135At the third stage the court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the courts in each case.

136As noted in Grant, the purpose of s. 24(2), as it is clear from its wording, is to maintain the good repute of the administration of justice. This embraces the maintaining of the rule of law in upholding Charter rights and upholding Charter rights in the justice system as a whole. The term "bring the administration of justice into disrepute" as set out in s. 24(2) means an understanding in the long term sense of maintaining the integrity of and public confidence in the justice system. While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on an immediate reaction to the individual case, but rather looks at whether the whole overall repute of the justice system viewed in the long term would be adversely affected by the admission of evidence. The inquiry is an objective one and it asks whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. The s. 24(2) focus then is not only long term but prospective. The fact of the Charter breach means damage has already been done to the administration of justice and s. 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Section 24(2) is not aimed at punishing the police or providing compensation to the accused but rather at systemic concerns.

137So the role of the court under s. 24(2) is to balance the various assessments made under the analytical approach set out in Grant and determine whether in all of the circumstances admission of the evidence would bring the administration of justice into disrepute. The balancing is not a mathematical exercise, as noted in Grant, it is qualitative. A trial judge must be careful not to give undue emphasis to one line of inquiry or to neglect the importance of any of the three lines of inquiry and the s. 24(2) analysis should not simply be boiled down to a contest between the degree of police misconduct and the seriousness of the offence.

THE SERIOUSNESS OF THE CHARTER-INFRINGING STATE CONDUCT

138The case law dealing with the s. 24(2) analysis indicates that under this heading when looking at the seriousness of the Charter-infringing conduct the court must look at what the police did and their attitude when they did it. The court must consider that respect for the justice system should not suffer in the long term if courts routinely admit evidence gathered by state conduct that disregards individual rights.

139In Regina v. Grant, supra, at paras. 72 and 74 the court stated that the more severe or deliberate the state conduct that led to the Charter violation the greater the need for courts to dissociate themselves from that conduct by excluding evidence linked to the conduct in order to preserve public confidence in and ensure state adherence to the rule of law. At one end of the spectrum are violations that are inadvertent or minor in nature and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights.

140With respect to the actions of Cst. Kinghorn, I find that the violation of Mr. Hanif's rights, particularly ss. 8 and 9, are at the more serious end of the spectrum. When Cst. Kinghorn arrived at the vehicle he had no indication at all of any criminal activity. There was no sense of urgency. Mr. Hanif and his colleagues were simply sitting in a vehicle in an area that technically was a trespass but that certainly was not the officer's main concern. In fact, I find it was more of a justification offered by the officer for his actions.

141Any concerns about the well-being or safety of the occupants were satisfied rather quickly, yet the accused and the others were detained, identification was required from all and they sat in their vehicle while the officer returned to his cruiser to conduct his searches.

142When the officer returned to the vehicle and demanded that all exit the vehicle, I find that may have been somewhat justified to isolate the odour of alcohol that the officer was more than anxious to advise the court was "emanating from the vehicle" in various degrees. Once that was done it was quickly determined that Mr. Hanif not only showed no signs of alcohol consumption, there was no odour of alcohol on his breath that could be detected.

143What happened thereafter was that the officer effectively had run out of options. The concerns expressed about officer safety and the interaction of the accused at the console (again, I do not accept Cst. Kinghorn's version of that) clearly indicate to the court that Cst. Kinghorn was determined to get into the vehicle one way or another to do a follow-up of what effectively was "his hunch".

144The actions of Cst. Kinghorn thereafter, and to some extent even before he entered the vehicle, were deliberate and flagrant violations of Mr. Hanif's Charter rights.

145The officer attempted, as I have indicated, to legitimize his conduct throughout his evidence. I found that he has tailored his evidence to reach that goal. His conduct from the get-go when he first approached the vehicle and demanded identification from everyone was unjustified and/or unexplained.

146I do not find that Cst. Kinghorn's actions were the result of any negligence or that he acted in good faith. He had determined that he was going to continue this investigation to follow up what he perceived from the outset for no reason whatsoever to be "nefarious activity", even before he approached the vehicle on the first occasion. Even assuming the officer could be reasonably suspicious for no reason whatsoever when four young people are in a vehicle and an odour of alcohol is detected from within the vehicle and would be entitled to conduct some preliminary investigations, there was nothing arising out of those preliminary investigations to warrant the actions of the officer thereafter. His conduct and attitude cannot be condoned by this court and certainly were the result of something other than inadvertence. I find under this inquiry the conduct of the officer as noted favours exclusion from evidence the items found within the vehicle.

THE IMPACT OF THE BREACHES ON THE ACCUSED

147With respect to this issue, I will assume that the officer had a basis for approaching the vehicle and questioning the occupants. I will also assume that the officer had reason to ask Mr. Hanif to exit the vehicle to continue his drinking and driving investigation. However, that issue was resolved very quickly and the investigative detention which was continued thereafter which the officer used to extend the search into the vehicle was, as I have found, a ruse on the officer's part. Mr. Hanif was then detained outside of the vehicle, subjected to an arrest which I find was arbitrary, a search which I found was unreasonable, handcuffed and placed in the cruiser. He remained at the scene for a considerable period of time and although the exact timeframe is difficult to determine given the variety of evidence concerning timing, it is certainly in excess of half an hour. All of this was as a result of the unlawful detention and arrest initiated by Cst. Kinghorn's actions.

148With respect to this line of inquiry, I find that the impact on the accused was more than minimal. At the point the detention became unlawful everything that followed thereafter resulted in further violations of Mr. Hanif's Charter rights. This, I find, also favours exclusion of the evidence.

THE EFFECT OF ADMITTING THE EVIDENCE ON THE PUBLIC INTEREST IN HAVING A CASE ADJUDICATED ON ITS MERITS

149As in Regina v. Harrison, 2009 SCC 34, the cannabis marihuana and the knife found within the vehicle are reliable evidence and an essential element of the Crown's case. The possession of weapons and possession of controlled substances for the purpose of trafficking are serious matters and with respect to charges involving those matters, there is clearly a public interest in those matters proceeding to trial. If the evidence is excluded, as requested by the defence, the Crown's case with respect to the charges before the court will fail. If admitted, it is an item of proof going to whether or not Mr. Hanif has been proven to have knowledge and control of the substances for the purposes of trafficking and knowledge and control of the knife.

RULING

150The charges before the court are serious charges. As noted in Harrison, however, the seriousness of an offence really has two approaches. If reliable evidence is excluded from a trial, there can be serious consequences to our justice system as a result of the inability of the Crown to prosecute the matter. However, also consideration must be given to the longer term effect on the justice system of prosecuting a crime where evidence was procured through serious violations of an accused's rights.

151This was noted in Regina v. Harrison, supra, where it was also stated, however, that the seriousness of the offence must be considered but must not take on a disproportionate significance. The public's interest in having this matter proceed must be balanced with the breaches of Mr. Hanif's rights as this court has found. Again as noted in Harrison, the court must undertake a qualitative balancing of the tests set out in Grant based on the facts and circumstances before the court. This is not a mathematical or quantitative evaluation of whether the majority of the factors favour exclusion and the balancing must consider the effect that admitting the evidence would have on the long term repute of the administration of justice.

152The first two heads of the inquiry, in my view, favour the exclusion of evidence of the items found within the vehicle on the night in question. When balancing all factors the court is satisfied that the admission of the evidence procured once Cst. Kinghorn re-entered the vehicle to search the console and Cst. Dolderman thereafter would bring the administration of justice into disrepute and that evidence will be excluded from evidence at trial.

153Members of the public such as Mr. Hanif, and indeed the occupants of the vehicle on the night in question, should expect that when they are detained by the police or questioned by the police with respect to matters that their Charter rights will be respected and they will not be detained nor arrested without reasonable and probable grounds. Here, based on the evidence the court has Mr. Hanif's expectations in that regard have not been met.

154For those reasons then the evidence with respect to the knife as well as the marihuana found not only within the console but in the vehicle interior otherwise and in the trunk will be excluded from the trial. As that evidence forms an essential element of the charges before the court, the Crown is not in a position to prove the charges to the degree required and all charges will be marked dismissed.

Released: April 21, 2015

Signed: "Justice G. F. Hearn"