CITATION: R. v. Bergauer-Free, 2009 ONCA 610
DATE: 20090810
DOCKET: C48403
COURT OF APPEAL FOR ONTARIO
Moldaver, Goudge and Armstrong JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Tristan Bergauer-Free
Appellant
Daniel A. Stein, for the appellant
Rosella Cornaviera, for the respondent
Heard: June 10, 2009
On appeal from conviction for possession of a loaded prohibited firearm dated December 13, 2007 by Justice Alan Bryant of the Superior Court of Justice, challenging an evidentiary ruling made by Justice John McIsaac of the Superior Court of Justice on October 5, 2007.
Moldaver J.A.:
Introduction
[1] The appellant Tristan Bergauer-Free appeals from his conviction for possession of a loaded prohibited firearm under s. 95(1) of the Criminal Code. At issue is the admissibility of a loaded handgun found in the trunk of his car. The appellant submits that the gun should have been excluded from evidence under s. 24(2) of the Charter because it was obtained in a manner that violated his Charter rights under s. 9 (arbitrary detention), s. 8 (unreasonable search and seizure) and s. 10(b) (right to retain and instruct counsel) and its admission would, in the circumstances, bring the administration of justice into disrepute.
[2] Justice McIsaac of the Superior Court of Justice disagreed. Following a three-day voir dire in which he heard evidence from both the Crown and the defence, he found that the appellant, having been advised of his rights to counsel, freely consented to the search of his trunk and thereby waived his right to be free from unreasonable search and seizure under s. 8 of the Charter. As such, even though the search may have been conducted at a time when the appellant was arbitrarily detained, the “search and seizure of the firearm and ammunition was not the product of any Charter breach” (emphasis in original).
[3] Alternatively, McIsaac J. held that if he was “wrong in [his] conclusion” about the s. 8 breach, he would nonetheless have admitted the gun under s. 24(2) of the Charter. In his view, even though the admission of the gun might “have some minor impact on trial fairness”, the Charter breaches were not egregious, the evidence obtained was reliable, the police did not act in bad faith, the crime “involved a loaded firearm” and the impugned evidence was “crucial to the Crown’s case”.
[4] For reasons that follow, I am respectfully of the view that McIsaac J. erred in concluding that the search of the appellant’s trunk was lawful and did not constitute a violation of his s. 8 rights. In view of that, McIsaac J.’s s. 24(2) conclusion is not entitled to the deference it would normally attract. And because I am unable to make the s. 24(2) determination on the existing record, I would allow the appeal, quash the appellant’s conviction and order a new trial. In consequence, I do not intend to detail the evidence called on the voir dire; rather, I propose to focus on those aspects which undermine the finding that the appellant consented to the search of his trunk and thereby waived his s. 8 Charter rights.
[5] Before turning to the evidence, I should explain the unusual procedural history of this matter.
Procedural History
[6] The search which led to the finding of the handgun in the appellant’s trunk occurred on May 10, 2006. It resulted in the laying of six gun and gun-related charges. On October 1, 2007, the appellant appeared before McIsaac J. in Newmarket, Ontario, and pleaded “not guilty” to those charges.
[7] On October 2, 2007, the appellant brought a pre-trial motion under s. 24(2) of the Charter to exclude the handgun from evidence. On October 5, 2007, after hearing two days of evidence and a third day of argument, McIsaac J. delivered the ruling that forms the basis of this appeal. The matter was then adjourned to be spoken to.
[8] Between October 5, 2007 and December 13, 2007, the parties forged an agreement whereby the appellant would be permitted to plead “not guilty” to one count of unlawful possession of a loaded prohibited firearm, in return for which, the Crown could read the underlying facts into the record without opposition. That way, the appellant could preserve his appeal rights while avoiding the necessity of a full-blown trial.
[9] Because McIsaac J. normally presides in Barrie, Ontario, the parties further agreed that for convenience, the single count indictment could be placed before Bryant J. in Newmarket and he would preside over the uncontested trial proceeding. That proceeding occurred on December 13, 2007 (with McIsaac J.’s knowledge and approval), and Bryant J. found the appellant guilty on the single count indictment. On May 1, 2008, the original six-count indictment that had been before McIsaac J. was placed before Bryant J., and at the Crown’s request, Bryant J. permitted it to be withdrawn. On May 21, 2008, Bryant J. sentenced the appellant.
[10] Hence, although it was Bryant J. who ultimately convicted and sentenced the appellant for the offence under appeal, the appeal turns on the October 5, 2007 ruling of McIsaac J. (hereafter “the motion judge”). I now turn to that ruling.
The Pertinent Evidence on the Voir Dire
[11] On May 10, 2006 at about 1:30 a.m., in the Town of Stouffville, Officer Basil Yousif stopped the appellant for proceeding through a red light. The appellant, then age 19, was accompanied by two of his friends. Upon request, the appellant produced his driver’s licence and registration. According to Officer Yousif, without being asked to do so, he also produced a military identity card. At the time, the appellant was a trooper with the Queen’s York Rangers of Aurora.
[12] Upon being questioned, the appellant stated that he lived nearby in Unionville but had become lost and was driving around trying to meet up with a friend. The officer described the appellant as fidgety, nervous and flustered and he asked him to step out of the vehicle. Officer Yousif was suspicious of the appellant because of his demeanour and several inconsistencies in his responses.
[13] Once outside the vehicle, the appellant started asking Officer Yousif questions about his service revolver. This was unique in the officer’s experience and it too served to heighten his suspicions.
[14] Officer Yousif asked the appellant if he had any drugs in the vehicle and the appellant said he did not. The officer then asked if he could search the vehicle and the appellant replied “no problem”. Officer Yousif followed up by asking if he could search the appellant’s trunk. The appellant replied “do you have a warrant” and the officer responded “do I need a warrant?”
[15] In cross-examination, Officer Yousif acknowledged that he wanted to see what was in the trunk because he was suspicious:
A. … due to the suspicion … I knew there was something – due to all the facts accumulated that led me obviously to my suspicion, I knew there was something there, but I just – I was not able to pinpoint it.
Q. Okay. So you … had a gut instinct something was in the vehicle but you just couldn’t pinpoint …
A. That’s correct. [Emphasis added.]
[16] After some further conversation, the contents of which Officer Yousif could not recall, he went to his police car and retrieved a “Consent to Search” form, which he read to the appellant. The form, a copy of which is included at p. 12 of the appeal book, sets out the rights of the person whose consent is sought, including the right to retain and instruct counsel, the right to refuse to consent, and the right to have the search terminated at any time upon request. The form envisages responses from the consentor as the various rights are read. Spaces are provided for the officer and/or the consentor to write out the respective responses and at the end, there is a place for the consentor and witnesses to sign.
[17] By way of illustration, the first line of the form reads as follows:
You have been charged or may be charged with ______________________________.
The form then continues with the standard instructions on the right to counsel, followed by two questions:
Do you understand?
REPLY: ________________________________
Do you wish to call a lawyer now?
REPLY: _________________________________
[18] In the instant case, the form was not filled out or signed. Officer Yousif testified that after reading the form aloud to the appellant, it was his intention to “give [the appellant] the consent form so he can write, in his own words, in his handwriting … so I can keep the reliability, integrity and continuity of the search”. That, however, proved unnecessary because according to Officer Yousif, “unfortunately … [the appellant] was cooperative, and said he knows his rights, and … opened the trunk”. Thereafter, to his regret, Officer Yousif neglected to have the appellant fill out the form.
[19] Inside the trunk, Officer Yousif observed a metal box with a combination lock. The appellant told him at first that the box contained personal belongings and then, after further questioning, stated that it contained a “dummy grenade” – later explained to be a paperweight-like object that could be purchased at any army surplus store. In order to ensure that the box did not contain a live explosive, Officer Yousif told the appellant to unlock the box. The appellant complied. Inside the box, among other items, the officer located a loaded .22 calibre handgun – the prohibited weapon that forms the basis of the charge under appeal.
[20] In cross-examination, the following exchange took place between Officer Yousif and defence counsel:
Q. Now … I am going to suggest to you that [the appellant] asked you for the warrant [to search the trunk], you responded, do I need one and he said, yes, and your ….
A. I don’t remember if he said yes or no, sir.
Q. Okay. You just don’t remember one way or the other?
A. That’s right.
[21] In further cross-examination, Officer Yousif acknowledged that after this exchange, he retrieved the “Consent to Search” form from his car and returned to the appellant. Defence counsel suggested to him that he did not read the form to the appellant, as he claimed, but that he handed the form to the appellant and told him to read it. Counsel further suggested that after a few moments, Officer Yousif took the form back and told the appellant to sign it. Officer Yousif denied both of those suggestions. That exchange, and the questions and answers flowing from it, are critical to the resolution of this appeal. Though lengthy, they bear repetition in full:
Q. Okay. And at that point you handed him the consent form, you told him to sign it, and he basically said, wait a sec. I have to read this – just let me finish.
A. Sure.
Q. I have to read this, and after a few moments you basically took the consent away from him and said, okay, sign it?
A. Absolutely not, sir.
Q. And at that point you started taking issue with the fact that he wouldn’t sign the consent form, and you mentioned something to the effect of canine units?
A. I mentioned something?
Q. You mentioned canine units, that we could get a canine unit to come here?
A. Yes, sir.
Q. Okay. So you did mention something about canine units …
A. Yes, I did.
Q. … coming here? Okay. So – ‘cause that’s not in your notes?
A. No, it’s not, sir.
Q. Okay. And can you just tell us, explain to us in what context the – the issue of canine units came up?
A. It’s – It’s because when he requested a warrant, and I said, do I need a warrant, and I said something to the effect of a canine unit and they’d be able to sniff out any drugs or weapons.
Q. Okay. ‘Cause if I suggest to you, at that point, the only way that sort of response by you makes sense is in this – if Mr. Bergauer-Free, sort of, said, yeah, I want you guys to get a warrant?
A. I don’t recall what he said.
Q. Okay. And your, sort of, response is, look, you know, if you want – if you want to make this hard for yourself we could get a canine unit down here and he’ll sniff out whatever’s inside this vehicle, words to that effect?
A. Fortunately, for us with York Region Police, I can enlist the – the assistance of other units that can help me better investigate the situation or the incident. And canine was available, yeah.
Q. Okay. But – but at this point Mr. – again, Mr. Bergauer-Free’s not being investigated for a specific crime?
A. No, he’s not.
Q. You have these suspicions that he’s not – he’s not being truthful what’s inside his vehicle?
A. That’s correct, sir.
Q. And – and he asked for a warrant, or he suggests that, you know, you should get a warrant if you want to search the back, the trunk …
A. That’s right.
Q. …right? And your response is your – I can get a canine unit down here?
A. That’s right.
Q. Okay. And would it be fair to say that your – the point of saying that to him is – is that, I’ll find out one way or the other what’s inside this vehicle?
A. Would it be fair to …
Q. That – that’s what’s going through your mind, that I’m going to find out one way or the other what’s inside this vehicle?
A. Well, sir, I knew there was something – something wrong. I knew – I knew there was something there. I just could not pinpoint it. And if I can enlist the assistance of canine to enable me to – in – in in attempts to assist me in investigating the scene and the vehicle, yes.
Q. This is a – okay, again, your response to my question is – is that the point of you saying that is that you’re going to find out one way or the other what’s inside this vehicle?
A. I was going to find out what was in the – in the trunk, yes.
Q. One way or the other?
A. Yes. [Emphasis added.]
[22] The appellant testified on the voir dire and took particular issue with Officer Yousif’s testimony concerning the “Consent to Search” form and the circumstances leading to the search of his trunk.
[23] According to the appellant, when Officer Yousif asked about searching the trunk, the appellant told him that he needed a warrant to do so. He agreed that Officer Yousif retrieved a “Consent to Search” form from his vehicle but denied that the officer read it aloud to him. Rather, he stated that he read it over several times and found some of the terminology confusing. He told the officer that he felt as though he was “pretty much giving [his] rights away” and did not know why he had to sign the form. The officer said “just sign, it makes things easier for both of us”. He also threatened to bring in the canine unit. When the appellant refused to sign, Officer Yousif took the form from him and said “listen … I can call canine, we can do this easy, or we can do this hard”. By this time, according to the appellant, four more police vehicles had arrived and he felt “blocked in” and “trapped in a corner”. In these circumstances, he capitulated by opening the trunk and the box containing the gun:
… I was trapped in. There were five police cars. There were several officers that were there. I’d been threatened with canine. He told me – he was, like, I can get canine here. He’d already made it quite clear that no matter what I did I wasn’t going to get out of there.
[24] In cross-examination, the appellant reiterated that it was a combination of factors that caused him to capitulate. Admittedly, the presence of five police cars weighed heavily on him. However, he could not say for sure whether he would have succumbed to the pressure had there only been two police cars present. He did, however, reiterate that Officer Yousif had been “aggressive in tone” with him and made it clear that “he wouldn’t let me go”.
[25] On the issue of the number of police cars present when the appellant opened the trunk, other testimony, including that of one of the appellant’s passengers, confirmed Officer Yousif’s evidence that only his car and one other police car were present on scene when the appellant opened the trunk.
[26] The motion judge accepted Officer Yousif’s evidence on this point and took particular note of it in determining that the appellant freely consented to the search of his trunk. I now turn to the motion judge’s ruling.
The Ruling
[27] As indicated, the motion judge provided alternative reasons for rejecting the appellant’s bid to have the handgun excluded from evidence. First and foremost was his determination that the search of the appellant’s trunk was lawful and that it did not constitute a breach of the appellant’s rights under s. 8 of the Charter.
[28] The motion judge’s conclusion on the s. 8 issue is found in the following paragraph of his reasons:
Assuming that the defendant was subjected to an arbitrary detention up to the point he consented to the search of his trunk, I am satisfied that he gave a full, free, and effective consent to that procedure …. The search and seizure of the firearm and ammunition was not the product of any Charter breach.
[29] As that passage indicates, for purposes of the s. 8 analysis, the motion judge was prepared to “assume” that the appellant was being arbitrarily detained, contrary to s. 9 of the Charter, “up to the point he consented to the search of his trunk”. That assumption accorded with the Crown’s position on the motion, although it did not go as far as the Crown was prepared to go. In its closing submissions on the motion to exclude the handgun, the Crown [not Ms. Cornaviera] conceded that the appellant was arbitrarily detained from the time Officer Yousif ordered him to step out of his car to the point when the appellant told the officer that there was a “dummy grenade” in the metal box.
[30] But the Crown’s concession did not stop there. It included a further concession that the search of the appellant’s trunk was unlawful and constituted a violation of his rights under s. 8 of the Charter, at least to the point where the appellant mentioned the “dummy grenade”. Although the Crown did not provide a reason for conceding the s. 8 breach, it seems obvious, as Ms. Cornaviera readily admitted in oral argument, that the Crown felt it could not show, on balance, that the appellant’s “consent to search” was voluntary and constituted a valid waiver. Hence, on the motion to exclude the gun, the Crown accepted that the gun had been obtained in a manner that violated the appellant’s rights under ss. 8 and 9 of the Charter; the issue of admissibility stood to be decided solely on the second branch of s. 24(2), that is, would the admission of the gun bring the administration of justice into disrepute.
[31] The motion judge, as was his right, refused to accept the Crown’s concession on the s. 8 breach. In refusing to give effect to it, he instructed himself on the authorities governing the validity of a consensual search, including this court’s decision in R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 and found that the appellant was:
• aware of the nature of the police conduct to which he was being asked to consent;
• aware of his right to refuse to permit the police to search his trunk;
• aware of his right to terminate the search once it had begun;
• aware of the potential consequences of giving his consent; and
• aware of his right to contact counsel, including free and immediate advice from the Ontario Legal Aid ‘Hotline’.
[32] Significantly, the motion judge based those findings – all of which were critical to his ultimate finding that the appellant freely consented to the search of his trunk – on his further finding that “all of that was brought home to the appellant when he read the Consent to Search form” (emphasis added). In so concluding, he appears to have accepted the appellant’s evidence – that the form was handed to him and he was asked to read it – over the evidence of Officer Yousif – that the officer read the contents of the form to him.
[33] Having made his findings on the appellant’s degree of awareness and knowledge of his rights, the motion judge turned to the appellant’s evidence and rejected the reasons given by him for “giving in” and consenting to the search of his trunk. In this regard, the motion judge found that there were only two police cars on scene when the trunk was opened, not five as the appellant claimed. Second, he found that if the appellant felt “trapped”, it had nothing to do with police coercion but “everything to do with his realization that he been caught virtually red-handed with an illegal handgun in his possession”. Third, he found that any fear the appellant might have had about the canine unit had nothing to do with his “being set upon by an Alsatian”; rather, it related to his concern that a dog would “ferret out [the prohibited handgun].” If Officer Yousif’s mention of the canine unit “created a sense of oppression” in the appellant, “it emanated from his own guilty mind and had nothing to do with the police pressure”.
[34] It followed, according to the motion judge, that because the impugned search was the product of the appellant’s fully informed consent, it was lawful and did not violate his s. 8 Charter rights.
[35] On the assumption that he might be “wrong” in his s. 8 analysis, the motion judge turned to the issue of exclusion under s. 24(2). Given my view that he erred in his s. 8 analysis, the motion judge’s conclusion under s. 24(2) is not entitled to the deference it would normally attract: see R. v. Grant, 2009 SCC 32 at para. 129. That being so, I do not intend to comment on it, especially since on my proposed disposition, it will be the sole issue for the presiding judge at the new trial and its outcome will largely depend on findings of fact that were either not made by the motion judge or if made, were the product of palpable and overriding errors.
[36] Accordingly, I propose to turn directly to the motion judge’s reasons for concluding that the appellant’s s. 8 Charter rights were not breached and explain why, in my respectful view, he erred.
Analysis
[37] There are two reasons why the motion judge’s s. 8 analysis cannot stand.
[38] First and foremost, he erred in his approach to the issue. Had he brought the proper considerations to bear, in my view, he could not reasonably have concluded that the appellant freely consented to the search of his trunk and thereby waived his s. 8 Charter rights.
[39] Second, on the analysis he did bring to bear, I am satisfied that he made at least two and possibly three palpable and overriding factual errors that were material to the issue of consent and marred his conclusion. Those errors are straightforward and I propose to address them now.
(a) Palpable and overriding factual errors
[40] The first factual error concerns the appellant’s degree of awareness of his rights. In concluding that the appellant freely consented to the search of his trunk, the motion judge found that the appellant fully appreciated his rights and had all the information he needed to provide a valid waiver. According to the motion judge, “all of that was brought home to [the appellant] when he read the Consent to Search form”.
[41] With respect, the evidence does not support that conclusion. Officer Yousif claimed that he read the “Consent to Search” form to the appellant. The motion judge apparently rejected that aspect of his evidence, finding instead that the appellant learned of his rights from reading the form. That finding accorded with the appellant’s testimony – but only partially. The appellant testified that although he read and reread the form, he was “slightly confused by some of the terminology that was in there”. In cross-examination, he was not challenged on this; moreover, no attempt was made to clarify what parts of the form he understood and what parts he did not.
[42] Bearing that in mind, and taking into account the appellant’s age, the time of night, the less than ideal circumstances under which he was expected to read and understand the form and the fact that the form was not filled out or signed, I fail to see how the motion judge could find, as he did, that the appellant was fully apprised of his rights and had all of the information he required to provide a valid waiver.
[43] One need only consider the first line of the form to appreciate why the appellant may have felt confused:
You have been charged or may be charged with _____
On his own evidence, Officer Yousif admitted that he had no reasonable basis for suspecting the appellant of any offence, apart from the traffic violation for which he had been stopped. In other words, the first line of the form had no application here – and there is nothing to indicate that Officer Yousif explained that to the appellant.
[44] By way of further illustration, while the form sets out the appellant’s rights to counsel, the record is silent as to any steps taken by Officer Yousif to ensure that the appellant truly understood his rights and chose to waive them. While Officer Yousif testified that the appellant told him that he “knew his rights”, he claimed that the appellant made that comment right after he had read the “Consent to Search” form to the appellant – a fact which the motion judge seems to have rejected. The only other evidence on the subject came from the appellant, who claimed that he found some of the terminology in the form confusing – hardly a basis for finding that he fully understood his rights.
[45] The second factual error relates to the motion judge’s rejection of the appellant’s evidence that he felt trapped and pressured into consenting to the search of his trunk. In so concluding, the motion judge found that to the extent he “may have felt trapped … this had nothing to do with improper police coercion and everything to do with his realization that he had been caught virtually red-handed with an illegal handgun in his possession”.
[46] With respect, to find on these facts that the appellant knew he “had been caught virtually red-handed with an illegal handgun in his possession” is, if not untenable, at very least a gross overstatement.
[47] The appellant was stopped for a routine traffic violation; he had no reason to expect that this would lead to a search of his trunk – and he was right. Officer Yousif conceded that he had no cause to search the appellant’s trunk and no basis for obtaining a warrant to do so. He readily acknowledged that he was acting on a “gut instinct” and that he had no reasonable basis for suspecting, let alone believing, that the appellant had a gun or any other form of contraband in his possession.
[48] To find in those circumstances that the appellant was caught “red-handed” because he knew he had an illegal handgun in his trunk is to turn the matter on its head. If anything, the circumstances support the appellant’s contention that he was not about to let the police search his trunk without a warrant and that he ultimately “gave up” because he felt he had no other choice.
[49] Finally, in rejecting the appellant’s evidence that he “gave up” because he felt pressured, the motion judge, having found that there were only two police cars on scene when the appellant opened the trunk, observed that:
He [the appellant] conceded that he would not have been overborne if there were only two cruisers present which was the case.
[50] With respect, the evidence relating to the appellant’s “concession” is somewhat murky and I am not satisfied, on balance, that he made it – at least not clearly, as the following interchange between the Crown and the appellant illustrates:
Q. Do you agree with me or disagree with me, would you have opened the trunk if all five vehicles were not there? If it was just two vehicles, would – if it was just Officer Yousif and Officer Corsi, you wouldn’t have opened the trunk, would you?
A. I haven’t …
Q. You – you’re …
A. … been in that situation. To be honest, I can’t answer that then. [Emphasis added.]
[51] Regardless, even if it could be said that at some point in his testimony, the appellant made the concession attributed to him, a fair reading of his testimony as a whole shows that the pressure he felt came from a constellation of factors, not merely the presence of five police cruisers. For convenience, I repeat his answer to the final question in-chief set out above at para. 23:
Q. Okay. In terms of, like, opening the trunk and opening the box, like, what was going through your mind at that point?
A. That I was trapped in. There were five police cars. There were several officers that were there. I’d been threatened with canine. He told me – he was, like, I can get canine here. He’d already made it quite clear that no matter what I did I wasn’t going to get out of there.
[52] That response leads directly to the overriding error made by the motion judge in his approach to and analysis of the s. 8 issue.
(b) Error in approach to and analysis of the s. 8 issue
[53] With respect, the motion judge failed to bring the proper considerations to bear in assessing whether the appellant’s “consent” was fully informed and meaningful. On this record, taking the Crown’s case at its highest, those preconditions could not, in my view, be satisfied.
[54] The appellant’s “consent” was not fully informed because Officer Yousif led him to believe that if he did not consent to the search of his trunk, he could be lawfully detained pending the arrival of the canine unit. That of course, was not accurate; on the contrary, it was misinformation. And that is the context against which Officer Yousif’s comment about bringing in the canine unit must be assessed.
[55] Leaving aside the fact that in the circumstances, any “search” carried out by the canine unit would itself have been unconstitutional (see R. v. Kang-Brown, [2008] S.C.C. 18), Officer Yousif had no lawful authority to hold the appellant for an additional moment beyond the time required to finalize the traffic ticket. Far from making that known to the appellant and giving him the choice to leave immediately, Officer Yousif led him to believe that he could be kept there pending the arrival of the canine unit. And he did so because he was not about to give up on his “gut instinct” that there was something in the trunk; rather, as he acknowledged, he was going to find out “one way or the other” what was in there.
[56] How, in these circumstances, the appellant’s purported consent could be said to be “fully informed” escapes me. Telling the appellant that the canine unit could be called in carried with it the connotation that he could be lawfully kept there until it arrived. That was misinformation, hardly the stuff that makes for a finding of “fully informed” consent. Standing alone, that would be sufficient to vitiate the appellant’s purported consent.
[57] On the facts of this case, however, the misinformation had the further effect of eviscerating any meaningful choice the appellant had available to him. Translated, the message he received from Officer Yousif was: - you can refuse to consent but it will do you no good because I will bring in the canine unit regardless. That amounts to what the United States Supreme Court referred to in Bumper v. North Carolina, 391 U.S. 543 (1968), as “colorably lawful coercion”. And, as Stewart J. for the majority observed at p. 550: “Where there is coercion, there cannot be consent”. I agree.
[58] Officer Yousif had no authority to hold the appellant while he brought in the canine unit. His erroneous representation to the contrary rendered the appellant’s right to withhold his consent illusory and effectively left him with no choice at all. In my view, that too vitiated his purported consent.
[59] It follows that on this record, taking the case for the Crown at its highest, had the motion judge brought the proper considerations to bear, he could not reasonably have concluded that the appellant fully consented to the search of his trunk and thereby waived his s. 8 rights. Accordingly, that finding cannot stand. Rather, the search of the appellant’s trunk amounted to a violation of his rights under s. 8 of the Charter.
Remedy
[60] As indicated, in view of my conclusion that the search of the appellant’s trunk was unlawful and constituted a violation of his s. 8 rights, the motion judge’s alternate determination that the handgun was admissible under s. 24(2) is not entitled to deference. While counsel for the appellant invited us to redo the s. 24(2) analysis and make our own determination, in my view, this is not an appropriate case to do so.
[61] Accepting that the handgun was obtained in a manner that breached the appellant’s rights under s. 8 and s. 9 of the Charter, it is open to question whether the appellant was made aware of his rights to counsel under s. 10(b) of the Charter before he opened the trunk. Without wishing to prejudge the outcome of the s. 24(2) motion at the new trial, that could be a significant factor in assessing the bone fides of Officer Yousif’s conduct and the overall seriousness of the s. 8 and s. 9 breaches and their impact on the appellant’s Charter-protected interests. Also, although Officer Yousif had no legal right in the circumstances to bring in the canine unit, the law on that subject was not entirely clear at the time of the incident and Officer Yousif’s understanding of it is not spelled out in the record. I am not in a position to make those and other assessments that will no doubt figure in the s. 24(2) analysis having regard to the Supreme Court’s recent decision in R. v. Grant, supra.
[62] Accordingly, I would allow the appeal, set aside the conviction and order a new trial.
Signed: “M. J. Moldaver J.A.”
“I agree S. T. Goudge J.A.”
“I agree Robert P. Armstrong J.A.”
RELEASED: “MJM” August 10, 2009