Her Majesty the Queen v. Dunkley

[Indexed as: R. v. Dunkley]

Ontario Reports

Court of Appeal for Ontario,

Watt, Lauwers and Hourigan JJ.A.

August 4, 2016

31 O.R. (3d) 721 | 2016 ONCA 597

Case Summary

Charter of Rights and Freedoms — Search and seizure — Car "apparently abandoned" — Inventory search — Police officers having reasonable grounds to suspect that accused was casing gas stations — Accused fleeing on foot and leaving his unlocked vehicle behind when officers tried to detain him for investigation in parking lot — Officers searching car for identification, opening bag and finding Taser and firearm — Vehicle not "apparently abandoned" within meaning of Highway Traffic Act — Search not authorized as inventory search under Highway Traffic Act — Search violating accused's rights under s. 8 of Charter — Violation serious and having significant impact on accused — Admission of evidence of Taser and handgun found in vehicle would bring administration of justice into disrepute being ordered excluded — Evidence insufficient without excluded evidence and accused acquitted — Canadian Charter of Rights and Freedoms, ss. 8, 24(2) — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 221(1)

Charter of Rights and Freedoms — Search and seizure — Search as incident of investigative detention — Police officers having reasonable grounds to suspect that accused was casing gas stations — Accused fleeing on foot and leaving his unlocked vehicle behind when officers tried to detain him for investigation in parking lot — Officers not conducting valid search incident to investigative detention when they searched car for identification as search was not related to officer safety concerns — Search violating accused's rights under s. 8 of Charter — Violation serious and having significant impact on accused — Admission of evidence of Taser and handgun found in vehicle would bring administration of justice into disrepute — Evidence ordered excluded and accused acquitted as insufficient evidence without excluded evidence — Canadian Charter of Rights and Freedoms, s. 8 — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 221(1).

The accused was charged with firearms offences. Two police officers observed the accused entering and leaving the kiosk at a gas station several times without buying anything. After apparently seeing the officers, the accused got in his car and left the gas station at a high rate of speed. He engaged in a common counter-surveillance technique before pulling into the parking lot of another gas station. The officers ran a computer check and discovered that the accused was on probation for robbery. Suspecting that he was casing gas stations, the officers approached the accused to detain him for investigation. The accused fled on foot, leaving his unlocked car behind. The officers searched the car for identification and found a Taser and a handgun. The accused's application to exclude that evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms was dismissed. The trial judge found that the police were entitled to seize the accused's apparently abandoned car under s. 221(1) of the Highway Traffic Act and to conduct an inventory search that would have ultimately led to the discovery of the evidence. He also concluded that he would not have excluded the evidence under [page722] s. 24(2) of the Charter even if he had found that the search violated the accused's rights under s. 8 of the Charter. The accused appealed. Held, the appeal should be allowed.

In the circumstances, the officers had reasonable grounds to suspect that the accused was casing gas stations. They were justified in detaining him for investigation. The search of the vehicle was not authorized at common law as a search incident to a lawful investigative detention, as it was not related to any officer safety concerns. The vehicle was not "apparently abandoned" within the meaning of s. 221(1) of the Highway Traffic Act. It was parked in the parking lot of a commercial establishment. When the accused parked the vehicle, there was no indication that he believed that the officers had followed him. He did not park the car intending to abandon it and flee the police. The accused's flight when he saw the officers could be consistent with abandonment but, without more, it could not be concluded that he intended to abandon the vehicle. The trial judge erred in concluding that the search of the vehicle was authorized under s. 221(1) of the Highway Traffic Act. The search violated the accused's rights under s. 8 of the Charter.

The trial judge erred in stating that evidence in relation to the possession of an unauthorized firearm should not be excluded except in the case of the most serious breach of an accused's Charter rights. The test for the exclusion of firearms is the same as the test for the exclusion of other evidence. The violation was at the more serious end of the spectrum and had a significant impact on the accused's Charter-protected interests. The Taser and the handgun were reliable and objective pieces of evidence, and the Crown's case could not proceed if they were excluded. On balance, admission of the evidence would bring the administration of justice into disrepute and evidence being excluded. Without the excluded evidence, the charges could not be proven and the accused is ordered acquitted.

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124, apld

Other cases referred to

R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 155 D.L.R. (4th) 19, 221 N.R. 281, [1999] 4 W.W.R. 303, J.E. 98-217, 123 Man. R. (2d) 208, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1, 48 C.R.R. (2d) 189, 37 W.C.B. (2d) 81; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, J.E. 87-516, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, [1987] D.L.Q. 416, 15 W.C.B. (2d) 387; R. v. DeBot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, 102 N.R. 161, J.E. 90-12, 37 O.A.C. 1, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129, 45 C.R.R. 49, 8 W.C.B. (2d) 803, affg 1986 113 (ON CA), [1986] O.J. No. 994, 17 O.A.C. 141, 30 C.C.C. (3d) 207, 54 C.R. (3d) 120, 26 C.R.R. 275, 17 W.C.B. 398 (C.A.); R. v. Ellis, [2016] O.J. No. 4111, 2016 ONCA 598; R. v. Fountain, [2015] O.J. No. 2509, 2015 ONCA 354, 20 C.R. (7th) 371, 335 C.R.R. (2d) 35, 324 C.C.C. (3d) 425, 123 W.C.B. (2d) 244; R. v. Harflett, [2016] O.J. No. 1812, 2016 ONCA 248, 28 C.R. (7th) 54, 348 O.A.C. 173, 336 C.C.C. (3d) 102, 130 W.C.B. (2d) 159; R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, 309 D.L.R. (4th) 87, 245 C.C.C. (3d) 86, EYB 2009-161618, J.E. 2009-1377, 66 C.R. (6th) 105, 193 C.R.R. (2d) 74, 391 N.R. 147, 253 O.A.C. 358; R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 2004 SCC 52, 241 D.L.R. (4th) 214, 324 N.R. 215, [2004] 11 W.W.R. 601, J.E. 2004-1495, 187 Man. R. (2d) 1, 185 C.C.C. (3d) 308, 21 C.R. (6th) 1, 122 C.R.R. (2d) 189, REJB 2004-68801, 62 W.C.B. (2d) 516; R. v. McGuffie, [2016] O.J. No. 2504, 2016 ONCA 365, 28 C.R. (7th) 243, 336 C.C.C. (3d) 486, 348 O.A.C. 365, 130 W.C.B. (2d) 590; [page723] R. v. Nicolosi (1998), 1998 2006 (ON CA), 40 O.R. (3d) 417, [1998] O.J. No. 2554, 110 O.A.C. 189, 127 C.C.C. (3d) 176, 17 C.R. (5th) 134, 52 C.R.R. (2d) 265, 36 M.V.R. (3d) 125, 39 W.C.B. (2d) 132 (C.A.); R. v. Nolet, [2010] 1 S.C.R. 851, [2010] S.C.J. No. 24, 2010 SCC 24, 213 C.R.R. (2d) 52, 76 C.R. (6th) 1, 403 N.R. 1, 320 D.L.R. (4th) 1, 95 M.V.R. (5th) 1, EYB 2010-175730, 2010EXP-2088, 256 C.C.C. (3d) 1, J.E. 2010-1151, 350 Sask. R. 51, [2010] 8 W.W.R. 1; R. v. Peterkin, [2015] O.J. No. 100, 2015 ONCA 8, 326 C.R.R. (2d) 1, 328 O.A.C. 321, 319 C.C.C. (3d) 191, 119 W.C.B. (2d) 574; R. v. Plummer, [2011] O.J. No. 2034, 2011 ONCA 350, 272 C.C.C. (3d) 172, 279 O.A.C. 359, 85 C.R. (6th) 41, 234 C.R.R. (2d) 15, 95 W.C.B. (2d) 571; R. v. Polashek (1999), 1999 3714 (ON CA), 45 O.R. (3d) 434, [1999] O.J. No. 968, 172 D.L.R. (4th) 350, 118 O.A.C. 312, 134 C.C.C. (3d) 187, 25 C.R. (5th) 183, 62 C.R.R. (2d) 331, 48 M.V.R. (3d) 174, 42 W.C.B. (2d) 6 (C.A.); R. v. Wint (2009), 93 O.R. (3d) 514, [2009] O.J. No. 212, 2009 ONCA 52, 244 O.A.C. 324, 184 C.R.R. (2d) 57 [Leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 164, 399 N.R. 397n]

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 24(2)

Criminal Code, R.S.C. 1985, c. C-46, s. 495 [as am.]

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 221, (1)

APPEAL by the accused from the convictions entered by M.L. Edwards J., [2014] O.J. No. 648, 2014 ONSC 399, 302 C.R.R. (2d) 183 (S.C.J.).

Breana Vandebeek, for appellant.

John Patton, for respondent.

The judgment of the court was delivered by

HOURIGAN J.A.: —

Overview

[1] This is one of two appeals heard together that consider the interaction between the authority of the police to conduct an inventory search of a vehicle impounded pursuant to s. 221(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA") and the right under s. 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure.

[2] The background facts may be summarized as follows. Two detectives suspected that the appellant was casing gas stations for a robbery. They wanted to detain him for investigative purposes but, when they identified themselves to him, he ran away. One of the detectives searched the car the appellant left behind and found a handgun and a Taser. The appellant was located and charged with several firearms offences. At trial, the appellant applied to have the handgun and Taser excluded under s. 24(2) of the Charter on the basis that the warrantless search of his car violated s. 8 of the Charter. [page724]

[3] The trial judge found that the officers had reasonable grounds to detain the appellant and reasonable grounds to conduct the search of his car. Further, the trial judge accepted that the appellant had abandoned his vehicle within the meaning of s. 221(1) of the HTA and that the police therefore had authority to conduct an inventory search of the vehicle. In the event he was wrong about the constitutionality of the search, the trial judge found that the gun and Taser should nevertheless not be excluded under s. 24(2) of the Charter.

[4] The trial judge convicted the appellant on all counts in the indictment.

[5] The appellant appeals his convictions, arguing that the trial judge erred in the following ways: (i) in finding that the police had reasonable and probable grounds to detain him; (ii) in holding that the police had common law authority to search his vehicle; (iii) in concluding that the detective had authority to search his vehicle pursuant to s. 221(1) of the HTA; and (iv) in concluding that, even in the event of a s. 8 breach, the gun and Taser should not be excluded under s. 24(2).

[6] For the reasons that follow, I would allow the appeal. B. Facts

[7] The appellant was filling his car with gas at a Petro-Canada gas station in Vaughan. Two plainclothes detectives (Kalonomos and Owens), driving an unmarked car and at the gas station for an unrelated reason, observed the appellant acting "suspiciously" inside the gas kiosk, exiting and re-entering the kiosk two or three times (the appellant says two; a detective say three). The detectives drove by the appellant's car to get his licence plate number. As the appellant exited the kiosk the last time, he made eye contact with one of the detectives, who testified that he thought they had "been made" (i.e., identified as police officers) at that time.

[8] The appellant then got in his car and pulled out of the gas station, at what both he and the detectives agreed was a high rate of speed. The detectives followed, suspicious of his activity at the gas kiosk and of his driving. The detectives ran the licence plate and the car came back registered to the appellant. At this time, they also learned that the appellant was on parole after a conviction for robbery involving a firearm.

[9] The detectives then watched the appellant turn into a McDonald's parking lot. They testified that they regarded this as a counter-surveillance manoeuvre. They parked at an Esso gas station located next to the McDonald's [page725] to avoid drawing attention to themselves. The appellant then left the McDonald's parking lot and pulled in to the same Esso parking lot where, unbeknownst to him, the detectives were parked. He parked his car and entered the Esso kiosk.

[10] When the appellant exited the Esso kiosk, the detectives approached him. Detective Kalonomos testified that he identified himself as a police officer and asked for the appellant's identification. The appellant backed away and then ran from the scene. The detectives gave chase, calling out, "Stop! Police!" but abandoned their pursuit after one of the detectives rolled his ankle. The appellant testified that he did not hear the detectives identify themselves as police officers.

[11] Detective Kalonomos returned to the appellant's car and opened the front door to look for identification. He testified that the car was unlocked; the appellant testified that he had locked the car as he was running away. The trial judge accepted Detective Kalonomos' version. Not finding any identification in the front seat, Detective Kalonomos looked in the back seat and saw a gym bag. Opening the rear side door and looking inside the gym bag, Detective Kalonomos saw what he believed to be a handgun. He radioed dispatch for assistance, gave a description of the appellant and indicated that he had observed a handgun in the car.

[12] Detective Kalonomos then proceeded with his search for identification. He looked inside a black laptop bag on the back seat and observed the butt end of a black handgun. At this point, Detective Kalonomos stopped his search for identification and the car was sealed awaiting judicial authorization for a more complete search.

[13] The appellant was located and arrested a short time later. His keys were later found in a green space behind a residential area. The appellant testified that he lost his keys while fleeing and did not intentionally dispose of them.

[14] A warrant was later issued for a search of the appellant's car. The search revealed a Taser and a Ruger handgun.

[15] The appellant's trial proceeded by way of blended voir dire. He applied to exclude the handgun and Taser under s. 24(2) on the basis that Detective Kalonomos' search of his car, prior to receiving a warrant, was unreasonable and in violation of s. 8.

C. Decision Below

[16] The position of the defence at trial was that the appellant had a reasonable expectation of privacy in his car, which he did not abandon when he fled the gas station. Nothing he did at the Petro-Canada station -- buying gas and a Pro-Line lottery ticket [page726] -- was illegal or suspicious. The appellant testified that, at the Petro-Canada station, he saw the plainclothes detectives and believed that they were his "enemies". He further testified that, when he saw the detectives later at the Esso station, he did not hear them identify themselves, and he ran away because he thought that they were after him.

[17] The Crown argued that the appellant had no reasonable expectation of privacy in his car. He ran from the scene, indicating that he did not want to be present when the car was searched and that he was attempting to distance himself from having possession and control of the car. He gave up the ability to regulate access to his vehicle by running away and throwing away his keys.

[18] The Crown argued in the alternative that, if the appellant did have a reasonable expectation of privacy, the police had the authority to conduct a search incident to an inevitable arrest or to conduct an inventory search of the abandoned vehicle under s. 221(1) of the HTA.

[19] While noting that the surveillance video from the Petro-Canada station revealed the appellant's actions were no different from any other customer, the trial judge accepted Detective Kalonomos' and Detective Owens' evidence that it was reasonable for them to be suspicious of someone exiting and entering the kiosk two to three times. Coupled with their conclusion that the appellant's activity inside the kiosk was suspicious, it was not unreasonable to investigate further. The police obtained information that the owner of the vehicle was on parole for robbery with a firearm. The appellant's leaving the gas station quickly and the "counter-surveillance manoeuvre" at McDonald's gave the detectives further reasonable grounds to suspect that the appellant was casing gas stations for a robbery.

[20] The trial judge was satisfied that Detective Kalonomos and Detective Owens had reasonable and probable grounds to detain the appellant for further investigation at the time he exited the Esso kiosk. When the appellant fled, Detective Kalonomos had reasonable grounds to conduct his search of the appellant's car to identify who had fled the scene.

[21] The trial judge also agreed with the Crown that the police were entitled to seize the appellant's apparently abandoned car under s. 221(1) of the HTA and thereafter to conduct an inventory search that would have ultimately led to the discovery of the gun and Taser.

[22] The trial judge proceeded to an analysis under s. 24(2) of the Charter and concluded that he would not have excluded the [page727] gun and Taser even if he had found a breach of the appellant's rights under s. 8. At the first stage of the analysis under R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, the trial judge noted that the warrantless search of a vehicle is a less serious breach of privacy that the warrantless search of a residence, cellphone or computer. He states, at para. 38, that he "would put the seriousness of the warrantless search of [the appellant's] vehicle at the low end of a moderate serious breach". At the second stage, he noted that the admission of the firearms would have a serious impact on the appellant, as he would be facing undoubted jail time given his prior conviction for robbery. Finally, at the last stage, he noted that evidence of the unauthorized possession of a firearm should not be excluded except in the most serious breach of an accused's Charter rights. Further, in a subsequent search conducted pursuant to the warrant that ultimately issued, police would have inevitably found the gun and Taser.

D. Issues

[23] This appeal raises the following issues:

(1) Did the police have reasonable and probable grounds to detain the appellant?

(2) Did the police have the common law authority to search the appellant's vehicle?

(3) Did the police have the authority to search his vehicle pursuant to s. 221 of the HTA? (4) Should the gun and Taser be excluded from the evidence pursuant to s. 24(2) of the Charter?

Analysis

Reasonable grounds for detention

[24] The police have the authority to detain a member of the public for investigative detention upon the formation of a reasonable suspicion that the individual is connected to an offence that has been or is being committed: R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 2004 SCC 52, at paras. 34, 45.

[25] In the present case, the appellant submits that the trial judge erred in concluding that he was detained. He submits that he was no suspension of his liberty because he immediately fled the scene.

[26] In the alternative, if he was detained, the appellant submits that the trial judge erred in considering only the subjective [page728] perspective of the officers and not the objective reasonableness of their grounds to suspect. The judge concluded that, viewed objectively, there was nothing nefarious about the appellant's conduct but noted that the reasonableness of the grounds should not be determined by an ex post facto assessment. The appellant argues that, when considering the objective reasonableness of the officers' grounds, the trial judge must consider the events as they actually unfolded and were recorded on the surveillance videotape. The fact that the officers did not see the video at the time is irrelevant to the objective branch of the test. According to the appellant, the judge's reasons also fail to disclose any analysis or a clear finding as to the officers' reasonable grounds to suspect that the appellant was connected to or had committed a specific criminal offence.

[27] I would reject these arguments.

[28] First, I see no error in the trial judge's conclusion that the appellant was detained when the officers approached him outside the gas station. The officers confronted the appellant for the purposes of their investigation and identified themselves. In reaction to that confrontation, the appellant chose to flee. Although the detention was only momentary, it was a detention nonetheless.

[29] Second, the trial judge did not err in concluding that the police had authority to detain the appellant as part of an investigative detention. In particular, it was not an error for the trial judge to focus on the officer's testimony about what they observed occurring at the Petro-Canada station. The surveillance video is of limited probative value given that it is taken from a different perspective and was not reviewed by the officers at the time.

[30] At the point at which the officers decided to approach the appellant, the evidence supported a reasonable suspicion that the appellant was in the process of casing gas stations. The police observed him exiting and re-entering the Petro-Canada kiosk. While inside, he moved around without purchasing anything. The officers believed that they had been identified as police when he exited the kiosk and the appellant left the parking lot at a high rate of speed. He then engaged in a common counter-surveillance technique in the MacDonald's parking lot. Having just gone to a gas station, the appellant then stopped at another gas station. The police officers obtained information at that stage that the appellant was on parole for robbery and firearms convictions.

[31] This was not a situation where the police stop a member of the public based on a generalized feeling that the individual is doing something wrong. This stop was not based on police [page729] hunches. These were two experienced detectives who observed a series of suspicious movements by the appellant. There were reasonable grounds to suspect that the appellant was casing gas stations.

Common law search

[32] Warrantless searches are presumptively unreasonable. The Crown has the burden of establishing on a balance of probabilities that such a search is reasonable. For a search to be reasonable under s. 8 of the Charter, it must be authorized by law, the law itself must be reasonable and the search must be carried out in a reasonable manner: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 10; R .v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 278 S.C.R.

[33] In order for a search to be authorized by law, it must meet three criteria. First, the state authority conducting the search must be able to point to a specific statutory provision or common law rule authorizing the search. Second, the search must be carried out in accordance with the procedural and substantive requirements that the law provides. Third, the search must not exceed its authorized scope: Caslake, at para. 12.

[34] The trial judge found that, when the appellant fled the Esso station, Detective Kalonomos had reasonable grounds to conduct the search to properly identify who had fled the scene. The trial judge does not state explicitly any common law justification for the search, but it appears to be upheld on the basis of a search incident to investigative detention as there is no reference in his reasons to the police having reasonable and probable grounds to arrest the appellant. For the sake of completeness, below I consider both search incident to arrest and search incident to investigative detention.

[35] The power to search incident to arrest arises from the fact of the arrest: Caslake, at para. 13. The three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial: Caslake, at para. 19. While this search power may be exercised prior to the arrest, the grounds for arrest must already exist at the time of the search: see R. v. Debot, 1986 113 (ON CA), [1986] O.J. No. 994, 30 C.C.C. (3d) 207 (C.A.), at p. 223 C.C.C., affd on other grounds 1989 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118; R. v. Polashek (1999), 1999 3714 (ON CA), 45 O.R. (3d) 434, [1999] O.J. No. 968 (C.A.), at p. 443 O.R.

[36] Here, the trial judge made no finding whether the police had reasonable and probable grounds to arrest the appellant at [page730] the time of the search. In my view, they did not. When they approached the appellant, they were still in the investigative stage. They had reasonable suspicion an offence had been or was being committed. However, in my view, even after the appellant fled, the police did not have the reasonable grounds required, within the meaning of s. 495 of the Criminal Code, R.S.C. 1985, c. C-46, to arrest him. On the available facts, taken at their highest, the officers had a reasonable suspicion. Therefore, the officers could not affect a search of his car pursuant to the power to search incident to arrest.

[37] The power to search pursuant to an investigative detention operates differently. It is rooted in concerns for officer and public safety: Mann, at para. 40; see, also, R. v. Plummer, [2011] O.J. No. 2034, 2011 ONCA 350, 272 C.C.C. (3d) 172, at para. 79. Our law has recognized that police officers who engage a member of the public in an investigative detention may take reasonable steps to protect their safety and the safety of the public. Therefore, the search power is much more limited than a search incident to arrest: Plummer, at para. 76. The search must be related to articulable safety concerns.

[38] In this case, the Crown cannot rely on this power to justify a search for identification after the appellant has fled the scene. The search of the car at that point had no nexus to a concern for officer or public safety directly arising out of an investigative detention.

[39] For these reasons, I conclude that the trial judge erred in concluding that there was common law authority to conduct the search.

(3) Search pursuant to s. 221(1) of the HTA

[40] Having found that there was no common law authority for the search, the analysis shifts to whether the search was conducted pursuant to a statutory power, here the power of the police to impound vehicles under s. 221(1) of the HTA. This provision states as follows:

(1) A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place.

(i) The governing legal principles

[41] In the companion case R. v. Ellis, [2016] O.J. No. 4111, 2016 ONCA 598, I reviewed in detail the development of the law regarding inventory searches. I will not repeat that analysis [page731] here but will highlight what I believe to be the current state of the law. The law may be summarized as follows:

(i) The Supreme Court has declined to decide if there ought to be an inventory search exception under s. 8 of the Charter for the protection of the accused's belongings, similar to an exception found in American law: Caslake, at para. 30.

(ii) In conducting a s. 221(1) inventory search, the police have a responsibility to keep impounded property safe. In order to fulfill that responsibility, they must have the authority to search and inventory the vehicle: R. v. Nicolosi (1998), 1998 2006 (ON CA), 40 O.R. (3d) 417, [1998] O.J. No. 2554 (C.A.), at paras. 29-30.

(iii) The fact that the police may also have been looking for a weapon while conducting an inventory search under s. 221(1) does not render the search unlawful: R. v. Wint (2009), 93 O.R. (3d) 514, [2009] O.J. No. 212, 2009 ONCA 52, at para. 11, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 164, 399 N.R. 397n.

(iv) In carrying out a s. 221(1) search, the police are not limited to itemizing visible property and have the authority to open bags or other containers in order to itemize the contents: Wint, at paras. 14-15.

(v) An inventory search is authorized by law where statutory authority for the search has been invoked (e.g., s. 221(1) of the HTA). The case law has been consistent that an inventory search of a vehicle will not be authorized by law and will therefore be unconstitutional where there is no statutory authority invoked for the search (e.g., when it is conducted pursuant to an internal police policy): R. v. Nolet, [2010] 1 S.C.R. 851, [2010] S.C.J. No. 24, 2010 SCC 24, at para. 53; Nicolosi, at para. 34; and Caslake, at para. 30.

(ii) Application to the facts

[42] The appellant submits that the circumstances of this case do not lead to the conclusion that he had abandoned his vehicle. He argues that the trial judge's logic stretches the meaning of s. 221(1) of the HTA well beyond its intended purposes. It cannot be that the state has an unfettered right to take into their custody vehicles parked on private property, particularly where there is no complaint from the owner of the property.

[43] The Crown submits that vehicle needs only be apparently abandoned; it is the police officers' perception that counts. [page732] Here, it was reasonable for the officers to conclude that the appellant had abandoned his vehicle, making impounding and an inventory search inevitable. The car's impounding was an unavoidable endgame after the flight of the appellant and the discarding of his keys. The police would have to take responsibility for the car and its contents.

[44] The determination of whether a vehicle has been apparently abandoned is fact-specific. In this case, the vehicle was parked in a parking lot at a commercial establishment. When the appellant parked the vehicle, there was no indication that he believed that the officers had followed him to that location. In other words, he did not park the car intending to abandon it and flee police.

[45] However, when the officers confronted the appellant, he took flight on foot. This could be consistent with abandonment but, without more, it is difficult to conclude that he intended to abandon his vehicle. This can be contrasted with the factual scenario in Ellis where, on the evidence, it was clear that the accused was fleeing police, that he parked his vehicle with the intention of distancing himself from it, and that he left it on a private driveway where he knew it could not legally remain.

[46] The only other piece of evidence consistent with abandonment was the fact that the keys had been discovered on the route the appellant took in fleeing the scene. That might be significant evidence had the police seen the appellant throw his keys away. They did not. Also, the keys were found after the appellant was arrested. Therefore, this evidence could not factor into their analysis of whether they had the right to seize and search the car as being apparently abandoned.

[47] In my view, the trial judge erred in concluding that the vehicle was apparently abandoned within the meaning of s. 221(1) of the HTA. The search was not authorized by law and constituted a breach of the appellant's s. 8 rights.

Section 24(2) analysis

[48] The appellant submits that the trial judge committed fundamental errors in his s. 24(2) analysis and that, given these errors, the trial judge's s. 24(2) analysis is not entitled to deference. In its place, he urges upon us the following analysis.

[49] Under the first stage of Grant -- the seriousness of the Charter-infringing conduct -- the officers' conduct here was flagrant. They acted on a hunch and, rather than wait for a warrant, they ignored the appellant's Charter rights in proceeding to search for "identification". This favours exclusion, following the [page733] Supreme Court's reasoning in R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34.

[50] Under the second stage of Grant -- the impact on the appellant's Charter-protected interests -- the impact here was significant. The vehicle belonged to the appellant, and there was nothing about the vehicle that suggested it was in violation of any law or regulation. Further, the weapons would not inevitably have been discovered since the officers would have required reasonable and probable grounds to obtain a warrant and these were not available on the facts.

[51] Under the third stage of Grant -- the public interest in adjudicating the case on its merits -- the appellant concedes the importance of the evidence to the Crown's case but argues that this is not the driving factor in the assessment. The seriousness of the offence must be considered in all of the circumstances.

[52] I accept the submission that the trial judge's s. 24(2) analysis is flawed. Particularly troubling is this statement, at para. 41: "[t]his is not one of those clearest of cases where the court should exclude the evidence of the firearms and grant a stay of the proceedings". That, of course, is not the test. The evidence must be excluded where its admission would bring the administration of justice into disrepute.

[53] Equally problematic is the trial judge's statement, at para. 39, that "evidence in relation to the possession of a firearm not authorized by law should not be excluded except in the most serious breach of an accused's Charter rights". This statement is contrary to R. v. Fountain, [2015] O.J. No. 2509, 2015 ONCA 354, 324 C.C.C. (3d) 425, where this court made clear that there is not a different test for admission where the impugned evidence is a firearm.

[54] Ordinarily, a trial judge's s. 24(2) analysis is entitled to significant deference provided that the trial judge considered the proper factors and did not make any unreasonable finding: R. v. Peterkin, [2015] O.J. No. 100, 2015 ONCA 8, 319 C.C.C. (3d) 191, at para. 75; Fountain, at para. 51. Given the errors in the analysis referenced above, I agree with the appellant that the trial judge's analysis is not entitled to deference and that it falls to this court to conduct the s. 24(2) analysis anew.

[55] Turning first to the seriousness of the Charter-infringing state misconduct, such infringements vary in seriousness. Inadvertent or minor violations of the Charter will have a minimal impact on public confidence in the rule of law, whereas evidence obtained through wilful or reckless disregard of Charter rights poses a very serious risk of bringing the administration of justice into disrepute. Such wilful or reckless disregard sends the [page734] message that courts "effectively condone state deviation from the rule of law": Grant, at paras. 72-75.

[56] There is no evidence of wilful misconduct on the part of the police officers; they had a reasonable suspicion sufficient to detain the appellant. That said, the officers were negligent in not waiting to obtain the warrant before beginning the search. Clearly, they understood this because after they began the search they stopped and made arrangements to obtain a warrant. This conduct cannot be categorized as inadvertent. It falls closer to the more serious end of the spectrum. Accordingly, it militates in favour of exclusion of the evidence.

[57] 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 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, thereby breeding public cynicism and bringing the administration of justice into disrepute: Grant, at paras. 76-78.

[58] This court noted in R. v. Harflett, [2016] O.J. No. 1812, 2016 ONCA 248, at paras. 47 and 48:

The case law has consistently held that drivers have a reduced expectation of privacy in their vehicles: see Caslake, at para. 15; Nicolosi, at para. 9. However, a reduced expectation of privacy does not mean that an unjustified search is permissible. As stated by McLachlin C.J. in Harrison, "[a] person in the appellant's position has every expectation of being left alone -- subject, as already noted, to valid highway traffic stops": Harrison, at paras. 31-32.

As Iacobucci J. noted in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 56, the impact of even a minimally intrusive search "must be weighed against the absence of any reasonable basis for justification".

[Emphasis in original]

[59] I concluded earlier there was no common law authority for the search, nor any basis for finding the vehicle to have been abandoned within the meaning of s. 221(1) of the HTA. This factor militates against admission.

[60] With respect to serving the truth-seeking function of the criminal trial process, society generally expects that a criminal allegation will be adjudicated on its merits. The reliability of the evidence is a significant factor in this line of inquiry, but any suggestion that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter. The importance of the evidence to the Crown's case is also a factor at this stage: Grant, at paras. 79-83. [page735]

[61] This factor militates in favour of admission. The Taser and handgun are reliable and objective pieces of evidence. The Crown's case could not succeed if they were excluded. At para. 83 of Grant, the court noted that "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".

[62] If the evidence were admitted, the appellant could still try to raise a reasonable doubt about his possession of the handgun. Indeed, at trial, he did just that, testifying that an associate named "Frenchie" had left the bag in his vehicle.

[63] That said, as this court pointed out in Harflett, echoing many other decisions, the third Grant factor cannot be used to systematically require the admission of reliable evidence obtained in plain disregard of an accused's Charter rights. In R. v. McGuffie, [2016] O.J. No. 2504, 2016 ONCA 365, Doherty J.A. made the following observation, at para. 63:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[64] As I explained above, given the errors made by the trial judge, his weighing of the s. 24(2) factors is not entitled to deference. In balancing all of the factors, I conclude that the admission of the evidence would bring the administration of justice into disrepute. The police acted negligently albeit not wilfully, but the impact on the accused's rights was significant. I would exclude the evidence.

Disposition

[65] For the reasons given, I would allow the appeal and exclude the evidence obtained in violation of the appellant's Charter rights. Because the evidence in question was essential to the Crown's case, rather than order a new trial, I would enter an acquittal on all counts, as the Supreme Court did in Harrison.

Appeal allowed.

[page736]

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