ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 103/14 DATE: 20160510
B E T W E E N:
HER MAJESTY THE QUEEN - and - VELLE CHANMANY
COUNSEL: Nick Devlin, for the Crown, respondent Candice Suter, for the accused, appellant
HEARD: December 18, 2015
BEFORE: K.L. Campbell J.
REASONS FOR JUDGMENT
[Summary Conviction Appeal]
A. Overview
[1] The appellant, Velle Chanmany, was tried by the Honourable Mr. Justice B. Cavion of the Ontario Court of Justice on a charge of breaching a condition of his recognizance. More specifically, it was alleged that the appellant, on or about November 1, 2013, in the city of Toronto, being at large on a recognizance failed, without lawful excuse, to comply with the condition that he refrain from possession of any cell phone, blackberry, iPhone, pager or other mobile communication device. At the conclusion of the trial, the appellant was found guilty and sentenced to a fine of $250.
[2] The evidence clearly established that on November 1, 2013, the appellant was governed by a recognizance that prohibited him from the possession of any cell phone, blackberry, iPhone, pager or other mobile communication device. The evidence admitted by the trial judge also clearly established that on November 1, 2013 the appellant, while a passenger in a motor vehicle, was in possession of two cell phones. At trial, the contentious issue between the parties was the admissibility of the evidence obtained by the police from the appellant of his identity. The appellant contended that this evidence was obtained in violation of ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms, and should be excluded under s. 24(2) of the Charter. The trial judge found that there had been a violation of s. 8 of the Charter, but concluded that the evidence was nevertheless admissible under s. 24(2) of the Charter.
[3] The appellant now appeals against his conviction. Essentially, the appellant renews the position he advanced at trial, and contends that the trial judge erred in failing to find that the police conduct in their investigation in this case violated his constitutional rights guaranteed by ss. 9 and 10(b) of the Charter – in addition to his rights under s. 8 of the Charter. The appellant also argued that the trial judge erred in failing to exclude the evidence that the police obtained in the result under s. 24(2) of the Charter. The Crown, on the other hand, argues that none of the appellant’s rights under ss. 8, 9 or 10(b) of the Charter were violated by the police actions in the present case and, in any event, the trial judge correctly held that the evidence was admissible under s. 24(2) of the Charter.
[4] For the reasons that follow, I have concluded that there was no violation of the appellant’s rights under ss. 8 or 9 of the Charter, but that there was a violation of his right to counsel under s. 10(b) of the Charter. Moreover, I have concluded that, in the circumstances of this case, the evidence obtained by the police in the result ought to have been excluded under s. 24(2) of the Charter. Accordingly, the appeal must be allowed, the conviction of the appellant set aside, and an acquittal entered.
B. The Factual Background
[5] At approximately 4:30 p.m. on November 1, 2013, the appellant was a back-seat passenger of a motor vehicle that was illegally parked in a dedicated bicycle lane in a no-stopping zone in the general vicinity of Bathurst and College Streets in Toronto. When three police officers, on bicycle patrol, approached the vehicle to investigate a complaint from a cyclist, one of the officers spoke to the driver of the vehicle. While they were talking, a second police officer, Cst. Haroon, saw the appellant engaging in some suspicious conduct. At the time of his observations, Cst. Haroon was standing on the passenger side of the vehicle just behind the appellant, by the rear passenger quarter panel of the vehicle. The appellant was seated on the passenger side of the vehicle in the back seat.
[6] Cst. Haroon testified that he saw the appellant slowly and surreptitiously pass a cell phone to the front seat passenger. The appellant conducted this “uncomfortable” maneuver on the right side of the front passenger seat, in the “tight space” between the seat and the passenger side of the vehicle, as if he were trying to conceal it. The front seat passenger reached behind himself to receive the cell phone without actually turning around. Cst. Haroon then witnessed the appellant “sneakily” open his nearby satchel or bag, retrieve another cell phone, throw that cell phone on the floor in front of him, and then kick the cell phone under the front seat with his feet. The appellant then reached into his pants pocket and took out a “huge wad” of cash, most of it together and folded in half, but together with some other smaller folded bills, and passed the “entire stack” of money to the same front seat passenger. These activities by the appellant took place, according to Cst. Haroon, “pretty much one after the other” within “moments.”
[7] Cst. Haroon testified that this conduct by the appellant seemed “suspicious” as it appeared that he was trying to hide the cell phones. Further, in his past experience as an officer dealing with people in this way, Cst. Haroon knew that people sometimes have court-imposed conditions prohibiting them from having cell phones, and the officer thought that it was “very possible” that the appellant was “discarding illegal things” in his possession.
[8] In the result, Cst. Haroon required the appellant and the front seat passenger to exit the vehicle so that he could further investigate their behavior. Once they were out of the vehicle, they were advised that they were under investigation in relation to their “suspicious behavior” in the vehicle in relation to the cell phones and money. The appellant was taken to the back of the vehicle, where he was dealt with by another officer, Cst. Pilleggi. The officer performed a pat-down frisk search on the appellant for police safety purposes, but no weapons were discovered. The appellant was then asked to identify himself.
[9] When Cst. Pilleggi asked for any identification that he had on his person, the appellant produced his Ontario driver’s license, which displayed his name, a photograph of his face, and his date of birth. With this information, Cst. Pilleggi quickly discovered, through radio access to the Canadian Police Information Centre (CPIC) database system, that the appellant was prohibited, by the terms of a current recognizance, from the possession of any cell phones. The appellant was then arrested for breaching his recognizance.
[10] Shortly thereafter, Cst. Haroon advised the appellant of his right to counsel pursuant to s. 10(b) of the Charter, and cautioned about making any statements to the police. Later, after the appellant had been transported to the 14 Division police station, he was permitted to consult privately with counsel of his choice. The driver and the other passenger of the vehicle were released at the roadside.
C. The Trial Proceedings
[11] At trial, the appellant brought an application seeking to have the proceedings stayed or the evidence excluded under s. 24 of the Charter on the basis that he had been arbitrarily detained and unreasonably searched in violation of ss. 8 and 9 of the Charter, and was denied his right to counsel under s. 10(b) of the Charter.
[12] In his ruling on the Charter application, the trial judge concluded that the investigating officer was “legitimately suspicious” when the “two cell phones were disposed of and the money passed up front” and “any reasonable person would approve” of the officers response in asking the passengers to “step out” of the vehicle to “investigate what was going on.” The trial judge also concluded that the appellant was, at that time, detained by the police, in that he was not “free to amble off.” Relying upon the decision of the Court of Appeal for Ontario in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, the trial judge concluded that while this detention of the appellant was “improper” it was “not arbitrary.” The trial judge explained that it was “improper” in that, as in Harris, the appellant was asked to identify himself and, in turn, his identification was then used by the police to “the search for information from CPIC” regarding the appellant. The trial judge concluded that this was done in violation of s. 8 of the Charter. With respect to the appellant’s right to counsel, the trial judge concluded, again relying upon Harris, that “the brevity of the detention made it unnecessary to activate” the appellant’s rights under s. 10(b) of the Charter.
[13] Turning to s. 24(2) of the Charter, the trial judge accurately summarized the governing three-pronged test outlined by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The trial judge then concluded that the police officer acted “correctly” in the face of the situation that confronted him, and was appropriately “suspicious” and detained the appellant momentarily for the CPIC investigation. Further, the breach of the Charter was a “minor” one which did not bring the administration of justice into disrepute. The trial judge noted that none of the police officers lied to the court, there was good reason for the police to speak to the driver of the vehicle, and the dynamics of the case showed “politeness and proper behavior” on the part of Cst. Haroon.
[14] Finally, the trial judge observed that the Supreme Court of Canada has said that “only in the clearest of cases” should “the court should intervene and stop the prosecution” when a breach of the Charter has been found.
[15] Subsequently, in considering the merits of the case, the trial judge concluded that the appellant had been in possession of the cell phones in violation of the terms of his recognizance. Indeed, the trial judge concluded that he had “no doubt at all” that the appellant had “full knowledge” that he handled a cell phone, and that his controlling and handling of the cell phone, while brief, constituted possession. In the result, the appellant was found guilty.
D. Analysis
1. Section 9 of the Charter – No Arbitrary Detention
[16] There is no issue between that parties that the appellant was “detained” when he was told to get out of the parked vehicle, and subjected to a pat-down “frisk” search for potential weapons. Indeed, at that point the appellant was told that he was under investigation in relation to his “suspicious behavior” in the vehicle in relation to the cell phones and money. Cst. Haroon agreed that, at that point, the appellant was not free to leave and, had he tried to leave, he would have been prevented from leaving. Cst. Pilleggi testified that he actually told the appellant that he was being “detained” when he got out of the car and was searched.
[17] The appellant argued that this was an arbitrary detention in violation of s. 9 of the Charter. I disagree. Based upon the evidentiary record in this case, the police had reasonable grounds to suspect that an offence had been committed by the appellant. The appellant was observed surreptitiously ridding himself of two cell phones and a large quantity of cash during the course of a brief, roadside police investigation of the driver of the motor vehicle in which the appellant was a passenger. Based upon the totality of the circumstances, it was objectively reasonable for the police to suspect that the appellant was engaged in some type of criminal activity (e.g. unlawful possession of cell phones in contravention of some court order), which justified further investigation.
[18] Accordingly, the police were lawfully entitled to conduct an investigative detention of the appellant pursuant to the Supreme Court of Canada decision in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 16, 20, 27, 30, 33, 45. See also R. v. Williams, 2013 ONCA 772, 313 O.A.C. 195, at paras. 22-25. As their investigative conduct in detaining the appellant was lawful, not arbitrary, and as it was properly based upon articulable cause or reasonable suspicion, the trial judge correctly concluded that there was no violation of s. 9 of the Charter in the circumstances of this case.
2. Section 8 of the Charter – No Unreasonable Search
a. Introduction
[19] In his ruling on this issue, the trial judge concluded, in effect, that the lawful detention of the appellant became “improper” and in violation of s. 8 of the Charter when he was required to identify himself to the police. This identification subsequently permitted the police to quickly access considerable personal information about him contained in the CPIC computer database, and allowed the police to discover the terms of his recognizance and learn that he was in violation of the term prohibiting him from the possession of any cell phone. The trial judge held that this result flowed from the application of the decision of the Court of Appeal for Ontario in R. v. Harris. I agree with the trial judge that, based upon the decision in Harris, the police request that the appellant identify himself for their investigative purposes, while he was being detained by the police, was a “search” or a “seizure” within the meaning of s. 8 of the Charter. However, in my view, it was not an unreasonable search or seizure in violation of s. 8 of the Charter. Rather, the police request that the appellant identify himself was a reasonable warrantless search or seizure as it was based upon the same “reasonable grounds” that justified the appellant’s detention in the first place. See R. v. Mann, at paras. 5, 45, 47.
b. The Decision in R. v. Harris (Ont.C.A.)
[20] In Harris, the accused was a passenger in a motor vehicle driven by another individual while subject to a roadside police investigation into a highway traffic matter. The investigating police officer, Cst. Lipkus, asked all of the occupants of the vehicle, including Harris, to identify themselves and they did. The officer then checked these names through the CPIC database, whereupon he discovered that Harris was at large on bail, and currently in violation of a term requiring him to observe a curfew. The officer then arrested Harris and, during a personal search conducted incident to that arrest, discovered a quantity of crack cocaine in his waistband. The accused was charged with possession of cocaine for the purposes of trafficking. At trial, the accused sought the exclusion of this evidence. The trial judge found that the accused had been arbitrarily detained and subjected to an unconstitutional search when he asked him to identify himself while he was detained in the motor vehicle. She also found that Harris had been denied his right to counsel. In the result, the trial judge excluded the evidence and the accused was acquitted.
[21] On appeal, Doherty J.A., delivering the judgment of the majority of the court, held that the accused had not been arbitrarily detained, nor had he been denied the right to counsel, and the trial judge had erred in excluding the evidence. However, while ordering a new trial in the case, Doherty J.A. concluded that the police request that the accused identify himself while detained by the police was an “unreasonable seizure” in violation of s. 8 of the Charter. More particularly, the following passages from the Harris judgment, at paras. 38-43, explain why the police request for identification engaged the accused’s rights under s. 8 of the Charter, and amounted to a “seizure” of his identity:
The Crown … argues that a person has no or, at its highest, a minimal expectation of privacy in his or her name. The Crown submits that merely providing one’s name reveals little, if anything, of any personal nature concerning that person. In some contexts, there will be considerable merit to this submission. However, in the present case, Harris was under police detention. Lipkus was not asking Harris to identify himself out of some sense of curiosity or so he could greet Harris by name should they meet again. Lipkus had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way. That information included whether Harris had a criminal record, was subject to any outstanding court orders and, if so, the terms of those orders. Although Crown counsel submits that the officer’s request for identification was “not directed at obtaining incriminating information in relation to unrelated criminal conduct”, I think that was precisely one of the reasons Lipkus asked Harris for identification. Why else would Lipkus use the identification to determine whether Harris was in breach of any outstanding court orders?
Given the information readily available to Lipkus through CPIC, I see no functional difference between Lipkus asking Harris to identify himself and then checking that identification through CPIC, and Lipkus asking Harris a series of questions about his criminal past, his bail status, and the terms of any bail that Harris might be under. Lipkus’s immediate access to information available on CPIC made Lipkus’s request for identification the equivalent of Lipkus asking Harris whether he was breaching any court orders at that moment.
A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police … In the circumstances, Harris’s identification in response to the officer’s question constitutes a seizure and attracts s. 8 protection.
If, as in this case, a request for identification is made in circumstances of detention in which the detained individual reasonably feels compelled to answer the request for identification, then the question assumes a coercive quality in the nature of a demand, which suggests a state seizure of the response …
In the present case, when Lipkus asked for identification, he intended to use that identification to conduct a CPIC search, one of the purposes of which was to determine whether the appellant was under any court orders and in breach of any court orders. I think the officer’s intention to use Harris’s identification to make the various inquiries available through CPIC is akin to an intention to conduct a further more intrusive search after receiving the answer to the request for identification. Grant offers support for my conclusion that the request for identification in the circumstances of this case amounted to a search or seizure for the purposes of s. 8.
[emphasis added – citations omitted]
[22] It is important to appreciate the critical importance of detention in the assessment of whether or not an individual’s identity has been seized by the police. See R. v. Harris, at paras. 34, 37-38, 40, 42. It is only when an individual is detained that a police request for identification will reasonably make the detainee feel compelled to answer the request. As Doherty J.A. specifically noted in Harris, at para. 42, it is in the context of detention that a police request for identification assumes a “coercive quality in the nature of a demand, which suggests a state seizure of the response.” There are, of course, many authorities that hold that simply asking an individual to identify themselves does not itself amount to a detention, and does not itself constitute a violation of s. 8 of the Charter. See, for example, R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont.C.A.), at pp. 271, 274; R. v. Hall (1995), 22 O.R. (3d) 289 (C.A.), at 295; R. v. H.(C.R.), 2003 MBCA 38, 173 Man.R. (2d) 113, at paras. 14-64; R. v. Mann, at para. 19; R. v. Grant (2006), 209 C.C.C. (3d) 250 (Ont.C.A.), at paras. 11-15, 29; affirmed, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Bradley, 2008 NSCA 57, 266 N.S.R. (2d) 126, at paras. 15-20; R. v. Yousofi, 2011 ONSC 2298, 233 C.R.R. (2d) 129; R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, at paras. 118-130.
[23] It is also important to appreciate that, in Harris, the question of whether the police request for identification was a “seizure” within the meaning of s. 8 of the Charter, was virtually determinative of whether there had been a breach of s. 8 of the Charter. This is so because there was no suggestion that the police officer in Harris had any individualized grounds to detain the accused and personally investigate him for any reasonably suspected unlawful conduct. The accused merely happened to be a passenger in the motor vehicle being driven by another person. As there were no potential “reasonable grounds” for the police request for identification, there was no need for any detailed consideration as to whether the “seizure” of the accused’s identification was reasonable and, therefore, in compliance with s. 8 of the Charter. In the result, in Harris, Doherty J.A. simply concluded, at para. 44, that because the accused was “subject to a seizure” when he provided his identification to the police, and as the “seizure was warrantless and without reasonable cause” and the accused had not waived his s. 8 Charter rights, the police had violated the accused’s rights under s. 8 of the Charter. See also R. v. Johnson, 2010 ONSC 1490, [2010] O.J. No. 975, at paras. 19-25, affirmed, 2013 ONCA 177, 297 C.C.C. (3d) 87, at paras. 43, 52.
[24] Based upon the controlling decision in Harris, the trial judge correctly concluded that, in the circumstances of the present case, the police effectively “seized” the identification of the detained appellant, who had been advised that he was under investigation for his suspicious conduct inside the vehicle, when they asked him to identify himself and he complied with that request. In my view, the decision in Harris is indistinguishable from the present case on this issue, and dictates this conclusion.
c. Was the Police Seizure of the Appellant’s Identity Reasonable?
[25] Having concluded that the police seized the appellant’s identity from him following his detention, it remains to be determined whether or not that warrantless seizure was “unreasonable” in violation of s. 8 of the Charter. The Crown argued that, in the circumstances of this case, any seizure of the appellant’s identity was reasonable and in compliance with s. 8 of the Charter. More particularly, the Crown argued that the police were “allowed, if not obligated to identify the appellant after detaining him.” The Crown offered three potential justifications in support of this argument. One of these arguments has merit.
[26] The Crown argued that the appellant was “arrestable” as there were reasonable and probable grounds for his arrest in connection with his unlawful possession of the cell phones and, once he was arrested, the police were empowered if not obliged to identify the appellant, and their inevitable search incident to that arrest would necessarily have led to his identification. I reject this argument.
[27] At the time Cst. Pillegi required the appellant to identify himself for his investigative purposes, the appellant was simply not “arrestable” for any offence. There were no objectively reasonable grounds that justified his arrest for any specific offence. See R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241. Further, and in any event, even if there were objectively reasonable grounds justifying the arrest of the appellant, neither of the investigating officers subjectively believed that they had the necessary reasonable grounds to effect the appellant’s arrest for any offence. Cst. Haroon testified that seeing the appellant’s conduct in relation to the cell phones and money caused him to believe that it was “very possible” that he was “discarding illegal things,” so he ordered the appellant out of the car and advised him that he was “being investigated for [this] suspicious conduct.” Similarly, Cst. Pilleggi testified that the circumstances of the passing of the cell phones and money by the appellant made him “very suspicious” that the appellant was “engaging in some activity that was prohibited.” However, at no point in the testimony of either police officer did they suggest that they believed that they had reasonable grounds to arrest the appellant prior to receipt of the results of the CPIC check. Presumably, if either officer believed he had such grounds, the appellant would have been arrested at an earlier point in time.
[28] The Crown also argued that it was an implied condition of the appellant’s bail order that he identify himself when legitimately asked to do so by the police. I also reject this argument. There is no authority in support of the Crown’s suggestion that it is an implied term of judicial interim release orders that the accused must identify him or herself to the police on demand. In my view, if such terms are to bind an accused on judicial interim release, they must be expressly articulated in the release order itself and in the resulting recognizance. See Mr. Justice Gary Trotter, Law of Bail in Canada, (3rd ed., 2015, looseleaf), at pp. 6-40, 6-46 to 6-47.
[29] The Crown argued that the police had “both the power to search for evidence relating to the suspected offence, and to identify the individual that they were dealing with” and that, accordingly, the police were justified in asking the appellant for his identification in the circumstances of this case. It is this argument that I accept. The Crown suggested that this power was premised upon the existence of “reasonable and probable grounds.” I disagree with that aspect of the Crown’s argument. In my view that is not the threshold standard that governs the exercise of this particular warrantless police search and seizure power. In my view, this power to seek to identify and investigate an individual who has been properly detained, based upon the existence of individualized “reasonable grounds” pursuant to R. v. Mann, is a search and seizure power that is inherent in the very notion of “investigative detention.”
[30] It seems only logical that if the police are entitled to detain and investigate an individual when they have reasonable grounds to suspect that the individual is involved in some unlawful conduct, as the Supreme Court of Canada clearly held in R. v. Mann, then the police must be permitted, at a minimum, to make inquiries as to the identity of the person so detained, and ask some questions of the detainee in furtherance of their investigation. No doubt the police will have to conduct any such investigation in timely compliance with s. 10(b) of the Charter. But surely such brief investigative inquiries are “reasonable” warrantless searches for information, and the responses of the detainee are reasonably “seized” by the investigating officers. The Crown will have to demonstrate that any verbal responses by the accused were provided voluntarily, and provided only after the police complied with the constitutional dictates of s. 10(b) of the Charter, but such inquiries and responses will be obtained in compliance with s. 8 of the Charter. In short, as the “investigative detention” of the suspect is itself premised properly upon the existence of “reasonable grounds,” so is the “search” for information from the detained suspect in the form of these questions and the “seizure” of that information in the form of the suspect’s responses.
[31] The Supreme Court of Canada decision in R. v. Mann supports this conclusion. It is important to recall that factually, in Mann, two police officers received a radio dispatch detailing a “break and enter” that was said to be in progress in a neighbouring district. A detailed physical description of the suspect was provided, as well as a name. The suspect in the offence was thought to be one “Zachary Parisienne.” When the officers approached the crime scene, they saw an individual walking along the sidewalk. He matched the description of the suspect that they had been provided. The police stopped this individual, the accused, and “asked him to identify himself.” The accused told the police that his name was “Phillip Mann” and he also provided his date of birth. The police then performed a “pat-down” search of his person for any concealed weapons. During the course of this search the police officer reached into the front pocket of his sweater and found a small plastic bag containing a quantity of marihuana, and some drug paraphernalia. The accused was ultimately arrested for possession of marihuana for the purpose of trafficking.
[32] The important issues on the appeal to the Supreme Court of Canada related to the existence and scope of the power of the police to detain individuals for investigation. In the result, the majority of the court held: (1) that the police have the power to detain for investigative purposes, based upon “reasonable grounds” or “articulable cause” revealed by an objective view of the totality of the circumstances, informing the officer’s “reasonable suspicion” that the individual is implicated in criminal activity; and (2) that the police may, in some circumstances, conduct a “pat-down” search of the suspect incident to an investigative detention, provided that the officer believes on “reasonable grounds” that his or her own safety, or the safety of others, is at risk and the search is reasonably necessary in light of the totality of the circumstances. Significantly, in summarizing these conclusions, Iacobucci J., delivering the judgment of the majority of the court stated, at para. 45:
To summarize, … police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.
[emphasis added]
[33] In stating that an investigative detention “does not impose an obligation on the detained individual to answer questions posed by the police,” the Supreme Court of Canada clearly contemplated that, as part and parcel of an investigative detention, the investigating police officer would be posing questions to the detained individual. Further, in Mann, the police officers specifically asked the accused to “identify himself.” While the Supreme Court concluded that the investigating police officer had exceeded the scope of his power to search the accused incident to his detention, the Court also concluded that the officer had the necessary “reasonable grounds” to detain the accused and to conduct a reasonable “protective search” of his person upon detention. Importantly, at no point in his judgment did Iacobucci J. suggest that the police officers needed any further justification or reason to question a detained accused or ask him to identify himself, or that such inquiries themselves were in violation of s. 8 of the Charter. See also R. v. Simpson (1993), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482; Terry v. Ohio, 88 S.Ct. 1868 (1968), at pp. 1879-1885.
[34] In the present case the trial judge concluded that the police conduct in requesting the identification of the appellant, and then accessing CPIC for information amounted to a “search for information” and a “constituted a seizure” in violation of s. 8 of the Charter. The trial judge indicated that the “same conclusion was reached by Justice Doherty in R. vs. Harris.” To the extent that this conclusion interprets Harris as holding that any police request for identification from a detained suspect amounts to a violation of s. 8 of the Charter, the conclusion misconstrues the decision in R. v. Harris, and is inconsistent with the Supreme Court of Canada decision in R. v. Mann. To the extent that this conclusion suggests that Harris and the present case are factually indistinguishable, it fails to appreciate the fundament factual difference between the cases. In Harris the accused was not subject to an “investigative detention” based upon individualized “reasonable grounds” to believe the accused was engaged in unlawful conduct, as contemplated by Mann, whereas in the present case the appellant was subject to just such an investigative detention. In any event, in my view the trial judge erred in concluding that the seizure of the appellant’s identification was in violation of s. 8 of the Charter. While obtaining the appellant’s identity during the investigative detention was a warrantless “seizure” of information from the appellant, it was properly based upon “reasonable grounds,” just like his detention, and was therefore “reasonable” and in compliance with s. 8 of the Charter.
d. Conclusion
[35] In summary, as the police officers in the present case had the necessary “reasonable grounds” to properly briefly detain the appellant for investigation, they also had the coincident power to ask him to identify himself and to make inquiries of him concerning his suspicious activities in the car. Of course, the police could not compel the appellant to identify himself or to answer any of their other investigative inquiries. However, the fact that the police request that the appellant identify himself was based upon the “reasonable grounds” that permitted his detention in the first place, rendered his identification to the police a reasonable warrantless seizure of that identification in compliance with s. 8 of the Charter. In my view, the trial judge erred in reaching the contrary conclusion.
3. Section 10(b) of the Charter – Violation of the Right to Counsel
[36] The appellant argued that the trial judge erred in concluding that “the brevity of the detention made it unnecessary to activate” the appellant’s right to counsel pursuant to s. 10(b) of the Charter. I agree. In my view, in failing to provide the appellant with his right to counsel immediately upon detention, the police violated his s. 10(b) Charter right.
[37] When he was ordered to exit the parked motor vehicle and subjected to a pat-down search for weapons, the appellant was detained so that the police could investigate the appellant’s earlier actions inside the vehicle in relation to the cell phones and the money. The investigating officers reasonably suspected that the appellant was engaged in some type of criminal conduct. He was not being detained in connection with any highway traffic safety issue. In these circumstances, the police were obliged to advise the appellant of his right to counsel immediately.
[38] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42, the Supreme Court of Canada held that the “right to counsel” duties that are imposed upon the police by s. 10(b) of the Charter are triggered immediately upon an arrest or detention. The court held, in short, that the phrase “without delay” in s. 10(b) means “immediately.” In the result, upon any detention or arrest, the informational duty and implementation obligation cast upon the police must be immediately executed. This is so, as the court in Suberu explained, because concerns over compelled self-incrimination and interferences with individual liberty are triggered as soon as a citizen is detained or arrested, and citizens must accordingly be protected. The Supreme Court held that the immediacy of the obligation cast upon the police is subject only to concerns for officer or public safety, or reasonable limits that are prescribed by law and justified under s. 1 of the Charter. See also R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at paras. 50-52.
[39] Accordingly, in concluding that the “the brevity of the detention” made it “unnecessary to activate” the appellant’s right to counsel, the trial judge erred. In reaching his conclusion, the trial judge relied upon the decision in R. v. Harris, where the Court of Appeal held, at paras. 47-48, that Mr. Harris, who was lawfully detained as incident to a brief and lawful highway traffic stop and investigation, was not required to be provided with his right to counsel at the roadside. Doherty J.A. expressly noted that this point was conceded by defence counsel and was consistent with the jurisprudence holding that the exercise of s. 10(b) Charter rights is “incompatible with the brief roadside detention contemplated by a stop made for road safety purposes.” See also R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Suberu, at para. 45; R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont.C.A.); R. v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont.C.A.). That is the critical distinguishing feature between Harris and the present case – the accused in Harris was detained pursuant to a lawful highway traffic stop and investigation, while the appellant in the present case was detained in furtherance of an independent criminal investigation.
[40] In the result, as I have indicated, the police were constitutionally obliged to provide the appellant with his right to counsel immediately upon detaining him for investigative purposes. In failing to do so, the police violated the appellant’s rights under s. 10(b) of the Charter. Instead of providing the appellant with his right to counsel in a timely way, and promptly advising him of his right to remain silent, the police required him to identify himself so that they could pursue their criminal investigation.
[41] It was at the very outset of his investigative detention that the appellant most needed the wise counsel of a criminal lawyer, who could have advised him that he was not obliged to provide any information to the police, including any information concerning his identity. See R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21.
[42] This important aspect of the right to remain silent for suspects who are not under arrest (or being arrested) was highlighted in the decision in Rice v. Connolly, [1966] 3 W.L.R. 17, [1966] 2 Q.B. 414 (Div.Ct.). In that case a police officer observed the defendant to be acting suspiciously in a geographic area where there had been a number of “breakings” earlier that same night. He was asked several times for his full name and address, but he refused to identify himself to the officer and, when asked to accompany the officer to a “police box,” he declined to do so, unless he was arrested. The defendant was thereafter charged with wilfully obstructing the police officer in the execution of his duty. He was convicted at trial, but acquitted on appeal. Lord Parker, delivering the main judgment of the court, stated, at pp. 419-420:
Accordingly, the sole question here is whether the defendant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest.
In my judgment there is all the difference in the world between deliberately telling a false story – something which on no view a citizen has a right to do – and preserving silence or refusing to answer – something which he has every right to do. Accordingly, in my judgment, looked upon in that perfectly general way, it was not shown that the refusal of the defendant to answer the questions or to accompany the police officer in the first instance to the police box was an obstruction without lawful excuse.
[43] See also R. v. Moore, 1978 SCC 160, [1979] 1 S.C.R. 195, at pp. 203-204; R. v. Guthrie, 1982 ABCA 201, 21 Alta.L.R. (2d) 1; R. v. Mann, at para. 45; R. v. Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305, at para. 49.
[44] Instead of being immediately advised of his right to counsel, however, and being permitted to secure timely legal advice from a lawyer about how and why he might exercise his right to remain silent, the appellant was required to supply his identification to the police. It is difficult to imagine how the appellant, or anyone in his circumstances, might have been able to effectively resist making this disclosure to the police in the absence of timely legal advice.
4. Section 24(2) of the Charter – The Admissibility of the Evidence
a. Introduction
[45] The appellant argued that the trial judge erred in concluding that the evidence obtained by the police following the violation of his constitutional rights was admissible under s. 24(2) of the Charter. I agree.
[46] Normally, a trial judge’s determination concerning the admissibility of evidence under s. 24(2) of the Charter is owed “considerable deference” by an appellate court where the trial judge has recognized the correct legal principles, considered the proper factors and has not made any unreasonable findings. See R. v. Grant, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 44; R. v. Ansari, 2015 ONCA 575, 337 O.A.C. 207, at para. 72; R. v. Foreman, 2015 ONCA 884, [2015] O.J. No. 6610, at paras. 3, 26; R. v. Ting, 2016 ONCA 57, [2016] O.J. No. 307, at paras. 74, 85; R. v. Hall, 2016 ONCA 13, [2016] O.J. No. 68, at para. 63. However, as I have concluded that the trial judge erred in finding a s. 8 Charter breach, and also erred in not finding a violation of s. 10(b) of the Charter, I must conduct the analysis required by s. 24(2) of the Charter anew, deferring to the trial judge only in relation to any findings of fact made at trial. See R. v. Grant, at para. 129; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 94; R. v. Bergauer-Free, 2009 ONCA 610, 255 O.A.C. 233, at para. 4; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 90, 184; R. v. Kelsy, 2011 ONCA 605, 283 O.A.C. 201, at para. 60; R. v. Wong, at para. 52.
[47] As the trial judge accurately observed, according to the leading Supreme Court of Canada decisions in R. v. Grant and R. v. Harrison, there is a three-pronged standard that must be applied in determining the admissibility of evidence under s. 24(2) of the Charter. More particularly, the court must assess and balance the effect of admitting the evidence on society’s long-term confidence in the justice system having regard to three factors, namely: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. The court must, of course, consider all of the circumstances of the case in conducting this critical balancing assessment. See also R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-113; R. v. Beaulieu, at paras. 5-8; R. v. Côté, at paras. 45-48; R. v. Cole, at paras. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 45-52; R. v. Spencer, 2014 SCC 43, [2014] S.C.R. 212, at paras. 75-81; R. v. Taylor, at paras. 37-42; R. v. Mian, at paras. 78-89; R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at paras. 64-71; R. v. Harflett, 2016 ONCA 248, [2016] O.J. No. 1812, at paras. 33, 36-37, 45-46, 49-54, 57.
b. The Seriousness of the Charter Breach
[48] In my view, there is no question that the violation of the appellant’s constitutional right to have the timely advice of counsel, as guaranteed by s. 10(b) of the Charter was serious.
[49] Acting upon a reasonable suspicion, the police were entitled to detain the appellant for investigative purposes. However, in so doing, the police were obliged to provide the appellant with his right to counsel immediately. There was no reason why the police could not have promptly complied with this constitutional obligation as soon as the accused had been frisk-searched for any weapons. The decision in Suberu was released by the Supreme Court of Canada on July 17, 2009. The police interaction with the appellant took place more than four years later, on November 1, 2013. By that time, the police ought to have been well-familiar with their constitutional obligation to immediately provide the appellant with his right to counsel upon detention.
[50] Indeed, Cst. Pilleggi testified that he was “absolutely” aware of the need to give the appellant his right to counsel. However, the officer explained that he “wanted to see who he was dealing with before [he] started reading [the informational component of the right to counsel] out of the back of [his] memobook.” Then, according to Cst. Pilleggi, once he “ran [the appellant] on CPIC and … got the return … [the appellant] was placed under arrest, so [he] didn’t have the time to advise him of his rights to counsel before he was placed under arrest.” This is not a satisfactory explanation for why the appellant was not immediately provided with his right to counsel. It was not for the police officer to determine that his investigative interests in the detained appellant should be given priority over his constitutional obligation to immediately provide the detained appellant with his right to counsel. The Supreme Court of Canada has already determined, in Suberu, that the right to counsel cannot be so conveniently postponed until the conclusion of the police investigation and the arrest of the suspect.
[51] Nevertheless, without providing the appellant with his right to counsel, Cst. Pilleggi effectively compelled the appellant’s identity from him by requiring him to produce his driver’s license. Of course, this was the only piece of information that Cst. Pilleggi needed from the appellant in order to further his investigation into the appellant’s activities concerning the cell phones and the money. This information of the appellant’s identity permitted Cst. Pilleggi to quickly learn about the terms of the appellant’s current judicial interim release order, and place him under arrest.
[52] In my assessment, this violation of the appellant’s right to counsel protected by s. 10(b) of the Charter was serious because it was deliberate. Cst. Pilleggi was admittedly aware of his constitutional obligation and consciously postponed his compliance with that obligation until he had gathered all of the information that he needed from his investigation. This intentional violation of s. 10(b) of the Charter weighs heavily in favour of the exclusion of the evidence obtained by the police. See R. v. Grant, at paras. 72-75.
c. The Impact of the Charter Violation
[53] Similarly, there can be little doubt that the police violation of the appellant’s constitutional right to be advised of his right to counsel, and to prompt access to legal advice, had an immediate and significant impact upon the appellant’s Charter-protected interests. Immediately upon being deprived of his s. 10(b) Charter rights, the appellant provided the police with the only piece of evidence that they needed to further their investigation against him – his identity. This single piece of information, while not incriminating on its face, permitted the police to access the CPIC computer database and gather all of the information the police needed to arrest the appellant for breaching the terms of his recognizance.
[54] Significantly, there was no inevitability to the police discovery of this information. Had the appellant been immediately provided with his right to counsel and been properly advised that, as a matter of law, he was not obliged to provide the police with his identity, but could remain entirely silent in the face of any and all requests or demands by the police for investigative information, the accused might have followed that advice and remained mute. In the absence of any further information or evidence that might have provided the police with the necessary reasonable grounds to arrest the appellant, the police would have been obliged to release him.
[55] Accordingly, in my view this prong of the Grant analysis also strongly favours the exclusion of the evidence. See R. v. Grant, at paras. 76-78.
d. The Truth-Finding Function of the Trial
[56] In relation to the third prong of the admissibility inquiry, there is no gainsaying the fact that the admissibility of the evidence in question best serves the truth-seeking function of the trial. The evidence flowing from the appellant’s identity and the consequent CPIC search is objectively reliable and is critical to the Crown’s case against the appellant. The exclusion of reliable evidence that effectively terminates a prosecution may well impact negatively on the repute of the administration of justice. Accordingly, this aspect of the analysis strongly favours the admission of the evidence. See R. v. Grant, at paras. 79-84.
e. Conclusion
[57] There is no overarching rule that governs how these three factors should be balanced. There is clearly no mathematical formula that is to be applied. The balancing exercise is a qualitative one. In this assessment, no one factor is any more important than another such that it effectively trumps consideration of the other relevant circumstances. However, the appropriate consideration and balancing of these three factors provides a flexible and helpful decision tree regarding the admissibility of the evidence in issue. In all cases, it is the long-term repute of the administration of justice that must be assessed in determining the admissibility of the evidence. See R. v. Grant, at para. 86; R. v. Harrison, at para. 36; R. v. Sandhu, 2011 ONCA 124, 268 C.C.C. (3d) 524, at paras. 66-69.
[58] The balancing of these three important considerations, in the context of all of the circumstances of this case, leads me to conclude that the evidence flowing from the police request for the appellant’s identity, following the violation of s. 10(b) of the Charter, should be excluded under s. 24(2) of the Charter. While the evidence is clearly reliable and essential to the Crown’s case and an accurate determination of the case on its merits, this important consideration is overcome by the combination of the sheer gravity of the conscious Charter breach by the police and the coincident deep impact of that violation on the vital Charter-protected interests of the appellant.
E. Conclusion
[59] In summary, I have concluded that the police violated the constitutional rights of the appellant under s. 10(b) of the Charter in such a way that the evidence flowing from the police request that the appellant identify himself must be excluded under s. 24(2) of the Charter. Given these conclusions, it is unnecessary to consider the other, alternative grounds of appeal advanced on behalf of the appellant. In the result, the appeal against must be allowed, the appellant’s conviction set aside, and an acquittal entered. An order shall issue accordingly.
Kenneth L. Campbell J.
Released: May 10, 2016