Court File and Parties

Court of Appeal for Ontario Date: 20231116 Docket: C70558

Between: His Majesty the King, Appellant

And: Stephanie Pereira, Respondent

Counsel: Jennifer Conroy and Meaghan Hourigan, for the appellant Marianne Salih and Sayeh Hassan, for the respondent

Heard and released orally: November 10, 2023

On appeal from the acquittal entered by Justice Irving W. André on March 30, 2022.

Reasons for Decision

[1] The Crown appeals the trial judge’s determination that a border services officer violated the respondent’s ss. 7 and 10 Charter rights, and that the evidence obtained should be excluded pursuant to s. 24 (2).

[2] We would dismiss the appeal.

[3] The trial judge properly reviewed and applied the relevant jurisprudence and found that the border services officer had formed a particularized suspicion that the respondent was involved in the illegal importation of drugs. He rejected the border services officer’s testimony that, prior to arresting the respondent, he had no suspicion that she was in possession of narcotics. Applying the principles set out in this court’s decision in R. v. Ceballo, 2021 ONCA 791, at para 30, he found that the respondent had been detained and her s. 7 and s.10 (b) Charter rights were engaged since the border services agent had a sufficiently strong particularized suspicion and had made the subjective decision to engage in a more intrusive investigation.

[4] Having found that the respondent’s Charter rights had been violated, the trial judge applied the three-part test in R. v. Grant, 2009 SCC 32, and found that the Charter breach was serious, that it had a profound impact on the respondent’s Charter-protected rights, and the failure to exclude the evidence would send the wrong message that the court was condoning the Charter breach in these circumstances. Accordingly, he excluded the evidence and the statements made by the respondent following her detention.

[5] The trial judge’s findings with respect to the breach of the respondent’s Charter rights are fact-driven and turned on his assessment of the border services officer’s credibility. Such findings are entitled to deference, and the Crown concedes that there is no basis to interfere with them.

[6] On the section 24(2) issue, the trial judge made no reversible error in applying the three-part test in Grant in determining that the evidence should be excluded.

[7] In short, given the particular factual matrix of this case, and the centrality of the finding of credibility to the result, we see no error in the trial judge’s findings and conclusions and would therefore dismiss the appeal.

“M. Tulloch C.J.O.” “K. Feldman J.A.” “P.J. Monahan J.A.”