Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 11 21 COURT FILE No.: Central West Region – Hamilton - 21-6220

BETWEEN:

HIS MAJESTY THE KING

— AND —

Jason Mercuri and Justin Silva

Before: Justice Anthony F. Leitch

Heard on: October 25-26, 2022 Reasons for Judgment released on: November 21, 2022

Counsel: Warren Milko, counsel for the Crown Caroline McKenna, counsel for the accused Justin Silva Alexandra Valeri, counsel for the accused Jason Mercuri

Ruling on Charter Application Sections 8, 9, 10 and 24(2)

Leitch J.:

[1] On July 5, 2021 Constable Kolerec ran a license plate on a car driven by Jason Mercuri and discovered that the registered owner Michelle Cowen was a suspended driver. When he followed the car, it took an evasive route and committed several HTA violations including failing to stop for stop signs and speeding. With the assistance of Constable Lei he pulled over the vehicle over to see if the driver was the suspended registered owner and for the HTA violations. The registered owner was not driving but open alcohol was observed in the vehicle which led to a personal search of the driver and passenger (Justin Silva) and the discovery of drugs and a loaded handgun in the trunk.

[2] The defendants seek to exclude the evidence the police located in the trunk, the ammunition and handgun, for violations of sections 8, 9 and 10 of the Charter of Rights and Freedoms. They maintain that the traffic stop was a ruse to conduct a criminal investigation, so the stop was arbitrary, and the resulting search was contrary to the Charter. After the defendants were arrested there was an admitted breach of s. 10 of the Charter as there was a delayed implementation of the right to counsel.

[3] The defence acknowledged in oral argument that the admitted breach of the informational component of the right to counsel would not, on its own, justify exclusion of the evidence under section 24(2) of the Charter as there was no causal connection to the evidence obtained from the truck. However, they maintain that the breach of the right to counsel when combined with the breaches of sections 8 and 9 establish a pattern of breaches of the Charter that are serious and require exclusion of the evidence under section 24(2).

The Onus

[4] The defendant bears the onus of establishing Charter violations under section 9 and 10 but the Crown bears the onus on section 8 as the search was undertaken without warrant requiring the Crown to establish the search was reasonable and authorized by law.

The Evidence

[5] There was a delay in the implementation of the right to counsel on the voir dire evidence. The Crown has admitted that the delay in transporting the defendants to the police station to permit them to access their right to counsel resulted in a constitutional violation. While detectives were determining whether to interview the two defendants in relation to the traffic stop and the evidence seized, further delay of the implementation of the right to counsel occurred. The delay was approximately two hours and, although some of that period contained explainable delay, much of that time showed the officers were unaware of their obligation upon arrest to provide the defendants with an immediate opportunity to consult with counsel of choice.

[6] I accept the evidence of Constable Kolerac that this investigation began to determine if the registered owner was driving the car that was stopped. I have no doubt that this was not the only reason the car was stopped, that officer Kolarec had a secondary purpose to explore whether this car was involved in criminal activity. I accept his evidence that the predominant purpose of the stop was to determine if the driver was a suspended driver. Once it was established that the driver was male it was clear that the registered owner who was suspended was not driving. All the investigation that followed was windfall evidence from that vehicle stop.

[7] There were contradictions between Constables Kolarec and Lei about what transpired during the stop. Kolerac testified that he saw an open can of Mike’s hard lemonade tipped at an angle between the passenger Silva’s feet. Lei did not initially observe the open can until Kolerac said something about it to him while interacting with the driver Mercuri. Lei’s description of the open can was different than Kolarec. He said the can was standing upright, not tipped, beside Silva’s feet. There was an inconsistency between the officers about who seized the can and determined it was half full. I find Kolarec’s evidence on this point suspect and unsupported by any contemporaneous notes. I don’t believe he seized the can or ever touched it and that his evidence that he “must have” done so is an effort to fill in gaps in his memory to justify the arrest under the Liquor Licence Act.

[8] I do accept Lei’s evidence on the point who was an excellent witness with good recall and supporting notes. I accept his evidence that he subjectively believed that the can he saw was half full of an alcoholic beverage and that this gave both officers grounds under section 32(5) the Liquor Licence Act to search the car for evidence to support a charge for this regulatory offence. I accept also that there were grounds to believe he may have committed a seatbelt violation, although those grounds were weak as he did not see the passenger without a seatbelt on until the car had been stopped. Regardless of this seatbelt violation both defendants were searched for the open alcohol in the car, not any seatbelt violations.

[9] The search for further evidence of alcohol in the car and the resulting search of the defendants is not significantly in dispute. The defendant Silva was searched incident to detention to find alcohol which led to the discovery of a green pill bottle with several Xanax bars init. The pill bottle did not have a label which indicated it was prescribed medication. He was arrested for Possession for the Purpose of Trafficking under 5(2) of the Controlled Drugs and Substances Act. Immediately after that, the search of his satchel on his person revealed what was believed to be a Glock handgun. A minute later it was determined this was not a handgun but was an imitation BB handgun. A personal search of the defendant Mercuri did not result in any evidence seized.

[10] The police then searched the trunk of the car for both evidence to support the Liquor Licence Act violation and for safety reasons given the discovery of what was initially believed to be a handgun on the defendant Silva. Although he knew within a minute it was a BB gun officer Lei believed a search of the vehicle was necessary to determine if any other weapons or alcohol could be found. Found in a Nike brand satchel in the trunk was a Bersa .380 calibre handgun loaded with ammunition in the magazine.

The Alleged Charter Violations

[11] In oral argument counsel for Jason Mercuri argued that that the stop was a ruse to pursue a proactive criminal investigation, that the demand for identification was unsupportable as the suspended driver investigation was over once the police noted on the stop that a male was driving the car. Even if the initial stop was not arbitrary the request for identification when it was clear the registered owner was not in the car resulted in an arbitrary detention before any open alcohol was seen. These breaches, combined with clear informational and implementational breaches of section 10, combine to lead to a serious breach justifying exclusion of the gun and ammunition found in the trunk.

[12] Counsel for Justin Silva argued that the stop was arbitrary as it was not undertaken to determine if the driver was suspended but was carried out as a criminal investigation founded on pure suspicion and what the police perceived to be attempts to evade them by the driver, which likely never happened given the poor quality of Constable Kolarec’s evidence. Kolarec was using questionable HTA grounds as cover to stop the car to see if he could find criminal activity through so called proactive policing. Kolarec’s evidence hinged on his insistence that he would not have detained and searched the defendant Silva unless he had picked up the Mike’s Hard lemonade to confirm it was half full. They argued his evidence cannot be accepted, that he never picked up the can and therefore he lacked subjective grounds to detain and search. Silva adopts his co-accused’s position that the substantial delay in the implementation of the rights to counsel increases the seriousness of the Charter violations and represents a pattern of Charter breaches justifying exclusion of the evidence under section 24(2).

[13] As indicated at the outset of these reasons the defendants agree that the right to counsel breach alone is insufficient to justify exclusion under section 24(2). This breach, though not causally linked to the discovery of the evidence, was said to increase the seriousness of the section 8 and 9 breaches they allege and shows a pattern of multiple breaches requiring exclusion of the evidence.

Analysis

Section 9

[14] I find that the evidence does not establish on the balance of probabilities that the defendants were arbitrarily detained. The stop was undertaken for a dual-purpose, the predominant purpose being a regulatory investigation into whether the driver of the vehicle was a suspended driver. In R. v. Mayor, 2019 ONCA 578, [2019] O.J. 3555 (O.C.A.) the Court of Appeal reaffirmed the legitimacy of a dual stop for regulatory and the suspicion of criminal activity:

8 A detention or arrest pursuant to a Highway Traffic Act power can be lawful if the officer has either only road safety purposes in mind or has both road safety and other legitimate purposes in mind… An officer may thus have a road safety purpose in mind even if the officer simultaneously has a criminal law purpose in mind: Sandu, at para 62.

9 However, if the officer does not have a legitimate road safety purpose in mind using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful….

[15] The evidence shows that the officers stopped the defendant’s car for a legitimate road safety purpose, following the car to check if the registered owner was driving, as she was suspended. After the pursuit began, I accept that other Highway Traffic Act violations were observed by Constable Kolerac further justifying the traffic stop and investigation. There was no violation of section 9.

Section 8

[16] The crucial issue in this case turns on factual findings concerning the validity of a Liquor Licence Act investigation. If the police had reasonable grounds to believe that there was open alcohol in the car, they were justified in removing the occupants to search them under the authority of s. 32(5) of the LLA. This section authorizes the police to “without a warrant, enter and search the vehicle or boat and search any person found in it”. I accept officer Le evidence that he saw an open can of Mike’s hard lemonade at the feet of the passenger in the car. This in turn permitted the searches of the person and the trunk of the car that followed (see R. v. Annett (1984) O.J. # 192 (O.C.A.) and R. v. Graham (2018) O.J. # 5992 (ONSC) at 43-47).

[17] I recognize there were conflicts in the evidence between Constables Kolerac and Lei on the exact position of the can. I accept that the can was seen by both officers and was either standing up or slightly tipped. Their perspectives were different, Kolarec was observing through the driver’s window and Lei through the passenger’s window. This may account for their differing evidence on exactly how the can was positioned in relation to Mr. Silva’s feet and whether it was tipped slightly or standing up. I accept Lei’s evidence that he later determined upon its seizure that the can was half full. His initial observation of it standing up made his belief it was open alcohol a reasonable inference in the circumstances. He also smelled a strong odour of alcohol in the car which strengthens the reasonableness of his inference. I reiterate I prefer the strong evidence of Lei over the evidence of Kolarec where their evidence differs. On Lei’s evidence alone the LLA search was lawful.

[18] The LLA search powers are significant and permit a full search of both the driver and the passenger and the entire car. Officer Lei was conducting a valid regulatory investigation when he saw the can. The fact that he and his partner may have also harboured a criminal suspicion about the car does not detract from their primary investigation when they stopped the car. In sum, the stop was not arbitrary or improper, Lei saw the can during this lawful stop, he reasonably believed the can was open and had alcohol in it because it was standing up on the floor at the passenger’s feet and the smell of alcohol from the car was strong. This was not a ruse for a criminal investigation, rather the windfall of a valid and lawful investigation into a possible driving while suspended and failing to stop for stop signs. The fact the HTA charges were never instigated is not surprising given the much more serious crimes that this windfall produced. I find there was no breach of section 8 of the Charter. The Crown has established the search was authorized under the LLA and was carried out in a reasonable manner.

Section 10

[19] There was an admitted breach of section 10 of the Charter. Despite clear direction from the Supreme Court of Canada and the clear wording of section 10 itself, I find the police were oblivious to their obligation to implement the defendants’ right to counsel of choice immediately. There was no bad faith in their decision but there was certainly no good faith. They simply didn’t understand that upon arrest a detainee is entitled to the immediate lifeline of counsel to explain the right to remain silent and their jeopardy from the criminal arrest and investigation. The police delayed implementing the defendants’ right to counsel somewhere from one to two hours in this case and showed no understanding of the need for speed to get a detainee to speak privately to their lawyer. That said the discovery of evidence in this case came well before any breach of the right to counsel. A different result may well have followed had the defendants been conscripted against themselves by giving a statements to the police that the Crown wanted to rely on. Here however, real evidence was discovered well before the serious violation of section 10.

24(2)

[20] I have found no breach of section 8 or section 9 of the Charter of Rights and Freedoms. I agree with the concession of the Crown that section 10 of the Charter was violated by police for both defendants. The breach was not made in bad faith but in almost complete ignorance of the obligation to immediately provide an opportunity for the detainees to speak to the lawyer. I therefore find the breach to be serious in this case on the first prong of the Grant analysis.

[21] However, I find the impact on the Charter protected rights of the defendant to be low to moderate, in short minimally intrusive. Although there was a sufficient connection to engage the, “obtained in a manner” test temporally and contextually, there was no causal connection between the breach and the evidence obtained. The defendants were not abused or mistreated as they awaited their opportunity to speak with counsel. They sat in the police car approximately an hour longer than they should have. There was no evidence called by the defence to accentuate or explain any significant or unusual impact on the defendants resulting from the delay in the right to speak to a lawyer. They did speak to a lawyer and receive legal advice in the end, and the Crown will not tender any statements made at trial in this case.

[22] Society has a significant interest in the adjudication of this case on its merits. This factor weighs strongly against exclusion of the evidence found, a loaded restricted handgun. The offences alleged are serious and the exclusion of the evidence would bring the Crown’s case to an end. The gun and ammunition are reliable real evidence. I adopt the reasoning of Justice Brown in dissent but later endorsed by the Supreme Court of Canada in Regina v. Omar (2018) ONCA 975, dissent aff’d ([2019] 2019 SCC 32](https://www.canlii.org/en/ca/scc/doc/2019/2019scc32/2019scc32.html)), S.C.J. 32:

138 It is, of course, a matter of balance under section 24(2). But the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor in treating illegal handguns as fungible with any other kind of evidence for the purposes of a section 24(2) analysis.

The third Grant factor pulls strongly in favour of admissibility. Balancing all three factors I find the evidence admissible. The defence application to exclude the gun and ammunition is therefore denied.

Released: November 21, 2022 Justice Anthony F. Leitch