ONTARIO COURT OF JUSTICE

DATE: 2024 07 16 COURT FILE No.: Belleville 23-13102362

BETWEEN:

HIS MAJESTY THE KING

— AND —

JEREMY BROWN

Before: Justice J.R. RICHARDSON

Heard on: April 2, 2024 Oral Decision Given re Charter – April 3, 2024 Written Reasons for Judgment released on: July 16, 2024

Counsel: Kim Beauchamp................................................................................. counsel for the Crown David Barrison................................................................................. counsel for the accused

RICHARDSON J.:

Introduction

[1] On May 9, 2021, Quinte West OPP responded to a domestic complaint on Telephone Road. After interviewing the two protagonists, Paige and the accused, the police determined that no offence had taken place. One of the officers was asked by Larry, another individual present, who was Paige’s step-father, to go outside to speak about something. Once outside, Larry gestured at the officer’s firearm and told the officer that the accused “had one”.

[2] The officer went downstairs and detained the accused, who was seated on the bed next to Paige, holding the couple’s young baby. In the course of the detention, Paige asked the accused to give her a satchel/purse, that was around the accused’s shoulder. She referred to the satchel as her “purse”. The police, who were detaining the accused refused to let him relinquish custody of the purse/satchel to Paige.

[3] The accused was then handcuffed, taken upstairs in the house and taken outside. Once outside, in order to conduct a pat-down search, the officers removed his handcuffs so as to take the satchel and set it aside on the ground. In the course of doing so, the officers observed a butt of a firearm sticking out from the satchel.

[4] The accused is charged with:

a) Assault contrary to section 266 of the Criminal Code on Paige Bailey;

b) Uttering a threat contrary to section 264.1(1)(a) of the Criminal Code on Angelia Dickinson;

c) Being in possession of a Firearm with a Tampered Serial Number contrary to section 108(1)(b) of the Criminal Code;

d) Carrying a concealed weapon contrary to section 90 of the Criminal Code;

e) Possession of a weapon dangerous to the public contrary to section 88 of the Criminal Code;

f) Careless Storage of a firearm contrary to section 86(1) of the Criminal Code;

g) Unauthorized Possession of a Firearm contrary to section 91(1) of the Criminal Code;

h) Possession of a Firearm without a registration certificate contrary to section 92(1) of the Criminal Code;

i) Possession of a Firearm with Readily Available Ammunition contrary to section 95(1) of the Criminal Code;

[5] At the outset of the proceedings, Crown counsel conceded that she could not prove counts (a), (b) and (i) and those charges were dismissed.

[6] At the outset of the proceedings, Crown counsel filed:

a) Exhibit 1 – a Certificate of Analyst, signed by Firearms Analyst Constable Kevin Rebertz, pursuant to section 117.13 of the Criminal Code, indicating that a Taurus .357 Magnum Model 689 Revolver handgun and Winchester .357 ammunition were examined and test-fired and found to be a “handgun”, a “firearm” and a “prohibited firearm” and “ammunition” as those terms are defined by the Criminal Code.

b) Exhibit 2 – an Affidavit of Maria Di Tiero-Myers, who is employed as the Senior Registration Analyst of the Canadian Firearms Registry of the Royal Canadian Mounted Police. Ms Di Tiero-Myers swears that she searched the electronic records of the Canadian Firearms Registry and determined that Mr. Brown was the holder of four valid firearms registration certificates. None of those registration certificates pertained to a Taurus .357 Magnum Model 689 revolver.

c) Exhibit 3 – A second Affidavit of Maria Di Tiero-Myers, who deposed that there is no record of a registration certificate of a Taurus handgun revolver, model 689 bearing serial number OD139827.

[7] Although he pointed out that these documents were served on him late in the day, Defence counsel did not object to these documents being filed. He also conceded continuity of the Taurus handgun, noting that the Crown was in a position to prove it.

[8] Defence brought an application for a finding that in detaining Mr. Brown and searching the satchel/purse, Mr. Brown’s rights under sections 8, 9 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms were breached and the firearm should not be admitted into evidence in the face of those breaches as admission would bring the administration of justice into disrepute under section 24(2).

[9] The Crown conceded the breach of section 10(a) but argued that the other sections had not been breached. The Crown also argued that admission of the firearm into evidence would not bring the administration of justice into disrepute.

Evidence of Constable Jeffrey Szijarto

Examination In-Chief of Constable Szijarto

[10] Constable Szijarto is a member of the Ontario Provincial Police posted to the City of Quinte West. He has six years on the job. On Sunday, May 9, 2021, he was working as a uniformed patrol constable on the day shift. He is the officer-in-charge in this investigation. This case represented his first time testifying in criminal court.

[11] At 4:00 pm on May 9, 2021, he was dispatched to a domestic violence complaint. He arrived at 4:04 pm. Upon arrival, he was aware that other officers were already on scene. He spoke with a female in the kitchen of the residence. She told him that his colleagues were downstairs. He went downstairs in the residence into a small bedroom. He observed that his colleagues were talking with a male and a female.

[12] He went back upstairs and began speaking with the same female he had spoken to on arrival. Her husband, later identified as Larry, got the officer’s attention and asked if they could speak outside privately. He told Constable Szijarto that they needed to speak about something important.

[13] He told the officer that he was worried about police and everyone in the house. Constable Szijarto said that Larry told him “He….” and then looked at Constable Szijarto’s right hip where the officer’s holstered firearm was located.

[14] The officer asked Larry if he was referring to a gun. Larry said, “Yes, he has a gun”. The officer asked Larry, “Where?”. Larry told him that “he has it on him.” The officer asked, “Right now?” Larry said, “Yes”.

[15] Constable Szijarto went back inside. He saw Constable Drazilov. He told Constable Drazilov, “We need to detain him. He has a gun.”

[16] Constable Szijarto then went downstairs to the small bedroom. There, a male and female were sitting on the bed holding a small baby. Constable Szijarto estimated that there were about six people in the room, if not more, including police.

[17] Constable Szijarto grabbed hold of Mr. Brown’s forearms and wrist.

[18] A yelling match ensued. People were screaming.

[19] Mr. Brown was holding the baby. He would later describe Mr. Brown holding the baby in a cradling motion with both arms, at about the height of his sternum. Constable Szijarto tried to instruct Mr. Brown to give the baby to the female, who was later identified as Paige.

[20] Mr. Brown did not initially comply with this request but ultimately he relinquished the baby to Paige. Throughout this period, the screaming and argument continued. Constable Szijarto also did not relinquish his control of Mr. Brown’s forearms and wrist.

[21] Mr. Brown stood up from the bed and told the officer he needed to use the washroom. Constable Szijarto said, “Not right now”.

[22] When control of the baby was relinquished to Paige, Constable Szijarto noticed that Mr. Brown was in possession of a satchel or manpurse or purse. At this point, Mr. Brown asked Paige if she would take it. She said, “Oh yeah, that’s my purse.” Constable Szijarto said, “Not right now” and handcuffed Mr. Brown to the rear, satchel/purse still hanging from his body.

[23] Once handcuffed, he took Mr. Brown upstairs and outside the residence. He then proceeded to remove Mr. Brown’s handcuffs so that he could set the satchel/purse aside while he was conducting a search of Mr. Brown.

[24] Once the cuff was removed from one arm, he removed the satchel/purse from around Mr. Brown’s head. In doing so, the officer noticed that the satchel/purse was already open.

[25] The officer then placed the satchel/purse on the ground. He noticed it was open. When he put it down, he saw the butt of a handgun. At this point, Constable Szijarto re-handcuffed Mr. Brown. Constable Drazilov took control of Mr. Brown and took him into custody.

[26] When asked about the time period during which all this transpired, Constable Szijarto stated, “It was very quick. My main concern was officer safety and the safety of everyone else. I said we need to detain him. He’s got a gun.”

[27] When asked what he said when he detained Mr. Brown, Constable Szijarto stated, “I just grabbed on him. I said I want to detain Jeremy as soon as possible for everyone’s safety.”

[28] He estimated that he detained Mr. Brown no more than three minutes before relinquishing custody of him to Constable Drazilov.

[29] When asked what the gun looked like, he stated that he saw the black/brown butt of the handgun and it looked like a revolver.

Cross-Examination of Constable Szijarto

[30] Constable Szijarto confirmed that when he arrived some officers were already present and they were in the basement.

[31] Defence counsel observed that in Constable Szijarto’s notes, he noted, Larry told him “I saw it and he has it”. The words “he has it on him” were not noted in his notebook, or in his typed report. When asked “Why didn’t you put “on him” in your notes”, Constable Szijarto said, “I don’t know.” He agreed that this was important and he was trying to quote the conversation as best as he possibly could. He agreed that he did not write his notes or fill out his typed report accurately. He disagreed that he did not include the words “on him” because they were not said.

[32] Constable Szijarto agreed that he did not tell Mr. Brown why he was detained. “I was concerned about the baby”, he stated. Constable Szijarto stated that he told Mr. Brown that he was “going to be detained”. He again noted that there was a lot of commotion and screaming. He reiterated that he was concerned about the baby. “I wanted to secure him [Mr. Brown] as soon as possible.”, he stated.

[33] Constable Szijarto agreed that he did not tell Mr. Brown why he had escorted Mr. Brown upstairs.

[34] Nor did he tell Mr. Brown when he uncuffed Mr. Brown outside in order to remove the satchel/purse.

[35] Although Constable Szijarto stated that he told Mr. Brown he was going to be detained, he could not say if he mentioned that it was because Mr. Brown was in possession of a firearm. He agreed that he did not put anything in his notes about telling Mr. Brown he was being detained because he had a firearm.

[36] Constable Szijarto agreed that as a police officer, he is required to tell an individual why he was being detained. When answering this question, he stated, “Correct, I didn’t feel it was appropriate to tell him why. There was a lot going on in that bedroom”, he said.

[37] Constable Szijarto also agreed that he did not tell Mr. Brown that he was going to be searched or that he was being detained for officer safety. “I waited to tell him until he was in a safe place and I felt comfortable.”, Constable Szijarto stated. When asked to elaborate what he meant by “I felt comfortable”, Constable Szijarto stated that he wanted Mr. Brown to be “secure”.

[38] Constable Szijarto agreed that he had a clear thought not to advise him why he was detained because he was concerned for officer safety and the safety of others. “I didn’t feel like it was the appropriate time”, he stated.

[39] He agreed that he did not give Mr. Brown his rights to counsel on detention. He stated that he knew that he was required to do so. He chalked up his failure to do so to “bad timing”.

[40] Constable Szijarto agreed that it was not his intention to search the purse/satchel. He also agreed that he did not have the grounds to do so.

[41] Despite saying that he did not have an intention to search the purse/satchel, he agreed that he would not allow the purse/satchel to be given to Paige. When asked to explain this, he stated that he wanted to detain the accused “the way he was”.

[42] When asked exactly what Paige said about the purse/satchel, Constable Szijarto stated, “She said, “Give me my purse.””

[43] He agreed that he did not allow that to happen. Defence counsel asked, “Because you wanted to search that bag?” Constable Szijarto stated, “In my experience when I arrest someone or detain someone, everything stays on their person.” Defence counsel pressed, “You had a suspicion about what might be in that bag?” Constable Szijarto stated, “Perhaps.” He then added, “I did not know where the firearm was or that he had it on him.” Defence counsel pressed again, “Your mind never went to the fact that the gun might be in the bag or on his person?” Constable Szijarto answered, “We would have to cross that road when we searched him.”

[44] Defence counsel referred Constable Szijarto to Exhibit 4B. He did not remember the flap on the bag that appears on top of the photo. He agreed that the photo of the butt of the firearm was pretty much the way it appeared when he put it on the ground, except that the firearm could be seen when it was put on the ground.

[45] Constable Szijarto admitted that he did not see the firearm when he removed the purse/satchel from around Mr. Brown’s person. He did not believe that the purse/satchel was unduly heavy. He did not initially notice that it was unzipped.

[46] Constable Szijarto stated that when he placed the purse/satchel on the ground, “with gravity, the gun presented itself.” He did not zip the bag up because he did not want to let go of Mr. Brown, who was, at this point, no longer handcuffed.

[47] When asked whether he opened the bag and searched it, Constable Szijarto stated, “Absolutely not.”

[48] When asked whether he was interested in looking in the bag, Constable Szijarto stated, “My concern was to locate the firearm.” He stated that he believed the firearm could be in the purse/satchel or on his person. When asked whether he wanted to look in the bag to confirm that there was a firearm, Constable Szijarto stated, “I wanted to search him before proceeding anywhere else.”

Questions from the Court

[49] I asked Constable Szijarto some questions for clarification about the location of the purse/satchel when he encountered Mr. Brown in the basement. He stated that it was essentially cross-body, with the strap draped over one shoulder. In Court, the officer demonstrated this with his left shoulder but indicated that he could not remember exactly what shoulder it was draped over. He stated that the baby was cradled in Mr. Brown’s arms at sternum height. He could not see the purse/satchel until after the baby was moved.

Evidence of Constable Ryan Drazilov

Constable Drazilov In-Chief

[50] Constable Drazilov is a member of the Ontario Provincial Police. He has been on the job for eight years. On the dates in question, he was working in uniform patrol performing general policing duties in the City of Quinte West. He has testified in court on ten previous occasions.

[51] At 3:59 pm, he was dispatched to a domestic dispute on Telephone Road. On arrival, he was greeted at the front door by a woman who he described as “the step-mother”. She directed him to the basement. She told him that Mr. Brown was “dangerous” but she did not elaborate. She said that he was trying to take the baby.

[52] Constable Drazilov proceeded downstairs and made his presence known. He told the parties present that police had been called because of “a domestic” and a report that “Paige was punched in the face.”

[53] He proceeded to take statements and request identification from the parties. Paige identified herself without hesitation. The accused was initially resistant to identifying himself, but after Constable Drazilov spoke with him for a bit, he came around and told him who he was. The officer also noted the presence of a baby.

[54] He described the room as a small room. Paige and Mr. Brown were sitting on the bed. He could not remember who was holding the baby.

[55] They told him that they were having an argument. They stated, however, that no assault had occurred.

[56] Constable Drazilov decided to leave them and go upstairs and speak to another officer.

[57] As he was doing so, a fellow officer approached him. Constable Drazilov noted that he had “a worried look in his eyes.” He stated that the fellow officer said, “We have to detain him immediately. Gun.”

[58] At this point, Constable Drazilov also got very concerned and he followed the other officer downstairs.

[59] Once downstairs, he observed Mr. Brown sitting on the bed holding the baby in front of him.

[60] Constable Drazilov stated that they notified Mr. Brown that they were detaining him for investigative detention and they directed Mr. Brown to give the baby to Paige.

[61] Mr. Brown did not immediately relinquish the baby. The officers told him they had concerns and directed, “Please give the baby to Paige.”

[62] Constable Drazilov then proceeded to grab Mr. Brown’s left arm and, with Constable Szijarto, handcuff Mr. Brown to the rear.

[63] When the baby was handed to Paige, Constable Drazilov noticed that Mr. Brown was “wearing a small satchel” in front of his body. Mr. Brown said, “Get the bag to Paige”.

[64] Paige reached out to grab the bag. Constable Drazilov demanded that she let go. His justification for doing so was, “I don’t know anyone who carries their significant other’s purse”.

[65] Constable Drazilov testified that he immediately became concerned that the bag contained a firearm.

[66] They took Mr. Brown upstairs to complete a pat down search. On the way, Mr. Brown advised that he needed to urinate. Constable Drazilov told him that was not going to happen. They walked upstairs and out the front door. There they started to conduct the pat down search.

[67] They had to remove Mr. Brown’s handcuffs in order to take the bag off to facilitate the pat down search. Upon the satchel being removed, Constable Drazilov noted that the top of the bag was not zipped up. He saw the butt of the firearm. Constable Drazilov then arrested Mr. Brown for possession of a firearm and carrying a concealed weapon.

[68] At 4:21 pm, Constable Drazilov read Mr. Brown his rights to counsel. He understood and asked to speak to a lawyer whom he identified as Cheryl Burnette. He also read the caution. Mr. Brown indicated that he understood. He took Mr. Brown to the Quinte West Detachment.

[69] Crown counsel asked Constable Drazilov to estimate how long Mr. Brown was investigatively detained from the time he was placed under detention to the point that he was arrested. Constable Drazilov stated that it would not have been more than two minutes.

[70] From Constable Drazilov’s point of view, as soon as the satchel was removed, the situation immediately changed from an investigative detention to an arrest.

Cross-Examination of Constable Drazilov

[71] Constable Drazilov stated that until Constable Szijarto said “gun” it was just a domestic investigation.

[72] The plan was to detain Mr. Brown for a firearms investigation.

[73] He agreed -- after referring to his notes -- that Mr. Brown was not advised why he was detained. He agreed that he normally explains the reasons for detention to the person being detained. He stated that it was not done in this case because the priority was ensuring that everyone in the house was safe. To do this, it was paramount to get “someone in possession of the firearm under control.”

[74] He agreed that even once they had control of Mr. Brown and had got him outside, he was not advised why he was being detained. He agreed that Mr. Brown was not given his rights to counsel until after he was arrested.

[75] Constable Drazilov did not recall Mr. Brown asking why he was being detained or asking what was going on or “what are you doing?”

[76] Constable Drazilov stated that he has never refused to advise someone why they were being detained. He allowed, however, that he can’t recall a situation like this one where he was dealing with a firearm. “I have never prioritized safety like this and not read it”.

[77] Constable Drazilov agreed that there were at least four other police officers on scene.

[78] He agreed that he had concern about the satchel and did not permit Mr. Brown to transfer it to Paige because he thought it might contain a firearm.

[79] Defence counsel asked, “Do you believe you had grounds to search the bag?” Constable Drazilov stated, “Probably. In hindsight, I probably could have arrested him right there. To me that was a huge indicator that the bag had something precious.”

[80] Constable Drazilov stated that at the time, he did not have grounds to arrest him which is why they moved to detention. Defence counsel suggested that the firearm alone was not sufficient grounds to arrest. Constable Drazilov replied, “It can be”.

[81] Constable Drazilov stated that Constable Szijarto did not tell him everything that Larry had told him. “It was just a quick utterance”. Constable Szijarto told him that they were moving to detain him.

[82] Constable Drazilov stated that he immediately formed the intention to search the bag and he suspected that the firearm was in the bag. “I was not plotting to search it but there was definitely an interest in the bag. Our intentions were to pat down search for weapons.” He agreed that a pat down search was a superficial search and that the police did not have the authority to start opening bags or emptying bags.

[83] Defence counsel asked, “You agree that if the pat down search was empty, you would not be allowed to search the bag?” Constable Drazilov stated, “Correct with the information that I had.” Defence counsel followed up, “You agree that you had no grounds to search the bag?” Constable Drazilov stated, “I had authority to pat down and search the bag but it was not a search incident to arrest”. He agreed that the bag was “absolutely” part of his person and he intended to pat it down.

[84] Constable Drazilov stated that everyone (referring to the other police officers present) saw the bag was open and the butt of the gun stick out. Everyone stated “firearm”. He agreed that everyone’s attention was focussed on the firearm when it was set down by Constable Szijarto.

[85] Defence counsel asked Constable Drazilov why he was watching the bag and not Mr. Brown. He stated that his interest in the bag was heightened because Paige wanted it. “It was definitely going to be pat down. That was fishy”, he stated. He stated that the police were interested in the bag “because of the situation”. Their primary intention was to get it away from Mr. Brown so that he no longer had access to it.

[86] He stated, however, that police did not search the bag. He stated that when the bag was set down, it crumpled a bit and the butt stuck out. He agreed that the firearm was then removed and proven safe.

[87] When asked if the bag was already unzipped, Constable Drazilov stated, “It seems insane but yeah, absolutely. It was very concerning to me.” He stated that Mr. Brown had no time to zip it up when they grabbed him. He agreed that he never observed anyone attempt to zip up the bag.

Evidence of Constable Justine O’Brien

Constable O’Brien In-Chief

[88] Constable O’Brien is a member of the Ontario Provincial Police assigned to the Quinte West detachment. She has been a member of the OPP for four years. On the date in question she was assigned to uniformed patrol. She testified in Court for the first time on this case.

[89] On May 9, 2021, at 3:59 pm, she responded to the report of a domestic dispute on Telephone Road in the City of Quinte West. When she arrived, she noted that several units were already on scene. She went inside the residence and met with someone she referred to as “Larry”. Larry indicated that the other officers were in the basement with the two protagonists to the domestic dispute.

[90] She went downstairs and found the bedroom where the other officers and the parties were located. She stated there was also a newborn baby present. They were having a conversation about the domestic allegations. Both the parties denied the allegations.

[91] She recalled that she was in the bedroom with Constable Harper and Constable Szijarto. She recalled that Constable Szijarto stepped out of the room but returned. When he returned he took physical control of Mr. Brown. Constable Szijarto asked Paige to take that baby who was on Mr. Brown’s lap. Initially, Paige did not want to take the child, but eventually she did.

[92] At this point, Mr. Brown was placed under detention and taken out of the residence.

[93] When Mr. Brown was detained, Constable Szijarto used both his hands and placed one hand on each arm of Mr. Brown. She recalled that there was a lot of protesting from Mr. Brown when this took place. She stated, “I could tell that there was a lot of urgency in Constable Szijarto’s approach and getting that child away”.

[94] She also recalled that at this point, Mr. Brown was adamant that he needed to go to the washroom before continuing with what was going on. Despite this, Mr. Brown was detained and taken outside. Constable O’Brien followed. Constable Drazilov assisted and Mr. Brown was handcuffed to the rear before going outside.

[95] Constable O’Brien stated that Mr. Brown had a bag strapped across him. His handcuffs were removed in order to remove the bag. At this point, she observed the butt of a firearm poking out of the bag. Mr. Brown was arrested.

[96] She estimated that Mr. Brown was detained two minutes before he was arrested. “It was very quick”, she stated.

Cross-Examination of Constable O’Brien

[97] Constable O’Brien stated that she had no communication with Mr. Brown before he was detained. She recalled that she was the third officer on scene.

[98] She stated that she was not advised that Mr. Brown was going to be detained and she could not recall whether Mr. Brown was advised.

[99] She could not specifically recall what Mr. Brown stated. She recalled that the situation was chaotic. She agreed that Mr. Brown was not given his rights to counsel.

[100] Defence counsel asked Constable O’Brien why she did not ask why Mr. Brown was being detained. She stated that at the time they were in a small room. She could tell that there was concern for the baby. She stated that she had worked with this group of officers on her shift for quite a while. She could tell by the way that Constable Szijarto was carrying himself that he was “concerned for urgency” and “there was urgency behind his actions”.

[101] Defence counsel asked Constable O’Brien if she agreed that the chaos in the room was caused by Mr. Brown not knowing the reason for his detention. She repeated that there were a lot of people in a small room, a lot of arguing and urgency to secure a firearm for everyone’s safety. She agreed that the arguing came about because “they” did not want to comply with the detention. She agreed that Mr. Brown was asking what was going on. She agreed that Constable Szijarto directed Paige to take the baby. The parties at that point became defensive.

[102] Defence counsel asked Constable O’Brien if she agreed that “the chaos in the bedroom was driven by the police” and Mr. Brown wanting to know what was going on. Constable O’Brien stated that she believed that Mr. Brown knew he had a firearm in his bag and he thought police were going to find it.

[103] She agreed that she did not hear Mr. Brown being told why he had to hand over his baby, why he was being handcuffed, why he was being taken control of. She stated that it was “not abnormal” for people to be argumentative when they are taken into police custody. She did not agree however, it would be confusing, terrifying or frightening for a person not to be told why they were being taken into custody.

[104] She agreed that it was not normal for someone not to be told why they were being detained but this was a “dynamic situation”, and “more dynamic than a typical domestic occurrence.”

[105] Although Constable O’Brien recalled seeing the bag, she did not recall seeing it on his person. It did not seem significant to her until she saw it being put on the ground.

[106] She stated that the bag was open and the gun appeared when it was set on the ground. She agreed that it “sat straight up like toast out of a toaster”. She agreed that the bag was totally unzipped. She denied that the other officers unzipped it to search for a firearm.

[107] She did not agree that she was focussed solely on the bag. “I was watching all of it”, she said. “I was right in front of him. It was easy to see both [the bag and Mr. Brown] at the same time.

Evidence of Constable Evan Clark

Examination of Constable Clark In-Chief

[108] Constable Clark is a member of the Ontario Provincial Police assigned to the Quinte West detachment area. On May 9, 2021, he was assigned to general law enforcement duties. He was dressed in full uniform. He has previously testified in criminal court three times.

[109] He responded to a radio call of a domestic incident on Telephone Road. He arrived at 4:13 pm. Other officers were already on scene when he arrived.

[110] He recalls hearing the word “gun” shortly after he arrived.

[111] He received a blue single strap side bag. Inside it was a revolver-style handgun. He ensured it was not loaded. He put the bag and its contents in his police car.

[112] He drove to the Quinte West detachment. Once there, he helped process Mr. Brown.

[113] At 5:35 pm, he took photos and reviewed the contents of the bag. He identified all of the photos in Exhibit 4. He noted that there was a cheque and a tax form in the bag. There were documents in the name of Jeremy Brown. In the main pocket, he located a black wallet. It contained a firearms licence and various forms of identification for Jeremy Brown. He identified the gun as a Taurus .357 Magnum silver revolver style firearm.

Cross-Examination of Constable Clark

[114] In cross-examination, Constable Clark indicated that the bag was open. He did not change placement of the zipper and it was as he photographed in Exhibit 4. With respect to photograph 4B, he stated that he used his hand to manipulate the bag in order to get a clear shot of the contents of it. As he was doing so, he was holding it upright.

[115] He did not check the bag to see if it would stand on its own and sit upright. He agreed that when the bag was in this position, it did not collapse on itself.

Defence Submissions

[116] Defence did not call evidence on the Charter application.

[117] Defence argued that sections 10(a) and 10(b) had been breached. He stated that it was clear, on all of the officers’ evidence, that Mr. Brown was detained and he was not advised why he was detained. Even when asked why he was detained, the Police did not tell Mr. Brown why.

[118] Defence counsel allowed that the time between the detention and arrest (and advising Mr. Brown of his 10(b) rights) was not that long.

[119] Defence counsel argued, with respect to Constable Szijarto’s evidence, that this officer took the lead with respect to the detention of Mr. Brown. His explanation for not advising Mr. Brown of the reasons of his detention was lacking. He made vague reference to “safety concerns” and this being a dynamic situation. He argued that there could have been a brief pause in order to advise Mr. Brown of his rights and the reason for detention.

[120] Defence counsel conceded that the police did have grounds to investigatively detain Mr. Brown.

[121] Defence counsel expressed concern with the fact that there was a “slight change” in Constable Szijarto’s evidence with respect to what he was told by Larry. He directed the Court to the officer’s evidence that Larry stated that Mr. Brown had a gun “on him” as opposed to his notes and report, where he noted that Larry stated that Mr. Brown simply “had a gun”. This was not a slight change. This, submitted defence counsel, was a significant change in the officer’s evidence.

[122] He also pointed out that in Constable Szijarto’s notes and report, he referred to the bag as a “purse”, whereas in his evidence he described it as a “man-purse” or “satchel”.

[123] He noted that the police officers described the situation as chaos and used that as a reason to avoid giving Mr. Brown his rights under sections 10(a) and 10(b). He argued that this “chaos” was caused by the police who failed to tell him why he was detained, who directed him to turn the baby over to Paige without telling him why, and who took physical control of him without telling him why.

[124] With respect to section 8, Defence counsel submitted that there were significant problems with the credibility of all of the officers with respect to noticing that the butt of the gun had “just popped out” when the bag was put on the ground. He expressed astonishment that despite the fact that this was a volatile situation where the police were focussed on controlling Mr. Brown, Constable Szijarto would slowly and carefully set the bag down in such a way that the firearm just popped out, and all officers were focussed on the bag and saw this happen. He submitted that this evidence was fanciful and a lie. He also pointed out that on the evidence of Constable Clark, the bag did not collapse on itself when it was stood on end.

[125] He noted that in the photographs the butt of the gun was partially covered by the zipper which would seem to impede its ability to pop up as the police officers described.

[126] With respect to the police authority to search the bag, he pointed out that Constable Szijarto did not believe he had grounds to search the bag. Constable Drazilov believed he had grounds to “pat down” the bag as part of investigative detention. This, he argued is incorrect. In order to pat down the bag, there has to be an articulable safety concern.

[127] With respect to the test for exclusion, he submitted that this was a significant breach and the Police were not forthright or honest. He allowed that the third branch of the Grant test favoured inclusion of the evidence.

Submissions of the Crown

[128] The Crown agreed that in not immediately telling Mr. Brown why he was detained, the Police violated Mr. Brown’s 10(a) rights.

[129] With respect to section 10(b), the Crown argued that the circumstances of this case were “very exigent”. There was chaos. There were significant safety concerns for the public as well as the officers. There was a baby present. She maintained that it made sense that against this backdrop, the officer would focus on the safety concerns to the detriment of the right to counsel.

[130] The Crown submitted that the period of detention was very short – only a few minutes passed between Mr. Brown’s detention and his arrest.

[131] With respect to section 8, the Crown submitted that all of the officers were clear that the firearm was in “plain view” when the bag was set down. There was, therefore, no breach.

[132] With respect to Constable Szijarto’s evidence about what Larry said – the “on him” debate – the Crown maintained that this did not matter because Constable Szijarto’s exigent safety concerns would be the same whether Larry said that Mr. Brown had the gun “on him” or simply said that he had a gun. Constable Szijarto was focussed on doing a pat down search and he would then focus on the bag.

[133] The Crown submitted that it was “ridiculous” to suggest that Constables Szijarto, Drazilov and O’Brien all lied. Instead, Crown counsel argued that their evidence was consistent. Their evidence that they all saw the gun when the bag was set down made sense given that everything happened within a small vicinity.

[134] With respect to the test for exclusion, the Crown argued that the breach of Mr. Brown’s 10(a) rights was not serious and had a minor impact. She argued that this was an inadvertent, technical and minor breach. The third branch favoured inclusion. Not admitting the evidence would do damage to the truth-seeking function of the Court and harm the repute of the justice system in the community.

Analysis

Section 10(b)

[135] Section 10(b) of the Charter states:

“Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

[136] On all the evidence before me, Mr. Brown was detained for investigative detention for about three minutes before the police observed the firearm in the open purse/satchel. He was then arrested for possession of the firearm. Right after he was arrested, he was read his rights to counsel and cautioned. No incriminating evidence was elicited from Mr. Brown between reading of his rights and the implementation of the rights to counsel once they arrived at the Quinte West OPP detachment.

[137] The words “without delay” mean “immediately”: R. v. Suberu, 2009 SCC 33 at paragraphs 38; 42; R. v. Bartle. The law recognizes, however, that some delay in informing the accused of his or her rights to counsel may be necessary in cases involving a threat to police safety or public safety, or to preserve evidence: R. v. Strachan. See also R. v. Rover, 2018 ONCA 745 at paragraph 26.

[138] In R. v. Cameron, 2024 ONCA 231, the Court of Appeal concluded that an 11 minute delay in implementing rights to counsel did not constitute a breach of section 10(b) in a case where the police were investigating an armed robbery involving firearms in a rural area at night, where other suspects were potentially at large and in their midst.

[139] Cases dealing with section 10(a) rights are instructive. Here again, R. v. Cameron, supra, is instructive. In this case the trial judge found that a one or two minute delay in informing the accused of his detention and the reasons therefor was appropriate in the potentially dangerous scenario posed by the facts of that case. The Court of Appeal, citing, R. v. Gonzales, 2017 ONCA 543, agreed with the trial judge’s assessment.

[140] Gonzales helpfully discusses the interplay between section 10(a) and section 10(b). There the police delayed informing the accused of the reasons for his detention for seven minutes because the investigating officer was out-numbered (2:1) and he was not wearing a bullet-proof vest. Justice Watt noted at paragraphs 120 to 128:

A few brief points about the operation of s. 10(a) inform my determination of this ground of appeal.

First, the substance of the right.

Section 10(a) includes both temporal and substantive aspects. The beneficiaries are those who are arrested or detained. The phrase "on arrest or detention" serves not only to define the class of beneficiaries -- those arrested or detained -- but also to assist, together with the adverb "promptly", in marking out when the right accrues. The provision describes the substance of the information to be conveyed -- "the reasons" for the arrest or detention. At a minimum, s. 10(a) requires that individuals who are arrested or detained for investigative purposes be advised, in clear and simple language, of the reasons for their detention: Mann, at para. 21.

A functional equivalent of the term "promptly" in s. 10(a) is the phrase "without delay", which appears in s. 10(b). There, the phrase is synonymous with "immediately", but does permit delay on the basis of concerns for officer or public safety: R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, at paras. 2 and 41.

The right to prompt advice of the reasons for detention is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it. But there is another aspect of the right guaranteed by s. 10(a). And that is its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. Meaningful exercise of the right to counsel can only occur when a detainee knows the extent of his or her [page 249] jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, at pp. 886-87 S.C.R.

To determine whether a breach of s. 10(a) has occurred, substance controls, not form. It is the substance of what an accused can reasonably be supposed to have understood, not the formalism of the precise words used that must govern. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or in the alternative, to undermine the right to counsel under s. 10(b): Evans, at p. 888 S.C.R.

The principles applied

As I will briefly explain, I would not accede to this ground of appeal.

For all practical purposes, the original purpose for the traffic stop -- pursuit of the residential break-in investigation -- disappeared when the odour of marijuana drifted out of the driver's window, the several sealed large cartons hoved into view; and the responses and mannerisms of the appellant bespoke "up to no good".

Ideally, Det. Ward should have provided the s. 10(a) disclosure without delay when this constellation of circumstances came together. But, he was alone with two occupants of a motor vehicle that was fully operable on a residential street. Armed, but not fully protected. And concerned about his safety. A seven-minute delay before arrest and the full informational package does not amount to an infringement of s. 10(a) in these circumstances.

[141] In the case before me, for reasons I do not understand, the Crown conceded a section 10(a) breach. If this had been argued before me, I would not have found one.

[142] With respect to section 10(b), I find that there was no breach.

[143] In an ideal world, the police should have informed Mr. Brown of his reasons for detention and informed him of his rights to counsel when they detained him in the downstairs bedroom.

[144] I find, however, that they acted reasonably for not doing so for the following reasons:

a) Constable Szijarto received information from Larry that Mr. Brown possessed a firearm.

b) When Constable Szijarto received this information, he and Larry were outside the residence. Mr. Brown, his baby, Paige and two or three other police officers were downstairs. The officers were not aware that Mr. Brown was in possession of a firearm.

c) When Constable Szijarto received this information, the location of the firearm was unknown.

d) When Constable Szijarto went downstairs in order to detain Mr. Brown, the location of the firearm was still unknown.

e) When Constable Szijarto arrived downstairs, Mr. Brown was seated on the bed. He was holding his baby. Paige was next to him. Other police officers, including Constable O’Brien, were present, but they were oblivious to the potential presence of a firearm. The threat to public safety (Paige and the baby, and even the other occupants of the house and those nearby) was very high. The threat to officer safety was also very high.

f) Constable Szijarto decided that it was necessary to remove Mr. Brown from the area in order to search him to obtain the firearm. In light of my findings with respect to the threat to public and officer safety, he cannot be faulted for doing so.

g) In light of my findings with respect to the threat to public and officer safety, he also cannot be faulted for not making the confrontation with Mr. Brown in the small downstairs bedroom worse by informing him of his reasons for detention or informing him of his rights to counsel.

Section 8

[145] Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

[146] The issue in this case is whether the search violated section 8 because it involved a bag that the accused was carrying. Defence counsel maintains that the police purposely searched the purse/satchel incidental to the investigative detention and in doing so, they contravened the accused’s rights.

[147] The Crown argues that the police did not purposely search the purse/satchel, but rather, it was within “plain view” because the purse/satchel was open when they removed it from Mr. Brown and cast it aside to facilitate the pat down search of his person.

[148] In R. v. Mann, 2004 SCC 52 at paragraph 45, the majority of the Supreme Court of Canada discussed the scope of the search that is permitted where an accused is investigatively detained as limited to “a protective pat-down search”. The majority was careful to point out that the search is not as broad as a search incidental to arrest.

[149] In R. v. Plummer, 2011 ONCA 350, the Court of Appeal found that there was no breach of section 8 in a case where the police investigated the occupants of a vehicle parked outside of a house known to be involved in the trafficking of drugs. The police noted that one of the passengers slouched down as if to conceal drugs. The passenger was wearing a bullet-proof vest. One officer recalled receiving “an officer safety alert” that the passenger might be in possession of a handgun. The police searched a bag belonging to the accused’s girlfriend which they found under the passenger seat and found a handgun. Justice Sharpe, Justice Laskin concurring found at paragraphs 75 to 79:

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

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

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

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

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

[150] Justice MacPherson concurred in this result and stated at paragraph 65:

….once Constable Ratych discovered the bulletproof vest, he should be required to reject a further search for the gun in the immediate vicinity, including the passenger side area of the car in which the appellant had been seated moments before. To expect the police officer to abandon his search, release the appellant and, in effect, turn his back on the appellant as he walks back to the police cruiser is, in my view, both unrealistic and unreasonable: see Clayton at paras. 43-44 and Michigan v. Long, at pp. 1049-50.

[151] In R. v. Lee, 2017 ONCA 654, Toronto Police responded to a 911 call where the caller indicated they saw an Asian man wearing a brown hat in possession of a firearm. The caller indicated that they saw the trunk of the man’s vehicle open and there was a large bag in it. The caller also stated that they thought that the man was dealing drugs. On arrival, the police identified the man, ran up to him and advised him that he was under investigative detention for possession of a firearm. They did not read him his rights to counsel. They patted him down but did not locate any weapons. The trunk of the vehicle was closed. The police opened the trunk, located the bag and discovered 23 kilograms of cocaine. No gun was ever found. The accused was arrested and read his rights. The investigative detention lasted two or three minutes.

[152] The trial judge found no breach of either section 8 or 10(b), admitted the evidence and convicted. On appeal, Justice Weiler relied on Plummer and stated at paragraphs 64 and 65:

In summary, the appellant has not shown any error in the trial judge’s findings and her conclusion accords with the existing jurisprudence. The officers’ conduct meets the justifiability criteria. The officers acted in the course of their duty in responding to the 911 call, the extent to which there was an interference with the appellant’s liberty – both in time and in scope – was limited and necessary in order to dispel the possible threat of serious injury or death to others. The importance of preventing serious injury or death to members of the public in not allowing the appellant to drive away until that threat was dispelled clearly outweighs the additional interference with the appellant’s liberty and privacy interests.

Importantly, this decision must not be read as condoning an unlimited search of a car for police or public safety purposes whenever there is an investigative detention. The jurisprudence makes it clear that it is the totality of the circumstances that must be considered in every case. It is a very factually-driven analysis.

[153] Two 2023 cases from our Court of Appeal have considered the scope of search on investigative detention. In R. v. Buakasa, 2023 ONCA 383, the accused was stopped for speeding on Highway 401. The officer called another police service and received information that the accused was believed to be involved in two gang-related shootings and was in all likelihood carrying a firearm. After receiving this information, the officer directed all of the occupants to leave the car. He then looked in the car and noticed a loose panel in the passenger footwell. When he touched the panel it fell away revealing a loaded handgun. The trial judge found that the officers were justified in searching the car as part of a safety search as authorized by Mann. The Court of Appeal agreed.

[154] In R. v. Griffith, 2023 ONCA 822, the police responded to a 911 call that there was a man brandishing a firearm in a plaza. Upon arrival, police located the man that the caller described. The man was talking to Mr. Griffith. Mr. Griffith was wearing a satchel. The man the caller reported was arrested at gunpoint by police. Mr. Griffith was advised that he was under investigative detention. Both men were patted down and no firearms were found. Police then proceeded to pat down the satchel. They felt something hard in it. They opened it and found a jar of cocaine (the hard object) and some marihuana. No firearms were ever found. The trial judge found that the search was lawfully incidental to the investigative detention and therefore there was no breach of section 8. On appeal, the Court of Appeal stated at paragraphs 23 through 26:

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

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

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

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

[155] In my view, in the case before me, had the police purposely decided to go about searching the purse/satchel for a firearm, they would have been lawfully entitled to do so for the following reasons:

a) The police received information that Mr. Brown was in possession of a firearm.

b) When Constable Szijarto went downstairs to detain Mr. Brown, he did not see a firearm and Mr. Brown was holding a baby.

c) When the baby was relinquished, it was clear that Mr. Brown was wearing a cross-body purse/satchel. The purse/satchel was not visible while he was holding the baby.

d) After relinquishing the baby to Paige, Mr. Brown tried to pass the purse/satchel to Paige, who said it was her purse. As one officer indicated, “Who walks around holding their girlfriend’s purse?” The police refused to let him pass the purse/satchel to Paige.

e) Mr. Brown then indicated that he needed to use the washroom. The police told him that he could not.

[156] Constable Szijarto was careful. His first approach was to conduct a pat-down search of Mr. Brown. If that was unsuccessful, then he would determine whether it was necessary to search the purse/satchel.

[157] Constable Drazilov was more direct. He intended to search the purse/satchel from the get-go.

[158] I cannot fault either officer.

[159] In this case, the officers indicated that their search incident to investigative detention was, essentially, interrupted by the fact that when they removed the purse/satchel from Mr. Brown in order to facilitate the pat down search, the butt of the handgun was easily visible in the open bag as they set it on the ground. Constable O’Brien, who was observing what was transpiring from a few meters away, also saw it.

[160] Thus, although I find that following Plummer, Lee, Buakasa and Griffith, the police were subjectively and objectively entitled to search the purse/satchel incident to investigative detention, the fact is that they did not do so. They did not get to that point. Rather, they observed the firearm in plain view when they handled the purse/satchel to put it out of reach while they conducted the pat down search of Mr. Brown’s person.

[161] I reject the defence argument that the officers lied and came up with the “plain view” argument to justify a search that otherwise would have run afoul of section 8.

[162] For these reasons, I also find there is no breach of section 8.

Section 24(2)

[163] As I have set out, in this case, the Crown conceded breach of section 10(a). Left to my own devices, I would not have found a breach of that section. I therefore consider the section 24(2) of the Charter, which states:

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.

[164] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada stated that in considering this issue, I must look at it objectively, from the point of view of a reasonable person, who was informed of the relevant circumstances and was aware of the values underlying the Charter.

[165] Grant also mandated a three-pronged approach to section 24(2):

a) The seriousness of the Charter-infringing state conduct;

b) The impact of the breach on the Charter-protected interests of the accused; and

c) Society’s interest in the adjudication of the case on its merits.

The Seriousness of the Charter-infringing state conduct

[166] Section 10(a) mandates the requirement that police immediately inform a person of the reasons for arrest or detention. It is a serious requirement that is not to be trampled upon without good reason. Ordinarily, not informing someone promptly of the reasons for their arrest or detention would be serious conduct.

[167] In this case, for reasons I have already set out, the breach of 10(a) in this case is attenuated by the following:

a) The police had good reason for not immediately informing the accused of the need to detain him. They believed that he had access to a firearm.

b) There were two civilians in the room, including a small baby. Other civilians were present in the home or in its immediate vicinity, including the mother and step-father of Paige.

c) There were at least two other police officers in the room.

d) The room was a small room.

e) By virtue of these factors, the police needed to control the accused and determine if the firearm was available to him. The potential risk to the public and to the officers was very high.

f) The period of detention before arrest was very brief, no more than two or three minutes.

All of this favours admission of the evidence.

The Impact of the Breach on the Charter-Protected Interests of the Accused

[168] Not being aware of the reasons for your arrest or detention can have a serious impact on an accused person, their perception of fairness, and what they may perceive as an arbitrary act by an agent of the state.

[169] In this case however, the period of the breach was short. No evidence was elicited from him as a result of the breach.

[170] This favours admission of the evidence.

Society’s Interest in the Adjudication of the Case on Its Merits

[171] The evidence seized is reliable evidence. Once I orally advised counsel that I intended to dismiss the Charter application, I was urged to make findings of guilt on the charges without further evidence or submissions.

[172] In essence, even though there was some evidence before me that the purse/satchel was Paige’s and not Mr. Brown’s, defence readily conceded that the fact that his wallet and other documentation were found in the purse/satchel would have negated any concerns I might have otherwise had with the issue of possession.

[173] Essentially, if the evidence is excluded, the prosecution’s case is gutted.

[174] The charges are serious charges involving possession of a loaded and operable handgun.

[175] The breach was not wilful or flagrant. The police did not display a casual attitude toward Mr. Brown’s rights. There is no lack of good faith.

[176] The third factor, therefore, also favours inclusion of the evidence.

Conclusion

[177] For all of these reasons, the Charter application is dismissed.

Released: July 16, 2024 Signed: Justice J.R. Richardson