COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Daley, 2016 ONCA 564

DATE: 20160713

DOCKET: C61400

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angel Elizabeth Mae Daley

Appellant

Erin Dann, for the appellant

Jeanette Gevikoglu, for the respondent

Heard: July 6, 2016

On appeal from the conviction entered on September 16, 2015 by Justice Russell M. Raikes of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant appeals her conviction for possession of fentanyl for the purpose of trafficking.

Background

[2] On April 11, 2014, the appellant attended a Money Mart in Sarnia and attempted to pawn some jewellery. Another woman who was with the appellant, Sharon Stockton, stayed in the appellant’s car. The employee of the store called the police as the jewellery bore some resemblance to photos of stolen jewellery he had seen in an OPP flyer.

[3] The police arrived and the appellant was detained in the store for approximately 40 minutes without being advised of her right to counsel. In response to a question from the police, the appellant informed them she had arrived by car and directed their attention to the parking lot.

[4] Another police officer arrived at the scene and approached Ms. Stockton, who was still sitting in the appellant’s car. When she reached into her purse for ID, the police officer saw a piece of jewellery that he thought resembled one in the OPP flyer. He arrested Ms. Stockton and searched the appellant’s car. He found two purses in it, which he also searched. In one of the purses, he found a knife. After the appellant identified it as her purse, he arrested her for possession of a prohibited weapon. During her arrest, he searched her person and found seven fentanyl patches in her jacket pocket. The appellant was charged with possession of fentanyl for the purpose of trafficking.

Trial Decision

[5] At trial, the appellant argued that the fentanyl should be excluded because her ss. 8, 9, and 10(b) rights under the Canadian Charter of Rights and Freedoms had been violated.

[6] The trial judge agreed that the appellant’s s. 10(b) rights had been violated. He found that the failure of the police to caution the appellant and advise her of her right to counsel was “patent” and that there was “no excuse for it.” However, he did not conduct a s. 24(2) analysis because he found that the violation did not impugn the subsequent searches.

[7] The trial judge held there was no s. 9 breach because the appellant’s detention was not arbitrary, except to the extent she was not advised about her right to counsel.

[8] With respect to s. 8, the trial judge held that the officer had sufficient grounds to arrest Ms. Stockton and that the search of the purse, incident to Ms. Stockton’s arrest, was reasonable.

Issues

[9] The appellant argues that the trial judge erred by: (1) requiring a causal connection between any s. 10(b) violation and the obtaining of evidence, (2) concluding her s. 9 rights had not been violated, and (3) concluding her s. 8 rights had not been violated. She further argues that the fentanyl should be excluded from the evidence pursuant to s. 24(2) of the Charter.

Analysis

(a) Section 10(b)

[10] The appellant argues that the trial judge erred in declining to conduct a s. 24(2) analysis as a consequence of the s.10 (b) violation. We agree that the trial judge proceeded under the mistaken belief that the appellant had to demonstrate a causal connection between a breach and the obtaining of evidence.

[11] In order to trigger the s. 24(2) analysis, all the appellant had to demonstrate was that the evidence sought to be excluded was “obtained in a manner” that infringed her Charter rights. This does not require that the violation cause the police to obtain the evidence, only that there be a nexus or connection between the two. In this case, there was a clear temporal and contextual connection between the violation of the appellant’s s. 10(b) rights, the discovery of the knife in her purse, and, ultimately, the discovery of the fentanyl.

(b) Section 9

[12] Turning to the alleged s. 9 violation, the trial judge held that despite the failure to provide the appellant with her s. 10(b) rights during the 40-minute investigative detention, the detention was not arbitrary. He concluded:

In my view, in the circumstances of this case, 40 minutes is not so long a detention to be arbitrary, given the pieces of jewelry, the number of them, and the quality of the flyer that they were trying to compare to.

[13] The problem with this conclusion is that there was no evidence at trial regarding the number of the pieces of jewellery. There was also no basis on which to make an objective assessment of this issue because the flyer was not introduced into evidence.

[14] The evidence about the activities of the police officers in the store was limited to the officers’ testimony that they spent an unspecified portion of their time in the store comparing an unspecified number of pieces of jewellery to the flyer. In our view, the lack of explanation regarding what occurred at the store coupled with the failure of the officers to give the appellant her s.10 (b) rights over the course of 40 minutes made the detention arbitrary.

(c) Section 8

[15] The trial judge found that the police officer saw a piece of jewellery in Ms. Stockton’s purse that resembled one of the pieces he had just observed in the OPP flyer. The officer testified that he did not arrest Ms. Stockton so that he could search the appellant’s car but because he thought the information rose to the level of reasonable and probable grounds to believe she had committed an offence. It was open to the trial judge to accept this evidence and conclude that the officer had reasonable and probable grounds for arresting Ms. Stockton.

[16] The subsequent search of the appellant’s purse was also reasonable, as a search incident to Ms. Stockton’s arrest. The purse was immediately beside Ms. Stockton and it was open. The police officer was entitled to search it for evidence of the offence, weapons, or means of escape – i.e. for contraband that Ms. Stockton might have disposed of there. Thus, the search was connected to the reason for the arrest. Accordingly, there is no basis to interfere with the conclusion that the search did not violate the appellant’s s. 8 rights.

(d) Section 24(2)

[17] As noted above, the trial judge did not conduct a s. 24(2) analysis and thus it falls to this court to conduct the analysis mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[18] The nature of the state conduct in this case militates in favour of exclusion. The breach of s. 10(b) was “patent” and unexplained – in an area of law that is not complex or unsettled. These were not minor or inadvertent breaches of ss. 9 and 10(b). There were no extenuating circumstances to explain or attenuate the seriousness of the officers’ conduct. Overall, the police conduct in this case demonstrated a disregard for well-established Charter rights.

[19] The next issue is the impact of the breach on the Charter protected interests of the appellant. The impact of a breach may range from “fleeting and technical” to “profoundly intrusive”: Grant, at para. 76. The impact on the appellant’s Charter rights was substantial. The arbitrary detention was not fleeting. The appellant was detained for 40 minutes and never advised of her right to counsel. Furthermore, it is at least possible that what followed – talking to Ms. Stockton in the appellant’s car, her arrest, the search of the car and purse, the discovery of the knife, and the appellant’s own arrest – might not have occurred but for this violation. That said, the detention was minimally intrusive and she was not searched incidental to her detention. On balance, this factor militates in favour of the exclusion of the evidence.

[20] Turning to the truth-seeking function of the criminal trial process, society has an interest in the prosecution of persons who possess narcotics for the purpose of trafficking. Fentanyl is a very dangerous drug. The exclusion of this reliable and objective evidence would defeat the prosecution’s ability to prove the case against the appellant and would undermine the truth-seeking function of the justice system. Thus, the third inquiry favours the admission of the evidence.

[21] In balancing the three factors, we are of the view that the admission of the evidence would bring the administration of justice into disrepute. The conduct of the police in failing to provide the appellant with her s. 10(b) rights over the course of 40 minutes while they conducted an investigation was serious. The impact on the appellant’s Charter-protected rights was substantial. In our view, these factors outweigh the third factor in the Grant analysis.

Disposition

[22] Accordingly, for the foregoing reasons, we would exclude the fentanyl from the evidence. Given its exclusion, the conviction cannot stand and must be quashed. The appeal is allowed.

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”