WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2019-06-05
COURT FILE No.: Toronto, 19-Y190106
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
H.M., a young person
Before: Justice Alex Finlayson
Heard on: February 19, 20, March 1 and 19, 2019
Reasons for Judgment released on: June 5, 2019
Counsel:
- Ed Stimec — counsel for the Crown
- Luka Rados — counsel for the accused H.M.
ALEX FINLAYSON J.:
PART I: NATURE OF THIS PROCEEDING
[1] On June 14, 2018, Detective Constable Kristopher Lobo initiated a "high risk take down" of the accused, H.M. With his gun drawn, DC Lobo took H.M. out of a grey Volkswagen sedan that was parked in the parking garage of a Toronto Community Housing Corporation ("TCHC") apartment building at 200 Wellesley Street East, put him on the ground, handcuffed him and placed him under arrest for discharging a firearm (an offence that ended up not being the subject matter of this trial). Other officers arrested three other occupants of the car at the same time.
[2] DC Lobo then searched H.M. incidental to the arrest. DC Lobo discovered a loaded firearm in H.M.'s pants. He placed H.M. under arrest for having the weapon. Other officers searched the other occupants and portions of the car, finding a second gun, drugs, some cash and related paraphernalia. Two days later, after the police obtained a warrant, a further search of the car was undertaken revealing more contraband.
[3] H.M. is charged with 16 firearms and drug-related offences. H.M. has pleaded not guilty to each of the 16 charges before the Court.
[4] H.M. launched an application pursuant to sections 8, 9 and 10(a) and (b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the "Charter"). He alleges various violations of his Charter rights and he seeks to exclude the firearms and all of the contraband seized pursuant to section 24(2) of the Charter.
[5] The Crown concedes that the police violated H.M.'s section 8 and 9 Charter rights. The Crown admits that the arrest was not lawful and therefore the resulting searches of H.M. and the car on June 14, 2018 were unreasonable. The Crown also concedes that if the evidence is excluded, then this Court should acquit H.M. of all of the charges. But if the evidence is admitted, as the Crown argues it ought to be, then the Crown says that H.M. should be found guilty of all of the charges before the Court.
[6] The defence abandoned its arguments concerning section 10 of the Charter, but made arguments concerning section 8 and 9 of the Charter. It asks the Court to exclude the firearms and all of the contraband under section 24(2) of the Charter. The defence concedes that if the evidence is admitted, then H.M. would be found guilty of possession of the firearm found in H.M.'s pants. But otherwise the defence argues the Crown has not proven its case regarding the balance of the charges regardless of the outcome of the Charter application.
[7] This case proceeded before me as a blended hearing of the Charter application and the trial. The Crown called 7 of the 8 police officers involved with this matter to testify. The Crown also tendered certain documentary evidence. The defence did not call any evidence. Both counsel agreed that the evidence would form part of the record for both the Charter application and the trial.
[8] What follows is my judgment respecting both the Charter application and the trial.
[9] For the reasons that follow, I find:
(1) H.M.'s section 9 Charter right has been violated as the police did not have grounds to arrest H.M.;
(2) The warrantless searches of H.M. and of the car on June 14, 2018 were unreasonable and contrary to section 8 of the Charter;
(3) The loaded firearms that the police found in H.M.'s front waist band and in the center console of the car, plus the cash on H.M.'s person, were obtained in a manner that infringed or denied H.M.'s section 8 and 9 Charter rights;
(4) I would not exclude any of the evidence that the defence seeks to exclude in this case based on my analysis of section 24(2) of the Charter;
(5) I find H.M. guilty of one of the counts under sections 91(1), 92(1), 94(2) and 95(1) of the Criminal Code as set out in Information 19-Y190106;
(6) There still remains the question of whether any of these findings of guilt should be stayed based on the principles in R. v. Kienapple; and
(7) I find H.M. not guilty of all remaining counts in Information 19-Y190106 and not guilty of all counts in Information 18-Y180421.
PART II: FACTS
[10] To fully understand the Charter arguments and the various charges the Crown has pursued, I begin by providing the background leading up to this encounter between H.M., the other occupants of the car in the parking garage, and the police on June 14, 2018.
[11] In a nutshell, the police had been investigating two prior Toronto shootings, one on May 9, 2018 and a second on June 4, 2018. They went to 200 Wellesley Street twice on June 14, 2018, initially acting on a tip. It was during their second trip to 200 Wellesley Street East on June 14, 2018 that the police arrested H.M. and the others.
A. The May 9, 2018 Shooting
[12] Seven of eight police officers who were involved in this matter testified at this trial. They are each police officers working in the major crimes unit of the Toronto Police 51 Division. Each of those officers has several years of experience, holding either the rank of Detective or Detective Constable. I begin with Detective Constable McGrath's evidence regarding the May 9, 2018 shooting as DC McGrath played an integral part in the investigation of the two shootings, by both reviewing video footage, creating officer safety bulletins, monitoring the 200 Wellesley Street East parking garage by CCTV and imparting information to the other officers, on which they then acted.
[13] DC McGrath was not working on May 9, 2018 when this first shooting occurred. However, when he next returned to work, he watched CCTV surveillance video footage of the shooting and then created the first of two officer safety bulletins that formed part of the evidence at this trial.
[14] Based on his review of CCTV video footage, DC McGrath testified that on May 9, 2018, a "dark"[1], four door Volkswagen sedan, was driving eastbound on Gerard Street East. It turned north onto Sumach Street. A person in dark clothing got out of the car, crossed Gerard Street East, and shot a gun towards a group of youths hanging out behind a different TCHC building, at 463 Gerard Street East.
[15] Detective Mark Beson explained to the Court that during the May 9, 2018 encounter between the shooter and the group of youths, one of the youths being fired at shot back. Apparently, that return shooter has been arrested.
[16] Following the exchange of fire, the shooter (who had emerged from the Volkswagen) left the scene, got back in the car, and fled.
[17] The officer safety bulletin that DC McGrath created describes the shooter (from the Volkswagen) as an "unknown male", who was armed and dangerous. It states that there was a second party driving the vehicle, although the police had no images of that person.
[18] Although he referred to the car as "dark" in colour during his testimony, in the officer safety bulletin DC McGrath described the Volkswagen as a "black", 4 door sedan, tinted and with an unknown marker.
B. The June 4, 2018 Shooting
[19] Then, there was another shooting on June 4, 2018. Once again, DC McGrath reviewed CCTV video footage and created an officer safety bulletin about this one.
[20] Regarding the June 4, 2018 shooting, also based on his review of the footage, DC McGrath testified that a car, which he believed to be the same Volkswagen as that involved in the prior shooting, was driving westbound on Gerard Street East. It was the middle of the day when the car passed the same TCHC building at 463 Gerard Street East. There were three males standing outside as the car passed. One of the males fired a gun at the car. The video footage of this shooting, tendered by the Crown at this trial, confirms this.
[21] DC McGrath's second officer safety bulletin again describes the car as a "black" Volkswagen, and this time, DC McGrath added the descriptor as a "cc sedan". On the bulletin, he wrote that the occupant(s) of the car were believed to be the "intended target" of a shooting at the intersection of Gerrard Street East and Sumach Street. As he did on the first safety bulletin he created, DC McGrath again described the car as having tinted windows. And like before, the police still did not have a license plate number.
[22] In cross-examination, DC McGrath admitted that he was not that familiar with certain models of Volkswagen cars. Regarding the car described in the bulletin about the June 4, 2018 shooting, DC McGrath said he used the descriptor "cc" because it was the best description he could come up with. He said, "I'm not an expert" but, "it didn't appear to be a Jetta to me". He also testified that he thought a Volkswagen "cc" and a "Passat" are the same type of car.
C. The First Attendance at 200 Wellesley Street East on June 14, 2018
[23] Ten days later, on June 14, 2018, several police officers attended at the underground parking garage of 200 Wellesley Street East, also a TCHC building.
[24] Just before 6:00 pm on June 14, 2018, TCHC Special Constable Khan telephoned DC McGrath, telling him that a Volkswagen, which he believed may have been involved in the shootings, was parked in the underground garage. It was reported that there were four males inside the car, sleeping.
[25] Detective Beson and DCs Matthew Gerry, Christopher Ito, Joseph Jacksa, Kristopher Lobo, Dustin McGrath, Kempton Shaw and DC Sotelo participated in a briefing. What they did or did not discuss was the subject of conflicting testimony at this trial. Nevertheless, their briefing was very short, and the police officers did not have a second briefing in between attendances.
[26] After that single, short briefing, 5 of those officers (Detective Beson and DCs Jacksa, McGrath, Shaw and Ito), went to parking garage.
[27] DC McGrath testified that when he and the other officers arrived, they found the car in the garage, unoccupied. This was at 6:08 pm. The car in the parking garage was grey in colour.
[28] DC Jacksa looked in the car windows, but he did not see any contraband. The police noticed two pieces of duct tape on the driver's side of the car. DC McGrath pulled back the duct tape, discovering two bullet holes. I heard conflicting testimony about what happened with the duct tape leading to the discovery of the bullet holes, which I will come back to.
[29] After discovering the bullet holes, DC McGrath went to a TCHC office (at another location) to monitor the car via CCTV. The other officers left the garage. Then at 7:19 pm DC McGrath observed four males, all wearing dark clothing, getting in the car.
[30] At no time between their initial arrival at 6:08 pm and 7:19 pm did the police have a second briefing, even after discovering the bullet holes. Then, when DC McGrath saw the males return, he telephoned his team, telling them to get to 200 Wellesley immediately, and then he went there himself.
[31] DC McGrath arrived at 7:47 pm. By that time, the four males had already been arrested.
D. The Second Attendance at 200 Wellesley Street East on June 14, 2018 and the Arrests
[32] It was Detective Beson and DCs Gerry, Lobo and Shaw who first arrived at the garage this time. DCs McGrath, Ito, Jacksa came later. Soon after the arrival, DC Lobo proceeded to arrest the accused leading to the discovery of the loaded firearm in his front waist band.
[33] DC Lobo was not in attendance at 200 Wellesley Street East with the first group of officers earlier that day. He testified that he had received information that the four males were seen on the CCTV entering the car (presumably from DC McGrath's CCTV surveillance, or indirectly through another officer whom DC McGrath telephoned), so he went to the parking garage with the three officers, arriving at approximately 7:20 pm.
[34] DC Lobo said that the car had been moved, but he and the other officers found the car in a different spot. At approximately 7:45 pm, DC Lobo approached the driver's side of the car. He yelled "police" and ordered H.M. to open the door. He took H.M. out of the car, placed him on the ground, handcuffed him and told him that he was under arrest for discharging a firearm (again, not one of the charges at this trial). He placed H.M. under arrest before any contraband had been located.
[35] Although he participated in the take down, Detective in charge Beson seemed unaware that H.M. had even been arrested for discharging a firearm. In cross-examination, he said he did not hear DC Lobo place H.M. under arrest for this.
[36] Meanwhile, as DC Lobo approached the driver's side of the car, DCs Shaw and Gerry approached the passenger's side. DC Shaw said he yelled out that the occupants were under arrest too. DC Gerry yelled "police don't move".
[37] One of the occupants of the car was a person named L.R. L.R. was in the front passenger side of the vehicle. As he came out of the car, as ordered by DC Shaw, DC Gerry handcuffed him. Another of the four occupants, R.B., was sitting in the rear driver's side of the car. And another named H.K. was seated in the rear passenger side.
[38] DC Shaw yelled directions at these two persons also, as did DC Gerry. Both occupants in the rear of the car complied and exited the car via the back seat passenger's side door, at which point they were arrested by DC Gerry.
[39] DC Jacksa was one of the officers who had initially attended at 200 Wellesley earlier that evening, but he was not with the first wave of officers re-attending. He was not present when this "take down" commenced, but he said it was in progress when he arrived again. He arrived in time to handcuff R.B. It was also DC Jacksa who searched the car once the loaded firearm had been found in the accused's waist band.
[40] Following his arrest of H.M., DC Lobo performed a Level 1 field search incident to arrest. He said he used his hands to feel over the exterior H.M.'s clothes, first in the front pocket area, then the back waist band area, then his legs and finally his front waist band area. By doing this he discovered that H.M. had a handgun tucked into his front waist band. He removed it and yelled "gun" to his colleagues.
[41] DC Lobo then told H.M. he was under arrest for the unauthorized possession of a firearm. After the arrest, he identified the accused as H.M., a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended (the "YCJA"). He later read to him his rights to counsel as required by the YCJA. He said he did this twice.
[42] DC Gerry searched H.K. He testified that he found a baggie with marijuana in it that was wrapped in black plastic with writing on it, in H.K.'s front pocket. He found a "large quantity of cash" in his left pocket. He testified that he seized the drugs and money as proceeds of crime and told H.K. that he was under arrest for the prior shooting, for possession of a firearm, for the marijuana and for possession of proceeds of crime.
[43] While this take down was in progress, DC Ito was waiting for backup outside of the garage and he monitored the entrance/exit of the garage while he waited. By the time he entered, all four occupants had been taken out of the car and were on the ground. He testified they were "being investigated".
[44] As mentioned earlier, once DC Lobo found the firearm on H.M., DC Jacksa did a search of the driver's seat area of the car. At approximately 7:52 pm, he discovered a second firearm located in the centre console between the front driver's and passenger's seats. He explained that the firearm was sitting upside down, wrapped in a bandana, with the magazine facing upwards. In cross-examination, he said the gun was "nestled" in the bandana, but it was in view (once the console was opened) notwithstanding the bandana.
[45] When DC McGrath arrived on the scene at 7:47 pm, after the arrests had already occurred, he began taking notes. In addition to being a note taker, DC McGrath was tasked with proving the firearms safe. He testified that both firearms were .22 calibre guns, made by "German Sport Guns", model 1911. Regarding the gun in H.M.'s front waist band, DC McGrath testified that it had a magazine inside it, and a bullet in the chamber. DC Ito took the weapon after DC McGrath proved it safe. DC Ito also testified that it was a .22 calibre gun, black and brown in colour, and made by "German Sports Gun". He testified the serial number was BL34484 and that it was "loaded with 10 rounds" including a bullet in the chamber.
[46] DC McGrath testified that the firearm found by DC Jacksa in the center console of the car was also loaded. Once it was proved safe, DC Ito also took this gun. DC Ito also explained it was a .22 calibre weapon, black in colour, also made by "German Sports Gun" and it had a serial number BL34496. It too was loaded with 10 rounds, with a bullet in the chamber.
[47] DC Lobo testified that he seized $265.00 from H.M.'s person. DC Lobo testified that H.M. had the "fob" for the Volkswagen "on his person". After the arrests, DC Lobo used the "fob" to drive the vehicle out of the parking garage so it could be towed to the police station (as the tow truck could not get underground).
[48] DC Ito searched L.R. after the arrests. As a result of that search, he found drugs and currency on him. I was told that a total of $1,680 was found on L.R. and another other occupant of the car (not the accused). I do not know the breakdown of the cash, nor how much of this total was the "large quantity of cash" that DC Gerry found on H.K. As I will later explain, more cash was subsequently found in the trunk of the car when the search warrant was executed.
[49] Following the take down, H.M. and the others were transported to the police station. Later at the police station, DC Gerry undertook a Level 3 strip search of L.R. As a result, he found crack and powder cocaine wrapped in plastic, tucked into L.R.'s boxer shorts.
[50] At approximately 11:25 pm, Detective Constable McGrath ensured that H.M. had a telephone call with duty counsel and a telephone call with his mother.
E. The CDSA Warrant and Subsequent Search on June 16, 2018
[51] DCs Gerry and Jacksa testified that they prepared the documents to obtain a search warrant pursuant to the Controlled Drugs and Substances Act (the "CDSA") to search the car after the arrests. I was told that Justice of the Peace Allison granted a CDSA search warrant valid for a 24 hour period from midnight to 11:59 pm on June 16, 2018. DCs Ito, Jacksa, McGrath and Shaw participated in a briefing in the early morning of June 16, 2018, and then executed the search warrant.
[52] This search uncovered the following:
(1) Two Ziploc bags containing a large quantity of .22 calibre bullets that I was told matched the two guns. DC Ito testified that one bag was recovered from a compartment to the left of the steering wheel. He said the bag located next to the steering wheel had 41 bullets in it. The other bag had 59 bullets in it;
(2) An undefined quantity of powder cocaine, which was located in plastic wrap, in the pocket of the passenger side door. DC Shaw described this as a small white plastic bag with a single knot tying it. He said it was the size of a grape;
(3) A quantity of crack cocaine in plastic wrap;
(4) A grey satchell containing cash, which was located on the left side of the trunk of the car. DC Jacksa found this;
(5) A quantity of crack cocaine;
(6) A green satchell with a digital scale, located on the floor in front of the rear driver's side seat. A second digital scale was found in the center console;
(7) According to DCs Jacksa and McGrath, a quantity of heroin in plastic wrap was found in a pull out compartment on the right side of the steering wheel. DC Jacksa found this. He said the compartment was open, and the heroin was visible; and
(8) The search uncovered three cell phones located in a cup holder of the car, and on the front and rear passenger seats. The police also found a GPS unit.
F. The Photographs Tendered by the Crown
[53] The Crown entered 64 photographs on a CD into evidence during the trial through DC McGrath on consent. I will describe the contents of the CD.
(i) The Photographs of the Items Taken from H.M.
[54] Only a very small number of the photographs clearly pertain to the accused H.M. For example, DC McGrath testified that photograph #24 depicts the money that was taken from the accused. Shown in this photograph, there is a piece of paper with H.M.'s name written on it next to the money.
[55] Photographs # 25 through 29 are the firearm found in H.M.'s waist band on June 14, 2018. Unlike the cash shown in photograph #24, the accused's name is not written on a piece of paper next to the firearm shown in these pictures. Nevertheless, DC McGrath testified that photographs #30 through #35 are the second firearm located along with its magazine and bullets. As such, and based on the evidence as a whole, I find that the photographs # 25 to 29 depict the firearm found in H.M.'s pants.
(ii) The Photographs of the Inside of the Car and Trunk
[56] Photographs # 1, 2, 47, 48 and 51 are various photographs of the inside of the car, the glove box and the trunk. The car is generally messy and the glove box and trunk are cluttered. There is no contraband obviously visible in the trunk. Photograph # 49 shows the rear passenger side of the car with a cell phone.
(iii) The Photographs of the Items Seized from the Other Occupants
[57] Photographs # 3 through 14 show 5, 10, 20 and 50 dollar bills as well as what I gather is some kind of drug, perhaps marijuana, in plastic. When speaking about photograph #3, DC McGrath testified that he thought it was a photograph of marijuana. He said it came from H.K., one of the other occupants of the car.
[58] These photographs (# 3 to 14) are associated with H.K., not H.M. They either show H.K.'s name written on a piece of paper, or they are close up photographs of items with H.K.'s name written on a piece of paper.
[59] Photograph #15 is a picture of various bills of 5, 10, 20, 50 and 100 dollar denominations. There is also a piece of paper, this time with L.R.'s name written on it.
[60] I was told that photographs # 16 to 23 were pictures of crack cocaine. Photographs # 16 to 19 though have a piece of paper with L.R.'s name on it. Photographs 20 to 23 are not otherwise labelled but appear to be close up shots of the previous pictures with L.R.'s name.
(iv) Other Photographs of the Car Including the Bullet Holes
[61] Photographs # 36 to 42 are pictures of the car from different angles and its license plate. The car shown in these pictures is not black.
[62] Photographs # 43 through 46 are pictures of the bullet holes with and without the duct tape covering the holes. There are two pictures of the car with the tape covering the holes, and two pictures with the tape pulled back. It is not obvious that there are bullet holes underneath the two pieces of tape in photographs # 43 and 45.
[63] Photograph #50 shows the front passenger seat. A cell phone can be seen in the cup holder. There is a plastic bag of what might be a drug on the floor.
(v) The Photograph of the Items Seized on June 16, 2018
[64] According to DC McGrath, photograph #52 is a photograph of "the property that was recovered from the car" during the execution of the search warrant two days later.
(vi) The Photograph of the Alleged Heroin
[65] Detective Constable McGrath said photograph #53 is a picture of "what we believe to be heroin". However, there were no charges before the Court based on heroin.
(vii) Other Photographs
[66] Paragraphs # 54 and 55 are apparently pictures of cocaine and photographs # 56 and 57 are apparently close up photographs of the bags of bullets.
[67] And finally, photographs # 58 to 64 are various photographs of the car with police seals affixed. The Crown asked very few questions about photographs # 54 to 64.
(viii) The Court's Treatment of the Photographs
[68] During the Crown's presentation of the photographs, the Crown referred to the photographs as having "marginal relevance". Notwithstanding this description, the photographs have factored into my deliberations in this matter.
[69] The Crown seeks findings of guilt based on H.M.'s possession of some of these items. The Crown asks the Court to draw inferences based on circumstantial evidence to arrive at various guilty findings. As I will later explain, the Crown argues that the Court should consider H.M.'s position in the car and his proximity to these items as part of its deliberations.
[70] As I said, the photographs show that only two items, a small amount of cash and one gun, are clearly linked to H.M. Many of the other photographs, though, depict what was seized from others, or from elsewhere in the car. The photographs also show the car's trunk and how messy it was.
[71] Generally, the photographs provide a valuable visual description as to the visibility and accessibility of the contraband. And the state of the trunk is relevant to whether the Crown has proven H.M.'s knowledge of what was in it beyond a reasonable doubt, which I will come back to.
[72] As I said, four photographs (ie. # 43 to 46) depict a portion of the exterior of the car, the duct tape and the bullet holes. In cross-examination, DC McGrath was asked to confirm that the photographs accurately captured what the car looked like on June 14, 2018. And he confirmed this.
[73] The presence of bullet holes is an important fact in this case informing the police officers' ability to act. Whether the bullet holes were visible or not, notwithstanding the tape, is relevant to the grounds for the police to have taken the steps they took. These photographs confirm some of the police evidence that I heard, which I will come back to, that the bullet holes were not visible until the police removed the tape.
PART III: ISSUES, LAW AND ANALYSIS RESPECTING THE CHARTER ISSUES
[74] I begin with the Charter issues.
A. The Applicable Sections of the Charter
[75] Sections 8, 9 and 24 of the Charter read:
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Enforcement of guaranteed rights and freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
B. The Applicable Framework to Determine the Charter Issues in this Case
[76] For the Court to exclude evidence under section 24(2) of the Charter, the defence must prove on a balance of probabilities that the evidence was obtained in a manner that infringed or denied H.M.'s Charter right(s). See R. v. Pino, 2017 ONCA 389 ¶ 96.
[77] As the Supreme Court said recently in R. v. Le, 2019 SCC 34 at ¶ 139, the judicial inquiry is often "rhetorically cast as asking whether evidence should be excluded" according to the three lines of inquiry articulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. But that is not the correct question.
[78] The question to be posed is whether the administration of justice would be brought into disrepute by the admission of evidence.
[79] As the majority in R. v. Grant held at ¶69-71, the phrase, "bring the administration of justice into disrepute" in section 24(2) of the Charter "…must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system". Section 24(2) does not focus on immediate public reaction to the result of a particular case but rather it looks at the overall repute of the justice system and whether in the long term that will be affected by the admission of evidence. This is to be done on an objective basis. The fact that a Charter breach has already occurred means that damage has been done to the justice system. Section 24(2) is aimed at ensuring further damage to the justice system is not done. Section 24(2) is neither aimed at compensating the accused nor punishing the police. Rather it is aimed at systemic concerns. Its focus is on the "broad impact of admission of the evidence on the long-term repute of the justice system". See also R. v. Le at ¶139-140.
[80] The three Grant factors are:
(1) First, the Court will consider the seriousness of the state conduct resulting in the Charter violation(s);
(2) Second, the Court will consider the seriousness of the impact of the Charter breach(es) on the Charter protected interests of the accused; and
(3) Finally, the Court will consider society's interest in an adjudication of the case on its merits.
[81] Appellate courts since R. v. Grant have provided considerable guidance about how to weigh the various Grant factors.
[82] In R. v. McGuffie, 2016 ONCA 365 ¶ 62, 63, Doherty J.A. held that the first two Grant lines of inquiry work together. Singly and in combination they pull towards exclusion of constitutionally-tainted evidence. The strength of the claim for exclusion equals the sum of the first two inquiries. The third inquiry resists the combined influence of the first two, pulling in the opposite direction, especially when the evidence is reliable and crucial to the Crown's case. See also ¶ 156 and 157 of R. v. Gonzalez, 2017 ONCA 543.
[83] Yet by the same token, at ¶ 86 of R v. Grant, the majority held that, "[n]o overarching rule governs how the balance is to be struck. Mathematical precision is not possible".
[84] More recently, Brown J.A. writing the dissenting opinion in R. v. Omar, 2018 ONCA 975 at ¶ 109-121, cautioned that the Court's comments in R. v. McGuffie must be read in context. R. v. McGuffie involved a case in which findings of very serious, intrusive Charter breaches had been made. They amounted to a "blatant disregard" of constitutional rights.
[85] Brown J.A. wrote that courts must be cautious not to rigidly apply R. v. McGuffie to a less egregious sets of facts. Courts are not to return to the days of an "all-but-automatic exclusionary rule", fail to consider fully all three Grant factors, or subordinate the third Grant factor to a position where it would play no practical role. And, courts must consider "all of the circumstances" and "eschew any overarching rule as to how the balance is to be struck".
[86] On May 22, 2019, Brown J.A.'s dissenting opinion was substantially adopted in a short judgment of the majority of the Supreme Court. See R. v. Omar, 2019 SCC 32.
[87] Then on May 31, 2019, the Supreme Court released another case involving a 24(2) analysis and a gun, namely R. v. Le. In R. v. Le, the majority followed, but refined somewhat, Doherty J.A.'s approach in R. v. McGuffie.
[88] In particular, at ¶ 141-142, the majority said that while the first two lines of inquiry typically work in tandem, they "need not pull with identical degrees of force in order to compel exclusion". And it is not necessary for both lines of inquiry to support exclusion for a court to determine that admission would bring the admission of justice into disrepute. "It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion".
[89] The third line of inquiry typically pulls in the opposite direction. The pull is particularly strong where the evidence is reliable and critical to the Crown's case. But it is not to be turned into a rubber stamp just because the evidence is reliable and critical.
[90] Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. But where the first two inquiries together reveal weaker support for exclusion, the third inquiry will most often confirm that the administration of justice will not be brought into disrepute by admitting the evidence. See R. v. Le ¶ 142.
[91] The results in R. v. Omar and R. v. Le are different. In the former, the gun was admitted and in the latter, excluded. But of course, these cases are factually different and the outcomes turned, in part, on that.
[92] I would note that it was after the conclusion of the evidence and submissions in this trial that the Supreme Court released its judgment in R. v. Omar. I gave counsel an opportunity to make submissions about it before releasing this Judgment. And then, the following week, the Supreme Court released R. v. Le. The Crown's initial supplementary submissions were delivered in between the releases of R v. Omar and R. v. Le and so counsel only referenced R. v. Omar. The defence's submissions were delivered on June 3, 2019, after the release of both decisions, and counsel referred to both. I then gave the Crown an opportunity to make additional submissions about R. v. Le and Mr. Stimec filed those pursuant to that direction.
[93] I have considered all of these supplementary submissions as part of my deliberations.
C. The Crown's Concessions
[94] The Crown concedes that the police did not have reasonable and probable grounds to arrest H.M. Therefore, H.M. was arbitrarily detained contrary to section 9 of the Charter. The Crown also concedes that the search incident to arrest of H.M. and of the vehicle on June 14, 2018 in the parking garage was contrary to section 8 of the Charter.
[95] While the Crown's concession respecting the arrest and some of the searches is a factor that I have considered in this case, I would not base first two prongs of the Grant analysis on that concession alone. The Grant factors require the Court to weigh the seriousness of the breaches and their impact on H.M., so the Court must look at what actually transpired in order to do this.
[96] Furthermore, neither the Crown's nor the defence's submissions fully dealt with the fact that there were multiple different searches done on June 14 and 16, 2018, with a view to whether all, or only some of the evidence was "obtained in a manner that infringed or denied any rights or freedoms guaranteed" by the Charter. To characterize all of the evidence with the same tainted brush in this case runs the risk of incorrectly considering the section 24(2) analysis. It does not necessarily follow that a Charter violation always results in unconstitutionally obtained evidence, and I am not convinced that all of the evidence obtained in this case is so tainted.
[97] Even though a broad look at the connection between the evidence obtained and the state infringing conduct is required, there must still be a link. I will deal with this issue in more detail shortly.
D. The Section 9 Violation: Was H.M. Arbitrarily Detained?
[98] As I have said, although the Crown concedes that H.M. was arbitrarily detained, it is important to set out why that is.
(1) The Applicable Test Respecting the Grounds to Arrest H.M.
[99] The police arrested H.M. without a warrant in this case. As such, for the arrest to have been lawful, there needed to be a basis to arrest him pursuant to section 495(1) (a) of the Criminal Code (as there is no suggestion that subsections 495(1) (b) and (c) have any application). Section 495(1) of the Criminal Code reads:
Arrest without warrant by peace officer
495(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
[100] In R. v. Canary, 2018 ONCA 304, Fairburn J.A. summarized the legal principles that apply pursuant to section 495(1) (a) of the Criminal Code. At ¶ 21-23, she wrote that there is both a subjective and objective component to the reasonable grounds inquiry. The police must hold an honest belief that the grounds to arrest exist. But that subjective belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest. The question to ask is whether "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest". And further, Fairburn J.A. wrote that to determine whether the subjective belief is objectively reasonable, the Court should look at the "objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer". This inquiry calls for the application of "common sense, flexibility and practical everyday experience". The test will be met where "credibly-based probability" replaces suspicion.
(2) The Police Did Not Have Grounds to Arrest H.M.
[101] Each of the 7 police officers who testified at this trial told the Court about his belief as to the grounds to act. Each of those officers had knowledge of the two prior shootings, either from reviewing the video footage or other documents, or as a result of conversations with each other and this informed their views as to the grounds to act.
[102] The Crown's concession that the police did not have reasonable and probable grounds to approach the car in the parking garage and arrest H.M. is appropriate. I will explain why next. I begin by setting out each of the 7 officers' evidence.
(i) The Officers' Subjective Beliefs
I - Detective Beson
[103] Detective Beson was in charge of this operation. He was aware of the shootings on both May 9 and June 4, 2018. He attended at 200 Wellesley Street East on both occasions on June 14, 2018.
[104] Detective Beson testified that during the summer of 2018, there had been approximately 8 to 10 shootings in the Regent Park area of Toronto. According to his evidence, some of the shootings resulted in deaths, some resulted in arrests, and some incidents are still unresolved.
[105] Although he testified that he is not a "gang expert", he said he was aware of a feud going on between the Regent Park and Parkdale areas of Toronto, and with a Wellesley/Bleecker area gang in the summer of 2018. He testified that the Regent Park community had been expressing outrage, and had been pressuring the police to address the gang violence it had been experiencing.
[106] Detective Beson's evidence was internally inconsistent as to his belief about the grounds to act on June 14, 2018, though. On the one hand, Detective Beson testified that when the police received information from TCHC about the car in the garage, they understood the car wasn't supposed to be there (DC Jacksa went further and suggested that the car was trespassing). Detective Beson said that there were more than enough exigent circumstances to believe that this car may be up to no good and its occupants may do another shooting.
[107] Detective Beson formed this opinion before he was even aware of the bullet holes in the side of the car. Then, when Detective Beson saw the bullet holes, he testified that he was "convinced in [his] mind" that this was the same car that had been shot 10 days earlier, on June 4, 2018. The fact that there was a car with bullet holes in it and that no one had reported that to the police raised further suspicion Detective Beson's his mind.
[108] Yet Detective Beson did not say that there were grounds to arrest H.M., at least initially. In fact, his evidence on this point specifically differed from some of the other officers on this point.
[109] For example, it was DC Lobo's evidence that when he arrived at the parking garage (for the second attendance), he decided to undertake a high risk take down and he made the decision to arrest. But Detective Beson testified that as the Detective in charge he would have ordered the take down, although he also said that the decision was made very fast. He said there was little to no discussion about this, since he and his team had worked together for four years. They just knew what they were going to do when they saw the car. Meanwhile, DC Gerry testified to the contrary saying that there was in fact a discussion beforehand. He thought that either Detective Beson or DC Lobo would lead the arrest.
[110] Although initially he did not say he had grounds to arrest H.M., Detective Beson went on to explain that he participated in the take down because he believed that the occupants were either planning another shooting or they were armed. He also said he was concerned about officer safety. Inconsistently, he also said he did not believe that anyone in the car had previously done something against the law. These statements are at odds with one another.
[111] Regardless, even though H.M. and the others were immediately arrested, the overall theme of Detective Beson's testimony was that the plan was actually only to investigate, detain and search the four males in the car, not arrest them. And when he was asked about the briefing that occurred beforehand, he said he could not recall whether there had been a discussion about arresting the occupants or not.
II - Detective Constable Lobo
[112] DC Lobo was not involved in investigating the first shooting, but he was involved in investigating the second. Regarding the first shooting, he relied on information that he had been told by his fellow officers and certain documentation that he reviewed, to form his opinions. Further, he said he reviewed the officer safety bulletins for both shootings, and video footage of the second one.
[113] Like Detective Beson, DC Lobo said he could not recall whether there had been a discussion at the briefing beforehand as to whether the occupants of the vehicle would be arrested upon arrival. Unlike Detective Beson though, DC Lobo was unequivocal in saying he felt that he did have reasonable grounds to arrest the occupants of the car and investigate them for the shooting. He also said he believed that the occupants of the car were armed and that is why he said he made the decision to undertake a high risk take down and arrest the driver.
[114] DC Lobo believed that both prior shootings had occurred in the same geographic area, there had been numerous other shootings in the area too, there was a possible rivalry between people from 200 Wellesley Street East and 463 Gerard Street East, he understood that the May 9, 2018 shooter had emerged from the car and then left in that car, and he believed the June 4, 2018 shooter recognized the car that had driven by. DC Lobo said he believed he was in danger as he approached the car to arrest H.M.
[115] DC Lobo also felt he had grounds to seize the car too. DC Lobo testified that this was because the vehicle was involved in the two prior shootings and had bullet holes in it. However, he also admitted that he did not see the bullet holes; rather he saw the duct tape.
[116] In cross-examination, DC Lobo acknowledged that he did not know who had removed the duct tape earlier that day as he was not present. I do note that he first told the Court that the TCHC special constable reported the bullet holes to DC McGrath.
[117] When he was specifically asked in cross-examination whether he had any information that the four occupants were observed to have committed a shooting on May 9, 2018, DC Lobo repeated that he believed they were involved.
[118] DC Lobo did testify though that he had no information as whether the occupant(s) of the car at the time of the June 4, 2018 shooting even had a gun. He admitted in cross-examination that being shot at is not a crime, but like Detective Beson, he said that someone should have telephoned the police if they had been the victims of a shooting. He went on to say that the second [June 4, 2018] shooting can be explained as a retaliation shooting to the May 9, 2018 one.
[119] DC Lobo admitted that before attending at the parking garage on June 14, 2018 and arresting H.M., he had not received any information that any of the occupants of the car appeared to be armed. Rather, he was told that they were inside the car sleeping. Other than the fact that they had moved the car, he really had little information as to what the four occupants were doing.
[120] DC Lobo did not know how many people had access to the Volkswagen. None of the occupants found in the Volkswagen in the parking garage on June 14, 2018 were its registered owner. The registered owner is another person named B.B. Apparently, he lives elsewhere in downtown Toronto.
[121] While I was told that the Volkswagen had not been reported stolen, DC Lobo also explained that he took no steps to locate the registered owner of the Volkswagen before the second attendance to arrest H.M. and the occupants, nor was he aware whether this has been done by anyone else since the arrests on June 14, 2018. I did not hear any evidence to this effect from any of the other officers either. DC Lobo also did not know whether anyone has tried to claim the car since June 14, 2018.
[122] Although he firmly believed he had grounds to arrest H.M., DC Lobo would have detained and investigated him anyway even if the grounds to arrest were lacking. And that would have involved a pat search for weapons. As such, he still would initiated a high risk take down and handcuffed him, because he believed the occupants of the car were armed, and he thought his and his team members' lives were at risk.
III - Detective Constable Shaw
[123] DC Shaw reported for duty at 4:00 pm on June 14, 2018. He was aware of the telephone call from the TCHC special constable that DC McGrath had received, and he had reviewed the video footage from the June 4, 2018 shooting. As set out above, DC Shaw was in attendance at the parking garage on both occasions on June 14, 2018.
[124] It was DC Shaw's belief, based on his video review, that the shooter on June 4, 2018 had recognized the car that drove by 463 Gerard Street East to be an enemy or a target. He also referred to the number shootings that had been going on in the Regent Park area as "unprecedented".
[125] DC Shaw said he believed that the Volkswagen in the parking garage on June 14, 2018 had been involved in at least two shootings, that it had been captured on video twice, and it was the subject of a possible turf war. He said that when he saw the bullet holes on the car at the first attendance at 200 Wellesley Street East, it furthered his belief that this was the car from the June 4, 2018 shooting. He said that he thought an offence was about to be committed, and that there was a heightened officer safety aspect.
[126] But nevertheless, DC Shaw also said what Detective Beson said, namely that the plan beforehand was to go to the parking garage and investigate the occupants of the car, not to arrest them. DC Shaw was specifically asked, but could not recall, what Detective Beson or DC Lobo had said beforehand at the briefing about whether the occupants of the car were "arrest-able". Further, he also denied remembering whether anyone else had said this at the briefing.
IV - Detective Constable Gerry
[127] DC Gerry did not review the video of the first shooting on May 9, 2018. He relied on what he had been told by DC McGrath about it. He did watch the second video though. Based on his review of the second video, he also thought that the person who fired at the car driving by 463 Gerard Street East must have perceived the car to have been a threat.
[128] As set out above, DC Gerry went to the parking garage both times on June 14, 2018. He explained that the two bullet holes corroborated the video of the previous shooting. He believed that the Volkswagen in the parking garage was the car that had been shot at on June 4, 2018. He also said he thought this was the car driven by the shooter on May 9, 2018. He testified that he thought the four occupants of the car on June 14, 2018 in the parking garage were armed and dangerous.
[129] Regarding the briefing that occurred prior to the first attendance to the garage on June 14, 2018, DC Gerry said that the objective discussed was to identify the occupants of the car and investigate them. But he also admitted that he thought they were "arrest-able".
V - Detective Constable Jacksa
[130] DC Jacksa was involved in investigating the May 9, 2018 shooting. In addition to reviewing the video footage both prior shootings, he also conducted surveillance of certain individuals and participated in the execution of a search warrant.
[131] DC Jacksa was on duty on June 14, 2018. He explained that he knew that the police had received information from TCHC that the Volkswagen was in the parking garage. He said it was deemed to be trespassing, explaining that it was on private property and it should not have been there.
[132] Unlike other officers who testified at this trial, DC Jacksa readily admitted that at the briefing, the officers discussed and believed the occupants of the car to be "arrest-able". While he could not remember the specific discussions that emanated from the briefing on this point, he said that such a direction usually direction comes from the detective (in this case that would have been Detective Beson).
[133] During his testimony, DC Jacksa said that the decision to arrest was made at the briefing.
VI - Detective Constable Ito
[134] DC Ito said that following the briefing, he understood the purpose of going to 200 Wellesley Street East to be threefold. The police were going to locate the car, identify the people in the car and hopefully, find firearms from the two prior shootings. He said that he and his colleagues thought the people in the car could have been involved in the prior shootings.
[135] But when he was asked about what had been discussed at the briefing beforehand, he too said he could not recall whether there had been a discussion about arresting the occupants of the vehicle.
VII - Detective Constable McGrath
[136] As set out above, it was DC McGrath who reviewed the videos, created the officer safety bulletins, received the phone call from the TCHC special constable, notified his colleagues, attended at the parking garage two times on June 14, 2018 and monitored the parking garage via CCTV in between the two attendances. He was also involved in executing the search warrant on June 16, 2018.
[137] Like some of the other evidence I heard, he also testified that he believed there to be two rival groups of youths at the Wellesley Street and Gerard Street TCHC locations. He explained that this rivalry had been going on over the summer. He referred to various social media messages about which he was aware between the two groups, as well as some graffiti tags, as forming the basis for this belief in a turf war.
[138] DC McGrath was of the opinion that the bullet holes on the Volkswagen at 200 Wellesley Street East were the result of that June 4, 2018 shooting. Having reviewed the video footage of the shooting, he testified that the bullet holes were on the same side of the car as would have been fired upon on June 4, 2018. DC McGrath testified that seeing the bullet holes on the car removed doubt for him that this was the car involved in the prior shootings.
[139] DC McGrath went on to say that he had no doubt that one of the four occupants in the Volkswagen in the parking garage on June 14, 2018 was a demonstrated shooter, and possibly more. In cross-examination though, he admitted that it would have been unfair for him to say the car parked in the garage was associated with the two shootings, (at least until he saw the bullet holes).
[140] He believed that the plan was for the police to arrest parties in possession of firearms and those parties were more than willing to use them. He testified that he believed these were the people who had shot at people [on May 9, 2018] and who had subsequently been shot at.
[141] He also felt they were a risk to the police and to the public.
VIII - Detective Constable Sotello
[142] DC Sotello did not testify at this trial.
(ii) The Police Honestly and Subjectively Believed They Had Grounds to Arrest the Occupants of the Vehicle
[143] Despite the testimony of several of the officers that they only intended to detain and investigate, I find that the police honestly believed they had the grounds to arrest H.M. and the occupants of the car. And they did indeed arrest H.M. and the others immediately upon arrival.
[144] Unfortunately not all of the officers were completely candid with the Court about their beliefs and intentions going in to do the arrests. Instead it appeared to the Court that some of the officers attempted to recreate history in their evidence.
[145] I do not accept the aspects of the testimony of any of the officers who claimed that the plan beforehand was only to attend and investigate. Nor do I accept the evidence of certain officers that they could not recall their discussions at the briefing, specifically about whether they discussed if the occupants of the car were "arrest-able".
[146] I say this for several reasons.
[147] Very clearly, DC Lobo honestly believed he had the grounds to arrest H.M. He was forceful, detailed and clear in his testimony as to his state of mind at the time of the arrest and why he arrested H.M.
[148] DC Lobo's actions also speak for themselves. He approached the car with his gun drawn and placed the accused under arrest. He clearly had a plan. He was also the most detailed in terms of his state of mind going into the take down. I have mapped this out in detail above. He believed that he was at the parking garage to arrest the occupants of the car.
[149] But he was also mistaken in his subjective belief as to the grounds to arrest.
[150] When DC Shaw approached the car, he yelled the words "under arrest". He offered up an explanation to the Court that he said this only to get immediate compliance. He said he was then going to later explain to the occupants of the car what he actually meant, which was that they would be detained only. But he said he didn't want to do this until the situation was safely under control, so he used the word arrest.
[151] This explanation lacks an air of reality to it. Not only does the explanation lack common sense, but DC Shaw used the word "arrest-able" in his notes. Given that he actually proceeded with an arrest, I can draw no conclusion other than he was not truthful with the Court on this point. If I am wrong and he was telling the truth to the Court, then his plan was to mislead the occupants of the car.
[152] Although DC Gerry said the objective beforehand was to investigate the four occupants of the car, in cross-examination, counsel for the defence put to DC Gerry that he had also written the word "arrest-able" in his notes. DC Gerry then readily admitted that the occupants were "arrest-able".
[153] Meanwhile, DC Jacksa said there had been both a discussion about arresting the occupants beforehand. His testimony was consistent with what happened and with the notes that had been brought to my attention at this trial.
(iii) Whether the Subjective Beliefs as to Grounds for Arrest Were Objectively Reasonable
[154] Although I have found DC Lobo to be credible regarding his intention to arrest H.M. and that he had a subjective belief that he had the grounds to do so, I find his subjective belief not to be objectively reasonable in the circumstances known at the time of the arrest. Nor were any of the other officers' subjective beliefs in grounds to arrest.
[155] I say this for four principle reasons.
[156] First, on the initial safety bulletin, the description of the shooter who emerged from the car on May 9, 2018 is very vague. Apart from describing the shooter as male and wearing dark clothing, the police do not have any other identifying information.
[157] Second, the May 9, 2018 safety bulletin states that a second party was involved. That second person was allegedly driving the vehicle on May 9, 2018. But the police have not been able to identify that driver either. I was told that they arrested the person who allegedly shot back that day, although I was not given any other information about that.
[158] Third, the police had no description of the occupant(s) of the car that had been shot at on June 4, 2018 either. They did not know the number of persons in the car. As I said, Detective Beson and DC Gerry testified that the alleged shooter from the group of three males who shot at the car on June 4, 2018 has been arrested. But I was not given any other information about that either.
[159] Fourth, I also heard evidence at this trial about the extent to which the Volkswagen in the garage was similar to the car(s) involved in the previous shootings. Both officer safety bulletins describe the vehicle(s) involved in the two prior shootings as a Volkswagen and "black".
[160] The vehicle in the parking garage on June 14, 2018 was not black; according to DC Lobo the car was blue. Based on my review of the photographs (described earlier), the car appears to me to be grey.
[161] I do not fault DC McGrath for describing the car on May 9 and June 4, 2018 as black in the safety bulletins. The quality of the images on the CCTV footage is poor. The car may have been black, or it may have been a dark colour and DC McGrath may have been mistaken in his description when preparing the bulletins. But there was a discrepancy in colour as described in the bulletins versus the car in the garage on June 14, 2018.
[162] The link between the Volkswagen in the garage on June 14, 2018, its occupants and the two prior shootings was insufficient to be reasonable and probable grounds to arrest H.M. The police went to the parking garage acting on a tip. It turned out to be a good tip, but the police did not have a basis to arrest H.M. at the point that DC Lobo did arrest him.
[163] In light of the above, I accept the Crown's concession as to the absence of grounds to arrest. Therefore, I find that the arrest was not lawful as it was not in accordance with section 495(1) (a) of the Criminal Code. And I find that H.M. was arbitrarily detained contrary to section 9 of the Charter.
D. The Section 8 Violation
[164] The search of H.M. and of the car on June 14, 2018 without a warrant was purportedly done incident to the arrest. Again, this resulted in the discovery of a loaded firearm in H.M.'s front waistband, a loaded firearm in the centre console of the car, and some cash on H.M.
[165] Warrantless searches are presumptively unreasonable and therefore contrary to section 8 of the Charter unless the Crown establishes Charter compliance. See R. v. Mann, 2003 SCC 52 ¶ 36; see also R. v. Caslake ¶ 10-11. A warrantless search done incident to a proper arrest can survive Charter scrutiny if it is properly done though.
[166] As I have found the arrest to have not been lawful, the search of H.M. and of the car on June 14, 2018 cannot be said to be incidental to arrest.
[167] The Crown has not sought to prove the Charter compliance of the searches. The June 14, 2018 searches were not Charter compliant. H.M.'s section 8 Charter rights have been violated.
[168] To be clear, my comments about the lawfulness of the arrest and the Charter compliance of the June 14, 2018 searches apply only vis à vis H.M. I make no comments about the other occupants' Charter rights and whether the manner in which they were treated by the police was unconstitutional.
E. Was the Evidence Obtained in a Manner that Infringed or Denied H.M.'s Charter Rights?
[169] As I said earlier, to some degree both counsel approached this case as if all of the evidence obtained by the police as a result of the searches, whether of H.M.'s person on June 14, 2018, of the other occupants on June 14, 2018, of the car on June 14, 2018 or of the car two days later on June 16, 2018, should be analyzed in the same way.
[170] That may not necessarily be so.
[171] There were actually 5 searches in this case. The first search occurred when the police removed the tape covering the bullet holes, the second was of H.M.'s person on June 14, 2018, the third was of the centre console on June 14, 2018, the fourth searches (which I group together) were of the other occupants on June 14, 2018 (either in the garage or later at the police station) and the 5 th was done pursuant to the search warrant two days later on June 16, 2018.
[172] To properly dispose of this litigation, I need only find that the loaded firearm in H.M.'s front waist band, the gun in the center console and the cash on H.M.'s person was "obtained in a manner" that infringed or denied H.M.'s section 8 and 9 Charter rights. I find that such evidence was "temporally and causally connected" to the Charter infringements. See R. v. Grant ¶ 131.
[173] I did not hear full submissions as to whether the other evidence was "obtained in a manner" that infringed or denied H.M.'s section 8 and 9 Charter rights. I acknowledge that the Court should look at the "entire chain of events" and determine this question "generously". The connection should not be too tenuous nor remote. See R. v. Pino ¶ 50-56, 73.
[174] Respecting these other searches, later in these reasons, I address the removal of the duct tape leading to the discovery of the bullet holes. And then there are the searches of the others on June 14, 2018 plus of the car on June 16, 2018. But beyond the search of H.M. and the centre console of the car on June 14, 2018, the other evidence found on June 14, 2018 came from searches of the other occupants of the car. Can it be said that such evidence was obtained in a manner that that infringed or denied H.M.'s Charter rights?
[175] On the one hand, it seems to me that insofar as the searches of the others are concerned, it is those other occupants who should be asserting Charter violations if they wish in their own cases, not H.M. in this case. Yet by the same token, the Crown seeks findings of guilt against H.M. for possession for the purposes of trafficking of various drugs, based on the recovery of such evidence from others or from the car. And H.M. is entitled to rely on the theory of the Crown's case to assert a violation(s) of his section 8 Charter rights. See R. v. Jones, 2017 SCC 60 ¶ 13-34.
[176] In the end, I need not decide whether such a distinction matters for the purposes of the Charter analysis in this case. Plus, I note that this nuance was not argued fully by either counsel.
[177] Assuming, without deciding, that H.M.'s Charter rights were violated in the collection of this other evidence, my 24(2) analysis would have led me to include the evidence anyway for similar reasons as those set out below. In the end, I am acquitting H.M. of the charges relating to this other contraband. I will explain why the Crown has failed to prove most of the various charges later in these reasons.
[178] Likewise, regarding the June 16, 2018 search, the defence also submits that this evidence should also be excluded. I am unable to conclude that the June 16, 2018 search was done in an unconstitutional manner. The June 16, 2018 search was not a warrantless search. The defence did little more than state that the evidence obtained on June 16, 2018 was linked to the evidence obtained on June 14, 2018 and is therefore equally tainted. The Crown made no real submissions to respond to that assertion.
[179] The defence may be correct, but the difficultly I have with the argument is the following. It may be that the warrant was based entirely on the fruits of the June 14, 2018 arrest, or there may have been other information sufficient to support the issuance of a warrant apart from the fruits of the June 14, 2018 arrest. At no time during the trial was I shown the information supplied to Justice of the Peace Allison upon which the warrant was based.
[180] I am not prepared to speculate or assume that the warrant is flawed. As there was no application to challenge the warrant brought before me, I cannot conclude that there is a Charter violation here.
[181] Alternatively, even if this evidence was obtained in violation of H.M.'s Charter rights, I would not have excluded it under section 24(2) either for similar reasons as those set out below. Nor am I finding H.M. guilty of any charges based on the evidence obtained on June 16, 2018.
[182] Having found that some of the evidence was obtained in a manner that infringed or denied H.M.'s section 8 and 9 Charter rights, I turn to the analysis in R. v. Grant.
[183] By way of overview, I do not find that the administration of justice would be brought into disrepute by its admission. I will explain why.
F. Analysis Respecting the Grant Factors
(1) The Seriousness of the Charter Violations
[184] This first line of inquiry in R. v. Grant requires the Court to consider whether admitting the evidence would send a message to the public that the Court is condoning state deviation from the law. The more severe the breach or breaches, the greater the need for the Court to disassociate itself from the conduct by excluding the evidence linked to the state conduct. See R. v. Grant ¶ 72; see also R. v. Le ¶ 141.
[185] The seriousness of state conduct leading to Charter violations varies. The Court should consider whether the violating conduct was inadvertent or minor, which may "…minimally undermine public confidence in the rule of law", versus admitting evidence obtained through a, "…wilful or reckless disregard of Charter rights". The latter will, "…inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute". See R. v. Grant ¶ 74; see also R. v. Le ¶ 143.
[186] Extenuating circumstances, such as the need to prevent the disappearance of evidence, or good faith behaviour on the part of the police, will reduce the need for the Court to disassociate itself from the conduct. Deliberate police conduct in violation of Charter standards will not. See R. v. Grant ¶ 75. The state must show that the police "conducted themselves in [a] manner … consistent with what they subjectively, reasonably and non-negligently believe[d] to be the law". See R v. Le ¶ 147.
[187] In addition to having considered these general principles, to help determine where the breaches fall on the spectrum of severity in this case, I have considered various post-Grant appellate decisions.
(i) Appellate Cases in Which the Charter Violations Were Found to be Less Serious
[188] In R. v. Aucoin, 2012 SCC 66, a police officer initiated a traffic stop of a vehicle upon discovering that its license plate was registered to a different vehicle. During the stop, the officer smelled alcohol and proceeded to administer a road side test. The officer then impounded the car and issued a ticket to Mr. Aucoin for contravening a section of Nova Scotia's Motor Vehicle Act.
[189] While writing the ticket, the officer placed Mr. Aucoin in the back of the police cruiser. He did so out of a concern that Mr. Aucoin might walk away while he prepared the ticket.
[190] In placing him in the police cruiser, the officer first sought Mr. Aucoin's permission to do a pat-down safety search, to which Mr. Aucoin agreed. The officer felt something hard in Mr. Aucoin's front pocket. Mr. Aucoin explained that was his wallet and the officer accepted the explanation. The officer then continued with the pat down and felt something soft in Mr. Aucoin's other pocket. When the officer asked about that, Mr. Aucoin replied that it was ecstasy. The officer then arrested Mr. Aucoin. A search of Mr. Aucoin's pocket incident to the arrest revealed eight bags of cocaine and two bags of 100 green pills. Some cash was also found in Mr. Aucoin's wallet. See R. v. Aucoin ¶ 2-8.
[191] In R. v. Aucoin, the Supreme Court of Canada ultimately found that the detention was lawful. The question before the Court though was whether it was reasonably necessary for the officer to have placed Mr. Aucoin in the police car while writing the ticket, which in turn led to the searches. The Court answered that question no. See R. v. Aucoin ¶ 35, 39-40.
[192] However, the Court also accepted the trial judge's finding that the officer was trying to respect Mr. Aucoin's Charter rights. The method of the detention was minimal. When conducting the roadside test, the officer did not secure Mr. Aucoin. Additionally, the officer left the police cruiser's door open. The officer asked for Mr. Aucoin's permission before doing the pat down search. And he accepted Mr. Aucoin's explanation that the hard object first felt was his wallet. The trial judge found that the officer was not searching for evidence.
[193] The Supreme Court found the Charter breach was in the nature of a mistake as opposed to a flagrant disregard of a Charter right. The Court was prepared to excuse the officer's conduct to some extent, holding that the law surrounding police powers during detentions was still evolving. See R. v. Aucoin ¶ 45-50.
[194] In another decision, R. v. Fountain, 2015 ONCA 354, a Toronto Anti-Violence Intervention Strategy police officer randomly stopped Mr. Fountain on the street to question him. The officer asked for Mr. Fountain's identity and he asked whether there had been any outstanding warrants for Mr. Fountain. During the encounter, a third man approached the police officer and his partner to ask about what he perceived to be police harassment of Mr. Fountain.
[195] During this intervening encounter, Mr. Fountain abruptly turned sideways, "blading" his body. The officer asked Mr. Fountain to show his hands, but he did not. The officer then patted his side, felt a hard object and yelled "gun".
[196] Mr. Fountain tried to run away. As he fled, the gun fell out of his jacket.
[197] The police subsequently arrested Mr. Fountain. See R. v. Fountain ¶ 4-6.
[198] At ¶ 17-21, 23-33, 52 of R. v. Fountain, the Court of Appeal held that the officer had unlawfully detained Mr. Fountain from the moment he called out to him to stop him. But the Court also upheld that the trial judge's finding that the search was lawful, undertaken due to exigent circumstances for imminent officer safety. Without specifically commenting on the trial judge's finding about the first Grant factor, the Court of Appeal was unable for find a basis to interfere with the overall weighing of the Grant factors and the decision to admit the evidence.
[199] I also found it useful to consider the facts of the R. v. Grant decision itself. In that case, the police had been patrolling an area near four Toronto schools to maintain a safe student environment. There had been a history of student assaults, robberies and drug offences in the area. The police stopped Mr. Grant, whom they said had "stared" at them in an intense manner and who was "fidgeting" with his coat and pants. One officer asked for identification, asked Mr. Grant to keep his hands in front of him, and then proceeded to ask him a series of questions during which Mr. Grant disclosed that he had marijuana and a firearm on him. See R. v. Grant ¶ 4-7.
[200] The majority opinion found that Mr. Grant's section 9 and 10(b) rights had been violated during this encounter with the police. Regarding the seriousness of the breach though, the Supreme Court held that the police were neither abusive nor had they engaged in discriminatory police practices. Rather the police had made a mistake in failing to appreciate when the encounter had turned into a detention, "something with which courts have struggled". The Court viewed the failure to advise Mr. Grant of his right to counsel as "erroneous but understandable". The Court concluded that the effect of admitting the evidence under this branch of the test would not undermine public confidence in the law. R. v. Grant ¶ 57-58, 133.
[201] Although in R. v. Grant, the Supreme Court did not find the Charter breach to be serious in part based on some confusion in the state of the law, at ¶ 133 the Court warned the police to learn from its clarification of law about detention, saying "the Court's decision in this case will be to render similar conduct less justifiable going forward." Against that backdrop, more recently in R. v. Omar, the majority of the Court of Appeal overturned the trial judge's section 24(2) analysis, in part by concluding that her finding that the police had acted in good faith was unreasonable given the Supreme Court's comments in R. v. Grant.
[202] In R. v. Omar, two police officers stopped two persons on a Windsor, Ontario street at night, engaged in questioning them and took identification. During the encounter, one of the officers told Mr. Omar to take his hands out of his pockets. When he did that, the officer noticed a gun.
[203] While the trial judge found that the police had a mistaken, yet subjective and honest belief that they had not detained Mr. Omar thereby rendering the Charter violation less serious, the majority of the Court of Appeal found this reasoning to be flawed. The majority held that was insufficient to support a finding of good faith on the part of the police.
[204] That is because the absence of bad faith is not tantamount to good faith. Ignorance of Charter standards ought not be rewarded or encouraged. See the Court of Appeal's judgment in R. v. Omar at ¶ 44-48; see also R. v. Le ¶ 147 on this point.
[205] However, Brown J.A., in dissent, would have upheld the trial judge's finding and not disturbed her section 24(2) analysis. This is because, he found, that the principles in R. v. Grant, do not always lend clarity to the police when acting at the street level. See See Brown J.A.'s dissent in R. v. Omar at ¶ 72-107.
[206] Again, on appeal to the Supreme Court, the majority of the Court allowed the appeal, restored the convictions, and substantially adopted Brown J.A.'s opinion.
(ii) Appellate Cases in Which the Charter Violations Were Found to be Serious
[207] By contrast, in R. v. Brown, 2012 ONCA 225 at ¶1, 10-14, 18, 19, a police officer arrested Mr. Brown at a downtown intersection in Toronto and searched him. Mr. Brown was in possession of cocaine, marijuana and a considerable amount of cash. The police officer testified that he believed he saw a hand to hand drug transaction while patrolling the area as the basis for the arrest. The officer had also relied on the fact that he was in a "high crime area", although the Ontario Court of Appeal referred that as a basis for the arrest as "thin".
[208] The Court first determined that the arrest was unlawful. Then, in its section 24(2) analysis, the Court was prepared to accept that the officer honestly believed he had grounds to arrest. But, it said, "[n]onetheless, his actions demonstrate a significant disregard for the appellant's right to be free from arbitrary detention".
[209] The Court of Appeal was critical of the officer's failure to turn his mind to the possibility of exercising police powers short of an actual arrest. For instance the Court said that that further investigation would have been appropriate. The Court further disapproved of the officer's habit of "routinely" using the arrest power as a tool to investigate crime. The officer had testified that he did this, and the Court called that technique "somewhat cavalier".
[210] And finally, the Court also found the manner in which the officer undertook the arrest (grabbing Mr. Brown's hand and arm and making an arrest on a busy public sidewalk) to be "neither fleeting nor technical" but rather "highly intrusive of [Mr. Brown's] liberty and privacy interests". See R. v. Brown ¶ 22-27.
[211] In R. v. Gonzales, the police had been investigating daytime break-ins in homes in a part of York Region. On September 30, 2009, a police officer saw two young men driving in the area in what turned out to be a new, rental van. Then they drove into a garage of a home. See ¶ 10-12.
[212] Five days later, the same officer saw a similar van drive by the house, do a u-turn and park a few houses away. The police officer then made a traffic stop even though the van had not committed a highway traffic offence. During the stop, the officer saw large cardboard boxes in the van and smelled fresh marijuana coming from the car. The officer thought the boxes might contain drugs. He called for back-up and then arrested Mr. Gonzales for possession of marijuana.
[213] The police then undertook a search incident to arrest and found some marijuana in one of the boxes. Later the police obtained search warrants for the van and the house and found large quantities of marijuana, cash, a firearm and ammunition, and other items. See R. v. Gonzales ¶ 13-27.
[214] The Court of Appeal held that the traffic stop violated section 9 of the Charter. In his section 24(2) analysis, Watt J.A. characterized this case as one having involved "serious police misconduct". The officer had no grounds to believe that the occupants of the van had anything to do with the break-ins, the applicable law was well-established and little had been offered by the Crown by way of mitigation. As well, the officers who testified at the trial testified about a larger pattern of pulling over "suspicious persons" in the neighbourhood. The Court referred to this as a larger pattern of inappropriate police conduct supporting the exclusion of the evidence. See R. v. Gonzales ¶ 167-171.
[215] In R. v. Harrison, 2009 SCC 34, Mr. Harrison and his friend had been driving a rented SUV from Vancouver to Ontario. Although they had been sharing driving duties, Mr. Harrison was driving when the police did a highway stop of the car. The officer initially stopped the car as it did not have a front licence plate. However, when he turned around to pursue the car on the highway, he realized that the car had a rear licence plate, it was registered in Alberta and therefore it did not need a front licence plate. Nevertheless, he still proceeded with the stop. See R. v. Harrison ¶ 4-5
[216] When he stopped the car, the officer said he became suspicious because the car looked like it had been lived in. As well, the officer said Mr. Harrison was suspect as the car had been travelling exactly at the speed limit, and the two persons, questioned separately, gave stories that he said were contradictory. See R. v. Harrison ¶ 6.
[217] Then, the officer discovered that Mr. Harrison's licence had been suspended. So he arrested him for driving without a licence. As a consequence, he embarked upon a "search incident to arrest", discovering 35 kilograms of cocaine. See R. v. Harrison ¶ 7, 8.
[218] The Supreme Court first agreed with the trial judge that there had been section 8 and 9 Charter breaches. Chief Justice McLachlin characterized the breaches as "at the serious end of the spectrum writing, "[t]he officer's determination to turn up incriminating evidence blinded him to the constitutional requirements of reasonable grounds".
[219] She did not find the violations to have been deliberate in the sense of setting out to breach the Charter, but they were "reckless and showed an insufficient regard for Charter rights". In so finding, she found the departure from Charter standards to be major in degree since reasonable grounds for the initial stop were "entirely non-existent". See R. v. Harrison ¶ 20, 24.
[220] In R. v. Le, three police officers approached a Toronto Community Housing building upon noticing four persons in the backyard. Without a warrant, they approached the fence and began questioning them. One officer then climbed over the fence, ordered that hands were to be kept in sight and another officer repeated the command. One officer then saw a satchell. Mr. Le fled. The satchell contained a firearm, drugs and cash.
[221] The Supreme Court found that Mr. Le had been arbitrarily detained at the moment that the police entered the backyard. The police were acting pursuant to neither common law nor statutory authority at that point. While some of the decision focused on at what point there had been detention and whether it was arbitrary, in addressing the seriousness aspect of the R. v. Grant factors, the Court referred to this as "serious police misconduct". See R. v. Le ¶ 150.
[222] In R. v. McGuffie, the Ottawa police had a received a phone call from security personnel at a downtown bar advising that five men had been seen passing around a handgun. In response to the tip, the police went to the bar. To the police, the doorman identified two of the men from the group of five, one of whom was Mr. McGuffie. Mr. McGuffie tried to walk away and one officer followed him.
[223] The officer detained Mr. McGuffie, handcuffed him and did a cursory pat down search revealing nothing. The officer then placed Mr. McGuffie, still handcuffed, into the backseat of another police officer's cruiser for 30 minutes, while he returned to the bar to investigate further.
[224] Then, the police officer returned. Even though Mr. McGuffie had already been in the cruiser for more than 30 minutes, the officer now decided to do a more thorough search, which uncovered cocaine in the pocket of Mr. McGuffie's shirt. It was only at this point that Mr. McGuffie was advised of the right to counsel.
[225] Later at the police station, several officers did a strip search of Mr. McGuffie. This was done even though the complained of firearm from the bar had been retrieved elsewhere. Several officers participated in the strip search and Mr. McGuffie resisted. See R. v. McGuffie ¶ 6-25.
[226] The Court of Appeal found that there had been section 8, 9 and 10(b) breaches. The Court found the unconstitutional detention and searches, combined with the denial of the right to counsel, to be serious. The Court of Appeal agreed with trial judge's characterization of the police misconduct as "significant".
[227] The Court of Appeal was concerned about the involvement of multiple police officers in handling Mr. McGuffie, and their disregard for Mr. McGuffie's Charter rights. They delayed in giving him an opportunity to speak to a lawyer, and more egregiously, they failed to do so prior to the strip search. Finally, the Court was also critical of the police officers' lack of concern about the use of force during the strip search, and their failure to "minimize the intrusiveness and humiliation inherent in that kind of search". See R. v. McGuffie ¶ 67-74.
[228] In R. v. Pino, a 43 year old house cleaner, with no previous criminal record, was convicted of possessing 50 marijuana plants for the purposes of trafficking. The marijuana was seized from the trunk of her car following a search incident to arrest.
[229] Ms. Pino's encounter with the police occurred after the police had received a tip about a "grow-op" at a certain house. To investigate, the police reviewed hydro records. In so doing, the police noticed that a different house across the street also had high hydro use, unusual heat patterns, an unusual number of vents on the roof and an odour of marijuana emanating from the house. So the police then obtained a search warrant for that house.
[230] Before executing the warrant the police first monitored the house. They saw Ms. Pino come out with a box, place it in her car's trunk, and drive away. When they saw this, the police followed her, stopped her, arrested her and searched the trunk, finding the marijuana plants.
[231] Later the police searched the house and found a marijuana grow operation. See R. v. Pino ¶ 1, 8-14.
[232] The trial judge characterized the section 8 breach as being "of more than modest seriousness, yet, given that it is probably the product of an error in judgment, is far from at the extreme end of seriousness."
[233] But in total, there had been three Charter breaches in R. v. Pino, only of which the trial judge had characterized as serious. The Court of Appeal found that the multiple breaches, in tandem with the trial judge's finding that the police had been dishonest during the trial, elevated the seriousness of the breaches to close to the extreme end. See R. v. Pino ¶ 83, 100-103.
(iii) Appellate Cases Dealing with the Impact of the Police's In-Court Testimony
[234] The defence made submissions about the credibility of the police in the case. As such, I have also considered appellate cases concerning the impact of post-breach, in-court police testimony on the section 24(2) analysis.
[235] In R. v. Harrison, the trial judge had found the officer's in-court testimony to be misleading. Although this is not part of the Charter breach itself, Chief Justice McLachlin held that this is "properly a factor to consider as part of the first inquiry under the s. 24(2) analysis, given the need for a court to disassociate itself from such behaviour." She said that when the police come to court and are misleading in their testimony, such actions directly undermine the integrity of the justice system and the truth seeking function of the court. See R. v. Harrison ¶ 26.
[236] And in R. v. Pino, the trial judge found that Ms. Pino's arrest had taken place in an aggressive manner, at gun point, and with the officer shouting. At the trial, the officer denied both that he used a gun and the aggressive nature of the arrest. The other officer who testified at the trial "could not recall" whether his partner had drawn his gun.
[237] The trial judge found the other officer's inability to recall not to be credible. Ultimately, the trial judge found that the two police officers had lied to the Court about the arrest. But then, the trial judge went on to speculate as to the reason for the dishonesty, ascribing "innocuous motives" for it.
[238] In its weighing of the section 24(2) factors, the Court of Appeal held that even though the defence bears the onus to establish that evidence ought to be excluded, the Crown bears the onus to explain the police conduct. It went on to hold that the trial judge ought not to have speculated about the reasons for the police dishonesty in R. v. Pino. And as I earlier explained, in the result the police dishonestly at the trial in R. v. Pino operated to elevate the seriousness of the Charter breach. See R. v. Pino ¶ 3, 20-22, 91-97, 102.
(iv) Summary of the Applicable Principles from the Case Law
[239] The aforementioned cases illustrate that the severity of a Charter breach will fall on a continuum. Based on my review of these authorities, a list of factors that I have considered to determine where the breach should fall on the continuum in this case is:
(1) Whether there was one or multiple Charter breaches;
(2) Whether the breaches were inadvertent, minor, fleeting or technical versus whether they were flagrant, deliberate or done with reckless disregard for one's Charter rights;
(3) Whether a police mistake should be excused will depend on whether it was made in good faith. The absence of bad faith does not equate with good faith. If a police officer errs without regard to the obligation to inform himself or herself of the Charter obligations, this aggravates the severity of the breach. The police should consider other, Charter compliant options. They should not proceed in a cavalier fashion;
(4) However, whether the law is in a state of flux on a point or whether it is settled will inform whether the police mistake is a genuine error or more in the nature of recklessness;
(5) The manner in which the Charter right was violated will be important. For example, whether the police acted in an abusive or discriminatory fashion, or whether they attempted to comply with the law is relevant; and
(6) In cases where police overstep, any subsequent lack of candour with the Court operates to aggravate the severity of the breach or breaches.
(v) Application of these Principles to this Case
[240] The Crown's position is that the seriousness of the state infringing conduct is mitigated by good faith police behaviour. The Crown argues that the police did in fact have grounds to conduct an investigative detention anyway, thereby rendering the Charter violations less serious, I am finding there to be merit to this argument. But in my view, this should properly be considered when analyzing the second Grant factor. The Court's first task is to properly characterize the nature of the breaches and their severity as noted by the Court of Appeal in R. v. Brown. Therefore I will come back to the Crown's argument about investigative detentions later in these reasons.
[249] Nor do I agree with counsel for the Crown that there were extenuating circumstances, specifically the need to preserve evidence, that mitigates the seriousness of the police action in this case. Thirty-six days had passed since the May 9, 2018 shooting. That is simply too much time to conclude that evidence in connection with that shooting might still be located in the car (if in fact the car in the garage on June 14, 2018 was the same car involved in the May 9, 2018 shooting). And while only 10 days had passed from the second shooting on June 4, 2018, it is important to remember, as counsel for the defence points out, that the car on June 4, 2018 was shot at. The occupants of the car on June 4, 2018 were the victims of that shooting, not the shooters that day.
[250] I agree with counsel for the defence about the nature of some of the police testimony in this case. I find certain aspects of that to be concerning. In this regard, I will first deal with the police testimony about their subjective beliefs in the grounds to act, as it impacts my analysis of the first Grant factor. I then deal with their evidence about the bullet holes. And I will lastly deal with the police evidence about the description of the car.
[251] As I said earlier, the evidence from some officers, including that of Detective Beson, suggests that the police paid insufficient regard to the legality of the course of action upon which they were about to embark, before embarking upon it. The most generous interpretation of that evidence is that was reckless and flowed from a disregard for Charter rights.
[252] But in the context of the Crown's argument that the police could have conducted an investigative detention anyway, I also heard evidence from some of the officers that the plan was to go and investigate only, not arrest. As I said earlier, I do not accept the evidence to this effect. In my view, that evidence was constructed to address the Crown's argument that the police could have undertaken an investigative detentions anyway.
[253] I turn to the bullet holes. As I will explain, the presence of bullet holes in the driver's side of the car is also relevant to the Crown's argument that the police could have conducted an investigative detention anyway. In that context, during the trial, an issue arose as to whether the bullet holes were fully or poorly concealed by the duct tape. And the police evidence on this point diverged too. As I have already found, the bullet holes only became visible when DC McGrath removed the tape.
[254] There were four versions from the police respecting the duct tape.
[255] The first version came from DCs McGrath and Gerry. DC McGrath testified that when he and the other officers walked up to the car (during the first trip to the parking garage) they almost immediately noticed two bullet holes in the side of the car. While the holes were covered with duct tape, DC McGrath said it was very obvious that the bullet holes lay beneath the tape. DC Gerry said the duct tape appeared to be trying to conceal what looked like bullet holes, thus intimating that the holes were obvious and in sight. Later in cross-examination, DC McGrath admitted that he was the one who pulled back the tape.
[256] The second version about the bullet holes was Detective Beson's. He testified that when he went to the parking garage (for the first time on June 14, 2018), he observed bullet holes covered by grey duct tape. He was not specifically asked, nor did he explain, whether the bullet holes were visible notwithstanding the duct tape, or if he only became aware of the holes after the tape was removed.
[257] In contrast to DCs McGrath and Gerry, there is the third account of DCs Jacksa, Shaw and Ito. DC Jacksa testified that there were two pieces of duct tape on the car. He said, "when lifted" there were two bullet holes. Likewise, DC Shaw testified that the team noticed duct tape upon arrival. He said that it was when the duct tape was pulled back that the officers in attendance for the first visit to 200 Wellesley Street East noticed two bullet holes. And further, DC Ito said he observed "circular holes" which were "consistent with bullet holes" when the duct tape was pulled back.
[258] The fourth version is DC Lobo's. Again, he first told the Court that the police had learned from TCHC that the car had two bullet holes in it, but that the holes were covered over by duct tape. He was the only officer who said this, yet he was not the officer who had actually spoken to TCHC special constable Khan (that was DC McGrath). DC Lobo was mistaken in this evidence. Then later in cross-examination, DC Lobo admitted that the bullet holes were discovered when one of his fellow officers removed the duct tape.
[259] I repeat that I have reviewed four photographs of the car (Exhibit 7, photographs # 43 to 46). Two of photographs show the car with the duct tape on, and two show the car with the duct tape peeled back. The photographs of the car with the duct tape on do not show obvious bullet holes. Had the duct tape not been removed, the police would have been unaware of the existence of the two holes in the side of the car. I will come back to the significance of this finding later in these reasons.
[260] Lastly, there was an attempt by some of the police to re-characterize the description of the car on the safety bulletin as "dark" as opposed to "black". While this testimony was made in passing by certain officers, it did not go unnoticed by the Court. I question whether this was done in an attempt to strengthen the connection between the car(s) described in the bulletins and the car parked at 200 Wellesley Street East on June 14, 2018 as again, the car in the garage on June 14, 2018 was not black.
[261] The Crown, who bears the onus to explain police conduct on a Charter application, including the inconsistencies in the police testimony, made very few submissions about this evidence. I repeat what McLachlin J. said in R. v. Harrison at ¶ 26, namely that when the police come to court and are misleading in their testimony, such actions directly undermine the integrity of the justice system and the truth seeking function of the Court.
[262] It is unfortunate that certain of the police officers felt the need to testify in this manner. Although the unlawfulness of the arrest was conceded by the Crown, it would have been far better had the police acknowledged they erred in arresting H.M. rather than engaging in revisionist history to justify what they did.
[263] However, and while the police testimony as a whole in this case adds to the seriousness of the violations, I would temper my comments about this somewhat. This is not a case like in R. v. Pino, where all of the officers testified in a unified or deceitful manner to conceal an important fact.
[264] Importantly, and even though he erred as to the grounds to arrest, DC Lobo was forthcoming about his intentions regarding the arrest, which in turn undermined some of the other testimony of his colleagues. Likewise, DCs Jacksa, Shaw and Ito were forthcoming about the bullet holes and the tape.
[265] In conclusion, for all of those reasons (ie. the liberty restriction, the nature of the searches, the fact of multiple Charter breaches, the cavalier attitude of the police and certain officers' problematic in-court testimony), my analysis of the first Grant factor is that the Charter violations are serious.
(2) The Impact on the Charter Protected Interests of the Accused
[266] At this stage of the analysis, the Court must consider the extent to which the breach actually undermined the accused's Charter protected interests. The Court must look at, "… the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests." See R. v. Grant ¶ 77. The Court will consider whether the breaches seriously compromised the interests underlying the right(s) infringed or whether the breach was merely transient or trivial in impact. See R. v. Harrison ¶ 28.
[267] To do this, the Court must consider the purpose of the section 8 and 9 Charter guarantees. I begin with section 9.
[268] Citing Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, the majority in R. v. Grant stated, at ¶ 20-21, that the purpose of section 9 is to protect individual liberty from unjustified state interference. It includes both freedom from physical restraint and the broader entitlement to make decisions free from state interference, including the option to simply walk away when confronted by state authority. Absent a law to the contrary persons are free to do as they please and the police may only act to the extent that the law empowers them to do so. See R. v. Mann, 2004 SCC 52 ¶ 15; and see also R. v. Gonzales ¶ 51.
[269] Regarding section 8, as the majority in R. v. Grant stated at ¶ 78, an unreasonable search contrary to section 8 may impact protected privacy and human dignity. "An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not."
[270] At first blush, the impact of the breaches on H.M. is serious. H.M. was subjected to immediate physical restraint. He was ordered out of the car at gun point, placed on the ground and then placed in handcuffs. He was then subjected to a pat down search, a search of his pockets and then the car was searched. H.M. was not able to walk away, nor was he allowed the choice not to engage in this encounter with the police. Nor was this a short lived physical restraint. H.M. was arrested and later transported to the police station.
[271] However, I cannot ignore the Crown's argument that the impact is mitigated by the fact that, had the police not erred as to their grounds to act, they could have undertaken an investigative detention which would have involved a similar officer safety search. And the loaded gun in H.M.'s pants would have been discovered. And then in turn the police would have been empowered to undertake a limited search of the car on June 14, 2018.
[272] I find there to be merit in this argument for the following reasons.
(i) Applicable Legal Principles Respecting Investigative Detentions and Searches Incidental to Such Detentions
[273] I pause to note that at ¶ 4-6 and 28 of R. v. Brown the Court of Appeal dealt with a similar, albeit slightly different argument that the Crown now advances in the case before me. In R. v. Brown though, instead of deciding whether the officer had reasonable grounds to arrest Mr. Brown, the trial judge decided that the officer had cause to detain him and then eventually arrest him. The Court found that the trial judge had considered the issue through the incorrect lens. The trial judge ought to have first correctly framed the Charter violation, being an unlawful arrest, to consider properly the Grant factors.
[274] While it is essential to assess correctly the nature of the Charter violation to properly consider the first of the Grant factors[2], if the police were nevertheless authorized to investigate and detain H.M., this can still be a relevant consideration at the second stage of the Grant analysis. See R. v. Brown ¶ 28.
[275] In the result in R. v. Brown, the Court of Appeal doubted that grounds even existed for an investigative detention and found that the police interference with Mr. Brown remained significant nonetheless. But the facts in at least two other decisions of the Court of Appeal, R. v. Murray, 2011 ONCA 174 and R v. Dene, 2010 ONCA 796 led the Court of Appeal to reach the opposite conclusion as to the impact on the accused.
[276] To properly consider the Crown's argument in this case, I turn to the applicable legal principles that apply respecting investigative detentions and warrantless searches incidental to such detentions.
[277] In R. v. Mann, 2004 SCC 52, two police officers had received a radio dispatch message detailing a break and enter that was in progress. As the police approached the scene, they observed a person walking casually along the side walk, whom they said matched the description of the suspect they had heard over the radio dispatch. They stopped Mr. Mann, asked him to identify himself and then conducted a pat-down search of his person for concealed weapons. One of the officers felt a soft objected in his pocket, reached in and found a small plastic bag containing marijuana. In another pocket the officer found a number of small plastic baggies and two valium pills. See R. v. Mann ¶ 4, 5.
[278] The Supreme Court had to consider whether a common law police power to detain for investigative purposes exists, and if so whether a "concomitant common law power of search incident to such detentions" exists. See R. v. Mann ¶ 2.
[279] At R. v. Mann ¶ 16, the Court recognized that the police must be empowered to respond quickly, effectively and flexibly to the diversity of encounters on the front lines of policing. And then the Court considered the evolution of the case law ultimately concluding that limited powers to this effect do exist. See R. v. Mann ¶ 23-35.
[280] The Court began by citing the Waterfield test, a two-pronged test from an English case that requires the Court, where a police officer's conduct is a prima facie unlawful interference with a person's liberty or property, to consider whether the inference falls within the "general scope of any duty imposed on the officer by statute or at common law." If so, then the court must consider whether the conduct involved an unjustifiable use of powers associated with the police duty. See R. v. Mann ¶ 24
[281] The Waterfield test has been refined by Canadian jurisprudence. In R. v. Mann, the Supreme Court held that the power to detain for investigative purposes may only be exercised when it is "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 on-going criminal offence". There must be a reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.
[282] The overall reasonableness of the decision to detain must be assessed in all 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".
[283] And finally, the Court held that the police do not have carte blanche to detain. The power cannot be exercised on the basis of a hunch nor can should a detention become a de facto arrest. See R. v. Mann ¶34-35. A reasonable suspicion, subjectively held, must be objectively reasonable. See R. v. MacKenzie, 2013 SCC 50 ¶ 41.
(ii) Application of the Reasonable Suspicion Test to this Case
[284] In this case, the police had a duty to investigate the two shootings and more specifically, to follow up on the tip received from TCHC about the Volkswagen in the garage.
[285] But without the presence of bullet holes in the driver's side of the car, I would not have found that the police had a reasonable suspicion to detain H.M. I base this finding on the same evidence respecting the absence of grounds to arrest. In short, the police had no identifying information respecting the driver of the car on May 9, 2018, very little identifying information about the May 9, 2018 shooter and no identifying information about the car's occupants on June 4, 2018.
[286] Certainly without the bullet holes, there was an insufficient match between the car(s) involved in the previous shootings and the car in the garage on June 14, 2018 too. When the TCHC call came in on June 14, 2018, the police were merely acting on a tip that there was a similarly (but maybe differently) coloured, fairly common model of car parked in a parking garage in a so-called high crime neighborhood.
[287] But then the grounds to detain emerged upon the officers' discovery of the bullet holes. While they may have been acting on a hunch initially, the discovery of the bullet holes provided enough connective tissue to elevate the hunch to a suspicion. Knowing what they knew about the two prior shootings, it became objectively reasonable for the police to suspect that the occupants of the car may be connected to either of the two shootings in some way at that point.
[288] I have considered the location of the bullet holes in this analysis. The car on June 4, 2018 was shot at from the south side of Gerard Street East as the car drove west bound. The bullet holes are cut into the driver's side of the car. They permeate into the correct side of the car given the direction from which the shooter fired his gun on June 4, 2018. Moreover, I accept that the police would have found it suspicious that the owner of the car fired upon did not report the crime to the police. And then finding a car with bullet holes covered over with tape further raises suspicion.
[289] Therefore, I find that the police had the power to detain for investigative purposes. I find that it was "reasonably necessary on an objective view of the totality of the circumstances". The existence of a similar car as that in the two officer safety bulletins, but with bullet holes in the side door after the second shooting in which a similar car had been shot at, provides a clear nexus between H.M., an occupant of the car, and a recent criminal offence.
[290] As my finding that there was a basis to detain turns on the existence of the bullet holes, I wish to briefly address the defence's passing argument that it was likely unlawful for police to have removed duct-tape from a car without a warrant or consent.
[291] The removal of the duct tape was indeed done without a warrant. Again, for the search to be complaint with section 8 of the Charter, the Crown bears the onus of proving that the search was authorized by a reasonable law and carried out in a reasonable manner. See R. v. Mann ¶ 36; see also R. v. Caslake ¶ 10-11.
[292] The Crown made very few submissions about the duct tape. But by the same token, the Crown did not concede a section 8 Charter violation on the basis of the police having removed the duct tape, and the defence did not argue a violation of H.M.'s Charter rights on that basis.
[293] Nonetheless, if the police were not authorized to remove the tape, then does the basis for the investigative detention not become problematic? Entailed in the determination of whether the police had grounds to investigate must be a look at how the police acquired the information giving rise to the grounds.
[294] Accordingly, and although the Crown must prove that a warrantless search is Charter compliant, I am also mindful of the fact that the right to challenge the legality of a search depends on the accused establishing that his privacy rights in the thing being searched having been violated. And on this point, the defence bears the burden of proof on a balance of probabilities.
[295] A reasonable expectation of privacy is determined based on the totality of the circumstances, including:
(1) presence at the time of the search
(2) possession or control of the property or place searched;
(3) ownership of the property or place searched;
(4) historical use of the property or item;
(5) the ability to regulate access, including the right to admit or exclude others from the place;
(6) the existence of a subjective expectation of privacy; and
(7) the objective reasonableness of the expectation.
See R. v. Edwards, 1996 CarswellOnt 1916 (S.C.C.) at ¶ 45; see R. v. Merelles, 2016 ONCA 647 ¶ 18-22; and see also R. v. Campbell-Noel, 2019 ONSC 4301 ¶ 125-137.
[296] Clearly someone intended to conceal the bullet holes with the tape. However, H.M. did not testify at the Charter application. Apart from the evidence called by the Crown, I had no other evidence upon which the Court could conclude that H.M. had a reasonable expectation of privacy in the car. While someone may have had an expectation of privacy in the car, I cannot conclude that H.M. did, or if he did, it was very diminished.
[297] I recognize again that H.M. need not testify and may rely on the Crown's theory per R. v. Jones ¶ 13-24, and that the Crown seeks various findings of guilt based in part on H.M. having a certain degree of control over the car. But, H.M. was not present at the time the police removed the tape exposing the bullet holes. Again, the evidence is that TCHC telephoned the police to advise that four persons were initially in the car in the parking garage on June 14, 2018 prompting the 5 officers to attend for the first time. When they arrived for the first time, the car was empty. That is when the tape was removed.
[298] The evidence is that H.M. is not the owner of the car. If H.M. was a mere guest of the car, it may be that a guest can assert a reasonable expectation of privacy in a host's property (see R. v. Le ¶ 137), but this was not argued.
[299] Meanwhile, he did have a key to the car on his person, but I heard no evidence as to the nature of the other keys on the "fob". Someone moved the car from one parking spot to another on June 14, 2018 in between police attendances at 200 Wellesley Street East on June 14, 2018. H.M. was in the driver seat when the police arrived the second time.
[300] Based on those two facts, I find that H.M. had some degree of control over the car, but I cannot say that he had exclusive control, nor even the ability to regulate access to the car. I also heard no evidence as to H.M.'s historical use of the car, or lack thereof.
[301] The car was located in a parking garage of TCHC property. On the one hand, even though the car was parked in shared space, this may be akin to having some privacy expectation in a common area of an apartment building or a condominium, depending on the circumstances. See R. v. White, 2015 ONCA 508. However, I did not hear any evidence that the car was authorized to be in the garage or in either of the two parking spaces that day either. The only evidence I heard, from a Crown witness, was that the car is registered to an owner who lives at another address.
[302] The police were invited into the garage by a TCHC official to check out the situation. This is not the same as the police sneaking into the common area of an apartment and then taking further steps thereafter.
[303] And finally, I also note that in general, motorists have a lower expectation of privacy in their vehicles than they do in their homes, particularly given that driving is a highly regulated activity. See R. v. Harrison, 2009 SCC 34 ¶ 30; see also R v. Caslake ¶ 15. While I am mindful that the car was not being driven when the tape was removed making the regulated nature of driving less important to the analysis in this case, nevertheless I am unable to determine, based on my analysis of the R. v. Edwards factors that H.M. has established an expectation of privacy in the car.
[304] Therefore even if the police were not authorized to remove the tape, in the circumstances of this case their actions in removing the tape do not impinge on H.M.'s expectation of privacy.
[305] Incidentally, as I am admitting the evidence in this case, I must later consider whether the Crown has proven the elements of the various charges against H.M. beyond a reasonable doubt. As I will explain, many of the same factors that have led me to conclude that H.M. did not have a reasonable expectation of privacy also have application respecting the Court's assessment of the elements of the offences themselves.
[306] Having found that the police were entitled to embark upon an investigative detention, I next consider the manner of the searches of H.M. and the car on June 14, 2018.
(iii) Analysis Respecting the Manner of the Search Incident to the Detention and Application to this Case
[307] A search incidental to an investigative detention must be reasonably necessary. The general police duty to protect life may give the police the power to conduct a pat-down search incident to an investigative detention. "Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk." "It must be reasonable necessary in light of the totality of the circumstances. 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." See R. v. Mann ¶ 40.
[308] The search must be conducted in a reasonable manner. The investigative detention should be brief in duration and does not impose an obligation on the detained person to answer questions. See R. v. Mann ¶ 44, 45.
[309] In this case, I find that it was reasonable for the police to handcuff H.M. and to engage in a protective search. It cannot be ignored that the police were investigating two shootings. These are violent and very dangerous, life threatening crimes. Once the police were aware of the bullet holes, it was logical for them to worry that the occupants of the car might be armed. As such, it was reasonable for them to handcuff H.M. and to engage in a pat-down search of him. See R v. Mann ¶ 48; see R. v. MacDonald, 2014 SCC 3 ¶ 46-50; and see also R. v. McGuffie ¶ 11, 34, 51, 52.
[310] It was also appropriate for safety reasons for the police search into H.M.'s waist band upon feeling the hard object. That is different than digging into a pocket in the name of officer safety after feeling the soft object like was the case in R. v. Mann ¶ 49. (For another case discussing the parameters of safety searches, see R. v. Fountain ¶ 5, 26, 33).
[311] I wish to address the defence's argument that it was not necessary to undertake the pat down search because the threat to officer safety was not imminent. In making this argument, the defence relies on R. v. McGuffie.
[312] As set out above, in R. v. McGuffie, the police were investigating a tip just received that a handgun had been passed around. In relying on R. v. McGuffie, the defence argues that the tip in R. v. McGuffie was very recent, whereas the most recent shooting in this case was 10 days earlier. Consequently, the defence distinguishes R. v. McGuffie and says that it was not reasonable for the police here to be concerned that there would be a gun with the occupants in the car on June 14, 2018.
[313] With respect, I would not accede to the defence's argument. How recent the last shooting was is not the only measure of imminence. Again, given the nature of the crime being investigated, it was reasonable for the police to be concerned about their safety. It is logical to be worried that someone believed to have been connected with a shooting might be armed.
[314] Nor would I accede to the defence's argument that the police ought to have embarked on a number of other paths short that upon which they embarked. I do not find the defence's reliance on R. v. Aucoin for the proposition that they police ought to have considered less intrusive alternatives to be persuasive in this case.
[315] R. v. Aucoin involved an investigation for impaired driving. The officer had a concern that the driver might walk away while he was writing a ticket, so he detained him in the police cruiser and undertook a pat down search resulting in the discovery of drugs. At ¶ 39 and 40, the majority opinion of the Supreme Court was critical of this, citing that the officer's actions in this respect were not reasonably necessary.
[316] The decision in R. v. Aucoin in part turns on the fact that there were no real safety concerns in that case. The officer in R. v. Aucoin was not investigating a weapons offence nor did he have any concern that Mr. Aucoin was armed.
[317] The officer safety concern in this case is much more obvious. Perhaps the police could have conducted ongoing surveillance or taken other steps as the defence has argued in its factum, but they chose not to, based on the nature of the crimes that they were investigating (two prior shootings) and their belief that there may be evidence of those crimes (being weapons) with the occupants of the car.
[318] Having found the police would have been authorized to undertake an investigative detention in lieu of an arrest in this case, I would not second guess the tools the police implemented to investigate on the facts of this case. In saying this, I appreciate that to a degree the Court should also be sensitive to the realities of on the ground policing.
[319] In summary, I have determined that the police could have undertaken an investigative detention. And on the facts of this case, I would not second guess the decision to take H.M. out of the car by gun point, handcuff him and to do a pat down search of him.
[320] While a detention is supposed to be brief in nature, almost immediately after restraining H.M., DC Lobo found the gun, at which point he would have been authorized to actually arrest H.M. Once the gun was found in H.M.'s waist band, I find that it was also reasonable for an officer to do a limited search of the car resulting in the discovery of the second firearm. See R. v. Alkins, 2007 ONCA 264 ¶ 40, 48.
[321] And it was appropriate that they obtained a search warrant prior to searching the car later on June 16, 2018.
[322] As a consequence, my analysis respecting the second branch of the Grant factors pulls towards admission.
(3) Society's Interest in an Adjudication on the Merits
[323] The third line of inquiry in R. v. Grant requires the Court to consider whether the truth-seeking function of the criminal trial process is better served by the admission or the exclusion of evidence. There is a general societal interest in ensuring that those who break the law are brought to trial and dealt with according to the law. So the Court must consider not only the negative impact of admitting the evidence, but also the impact of failing to admit it. See R. v. Grant ¶ 79.
[324] Just because the evidence obtained is reliable (such as the guns, bullets, drugs, cash and the related paraphernalia in this case) does not, in and of itself, render it admissible. As the Court in R. v. Grant said, such an approach would be inconsistent with the wording of section 24(2), which requires the Court to consider all of the circumstances. See R. v. Grant ¶ 80; see also R. v. Le ¶ 159. However, the nature of the evidence is not irrelevant either. Nor is the extent to which it is important to the Crowns' case. See R. v. Grant ¶ 81-83; see also R. v. Omar.
[325] But the Court must still be weary of placing too much emphasis on the seriousness of the charges. At ¶ 40 and 41 of R. v. Harrison, citing Cronk J.A., Chief Justice McLachlin cautioned against allowing the seriousness of the offence and the reliability of the evidence to overwhelm the section 24(2) analysis. She said that would serve to "deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means'". Nor should the Court engage in a contest of comparing the misdeeds of the police and those of the accused.
[326] And at ¶ 159 of R. v. Le, the majority wrote, "[at] the same time, courts must be careful to dissociate themselves and their trial processes from the violation of longstanding constitutional norms reflected in this Court's Charter jurisprudence that has emphasized the importance of individuals' liberty interests".
[327] The tension inherent in these competing considerations is particularly apposite when the evidence sought to be excluded is a gun. A reading of the majority and dissenting opinions of the Court of Appeal in R. v. Omar reveals this.
[328] On the one hand, at ¶ 54-61, the majority opinion, written by Sharpe J.A., with Paciocco J.A. concurring, acknowledges the "grave problem caused by illegal guns and drugs in our society". The majority also acknowledges the societal alarm that exists as a result of the prevalence of gun violence and that the police have a difficult and dangerous job. But at the same time, the Court notes the fundamental importance that the police and all state actors should perform their duties in accordance with the law and that they respect the Charter. There is no "firearms exception" requiring the admission of guns notwithstanding a violation of the Charter. And importantly, placing excessive weight on the fact that a firearm was found risks "neglecting the reality that many cases of unlawful detentions and searches do not produce incriminating evidence."
[329] On the other hand, Brown J.A. dissenting in R. v. Omar (adopted by the majority of the Supreme Court), looked at the tension differently. He said that by failing to give "some recognition to the distinctive feature of illegal handguns", namely that they are extremely dangerous, risks distorting the 24(2) analysis by removing it from the real-world context. He encouraged judges to be aware that the "lethal problem posed by illegal handguns" and not to conceptualize issues under section 24(2) in an abstract fashion, disconnected from on the ground reality. See ¶ 123 and 130.
[330] In the case before me, the Charter breaches have not undermined the reliability of the evidence (as opposed, for example, to a case where an unreliable statement is obtained as a result of a Charter breach). Rather, the evidence obtained is highly reliable. Some of it (the loaded firearm in H.M.'s pants in particular) is also pivotal to the Crown's case on some of the charges. Its exclusion would result in an acquittal of those charges. This favours its admission into evidence.
[331] The admission of the other firearm and the other contraband is not dispositive of the Crown's case as I will next explain, but nevertheless, that evidence too is reliable. See R. v. Grant ¶ 83.
[332] H.M. has been charged with serious offences. I have placed weight on society's interest in prosecuting crime, I have considered both the majority and dissenting comments in R. v. Omar, and ultimately I have followed the majority of the Supreme Court's adoption of Brown J.A.'s dissent.
[333] I am also mindful of the Court's comments at ¶ 84 of R. v. Grant about this argument's potential to "cut both ways". While the public has an interest in seeing a determination on the merits where the charge is serious, it also has a vital interest in having the justice system above reproach where the stakes for an accused are high.
[334] I have cautioned myself that the nature of the charges and the nature of the evidence should not overwhelm the analysis.
[335] In the end though, I must consider all of the circumstances.
[336] Therefore, in the result, after having considered all of the circumstances of this case, the pulling of the first and second Grant factors in opposite directions, and the aforementioned analysis of the third Grant factor, my overall section 24(2) analysis has led me to the conclusion that the administration of justice would not be brought into disrepute by the admission of the evidence.
[337] This was a close call.
[338] Before concluding this section of the Judgment, I note that the majority of the Supreme Court in R. v. Omar said the following, "[i]t may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day."
[339] I intend to make further comments about this passage of the Supreme Court's Judgment at the end of this Judgment.
PART IV: ISSUES, LAW AND ANALYSIS RESPECTING THE CHARGES
[340] Although my section 24(2) analysis has led me to admit the evidence, I find that the Crown has failed to prove most of the charges it has pursued against H.M.
[341] H.M. has been charged with:
(1) Two counts of, without lawful excuse, carrying a firearm in a careless manner contrary to section 86(1) of the Criminal Code;
(2) Two counts of possession of a restricted firearm on June 14, 2018 without being the holder of a license and the holder of a registration certificate contrary to section 91(1) of the Criminal Code;
(3) One count of possession of prohibited ammunition, namely .22 calibre rounds, without being the holder of a license permitting such possession contrary to section 91(2) of the Criminal Code;
(4) Two counts of possession of a restricted firearm, while knowingly not being the holder of a license permitting such possession and the holder of a registration certificate, contrary to section 92(1) of the Criminal Code;
(5) Two counts of without lawful excuse, occupying a motor vehicle knowing that there was a restricted firearm in it, contrary to section 94(2) of the Criminal Code;
(6) Two counts of possession of a loaded restricted firearm, without being the holder of an authorization or license permitting such possession and the holder of a registration certificate contrary to section 95(1) of the Criminal Code.
[342] On a separate information #18-Y180421, H.M. has been charged with three counts of possession for the purpose of trafficking contrary to section 5(2) of the CDSA on June 14, 2018 of crack, cocaine, marihuana, and a further charge of possession for the purposes of trafficking of cocaine and crack cocaine on June 16, 2018. Plus as I set out earlier, he has been charged with possession of proceeds of property or a thing, namely money, of a value not exceeding $5,000, on June 14, 2018, knowing that all or part of the proceeds had been obtained by an offence punishable by indictment contrary to section 354(1) of the Criminal Code.
[343] If this Court finds H.M. to have been in possession of the complained of drugs in the charges, there is no issue that they are included in Schedules I and II of the CDSA.
A. Legislative Provisions
[344] I reproduce these sections of the Criminal Code and the CDSA as follows:
(1) Criminal Code Provisions
Careless use of firearm, etc.
86 (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.
Unauthorized possession of firearm
91 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of
(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
Unauthorized possession of prohibited weapon or restricted weapon
91(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.
Possession of firearm knowing its possession is unauthorized
92 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of
(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
Unauthorized possession in motor vehicle
94 (1) Subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless
(a) in the case of a prohibited firearm, a restricted firearm or a non-restricted firearm,
(i) the person or any other occupant of the motor vehicle is the holder of
(A) a licence under which the person or other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it,
(ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of
(A) a licence under which that other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, or
(iii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament; and
(b) in the case of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition,
(i) the person or any other occupant of the motor vehicle is the holder of an authorization or a licence under which the person or other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or
(ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was
(A) the holder of an authorization or a licence under which the other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or
(B) a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament.
Punishment
94(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.
Possession of prohibited or restricted firearm with ammunition
95 (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of
(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.
Possession of property obtained by crime
354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
(2) CDSA Provisions
[345] Pursuant to section 2(1) of the CDSA, possession means possession within the meaning of subsection 4(3) of the Criminal Code, which I set out below.
[346] Section 5(2) of the CDSA reads:
Possession for purpose of trafficking
5(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.
(3) Definitions
[347] For the purposes of these sections a number of definitions in sections 2, 4 and 84 of the Criminal Code as well as a regulation to the Criminal Code apply as follows:
Definitions
2. In this Act,
Firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;
Possession
4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Definitions
84 (1) In this Part,
Ammunition means a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and a shot shell;
Authorization means an authorization issued under the Firearms Act;
Licence means a licence issued under the Firearms Act;
Prohibited ammunition means ammunition, or a projectile of any kind, that is prescribed to be prohibited ammunition;
Registration certificate means a registration certificate issued under the Firearms Act;
Restricted firearm means
(a) a handgun that is not a prohibited firearm,
(b) a firearm that
(i) is not a prohibited firearm,
(ii) has a barrel less than 470 mm in length, and
(iii) is capable of discharging centre-fire ammunition in a semi-automatic manner,
(c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or
(d) a firearm of any other kind that is prescribed to be a restricted firearm.
[348] Prohibited ammunition is defined in Part 5 of the "Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted", SOR/98-462 as amended.
[349] Section 6 of the Regulation states:
6 The ammunition and projectiles listed in Part 5 of the schedule are prohibited ammunition for the purposes of the definition "prohibited ammunition" in subsection 84(1) of the Criminal Code.
[350] Part 5 of the Regulation reads:
1 Any cartridge that is capable of being discharged from a commonly available semi-automatic handgun or revolver and that is manufactured or assembled with a projectile that is designed, manufactured or altered so as to be capable of penetrating body armour, including KTW, THV and 5.7 x 28 mm P-90 cartridges.
2 Any projectile that is designed, manufactured or altered to ignite on impact, where the projectile is designed for use in or in conjunction with a cartridge and does not exceed 15 mm in diameter.
3 Any projectile that is designed, manufactured or altered so as to explode on impact, where the projectile is designed for use in or in conjunction with a cartridge and does not exceed 15 mm in diameter.
4 Any cartridge that is capable of being discharged from a shotgun and that contains projectiles known as "fléchettes" or any similar projectiles.
B. The Parties' Positions Respecting the Charges
[351] With the exception of the counts under section 86(1) and section 354(1) of the Criminal Code, which I am disposing of summarily in this part of my reasons, I will analyze each of the remaining charges in more detail. I am finding H.M. guilty of only a small number of the charges that the Crown pursued.
[352] In advance of closing argument, counsel for the Crown filed some written submissions at the Court's request. Those submissions included analysis respecting the Charter, but only very brief submissions regarding the 16 counts for which H.M. has been charged.
[353] The Crown's written submissions state that the "Charter application, along with the law of possession, is determinative of this matter". In a nutshell, the Crown argues that if the evidence is admitted, then H.M. should be found guilty of all of the counts.
[354] I disagree.
[355] Regarding possession, the Crown's argues that "possession means having knowledge and control over an item". The Crown invites the Court to make findings of guilt based on "circumstantial evidence, which may include factors such as one's physical position within a motor vehicle, connection to a motor vehicle, proximity to the item, visibility of the item, the number of items, nature/connection of other items located, and the circumstances surrounding the accused's connection to the items."
[356] The Crown says that the Court should find H.M. guilty on all counts because:
(1) He had physical control over the motor vehicle;
(2) He moved parking spaces and was seated in the driver's seat upon arrest;
(3) He had a loaded firearm on his person;
(4) The center console was easily accessible to him;
(5) Ammunition matching both firearms was located in the driver's side dash compartment;
(6) A package of heroin was located in the compartment to the right of the steering wheel;
(7) He was arrested with $265 on his person; and
(8) He was in the company of 3 males for many minutes, walking towards the car and then observed socializing in the car upon arrest.
[357] Regarding the charge under section 354 of the Criminal Code, the Crown submits that H.M. had $265 on his person. The Crown made no compelling arguments as to why the Court should conclude that the cash in H.M.'s possession was the proceeds of crime. That it was proceeds of crime (whether in whole or in part) is not the only inference that can be drawn about the cash. Nor would I attribute to H.M. the necessary knowledge, consent or control over any of the other cash found either on others or elsewhere in the car (for similar reasons as those which I will explain below when discussing the drugs). As such, the Crown has failed to prove this offence and H.M. will be found not guilty of the count under to section 354 of the Criminal Code.
[358] The Crown made no submissions at all (either written or oral) respecting the firearms charges under sections 86(1) of the Criminal Code, nor did counsel for the Crown tell the Court upon what evidence it should rely to support findings of guilt on the counts laid pursuant to those sections. In the absence of those submissions, the Crown essentially left the Court to analyze the evidence without assistance.
[359] In the case of the charges under section 86(1), in the absence of any submissions and case law as to the meaning of "careless" within that section, and about what evidence the Court should consider to support a guilty finding under this section, the Court is finding H.M. not guilty of the count that is based on the weapon in his pants. The Court is not going to speculate as to what findings the Crown wanted the Court to make here.
[360] And the Court is finding him not guilty of the other count under section 86(1) relating to the gun in the center console for the same reason, plus the fact that the Court is unable to conclude that H.M. was in possession of that gun within the meaning of section 4(3) of the Criminal Code. I will deal with the possession aspect of this second gun shortly in these reasons.
[361] The defence concedes that if the evidence is included following the Charter analysis, that H.M. should be found to be in possession of the firearm in H.M.'s pants. The defence says there should be acquittals on all other charges. Counsel did not really specify for what charges a finding of possession alone would result in a guilty finding either. But while the defence's submissions respecting the charges themselves were brief too, it must be remembered that it is the Crown who must prove its case. And the defence says that the Crown has failed to prove its case. In the case of many of the charges, I agree.
C. Evidentiary Issues When the Crown Seeks Guilty Findings Based on Circumstantial Evidence
[362] The Crown heavily relies on circumstantial evidence in its pursuit of findings of guilt in this case. To find H.M. guilty based on circumstantial evidence, the Court must be satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the circumstantial evidence is that H.M. is guilty. See R. v. Griffin, 2009 SCC 28 ¶ 34. The inference of guilt must be drawn from proven facts. See R. v. Williams, 1998 CarswellOnt 2274 (C.A.) ¶ 1 2.
D. The Firearms Charges
[363] In the result, I find H.M. guilty of one count only under each of sections 91(1), 92(1), 94(1) and 95(1). I am making these findings of guilt in relation to the loaded firearm in his pants, and based on the other evidence that I will summarize.
[364] I find H.M. not guilty of all counts under section 91(2) relating to any of the ammunition. As I have already said, I would not find H.M. guilty of both counts under section 86(1), and I would not find him guilty of the second counts under each of sections 91(1), 92(1), 94(1) and 95(1) in relation to the firearm in the centre console.
(1) The Findings of Guilt Respecting the Firearm Found in H.M.'s Pants
[365] The Supreme Court succinctly set out the elements of possession under section 4(3) (a) of the Criminal Code in R. v. Morelli, 2010 SCC 8 ¶ 16, 17.
[366] For the accused to be in personal possession, he must be aware that he has physical custody of the thing in question and he must be aware as well of what that thing is. Both elements must co-exist with an act of control.
[367] Constructive possession is established where the accused did not have physical custody of thing in question, but had it in the actual possession or custody of another person or in any place whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person. It will be established if H.M. had knowledge of the character of the object, knowingly put it or kept it in a particular place, whether or not that place belongs to him, and intends to have the object in the particular place for his use or benefit or that of another person.
[368] Under section 4(3)(b), possession may be deemed to H.M. if another of the occupants had the contraband in his custody or possession with H.M.'s (and any one else involved in the joint venture's) knowledge and consent.
[369] There is no question that H.M. was in a motor vehicle, and he had "possession", as defined by section 4(3) of the Criminal Code, of the gun in his pants. He had it in his actual possession.
[370] Incidentally, the defence did not really dispute that either the gun in H.M.'s pants, or that in the center console of the Volkswagen for that matter, were loaded, nor that they were restricted firearms within the meaning of section 84 of the Criminal Code. Nor did either the Crown nor the defence really make arguments either way, about H.M.'s knowledge relating to certain elements of the offences.
[371] I nevertheless make findings of fact based on the evidentiary record before me. Since the defence has not particularly conceded that H.M. knew the gun in his pants was loaded or that H.M. was not authorized to have this gun, to be clear I have no hesitation in drawing the inference that H.M. had knowledge of these two facts beyond a reasonable doubt. There is no other reasonable inference that can be drawn.
[372] Regarding H.M.'s authorization to have the gun that he had in his pants, I am satisfied beyond a reasonable doubt that H.M. neither had a license nor a registration certificate for either gun on June 14, 2018. More particularly, the Crown tendered on consent:
(1) A certificate of analysis of Greg Hoffman setting out that on September 25 and October 17, 2018, he tested the two firearms, two sets of 10 cartridges of .22LR (long riffle) calibre rim-fire ammunition, and a separate set of 50 cartridges of .22LR (long riffle) calibre rim-fire ammunition. He certified that these are "restricted firearms" and "ammunition" within the meaning of section 84 of the Criminal Code;
(2) The affidavit of a Firearms Officer Jason Matthew Morris Elbers sworn October 25, 2018. Mr. Elbers was designated as a Firearms Officer by the Chief Firearms Officer of Ontario pursuant to section 99 of the Firearms Act. In his affidavit he sets out that there is no record in the Canadian Firearms Information System that H.M. had a firearms acquisition certificate or license as at June 14, 2018; and
(3) The affidavit of Angie Mcklusky sworn November 9, 2018. Ms. Mcklusky is employed by the RCMP and she is posted with the Canadian Firearms Program. She is a senior registration analyst with the Canadian Firearms Registry. Ms. Mcklusky was unable to locate any record of a registration certificate for either gun as at June 14, 2018.
[373] Each of sections 91(4), 92(4), 94(3) and (4) and 95(3) create exceptions to the section 91, 92, 94 and 95 offences for which I am making findings of guilt. I heard no submissions from either side about whether any of these exceptions apply. But there is no basis or any evidence to conclude that any of these exceptions apply either. I find this beyond a reasonable doubt too.
(2) The Not Guilty Findings for the Section 91(2) Ammunition Charge
[374] The Crown made no submissions at all as to the count of possessing ammunition contrary to section 91(2) of the Criminal Code.
[375] To find H.M. guilty of the section, I would require evidence that any of the bullets in the gun in H.M.'s pants were "prohibited ammunition" but the Crown called no such evidence to that effect. Nor did the Crown call any evidence that the bullets in either of the two bags in the car were "prohibited ammunition".
[376] To the contrary, the Crown called evidence proving the ammunition was not prohibited. The certificate of analysis that the Crown tendered does not say that what was seized is "prohibited ammunition". It refers to it as "ammunition".
[377] I find H.M. not guilty of this charge.
(3) The Not Guilty Findings for the Other Count Under Section 86(1) and the Second Counts Under Sections 91(1), 92(1), 94(1) and 95(1) of the Criminal Code
[378] I find that the Crown has failed to prove beyond a reasonable doubt that H.M. had possession of the firearm in the center console of the. As such, I find H.M. not guilty of the counts under these sections (specified in the subheading).
[379] I will explain why I have concluded that the Crown failed to prove possession of this second gun as part of the analysis when I also deal with why the Crown has failed to prove the CDSA charges, next.
E. The CDSA Charges
[380] I find that the Crown has failed to prove beyond a reasonable doubt that H.M. was in possession of either the second gun from the center console nor any of the drugs. The Crown has failed to prove beyond a reasonable doubt that H.M. either knew of these items, had them in someone else's possession, or had any control over the items.
[381] I say this for the following reasons:
(1) No drugs were found on H.M.'s person;
(2) What is believed be marijuana was taken from H.K., not H.M. on June 14, 2018;
(3) What is believed to be cocaine or crack was taken from H.K., not H.M. on June 14, 2018;
(4) The Crown also submitted that there was heroin in the car and it was in plain sight in a compartment within H.M.'s reach. But there was no CDSA charge based on H.M. possessing heroin for the purposes of trafficking;
(5) The drugs seized on June 16, 2018 were found elsewhere in the car;
(6) One of the drug scales was found in a satchell in the back seat; and
(7) There was another satchell taken from the trunk.
[382] More than one reasonable inference about H.M.'s knowledge can be drawn here. None of these items were in plain sight. For example, the police evidence was that drugs were found on H.K.'s and L.R.'s person, including in L.R.'s boxer shorts.
[383] Even if H.M. knew about the drugs, which I am unable to find beyond a reasonable doubt, there could have been passive acquiescence on the part of H.M. The Court is unable to conclude beyond a reasonable doubt that the others were holding the items for H.M., or that H.M. had any control over them.
[384] Regarding the drugs found in the car, there is insufficient evidence to prove beyond a reasonable doubt that H.M. knew of them or that H.M. had control of the car. I rely on many of the findings of fact I made above respecting the expectation of privacy in the car.
[385] Again, H.M. is not the owner of the car. The Crown had not called any evidence about the owner apart from the name of the owner of the car and his address. I do not know that H.M. was the only person authorized to use the car. I do not know about his historic use of the car. The car's trunk was obviously cluttered and so any items seized from it were not in plain sight.
[386] Regarding the weapon in the center console, it too was not in plain sight. It was located in the console and the console was closed. Moreover, even if H.M. was aware of it, which I am unable to find, it could have belonged to one of the others.
[387] There was no evidence of H.M.'s fingerprints on the weapon in the center console or on any of the drugs.
[388] Counsel for the Crown also told the Court at the outset of the trial that continuity was not an issue in this case. The Crown then tendered five certificates of analysis under the CDSA to prove what kind of drugs were seized. Specifically, the Crown tendered on consent various certificates of analyst of Shane Cheddi, and Salwa Cevelwalla, Gi Yeon Kim, all of whom are designated analysts under the Controlled Drugs and Substances Act and the Food and Drugs Act. The various certificates set out that the drugs provided by the police to be tested were cannabis, cocaine and fentanyl. Another certificate of analyst of Jennifer Vuong did not identify a substance, that had been provided.
[389] But the Crown then failed to call evidence linking each of these certificates to the specific drugs the police testified that they seized. While the officers testified that they seized cocaine, marijuana and crack from different locations, I was not told which certificate pertained to which drug.
[390] In R. v. Ebner, 1979 CarswellBC 704 (S.C.C.), a drug case, the Supreme Court discussed the meaning of "continuity" with reference to a certificate of analysis under the then in force Narcotic Control Act. At ¶ 12-13 the Court said "A certificate merely stating that some green plant material was analyzed would be simply meaningless" and "[i]t is vital to the Crown's case that it show that the substance analyzed was the same substance as that purchased by the police officer from the appellant".
[391] Given that none of the drugs were actually found on H.M. the failure to prove specifically what compound was taken from others or from the car may have been an important omission. If the Court is supposed to rely on circumstantial evidence of H.M.'s proximity to the drugs in question, how is the Court to know how proximate H.M. was to any particular drug seized without knowing what the drug actually was?
[392] In this case, because of the other findings I made, I do not have to decide the ultimate impact of the Crown's failure to call evidence linking the certificates of analysis to the drugs as the Crown failed to prove the drug charges for other reasons.
[393] And finally, respecting the four charges under section 5(2) of the CDSA for which the Crown pursued findings of guilt, counsel for the Crown made almost no submissions about the "for the purposes of trafficking" element of these charges. As I have found H.M. not to have been in possession of the items taken from others in the car or elsewhere in the car, I need not address this aspect of the charges further.
[394] In summary, I would find H.M. not guilty of the various charges based on the above.
PART V: CONCLUSION
[395] Based on the foregoing:
(1) I find that H.M.'s section 8 and 9 Charter rights have been violated as a result of his unlawful arrest, the search of his person and the initial search of the car on June 14, 2018;
(2) I find that the loaded firearm that was found in H.M.'s front waist band, the loaded firearm in the centre console of the car, and the cash on H.M.'s person was obtained in a manner that infringed or denied H.M.'s section 8 and 9 Charter rights;
(3) I would not exclude the evidence under section 24(2);
(4) I find H.M. guilty of only one of the counts under each of sections 91(1), 92(1), 94(2) and 95(1) of the Criminal Code as set out in Information 19-Y190106. I will hear submissions concerning the principles in R. v. Kienapple about whether any of these guilty findings should be stayed; and
(5) I find H.M. not guilty of all remaining counts in Information 19-Y190106 and not guilty of all counts in Information 18-Y180421.
[396] At the next Court date, I ask counsel to be prepared to discuss next steps in this case. I also ask counsel to be prepared to make submissions about whether any of the guilty findings should be stayed based on R. v. Kienapple.
[397] And finally, I repeat again here the majority of the Supreme Court's comments R. v. Omar:
It may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day,
[398] Even though I am not granting the remedy of excluding the evidence, there may be other remedies that are appropriate in the next steps of the case.
[399] Both counsel should feel free to make submissions about this if either sees fit to do so and I am prepared to set a process at the next date for the remaining steps of this case to be heard and concluded.
Released: June 5, 2019
Signed: Justice Alex Finlayson
[1] The use of the word "dark" as opposed to "black" when discussing the colour of the car has some significance in this case, which I will address.
[2] Again, in the case before this Court, the question at stage one of R. v. Grant is whether the unlawful arrest and searches that flowed were serious, not whether the police could have detained H.M. anyway.