ONTARIO COURT OF JUSTICE

CITATION: R. v. Brown, 2019 ONCJ 56

DATE: 2019 02 05

COURT FILE No.: Regional Municipality of Waterloo [Kitchener]

18/005178

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GORDON BROWN

Before Justice C.A. PARRY

Heard on December 11, 2018

Reasons for Judgment released on February 5, 2019

Alysha Bain.......................................................................................... counsel for the Crown

Harald Mattson.................................................. counsel for the accused Gordon Brown

PARRY J.:

I. INTRODUCTION

[1] Constable Denig was just going for a cup of coffee. He never made it to the coffee shop. On the way, he stopped Gordon Brown and arrested him for driving under suspension, despite intending to immediately release him. After searching Gordon Brown’s backpack during the arrest, he arrested Mr. Brown for two more offences: possession of about 5.36 grams of fentanyl for the purpose of trafficking and possession of marijuana that weighed less than 30 grams. Mr. Brown now stands trial before me on these two drug offences.

[2] In this trial, Mr. Brown challenges the constitutionality of the search of his backpack by Cst. Denig. He alleges that the search was not truly incidental to his arrest. He also argues that the arrest itself was not lawful and that the search therefore had no lawful foundation. Accordingly, Mr. Brown contends that Constable Denig violated his rights against arbitrary detention and unreasonable searches and seizures. He therefore seeks to exclude from his trial the fruits of the search of his backpack.

[3] As might be expected, given that this was a contested Charter application, the Crown’s contention stands diametrically opposed to Mr. Brown’s.

[4] Only Constable Denig testified on the Charter application. Mr. Brown did not testify. Because Denig conducted his search without a warrant, he [or more precisely, the state for whom he was acting] bore the burden of establishing on a balance of probabilities that his search was reasonable. In order to do so, his evidence had to establish that the arrest was lawful and that the search was truly incidental to the arrest.

[5] I have considered Constable Denig’s evidence and have come to the conclusion that I cannot accept his explanation for his conduct. In the end, I am not satisfied on a balance of probabilities that the arrest was the product of a constitutionally valid exercise of Constable Denig’s discretion. I am also not satisfied on a balance of probabilities that Constable Denig performed the search of Mr. Brown’s backpack for a purpose truly related to Mr. Brown’s arrest for Drive Suspended. Indeed, I am left concluding that Constable Denig most likely performed the arrest and corresponding search for purposes unrelated to the enforcement of the Highway Traffic Act. While I cannot be completely certain of this conclusion, I am certain that Constable Denig’s unsatisfactory explanations for his conduct are the cause of any degree of uncertainty. Constable Denig’s evidence did not credibly explain the reasons for his arrest and the search that flowed from it. He therefore failed to rebut the presumption that this war­rant­less search was an unreasonable one.

II. ANALYSIS OF THE EVIDENCE OF CONSTABLE DENIG AND FACTUAL FINDINGS

[6] On July 23, 2018, Constable Denig was on uniform patrol.

[7] At around 3:30 p.m., he felt like a coffee.

[8] While driving to buy a coffee, Constable Denig approached a house at the corner of Guelph Street and Floyd Street in the City of Kitchener. As he approached, several people disbursed: Mr. Brown on his e-bike and the others on their bikes. Rather than continue on his way for his coffee, Denig performed a u-turn and followed Mr. Brown.

[9] Mr. Brown’s e-bike was not equipped with pedals. Denig drew the natural conclusion that the bike was being propelled by an electric motor. Accordingly, it qualified as a motor vehicle within the meaning of the Highway Traffic Act.

[10] According to Denig, the vehicle drove away at a high rate of speed – a curious assertion since e-bikes by design and statutory definition are incapable of exceeding the default city speed limit of 50 km/h. They hardly qualify as speedy vehicles. This aspect of Denig’s narrative struck me as an embellishment intended to bolster the validity of Denig’s subsequent conduct. It is the first aspect of his evidence that causes me to distrust his evidence.

[11] Mr. Brown turned left from Guelph Street onto Margaret Avenue. Then three blocks later he turned right onto Louisa Street. While Guelph and Louisa Streets are residential streets, they are busy ones and commonly used by motorists travelling east and west between major north-south arteries like King Street, Weber Street and Margaret Avenue. Constable Denig was one such motorist. Nevertheless, Constable Denig considered Mr. Brown’s zig-zag trajectory to be suspicious, and possibly evasive. He purportedly began to wonder if Mr. Brown’s licence was under suspension. He testified that he consequently decided to forgo his coffee and check the status of Mr. Brown’s licence. He made the traffic stop at 3:35 p.m. on Louisa Street, just near Weber Street.

[12] Constable Denig exited his cruiser, approached Mr. Brown, and advised him of the reason for the stop. After discussing the absent pedals, Constable Denig asked Mr. Brown to identify himself. Mr. Brown verbally identified himself as Gordon Brown, with a date of birth of May 29, 1977. He also provided his address, 1173 Victoria Street North, the address of a local motel. Mr. Brown was cooperative during his initial interactions with Denig. Constable Denig believed that Mr. Brown had provided him with the correct name and date of birth. Interestingly, he recognized the name, and consequently decided to perform a CPIC inquiry.

[13] Constable Denig also alleged that he asked Mr. Brown for a physical piece of identification. He did not make notes of this request. He also did not make note of any response to this alleged request. He consequently agreed that he could not claim that Mr. Brown refused any request to provide a physical piece of identification. I conclude that, had Denig made a request for physical identification and had Mr. Brown refused it, Denig would not only remember this sequence of events, he would have recorded it. I therefore reject Denig’s claim that he asked for physical identification.

[14] Interestingly, Constable Denig did NOT recall ever asking Mr. Brown to produce a driver’s licence, despite making the assertion that he was conducting the stop for the purpose of determining the status of Mr. Brown’s licence. This omission causes me to question the credibility of Denig’s stated purpose for stopping Mr. Brown. If Denig truly performed the stop to confirm that Mr. Brown had a valid driver’s licence, then surely he would have asked Mr. Brown to produce one. Given the circumstances that sparked Denig’s u-turn, Denig’s embellishment of Mr. Brown’s alleged speed, and the failure to ask Brown for a driver’s licence, I am not satisfied on a balance of probabilities that the purpose of the stop was in fact to ensure that Mr. Brown was driving with a valid licence. Instead, the circumstances of this stop cause me to have grounds to conclude that Denig was most likely conducting a generalized criminal inquiry of Mr. Brown. The CPIC check on Mr. Brown was the next step in this inquiry.

[15] The results of CPIC query did not undermine Denig’s belief that the accused had provided him with correct identification. Although the computer query gave Denig the opportunity to consult identification photographs to confirm Mr. Brown’s purported identity, Denig did not take advantage of this investigative tool. Having regard to the failure to ask for a driver's licence and the failure to look at N.I.C.H.E. photos, both obvious and routine police procedures, I conclude that Denig was completely satisfied with the accuracy of Mr. Brown’s self-identification.

[16] The CPIC query also revealed that Mr. Brown was under two HTA suspensions: one for unpaid fines and one so called “remedial” suspension. CPIC also flagged Mr. Brown as being potentially violent. Satisfied that he was dealing with the person described in the CPIC query, Constable Denig resolved to charge Mr. Brown for the HTA offence of Drive Under Suspension. Charging the wrong person would, of course, have serious consequences for the real Mr. Brown. The fact Denig was prepared to proceed with a charge against his suspect further confirms my belief that Denig was completely satisfied with the accuracy of the identification provided to him.

[17] By the time he returned from his cruiser to advise Mr. Brown of the charge, Constable Denig had also resolved to ultimately release Mr. Brown at the scene. He planned to release Mr. Brown on a Part III summons. However, he also paradoxically decided to arrest Mr. Brown before releasing him.

[18] While he testified the search of the bag was the for the purpose of locating best evidence of identity, Constable Denig specifically denied arresting Mr. Brown to obtain proof of Mr. Brown’s identity. He also specifically denied arresting Mr. Brown for the purpose of finding or preserving evidence of the offence.

[19] Constable Denig initially explained that he arrested Mr. Brown for Cst. Denig’s safety. Later in his evidence in-chief, when asked to elaborate upon his decision to arrest, he did not voice safety concerns. Instead, Constable Denig claimed to be concerned that Mr. Brown might jump back onto his e-bike and flee the scene before Denig could write the summons. He mentioned that he recently had another cooperative driver flee from him. This apparent contradiction between Denig’s initial explanation for the arrest and his subsequent in-chief explanation for the arrest causes me to question Denig’s credibility and disbelieve both claims.

[20] With regard to the purported safety concerns, this evidence appeared to be given reflexively, as if it was a go-to response for such situations. It was also abandoned about as quickly as it was offered. It also ignores the reality, which I have routinely observed in my last 20 years of involvement in the criminal justice system in this region, that the location of the arrest was essentially in the downtown core, a short hop from Central Division, and inevitably a short distance away from various other officers patrolling the downtown core at any given point on any given day. Despite this obvious reality, Denig does not come remotely close to suggesting that safety concerns caused him to notify dispatch of his stop and inquire about the availability of nearby backup. I also note that Constable Denig never once suggested that he searched Mr. Brown’s backpack for weapons. Surely, if officer safety was foremost in his mind, he might have been keen to know whether or not the backpack contained anything capable of causing him harm. Given the above noted circumstances and Denig’s concession that the accused was at all times cooperative, I disbelieve Denig’s purported safety concerns.

[21] With regard to Constable Denig’s purported flight concerns, I note that Denig did not explain the circumstances of the previous fleeing driver, the circumstances of the traffic stop, the presence or absence of a valid driver’s licence, whether the vehicle driven by that driver was capable of actually exceeding the speed limit, the motives for that driver’s flight, or the precise offences for which that other drive might be charged. It is therefore extremely difficult to assess the relevance of Denig’s past experience with that fleeing driver.

[22] In support of his purported flight concerns, Denig provided only the following underwhelming factors:

(1) He alleged that Mr. Brown drove in an evasive fashion, having made 2 turns over the course of about 7 city blocks;

(2) He alleged that an e-bike with a maximum speed incapable of exceeding the speed limit drove away at a high rate of speed;

(3) He alleged that Mr. Brown was cooperative when speaking with him, albeit not happy about the stop;

(4) He alleged that CPIC had noted that this currently cooperative man had been flagged as violent.

[23] As previously noted, I am of the view that Denig embellished his concerns about Mr. Brown’s driving conduct to bolster his explanations for his own conduct. This embellishment contributes to my disbelief of Denig’s purported flight concern.

[24] Constable Denig’s failure to resort to less intrusive measures to address his so-called flight concerns also causes me to question the existence of those flight concerns. Constable Denig had a number of obvious options available to him to assuage his flight concerns. He employed none of them. For example, he could have told Mr. Brown that he planned to release him from the scene on a summons, so as to remove the motive to flee. He did not do so. He could have asked Mr. Brown to step away from the e-bike and come to the back of the cruiser to receive a summons. He failed to do so. He could have taken the keys from Mr. Brown to prevent a relatively low speed flight from the scene. He did not do so. Indeed, sections 55.1 and 55.2 of the HTA mandate the impoundment of any motor vehicle driven by a person driving while under suspension. Impoundment was compulsory and inevitable. Impoundment ultimately occurred after Mr. Brown’s arrest. Taking the keys from the accused would be a logical first step in that impoundment and taking the keys would prevent Mr. Brown from driving off. Constable Denig nevertheless did not take the keys. Instead of taking palpably obvious steps to assuage his alleged concern, Constable Denig arrested a man he intended all along to release. In doing so, Denig fundamentally increased the restraint on Mr. Brown’s liberty and the intrusion into Mr. Brown’s reasonable expectation of privacy. The resort to this more intrusive course of conduct and the failure to take more obvious and less intrusive measures causes me to disbelieve Constable Denig’s purported reason for arresting Mr. Brown.

[25] After arresting Mr. Brown, Constable Denig advised Mr. Brown of his right to counsel. He then performed a pat down search of Mr. Brown before lodging Mr. Brown in the cruiser. During the pat down search, Constable Denig located Mr. Brown’s cell phone. He placed the cell phone in the back of his cruiser.

[26] After the pat down search, Constable Denig searched Mr. Brown’s backpack. He testified that it was a search for the best evidence of Mr. Brown’s identification. He purportedly searched for this physical identification, despite not recalling whether or not Mr. Brown ever refused to provide physical identification prior to arrest. He also purportedly searched for physical identification, despite already admittedly being satisfied that Mr. Brown had correctly identified himself – satisfied to the point that he was able to charge Mr. Brown.

[27] In summary, having considered the above noted evidence, I have come to the conclusion that I do not find credible Constable Denig’s explanation for his arrest of Mr. Brown. I simply cannot believe his evidence on a balance of probabilities. Instead, the evidence causes me to conclude that Constable Denig most likely detained, questioned, and ultimately arrested Mr. Brown to further an unfounded general criminal inquisition of him.

[28] My conclusion that Denig was conducting a groundless general criminal inquiry leads me to conclude that Denig searched Mr. Brown’s backpack in furtherance of that inquiry and to reject Denig’s claim that he was looking for best evidence of Mr. Brown’s identity. In coming to this conclusion, I also rely upon Denig’s belief in the correctness of Mr. Brown’s self-identification and the failure of Denig to take any pre-arrest steps to obtain a driver’s licence or any other physical evidence of identity. Taken as a whole, the circumstances suggest that Denig was most likely looking for evidence of criminal conduct – not for identification.

[29] To summarize, the following areas of evidence cause me to reject Constable Denig’s evidence regarding the reason for the stop, the reason for the arrest, and the reason for the search of Mr. Brown’s backpack:

(1) It is not lost on me that Denig noticed Mr. Brown and several bicyclists immediately departing the Union Street address upon sight of Denig’s cruiser. They must have appeared to Denig like bugs dispersing from under a raised rock. Rather than continue for his coffee break, Denig performed a u-turn and then followed Mr. Brown for about 7 city blocks before ever initiating a stop. The whole situation gives me grounds to conclude that the entire episode was most likely a pre-emptive search for criminal activity from the get-go;

(2) Constable Denig’s embellishment of Mr. Brown’s speed and evasive driving prior to the stop;

(3) Denig’s failure to testify that he ever even asked Brown to produce a driver’s licence at any point prior to arrest. This is the first question one might consider asking if one was truly investigating the licence status of the driver. The pretext of a licencing investigation was dispelled by this failure to ask for a licence;

(4) Denig’s failure to make notes of his purported request for physical identification prior to arrest [a request which would have eliminated the need to search for best evidence of identification after the arrest];

(5) Denig’s inability to allege that Mr. Brown ever refused or professed an inability to provide physical identification prior to arrest;

(6) Denig’s acceptance of the truth of Mr. Brown’s verbal identification (to the point of laying a Drive Suspended Charge against a person with that name);

(7) Denig’s immediate CPIC investigation upon receipt of a familiar name and without the request for a driver's licence, all of which suggests a generalized inquiry concerned with far more that Mr. Brown’s licence status. I suspect the results of the CPIC query, which appear to likely to have confirmed a criminal history [“flagged as violent”] caused Denig to have interest finding far more than physical identification in Mr. Brown’s bag and on Mr. Brown’s person;

(8) Denig’s conflicting reasons for arresting Mr. Brown, neither of which I found credible; and

(9) Denig’s failure to take obvious less invasive steps to assuage his purported flight concerns, all of which would have eliminated the need to place Mr. Brown under an ephemeral arrest while Denig quickly wrote a ticket.

[30] Given the above noted evidence and my findings and concerns regarding that evidence, I reject on a balance of probabilities Denig’s claim that he arrested Mr. Brown to prevent a possible flight from the scene, that he arrested Mr. Brown due to safety concerns, and that he was looking for best evidence of identification following that arrest. I also come to the conclusion that the entire episode was most likely a pre-emptive general inquiry into Mr. Brown and his involvement in possible criminal activity.

[31] During the search of Mr. Brown’s backpack, Constable Denig located two dime bags and one larger Ziploc back, all containing fentanyl. One dime bag had .47 grams of fentanyl, the other .57 grams. The Ziploc back contained about 4.32 grams. Denig also located a small quantity of marijuana, a digital scale, a 100 gram weight, empty dime bags, and $140.

[32] Based on his discovery, Constable Denig rearrested Mr. Brown for Possession for the Purpose of Trafficking. He also re-advised Mr. Brown of his right to counsel. Faced with this dramatic turn of events, Mr. Brown asked to speak to his lawyer.

[33] I must now assess the constitutional ramifications of my assessment of Constable Denig’s explanation for the arrest of Mr. Brown and the search of his bag.

III. THE GOVERNING STATUTORY AND CONSTITUTIONAL PRINCIPLES AND THEIR APPLICATION TO THE FACTS OF THIS CASE

[34] Section 216 of the Highway Traffic Act empowers a peace officer, acting in the lawful execution of his duties to stop a motorist to conduct driving and road safety inquiries. Once concerns relating to the driving and road safety are removed as the basis for the stop, the power conferred by section 216 of the Highway Traffic Act cannot be used as a lawful justification for that stop: R. v. Simpson, [1993] O.J. No. 308.

[35] I am not satisfied on a balance of probabilities that Constable Denig conducted the stop for a purpose authorized by the Highway Traffic Act. Having said that, Mr. Brown has not alleged that the initial stop was unlawful, nor has he alleged that it resulted in an arbitrary detention. I will therefore refrain from making any ruling regarding the constitutionality of Denig’s initial traffic stop, except insofar as such a ruling is relevant to the question of the remedy for the subsequent alleged violations of Mr. Brown’s section 8 and 9 Charter rights.

[36] I turn now to the issues germane Denig’s arrest of Mr. Brown and the search of his backpack.

[37] Section 8 of the Charter protects individuals from unreasonable state intrusions upon an individual’s reasonable expectation of privacy. When an individual has a reasonable expectation of privacy, he/she has standing to challenge any state instruction upon that privacy interest.

[38] Mr. Brown had a reasonable expectation of privacy in the contents of his pockets and in the backpack he carried: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Mr. Brown therefore has standing to challenge Constable Denig’s search of his person and backpack.

[39] Section 8 exists to prevent unjustified state intrusions upon the privacy rights of citizens before those intrusions ever occur. Consequently and generally speaking, prior judicial authorization is a presumptive precondition for a constitutionally valid search and seizure. Any warrantless search and seizure is presumed to be unreasonable and the Crown bears the onus of proving that a warrantless search was nevertheless a reasonable one: Hunter v. Southam, [1984] S.C.J. No. 36.

[40] Constable Denig conducted the search of Mr. Brown’s person and backpack without first seeking a warrant. This search was therefore prima facie unreasonable. The Crown therefore bears the onus of establishing that this search was nevertheless a reasonable intrusion upon Mr. Brown’s right to privacy.

[41] In order to establish that a warrantless search was a reasonable one, the Crown must establish on a balance of probabilities that the search was (1) authorized by law; (2) the law itself was reasonable; and (3) the search was carried out in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265.

[42] The common law has long recognized the power of the police to conduct searches incident to lawful arrests. A search incident to arrest does not require reasonable and probable grounds, beyond the grounds that were sufficient to support the lawfulness of the arrest. This search power is a discretionary power. However, the search must be conducted for a valid purpose. In that regard, the officer may conduct the search to protect police or the arrestee, preserve evidence related to the offence, or find evidence related to the offence: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Caslake, [1998] 1 S.C.R. 51. These searches may extend to the arrestee’s immediate surroundings and possessions, including, for example, his car, his phone, or his bags: Caslake, supra, and Fearon, supra.

[43] Mr. Brown was wearing his backpack at the time of his arrest. If the arrest was lawful and the purpose of the search was truly incident to arrest, the power to search incident to arrest would definitely extend to a search of this backpack.

[44] On the other hand, if the arrest was unlawful, then the arrest by definition constituted an arbitrary detention: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33. Also, without the presence of a lawful arrest, the power to search incident to that lawful arrest never materializes.

[45] In Mr. Brown’s case, the Crown argues that the search was conducted pursuant to a lawful arrest, that the search was truly incidental to that arrest, and that the search was therefore reasonable. In assessing the Crown’s position, I must first examine the lawfulness of the arrest.

[46] Section 217 of the Highway Traffic Act empowers a police officer to arrest an individual who is found driving while under suspension. The power is a discretionary one. In the exercise of his discretion, an officer cannot act arbitrarily. For example, it goes without saying that the officer cannot base his decision to arrest on the arrestee’s race, religion, or gender. While these examples of the arbitrary exercise of a discretion are obvious, it is not always easy to identify the line between proper uses of the arrest discretion and arbitrary ones.

[47] In the criminal law context, the Criminal Code provides statutory parameters for the lawful exercise of the police discretion to arrest. Section 495(2) mandates that

A peace officer shall not arrest a person without warrant …in any case where he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

[48] In sum, an arrest under the Criminal Code must be only be done if reasonable and probable grounds exist to believe that the public interest can only be served if the officer arrests the accused. The service of the public interest is defined as including establishing the identity of the accused, securing or preserving evidence, prevention of the repetition of the offence, or prevention the accused’s failure to attend court as required.

[49] Strangely, the Provincial Offences Act does not similarly circumscribe the police arrest power. Instead, the POA seeks to close the door after the horse has left the barn. The limiting parameters apply post-arrest, not pre-arrest. Those parameters are found in section 149 of the POA. Section 149 of the POA dictates that the police must release the already arrested party on a summons or offence notice unless reasonable grounds exist to believe that it is necessary in the public interest to continue the detention, including the need to establish the arrestee’s identity, secure or preserve evidence relating to the offence, or prevent the continuation/repetition of the offence or the commission of another offence. The POA criteria that restrain the exercise of the police power are virtually identical to those in the Criminal Code, except the POA criteria do not serve to prevent the commencement of an unjustified arrest, but rather to prevent the continuation of one.

[50] I must say that I find it strangely ironic that the Criminal Code, which deals with many far more serious charges than the HTA, imposes explicit limits on the exercise of a police officer’s discretion to arrest, yet the HTA does not. In the result, a person who commits a non-criminal offence has less statutory protection against an arbitrary exercise of a statutory arrest power by a police officer than a person who commits a criminal offence.

[51] Fortunately, the Supreme Court offers some guidance on this subject. In R. v. Aucoin, 2012 SCC 66, [2012] S.C.J. No. 66, Justice Moldaver, speaking for the majority of the court [and placing reliance upon the earlier decision of R. v. Clayton, 2007 SCC 32, [2007] S.C.J. No. 32], held that the existence of a police power to detain does not, by itself, answer whether the exercise of that power was reasonable in the circumstances of a given case. In other words, the existence of a power and its constitutional use are not necessarily synonymous. Once the court is satisfied that the police had the power to detain an individual, the court must go on to ask whether, in all the circumstances, that detention was reasonably necessary.

[52] I appreciate that the Aucoin case dealt with a common law detention for the purpose of issuing a ticket for a non-arrestable offence. The situation in Aucoin was thus slightly different than Mr. Brown’s case: it dealt with the common law power to carry out an investigative detention in while carrying out a statutory duty. However, I must conclude that the mandated principles governing the constitutional exercise of the police power to detain have equal application to the police power to arrest. In my view, this conclusion is the logical extension of the principles enunciated in Aucoin. In arriving at this conclusion, I follow the lead of Justice Gee in R. v. Bains, [2016] O.J. No. 691, at para 34.

[53] Section 495(2) of the Criminal Code provides a statutory articulation of situations in which it might be reasonably necessary to employ the discretion to arrest an individual: if reasonable grounds exist to conclude the arrest is in the interests of justice; in this context, the interests of justice include the need to identify the suspect, to preserve evidence, to find evidence, to prevent the continuation of the offence, and to ensure the accused attends court. While that list may not be exhaustive, it is a good start – and likely describes almost every justifiable decision to arrest.

[54] In Mr. Brown’s case, I have rejected Constable Denig’s prima facie conflicting assertions that the arrest was performed either for officer safety or to prevent his flight. He has provided no other credible explanation as to why the arrest was reasonably necessary in all the circumstances. Indeed, the circumstances cause me to believe that the officer was most probably engaged in a pre-emptive search for criminal activity, without the requisite grounds to engage in such a search. This belief is not necessary to govern the result, however. The lack of a credible explanation for the decision to arrest Mr. Brown, leads inexorably to the conclusion that Crown has not shown that the arrest was reasonably necessary in all the circumstances. The arrest was therefore unlawful and constituted an arbitrary detention, in contravention of Mr. Brown’s section 9 Charter right.

[55] Having concluded that the arrest was unlawful, I also conclude that the Crown has failed to establish on a balance of probabilities that the search was justified as being incident to a lawful arrest. The Crown has therefore failed to rebut the presumption that the search violated Mr. Brown’s section 8 Charter right.

[56] Even if I had concluded that arrest was lawful, I reject on a balance of probabilities Constable Denig’s explanation for the search of the backpack. I reject his assertion that he was looking for best evidence of identity. He has also not satisfied me that he was searching for evidence of the offence, seeking to preserve evidence of the offence, or seeking to ensure his safety or that of Mr. Brown. As a result, I conclude that Constable Denig has not established that the search was truly incidental to his arrest. Again, I conclude that Denig was most likely searching for evidence of other criminal activity. But that suspicion is not necessary to come to the conclusion that the Crown has failed to establish that this search was authorized by law. On this basis, the Crown has therefore failed to rebut the presumption that the search was unreasonable and a violation of section 8.

[57] For all of the above reasons, I conclude that Constable Denig arbitrarily detained Mr. Brown and conducted an unreasonable search of Mr. Brown’s backpack, which in turn lead to an unreasonable seizure of the drugs that give rise to the charges against Mr. Brown.

IV. SECTION 24(2) OF THE CHARTER AND THE REMEDY FOR THE UNREASON­ABLE SEARCH

[58] There exists an undeniable causal connection between Constable Denig’s arbitrary detention and unreasonable search, on the one hand, and the search and the discovery and seizure of the drugs, on the other, which the Mr. Brown seeks to exclude from the evidence in his trial. This conclusion compels a determination of the appropriateness of the exclusion of the evidence obtained during the course of the breach of Mr. Brown’s constitutional rights: R. v. Pino, 2016 ONCA 389, [2016] O.J. No. 2656.

[59] Section 24(2) of the Charter of Rights and Freedoms requires that I exclude the seized drugs if Mr. Brown establishes on a balance of probabilities that the admission of this evidence would bring the administration of justice into further disrepute. In assessing the effect of the admission of the evidence, I must examine the seriousness of the constitutional violation, the impact of that violation on the Charter protected interests of Mr. Brown, and society’s interest in the conduct of a trial on the merits of the case. The weighing of these three factors is a qualitative, not quantitative analysis. It is not a best out of three contest. Having said that, if shown to exist, the presence of a serious breach and a significant intrusion upon Charter protected interests tend to favour the exclusion of evidence, while society’s interests in a trial on its merits will almost invariably favour the admission of the evidence. When the breach is both serious and the intrusion is significant, society’s interests in a trial will rarely if ever tip the scales in favour of admission. This third factor becomes more important when only one, but not both, of the first two factors favours exclusion – or when both of the first two factors only mildly favour exclusion: R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504.

[60] In Mr. Brown’s case, I consider the Charter violations to be very serious. I have rejected the officer’s explanation for both the reason for the search and the reason for the arrest that justified the search – and, for that matter the officer’s explanation of the reason for the original detention. I have found his explanations to lack credibility, to put it mildly. This credibility finding, in and of itself tends to favour exclusion: R. v. Procyk, [2018] ONCJ 857. I have also found that the officer was most likely engaged in an unlawful and unjustified general inquisition into Mr. Brown’s possible involvement into criminal activity. I regard the unreasonable search as a flagrant one, not a mere technical or inadvertent infringement of Mr. Brown’s rights. Moreover, the unreasonable search flowed from an arbitrary arrest, which itself constitutes a violation of Mr. Brown’s right to be free from arbitrary detentions. This unlawful arrest flowed from a traffic stop, which I have concluded was not performed for the purported purpose of confirming Mr. Brown’s licence to drive. Furthermore, once bona fides Highway Traffic Act inquiries are removed as a justification for the initial detention and subsequent investigation, there also no longer exists a lawful justification for the deprivation of Mr. Brown’s right to counsel upon his initial detention. In short, the police conduct constituted a cluster of flagrant breaches of Mr. Brown’s constitutional rights. The court must disassociate itself from such conduct. Admission of the evidence that is the fruit of such conduct would encourage, rather than discourage its repetition.

[61] I also consider the breaches to have had a significant impact upon Mr. Brown’s Charter protected rights. In R. v. Ward, 2012 ONCA 660, at para 71, Justice Doherty described the concept of privacy as follows:

Personal privacy is about more than secrecy and confidentiality. Privacy is about being left alone by the state and not being liable to be called to account for anything and everything one does, says or thinks. Personal privacy protects an individual's ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual's personal growth and the flourishing of an open and democratic society.

The detention, inquisition, arrest, and then search had a dramatic impact upon Mr. Brown’s liberty of movement, his right to be left alone by the state, his security of the person, and his right to have his private affairs remain private. This generalized inquisition was conducted without giving Mr. Brown immediate access to counsel, so that he might properly assess the appropriateness of the officer’s initial detention. Admission of the evidence in the circumstances of this case would send the message that the rights we should all take for granted in fact count for little.

[62] Society, of course, has an interest in seeing Mr. Brown’s charges adjudicated on its merits. The evidence discovered during the course of the Charter breaches is crucial to the Crown’s case. Exclusion will inevitably result in the accused’s acquittal on a very serious drug charge. This factor favours admission of the evidence.

[63] Given my findings regarding the seriousness of the police misconduct and the impact of that misconduct on the accused’s Charter protected interests, and despite society’s interests in the adjudication of the case on its merits, I must conclude that the drugs discovered by Constable Denig must be excluded from this trial.

[64] Without the availability of this evidence, the Crown has no evidence capable of establishing Mr. Brown’s guilt.

[65] Mr. Brown will therefore be acquitted on both counts.

Released: February 5, 2019

Signed: Justice C.A. PARRY