R. v. J.A., 2023 ONCJ 549

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

CITATION: R. v. J.A., 2023 ONCJ 549

DATE: December 7, 2023

COURT FILE NO. 21-Y075

O N T A R I O C O U R T OF J U S T I C E

B E T W E E N:

HIS MAJESTY THE KING

-AND-

J.A.

Before Justice M. G. March

Heard on July 25 and 26, and September 11, 2023

Reasons for Decision on a Voir Dire regarding Alleged Breaches of the Accused’s Rights under Sections 9, 10(a) and 10(b) of the

Canadian Charter of Rights and Freedoms (“the Charter”) and Seeking Exclusion of Evidence under Subsection 24(2) of the Charter

Released on December 7, 2023

Mr. Timothy McCann……………...…….……………………………………..Crown Counsel

Mr. Brendan Coffey….…….……………………………….Counsel for the Accused, Mr. A.

March, M.G., J.:

INTRODUCTION

1. This case is about the proper scope of police authority in executing a Feeney[^1] warrant.

2. At 6 AM on December 2, 2021, six police officers attended at a private residence, 216 Church St., Pembroke, with a warrant for the arrest of one Roseanne Sylvestre (“Sylvestre”) in hand. Sylvestre was, of course, their target.

3. Sylvestre presented herself at her apartment door. Almost immediately, she was arrested. Nevertheless, the officers entered her home and engaged with a young person within the meaning of the Youth Criminal Justice Act (“YCJA”), one J.A.

4. J.A. was either sleeping or pretending to be asleep on a couch to the right of the front door of Sylvestre’s apartment. Police told him to “show his hands”. After a period of seconds, he did so.

5. One of the officers took him by the elbow, stood him up and searched him. A sizable quantity of illegal drugs including fentanyl and cocaine, as well as $3800.00 in cash, were located on J.A.’s person.

6. At the outset of his trial for possessing illegal drugs for the purpose of trafficking, possessing proceeds of crime, breaching his probation, and wilfully obstructing Cst. Lamarche (“Lamarche”) , a peace officer in the execution of his duties, counsel for J.A. brought a Charter application seeking the exclusion of all evidence obtained following the infringement or denial of J.A.’s constitutional rights.

7. Specifically, counsel for J.A. argued that police breached his right:

a) not to be to be arbitrarily detained,

b) to be informed promptly of the reasons for his detention, and

c) to retain and instruct counsel without delay and to be informed of that right

under sections 9, 10(a) and 10(b) of the Charter respectively.

8. Crown Counsel countered that the police had a legitimate reason for detaining J.A. Upon an assessment of the totality of the circumstances prevailing at the time the Feeney warrant was executed at Sylvestre’s residence, the search of J.A. conducted by police was based on reasonable grounds for believing that officer safety would have otherwise been jeopardized. Therefore, no Charter breaches ensued.

9. Alternatively, Crown counsel argued that under section 24(2) of the Charter, the evidence found on the person of J.A. should be admitted, as it is both highly reliable and relevant to the charges he is facing. To exclude the evidence would undermine the truth-seeking function of the justice system from the public’s perspective.

THE RELEVANT EVIDENCE

Det. Cst. Donovan :

10. When Detective Constable Donovan (“Donovan”) testified on July 25, 2023, he had 39 years of experience as a member of the Ontario Provincial Police (“OPP”). Over the course of his career, he estimated that he conducted more than 2000 arrests, of which 100 to 200 were of the Feeney variety.

11. On December 1 and 2, 2021, he was a member of the Repeat Offender Parole Enforcement (“ROPE”) squad of the OPP. Although based in Kingston, he was tasked to assist with the arrest of Sylvestre in Pembroke.

12. He was aware of the existence of the Feeney warrant. He understood that he could enter Sylvestre’s premises, if required, to arrest her.

13. In the company of five other police officers, he went to 216 Church St., Pembroke, and entered the building where her apartment was located. He ascended roughly 20 steps. He was the first officer in a “stack” of six.

14. He knocked on the apartment door. A female voice, later confirmed to be that of Sylvestre, asked, “Who’s there?”

15. Donovan identified himself as a police officer through the door. Seconds later, Sylvestre opened the door. It swung inward to the left as she did so.

16. He told her he had a warrant for her arrest. His colleague, Lamarche, then began dealing with Sylvestre.

17. Donovan could not recall what Sylvestre was wearing when asked specifically if she had shoes and/or a coat on.

18. Donovan then testified that he focused on who else was inside the apartment to see if there were any “found ins”. His attention was drawn to J.A. on a chesterfield roughly 20 feet to Donovan’s right.

19. By this point, Donovan was roughly one foot inside the threshold of the apartment.

20. J.A. was lying down and covered with a blanket. Donovan explained that what was going through his mind was officer safety. It was his number one priority. He had to be aware of any danger posed by occupants of the apartment, who may possess weapons. The officer had been in situations before where a Feeney warrant was being executed by police and the people inside had weapons.

21. Donovan emphasized that police must be alive to the possibility of weapons, explore it and get on top of it right away. Otherwise, officers can get hurt.

22. Donovan told J.A. to show him his hands. He was very direct with J.A., who refused and would not provide his name. The officer repeated his command to J.A. three or four times. He believed that J.A. was pretending to be asleep. J.A. opened his eyes a couple of times. Events were unfolding quickly.

23. The officer then approached J.A. when he would not take his hands out from underneath the blanket.

24. Donovan took him by his elbow and stood him up. The officer stated he searched the couch where J.A. had been lying. He did not find anything. He told J.A. that he was detaining him for investigative purposes.

25. Donovan put J.A.’s hands behind his back. The officer was looking for weapons. He had found in such situations in the past handguns, knives and brass knuckles. He searched in J.A.’s pockets. He found drugs and a pocketknife. He turned those items over to his colleague, Detective Constable Wise (“Wise”).

26. Donovan added that he went into J.A.’s pockets searching for weapons. He first conducted a “pat down” of J.A. He felt something hard inside one of the pockets of the two pairs of pants J.A. was wearing.

27. By this point, Donovan estimated that no more than 2 minutes had elapsed from the time he presented himself at Sylvestre’s apartment door.

28. The officer noted that at 6:08 AM, he turned J.A. over to his colleague, Lamarche.

29. Later, outside the apartment on the street, Donovan conducted a further search of J.A.’s person. Inside one of his right pant pockets he found more cash. J.A. told Donovan as well that he was on probation.

30. Donovan remembered that his fellow officers and he reviewed, prior to attending at Sylvestre’s residence, a “SMEAC” (Situation, Mission, Execution, Administration/Logistics/Command/Signal) report. Under cross-examination, he agreed that the stated “Mission” set out in the report was to “safely and effectively execute the Feeney warrant”.

31. Additionally, under the heading “Threat Assessment”, he conceded that none of the boxes had been checked regarding:

a) Sylvestre’s propensity for violence or her use of firearms and explosives or other weapons,

b) her location as being fortified with counter surveillance, traps or guard dogs,

c) her association with a criminal organization with a propensity towards violence,

d) her association to a terrorist group, paramilitary organization or other extremist group, and

e) a history of mental health issues, suicidal behaviour or known to possess weapons.

32. In another section of the SMEAC report, under the heading “Special Problems”, Donovan was aware that there were no known cameras at Sylvestre’s residence. Police believed that she did have small dogs inside. The report also provided “Found ins may be on the wanted list”.

33. Donovan added that police only expected one person to be inside the residence, namely Sylvestre.

34. Of course, Donovan acknowledged that he reviewed the wording of the Feeney warrant for Sylvestre’s arrest.

35. The officer was clear that he was not designated as the arresting officer for her. He happened to get out of the police cruiser first when they attended at her residence and went to her apartment door.

36. He agreed that if police had just arrested her, it would be the end of their mission. However, to Donovan’s mind, “spotting J.A. raised safety concerns”.

37. When asked if he simply could have walked Sylvestre out once she presented herself at her apartment door, Donovan responded that he did not know if she had footwear on. He did not remember.

38. The officer added that J.A.’s hands were moving underneath the blanket. He conceded that J.A. could simply have been stirring as he was being awoken, but Detective Constable Donovan did not believe that was occurring. Instead, he thought that J.A. was simply pretending to be asleep. At one point he did open his eyes and shut them again while the officer was talking to him.

39. The total time, which elapsed between Donovan spotting J.A. and standing him up, was roughly 30 to 45 seconds.

40. Donovan did not see his colleague, Wise, pull out his taser and aim it at J.A. When asked about Wise’s notations in his duty book describing J.A. as “passed out asleep”, Donovan disagreed. He stated that was not his “conclusion”. He added that J.A. may not have been wide-awake, but he was awake. He was not sleeping. Donovan was quite loud while speaking with him. The officer believed J.A. was feigning being asleep.

41. Donovan acknowledged that he had no prior information on J.A., but he maintained that it was possible J.A. had weapons under the blanket. The officer conceded he had no visible weapons on the outside of his clothing. Nor were any found on the chesterfield itself. The officer opined that it was still possible for J.A. to have access to a weapon even after he was handcuffed.

42. Donovan was quite candid that he stepped inside the apartment to see if there were “found ins”. In his experience, there was a good chance there would be. Sylvestre’s apartment was a “known drug house”. If they were spotted, alarm bells would go off and officer safety concerns would arise.

43. Donovan explained that even if Sylvestre had been removed from the apartment and her front door closed, officer safety would still be at risk. Police “do not give up the real estate”. Officers do not want someone coming out the door behind them.

44. Donovan stated that J.A. was detained once he approached him and put his hands on him. If J.A. had been cooperative from the outset, the officer may not have done anything to him.

45. At no time did Donovan see the red dots of Constable Wise’s taser trained on J.A. Nor was Donovan aware of the filing of any Use of Force Report by police following the incident. Donovan did concede that he could have filed the report if Wise had not done so. The duty would have fallen to him as a senior officer participating in the execution of the Feeney warrant, but he did not notice Wise making use of his taser.

46. Donovan did not consider it Wise’s obligation to tell him if he had drawn his taser. Nevertheless, if the Use of Force Report was supposed to be submitted, Donovan did not know why it was not.

47. Donovan added that once J.A. was handcuffed, it was standard procedure for police to search for weapons for officer safety reasons. He considered J.A. to have been investigatively detained for officer safety reasons. The officer’s suspicion was that he could have had a weapon. If after a ‘pat down’ search the officer was satisfied J.A. did not have a weapon, he would have been released.

48. Donovan agreed that officer safety is not an offence known to law, but if J.A. had a gun on him, he would be committing an offence. The officer would not be able to tell until he searched the person of J.A. Once he saw both of J.A.’s hands and was aware J.A. did not have a weapon in them, Donovan still wished to ensure he did not in fact have one.

49. When Donovan proceeded with the ‘pat down’ search of J.A., he felt something hard. He did not have grounds to believe J.A. had a weapon until he did the search. He was going on his “experience”.

50. When challenged in cross-examination that the ‘pat down’ search of J.A. revealed items too small to be a gun, Donovan responded, “That’s debatable. There are guns out there the size of my middle finger.”

51. The officer ruled out the possibility that J.A. was in possession of a knife. He did not know what the items were that he felt in his pockets. He therefore did a secondary search to see what was there. He understood and appreciated that he could not do an evidence search of J.A. He only discovered that it was a pocketknife after he took it from J.A.’s pocket.

52. Donovan appreciated that J.A., as an investigative detainee, was under no legal obligation to identify himself to the officer.

53. Donovan did nevertheless tell J.A. that he was being detained and that as a police officer, he was going to explore what was on J.A.’s person. The officer explained that he could not recall exactly what his words were to J.A.to communicate his intention; however, he certainly did tell J.A. “You’re detained”. Later, the officer conceded he likely did not tell J.A. the reason for the detention. Donovan acknowledged that he breached J.A.’s Charter rights by not informing him of the reason why.

54. Donovan added that there was “a lot going on in the apartment”. Wise and he walked J.A. over to Lamarche. He explained that Wise and he still had another room within the apartment to clear.

55. Donovan agreed that once he searched J.A. and discovered the contents of his pockets, as a police officer, he had formed reasonable grounds to arrest him for possession for the purpose of trafficking in illegal drugs. He was not exactly sure why he did not thereafter immediately provide J.A. with rights to counsel. Donovan offered that there were still officer safety concerns which had not abated, even after J.A. had been handcuffed.

56. Donovan acknowledged that there were 6 police officers assigned to executing the Feeney warrant for Sylvestre. Wise and he focused on J.A.

57. Donovan asserted that he had authorization to enter Sylvestre’s residence, if she did not open the door and cooperate by submitting to arrest. He agreed that it was possible that he could have done exactly that and left. The reason concerns arose for officer safety was because he had stepped inside the apartment and saw J.A. on the couch.

58. Donovan was not aware of any system in place for the OPP to notify all its members of instances where a Charter breach has been found by a Court to have been committed. For example, there was no way he could check under his name to see if a Court had previously found him to have violated an accused’s Charter right.

59. In terms of police training, Donovan could not state when he last received training or any type of educational refresher on Feeney warrants or investigative detention.

60. Under re-examination, Donovan stated that after handcuffing suspects such as J.A., for officer safety reasons, a ‘pat down’ search would be conducted.

Det. Cst. McDonald:

61. When Detective Constable McDonald (“McDonald”) testified on July 26, 2023, he had been a police officer for 25 years with the Ottawa Police Service. On the days in question, December 1 and 2, 2021, McDonald had been seconded to the ROPE squad of the OPP.

62. On December 2, 2021, he attended at 216 Church St., Pembroke to assist in the execution of a Feeney warrant for the arrest of Sylvestre.

63. Because of the nature of the police investigation targeting drug traffickers, McDonald knew that there may be other persons of interest inside Sylvestre’s residence.

64. McDonald testified that whenever a police officer approaches the door of a private residence, officer safety issues arise. He understood that part of his role on the day in question was to go to Sylvestre’s door with other police officers to arrest her.

65. He was aware that dogs may be inside her residence. He was unsure whether they would be friendly or not.

66. When his fellow officers and he attended at Sylvestre’s apartment door, they announced their arrival. He did not know which officer knocked. She came out to the stairwell that leads up to the apartment and was handed off to their Team Leader, Lamarche.

67. When the officers entered the apartment, he explained that his focus was on Sylvestre’s boyfriend, one Chris Mirault. He noticed that Donovan and Wise occupied themselves with a male seated on a couch.

68. McDonald placed Mirault under investigative detention for officer safety. He did not handcuff him. He did a ‘pat down’ search. He did not remember removing anything from Mirault’s pockets.

69. Under cross-examination, McDonald clarified that Lamarche was responsible for dealing with the arrest, providing rights to counsel and cautioning any targets found inside the apartment.

70. McDonald explained that for ‘found ins’, if he located “anything on them”, he would have arrested them.

71. He acknowledged that the main target was Sylvestre, but he was aware that people with drug backgrounds were coming and going from her apartment at all hours of the day. It was a “high traffic residence”. He would be suspicious of anyone exiting the apartment. He would want to stop and ask them questions.

72. He agreed that police had information suggesting Sylvestre’s home was a “drug house”, not necessarily a “flophouse”. He expected there to be “found ins’ inside her place.

73. He conceded that there was no intelligence or information gathered to suggest that there would be weapons inside her house. Nor did police have any prior knowledge of the existence of any specific danger to be encountered upon execution of the Feeney warrant. However, through experience, McDonald knew that drugs and weapons go hand-in-hand.

74. McDonald added that officer safety is “paramount”. Whenever police attend at a “drug house”, there is the real potential for danger.

75. Nonetheless, the officer appreciated that the Feeney warrant authorized police to enter the residence to effect Sylvestre’s arrest. It was not a search warrant.

76. The “first strategy” police wished to employ on the day in question was to knock on Sylvestre’s apartment door to announce their arrival.

77. He estimated that since becoming a member of the ROPE squad, he has been aiding in the execution of roughly 15 Feeney warrants per year – in total, approximately 60 over the course of his four year secondment to the OPP.

78. Prior thereto, most warrants he would assist in executing were of the general search variety.

79. He agreed that Sylvestre identified herself when she came to the door. Her dogs ran outside when she opened it.

80. He recalled Sylvestre coming down to the main building door, which was locked, to let police into the stairwell. It appeared to him to be an exclusive use stairwell for her apartment. If other officers testified the building contained multiple apartments, he would disagree.

81. To his recollection, Sylvestre was solely in the stairwell with police. She was advised she was about to be placed under arrest, but as a courtesy, the officers let her go back to her apartment door to put her dogs back inside.

82. McDonald did not remember what Sylvestre was wearing when police first made contact with her. He speculated that she probably was not wearing a coat or shoes, but he had no notes to that effect. He offered that if she needed a jacket it would have to be searched as well. It was December.

83. At the threshold of the apartment door, McDonald saw Mirault. Mirault was lying down on a mattress placed on the floor in a bedroom.

84. He agreed that Mirault was probably just sleeping. He was not talking.

85. McDonald went on to state that Mirault was investigatively detained for officer safety reasons. McDonald understood that to investigatively detain someone, a police officer must believe that a criminal offence has been committed. He appreciated that officer safety is not a criminal offence.

86. McDonald then added that Mirault was also being detained as part of a drug investigation. The officer agreed that he had not written anything in his notes regarding a drug investigation being the basis for detaining Mirault.

87. When asked if he would be surprised to know that investigative detention for officer safety does not exist in Canadian criminal law, McDonald testified that he indeed was aware detention could not be used for officer safety, but detention for officer safety was not his only investigative purpose.

88. Specifically, McDonald detained Mirault because he could have been connected to the drug investigation police were carrying out that day.

89. The officer agreed that at the time of detention, he had no grounds to suspect that Mirault was a target. However, he explained that police could not simply vacate the apartment. ‘Founds ins’ are always potential suspects. Mirault could have been on the target list for the Feeney warrants the police were intending to execute on December 2, 2021.

90. ‘Found ins’ also present safety concerns for officers executing Feeney warrants.

91. For McDonald, it boiled down to his belief that police had authority to go into the apartment to determine if there were ‘found ins’, or to check if anyone else was inside.

92. Once McDonald had Mirault detained, the officer could see that Donovan and Wise were dealing with J.A. McDonald noted in his duty book, “Male [J.A.] being difficult with providing his name.”

93. McDonald did not notice whether Donovan or Wise pointed a taser at J.A.

94. McDonald’s understanding of the authority he was granted under the Feeney warrant was to knock and announce police arrival. Police could then go inside the private residence to arrest the person named in the warrant, should he or she not present himself or herself at the door.

95. McDonald agreed that if the target was arrested outside, there was no need to go inside his or her residence.

96. McDonald was not aware of any system in place, maintained by the Ottawa Police Service, to notify of a breach by one of its members of a citizen’s Charter rights. Unless the Crown Attorney advised the members of the Court’s finding, they likely would not know.

97. The last time McDonald received any training on the subjects of rights to counsel, investigative detention and the execution of Feeney warrants, was likely in 2018. He could not recall ever receiving any formal education on Feeney warrants. He did not recall the last time he received any type of refresher on rights to counsel. He estimated that he learned about investigative detention in 2013. He believed that his level of knowledge on those afore-mentioned subjects was nevertheless adequate.

Cst. Lamarche:

98. When he testified on July 26, 2023, Lamarche had been a member of the OPP since 2002. From 2020 onward, he had been a member of the ROPE squad.

99. Between December 1 and 2, 2021, Lamarche attended in Pembroke to assist with a drug investigation dubbed Project Nield. Specifically, over the course of those 2 days, he understood that he would be participating in the execution of Feeney warrants.

100. Lamarche and other officers went to 216 Church St., a residence they understood to be occupied by Sylvestre. He assumed that the public entrance door where she lived was left unlocked when police arrived at her building to arrest her. He was not the first person to arrive at her apartment door. He was further down the “stack” toward the back. He could not remember who was at the front.

101. Six police officers were deployed to effect the arrest, four from the ROPE squad, and two from the Emergency Response Team (“ERT”).

102. He followed his fellow officers up the stairs to Sylvestre’s apartment door. The plan was to knock and announce the arrival of police. They did so. She came to her door. Lamarche was able to identify her from a “mug shot”. He arrested her.

103. Lamarche placed Sylvestre in her apartment at the time of her arrest at 6:06 AM. At 6:07 AM, he read her rights to counsel and cautioned her. Since she was female, he did not search her. He then turned her over to the ERT members.

104. Lamarche made no note of whether Sylvestre needed shoes or a coat. He ventured it was quite possible. Nor did he have notes regarding the presence of animals inside her unit.

105. He could see that J.A. was a ‘found in’. Following a search of J.A. conducted by other members of the police team, Lamarche understood that he was to arrest J.A. too for possession for the purpose of trafficking in a large quantity of illegal drugs. Lamarche was aware that J.A. had a large sum of cash on his person as well.

106. Lamarche added that he remained near the front door to the apartment, while other members of the team went inside to deal with the ‘found ins’.

107. As a general proposition, Lamarche understood that if officers were executing the Feeney warrant and did not need to go inside a residence, they would not do so.

108. Under cross-examination, Lamarche acknowledged that the police team held a briefing session during the evening of December 1, 2021 and again on the morning of December 2, 2021 before going to Sylvestre’s residence. He understood that as the leader, he would be responsible for arresting Sylvestre, providing her with rights to counsel and cautioning her.

109. He explained that the arrest process is very fluid. He heard a female voice inside the apartment when one of the officers knocked at the door. He stated that he was probably fourth in line in the ‘stack’.

110. He emphasized that police had grounds to go inside the apartment on the strength of the Feeney warrant. He clarified that he had no clue whether the female was Sylvestre immediately upon speaking to her, or whether she could be someone else. He offered, “Things were happening within seconds”.

111. He testified that his fellow officers did not know if it was Sylvestre. He was not sure whether they had grounds to go inside the apartment. He only overheard them talking to her.

112. He explained that police had ten warrants to execute on December 2, 2021. By the end of the day, six people had been placed under arrest.

Cst. Wise:

113. When Wise testified on September 11, 2023, he related that on December 2, 2021, he was a member of the OPP ROPE squad on secondment from the Ottawa Police Service since January 2019. He had over 30 years of policing experience both in Canada and the U.S.

114. Along with other team members, Wise was tasked with assisting in the execution of a Feeney warrant. He attended at 216 Church St., Pembroke to arrest their target, Sylvestre.

115. Wise recalled passing through a door at street level and going up a staircase to Sylvestre’s apartment. He was positioned near the back of the line of six officers including him headed toward the door to her apartment.

116. Wise believed that her door was unlocked. He could hear dogs barking inside. Sylvestre greeted the first officer who ascended the stairs. They entered the residence “without issue”.

117. The door to the apartment opened into a living room area. Wise remembered seeing a black man to his right asleep on a couch. The man had one hand under a blanket. He was asked several times by Donovan to remove it, but he refused to do so.

118. Wise explained that Donovan was the “contact/standby officer” whereas he was the “cover officer”.

119. Consequently, Wise removed his taser as a precaution. He noticed that the man’s eyes were flickering as though he were pretending to be sleeping.

120. Wise offered that he has been in similar situations as a police officer. He commented, “Things can go bad terribly fast. Officers can be shot.”

121. Upon activating his taser, Wise explained that two lights appear on the place where the weapon is aimed. Within a short period of time, the man’s hand came out from underneath the blanket. He was then compliant. Wise no longer needed his taser.

122. Donovan then engaged with the black man. He identified himself as J.A. and provided his date of birth. Wise noticed J.A. was wearing a lot of clothes.

123. Wise believed that Lamarche ran him through a police computer database to determine whether J.A. had provided his correct name.

124. Wise reckoned that Donovan still was not sure if J.A. had a weapon on his person. Accordingly, Donovan did a ‘pat down’ search of J.A. Donovan located in J.A.’s pockets a knife, some mesh hose which contained drugs, a clear plastic baggie containing more drugs, as well as some cash.

125. Wise added that the knife was a pocket type, silver in colour. He took those items retrieved from J.A. and placed them in property bags. He then gave them over to the “custody officer”.

126. Under cross-examination, Wise explained that he had to rely on his notes to testify in Court because he was now 60 years of age. He was averaging 300 arrests per year and his squad had “a lot of assignments” on December 2, 2021. It was “a busy day”.

127. He recalled that his team members conducted a briefing at roughly 5:45 AM. They were “free flowing, not tactical”.

128. He could not remember whether Donovan or Lamarche had decided beforehand who would be responsible amongst the officers for providing rights to counsel, cautions and the like to whomever was arrested during the execution of the warrants.

129. Wise reviewed the SMEAC report. In so doing, he realized that Sylvestre was the only named target. The officer agreed that there were no special problems set out in the report relating to violence, nor any information to suggest that weapons may be used by her. Under the heading “Threat Assessment”, none of the boxes had been checked.

130. Nevertheless, Wise explained that police were headed to a known drug house. Experience told him that weapons could be in there.

131. Wise confirmed that the report spoke to “ . . . a high level of traffic at the residence. Found ins may be on the wanted list.”

132. Wise appreciated that there was a difference between a Feeney warrant and a search warrant. The Feeney variety provided police with the right to enter premises to carry out the arrest of the subject. However, he understood it to be an “if needed” option. If the target did not present himself or herself at the door, police had authority to go into the premises to effect the arrest.

133. Wise agreed that his 6 AM duty book entry noted Sylvestre greeted police at the time of their arrival at her residence. She opened the door, but he did not know which officer or officers knocked on her front door. Dogs were barking inside. He did not recall the dogs going down the staircase, nor Sylvestre retrieving them.

134. Soon after, Sylvestre was handed off to the left to Lamarche inside her doorway. She was under arrest. Wise’s recollection of the circumstances surrounding the incident was “foggy” thereafter.

135. When challenged under cross-examination, Wise would not concede that the mission could have come to an end with Sylvestre’s arrest.

136. Wise went on to explain that police had the Feeney warrant to enter. It was a flowing motion for the team upon arrival at Sylvestre’s apartment. He was following the lead officers who may have had a basis for going into the residence. He was focused on what he saw to his right.

137. Wise testified that he was inside Sylvestre’s apartment to make sure it was safe. He did not feel comfortable in the situation in which he found himself.

138. Lamarche was to his left arresting Sylvestre. Wise needed to make sure that it was safe to do so. He added that sometimes others inside are also on their target list.

139. Additionally, there is always the danger of the “unknown”.

140. To Wise’s mind essentially, J.A. to the right of the entrance way to the apartment on the couch, posed a concern for officer safety.

141. Wise added that Donovan has a booming voice, yet J.A. was not responding to his commands. Between one to ten times, Donovan told J.A. to show his hands. J.A. was not complying. The officers were trying to get J.A.’s attention.

142. Wise was asking himself, “Is he stalling?”, or “Is he pointing something under the blanket?”. As a police officer, it made Wise feel uneasy. Consequently, and as noted in his duty book, Wise wrote “ . . . placed red dots on him [J.A.]”.

143. Wise conceded that J.A. may have been just waking up and was confused.

144. Wise agreed that with police entering the apartment under authority of the Feeney warrant, the people inside would not feel free to leave. He considered J.A. to be investigatively detained, although he was not specifically told he was. The officers did not know whether he had weapons, so for officer safety, they needed to see his hands.

145. Wise’s first impression was that J.A. was asleep. His eyes were closed. He had a blanket covering him.

146. Indeed, Wise noted in his duty book “black male on couch-passed out asleep”. Wise testified that he probably should have worded it differently. He ought to have written, “appeared to be asleep”.

147. Wise denied that he was changing his evidence. He was not going to turn his back on J.A.

148. Wise confirmed that he did not file a Use of Force Report. He did not recall telling anyone that such a report was required. He knew those reports were kept for records. He explained that if he had been on an Ottawa Police Service operation, he would have filled one out.

149. Once J.A. removed his hands from underneath the blanket, Wise was feeling better and more secure. Wise watched Donovan conduct a ‘pat down’ search for safety reasons.

150. Wise reckoned that there was also the possibility that J.A. might be on the target list. Police were expecting to locate “found ins”. Such individuals would be asked to identify themselves to make sure they were not part of the ongoing police project. As officers, they want to know who they are dealing with. Police are naturally concerned for their safety.

151. As an example, Wise offered that they may locate someone on a Canada wide warrant for murder in such a situation.

152. Wise added that he was aware persons under investigative detention are not obliged to provide their names to police. However, they asked J.A. for his. He supplied police with a false one.

153. Wise stated that he knew that placing an investigative hold on someone for officer safety is not recognized in Canadian criminal law as a legal basis for detaining the person.

154. He insisted nevertheless that he wanted Donovan and himself to be safe. When it was suggested to Wise that he may have considered the situation in which he found himself to constitute exigent circumstances, he agreed that is perhaps how he felt. Police officers were in a known drug house. They had an arrest warrant. The totality of the circumstances had to be taken into consideration.

155. Wise described his thinking as follows:

a) “J.A. is in the house,”

b) “Who is this guy?,”

c) “Let’s figure it out.”

156. Wise agreed that he could simply have been a friend of Sylvestre.

157. After some exasperation, Wise summarized his understanding of the police reasoning in detaining J.A. was the need to know whether he had a weapon. Wise himself did not tell J.A. why he was being detained. Nor did he give him rights to counsel. Wise’s prevailing fear was only somewhat alleviated when he was able to see J.A.’s hands.

158. Wise, like the other police officers who were asked, was unaware of any formal system for notifying police officers of when a Court would have found them in breach of an accused’s Charter rights.

159. Wise was unsure of when he had his last sessions of police training on the execution of Feeney warrants, on investigative detention or on providing rights to counsel, although he thought they were offered yearly.

160. He surmised that everyone can always use a refresher.

Position of the Applicant

161. Counsel for J.A. argued that his client’s right not to be arbitrarily detained was breached in two ways in that:

a) once Sylvestre presented herself at the door of her apartment, there was no lawful basis for any of the officers to enter her unit and engage J.A., who ought to have been left alone, and

b) the officer’s reliance upon investigative detention for officer safety reasons is ill placed and does not exist in Canadian criminal law.

162. Firstly, the Court heard conflicting evidence about where the police first made contact with Sylvestre. Whether she was arrested at the front door of her apartment, or in the stairwell after retrieving her dogs, is as broad as it is long. Either way, police could have ended their mission. They had their target. A fair and fulsome assessment of the officers’ evidence discloses their underlying intent to enter her apartment to determine whether ‘found ins’ were on their wanted list. In so doing, they exceeded the authority of the Feeney warrant issued to them.

163. It was the officers’ own conduct which gave rise to ‘officer safety’ concerns. J.A. and Mirault could have been left undisturbed and asleep. In essence, the officers’ justification for detaining J.A. was not necessary.

164. Secondly, the officers could not articulate in any manner at all what their reasonable grounds were for believing J.A. had committed an offence. Unless they could, they had no basis for investigatively detaining him.

165. The Court cannot recognize or endorse omnipresent ‘officer safety’ concerns when executing Feeney warrants as a licence to engage and thereby intrude upon the most basic of constitutional rights for ‘found ins’.

166. None of the officers could satisfactorily explain how a sleeping, or even “fake sleeping”, occupant in the residence of the target of a Feeney warrant posed a danger to ‘officer safety’.

167. Even if the Court were to accept that the officers’ need to see J.A.’s hands to know he was unarmed, the minute that they did see them, their concerns for the safety ought to have abated. They had no right to stand him up from the couch, to handcuff him, and to conduct a ‘pat down’ search of his person for weapons.

168. As directed by the decision of the Supreme Court of Canada in Mann,[^2] Detective Constable Donovan was not permitted to fish through J.A.’s pockets. The officer did not objectively feel anything which could be a weapon. There was nothing in the shape of a gun, knife or other form of weapon which made Donovan reasonably suspect that J.A. was armed.

169. Further, Donovan had no reason for delaying the provision of rights to counsel to J.A. He admitted as much under cross-examination.

170. The Court ought to distance itself from the type of police conduct exhibited by the members of the OPP’s ROPE squad in vastly exceeding the authority they were granted under the Feeney warrant to enter Sylvestre’s home. A reasonable minded member of the public would be shocked at the sheer level of incompetence demonstrated by the officers.

171. Essentially, the lack of appreciation and respect shown by members of the OPP’s ROPE squad for the constitutional rights of ‘found ins’ was astounding. The Court cannot condone their ignorance of the limits placed on police powers when executing Feeney warrants, which they are all too commonly entrusted to do, for police forces across the province of Ontario.

172. The absence of any mechanism for informing the police officers about Charter breaches they have committed cries out for an exclusion of their evidence under section 24(2) of the Charter. Systemically, police need to create a basis for informing officers about findings of Charter violations, and presumably, how to avoid them.

Position of the Respondent

173. The Federal Crown argued that the police officer’s testimony about investigative detention did not fit the description of what Courts and lawyers mean by the term.

174. The Federal Crown conceded that investigative detention, as a legal concept developed and interpreted through the case law, requires a police officer to believe a crime has been committed before the police offer can restrict the freedom of a suspect.

175. In this case, police went to a known drug house looking for the subject of a Feeney warrant, Sylvestre. J.A. was seen inside her residence a short distance away from its front door. He was not listening to police commands borne out of legitimate officer safety concerns.

176. It was not unreasonable in the circumstances of Sylvestre’s arrest to ensure J.A. was unarmed given he was only 20 feet away. The ‘pat down’ search was conducted by Donovan in good faith. He felt a hard item. This fact necessitated going into J.A.’s pocket to ensure it was not a weapon with which he could harm the officers.

177. Small items the size of a man’s middle finger can be a gun according to Donovan.

178. Even if the Court were to find J.A.’s Charter rights were breached, the Crown and the public should not be deprived of real evidence, namely the sizable quantity of drugs and cash, found on the person of J.A., when the Court conducts its analysis under s. 24(2) of the Charter.

179. Too much harm has already been done to Canadian society through the illegal trafficking of fentanyl in particular. The breaches, should the Court find any, were not so serious as to prevent an adjudication of the case on its merits.

180. Furthermore, police had a legitimate interest in learning more about the people to be left in Sylvestre’s residence following her arrest. Who were they? What right, if any, did they have to be there? Who else may be inside?

181. Sylvestre’s arrest was playing out quickly in her home occupied by others, who she may or may not want to have left to their own designs in her absence. Her state of dress may have delayed the officers from whisking her away in police custody. She may have needed shoes and a winter coat on an early December day in Pembroke, Ontario.

182. Human decency would also require the police to ensure her dogs would be cared for.

Issues

183. The hearing into the alleged violation of J.A.’s Charter rights raises the following issues:

a) Was his s. 9 Charter right not to be arbitrarily detained violated?

b) Was his s. 10(a) Charter right to be informed promptly of the reasons for his detention violated?

c) Was his s. 10(b) Charter right to retain and instruct counsel without delay, and to be informed of that right, violated?

d) If so, how serious were the violations?

e) What impact did the violations have on the Charter-protected interests of J.A.?

f) What is society’s interest in an adjudication on the merits of the case?

g) Balancing the factors in a) through d) above, should the impugned evidence be excluded pursuant to section 24(2) of the Charter?

The Law

Arbitrary Detention:

184. In Mann, Iacobucci J., speaking for the majority of the Supreme Court of Canada (“SCC”), reminded us:

15 As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy interests with a societal interest in effective policing. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law. The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.

16 Nowhere do these interests collide more frequently than in the area of criminal investigation. Charter rights do not exist in a vacuum; they are animated at virtually every stage of police action. Given their mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing. Despite there being no formal consensus about the existence of a police power to detain for investigative purposes, several commentators note its long-standing use in Canadian policing practice.

185. Iacobucci J. went on to clarify:

34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002), 2 C.R. (6th) 49, at p. 63. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

186. Just last week, the SCC released its decision in R. v. Zacharias, 2023 SCC 30. No one ever said police work is easy. Rowe and O’Bonsawin JJ. Commented on police obligations in a dynamic detention/arrest situation as follows:

[42] Both the Attorney General of Alberta in its intervener submissions and the Alberta Court of Appeal in Love emphasize that unlike when drafting an information to obtain a search warrant, warrantless arrests are often carried out in dynamic situations (I.F., at para. 37; Love, at paras. 91-92). This is true. Nonetheless, the purpose of preventing police from being able to rely on unlawful conduct is not to prevent them from acting in the dynamics of the moment. The same constraint that should guide police in their interactions with individuals continues to apply: such actions must comply with the Charter. Thus, police are not required to take an additional step “to inquire into the constitutionality of prior investigative steps before acting on the information they yielded” (Love, at para. 92; see also I.F., Attorney General of Ontario, at para. 18, arguing this suggests police should be “required to stop their investigation”). Rather, police have been and continue to be required to consider whether they are acting within constitutional limits when they act. In short, the police need to respond to exigencies, but in doing so must be mindful of the authority that the law confers and also the constraints that the law imposes.

The Right to be Informed Promptly of the Reasons for Arrest:

187. In R. v. Gonzales (2017), 2017 ONCA 543, 354 C.C.C. (3d) 572, Watt J.A. for a unanimous, three member panel of the Court of Appeal for Ontario explained:

[120] A few brief points about the operation of s. 10(a) inform my determination of this ground of appeal.

[121] First, the substance of the right.

[122] Section 10(a) includes both temporal and substantive aspects. The beneficiaries are those who are arrested or detained. The phrase "on arrest or detention" serves not only to define the class of beneficiaries -- those arrested or detained -- but also to assist, together with the adverb "promptly", in marking out when the right accrues. The provision describes the substance of the information to be conveyed -- "the reasons" for the arrest or detention. At a minimum, s. 10(a) requires that individuals who are arrested or detained for investigative purposes be advised, in clear and simple language, of the reasons for their detention: Mann, at para. 21.

[123] A functional equivalent of the term "promptly" in s. 10(a) is the phrase "without delay", which appears in s. 10(b). There, the phrase is synonymous with "immediately", but does permit delay on the basis of concerns for officer or public safety: R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, at paras. 2 and 41.

[124] The right to prompt advice of the reasons for detention is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it. But there is another aspect of the right guaranteed by s. 10(a). And that is its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. Meaningful exercise of the right to counsel can only occur when a detainee knows the extent of his or her [page249] jeopardy: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, at pp. 886-87 S.C.R.

[125] To determine whether a breach of s. 10(a) has occurred, substance controls, not form. It is the substance of what an accused can reasonably be supposed to have understood, not the formalism of the precise words used that must govern. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or in the alternative, to undermine the right to counsel under s. 10(b): Evans, at p. 888 S.C.R.

The Right to Retain and Instruct Counsel without Delay and to be Informed of that Right:

188. As explained by then McLachlin C.J. and Charron J. in R. v. Suberu, a purposive interpretation of the s. 10(b) Charter right leaves little room for delay in the provision of rights to counsel to an individual who is detained and arrested by police:

[41] A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately”. If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

[42] To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill‑defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill‑defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

189. Only in certain circumstances such as where officer or public safety is at risk can police delay informing detainees or arrestees with their rights to counsel.

190. I will, of course, take guidance from the authorities set out above and apply the governing principles in analyzing the issues raised during the Charter voir dire.

Analysis

Was J.A.’s [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) right not to be arbitrarily detained violated?

191. In my view, Donovan and Wise arbitrarily detained J.A. Their fellow officer, McDonald, places Sylvestre outside her apartment. The officers had their subject at the front door and in the stairwell of the building in which her apartment was located. They could have effected her arrest then and there. As a courtesy, the police team allowed her to return her dogs to her unit.

192. I have no basis for rejection of McDonald’s evidence. It is probably true.

193. What is clear from my assessment of the totality of the evidence is that the police team intended to enter Sylvestre’s apartment no matter what. Their objective was to check for ‘found ins’. The members of the team assigned to arrest Sylvestre had other targets that day. If one of the occupants happen to be on their wanted list as set out in the SMEAC report, the officers could have proverbially killed two birds with one stone.

194. Furthermore, after the police officers had Sylvestre under arrest even on Donovan’s and Wise’s version of events, the police mission was at an end. I find that J.A. was sleeping. Wise’s duty book note accurately recorded what police saw at the threshold of Sylvestre’s apartment. J.A. was passed out asleep. Police had no legal authority to enter and impinge upon the sanctity of her home. They had their target.

195. It was the commotion police caused that awakened J.A. and Mirault. Donovan, Wise and McDonald all wanted to determine who else was inside in case they happened upon another target police were looking for that day as part of the takedown component of Project Nield.

196. The officers exceeded their authority under the Feeney warrant by entering Sylvestre’s home to ascertain the identity of the ‘found ins’. As plainly stated in the SMEAC report, “found ins may be on the wanted list”. As logical and practical as it may have been to see if there were such individuals inside Sylvestre’s apartment shortly after 6 AM on December 2, 2021, police had no lawful basis for setting foot inside.

197. Police resort to officer safety cannot in each and every instance a Feeney warrant is executed become a license to trespass in a private residence.

Was J.A.’s [s. 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) right to be informed promptly of the reasons for his detention violated?

198. Equally, I find that Donovan breached J.A.’s s. 10(a) Charter right as well. At no point did the officer inform J.A. why he was being detained.

199. I repeat that the police had their target. Sylvestre was in their custody. The Feeney warrant had been successfully executed when she came to her door. The mission ought to have been over, once the police acceded to her request to return her dogs to the apartment.

200. Instead, police wanted to look around inside to see who else might be there. J.A. was one such individual. The police had no right to disturb him from his slumber. They ought to have left him alone.

201. Experience taught Donovan and Wise to act on a hunch that a young black male in a “known drug house” may have drugs on him. I find that Donovan had every intention of fishing in J.A.’s pockets. The volatile situation he created by entering the apartment and demanding to see J.A.’s hands was as much borne out of his desire to see what J.A. had on him as it was out of concern for officer safety.

202. The ‘pat down’ search of J.A. should have alleviated any concern Donovan had for himself or his fellow officers. Nothing Donovan felt ought to have led him to believe that J.A. had a gun, a knife or any other form of weapon on his person.

203. Nothing resembling a gun was detected as a result of the ‘pat down’ performed by Donovan. That is the type of lethal weapon which a police officer standing in Donovan’s shoes would be legitimately concerned about.

204. Furthermore, I heard no evidence to suggest that the pocketknife was open.

Was J.A.’s right to retain and instruct counsel without delay, and to be informed of that right, violated?

205. Donovan did not explain why he did not provide rights to counsel immediately as he was required to do once he found what he believed to be illegal drugs on J.A.’s person. He was candid and I commend him for admitting his error. There was no reason for him not to have informed J.A. of his right to retain and instruct counsel without delay, once he found the drugs.

206. However, as I will explain later, it was the most minor of the Charter breaches committed by police in executing the Feeney warrant at Sylvestre’s apartment.

How serious were the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) violations?

207. In my view, the Charter violations in arbitrarily detaining J.A., and not informing him of the reasons for his detention, were serious. The officers wilfully and flagrantly violated his right to be left alone. They had no reason to suspect he was committing an offence known to law. He was asleep on a couch in Sylvestre’s living room. There was no evidence to suggest he was not a legitimate guest in her home. Police thus infringed his s. 9 Charter right.

208. They did not tell him why he was being detained because in law, they could not. They had no legal basis for engaging with him whatsoever. Accordingly, they breached his s. 10(a) Charter right.

209. Nor did Donovan immediately inform J.A. of his right to retain and instruct counsel. This was a very minor Charter violation. Within minutes, if not seconds, J.A. was turned over to Lamarche, who promptly advised him why he was being arrested.

210. In Zacharias, Cote J., on a five member panel of the SCC, agreed with the dissenting justices, Martin and Kasirer JJ., on how to assess Charter breaches. Cote J. wrote:

[78] First, a Charter breach that leads to incriminating evidence being uncovered will inevitably result in an arrest or other investigative steps by the police. Absent independent or additional police misconduct, this Court has never treated such arrests or investigative steps as separate Charter breaches in its s. 24(2) analysis.

211. Martin and Kasirer JJ. clarified the proper approach to be taken to the assessment of Charter breaches as follows:

[114] Here, the Court must identify the legal principles that govern how “all the circumstances” factor into the analysis when “consequential”, “linked” or “cascading” breaches of the Charter are at issue, that is to say breaches of the Charter that flow from an initial breach of an accused’s Charter rights by the state. We agree with our colleagues that the presence of additional, consequential breaches will “necessarily” result in more significant impacts on the Charter-protected interests of an accused and are “therefore relevant to the analysis of the second Grant factor” (para. 56). Thus, all such breaches must be given weight under the second line of inquiry mandated by Grant, which assesses the impact of the state misconduct on the accused.

[115] However, we respectfully reject the view that consequential breaches of constitutional rights can be characterized as unlikely to significantly affect the overall seriousness of the state misconduct simply because they are “expected” to occur (Rowe and O’Bonsawin JJ.’s reasons, at para. 59). We disagree that under the settled Grant framework, the “focal point” for evaluating seriousness is the initial breach (para. 68). Further, we are unable to accept that “subsequent state conduct is unlikely to meaningfully increase the seriousness of the Charter-infringing state conduct” merely because of the connection of that conduct to earlier misconduct and the police’s honest belief that they are acting lawfully (para. 53). To the contrary, s. 24(2) and the Grant analysis mandate assessing the cumulative, and potentially compounding, seriousness of all of the conduct related to each of the violations at issue, whether or not they are consequential or cascade from an initial breach, and whether or not the police had such an honest belief. Two principles governing the assessment of the seriousness of Charter-infringing state conduct lead to this view: (1) seriousness is focused on the rule of law; and (2) the measure of seriousness is cumulative, necessarily taking into account all circumstances and all of the state’s misconduct.

212. Later, they went on to explain:

[119] As this Court has repeatedly affirmed, “in a society founded on the rule of law, it is important that there always be a legal basis for the actions taken by police officers” (Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 38, citing Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2, at pp. 28‑29; R. v. Sharma, 1993 165 (SCC), [1993] 1 S.C.R. 650, at pp. 672‑73). This point bears repeating: there is no instance in which a breach of the rights guaranteed by the Charter does not undermine the rule of law.

[120] The circumstances here provide a case in point. While the conduct related to the initial unreasonable search may not have been in itself grave, the seriousness of the subsequent state misconduct — however “consequential” it may have been — was both relevant and significant. Police acted without lawful authority in subjecting the accused to further searches, and by detaining him for several hours, part of which was in handcuffs; the fact that these breaches of s. 8 and s. 9 of the Charter were consequential or cascading from the initial breach cannot mean that they should be discounted under the first branch of Grant. A breach is a breach. The consequential conduct was state conduct that violated the constitutional right to be free of arbitrary detention. It was conduct that undermined the rule of law.

[121] Of course, not all conduct that violates the Charter deviates from the rule of law to the same extent. As this Court recognized in Grant, violations may undermine public confidence in the rule of law to a greater or lesser degree, depending on the gravity of the offending conduct that is at issue (paras. 73-74). There is a sliding scale or spectrum. We will not exhaustively review all of the considerations that may validly inform the assessment of the gravity of such conduct. Instead, we will focus on certain factors that require discussion in the circumstances of this case.

[122] One relevant factor is the extent to which the conduct reflects a deliberate disregard for Charter standards. It is for this reason that the Court has recognized a scale from “inadvertent” violations to those that display a “wilful or reckless disregard of Charter rights” (Grant, at para. 74). This scale is significant because it informs how gravely the rule of law is undermined. For instance, the rule of law is necessarily undermined, and the seriousness of the state misconduct is affected, when agents of the state wilfully disregard the fundamental constitutional constraints on their actions. By contrast, the Court has consistently recognized that state conduct at the less serious end of this scale will generally weigh less heavily in favour of the view that admitting the evidence would undermine the rule of law (see, e.g., Grant, at para. 74; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; Le, at para. 143). But even inadvertent breaches may still weigh in favour of exclusion (see, e.g., Tim, at paras. 84-89). As appellate jurisprudence has recognized, a deliberate breach is not the only form of serious breach (see, e.g., Hamel v. R., 2021 QCCA 801, 72 C.R. (7th) 132, at para. 131, per Cournoyer J.A.). This is because a breach based on an honest and unintentional mistake is nonetheless a state action taken in the absence of legal authority.

[123] The extent to which state actors deliberately violate Charter standards is not the only consideration that is relevant to assessing how gravely the rule of law has been undermined. For instance, as our colleagues rightly recognize, in Grant this Court noted that “evidence that the Charter-infringing conduct was part of a pattern of abuse” will increase the exclusionary weight that flows from the first line of inquiry (para. 75). This consideration reflects the reality that “for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge” (ibid.). The recognition that a pattern may increase the seriousness of the state conduct is significant. It implies that police officers may believe they are proceeding lawfully, yet there may still be a serious departure from the requirements of the rule of law. Thus, it is an error to proceed as if the seriousness inquiry may only consider police officers’ states of mind. This is because the focus of the seriousness inquiry, like the s. 24(2) analysis as a whole, is “societal” rather than aimed at determining the blameworthiness of the particular police officers whose actions resulted in a Charter violation (para. 70).

[124] The societal focus of s. 24(2) also implies that the assessment of the seriousness of state misconduct that undermines the rule of law must take account of the values that underlie the Charter rights that were violated. As Dickson C.J. wrote in another context, “[t]he underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter ” (R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, at p. 136). These values and principles therefore inform the assessment of how seriously Charter-infringing state conduct undermines the rule of law. They inform the key consideration of the nature and character of the police conduct that is at issue, viewed from a societal perspective. While Charter rights should never be trivialized, some violations may be more “minor” than others when these underlying values are accounted for (Grant, at para. 74). By contrast, other violations may show “a major departure from Charter standards” in light of the values the relevant rights were meant to protect (Tim, at para. 82). Thus, the Court’s reference in Grant to whether a breach was “minor” referred to a breach at the low end of the sliding scale or spectrum for the assessment of the nature and character of police conduct, viewed in light of the values the Charter protects.

[125] The full range of relevant values entrenched in the Charter should be considered. As this Court has said, the values reflected in the Charter “are not insular and discrete” (R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 326, per La Forest J.). Thus, where multiple rights are violated, the court must consider how the state conduct that is at issue implicates each underlying value, and how those values interact in the circumstances of the case. For instance, there is every reason to believe that state misconduct that undermines both the privacy interests protected by s. 8 and the liberty interests protected by s. 9 will be more serious than misconduct implicating only one of these underlying values, because the social interests in protecting privacy and liberty are intertwined and mutually reinforcing. But they are distinct breaches, whether or not one is consequential on the other.

[126] When this Court has discussed these considerations and others that inform the seriousness inquiry, it has properly refrained from suggesting that some breaches are sufficiently unremarkable, normal or routine that they will not significantly affect the seriousness of the state conduct. We would decline the invitation from the respondent and intervener Crowns to do so in this case. As this Court unanimously held in R. v. Reilly, 2021 SCC 38, all Charter-infringing state conduct must be factored into the analysis. In that case, Moldaver J. wrote: “Regardless of whether the [subsequent] breach was caused by [earlier] breaches, and regardless of the fact that it was considered necessary . . ., it was nonetheless a breach of Mr. Reilly’s s. 8 Charter‑protected rights and must be considered under the first Grant factor. Trial judges cannot choose which relevant Charter‑infringing state conduct to consider” (para. 3).

[127] The seriousness of conduct related to all breaches thus must be considered even if some of them may be said to have been “caused” by earlier Charter violations. It is irrelevant to the principle stated in Reilly that the Crown had conceded the subsequent breaches in that case.

213. In my humble view, the cumulative effect of the Charter breaches committed by state actors such as police must be regarded in their totality, not sequentially, not piecemeal, rather always as a whole.

What impact did the violations have on the Charter-protected interests of J.A.?

214. The impact the violations had on J.A.’s Charter-protected interests were profound. He had the red target dots of a taser aimed at his body when he ought to have been left alone.

215. He awakened to the command of “Show me your hands!”. He was taken by the elbow, stood up, handcuffed, patted down and ultimately his pockets rummaged through by Donovan to discover their contents.

216. There was no objective reason to suspect J.A. had committed any crime. Clearly, police were acting on pure speculation that because he was a black man in the “known drug house”, at a minimum, he must be a drug user.

217. All the while, he ought to have been left alone.

What is society’s interest in an adjudication on the merits of the case?

218. Society has a clear interest in having this case decided on its merits. To exclude the evidence of what was found in J.A.’s pockets will gut the prosecution. The Crown will be deprived of the benefit of leading real evidence that J.A. was trafficking in fentanyl, an extremely lethal drug.

219. As stated by Rowe and O’Bonsawin JJ. in Zacharias in addressing the third prong of the Grant[^3] test, and with which Cote J. agreed in the result to allow the evidence in as being “ . . . both highly reliable and integral to the Crown’s case” (see para. 104):

[58] The third factor looks to society’s interest more broadly, focusing on the truth-seeking function of a criminal trial (Grant 2009, at para. 79). The court considers factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence (R. v. McColman, 2023 SCC 8, at para. 70). In our view, and in the absence of arguments on this point, consideration of conduct like the additional breaches in this case would not change the analysis for the third Grant factor.

220. Ultimately, Rowe and O’Bonsawin ruled:

[74] The evidence in this case — the drugs, drug paraphernalia, and cash — was real, reliable, and crucial to the Crown’s case. Given the large quantity of cannabis (over 100 pounds), this is a serious offence. Both of these elements mean that there is a strong societal interest in adjudication of the case on its merits. This remains so even when the additional breaches are factored in. This third Grant factor, therefore, strongly favours admission of the evidence.

Balancing the Above Factors for Consideration, Should the Impugned Evidence be Excluded pursuant to [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

221. Considering the effect of the breaches perpetrated by police on J.A.’s ss. 9, 10(a) and 10(b) Charter rights and its impact upon the long-term repute of the administration of justice, I conclude that admitting the evidence of what was found in J.A.’s pockets must be excluded. To do otherwise would effectively condone abuse of police authority granted in limited circumstances to enter a private residence to effect an arrest.

222. As pointed out by the Court of Appeal for Ontario in R. v. McGuffie (2016) 2016 ONCA 365, 336 C.C.C. (3d) 486 (Ont. C.A.), in applying the Grant test, the outcome on the third branch cannot trump the Court’s findings favouring exclusion of evidence on the first two lines of inquiry. Doherty J.A., speaking for a unanimous panel, wrote:

[62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third [page660] inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

[63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see, e.g., Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones (2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see, e.g., R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at paras. 81-89; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see, e.g., Grant, at para. 140.

223. Further, Doherty J.A. stated:

[83] In summary, the police conduct demonstrates a blatant disregard for the appellant's constitutional rights. That conduct all but negated several of the appellant's Charter-protected interests. The court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. In doing so, the court acquits a person who is clearly guilty of serious criminal offences. In my view, the long-term interests of the due administration of justice require the exclusion of the evidence. This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.

224. I am mindful of the result in Zacharias. At times, the pull of the third prong of the Grant test may be sufficient to “outweigh” the opposing forces of the first and second prongs. (see para. 76 of Zacharias.)

225. In this case however, I find I am compelled to do as Doherty J.A. did in McGuffie. To permit the Crown to avail itself of the evidence found by police officers forming the team assigned to carrying out the execution of Sylvestre’s and others Feeney warrants during the takedown phase of Project Neild would send the wrong message that impermissible shortcuts can be taken. Police cannot enter a target’s home, confront ‘founds ins’, ascertain their identities, search them and potentially arrest them in clear violation of their constitutional rights not to be arbitrarily detained.

226. The public’s confidence in the justice system over the long term would be completely undermined if the police conduct in this case were condoned, so as to effectively allow the ends to justify the means.

227. Recently, in R. v. J.U., 2023 ONCJ 441, I had this to say about the attitude some police officers appear to display toward the Charter. I offered:

228. While I do not believe Constables Redden and O’Connor wilfully or flagrantly breached J.U.’s section 8 Charter rights, their conduct showed an aloofness which police ought not to demonstrate toward Charter values. The Charter is not a list of suggestions to peace officers in this country. It is the supreme law of Canada. It must be acknowledged, embraced, and respected by every one of our citizens including police.

229. To the contrary, I fear that too often, many within the rank and file of the ‘thin blue line’ see the Charter as a thorn in their side. They would rather breach Charter rights, and risk such evidence being excluded by a Court of law than adhere up front to the dictates of the Charter. Indeed, I know of no formal system for informing and educating police on instances where the Courts have found their actions to constitute a breach of Charter rights. This widespread, institutional inattention by police to what Courts decide and offer by way of direction needs to change – sooner rather than later.

230. Those comments apply equally in this case.

Conclusion

229. For the reason set out above, I must grant the Charter application brought on behalf of J.A. I will exclude from evidence his statements to police at the time of his unlawful detention and arrest, as well as the contents of his pockets as discovered in consequence of the Charter breaches committed by Donovan.

DATED: December 7, 2023

________________________________ March, M.G., J.

Endnotes

[^1]: R. v. Feeney 1997 342 (SCC), 1997 2 S.C.R. 13

[^2]: R. v. Mann 2004 [3] S.C.R. 59

[^3]: R. v. Grant [2009] 2 S.C.R.