COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bruyere, 2012 ONCA 329

DATE: 20120517

DOCKET: C49833

Doherty, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicolaas Bruyere

Appellant

Jonathan Dawe, for the appellant

Lucas Price, for the respondent

Heard and released orally: May 10, 2012

On appeal from the conviction entered on June 25, 2008 and the sentence imposed on November 21, 2008 by Justice J.F. McCartney of the Superior Court of Justice.

ENDORSEMENT

[1] The trial judge found that the appellant was arbitrarily detained at the roadside and that the search of his vehicle which led to the discovery of the cocaine was unreasonable. The trial judge, however, declined to exclude the evidence under s. 24(2). The appellant was convicted of three drug related offences. He appeals.

[2] The appellant argues that while the trial judge correctly found that his constitutional rights were violated, he erred in not excluding the evidence. The appellant also makes a separate argument in respect of one of the convictions. We see no merit to that ground and do not propose to address it.

[3] In response, the Crown argues that the trial judge erred in holding that the appellant’s rights were violated, but that in any event, he correctly refused to exclude the evidence.

I

the alleged Charter breaches

[4] The trial judge found that Officer Cowles did not have sufficient grounds to justify the investigative detention of the appellant and his passenger at the roadside. Cowles had followed a vehicle that was driven by the appellant from a hotel. There were two persons in the vehicle. Cowles could not identify either man. He instructed another officer to pull the appellant’s vehicle over as it headed toward Fort Frances on the TransCanada Highway. Cowles suspected that one of the occupants in the vehicle was a man named Hyatt. Cowles had received information from Sergeant Hill to the effect that Hyatt had just completed a drug transaction at the hotel and was couriering the drugs back to Fort Frances. The appellant had not been identified as having any involvement in this transaction.

[5] The evidence on the voir dire into the constitutionality of the stop came primarily from Officer Cowles and Detective Hill. Their evidence conflicted on several points and was unclear on others.

[6] The trial judge ultimately approached the constitutionality of the search as depending on whether Cowles had reasonable grounds to suspect that Hyatt was in the vehicle when he ordered it stopped. The trial judge referred to the parts of Cowles’ evidence which could support the existence of that suspicion. He ultimately concluded, however, that Cowles’ evidence, considered in its totality, did not provide a basis for a reasonable suspicion. The trial judge described Cowles as “not having anything more than a hunch”.

[7] The trial judge did not misapprehend the evidence and on this record we see no basis upon which we can reverse the trial judge’s finding of fact.

[8] The Crown argued that Sergeant Hill, the officer in charge of the investigation, who was not actually at the scene of the detention, but who was providing information to Cowles, did have sufficient grounds to justify the detention of the appellant. Crown counsel argues that Hill’s reasonable suspicion rendered the detention constitutional under s. 9, even if Cowles did not have reasonable grounds to suspect that Hyatt was in the car.

[9] We need not decide whether Hill’s beliefs and the grounds for those beliefs were relevant to the constitutionality of the detention of the appellant at the roadside. Assuming that his belief and the grounds for that belief were relevant, on the evidence, Hill was in no better position than Cowles to come to any conclusion as to whether Hyatt was in the vehicle. Ultimately, the reasonableness of the detention and the constitutionality of the stop turned on whether there were reasonable grounds to suspect that Hyatt was in the vehicle.

[10] Consequently, whether one looks at Cowles’ grounds for detaining the vehicle, Hill’s grounds for detaining the vehicle, or combines the two, the result is the same. The stop was arbitrary in that there were no reasonable grounds to suspect that Hyatt was in the vehicle before the officers stopped the vehicle. The evidence discovered in the search of the vehicle which followed immediately after the identification and arrest of Hyatt constituted evidence obtained in a manner that infringed the appellant’s rights under s. 9 of the Charter.

II

the admissibility of the evidence under section 24(2)

[11] The trial judge applied the Collins test to the admissibility of the evidence having found a breach of the Charter: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. We are invited to re-examine the admissibility of the evidence under s. 24(2) using the formula set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.

[12] In assessing the admissibility under the approach outlined in Grant, we are instructed to defer to the trial judge’s findings of fact: see R. v. Beaulieu, 2010 SCC 7, [2010] S.C.J. No. 7. Deference does not, however, mean that the findings of fact are unreviewable.

[13] Counsel for the appellant argues that the finding of exigent circumstances made by the trial judge is unsupportable on the law of exigent circumstances as most recently described in R. v. Kelsy, 2011 ONCA 605. We agree with this submission. The police had no safety concerns and they had no reasonable grounds upon which to believe that there were drugs in the car before they stopped the car and identified Hyatt as one of the occupants.

[14] The trial judge’s finding of exigent circumstances was an important consideration in his ultimate determination that the evidence discovered as a result of the unlawful detention was admissible. That finding must be set aside.

[15] Counsel for the appellant also challenges a second finding of fact made by the trial judge in his s. 24(2) analysis. The trial judge found that although Cowles did not have reasonable grounds to detain the appellant, Sergeant Hill, who was effectively in charge of the investigation, “likely had enough information to detain the vehicle in question on an investigative detention basis”. As indicated above, we see no basis upon which to conclude that Detective Hill had better grounds to stop the vehicle than did Officer Cowles. The trial judge used his finding of Sergeant Hill’s grounds to detain the vehicle to mitigate the unconstitutional stop. That finding, with respect, is unsupported by the evidence and should not have figured in the s. 24(2) analysis.

[16] This court will not defer to the trial judge’s analysis given the two errors described above. The question becomes – what should this court do?

[17] The court can either redo the s. 24(2) analysis using Grant and relying on the trial judge’s findings save those that are not supported by the evidence, or the court, having found error, can remit the matter for a new trial. In many ways, the former is the preferable approach. However, we are satisfied that on this record that approach is not available.

[18] On the trial judge’s approach, which turned exclusively on Officer Cowles’ beliefs, he did not have to address and resolve much of the conflicting evidence given by Officer Cowles and Sergeant Hill. This court does not have the benefit of any findings of fact in respect of that evidence. On the state of this record, we do not think the appellate forum is the appropriate one in which to make those findings. We are satisfied that the admissibility of the evidence must be determined in a trial forum in which the conflicting evidence can be properly assessed.

[19] The appeal is allowed, the convictions are quashed and a new trial is ordered on all counts.

“Doherty J.A.”

“Janet Simmons J.A.”

“H.S. LaForme J.A.”