Ontario Court of Justice

Date: December 11, 2023

BETWEEN:

HIS MAJESTY THE KING

— AND —

GABRIEL BOGDANOV

Before: Justice Berg

Judgement given on: December 11, 2023

JUDGEMENT

Counsel: L. Vorontsova, counsel for the PPSC K. Kealey, counsel for the accused

Berg J.:

Introduction

[1] It is alleged that Mr. Bogdanov committed three offences on April 21, 2022 here in the City of Ottawa. Specifically, he is charged with possessing crack cocaine for the purpose of trafficking contrary to the Controlled Drugs and Substances Act, with possessing powder cocaine for the purpose of trafficking pursuant to the same act, and finally, with possession of proceeds of crime, to wit: $1330.00, contrary to s. 354(1)(a) Criminal Code. Given that he has raised certain issues pursuant to the Charter of Rights and Freedoms and is seeking relief pursuant to s. 24(2) of that act, it has been agreed that the Charter voir dire and the trial proper will be heard in a blended fashion. The evidence called by the Crown is applicable to both proceedings.

The Evidence

[2] Certain admissions were made by the defence at the outset of these proceedings. It was admitted that the accused before the court was the person arrested on April 21, 2022 in the City of Ottawa. It was admitted that the police seized from the back pocket of the passenger seat the following: 17.3 gm of crack cocaine and 26.3 gm of cocaine. Both the continuity of all exhibits and the authenticity of the photographs taken were conceded by the defence. Finally, it was admitted that the accused is the registered owner of the grey Nissan Altima four-door, Ontario marker CTVP326.

[3] The first witness was Constable Alexandru Isac of the Ottawa Police Service. He was on patrol on the night of April 21, 2022. At 11:09 p.m., he was stopped for a red light at an intersection. He observed two motor vehicles proceed through the intersection on a solid red light travelling in the direction opposite to that in which he was going. As a result, Mr. Isac did a U-turn and gave chase. He ended up being able to stop both vehicles. He spoke briefly to the woman driving a pick-up truck, told her to stay put, and then approached the Nissan Altima being driven by Mr. Bogdanov. As he approached the accused’s car, another officer who had been nearby drove over to offer assistance; this was Constable Dhaliwal. I will note that once Constable Isac began the investigation of the accused before the court, he decided to allow the driver of the pick-up truck to leave without any provincial offences ticket given that he anticipated that the Cannabis Control Act investigation into the accused would take some time and that he, Mr. Isac, should be the one to write out the ticket as he had made the observations of the alleged running of the red light.

[4] When Constable Isac had stopped the two vehicles for the traffic stop, he had made a radio call informing his dispatch of that fact at roughly 11:10 p.m. He provided the dispatcher with the licence plate number of the Nissan Altima and was advised that the registered owner was Mr. Bogdanov. Dispatch further advised that Mr. Bogdanov was a person of interest for firearms and past criminal activity. During cross-examination, Mr. Isac testified that he was also informed at that point that the accused had been flagged as dangerous. He received all this information prior to approaching the accused’s Nissan. Constable Isac testified also during cross-examination that at this point he believed that there could be a firearm in the Nissan.

[5] Mr. Isac, as I have indicated, approached the Nissan and stood by the driver’s door. The driver was the accused before me. He lowered his window. When he did so, Constable Isac noticed the strong odour of fresh cannabis emanating from inside the vehicle. Mr. Bogdanov provided his documents upon the officer requesting them. Mr. Isac testified that the registration form itself emitted a strong odour of cannabis. He noticed that there was a passenger seated in the front seat. Mr. Isac testified that he took the accused’s documents and went back to his scout car to run his name. He did so for officer safety. Constable Dhaliwal remained behind the Nissan on the passenger side.

[6] Constable Isac concluded that he had reason to believe that there was cannabis inside the Nissan that was readily available to the driver and the passenger and thus he had the authority to search the vehicle for that cannabis. He came to that conclusion, it would seem, on the basis of the very strong odour of fresh marijuana which could indicate that any packaging was open. He testified that he could not remember if he had asked the accused anything about that substance. During cross-examination, he stated that he was certain that what he smelt was the odour of fresh cannabis and was certain that it was not the odour of burnt cannabis. He based this opinion on police college training and personal experience. He testified that despite the information that he had received from dispatch about the accused being a person of interest, the decision to search the vehicle was entirely within the ambit of the Cannabis Control Act.

[7] He communicated his conclusion to Mr. Dhaliwal and told him to speak to the passenger. He, Isac, would speak to the accused. Mr. Isac then walked over to the driver’s door and told Mr. Bogdanov that the vehicle would be searched pursuant to the Cannabis Control Act and asked him to get out of the car. He complied and the constable then conducted a pat-down search of his person for officer safety. He then instructed Mr. Bogdanov to walk over to the sidewalk. Mr. Isac testified that at this point, he cautioned the accused and the passenger that they did not have to talk to the police if they did not wish to do so. He noted that the accused was being cooperative with the police. As well, Mr. Bogdanov did not display any signs of impairment.

[8] Constable Isac then began the search of the Nissan. He started with the driver’s area. Other officers had arrived or were arriving. There ended up being a total of seven or eight vehicles on scene. He testified that he located two black cell phones underneath the driver’s seat, a vape pen in the console area, and then, in the pocket on the rear of the passenger seat, he found what he believed to be powder cocaine in two transparent zip-lock baggies as well as another transparent plastic bag wrapped around rocks of crack cocaine. He also located a black mini scale. Another officer, Constable Clayton, was also searching the car.

[9] A few further observations about this search. Constable Isac testified that he did not seize any cannabis from the Nissan. While he had been looking for an open bag of that substance, he testified that he would have noticed and noted the presence of any cannabis residue. He made no such note. He told the Court that he believed that another officer, Constable Clayton he thought, had seized some form of that substance. Mr. Isac also testified that he did not seize the vape pen but left it in the centre console. As well, it turned out that one of the two bags did not contain powder cocaine but, rather, a buffing agent. Yet more observations about Mr. Isac’s search: he testified that he did not see a vape pen on the floor of the driver’s area nor did he locate any cannabis roaches.

[10] Mr. Isac could not say how long the search had taken. Once these items had been located, Mr. Isac conferred with Mr. Clayton. The former then turned to arrest the accused and the passenger. He was not certain in court but he believed that he did say something to them at that point about arresting them for possession for the purpose of trafficking. However, the passenger immediately started to run away. Constable Isac and two other officers gave chase on foot. Another officer who was approaching the scene in a scout car also assisted in apprehending him. He was caught not far away after a 10-15 second chase. The passenger, a young person, was searched incident to arrest and a firearm was found on his person in a satchel bag. Constable Isac then returned to where the present accused was still standing; Constable Clayton had remained with him. Mr. Isac advised the accused at 11:28 p.m. that he was under arrest for the drugs and, it seems, for the firearm; there is no firearm charge before me, however. The search incident to arrest turned up the $1330 in cash; it consisted of $20s, $50s, and $100s. This search was done prior to providing rights to counsel due to concerns about officer safety and took approximately one minute. He then walked Mr. Bogdanov over to the police cruiser and also secured the evidence.

[11] Constable Isac then did the following things: at 11:31 p.m. he provided Mr. Bogdanov with his rights counsel. The accused indicated that he understood and that he wished to speak to counsel. The constable then provided the caution (11:32 p.m.), the secondary caution (11:33 p.m.) and the s. 524 warning (also at 11:33 p.m.). He was then transported to the central cell block for processing. Once there, he was paraded and then indicated that he wished to speak to counsel of choice. Mr. Isac left a message for that lawyer at 12:29 a.m. at the lawyer’s direct number. The constable then called the number for the law office and left word with the person that answered. The counsel of choice did not call the station and at 1:00 a.a.m., when Mr. Isac told the accused, the accused indicated that he wished to speak to duty counsel. After he had done so, he indicated to Mr. Isac that he was satisfied with the call. The accused was then placed in a cell. At some point that night, Constable Isac issued him with a Provincial Offences Ticket for the red-light infraction.

[12] At the end of the cross-examination, Constable Isac denied the suggestion from Ms. Kealey that he had actually not smelled any cannabis and was using the Cannabis Control Act as an excuse for having conducted the search of the Nissan.

[13] I next heard the evidence of Constable Arjun Dhaliwal. On the night in question, he had been on general patrol and had seen Constable Isac engage in the traffic stop and had gone over to assist. By the time he had caught up to where his colleague had stopped the accused, it was 11:09 p.m. and Mr. Isac had requested assistance. Mr. Dhaliwal spoke to Mr. Isac who was standing beside the driver’s door of the Nissan and was informed that the latter had noticed the smell of cannabis coming from inside. Mr. Isac asked him to go and speak to the passenger. However, before he went to do so, it was his evidence that he noticed the accused’s eyes as being glossed over and that he was squinting.

[14] Once he was by the passenger side of the Nissan, Mr. Dhaliwal heard Constable Isac tell the accused that he was going to search the vehicle and that both he and his passenger should get out. The passenger opened his door and it was Mr. Dhaliwal’s evidence that he immediately was struck by the odour of freshly burnt cannabis. He had not smelt it earlier. Mr. Dhaliwal told the Court that he was very familiar with the odour of freshly burnt cannabis. The car was then searched by Mr. Isac and another officer: Constable Clayton. Mr. Dhaliwal stayed with the passenger by the side of the road. At some point, Mr. Clayton gave him grounds to arrest the passenger, however, before Mr. Dhaliwal could do so the passenger ran off. Mr. Dhaliwal followed in pursuit along with Constables Edwards and Karhani. The chase lasted for 30-45 seconds and ended up with the passenger’s arrest. Amongst the items found on him after the search incident to arrest were a vial with a brown liquid and a loaded firearm.

[15] During cross-examination, Constable Dhaliwal testified that he did not notice a pick-up truck in the vicinity of the traffic stop. There ended up being seven or eight scout cars on scene.

[16] The next Crown witness was Acting Sergeant Wayne Clayton. At the time of the traffic stop, he was in a scout car nearby. He had a recruit with him in the vehicle: Mr. Edwards. He overheard Constable Isac’s exchange with dispatch over the radio at 11:10 p.m. and, as Mr. Clayton was “somewhat familiar” with the accused, he decided to attend at the scene of the traffic stop due to the fact that he had safety concerns once he had learned that Mr. Bogdanov was involved. He arrived there at 11:12 p.m. There were three police officers present and the accused and his passenger were out of the Nissan. Mr. Isac informed Mr. Clayton that he was about to search the Nissan and asked him to assist. Mr. Isac advised him that the grounds for the search were “the odour of cannabis emanating from inside the vehicle.” At the time of trial, he could no longer remember if Mr. Isac had indicated fresh or burnt cannabis nor could he recall if Mr. Isac had already commenced the search. During cross-examination, however, he testified that Mr. Isac had not yet commenced the search and, furthermore, that Mr. Isac did not tell him that he had already searched the driver’s area.

[17] As requested, Mr. Clayton began to search the vehicle. He and Mr. Isac decided which parts each would search. He started with the driver’s area; Mr. Isac was looking in the rear passenger side. Mr. Clayton could see loose cannabis residue or shatter throughout the cabin of the Nissan: on the seats, floor, centre console. The shatter was old. He testified that he smelled cannabis but could not recall if it was fresh or burnt. He located two roaches in the cup holder of the central console and on the driver’s side floor, there was a cannabis vape pen. He seized the three objects. They were entered as exhibits at this trial. Mr. Clayton was not aware of any other vape pen that had been located in the Nissan that night and it would seem, therefore, that this was the same object located earlier on by Constable Isac. I was not offered any explanation as to why Constable Isac had not seized that cannabis vape pen when he had located it earlier on.

[18] Constable Isac advised that he had found drugs in the rear area and Mr. Clayton said that he, Isac, could arrest the accused and his passenger. Mr. Isac stepped out of the Nissan and told another officer to make the arrests, however, the passenger started to run. There was a chase, the passenger was caught, after less than a minute, and a gun was found on him.

[19] When Mr. Clayton heard about the firearm, he detained Mr. Bogdanov for officer safety. This was at approximately 11:21 or 11:22 p.m. He was not certain whether the accused had been searched by another officer and Mr. Clayton had safety concerns based on his past experience with this accused. He handcuffed him and advised him that he was detained. He did not give him his rights to counsel nor did he explain why he was detained. This was because everything was happening quickly. He did not arrest him at that time for the drug charges. Constable Isac returned after the foot chase and took over custody of the accused. Mr. Clayton returned to searching the vehicle. It was his evidence that the search of the Nissan, took a total of six to eight minutes. The drugs were located at roughly 11:18 to 11:20 p.m.

[20] The next Crown witness was Detective Scott Turnbull. Basically, he was called to explain some of the exhibits. He noted that the buffing agent found in a separate bag weighed 29.8 gm.

[21] After a voir dire, I allowed Detective Bryn Taylor to testify as an expert witness in relation to possession for the purpose of trafficking of both cocaine and crack cocaine concerning quantities of those drugs as indicators of the purpose of trafficking, the scale of drug operations, value and pricing of these drugs, the significance of the presence of buffing agents, and the significance of the presence of paraphernalia, weapons, cell phones, and debt lists. Finally, she was also allowed to provide expert opinion evidence on proceeds of crime derived from the sale of these two drugs. Based on her evidence, I would be able to find that the Crown has proven beyond a reasonable doubt that any possession of cocaine and crack cocaine was for the purpose of trafficking.

The Charter Application

[22] Mr. Bogdanov’s application pursuant to the Charter of Rights and Freedoms is based on alleged breaches of his s. 8, s. 9, and s. 10(b) rights. With respect to the alleged s. 8 search breach and related detention, the defence application states that “the evidence was obtained pursuant to an unconstitutional warrantless search of Mr. Bogdanov’s vehicle notwithstanding that the police claimed authority for such search under the Cannabis Act. That there were not, in fact, grounds to search Mr. Bogdanov’s vehicle under either the Cannabis Act or the Cannabis Control Act, thus making both the search and his detention during and following the search unlawful; that the detention was in fact a pretext to conduct a Criminal Code investigation”. The Form 1 particularizes the alleged breach of the Applicant’s s. 10(b) right as a delay in the informational component thereof.

[23] Everyone has the right to be secure against unreasonable search or seizure.” Where the defence has raised that there has been an infringement of an accused’s s. 8 Charter in the context of a warrantless search, the onus then shifts to the Crown to show, on the balance of probabilities, that the search was authorized by law, that the law itself was reasonable, and that the manner the search was conducted was reasonable (R. v. Collins). In the present case, Mr. Bogdanov has conceded the reasonableness of the manner of search and has not challenged the law itself.

[24] Constable Isac testified that his decision to search Mr. Bogdanov’s vehicle was based entirely on police powers under the Cannabis Control Act. Subsections 12(1) and (3) of that Act read:

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat. (3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[25] The defence does not dispute that Constable Isac was engaged in a legitimate Highway Traffic Act investigation when he decided to pursue and stop the car being driven by Mr. Bogdanov as well as the other vehicle. As a matter of procedure, he ran the car’s plate number once it was stopped and before he approached it and learned that that the registered owner was Mr. Bogdanov, that he was a person of interest for firearms and past criminal activity and had been flagged as dangerous. At this point, Mr. Isac believed that there could be a firearm in the Nissan. Forearmed with this information and belief, he approached the Nissan driven by the Applicant. Upon speaking to Mr. Bogdanov, he smelled the strong odour of fresh cannabis emanating from inside the car and formed a belief that there was cannabis inside contrary to s. 12(1) Cannabis Control Act and he decided to conduct a search for that substance. At some point, he let go the other vehicle that he had stopped for running a red light apparently once he had decided to embark on the Cannabis Control Act search.

[26] Mr. Isac testified that the grounds for this search were based on his having smelled the strong odour of fresh cannabis coming from inside Mr. Bogdanov’s car. Searches based on olfactory observations require close scrutiny by the courts. In R. v. Ghuman, 2023 ONSC 2615 at para. 37, Chozik J. stated:

Courts must be cautious about concluding that searches or arrests based on smells are justified: R. v. Newell, 2015 ONCJ 564 at para. 18. In R. v. Polashek (1999), 45 O.R. (3d) 434 (CA), at para. 13, Rosenberg J.A. made clear that

The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace.

(See, too, R. v. Grant, 2022 ONSC 2703, R. v. Shaw, [2021] O.J. No. 2296 (OCJ), R. v. Kyeremeh, [2022] O.J. No. 5917 (OCJ)). In effect, the courts must rely on the credible and reliable evidence of investigating officers to prove that the odours were actually present at the relevant time as there is frequently no other way of proving it.

[27] If I accept that Constable Isac did indeed smell fresh cannabis at that time, it is possible that the search he conducted would have been justified by law. However, I find that the Crown has not proven that he in fact did so or that any other officer smelled cannabis in any form. I have several reasons for coming to this conclusion. First of all, while Mr. Isac’s evidence was that he knows the difference between the smells of fresh and burnt cannabis and that what he smelled was the fresh form, Constable Dhaliwal testified that he immediately was struck by the odour of freshly burnt cannabis, an odour with which he was familiar. A third officer, Clayton, testified that he smelled cannabis when searching the vehicle but had not noted and could not remember if it was the odour of fresh or burnt cannabis. The charges faced by Mr. Bogdanov all came about as a result of the Cannabis Control Act search. Given the importance of the observed odour to the search, it is extremely troubling that I have contradictory evidence before me as to what was smelled. Based on this evidence alone, I find that the Crown has not proven on any standard that there was the odour of any form of cannabis present when the officers were at Mr. Bogdanov’s vehicle.

[28] Further to this specific issue, Mr. Isac, who, it will no doubt be remembered, testified that he had smelled the strong odour of fresh cannabis, did not locate any such substance nor did any of his colleagues. It was his evidence that if he had noticed the presence of any cannabis residue, he would have made a note of that fact. As he agreed that he had made no such note, I infer that he made no such observation. Therefore, it is his evidence that there was no cannabis residue in the Nissan. Mr. Clayton, on the other hand could see loose cannabis residue or shatter throughout the cabin of the Nissan. These two officers were searching the same vehicle and their searches overlapped to some extent. Leaving aside this troubling contradiction within the Crown evidence, I note that Mr. Clayton testified that the residue was old. Therefore, it is highly unlikely that if it did exist, it would have been the source of the strong smell of fresh cannabis testified to by Constable Isac. But to be clear, I am unable to find on the basis of the evidence before me that there was any such residue.

[29] Mr. Isac testified that he located a vape pen in the console area but did not seize it and left it where he had found it. He testified that he did not see another vape pen on the floor of the driver’s area nor did he find any roaches. How does one reconcile this evidence with that of Mr. Clayton? He did locate two roaches in the console area and a cannabis vape pen on the driver’s area floor; these three objects were entered as exhibits at this blended trial and obviously were found in the Nissan. He did not see any other vape pen in the car. It would seem, then, that this was the same vape pen referred to by Mr. Isac as having been in the centre console. If indeed Constable Isac had been conducting a Cannabis Control Act search on the basis of cannabis available to the driver, then it is inexplicable that he did not seize the vape pen. In any case, there is no evidence before me that the vape pen emitted any odour of cannabis. It was not suggested by any officer that the roaches and vape pen emitted an odour of fresh cannabis, or burnt cannabis for that matter.

[30] Mr. Isac testified that the Applicant Mr. Bogdanov did not display any signs of impairment and indeed, Mr. Bogdanov was not charged with impaired driving. Mr. Dhaliwal, on the other hand, testified that he noticed the accused’s eyes as being glossed over and that he was squinting. This may be in keeping with his testimony that he smelt burnt cannabis, but is clearly and directly contradicted by Mr. Isac’s evidence.

[31] Mr. Isac testified that he took the accused’s documents and went back to his scout car to run his name after he had smelled the cannabis. He did so for officer safety. In the circumstances, this makes little sense. First of all, he had already run the plate and received the information flagging Mr. Bogdanov as dangerous. What further information would he have needed for officer safety? Secondly, it was his evidence that he believed that there could be a firearm in the Nissan based on the information he had already received prior to approaching the driver and smelling cannabis. What further information would he have needed to conduct the search? If he was concerned that there might be a firearm in the car, why turn his back on it even given the presence of at least one other officer on the scene at that point?

[32] The Crown has not justified this warrantless search. The combined evidence of the officers is contradictory, inconsistent, and illogical and there are therefore concerns about credibility, reliability, or both. Thus, I cannot find that the officers actually smelled any cannabis. If I cannot find that they made that observation, I cannot find that this warrantless search was lawful. The police clearly suspected that Mr. Bogdanov was up to no good that evening, and wished to search the Nissan, but their Cannabis Control Act search of his vehicle would still have to have been lawful. I find that it was not as they had no basis to conduct that search. By acting without lawful justification, they breached Mr. Bogdanov’s s. 8 Charter rights.

[33] I do not have to deal in this case with whether the presence of a smell of either fresh or burnt cannabis would have justified a search in the present case under the Cannabis Control Act (See, for example, R. v. Ghuman, 2023 ONSC 2615 at para. 38; R. v. Kyeremeh, [2022] O.J. No. 5917 at para. 78 (OCJ)).

[34] ”Everyone has the right not to be arbitrarily detained or imprisoned.” Inherent in this illegal warrantless search is also a breach of Mr. Bogdanov’s s. 9 Charter right against arbitrary detention and arrest. The Applicant was instructed to get out of his car and walk over to the sidewalk after he was subjected to a pat down search and provided with a caution. An officer or officers remained near Mr. Bogdanov and his passenger while the vehicle was being searched illegally. As the search was illegal, the concomitant detention was arbitrary.

[35] “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” A recent summary of the jurisprudence on s. 10(b) Charter in the context of warrantless searches under the Cannabis Control Act can be found in R. v. Moulton, 2023 ONCJ 140 at 260 ff. However, based on the foregoing factual analysis, I find that the police officers were engaged in a Criminal Code investigation from the moment that they identified Mr. Bogdanov as the driver of the vehicle that Mr. Isac had stopped for a legitimate Highway Traffic Act purpose, and, therefore, I need not conduct an analysis of how the Applicant’s liberty status changed as the police investigation supposedly changed from one into his driving, to the presence of cannabis in the vehicle, to a criminal investigation.

[36] As I have found that this was not a legal search, the time period relevant to the 10(b) analysis must be pushed back to the beginning of what clearly was a criminal investigation: i.e., from the moment that Constable Isac walked over to Mr. Bogdanov’s vehicle armed with the information that he had received from the police computer. Mr. Isac was at that point conducting both Highway Traffic Act and Criminal Code investigations. The Crown has conceded that the grounds for arrest crystalized at 11:20 p.m. As the informational component of the rights to counsel was satisfied at 11:31 p.m., the defence asks me to find a breach of Mr. Bogdanov’s right based on this eleven-minute delay. With respect, I disagree that 11:20 p.m. is the relevant time. I find that Mr. Bogdanov was detained for the purposes of a Criminal Code investigation at roughly 11:10 p.m. when Mr. Isac walked over to the Applicant’s car. Therefore, as there was a delay of approximately twenty-one minutes before the police satisfied their duty pursuant to s. 10(b) Charter, I find that there was a clear breach of Mr. Bogdanov’s right.

[37] Given that I am of the view that the police had decided to search Mr. Bogdanov’s vehicle once they had identified him as the driver and that they used their power under Cannabis Control Act as means to do so despite the absence of any lawful justification, I find that the s. 10(b) breach was also inherent in and commenced with the unlawful detention that proceeded the unlawful search of the vehicle. There is no need, therefore, for an analysis of what occurred between 11:10 p.m. and 11:31 p.m.

[38] The defence is seeking the exclusion pursuant to s. 24(2) Charter of all evidence that was obtained as a result of the foregoing breaches: the items located allegedly inside Mr. Bogdanov’s vehicle and the cash allegedly located on him when he was searched incident to arrest as a result of items allegedly seized during the search of the vehicle. The Supreme Court of Canada has provided guidance to trial judges when faced with this type of analysis. In R. v. Grant, 2009 SCC 32, it held that three factors are to be examined. First of all, the trial judge must determine the level of seriousness of the Charter—infringing state conduct. Secondly, the impact on the Charter-protected interests of the accused must be taken into account. Thirdly, there must be a determination of the level of society’s interest in the adjudication of the matter on its merits. The process is then completed by a weighing of these three factors on a balance of probabilities.

[39] The Level of Seriousness of the Breaches: I think that it is important here to recall the discussion in Grant with respect to this factor.

[72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

[74] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[75] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: [citations omitted] “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith. [citations omitted] Willful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[40] The Crown has not proven that the search of the Applicant’s vehicle was based on the presence of the odour of cannabis. The search of the car, the detention of Mr. Bogdanov and the ultimate arrest and search incident to arrest, as well as the violation of his s. 10(b) rights reflect a flagrant disregard of his Charter rights. These actions of the police were exactly of the type from which the court must disassociate itself in order to preserve public confidence in and ensure state adherence to the rule of law. These were very serious breaches.

[41] Impact on the Charter-Protected Interests of the Accused: The Applicant’s Charter-protected rights against unreasonable search and arbitrary detention were ignored by the police in order to allow them to conduct a criminal investigation. These breaches were exacerbated by the failure of the police to fulfill their duty to inform the Applicant of his right to consult with counsel. Mr. Bogdanov did not receive the Charter protection that is his due and thus his vehicle was searched unreasonably, he was detained arbitrarily, and was not informed that he could consult with counsel while this was going on. His arrest and the search of his person came about as a direct result of the breaches. The impact on his Charter-protected interests was thus extremely high.

[42] I find the fact that this took place in the context of a vehicular search, and not a dwelling to be of little import. While these breaches would have been more egregious if they had occurred in the context of a search of Mr. Bogdanov’s home, that is not to say that these present breaches were not very serious; they were.

[43] The level of society’s interest in the adjudication of the matter on its merits: Society has an interest in the adjudication on the merits of most of the cases that come before the courts. It cannot be gainsaid that the trafficking of hard drugs such as cocaine and crack cocaine are extremely serious social ills. The items seized from the vehicle and the Applicant’s person would be reliable evidence. Moreover, the drugs and other items that the Applicant seeks to have excluded from the trial are important if not essential to the Crown case. That being said, the Ontario Court of Appeal has remarked in R. v. McGuffie, 2016 ONCA 365 at para. 73 that:

The seriousness of the charges to which the challenged evidence is relevant, does not speak for or against exclusion of the evidence, but rather can "cut both ways": Grant, at para. 84. On the one hand, if the evidence at stake is reliable and important to the Crown's case, the seriousness of the charge can be said to enhance society's interests in an adjudication on the merits. On the other hand, society's concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious: see Grant, at para. 84; R. v. Dhillon, [2010] O.J. No. 3749, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 60.

[44] The weighing of these three factors: I must now determine whether, on the balance of probabilities, the admission of the evidence obtained by means of these Charter breaches would bring the administration of justice into disrepute. As explained by the Supreme Court of Canada in R. v. Beaver, 2022 SCC 54 at para. 117,

Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute (see R. v. Collins, [1987] 1 S.C.R. 265, at p. 280; Tim, at para. 75). Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable of mathematical precision (Grant, at paras. 86 and 140; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36; Tim, at para. 98).

[45] I find the seriousness of these breaches to be of such weight and the effect that they had on Mr. Bogdanov’s Charter-protected interests so significant that the Court must dissociate itself here from the actions of the police. To allow the Crown to rely on this illegally obtained evidence would be tantamount to saying that the police can stop and search a person or their vehicle on a whim and then attempt to justify the search afterwards on the basis of what they find and seize. Therefore, pursuant to s. 24(2) Charter, all items seized by the police from the motor vehicle and the person of Mr. Bogdanov will be excluded from this trial.

Addendum

[46] The submissions of counsel were made in September. Days after I completed writing this judgement, the Supreme Court of Canada released its decision in R. v. Zacharias, 2023 SCC 30; that was on December 1. I have reviewed the foregoing in light of this new direction from the Supreme Court and find that it has no effect in the present case. Unlike the situation in Zacharias, the initial breach in the present case is sufficient on its own, in my view, to support the above outcome per s. 24(2) Charter.

The Trial Proper

[47] Given the result of the Charter analysis, the Crown is unable to prove the charges against Mr. Bogdanov. They will therefore be dismissed.

Released: December 11, 2023 Signed: Justice Berg