Court File and Parties

Court File No.: 12-0383

County of Renfrew

Date: November 8, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Patrick Dale

Before: Justice R.G. Selkirk

Heard on: September 5th and October 3rd, 2012

Reasons for Judgment released on: November 8th, 2012

Counsel

Sam Humphrey — for the Crown

Richard Morris — for the accused Patrick Dale

SELKIRK, J.:

Facts

[1] Patrick Dale is charged with a breach of probation for consuming alcohol while prohibited from doing so, on or about April 1st, 2012. It is conceded that the accused should be found guilty if the Charter Application is not successful.

[2] The Charter Application alleges a violation of sections 8, 9 and 10(b) and asks for exclusion of all evidence obtained subsequent to the detention of Mr. Dale by Constable Graveline on the night in question.

[3] I make the following finding of facts:

(1) The Ontario Provincial Police were operating a R.I.D.E. program on April 1st, 2012.

(2) Pursuant to the R.I.D.E. the police stopped a vehicle in which the accused was a back seat passenger.

(3) Constable Graveline approached the vehicle. He noted a backpack in the back seat that contained some number of cans and bottles of beer. None were open.

(4) He saw a beer cap between the driver's legs and smelt the odour of alcohol coming from the vehicle.

(5) He asked the driver for the usual documents.

(6) Within a minute or two of the stop, Constable Graveline asked for the accused's name. This was provided.

(7) Constable Graveline then asked for identification documents from the accused and others. The accused handed over what he described as his original birth certificate.

(8) At some point, either shortly before asking for the accused's identification or shortly after receiving it, Constable Graveline asked, "who's beer?", to which the accused replied, "mine".

(9) Constable Graveline testified that as far as he was concerned no offence had been committed at this point. He was not investigating either an offence under the Highway Traffic Act or the Liquor Licence Act in his interaction with the accused.

(10) Constable Graveline collected identification documents from the driver and the front seat passenger as well.

(11) Constable Graveline then walked away with the accused's identification as well as the others and gave them to Constable Lizotte and asked him to run the names on the Canadian Police Information Centre (CPIC). He did so to see if any of the three persons were on conditions of any nature such as bail or probation under the Criminal Code.

(12) Constable Lizotte subsequently returned and advised Constable Graveline that the accused was on probation with a condition not to possess or consume alcohol.

(13) Constable Graveline returned to the vehicle and asked the accused to step out so that he could smell the accused's breath. The accused did as requested. Constable Graveline smelt alcohol on the accused's breath and arrested him for breach of probation.

(14) Constable Graveline explained that, "we run everyone we stop", meaning every person in every car is queried on CPIC.

(15) Constable Graveline testified that upon asking the accused for his name that if the accused had answered, "I am not answering that question", that Constable Graveline would do nothing further to pursue it. I accept that, although I do note that Constable Graveline did not share that information with the accused at the time. Constable Graveline also testified that on a R.I.D.E. passengers are free to walk away. I accept that evidence but, again, the accused was not told this. Nor was it feasible given they were located on the side of the highway where there was no public transportation nor, at that time of night, 1:00 a.m., any place within walking distance where one could take shelter or call a cab.

(16) Constable Lizotte confirmed that Constable Graveline handed him three pieces of identification and asked him to run them on CPIC which he did.

(17) Constable Lizotte testified that it was "common" to collect identification from not only the drivers but also passengers in vehicles stopped at a R.I.D.E. and run the names through CPIC to see if anyone was in breach of any conditions.

(18) The applicant testified as to his criminal record which consisted of a variety of offences between 2000 and 2011. He agreed he was on probation, he was aware of the conditions against alcohol and that he breached that condition.

(19) He testified that he believed that if he refused to give his name or provide his identification upon demand that there would be, "a confrontation and more charges". He said that in his experience he could not walk away from the OPP and that if he did so, "his face would be smashed and he would be arrested". I accept this evidence in so far as it establishes his honestly held belief. With his record and his attitude towards police which is feisty at best, combative at worst, I find in his circumstances that this is a reasonably held belief based on his past experiences.

(20) He testified, "He did what he was told". He did not accuse Constable Graveline of being overly aggressive.

Submissions

[4] In the above circumstances, the accused submits that he was subject to an unreasonable search and that he was arbitrarily detained when the officer's attention turned from a legitimate investigation of the driver under the Highway Traffic Act to the Applicant. The Applicant submits that he was detained when the officer demanded his identification and walked away with it. He submits he should have been provided with his rights to counsel immediately upon detention and provided with an opportunity to exercise these rights which did not occur. He seeks exclusion pursuant to s. 24(2).

[5] The Crown responds that there was no detention of the accused until he was asked to step out of the vehicle by which point the officer already had the evidence of the accused's name, his probation condition and an admission from the accused that the beer in the backpack was his. There is, therefore, nothing to exclude as no necessary evidence was obtained subsequent to the detention.

[6] The Crown submits that the accused's belief that he was detained earlier than that was not reasonable.

[7] The Crown concedes a violation of s.10(b) in that the accused should have been advised of his rights to counsel as soon as he stepped out of the vehicle but that this did not happen. The Crown did not seek to tender any statement from the accused after this point.

[8] The Crown submits that there is no privacy issue in the smell of one's breath.

ANALYSIS

Section 8

[9] In my view, the law is clear that the questioning of the accused and seizing of his identification is a violation of s. 8.

[10] R. v. Pinto, (2003), 46 MVR (4th) 263, is a case where the accused was a passenger in a car that was stopped pursuant to the Highway Traffic Act. The Court wrote at paragraph 36:

"A traffic stop is a lawful and justifiable exercise of police authority in furtherance of highway legislation enforcement and public safety: s.216(1) Highway Traffic Act. A traffic stop detention may not, however, be a ruse or gimmick for general criminal investigatory work: R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.), at 486-8. Society, and in turn the law, is concerned that the traffic stop can mask abusive or excessive use of police authority as the real motive for the motorist's detention: R.v. Ladouceur (1990), 56 C.C.C. (3d) 22 (S.C.C.), at 44 per Cory J. and at 29 per Sopinka J. (in dissent in the result)."

[11] In Pinto, the Officer asked both the driver and Pinto for identification. He then received information that Pinto was on probation with a recognizance. He asked Pinto to step out. A struggle ensued. Pinto was charged with Assault Police Officer and weapon offence when a knife was subsequently found on him.

[12] At paragraph 45, Justice Hill cites R. v. Therens for the following:

"In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for willful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist."

[13] At paragraphs 51 to 53, which is most particular to the case at bar, he writes:

"Subject to the issue of consent, which I will presently address, a request for information or identification documentation from a vehicle passenger amounts to a search or seizure within the meaning of s.8 of the Charter. In R. v. Mellenthin, supra, at 491, Cory J. stated that an otherwise lawful traffic stop "does not and cannot constitute a general search warrant for searching every vehicle, driver, and passenger that is pulled over" (emphasis added). Similarly, in Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.) at 19, Doherty J.A. did not disagree with the trial judge's finding that the police exceeded the limits of a s.216(1) Highway Traffic Act traffic stop in asking passengers for "identification".

Unless the prosecution can establish legally valid consent on Mr. Pinto's part to respond to questions and to produce identification, there exists no lawful authority, in the context of the circumstances of this traffic stop, to compel answers and identification production.

Returning to R. v. Mellentin, supra, at 486, 487 and 488, Cory J. stated:

"It is true that a person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights. This was certainly not the situation which was present in this case. Here it cannot be said that the appellant consented to either the questions pertaining to the gym bag or to the physical search.

At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant.

As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. In those circumstances it is incumbent upon the Crown to adduce evidence that the person detained had indeed made an informed consent to the search based upon an awareness of his rights to refuse to respond to the questions or to consent to the search. There is no such evidence in this case."

[14] He held that Mr. Pinto was entitled to sit in the front passenger seat and be left alone while the car's driver was dealt with in some fashion under the Highway Traffic Act. At paragraph 55, he writes:

"In a lawful traffic stop, as a general rule, a vehicle passenger cannot be subjected to non-consensual dragnet or general investigative questioning or identification production".

[15] Justice Hill concludes with paragraph 71:

"Crown counsel quite properly conceded that operative Charter breaches, in particular an unreasonable search or seizure, would justify exclusion of the knife. Although articulated in the context of a random check stop, the words of Cory J. in R. v. Mellenthin, supra at 490, are apposite here that an unreasonable search or seizure at a traffic stop "without any reasonable or probable cause, goes far beyond the purposes of those stops and constitutes a very serious Charter breach". Police over-extension of traffic stops, even where police bad faith is not present, involves an unacceptable and serious violation: R. v. Mellenthin, supra at 491."

[16] R. v. Harris, 2007 ONCA 574, 2007 O.J. 3185, O.C.A., is a case where Doherty J. finds a violation of s.8 on similar facts. Harris was a passenger in a vehicle stopped by police for a traffic violation. Constable Lipkus asked all of the occupants to identify themselves. They did so and the officer checked their names through CPIC where he discovered Harris was on bail conditions including a curfew which he was breaching. He arrested Harris, searched him and found crack cocaine on him.

[17] In concluding that s. 8 had been violated, Justice Doherty also relied on Cory J.'s decision in Mellenthin. He wrote at paragraphs 35 to 41:

"R. v. Mellenthin, (1992), 76 C.C.C. (3d) 481 (S.C.C.) presents a somewhat similar fact situation to this case and offers insight into when police questioning will constitute a search or seizure. In Mellenthin, the accused was pulled over by the police at a roadside checkpoint operated for the purpose of examining the roadworthiness of vehicles. The stop was arbitrary but constitutional. The police officer used the opportunity afforded by the stop to randomly investigate other potential crimes. He questioned the driver about the contents of a bag that the officer noticed in the back of the vehicle. The driver's answers to the questions eventually led the officer to physically seize the bag. He discovered narcotics in the bag and charged the driver with possession of the narcotics.

Cory J. held that the officer had no lawful authority under the guise of a safety check to question the driver about the contents of the bag or to physically seize the bag from the driver. Cory J. further concluded that the improper questions constituted the beginning of an unreasonable search that culminated in the unreasonable seizure of the bag. He said, at p. 487:

However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check-stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [Emphasis added.]

Cory J. rejected the contention that the accused voluntarily answered the questions. In doing so, he noted that the accused was under detention and that it could reasonably be inferred that he felt compelled to respond to the questions put to him by the police officer. The same findings were made in this case. Those findings justify characterizing the questioning as a seizure of the information provided by the answers.

The Crown next argues that a person has no or, at its highest, a minimal expectation of privacy in his or her name. The Crown submits that merely providing one's name reveals little, if anything, of any personal nature concerning that person. In some contexts, there will be considerable merit to this submission. However, in the present case, Harris was under police detention. Lipkus was not asking Harris to identify himself out of some sense of curiosity or so he could greet Harris by name should they meet again. Lipkus had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way. That information included whether Harris had a criminal record, was subject to any outstanding court orders and, if so, the terms of those orders. Although Crown counsel submits that the officer's request for identification was "not directed at obtaining incriminating information in relation to unrelated criminal conduct", I think that was precisely one of the reasons Lipkus asked Harris for identification. Why else would Lipkus use the identification to determine whether Harris was in breach of any outstanding court orders?

Given the information readily available to Lipkus through CPIC, I see no functional difference between Lipkus asking Harris to identify himself and then checking that identification through CPIC, and Lipkus asking Harris a series of questions about his criminal past, his bail status, and the terms of any bail that Harris might be under. Lipkus's immediate access to information available on CPIC made Lipkus's request for identification the equivalent of Lipkus asking Harris whether he was breaching any court orders at that moment.

A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert, (1990), 57 C.C.C. (3d) 1 (S.C.C.). In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection.

The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris's identification. The purpose of the stop did not justify an at large inquiry into Harris's background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris's identification of himself provided the entrée into that broader and unrelated inquiry."

[18] I pause to note that the Ontario Court of Appeal continues to rely on Mellenthin as recently as July 2012 in MacDonald, 2012 ONCA 495, 2012 O.J. No. 3210.

[19] Justice Doherty concludes that Harris was subject to a seizure when he gave the officer his identification. The seizure was warrantless and without reasonable cause. There is no evidence Harris was aware of, much less waived any rights under s. 8 of the Charter. Justice Doherty agreed with the trial Judge's conclusion that the police violated Harris' rights under the Charter.

[20] I find there is no reasonable way in which Pinto or Harris can be distinguished. It follows that there was a violation of s. 8 in this case.

Section 9

[21] Each case must be determined on its own facts.

[22] Here, whether the accused was subject to any arbitrary detention will depend in large part as to whether he was detained as that word is used in s. 9.

[23] The Supreme Court of Canada in Grant and Suberu has written comprehensively on the subject. As Grant is summarized in Suberu, I will cite it. I appreciate that s. 10(b) was the issue in that case but I believe the definition of detention is the same for the purposes of s. 9 as well as s.10.

[24] At paragraphs 3 and 4, the Court writes:

"However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, "the person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint" (para. 19).

As we explain in Grant, it is clear that an individual may be detained within the meaning of the Charter without being subject to actual physical restraint. Where the subject is legally required to comply with a demand or direction that interferes with his or her liberty, detention is usually easily made out. Where there is no legal obligation to comply but a reasonable person in the subject's position would conclude that he or she had been deprived of the liberty of choice, a detention is also established."

[25] Paragraphs 24 and 25 sets out the law. They read:

"As explained in Grant, the meaning of "detention" can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

For convenience, we repeat the summary set out in Grant, at para. 44:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication."

[26] In the case at bar, I do not see any detention of the accused when the officer asks him his name. However, I find that situation changes when the accused's identification is demanded and he provides it to the officer who then walks away with it. Up until then the officer testified that the accused was free to leave if he chose to do so. However, once the officer has the accused's "original birth certificate" he is not free to leave. He is, effectively, held captive there until his identification is returned to him.

[27] I also find that while I do not accept some of the accused's evidence, I do accept that he felt, due to his history with the police, detained. In the past when he has not complied with police demands, things have not gone well for him. It is clear he did not feel he was free to leave.

[28] The combination of the seizure of his identification and his belief that he had to comply results, in my view in a detention.

[29] As this detention was without grounds even for an investigative detention as described in Mann, I find it was arbitrary. It was not for any legitimate purpose under either the Highway Traffic Act or the Liquor Licence Act. The officer testified he did not believe any offence had been committed by the accused until he learned of the condition prohibiting possession or consumption of alcohol which was subsequent to the detention. I find s. 9 was violated.

Section 10(b)

[30] The Supreme Court of Canada in Suberu writes at paragraph 2:

"The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention — a question left open in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 22. It is our view that this question must be answered in the affirmative. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter."

[31] Upon detention the accused is to be immediately advised of his rights to counsel. This did not happen. S. 10(b) was violated.

Section 24(2)

[32] The Supreme Court of Canada in Grant provides a useful synopsis of the appropriate analysis to be used at paragraph 71 which reads:

"A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence."

[33] The context for this analysis is found at paragraphs 68 and 69 which reads:

"The phrase "bring the administration of justice into disrepute" must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system."

[34] At paragraph 75, the Court writes:

""Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion."

[35] With respect to the impact on the Charter protected interests the Court writes at paragraph 76:

"b) Impact on the Charter-Protected Interests of the Accused

This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. 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, breeding public cynicism and bringing the administration of justice into disrepute."

[36] As for s.8 violations the Court writes at paragraph 78:

"Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not."

[37] The step is addressed at paragraphs 79 to 81:

"(c) Society's Interest in an Adjudication on the Merits

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, [1971] S.C.R. 272) is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.

This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute."

[38] In the case at bar, I find the violations to be very serious, in particular the violation of s.8. I say this because of the bad faith of the officer. The officers were either aware of Mellenthin, Pinto, Harris or they should have been. Mellenthin was decided in 1992, Pinto in 2003 and Harris in 2007. The seizure of identification from passengers at a R.I.D.E. program has been specifically denounced as a violation by the highest court in this country and in this province. The OPP must obey the law. They cannot ignore it. They are sworn to uphold it. But they do not. This is bad faith because the violation is either deliberate or through their ignorance. It is necessary to dissociate the Court from "the fruits of this unlawful conduct". Where the police are acting in bad faith and continue to engage in conduct specifically denounced by the Court then the violation is very serious.

[39] With respect to the impact on Charter rights this would also tend to favour exclusion. There was a time when persons operating a vehicle could drive around free from interference by the police. This is no more. However, the Courts through the use of s.1 has permitted random stops only for limited purposes and only if the stop is of brief duration. Cory J. in Mellenthin makes that clear, "Random stops must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search."

[40] The police conduct has further eroded an individual's right to move about in our society freely and without interference by the police. R.I.D.E. programs were never intended or permitted to become a vehicle for warrantless searches of every person including passengers who go through one. R.I.D.E. programs are to catch and deter drinking drivers. There is no s.1 justification for warrantless and groundless searches of passengers. The impact of the police conduct is on the citizen's ability to go about their lawful affairs privately, that is to say without the police violating their informational privacy rights as that phrase is described in R. v. Tessling.

[41] I appreciate this violation of privacy is not as severe as one dealing with bodily integrity or the privacy of one's home, but nonetheless it does have a significant impact especially when one views it from the perspective of the long term. It was clear in the evidence that it is "common" for the police to violate s.8. This magnifies the impact when unlawful police conduct is routine. This favours exclusion.

[42] The third prong would favour inclusion. The evidence obtained is sufficiently reliable that without exclusion the defence concedes it establishes guilt. This prong, however, cannot trump the first two as discussed in R. v. Au-Yeung.

[43] When I weigh all three factors and view this issue from the perspective on the long term effects on the administration of justice the evidence must be excluded.

[44] I appreciate that Justice Doherty did not exclude the same type of evidence in Harris. However, he did not have the advantage of Grant and could not predict that the police would ignore his finding that this police conduct results in a violation of s. 8. In all probability if he had known that five years later the police would be continuing to do the very thing he said not to do, then it is likely his analysis under s.24(2) would come to the opposite result.

[45] In all the circumstances the evidence will be excluded and the accused will be found not guilty.

[46] I would like to thank counsel for their written submissions and their helpful casebooks.

Released: November 8th, 2012

The Honourable Mr. Justice R. G. Selkirk