Court File and Parties

COURT FILE NO.: 8106-20 DATE: 2021-01-11 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Joe Chapman, Federal Prosecutor

- and -

FALCON BEAUCHAMP and LAYLA SMOKE Kenneth G. Walker, Counsel for the Accused

HEARD: January 4, 2021

VARPIO J.

REASONS ON CHARTER APPLICATION (SECTION 8)

1This is a Charter Application brought by the accused, Mr. Falcon Beauchamp, to exclude an imitation firearm and narcotics that were located in his motor vehicle after the vehicle Mr. Beauchamp was driving was pulled over by police and searched. The parties filed an agreed statement of fact on the application and did not call any viva voce evidence.

FACTS

2On October 6, 2018, Ontario Provincial Police P.C. Garrett Roth conducted radar patrol on Highway 17, Vasiloff Township, in the District of Algoma. He observed a 2005 grey Chrysler Sebring with a Saskatchewan license plate travelling southbound at a high rate of speed. P.C. Roth used radar equipment to confirm that the vehicle was travelling at 120 km/hr in a posted 90 km/hr zone.

3P.C. Roth pulled the vehicle over. P.C. Roth spoke with Mr. Beauchamp and noticed an open unsealed beer can laying on its side on the back seat of the vehicle near a puppy. The can was ostensibly empty. P.C. Roth thus conducted a search pursuant to section 32(5) of the Liquor Licence Act. P.C. Roth searched the can and discovered that it contained a small residual amount of liquid, presumably beer.

4P.C. Roth searched the centre console of the vehicle and discovered a Ziploc bag containing what appeared to be cannabis marihuana in excess of 30 grams. P.C. Roth also located a cannabis bud grinder under the passenger seat. He located multiple air fresheners and a full open box of fabric softeners in the glove box. He located a red glass pipe containing marihuana residue in between the driver and passenger seat. Both the Applicant and the passenger, Ms. Layla Smoke, were arrested for Possession of Marihuana of an amount greater than 30 grams pursuant to s. 4(1) of the Controlled Drug and Substances Act.

5P.C. Roth searched the trunk incident to arrest and discovered two bags of suspected cocaine inside a tin box. In addition, the police officer found 128 “dime bags”, a replica .357 handgun, and a straw with cocaine residue on it. P.C. Roth re-arrested the Applicant and Ms. Smoke for Possession for the Purpose of Trafficking of a Schedule 1 substance pursuant to s. 5(2) CDSA.

6The weight of the suspected cocaine is 51 grams.

7The weight of the marihuana is 35.5 grams.

8P.C. Roth subsequently found a one-gram package of cocaine outside the vehicle where the two accused persons had been standing during the search. The packaging was the same as the “dime bags” found in the trunk (all the bags had a spade embossed on them).

POSITION OF THE PARTIES

9Mr. Beauchamp raises two arguments. First, he argues that P.C. Roth did not have reasonable grounds to search the vehicle as a result of observing the opened beer can. In the alternative, if P.C. Roth did have grounds to search the vehicle for open alcohol, he did not have grounds to search the console because there is no evidence to suggest that the console was large enough to hold beer. In either instance, Mr. Beauchamp submits that the impugned evidence ought to be excluded under s. 24(2) of the Charter.

10The Crown submits that the unopened can of beer provides adequate grounds to search the vehicle. The Crown also submits that P.C. Roth could search the console of the vehicle. In the alternative, the Crown submits that if a Charter breach occurred, evidence ought not be excluded under s. 24(2) of the Charter.

ANALYSIS

Section 8 of the Charter

11Section 8 of the Charter of Rights and Freedoms states that:

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

12A warrantless search is presumptively unlawful and contravenes s. 8 of the Charter: Hunter v. Southam Inc., 11 D.L.R. (4th) 641.

13Section 32(5) of the Liquor License Act states:

32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32 (1).

Exception

(2) Subsection (1) does not apply if the liquor in the vehicle,

(a) is in a container that is unopened and the seal unbroken; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. R.S.O. 1990, c. L.19, s. 32 (2).

Search of a Vehicle or Boat

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. R.S.O. 1990, c. L.19, s. 32 (5).

14Reasonable grounds generally contain both subjective and objective components: R. v. Feeney, [1997] 2 S.C.R. 13.

15Thus, I must determine whether P.C. Roth had both the subjective and objective grounds to believe that “liquor [was] being unlawfully kept in [the] vehicle” in question. If I answer “no” to either inquiry, then there I must find a s.8 Charter violation.

16I accept that P.C. Roth subjectively believed that he had grounds to search the vehicle pursuant to s.32 (5) of the LLA. P.C. Roth did not testify and, absent evidence to the contrary, it is a necessary implication of the agreed statement of fact that P.C. Roth held such a belief. Put another way, absent viva voce evidence on this point, I am not prepared to find that P.C. Roth used the LLA as a pretense to search the vehicle for criminal contraband. Ergo, P.C. Roth searched the vehicle believing that he was authorized so to do in order to look for illegally transported alcohol.

17The crux of this application is whether observing an opened can of beer, on its side, on the back seat of a motor vehicle positioned beside a puppy provides an officer with an objective basis to search a motor vehicle under s. 32(5) of the LLA. In R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), investigating officers observed a six pack of beer in a parked vehicle at Pearson International Airport. One bottle was half-full of liquid and its cap was removed. The officers were aware that liquor had been stolen from one of the airlines. Upon observing the open alcohol in the vehicle, the officers searched same. Martin J.A., for the unanimous court, indicated at p. 334 “[p]atently, the officers had reasonable grounds to believe that liquor was being unlawfully kept or had in the motor vehicle. Accordingly, s. 48 [the then governing section of the LLA] was clearly applicable and conferred upon the officers’ authority to search the vehicle.”

18The case before me is not as “patently” obvious. Counsel provided me with case law dealing with situations where officers had to draw inferences based on the circumstances at hand. I did not find the jurisprudence to be particularly helpful in so far as all the cases were distinguishable. In R. v. MacLaclan, [2002] O.J. No. 893 (Ont. C.J.), the driver of a motor vehicle was arrested for being in possession of a stolen vehicle, his vehicle was searched, and an empty beer bottle was found underneath the driver’s seat. The presiding justice did not give a firm opinion regarding whether or not the discovery of the beer bottle enabled the officer to search under the LLA. The presiding justice reviewed Annett and stated at para. 10 that “even if the officer had reasonable and probable grounds to search the vehicle, which I am not satisfied that he did as incident to arrest, the search should not have gone any further”. This appears to be a finding regarding the power to search incident to arrest, as opposed to a finding regarding the power to search as per the LLA.

19In R. v. Ishmael, [2005] O.J. No. 2690 (Ont. C.J.), the accused was driving with a bottle of beer in a console coffee cup holder. The bottle was full and had a cap on it. This case is of no assistance in so far as an unopened bottle does not, by itself, suggest that there is opened alcohol in the vehicle. As was stated by the court at para 53:

The Liquor License Act is not violated in the circumstances of this case. There is no illegality in having a sealed unopened bottle of beer in the vehicle. This was either known, or ought to have been known, to the officers on the date in question. The LLA is very plainly worded provincial legislation, which is frequently applied by police. The Crown properly concedes this point, but argues that the search is nonetheless reasonable.

20The closest case on its facts to the case before me is R. v. Mpamugo, [2009] O.J. No. 953 (Ont. S.C.). In that case, Baltman J. was faced with a situation where officers pulled a vehicle over and conducted a roadside sobriety test. At the same time, they observed an unopened beer bottle under the driver’s seat. At para. 30 of the decision, the trial judge commented upon the situation:

In my view this case is distinguishable from Annett. While it is arguable that the officers were entitled to search the vehicle for liquor, as Gatt smelled alcohol in the vehicle (although neither Chamula or Langdon did) and saw a beer bottle sitting on the passenger floor (although it turned out to be empty), there was no statutory authority to search under the floor mat, where it could not conceivably be stored; as Chamula conceded in cross-examination, given the obvious bulge that would result it would have made no sense to conceal a bottle underneath the floor mat.

21As can be seen from the precedents provided by counsel, open beer cans in a vehicle can lead to a variety of inferences. For example, one can imagine a situation where a speeding SUV is pulled over in cottage country on a Sunday night heading towards Toronto. An officer observes opened beer cans in the back of the vehicle scattered beside tied garbage bags. The driver might be returning from a weekend party, going home for work on Monday and the cans are empties to be returned to the LCBO/Beer Store and/or recycling. Possibly, and absent other factors, the officer would have no basis to believe that there was open alcohol in the vehicle. Conversely, that same officer on that same Sunday night might pull over a two-seat sports car where the driver has an opened beer can (not unopened, as in Ishmael) in the coffee holder of his vehicle. Potentially, that officer might have objective grounds to believe that the vehicle contains open alcohol depending upon the evidence of the case.

22In the case before me, I find that the officer did not have objectively reasonable grounds to believe that there was open alcohol in the vehicle. Certainly, the opened can of beer was suspicious and the officer ought to have investigated said can. Responsible policing would have demanded that the officer ask questions about the can and consider whether there were any other signs of alcohol consumption by the motor vehicle occupants. I have no evidence regarding any further investigation conducted by the officer: whether any liquid spilled on the backseat of the vehicle, whether any of the occupants of the motor vehicle had any indicia of alcohol consumption and whether the officer could smell alcohol. Any one of these factors, depending upon the situation, may have combined with the opened beer can to give the officer reasonable grounds to search the vehicle as per s. 32(5) of the LLA.

23In the absence of such evidence, and in the absence of the officer’s rationale for the search, the open beer can provides no objective basis to believe that there is open alcohol in the car. For all the officer knew, the can was placed in the vehicle while it was empty. Said can of beer does not provide the officer with objective grounds to believe that other unopened alcohol was in the vehicle.

24With respect to the alternative argument that the police did not have grounds to search the console because it was not be large enough to hold beer, I dismiss that submission. Even if I accept that the officer should have only looked for beer (which finding I am not prepared to make), I have no evidence about the size of the console. I cannot, therefore, make any determination in this regard.

25Ergo, the search of the vehicle was unlawful and constitutes a violation of section 8 of the Charter of Rights and Freedoms.

Section 24 (2) Analysis

26In Grant, 2009 SCC 32, the Supreme Court outlined a three-prong test to determine whether evidence ought to be excluded from evidence under s. 24(2) of the Charter. The test involves weighing three factors:

1. The seriousness of the breach;
2. The seriousness of the impact of the breach; and
3. Society’s interest in adjudicating the matter on the merits.

Seriousness

27Grant established that breaches of Charter rights range in their severity and that several issues may affect where a given breach is located upon the spectrum of seriousness (paras 74 and 75):

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

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

28The instant breach is not a serious breach. First, as noted above, there is no basis to find bad faith on the part of the investigating officer. The absence of viva voce testimony means that I am unwilling to make any findings with respect to the officer’s intentions, absent other evidence that could prove same. No other such evidence was put before me. Ergo I am unwilling to make said findings. This is therefore a neutral point.

29This is also not a case where an officer unlawfully detains a driver and then obtains evidence as a result of said unlawful detention. This is a case where the officer had lawful authority to pull the vehicle over and to make observations. The officer made observations and drew an incorrect conclusion from an opened beer can. Specifically, the officer determined that he had reasonable grounds to believe that the vehicle contained open alcohol which in turn provided the officer with grounds to search the vehicle under the LLA. While the conclusion regarding reasonable grounds proved to be incorrect, it cannot be said that the decision was without any basis as the open beer can was certainly suspicious. Put another way, this situation was “close to the line”. It must also be noted that the officer made this decision at the roadside which is, by definition, a fluid situation.

30In total, therefore, given the lack of bad faith, the existence of some basis for the officer’s belief and the inherently fluidity of roadside decisions, I find that the seriousness of the Charter breach is low.

Impact

31Paras. 76 to 78 of Grant describe the “impact” prong of the test for exclusion under s. 24(2) of the Charter:

This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) -- all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

32First, I find that the driver of the vehicle had a low to moderate expectation of privacy in the motor vehicle. I do not know if the driver owned the vehicle, if he rented the vehicle or if he had any interest in the vehicle beyond driving same. Therefore, I cannot find that the driver had anything beyond a low to moderate interest in the vehicle in question.

33Second, the nature of the breach was moderate. The illegal search was the only manner in which the officer could have discovered the marijuana, which in turn led to a search of the trunk. This imports some level of severity of impact. However, it must also be noted that nothing about the search “intrude[d] on an area in which the individual reasonably enjoys a high expectation of privacy, or that demean[d] his or her dignity” such that the breach ought to be considered as being towards the more serious end of the spectrum.

34As such, the impact of the breach is at the moderate end of the spectrum as the two points balance each other to a degree.

Society’s Interest in Adjudication

35Offences involving guns and drugs have a heightened level of seriousness, and thus society has a heightened interest in adjudicating such charges: R. v. Omar, 2019 SCC 32, [2019] S.C.J. No. 32; Ontario Court of Appeal reasons at R. v. Omar, 2018 ONCA 975, [2018] O.J. No. 6346. Brown J.A.’s dissenting reasons at the Ontario Court of Appeal in Omar (which were adopted by a majority of the Supreme Court of Canada in a brief endorsement) make clear that the courts must recognize both the level of danger associated with firearms and their unfortunate prevalence in Canadian society (at paras 128 to 130):

Although Collins puts judges into the position of acting as the reasonable person fostering "long term community values" when deciding under s. 24(2) whether to admit or exclude evidence, such as an illegal handgun, practical limits exist on the perspective judges bring to that task.

Why is that?

Because the lethal problem posed by illegal handguns often seems remote from our daily judicial lives: we tend to live in safe residential areas; and we work in highly secure courthouses. The problem may directly touch others in the community; but for most of us it is a problem only read about in the media. As a result, we judges can be tempted to conceptualize issues under 24(2) in a somewhat abstract fashion, making decisions in an environment some distance removed from that where their real-life impact will be felt.

36Replica handguns, while obviously not as immediately dangerous as real handguns, are nonetheless very concerning in narcotic trafficking situations because they can easily lead to the use of real firearms in street-level altercations.

37Also, Sault Ste. Marie is in the midst of an opioid epidemic: R. v. Elie, 2019 ONSC 2248; R. v. Bernardi and Nocioli, 2020 ONSC 7077. Trafficking non-trivial amounts of cocaine, therefore, has a heightened importance in the context of this reality as the offence has a powerful impact on the community at large.

38Finally, the exclusion of the impugned evidence would effectively gut the Crown’s case such that prosecution of Mr. Beauchamp would not be possible.

39Therefore, when I consider all of the facts described in this section of the reasons, society’s interest in adjudicating the matter on its merits is high.

The Balance

40In Grant, the Supreme Court of Canada described the nature of the analysis to be undertaken at the weighing stage. At paras 67 to 70, the court stated:

The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

41In R. v. McGuffie, 2016 ONCA 365, Doherty J.A. described at paras. 62 and 63 how courts should apply Grant in situations where the countervailing interests are clearly opposed:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see, e.g., Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones (2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see, e.g., R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at paras. 81-89; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see, e.g., Grant, at para. 140. [Emphasis added]

42This approach was adopted in Omar where Brown J.A. effectively agreed with the trial judge that a brief roadside detention, operating in a fluid environment, was not a serious Charter breach. As such, it could not be said that both the initial inquiries “push[ed] strongly toward the exclusion of the evidence”. Brown J.A. would have dismissed the accused’s appeal. As noted above, a majority of the Supreme Court of Canada adopted Brown J.A.’s reasons.

43In the case before me, both the seriousness of the Charter breach as well as its impact push towards the exclusion of the evidence, but they do not push strongly in that direction. Conversely, society’s interest in adjudicating the matter on its merits pushes strongly towards inclusion of the evidence. When I consider McGuffie and Omar, this is an easy case to decide. The evidence ought to be admitted because the weight to be attributed to the third prong of the Grant analysis clearly outweighs the combined weight of the first two prongs given the factors previously outlined in these reasons.

CONCLUSION

44I hereby dismiss the instant application.

Varpio J.