COURT OF APPEAL FOR ONTARIO

DATE: 20240131 DOCKET: C69909

Harvison Young, Zarnett and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Damione Williams Appellant

Counsel: Jeffrey Couse, for the appellant Amanda Heydon, for the respondent

Heard: June 9, 2023

On appeal from the convictions entered on July 20, 2021 by Justice Steven R. Clark of the Ontario Court of Justice.

Zarnett J.A.:

OVERVIEW

[1] Following his arrest by Toronto Police Services (“TPS”) in early July 2020 for an alleged assault against his domestic partner, Keylonna Chaisson, the appellant was released on an undertaking. The undertaking included a no-contact condition – the appellant was not to communicate with Ms. Chaisson unless (i) she provided written, revocable consent, or (ii) the communication was for the purpose of relationship counselling.

[2] The undertaking on which the appellant had been released, including its no-contact condition, was uploaded to the Canadian Police Information Centre (“CPIC”). CPIC is a national database operated by the Royal Canadian Mounted Police that allows police officers across the country to access information about outstanding charges, warrants, release conditions, criminal records, warnings and other information.

[3] On July 2, 2020, Ms. Chaisson provided written revocable consent for the appellant to communicate with her as contemplated by the no-contact condition. She did so by email to the officer in charge of the assault investigation at TPS. The consent was uploaded to Versadex, the TPS electronic records management system that contains the record for each matter being handled by TPS from initiation to conclusion. The consent was not uploaded to CPIC.

[4] On August 24, 2020, the appellant was with Ms. Chaisson at a Toronto parking lot. A TPS plainclothes operation was ongoing at the parking lot, looking for, among other things, breaches of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”).

[5] An officer at the police station, who was assisting the operation, ran the appellant’s license plate on CPIC, learned of the assault charge and the undertaking – including the no-contact condition – and informed officers at the scene. He also provided those at the scene with pictures of the appellant and Ms. Chaisson so they could confirm their identities. He obtained the picture of Ms. Chaisson from Ministry of Transportation (“MTO”) records, after obtaining her date of birth from the information on Versadex relating to the assault charge. The officer at the station, and at least one of the officers at the scene, were aware of the consent exception to the no-contact condition. The officer at the station did not search Versadex to determine if Ms. Chaisson had provided consent for the appellant to communicate with her.

[6] During this time, some of the officers at the scene saw the appellant in possession of marijuana while in the driver’s seat of the vehicle with the engine turned on. The officers arrested the appellant for breach of the undertaking and conducted a search of the vehicle which led to the discovery of a firearm. The appellant was then rearrested.

[7] The appellant was tried on a number of firearm charges including possession of a loaded restricted firearm, carrying a firearm in a careless manner, possession of a restricted weapon, unauthorized possession of a restricted firearm in a motor vehicle, and breach of a weapons prohibition [1], contrary to ss. 95(1), 86(1), 92(2), 94(1) and 117.01(1), respectively, of the Criminal Code.

[8] The appellant sought to exclude the evidence of the firearm on the basis that the police lacked reasonable and probable grounds to arrest him for breach of the undertaking, thus violating his rights under s. 9 of the Canadian Charter of Rights and Freedoms, and that therefore the search incident to that arrest violated his rights under s. 8 of the Charter. He also argued that police did not have the right to search the vehicle under the CCA, as the evidence put forward by the police that they observed marijuana in the vehicle was unreliable and an effort to provide lawful justification for a search they knew otherwise to be unlawful.

[9] The trial judge found that despite operating under incomplete information, in light of the exigent circumstances the police had reasonable and probable grounds to arrest the appellant for breach of the undertaking and the subsequent search incident to arrest was therefore lawful. He also found that the police validly searched the vehicle pursuant to the CCA. He rejected the notion that the police fabricated the evidence about him possessing and using marijuana in his vehicle. The trial judge went on to determine that even if he had found a Charter breach, he would not have excluded the evidence under s. 24(2) of the Charter.

[10] The appellant was convicted of all counts and sentenced to six years in custody, minus pre-sentence custody. He appeals against his convictions, focussing on the decision not to exclude the evidence of the firearm.

[11] For reasons that differ somewhat from those of the trial judge, I would dismiss the appeal.

[12] In my view, the police did not have reasonable and probable grounds to arrest the appellant for breach of the undertaking. This is not a case where the police had to investigate beyond available information to determine whether the appellant was breaching the no-contact condition by being with Ms. Chaisson. The information that there was no breach – Ms. Chaisson’s consent – was in the possession of the police – it was on Versadex. This database was not only available to the officer in the station advising those at the scene but was one that he looked at to obtain information that allowed the officers at the scene to determine that the appellant was in fact with Ms. Chaisson. That officer acknowledged that he should also have checked Versadex to see if she had provided consent.

[13] However, the police did have proper grounds to search the vehicle under the CCA. There is no basis on which to disturb the trial judge’s factual findings that support this conclusion. After applying a fresh s. 24(2) analysis, I reach the same conclusion as the trial judge did – the evidence of the firearm should not have been excluded.

FACTS

[14] In early July 2020, the appellant was arrested and charged with an assault on his partner, Keylonna Chaisson. On July 2, 2020, he was released on an undertaking which included the no-contact condition – he was not to communicate with Ms. Chaisson except: (1) with her written and revocable consent, or (2) for the purposes of relationship counselling.

[15] Ms. Chaisson provided her written consent by email early in the morning on July 2, 2020 to be effective as of the following day. Officer Benson, who was in charge of the assault investigation, uploaded the email to Versadex. He testified that he did not request that CPIC be updated with the consent, because it could be revoked as quickly as it had been given and he believed it could take several days to add or remove information from CPIC.

[16] On August 24, 2020, TPS set up a plainclothes operation in a surface parking lot at 306 Front Street West in Toronto [2]. The police intended to investigate for, among other things, breaches of the CCA and anything else they might uncover by checking licence plates and making observations. Seven officers were involved: Officers Poirier, Jiri, and Prodeus were in an unmarked police car, Officers Ghazarian and Girgis were on foot near the parking lot’s toll booth, and Officer Van Hee was in another unmarked police vehicle. Officer Yeo was at 52 Division to assist by running searches on CPIC and other databases and providing the results to the officers at the scene. He was the only officer with access to a computer to do so.

[17] At 9:57 p.m., the police observed a man and woman enter the parking lot and walk to a Lexus automobile. At about 10:00 p.m., Officer Yeo searched the licence plate number of the Lexus on CPIC and informed Officer Ghazarian that it was registered to the appellant who had a prior firearms conviction and was on release on an outstanding assault charge subject to a condition not to communicate with Ms. Chaisson without consent. Officers Yeo and Ghazarian were aware of the consent exception to the no-contact condition.

[18] Officer Ghazarian asked Officer Yeo to obtain a picture of Ms. Chaisson. To obtain Ms. Chaisson’s photo from the MTO database, Officer Yeo first found her date of birth on Versadex in the records relating to the assault charge. He provided the photo of Ms. Chaisson, along with a photo of the appellant, to the officers at the scene at around 10:05 p.m.

[19] Officer Yeo testified that he did not attempt to search Versadex to determine whether Ms. Chaisson had given consent pursuant to the non-contact condition, and acknowledged it was something he should have done.

[20] At around 10:09 p.m., Officer Jiri pulled his unmarked vehicle into the vacant parking spot next to the driver’s side of the Lexus in an attempt to confirm the occupants’ identities. Officer Prodeus, seated in the vehicle’s front passenger seat, was in close proximity to the driver of the Lexus. He testified that he saw a small interior light pointed at the male driver and believed he saw him rolling a marijuana cigarette with a container of marijuana buds and loose marijuana on a creased paper on his lap.

[21] At around 10:10 p.m., the female got out of the Lexus and walked away. Officer Girgis walked close to her and confirmed, by reference to the photo provided by Officer Yeo, that she was Ms. Chaisson. He was also “very confident” the male was the appellant based on the photo Officer Yeo had provided. Upon confirming the identity of Ms. Chaisson, Officer Girgis signalled to Officer Ghazarian that the appellant was arrestable for the breach of the no-contact condition.

[22] Officer Prodeus got out of the unmarked vehicle at 10:11 p.m. to observe the interior of the Lexus more clearly. He testified that he was able to confirm that there were marijuana buds in a container on the driver’s lap, and ground marijuana on a creased piece of paper that appeared to be a Proline ticket. He became concerned because the Lexus’ engine was on. He made Officers Girgis and Ghazarian aware that he observed the appellant appearing to roll marijuana in the driver’s seat of the vehicle.

[23] Officer Ghazarian relayed to the rest of the team that they had reasonable grounds to arrest the appellant for breaching the no-contact condition. He was satisfied of this based on the information Officer Yeo provided about the no-contact condition and the photos that had allowed them to confirm the appellant’s and Ms. Chaisson’s identities. He also believed there was authority under the CCA to search the appellant and his vehicle because they had reasonable grounds to believe the appellant was in contravention of the CCA. The CCA makes it an offence for a person to have care and control of a motor vehicle in which there is cannabis that is not in its original, unopened packaging.

[24] The officers testified that their primary concern was officer safety given that the Lexus’ engine was on, and the appellant had a prior firearm conviction. To block the appellant from leaving, Officer Van Hee pulled his vehicle behind the Lexus. Officers Prodeus, Poirier, and Jiri approached the driver’s door of the Lexus to arrest the appellant. Officer Jiri testified that the appellant had a marijuana cigarette in his hands and a container to crush the marijuana buds on his lap.

[25] Officers Girgis and Ghazarian approached the passenger side of the Lexus. Officer Girgis testified that when he opened the passenger door, he saw powdered marijuana in the appellant’s lap on a creased piece of paper and the appellant’s hands raised to his mouth as if he was about to lick a joint. He could smell fresh, unburnt marijuana. Officer Girgis also observed a black satchel that was open and leaning against the appellant’s right leg.

[26] The appellant complied with a request to get out of the Lexus at 10:12 p.m. and was arrested for breach of the undertaking.

[27] Officer Girgis searched the satchel and immediately saw the butt end of a firearm. He informed the other officers and put the satchel down. He got out of the vehicle and sealed it pending a search warrant. The appellant was then re-arrested for possession of a firearm [3]. The appellant was subject to a ten-year weapons prohibition at the time of his arrest.

[28] The police obtained a search warrant for the appellant’s vehicle which was executed on August 25, 2020. During the search, a closed tin of marijuana was photographed on the dashboard, immediately in front of the driver’s seat. Officer Prodeus testified that this was the tin he observed on the appellant’s lap just prior to his arrest. There was no seal on the tin when the search warrant was executed. Neither loose marijuana nor a marijuana cigarette was photographed in the vehicle. A Proline lottery ticket was found in the satchel with the firearm. Both Officers Prodeus and Girgis testified that prior to his arrest they observed the appellant using such a ticket on or near his lap with ground marijuana.

DECISION BELOW

[29] The trial proceeded as a blended voir dire. The appellant brought a Charter application alleging a s. 9 breach on the basis that the police lacked reasonable and probable grounds to arrest him for breach of the undertaking, and therefore the subsequent search incident to arrest was illegal and breached s. 8 of the Charter. The appellant’s position was that at least two of the officers, Officers Ghazarian and Yeo, were aware of the consent exception to the non-contact condition but did not undertake any due diligence as to whether consent had been given. Had they done so, they would have discovered the consent and there would have been no grounds for the police to investigate the appellant. Further, the appellant urged the trial judge to reject the officers’ testimony about their observations of the appellant’s possession of marijuana in the Lexus. The appellant submitted the officers’ reliance on the CCA was simply to provide a pretext to justify an otherwise unlawful search.

[30] The Crown argued that the police conduct was Charter-compliant. The officers reasonably believed that the appellant was in breach of his term of release. Additionally, the police had made observations of the appellant in possession of marijuana in the Lexus, providing them with lawful authority under the CCA to search the appellant and his vehicle.

[31] The trial judge noted that because the appellant was asserting breaches of both ss. 8 and 9 of the Charter, the Crown bore the onus of showing the legality of both the arrest and the search incident to arrest. He began his s. 9 analysis by making this observation: “Perhaps what distinguishes the present case from some others where the police were advised by the arrestee … that the basis for the arrest is erroneous or no longer current, here, neither the [appellant] nor Ms. Chaisson said anything to the police about the non-contact exception upon arrest”. Noting that it was not incumbent on a suspect to say anything, he went on to say “there was nothing that triggered [the police] to have adverted to the possibility that they were acting on erroneous information to even cloak them with a duty to investigate”.

[32] The trial judge referred to the importance of CPIC and keeping it up to date. He noted that:

[P]olice officers…must be able to rely on the accuracy of the entries to effectively fulfill their duties and discharge their responsibilities to the administration of justice. Surely, we cannot have a system that permits court orders and important changes and variations to be overruled or ignored by clerical or by delayed changes or updates…. As busy as [the TPS] may be, this does not relieve them from ensuring the accuracy of their records…to allow the police to rely on their own errors and mistakes and omissions would be contrary to public policy.

[33] However, he found that what occurred was not a “systemic failure”. He reviewed the officers’ knowledge of the CPIC system. Office Prodeus agreed on cross-examination that, as an officer of 12 years, it was not unheard of that CPIC could be outdated. Even so, he was not aware if the written revocable consent would be noted in CPIC, and that it was more likely for the whole condition to be removed if consent was given. Officer Jiri stated while being cross-examined that, in his 18 years of experience, he was aware that CPIC was not always up-to-date, but was not aware of statistics of the errors. Expressing a similar sentiment, Officer Ghazarian also testified that, while CPIC was not always up-to-date, he always made changes right away and notified CPIC, and trusted that other officers would do the same. However, he had not ever seen a written revocable consent on CPIC in his experience. Officer Girgis likewise agreed that CPIC was not always up-to-date but this was “rare”, and he continued to rely on CPIC in good faith because he could not “just assume everything [was] a mistake”.

[34] The trial judge said there was no evidence tendered about the reliability of CPIC information or the speed at which the information is updated. In the absence of statistical evidence about accuracy, he could not conclude that this was a “systemic failure”. The thrust of the police testimony was that CPIC was otherwise reliable. And he said that the incident took place during the COVID-19 pandemic, referring to other situations in which, due to the pandemic, bail conditions on CPIC were not being promptly updated.

[35] Ultimately, the trial judge found that “the 15 minute window [between identifying the appellant and arresting him] … did not afford or lend itself to any further inquiries being able to be made by the police or that they ought to have been made”. He further concluded this was not a situation where the police were “shutting their eyes” to the obvious. He concluded that: “What may have started out as non-urgent circumstances abruptly became exigent … and requiring immediate action because of the observations made of the [appellant] possessing marijuana in his vehicle contrary to the CCA”. Accordingly, the trial judge was satisfied that the police had reasonable and probable grounds to arrest the appellant, and no s. 9 breach occurred. The trial judge concluded the search incident to arrest that led to discovery of the firearm was therefore lawful. Officer Girgis’ evidence was clear on this issue. In searching the satchel located near the appellant, the officer turned his mind to the valid purpose of officer safety. There were reasonable grounds to have this concern. Accordingly, he found there was no s. 8 breach in the search of the appellant’s vehicle.

[36] As well, the trial judge made findings consistent with the police having been authorized to conduct the search under the CCA. He found that the appellant was in possession of marijuana in the manner described by the officers. In his view, it would require an “inferential leap” to believe the police fabricated their evidence. The trial judge accepted the evidence of each officer as being “honest, truthful, accurate, and valid.” He noted that Officer Prodeus “in particular” met the “accusatory questions” on cross-examination with “solemn and thoughtful answers.” Given that the operation included looking for unlawful cannabis use, it made sense that the officers were vigilant in observing such activity. The trial judge further noted that the direct physical evidence of the container found in the car was “dispositive” of whether the police fabricated the evidence.

[37] The trial judge went on to conduct a s. 24(2) analysis in the event he was in error about the ss. 8 and 9 Charter claims, taking into account the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. On the first Grant factor – seriousness – the trial judge found the police conduct “barely along the fault line”. The officers did not act capriciously or with thoughtlessness. He noted that the officers acknowledged their surprise that they were unaware of the consent that had been provided under the no-contact condition. He was satisfied that the officers showed a willingness to be educated and take more in-depth steps in the future to confirm the accuracy of information on CPIC. The conduct did not amount to systemic police misconduct. On the second Grant factor – impact – the trial judge held that any impact of a Charter breach was on the “low end” of the scale. It was not invasive to the appellant’s physical integrity. The discoverability of the evidence was also an important consideration, as it reduced the intrusiveness of the search. On the third Grant factor – society’s interest – the trial judge found that the gun was highly reliable physical evidence that was critical to the Crown’s case. Assessing these three factors against each other, he held that the evidence should be admitted.

ISSUES

[38] The appellant’s challenge to the trial judge’s decision raises three issues:

(a) Did the trial judge err in finding reasonable and probable grounds for arrest for breach of the undertaking, and thus err in finding the search incident to arrest to have been lawful? (b) Did the trial judge err in his assessment of the legality of the search under the CCA? (c) Should the evidence have been excluded pursuant to s. 24(2) of the Charter?

ANALYSIS

Did the trial judge err in finding reasonable and probable grounds for arrest?

[39] The appellant argues that if the police lacked reasonable and probable grounds to arrest him for breach of the undertaking, two consequences flow: the arrest violated his rights under s. 9 of the Charter and therefore the search incident to that arrest violated his rights under s. 8 of the Charter. Section 9 provides that “everyone has the right not to be arbitrarily detained or imprisoned”. Section 8 provides that “everyone has the right to be secure against unreasonable search and seizure.”

[40] Police have the power to perform a warrantless search and seizure incidental to a lawful arrest in order to prevent any possible escape, protect themselves against any weapons that may be in the possession of arrested individual, and preserve evidence of the offence for which the person is arrested: James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 12th ed. (Toronto: LexisNexis, 2021), at p. 1230. In order for a search incident to arrest to be non-infringing from a Charter perspective, the arrest must be Charter compliant in the sense of having been lawful: R. v. Gerson-Foster, 2019 ONCA 405, at para. 101. The appellant argues that the arrest was unlawful, and therefore so was the search.

[41] Whether a detention – in this case an arrest – is arbitrary turns on whether it is lawful: Grant, at para. 54. An arrest is lawful, under s. 495(1) of the Code, where the arresting officer has reasonable grounds to believe that the person has committed an indictable offence. The arresting officer must subjectively have reasonable grounds on which to base the arrest and those grounds must be justifiable from an objective point of view: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51.

[42] The appellant was not in breach of the no-contact condition when he was arrested. A belief that the appellant was in communication with Ms. Chaisson contrary to the terms of the no-contact condition was mistaken, as Ms. Chaisson had given her consent. But that does not answer the question of whether there were reasonable grounds to arrest the appellant for a breach that the arresting officers thought had occurred. “Reasonable grounds can be based on [an officer’s] reasonable belief that certain facts exist even if it turns out that the belief is mistaken”: R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40.

[43] Before reasonable grounds exist, “the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”: R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at para. 21, leave to appeal refused [1997] S.C.C.A. No. 571. There is, however, a limit to the extent of pre-arrest inquiry that police must conduct. “… [T]he obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations ”: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 34.

[44] Whether a particular inquiry is one that an arresting officer must make is a context specific question. Relevant factors include the ease by which information could be obtained, whether something said by the suspect or on the suspect’s behalf gives rise to the need for further enquiry, and the urgency of the situation.

[45] In Gerson-Foster, at para. 88, Paciocco J.A. cited with approval a proposition drawn from the Court of Appeal for Saskatchewan’s decision in R. v. Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186, at para. 26: “reliance by an arresting officer on erroneous information will not be objectively reasonable if, in the circumstances, ‘the police could reasonably have made inquiries which would have led to the discovery of the deficiencies or defects’”.

[46] Paciocco J.A. went on, at paras. 89-90, to describe two situations where an inquiry was considered one that the circumstances reasonably permitted although it included looking beyond the information the arresting officer in fact had. First, he noted that:

In Kossick, the arresting officer relied on information from another officer indicating there was an arrest warrant in place. The arresting officer proceeded with the arrest in non-urgent circumstances and without personally checking the electronic databases, including CPIC, which he had open in front of him and that would have revealed the arrest warrant had already been executed. In Kossick, the finding that the police could reasonably have made inquiries was not triggered by any reason to doubt that an arrest warrant was in place, but by the ease with which the status of the warrant could have been checked before depriving Mr. Kossick of his liberty.

Second, he noted that the need for further inquiry could be triggered by something that the police are told: “In this case, the need for reasonable inquiry was triggered when Mr. Gerson-Foster informed Cst. Kim and other officers involved in his continued detention that the arrest warrant had already been dealt with in court”.

[47] On the other hand, clear evidence of a facial breach of the law will provide reasonable and probable grounds for arrest even where the possibility of a lawful excuse for the suspect’s behaviour exists, if investigating whether the lawful excuse applies would take time and effort and the circumstances are exigent. In R. v. Valentine, 2014 ONCA 147, 302 C.R.R. (2d) 212, leave to appeal refused [2014] S.C.C.A. No. 183, the arresting officer determined, through a CPIC search, that Valentine was on bail for serious crimes and that his conditions of release included a curfew. Valentine was stopped while driving on a highway after the curfew. Although there was an exception to the curfew for employment, the arresting officer’s belief that Valentine was in breach of his bail condition was not unreasonable. In coming to this conclusion, Epstein J.A. took into account both the nature of the investigation that would have to be undertaken to determine if the employment exception applied, and the urgency of the circumstances. She said, at paras. 36-40:

In the course of the CPIC check, Constable Dowling was advised that the appellant was allowed to be out of his home during his curfew hours for the purpose of employment. Furthermore, the appellant testified that he informed the officer that he had a letter from his employer giving him permission to be outside of his home at that time. The appellant argues that in the light of this information, the trial judge erred in finding that Constable Dowling had reasonable and probable grounds to arrest him for breach of his recognizance.

I would not give effect to this argument.

Subjectively, the officer was aware of the facial breach. The CPIC check disclosed that the appellant was on bail for serious crimes and that his conditions of release included a curfew - he was not permitted outside of his home between the hours of 10 p.m. and 5 a.m. The appellant was stopped for speeding at 10:20 p.m. The appellant was out past his curfew.

It is true that there was an employment exception, and the evidence demonstrates that Constable Dowling became aware of it, at least through his exchange with CPIC. However, on its own, the officer’s knowing about the employment exception does not necessarily lead to the conclusion that his belief that the appellant was in breach of his recognizance was unreasonable. Determining whether the employment exception operated at that particular time and in those particular circumstances depended on obtaining additional information about the circumstances in which the appellant was driving along Highway 401 late at night and then assessing the validity of that information.

Constable Dowling had evidence of a clear facial breach. He only had the appellant’s assurance that the exception to the curfew was in play. It was late at night. The appellant had serious criminal antecedents, was on bail for serious offences and was exhibiting threatening behaviour. In my view in these circumstances the officer is not required to investigate and try to rule out all possible explanations for the appellant’s being out past his curfew before making an arrest.

[48] In assessing the argument raised in the case at bar that the trial judge erred in finding there were reasonable and probable grounds to arrest the appellant, it is important to note that the trial judge’s factual findings attract appellate deference and are reviewable only for palpable and overriding error. But whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law, reviewable for correctness: R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 25.

[49] The appellant points to the trial judge’s observation that neither the appellant nor Ms. Chaisson said anything to the police at the time of arrest about the consent exception. The appellant argues that the trial judge proceeded on the legally incorrect basis that when an arresting officer has information that reveals a facial breach of the law, there must be this kind of a “trigger” before police are required to look further. He asserts that this is incorrect in light of the principle in Kossick, (adopted in Gerson-Foster) referred to in para. 45 above. The Crown argues that the trial judge did not find that this kind of “trigger” was required, but simply noted that its absence distinguished this case from others where the arrestee or someone on their behalf had told police at the time of arrest that the basis for arrest was erroneous.

[50] In my view, the trial judge’s focus on whether something was said on arrest was a product of a legally flawed approach. Although there was no “trigger” in the sense of something said by the appellant or Ms. Chaisson upon arrest, Ms. Chaisson had said something very important before the arrest. She had provided her written consent to the police. The trial judge erred by not properly considering whether, in light of the situation as a whole, the consent was available information and looking for it was an inquiry the circumstances reasonably permitted. I reach this conclusion for a number of reasons.

[51] First, the lens through which the trial judge approached the issue was unduly narrow. The trial judge considered whether the officers were reasonable in expecting CPIC to be up-to-date, and whether the fact that it was not accurate was a widespread problem, or as he termed it, a “systemic failure”. But this was not a case about delay in updating CPIC. Nor was it a case about whether CPIC was inaccurate in the sense of it not showing information it was intended to show. As Officer Benson made clear, he did not ask that CPIC be updated when he received the consent, and he never intended to do so. Nor was there evidence that any of the officers involved at the scene on the date of the arrest reasonably expected the existence of a consent to be disclosed on CPIC. None had any experience with a consent being shown on CPIC. Officer Prodeus’ view, that if there were a consent the no-contact condition would be deleted, was not a reasonable one in the circumstances, since the condition contemplated a revocable consent, which is what had been given. Officer Yeo acknowledged that CPIC is often not updated to include consent letters and described his prior experience with uploading consent letters onto Versadex.

[52] Second, Officer Benson explained why he did not ask that CPIC be updated, and instead placed the consent on Versadex. It was so that it would be immediately available, as would any revocation of the consent. He described how, in contrast, trying to update CPIC involved delays and the use of administrative resources. The trial judge failed to consider that where the police adopt a reasonable alternative to updating CPIC, namely placing information on Versadex so that it will be immediately accessible, limiting inquiries to what CPIC discloses, without consulting Versadex, may be unreasonable.

[53] Third, the trial judge did not refer, in the Analysis portion of his reasons, to Officer Benson’s evidence that it is “very simple” to check if such a consent exists on Versadex. Nor did he refer to Officer’s Yeo’s evidence that noted the common practice of looking beyond CPIC to see whether consent has been provided and his acknowledgment that he should have checked Versadex for the consent. There was, in contrast, no evidence that a search of Versadex would have been an unreasonable, unusual, or a time-consuming step.

[54] Fourth, I disagree with the Crown’s argument that this is a case where the police were confronted with a facial breach of the no-contact condition, with nothing apparent in the observable circumstances to suggest that the consent exception was “in play”. CPIC did not disclose a facial breach; the information on CPIC was insufficient to do so. Further information was required, for example, whether the person with the appellant was Ms. Chaisson. Officer Yeo had to, and did, access other databases, including Versadex, to supply the officers at the scene with the means of making that determination. In other words, a facial breach could only be apparent after looking at Versadex and CPIC. Versadex was part of the observable circumstances, not a source of information extraneous to the observable circumstances.

[55] Fifth, I agree with the appellant’s argument that the trial judge erred by finding that exigent circumstances justified the arrest. Exigent or urgent circumstances are not a stand-alone consideration but one that must be viewed in context. In Valentine, it was the combination of exigent circumstances and the type of time consuming further inquiry that would have had to be conducted – checking the validity of Valentine’s claim that he was out past curfew for the purpose of employment – that led to the conclusion that in the circumstances further inquiry was not required. Here the police were not dependent on information that might be open to question, or would have to be validated, to assess compliance with the no-contact condition. Officer Yeo had a computer in front of him and could have accessed the consent in Versadex, a database that he was already accessing and using for the purpose of this investigation. Although there was urgency, there is no suggestion in the evidence that doing this check would have delayed the police; in other words, looking for the consent would not have prevented the police from dealing with the exigent circumstances.

[56] The trial judge should have concluded that the police lacked reasonable and probable grounds to arrest the appellant for breach of the no-contact condition in the undertaking. The Crown acknowledges that Officer Ghazarian was aware of the consent exception to the no-contact condition. Officer Yeo clearly was as well, since Officer Ghazarian testified that he knew of the consent exception because Officer Yeo told him the appellant was not to “communicate directly or indirectly with [Ms.] Chaisson without consent”. Officers Ghazarian and Yeo interacted on the information to be obtained prior to arrest. In circumstances where the police were using two databases, CPIC and Versadex, to store information relating to the appellant’s release conditions – Versadex precisely because the information on it would be immediately accessible – and both were being accessed for information relating to the appellant’s potential arrest, it was unreasonable to not look at Versadex to see whether consent from Ms. Chaisson had been provided.

[57] The search that followed could not be justified as a search incident to that arrest.

Did the trial judge err in his assessment of the legality of the search under the CCA?

[58] Despite my disposition of the first issue, I agree with the trial judge that the officers had a legal basis to search the appellant’s vehicle pursuant to the CCA.

[59] Sections 12 (1) - (3) of the CCA provide:

(1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[60] The authority to search under s. 12(3) allows a search of bags readily accessible to the occupant of the vehicle, even if fastened closed: R. v. Phillips, 2021 ONSC 5343, at paras. 56, 61-62. The satchel in which the firearm was found was open and readily accessible to the appellant from the driver’s seat.

[61] The trial judge’s conclusion that the preconditions to a search under s. 12(3) of the CCA were met was based on his finding that the officers were credible when they testified about their observations of the appellant and his marijuana possession and use in the vehicle. He rejected the notion that the officers fabricated their evidence. He found each officer was “honest, truthful, accurate and valid”. He described their evidence as “both internally consistent…but also externally consistent…all three officers essentially saw the same thing…[a]lthough each saw various parts of the scenario from their own perspective.” And he noted that the direct physical evidence of the container in the vehicle was “dispositive of the issue that the police could not have fabricated their evidence”.

[62] Deference is owed to a trial judge’s credibility assessments: R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at para. 54. Appellate courts will only interfere with credibility assessments if they “cannot be supported on any reasonable view of the evidence”: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10.

[63] The appellant argues that the officers’ evidence of him rolling a marijuana cigarette was deeply problematic. He says it was inconsistent on several points, including: (a) whether the loose marijuana was in the container or on a lottery ticket or piece of paper; and (b) whether the appellant was rolling the cigarette when he was arrested or whether he had completed doing so. He adds that the evidence of rolling a cigarette was not corroborated by other evidence. No photographs of loose marijuana were taken. When the vehicle was later searched after a warrant was obtained, the lottery ticket upon which the appellant was said to have crumbled marijuana was found in his satchel. The cigarette was nowhere to be found. Further, no officer could account for how the container ended up on the vehicle’s dashboard.

[64] These arguments were made to the trial judge, and he considered them in making his credibility findings. On the issue of inconsistencies, the trial judge noted that the evidence was materially the same, and that “[i]t is not expected that each would have identical ways of describing the events….” The trial judge accepted the officers’ testimony that they observed the appellant with a container of marijuana while in the driver’s seat, and while in the process of rolling a cigarette. The fact that the cigarette and loose marijuana were not photographed, or later found, does not mean that the trial judge was not entitled to accept the officers’ evidence. As the Crown notes, these items were not the focus of the investigation following the finding of the loaded firearm. The trial judge was entitled to accept the officers’ testimony in the absence of corroborative physical evidence of every detail.

[65] The appellant further contends that the trial judge misapprehended the evidence. He says the marijuana cannister was sealed in its original packaging until opened by the officers upon executing the search warrant. He argues the fact that it was discovered sealed could not corroborate the officers’ testimony that marijuana was loose in the vehicle and in fact contradicts the officers’ testimony about their observations of the container.

[66] I do not accept this argument. There was no evidence to suggest the container was the original packaging of the marijuana. Officer Prodeus testified that when he saw the container he believed the lid was off, and there was no intact seal on it when he executed the search warrant. The trial judge accepted this evidence, as he was entitled to do.

Should the evidence be excluded pursuant to s. 24(2)?

[67] If an appellate court comes to a different conclusion than the trial judge regarding whether a Charter right was breached, the appellate court is entitled to undertake a fresh s. 24(2) analysis, accepting the underlying findings of fact made by the trial judge not tainted by error: R. v. Reilly, 2020 BCCA 369, at para. 120, aff’d 2021 SCC 38; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 138.

[68] I have concluded that the trial judge erred in finding that no breach of s. 9 occurred. The appellant was arrested for breach of the undertaking in the absence of reasonable and probable grounds for that arrest. I have also concluded that the trial judge did not err in concluding that no breach of s. 8 occurred. Although the search was not justified as one that was incidental to the arrest for breach of the undertaking, it was a search that was authorized under s. 12(3) of the CCA.

[69] A s. 9 breach will warrant a s. 24(2) analysis where it is sufficiently connected, temporally and contextually, to the evidence sought to be excluded, even if that evidence was obtained during a constitutionally sound search: R. v. Cuff, 2018 ONCA 276, 359 C.C.C. (3d) 415, at para. 30. Conducting a fresh s. 24(2) analysis, I reach the same conclusion as the trial judge – the evidence of the loaded firearm should not be excluded. In my view, the admission of the evidence would not bring the administration of justice into disrepute.

[70] The first Grant factor is the seriousness of the Charter-infringing state conduct. The focus is on whether there has been misconduct from which the court should dissociate itself, situating the conduct on a scale of culpability and considering surrounding circumstances that exacerbate or attenuate its seriousness: R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at paras. 57-59.

[71] Here, there was no wilful or reckless disregard of Charter rights, or a systemic pattern of Charter infringing conduct. It was reasonable for the police to keep track of the consent on Versadex, so that it would be immediately accessible. It was reasonable for the police, in conducting the operation that led to the appellant’s arrest, to have Officer Yeo at a computer at the station, ready to access databases, including CPIC and Versadex, and provide results to the officers at the scene. The arrangements were consistent with Charter compliance. The Charter breach – the arbitrary deprivation of the appellant’s liberty – occurred because of a mistake – the failure to search Versadex for the consent. This is a search that should have been done, but nothing in the circumstances exacerbates that misconduct. The trial judge found the police did not “take a short cut, or cut corners, or act capriciously on a mere whim, nor were they cavalier…indifferent or thoughtless.”

[72] I do not agree with the trial judge that the police conduct was “barely along the fault line”. It is important, when two databases are being maintained, to access both when required. I find the misconduct to be of moderate seriousness, but I do not find it to be egregious. It pulls slightly in favour of exclusion.

[73] However, the second factor, the impact on the appellant’s Charter-protected interests, was minimal. The search and discovery of the firearm did not impact his Charter rights, as the search was justified under the CCA. The firearm was in fact discovered by a Charter compliant search. “[When evidence is] independently discoverable, the impact of the breach on the accused is lessened and admission is more likely”: Grant, at para. 125. Although the appellant refers to having been arrested at gun point, the trial judge found that Officer Girgis “had his service revolver at the low ready position given what he knew” about the appellant’s prior firearm conviction, but that no physical force was used and the police were not overbearing or heavy handed in their conduct. The deprivation of liberty under this arrest was short. The firearm was discovered shortly after the arrest for breach of the undertaking, and the appellant was lawfully rearrested for possession of a firearm immediately after the search revealed its presence.

[74] The second Grant factor does not favour exclusion.

[75] The third Grant factor, society’s interest in the adjudication of the case on its merits, strongly favours admission. The evidence was reliable and crucial to the Crown’s case on a serious charge: “Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system”: McColman, at paras. 69-71, 73.

[76] Balancing the factors and considering all of the circumstances, the evidence should not be excluded under s. 24(2) of the Charter.

CONCLUSION

[77] For these reasons I would dismiss the appeal.

Released: January 31, 2024 “A.H.Y.” “B. Zarnett J.A.” “I agree. A. Harvison Young J.A.” “I agree. J. George J.A.”

Footnotes

[1] The appellant was subject to a weapons prohibition arising from a prior conviction.

[2] A shooting had taken place in that location a few weeks earlier, and in a prior investigation a firearm had been seized. There were also public safety concerns arising from consumption of intoxicants in vehicles in the parking lot.

[3] The firearm was a Smith & Wesson semi-automatic handgun, model M&P 9 shield; it contained a magazine with eight rounds of 9 mm ammunition with an additional round in the chamber, making the firearm fully loaded.