WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2020-07-10
Court File No.: Toronto 20-Y200017
Between:
Her Majesty the Queen
— AND —
P.N., a young person
Before: Justice Maria N. Sirivar
Heard on: February 4, 5, 12 and March 13, 2020
Reasons for Judgment released on: July 10, 2020
Counsel:
- Erin McNamara, counsel for the Crown
- Ugo Cara, counsel for the young person, P.N.
SIRIVAR J.:
INTRODUCTION
[1] P.N. was charged with multiple firearms offences in relation to a handgun and ammunition (collectively the "firearm") that were found by the police in a satchel upon his person on August 17, 2019.
[2] P.N. brings this Application, pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (the "Charter"), to exclude the firearm on the basis that it was obtained in a manner that violated his Charter-protected rights contrary to sections 8, 9, and 10(a).
[3] The Defence and the Crown agree that if the evidence is admitted, P.N. would be found guilty of the firearms offences and that if it is not admitted, P.N. would be acquitted of all charges.
[4] The case proceeded as a blended hearing of the Charter Application and the trial. The evidence would form part of the record for both the trial and the Application.
[5] The Crown called six witnesses including five police officers who were involved in the investigation and the Manager of the Toronto Bail Program. The firearm and various documents were filed. The Defence did not call any evidence.
ISSUES
[6] The issues to be decided are:
a. Was the firearm obtained in a manner that violated P.N.'s:
i. right to be free from arbitrary detention, contrary to section 9 of the Charter;
ii. and right to be secure against unreasonable search and seizure, contrary to section 8 of the Charter.
b. If so, would the admission of the evidence bring the administration of justice into disrepute.
RELEVANT EVIDENCE
Grounds to Suspect
[7] On August 17, 2019, at approximately 8:00 p.m., Detective Constable Gregory Yan ("DC Yan") attended the […] Complex as part of a break and enter investigation. He is a member of the Major Crimes Unit and he was in plain clothes and was driving an unmarked police vehicle.
[8] While standing in front of […] Complex, he saw P.N. exit his unit. He recognized P.N from a year earlier when P.N. was arrested for pointing a gun in a taxi cab. The gun was never recovered.
[9] P.N. gave him a look that was "not innocent". He then took the satchel he was carrying off his body and gave it to K.B., while still looking at the DC Yan. DC Yan believed that P.N. suspected he might be a police officer. K.B. put on the satchel and they walked away.
[10] He knew that P.N. had been recently arrested for possession and that he was out on conditions. He did not know what the conditions were, so he called Detective Constable Dwayne Forde ("DC Forde"), the neighborhood officer.
[11] DC Forde, who was on his bicycle on his way to an event in another community when he took the call, advised DC Yan that P.N. was on condition not to associate with K.B. DC Forde further advised DC Yan to use caution because P.N. might be in possession of a firearm.
[12] DC Forde testified that he provided DC Yan with information based on memory. The information came from the Canadian Police Information Centre ("CPIC") check he had conducted on the August 15, 2019 in the normal course of his duties. In DC Forde's view, DC Yan could have also completed a CPIC search to determine P.N.'s conditions.
[13] In cross-examination, DC Forde explained that his caution about safety to DC Yan stemmed from a conversation he had that day with someone, which caused him to recall an incident from a year prior where P.N. was charged with pointing a firearm in a taxi. DC Forde acknowledged that his notes indicate that the information came from a confidential source. He testified, however, that he could not provide any details.
[14] DC Yan testified that he passed the information he received from DC Forde (both the condition and the advice to be cautious because P.N. may have a firearm) onto his colleagues from the Major Crimes Unit, Detective Constable Ryan Munro ("DC Munro") and Detective Constable Eric Zimmerman ("DC Zimmerman"). He testified in cross-examination that he did so because P.N. was breaching his condition and he could be arrested or he could be detained to investigate further.
[15] According to DC Yan, they were in the area because they were also looking for the break and enter suspect. He gave them the direction the pair were walking in and told them that they would likely end up at the McDonald Plaza at Pape and Gerrard. He then set up in an area "tucked away" to maintain observation.
Investigative Detention
[16] DC Zimmerman and DC Munro testified that they were on general patrol in the area, in plain clothes and driving an unmarked vehicle.
[17] DC Munro testified that he received a direct call on his cellphone, rather than over the radio, from DC Yan. DC Yan told him that P.N. was on condition not to be in the company of K.B. DC Munro knew P.N. from an incident a year prior when P.N. was alleged to have been involved with a robbery of a taxi. K.B.'s name and face were familiar to him. DC Munro conceded in cross-examination that there was no suggestion from DC Yan that P.N. was forcing K.B. to be in his presence.
[18] DC Munro and DC Zimmerman, after receiving the information, drove to the plaza to wait for P.N. and K.B. DC Zimmerman got out of the vehicle and went inside the McDonalds to look for them, without success. DC Zimmerman then followed the pair on foot west on the north side of Dundas.
[19] DC Munro drove the unmarked vehicle travelling westbound on Dundas and he pulled to the curb on the north side ahead of the two. DC Munro then exited the vehicle and he went onto the sidewalk and engaged in conversation. At the same time, DC Zimmerman was following behind them about 5 to 10 metres.
[20] DC Zimmerman described his approach in the following terms: "As I approached, I took control of the male, I grabbed him by his wrists at his side and advised him that I am a Toronto Police Officer." In cross-examination he acknowledged that he did so with some force. He explained that the element of surprise is important in gaining physical control.
[21] DC Munro testified that as the pair was approaching, he got a clear unobstructed view of both of them. He was able to confirm that it was P.N. at which point he advised P.N. that he was being detained in relation to the breach of conditions.
[22] DC Zimmerman explained that he had a reasonable suspicion that a crime was occurring and then he took physical control of P.N. The possibility of a breach is what necessitated that he take physical control of P.N. In cross-examination, DC Zimmerman conceded that talking to P.N. may have sufficed but added that it may have also allowed P.N. to escape.
[23] Once P.N. was under his physical control, DC Zimmerman advised him that he was under investigative detention for potential breach and that he had a right to stay quiet. P.N. confirmed his name and responded that DC Zimmerman could not search him. DC Zimmerman conceded, in cross-examination, that P.N. was not advised of his right to counsel upon being detained.
[24] DC Zimmerman testified that he was holding P.N.'s hands at his side a little to the rear of him and that he repeatedly tried to bring his arms to the front. He instructed P.N. "over and over" to keep his hand behind him. According to DC Zimmerman, P.N. was not complying, so he put him in handcuffs behind his back. In cross-examination, DC Zimmerman acknowledged that his notes do not indicate that he told P.N. to keep his hands still.
[25] DC Zimmerman explained that, in his view, under investigative detention he has the authority to physically control someone and that it is not out of the ordinary to handcuff a detainee.
[26] DC Zimmerman conceded in cross-examination that if they had lost sight of P.N., he could have attended his place of residence or seen him in the community at some other time and he could have arrested him for the breach.
Detention of K.B.
[27] DC Munro began speaking with K.B. because he wanted to confirm she was who they believed she was. He advised her that they were both Toronto Police Officers. She confirmed her name.
[28] DC Munro describes K.B. as appearing nervous with her leg shaking and that she kept looking around. He was concerned that she was preparing to run. As a result, he advised her to have a seat on the sidewalk.
[29] DC Munro explained K.B.'s detention in cross-examination as follows:
Q. Okay. Can I ask you why you would place K.B. under investigative detention? She's not connected to any crime, is she?
A. The specific condition for P.N. was not to communicate directly or indirectly with one K. B.
Q. Right.
A. He was walking with a female that I believed to be K. B.…
Q. Right.
A. …but I did not know 100 percent that it was K.B.. So, in order to confirm the female's I.D. and, again, the breach of the condition was valid, I needed to confirm her identification. So, she was not free to go.
Q. She was not free to go?
A. She …
Q. So you, you detained her?
A. I did.
Pat down Search/Safety Search
[30] DC Zimmerman explained that a pat down allows him to search for weapons and not evidence. He indicated, "that is also what you do after you arrest".
[31] He further explained that in investigative detention, he routinely searches for weapons and means of escape because officer safety is "always an issue", even when the person being detained is in handcuffs. He indicated that he can always search an individual he has detained, as long as he has reasonable grounds to detain.
[32] In this particular case, he did not know if P.N. was armed or if he had any weapons. He testified that it is "his duty" to make sure that he was not a risk to him, his partner and K.B.
[33] DC Zimmerman then searched P.N.'s person for any means of escape or weapons. He searched P.N.'s waist band for sharp objects, his right pocket where he found two phones, and in his left pocket he found change and a $5 bill. He acknowledged in cross-examination that he may have exceeded the pat down search because he went into the left pocket without having felt a hard object like he did with the cellphone in the other pocket.
[34] DC Zimmerman then felt the satchel P.N. was wearing and noticed something that was heavy, hard and felt like a solid metal object. P.N. replied that DC Zimmerman could not search his things. DC Zimmerman advised P.N. that he was just doing a pat down. He then removed the satchel from P.N., placed it on the ground and stepped on it, to secure it.
The Judicial Condition
[35] DC Yan heard over the radio, that DC Zimmerman and DC Munro had the pair detained, about twenty minutes later. When he arrived on the scene, DC Zimmerman was with P.N. who was in handcuffs with his satchel on the ground. K.B. was being detained by DC Munro, but she was not handcuffed.
[36] According to DC Yan, K.B. said she had given consent but neither of them had any paperwork. DC Yan then checked CPIC and saw that the there was an exception to the condition that allowed P.N. to be with K.B. with written verbally recoverable consent. There was nothing in CPIC, however, about the consent having been given.
[37] He used a connected phone to conduct a CPIC check, for the first time, when he arrived at the at the scene and the pair was already detained. He relied on DC Forde because he wanted to maintain observation.
[38] Once he completed the CPIC check, DC Yan realized that the information he received from DC Forde was wrong because the condition provided "except with the written verbally revocable consent".
[39] DC Yan testified that DC Munro was dealing with K.B. but he interjected and spoke with her about the consent. DC Munro, however, testified that he does not recall DC Yan speaking to K.B. Neither of the officers' notes indicate that DC Yan spoke with K.B.
[40] All officers were able to conduct CPIC checks on their phones. DC Munro and DC Zimmerman did not make independent efforts to confirm the condition precluding P.N. from being with K.B.
[41] DC Munro testified that the exception was not communicated to him by DC Yan until he arrived on the scene. He did not do a CPIC check himself because he was focused on looking for the pair.
[42] DC Munro testified that he recalls K.B. saying that they were not breaching but conceded that this information is not in his notes. Similarly, DC Zimmerman testified that K.B. said something along the lines of, "we're not breaching, it's revocable". In cross-examination, he acknowledged that this information is not in his notes, but it should have been. He also acknowledged that P.N. told him that he is not on conditions.
[43] Both DC Zimmerman and DC Munro testified that they relied on their colleague. Neither one of them know where DC Yan got the information and they did not ask.
[44] Alison Mastenbroek, Manager of the Toronto Bail Program, testified that on August 12, 2019, K.B. signed a written revocable consent allowing P.N. to have contact with her. K.B.'s signed consent was filed with the Bail Program. Ms. Mastenbroek explained that, because the condition did not direct that the signed consent be forwarded to the Toronto Police, it remained in her office.
Arrest and Search Incident to Arrest
[45] After DC Yan confirmed the identities of K.B. and P.N. and the current recognizance not to communicate with K.B., DC Zimmerman testified that he had reasonable grounds to believe they were breaching recognizance. Accordingly, P.N. was arrested for breach of recognizance and read his rights and youth caution.
[46] DC Zimmerman testified in cross-examination that the authority to search incident to arrest allowed him to search for weapons because officer safety is always an issue.
[47] DC Zimmerman then began the search incident to arrest searching not just for weapons on his person but also the satchel. He found a loaded semi-automatic firearm.
[48] DC Yan advised DC Munro that he had seen P.N. pass the satchel to K.B. As a result, K.B. was also arrested for possession of a firearm. DC Munro testified that prior to DC Yan's arrival, he was unaware that P.N. had handed K.B. the satchel.
Right to Counsel
[49] DC Zimmerman testified that he did not advise P.N. of his right to counsel when he was detained because he was more concerned about officer safety. He further explained that it happened very quickly and he did not have enough time to get his memo books and read him his rights to counsel.
[50] After P.N. was arrested, he was advised of his right to counsel, but DC Zimmerman did not facilitate a call because he would not have been able to afford any privacy to him. The back of the car was not an option because the policy requires that the cameras be on.
POSITIONS OF THE PARTIES
P.N.
[51] The Defence takes the position that the firearm was obtained in a manner that breached P.N.'s Charter rights. Specifically:
a. his right to be free from arbitrary detention and arrest for failure to comply with recognizance contrary to s. 9 of the Charter;
b. the search of his person and his satchel were not justified by police safety concerns and in breach of his right to be secure against unreasonable search and seizure contrary to s. 8 of the Charter; and
c. failure to advise of his rights to counsel upon detention at the roadside contrary to s. 10(a) of the Charter.
[52] Its admittance into evidence would, according to the Defence, bring the administration of justice into disrepute because the breaches were serious, had a high impact and society's interest in a trial on its merits does not outweigh the long-term negative impact on the repute of the justice system.
The Crown
[53] The Crown takes the position that the application should be dismissed because there was no breach of the young person's Charter rights as:
a. the police had reasonable grounds to lawfully detain P.N.;
b. the arrest was lawful;
c. the protective pat-down search incident to investigative detention was lawful; and
d. the search of the satchel was lawfully conducted incident to arrest.
[54] In the alternative, if there was a breach of P.N.'s Charter rights, it is minor (the police acted in good faith), the impact is minimal to moderate (the firearm was lawfully discoverable) and society's interest in an adjudication on the merits is high and strongly favours admission.
RELEVANT LAW AND LEGAL PRINCIPLES
Investigative Detention
[55] The common law provides authority for an investigative detention under the ancillary powers doctrine. An investigative detention is lawful where:
a. the police are acting within the scope of their duties;
b. the police have reasonable grounds to suspect in all of the circumstances that the person is connected to a particular crime;
c. the detention is reasonably necessary on an objective view of the totality of the circumstances; and
d. the investigative detention is conducted in a reasonable manner (including length, place and character). R. v. Mann, 2004 SCC 52 at para 34 and 45.
[56] As stated by the Ontario Court of Appeal:
"articulable cause is "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation." In ascertaining whether articulable cause exists the court must have regard to the facts and circumstances as a whole, rather than isolating each in turn and must be satisfied that there are bona fide clearly expressed and factually objective reasons justifying not only the detention of the suspect but also the extent and nature of the investigation."
[Emphasis added] R. v. Coates at para 3
[57] The onus is on the accused to prove on a balance of probabilities that the detention was arbitrary. R. v. Mann
Protective Pat-down Search
[58] Under the ancillary powers doctrine, the common law provides authority for a protective pat-down search incident to an investigative detention where:
a. the officer has reasonable grounds to believe that his or her safety, or the safety of others, is at risk;
b. the search is reasonably necessary in light of the totality of the circumstances; and
c. the search is conducted in a reasonable manner.
R. v. Mann at paras 40 and 45
[59] The search cannot, however, be justified based on a vague concern for safety. It must be grounded in objectively discernible facts such that reasonable and specific inferences can be drawn from the known facts of the situation in order to prevent fishing expeditions. R. v. Mann at paras 40-43 and R. v. Lee, 2017 ONCA 654 at para 31
Search Incident to Arrest
[60] In order for a search incident to arrest to comply with the Charter, it must be:
a. lawful;
b. be truly incidental such that it is connected to the offence either as a means by which to discover and preserve evidence connected to the offence being investigated or to protect against safety or escape; and
c. conducted reasonably.
R. v. Canary, 2018 ONCA 304 at para 33
Section 24(2) of the Charter
[61] Section 24(2) of the Charter provides:
(2) where, in proceeding under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regarding to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [Emphasis added]
[62] Section 24(2) is concerned with whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is an objective one, from the perspective of a reasonable person, informed of all relevant circumstances and the values underlying the Charter. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras 67-68.
[63] The analysis under section 24(2) is premised on the notion that a Charter breach, in and of itself, damages the administration of justice. It endeavours, therefore, to ensure that evidence obtained as a result of that breach does not cause further damage to the repute of the justice system.
[64] The goals of section 24(2) are not aimed at punishing the police or providing compensation to the accused. Grant at paras 69-70
[65] In accordance with Grant, the analysis requires a trial judge to assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to:
a. the seriousness of the Charter-infringing state conduct;
b. the impact of the breach on the Charter-protected interests of the accused; and
c. society's interest in the adjudication of the case on its merits.
Grant at para 71
The seriousness of the Charter-infringing state conduct
[66] The court must determine where the police conduct fits on the spectrum of violations from mere technical breaches at one end, to bad faith violations at the other. R. v. Jennings, 2018 ONCA 260 at para 26
[67] The reasonable "good faith" error of the police can reduce the need for a court to dissociate itself from the Charter-infringing state conduct thereby reducing the seriousness of the breach. Mann at para 55
[68] A police officer's misleading testimony will increase the seriousness of the breach because not only must a court dissociate itself from behaviour which undermines the integrity of the judicial system but the misleading testimony has thwarted the truth-seeking function of the court: R v. Harrison, 2009 SCC 34 at paras 26; R. v. Mian at paras 15, 18 and 87; R. v. Pino, 2016 ONCA 389 at paras 91-98
[69] As the Supreme Court explained in Harrison:
"I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, it is properly a factor to consider as part of the first inquiry under the s.24(2) analysis given the need for the court to distance itself from such behaviour. As Conk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisage under s.24(2) of the Charter. Few actions more directly undermine both these goals than misleading testimony in court from persons of authority" [Emphasis added]
[70] A police practice that is inconsistent with the demands of the Charter will also increase the seriousness of the breach. Such a practice produces repeated and ongoing violations that negatively impact the administration of justice, in the long run, even if many of the breaches are never exposed in court.
R. v. Rover, 2018 ONCA 745 at paras 36-37 and 40; Harrison at para 25
The impact of the breach on the Charter protected interests of the accused
[71] This branch of the inquiry requires an assessment of:
a. the degree to which the violation undermines the central objective of the Charter protection;
b. the nature and extent of the intrusion; and
c. whether the violation had merely a transient or trivial impact on the accused: Grant at paras 76-78; Harrison at para 28
[72] When assessing section 8 Charter violations, the focus is on the extent to which the state's conduct was invasive of a relatively lower or higher reasonable expectation of privacy and was demeaning of the individual's dignity. R. v. Cole, 2013 SCC 53 at para 91; Grant at paras 48-49
[73] In the context of a violation of section 9 of the Charter, focus is on the extent to which the state conduct compromised the accused's right to liberty from unjustified state interference. It is a Charter-protected interest that is broader than freedom of movement. The freedom to walk down the street is a manifestation of the interest in one's liberty to make decisions of importance without state interference. R. v. Le, 2019 SCC 34 at paras 152–153
[74] The lawful discoverability of evidence may lessen the seriousness of the impact of the Charter-infringing state conduct. It relates only, however, to evidence that a court can conclude "with confidence" would have been lawfully obtained. R. v. Côté, 2011 SCC 46 at para 70
[75] Conversely, the fact that the evidence was not lawfully discoverable may increase the impact of the violation because of the strong causal connection between the state conduct and the obtaining of evidence: Grant at para 122; Côté at paras 72-73
Society's interest in the adjudication of the case on its merits
[76] The final line of inquiry considers whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion. A judge must consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence. Grant at para 79
[77] The fundamental question for the court is "whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial" R. v Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.) at para 47
[78] The reliability of the evidence, its importance to a prosecutor's case as well as the seriousness of the offence must also be considered. Grant
[79] The seriousness of the offence, however, has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. However, the Supreme Court of Canada has warned that "the short-term public clamour for a conviction in a particular case must not deafen the section 24(2) judge to the longer-term repute of the administration of justice". Grant at para 84
[80] Further, "while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high" Grant at paragraph 84
[81] Allowing the seriousness of the offence and the reliability of the evidence to overwhelm the analysis "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and in effect, declare that in the administration of justice 'the ends justify the means'". Charter protections applies to everyone, even those alleged to have committed the most serious criminal offences. Harrison at para 40
DISCUSSION AND CONCLUSIONS
1. The evidence was obtained in a manner that violated P.N.'s section 8, 9 and 10(b) Charter rights.
a. P.N. was arbitrarily detained, contrary to section 9 of the Charter.
[82] The Defence argues that the police did not have grounds to detain P.N. He submits that P.N. was detained so that the police could search for evidence. He points to the fact that the manner of detention was not commensurate with the offence being investigated.
[83] The Crown argues that the police had reasonable grounds to detain P.N. because they had information that he was under judicial conditions not to be in contact with K.B. She submits that P.N. was detained briefly, in the circumstances, in order to confirm identity.
[84] Central to the assessment of whether DC Zimmerman had reasonable grounds to suspect that P.N. was connected to a crime and whether his detention was necessary is the nature of the crime DC Zimmerman was investigating.
[85] There is, however, conflicting evidence about the suspected crime. DC Yan testified that DC Forde advised that P.N. was on condition not to be with K.B. DC Yan had seen the pair together. DC Forde, based on information from a confidential informant (at least in part), believed that P.N. could have been in possession of a firearm. He warned DC Yan to be careful.
[86] DC Yan testified that P.N. looked at him in a way that was not innocent, took off his satchel and gave it to K.B., while still looking at him. DC Yan believed P.N. suspected he was a police officer. As a result of what he had seen and the information he received from DC Forde, he contacted two of his colleagues in the Major Crimes Unit to pursue the two young people. DC Yan testified that he told DC Munro that P.N. was not to be with K.B. and that P.N. may be armed.
[87] Based on the evidence of DC Yan and DC Forde, therefore, there were two possible crimes being investigated: the breach of judicial condition and the possession of a firearm.
[88] DC Munro and DC Zimmerman, however, testified that they did not receive information from DC Yan that P.N. was possibly in possession of a firearm. They maintained that they were only investigating a possible breach.
[89] The manner of detention is remarkable, in the circumstances. It involves two officers from Major Crimes Unit (in plain clothes and an unmarked vehicle), pursuing and cutting off (one on foot and one with a vehicle) two young people as they walk down the street. DC Munro drove in front on them and intercepted them while DC Zimmerman snuck up behind them and grabbed P.N. by the hands behind his back in handcuff position relying on "the element of surprise". He then handcuffed P.N. shortly after. K.B., the victim who was not suspected of any crime, was also detained. DC Munro testified that he was concerned that she would try to run away.
[90] I agree with the Defence. It is incredible that DC Zimmerman and DC Munro would have proceeded the way they did to investigate a breach of an administrative condition. They approached and detained the two young people as if they were investigating two people that were suspected of being in possession of a firearm.
[91] I do not accept the evidence of DC Zimmerman and DC Munro. I find that they have not been candid with Court. I accept the evidence of DC Yan and DC Forde, as it accords with the manner and scope of the detention. Accordingly, I find that the detention of P.N. was unlawful and therefore arbitrary, contrary to section 9 of the Charter.
b. The police conducted an unlawful search of P.N. and his satchel contrary to s. 8 of the Charter.
[92] The Crown argues that the search of P.N.'s person was lawfully conducted as a protective pat-down search incident to investigative detention. The search of the satchel containing the firearm was lawfully conducted incident to arrest. Following the lawful arrest of P.N., the police were authorized to search him and his personal belongings before bringing him into custody.
[93] The Crown conceded a breach of s. 8 when DC Zimmerman reached into P.N.'s left pocket, without having felt a hard object, and retrieved a $5 bill and some change.
[94] The Defence argues that the safety search was unlawful because the detention was unlawful. The decision to cuff and search P.N. was not based on reasonable grounds but was rather based on police created or non-existent concerns for safety. There have to be reasonable grounds, not as a matter of routine. The grounds have to come from the accused or the circumstances surrounding the detention.
[95] Having found that the investigative detention was unlawful, the search incident to detention was also unlawful. If I am wrong, I find that the searches are also independently unlawful.
[96] DC Zimmerman justified his search of P.N. after he was detained based on general safety concerns. He testified that he conducts "safety searches" as a matter of practice because officer safety is always an issue. He testified that P.N. did not comply with his repeated instructions to put his hands behind his back. This information, however, was not in his notes, even though it was the basis for his decision to handcuff P.N. I do not accept this evidence.
[97] DC Zimmerman's evidence did not reveal an assessment of the situation to determine whether he is authorized to conduct a safety search in the situation. DC Zimmerman's explanation is not grounded in objectively discernable facts. At best, it can be characterized as a vague concern for safety.
[98] I find that DC Zimmerman's decision to search P.N.'s person and his satchel cannot be justified on the basis of safety in light of the totality of the circumstances. These include:
a. he testified that he was investigating a breach of condition;
b. he took physical control of P.N.;
c. he caught P.N. by surprise;
d. P.N. was handcuffed behind his back; and
e. he had the assistance of up to two other police officers.
[99] I find that the Crown has not established that the search of the satchel was necessary on the grounds of safety or fear of escape. Moreover, it cannot be justified on the basis of searching for evidence of the breach of judicial condition.
[100] Based on the foregoing, I find that the search of P.N.'s person and satchel, upon detention and arrest, were unlawful, contrary to section 8 of the Charter.
c. P.N. was denied his right to counsel, contrary to section 10(b) of the Charter.
[101] The Crown conceded that P.N. was not informed of his right to retain and instruct counsel immediately upon detention, contrary to section 10(b) of the Charter.
2. The admission of the evidence would bring the administration of justice into disrepute.
a. The Charter-infringing police conduct is serious.
[102] The Crown argues that the breach of P.N.'s Charter rights is on the low end of the spectrum and favours admission. She submits that the officers acted in good faith and were not ignorant of their authority. Specifically, DC Yan made best efforts to confirm the bail conditions.
[103] The Defence argues the breaches are serious and were born of laziness and indifference. DC Yan testified that he had a discussion with K.B. about the consent she signed but DC Munro, who detained her, does not recall him having a conversation with K.B. Moreover, none of the officers' notes reflect any conversation with K.B. about the consent.
[104] The Defence submits that the police could have done more to determine whether K.B. had given consent. Moreover, according to the Defence, DC Zimmerman acted as matter of routine and does not know the limits of his authority. He testified that he believes he can search a detainee, provided that he has a reasonable suspicion to detain.
[105] I agree with the Defence. There were multiple breaches, and I find that the officers failed to take reasonable steps to determine whether K.B. had signed a consent. The fact that on the day in question they could not have determined that the consent had been signed is not determinative. There is no evidence any effort was made.
[106] The conduct of the police that led to the multiple Charter breaches constitutes a blatant disregard for Charter rights which was aggravated by misleading testimony at trial. The misleading testimony directly undermined the integrity of the judicial system and the truth-seeking function of the Court. I find, therefore, that the police conduct was serious and strongly favours the exclusion of the firearm.
b. The impact of the violations on the Charter-protected interests is high.
[107] The Crown argues that the impact of the Charter breach is low. She submits that the firearm was ultimately discoverable because once DC Yan arrived on the scene and confirmed the condition and the identities of the young people, there were grounds to arrest P.N. and search to him.
[108] The Defence argues that the impact of the Charter breaches is high given the manner of detention. After being seized from behind and handcuffed, there was a significant interference with P.N.'s physical liberty, his personal autonomy and his privacy interest. This is particularly so, according to the Defence, because P.N. was not in fact in breach of the judicial condition.
[109] The Defence further argues that the firearm was not discoverable because the police would not have had authority to search P.N.'s satchel. There was no basis for a safety search and no justification for a search related to the offence.
[110] I am unable to conclude that the firearm was lawfully discoverable. It is not possible to assess what DC Zimmerman subjectively believed because he had not been honest with the Court in his testimony. Objectively he and DC Munro, despite the ability to do so, made no effort to confirm the condition or the fact that K.B. signed a consent. I find their evidence in this regard, along with that of DC Yan, to be incredible as it was at times contradictory and none of them made notes of the alleged conversations with K.B.
[111] The fact that the consent signed by K.B. was not sent to the Toronto Police is not determinative because the officers failed to take any steps to confirm its existence.
[112] The multiple breaches, in their cumulative impact, were not transient or trifling. They significantly impacted P.N.'s liberty, autonomy and privacy. Accordingly, I find that this line of inquiry strongly favours the exclusion of the evidence.
c. Society's interest in a trial on the merits is engaged.
[113] The Crown argues that society's interest in a trial on the merits strongly favours admission of the evidence. The firearm is reliable, objective evidence that is crucial to a determination on the merits. If it is excluded, the prosecution ends. The strength of the societal interest factor carries extra weight in cases of firearms, particularly in the City of Toronto where there are serious safety concerns for residents because of gun crime.
[114] The Defence argues that no offence is immune from Charter relief. A reasonable person, according to the Defence, would expect that where the case is serious as a gun case, the police would also be serious about how they carry it out.
[115] I agree with the Crown. The evidence obtained as a result of the Charter breaches is highly reliable and is conclusive of guilt on the offences charged. Its admission would facilitate the discovery of truth. While the charge is serious, this factor was not given disproportionate significance because, as the Supreme Court in Harrison articulated "the public also has a vital interest in a just system that is beyond reproach, particularly where the penal stakes for the accused are high" at para 34.
[116] Based on the foregoing, having regard to all the circumstances, I find that the truth-seeking function of the criminal trial process would be better served by the admission of the evidence.
Balancing the Factors
[117] I have found that the conduct of the police that led to the multiple Charter breaches was a blatant disregard for Charter rights which was aggravated by misleading testimony at trial. I also found that the multiple breaches, in their cumulative impact, were not transient or trifling. They impacted on P.N.'s liberty, autonomy and privacy and were significant. The first two lines of inquiry, therefore, strongly favour exclusion of the firearm.
[118] With respect to the third line of inquiry, I found that the evidence obtained as a result of the Charter breaches is highly reliable and is conclusive of guilt on the offences charged. Its admission would facilitate the discovery of truth. As such, it favours inclusion of the evidence.
[119] Weighing the evidence on each of the three lines of inquiry, having regard to all the circumstances, I conclude that the admission of the evidence would bring the overall administration of justice into disrepute, viewed in the long term.
CONCLUSION
[120] Having concluded that the firearm was obtained in a manner that infringed or denied P.N.'s Charter-protected rights contrary to sections 8, 9 and 10(b), the firearm shall be excluded because its admission in the proceedings would bring the administration of justice into disrepute, having regard to all the circumstances. Consequently, P.N. is acquitted of all 10 counts in the information.
Released: July 10, 2020
Signed: Justice Maria N. Sirivar