COURT FILE NO.: CR-11-024

DATE: 2012-01-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID FRANK MUNRO & MATTHEW JAMES MUNRO

Catherine Hoffman, for the Crown

Peter Thorning, counsel for David Munro

David North, counsel for Matthew Munro

HEARD: September 20 & 21, 2011

REASONS FOR JUDGMENT

gray j.

[1] Matthew and David Munro are charged with unlawful possession of controlled substances, methamphetamine and cocaine, for the purpose of trafficking. They have elected trial by judge alone. In a pre-trial application, they contend that their rights under sections 8, 9 and 10 of the Canadian Charter of Rights and Freedoms have been violated, and that evidence seized upon their arrest, and utterances made, should be excluded from evidence.

Background

[2] On April 15, 2010, Officer J. Kenzaki, of the Halton Regional Police, was patrolling in a vehicle in Milton sometime after midnight. He testified that at 12:23 a.m., he was in the parking lot at a large mall at 1160 Steeles Avenue. There are a number of very large stores in the mall, including Wal-Mart and Canadian Tire, and, among other things, a branch of the Royal Bank. At that time of night, there were very few cars in the parking lot, as none of the stores was open. Officer Kenzaki was parked in front of the Canadian Tire store.

[3] Shortly after parking there, he observed a black Honda Accord drive quickly through the Wal-Mart parking lot, and then suddenly conduct a U-turn, and then went back towards the Royal Bank parking lot. Once it was in front of the bank, it pulled up beside a red Ford Escape. There were no other vehicles in the parking lot.

[4] Officer Kenzaki drove towards the two vehicles and pulled in behind them. He noticed that they were both facing in the same direction, and were about a metre or so apart. He noticed that the passenger side window of the Honda and the driver’s side window of the Ford Escape were open. He approached the red Ford Escape first, and spoke to the driver, who was Matthew Munro.

[5] Officer Kenzaki testified that Matthew Munro stated that they were in the area and that they had run into some friends, and he gestured towards the vehicle beside him, namely, the black Honda Accord.

[6] Officer Kenzaki asked the occupants of the Ford for identification, and both Matthew Munro and his brother David Munro voluntarily provided their identification. David Munro was sitting in the passenger seat.

[7] Matthew Munro stated that David was his twin brother, and Officer Kenzaki confirmed with both of them that they knew the people in the black Honda Accord.

[8] Officer Kenzaki then approached the black Honda Accord. He asked the driver what they were doing there, and the driver, Suzanne Veloso, said she was going to the bank. Officer Kenzaki asked if they knew the people in the vehicle next to them, pointing to the Munro brothers, and at that point the passenger in the Honda jumped in and said, “no, we don’t know them”. The name of the passenger was Anton Radisic.

[9] Officer Kenzaki testified that Mr. Radisic was rather jumpy and agitated. He testified that Ms. Veloso, the driver, also confirmed that she did not know the people in the other vehicle. Officer Kenzaki asked Ms. Veloso for her driver’s licence, and she complied. He then asked the passenger for his name, and he became defensive and shouted “why, why, what do you need my name for?”

[10] Officer Kenzaki testified that he walked over to the passenger side of the Honda and told the passenger that the area was known for having drug transactions, and the passenger said “drugs, this is crazy” and then did up his window.

[11] Officer Kenzaki testified that at that point he requested another police unit to attend, because he felt things were going to escalate at that point. He said he probably used the radio attached to his uniform. He said it was an officer safety issue.

[12] After the call was made for another unit, P.C. Parent arrived on scene shortly afterwards. Once P.C. Parent had arrived, Officer Kenzaki went to speak to the passenger in the Honda, Mr. Radisic, and he shone his flashlight towards the passenger seat and observed what looked like a plastic bag shoved under Mr. Radisic’s right buttock. He questioned Mr. Radisic about what was in the bag, and at that time Mr. Radisic took the bag out and brought it to his mouth and appeared as though he was ripping it open, and then he brought the bag to the floor and emptied it out. Officer Kenzaki observed, at that point, the contents of the bag, which appeared to be crack cocaine.

[13] Officer Kenzaki testified that at some point he asked the Munros, who were in the Ford Escape, to pull a couple of parking spots ahead. He testified that that was another officer safety issue. He did not want to have his back to anybody. He testified that the Munros did not object, and they pulled ahead.

[14] Officer Kenzaki testified that he advised Mr. Radisic that he was under arrest and requested that he exit the vehicle. Mr. Radisic refused, and Officer Kenzaki took out his baton. Mr. Radisic then exited the car, and Officer Kenzaki arrested him at 12:38 a.m. Officer Kenzaki handcuffed him, searched him, and placed him in the back of Officer Kenzaki’s police car.

[15] Officer Kenzaki testified that he then returned to the Honda, and observed more crack cocaine on the floor, and noticed a plastic bag containing a large amount of cash. He estimated it at $7,700. He also noticed a cell phone in the centre console of the Honda, and when he picked it up it was open to a message saying “meet at RBC instead”.

[16] Officer Kenzaki testified that at that point he approached the Ford Escape, and on approaching the driver’s side, he could smell an odour of fresh marijuana. He testified that at that time he formed the opinion that the Munro brothers were there to perform a drug transaction with the other parties. He advised them that they were both under arrest for possession of a controlled substance for the purpose of trafficking, at approximately 12:41 a.m.

[17] Officer Kenzaki testified that after the arrest of the Munro brothers, he returned to his vehicle where Mr. Radisic was in the back of the car, and he read his rights to counsel and cautioned him. He then returned to the Honda and further searched it. At approximately 12:49 a.m., he located four cell phones from the centre console. There was a Pepsi can which was used for what Officer Kenzaki thought was crack, from the passenger side door; he found .3 grams of crack cocaine from the passenger side floor; and he found a digital scale from the centre console. He also found two crack cocaine rocks from the glove box, and the previously-mentioned cash.

[18] After the arrest, Officer Kenzaki called for more officers to come to the scene. The officers who attended were Officer Deboer, Officer Strauch, and Officer Filippetto.

[19] Officer Kenzaki testified that at the station, he facilitated a communication between the Munro brothers and a lawyer, J.J. Burke.

[20] At 6:10 a.m., Officer Kenzaki turned the exhibits he had collected over to Detective Constable Cowley.

[21] Officer Kenzaki testified that on two prior occasions, he had been involved in drug seizures at this particular mall.

[22] On the first occasion, which occurred in October, 2009, Officer Kenzaki and another officer had received a call at approximately 5:25 p.m. that there was a suspicious auto in the area. Upon approaching the car, some words were exchanged and a male person started to run through the parking lot, and the officers pursued him on foot. Upon arrest, and a search of the male person’s vehicle, there was found a large quantity of marijuana and he was subsequently charged with possession of marijuana for the purpose of trafficking. The total quantity was 461.5 grams.

[23] The second incident occurred in April, 2010, during the day. Officer Kenzaki saw a male person get out of his vehicle and then get into another vehicle and pull into the Wal-Mart parking lot. Officer Kenzaki approached the driver who said he was meeting with a friend, and when he started to pull some documents out of his pocket, a small quantity of marijuana fell out. Upon being searched, Officer Kenzaki found another bag in his front pocket. Officer Kenzaki did not lay any charges due to the low quantity of drugs.

[24] At some later point, Officer Kenzaki sought and obtained a search warrant for certain cell phones. Six cell phones had been found in the Ford Escape. Based on his experience, Officer Kenzaki was aware that cell phones were often used by drug traffickers to facilitate drug transactions. Officer Kenzaki prepared an Information To Obtain (ITO), which was presented to a justice of the peace, and a search warrant was issued. In the result, a search was made of the contents of the cell phones.

[25] After the arrest of the Munros, the vehicle was searched and a number of items were found. Included was 109 grams of methamphetamine and 27.8 grams of cocaine. Also seized were a number of items of drug paraphernalia.

[26] Officer Kenzaki listed the following as the grounds that led to the arrest of the Munro brothers:

(a) Officer Kenzaki had been involved in two prior drug arrests in the plaza;

(b) at that time in the early morning, all the stores were closed in the plaza;

(c) the vehicle had to cross the parking lot, do a U-turn and come over beside the other vehicle;

(d) when Officer Kenzaki pulled up behind the vehicles, the windows were open, so that Officer Kenzaki concluded that they were talking or had exchanged something;

(e) the Munros advised Officer Kenzaki that they knew the occupants of the adjourning vehicle, but the occupants of the adjoining vehicle said they did not know the Munros;

(f) Officer Kenzaki’s dealings with Mr. Radisic “sealed everything”;

(g) Mr. Radisic was very jumpy and his behaviour was suspicious – Officer Kenzaki saw drugs in the Honda and found cash and a cell phone, which had a message “meet at RBC instead”;

(h) upon going back to the Munros’ vehicle, he smelled fresh marijuana;

(i) having regard to all the circumstances, he concluded that a drug transaction had occurred or one was about to occur.

[27] On cross-examination, Officer Kenzaki was questioned regarding the timing of certain radio calls in which he participated. Specifically, he was confronted with a tape of a radio call he made at 12:23:16, in which he stated “I need a second vehicle”. It was put to him that that call was made as he pulled up behind the two cars, and before he had ever had any kind of conversation with the Munro brothers. Officer Kenzaki insisted that he made the call after he had spoken to someone in the Honda. He testified that the times in his notes were approximations.

[28] It was put to Officer Kenzaki that, at the time he pulled up behind the two cars, he had already decided to detain the occupants of the vehicles. After some prodding, he agreed that the occupants of the vehicles were not free to go, and he did not tell them why he was there or advise them of their right to counsel. The evidence was as follows:

QUESTION: In any event, none of these cars, none of these occupants were free to go the second that you saw the car pull up to the other car you decided you’re going to get to the bottom of it; these people were not free to go at the time that you first approached. Agree?

ANSWER: Are you asking me if I decided in my mind to detain those individuals at that point?

QUESTION: The second that you saw the car pull up, you’ve done these drug investigations before, you’ve made seizures before; all the stores are closed, you say the restaurant’s closed, the bank is closed, they pull up to one another. You’ve made a decision at that time not only are you going to call for back-up, but you’re going to detain them. They are not free to go.

ANSWER: I didn’t make it at that time. I keep telling you that, I didn’t make, the call wasn’t until. . .

QUESTION: Right.

ANSWER: . . . after I spoke to Mr. Radisic.

QUESTION: In any event, you were there to get to the bottom of it; none of these people are free to go regardless of whether or not you actually made the call for back-up.

ANSWER: At that point, were they free to go? No.

QUESTION: No. Okay. So, so you come up to this car to the Munro’s; you don’t tell them why it is that you’re there. You ask them for identification; this is not an HTA. Right?

ANSWER: Correct. That’s not HTA.

QUESTION: Right? You’re conducting a criminal investigation.

ANSWER: Right.

QUESTION: You don’t even tell them why you’re there. Right? You don’t even tell them why you’re there. You don’t tell the Munro’s why you’re there.

ANSWER: No, I didn’t.

QUESTION: You don’t tell, you don’t give the Munro’s right to counsel.

ANSWER: No, I didn’t.

[29] Officer Kenzaki was asked about conversations he had with the justice of the peace when he attended to obtain the search warrant regarding the cell phones. Ultimately, it was agreed that Officer Kenzaki advised the justice of the peace that he had come upon two cars, he believed they were conducting a drug transaction and he stopped them both. One of the vehicles had $8,000 in cash. He arrested a couple of parties in a Honda and then he arrested persons in the other vehicle. On the search he found, he thought, 106 grams of crystal meth, a couple of ounces of cocaine, they had six cell phones in their possession, and Officer Kenzaki wanted to get a search warrant for the cell phones. He advised the justice of the peace that the cells phones were in the possession of the Halton Regional Police Service.

[30] Upon being pressed further about when he called for backup, Officer Kenzaki acknowledged that it was quite possible that the call was made while he was inside his vehicle, because one could actually hear the chime of the interior of the car when the call was being made. Earlier, he had testified that he likely made the call when he was standing outside the Honda after talking to Mr. Radisic.

[31] It was pointed out to Officer Kenzaki that Officer Parent’s notes indicate that he got the call for backup at 12:24, which is very close to the time at which Officer Kenzaki pulled up behind the two vehicles. It was also pointed out that Officer Kenzaki and Officer Parent’s notes were the same in terms of the time that Mr. Radisic was arrested – 12:38. They were also consistent with respect to the time of the arrest of the Munros – 12:41.

[32] Officer Stephane Parent, who is employed by the Halton Regional Police Service, testified that on April 15, 2010, at approximately 12:24 a.m., he overheard Constable Kenzaki over the air requesting a police unit to attend at the mall. Officer Parent attended at the mall, and arrived at approximately 12:28.

[33] Officer Parent observed Constable Kenzaki talking with two parties in the Honda Accord, and he observed a red Ford Escape parked further away in the parking lot.

[34] Officer Parent testified that he had some conversation with Officer Kenzaki, and then he went to speak to the driver of the Honda Accord. He asked if the driver knew the two individuals in the Ford Escape, and she said that she did not know them. He then approached the Ford Escape, and asked the two males if they knew who the occupants of the other vehicle were, and the driver said that they knew them, but mainly that they knew the female driver.

[35] Officer Parent then returned to the Honda Accord and spoke to the driver again asking her about the conflicting information, and the driver still said that she did not know who the males were. At that point, the passenger, Mr. Radisic, was starting to be very agitated and he was belligerent towards Constable Kenzaki. He observed Mr. Radisic put a transparent bag, with what appeared to be crack cocaine in it, in his mouth. At 12:38 a.m., Mr. Radisic stepped out of the vehicle and was placed under arrest by Constable Kenzaki. He then observed what appeared to be cocaine powder and crack cocaine on the front of the passenger seat and along the side of the passenger seat.

[36] Officer Parent testified that he then went to the driver’s side of the vehicle and placed the driver, Ms. Veloso, under arrest. He put her in the back of his cruiser, and at that point returned to the Honda Accord and located a plastic bag under the passenger seat with a significant amount of Canadian currency in it.

[37] Officer Parent testified that he and Officer Kenzaki walked to the Ford Escape, and he went to the driver’s side and arrested Matthew Munro for possession of a controlled substance. When Mr. Munro stepped out of the car it was approximately 12:41 a.m. As they walked towards the front of the Royal Bank, Constable Strauch arrived on the scene, and he transferred custody of Matthew Munro to Constable Strauch. At approximately 12:45 a.m., the custody of David Munro was transferred to Constable Deboer.

[38] At approximately 12:48 a.m., Officer Parent returned to the Ford Escape and commenced a search. He found one cellular phone in the centre console, one cellular phone on the passenger floor, a third cellular phone in the glove compartment, a fourth cellular phone under the front passenger seat, and a fifth cellular phone in the middle of the console. He found a Ziploc bag with what appeared to be cocaine residue in it.

[39] Officer Parent listed what he thought were the grounds to arrest Matthew Munro, as follows:

(a) the time and location, being a commercial plaza early in the morning;

(b) different stories from the occupants of the two vehicles;

(c) observing the passenger of the Honda swallowing an amount of drug;

(d) finding crack cocaine residue in the vehicle;

(e) locating a bag of money in the Honda Accord;

(f) the fact that the vehicles were window to window upon Officer Kenzaki’s arrival;

(g) the circumstances suggested either a completed drug deal or one that was about to occur.

[40] On cross-examination, Officer Parent testified that upon his arrival, his impression was that there was an investigation under way, and that the occupants of the vehicle were not free to walk about as they please and do what they want. He did not ask Officer Kenzaki whether or not he had advised anybody about their right to counsel.

[41] Officer Parent confirmed that when he first spoke to the Munros he did not advise them of their right to counsel. He confirmed as well that part of the grounds for their arrest was what he learned from his conversation with the Munros.

[42] Officer Ron Strauch of the Halton Regional Police Service testified. On April 15, 2010, at 12:41 a.m., he heard a call over the air from P.C. Kenzaki requesting another officer.

[43] When Officer Strauch arrived at the scene, he was advised by Officer Kenzaki that he had placed four parties under arrest for possession of a controlled substance. He was requested to take one of the males into custody, and he took Matthew Munro into custody.

[44] Officer Strauch testified that he was advised by Officer Kenzaki as to his grounds for the arrest. Officer Kenzaki advised him as follows:

(a) he was parked in a corner of the parking lot and he observed a black Honda Civic pulled door to door with a red Ford Escape;

(b) considering the time of night and the location, he approached the black Honda Civic, specifically the passenger side;

(c) when he approached, he observed a male party begin to shove things down his throat;

(d) Officer Kenzaki ordered the male out of the vehicle and he observed what he believed to be crack cocaine on the floor of the vehicle;

(e) he arrested that passenger and the female driver of the vehicle and then went over to the Ford Escape;

(f) the occupants displayed a nervous behaviour, and he observed a strong odour of fresh marijuana;

(g) he then placed the two males in that vehicle under arrest for possession of a controlled substance;

(h) he returned to the Honda Civic, and on the passenger side of the vehicle he found a large brown bag containing a large amount of cash.

[45] At about 12:48 a.m., Officer Strauch attended at the Ford Escape with P.C. Parent and conducted a search, incident to arrest, of the vehicle. They found $10 in cash; one package of Belmont cigarettes, and inside the package a small baggie containing fresh marijuana; a marijuana grinder, and ZigZag rolling papers; an ESSO gas card; a Sunoco gas card, business cards, with the name of Matthew Munro on two of them, and the name of Daniel Walker on one of them; in the centre console, a small bag that appeared to contain crack cocaine; a brown wallet containing $265 in Canadian currency; also in the wallet a TD debit card; a TD Visa card with the name Matthew Munro; a Footlocker card; an Ontario Private Security card with the name Matthew James Munro on it; and a licence for Matthew James Munro.

[46] At 12:55 a.m., Officer Strauch found under the driver’s seat a Blackberry cardboard phone box, and inside was a grocery bag containing a crystallized substance and in a bag, another small block of what he believed to be crack cocaine.

[47] Officer Strauch returned to his police vehicle and advised Matthew James Munro that he was under arrest for possession for the purpose of trafficking a controlled substance, trafficking in a controlled substance, and possession of a controlled substance, and he read him his rights to counsel and cautioned him. This occurred at approximately 1:32 a.m.

[48] Filed on consent was a list of items seized from the red Ford Escape and the black Honda Accord. Included were 109 grams of methamphetamine and 27.8 grams of cocaine, which were found inside the Blackberry box under the driver’s seat of the red Ford Escape. Included also were six cell phones found in the red Ford Escape.

[49] Also filed on consent was an expert witness report regarding, among other things, an analysis of the contents of the cell phones seized from the red Ford Escape.

Submissions

[50] Counsel for the Munro brothers argue that there were violations of sections 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. They were arbitrarily detained, contrary to s. 9; they were not informed promptly of the reasons for their detention; nor were they informed of their right to retain and instruct counsel without delay upon their detention; and there was an unreasonable search of the vehicle and seizure of items from it, and an unreasonable search of the contents of the cell phones found in their vehicle.

[51] Counsel argue that, pursuant to s. 24(2) of the Charter, the evidence seized in violation of the Charter should be excluded from evidence, and the utterances made when they were detained should be excluded.

[52] Counsel argue that the Munros were detained from the moment Officer Kenzaki pulled up behind their vehicle. Indeed, Officer Kenzaki confirmed, in his evidence, that from the moment he pulled up behind the two vehicles, the occupants were not free to leave.

[53] Counsel submit that I should determine that Officer Kenzaki had made a firm determination that he was going to detain, and ultimately arrest, the occupants of the vehicles, because he radioed for backup when he pulled in behind the vehicles. Counsel submit that I should not accept Officer Kenzaki’s denial in this respect. The timing of the radio calls, as confirmed by Officer Parent, together with clear evidence that the radio call was made from inside Officer Kenzaki’s vehicle, are consistent with the call for backup being made before the occupants of the vehicles were spoken to. Thus, it is submitted, Officer Kenzaki had made a determination of probable guilt, and that the occupants of the vehicles should be detained, before any investigation had been done. All Officer Kenzaki knew at that point was that two vehicles were parked beside each other outside a bank. For all Officer Kenzaki knew, the occupants were intending to use the bank’s ATM.

[54] At the time Officer Kenzaki first spoke to the Munros, they had done nothing to attract suspicion. They were cooperative, and willingly provided identification. When asked to move their car forward, they did so. Even though, as far as Officer Kenzaki was concerned, the Munros at that point were detained, Officer Kenzaki did not advise them of the reasons for their detention, nor did he advise them of their right to retain and instruction counsel without delay.

[55] While the conduct of the occupants of the other vehicle was certainly suspicious, nothing the Munros did was sufficient to justify their detention, their arrest, or the search of their vehicle and the subsequent search of their cell phones. Apart from the rather benign conversation they had with Officer Kenzaki, the only other circumstances relied upon by Officer Kenzaki were the fact that they were parked next to the other vehicle in the first place, and the fact, according to Officer Kenzaki, that he smelled fresh marijuana when he returned to their vehicle. It is noted that that latter circumstance was not something testified to by Officer Kenzaki in the first instance, and it is submitted that it is nothing more than an ex post facto rationalization justifying the arrest.

[56] It is clear from Officer Kenzaki’s evidence that part of the reason for arresting the Munros was the conflict in the stories given by the occupants of the two vehicles, as to whether they knew each other or not. Had Officer Kenzaki advised the Munros that they were detained, and the reasons for it, and that they had the right to obtain and instruct counsel without delay, it is virtually certain that neither accused would have said anything to Officer Kenzaki. Thus, there would have been no grounds whatsoever to arrest them or search their vehicle.

[57] Counsel submit that the search of the vehicle was unreasonable, and contrary to s. 8 of the Charter. Both the arrest and the search of the vehicle occurred after the violations of sections 9 and 10 of the Charter had occurred. Thus, the normal search incident to arrest that is usually allowable was not, in this particular circumstance, justified. For the same reason, the search of the cell phones subsequently was not justified. The utterances of Matthew Munro, coming as they did, after the violation of the Charter, should be ruled inadmissible. Counsel rely on R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65; R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32; R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (C.A.); R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34; R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49; R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8; and R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33.

[58] Ms. Hoffman, counsel for the Crown, submits that there was no violation of sections 8, 9 or 10 of the Charter. In the alternative, the evidence seized should be admitted pursuant to s. 24(2) of the Charter.

[59] Ms. Hoffman submits that at the time the Munros were initially questioned by Officer Kenzaki, they were not detained. As discussed in R. v. Suberu, supra, there is a distinction between “detention” and what is referred to, at para. 29 of the decision, as “preliminary investigative questioning”. What occurred here was simply preliminary investigative questioning, and the Munros cannot be considered to have been detained at that point. Accordingly, the rights accorded to a person who has been detained, as set out in s. 10 of the Charter, did not arise.

[60] It was only after the police had become aware of a number of circumstances, including the differences between the occupants of the vehicles as to whether they knew each other or not; the fact that the vehicles were side by side at that hour of the night in a vacant parking lot; the activities of the occupants of the black Honda, including having visible drugs in the car and the agitated state of the passenger; the message on a cell phone in the Honda, “meet at RBC instead”; and the smell of fresh marijuana from the Ford Escape; that the Munros were properly arrested. Based on all the circumstances, the police had ample grounds for effecting the arrest at that point. Only subsequent to the arrest was the search of the Ford conducted, which was simply incident to the arrest that had been properly made.

[61] Ms. Hoffman submits that there was nothing unlawful about the subsequent search of the cell phones, which was conducted pursuant to a search warrant properly applied for and granted. Full disclosure of all relevant facts was made by Officer Kenzaki to the justice of the peace. It would have been perfectly obvious to the Justice that there was an outstanding criminal charge, and it would not have been necessary to advise the Justice that a preliminary hearing had been held.

[62] In the result, Ms. Hoffman submits that there was no violation of sections 8, 9 or 10 of the Charter. Thus, all of the evidence acquired is admissible.

[63] In the alternative, Ms. Hoffman submits that the evidence should be admitted pursuant to s. 24(2) of the Charter.

[64] As set out in R. v. Sandhu, [2011] No. 619 (C.A.), the onus is on the Munros to show that the admission of the evidence would bring the administration of justice into disrepute.

[65] Ms. Hoffman submits that, pursuant to the analysis in R. v. Grant, supra, the evidence should be admitted. As required by the analysis in that case, the Court is to consider the seriousness of the Charter-infringing state conduct; the impact of the breach on the accused’s Charter-protected interests; and the interest of society in an adjudication of the case on its merits.

[66] Here, Ms. Hoffman submits that if there was a violation of the Charter, it was not serious. Any questioning of the Munros in the initial encounter was of a preliminary nature only, and was essentially benign. Ms. Hoffman submits that I should accept that Officer Kenzaki was acting in good faith.

[67] Ms. Hoffman submits that there was minimal impact on the Munros’ Charter-protected interests. They were not aggressively questioned, and they were not told that they could not leave.

[68] Ms. Hoffman submits that society’s interest in an adjudication on the merits is high. The offences are serious, and the exclusion of the evidence, particularly the drugs and the contents of the cell phones, would likely have a very serious impact on the Crown’s case.

[69] Ms. Hoffman submits that after balancing the factors discussed in Grant, I should conclude that the evidence ought to be admitted.

[70] Ms. Hoffman relies on R. v. Suberu, supra, R. v. Calder, 2004 CanLII 36113 (ONCA); R. v. Jones, 2011 ONSC 4158, [2011] O.J. No. 3069; R. v. Sandhu, supra; R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 (S.C.J.); R. v. Yousofi, [2011] O.J. No. 1862 (S.C.J.); and R. v. Johnson, 2010 ONSC 1490, [2010] O.J. No. 975 (S.C.J.).

Analysis

[71] The relevant provisions of the Charter are as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[72] The first issue is whether the Munros were detained at the time they were initially questioned by Officer Kenzaki. If they were, they were entitled to be accorded the rights set out in s. 10 of the Charter, namely, the right to be informed of the reasons for the detention, and the right to be informed of their right to retain and instruct counsel without delay.

[73] It is clear that, as discussed in Suberu, supra, there is a distinction between detention, including investigative detention, and what the Supreme Court termed, at para. 29, “preliminary investigative questioning falling short of detention”. It is only detention, including investigative detention, that triggers the rights set out in s. 10 of the Charter. As stated by Iacobucci J. in R. v. Mann, supra, at para. 21:

Section 10(a) of the Charter provides that: “[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefore.” At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.

[74] At para. 28 of Suberu, the Court stated: “In a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under sections 9 and 10 of the Charter.”

[75] In this case, the objective evidence would normally give rise to a conclusion that what occurred in the initial encounter with the Munros was simply preliminary questioning, and was not a detention. However, the matter here is not so simple. That is because Officer Kenzaki was clear, in his evidence, that as far as he was concerned, the occupants of the two vehicles were not free to leave, and he had formed that conclusion at the moment he pulled up behind them. Consistent with this view is my conclusion that Officer Kenzaki called for backup immediately upon pulling up behind the two vehicles. I come to that conclusion based on the evidence of when the radio calls occurred, and evidence that the call requesting backup took place from inside Officer Kenzaki’s vehicle. That being the case, there is no doubt that Officer Kenzaki was convinced, at that point, that an offence was in the process of taking place or had occurred, and that he was intent on detaining the occupants of the vehicles for investigative purposes.

[76] Where, as here, the police have made a clear determination to detain a suspect, and proceed to question that suspect, the police cannot later claim that the suspect was not, in fact, detained. As Officer Kenzaki clearly stated, the Munros were not free to leave. Their freedom of movement was constrained, whether they knew it or not.

[77] Thus, in my view, the Munros were entitled to be accorded the rights conferred by s. 10 of the Charter. They were entitled to be informed of the reasons for their detention, and that they had the right to retain and instruct counsel without delay. They were not accorded those rights.

[78] I am also of the view that s. 9 of the Charter was violated. Officer Kenzaki decided to detain the Munros before he had done any investigation, other than to see one car drive up beside the other. For all he knew, the occupants of the vehicles were intending to use the bank’s ATM. The fact that Officer Kenzaki had participated in two previous drug-related events, during the day, was hardly sufficient to justify any objective conclusion that this particular parking lot was a place where drug transactions occur with some frequency. Thus, in my view, the detention of the Munros, at the time they were initially questioned, was arbitrary.

[79] The search of the vehicle, and the subsequent search of the cell phones, coming as they did after the arbitrary detention of the Munros and the violation of s. 10 of the Charter, constituted, in my view, unreasonable searches and seizures contrary to s. 8 of the Charter. Apart from the Charter violations, there was nothing untoward about the search of the cell phones. A warrant was applied for, and I am not persuaded that there was any material non-disclosure to the justice of the peace.

[80] Having come to these conclusions, the issue is whether the evidence should be excluded pursuant to s. 24(2) of the Charter. It is necessary, therefore, to apply the factors discussed in Grant.

[81] The first issue is the seriousness of the Charter-infringing state conduct. In my view, while serious, the conduct does not fall at the most serious end of the scale.

[82] I do not think Officer Kenzaki acted in bad faith. If anything, his actions show a tendency to overreact, and to come to conclusions too quickly. He obviously assumed that a drug deal was in progress at the time he called for backup. He concluded that the circumstances, at that time of the night when the parking lot was almost empty, were suspicious. Suspicious they were, but it was hardly the case that a drug deal was the only explanation. Further investigation was required. Officer Kenzaki should have been more cautious in his approach, but I think he believed, in good faith, that a drug deal was going down.

[83] The fact that he has come up with a somewhat revisionist version of when he called for backup is a concern. He would have been better to have admitted that he jumped the gun too early, and then let the chips fall where they may, rather than try to shade the facts. However, even making allowances for this ex post facto rationalization, I think Officer Kenzaki acted in good faith.

[84] In the result, while serious, I do not put the Charter breaches at the most serious end of the scale. This factor points modestly towards exclusion of the evidence.

[85] With respect to the effect of the breach on the Charter-protected interests of the accused, I think the breaches had a serious impact. Had Officer Kenzaki complied with his obligations under s. 10 of the Charter, it is highly unlikely that either of the Munros would have said anything, including any statement as to whether they knew or did not know the occupants of the other car. Had they remained silent, as they were entitled to do, the police would have had very little on which to have reasonable grounds to arrest the Munros. While there was certainly ample evidence to implicate the occupants of the other car, there would have been very little to connect them to the Munros, except for the mere circumstance that they had been parked next to the Honda.

[86] This factor points strongly in favour of the exclusion of the evidence.

[87] With respect to the third factor, society obviously has a strong interest in an adjudication of this case on its merits. The charges are very serious. Without the items seized from the vehicle, and the contents of the cell phones, the Crown’s case will be seriously damaged, if not at an end. This factor points strongly in favour of admission of the evidence.

[88] Only one of the three factors points strongly towards exclusion of the evidence. One factor points strongly towards admission, and the third factor points modestly towards exclusion.

[89] The factors themselves are directed towards an inquiry as to whether the admission of the evidence would bring the administration of justice into disrepute. The balancing exercise is not merely arithmetical. On balance, I am not persuaded that the Munros have satisfied their onus to show that the admission of the evidence would bring the administration of justice into disrepute. The conduct of the police demonstrates over-enthusiastic conduct, rather than bad faith. Society has a strong interest in an adjudication of the case on its merits.

[90] For these reasons, the evidence seized from the Ford Escape and from the cell phones, as well as the utterances made, will be admitted into evidence.

GRAY J.

Released: January 4, 2012