Court Information
Ontario Court of Justice
Date: January 31, 2018
Court File No.: 4911-998-16-07912-00
Parties
Between:
Her Majesty the Queen
— And —
Christopher Galaz-Castro
Judicial Officer and Counsel
Before: Justice Marcella Henschel
Heard on: January 8 and 17, 2018
Reasons for Judgment released: January 31, 2018
Counsel:
- J. Arvizu, for the Crown
- P. Cooper, for the accused Christopher Galaz-Castro
Decision
HENSCHEL J.:
A. Overview
[1] Christopher Galaz-Castro was charged with possession of cocaine on October 1, 2016 contrary to section 4(1) of the Controlled Drugs and Substances Act. He was arrested in the early morning hours of October 1, 2016, shortly after police saw him attend a residence on Patna Crescent, Vaughan that was believed to be a "stash house" for illegal drugs. The residence was under surveillance while the York Regional Police (YRP) were applying for a CDSA warrant to search the home. Mr. Galaz-Castro was arrested in his car, in his driveway, a short distance from the Patna residence. He was searched incident to arrest and 0.2 grams of cocaine was located in his pocket.
[2] At the outset of the proceedings, Mr. Galaz-Castro filed an application alleging that his rights under s. 8 and 9 of the Charter were violated and seeking the exclusion of the cocaine seized under s. 24(2) of the Charter. He alleged that his arrest was unlawful because the police did not have reasonable grounds to believe that he was in possession of a controlled substance, and submitted that if the arrest was unlawful, the search incident to arrest was also unlawful because it was not authorized by law.
[3] The trial proceeded as a blended voir dire. On January 8 and 17, 2018 the Crown called PC Wonch, the officer who arrested Mr. Galaz-Castro. PC Wonch's evidence, and a brief agreed statement of fact, was the only evidence tendered on the s.8 and 9 Charter applications. On January 17, 2018, I found that PC Wonch did not have reasonable grounds to arrest the applicant. As a result, I concluded that he was arbitrarily detained contrary to section 9 of the Charter, and the search incident to arrest was not authorized by law, and was conducted in violation of s. 8 of the Charter. I determined that the cocaine seized must be excluded under s. 24(2) of the Charter. I reserved my reasons for judgment. These are my reasons.
B. Summary of the Facts
[4] The parties are largely in agreement about the relevant facts. It is conceded that PC Wonch subjectively believed that he had reasonable grounds to arrest the applicant for possession of cocaine. What is in dispute is whether his belief was objectively reasonable. Would a reasonable person, standing in the shoes of the PC Wonch believe that reasonable grounds existed to make the arrest?
[5] PC Wonch has been a police officer for 16 years. In 2016, he was assigned to the guns, gangs, and drug unit of the YRP. In September 2016, PC Wonch, as part of a team of investigators, was investigating the activities of Devon Horsford. The investigation started because the YRP received information that Horsford was involved in drug trafficking. Investigators conducted surveillance of Horsford and saw what they believed to be a number of hand-to-hand drug transactions involving Horsford.
[6] PC Wonch described some of the characteristics of hand-to-hand drug transactions as including: short meetings between two people occurring in a secluded location to avoid detection by the public or police (such as behind a building), and involving a hand-to-hand transaction, the passing of an item or money between the two people.
[7] On September 30, 2016, Horsford was observed at an address on Patna Crescent, Vaughan. Surveillance officers saw him enter the residence carrying a blue backpack. A few minutes later, he left the residence with the blue backpack. He was arrested a short time later, at 6:03 p.m. in a nearby parking lot. At the time of his arrest he was the passenger in a van. The driver was also arrested. Horsford was searched incident to arrest and an ounce of heroin was located in the blue backpack. Crack cocaine was found in the van. PC Wonch was present at the time of Horsford's arrest and observed the items seized. Both Horsford and the driver were in custody at the time of the investigation of the applicant. I accept that following Horsford's arrest the investigators had reasonable grounds to believe that Horsford was engaged in drug trafficking.
[8] As a result of the heroin and cocaine found in Horsford's possession on September 30, 2016, the investigators believed that the Patna residence was a stash house for illegal drugs and decided to seek a warrant to search the residence. The Patna residence was a red brick single family dwelling located on a residential street. The investigators did not know who lived in the residence, and knew nothing about the layout of the home. September 30, 2016, was the only time that Horsford was seen at the Patna residence, and the investigators did not believe that it was his home. The investigators had no additional information that suggested that the residence was associated to drug trafficking.
[9] During the evening of September 30, 2016 and the early morning hours of October 1, 2016, investigators were tasked to surveille the residence while waiting for the warrant to be issued. During this time, the investigators did not know if anyone was inside the residence. PC Wonch began conducting surveillance at 1:03 a.m. He was working with a number of other officers including PC Selwood. PC Wonch could not personally see the residence, but was receiving updates over the police radio from other officers about their observations of the home. At 3:07 a.m., PC Selwood advised that a white Honda Civic pulled into the driveway. The Civic was in the driveway for seven minutes before leaving at 3:14 a.m. During this time, the driver never left the vehicle and had no interaction with anyone at the residence.
[10] PC Wonch learned that at 3:20 a.m. the Honda Civic returned to the residence and parked in the driveway. A short time later a Pontiac Montana van arrived and also parked in the driveway of the residence. PC Wonch learned from other officers that the van had been seen at the home "earlier". PC Wonch was aware that the investigators believed that the Montana belonged to a resident of the home, however "they did not confirm it". There was no evidence regarding whether the Montana van was present at the time that Horsford was at the Patna residence. There was no evidence of any prior association between the Montana van, or the driver of the Montana and Horsford. The Montana van was not the van in which Horsford was arrested.
[11] After the Montana van arrived at the Patna residence, officers saw the driver of the Montana and the driver of the Civic acknowledge each other. The driver of the Montana got out and walked up towards the area of the residence. The driver of the Civic also walked up to the front of the residence and was last seen in the area of the garage. A short time later investigators saw a dog running around on the front lawn of the residence which caused them to believe that a door to the home had been opened, and that the applicant went inside the residence. However, surveillance officers could not see if the driver of the Montana or the driver of the Civic actually entered the home. The Civic left the Patna residence at 3:32 a.m., twelve minutes after arriving at the Patna residence for the second time.
[12] PC Wonch decided to arrest the driver of the Civic for possession of a controlled substance. He believed the applicant was in possession of heroin or cocaine. PC Wonch followed the Civic to the applicant's residence, located less than 1 km away. At 3:35 a.m. PC Wonch located the applicant, seated in the driver's seat of the Honda Civic, in his driveway. PC Wonch approached the vehicle on the driver's side and knocked on the window. He was dressed in plainclothes, but pointed to his police vest, to identify himself as a police officer. He told the applicant he was under arrest for possession of a controlled substance and asked him to step out of the vehicle.
[13] The applicant did not initially cooperate. PC Selwood arrived to assist PC Wonch and the applicant unlocked and opened the door. He had to be physically removed from the vehicle. When instructed to put his hands behind his back, he stiffened up and was not compliant with the officers. PC Selwood searched the applicant and the Civic incident to arrest and located .2 grams of cocaine in a plastic bag in the applicant's pants pocket and a small amount of marijuana in the vehicle. PC Wonch agreed in cross-examination that it did not appear that the applicant was attempting to conceal anything when the police were attempting to arrest him.
[14] PC Wonch testified that he formed the belief that the applicant was in possession of a controlled substance because the police were waiting for a search warrant for the residence and they arrested Horsford after he left the Patna residence with a blue backpack that contained a large quantity of drugs. He believed there were drugs in the Patna residence and believed that anyone coming from the residence would be in possession of drugs. He explained that he believed that Horsford used the Patna residence as a stash house. In support of his belief that the applicant was in possession of a controlled substance he also referred to the fact that the applicant initially attended the residence but did not interact with anyone and left seven minutes later; returned to the residence and had a short meeting with the driver of the Montana; that the meeting occurred in the early morning hours, at a time when people would not ordinarily "hang out"; that the applicant and the driver of the Montana approached the home, and he believed that the applicant or the driver of the Montana entered the home, and that the applicant then drove away. He testified that based on his experience he believed that the driver of the Civic was in possession of illegal drugs when he left the home.
[15] In cross-examination PC Wonch acknowledged that:
He had no information that the applicant had any drug related history. He testified he could not recall if someone had run the applicant's licence plate or background and if it was run what details were obtained.
No officer observed a hand-to-hand transaction between the applicant and the driver of the Montana, or anyone else at Patna Crescent.
He would not have grounds for an arrest if the applicant had not met with anyone at the residence or if the police did not believe that the applicant went into the residence.
The twelve minute meeting between the applicant and the driver of the Montana was longer than a typical hand-to-hand transaction such as one he had personally observed involving Horsford on September 28, 2016, which was only two minutes in length.
He believed anyone who came from or approached the residence would have drugs on him, and anyone who showed up at the residence could be arrested. He later qualified this response indicating that it would depend on the circumstances.
C. Governing Legal Principles
[16] Warrantless searches are prima facie unreasonable. To establish that a warrantless search complies with s. 8 of the Charter, the Crown must prove on a balance of probabilities that the warrantless search was authorized by law, that the law is reasonable, and that the search was carried out in a reasonable manner.
[17] The common law power of search incident to arrest was explained in Cloutier v. Langlois as follows:
The common law power as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her immediate surroundings to guarantee the safety of the police and the accused; prevent the prisoners escape, or to provide evidence against him. (emphasis added).
[18] The authority to search incident to arrest derives from the fact of the arrest, which itself requires reasonable grounds. Since the legality of the search is derived from the legality of the arrest, if the arrest is unlawful, the search will also be unlawful. Where there is a lawful arrest, no distinct demonstration of reasonable grounds separate from those for the arrest are required.
[19] Section 495 of the Criminal Code sets out the circumstances in which an officer may arrest without warrant as follows:
495(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
[20] In this case, both parties agree that the central issue is whether the officer had reasonable grounds to believe that the accused had committed an indictable offence. If the officer did not have reasonable grounds to believe that the accused had committed an indictable offence, then the parties agree that I must find that the arrest was unlawful and contrary to s. 9 of the Charter, and the search incident to arrest was conducted in violation of s. 8 of the Charter.
[21] The existence of reasonable grounds entails both an objective and a subjective component. An officer must subjectively form an honest belief that there are reasonable grounds to believe that the subject has committed the offence and the belief must be objectively reasonable. The meaning of reasonable and probable grounds for an arrest was classically stated by Cory J in R. v. Storrey as follows:
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
[22] Reasonable and probable grounds is a threshold that is less than proof beyond a reasonable doubt, or even a prima facie case. The arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities, but must be acting on something more than mere suspicion. Reasonable grounds exists at the point that "credibly based probability replaces suspicion".
[23] An officer's belief must be objectively reasonable because an individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate, or genuine that perception might be. There must be clear objectively measurable limits on police powers. The court in R. v. Brown emphasized this point, stating as follows:
In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer's belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be "reasonable", meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer's perception of the relevant circumstances. The individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer's belief, but the need to impose discernable objectively measurable limits on police powers.
[24] The totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment must include the dynamics within which the police officer acted, and his or her experience. The review requires a contextual analysis of the evidence, not a "piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences".
[25] I have kept in mind that I am assessing the existence of reasonable grounds in the context of a warrantless arrest. In R. v. Golub, the Ontario Court of Appeal concluded that while both a justice reviewing a search warrant and an arresting officer must assess the reasonableness of the information available to them before acting, it does not follow, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. The dynamics at play in an arrest situation are very different from those on an application for a search warrant. The decision to arrest often must be made quickly, in volatile or changing situations. Judicial reflection is not a luxury that officers can afford in the context of an arrest. A police officer must often make a decision based on available information, which is often less than exact or complete. As a result, the law does not expect the same kind of inquiry by police as to whether to arrest someone that it demands of a justice faced with an application for a search warrant.
D. Position of the Parties and Conclusions
[26] The applicant submits that PC Wonch did not have reasonable grounds to arrest the applicant and as a result the search was not authorized by law. The applicant concedes that PC Wonch subjectively believed he had reasonable grounds to arrest the applicant for possession of a controlled substance, but submits that a reasonable person, standing in the shoes of the police officer would not be satisfied that reasonable grounds existed to make the arrest.
[27] The Crown submits that PC Wonch had reasonable grounds to arrest the applicant, and that the search was authorized by law as a lawful search incident to arrest. The Crown submits that PC Wonch's belief was objectively reasonable because the totality of the circumstances, including his experience as a police officer, established a reasonable basis for PC Wonch to believe that the applicant was in possession of a controlled substance. The Crown relies upon R. v. Italiano, which the Crown submits is factually similar and in which the Court of Appeal upheld the trial judge's conclusion that there were reasonable grounds to arrest.
[28] I am not satisfied that PC Wonch's subjective belief was objectively reasonable. Central to the foundation for PC Wonch's belief that the applicant was in possession of a controlled substance was his belief that the Patna residence was a stash house associated to Horsford's trafficking activities. Although I accept that the police had reasonable grounds to believe that Horsford was engaged in trafficking of controlled substances, it does not follow that there were reasonable grounds to believe that Patna was a stash house for controlled substances, or that the applicant was in possession of a controlled substance because he attended the Patna residence.
[29] The only connection between the Patna residence and Horsford's drug trafficking activities was a single attendance by Horsford on September 30, 2016. The evidence that the Patna residence was a "stash" house was less than compelling. There were factors that could support an inference that Horsford's attendance at Patna was drug related, including that he was at the residence for only a few minutes and entered and exited with the blue backpack that was found to contain heroin a short time later. However, in my view at most there was a reasonable suspicion that the Patna residence was a stash house for illegal drugs. There is no evidence about who lived at the residence, including whether the individuals were family members or friends of Horsford, and whether the residents had any prior history of involvement in drug offences. There is no evidence of Horsford's activities at the Patna residence. He may have obtained the heroin from inside the Patna residence, but it is equally plausible that he attended Patna to sell drugs to a resident of Patna, or attended there for some non-drug related purpose, and simply took the backpack into the residence for safe keeping, or some other purpose. If the backpack had only appeared when Horsford left the residence, the inference that Patna was a stash house would be far more compelling. Horsford had never previously been seen at the Patna residence, despite being under surveillance for a period of time in September 2016, and there was no other evidence that the home was associated to Horsford. The surveillance evidence established that he lived at a condo at a different location.
[30] The applicant's attendance in the early morning hours for a brief meeting at a residence where a drug trafficker had attended approximately nine hours earlier is suspicious. However, in my view the grounds do not rise beyond the level of suspicion.
[31] In my view, the basis for the belief that the applicant was in possession of a controlled substance is more tenuous than the belief that the Patna residence was a stash house for controlled substances, or a belief that drugs would be found in the Patna residence for the following reasons:
The investigators had no information about the applicant, or his relationship to the residence. There was no evidence that the applicant had a past history of involvement in drug related activities.
The investigators had no information about any of the tenants in the residence. The applicant could have lived there, or been a relative or friend, of someone who lived at the residence.
The investigators had no evidence of the layout of the residence, and did not know, for example, if there were separate residences in the basement and the main floor, or even if there was a basement.
The officer conducting surveillance lost sight of the applicant while he was at the residence, and did not know whether he entered the home.
The transaction did not have many of the characteristics identified by PC Wonch as indicative of a hand-to-hand drug transaction. The applicant's initial contact with the driver of the Montana did not occur in a secluded location, but rather in the open, in the driveway of the residence. The meeting was twelve minutes in length, not a brief meeting, such as the two minute meeting Wonch observed involving Horsford and a third party on September 28, 2016. There was no evidence of any exchange of anything. Investigators did not see an exchange of money, or a package, and investigators did not see the applicant leave with a box, bag, backpack or other item that could be used to conceal drugs.
While there was evidence that the Montana had been at the residence earlier, there was no evidence that the Montana or the driver of the Montana was present when Horsford was at the residence. Although the investigators believed that the Montana was owned by a resident, there was no evidence of the basis for this belief, and PC Wonch indicated that the belief had not been confirmed. There was no evidence that the Montana was associated to drug related activities, or that the driver of the Montana, who spoke with the applicant, had any history of involvement in drug related activities or any association with Horsford.
[32] In my view, when viewed in totality the investigators' observations of the applicant on October 1, 2016 did not establish reasonable grounds to believe that he was in possession of a controlled substance. The investigators simply did not have enough information about the applicant, the Patna residence, the residents of the Patna residence, the activities of Horsford while at Patna on September 30, 2016, or the applicant's activities at Patna, to establish reasonable grounds to believe that the applicant was in possession of a controlled substance.
[33] In my view, PC Wonch's involvement in a drug investigation and his subjective beliefs about the Patna residence affected his objectivity as to whether the totality of the circumstances created reasonable grounds to believe that the applicant was in possession of a controlled substance. PC Wonch testified that the investigators "were there for a specific purpose, we were conducting a drug investigation. We did not pick a house out of the blue". He testified that anyone that showed up at the residence could be arrested and that he believed that anyone who came from or approached the residence would have drugs on him, although he later qualified his initial answers by indicating it would depend on the circumstances. In my view PC Wonch did not turn his mind to the other competing inferences, and the many unknowns relevant to assessing the existence of reasonable grounds.
[34] While I agree that an inference may be reasonable even if it is not the only available inference that can be drawn from the circumstances, in my view there were simply too many unknowns in this case for the officers to conclude that the applicant was in possession of a controlled substance. A reasonable person, standing in the shoes of the PC Wonch, and taking into consideration both the facts known and the many unknown relevant facts, would not be satisfied that reasonable grounds existed to make the arrest.
[35] The facts in this case can be distinguished from those in R. v. Italiano. In Italiano the police received information from two confidential informants that Michele Santonato was a large-scale drug dealer trafficking in cocaine. On the date of the offence officers were conducting surveillance on a residence they knew to be Santonato's residence from background checks. The surveillance officers saw Italiano pull into Santonato's driveway and knew Santonato was home because he had been observed going into the residence earlier in the day.
[36] Italiano went inside the house and came out five minutes later with a distinctive shoebox that he did not have when he entered the house. Fourteen minutes after leaving the house with the shoebox Italiano stopped his vehicle at a busy intersection and Abdul-Hamid (Italiano's co-accused) got into the passenger's side of the vehicle. Abdul-Hamid got out of the vehicle a "couple of moments later" carrying the distinctive shoebox, got into another vehicle and drove away. The experienced drug investigators concluded that Italiano was a runner for Santonato and that there were reasonable grounds to arrest Abdul-Hamid for possession of a controlled substance. Abdul-Hamid was arrested and a kilogram of cocaine was located in the shoebox. Italiano was subsequently arrested.
[37] In Italiano, the Court of Appeal delivered a brief endorsement, upholding the trial judge's finding that there were reasonable grounds to arrest Abdul-Hamid and thereafter Italiano. The facts in Italiano are distinguishable from the facts in this case because the residence that Italiano attended was the residence of a person that police had reasonable grounds to believe was engaged in drug trafficking. The residence was not a separate location with limited connection to the known trafficker. Italiano entered the home and received a box inside the home while Santonato, the known trafficker, was present in the house, and left within five minutes. Italiano then transferred the box to a third party during a short meeting at the side of a busy roadway. This created a clear basis for the officers to form the belief that Italiano had received an item from a known trafficker and delivered it to a third party.
[38] In this case the residence was not Horsford's residence, Horsford was not present at the residence at the time of the applicant's attendance, there was no evidence of transfer of any item from a person at the residence to the applicant, nor did the applicant transfer anything to a third party. It is of note that in Italiano, the investigator did not form reasonable grounds to arrest Italiano until he transferred the package to Abdul-Hamid.
[39] The facts of this case have a greater similarity to those in R. v. Simpson. In Simpson, the investigating officer received information from an internal police memorandum, based on information from a street contact, that described a residence as a suspected "crack house". The officer was patrolling the area around the suspect residence and saw a car in the driveway of the residence. He observed a woman exit a vehicle, she left the motor running, entered the residence, stood inside the doorway, and then left the residence accompanied by Simpson, and drove away. The officer had no information about either the female driver or Simpson, but decided to stop the vehicle for investigative purposes. After stopping the vehicle, the officer spoke with Simpson, and noticed a bulge in Simpson's pocket. He directed Simpson to remove the item from his pocket, and as a result located cocaine.
[40] The focus of the judgment was the common law authority of the police to detain, short of arrest, for investigative purposes. Doherty J., writing for the court, concluded that an investigative detention can only be justified if the detaining officer has some "articulable cause" or "reasonable suspicion" that the subject is criminally implicated in the activity under investigation. The Court concluded that the officer did not have articulable cause that would justify the detention. After noting that the officer did not know the primary source of the information that the residence was a crack house, Doherty went on to state the following:
Any glimmer of an articulable cause disappears, however, when one considers whether Constable Wilkin had reason to suspect that the appellant or the driver of the car was involved in criminal activity. He knew nothing about either person and did not suggest that anything either had done, apart from being at the house, aroused his suspicion or suggested criminal activity. Attendance at a location believed to be the site of ongoing criminal activity is a factor which may contribute to the existence of "articulable cause". Where that is the sole factor, however, and the information concerning the location is itself of unknown age and reliability, no articulable cause exists. Were it otherwise, the police would have a general warrant to stop anyone who happened to attend at any place which the police had a reason to believe could be the site of ongoing criminal activity. (emphasis added)
[41] In my view, similar concerns to those raised by Justice Doherty in Simpson are present in this case. The basis to believe that the Patna residence was the site of criminal activity, although somewhat stronger than the factual foundation in Simpson, nonetheless had a number of frailties. The belief that the applicant was in possession of drugs was entirely based on the fact that he happened to attend, albeit in the early morning hours, at a place the police believed was the site of ongoing criminal activity.
[42] In my view, the facts when looked at in totality, at most constituted a reasonable suspicion. A reasonable person standing in the shoes of the police officer could not be satisfied that there were reasonable grounds to believe that the applicant was in possession of a controlled substance. As a result, I am satisfied that the applicant has established that his rights under s. 8 and 9 of the Charter were violated. The police did not have reasonable grounds to arrest the applicant and the search incident to arrest was not authorized by law.
E. Section 24(2)
[43] Section 24(2) provides that where evidence is obtained in a manner that infringes a right guaranteed by the Charter, "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." Consequently, the evidence obtained as a result of the violations of s. 8 and s. 9 of the Charter is admissible unless the applicant establishes on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.
[44] According to the Supreme Court of Canada decision in R. v. Grant, there is a three pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. The court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors:
(1) the seriousness of the Charter infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society's interest in the adjudication of the case on its merits.
[45] The assessment under s. 24(2) requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account.
Seriousness of the Police Conduct
[46] In assessing the seriousness of the breach the court should consider whether it involved misconduct from which the court should be concerned to dissociate itself. This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.
[47] I am satisfied that PC Wonch honestly believed that he had reasonable grounds to arrest the applicant and search him incident to arrest. I do not believe that his conduct was carried out in bad faith or with the intention to fail to comply with the Charter. However, in my view, P.C. Wonch should have known that he did not have reasonable grounds to arrest. There were simply too many unknown facts to permit him to reach the conclusion that there were reasonable grounds to arrest. This was not merely a technical breach.
[48] Although the conduct did not involve a blatant disregard for Charter rights, neither was it blameless. While the violations may not have been "deliberate", they showed an insufficient regard for Charter rights and an erroneous perception of the reach of police powers. In R. v. Simpson, Justice Doherty held that the breaches of s. 8 and 9 were serious stating as follows:
The seriousness of these constitutional violations is also clear. Constable Wilkin obviously considered that any and all individuals who attended at a residence that the police had any reason to believe might be the site of ongoing criminal activity were subject to detention and questioning by the police. This dangerous and erroneous perception of the reach of police powers must be emphatically rejected. Judicial acquiescence in such conduct by the reception of evidence obtained through that conduct would bring the administration of justice into disrepute (emphasis added).
Similarly, in my view the breach of the applicant's rights in this case was serious. PC Wonch's actions demonstrated a significant disregard for the applicant's right to be free from arbitrary detention. Further, PC Wonch did not turn his mind to the possibility of exercising police powers short of actual arrest. On any reasonable view further investigation was required before resorting to the coercive actions of an arrest. The police conduct resulting in the breach of s. 9 and s. 8 was serious and tends to point in favour of the exclusion of the evidence.
Impact of the Breach
[49] In R. v. Harrison, the Supreme Court explained that the second factor, the impact of the breach on the Charter protected rights of the accused, looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(s) infringed, or was the breach merely transient or trivial in its impact?
[50] In this case, the detention and search had an impact on the appellant's personal liberty and privacy interests. Being detained and subjected to a search of the person by the police impacts on an individual's rightful expectation of liberty and privacy in a way that is much more than trivial. It has an impact on an individual's human dignity. As a result, in my view the deprivation of liberty and privacy represented by the unconstitutional detention and search was therefore a significant, although not egregious, intrusion on the appellant's Charter-protected interests. There was a strong causal connection between the denial of the applicant's liberty, the unconstitutional search of his person, and the obtaining of the incriminating evidence. This speaks to the significant nature of the breaches on the applicant's Charter protected rights.
[51] The Crown submitted that the evidence was otherwise discoverable because PC Wonch could have conducted an investigative detention of the applicant and would have conducted a pat down search for officer safety reasons, which would have led to a search of the applicant's pockets, and the discovery of the cocaine.
[52] I am not satisfied that the Crown has established inevitable discovery. PC Wonch never testified that he contemplated conducting an investigative detention as an alternative. However, assuming that he would have conducted an investigative detention if he realized he did not have reasonable grounds to arrest, and assuming that he had the required grounds to conduct a safety search as part of that investigative detention, the evidence is not clear that this would have included a search of the applicant's pockets. In R. v. Mann the Supreme Court made clear that if nothing is located during a pat down search that may pose a risk to officer safety, such as a hard object that may be a weapon, a more invasive search cannot be conducted. PC Selwood conducted the search incident to arrest. There was no evidence regarding whether any item that might have been perceived as a weapon was located in the same pocket where the cocaine was located. I am not satisfied that the evidence would have been inevitably discovered and I am satisfied that the impact of the breaches was significant and favours the exclusion of the evidence.
Society's Interest in the Adjudication of the Case On The Merits
[53] At this stage, the court must consider factors such as the reliability of the evidence and its importance to the Crown's case. The cocaine seized is physical reliable evidence that did not emanate from the applicant. If the evidence is excluded it would deprive the Crown of evidence critical to proof of the offence. I accept that cocaine, a Schedule I drug, has serious consequences within the community, and that society has an interest in a trial on the merits. However, only a small amount, .2 grams, of cocaine was seized. In all the circumstances, while the third prong favours admission, it does so only marginally.
F. Conclusion
[54] A qualitative balancing of the factors identified in Grant leads to the conclusion that a reasonable person, informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute. While society has an interest in a trial on the merits, society's immediate interest in an adjudication on the merits must yield to the more important long-term interests served by excluding the evidence in this case. The police conduct was serious and there was a significant impact on the applicant's liberty. Accordingly, the application for the exclusion of the evidence is granted and the cocaine seized from the applicant must be excluded.
Released: January 31, 2018
Signed: Justice Marcella Henschel