Court Information

Ontario Court of Justice

Date: 2017-05-10

Court File No.: 16-07198 & 16-07199 York Region

Parties

Between:

Her Majesty the Queen

— And —

Shivansh Sharma

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard on: January 6, February 6, April 25, 2017

Reasons for Judgment released on: May 10, 2017

Counsel:

• Mr. Capitosto, Counsel for the Crown
• Ms. Schofield, Counsel for the defendant Shivansh Sharma

Judgment

Rose J.:

Introduction

[1] There are two Informations before the Court. One charges Mr. Sharma with Possession of Oxycodone on 20 September 2016 contrary to the Controlled Drugs and Substances Act (CDSA), and another which contains two charges of failing to comply with a recognizance on 20 September 2016. The first fail to comply charge alleges a violation of a remain in residence condition, and the second alleges that Mr. Sharma possessed an unlawful drug in violation of the recognizance. The first fail to comply charge was withdrawn on November 16, 2016. Mr. Sharma pleaded not guilty to the remaining two charges.

[2] At trial Mr. Sharma alleged that his Constitutional rights under ss. 8, 9, 10(a) & 10(b), were infringed and seeks exclusion of seized pills and utterances under s. 24(2) of the Charter. In written submissions Ms. Schofield conceded that there was no breach under s. 9 of the Charter. Ms. Schofield fairly conceded that these were the issues to be determined at trial and if Mr. Sharma did not obtain an exclusionary remedy in his Charter Application a finding of guilt should follow. For that reason this Judgement discusses the facts pertinent to the Charter Application alone.

Facts

[3] On September 20, 2016 Cst. Murphy was in uniform at about 11:52pm parked in his police cruiser at the Pinecrest Motel. He was doing premise checks, and standing by for other officers who were in the process of arresting someone. While he was parked there a BMW SUV came into the parking lot and then quickly pulled out. PC Murphy queried the licence plate on CPIC and was advised that the registered owner was on a recognizance to remain in his residence daily. With that information Murphy left the parking lot and began following the BMW. After a short period of time the BMW pulled into a parking lot on Highway 7 West. Murphy activated the emergency lights on his car because he wanted to investigate the bail condition. That was at 11:52 pm. The events which transpired in the parking lot were recorded on PC Murphy's in car camera, which was quite helpful in determining the facts.

[4] PC Murphy left his own car, approached the BMW and spoke with the driver, who turned out to be Mr. Sharma. Right away the driver said to him that he was coming to see a friend who got kicked out of his house. Murphy told him at that point that he was being investigated for bail compliance. During this initial interaction Murphy could smell the odour of an alcoholic beverage on his breath. He testified that he could also smell a faint odour of burnt marijuana. PC Murphy testified that when Mr. Sharma rolled down the window he could see marijuana shake in the centre console area, in the driver's seat, and by Mr. Sharma's legs. On the dash camera one of the officers is heard to say "There is a little smell of weed in there…"

[5] With the odour of alcohol on Mr. Sharma PC Murphy initiated an ASD demand. At 11:56 Mr. Sharma and PC Murphy are seen on video walking back to PC Murphy's police car. Mr. Sharma provided a sample of his breath into an ASD, and registered an alert. At that point Mr. Sharma told Murphy that his last drink was 20 – 30 minutes ago. By this time there were other officers on scene, including PC Lynn. PC Lynn had used the CPIC system to find out that Mr. Sharma was on a recognizance with the term that he was to remain in his residence. Lynn told Murphy that, at which point Murphy arrested Mr. Sharma for breaching his recognizance. It was by then 12:13am.

[6] When Mr. Sharma was told that he was under arrest for violating his bail term he wasn't very happy. He told PC Murphy that he wasn't breaching anything "…and asked us to inquire further into that". The video records PC Murphy saying that, "We'll call her for you but right now you are under arrest". At 12:14 Mr. Sharma asked if he could call his surety. Murphy testified that they tried to do that, but "…we tried our best to but it's not that easy to exactly, at that time of the night to confirm that, so we informed him at the roadside that we would be going back to the station and continuing the investigation there to see if he was, in fact, correct and those charged were withdrawn." In his evidence it was safer to investigate at the station because he wouldn't know who he was calling for more information if Mr. Sharma gave him the number, even if he was given Mr. Sharma's mother's contact information.

[7] Upon being arrested PC Murphy searched Mr. Sharma and found some personal items. As he was doing that PC Lynn and PC Dundas, the other officer on scene, were searching the car. Mr. Sharma was handcuffed, searched and placed in the rear of PC Murphy's car. At 12:15 am PC Lynn came back to PC Murphy's car with a bottle of Oxycocets, and said "We found this stuff underneath your seat". Mr. Sharma replies that "I have a prescription for that…for my wisdom teeth…I had my wisdom teeth out too and they never gave me that big of a …for wisdom teeth". At 12:17 Mr. Sharma asks "What am I being arrested for Sir?". PC Murphy says "For breaching your conditions". It was by then 12:19am and PC Murphy gave Mr. Sharma his rights to counsel and caution. He says "So, I am arresting you for breaching your conditions". Mr. Sharma replied that "I just want to call my mother and my lawyer…I am not in breach of anything, absolutely nothing sir". At 12:21 Mr. Sharma says "So, Sir, if my mom comes up with the variances…Because Sir, you believe that on my house arrest…if my mom comes up if the variance with the house arrest is that okay?" To this PC Murphy says "Well, there is that issue but there is also the perks or the Oxys or whatever is in the box". Mr. Sharma replies "Sir, they're prescribed Sir". PC Murphy says "Well do you have any proof of that because the labels are ripped off…How are we supposed to know that?" Mr. Sharma then says, "So you can check my health record if you like Sir, look I have a lock you can hear that clicking yourself Sir". I understood this utterance to mean a reference to his dental issue referred to earlier.

[8] PC Murphy says, at 12:22 "Well, you realized the shake the marijuana in the console there". Mr. Sharma replies "But Sir, I am not high on marijuana Sir". Later Mr. Sharma says "Sir, do you mind grabbing my bail papers from my house if you don't mind".

[9] Mr. Sharma was taken back to the police station and PC Murphy continued to investigate whether the bail conditions on CPIC were still in force. He called Mr. Sharma's lawyer three times, and left a message. The first call to counsel was at 12:59 am. He then set up a call with Duty Counsel at 1:18am. At 1:45 he sent the OPP a message via CPIC but didn't hear back. Apparently the bail in question was from an OPP investigation. At 4:10 he called the OPP Port Credit detachment regarding the recognizance. He was told that the OPP CPIC office was closed between 1am and 7am. He called at 7:15 am and still got no answer. Ultimately he received emails about two different recognizances.

[10] The Crown lead a recognizance for Mr. Sharma in evidence dated July 6, 2015 which contains a term:

Remain in your residence daily, except for medical emergencies, for educational purposes or with a note from your surety stating the purpose dated and signed, unless you are in the presence of your surety.

And another term:

Do not possess or consume any unlawful drugs or substances, refer to the Controlled Drugs and Substances act, except with a valid prescription in your name.

This was one of the recognizances which PC Murphy received that morning.

[11] In cross-examination PC Murphy was equivocal about whether Mr. Sharma was ever arrested for possession of the pills handed over by PC Lynn. Murphy agreed that he never arrested Mr. Sharma for the drugs while he was in the police car. His position was "At one point I believe I would have informed him of that, but like I said, I don't have a recollection so…".

[12] PC Murphy was pursued in cross-examination about whether he ever charged Mr. Sharma with a drug offence. His testimony was that it is common practise for the booking Sergeant to inform incoming prisoners the reason for their detention, but he had no evidence that it was actually done. That lead to an exchange in cross-examination about whether the Canada Evidence Act notice served on Mr. Sharma identified the CDSA charge as well as the Criminal Code offence of Failing to Comply. He testified that the only evidence he had of Mr. Sharma being charged under the CDSA was on "…a Canada Evidence Act sheet informing him of the charges and what's going to be in Court." That led to the tendering of a CEA notice of two counts of Fail to Comply. He testified that there was an additional, amended version, but that he didn't have it. The first version, according to PC Murphy, did not have the drug charge, so it had to be amended after Mr. Sharma had received it. There was no evidence lead at trial which would confirm PC Murphy's testimony that a second CEA notice was served on Mr. Sharma, one which mentioned a drug charge.

[13] The Court Information has no information which might determine when Mr. Sharma was formally charged with the CDSA charge. Having reviewed the Information it appears that Mr. Sharma was held for a show cause hearing at his arrest, and released the next day before a Justice. For that reason there is no form 9/10/11 attached the Information which might show when Mr. Sharma acknowledged a release by a peace officer on the CDSA charge.

[14] PC Murphy was asked about the decision to search Mr. Sharma's car after arrest. His answer was clear, "I did not search the vehicle so I, I couldn't tell you what the grounds were…I was dealing with the accused at that time so I can't speak to the search".

[15] PC Murphy was pressed in cross-examination about his evidence that he saw flakes of marijuana in Mr. Sharma's car. He was clear that the marijuana did not furnish grounds of impairment, and that he didn't believe Mr. Sharma was impaired by drugs. The marijuana was shake, and "sprinkled" throughout the vehicle in the seat and center console. It was clearly visible, but was not seized, nor was it ever photographed. It was left in the car.

[16] Cst. Dundas arrived on the scene after Cst. Murphy but before Cst. Lynn. When he arrived he noticed Murphy speaking with Mr. Sharma, who was then in the driver's seat of Mr. Sharma's car. He approached and asked Murphy what was going on. He noticed a faint odour of marijuana coming from the inside of the vehicle and saw on the centre console flakes of something that appeared to be marijuana.

[17] Dundas saw Mr. Sharma being arrested for failing to comply with a bail term, and saw a breath demand being read. Initially Cst. Dundas testified about the search of Mr. Sharma's car being conducted for the drugs.

Q. So, what did you do after Officer Murphy placed Mr. Sharma under arrest?

A. Well, noting the marijuana flakes in the car, myself and Constable Lynn searched the car for more evidence of marijuana in the car.

Q. Can you state for me your grounds for the search?

A. The grounds were possession.

Q. No, but what – what sort of factors lead you to believe that there was marijuana in the car?

A. Well, the smell, and then the flakes that were observed in the centre console area.

Q. Is there anything else?

A. No.

[18] Cst. Dundas testified that Mr. Sharma was arrestable for the marijuana, but never mentioned anything about that to Mr. Sharma. While Dundas and Lynn were searching the car, Cst. Lynn found a white plastic bottle under the driver's seat. Dundas believed it to contain Oxycets but there was no label on the bottle.

[19] Dundas ultimately contacted Mr. Sharma's mother to either secure the car or have it removed from the scene. He also met Mrs. Sharma at the station and received bail papers from her. Initially in his evidence Cst. Dundas testified that those bail papers did not substantiate what Mr. Sharma was saying about his recognizance being varied to delete the residence condition.

[20] In cross-examination it was suggested to Cst. Dundas that the search of Mr. Sharma's car was incident to his arrest on the fail to comply. He added that he could also search the car for the marijuana. He was pressed about why then he didn't search Mr. Sharma's car as soon as he saw the flakes of marijuana. His answer was, "Because he's not within – he's not in the back of Constable Murphy's car and we were still determining whether or not the actual breach of recognizance…was in effect". When pressed again in cross-examination about the reasons for the search of the car Cst. Dundas said, "Had he –had he even breached it for the fail to comply I wouldn't have searched his vehicle other than the presence of marijuana leaves in his vehicle." Those two answers were followed by this exchange:

Q. Having – still having seen that you would have let him go on his way had he not been arrested for the fail to comply?

A. No. I would have arrested him actually for possession of controlled substance and then searched his car.

[21] Dundas was asked about why nothing happened to the marijuana he saw, and said that the flakes were hard to gather, and no picture was ever taken. He didn't know why. In cross-examination he said that he may have seen a varied bail from Mrs. Sharma which confirmed the deletion of the residence term but wasn't sure. The issue of the reason for searching Mr. Sharma's car was again raised in re-examination. His answer at that time was "…I think my understanding was I would have arrested him or would I have searched the vehicle alone on the breach of surety, and the answer to that would be no, I wouldn't have done it.

[22] Cst. Lynn was the last to arrive on scene at 17 minutes after midnight. At that time Cst. Murphy and Cst. Dundas were speaking to Mr. Sharma beside his vehicle. Lynn went back to his vehicle and started making computer queries to see what Mr. Sharma's bail conditions were. From that it appeared that Mr. Sharma was on a bail term to be under house arrest. He did not tell either Murphy or Dundas that. Lynn surmised that Mr. Sharma was being arrested for violation of that bail term. That was followed by a discussion with Cst. Dundas about whether Dundas too saw any variation in Mr. Sharma's bail. He didn't. By this point Mr. Sharma was in the back of Cst. Murphy's car. Cst. Murphy "…asked if we would search the vehicle and secure it". The grounds were that he had been arrested and the search was incident to arrest. Later, after having reviewed the video he said that "I may have, in fact, then received the direction from Constable Dundas via PC Murphy. I thought it was PC Murphy who had asked but it may have, in fact, been the other way around". The search was to see if there were bail papers in the car. When he searched the car he found a white medication pill bottle underneath the driver's seat. It rattled as if it had tablets in it. He didn't open it, but instead gave it directly to PC Murphy. In the course of his search of the car PC Lynn did not see any flakes of marijuana in Mr. Sharma's car and didn't smell it either. His evidence was that the white bottle with the pills was not in plain view to the driver of Mr. Sharma's car. He testified that he would not necessarily search a vehicle if the driver had been arrested for fail to comply. He would if the arrestee had said that that his bail had been varied.

[23] Mr. Sharma called no evidence.

Issues

1. Section 8 of the Charter – Was the search of Mr. Sharma's car an unreasonable search or seizure?

[24] In Hunter v. Southam, [1984] 2 S.C.R. 145, the Supreme Court of Canada found that searches conducted by the state without a warrant are presumptively unreasonable. A warrantless search is prima facie unreasonable see also R. v. Collins, [1987] S.C.J. No. 15. In situations of warrantless searches, the onus is on the Crown to justify the reasonableness of the search. A search incidental to arrest is one such situation where the search or seizure is conducted without prior judicial authorization. In Cloutier v. Langlois, [1990] 1 S.C.R. 158, The Supreme Court found three conditions required for a search incident to arrest:

61 1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.

62 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.

63 3. The search must not be conducted in an abusive fashion, and in particular the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

[25] In the words of L'Heureux-Dube J., "A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law" (supra at par. 64). In R. v. Caslake, [1998] 1 S.C.R. 51 Lamer C.J.C. provided gloss to this. He found at par.25 that:

[S]earches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation. Emphasis added

This passage is still authoritative, see R. v. Ellis, 2016 ONCA 598.

[26] What follows from the abundance of authorities is that an arresting officer, or another officer on scene may search an arrestee for safety reasons, or for evidence connected to the reasons for the arrest see R. v. Rao (1984), 12 C.C.C.(3d) 97 (Ont. C.A.).

[27] In argument Mr. Capitosto argued that if a person is arrestable, but not arrested, the police may search the detainee prior to arrest. Since Mr. Sharma was arrestable for possession of marijuana, but not arrested on the charge, Cst. Dundas's observation of marijuana flakes permitted the search of Mr. Sharma's car. In support of that proposition he relies on dicta of Martin J.A. from R. v. Debot (1986), 17 O.A.C. 141 at par. 37.

[28] When Debot arrived in the Supreme Court, the Court was clear that Charter rights should not be suspended during a search incidental to arrest. The Supreme Court would not adopt the Ontario Court of Appeal's judgement which was contrary in that sense, see R. v. Debot, [1989] 2 S.C.R. 1140 at paras. 50 – 51. The approach advocated by the Crown in the case at Bar would permit the police to detain a person without telling them that they are in fact under arrest, and then proceed to search them incident to a possible arrest in the future. That simply does not square with Lamer CJC's ruling in Caslake. Nor does it square up with other pronouncements that the SITA power stems from the fact of a lawful arrest See R. v. Golden, 2001 SCC 83 at par. 91. The Crown argument would permit civilians to be searched physically by the police without knowing the reason why. I reject that proposition.

[29] In the case at Bar there are two different explanations for the search of Mr. Sharma's car. The first is from Cst. Dundas, who said that he searched it for the possession of marijuana. The second is from Cst. Lynn who said that he got the grounds from Cst. Murphy, although Cst. Murphy denied that. A variation of the second explanation is from Cst. Lynn, who said that he may not have got the grounds from Murphy but got them from Cst. Dundas. The fact that there were two different explanations for the grounds for the search of the car is a frailty in the Crown's efforts to justify the reasonableness of the search.

[30] Constables Dundas and Murphy testified to seeing flakes of marijuana in the cabin of the car in plain view. They were located in the driver's seat and front console. They said that they smelled marijuana, and indeed the dash cam records one of the officers referring to a smell of marijuana coming from the car. At 12:22 Cst. Murphy refers to shake in the console of the car. That said, Cst. Lynn also did a search of the driver's area of the car. His search appears to be sufficiently detailed that he found a pill box under the seat. Lynn was asked directly if he saw marijuana in the driver's area of the car or anywhere in the car. He said that he did not.

[31] I also have to consider that the purported observation of marijuana flakes was not recorded photographically, was not the subject of an arrest let alone a charge against Mr. Sharma, and none of the flakes were seized. If I were to accept the evidence of Dundas and Murphy on the issue, the marijuana flakes were left in the car to be taken over by whomever next drove the car. I struggle with this. I have difficulty with the implication of Cst. Dundas and Murphy's evidence that they would have left an illicit substance in place for someone else to possess. I agree with the Crown that flakes of marijuana may not be the most serious of offences. Indeed, that charge is at the very lower end of the spectrum. But on September 20, 2016 possession of marijuana was still a CDSA offence. Furthermore, Cst. Dundas foisted his grounds for searching the car on that and that alone.

[32] The failure to arrest Mr. Sharma on a marijuana charge, pursue marijuana charges or even minimally document that evidence, coupled with the contradictory evidence of Cst. Lynn on that very point gives me real pause. I cannot find on the evidence before me that Cst. Dundas' decision to search the car was truly incidental to Mr. Sharma's arrest. On a balance of probabilities, the Crown has not proven the reasonableness of the search of the car. Mr. Sharma's rights under s. 8 of the Charter were violated in the search of the car. There is no other basis to justify the warrantless search.

2. Was there a s. 10 violation?

[33] When a person is detained or arrested with an offence s. 10 of the Charter of Rights is engaged. The person must be advised of the reasons under s. 10(a), and has the right to retain and instruct counsel without delay, and to be told of that right under s. 10(b). Both of these come into play in this case.

[34] As the Ontario Court of Appeal has put it, a detainee is "at the mercy of state actors" see R. v. Nguyen, 2008 ONCA 49. For that reason, ss. 10 (a) and (b) are crucial in allowing the detainee to understand his or her jeopardy. There is no shortage of authority from senior appellate courts on point: see R. v. Hebert (1990), 57 C.C.C.(3d) 1 (S.C.C.); R. v. Suberu, 2009 SCC 35; R. v. Sinclair, 2010 SCC 35; R. v. Taylor, 2014 SCC 50. The Court in Nguyen put it this way at par. 20:

… while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10 (a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10 (b) in a meaningful way. The purpose of s. 10 (b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.).

[35] Furthermore, if the reason for the detention changes, the detainee must be re-advised of that change and rights to counsel see R. v. Sawatsky (1997), 35 O.R. (3d) 767; R. v. T.G.H., 2014 ONCA 460. When the police have more than one reason for the detention they must advise the detainee or arrestee of all of those reasons, and if the initial investigation broadens, the person must be advised of the new focus. In Sawatsky, Doherty J.A. added this at paras. 35 and 36:

…The distinction between exploratory questions preceding an investigation and questions which are part of an investigation can be difficult to make. In many situations, there is no clear demarcation. Exploration flows seamlessly into investigation.

Considering the purpose underlying s. 10 (b) and its fundamental importance in maintaining the fairness of the criminal investigatory process, I think it is appropriate to decide close cases in favour of the reiteration of the s. 10 (b) rights. The police should be encouraged to re-advise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. The administration of criminal justice is better served by a restatement of the detainee's s. 10 (b) rights which is a little early than one which is too late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee's right to counsel and connect that right to the new allegations.

[36] In the case at Bar Mr. Sharma's car was stopped because of a potential bail violation. The conversation at the roadside between PC Murphy and Mr. Sharma starts out as an inquiry into driver sobriety and leads into an ASD Demand and sample, and the possibility of a second sample because of residual mouth alcohol. Rather seamlessly it transforms into an investigation into a Bail violation, and then a drug offence. The Crown concedes that Mr. Sharma should have been given his Rights to Counsel at 11:52 and not 26 minutes later, and that that delay was a violation of his Rights under s. 10(b) of the Charter.

[37] When Mr. Sharma is read his rights to counsel at 12:18 PC Murphy said this, "…So, I am arresting you for breaching your conditions". Notably, nothing was read about drugs. That s. 10(b) caution at 12:18 was immediately preceded by this exchange:

Q. What am I being arrested for Sir?

A. For breaching your conditions.

Q. for house arrest?

A. Well, one second I am going to read you something.

This forms part of the Rights to Counsel sequence. It should have been clear to PC Murphy that Mr. Sharma understood his jeopardy to be limited to a bail violation connected to a house arrest condition - and there had been a great deal of conversation about just that. There was never any formal cautioning or Rights to Counsel about a CDSA offence or explicitly a bail violation which might follow from a CDSA charge. There may have been an informality about the conversation insofar as PC Murphy was open to figuring out how to find out if the house arrest term of the bail was still valid or had been vacated. But that did not relieve him of the constitutional obligation to advise Mr. Sharma of Rights to Counsel regarding the Possession charge immediately. To be fair, there is subsequent conversation about "…perks or Oxys or whatever is in the box". Because of the ebb and flow of the conversation between PC Murphy and Mr. Sharma about not only the possible house arrest bail violation but the discovery of a pill bottle, I am drawn to Doherty J.A.'s dicta in Sawatsky about "… decid[ing] close cases in favour of the reiteration of the s. 10(b) rights"(supra). This is one of those close cases where there was no such reiteration. As a result there was both a s. 10(a) and 10(b) breach extending beyond 12:18 am. In support of this finding I also take into account that there is no clear evidence about when Mr. Sharma was actually charged with the CDSA offence.

3. Admissibility – Would admission of (a) the utterances, and (b) the drugs bring the administration of justice into disrepute?

[38] Taking the three part test from R. v. Grant 2009 SCC 32 in turn – firstly, are the Charter breaches serious? I note that in the case at Bar there are principally two Charter violations, one under s. 8 and another under s. 10. I find that the two are somewhat independent in the sense that it does not follow that a Charter violation under s. 8 necessarily implies a s. 10 violation or vice versa. Put another way, it was PC Lynn and PC Dundas whose search violated Mr. Sharma's rights under s. 8 and it was PC Murphy who violated his s. 10 rights. The fact that there are multiple Charter breaches amplifies the seriousness and strengthens the case for exclusion. See R v. Calderon and Stalas.

[39] I would describe each of the Charter violations as being serious. The search of the vehicle was undertaken without prior judicial authorization. There was conflicting police evidence about the very basis upon which the search proceeded, namely the existence of marijuana flakes. While I am not prepared to go so far as to find that either PC Murphy or Dundas mislead the court about their observation of marijuana flakes, their evidence gives me real concern because it leads me to two possible conclusions. One is that there was no marijuana flakes, and the other is that there was but they did not document them, seize them, charge Mr. Sharma with his possession of them, or really care about who might end up with them. Ultimately Mr. Sharma was detained and then arrested for a bail violation which did not exist. During that course of events Mr. Sharma's car was searched. I would describe the search conduct by the police as being cavalier see R. v. Brown, 2012 ONCA 225. All of this leads me to easily conclude that the s. 8 violation was quite serious.

[40] The s. 10 violation is also at the serious end, although not quite at the level of the s. 8 breach. I find this because Mr. Sharma was in police custody at the roadside for over 30 minutes without ever being told that he was in jeopardy regarding a drug charge. The jurisprudence dictating that officers must tell each arrestee the complete reason for his arrest has long been established. There is no legal uncertainty which might mitigate the officer's conduct. While the s. 10(b) breach was not a wilful disregard for Mr. Sharma's rights, it was nonetheless a failure to facilitate s. 10(b) rights which is a departure from the standard of conduct expected of police officers and cannot be condoned see R. v. Taylor, 2014 SCC 50. I therefore find that the first factor from Grant strongly supports exclusion of both the drug seizure and the utterances.

[41] When the constitutional violation is a s. 8 breach the second factor from Grant must consider the level of expectation of privacy. While motor vehicles have a lesser expectation of privacy, the search of one may be less egregious but still a significant intrusion, see R. v. Lowen, 2011 SCC 21. The discoverability of the evidence must also be considered. Sometimes the evidence would have been discoverable even if there was no Charter violation (see Grant at paras 122 and 125), but not in this case. Here, but for the s. 8 violation the pill bottle would not have been discovered. This strongly suggests that the evidence should be excluded.

[42] As regards the s. 10 breach I regard the impact on Mr. Sharma's interests to be significant. The s. 10 (a) and (b) violations preceded incriminatory utterances. I find that Mr. Sharma did not have sufficient information available before choosing to speak with PC Murphy and also choosing what to say. This too suggests that the utterances should be excluded.

[43] I pause at this point to say that consideration of the first two factors from R. v. Grant strongly suggest that the utterances and drugs be excluded. In practical terms, when the first two factors pull towards exclusion the third factor becomes much less important, see R. v. McGuffie, 2016 ONCA 365 at paras. 62 – 64. Beyond that, it is fair to say that the public always has an interest in the adjudication of criminal cases on their merits. The question is, by how much? The seriousness of the offence can cut both ways in the sense that while the public has an interest in seeing a trial on the merits if the offence is serious, it also has an interest in having a justice system which is beyond reproach see Grant at par. 84. In the case at Bar the fail to comply charge is something of an overlap from the CDSA charge. That drug charge is of a Schedule 1 substance, but is an allegation of simple possession. I would describe the seriousness of the offences as being neutral, see R. v. Martin, 2010 NBCA 41. I would find that the third factor is similarly neutral.

[44] Having considered all three factors from Grant, the result is that both the utterances by Mr. Sharma and the seized drugs should be excluded. Accordingly Mr. Sharma is acquitted of both charges.

Released: May 10, 2017

Signed: Justice David S. Rose