Counsel

Ms. S. Burdo — counsel for the Crown

Mr. G. David Butler — counsel for the accused Shane Bullock

DELLANDREA J.:

I. Introduction

1Shane Bullock is charged with possession of two controlled substances and failing to comply with the terms of his recognizance.

2In the early morning hours of April 10, 2017, Peel Regional Police Constable Cipollone was conducting routine uniformed patrol in the area of Queen St. and Bramalea Rd. in Brampton. The officer had stopped at that location to check in on the safety of a platoon member who had conducted a traffic stop. At approximately 1:15 a.m. he observed the applicant travelling westbound on Queen towards Dixie, passing his and the other police cruiser in what he considered to be an unusual manner, and at excessive rate of speed.

3P.C. Cipollone promptly followed the vehicle, which he maintained sight of. He was unable to close the gap between the suspect vehicle and his own, despite accelerating his cruiser to a speed of near 130 kilometres per hour in such an effort. He saw the vehicle make a series of turns without braking or yielding. He deduced from these combined observations that the vehicle was continuing to travel well in excess of the posted speed limit of 60 kilometres per hour. When the vehicle turned into a more residential area, the officer observed it to proceed through a stop sign without braking or stopping, in clear contravention of the Highway Traffic Act. The officer activated his emergency equipment to stop the vehicle and arrest the driver for the infraction of careless driving.

4The vehicle didn't stop. It continued to a dead-end street then turned into the driveway of a residence at 4 Heather Place. The applicant quickly exited the vehicle and began to walk away from it, as the officer pulled up. P.C. Cipollone exited his vehicle and said "stop". The applicant stopped, and raised his hands above his head. The officer immediately observed the top of a plastic baggie protruding from the waistband of the applicant's pants. At 1:19 a.m., the officer informed the applicant that he was under arrest for possession of a controlled substance.

5The applicant made an utterance to the officer in relation to the baggie. The officer responded by directing the applicant not to say anything further until he gave him his rights. He searched the applicant incident to arrest. The baggie which had been in the applicant's waistband included a quantity of cocaine. His health card was discovered in one of his pant pockets. The applicant was placed in the rear seat of the police cruiser.

6After lodging the applicant in the rear of his cruiser, P.C. Cipollone proceeded to conduct a thorough search of the applicant's vehicle. During the course of this search, the officer located a napkin containing 13 oxycodone pills. P.C. Cipollone was informed by other units who had arrived that the applicant was bound by a recognizance which directed him to be within his residence between the hours of 9 p.m. or 6 a.m. At 1:34 a.m., the officer informed the applicant that he was under arrest for two counts of possession of controlled substances, and fail to comply recognizance. He then provided the applicant with his rights to counsel, and caution. The applicant indicated that he understood his rights and he wished to exercise them. The officer transported the applicant to 21 Division where the applicant's rights to counsel were facilitated.

7P.C. Cipollone was the only witness called on the blended Charter application and trial. The accused called no evidence.

II. Charter Application

8The applicant alleges the following:

(1) That his arrest at 1:19 a.m. for possession of a controlled substance was unlawful as the arresting officer lacked reasonable and probable grounds. The arrest and corresponding detention were, in the applicant's submission, arbitrary, and amount to a contravention of s. 9 of the Charter;

(2) That the discovery of the baggie of cocaine in the applicant's waistband was the product of an unlawful arrest and warrantless search, thereby amounting to a breach of s. 8 of the Charter;

(3) That the search of the applicant's vehicle which followed his arrest and led to the discovery of the oxycodone was likewise unlawful, and contrary to s. 8;

(4) That the arresting officer failed to promptly and effectively inform the applicant of the reason for his arrest and/or detention, contrary to s. 10(a);

(5) That the 15 minute delay between his arrest, and his being advised of his right to retain and instruct counsel by P.C. Cipollone amounts to an infringement of his rights under 10(b) of the Charter.

9The Applicant submits that balancing the factors related to the seriousness of the alleged breaches, the impact of the breaches on the claimant's Charter-protected interests, and society's interest in the adjudication of the case on its merits, the following items of evidence should be excluded pursuant to s. 24(2) of the Charter:

(1) The cocaine seized from the applicant's waistband;

(2) The applicant's health card information, seized from his pants pocket;

(3) The oxycodone pills seized from the glove box of the applicant's vehicle;

(4) The utterance made by the applicant following his arrest;

10The applicant bears the onus on the s.9 and s.10 (a) and (b) Charter arguments on a balance of probabilities. The respondent bears the onus on the related s.8 assertion.

11With respect to the remedy sought pursuant to s.24(2) of the Charter, the applicant must establish a nexus between the evidence seized and the asserted Charter breaches, and establish on a balance of probabilities that the admission of the evidence would tend to bring the administration of justice into disrepute.

12The Respondent submits that the applicant's arrest under the Controlled Drugs and Substances Act was lawful as it was founded on reasonable and probable grounds. She submits that the applicant's detention was therefore not arbitrary, and the corresponding searches of the applicant's person and vehicle were likewise lawful as a valid search incident to arrest. The Crown says that the delay in providing the applicant with his rights to counsel was reasonable and justified. No breaches occurred, in the Respondent's assessment, and no evidence should be excluded.

III. Analysis

(a) S. 9 Arrest and detention

13The applicant submits that no reasonable grounds existed for his arrest under the Controlled Drugs and Substances Act.

14 Section 495(1)(a) of the Criminal Code of Canada, permits a peace officer to arrest without warrant a person who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence.

15The reasonable grounds standard is not met by mere suspicion; it requires a degree of belief closer to reasonable probability. Reasonable grounds are not to be equated with the proof beyond a reasonable doubt, nor even the requirement of a prima facie case. Determinations of the existence of reasonable grounds to believe are to be made by a practical, non-technical, common sense assessment of the totality of the circumstances known to the investigator at the time the arrest decision was made.

16Reasonable grounds for belief have two essential components. First, the arresting officer must have a subjective belief that he or she has lawful grounds for the arrest; and second, those grounds must also be justifiable from an objective point of view.

17The assessment of whether the arresting officer's grounds were objectively reasonable requires a theoretical assessment of the factual matrix that existed at the time the arrest was made, through the lens of a reasonable person. The mythical reasonable person engaged in this objective assessment of the officer's grounds is presumed to have the same experience, training, knowledge and skills as the officer. If such a reasonable person would reach the same conclusion as the one made by the police officer, then the grounds for arrest will be considered to be objectively reasonable.

18The applicant's argument with respect to the suggested paucity of grounds for his arrest under the CDSA are as follows:

(1) The basis for P.C. Cipollone's pursuit and stop of the applicant were strictly related to his driving conduct under the Highway Traffic Act and therefore do not support the forming of grounds under the Controlled Drugs and Substances Act;

(2) P.C. Cipollone did not ask the applicant what was in the bag before he arrested him;

(3) P.C. Cipollone's observation of only "a few inches" of a plastic baggie protruding from the applicant's waistband, the contents of which he admitted he could not be certain of, could not reasonably support either a subjective or objective belief that the bag contained cocaine.

19The Respondent argues that it is the totality of the officer's observations of the applicant, which must be considered in the assessment of reasonable grounds. The Crown argues that P.C. Cipollone had an abundance of grounds to detain and arrest the applicant under the HTA for careless driving. Further, she notes that when the applicant raised his arms to reveal the baggie in his waistband, the officer's extensive training in experience in relation to drug investigations, and in particular, his training related to common methods of concealment for controlled substances, grounded a reasonable basis for his arrest of the applicant under the CDSA.

20Upon review of all of the evidence in its totality, and applying the applicable legal principles, I agree with the Crown's submissions. P.C. Cipollone had both subjectively held reasonable grounds for his arrest of the applicant under the CDSA, and those grounds were objectively reasonable. The facts which I find in support of this conclusion are as follows.

21P.C. Cipollone first observed the applicant in his vehicle as Mr. Bullock passed him in his stationary position at an unrelated traffic stop on Queen St. Unlike other motorists who had slowed down to carefully pass the location of the two police cruisers at the roadside, the applicant did not slow in his approach. To the contrary, it appeared to the officer that the applicant was speeding to get away from the area. It was for this reason that he chose to pursue him.

22P.C. Cipollone maintained sight of the applicant's vehicle, but could not catch up with it, as the applicant continued driving at a high rate of speed. P.C. Cipollone candidly testified that he was not able to ascertain the exact speed that the applicant was travelling at, as his cruiser was not equipped with a radar, and it would have otherwise been necessary for him to catch up with and effectively keep pace with the vehicle in order to be able to verify his precise speed of travel. What he did know, and which I accept, is that he attempted to catch the applicant by accelerating his own vehicle on Queen St. to in excess of 120 kilometres per hour in an effort to catch up with the applicant, and was unable to do so. He considered the possibility of terminating the pursuit due to the excessive rate of speed which he was himself required to maintain to keep up his observation of the applicant.

23He saw the applicant turn right on Dixie without applying his brakes or yielding. The applicant then made a left turn, again without applying his brakes or decelerating, onto a Hillside drive. The officer remained in pursuit. The officer was aware that the speed limit on the residential street of Hillside drive was 50 kilometres per hour. The applicant continued at the same speed on Hillside, then proceeded through the posted stop sign at Loxley Place, without braking or stopping. The officer's deduction from these observations, which I conclude to be reasonable, was that the applicant's vehicle had been travelling at a rate in excess of the posted limits of 50 and 60 kilometres per hour on the streets on which he travelled since passing the officer on Queen Street. Upon observing the stop sign infraction, P.C. Cipollone activated his roof lights, with the intention of effecting the applicant's arrest for careless driving. The applicant did not stop.

24Mr. Bullock made another right turn on Heather Place, where he pulled into the driveway at #4. The officer testified that the applicant put his vehicle into park so quickly that it was still 'rocking' when he opened the door, disembarked, and started walking away across the lawn. The officer pulled up behind the applicant, exited his cruiser, and upon seeing Mr. Bullock moving away, said "stop".

25P.C. Cipollone testified that at that moment in time, he believed that he had reasonable grounds to arrest Mr. Bullock for the Highway Traffic Act offence of careless driving (s. 130). The evidence abundantly supports this conclusion. When the applicant started to walk away, the officer properly directed him with a single word, to stop.

26I accept the officer's testimony that the investigation suddenly changed when the applicant raised his hands above his head in response to his direction. When he did so, the officer was able to observe a few inches of a transparent plastic baggie protruding from Mr. Bullock's waistband. The bag was twisted so that it appeared tighter at the bottom than at the top. The item was in plain view of the officer from his vantage point some 15 feet away. The matrix of facts presented to the officer, in what had admittedly begun as an HTA stop following a short pursuit, now included the discovery of this particular item.

27Mr. Bullock was wearing black track pants, with pockets. The officer described the bag as being 'crudely' tucked into the waistband. P.C. Cipollone candidly acknowledged that he could not, and did not know with certainty what was in the bag. However, he testified that on the basis of his substantial training in the area of drug investigations, and the totality of circumstances, he had reasonable grounds to believe that the bag contained a controlled substance. Consequently, he placed Mr. Bullock under arrest.

28The Supreme Court of Canada in R v. MacKenzie has directed that as a matter of law, a trial judge must appreciate the significance of police experience and training when evaluating the probative value of evidence, in particular, when considering the reasonable grounds asserted for investigative detention or arrest. With his signature clarity, Justice Moldaver explained the rationale for this approach:

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that"a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police". Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

29The approach mandated by MacKenzie does not direct that police training and experience be blithely accepted by the courts. Mere hunches or intuition grounded in the officer's experience will not suffice. Reasonable suspicion or grounds are objective standards which must stand up to independent scrutiny. As Moldaver, J. explained:

In sum, while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue skepticism or the requirement that their every move be placed under a scanning electron microscope.

30In assessing whether reasonable grounds existed for the applicant's arrest under the CDSA, I must assess the objective reasonableness of the stated grounds through the lens of a reasonable person standing in the shoes of the police officer.

31That police officer was P.C. Cipollone.

32During his four years with the Peel Regional Police, P.C. Cipollone had participated in over 100 drug investigations which led to arrests. The officer had taken in excess of 5 courses or seminars at both the Canadian Police College and through Peel Police street crime on the subject of the detection and investigation of drug related offences. Among the topics on which the officer had received training was on common methods and locations used by individuals to conceal controlled substances. The officer had learned through this training that cocaine and other substances are often carried in small transparent baggies and that common efforts of concealment included tucking the bags down the individual's waistband.

33I accept the officer's evidence that he considered the totality of circumstances presented to him when he made the decision to arrest the applicant for possession of a controlled substance. These circumstances included:

(1) All of the driving behaviour, including:

(a) The unusual manner whereby the applicant failed to slow down when passing the two stationary police cruisers on Queen street;

(b) The excessive rate of speed whereby he departed from the location of the police vehicles;

(c) The continued rate of excessive speed which he maintained while travelling along Queen, followed by his failure to yield or brake at the intersection of Dixie;

(d) His failure to stop at the marked intersection of Hillside and Loxley;

(e) His failure to stop after P.C. Cipollone engaged his emergency equipment on Hillside drive;

(f) His sudden and hurried stop at 4 Heather Place;

(g) His efforts to walk away from his vehicle immediately upon stopping, as P.C. Cipollone arrived, and parked his vehicle some 15 feet away, with emergency equipment activated.

As well as:

(h) His raising of his hands upon being directed by the officer to stop, which revealed the top of a small transparent baggie protruding from the waistband of his pants.

34The officer considered the totality of circumstances, through the lens of his training and experience, when he made the assessment of his grounds to arrest Mr. Bullock under the CDSA. While the pursuit and stop had been originally aimed at the "extremely aggressive" driving which prompted the HTA arrest, the circumstances evolved, as they often do, in the dynamics of a fluid investigation. What was required were subjectively held, objectively verified reasonable grounds for the investigative decision which was made.

35When considering the totality of the prolonged evasive driving, the applicant's haste in exiting and moving away from his vehicle, together with the presence of a small, tightly wound baggie concealed in his waistband, P.C. Cipollone formed the belief that the applicant was in possession of a controlled substance. In assessing the objective reasonableness of the officer's grounds for arrest, I must recall that such decisions are often "made quickly in volatile and rapidly changing situations" where detached "[j]udicial reflection is not a luxury the officer can afford."

36I find that P.C. Cipollone's subjectively held grounds for the applicant's arrest were likewise objectively reasonable.

37The applicant has failed to demonstrate that his arrest was arbitrary. I have considered the case of R v. Jarrett, 2011 ONCJ 597, provided to me by the applicant, in which a finding of arbitrary detention was made by that court. Respectfully, the facts and conclusions of Jarrett are entirely distinguishable from the facts of the instant case, and do not support the applicant's request.

38In Jarrett, the suspect was observed "doing no more than smoking a cigarette with an associate" in an area were drug transactions were known to occur, when a uniformed police officer invited him to identify himself and submit to a consent search for weapons. The police officer in that case exceeded the boundaries of the purported consent search and lifted the defendant's shirt up, to reveal a baggie tucked in the back of his waistband. The defendant was arrested under the CDSA. The police conduct in lifting the defendant's shirt to reveal the presence of the drugs was the conduct which that court held to have been an unlawful search – as it occurred absent consent or other lawful authority.

39In this case, the discovery of the baggie in Mr. Bullock's waistband was not the product of any search by the officer. When the applicant raised his arms in response to the officer's direction that he stop, he unwittingly placed the item within the plain view of the officer. The doctrine of plain view authorized and permitted the officer's observation and consideration of the baggie as part of his evolving grounds for belief.

40It was not only the baggie, nor its placement which led the officer to conclude that he had sufficient grounds for arresting Mr. Bullock under the CDSA – although these were certainly among the factors considered. It was the totality of circumstances, viewed through the lens of the officer's extensive training and experience in drug investigations, which supported his grounds. These grounds included the applicant's evasive driving, failure to stop, physical exit from his vehicle and hurried steps away from the officer as he approached. The elements of evasion or flight from the police, together with the concealment of items have been accepted by other courts as offering an objectively reasonable basis for CDSA arrests by experienced officers.

41The officer's grounds to arrest were reasonable. The application under s. 9 of the Charter is dismissed.

(b) s. 8: The search of the applicant's person and vehicle

42The searches of the applicant's person and of his vehicle were discrete investigatory steps, the lawful basis for which require separate examination.

43After having placed Mr. Bullock under arrest for possession of a controlled substance, P.C. Cipollone took physical control of the applicant, who was immediately cooperative. The applicant then made an utterance to the officer, which I will address below in my analysis to the alleged breach of s. 10(a) of the Charter. Turning to the search of the applicant's person, I have found that the grounds of his arrest under the CDSA were supported by reasonable grounds. The arrest was therefore lawful. It follows that the consequential pat-down search of the applicant's person was authorized by common law which allows the search of a lawful detainee incident to arrest. The search conformed with the proper boundaries of this authority. The applicant has failed to establish that the search of his person, and seizure of his identification, was contrary to s. 8 of the Charter.

(c) s. 8 search of Applicant's vehicle, s. 10(a) and (b)

44The submissions in this case make it clear that the s.8 complaint aimed at the search of the vehicle is dependent on resolution of the core issue around ss. 10(a) and (b) of the Charter. I will address each of these issues in turn now.

(d) s. 10(a) Right to be informed of reasons for detention or arrest

45Critical to the assessment of any alleged Charter breach are the findings with respect to the sequence of events.

46The uncontested evidence from the officer in this case, which I accept, is that after hastily parking his vehicle in the driveway of the residence at 4 Hannah Place, the applicant immediately exited his vehicle and began walking away from the area. The officer was seconds behind the applicant, pursuing him in a fully marked cruiser with its emergency equipment activated.

47The officer quickly disembarked. He was approximately 15 feet away from the applicant, who was still moving away. The officer said the word "stop". The applicant complied. He stopped and raised his hands over his head, leading to the officer's observation of the baggie of cocaine. The officer immediately informed Mr. Bullock that he was under arrest for an offence under s. 4(1) of the CDSA for possession of a controlled substance.

48Section 10(a) of the Charter guarantees that everyone on arrest or detention be informed promptly of the reasons therefore. A person can only exercise their s. 10(b) right in a meaningful way if they are aware of the extent of their jeopardy. The pertinent question in assessing the s. 10(a) requirement is whether the accused can reasonably be supposed to have understood the basis for his apprehension.

49There is no basis to the applicant's s. 10(a) claim. The applicant had been pursued by a uniformed officer in a fully marked cruiser after committing a series of HTA infractions, amounting to careless driving. He had parked his car in a driveway (not his own) and begun to flee on foot. P.C. Cipollone pulled in behind him with his emergency equipment fully engaged. The officer had lawful grounds to effect the applicant's arrest under the HTA which included his authority to detain the applicant for that purpose. The officer's direction to the applicant to stop was aimed preventing the applicant's evasion of a lawful investigation, and no more. The circumstances presented to the applicant would have made him fully aware of the basis for his detention under the HTA as triggered by the officer's single word of direction.

50Once the applicant raised his hands and the matrix of the investigation changed with the revelation of the concealed baggie, the officer immediately advised the applicant of his arrest under the CDSA. There was no delay in advising the applicant of the reason for his arrest, and no improper questioning of him, as there had been in R v. Nguyen. The application under s. 10(a) is dismissed.

(e) The Applicant's Utterance

51Statements made naturally or spontaneously during the course of an event may be admissible as part of the res gestae as an exception to the hearsay rule. Immediately upon being informed by P.C. Cipollone that he was under arrest for a CDSA offence, the applicant stated: "come on man, it's just coke". The officer instructed the applicant not to speak until he was advised of his rights to counsel.

52I am satisfied that there had been no promises, threats, or inducements preceding Mr. Bullock's spontaneous statement. The statement was not made in response to any inquiry from the police officer. The Crown has proven the voluntariness of the statement and I am satisfied that it is admissible as part of the res gestae, subject to my later findings on the Charter application.

(e) s. 10(b) Right to counsel

53Section 10(b) of the Charter provides that upon arrest or detention, individuals must be advised of their right to retain and instruct counsel "without delay".

54It is not disputed that there was a delay of at least 15 minutes between the applicant's arrest at 1:19 am, and when the delivery of the rights to counsel began at 1:34 a.m. What is in dispute is whether this delay was justified, or alternatively, if it amounts to a breach of the applicant's rights under s. 10(b) of the Charter.

55After arresting Mr. Bullock and completing a pat-down search, P.C. Cipollone placed the applicant in the rear seat of his cruiser. Other officers had arrived on scene by this point, and P.C. Cipollone tasked one of his colleagues with checking Mr. Bullock's name on the police databases. Then he decided to search the applicant's vehicle incident to arrest.

56P.C. Cipollone conducted a thorough, methodical search of the interior, trunk and compartments of the applicant's vehicle. He testified that he "always searches a vehicle the same way". He divides the vehicle into five sections in a horseshoe shape, and searches the contents of each section sequentially, beginning with the driver's compartment. When examining each of the interior portions of a vehicle, he makes it his practice to sit on each seat, and carefully examine the areas within the immediate reach of those locations.

57It was during the officer's examination in this manner of his fifth and final section of the applicant's vehicle, namely, the front passenger seat, that the officer searched the glove box compartment and located the 13 pills of oxycodone, wrapped within a napkin. This discovery occurred while the applicant remained seated in the rear seat of the police cruiser, now several minutes since his arrest, awaiting his rights to counsel.

58The officer explained his rationale for his chosen investigative steps and the resulting delay in providing the applicant's rights to counsel in his testimony as follows:

(a) The officer had securely lodged the applicant in the rear of his cruiser, and had made him aware of the reasons for his arrest. It was the officer's understanding that it was "ok to make him wait a few minutes to make sure everything was ok" before providing rights to counsel;

(b) The officer testified that he understood that it was "ok" to "take your time" before providing rights to counsel, provided the detainee was "safe and secure";

(c) The officer did not know whether there was "something or someone" in the applicant's car which could place he or other officers at risk. For this reason, he determined that the vehicle needed to be promptly searched.

59During cross-examination it was put to the officer that he did not understand that he had a positive duty to provide the applicant with his rights to counsel without delay. The officer testified that he was aware of this duty, but understood that provided the detainee was secure, he was entitled to "do other stuff", in particular, to take steps to make sure that he and "everyone else was safe" first.

60It has been nearly a decade since the Supreme Court of Canada in R v. Suberu made it clear that the words "without delay" within s. 10(b) of the Charter are to be interpreted as a requirement that a person who has been arrested or detained must be advised of their rights to counsel "immediately". Immediacy is the mandated, constitutional imperative which gives "stable and predictable" meaning to the right guaranteed by s. 10(b), and to the specific obligations of the police.

61Subject to legitimate concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

62The explanations given by the officer for his delay in providing rights to counsel to the applicant were insufficient, and belied an unfortunate misunderstanding by the officer of the imperative expressed in s. 10(b).

63It was clear from his evidence that P.C. Cipollone was an earnest, hard-working police officer. He provided his evidence in an articulate, professional manner. It was apparent that the officer's investigative steps were chosen carefully, based on his respect for his legal duties and responsibilities, as he understood them to be.

64Unfortunately, the officer's understanding of his duty to provide rights to counsel "without delay" was somewhat mistaken. A problematic theme of the officer's evidence on this issue was his repeated belief that provided an arrestee was safely and securely detained, it was ok to "make him wait" in order to continue the investigation and "ensure that everything was ok." The officer's stated preference of "gather[ing] knowledge from other officers" before advising the applicant of his rights to counsel was consistent with this misguided approach. The term "without delay" within s. 10(b) does not mean "as soon as practicable" or "whenever you're ready". It has been interpreted by our highest court to mean "immediately".

65To be clear, Item (c), the inspection of a vehicle's interior to ensure officer and public safety is a legitimate police objective which can, in certain circumstances, justify a delay in the provision of rights to counsel. On the facts of this case, however, this concern should not have been prioritized by the arresting officer ahead of his provision of the informational component of the rights to counsel. When P.C. Cipollone placed the applicant in the rear of his cruiser and elected to proceed with the search of his vehicle, there were other police officers present. Securing the vehicle and potentially locating other evidence were important tasks, but the mandate for their completion was not one of immediacy, as was the priority task of delivering rights to counsel. Any one of the other officers present could have been directed to complete the inventory of the applicant's car, or the task could have been simply delayed until after the rights to counsel were promptly given. This duty should have been well understood by the arresting officer.

66The total delay in advising the applicant of his rights to counsel was at least 15 minutes. The officer engaged in other investigative activities prior to providing Mr. Bullock his rights to counsel. The provision of rights to counsel should have been the priority. The officer's approach in this case cannot be reconciled with requirements of Suberu.

67The applicant has established a breach of his rights under s. 10(b) of the Charter.

(f) s. 8 Search of the Applicant's vehicle

68Whereas the officer's discovery of the bag of cocaine in the applicant's waistband occurred during the lawful pat-down search immediately incident to his arrest, and prior to his being denied his rights to counsel under s. 10(b), the search and seizure of oxycodone from the applicant's vehicle occurred in the immediate shadow of that breach.

69The right to search a vehicle incident to arrest in any given case, and the scope of that search, will depend on a number of factors, including the basis for the arrest, the location of the vehicle, and other relevant circumstances. As Watt J.A. recently observed in R v. Tsekouras"what matters is that there be a link between the location and the purpose of the search and the grounds for the arrest".

70P.C. Cipollone testified that his purpose in searching the applicant's vehicle was to "make sure that there wasn't something or someone in that car" that could have placed himself or his fellow officers at risk. Concerns for officer safety are well-known to justify the search of a vehicle incident to arrest, as is the objective of preserving available evidence relevant to the offence charged.

71While the purpose expressed by the officer for conducting the search – officer safety – justified the search of the applicant's vehicle, the method used by the officer to effect his purpose stretched the boundaries of that objective and the scope of his authority to search in the circumstances. The goal of ruling out that there was "someone or something" in the car could have been achieved by a briefer, more cursory inspection, as opposed to the methodical inventory search conducted by the arresting officer for over 15 minutes, during which time applicant's rights to counsel were being delayed.

III. s.24(2) of the Charter – Exclusion of Evidence

72Having found a breach of the applicant's Charter rights guaranteed by s. 10(b), I must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to the following three factors:

(1) The seriousness of the Charter infringing state conduct;

(2) The impact of the breach on the Charter-protected interests of the accused;

(3) Society's interest in the adjudication of the case on its merits.

73The assessment of the seriousness of Charter-infringing conduct requires the court to locate the conduct on a spectrum of seriousness, with inadvertent or minor violations at one end and a blatant or brazen disregard for Charter-protected interests at the other.

74I find the s. 10(b) violation in this case to be quite significant. The breach here proceeded from what was an apparently significant gap in the officer's training and knowledge as it relates to the important mandate contained in s. 10(b) of the Charter that rights to counsel be provided "without delay". Such gaps cannot be allowed to occur. Certainly not when the clear and concise instruction from the Supreme Court on this issue has existed for nearly 10 years, and when the issue has been repeatedly addressed by numerous courts in this very jurisdiction. While I found that P.C. Cipollone was well-informed in other areas, such as the area of drug investigations, his deficit of knowledge in this area was significant, even if unintended. This branch of the test points strongly towards exclusion.

75With regard to the applicant's Charter-protected interests, I find that they were modestly impacted. The delay of rights to counsel here was 15 minutes, which is not an insignificant duration. The informational component of the right to counsel was delayed, but not denied. There was no denial of the implementational component of the rights to counsel alleged, or established. Upon receiving his rights to counsel, the applicant indicated he wished to exercise them. He was ultimately afforded the opportunity to contact counsel, and did so.

76Regarding the third branch R v. Grant, I accept that an adjudication on the merits is important. The possession of controlled substances is serious societal concern in 2018. I accept that the evidence is highly reliable. I have also considered the importance of the sought-to-be-excluded evidence from the Crown's case. Finally, the long term repute of the administration of justice is to be considered, given the Charter breach at issue and the frequency with which it continues to arise, nine years after Suberu.

77Balancing all of the respective considerations, the applicant's result under s. 24(2) is mixed. The different categories of evidence justify different results in this particular set of facts.

78With respect to the cocaine and health card seized from the applicant incident to arrest, I am not satisfied that their exclusion is warranted. These items were lawfully seized during the valid exercise of the officer's authority to search at common law, immediately incident to arrest, and before any breach of the Charter. Their discovery was disconnected from the s. 10(b) breach and there is a strong societal interest in the adjudication of the case on its merits. The same reasoning applies to the spontaneous utterance made by the accused, coincident with his arrest, and before any denial of his rights to counsel. These items of evidence will be admitted.

79By contrast, the search of the applicant's vehicle occurred contemporaneously with the s. 10(b) violation. This factor exacerbates the seriousness of the breach. I accept that the applicant has established a basis for exclusion of the items located and seized from the inside of his car, namely, the oxycodone. These items are excluded pursuant to section 24(2) of the Charter.

Disposition

80I am satisfied based on the admissible evidence that the Crown has established the elements of count 1, possession of cocaine, beyond a reasonable doubt. There will be a conviction on that count.

81Having held that the oxycodone seized from the applicant's vehicle is to be excluded pursuant to s. 24(2), count 2 will be dismissed.

82Finally, with respect count 3, I am satisfied that the Crown has proven the elements of this offence beyond a reasonable doubt. At the time of his investigation for these offences, Mr. Bullock was bound by a recognizance which he entered into on December 7th, 2016 before a justice which required him to remain in his residence between the hours of 9:00 pm and 6:00 a.m., except in exceptional circumstances prescribed within that order. I have reviewed the original order and find that his presence outside of his residence after 1:00 am on April 10th, 2017, did not conform with any of these exceptions. He continued to be bound by this term. The Crown has proven that he was in breach of it. There will be a conviction entered on count 3.

Released: September 7, 2018

Signed: Justice A. Dellandrea

R v. Bullock, 2018 ONCJ 598

Case Summary

Counsel

DELLANDREA J.:

I. Introduction

II. Charter Application