Court File and Parties

Ontario Court of Justice

Date: 2018-01-24

Court File No.: Brampton 3111 998 17 8743

Between:

Her Majesty the Queen

— and —

Ahmed Jama

Before: Justice G.P. Renwick

Heard on: 17, 18, 19 January 2018

Reasons for Judgment released on: 24 January 2018

Counsel:

• T. Kim, counsel for the Crown
• D. Rechtshaffen, counsel for the defendant Ahmed Jama

Ruling on Charter Application

RENWICK J.:

Introduction

[1] The defendant applies to exclude a loaded prohibited firearm, a Glock 26 with 17 rounds of 9 mm ammunition contained within a high-capacity magazine (a prohibited device) and related evidence, from his trial on the basis of alleged breaches of his ss. 7, 8, 9, and 10(b) rights under the Canadian Charter of Rights and Freedoms ("Charter").

[2] The applicant claims that a traffic stop of his vehicle by Constable Darrell Corona of the Peel Regional Police was a pretext to conduct an arbitrary detention and an unlawful search and seizure without regard for the applicant's rights to counsel. The respondent prosecutor defends the application by arguing that the traffic stop was lawful, as was the defendant's arrest for a breach of his recognizance, and consequently, the search of the defendant's vehicle, incident to his lawful arrest, complied with all appropriate constitutional standards.

[3] This application raises the following five issues for my determination:

i. Was the applicant's initial detention lawful;

ii. Was the applicant's arrest lawful;

iii. Was the search incident to arrest lawful;

iv. Were the applicant's s. 10(b) Charter rights violated; and

v. If any of the applicant's Charter rights were violated should the firearm and related evidence be excluded from the trial, pursuant to s. 24(2) of the Charter?

[4] The parties agreed at the start of the application that the evidence would be taken on both the Charter voir dire and the trial together. As a result, the prosecution called two police witnesses, which comprised the entirety of the viva voce evidence on the Charter application in addition to the several exhibits filed by both sides. The applicant called no additional witnesses on his application.

[5] I have considered the evidence taken, the exhibits filed, and the submissions made at the end of this three-day application. I do not propose to refer to much of the evidence, except where it will serve to explain my findings and the route to my conclusions.

Analysis

Was the Applicant's Initial Detention Lawful

[6] Constable Corona sought to justify his initial detention of the applicant on the basis of an alleged Highway Traffic Act ("HTA") violation.

[7] The officer testified in chief that as he was about to head back to the police station to end his shift he observed a Dodge Durango SUV in heavy rush-hour traffic, travelling northbound on Duke of York Boulevard in the City of Mississauga. He ran a query of the license plate and learned that it was a rental vehicle. The officer says that it is his practise to attempt to see the driver of motor vehicles he queries in case a subsequent investigation requires him to describe the driver of the vehicle in question. He attempted to approach the vehicle, but as he attempted to come alongside the SUV it accelerated "rapidly" and changed lanes in an "aggressive" manner as it went through the intersection with City Centre Drive. At this point, Constable Corona determined that he would stop the SUV, but because traffic was heavy, the gap between his police car and the Durango, which had originally been only 2-3 car lengths, became greater as the Durango made several more lane changes through traffic, causing the officer's car to fall further behind.

[8] The officer was candid that he lost sight of the SUV for a period of time, but due to the distinctive "race-track" tail lights of the Durango, he was able to locate the vehicle several blocks away, north of Rathburn Road West, as it turned into a plaza. He eventually followed the same path taken and given that he had already checked that license plate, there was no doubt in Constable Corona's mind that he had found the same Dodge Durango SUV when he blocked in the defendant's rental vehicle in a parking spot at the Playdium parking lot.

[9] I have to determine if the officer's purpose in detaining the applicant provides lawful justification for the initial detention. Certainly, if the officer's purpose is to issue a provincial offence notice for an unsafe lane change, unless there is a co-existing improper purpose animating the police action, it is a lawful exercise of police power and constitutionally permissible: Brown v. Durham Regional Municipality, [1998] O.J. No. 5274 (C.A.). As Justice Doherty held at paragraph 38 of Brown:

While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour.

[10] The applicant alleges that Constable Corona has a history of using low visibility exercises of authority for improper purposes. He cites Justice Hill's decision in R. v. Mascoe, [2017] O.J. No. 4170 (S.C.J.), wherein the court made negative credibility findings of Constable Corona. The applicant also relies upon the officer's testimony about allegations he faces before the Office of the Independent Police Review Director ("OIPRD") for unlawful detention and excessive use of force, in a strikingly similar fact situation, as proof of a pattern of behaviour that includes deception and disregard for constitutional norms.

[11] The respondent submits that the court's finding in Mascoe does not prove any particular modus operandi or pattern and the OIPRD allegations arose after this incident and have yet to be determined.

[12] On all of the evidence, I am unable to accept that there was a legitimate HTA detention when Constable Corona parked his police car in front of the applicant's SUV. I have come to this conclusion for one reason, the officer's evidence is not reliable. There are three examples of the inaccuracy of Constable Corona's testimony.

[13] Firstly, Constable Corona was asked in cross-examination if the alleged unsafe lane change which gave rise to his intention to stop the Durango SUV occurred in the intersection at City Centre Drive. He confirmed that to be the case. The officer also advised in cross-examination that he was two to three car lengths back when he observed this unsafe lane change. He described how the Durango had to make a tight squeeze in front of another vehicle to make the lane change. As well, Constable Corona testified that he was able to follow the Durango into the intersection on the same cycle of traffic lights. At this point in the cross-examination, a video recording of the traffic camera at that intersection was shown to the officer and the court.

[14] Exhibit 7 is a video recording of the traffic going through the intersection of Duke of York Boulevard and City Centre Drive on the date of the alleged offences. Constable Corona authenticated the accuracy of this video recording during his cross-examination. This exhibit completely undermined everything the officer said about his rationale for detaining the applicant.

[15] The video evidence clearly shows a northbound Durango SUV clear the intersection at 5:54:40. The next closest vehicle is three seconds behind, followed by another vehicle four seconds later. This clearly contradicted what the officer said about heavy traffic and the unsafe lane change that occurred right in front of another vehicle within the intersection. Several other vehicles drove northbound through that intersection before the traffic lights turned red at 5:55:06. After the traffic lights cycle for through traffic on City Centre Drive, they turn green again for northbound traffic on Duke of York Boulevard at 5:55:51. The police car driven by Constable Corona is the second vehicle in its lane to go through the intersection. Constable Corona clears that intersection at 5:55:59. Even if I assume that the officer's car and the one ahead of it made it to that intersection just as the traffic lights went red, and I subtract the time taken for the northbound traffic lights to return to green, the police car is approximately 34 seconds behind the Durango SUV, despite the officer's claim to have seen the aggressive lane change from a distance of only two to three car lengths.

[16] Secondly, I have difficulty accepting that the officer ran a check on the license plate of the Durango SUV, as he claimed, before the alleged lane change. The timing of the check of the license plate is significant, because it provided a basis for proving that the officer detained the same motorist at the Playdium parking lot who had made an unsafe lane change moments earlier, some distance away, after he admitted to having lost sight of that Durango SUV.

[17] During cross-examination, counsel confirmed with Constable Corona that according to data collected from the global positioning system ("GPS") of his police vehicle, he was at Duke of York Boulevard and Rathburn Road West at 5:56:59. This is exactly one minute before the officer testified that he ran a check on the applicant's license plate at 5:57:59, and apparently one minute after the officer had already left the intersection at City Centre Drive. Granted, there was no evidence before the court that the times indicated on the traffic camera footage were accurate, the officer accepted the times and authenticated the accuracy of the video. Moreover, given the volume of traffic and the distance from City Centre Drive to Rathburn Road, the times appear to be correct. The point is, the officer's evidence that he queried the license plate of the Durango SUV before the intersection at City Centre Drive cannot possibly be true.

[18] Thirdly, when the officer initially makes contact with the police dispatcher at 6:04 pm he indicates that he is "out with marker CBAC334, 10-4, 10-6." Constable Corona explained that this advises the dispatcher of his traffic stop of a vehicle with the license plate CBAC334 (the applicant's rental vehicle), and that everything was fine. The problem with this information is that by the time he made this radio call, Constable Corona had already arrested the applicant for an alleged breach of a house arrest condition of bail. For some unknown reason, Constable Corona purposely concealed his actual status (he had someone in custody) from the police communicator. In fact, the officer did not give notice of the arrest until 6:19 p.m. There was no acceptable explanation offered for this subterfuge.

[19] In light of these three objective pieces of evidence (the traffic camera footage, the time the officer ran the Durango's license plate, and the recording of what Constable Corona told his dispatcher at 6:04 pm), the probity of the officer's testimony was obscured by half-truths and contradictions.

[20] On the basis of all of the above, I am satisfied on a balance of probabilities that Constable Corona did not observe the applicant make an unsafe lane change, but he decided to detain the applicant for some other unknown reason. This was an arbitrary detention contrary to s. 9 of the Charter.

Was the Applicant's Arrest Lawful

The House Arrest Condition

[21] To be lawful, a warrantless arrest must be based on subjectively held, objectively reasonable grounds for belief that the arrestee has committed a criminal offence: R. v. Storrey, [1990] S.C.J. No. 12.

[22] In this case, while investigating the applicant for a traffic violation, Constable Corona asked him if he had ever been in trouble with the police before. The officer said that he asks this question of almost every motorist he stops, even for traffic investigations, to get an idea of who he is dealing with, for his own safety. The officer said that as the applicant handed the officer a copy of his bail paperwork, he told him "I'm on house arrest, but I'm on bail now, though." The officer took the applicant's copy of his bail recognizance and a bail variation which had been granted the day prior, removing the house arrest condition, but Constable Corona explained that he only read the copy of the bail recognizance and not the second document at that time. Once the officer saw a house arrest condition, he claimed to have formed the grounds to arrest the applicant for breaching that condition. The applicant was told to leave his vehicle and he was quickly escorted out, with minimal force, patted-down, had his pockets emptied, and placed in the back of the police car. Inside the defendant's pockets was Canadian currency in the amount of $1135.

[23] Given that the applicant was on bail for possession of crack cocaine for the purpose of trafficking and breaching a bail order, once the officer found the money in his pockets he suspected that the applicant was a drug dealer. The officer claimed that he also saw a cellular telephone in plain view in the centre console while he initially spoke with the applicant, also in contravention of the terms of the bail recognizance.

[24] In considering whether or not the officer formed a subjective belief that he had reasonable and probable grounds to believe that the applicant had breached his bail, I am mindful that Constable Corona took custody of the applicant. That is only one part of the narrative. At that point, on his own evidence, the officer admitted that he only told the police dispatcher that he was engaged in a traffic stop, rather than advising that he had already made an arrest. Moreover, even though he emptied the applicant's pockets and put him in the back of his police car, Constable Corona testified in chief that he did not handcuff the applicant. Was there some doubt in the officer's mind? Was the officer already aware of the bail variation at the time of the arrest?

[25] During his evidence in chief at this point, the officer testified:

It was a rather minor offence in my perspective, at that time; and I didn't feel the need to cuff Mr. Jama. I hadn't decided what direction I was going to proceed with that investigation, yet, as there was still other factors. Like, he had mentioned to me that he had a bail variation, and variances, contact his lawyer and that we'd figure that out, so I wanted to conduct some CPIC inquiries, first.

The reference to "a bail variation" and "variances" and the uncertainty of what direction he "was going to proceed with" belied his stated belief of reasonable grounds to arrest the applicant.

[26] As well, the misinformation provided to the police dispatcher causes me to doubt Constable Corona's professed subjectively held belief. As a result, I am unable to find that Constable Corona truly believed that the applicant had breached his bail order. But even if I am wrong and the officer genuinely held a subjective belief, I find that it was not objectively reasonable in all of the circumstances.

[27] The officer admits that the defendant was adamant that he was not in breach of his bail. According to Constable Corona, the applicant repeatedly entreated him to call his lawyer to confirm he was entitled to be outside his residence at that time. The officer made enquiries using his police computer, which confirmed the original bail order and the house arrest condition, but he made no efforts to confirm the applicant's stated belief that he was not breaching the bail order.

[28] The Ontario Court of Appeal has long held that police officers are entitled to rely on information they receive in forming their grounds, unless there is good reason to doubt the veracity of that information: R. v. Golub, [1997] O.J. No. 3097 (C.A.) at para. 21.

[29] A more recent decision also makes this point. In R. v. Carelse-Brown, [2016] O.J. No. 6564 (C.A.) the Court of Appeal confirms its earlier reasoning:

In Golub, this court squarely rejected the proposition that an arrest could not be made based on information provided by an unknown source, absent confirmation of that information -- information that may itself be less than exact and complete. In this regard, the words of Doherty J.A., at para. 18 of Golub, bear repeating:

In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[30] In a persuasive decision from the Saskatchewan Court of Appeal, Caldwell J.A. summarized the law this way:

An otherwise lawful arrest is not invalidated by the ex post facto discovery of deficiencies or defects in the information upon which the police have relied to effect the arrest unless, in the circumstances at play in the arrest situation, the police could reasonably have made inquiries which would have led to the discovery of the deficiencies or defects.

[31] In this case, it must be remembered that the initial detention was purportedly made to investigate a traffic violation. Despite the officer's evidence that the applicant was nervous, there was no evidence of any immediate threat to officer safety. The officer was confronted with conflicting information and he had the benefit of questioning the applicant and reviewing paperwork which would have established the applicant's belief. Instead, the officer chose to ignore the applicant's pleas or to look at the paperwork that would have confirmed that as of the day prior, there was no longer a house arrest condition. I find that Constable Corona acted precipitously, and unreasonably in failing to consider the applicant's first-hand knowledge and failing to review both pieces of paper (the bail order and the bail variation) handed to him by the applicant.

The Cell Phone Condition

[32] Constable Corona testified that he observed a cell phone in the cup holder of the centre console while initially speaking with the defendant. Once he became aware of the bail order and reviewed it, he confirmed that the applicant was prohibited from possessing a cell phone. This would have provided ample subjective and objective grounds to arrest the applicant for breaching his bail order. Unlike the house arrest condition, the applicant was not protesting his authority to possess a cell phone and this condition required very little investigation to confirm its existence. Constable Corona says that he was aware of this when he arrested the applicant but he primarily made the arrest on the basis of the house arrest condition.

[33] The applicant urges me to give no weight to the officer's evidence that he saw a cell phone before conducting a search of the vehicle. The applicant points to the officer's testimony about his notes which only mention the cell phone as part of the inventory of the applicant's possessions, without referencing the alleged observations of the cell phone when first speaking to the applicant. The respondent took it as a given that the officer's observations of the cell phone were truthful and did not make submissions on this point.

[34] Again, I find that I am unable to rely upon Constable Corona's evidence. The officer offered no explanation for the absence of the mention of his initial observations of the cell phone in his notes. If this observation was truly on his mind at the time of the arrest, there is no reason that the officer failed to mention this to the applicant. In fact, given the dispute about the house arrest condition, the easiest way to silence the applicant would have been to point to the cell phone in plain view.

[35] I find that the applicant's arrest was made without objectively reasonable grounds due to the officer's failure to act reasonably when confronted with conflicting information. I reject Constable Corona's testimony that he saw a cell phone before conducting the search of the applicant's vehicle. As a consequence, the applicant's arrest was unlawful and contrary to s. 9 of the Charter.

Was the Search Incident to Arrest Lawful

[36] A warrantless search is presumptively unreasonable and contrary to the Charter unless justifiable under the authority of a reasonable law and if carried out in a reasonable manner: R. v. Collins, [1987] S.C.J. No. 15.

[37] In this case, the respondent seeks to justify the warrantless search of the applicant's SUV on the basis of a search incident to arrest. The authority for this search power exists at common law. As explained by Chief Justice Lamer at paragraph 13 of R. v. Caslake, [1998] S.C.J. No. 3:

In Cloutier, supra, my colleague L'Heureux-Dubé J. (for a unanimous Court) discussed this power [search incident to arrest] in detail. She held that it is an exception to the ordinary requirements for a reasonable search (articulated in Hunter, supra) in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probable grounds (under s. 494 of the Code) or an arrest warrant (under s. 495). However, since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in R. v. Stillman, [1997] 1 S.C.R. 607, at para. 27, "[n]o search, no matter how reasonable, may be upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful."

[38] The applicant contends that the search of his vehicle was unreasonable because the arrest was unlawful. Alternatively, if the arrest is found to be lawful, the search is said to have breached the applicant's s. 8 Charter right because it was not truly incidental to his arrest. The applicant contends that a search incident to arrest is not a blanket authorization to search the applicant or his vehicle. Rather, the arresting officer must demonstrate a reasonable interest referable to the arrest for the search to be truly incident thereto. If there is any doubt, submits the applicant, officers should obtain judicial authorization before searching a motorist's vehicle. Furthermore, because there could be no reasonable expectation that he might find evidence of the house arrest condition by searching the Durango SUV, the applicant contends that the search was not incident to the applicant's arrest.

[39] The respondent submits that the officer's stated rationale for the search, to discover further evidence of the applicant's failure to comply with his bail order, was appropriate and fully justified the search which lead to the recovery of the firearm.

[40] I have found that the arrest of the applicant was unlawful. As a result, the search of the applicant's vehicle cannot be justified. The search that discovered the loaded firearm beneath the applicant's seat was unreasonable and contrary to s. 8 of the Charter. However, in the event that I am mistaken about the legality of the arrest, I would have accepted the respondent's submission that the officer was completely justified in searching the vehicle for possible evidence relating to the offence of breach of recognizance.

[41] I have considered the principles relating to searches incident to arrest as articulated by the Ontario Court of Appeal in R. v. Shankar, 2007 ONCA 280, [2007] O.J. No. 1406 (C.A.):

11 The common law power to search incident to arrest endures under the Charter. The power flows from a legal arrest, and there need not be separate reasonable and probable grounds that the search will yield evidence or weapons. However, the scope of the power is constrained by its source, the legal arrest. The main purposes of search incident to arrest have been articulated by the Supreme Court of Canada as follows:

• to ensure the safety of the police and the public; • to prevent the destruction of evidence; and, • to discover evidence of the offence or offences for which the accused was arrested.

See R. v. Caslake (1998), 121 C.C.C. (3d) 97 at paras. 15-25 (S.C.C.) and Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257 at 270-278 (S.C.C.).

12 In order for a search to be incidental to an arrest, the police must have one or more of the valid purposes in mind when the search is conducted, and there must be some reasonable basis for the belief that the purpose will be served. In Caslake, Chief Justice Lamer stressed that this is not a standard of reasonable and probable grounds but, rather, a common sense observation that an objective or purpose cannot be valid if it is not reasonable to pursue it in the circumstances. In making this observation, the Chief Justice cautioned that "[t]he police have considerable leeway in the circumstances of an arrest which they do not have in other situations" (para. 20).

[42] The applicant was arrested for a general offence which may be committed in several ways. The offence at issue was not breaching a house arrest condition, it was breaching a recognizance of bail. Thus, the arresting officer is not restricted to searching for evidence of the applicant's specific failure to abide by one condition of his judicial interim release. To be clear, Constable Corona was entitled to search for evidence relating to all of the terms of the applicant's release, unless it was unreasonable in the circumstances. The officer had found a significant amount of cash on the applicant's person during his arrest and his suspicion that the applicant was engaged in drug trafficking was not without foundation. This suspicion is reasonable and provided the officer with ample justification to search the vehicle for possible evidence relating to the contravention of any of the terms of that release.

Were the Applicant's s. 10(b) Charter Rights Violated

[43] In the applicant's written application there is little specificity with respect to what aspect of the applicant's s. 10 Charter rights were allegedly violated. It was clarified during the application that there were two elements advanced under this ground: first, whether the question asked by Constable Corona - if the applicant had been in trouble with the police before or if he had outstanding charges - became an investigative detention triggering s. 10(b) Charter rights, and second, whether the officer ever informed the applicant of his s. 10(b) Charter rights immediately upon his initial arrest.

[44] There is no issue as between the parties that when the officer initially detained the applicant, it was for an alleged HTA violation. That detention began once the officer parked his vehicle in front of the applicant's and approached the applicant. Assuming for a moment the legality of the HTA stop, the officer was under no duty to provide the applicant with s. 10(b) Charter rights upon the initial detention: see R. v. Harris, 2007 ONCA 574, [2007] 87 O.R. (3rd) 214 (C.A.) at paras. 46-49.

[45] The issue is whether the nature of the detention changed from a traffic investigation into an investigative detention with the question: "have you been in any trouble with the police before or do you have any outstanding charges." There was no evidence offered by the applicant in terms of how he felt when asked this question. The applicant's SUV was blocked in and he was told he was being investigated for an unsafe lane change. The applicant had already provided his license and other documentation before the question was asked. Constable Corona had no lawful reason to ask the question he did.

[46] Not every question posed by an officer creates an investigative detention. As the Supreme Court reiterated in R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 3:

…not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, [in R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49] "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint" (para. 19).

[47] In all of the circumstances, I am satisfied on a balance of probabilities that the applicant would have felt compelled to answer the officer's question. At that moment he was physically and psychologically detained, beyond the HTA investigation. At this point, the applicant's s. 10(b) Charter right was triggered.

[48] When asked this question, it would have been obvious to the applicant that he could not leave. The officer did not caution the applicant that he need not answer the question. The question did not relate to the alleged traffic violation. Rather, the HTA investigation became a convenient portal through which to arbitrarily take the applicant's detention in another direction in order to explore a generalised and unfounded criminal inquisition. At least one group of writers has commented on the problematic nature of this approach:

…criminal investigative inquiries by police incidental to a routine traffic stop, for example, by searching the vehicle or prolonging the encounter longer than necessary for traffic safety purposes to ask questions probing possible criminal activity, will likely run afoul of one or more of sections 8, 9 or 10(b) of the Charter.

In R. v. Mellenthin, [1992] S.C.J. No. 100 at para. 15, Cory J. held that the police have no lawful authority under the guise of a highway safety check to question a driver about the contents of a bag in his back seat in the absence of even the slightest suspicion that there were drugs or alcohol in his possession or that the driver was impaired in any way. Cory J. further concluded that the improper questions constituted the beginning of an unreasonable search that culminated in the unreasonable seizure of the bag.

[49] There is no doubt in my mind that the unwarranted inquiry of Constable Corona became a search for incriminating evidence which unnecessarily prolonged the applicant's detention and engaged the applicant's right to counsel, pursuant to sections 8, 9, and 10(b) of the Charter. When the applicant needed it most, he was denied his s. 10(b) Charter rights.

[50] Although strictly speaking it is unnecessary to consider the other element of the applicant's s. 10(b) Charter argument, I will do so, for the sake of completeness.

[51] Constable Corona accepted the suggestion in cross-examination that at page 6 of his notes he provided the applicant with his rights to counsel at 6:04pm, after placing him in the back of the police cruiser. At all times in his evidence, the officer was consistent respecting the provision of the informational component of the rights to counsel to the applicant. The officer admitted that he did not provide the rights from the pre-printed format in his memo-book at this point, but he did give the applicant a "soft rights to counsel and caution," essentially paraphrasing that "what I told Mr. Jama was the reason he was under arrest, his breach of recognizance, that he had the right to contact a lawyer, that if he didn't have a lawyer, we could provide him one"…"if he didn't have a lawyer, we could arrange a lawyer for him. He indicated he did have one. I also provided the Duty Counsel number: 1-800-265-0451, was a toll-free number"…"I advised Mr. Jama he would be able to speak to a lawyer as soon as practicable, because he was insisting he wanted to contact his lawyer immediately. I also advised him that anything he said to me in relation to his breach would be used against him in court."

[52] Constable Corona did not make a note of the applicant's responses except he remembers that the applicant did mention his lawyer's name, which is the name of counsel for the applicant. The officer explained in his evidence that he knew that the applicant wanted to speak to his lawyer, "immediately" but he was not in a position to accommodate that request at that location. I noted that when the officer testified to these issues he did not refer to his notes, and without pausing he was familiar with and correctly recited the toll-free number for duty counsel.

[53] There is no magic wording that must be used to convey the informational component of s. 10(b). Guidance as to the content of this right is found in the minority decision (concurring in the result) in R. v. Prosper, [1994] S.C.J. No. 72 at para. 103:

This suggests that to comply with the Charter, the caution given on detention must, at a minimum, convey the following information to a detainee about the scope of his or her right to counsel under s. 10(b):

1. It must convey to the detainee that he or she has the right to contact counsel without delay. Phrases such as "You have the right to contact a lawyer immediately" or "You have the right to call a lawyer now" are examples of ways in which this aspect of the right might be communicated to detainees.

2. It must convey to the detainee that his or her right to contact counsel immediately is a right which does not depend on the ability to afford private counsel.

[54] Given the consistency of Constable Corona's testimony, the record in his notes of the provision of the rights to counsel upon the initial arrest, and the absence of any other evidence to the contrary, I accept the officer's evidence on this issue, on a balance of probabilities.

[55] Nonetheless, in light of the reasons above, I find that Constable Corona breached the applicant's s. 10(b) Charter rights when he asked the question which changed the entire nature of the detention from a HTA investigation into an unfounded criminal probe.

Should the Firearm Evidence be Excluded from the Trial

[56] Section 24(2) of the Charter recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct with a qualitative analysis of the long-term effect upon public confidence in the criminal justice system.

[57] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the applicant; and

iii. Society's interest in the adjudication of the case on its merits.

[58] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor "pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case."

Seriousness of the Charter-Infringing State Conduct

[59] I recognize that there is a reduced expectation of privacy in vehicles, both because of the public nature of the activity and because driving is heavily regulated. But that does not afford the police a license to improperly detain motorists and search for evidence of unsuspected criminality without regard for individual liberties.

[60] In this case, the Charter violations are several and they involve inappropriate police behaviour from the initial detention until the recovery of evidence. This is not a situation involving an isolated Charter violation by an unsophisticated state actor or a novice who was uncertain of his authority in an unsettled area of the law. Instead, this is a case where the officer recognized several constitutional standards, but at various times he ignored them. On 17 February 2017, Constable Corona masked his intentions and his behaviour behind legitimate police endeavours (traffic enforcement) and in so doing, he has harmed his credibility before the court.

[61] I find that the Charter violations compounded as the unlawful detention became an unlawful arrest, without the protection of the right to counsel. These violations of the applicant's liberty and security of the person directly lead to an unreasonable search and seizure. Courts must distance themselves from intentional, numerous, and significant deprivations of constitutionally enshrined protections. As a result I find that these were serious breaches which strongly favour exclusion of the evidence.

Impact of the Breaches on the Applicant's Charter-Protected Interests

[62] These breaches were not trivial, fleeting, or technical. They were easily avoidable. Their effect impacted upon the applicant's personal autonomy, liberty, and his security of the person. There was also a minimal impact upon his privacy, in terms of the search of the lawful contents of pockets and his rental vehicle. I have no doubt that the applicant would have felt helpless to dissuade Constable Corona from an inappropriate arrest when he handed over the paperwork that could have completely absolved him of any suspicion and it was deliberately disregarded. When assessing these impacts, I can do no better than to quote our Court of Appeal:

The appellant's arbitrary detention effectively negated his personal liberty. Not only was he imprisoned, but he was imprisoned in a manner that left him vulnerable to further police misconduct. The police took advantage of the appellant's arbitrary detention to unlawfully search the appellant. That conduct led directly to the discovery of incriminating evidence. The strong causal connection between the denial of the appellant's liberty, the unconstitutional search of his person and the subsequent obtaining of the incriminating evidence speaks to the profound impact of the breaches on the appellant's Charter-protected interests.

Society's Interest in the Adjudication of the Case on its Merits

[63] Firearms offences are among the most serious in the Criminal Code. Gun-toting drug-dealers are a plague in our community. Residents in Peel Region are rightly disappointed when reliable evidence which pre-exists any Charter violations is found to be inadmissible, thereby preventing someone like the applicant from facing justice.

[64] As a resident of this community for over 22 years, I am also aware of the chasm of public trust caused by police officers acting beyond the limits of their authority. This too, is no small problem for our community. Peel Region is a diverse cultural mosaic like few others. The Charter rights of all of our residents are at risk when the rights of young men of colour, like the applicant, are trampled upon by the excesses of heavy police boots.

[65] In balancing the growing public need for transparency and the restoration of trust in our institutions, I find that the need in this case for a trial on the merits is greatly outweighed by our community's interest in appropriate, balanced, and constitutionally-compliant policing and an independent and impartial court. The bitter pill of this decision is a necessary remedy for the long-term well-being and public confidence in the administration of justice in Peel Region.

Conclusion

[66] All three Grant factors weigh in favour of excluding the firearm evidence in this prosecution.

[67] The application is granted.

Released: 24 January 2018

Justice G. Paul Renwick