R. v. Stevens

Ontario Court of Justice

Date: March 30, 2020

Before: Justice P. Downes

Heard: March 2 & 3, 2020

Reasons for Judgment Released: March 30, 2020

Counsel

For the Crown: B. Snow

For the Defendant, Andre Stevens: J. Casey

1. Overview

[1] On a summer night in 2018, a police officer in plain clothes was driving along Lawrence Avenue East in Scarborough when he saw a marked police cruiser about to turn off Lawrence onto Canlish Road, an area of recent serious gun crime. The officer thought the presence of the cruiser might stimulate activity in the immediate area. He was right. He saw a group of young men running away from Canlish onto Lawrence. As he slowed down, he saw two of the young men conduct what he believed to be a "hand-to-hand" drug transaction. One of them was Mr. Stevens. The officer contacted uniform patrol officers and gave a description of the men. He then tracked them into the housing complex off Canlish.

[2] On the basis of what the officer said he saw, the uniformed officers caught up with Mr. Stevens and engaged him in an investigative detention. According to one of the officers, when he told Mr. Stevens why they were detaining him, Mr. Stevens said that he only had "weed" and produced a bag of marihuana from his satchel. The officer then arrested Mr. Stevens for possession of marihuana. In the ensuing struggle the officer felt the shape of a firearm in Mr. Stevens' satchel. When the satchel was searched it was found to contain a loaded handgun as well as marihuana, cocaine and methamphetamine.

[3] Mr. Stevens is facing numerous gun and drug charges. His defence is exclusively Charter-based. His primary submission is that his s. 9 rights were breached because the basis for his initial detention – the plain-clothes officer's claim to have seen the drug deal – is not supported by the evidence. The grounds for his detention were therefore non-existent and resulted in a violation of s. 9 of the Charter both for his detention and his subsequent arrest. He says there was an accompanying breach of s. 8 in the search of his satchel incident to his arrest, and that his right to counsel under s. 10 was breached in a variety of ways upon his initial detention and his subsequent arrest both at the scene and at the police station.

[4] In my view Mr. Stevens has met his burden of making out the s. 8 and 9 violations. A careful examination of D.C. Reeves' testimony, assessed in the context of the CCTV evidence, demonstrates that his description of what he saw and did cannot be accurate and cannot be relied on. As a result, I find that D.C. Reeves did not have reasonable grounds to suspect that Mr. Stevens was involved in criminal activity, making Mr. Stevens' subsequent detention and arrest by P.C. MacInnis arbitrary and unlawful.

[5] The search of Mr. Stevens' satchel was undertaken incident to an unlawful arrest and was a breach of his s. 8 rights.

[6] I am not satisfied that the defence has established that Mr. Stevens' right to counsel was breached. His spontaneous admission and production of marihuana happened before there was any opportunity to afford him his right to counsel. His rights were provided to him as soon as reasonably possible after his arrest, and duty counsel was facilitated within a reasonable time once at the police station, particularly in light of the unusual arrest situation occurring in the station at the time.

[7] I do not accept that there was a reasonable opportunity to implement the right to counsel at the roadside. While I accept that there may have been a breach in relation to re-cautioning Mr. Stevens of his increased jeopardy when his bag was searched in the booking hall, any such breach was negligible and, in any event unconnected to the gathering of any evidence against Mr. Stevens.

[8] The breach of Mr. Stevens' s. 9 rights was serious and had a significant effect on his liberty interests. Notwithstanding the nature of the offences with which he is charged, in my view the admission of the evidence found in Mr. Stevens' satchel would bring the administration of justice into disrepute and it must be excluded. As a result, Mr. Stevens is found not guilty on all counts.

2. General Legal Principles

[9] Mr. Stevens is, of course, presumed to be innocent. There is no burden on him to prove his innocence. That burden always rests with the Crown, unless and until it proves his guilt beyond a reasonable doubt.

[10] This is a particularly important principle to bear in mind where, in a case such as this one, the defence is based on a claim that the key evidence against Mr. Stevens should be excluded for a breach of his Charter rights and the trial proceeds as a blended voir dire. It is important to be alive to the differing burdens and apply the appropriate onus in disposing of both the Charter application and the trial proper.

[11] That said, the parties agree that the outcome of this case turns exclusively on my findings with respect to Mr. Stevens' Charter application. The elements of the offences are otherwise admitted. For all practical purposes, therefore, the determination of the Charter issues, on a balance of probabilities, will be determinative of guilt or innocence.

3. Arbitrary Detention

[12] Police may detain a person for investigative purposes if they have reasonable grounds to suspect that the person is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances. "Reasonable grounds to suspect" requires that the police have a suspicion that is grounded in objectively discernible facts, which could then be subjected to an exacting, independent judicial scrutiny, taking into account all of the circumstances.

[13] Mr. Stevens' foundational claim is that his detention by P.C. MacInnis was arbitrary because the information provided to P.C. MacInnis by D.C. Reeves, and which P.C. MacInnis relied on to justify the detention, was false. The defence also submits that even if D.C. Reeves saw what he said he saw, it would not amount to a reasonable suspicion that it was a drug transaction. Ms. Casey describes it as no more than a hunch, falling short of reasonable suspicion. The Crown disagrees and says that it clearly amounts to a reasonable suspicion that there had been a hand-to-hand drug deal. I do not understand the Crown to take issue with the proposition that if P.C. MacInnis relied on false information provided by D.C. Reeves in detaining Mr. Stevens, then his subjective belief alone is insufficient to justify the detention.

[14] As a preliminary issue, it is necessary to determine whether Mr. Stevens was detained before he voluntarily produced marihuana from his satchel leading to his arrest. The Crown concedes that D.C. Reeves was clear that he was intent on investigatively detaining Mr. Stevens right from the outset. But the Crown submits that Mr. Stevens is not actually detained until he stops walking away from the officers and they, as the Crown put it, "gain control of the situation." In other words, Mr. Stevens' detention commenced after P.C. MacInnis first called out to him but before he pulled the marihuana out of his satchel. I agree with that assessment of the evidence.

[15] Applying the three criteria for psychological detention outlined in Grant, I find that at the point Mr. Stevens stopped in response to P.C. MacInnis' direction, he was detained. As the Court put it in Suberu, "The officer's conduct in the context of the encounter as a whole would cause a reasonable person in the same situation to conclude that he or she was not free to go and that he or she had to comply with the officer's request."

[16] I do not accept the defence submission that if D.C. Reeves saw the so-called hand-to-hand transaction as he described it, that this would fall short of reasonable grounds to suspect that Mr. Stevens was involved in a drug deal. In my view, looking at all the circumstances, it would satisfy that low threshold.

[17] The heart of the defence position is that I should reject D.C. Reeves' evidence of what he saw because he was not a credible witness and what he claims to have seen is logically and physically impossible in light of the CCTV evidence. I agree with that submission.

[18] Mr. Stevens bears the burden of establishing a s. 9 breach on a balance of probabilities. Put in more concrete terms, he must persuade me that it is more likely than not that D.C. Reeves did not have a reasonable basis to conclude that Mr. Stevens had engaged in criminal conduct, and more particularly that he did not see Mr. Stevens engage in a hand-to-hand drug transaction.

[19] The essence of D.C. Reeves' evidence was that he saw Mr. Stevens and two or three other men jog onto Lawrence Avenue and that, from his scout car 150 feet away and looking over his shoulder, he saw their various movements which he concluded looked like a drug transaction. His credibility on this issue is central to the determination of the s. 9 claim. D.C. Reeves' credibility in turn depends on the likelihood that it was physically and logically possible for him to have seen what he said he saw, and done what he said he did, the extent to which his version of events is undermined by other evidence, and by his credibility as a witness generally.

[20] D.C. Reeves testified that after seeing the scout car turn from Lawrence Avenue onto Canlish Road, he saw Mr. Stevens and two or three other men jog down the pathway on the north side of Lawrence Avenue, just west of the church, onto the sidewalk. D.C. Reeves continued driving eastbound on Lawrence and noted that the men "had kind of spread out because of the different paces that each person was jogging at." He testified that he saw a white male who was shorter than the other men, with shorter blonde hair, who ran with the black males out of the complex and once they hit the sidewalk started walking. He then said:

I observed a male — a male white pulled out his cell phone. From my observations, I was slowly going down Lawrence. I was able to maintain view of these males on the sidewalk.

So the [white] male had pulled out his cell phone was — I'm not sure if he was talking on his cell phone, but it was very brief. And he began pacing back and forth on the sidewalk in front of the church when the other two males were walking a distance behind him as to give the concept that they weren't with him or he was unknown.

At one point, the male white had turned around, seen the other two males on the sidewalk. I believe he knew they were there, but he had turned around, put his cell phone away, was looking around to see if everything was okay.

[21] D.C. Reeves went on to describe seeing the men interact with each other:

[The white male] put his cell phone in his pocket when he noticed the two male blacks that were on the sidewalk. He approached, was looking around, as I said, as were — as was the one male wearing the Army camo pants or patterned print on his pants, he was also looking around, so was the other friend, just to make sure — in my view, just to make sure that the police were out of the area.

So a handshake was made between the male white and the male black. So the male black was facing eastbound on the sidewalk. The male white was facing westbound on the sidewalk on the north side of Lawrence. A very short interaction had happened between the two, and then another longer handshake was made after that. And then the male white had put with his right hand in his right pocket, put his right hand into his right pocket. And then they had split off in two different directions.

[22] This is what D.C. Reeves said he believed to be a hand-to-hand drug transaction.

[23] It is this claim to have seen the hand-to-hand transaction that the defence challenges as incredible. It is contrary to common sense, Ms. Casey submits, that anyone driving on a busy thoroughfare such as Lawrence Avenue could observe over his shoulder 150 feet behind him the kind of conduct D.C. Reeves said he saw. In addition, she submits, when one examines the timing of the movements of the three men and the location of D.C. Reeves' car in the CCTV, his claim not only becomes unlikely, it becomes impossible. I will explain why I agree with the latter submission.

[24] D.C. Reeves' evidence of seeing the hand-to-hand drug transaction is inextricably bound up with his very clear evidence of the sequence in which he made his observations. It is worth summarizing them again, in the order in which he says they happened:

• Drives eastbound on Lawrence and sees a cruiser waiting to turn left onto Canlish;
• Waits for the cruiser to turn;
• Proceeds eastbound on Lawrence at approximately 40 km/h;
• Sees Mr. Stevens and two or three other men jog down the pathway onto Lawrence east of Canlish and just west of the church;
• Slows down "drastically" to see what they are doing;
• Continues driving slowly eastbound on Lawrence;
• Sees the white male pull out his cell phone;
• White male begins pacing back and forth on the sidewalk in front of the church with the other two males walking a distance behind him;
• White male turns around, puts his cell phone away and looks around;
• White male puts cell phone in his pocket;
• Mr. Stevens and the other black male are looking around;
• The white male, facing west, briefly shakes hands with Mr. Stevens;
• There is a second, longer handshake between the two men;
• The white male puts his right hand in his right pocket;
• The white male walks off eastbound on Lawrence; Mr. Stevens and the other male go in the opposite direction.

[25] D.C. Reeves identified on an overhead map of the area precisely where he said the transaction took place and where he was when he saw it. He said that this was a distance of approximately 150 feet. He saw the men by turning and looking over his left shoulder. According to D.C. Reeves there was traffic on eastbound Lawrence Avenue at that point but there was little traffic immediately in front of him because he had slowed up and stopped a little bit earlier when watching the scout car turn onto Canlish.

[26] D.C. Reeves testified that after seeing the transaction he took the following actions:

• Turns into a plaza with a Pizza Nova restaurant on the north side of Lawrence Avenue and drives through the parking lot;
• Stops "for a little bit" and begins calling for other units to attend;
• Pulls back out onto Lawrence and drives westbound;
• Turns into the entrance on the east side of the church and "circled through around that church…drove around the parking lot and came out the west entrance of the church and circled back eastbound" on Lawrence.

[27] The movements of Mr. Stevens and the other men he was with are tracked via multiple CCTV cameras located throughout the housing complex on Canlish Road. The cameras do not capture the point on Lawrence Avenue where D.C. Reeves says he saw the suspected drug transaction. Camera 16, however, shows the movements of Mr. Stevens and two other men, including the so-called buyer (the white male with bleach blond hair and green shirt) as they go from the pathway just off Lawrence Avenue onto Lawrence and begin to walk eastbound towards the point of the alleged transaction.

[28] Most of the clips, and in particular clip 16, are of extremely high quality, permitting a detailed analysis of the movements of the three men. A close review of the relevant CCTV clips shows the following:

Clip #	Time	Action
19	11:09	D.C. Reeves slows his car behind the marked cruiser as the cruiser waits to turn left on Canlish Road from Lawrence.
19	11:19	The cruiser turns onto Canlish. D.C. Reeves speeds up and continues eastbound on Lawrence.
16	11:23	D.C. Reeves' car is seen on Lawrence Avenue passing the path from which Mr. Stevens runs. The white male starts to stand up.
16	11:28	Mr. Stevens enters the shot. He, the other black male and the white male start jogging towards the sidewalk on Lawrence Avenue.
16	11:39	Mr. Stevens and the white male are both on the sidewalk heading east. They are walking, not running. Mr. Stevens is ahead of the white male.
16	11:59	Mr. Stevens goes out of camera shot. He is still walking. The white male is behind him.
16	12:04	The white male walks out of camera shot.
16	12:10	The second black male walks out of camera shot.
16	12:15	D.C. Reeves' car is seen entering the camera shot driving south on the roadway towards Lawrence Avenue, immediately to the west of the church.
16	14:30	Mr. Stevens and the other black male, walking westbound on Lawrence Avenue, turn north to walk up the alleyway adjacent to the church and into the Canlish complex.

[29] This CCTV footage, viewed in conjunction with the annotated overhead photograph of the area that is Exhibit 3, provides independent evidence against which to measure the veracity of D.C. Reeves' claim as to what he saw and where he drove.

[30] It corroborates some aspects of D.C. Reeves' testimony. First, it confirms that he drove along Lawrence Avenue East at the time and place he said he did. Second, his location as shown on the CCTV is consistent with his evidence that he first noticed the men on the pathway leading out of the Canlish complex and saw them running just as the cruiser turned onto Canlish. Third, it corroborates D.C. Reeves' evidence that he saw three or four young men, two of whom were black and one white, on the north side of Lawrence Avenue in front of the church. Fourth, it supports his evidence that the three men walked east on Lawrence and then (after the transaction) "split off in two different directions" with the white male walking eastbound on Lawrence towards Kennedy Road.

[31] At the same time, however, the CCTV highlights what in my view is an irreconcilable discrepancy between D.C. Reeves' version of events and what we know from the CCTV actually happened. Accepting, as everyone does, that the CCTV accurately depicts the times and places shown, and that the time elapsed on the CCTV is the actual elapsed time, it demonstrates that it was impossible for D.C. Reeves to have done what he said he did. I will explain why.

[32] D.C. Reeves testified that he saw the drug transaction the first time he drove eastbound, before turning around at the Pizza Nova and driving back westbound. He also said that the white male was ahead of the two black males just before the transaction, and that the white male was "pacing back and forth on the sidewalk" before the handshakes.

[33] Clip 16 shows the white male, behind Mr. Stevens when he walks out of shot at 12:04. The Crown submitted that the available window for the hand-to-hand transaction to have occurred was one minute. But that cannot be the case. The hand-to-hand could not have occurred before the white male walks out of the camera shot at 12:04 in clip 16, otherwise it would have been visible on the CCTV. D.C. Reeves' car appears driving south next to the church at 12:15. On D.C. Reeves' own evidence, he had already seen the transaction by that time. Even if the handshakes happened immediately upon the white male going out of shot (an assumption which itself would be inconsistent with D.C. Reeves' evidence) D.C. Reeves would have to have seen it, turned into the Pizza Nova and turned around, stopped, turned back onto Lawrence Avenue, driven west for a couple of hundred feet, turned into the driveway at the east end of the church, driven up the east side of the church, circled through the parking lot and appeared back in clip 16 driving south towards Lawrence Avenue, all between 12:04 and 12:15, a period of 11 seconds. On any common-sense assessment of the evidence, this is not only implausible, it is impossible.

[34] D.C. Reeves was not equivocal or uncertain about what he saw. He was adamant that he had seen the hand-to-hand and was clear in describing his movements after doing so. He gave an estimated measurement of how far away he was and readily marked his position and described his movements in relation to the map. If the transaction happened, it did not happen in the way he described. There is no version of events in evidence before me which could allow for D.C. Reeves seeing the apparent drug transaction and for the movements he said he made.

[35] I cannot reconcile D.C. Reeves' evidence with the objective and reliable evidence in clip 16. His appearance driving south at 12:15 makes it impossible for him to have seen a drug transaction on the north side of Lawrence Avenue from his stated position 150 feet east of it, stop, turn around and drive through the church parking lot all within a maximum of 11 seconds.

[36] I cannot rely on or accept D.C. Reeves' evidence. Absent speculation or unsupported assumptions about how he might have been mistaken, I am compelled to reject his claim to have seen a drug transaction.

[37] Ms. Casey also urged me to view D.C. Reeves' evidence in a negative light because of his failure to apprehend the white male when he had an obvious opportunity to do so. D.C. Reeves testified that there was only one white male involved in the transaction. He agreed that it was the male with shorter blond hair seen sitting down at 11:23 in CCTV clip 16. D.C. Reeves repeatedly described the white male as the "buyer" or the "takeaway" (one half of the drug transaction). He also testified that he did not have grounds to arrest Mr. Stevens because he "didn't have the takeaway, being what I deemed the buyer, so I didn't have the male white under arrest to see that he in fact had drugs on him. So, I couldn't prove at that time that there was a drug transaction that had taken place."

[38] Under cross-examination, D.C. Reeves testified that he was never able to identify the white male because "he was gone" and he never saw him again. He agreed with the suggestion that the white male was "very recognizable" in his appearance, and that it would have been preferable to have arrested the buyer in order to establish the drug transaction. He would have at least stopped him if he came into contact with him again.

[39] In the context of this body of evidence about the white male, D.C. Reeves was confronted with CCTV clip 11 starting at 32:10. In it, D.C. Reeves is shown walking around the parking lot behind the church, where his car had been parked after Mr. Stevens was arrested. He is on the phone. It is a bright sunny evening. The white male whom D.C. Reeves had described as the buyer, appearing exactly as he appeared when D.C. Reeves saw him make the apparent drug deal, walks through the parking lot from east to west, directly in front of D.C. Reeves.

[40] D.C. Reeves testified that he did not notice the white male in the parking lot because he was on the phone at the time. Had he noticed him, he said, he would have done something because "it would have just added more evidence to this case." He disagreed with the suggestion that he was not concerned about the "buyer" because his sole focus throughout was getting into Mr. Stevens' satchel.

[41] It is curious that D.C. Reeves did not apprehend the white male. It is even more curious that he did not notice him. His ostensible powers of observation that evening as a trained police officer were otherwise apparently very sound. A readily identifiable man he had suspected of being one half of a criminal transaction less than 30 minutes earlier walked directly in his line of vision, yet he did not stop him, follow him or even call out for assistance in apprehending him.

[42] That said, the CCTV does show D.C. Reeves seemingly preoccupied with being on the phone, and it must be recalled that he had just been involved in the violent apprehension of a man armed with a loaded handgun. I take Ms. Casey's point that if he indeed not seen a drug transaction, as I have been compelled to conclude, then he had an obvious reason to ignore the white male. Given my findings respecting the feasibility of P.C. Reeve's observations, I need not come to a conclusion about the impact of his failing to apprehend the white male. I will only say that while it does not particularly assist the Crown, it is not, standing alone, dispositive on the issue of the officer's credibility.

[43] Finally, Ms. Casey submits that D.C. Reeves' credibility is also eroded by the manner in which he gave his evidence. I agree that he was at times evasive, non-responsive, unnecessarily combative and keen to explain rather than answer the question asked of him, occasionally giving the impression of wanting to "outwit" defence counsel.

[44] Again, D.C. Reeves' testimonial style was not something which, standing alone, would cause me to reject his evidence, but it is one factor I have considered in assessing the veracity of his claim to having seen a drug transaction.

[45] In sum, I find that the defence has established on a balance of probabilities that D.C. Reeves did not have a basis to reasonably suspect that Mr. Stevens was involved in criminal activity. The grounds for detention he provided to P.C. MacInnis were without foundation, and while P.C. MacInnis had the necessary subjectively reasonable grounds to detain Mr. Stevens, those grounds were, seen in the light of all the evidence, objectively unreasonable. Mr. Stevens' detention was a violation of his s. 9 rights.

4. Section 8

[46] The firearm and the drugs were found in Mr. Stevens' satchel when it was searched incident to his arrest. The arrest flowed directly from Mr. Stevens being unlawfully detained by P.C. MacInnis. There is no suggestion that the arrest could be meaningfully hived off from the initial detention from a s. 9 perspective.

[47] A search incident to arrest is only justified if the underlying arrest is lawful. Mr. Stevens was arrested because he voluntarily produced marihuana from his satchel. But he did so only after being unlawfully detained. In my view, the arrest is so closely connected to the detention that it is irreparably tainted by the lack of a lawful basis for detaining Mr. Stevens in the first place. Absent that unlawful detention, the arrest would never have materialized.

[48] The seizure of the contents of Mr. Stevens' satchel was not incident to a lawful arrest. It was therefore a breach of Mr. Stevens' s. 8 right to be free from unreasonable search or seizure.

5. The Right to Counsel

[49] Mr. Stevens says that his right to counsel was violated at three points: when he was investigatively detained by P.C. MacInnis; upon arrest at the roadside after the discovery of the firearm; and at the police station when drugs were found in his satchel.

[50] A person detained pursuant to the investigative detention power must be afforded their section 10(a) and (b) Charter rights immediately upon detention. Delay is only justifiable when the police reasonably require time to gain control over a potentially dangerous or volatile situation out of a concern for police and/or public safety.

[51] In light of my findings with respect to the s. 9 violation, I do not intend to deal in detail with the right to counsel issues. In my view they are readily answered, and I agree with the Crown's position that Mr. Stevens' s. 10 rights were not violated.

[52] In my view there was no reasonable opportunity to provide Mr. Stevens with a Suberu s. 10(b) caution upon investigative detention. P.C. MacInnis told Mr. Stevens why he was detaining him ("because he was observed doing a hand-to-hand") to which Mr. Stevens replied, "I didn't – I didn't do any hand-to-hand. Yes, or, yeah, I got drugs on me. It's just weed." P.C. MacInnis testified that at that point Mr. Stevens, "reaches into his satchel, into the front zip area and draws out a large clear Ziploc bag with marihuana in it with his right hand."

[53] I agree with the Crown's submission that in spontaneously producing the marihuana, Mr. Stevens in effect "short-circuited" P.C. MacInnis' s. 10(b) obligations by providing the grounds for arrest for possession of marihuana before the officer could inform him of his right to counsel. P.C. MacInnis arrested Mr. Stevens for possession of marihuana. At that point, any investigative detention obligation to provide rights to counsel disappeared. There was no violation of Mr. Stevens' s. 10(b) rights at that point.

[54] Mr. Stevens next says that his s. 10(b) rights were violated by the delay in reading him his rights to counsel after he was placed under arrest, and by the failure of the police to facilitate his access to counsel via cell phone while waiting in the police cruiser at the scene. I do not accept either of these submissions.

[55] P.C. Reeves placed Mr. Stevens under arrest at approximately 7:26 p.m. He read his rights to counsel after he placed him in the scout car at 7:36 p.m. I agree with the Crown that the ten minute or so delay in providing the right to counsel begins at the moment Mr. Stevens is placed under arrest. What follows is a struggle to apprehend him, the feeling of the firearm in the bag, Mr. Stevens being taken to the ground and handcuffed, the satchel being cut off him, the firearm retrieved and made safe, and Mr. Stevens being given a pat-down search before being placed in the safety of the police cruiser.

[56] The police are not obliged to comply with their obligations under ss. 10(a) or 10(b) of the Charter while they are legitimately and reasonably engaged in protecting themselves or the members of the public (including the suspect/accused). In my view the dynamic circumstances of Mr. Stevens' arrest, involving a lethal weapon in a volatile environment, more than explain the delay in reading Mr. Stevens his right to counsel. I find that, in all the circumstances, his right to counsel was provided within the constitutionally mandated time required under the governing s. 10(b) jurisprudence.

[57] In my view there is no merit to the suggestion that Mr. Stevens could have been provided with a cell phone while in the police cruiser to contact counsel. Given the circumstances of his arrest, the capacity for a private conversation, and other legitimate security concerns associated with providing him a cell phone at that time and place, it would have been totally impractical, if not impossible to do so. It was perfectly reasonable for the officers to delay implementing his right to counsel until they arrived back at the police station.

[58] The defence next submits that Mr. Stevens' s. 10 rights were violated at the police station. Mr. Stevens was initially advised that he was under arrest for possession of marihuana and the firearm. Police seized his satchel incident to arrest. Upon emptying the satchel in the booking hall, police discovered powdered cocaine and about $150 cash. Mr. Stevens was present when these were found. In the course of the booking video P.C. MacInnis can be heard telling the booking sergeant, after the cash and cocaine had been found, that he would be charging Mr. Stevens with possession for the purpose of trafficking. The booking officer at one point appears to refer to him being charged with "proceeds." It is agreed, however, that no officer ever formally advised Mr. Stevens that he would also be charged in relation to the cocaine and the cash.

[59] Mr. Stevens should have been told that he was also under arrest for possession of the cocaine and possession of proceeds of crime. It is unclear on the record before me whether he was formally advised of that before he spoke to counsel. He was certainly aware of the discovery of the cocaine and the money before he spoke to counsel and would have overheard P.C. MacInnis saying that he was being charged with possession for the proceeds of some drug.

[60] The purpose of ensuring that a detainee is advised of what they are being arrested for is so that they can secure meaningful legal advice about the scope of their jeopardy. Practically speaking, Mr. Stevens was obviously aware and had been told that he was under arrest for possession of the firearm and of drugs. I agree with Mr. Snow that the s. 10(a) right is one of substance not form. Mr. Stevens was for all practical purposes aware of the seriousness of his jeopardy. He had sufficient information for him to receive meaningful legal advice. In any event, there was no evidence elicited or obtained from Mr. Stevens after he left the booking hall. If there was a s. 10(a) breach in failing to formally advise him of potential charges in relation to the cocaine and the cash, it was trivial and non-consequential.

[61] Finally, the defence raised a concern about the delay in putting Mr. Stevens in touch with counsel at the station. Ms. Casey did not press this submission.

[62] Mr. Stevens entered the booking hall at 8:32 p.m. He was processed, given a level three search and then returned for further processing, which was completed at 8:46 p.m. A call to duty counsel was placed at 9:39 p.m. Duty counsel returned that call at 9:56 p.m. and Mr. Stevens spoke to counsel. The evidence was that there was an unusual arrest situation at the station that night with several suspects in custody including young people, and that there was an particularly heavy demand on accessing telephones to contact counsel.

[63] In my view the delay in contacting duty counsel was adequately explained. The delay due to the circumstances at the station that night was not caused by any of the officers involved in this investigation, and no incriminating information was sought or obtained from Mr. Stevens before he spoke to counsel.

[64] In sum, I am not satisfied that the defence has met its burden of demonstrating that any of Mr. Stevens' s. 10(a) or (b) rights were violated.

6. Section 24(2)

[65] I have found that Mr. Stevens' s. 8 and 9 rights were violated in the course of his detention and arrest. It is Mr. Stevens' burden to demonstrate on a balance of probabilities that the firearm and drugs that were found in his satchel were obtained in a manner that infringed his rights and, if they were that, having regard to all the circumstances, the admission of them into evidence at his trial would bring the administration of justice into disrepute.

[66] In my view the firearm and drugs were obtained as a direct result of Mr. Stevens' arbitrary detention and subsequent arrest. I have already concluded that Mr. Stevens was detained when he responded to P.C. MacInnis' calling out to him to stop. Without the faulty information from D.C. Reeves, P.C. MacInnis would have had no reason to demand that Mr. Stevens stop and talk to him and he would not have been arrested.

[67] I accept that Mr. Stevens' arrest was initially premised on him voluntarily producing the marihuana. But that flowed inexorably from his unlawful detention. In my view it would be unfair and unrealistic to suggest that, having been arbitrarily detained, Mr. Stevens' subsequent decision to volunteer his possession of marihuana somehow cures the breach that was manifest by the initial detention.

[68] The well-known Grant inquiry calls on a trial judge to determine the admissibility of Charter-tainted evidence with reference to three factors: the seriousness of the Charter-infringing conduct, the impact of the breach on the Charter protected interests of the accused, and society's interest in a trial on the merits.

[69] In R. v. Le, Justice Brown recently explained the focus of the s. 24(2) analysis in these terms:

Where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of the administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice -- such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. We endorse this Court's caution in Grant, at para. 68, that, while the exclusion of evidence "may provoke immediate criticism", our focus is on "the overall repute of the justice system, viewed in the long term" by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights.

a. The Seriousness of Charter-Infringing State Conduct

[70] This factor contemplates a spectrum of conduct from inadvertent and minor to wilful or reckless disregard of Charter rights, taking into account any extenuating circumstances. The more severe or deliberate the state conduct, the more it will be necessary for a court to dissociate itself from that conduct by excluding evidence connected to the breach. An intentional or flagrant breach will "inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute."

[71] I have found that D.C. Reeves testified to a course of conduct on his part that simply could not have happened. On the officer's own evidence, his claim to have seen a drug transaction at the time and place he said he did is simply not sustainable. This is a troubling and serious finding to have to make. It amounts to a finding that D.C. Reeves testified under oath to something that could not have happened, something which caused the detention and arrest of Mr. Stevens without reasonable cause. This is severe state misconduct from which courts must dissociate themselves by excluding evidence linked to that conduct.

[72] While a "good faith" breach reduces the need for a court to disassociate itself from the Charter-infringing state conduct, I see no version of events on the evidence before me which would permit a conclusion that D.C. Reeves acted in good faith. It is the opposite. This factor pulls irresistibly in favour of exclusion of the evidence.

b. The Impact on Mr. Stevens' Charter-protected Interests

[73] This branch of the test asks a court to evaluate the extent to which the breach undermined the interests protected by the right infringed. It again contemplates a spectrum of impacts from the fleeting or technical to the profoundly intrusive. It requires a two-stage analysis which first identifies the interests engaged and then examines the degree to which the violation impacted on those interests.

[74] There is an obvious causal link between Mr. Stevens' arbitrary detention and his loss of liberty. It led to his arrest and his being brought into custody. Without the detention Mr. Stevens would have been free to continue on his way untroubled by the police.

[75] I find that the impact of the conduct on Mr. Stevens' Charter-protected interests is significant, which on balance favours the exclusion of the evidence.

c. Society's Interest in a Trial on the Merits

[76] This branch turns on an assessment of whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This in turn depends on the reliability of the evidence, the importance of the evidence to prosecution's case, and the seriousness of offence (said to have "potential to cut both ways").

[77] Both the firearm and the drugs are of course highly reliable evidence. The exclusion of reliable evidence will tend to bring the administration of justice into disrepute. Moreover, reasonable, well-informed people may well lose confidence in the rule of law if a handgun is excluded because of a breach of Mr. Stevens' protection from arbitrary detention, particularly where, as here, excluding the firearm and the drugs will inevitably mean that the Crown's case cannot succeed. The exclusion of reliable evidence that effectively guts the prosecution will have a more negative impact on public confidence in the administration of justice.

d. Balancing the Grant Factors

[78] The first branch of the Grant test strongly favours the exclusion of the evidence. I have found that D.C. Reeves conveyed a false or inaccurate basis upon which P.C. MacInnis detained and then arrested Mr. Stevens. Detaining a citizen on the basis of an event which either did not happen, or about which an officer gives false or misleading evidence at trial, falls towards the most serious end of the spectrum of state misconduct.

[79] This is not a case where D.C. Reeves' evidence can be explained or rationalized as mere forgetfulness or mistake. The version of events he testified to at trial simply could not have happened. D.C. Reeves did not cast his evidence in terms of possibilities or uncertainties about what he did. I am compelled to conclude that D.C. Reeves testified with little regard for truth or accuracy, and that he likely provided false information which resulted in Mr. Stevens' detention.

[80] The second branch of the Grant test also favours the exclusion of the evidence. There was a significant impact on Mr. Stevens' liberty interests.

[81] The third branch of the Grant test favours the admission of the evidence. The evidence is reliable and crucial to the Crown's case involving a drug-dealer armed with a loaded handgun in a residential neighbourhood plagued by gun violence. The threat to public safety represented by such individuals heightens the public interest in the adjudication of firearms cases on their merits.

[82] Trial courts have struggled with trying to reconcile the Supreme Court of Canada's holdings under s. 24(2) in Omar and R. v. Le. In that regard, I adopt the analysis of Davies J. in Miller:

Brown J.A.'s ruling in Omar about the inherent dangers associated with guns, as endorsed by the Supreme Court, might suggest that cases involving the discovery of firearms in violation of the Charter are precisely the sort of cases that call for the admission of the evidence even if first two branches of the Grant test favour exclusion. However, the fact that the evidence obtained in violation of the defendant's Charter rights is a firearm cannot tip the balance in favour of admission in every case. That would be tantamount to creating a "firearms exception" under s. 24(2), which was rejected in Omar.

In fact, the Supreme Court reiterated in R. v. Le - a case decided one week after Omar, in which the Court overturned the trial judge's decision and excluded a firearm- that disrepute may result from the admission of real, reliable evidence in circumstances that would amount to judicial acceptance of unacceptable conduct by the police. The Supreme Court noted that great care is required to resist creating special rules under s. 24(2) for certain types of cases. In that case, they were concerned about creating different rules for individuals who are seen to be dangerous or for neighbourhoods that are thought to have higher crime rates. The majority expressly rejected the idea that evidence obtained in violation of the Charter should be admitted in order to avoid the consequences of excluding it, which would be to return a dangerous person to the community. In other words, the Court held that the effect of excluding important evidence, even a firearm, cannot overwhelm the analysis under s. 24(2). The Court noted the "[r]equiring the police to comply with the Charter in all neighbourhoods and to respect the rights of all people upholds the rule of law, promotes public confidence in the police, and provides safer communities." The same analysis must also apply in relation to the nature of the police investigation. Requiring the police to comply with the Charter in all investigations, no matter what type of evidence is involved, and to respect the rights of all people, no matter the nature of the alleged offences, upholds the rule of law and promotes public confidence in the administration of justice.

[83] In my view, it would be detrimental to the long-term interests of the administration of justice to excuse the conduct of D.C. Reeves in this case. This is a difficult decision to make. I have presided in Scarborough for the last eight years. I have seen the tragic results of drug-dealing and firearms and the turmoil it creates in communities of good people and in families who lose loved ones at all too young an age. I have seen the danger that front-line police officers face every day in tackling gun crime and in answering the call to try and keep communities safe from the cowardice that gun crime represents. Those responsible for endangering our community must pay a heavy price.

[84] At the same time, those who protect our community bear a heavy responsibility, which includes being scrupulously candid with other officers, and when testifying under oath. It means that, even where they have a hunch that someone is up to no good, their instincts must be backed up by objective and truthful evidence of misconduct in order to justify interfering in the rights of all citizens to be free from arbitrary state interference.

[85] Excluding the evidence in this case does not signal in any sense the Court's approval of or sympathy with individuals who threaten their own neighbourhoods by walking around with loaded firearms. Rather, the evidence is excluded to distance the Court from the police conduct revealed in this case. On behalf of the Crown, Mr. Snow submits that I should consider bifurcating the evidence in the s. 24(2) analysis, excluding the drugs but not the firearm. I am not persuaded that there is a principled reason to conclude that a different result should obtain for the firearm than for the drugs.

[86] I find that the balancing of the Grant factors favours the exclusion of both the firearm and the drugs in order to maintain confidence in the administration of justice.

7. Conclusion

[87] Mr. Stevens' right to be free from arbitrary detention was violated. His arbitrary detention is inextricably connected to his subsequent arrest and the search of his satchel. The gun and drugs were obtained in a manner that infringed Mr. Stevens' s. 8 and 9 Charter rights. In my view their admission into evidence at this trial would bring the administration of justice into disrepute. The s. 9 and s. 8 application is granted, and the firearm and drugs are excluded from the evidence at this trial.

[88] The parties agree that, as Ms. Casey put it, this is a "Charter or nothing case." Without the gun and the drugs, the Crown cannot prove any of the charges against Mr. Stevens beyond a reasonable doubt.

[89] With respect to information 18-15006185 alleging four drug-related offences, the Crown withdrew count one at the outset of the trial. Mr. Stevens is found not guilty on counts two (as amended), three and four. With respect to information 18-15006186 alleging five firearm-related offences, Mr. Stevens is found not guilty on all counts.

[90] I am very appreciative of the exemplary skill and professionalism demonstrated by both counsel in their conduct of this trial, and in facilitating the "remote" delivery of this judgment at a time when the administration of justice is labouring under unprecedented constraints.

Justice P. Downes

March 30, 2020