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:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.
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:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
ONTARIO COURT OF JUSTICE
CITATION: R. v. T.S., 2022 ONCJ 58
DATE: February 11, 2022
COURT FILE No.:19-Y0181
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
T.S. (a young person)
Before Justice Angela L. McLeod
Trial December 13, 14, 15, 2021
Judgement February 11, 2022
Maria Di Clementi............................................................................... counsel for the Crown
Sam Boutsouvis................................................................... counsel for the young person
McLeod J.:
BACKGROUND NARRATIVE
[1] T.S. is a young person who was 16 years of age on the date in question, May 29, 2019. He was in the company of two adult male parties who were also charged and tried elsewhere. The outcome of those trials is unknown to this court.
[2] On May 10, 2019, (19 days prior to the incident in question) two black males strategically parked in a condominium parking lot directly behind their intended target’s customary parking spot. The target lived at the condominium. The target was shot at 7 times and struck twice. He survived. He was uncooperative with police other than to say that he believed the parties would return to ‘finish the job’. The males left the scene and abandoned their stolen vehicle close by. Those parties have never been arrested. Their identities remain unknown.
[3] Detective Constable McKinney was first on scene after the shooting and was thereafter involved in the investigation, which included viewing security footage from the condominium which captured the shooting.
[4] Sergeant Coulter was not involved in the shooting investigation.
[5] During this time period Midland police noted a marked increase in violent crime in the town. As a result, police were, and thereafter, engaging in greater patrols.
OVERVIEW OF MAY 29, 2019
[6] The defence made a number of admissions:
(1) Date;
(2) Time;
(3) Identification;
(4) Jurisdiction;
(5) Continuity;
(6) The Firearms Analyst Report;
(7) The gun found was a firearm;
(8) T.S. was not in possession of a firearm’s license at the time;
(9) The condominium security footage from May 29, 2019;
(10) The SOCO photographs;
[7] What follows are uncontested facts relating to the night in question, May 29, 2019:
(1) The events took place in the same parking lot as those of the night of May 10, 2019;
(2) The events were captured on the same security cameras as those of the night of May 10, 2019 (Exhibit #1). The video does not have an audio component;
(3) None of the security footage was observed by police until well after the arrest of T.S.;
(4) Detective McKinney was on patrol with his platoon Sergeant (Coulter) and purposively drove to the condominium parking lot to make observations;
(5) Coulter had been an officer for approximately 17 years at the time in question;
(6) McKinney had been an officer for approximately 8 years at the time in question;
(7) The front passenger exited the front passenger seat and fled when police got out of their vehicle. This male ran across the road and into a wooded area. The male was arrested hours later;
(8) T.S. was the sole back passenger;
(9) The subject vehicle was a Hyundai Elantra; a small 4 door sedan.
[8] The timing of the events is noted on the security footage as follows:
(1) May 28, 2019 – 10:11pm – Two vehicles (clearly travelling together), including the vehicle that T.S. was ultimately located in, entered the parking lot, drove around the loop and exited. This fact was unknown to the officers at the time of the incident;
(2) May 28, 2019 – 10:17pm – Two vehicles (clearly travelling together), including the vehicle that T.S. was ultimately located in, entered the parking lot for a second time and parked in either the same spot or the spot one over, as the shooters of May 10th, 2019. The vehicles passed 3-4 empty spots before parking. This fact was unknown to the officers at the time of the incident;
(3) May 28, 2019 – 11:16pm – The vehicle that T.S. was ultimately located in pulled out from the parking spot, drove around the loop and exited. It does not appear to contain a front or a rear passenger. This fact was unknown to the officers at the time of the incident;
(4) May 29, 2019 - 12:41am – McKinney and Coulter enter the parking lot. McKinney is driving; McKinney stops (14 seconds later) directly in front of the subject vehicle, continues, stops (11 seconds later) a second time, reverses and pulls up in front of the subject vehicle (15 seconds later). The total time from entrance into the parking lot to ultimate stop and exit from the vehicle is 40 seconds;
(5) The officers exit the vehicle. Immediately the front passenger can be seen running away and the officers then draw their weapons;
(6) 12:43am (missing is 1 full minute of the footage) – the adult driver exits the vehicle with his hands raised above his head, moves in front of the subject vehicle and drops to his knees;
(7) 12:43am (missing 41 seconds of the footage) – rear passenger, T.S. exits the vehicle with his hands raised above his head, moves in front of the subject vehicle and drops to his knees;
(8) 12:44am – McKinney makes physical contact with T.S.; McKinney violently pushes T.S. to a prone position; he then violently grabs T.S. and either punches or pushes his head to the concrete;
(9) 12:44am (missing 38 seconds of footage) – McKinney uses flashlight to look into both sides of the vehicle;
(10) 12:45am – officers call for back up;
(11) 12:47am (missing 2 minutes and 25 seconds of footage) – McKinney violently drags T.S. to the police vehicle and pushes him against it. T.S. is then placed in the backseat. T.S. had been prone on the ground with his hands cuffed to the rear. The adult driver remains prone and cuffed on the ground;
(12) 12:48am – a second police vehicle arrives on scene;
(13) 12:51am – McKinney can be seen ‘popping up’ from the subject vehicle and is clearly searching same as he can be seen closing the front passenger door;
(14) 12:52am – the adult driver was walked over and placed in Constable Devy’s vehicle. All three officers assist in this process;
(15) 12:52 am – Coulter and McKinney attend at the subject vehicle together;
(16) 12:54am – the gun is located by McKinney on the floor of the back passenger footwell;
(17) 12:54am – McKinney attends at his vehicle and speaks with T.S.;
(18) 12:54am – a third police vehicle arrives on scene. There are now 5 officers on scene;
(19) 12:55am – Coulter enters the driver’s door of the subject vehicle. This is the first time she can be seen near the vehicle. Within 30 seconds, McKinney opens the rear passenger side door. Coulter leaves the front driver’s door and then enters the rear driver’s passenger door. Almost immediately both officers walk away from the vehicle;
(20) 12:56am – McKinney returns his vehicle where T.S. is seated;
(21) 12:57am – unknown officer can be seen entering the rear passenger side door, removes something and places it on the roof;
(22) 1:00am – McKinney arrests T.S. and provides rights to counsel and cautions;
(23) 1:03am – (missing more than 5 minutes of footage from 12:57 to 1:03am) Devy leaves the parking lot with the adult male driver and transports him to the detachment;
(24) 1:27am – Devy returns to the parking lot. T.S. is moved from McKinney’s vehicle to Devy’s;
(25) 1:29am – Devy transports T.S. to the detachment.
TESTIMONY THAT IS CONTROVERSIAL, CONTESTED OR CONTRADICTED
[9] The following chart summarizes the evidence which requires a finding of fact:
ISSUE
MCKINNEY’S TESTIMONY
COULTER’S TESTIMONY
SECURITY VIDEO
Conversation between the officers upon entering the parking lot re subjects and action to be taken
Let Coulter know of my observations. Might have said the males were black. I was able to list off these things in 20 or so seconds.
McKinney asked if she saw the parties in the subject vehicle. He said he was certain that they were slouching down.
26 seconds passes from the time of the initial stop, turn around and final stop
Reason for high risk take down
Had concerns they were there to harm the shooting victim again. Concerned might be a firearm in vehicle. White or black believed they were there to kill the shooting victim. Might have mentioned to Coulter that they were black, might have been a contributing factor, can’t say. Not a major contributing factor. Cannot say when the decision was made to execute a high risk take down. I think we had a conversation about it. We had discussed it. Decided to get out with firearm holstered.
Not a verbal decision, was based on experience, knowledge of the previous weeks activities. Best course of action for police, public and subject safety.
n/a
Front license plate of subject vehicle
License plate was altered or disguised which is an arrestable offence under the HTA.
Was covered in a white material, held on with black tape.
Clearly visible white material held on with black tape
Parties inside the subject vehicle
Observed two black males. Seats extremely reclined at a 45-degree angle, same as on May 10, 2019. Turned police vehicle around, observed 3rd black male in rear driver’s seat. Small movements. Nothing major.
Silhouette of figures appeared to be slouching down in an attempted to obscure themselves. Movement in the driver’s seat. Front passenger jumped out of the car when command given to show hands. Not sure which side of the vehicle T.S. was on, didn’t make a specific notation.
Race of subjects
Observed two black males. Seats extremely reclined at a 45-degree angle, same as on May 10, 2019. Turned police vehicle around, observed 3rd black male in rear driver’s seat. In his notes McKinney referred to the males as black; months later in a follow up report he referred to the males as non-white. Report was written for personal reasons.
Did not know race until I got out of my vehicle and then knew they were non-white, even then not 100% sure of that, have seen persons draw on black face paint – not sure until they are in your custody. Contradicted self in cross examination noting that McKinney had told her that the parties were black males before she exited the vehicle.
Exit from police vehicle
Did not initially draw my firearm. As I approached, front passenger male fled. Male exited and ran. I got out of vehicle without my firearm, took two steps, male gets out, then I draw my firearm.
Exited with firearms drawn. Issued police command to show hands and not move unless directed.
Firearms were not drawn until passenger fled.
Action of McKinney when front passenger fled
Never ran after male, would never leave my Sgt. alone.
McKinney began to give chase and was directed to stop and continue take down of subject vehicle occupants.
McKinney never gave chase.
Investigative detention
At the point of the police command.
n/a
Purpose of investigative detention
Concerns may have come back to harm shooting victim. Concerns about stolen vehicle. What was these males intentions attending this parking lot.
Strong suspicion subject vehicle was stolen, could be armed due to increase in violent crime.
n/a
Cuffing and pat down search
Cuffed for officer safety.
Cuffed and pat down search of the driver. Concern for officer safety. Driver’s license located and identity confirmed. Address noted in North York.
Questioning of detainees
Both driver and T.S. questioned about identity, reason in area, ownership of vehicle. T.S. did not respond. Driver said vehicle not stolen. These were some of the questions asked not in a position to keep a running transcript about the verbiage between them and the officer.
n/a
Subjects advised as to reason for detainment
Would have let him know that he was under investigative detention, after that I have made not notes, so I can’t say. Somebody has at least told them something. My report says that. They would have had some degree of understanding as to what was going on. I may have said something, I have no independent recollection. They would have known something about why they were in investigation detention.
I don’t know if I said that in particular.
n/a
Rights to counsel
T.S. repeatedly said, “Lawyer, lawyer”. RTC not provided immediately, a lot of stuff going on at that time. Rights to counsel not provided prior to the finding of the firearm.
Not at the time of investigative detention. Exigent circumstances. Not practical to take the time to do that. No opportunity to facilitate the calling of a lawyer. Informational component was not possible due to officer and public safety.
Both parties were detained at 12:43am and cuffed immediately after.
Interaction with and search of subject vehicle
Never went into the vehicle. Used flashlight to look into vehicle for other parties. Removed duct tape from the rear license plate. At some point we search the vehicle, but I don’t recall when. Discovered the firearm just looking through the window. After we located the firearm, I look for further evidence of that offence, after the arrest. I was never have not been more than 20 feet from the car. Multiple occasion, I looked to see, double checking, triple checking, passing the front to rear with my flashlight looking. Never opened the door, never broke plain view of the vehicle. Looking in and located the firearm. I wasn’t looking for documents specifically. Part of my search, that is how I know when I have searched an area, I move the seat as far back as I can. I moved the front passenger seat back 6 inches.
Attended front of vehicle to examine license plate. Removed white materials (paper). Ran the plate. Not reported as stolen but registered to a commercial premise. At this point commenced a quadrant search of vehicle with McKinney. Coulter on driver’s side; McKinney on passenger side. Inside the vehicle searching. Coulter located two black balaclavas (one in rear driver’s side seat and one on front passenger seat). McKinney located the firearm in rear passenger side foot well. Coulter applied gloves, picked up the firearm and returned it. Directed McKinney and Devy to place the parties under arrest. Completed the search of the vehicle in totality. Located a parking stub for May 28, 2019, for 8pm to 11pm, for parking lot in the GTA. Located a cell phone in the center console. Seized the cell phone. Attempted to write down the incoming calls and social media messages. Collecting same for a warrant to be written down the road.
McKinney used his flashlight to look into the vehicle. He also entered the vehicle, without Coulter. Coulter and McKinney searched the vehicle together. Coulter searched the vehicle alone.
Reason for subject vehicle search
Looking in the car, to further the investigation, not opening door, looking in plain view, not moving or removing. Just looking. Was not looking for documents or anything like that.
Investigating likelihood of being stolen. Searching for ownership, rental agreement, to corroborate either driver’s claim or my suspicion. Concern about weapons, suspicion for purpose of engaging in violent crime.
Why not obtain a warrant before searching subject vehicle?
At the time we placed them in investigative detention we did not have RPG to arrest which would have been necessary to obtain an ITO for s. 487. If we had RPG to believe weapons that would have been different.
Officer next steps
Observing the parking lot for the male who might return, decompressing, cooling off and slowing down, looking for direction, having conversation with Coulter, digressing about what occurred, keeping area safe, waiting for other officers to come.
Making several phone calls to connect with ERT, canine units and Toronto Police.
SUBSTANTIVE MERITS OF THE CASE
[10] The Crown is required to establish the elements of each offence beyond a reasonable doubt. This burden never shifts.
[11] Neither party made any submissions regarding count #7, the trespass charge. The only evidence proffered in respect of this count was that the parking lot was a private lot attached to the condominium. There was no evidence as to any signage, any history of trespass notice to T.S., or any evidence from the superintendent of the building in this regard. There was no evidence as to the home address of T.S. As such, I am left with a reasonable doubt and an acquittal will be entered in respect of this count.
[12] Given the admissions, the parties agree that the issue to be decided is whether T.S. had both knowledge and control over the firearm.
[13] There was no DNA or fingerprint evidence connecting T.S. to the firearm.
[14] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R 253, Fish J. identifies two routes to establishing possession:
(16) On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question and must be aware as well of what that thing is. Both elements must co-exist with an actual control (outside of public duty): R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531 (S.C.C.), at pp. 541-542 (emphasis added).
(17) Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s.4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person (emphasis added).
[15] In R. v. Degraw, 2018 ONCA 51, Fairburn J. confirms the third potential route – joint possession, and notes “[r]egardless of the route, there must be knowledge and some level of control.
[16] Additionally, Fairburn J. highlighted that “there is simply no requirement that the Crown prove that the accused had physical possession or intended to take physical possession of the subject item(s)” to establish constructive possession.
[17] The Crown submits that constructive possession can be inferred from the circumstances in the case. Sergeant Coulter testified that she located one balaclava in the rear driver’s passenger seat and one in the front passenger seat. She testified that she also located a parking stub for the GTA for the period of May 28, 2019, between 8pm and 11pm (hours before the high risk take down). None of these items were photographed, in situ or otherwise, and none were made an exhibit. No other witness testified to their existence.
[18] The Crown submits that the inference to be drawn is that all parties had come from the GTA and had been in the vehicle for several hours and as such T.S. would have known about the firearm which was not hidden when located by police. This argument must fail. There is no evidence as to where T.S. lived or came from on the night in question. It is not possible to conclude whether T.S. had been in the car for hours or for minutes before the police arrived. The parking stub only establishes that the subject vehicle had been in the GTA at least at 8pm earlier in the night. Nothing more. The security footage establishes that the vehicle first entered the parking lot at 10:17pm; no rear passengers can be seen at that time.
[19] Furthermore, the Crown submits that the fact of the obscured license plate, the balaclavas and the reclined front seats infers that the parties were in the parking lot for an unlawful purpose that would have included the knowledge and possession of the firearm. The Crown theory is the parties were made up of one driver, and two passengers with balaclavas who were to act as the executors of the unlawful act. This argument must fail. While the balaclavas and obscured license plate may infer an intention to engage in an unlawful purpose, there is no connection thereafter to the firearm. Anything more would be speculation.
[20] Furthermore, and prior to considering the inference to be drawn, Sergeant Coulter’s testimony is subject to both a credibility assessment and Charter scrutiny given the warrantless search and is required to establish the existence of the balaclavas.
[21] There is another factual issue to be resolved, the placement of the front passenger seat. It is not disputed that the front passenger seat was significantly reclined. The issue is whether the seat was in the position captured in Exhibit #2 (photos of the back-passenger seat foot well area), or whether Officer McKinney pushed the seat into that position. If it is the former, I find that it would not have been possible for McKinney to see the gun laying on the floor through a closed window. Additionally, it would not have been possible for T.S. to be sitting in the back passenger seat behind the front passenger, and would not have been possible for T.S. to see the gun on the floor if he were sitting in the back passenger seat behind the driver. The front passenger seat was obscuring the rear passenger seat footwell. It was night and it was dark outside.
[22] Additionally, Detective Constable McKinney’s testimony is subject to both a credibility assessment and Charter scrutiny given the warrantless search.
ASSESSMENT OF CREDIBILITY AND RELIABILITY
[23] In examination in chief and re-examination, Sgt. Coulter provided long, detailed and purposeful answers. In cross examination, there was a marked change in her demeanor and attitude. She was argumentative, evasive, defensive, short and challenging. When shown video clips she would not agree with the obvious. She was adamant that the gun was found quickly and refused to accept the video evidence to suggest otherwise. Cross examination on this point required protracted questions until Sgt. Coulter had to finally agree that in fact it had taken at least 15 minutes to find the gun. The security footage confirms this fact and I find that the object placed on the roof of the car by Coulter was the firearm.
[24] Sgt. Coulter took minimal /poor notes. She admitted that she was having some difficulty with her memory given the passage of time. Her independent recollection suffered. She was adamant about some issues, only to find that her memory was wrong.
[25] Sgt. Coulter was contradicted on many areas of her evidence by Detective Constable McKinney, and most importantly on the conduct of the search.
[26] Ultimately, I find that her evidence is neither reliable nor credible.
[27] Officer McKinney repeatedly denied that he searched the interior of the vehicle with Sgt. Coulter. She was clear that they had engaged in the search together. Officer McKinney’s evidence was filled with ‘might have’ and ‘would have’. He took scant notes, and much was left out. McKinney testified that the officers discussed and decided to engage in a high risk take down; Coulter testified that they did not and made the decision individually, based on training. Coulter testified that McKinney initiated a chase of the fleeing front passenger and was ordered to stop. McKinney testified that he would never give chase and leave his sergeant. These are but a few of the many contradicting versions of the events provided by the officers.
[28] After listening to both officer’s evidence, one would think they were investigating two different cases.
[29] Ultimately, I find that the bulk of Detective Constable McKinney’s evidence is neither reliable nor credible.
FINDINGS OF FACT
[30] In light of the admissions, the exhibits (including most importantly the security footage) and the credibility assessments, I find as follows:
(1) The front passenger seat was in the position as photographed and not pushed into that placement by McKinney. A veteran officer would know not to move items until photographed, or documented, especially as they pertain to the most important item – the gun.
(a) As such, I find that T.S. could not have been sitting in the rear seat behind the front passenger.
(b) As such, I find that T.S. could not have seen the gun laying on the floor of the rear seat behind the front passenger as it would have been obscured by the severely reclined seat.
[31] With respect to the essential element of knowledge, I am left with a serious doubt as to whether the T.S. would have had knowledge of the existence of the firearm. There is no evidence, nor inference that can be relied upon to establish either knowledge or control, to ultimately establish possession, be it personal, constructive or joint.
[32] This finding is dispositive of the remaining counts. T.S. will be acquitted of all charges.
[33] In spite of this conclusion, I find that the Charter breaches are so serious, that they warrant further finding and commentary.
CHARTER APPLICATIONS
[34] The defence submits that the police breached sections 7, 8, 9, 10(a), 10(b) and 15 of the Charter of Rights and Freedoms.
[35] The defence has the onus for each save and except section 8, as the police engaged in a warrantless search. The Crown bears that onus in that respect.
[36] The defence burden of proof is on a balance of probabilities.
[37] The evidence on the applications was blended with the trial proper and as such all evidence called applies.
[38] I find as a fact that:
(1) T.S. was subject to investigative detention the moment that the police pulled up in front of the subject vehicle and issued commands to exit the vehicle and had their guns drawn. He remained in detention, cuffed and in the rear of a police vehicle for 46 minutes before being taken to the station. No explanation was proffered as to why he was kept on scene.
(2) T.S. was subject to repeated and unnecessary force at the hands of Detective McKinney, both while on his knees in front of the subject vehicle and while being dragged to the police car and then thrown violently up against it.
(3) T.S. was not advised as to why he was in investigative detention. Detention triggers the right to be advised why someone is in fact detained and the right to counsel.
(4) T.S. was not provided with the informational component of his rights to counsel for more than 46 minutes after being placed in investigative detention. No evidence was proferred about what steps were taken, if any, once at the station.
[39] A breach of section 10(a) rights is established.
[40] Furthermore, I find as a fact:
(1) T.S. was not provided with the implementational component of his rights to counsel at least until he was transported to the station, more than 46 minutes after being placed in investigative detention. No evidence was proffered about what steps were taken, if any, once at the station. There is a void in the evidence as to the implementational component of his rights to counsel.
(2) The officers testified that any delay was due to public safety and officer safety concerns. I disagree. Both subjects were handcuffed and then placed into officer vehicles. There was a minimum of 3 officers on the scene. The delay is a flagrant disregard for the Charter.
[41] Once detained, “s.10(b) of the Charter guarantees the individual the right to retain and instruct counsel “without delay” and to be informed of that right. Subject to concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter, “without delay” means “immediately”. R. v. Thompson, 2020 ONCA 264, para. 67.
[42] A breach of section10(b) rights is established.
[43] I find that:
(1) The occupants of the subject vehicle were not racially profiled. Officer McKinney was the investigating officer in the shooting. He was aware that two black males were involved and were at large. He knew that they shooters had parked in the same or next parking spot, at about the same time of night, in order to be directly behind the target’s customary parking spot. His initial detention of the suspects was as a result of this concern and not about race. The officers did not draw their weapons until the front passenger ran.
[44] A breach of section 7 rights is not established.
[45] A breach of section 15 rights is not established.
[46] A breach of section 9 rights is not established. T.S. was not arbitrarily detained.
[47] The search of the vehicle was warrantless.
[48] I find that the search of the vehicle was not a search incident to arrest. In R. v. Gonzales, 2017 ONCA 543, para. 99, the court said:
Where the justification for a search incident to arrest is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the arrest has been made: Caslake, [R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51], at para 22. A search incident to arrest may include a search of an automobile of which the arrested person is in possession, but the scope of that search will depend on several factors.
[49] Sgt. Coulter testified that they did not have the grounds for a telewarrant until the gun was located. She testified that the only reason she or McKinney were in the vehicle was to further the investigation re the possibility of the vehicle being stolen and would have been searching only for vehicle documentation.
[50] I reject her evidence, for reasons noted above. The suspects were in custody; handcuffed. The passenger who ran away was off scene. The scene was secured by no less than 3 officers. There were no exigent circumstances to search for a gun, which is not what the officers testified that they were doing in any event. McKinney was not truthful in his evidence about searching the vehicle. I have rejected his evidence for reasons noted above.
[51] A breach of section 8 rights is established.
[52] There is a litany of Charter breaches. The breaches were deliberate and flagrant. The officer’s testimony about their actions was contrived and disbelieved. The officers were not acting in good faith.
[53] The breaches were serious. This weighs in favour of exclusion of the evidence. I adopt the finding in R. v. Adler, 2020 ONCA 246, para. 44 “The Charter breaches set out above are breaches of well-settled Charter principles. They do not involve grey areas in law, nor do they involve new and novel situations. Rather, they demonstrate a reckless disregard by the police of fundamental constitutional rights of which any police officer out to be well aware”.
[54] The impact upon T.S., a young person, is great. Again, I adopt the finding in Adler, supra, para. 45, “This court has emphasized that “[t]he right to counsel is a lifeline for detained persons”. This weighs in favour of exclusion of the evidence.
[55] Considering the third Grant factor, once again, I echo the findings of the court in Adler, supra, paras 47-48: “The third factor recognizes society’s interest in having an adjudication on the merits of any criminal offence but especially serious criminal offences … Nevertheless, society also has a strong interest in ensuring that the integrity of the administration of justice is maintained. That integrity is undermined by police conduct that violates citizens’ constitutional rights. If any person’s rights are violated, no one’s rights are safe. Nor can the ends be allowed to justify the means. In this respect, the Supreme Court of Canada made is clear in Grant that courts have to disassociate themselves from conduct that would bring the administration of justice into disrepute. In my view, this is just such conduct”.
[56] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 para. 110, “[j]ustice is blind in the sense that is pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices”.
[57] I find that for all of the reasons noted above, admitting the illegally obtained evidence in this case would in fact bring the administration of justice into disrepute.
[58] Had the case not be disposed of on the substantive merits, I would have excluded the weapon seized pursuant to the Charter analysis. As such, T.S. would have been acquitted.
[59] This case falls squarely within the analysis conducted in R. v. Tutu, 2021 ONCA 805, released a month before this trial. I adopt the reasoning therein which supports my conclusion.
Released: February 11, 2022.
Signed: Justice Angela L. McLeod