Court File and Parties

COURT FILE NO.: CR-21-57-0000 DATE: 20220304 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Cadence Beauparlant

BEFORE: Justice D.A. Broad

COUNSEL: Tara Mimnagh, for the Respondent/Crown Alison Craig, for the Applicant/Accused

HEARD: January 24, 25 and 26, 2022

Reasons for Decision

(Orally)

Background

[1] The accused is charged with possessing fentanyl, cocaine, hydromorphone and oxycodone for the purpose of trafficking. He is also charged with possessing a prohibited knife and money of a value exceeding $5,000 knowing that all or part were proceeds of crime. The charges arise from the evidence seized during and after the accused’s arrest on November 25, 2020.

[2] The accused has brought an application seeking the exclusion from his trial of all of the evidence seized during and following his arrest under s. 24(2) of the Canadian Charter of Rights and Freedoms, alleging that the evidence was obtained in a manner that violated his rights pursuant to sections 8, 9 and 10(b) of the Charter.

[3] The outcome of the prosecution against the accused turns on the Charter determination on the application. For the purpose of the Charter voir dire the matter proceeded as a blended hearing such that the evidence on the voir dire would constitute evidence at trial.

Facts

(a) Agreed Statement of Facts

[4] The parties filed an Agreed Statement of Facts on the voir dire setting out the following:

(i) On November 25 2020 the applicant was searched incident to arrest and the following was located on his person: a. 38.9 grams of fentanyl; b. two cell phones; c. identification belonging to the applicant; d. a “butterfly” style knife; e. $925 CDN; f. 12 hydromorphone, 8 Percocet and 3 clonazepam pills; g. 2 Xanax and 2 Dilaudid pills

(ii) The car the applicant was travelling in was searched and $925 CDN was recovered.

(iii) The applicant admits the following: a. knowledge and control of the items seized; b. substance and continuity of the items seized; c. the amount of drugs seized was consistent with possession for the purpose of trafficking; d. the cash seized were the proceeds of crime; e. further, the applicant admits the voluntariness of any utterances made to the police at the time of his arrest.

(b) Evidence of Police Constable Lee

[5] In the late afternoon on November 25 2020 a two-vehicle collision occurred in the area of Paris Road and Golf Road in the County of Brant.

[6] At 4:47 p.m. Police Constable Lee of the Brantford Police Service was driving a marked police cruiser in the vicinity of the collision. P.C. Lee had four years experience as an officer with the Brantford Police Service and was on temporary assignment to general patrol from the traffic division.

[7] P.C. Lee heard a dispatch broadcast over his police radio advising that a civilian 911 informant had reported that a male driver of one of the vehicles had fled the scene of the accident and giving a description of the male as being dressed in a dark jacket, grey hoodie and white running shoes and carrying a bag. No other physical description was given such as height, weight or facial hair.

[8] P.C. Lee learned from dispatch that Police Constable Bossett was at the scene of the collision. The dispatcher broadcast five messages from 16:53:35 to 16:56.50 by which P.C. Lee learned that there were two injured persons who remained in the vehicles and required ambulances. P.C. Lee initially testified that P.C. Bossett had reported that one of the injured was the female passenger of the SUV involved in the collision, however, he acknowledged, after listening to the recordings of the dispatch messages, that P.C. Bossett had not reported that a passenger required an ambulance.

[9] P.C. Lee came upon a male person (later identified as the accused) walking northbound on Golf Road and then eastbound onto Powerline Road. The male was wearing a grey hoodie, dark jacket, was carrying a bag and was speaking on a cell phone. P.C. Lee believed that the male matched the description of the male driver who left the scene of the collision as conveyed by dispatch.

[10] The area of Golf Road and Powerline Road was predominantly rural. There were no sidewalks on either road. There were no businesses and few residences in the area. P.C. Lee could recall a church on the northwest corner of the intersection and “an occasional farm” in the area. He described the weather conditions as relatively cold. The sun was close to setting and it was beginning to get dark.

[11] P.C. Lee made a U-turn behind the applicant and activated the cruiser’s full emergency lighting system to ensure his vehicle could be seen. He pulled up behind the applicant who continued to walk eastbound on Powerline Road. P.C. Lee exited the cruiser and called towards the applicant who continued to walk with his hand up near his ear. He travelled about 40 feet before P.C. Lee apprehended him. P.C. Lee told the applicant that he was under arrest for failure to remain at the scene of the collision and took physical control of him, placing him in handcuffs. The accused did not resist.

[12] P.C. Lee did not make any inquiry of P.C. Bossett by radio with respect to the identity of the driver of the SUV and made no inquiry of the applicant as to whether he had been the driver. Shortly after the arrest the applicant did advise P.C. Lee that he had not been the driver.

[13] P.C. Lee testified that he arrested the applicant, believing that he was the driver of one of the vehicles in the collision, based solely on information obtained from the police dispatch. He agreed on cross-examination that such initial reports are often inaccurate. He acknowledged that he knew prior to effecting the arrest that there were officers on the scene of the collision, but he made no attempt to contact them for further information.

[14] After arresting and placing handcuffs on the applicant P.C. Lee escorted the applicant back to the police cruiser and stood with him on the passenger side and searched him incident to arrest. In doing so he searched the top half of the left side of the applicant’s body moving down to the bottom left side. In the applicant’s left breast pocket, he located a sock containing bags of what he believed to be fentanyl. He could not recall discovering anything else.

[15] P.C. Lee stated that the purpose of his search of the applicant incident to arrest was to search for weapons, means of escape and any elements of the offence of failure to remain at the scene of the collision, such as keys or anything else placing him as the driver. On cross-examination he acknowledged that at the preliminary enquiry he did not mention that one of his purposes was to look for evidence of the offence for which applicant was arrested.

[16] P.C. Lee testified on the voir dire that after arresting the applicant his initial thought was to search him and it did not occur to him to call the officers at the accident scene to obtain further information. This differed from what he testified to at the preliminary inquiry that he did not call the officers at the scene as he thought they were too busy.

[17] P.C. Lee placed the applicant in the back of the police cruiser at 5:00 p.m. and told him that he was under arrest for possession for the purpose of trafficking. At 5:03 p.m. P.C. Lee read the applicant his rights to counsel. The applicant responded by stating that he wished to speak to his mother. P.C. Lee read the standard caution respecting the right to silence to which the applicant responded that he understood. At approximately 5:08 p.m. P.C. Lee transported the applicant to the Brantford police station, arriving at 5:26 p.m.

(c) Evidence of Police Constable Gudgeon

[18] Police Constable Gudgeon, who had 11 years service with the Brantford Police Service at the time, heard a radio dispatch at approximately 4:50 PM that there had been a motor vehicle accident on Paris Road near Golf Road and that the male driver of one of the vehicles appeared to be running away. The male was described as wearing a black hoodie and was northbound on Golf Road. P.C. Gudgeon heard a second call over the radio providing an updated description that the male was seen wearing a grey hoodie, a black coat and white running shoes and was carrying a bag. The second call did not specify that the male had been the driver of the vehicle.

[19] P.C. Gudgeon approached the scene of the collision and was able to observe that P.C. Bossett had the area under control. P.C. Bossett advised him over the police radio “I am okay here” and told him to either “just go find the guy” or “find the driver”

[20] P.C. Gudgeon described both Paris Road and Golf Road as rural country roads. It was quite dark, cold and raining or drizzling. He drove northbound on Golf Road and observed no pedestrians. He eventually heard P.C. Lee report over the radio at approximately 4:55 p.m. that he had apprehended a person. He observed the red and blue lights of P.C. Lee’s cruiser, which was pulled over to the right shoulder. P.C. Lee was out of the vehicle with the applicant and was escorting him to the front of the vehicle.

[21] P.C. Gudgeon testified that he assisted P.C. Lee with the search of the applicant who was handcuffed. P.C. Gudgeon was on the left side of the applicant who had on the cross-shoulder satchel. P.C. Gudgeon testified that he searched the satchel and seized tobacco products, an OHIP card, a large sum of cash, a pocket-knife, prescription drugs and two cell phones. Inside the applicant’s inside breast pocket a balled-up sock was located containing what he suspected to be an illicit narcotic, likely fentanyl. He could not recall whether his search of the applicant’s satchel took place before or after the search of his jacket.

[22] P.C. Gudgeon testified that the purposes of the search incident to arrest were for evidence of the offence of leaving the scene of the collision including identification and keys, for any means of escape from custody, and to ensure the applicant’s safety and that of himself and P.C. Lee. He also said that he could have been searching for weapons because he did not want the applicant to be in the back of the police vehicle with any weapons, including sharps or needles.

[23] The applicant was arrested initially for failure to remain at the scene of the collision, but during the search he was also advised that he was being charged with possession for the purpose of trafficking.

[24] P.C. Gudgeon did not observe P.C. Lee effecting the initial arrest but did witness him providing the applicant with his rights to counsel and caution. He had no clear recollection of the applicant’s response.

[25] After P.C. Lee left to transport the applicant to the police station shortly after 5:00 pm, P.C. Gudgeon re-attended at the scene of the collision to assist with traffic control. The traffic investigator P.C. Alexander located additional currency on the passenger side of the SUV. P.C.Gudgeon subsequently learned that a female had admitted to being the driver of the SUV. He testified that he did not learn that the female was the driver until after the accused was under arrest. He stated that P.C. Bossett had earlier relayed that he had a female in the passenger seat, and he surmised that the applicant was the driver.

[26] On cross-examination P.C. Gudgeon stated that he did not speak to the investigating officer P.C. Bossett because the applicant was already in custody. He assumed that P.C. Lee has grounds to arrest him. He stated that there was no reason to delay searching the applicant incident to arrest, stating that he and P.C. Lee were “simply exercising our authority to search” and “we search everybody arrested” to prevent escape, for safety, and to search for evidence of the offence.

[27] Later in the evening between 8:00 pm and 9:00 pm. P.C. Gudgeon placed a call to Duty Counsel after the applicant made a request to a Special Constable to speak to Duty Counsel. After placing the call, he was not involved in facilitating the call to Duty Counsel and assumed that the Special Constable had done so.

(d) Evidence of Police Constable Bossett

[28] On November 25, 2020, Police Constable Bossett had 18 years of service with the Brantford Police Service and was a road constable. He stated that he was dispatched to the scene of an accident at Paris Road and Powerline Road at 4:47 pm, arriving at 4:55 pm. He observed a vehicle in the ditch and an SUV a short distance away. There was a female on the front passenger side of the SUV and no apparent driver in the vehicle. He called on the police radio for an ambulance. He believed, but was unsure, that he said that there was a female passenger who required an ambulance. He questioned the female in the passenger side of the SUV for a matter of seconds or a minute before calling for an ambulance.

[29] Within 30 seconds after he called for the ambulance the female advised that she had been driving the vehicle. She did not know the real name of the male passenger, knowing him only as “Junior.” She said that he had told her that he was going to a relative’s place nearby. P.C. Bossett stated that he told P.C. Gudgeon over the radio that he could deal with the vehicles and the occupants, and that P.C. Gudgeon could look for the male. P.C. Alexander of the traffic unit showed up and obtained identification of the female driver Evan Carter.

[30] P.C. Bossett stated that he did not believe that he broadcast a description of the male who left the scene of the collision. He had received the description over the radio on his way to the scene. He stated that the initial dispatch stated that a male had left the scene and that the other driver and witness had not seen him driving the vehicle.

(e) Evidence of Police Constable Alexander

[31] Police Constable Alexander was a traffic officer with the Brantford Police Service. On November 25 2020 he was in his eleventh year of service.

[32] At 16:47 he heard a dispatch over police radio that there had been a collision. On route to the scene, he received a dispatch that a driver of one of the vehicles had taken off. He later learned that officers had located the man.

[33] P.C. Alexander arrived at the scene of the collision at 17:07. He received information from a paramedic that the driver of the grey Toyota was in the back of an ambulance where he attended to obtain a driver’s license and verified her identity as Evan Carter. She told him that she had been the driver of the vehicle.

[34] He went to the other ambulance and was told by the driver that the male passenger in the other vehicle had checked on her.

[35] He was unable to recall which vehicle the male had taken off from.

[36] P.C. Alexander testified that, while opening the passenger door, he observed currency between the ledge and the seat, and advised P.C. Gudgeon. At the hospital he charged Evan Carter with careless driving and driving while suspended. He had no contact with the applicant.

[37] P.C. Alexander stated that he did not consult with P.C. Lee and that his only contact with P.C. Gudgeon was to advise him of having found currency in the vehicle. This took place after his conversations with Evan Carter and the driver of the other vehicle.

(f) Evidence of Special Constable Santamaria

[38] Special Constable Santamaria was first hired as a Special Constable with the Brantford Police Service on June 29, 2020. He testified that the applicant arrived at the Brantford police station at 17:34 on the evening in question. During the booking process with Staff Sargeant Spencer the applicant was read his rights to counsel and was asked if there was a specific person he wished to speak to. Staff Sergeant Spencer explained the role of Duty Counsel. The applicant requested to speak with his mother. S.C. Santamaria attempted to call the applicant’s mother and noted that he spoke to the accused’s father and facilitated a phone call between them. The applicant spoke to his father at 20:45 and was returned to his cell at 20:58. He testified that in the period between the applicant’s arrival at 17:34 and when he spoke to his father, he had made unsuccessful attempts to contact the applicant’s mother, whereupon he attempted another family member. He was unable to say how many times he tried to call the applicant’s mother.

[39] S.C. Santamaria testified that at 22:58 the applicant spoke to Duty Counsel and spoke to his father again at 23.17.

Guiding principles respecting reasonable and probable grounds for arrest

[40] The guiding principles relating to the question of what constitutes reasonable and probable grounds for arrest were very usefully summarized by Justice Kenneth L. Campbell, with comprehensive reference to the authorities, in the case of R. v. St. Clair, 2018 ONSC 5173, aff’d 2021 ONCA 895, quoted as follows at paras. 46-51 (authorities omitted for brevity):

a) According to the combination of ss. 495(1)(a) and (b) of the Criminal Code, a peace officer may arrest without warrant a person who has committed an indictable offence or who, "on reasonable grounds," the peace officer believes has committed or is about to commit an indictable offence, or a person whom the peace officer finds committing a criminal offence.

b) The statutory requirement of "reasonable grounds" means that (1) the police officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the accused; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest.

c) Proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt, or even the establishment of a prima facie case against the accused.

d) Proof of reasonable and probable grounds does not even require proof of the commission of the offence on the civil standard of the balance of probabilities, or on the basis of a 51% probability.

e) In considering whether the arresting officer was objectively possessed of the necessary reasonable and probable grounds, the court must take into account all of the circumstances known by the arresting officer and appreciate that a trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience.

f) The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence.

g) The standard of reasonable and probable grounds is used to define the point at which the state's interest in detecting and preventing crime begins to prevail over the individual's liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a "reasonable probability."

h) Beyond these principles, it may not be possible to more precisely define the nature of the standard of reasonable and probable grounds, or affix specific mathematical percentages, as it is a common-sense threshold designed to provide a practical and non-technical standard based on probabilities, and which permits consideration of the totality of circumstances in each individual case.

i) In determining the objective reasonableness of a police officer's subjective belief that he or she has the necessary grounds for an arrest, it is worthwhile recalling that such decisions are often made quickly by officers in volatile and rapidly changing situations where detached judicial reflection is not a luxury the officer can afford.

j) Police officers are obliged to consider and weigh any potentially exculpatory evidence in determining whether and/or how to proceed with their investigation concerning an accused who has been lawfully arrested. However, police officers are not obliged to accept, at face-value, any exculpatory explanation or evidence that may be provided by an accused. Indeed, the police may disregard information which they have good reason to believe is unreliable. Nor are the police obliged to discontinue or suspend other potential aspects of their investigation until they have fully investigated and drawn any final conclusions about the effect of any such exculpatory explanations and evidence. In short, the police need not completely rule out any potentially innocent inferences, defences or lawful excuses before properly proceeding with the arrest of an accused.

k) Further, the fact that an accused may, ultimately, be found not guilty of the alleged offence for which he or she was arrested does not establish that the arrest of the accused was not based on reasonable and probable grounds.

Guiding principles respecting search incident to arrest

[41] Justice K.L. Campbell also summarized the general principles and the applicable jurisprudence respecting search incident to arrest at paras. 64-68 of St. Clair quoted as follows (certain authorities omitted for brevity):

a) Generally speaking, warrantless searches and seizures are presumptively unreasonable. Nevertheless, the courts have long recognized the power of police officers to perform warrantless searches and seizures when they are truly incidental to the lawful arrest of an individual. The rationale for this long-standing search and seizure power is that when police officers arrest an individual, they need to be able to prevent any possible escape, protect themselves against any weapons that may be in the possession of the accused (or within his or her immediate surroundings), and preserve any available evidence of the alleged offence for which the accused is being arrested. As the Supreme Court of Canada noted in R. v. Beare (1987), [1988] 2 S.C.R. 387 at p. 404, the police power to search incident to arrest exists due to the need to properly arm the police "with adequate and reasonable powers for the investigation of crime" in recognition of the reality that "[p]romptitude and facility in the identification and the discovery of indicia of guilt or innocence are of great importance in criminal investigations." In other words, the real need for the police to be able to promptly and efficiently pursue their investigation upon lawfully arresting an individual is an important foundational consideration underlying the power to search incident to arrest.

b) Accordingly, as a general rule the police may search lawfully arrested individuals and their immediate surroundings to discover any object that may be a threat to the safety of the police, the accused or the public, or which may facilitate an escape, or which may provide evidence against the accused for the crimes for which he or she was arrested.

c) However, as the Supreme Court of Canada confirmed in R. v. Fearon, 2014 SCC 77 at paras. 13-14, the permissible scope of any particular search incident to arrest turns on a number of different aspects of the search, including such important matters as (1) the nature of the crime for which the accused is being arrested; (2) the circumstances surrounding the arrest; (3) the nature of the items seized; and (4) the place and time of the search in relation to the time of the arrest. Accordingly, the permissible scope of any individual search incident to arrest will be affected by the particular circumstances of the individual case. In each case the court must weigh the competing interests involved to determine whether the search is "reasonable" and in compliance with s. 8 of the Charter, in light of the "public purposes served by effective control of criminal acts" while at the same time respecting "the liberty and fundamental dignity of individuals."

d) Searches that are truly incidental to a lawful arrest do not themselves have to be based upon reasonable and probable grounds, but in undertaking such searches the police must be seeking "to achieve some valid purpose connected to the arrest." This will turn on what the police are searching for and why they are searching for it. The police must have in mind, when the search is conducted, one of the purposes for a valid search incident to arrest and must reasonably believe that this purpose may be served by the search that is undertaken.

e) Generally speaking, where an individual has been lawfully arrested, the police may perform a reasonable pat-down or frisk search of the arrestee. In other words, the officer is usually permitted to run his or her hands quickly over the body of the accused, outside his or her clothing, for purposes of (1) ascertaining what, if any, objects or weapons may be on the arrestee's person; and (2) discovering and preserving any evidence of the alleged offence. In some circumstances, where justified, such searches may include an examination of the arrestee's pockets.

Position of the applicant respecting alleged breaches of sections 8, 9 and 10(b) of the Charter

[42] The applicant submits that grounds did not exist for police to arrest him for failing to remain at the scene of an accident, as it is not a criminal offence for a passenger to leave an accident scene. The officers responding to the accident were advised promptly that the applicant was not driving either vehicle.

[43] The applicant points out that P.C. Lee made no attempt to investigate whether he had been driving before arresting and searching him and made no enquiry of him on whether he had been involved in the accident, let alone whether he had been driving.

[44] The applicant says that even the most rudimentary investigation would have determined that he had not committed any crime. The applicant matched only a very general description of the male seen leaving the accident scene. P.C. Lee acknowledged on cross-examination that initial reports over radio dispatch are often unreliable.

[45] The applicant submits that, even if P.C. Lee may have had grounds to effect an investigative detention, this does not assist the Crown, citing R. v. Stevenson, 2014 ONCA 842 at para. 56-59. At para. 56 Doherty, J.A., writing for the panel stated:

The arbitrariness of the appellant’s detention must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, what was not, exercised.

[46] The applicant submits that, given that his arrest was unlawful, his detention was arbitrary and the search of his person and belongings was also unlawful.

[47] The applicant points out that, for a search to be truly incidental to arrest, it must be conducted for a purpose related to the arrest and does not give an officer the power to automatically search a detainee’s personal belongings. There was no basis for the search to constitute more than a cursory pat-down. As P.C. Lee acknowledged, there was nothing which indicated to him that the applicant posed a threat or that he may have been in possession of weapons.

[48] The applicant pointed to the case of R. v. Smith, 2019 SKCA 126 in which Caldwell, J.A., writing for the panel and citing R. v. Caslake, [1998] 1 S.C.R. 51, observed at para. 35 that the police in that case had no reason to reasonably believe that the detainee’s purse possibly contained a weapon or an object that might be used as a weapon, and therefore posed a safety risk to officers or to the public, given that they had detained her, handcuffed her and separated her from her purse. The applicant submits that correspondingly, there was nothing in the circumstances of the case at bar to justify the police search of his satchel or the contents of his wallet.

[49] The applicant submits that the testimony of both P.C. Lee and P.C. Gudgeon showed that they were under the mistaken impression that the power to search incident to arrest gave them carte blanche power to search him and his belongings, directly impacting his right to privacy and also raising significant concerns about the systemic nature of their mistaken belief.

[50] Lastly, the applicant submits that his rights to counsel were breached when the officers failed to make inquiries regarding his counsel of choice. After he was read his rights to counsel and was asked if he wished to speak to a lawyer, the applicant responded that he wanted to call his mother. The officers ought to have asked him whether this was for the purpose of obtaining contact information for a lawyer and they did not do so.

[51] The applicant submits that the police are under a positive duty, not only to inform the detainee of their right to counsel, but to take proactive steps to facilitate the exercise of that right. The officers ought to have made inquiries to determine whether the applicant’s mother would have information about a lawyer for the applicant to speak to. The applicant submits that the officers had to make more than a perfunctory effort to determine whether the applicant wished to speak to counsel, especially given his obvious confusion. Moreover, officers ought not have waited approximately five hours before facilitating the applicant speaking with Duty Counsel.

[52] Although the applicant acknowledged that the s. 10(b) breach that he has alleged did not directly result in any evidence being obtained by police, and that it did not constitute a stand-alone Charter breach in the circumstances, it should be factored into the analysis as adding to the breaches under sections 8 and 9.

Position of the Crown with respect to the alleged breaches of sections 8, 9 and 10(b) of the Charter

[53] The Crown submits that there was nothing arbitrary about the arrest of the applicant by P.C. Lee. He had objectively discernible grounds for arrest that supported his subjective belief that the applicant had fled the scene of the accident. He had heard from fellow officers that there was an accident and that a male was leaving the scene. He also heard that 911 callers had reported that there was an accident and the driver had left the scene. The scene of the arrest was in a rural area, it was November and getting dark, and it was raining.

[54] Before arriving at the scene of the accident P.C. Lee observed the applicant, who matched the description that had been provided, walking down a rural road in the rain talking on a phone. He was also carrying a bag. When approached and asked to stop by police, the applicant kept walking. The Crown submits that P.C. Lee had the requisite grounds to arrest the applicant for failing to remain at the scene of an accident.

[55] P.C. Lee was initially alone at the side of the road with the applicant who had just left the scene of an accident carrying a bag. The Crown says that officer safety would be a concern. The Crown submits that the applicant’s arrest was lawful, and that any search conducted incidentally to that lawful arrest did not violate section 8, as the investigation was carried out in a reasonable manner and there were reasonable grounds to believe that an offence has been committed. The search of the applicant before placing him in the police vehicle was reasonable. As there was no circumstance in which the applicant would not be placed in the cruiser, P.C. Lee would be concerned about officer safety and therefore a search of the applicant was reasonable.

[56] The Crown submits that until 5:07, when P.C. Alexander had been able to speak with the occupants of both vehicles, there was a lack of clarity among the officers at the scene of the accident that Ms. Carter has been the driver of the SUV. By that time the applicant has been arrested and searched. Until that point there was nothing in the circumstances to lead P.C. Lee to question the information that he had received from dispatch. In the circumstances, P.C. Lee’s mistaken belief that the applicant had been the driver of the vehicle and had fled the scene of the accident was completely reasonable in the circumstances.

[57] The Crown submits that the initial pat-down search of the applicant following his arrest for leaving the scene of an accident constituted a reasonable search incident to arrest. The pat-down search revealed the sock in his jacket pocket containing a quantity of fentanyl. At that point there was no reason not to continue with a search of the satchel.

[58] The Crown submits that there was no requirement for the officer to demonstrate the presence of a weapon before searching for one. Safety of the officers and of the applicant was of paramount importance.

[59] The Crown submits that the applicant’s s.10(b) rights were not violated. He waived his right to speak to counsel twice, once following his arrest after being placed in the police cruiser, and once at the time of his booking at the police station, when he asked to speak to his mother instead of to counsel.

[60] Following his arrival at the detachment, contact was made with his family. He spoke with his father at 21.05, with Duty Counsel at 22.58 and again with his father at 23.20.

[61] The Crown submits that there is no obligation on the police to put an accused in touch with a non-lawyer, unless they are told that this person will connect them with a lawyer. The applicant did not indicate that his mother could assist him with finding a lawyer, but rather she was the applicant’s alternative to counsel. Despite not having an obligation to do so, the applicant was placed in contact with his family. It cannot be said that the applicant was left in police custody without access to the outside world.

Analysis re sections 8, 9 and 10(b) of the Charter

[62] As noted by Miller, J.A., writing for the panel in the recent appeal decision in R. v. St. Clair, 2021 ONCA 895 at para. 23, citing R. v. Gerson-Foster, 2019 ONCA 405, police officers have the authority under s. 495(1) of the Criminal Code to arrest a person without warrant if they have reasonable and probable grounds to believe the person has committed an indictable offence, and the Crown bears the burden of establishing that the arrest was lawful.

[63] At para. 24 Miller J.A. confirmed that:

(a) for the arrest to be lawful, the officer must subjectively believe there are grounds for arrest, and those grounds must be justifiable from an objective point of view;

(b) the officer’s belief will be objectively reasonable if a reasonable person, with the officer’s knowledge, experience and training, assessing the totality of the circumstances known to the officer at the time of the arrest, could have concluded that there were grounds to arrest the person.

[64] I am satisfied that P.C. Lee subjectively believed that there were grounds for the arrest of the applicant. His subjective belief was not challenged on cross-examination. The issue before the court is whether P.C. Lee’s belief that there were grounds for arrest was objectively reasonable, taking into account his knowledge, experience and training, and the totality of the circumstances known to him at the time of the arrest.

[65] In my view, P.C. Lee’s subjective belief in grounds for arrest was not objectively reasonable.

[66] Although it was confirmed in evidence that P.C. Lee was relatively new to the Brantford Police Service, with four years of experience, the nature and extent of his training, specifically in effecting arrests, was not touched on in his testimony. He testified that his belief that the applicant was the driver of one of the vehicles involved in the collision was based solely on information obtained from the police dispatcher, derived from a civilian 911 caller, that a male driver had been seen leaving the scene of the collision. However, on cross-examination he readily acknowledged that initial dispatch reports of this nature are often inaccurate. In examination in chief P.C. Lee testified that P.C. Bossett had reported over police radio that one of the injured persons for whom an ambulance was called was the female passenger of the SUV involved in the accident. However, the recordings of the dispatch messages which were played during his cross-examination disclosed that P.C. Bossett had not reported that a passenger required an ambulance.

[67] It is evident that P.C. Lee accepted at face value the information received from dispatch, notwithstanding his understanding that such information is often unreliable. He took no steps to verify the information, including engaging the applicant to seek to ascertain whether he had been involved in the collision and the nature of his involvement. Indeed, his first statement to the applicant after calling out to him to stop was to advise him that he was under arrest for leaving the scene of an accident.

[68] It is evident that P.C. Lee went directly to an arrest of the applicant without the considering the option of effecting an investigative detention pending the conduct of a basic enquiry to confirm the accuracy of the information that he had received from dispatch. This might have included engaging the applicant to seek to determine his involvement in the collision, as noted above, and checking by radio with P.C. Bossett, the officer on the scene of the collision.

[69] Although the conditions, including the secluded rural surroundings, the time of day and the rainy/drizzly weather, and the fact that the applicant did not stop when first addressed by him, might have contributed to suspicion in P.C. Lee’s mind respecting what the applicant might have been engaged in, including possibly fleeing from the scene of an accident, in my view, these factors were not such as to support the objective reasonableness of proceeding directly to an arrest in the circumstances. Moreover, P.C. Lee did not testify that these conditions played a part in his decision. As noted, he stated that his decision to effect an arrest was based solely on the information received by dispatch from the 911 caller.

[70] Had he engaged with the applicant it is likely that P.C. Lee would have been advised by him that he had not been the driver. Although he would have been under no obligation to accept or investigate an exculpatory statement offered by the applicant, it is likely that it would have led P.C. Lee to make enquiries of P.C. Bossett, given the limited reliability of the information received from dispatch.

[71] In light of the foregoing, I find that the Crown has failed to discharge the onus on it of showing that P.C. Lee’s grounds for arrest were justifiable from an objective point of view and was therefore lawful.

[72] The arrest of the applicant was therefore in breach of s. 9 of the Charter.

[73] Given that the arrest of the applicant was unlawful, so too was the search incident to arrest (see St. Clair (C.A.) at para. 33).

[74] As a consequence the search of both the applicant’s person and the satchel he was carrying constituted unreasonable searches pursuant to s. 8 of the Charter (see St. Clair (C.A.) at para. 35).

[75] Section 10(b) of the Charter provides:

Everyone has the right on arrest or detention…

(b) to retain and instruct counsel without delay and to be informed of that right.

[76] Lamer, C.J. summarized the duties on police pursuant to s. 10(b) whenever the police arrest or detain an individual in R. v. Bartle, [1994] 3 S.C.R. 173 at para. 18 as follows:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

Lamer, C.J. went on to note that the first duty is an informational one while the second and third duties are in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

[77] The applicant in the case at bar takes no issue with respect to compliance by police with the timeliness and accuracy of the informational component. He argues that, when he responded to P.C. Lee immediately following his arrest that he wished to speak to his mother and repeated this request in response to Staff Sergeant Spencer during the booking process at the police station, police ought to have made inquiries to determine whether the applicant’s mother would have information about a lawyer for the applicant to speak to, suggesting that it was clear that he was confused.

[78] I am unable to accept these submissions. The onus is on the applicant to prove on a balance of probabilities that police breached s. 10(b). There was nothing in the evidence on the voir dire to suggest that the applicant was confused by what he had been told respecting his rights to counsel or did not understand what he had ben told.

[79] In the case of R. v. Mumtaz, 2019 ONSC 468 Woollcombe, J. noted at para. 22 that the informational duty on police “includes an obligation on the police, if a detainee indicates that he or she does not understand the right, to facilitate an understanding.” Neither P.C. Lee nor P.C. Gudgeon testified that the applicant expressed any confusion or lack of understanding, and the applicant himself did not testify on the voir dire.

[80] Woollcombe, J. confirmed at para. 23, in accordance with Bartle that the second and third implementational duties “are not triggered unless the detainee indicates a desire to exercise his or her right to counsel.”

[81] The applicant did not initially express a desire to speak to counsel, but rather, in response to both readings of his rights to counsel by police, he requested to speak with his mother. In neither instance did he explain to police why he wished to speak to his mother, and specifically did not indicate that he wished to do so in order to obtain her assistance in contacting counsel of choice.

[82] At para. 25 Woollcombe, J. quoted from the decision of Barnes, J. in R. v. Cheema, 2018 ONSC 229 at para. 31 that “when a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the detainee made such a request.” Woollcombe, J. noted at para. 26 of Mumtaz that the decision in Cheema is consistent with a number of earlier appellate authorities, including R. v. Adams, [1989] O.J. No. 747 (C.A.) and R. v. Zoghaib, 2006 ONCA 209.

[83] The applicant further submits that he was not put in touch with Duty Counsel until approximately five hours after his arrival at the police station.

[84] In my view, the evidence does not support the submission that the police improperly delayed or suspended the applicant’s right to counsel. Lamer, C.J. stated at para. 19 of Bartle that:

Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended

[85] There was no clear evidence on the voir dire of when the applicant made a request speak to counsel. P.C. Gudgeon placed a call to Duty Counsel between 20:00 and 21:00. Prior to that, S.C. Santamaria made numerous attempts to contact the applicant’s mother in accordance with his specific requests, without success. He then set about to put the applicant in touch with another family member and at 21:05 the applicant spoke with his father.

[86] It is evident that Duty Counsel called back later in the evening in response to a message left by P.C. Gudgeon and the applicant spoke with Duty Counsel at 22:58 after which he spoke to his father again. Throughout the evening, S.C. Santamaria periodically checked on the applicant’s well-being in the cell block.

[87] In my view the case at bar is distinguishable from the case of R. v. Pino, 2016 ONCA 389 cited by the applicant in which it was found that the police had improperly delayed implementing the detainee’s rights to counsel for five hours after she had been placed alone in a cell. The police in Pino were found to have deliberately and routinely suspended implementation of the accused’s rights to counsel while they executed a search warrant of the accused’s residence. By contrast, the delay in putting the applicant in touch with counsel in the case at bar was occasioned by repeated attempts by police to contact a family member in accordance with his request.

[88] In the case of R. v. Rover, 2018 ONCA 745 Doherty, J.A. observed at para. 26 that the s.10(b) jurisprudence has always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. At para. 28 he quoted with approval from the case of R. v. Wu, 2017 ONSC 1003 the statement that “the assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination.”

[89] It is evident that the applicant did make a request to speak to Duty Counsel, thereby triggering the implementational duties on police, it is not clear from the evidence when that request was made. In any event, police did turn their mind to the specific circumstances of the case, and in particular the applicant’s two requests to speak to his mother, and they had reasonable grounds to justify any delay in putting him in touch with Duty Counsel while they sought to implement his request (see Rover at para. 33).

[90] In my view the applicant has not satisfied the onus on him of proving a breach of s. 10(b) of the Charter by police.

Analysis under s. 24(2) of the Charter

(a) Guiding Principles

[91] S. 24 of the Charter provides as follows:

(1) anyone whose rights or freedoms, as guaranteed by this Charter, had been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[92] The onus is on the applicant to establish on a balance of probabilities that the admission of the evidence seized by police would bring the administration of justice into disrepute.

[93] The purpose of s. 24(2) is to maintain the good repute of the administration of justice. The section does not focus on immediate reaction to an individual case, but rather 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 and 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 (see R. v. Grant, 2009 SCC 32 at paras. 67-68).

[94] The Supreme Court in Grant at para. 71 outlined three avenues of inquiry, namely:

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

(b) the impact of the breach on the Charter-protected interest of the accused; and

(c) society’s interest in the adjudication of the case on its merits

Stage One: The seriousness of the Charter-infringing state conduct

[95] The Supreme Court of Canada in R. v. Harrison, 2009 SCC 34 stated at para. 22 that at the first stage the court considers the nature of the police conduct that infringed the Charter and lead to the discovery of the evidence, particularly whether it involves misconduct from which the court should be concerned to dissociate itself. This will be the case where the departure from Charter standards was major in degree, or where the police knew, or should have known, that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[96] The Supreme Court in Grant observed at para. 74 that the state conduct resulting in Charter violations exists on a spectrum of 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, while at the other end, 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.

[97] The court went on to note that extenuating circumstances may attenuate the seriousness of police conduct that results in a Charter breach. Good faith on the part of the police will also reduce the need for the court to dissociate itself from the police conduct. However, the court stated that ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith.

[98] The applicant argues that the unconstitutional arrest and search of him and his belongings were flagrant and serious, and that the police conduct is rendered more serious by what he says is an apparent systemic misunderstanding of their powers to search incident to arrest.

[99] The Crown submits that there was no egregious misconduct or wanton disregard for the applicant’s Charter rights, and that any breaches that flowed from the officers’ conduct should be characterized as minor or understandable and not as reflecting bad faith.

[100] I am unable to accept the applicant’s position that P.C. Lee’s conduct in effecting the arrest and his and P.C. Gudgeon’s conduct in carrying out the search of the applicant’s person and satchel incident to arrest was so flagrant and serious as to call for the court to dissociate itself from it.

[101] P.C. Lee subjectively believed that he had reasonable and probable grounds to arrest the applicant. Indeed, his subjective belief was not challenged on cross-examination. In my view his decision to proceed with an arrest based upon the information that he had been provided by dispatch was an error in judgment, perhaps born out of his relative inexperience on the police force and on general patrol duties. Although the surrounding conditions such as the isolated location, the darkness and weather conditions, and the fact that the applicant did not respond initially when first summoned, were not sufficient to support a finding that the Crown has satisfied its onus of showing that the arrest was justifiable from an objective point of view, they do in my view represent extenuating circumstances that serve to attenuate the seriousness of police conduct. Although the Court in Grant, indicated at para. 75 that the need to prevent the disappearance of evidence may constitute extenuating circumstances, this example does not exclude all others. In short, although the circumstances described above do not excuse the Charter breach, they help to explain it and make P.C. Lee’s mistake understandable.

[102] In my view, P.C. Lee did act in good faith. He was attuned to the applicant’s Charter rights as exemplified by his immediate advice to the applicant of his rights to counsel and caution respecting his right to remain silent. Although the Supreme Court of Canada in Grant explained that negligence or wilful blindness cannot be equated with good faith, the terms negligence and wilful blindness are used in conjunction with one another in this context and inform each other. There is a difference, in my view, between negligence and an error in judgment.

[103] Once the decision was made by P.C. Lee to carry out the arrest, his initial search of the applicant represented a proper pat-down search incident to arrest. Although P.C. Gudgeon’s search of the applicant’s satchel may have gone beyond what was necessary and permissible and therefore tended more towards the serious end of the spectrum, his decision to carry out the search of the bag was made in good faith. As indicated above, the police must have in mind, when the search is conducted, one of the purposes for a valid search incident to arrest and must reasonably believe that this purpose may be served by the search that is undertaken. In my view P.C. Gudgeon reasonably believed that search of the bag was necessary to ensure the safety of the applicant and the officers, and to discover any means of escape.

[104] I am unable to find that the differences in P.C. Lee’s testimony at the preliminary inquiry and at the voir dire support an inference that he was seeking to mislead the court. The difference in his reason for not contacting P.C. Bossett is not material. The fact is that he did not contact him. His failure to further investigate to confirm the information he received from dispatch led to a finding of a breach of s. 9. With respect to his reasons for searching incident to arrest, he did not change his testimony – at trial he simply added to the two reasons he gave at the preliminary inquiry. As noted above, it is sufficient that police possess one of the reasons for a valid search incident to arrest.

[105] In my view, in considering this first line of inquiry, the admission of the evidence would not send a message that the justice system is somehow condoning serious state misconduct and that its admission would greatly undermine public confidence in the justice system (see R. v. Dymkowski, 2021 ONSC 8428, per Goodman, J. at para. 90). This factor weighs in favour of admission of the evidence.

Stage Two: The impact on the Charter-protected interests of the accused

[106] The Supreme Court of Canada in Harrison at para. 28 explained that the second factor looks at the seriousness of the infringement from the perspective of the accused, asking whether the breach seriously compromised the interests underlying the rights infringed or was the breach merely transient or trivial in its impact.

[107] The Court in Grant observed at para. 77:

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.

[108] The applicant submits that the impact of the Charter breaches on his protected interests was profound by subjecting him to being arrested and kept in custody.

[109] The Crown argues that the arrest and search of the applicant was minimally invasive and non-intrusive. It did not constitute a “gun-point takedown.”

[110] The Crown also relies on the principle of discoverability, arguing that the evidence was discoverable in any event if P.C. Lee had merely detained the applicant, as opposed to arresting him. The Crown relies on the case of R. v. Tsekouras, 2017 ONCA 290 at para. 112 as follows, per Watt, J.A.:

In assessing the actual impact of a breach on a Charter-protected interest of an accused, discoverability retains a useful role. The more likely that the evidence would have been obtained without the Charter-infringing state conduct, the lesser may be the impact of that Charter-infringing conduct on the underlying interests protected by the Charter right. The converse is also true: Grant, at para. 122. See also, Cole, at paras. 93 and 97. Of course discoverability is a double-edged sword. It may signal that the breach of the accused's right was less serious. But it also renders the state conduct more egregious as the evidence was "discoverable" without breaching the accused's Charter rights: R. v. Bains, 2014 BCCA 43, 306 C.C.C. (3d) 222 (B.C. C.A.), at para. 51; R. c. Côté, [2011] 3 S.C.R. 215, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 70-72.

[111] The applicant disputes that the principle of discoverability is relevant, arguing that the court cannot substitute what the police should have done for what they actually did. If the arrest would not have happened, but for the Charter breach, discoverability is not relevant.

[112] In my view, the principle of discoverability is of limited assistance in an assessment of the impact of the Charter breaches arising from the unlawful arrest and resultant search in the case at bar, both because of the double-edged sword aspect of the principle and that the court cannot determine with confidence whether the evidence would have been discovered in the absence of the unlawful arrest. Had P.C. Lee contacted P.C. Bossett and been informed that the applicant had not been a driver of one of the vehicles, it is possible that neither an investigative detention nor an arrest may have taken place. In this respect, the following comments of the majority in Grant at para. 122 are important:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.

(Underlining added)

[113] Although the arrest and the search were not invasive, it did have an impact on the applicant’s Charter-protected right to freely move in the community, free of state interference. By being placed under arrest, placed in a police cruiser and kept in custody, his dignity was adversely impacted.

[114] Although not on the most serious side of the spectrum, I find that consideration of the second factor weighs against admission of the evidence.

Stage Three: Society’s interest in the adjudication of the case

[115] As confirmed in St. Clair (C.A.) at para. 48, the final prong of the Grant analysis “asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (see Grant at para. 79).

[116] The importance of the evidence to the Crown’s case is a relevant consideration as the majority explained in Grant at para. 83, as follows:

The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[117] As noted in Harrison at para. 34, where critical evidence of drugs obtained as a consequence of Charter breaches was highly reliable and virtually conclusive of guilt on the offence charged, “the evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial.”

[118] At para. 79 of Grant the majority stated that the inquiry at the third stage reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.” Therefore, a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[119] At para. 82 the majority emphasized that the Court must ask itself “whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.”

[120] The Supreme Court in Harrison at para. 34 cautioned that the seriousness of the charged offence must not take on disproportionate significance, as, while the public has a heightened interest in seeing a determination on the merits when the offence charged is serious, it also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high.

[121] The Court of Appeal in St. Clair recently approved the observation of Campbell, J. in the trial decision that it is “important to recall… that the City of Toronto and the greater Toronto area continued to be troubled by gun violence and drug trafficking - offences which seem all too frequently to be committed in tandem, and often with tragic results.” The Court saw no basis to interfere with the trial judge’s finding that “the exclusion of reliable evidence essential to a prosecution of various serious offences, would bring the administration of justice into disrepute, and that this factor favours the admission of the cocaine, the ammunition, the magazine, and the handgun.”

[122] To similar effect, Goodman, J. in Dymkowski stated as follows at para. 99:

…there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. This is particularly crucial as the drugs in this case is cocaine and fentanyl or a fentanyl mixture. It is crystal clear that fentanyl is a scourge on society. No doubt, its impact is devastating, not to mention potentially deadly. In this case, it cannot be said that the evidence of the drugs is of marginal value.

[123] I remind myself of the admonition from Harrison that the seriousness of the charges against the applicant is not to be given disproportionate significance. Nevertheless, the societal interest in having the scourge of the criminal opioid trade addressed by the fair and just prosecution of those involved in it according to the rule of law, is an important consideration at the third stage of the s. 24(2) analysis.

[124] The drugs, the weapon and the currency seized as result of the search of the applicant are real and highly reliable evidence, are essential to the Crown’s case, and are conclusive of the guilt of the applicant to all of the charges, if found to be admissible.

[125] I find that the truth-seeking function of the criminal trial process would be better served by admission of the evidence, and therefore find that consideration of the third factor from Grant favours inclusion of the evidence.

Balancing

[126] After considering all three stages of the Grant analysis the court is tasked with weighing the various indications. At para. 86 of Harrison, the Supreme Court described the balancing exercise as follows:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[127] The Charter-infringing conduct of the police was not at the serious end of the spectrum and was not such that the court is compelled to dissociate itself from it. Although the impact on the Charter-protected interests of the applicant was real and not to be readily discounted, it similarly did not rest at the most serious end of the spectrum. I have found that the truth-seeking function of the criminal trial process would be better served by admission of the evidence.

[128] In assessing the long-term repute of the administration of justice, I find that the applicant has not discharged his onus of showing on a balance of probabilities that the evidence obtained by the police as result of the search should be excluded from his trial pursuant to s. 24(2) of the Charter.

Disposition

[129] The application is therefore dismissed.

D.A. Broad, J.

Date: March 4, 2022