Court File and Parties

Ontario Court of Justice

Date: 2018-09-10

Between:

Her Majesty the Queen

— and —

Pedro Camara

Before: Justice A.T. McKay

Heard on: July 26 and 27, 2018

Reasons for Judgment released on: September 10, 2018

Counsel

Kathleen Nolan — counsel for the Crown

Sean Safa — counsel for the defendant Pedro Camara

McKAY J.:

INTRODUCTION

[1] Shortly after 11:00 p.m. on June 30, 2017, Mr. Camara was riding his E-bike down Franklin Boulevard in Cambridge. He pulled into the parking lot of a townhouse complex and approached one of the units. He brought his E-bike to a stop on the walkway next to Unit 37 of the complex.

[2] Unbeknownst to Mr. Camara, Constable Burke of the Waterloo Regional Police Service ("WRPS") was parked in his fully marked police vehicle at the end of the parking lot near its entrance. Mr. Camara had come to his attention because, in Constable Burke's opinion, the E-bike was swerving all over the place as it travelled down Franklin Boulevard and into the parking lot. In addition, there was no functioning rear light, which Constable Burke believed to be a violation of the Highway Traffic Act ("HTA"). Constable Burke decided that he needed to speak with the driver of the E-bike.

[3] As Constable Burke approached Mr. Camara, from a distance of approximately five feet away, he thought that he detected the smell of fresh marijuana coming from Mr. Camara. Constable Burke was of the opinion that gave him reasonable and probable grounds to arrest Mr. Camara for possession of cannabis. As he was making the arrest, the other officer working in the area, Constable Salisbury, arrived on scene and assisted with the arrest. In order to handcuff Mr. Camara, they had to remove the backpack he was wearing.

[4] Constable Burke took Mr. Camara to his police vehicle. While he was doing so, Constable Salisbury searched both the backpack and the satchel carried by Mr. Camara as an incident to the arrest. Located in those bags were quantities of cocaine, fentanyl, cannabis, methamphetamine, paraphernalia often related to drug trafficking, $1935.00 in cash, a knife which opened by centrifugal force, and an expandable baton. At the time, Mr. Camara was bound by a probation order which required him to keep the peace and be of good behaviour, and which prohibited him from possessing any weapons as defined by the Criminal Code.

[5] As a result, Mr. Camara is charged with possession of fentanyl for the purpose of trafficking: possession of cannabis for the purpose of trafficking; possession of methamphetamine for the purpose of trafficking; carrying a concealed weapon (the baton); possession of a prohibited weapon (the flick knife); and three counts of breaching his probation order.

[6] Mr. Camara pled not guilty to the charges. He filed an Application alleging that the police breached his rights under sections 8, 9 and 10(b) of the Charter of Rights. He requests that the evidence seized by the police be excluded. The alleged violations of his Charter rights include an arbitrary stop and detention in front of his home; an arrest which was unlawful because of the absence of reasonable and probable grounds; and a violation of his right to counsel because of an 11-minute delay in the police providing him with information regarding his right to counsel.

[7] Counsel agreed at the outset to a blended proceeding in the trial. It was admitted that if the evidence of the items seized by police is admissible, Mr. Camara was in possession of the controlled substances for the purpose of trafficking. It was further admitted that the knife was a prohibited weapon. Finally, the existence of and terms of the probation order binding Mr. Camara was admitted.

EVIDENCE

Constable John Burke

[8] Constable Burke has been a member of the WRPS since September 2012. At the relevant time, he was assigned to general patrol. On June 30, 2017 shortly after 11:00 p.m., he was in full uniform in a marked police vehicle carrying out general patrol duties in an area of the City of Cambridge. He had parked his police vehicle in the parking lot of a townhouse complex at 101 Franklin Boulevard. He was making notebook entries on a matter unrelated to this investigation.

[9] Constable Burke observed an E-bike southbound on Franklin Boulevard. The E-bike turned into the parking lot at 101 Franklin Boulevard. He had observed the E-bike swerving all over. It appeared that the operator was having balance issues and the E-bike was weaving as if the operator was trying not to tip over on both the roadway and in the parking lot. In addition, there was no rear light on the E-bike. That was a violation of the HTA. Constable Burke determined that he needed to investigate for safety reasons, and to determine whether the driver had a medical issue.

[10] The E-bike came to a stop at the south end of the complex. Constable Burke moved his car to that area, exited the car and approached the E-bike, which had stopped on a walkway in front of Unit 37. The individual was still straddling the E-bike. Constable Burke approached and advised the individual of the reasons for his investigation. When he reached a distance of approximately five feet away from the individual, he could smell the odour of fresh cannabis.

[11] Constable Burke testified that he was familiar with the odour of both fresh cannabis and burnt cannabis and was able to distinguish between the two. His familiarity was a result of his police training and experience in drug investigations. To him, the smell of fresh cannabis means current possession of cannabis. In his opinion, the odour was clearly the odour of fresh cannabis and it was emitting from the individual. He decided that he had reasonable and probable grounds to arrest the individual for possession of cannabis. At 11:19 p.m., he took control of the individual's left wrist and advised him that he was under arrest for possession of cannabis. The individual immediately tensed up so he gave the individual approximately a minute to calm down. Constable Salisbury arrived on scene.

[12] The individual had a helmet, and was carrying a satchel in front of him and wearing a backpack. After removing the satchel and backpack, he handcuffed the individual to the rear. The individual identified himself as Mr. Camara, and at that point Constable Burke recognized him from another interaction. He walked Mr. Camara to his police vehicle. At that point, a resident of Unit 37 emerged. There was a discussion with that individual regarding the issue of who would take possession of Mr. Camara's E-bike. Mr. Camara was content with the E-bike being left in the possession of the resident of Unit 37.

[13] Constable Salisbury had taken possession of the satchel and backpack when it was removed from Mr. Camara. At 11:25 p.m., Constable Salisbury showed Constable Burke the contents of the satchel. The contents included what appeared to be fentanyl, methamphetamine, cannabis and cocaine. After viewing the contents of the bag, Constable Burke was of the view that he had reasonable and probable grounds to arrest Mr. Camara for charges of possession for the purpose of trafficking. He had also learned during that interval that Mr. Camara was on probation and obligated to keep the peace and be of good behaviour.

[14] At 11:30 p.m. he rearrested Mr. Camara for three counts of possession for the purpose of trafficking and one count of breach of probation. At 11:30 p.m., he provided Mr. Camara with the right to counsel, using the wording from his police notebook. Mr. Camara indicated he did not wish to speak with a lawyer. At 11:31 p.m., he cautioned Mr. Camara from his police notebook. Mr. Camara indicated that he understood. Subsequently, Constable Salisbury discovered both the flick knife and the expandable baton. At 11:45 p.m., he arrested Mr. Camara on the charges of carrying a concealed weapon and possession of a prohibited weapon. He provided Mr. Camara with the right to counsel. In response, Mr. Camara declined a lawyer. At 11:47 p.m. he cautioned Mr. Camara with respect to those charges and Mr. Camara indicated that he understood. He also seized Mr. Camara's cell phone.

[15] Constable Burke then continued running computer checks with respect to Mr. Camara. At 11:55 p.m., Mr. Camara began to complain about shoulder pain because of the handcuffs. Constable Burke adjusted the cuffs by adding a second set of handcuffs to lessen any pressure caused by the handcuffs. At 11:59 PM, Constable Burke left the scene with Mr. Camara. He drove to Central Division headquarters. At 12:29 p.m., Mr. Camara was lodged in a cell. Constable Burke began preparing a synopsis of the events. At 2:48 a.m., he noted that Mr. Camara's cell phone, which was not locked, was displaying banners from messages. Some of the messages referred to "points". There were 15 missed calls and numerous text messages during that time frame. At 5:05 a.m., he ended his shift.

[16] On July 6, 2017, Constable Burke processed the exhibits in this matter. He weighed the controlled substances. He removed 0.3 grams of a white powdered substance from a plastic container containing 26.1 grams of what he suspected to be cocaine. He forwarded that to Health Canada for analysis. The substance subsequently analyzed as being a combination of cocaine and fentanyl. It is unknown what proportion of the 26.1 grams was cocaine, and what proportion was fentanyl. The total weight of the cannabis was 11.2 grams. It was subsequently confirmed to be cannabis by analysis by Health Canada. The suspected methamphetamine weighed 24.8 grams. It was subsequently analyzed by Health Canada and confirmed to be methamphetamine.

[17] In cross-examination, Constable Burke confirmed that the area around 101 Franklin Boulevard is well lit, and is a mixture of commercial and residential buildings. He confirmed that he observed Mr. Camara travelling on Franklin Boulevard for approximately five seconds before turning into the parking lot. Initially it was the swerving which caught Constable Burke's attention as it appeared that the driver was unable to maintain balance. The E-bike was traveling at approximately 30 km per hour. After Mr. Camara entered the parking lot, Constable Burke was able to observe the rear of the E-bike and see that it did not have a rear light. Section 62 of the HTA requires a rear light, specifically "proper bicycle lighting". A "power-assisted bicycle" requires the same lights as a bicycle.

[18] Constable Burke indicated in cross-examination that he was unaware of a provision in section 61(17) of the HTA indicating that an E-bike requires either a rear light or a reflector. This E-bike did not have a reflector. It had an inoperable light. Ultimately, he did not issue an offence notice under the HTA because he did not see the need to do so given all of the circumstances. In Constable Burke's opinion, even though the E-bike had moved onto private property, because he saw the E-bike swerving on Franklin Boulevard, he had an obligation to investigate potential impaired driving, any potential health issues on the part of the driver, and a potential HTA violation, given that the only logical inference was that the rear light was not operating while the E-bike was traveling on Franklin Boulevard.

[19] Constable Burke also testified that Constable Salisbury was working in the same zone as him and was accordingly in close proximity. When he parked his cruiser he marked the location of the stop and radioed police dispatch indicating that he was stopping at that location. That information goes into the police computer system and the GPS system marks his location. It is common practice for safety reasons that another officer attend a location to assist an officer who stops an individual. Mr. Camara was stopped within one minute of the first sighting of the E-bike. He had already approached Mr. Camara and made the arrest for possession of cannabis when Constable Salisbury arrived in the parking lot. Constable Salisbury assisted handcuffing Mr. Camara.

[20] The original arrest took place at 11:19 p.m. From 11:19 p.m. to 11:25 p.m., he was removing the satchel and backpack, handcuffing Mr. Camara, taking Mr. Camara to the police vehicle, and dealing with Mr. Camara and the resident of unit 37 with respect to the issue of who would take possession of the E-bike. Constable Burke's understanding of his obligations with respect to the right to counsel is that it must be provided to an individual as soon as practicable after the arrest.

[21] When they arrived at police headquarters, Constable Burke did not again ask Mr. Camara if he wished to speak with a lawyer, because he was present when the booking sergeant did so, and Mr. Camara again declined. After hearing that, Constable Burke prepared a form entitled "prisoner detain sheet" which confirmed that Mr. Camara declined to call a lawyer.

[22] With respect to Mr. Camara's cell phone, Constable Burke indicated that he made an error. He initially regarded the cell phone as personal property and treated it as such, rather than a source of potential evidence on the possession for the purpose of trafficking charges.

Constable Ryan Salisbury

[23] Constable Salisbury has been with the WRPS since 2015. On June 30, 2017 he was on uniformed patrol duties. He was in the parking lot of the townhouse complex at 101 Franklin Boulevard on an unrelated matter. When that matter was completed, he was leaving the area. However, shortly after he left, Constable Burke asked him to return to the area. When he returned, he noted that Constable Burke was arresting an individual. He assisted in dealing with the individual, later identified as Mr. Camara. As a result of discussions between him and Constable Burke, he understood that the arrest was for possession of cannabis as a result of the smell of fresh cannabis.

[24] After the arrest was completed, he assisted Constable Burke in placing Mr. Camara in Constable Burke's police vehicle. He then began to examine the contents of the items seized from Mr. Camara on the rear trunk of his police car. He noted that there were a number of items in different sections of the bags. There was cash, a knife, an expandable baton, packaging materials, a scale, a cell phone and a "Pringles" can, which when opened, contained several bags of suspected controlled substances. When Constable Burke exited his vehicle, he advised Constable Burke of his findings. Ultimately, he transported the seized items to South Division headquarters, and processed them in accordance with standard police procedures.

[25] In cross-examination, he indicated that he could not specifically recall why he and Constable Burke were originally present at 101 Franklin Boulevard. It was a follow-up to some earlier incident. He was asked by Constable Burke to return to the scene at 11:20 p.m.. At that point, he was only a 10 to 15 second drive from Constable Burke's location. The "921" code on the call to return signified controlled substances. In the radio call, Constable Burke said "I need assistance, can you come back", or words to that effect. When he arrived on scene, Mr. Camara was not yet handcuffed and was still "half on" the E-bike.

[26] Constable Salisbury testified that he smelled fresh cannabis at the scene, but he could not recall at what point in the interaction he initially noted the smell. When he initially arrived on scene, it was an adrenaline-rich, potentially dangerous situation to him. He was not focused on the smell during the initial part of the interaction. He recalls the seizure of Mr. Camara's cell phone, but concluded that he must have returned the cell phone to Constable Burke because it was not on the list of items that he lodged in the evidence locker. He recalls the cell phone ringing at times while the identification officer was taking photographs of all of the items seized.

[27] The defence chose not to call evidence.

POSITIONS OF THE PARTIES

The Crown

[28] The Crown takes the position that there were not any violations of the Charter. Constable Burke had reason to investigate the circumstances surrounding the operation of the E-bike. When he approached Mr. Camara, he immediately detected a distinct odour of fresh cannabis coming from Mr. Camara. In those circumstances, the arrest for possession of marijuana was justified. There was then a valid search incident to arrest, which led to the discovery of the items in the bags.

[29] The Crown submits that Mr. Camara was provided with his right to counsel and clearly indicated that he did not wish to speak to a lawyer. The alleged search of the cell phone by observing banners related to text messages on the unlocked screen did not violate Charter rights.

The Defence

[30] The defence position is that Mr. Camara was arbitrarily detained when Constable Burke approached him to speak with him. Furthermore, Constable Burke's detection of an odour of marijuana constituted an unreasonable search and seizure. The subsequent arrest of Mr. Camara was unlawful, given that it was carried out without reasonable and probable grounds. The resulting search incident to arrest was therefore unreasonable.

[31] In addition, the delay of 11 minutes before Constable Burke advised Mr. Camara of his right to counsel breached the immediacy requirement of section 10(b) of the Charter. Finally, the fact that the officer observed banners related to text messages on the unlocked screen of the cell phone of Mr. Camara constituted an unreasonable search.

[32] The defence position is that the evidence obtained as a result of the search should be excluded.

APPLICABLE LEGAL PRINCIPLES

[33] Police officers have a common-law power to conduct warrantless searches and seizures in certain situations. Those common-law powers include search incident to arrest, search as an incident of investigative detention, safety searches, dog sniff searches, and plain view seizures. The authority for doing so is found in the doctrine of ancillary police powers.

[34] The doctrine of ancillary police powers was first articulated in R. v. Waterfield, [1963] 3 All E.R. 659 (Eng. C.A.). The Waterfield decision has been applied repeatedly by appellate courts in Canada. Those courts have refined the test in order to ensure compliance with section 8 of the Charter. The test involves a two-step inquiry. Both steps must be satisfied in order for the conduct to be authorized at common law. At first step, the court must determine whether the act in issue falls within the general scope of a police duty imposed by statute or recognized at common law. There are a number of police duties that arise under the common law. They include the duty to protect life and safety; the duty to preserve the peace; the duty to prevent and investigate crimes; and the duty to protect property. If the conduct of the police was undertaken in connection with one of those duties, the first step of the test is satisfied.

[35] The second step involves an examination of whether the conduct was reasonably necessary to carry out the particular duty in the circumstances. That involves consideration of the following three factors: i) the importance of the performance of that duty for public good; ii) the necessity of the interference with the individual's rights for the performance of that duty; and iii) the extent of the interference with the individual's rights. If the police acts were reasonably necessary for the performance of that duty, the second step in the Waterfield test is satisfied and the conduct is authorized under the common law.

[36] Detention, for the purposes of section 9 and 10 of the Charter, has been defined broadly by our appellate courts. A person is detained when his or her freedom of movement is restrained physically by the police. In some circumstances, psychological restraint may also constitute detention where a person who complies with a police direction or command reasonably believes that he or she has no choice. Even so, the police cannot be said to detain, within the meaning of sections 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even an interview. The constitutional rights recognized by sections 9 and 10 of the Charter are not engaged when police delay someone when that delay involves no significant physical or psychological restraint.

[37] The issue of whether reasonable grounds to arrest exist involves both an objective and a subjective component. The police officer must subjectively have an honest belief that the suspect has committed an offence, and objectively reasonable grounds for the police officer's belief must exist. The test is not an overly onerous one. A prima facie case need not be established. Appellate courts have cautioned that the test must not be inflated to the context of testing trial evidence. Reasonable grounds are credibly-based probability. The subjective component amounts to an honest belief. The objective component then requires that the police officer's opinion was supported by objective facts.

[38] The issue of the validity of an arrest based on the smell of cannabis has been often litigated. Courts have often differentiated between the smell of burnt, or recently consumed marijuana, and the smell of vegetative marijuana. For instance, in R. v. Boyd, 275 C.R.R. (2d) 231, the B.C. Court of Appeal indicated that the smell of vegetative marijuana could afford a stronger foundation for an arrest under section 495(1)(b) because the actual drug substances were being detected by olfactory means. The court commented that a court evaluating the smell of burnt marijuana as reasonable grounds cannot be too categorical in determining when an arrest will or will not be supportable, and a full consideration of all relevant circumstances needs to be made by the trier of fact.

[39] The Ontario Court of Appeal dealt with the matter in R. v. Polaschek, 45 O.R. (3d) 434. The facts in that case involved a vehicle stop for valid HTA purposes. The police officer smelled the odour of marijuana in the vehicle, but was unable to say whether it was the smell of burnt marijuana or vegetative marijuana. The officer told the accused that he smelled marijuana. The accused looked to his right and then over both shoulders to the rear of the vehicle and said "No, you don't". Based on the smell, the response of the accused, the time of night, and the area in which the accused was stopped, the officer arrested him. Speaking for the court, Rosenberg, J. found the grounds for the arrest valid, noting that it was not based solely on the smell. The court then talked about the dangers of basing grounds on the presence of odour alone. However, the court went on to say the following:

"I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possesses sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance."

[40] The Ontario Court of Appeal dealt with the issue again in R. v. Morris, 2013 ONCA 223. The case involved a vehicle stop for HTA reasons. The issues involved validity of the stop, and the reasonable grounds for arrest after police detected the odour of fresh marijuana emanating from the car. With respect to that issue, the court indicated the following at paragraph 8:

"We do not accept the submission that it was not open to the trial judge to find reasonable and probable grounds for arrest on the basis of the officers' evidence that they detected the smell of marijuana. While previous cases have cautioned against placing undue reliance upon "smell" evidence, there is no legal barrier to the use of such evidence and we are not persuaded that on this record the trial judge's finding is susceptible to appellate review."

[41] If an arrest is lawful, the police have the common law power to search. A search incident to arrest must be one that is for a valid objective in pursuit of the ends of justice. Valid objectives include the discovery of items which might pose a threat to the safety of the police, the accused or the public; items that might facilitate escape; or things that may furnish evidence against the accused. The search must be carried out for a reason related to the arrest. The searching officer must have some valid purpose connected to the arrest in mind when the search is conducted, and the belief that the search would serve that purpose must be reasonable in all the circumstances.

[42] A search incident to arrest is not dependent upon the police having reasonable grounds to believe that a weapon or evidence will be found on the arrested person. The test simply requires that the police decision to search is a reasonable one related to the arrest. For example, if the search is for evidence, there must be some reasonable prospect that evidence will be found relating to the offence for which the accused was arrested. The search must be carried out within a reasonable period of time after the arrest, and within the immediate surroundings of an accused. An officer conducting a search may have more than one purpose or reason in mind while carrying out the search. As long as one of those purposes or reasons is related to the arrest, the search will be incidental to the arrest. The power to search incidental to arrest includes the immediate surroundings of the accused person.

ANALYSIS

[43] In my view, it is not necessary to determine whether Mr. Camara was detained when Constable Burke made the decision to approach and speak with him about the operation of the E-bike and the lack of a rear light. I accept Constable Burke's evidence and find that the E-bike was swerving while he was observing it, as if the driver was having difficulty maintaining balance. Given that, Constable Burke needed to investigate as to whether the driver had a health issue, or whether the driver was potentially impaired. Speaking with the driver to determine those issues was important for the public good and was necessary. A brief conversation to canvas those issues would not interfere with the driver's rights any more than necessary. Accordingly, Constable Burke was acting under common law authority when he approached Mr. Camara.

[44] In addition, once the E-bike entered the parking lot Constable Burke observed that the rear light was not working. That gave him a valid statutory reason under section 62(17) of the HTA to approach the driver.

[45] I accept the evidence of Constable Burke that, at the point that he arrived within five feet of Mr. Camara, he detected the strong odor of fresh vegetative marijuana. I find that he had the experience and training to recognize the odour of vegetative marijuana. Therefore, there was an objective basis for his subjective belief that Mr. Camara had to be in possession of marijuana at that time. Accordingly, he had reasonable grounds to arrest Mr. Camara for possession of marijuana. Constable Salisbury confirmed that at some point after he arrived, he also smelled fresh marijuana. The fact that he could not recall at what point he smelled the marijuana, given the adrenaline surge he felt when he arrived on scene, does not detract from the evidence of Constable Burke.

[46] Given the validity of the arrest, the search of the bags incident to arrest was for a valid objective. The examination of the bags was related to a search for evidence on the charge that Mr. Camara was arrested on.

[47] With respect to the issue of right to counsel, I make the following findings. Constable Burke arrested Mr. Camara for possession of cannabis at 11:19 p.m. Mr. Camara was not formally provided with his right to counsel until 11:30 p.m., after he was rearrested for possession for the purpose of trafficking. During the 11-minute interval which followed the original arrest, Constable Burke was engaged in a number of activities. They include the following: removing Camara's backpack; handcuffing Camara; moving Mr. Camara to the back seat of his police car; dealing with Mr. Camara and Mr. Camara's acquaintance regarding who would take possession of the E-bike; conducting police computer checks; adjusting Camara's handcuffs after he complained of discomfort; and discussing the results of the search of Mr. Camara's bags with Constable Salisbury. At no time during the 11-minute interval did Constable Burke attempt to elicit any evidence from Mr. Camara.

[48] Given the obligation of the police to provide the right to counsel immediately following detention or arrest, Constable Burke's failure to do so constituted a violation of section 10 of the Charter. I find that to be the only violation of Mr. Camara's Charter rights in this case.

[49] With respect to the issue related to Mr. Camara's phone, I make the following comments. I accept Constable Burke's evidence that he originally regarded the phone as personal property. I find that Constable Burke viewing banners related to text messages on the unlocked screen of the phone did not constitute a search of the phone. If I am wrong in that regard, in my view it would not affect the outcome of this case, given that the Crown did not rely upon any evidence obtained from the phone.

Section 24(2) Analysis

[50] The purpose of section 24(2) of the Charter is to guard against the admission of evidence obtained by a breach of Charter rights where admitting that evidence would bring the administration of justice into disrepute. 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. Section 24(2) does not focus on the immediate reaction to an individual case. Instead, it focuses on whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence. The inquiry is objective and 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.

[51] Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means that damage has already been done to the administration of justice. Section 24(2) seeks to ensure that evidence obtained as a result of that breach does not do further damage to the repute of the justice system. The focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused. It is focused on systemic concerns, and on the broad impact of admission of the evidence on the long-term repute of the justice system.

[52] In answering the question of whether evidence should be excluded, the court must assess and balance the effect of admitting the evidence upon society's confidence in the criminal justice system. In doing so, the court must have regard to the seriousness of the Charter-infringing conduct; the impact of the breach on the Charter-protected interests of the accused; and the societal interest in the adjudication of the case on its merits.

The Seriousness of the State Conduct in Violating the Charter

[53] In examining the seriousness of the state conduct, including the nature of the police conduct which led to the discovery of the evidence, the court must consider the need to preserve public confidence in the justice system and the need to ensure conformity to the rule of law. Would the admission of the evidence send a message that the court effectively condone breaches of citizens' rights by failing to dissociate itself from the fruits of the unlawful conduct? As part of that analysis, the more severe, deliberate or reckless the state conduct is, the greater the need will be for the court to dissociate itself from that conduct. If the state conduct involves inadvertent or trivial violations of the rights of an accused, the existence of good faith on the part of the police, or exigent circumstances such as the need to prevent the destruction of evidence, those factors will favour admission of the evidence.

Impact of the Charter Violations

[54] This heading calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right which was infringed. The impact of the breach may range on a spectrum from technical and fleeting to profoundly intrusive. The more serious the impact on the protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual protection to citizens, encouraging public cynicism and thereby bringing the administration of justice into disrepute.

The Societal Interest in Adjudication on the Merits

[55] This aspect of the inquiry reflects society's collective interest in ensuring that those who break the law are brought to trial and dealt with according to the law. Society generally expects that a criminal trial will be adjudicated on its merits. This aspect of the analysis examines whether the truth-seeking function of the trial process would be better served by the admission of the evidence, or by its exclusion. The reliability of the evidence obtained by the Charter breach is a factor, as is the significance of the evidence to the case for the Crown. The seriousness of the offence is also part of the considerations.

[56] The fact that evidence obtained in breach of the Charter may facilitate the discovery of the truth in the adjudication of the case on its merits is weighed against factors pointing to exclusion in order to balance the interests of truth with the integrity of the justice system. In other words, does the vindication of the specific Charter violation by excluding the evidence extract too great a toll on the truth-seeking goal of a criminal trial?

CONCLUSIONS

[57] There is no doubt that the informational component of the section 10(b) right to counsel is critical so that an accused has the information necessary to avoid self-incrimination. However, in this case the Charter breach was technical in nature. The officer was busy doing a number of things related to his investigation, and that caused an 11-minute delay in his providing Mr. Camara with the information regarding his right to counsel. However, during that 11-minute period, Constable Burke did nothing to attempt to elicit information from Camara, nor did he receive information from Mr. Camara. The breach had no real impact on Mr. Camara's Charter-protected rights. I find that Constable Burke was acting in good faith. The violation does not demonstrate an attitude of disregard for Charter rights. There is nothing in the police conduct in this case which requires the court to disassociate itself.

[58] The evidence located as a result of the valid search incident to arrest is real and reliable evidence. Without that evidence, the Crown would be unable to mount any case. Excluding the evidence would not enhance the repute of the administration of justice. To the contrary, it would be viewed as allowing Mr. Camara to walk away from very serious charges as a result of a technical Charter breach.

[59] The evidence is admitted and there will be findings of guilt on each count.

Released: September 10, 2018

Justice A.T. McKay