COURT FILE NO.: 1704/12

DATE: 20121207

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

ERIC TAYLOR, for the Respondent/Crown

Respondent

• and -

JORDAN BACCHUS

MARY CREMER, for the Applicant

Applicant

HEARD: August 20 and 22, November 15, 2012

RULING ON CHARTER APPLICATION

DURNO, J.

Table of Contents

The Evidence. 1

The Stop. 1

The Search. 3

The Position of the Parties. 12

The Law.. 20

Search Incident to a Lawful Arrest 21

Section 9 of the Charter 26

Section 24(2) of the Charter 26

Discoverability and s. 24(2) 28

The Three Avenues of Inquiry. 29

The Seriousness of the Charter Infringing Conduct 29

The Impact of the Breach(es) on the Charter-Protected Interests of the Accused. 31

Society’s Interest in an Adjudication of the Merits. 33

Balancing the Factors. 34

Analysis. 36

Findings of Fact and Inferences. 36

The Stop. 36

The Arrest 36

The Search. 43

The Three Avenues of Inquiry Applied. 50

The Seriousness of the Charter Infringing Conduct 50

The Impact of the Breaches on the Charter-Protected Interests of the Applicant 59

Society’s Interest in an Adjudication on the Merits. 61

Balancing the Factors. 62

Conclusion. 64

Schedule A – CPIC Print out (redacted) (3 pages)

1At 4:00 a.m. on August 14, 2011, Jordan Bacchus was driving a car when he was stopped by P.C. Sibley of the Peel Regional Police (PRP). When the officer “ran” his license plate, it revealed he was the registered owner of the car and linked the name to the Canadian Police Information Centre (CPIC) which showed he was on a recognizance with a 9:00 p.m. curfew. Despite correctly telling the officer the term had been deleted 16 months earlier, he was arrested and put in the police cruiser. A second officer searched the applicant’s car and found oxycodone and a loaded handgun.

2The applicant applied to exclude the gun and drugs contending his s. 8 and s. 9 Charter rights were violated. The Crown concedes the breaches. The remaining issue is whether the evidence should be excluded pursuant to s. 24(2) of the Charter. For the following reasons the application is dismissed.

The Evidence

The Stop

3Constable Wayne Sibley of the PRP was working in a marked cruiser in the early morning hours on August 14, 2011. As he was working his way back to the division near the end of his shift, he saw a grey Mazda motor vehicle drive out of a plaza and go westbound on Steeles Avenue. The vehicle did not have its rear lights on. The officer was unable to see if the headlights were on. He was “a little suspicious” what the driver had been doing in the parking lot because at that time he was not aware of any commercial businesses in the plaza that would have been open at 4:00 a.m. He later found out there was a massage parlour open at that time.

4P.C. Sibley followed the vehicle for roughly one minute as it travelled about one half of a kilometre. As he was about to pull over the vehicle, the Mazda’s rear lights went on. The officer activated his siren and emergency lights. Constable Sibley agreed in cross-examination that essentially the reason he pulled over the Mazda was his concern about what the vehicle had been doing in the parking lot.

5Before leaving the cruiser, the officer entered the Mazda’s license number into the police computer which showed the applicant as the registered owner of the motor vehicle and linked the registered owner to CPIC. It was P.C. Sibley’s practice to “run” the license plate before going to the driver’s door so he would know “what he was dealing with” for officer safety.

6CPIC showed several entries including that the applicant was awaiting trial on charges of failing to comply with a recognizance, possession of cocaine for the purpose of trafficking, escaping custody and possession of property obtained by crime. The nature of the outstanding charges increased the officer’s suspicions regarding whether the applicant was “up to anything” in the parking lot. Driving with his lights off seemed to indicate he was trying to avoid detection.

7When approached, the applicant was calm and polite. He said he had been picking up one of the two women who were in the car with him. While the answer explained the applicant’s presence in the plaza “somewhat”, the officer did not believe the applicant one hundred percent. At some point while dealing with the applicant, the officer told him his rear lights had been off. When the applicant produced his license, ownership and insurance, the officer returned to his cruiser.

8While back in his cruiser, the officer looked more thoroughly at the CPIC entries and saw the applicant was on a recognizance with conditions including a 9:00 p.m. to 5:00 a.m. curfew. Another entry from about two years earlier showed the applicant was a person of interest in a homicide investigation. He was also noted as a “surveillance person,” meaning a person who was going to be investigated in the homicide. Other entries cautioned the applicant was “armed and dangerous” and “violent.” After seeing these entries on CPIC, most of his concerns about the applicant were based on those entries.

9P.C. Sibley arrested the applicant for failing to comply with his recognizance at 4:18 a.m. Other officers had arrived and he asked them to stand by for officer safety until he arrested the applicant. When the applicant told P.C. Sibley the curfew term should not be there as it had been removed earlier, the officer said he was required to act on the information he had available. At the time, the officer said he was “highly on guard” when dealing with the applicant whom he regarded as armed and dangerous. He proceeded with the arrest including a “pat-down” search which revealed the applicant had two cell phones.

The Search

10P.C. Sibley testified that based on what he had seen on CPIC, the outstanding charges, the surveillance person reference and being a person of interest in a homicide investigation, he believed the applicant had a weapon or weapons in the car. He “believed” he asked P.C. Cerson to search the Mazda, to see if the applicant had stashed anything around where he was sitting and “believed” he told him about the CPIC entries. Since they had seized the car and it would be impounded, if there was a gun inside they would want to find it. At 4:26 a.m., eight minutes after the arrest, P.C. Cerson told him he had found a gun and drugs in the Mazda.

11Had the only issue been that the applicant’s tail lights were off, it would have been a brief traffic stop. While the applicant told him the term had been deleted, the officer had “heard that before” and it was not always the case. While he intended to check later, finding the gun and drugs changed the focus of the investigation.

12P.C. Sibley was trained on the use of CPIC. His understanding was that if something had been resolved or settled, it was removed from the system. While he had not previously encountered a situation where the entries were wrong, nor had he ever had a reason to doubt CPIC, after this incident he would be more cautious.

13Before going back to the division, Constable Sibley decided to assist the other officers in completing a more thorough search. He searched in the area of the passenger’s seat, the glove box and console area. In cross-examination, he said he supposed it would have been possible to get a telewarrant to search the car but gave that option no thought at the time.

14P.C. Tyler Cerson had been on patrol in the area of Constable Sibley’s stop and went to the scene for officer safety. Once there, Constable Sibley told him the applicant was “arrestable” for failing to comply with his recognizance but did not ask him to search the vehicle. Constable Cerson decided, on his own initiative, to search the Mazda after learning of the arrest. He was asked several times throughout his evidence why he searched the car. His answers will be detailed later in the reasons.

15The car was very messy. Throughout the passenger compartment he saw a green leafy plant substance that he felt were marijuana flakes although he could not say it was marijuana. The car was low requiring him to lean in to conduct the search. As soon as he touched or tried to support himself on the centre console where the shifter and emergency brake were located, he noticed it was very loose and not secure like it would be in most vehicles, as if it had been taken apart and removed frequently. When he first noticed it, he was not searching that area but was trying to support himself.

16The officer noticed a plastic bag pinned under the emergency brake that was under the console. In examination-in-chief, he could not recall how much of the bag he saw, but in cross-examination said it was roughly one and one half inches. He removed the bag and without opening it, knew it was drugs because it was wrapped so tightly that the pills protruded.

17The officer then removed the loose trim from around the automatic transmission gear shifter using no force and saw the barrel of a gun facing up towards him. If the car had flipped, the trim would have fallen off. The very small semi automatic handgun had a magazine in the grip, indicating it was loaded and ready to fire.

18While an Acting Sergeant had stopped at the scene briefly, all of the officers at the scene were of comparable rank and experience. There were no discussions about getting a telewarrant because they already had the grounds to arrest. Constable Cerson had never applied for one, so had no idea how long that would have taken.

19P.C. Matthew Milroy arrived at the arrest scene with Constable Cerson. He did not recall overhearing any discussions amongst the officers about searching the Mazda. It was his usual practice to search a motor vehicle after the arrest of the driver looking for evidence of the offence, weapons or means of escape. He believed the same would apply for all arrests, whether it was for Highway Traffic Act or Criminal Code offences, although it would depend on the specific scenario for him to say. He was not involved in the search of the Mazda.

20P.C. Chris Mandville arrived at the scene and was told by P.C. Sibley that the applicant had been arrested for failing to comply with his recognizance. He was not involved in any discussions about searching the Mazda. Constable Sibley never asked him to do anything.

The Appellant’s Recognizances

21On May 14, 2008 the applicant was arrested by the Toronto Police Service (TPS) and charged with escaping custody, possession of property obtained by crime and possession of cocaine for the purpose of trafficking. The next day he was released on a recognizance that included a condition that he abide by a 9:00 p.m. to 5:00 a.m. curfew and be inside his residence unless he was with his surety, or while at work with his father.

22On April 26, 2010, his bail was varied in the Superior Court and the curfew term deleted.

23On December 26, 2010, the applicant was committed for trial on the count of possession for the purpose of trafficking only.

24On February 22, 2011, he appeared in the Superior Court to vary the bail terms again. The Agreed Statement of Fact includes a Form 10A – Conditions of Release in which Crown and defence counsel set out the proposed terms of a new release order. A note on the front states:

This form is a draft order to be completed by solicitor of record. It does not have the effect of an order of the court unless accompanied by an order in Form 10, duly signed by a judge of the Superior Court of Justice.

25The Form 10A is signed by the applicant’s counsel, the Crown Attorney and a Superior Court judge. The form relates to the only outstanding Toronto charge – possession of cocaine for the purpose of trafficking. There appears to be two handwritings in relation to the terms. Someone ticked the box that there was to be a curfew and wrote that it was from 9:00 p.m. to 5:00 a.m. The new order permitted the applicant to contact his co-accused through counsel and to communicate with persons known to him to have a criminal record. Those provisions were changes from the previous release order.

26A new recognizance was prepared but was never entered into by the applicant. However, a copy of the recognizance was in the TPS Records Management Department file and is included as an exhibit to the Agreed Statement of Fact. In the bottom right corner there is a “DATE ENTERED C.P.I.C.” stamp with February 28, 2011 and badge number 82044. The recognizance had blank signature spaces where the accused, the surety and the releasing Justice of the Peace would sign when it was entered into.

27The front portion is blank where the printed form states:

Taken and acknowledged before me at ________ of _________ in the Province of Ontario, on the ____ day of ________, yr. ____ at ____________ ______________.

28On March 7, 2011, the applicant re-appeared in the Superior Court to vary his bail again. Another Form 10A was completed by his counsel, the Crown and signed by a judge. While there were other minor differences between the March 7 and February 22 forms, of significance here, the latest form did not include any curfew clauses. A new recognizance was prepared to reflect the variation and left for the applicant to enter at the Old City Hall.¹ The order was never signed or entered by the applicant. There is no evidence why Mr. Bacchus failed to enter the new recognizance that reflected the order he wanted to obtain in February.

29On June 10, 2011, the applicant was stopped while driving the Mazda by Detective Constable Mavrou of the TPS at 1:04 a.m. because upon doing a license plate check the officer noted the curfew clause. The applicant was arrested at 1:14 a.m. and taken to 54 Division. He told the officer he had been in court in February to vary his bail. When he went to the Justice of the Peace at the Old City Hall to enter the new recognizance he noticed the curfew condition was included in the new recognizance and he refused to sign the release order. Since his “old” recognizance had no curfew, he did not feel he was bound by a curfew. It is not clear from the Supplementary Record of Arrest whether it was before or after the applicant’s comments that the arresting officer contacted Records Management, apparently from the roadside, and was told the curfew condition was valid.

30At the division, the officer asked that a copy of the recognizance that was currently on CPIC be faxed to him. When it arrived, he noted that at the top of the form was printed: “Old bail in effect until new bail signed” and that the recognizance had never been signed. The officer contacted Records Management and was told there was a second recognizance on file. It was sent to the division where the arresting officer noted the April 27, 2010 release order that did not include a curfew. Accordingly, the officer released the applicant unconditionally.

31At the bottom of the Supplementary Record of Arrest which sets out the facts I have just reviewed, the following appears:

Note: The current unsigned recognizance of bail that appears on CPIC and the old recognizance are attached to the Record of Arrest.

32The bottom of the Record of Arrest includes a notation that a copy of the document is to be sent to various locations including the Criminal Records Update and the Records and Information Security (R.I.S.).

The CPIC Entries

33The CPIC printout at Schedule A to these Reasons is the redacted version of the full printout P.C. Sibley would have seen when he ran the applicant’s license number before the arrest. While it is noted as 10:54 a.m. on August 11, 2011, it is agreed the information was what Constable Sibley would have seen.

34After setting out a description of the applicant, the CPIC entries revealed the following: Awaiting Disposition Exp. 2012-05-10: Offence: Fail to comply with a recognizance, OD 2011-06-10. There is a number for which I have no evidence, a case number including D54, TPS as the record owner and a phone number for records with a date 2011-06-11 13:53. This entry would appear to be the “failing to comply” incident upon which he was unconditionally released the day before it was entered.

35The next entry is another Awaiting Disposition: Exp: 2012-04-30 with offences PFP Cocaine, escape lawful custody and “possess property obtaine (sic) by crime,” with OD 2008-05-14. Reltype: recognizance: condition description, 1) obey a curfew – to be in his place of residence between the hours of 9PM and 5 AM seven days a week. This and the other listed terms appear to relate to the unsigned recognizance except it is not noted that he was permitted to be out during his curfew with his surety or at work. The case number starts with D11, presumably 11 Division, and is followed by the record owner is the TPS, the phone number for TPS Records and is dated 2008-05-12. While this entry correctly noted the original charges, the applicant was only awaiting disposition on the possession for the purpose charge as the other counts had been either withdrawn or he was discharged at his preliminary inquiry.

36The next entries noted the applicant as a “surveillance person,” “do not divulge interest to subject” and a case reference 2006 (redacted entries) Hom Exp. 2012-08-31.

37The final entry under the applicant’s name is “CAUTION: ARMED AND DANGEROUS; CAUTION VIOLENT.” Surveillance person, do not divulge interest to subject. Case 2005 (redacted entries) Exp: 2013-02-28. There are a considerable number of redacted entries in this area.

38Mr. Taylor, on behalf of the Crown, made two points regarding the CPIC records. First, for a week before this application started he tried to have a representative from TPS attend to explain what happened with the CPIC entries and how they were entered in error. He described his efforts as “a bit of an exercise in futility.” He spoke with the TPS, the Courts Service Division of the Ministry of the Attorney General, the Royal Canadian Mounted Police and wound up being directed back to the TPS. He attempted to speak to the Superintendent in charge of records but that officer was not available the week before the application started and was ill on the first date of the application when he again tried to make contact. Mr. Taylor spoke to the officer who was “second in command” of the unit, but I infer did not receive any constructive information. On the second day of the application, Mr. Taylor said he had asked someone in the records office if they would “voluntarily attend.” He was told they would not but the TPS lawyer would contact him. It is unclear whether there was any further contact with the TPS. No one attended to explain what happened or how this might have occurred.

39Second, Mr. Taylor candidly admits that the Peel Crown Attorney’s Office to an extent “dropped the ball” on this aspect of the case. The applicant was charged with failing to comply with his release order and committed to stand trial on that charge. It was only after two judicial pre-trials in this Court that the charge was withdrawn in March, 2012. Apparently no steps were taken to get evidence from the TPS about the entries before Mr. Taylor became involved about a week before this application was to commence. Given the applicant is in custody on these charges, he did not feel it was appropriate to ask for an adjournment to attempt to get further evidence to explain the CPIC entries. In addition, there was no assurance any evidence would be forthcoming.

The Position of the Parties

40Ms. Cremer stresses the importance of accurate CPIC records because it is a closed system to which the public has no access. Traffic stops can lead to something more substantial as occurred here. The impact on the applicant’s liberty has been significant. As a result of a gross clerical error, Mr. Bacchus has been in jail since August 11, 2011.² Had it not been for the improper arrest, there would have been no detention order. The impact was not restricted to the applicant as both female passengers were charged with offences after the officer located the gun and drugs.

41What occurred was indicative of systemic failures in recording information relied upon by the Toronto and other police services. We cannot have a system that permits judges’ orders to be “overruled” by clerical errors. What occurred was a series of serious mistakes. There is no evidence to explain how a recognizance that was never entered into found its way onto CPIC or how it was permitted to remain on the system for months, even after the TPS knew it was false.

42The applicant submits by the time Constable Sibley approached him for the first time, the focus of the investigation was his leaving the parking lot with his rear lights off around 4:00 a.m. and being on release awaiting trial. She notes that even the charges upon which he was awaiting trial had not been updated.

43The applicant submits there was no basis to search the Mazda because once he was identified and CPIC noted he was in breach of his release order, the police had all the evidence they needed on that charge. In addition, the officer should have made inquiries of the TPS Records Department from the roadside when the applicant said the curfew had been deleted before any search occurred. Finally, she notes there were no exigent circumstances justifying the search, there was no basis upon which the officers could have obtained a telewarrant to search the car and no explanation why they did not apply for a telewarrant.

44Ms. Cremer challenges Constable Cerson’s credibility when he said he was searching for a receipt to assist in proving the failure to comply allegation. His evidence made no sense and should be rejected. That the molding around the console was loose was irrelevant, as he was not searching for parts of the car that required repairing. She submits that it should be readily apparent Constable Cerson was searching for drugs and firearms.

45In terms of the R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, factors, Ms. Cremer submits the breaches are serious, reflecting systemic failures. The breaches are more egregious because the police made errors in their CPIC system to which the public has no access, the TPS knew after the June 11, 2011 arrest that their CPIC entries were wrong and did nothing to address the problem.

46The impact on the applicant has been significant. Had there been no car search, he would have received a Highway Traffic Act charge at worst and more likely a caution. He contends he did all that was required of him, including abiding by his release order. Citizens have to know they and the police can rely on the accuracy of CPIC. The police have to understand that court orders have to be followed and accurately recorded. Even if this is a “one off” for unsigned release orders being entered on CPIC, the applicant is a representative of every Canadian citizen. Ms. Cremer urges me to draw an adverse inference from the TPS’s refusal to attend voluntarily to give evidence.

47Finally, in regards to whether the gun and drugs were discoverable, she submits neither Constables Sibley not Cerson had grounds to search the vehicle. Once P.C. Sibley knew the applicant was out of his residence in breach of his curfew they needed no further evidence. Since there was nothing illegal in plain view there was no basis upon which the car could be searched. While Constable Sibley knew of the “armed and dangerous” and “violent” cautions and the homicide references on CPIC, unless the applicant acted in a violent manner the night of his arrest, the entries gave neither officer the right to search the car. In addition, those entries were dated which should have led the officer to ignore them in the absence of violent conduct by the applicant.

48Mr. Taylor concedes the applicant’s s. 8 and s. 9 Charter rights were violated. The gun does not change the nature of the breaches. The intervening act of finding the gun does. While there is no dispute the initial stop was lawful, the detention based on erroneous information on CPIC violated the applicant’s s. 9 right to be free from arbitrary detention. The search incident to an unlawful arrest breached his s. 8 rights. Accordingly, the issue for determination is whether the gun and drugs should be excluded under s. 24(2) of the Charter.

49By way of overview, the Crown submits s. 24(2) rulings are all about what precedent is set for future state conduct. This case presents a very strange fact pattern, so strange that no precedent could be established. The CPIC records involved a “series of unfortunate events.” When counsel were asked for additional submissions, primarily on the issue of discoverability, Mr. Taylor fairly characterized one of the key issues as whether Constable Cerson’s reasons for the search of the car incident to arrest, raised issues of future police conduct.

50Further, Mr. Taylor submits s. 24(2) before Grant had a retrospective focus, with state actors, in effect being punished for their conduct the court determined could not be permitted to occur. Post Grant, the focus is prospective: what effect exclusion will have in the long term as well as on how can state actors be encouraged to act within the parameters of the Charter and discouraged from conduct that does accord with Charter rights and freedoms. He argues that s. 24(2) rulings cannot become enablers to the erosion of those rights and freedoms. Here, he submits exclusion would accomplish little other than a possibly guilty man being set free.

51Mr. Taylor notes a s. 24(2) analysis has to proceed on the specific facts of the case. Here, there are two components to the arguments. First, the Peel Police search incident to arrest. This was a dual purpose stop: a Highway Traffic Act investigation because of the rear lights being off and a criminal investigation of why the applicant was in the parking lot at that time of night. The police reliance on CPIC, including the information inputted by other police services, is something they have to do every day they work. These human errors appear to be out of the ordinary, far from routine or systemic, reflecting “negligence more than anything else.” He argues there is no evidence the TPS acted maliciously and that the first error was the applicant’s counsel’s inclusion of the curfew in the Form 10A when it had been removed months earlier. That error set in motion a bizarre sequence of events. After the first error, the applicant obtained a further variation that did not include the curfew but, for some unexplained reason, never entered that recognizance.

52However, the TPS has to have part of the blame for what happened. Mr. Taylor concedes there are gaps in the evidence and it would be open to draw an adverse inference against the Crown on that basis. He concedes there is no good explanation for what happened. In relation to the June 10, 2011 traffic stop, the Crown concedes the TPS were made aware of what can go wrong with inaccurate records yet again there is no explanation what, if anything, the TPS did to rectify the error. It was two months after the Toronto “breach” arrest that P.C. Sibley acted on the inaccurate information the TPS left on CPIC. There was ample time to remove that entry.

53Mr. Taylor concedes the failure to remove the erroneous bail term from CPIC records is “bad,” reflective of a situation that cannot occur. At first blush, it seems to be “unconscionable.” It is somewhat akin to the use of roadside screening devices used to detect the presence of alcohol in drivers. Just as those devices must be properly maintained, CPIC records must be similarly maintained so they can be relied upon.

54Second, while the TPS could have and should have done more to ensure the reliability of the information they input to CPIC, excluding the evidence will do nothing to prevent further “lackadaisical” recording of information by police services. Everyone knows the importance of records management and that the records have to be accurate. The Crown questions whether the TPS errors are carried forward to a Peel Police arrest and search.

55In terms of the Grant criteria, the Crown argues the applicant had a reduced expectation of privacy in his motor vehicle and because he was on a judicial interim release. Mr. Taylor submits that while the officers did not have the best understanding of their right to search incident to arrest, they had some understanding. Constable Sibley’s initial stop was valid, a justifiable interference with the applicant’s liberty interests. As a person on bail awaiting trial he may have his liberty restricted and attracts more police scrutiny. The Crown notes P.C. Sibley said there was no way to check the validity of the applicant’s claim his bail had been varied to delete the curfew at the roadside and he was going to investigate that further by calling the TPS Records Department to see if there was a variation. If he had made those inquiries from the station and the variation was confirmed, the applicant would have been released unconditionally had it not been for the finding of the gun and drugs.

56While P.C. Cerson’s evidence that he was looking for items such as a receipt, might seem curious at first blush, it makes sense that he would be searching for evidence that could negate any innocent explanation why the applicant was out past his curfew. R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, says nothing about the evidence being necessary. The question becomes: was there a reasonable prospect of finding a receipt to substantiate the applicant was out past his curfew without a lawful excuse? In the alternative, if P.C. Cerson’s reasoning was “off,” it was pretty close.

57In the Crown’s submission, I should proceed on the basis that Constable Sibley never asked P.C. Cerson to search the car or told him what he saw on CPIC. Since there are subjective and objective considerations in assessing the stated reasons for the search, the subjective analysis of Cerson’s reasons can only be assessed on the basis that he searched on his own initiative. All he knew was that the applicant was “arrestable.” What was or was not said between the officers cannot be sorted out on this record. Finally, if Constable Sibley told P.C. Cerson the applicant was a “surveillance person,” as well as “violent, armed and dangerous,” there were no problems with the search pursuant to Caslake.

58The issue of discoverability arose in two areas. First, in the original submissions, while not placing much reliance on the argument, the Crown argued the evidence was discoverable because the console was loose, the car was going to be seized and stored, with the police having the responsibility to secure the vehicle. Given Constable Cerson’s evidence about how obvious the loose console was, anyone who got into the car would immediately notice how loose it was, even if there was incidental contact with the console. Mr. Taylor concedes this argument, in effect that somebody was going to find the gun when the car was towed, is somewhat hampered by the officers not having taken any photographs of the inside of the Mazda.

59The second discoverability issue is whether Constable Sibley had grounds to search the car, did so and would inevitably have found the gun and drugs. It was the applicant’s submission that the CPIC entries did not give Sibley grounds to search the car. The Crown takes the opposite view. Mr. Taylor submits that Sibley wanted the car searched and was going to search in any event. In effect, removing Cerson from the fact situation, the gun and drugs were going to be discovered by Sibley because during his search he would have inevitably determined the fittings were loose and found the items.

60Balancing the first two Grant criteria, Mr. Taylor says the evidence should be admitted. When the third criteria is examined, the gun and drugs are highly reliable evidence and important to the Crown’s case, favouring admission. When all of the factors are considered, the evidence should be admitted.

The Law

61While breaches of ss. 8 and 9 of the Charter are conceded, a brief examination of those sections and the common law power to search incident to arrest will help inform the s. 24(2) analysis.

62Section 8 of the Charter protects individuals from unreasonable searches and seizure. A seizure is a non-consensual taking by a state agent of anything in which the person asserting a s. 8 right has a reasonable expectation of privacy. At its most fundamental, s. 8 preserves an individual zone of privacy against state intrusion with the state permitted to enter that zone when the intrusion meets a reasonableness standard. R. v. Harris (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193 (Ont. C.A.), at para. 33.

63The section only protects an individual’s reasonable expectation of privacy. Reasonableness is evaluated by balancing that privacy interest against the state interest in law enforcement. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. In order for a search to be reasonable, it must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at p. 278.

Search Incident to a Lawful Arrest

64One of the issues on this application is the extent to which officers can search motor vehicles incident to arrest. The common law power to do so is an exception to the ordinary requirements for a reasonable search because it requires neither a warrant nor independent reasonable and probable grounds. Instead, the right to search arises from the fact of the arrest and is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant. Since the legality of the search is derived from the legality of the arrest, if the arrest is later found to be invalid, the search will be as well. Caslake, at para. 13.

65In Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, the Supreme Court identified three important limits on the power to search incident to arrest: first, the power does not impose a duty, the police have some discretion whether to conduct a search; second, the search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the public, the accused, that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions; third, the search must not be conducted in an abusive fashion. Here, the second limit is most in play.

66The limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority to search arises out of a need for the law enforcement authorities to gain control of things or information which outweigh the individual’s interest in privacy, not as a result of the reduced expectation of privacy of a person arrested. Automobiles are legitimately the objects of search incident to arrest because they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles. Caslake, at para. 15.

67Simply put, the search is only justifiable if the purpose of the search is related to the purpose of the arrest (Caslake, at para. 17). As Doherty J.A. wrote in R. v. Belnavais (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195, at p. 123, “[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest.”

68The main purposes of a search incident to arrest are ensuring officer and public safety, the protection of evidence, and the discoverability of evidence that can be used at the arrested person’s trial. To be “truly incidental” to the arrest, the police must be attempting to achieve some valid purpose connected to the arrest. Whether one of those objectives exists will depend on what the police were looking for and why, with both subjective and objective aspects to the issue. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. In addition, the officer’s belief the purpose will be served must be a reasonable one. Caslake, at par. 19.

69The threshold is not reasonable and probable grounds, the threshold for conducting other searches. What is required is that there be some reasonable basis for doing what the officer did. The police would be entitled to search for weapons incident to a valid arrest, if under the circumstances it seemed reasonable to check whether that person might be armed. The higher standard would require the officer to demonstrate a reasonable belief the person was armed.

70There must be a valid objective served by the search. An objective cannot be valid if it is not reasonable to pursue in the circumstances of the arrest. Caslake, at para. 20. For example, in R. v. Capara 2006 CanLII 18518 (ON CA), [2006] O.J. No. 2210 (C.A.) a search for a gun when the driver had been arrested for not giving the officer his name and obstructing a police officer was not a search incident to arrest. However, because the officers had a second basis for the search, attempting to find the driver’s true identity, the search was valid.

71The Court of Appeal judgment in R. v. Wilson, [2006] O.J. No. 4461 bears some similarities to this case. Police were patrolling an area in which a sexual assault had occurred. When the officer pulled into a gas station, he saw Wilson at one of the gas pumps acting in a suspicious manner. The officer ran the license plate of the car Wilson was filling and saw it was owned by an older woman in Mississauga. The officer mistakenly thought the colour of the car did not match the registration colour and decided to follow the car when it left the station. As he followed for about a kilometre, the car weaved in and out of lanes, moving across the while lines. The officer activated his lights and pulled the car over. Wilson, who appeared nervous and paranoid to the officer, said he was driving his mother-in-law’s car and that she lived in Mississauga. He produced his driver’s license but had no ownership or insurance papers.

72When the officers checked CPIC, they saw Wilson was on bail for possession of marijuana, weapons, assault and attempted murder with conditions including that he not be in Toronto except for limited stated purposes, and was not to possess any drugs, weapons or cell phones. An officer had seen a cell phone in Wilson’s pocket and he was arrested for breaching that condition. The term had been deleted two months earlier. The officer never asked Wilson why he was in Toronto to determine if he was in compliance with an exception in the release order. During a pat-down search the officers found $2,315.16 mostly in $10, $20 and $50 bills. Throughout, Wilson remained fixated on his vehicle but never told the police the term had been deleted. Police searched the car and found 54 grams of crack cocaine.

73The officer who conducted the search was not the arresting officer. He had been in the area and went to the scene. He gave the following reasons for his search of the car after Wilson’s arrest: The accused’s nervousness and body language, there was something more to the situation than a simple fail to comply charge, there was something in the front of the car that was extremely bothersome, and it really bothered Wilson that another officer was at his car. Relying on the violence and the firearms charges, the officer concluded there probably was a gun in the front seat of the car and that was making Wilson nervous.

74The trial judge dismissed Wilson’s Charter applications under ss. 8, 9 and 24(2). Her Honour found the search was clearly incident to arrest for the purpose of “ensuring public and police safety, the protection of evidence from destruction and the discovery of evidences that can be used at the arrestee’s trial or by reference to some other valid purpose” citing Caslake. There was sufficient circumstantial evidence to justify a search of the vehicle and a reasonable prospect of securing evidence of illegal activity.” He appealed.

75The Court of Appeal found the initial stop was justified under s. 216 of the Highway Traffic Act and that the events that transpired thereafter were lawful, continuing:

2. … The appellant appeared to be in breach of his bail giving the officer reasonable grounds to arrest. The search of the interior of the vehicle was justified as a search incident to arrest. The trial judge overstated the search power by stating that it could be justified to search for securing evidence of "illegal activity". However there was evidence to sustain a proper search incident to arrest for the purpose of securing evidence of the two apparent breaches of the recognizance. Accordingly there was no violation of s. 8 of the Charter.

3. In oral argument the appellant drew to our attention the decision in R. v. White, [2006] O.J. No. 1677 (Ct. J.). The issue raised in White was not raised in this case in relation to the lawfulness of the arrest. To the contrary, it was conceded by the defence that the arrest was lawful based on the CPIC information and that it was reasonable for the officers to rely on CPIC. Moreover, there was evidence from experienced police officers of the general reliability of CPIC. The reliability of CPIC information was raised in oral argument only in connection with an alleged violation of s. 7 of the Charter. However, there was no proper evidentiary foundation for that argument and no proper notice given by the defence of any such alleged violation.

Section 9 of the Charter

76Section 9 of the Charter guarantees the state’s ability to interfere with personal autonomy will not be exercised arbitrarily. Grant, at para. 21. The purpose of the section is to protect individuals from unjustified state interference. Grant, at para. 20

Section 24(2) of the Charter

77Section 24 of the Charter states:

(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.

(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.

78The onus is on the applicant to establish the evidence should be excluded on a balance of probabilities. R. v. Collins, (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.), at para. 30.

79While the approach to s. 24(2) changed with Grant, there is a common theme, the need that the trial be fair. A fair trial “is one that satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.” Grant, at para. 65, quoting from R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 45. Trial fairness is a multi-faceted and contextual concept, one that cannot be reconciled with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained. Trial fairness is better conceived as an overarching systemic goal than a distinct stage of the s. 24(2) analysis. Grant, at para. 65.

80The purpose of s. 24(2) is to maintain the good repute of the “administration of justice.” While that term is often used to indicate the processes by which those who break the law are investigated, charged and tried, more broadly it embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. Grant, at para. 67.

81The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. While excluding evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on the immediate reaction to individual cases. Rather, it looks to whether the overall repute of the justice system will be adversely affected by the admission of the evidence in the long term. It is an objective inquiry: whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude the admission of the evidence would bring the administration of justice into disrepute. Grant, at para. 68.

82The focus is prospective. Section 24(2) starts from the fact the breach has already done damage to the administration of justice and seeks to ensure evidence obtained through the breach(es) does not further damage the repute of the justice system. Grant, at para. 69.

83Finally, the focus of s. 24(2) is societal, not aiming at punishing police or compensating the accused. Rather, the concerns are systemic: focusing on the broad impact the admission of the evidence will have on the long-term repute of the justice system. Grant, at para. 70.

Discoverability and s. 24(2)

84Discoverability refers to situations where unconstitutionally obtained evidence of any nature could have been obtained by lawful means had the police chosen to adopt them. R. v. Cote 2011 SCC 46 at para. 66 In Cote, the Supreme Court found discoverability remains a relevant factor under the Grant s. 24(2) analysis. While playing a useful role, discoverability is not determinative and a finding the evidence was discoverable should not be seen as necessarily leading to admissibility. Of note, courts should not engage in speculation. Where it cannot be determined with any confidence whether evidence would have been discovered, in the absence of a Charter breach, it will have no impact on the s. 24(2) analysis.

The Three Avenues of Inquiry

85The Supreme Court in Grant identified three avenues of inquiry, each based in the public interest engaged by s. 24(2) viewed in a long-term, forward- looking and societal perspective: the seriousness of the Charter-infringing state conduct, the impact of the breach on the accused’s Charter-protected interests, and society’s interest in the adjudication of cases on their merits.

The Seriousness of the Charter Infringing Conduct

86First, examining the seriousness of the violation(s), the question is a fact-specific determination whether admitting the evidence would bring the administration of justice into disrepute by sending the message to the public that courts will condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct. Grant, at para. 72.

87State conduct resulting in Charter violations varies in seriousness. Identifying where along the “misconduct continuum”³ the state conduct lies is the essential question in the first avenue of inquiry. What is important is the proper placement of the police conduct along the fault line, not the legal label attached to the conduct. R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), cited with approval in R. v. Harrison, 2009 SCC 4; 2009 SCC 34, 245 C.C.C. (3d) 86 at para. 23. At the one end are blameless, inadvertent or minor Charter violations, the admission of which would minimally undermine public confidence in the rule of law. Negligent conduct is further along the continuum, reflecting a more serious breach. At the other end, is evidence obtained through willful, reckless or blatant disregard for Charter rights, the admission of which would inevitably have a negative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute. Grant, at para. 74. The more severe or deliberate the state conduct that led to the Charter violation, the greater need for courts to dissociate themselves from that conduct by excluding the evidence linked to the conduct. Grant, at para. 72.

88Extenuating circumstances, such as the need to prevent the disappearance of evidence may reduce the seriousness of the breach. Similarly, good faith on behalf of the police will reduce the need for the court to dissociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged. Negligence or willful blindness cannot be equated with good faith. Conduct revealing willful or flagrant disregard of the Charter may require the court to dissociate itself from such conduct. Deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. Trial courts are cautioned to keep in mind that for every Charter breach that comes before the courts, many others may to unidentified and un-redressed because they did not turn up relevant evidence leading to a criminal charge. Evidence that the Charter infringing conduct was part of a pattern of abuse will also tend to support exclusion. Grant, at para. 75.

89Discoverability is a factor in assessing the seriousness of the breach. If the evidence was not otherwise discoverable, the more serious the breach. If the officers could have conducted the search legally but failed to turn their mind to obtaining a warrant or proceeded under the view they could not satisfy a judicial officer they had reasonable and probable grounds, the seriousness of the state conduct is heightened. Cote, at par. 71.

The Impact of the Breach(es) on the Charter-Protected Interests of the Accused

90The second avenue of inquiry is the impact of the breach(es) on the applicant’s Charter-protected interests: here, what is the impact on the applicant’s right to be free from unlawful detention and illegal and unreasonable searches. To what extent did the breach(es) actually undermine the interest protected by the right infringed? Chief Justice McLachlin put the issue as follows in R. v. Harrison, at para. 28.

This factor looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact? These are among the questions that fall for consideration in this inquiry.

91Again, there is a spectrum to be examined. The impact of the breach(es) may range from fleeting, to technical, to profoundly intrusive. The more serious the impact, the greater the risk the admission of the evidence may signal to the public that Charter rights are of little actual avail to citizens, breeding public cynicism and bringing the administration of justice into disrepute. Grant, at para. 76.

92Determining the seriousness of the infringement requires an examination of the interests engaged by the infringed right and the degree to which the violation impacted on those interests. The more serious the incursion, the greater the risk the admission of the evidence would bring the administration of justice into disrepute. For example, the interests engaged when an accused person’s right to silence and to choose whether or not to speak to authorities all stem from the principle against self-incrimination. An unreasonable search may impact on the protected interest of privacy and human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. Grant, at para. 77 and 78.

93Discoverability is relevant in assessing the impact of the breach on the Charter-protected right interests of the applicant. Grant, at para. 137 and Cote at para. 72. If the search could not have occurred legally, it is considerably more intrusive of the applicant’s reasonable expectation of privacy. Whether having the grounds to obtain a warrant and failing to do so can, in some circumstances, be an attenuating factor in relation to the breach, R. v. Cole at para. 93, or an aggravating one. Cote, at para. 71. If the officers would have been able to demonstrate to a judicial officer that they had reasonable and probable grounds to believe an offence had been committed and evidence would be found will tend to lessen the impact of the illegal search on the applicant’s privacy and dignity interests the Charter protects. Cote, at para. 72

Society’s Interest in an Adjudication of the Merits

94The final avenue is society’s interest in an adjudication on the merits. Society generally expects criminal allegations will be tried on their merits. The question is whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence, reflecting society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law.” In assessing whether the evidence should be admitted, the court must consider not only the negative impact of admission on the repute on the administration of justice but the impact of failing to admit it. Grant, at para. 79.

95The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter’s affirmation of rights. However, public interest in truth-finding remains a relevant consideration and the reliability of the evidence is an important consideration in this line of inquiry. Excluding relevant and reliable evidence may undermine the truth-seeking function and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

96Those considerations must be weighed against factors favouring exclusion in order to “balance the interests of truth with the integrity of the justice system.” A court must ask whether excluding the evidence, extracts too great a toll on the truth seeking function. Grant, at para. 81 and 82.

97The importance of the evidence to the prosecution’s case is another factor that may be considered. Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety or the prosecution’s case. Excluding highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy guts the prosecution. Grant, at para. 83. As Doherty J.A. held society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont. C.A.), at para. 31.

98The seriousness of the offence, while a relevant consideration cuts both ways. Failing to prosecute serious charges may have an immediate impact on how citizens view the justice system. However, it is the long-term repute of the administration of justice that is the focus of s. 24(2). The public has a vital interest in seeing determinations on the merits. The public also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes are high for the accused. Grant, at para. 84.

Balancing the Factors

99The three avenues of inquiry provide trial judges with a decision tree. Grant, at para. 86. Having examined the three lines of inquiry, the judge determines whether, on balance, the admission of the evidence would bring the administration of justice into disrepute. Grant, at para. 85. There is no overarching rule how the balance is to be struck; mathematical precision is not possible. Grant, at para. 86.

100In R. v. Harrison, at para. 36, McLachlin C.J.C. set out the approach as follows:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

101The Supreme Court took comfort in the fact that patterns emerge with respect to particular types of evidence. The patterns serve as guides to trial judges. In Grant, the Supreme Court examined various types of evidence including “Non-bodily physical evidence,” the type of evidence at issue on this application. The Court found jurisprudence offered guidance in evaluating the extent to which the accused’s reasonable expectation of privacy was infringed. For example, dwelling houses attract a higher expectation of privacy than a place of business or motor vehicle. In other cases, human dignity might be compromised as in strip searches. Finally, the Court held that reliability issues with physical evidence will not generally be related to the Charter breach. This consideration would tend to favour the admission of the evidence. However, the seriousness of the offence and reliability of the evidence should not be permitted to overwhelm the s. 24(2) analysis. Otherwise, those charged with serious offences would be deprived of the protection of individual freedoms afforded to all Canadians under the Charter. R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 40

Analysis

Findings of Fact and Inferences

The Stop

102The applicant does not dispute Constable Sibley acted lawfully in stopping Mr. Bacchus. He had driven for about a kilometre without having his rear lights on and had just left a plaza where the officer honestly believed there were no businesses open at 4:00 a.m. While the lights had been turned on just before the stop, leaving the plaza at that time and driving with the lights out for about a kilometre were valid justifications to stop the Mazda.

The Arrest

103The applicant was arrested because of a series of mistakes. First, the sequence of events was set in motion by the applicant’s counsel’s error in completing and/or signing the Form 10A that included a curfew condition. This is an understandable error, one that occurs periodically where there have been previous variations. The focus of the variation sought at that time appears to have been the applicant’s communications with his co-accused. Likely, counsel referenced an earlier recognizance when completing the form. While the Crown signed the form, I cannot find any state misconduct in the preparation of the form.

104The remainder of the story has significant gaps on this record. Why and how the TPS did what it did and failed to do what should have been done are not explained. Some gaps can be filled with reasonable inferences. Others cannot.

105It is a reasonable inference that someone in a court office prepared the recognizance that was entered on CPIC on February 28, 2011 and sent it to the Old City Hall where a Justice of the Peace would be available for the applicant and his surety to sign the release order. I accept what the applicant told the TPS officer on June 10, 2011. When he went to sign the new recognizance, he refused because it included a curfew clause that had been deleted months earlier.

106Somehow the unsigned recognizance was sent to the Records Management Office where CPIC entries are inputted. Whether every recognizance, complete or incomplete, is sent to that office is unknown. If not, why someone would send a release order that was incomplete on the front and was not signed on the back by the accused or his surety is unknown.

107Once the unsigned recognizance arrived at the Records Management Office, how and why a police officer or civilian member of the TPS would input information from an incomplete and unsigned recognizance is unknown, but it happened. I agree with the Crown that this appears to have been a clerical error, albeit a surprising one: surprising in the sense that it could happen. The clerical error reflected negligence by the TPS.

108CPIC entries dealing with release orders play a significant role in policing. Those entries have the potential to seriously impact on the rights and safety of citizens. Police officers have to be able to rely upon the accuracy of the entries to effectively fulfill their duties. The importance of accuracy in inputting information into CPIC is well illustrated by this case. Two further examples will illustrate the problems that can arise. First, if an order was made that included terms a surety would not sign, an officer would be unable to determine if an accused were breaching a release order. Second, if there was a non-communication clause with a complainant, a variation was granted removing that clause but the surety refused to sign, and the accused went to the complainant’s home to speak to him or her and the police were called, CPIC would show the accused was not breaching the release order.

109There is no evidence on this record that the entering of unsigned release orders is a frequent occurrence with the TPS or any other police service. I accept P.C. Sibley’s evidence that he has never encountered inaccurate information on CPIC.

110Had the actions or inactions of the TPS ended with the entering of the unsigned release order, the state actions in relation to CPIC would have been limited to one negligent clerical error by the police service that is likely responsible for more CPIC entries than any other police service in Canada. However, there is more to this story. The ‘more’ changes that view of the TPS’s involvement.

111First, while the entering of an unsigned recognizance may be a “one-off,” there are more problems with the entries P.C. Sibley looked at on August 14, 2011. The officer relied on the outstanding charges the applicant was facing to increase his suspicions about why the applicant was driving out of a plaza in which nothing was open with his lights out at 4:00 a.m. He testified the outstanding charges were failing to comply with a recognizance, possession of cocaine for the purpose of trafficking, possession of property obtained by crime and escaping from lawful custody. Those offences are indicated under an “Awaiting Disposition” entry and reveal two problems. First, the failing to comply charge appears to relate to the incident referenced earlier in which he was unconditionally released. He was never charged with failing to comply that night yet it appeared on CPIC. The entry was dated at June 6, 2011 at 13:25. If that is the entry time, the TPS appears to have the capacity to complete CPIC entries within a very short period of time. How and why there is any entry that appears to show the applicant was “Awaiting Disposition” when he was unconditionally released is unknown.

112Second, with respect to the other “outstanding charges,” with the exception of the drug charge, all were either withdrawn or the applicant was discharged at the preliminary inquiry twenty months earlier. The records had never been updated.

113Next, in relation to the unsigned recognizance entry, it was not as if no one noticed the first CPIC error. The TPS was aware the entry was wrong on June 6, 2011, yet took no steps to correct the error. This a serious failure to insure that CPIC entries are accurate. P.C. Mavrou attached both orders to his Supplementary Record of Arrest. In the absence of any contrary evidence, I can infer the Supplementary Record of Arrest was distributed as indicated at the bottom of the form, including that Records and Information Security and Criminal Records Update received copies. Those who were responsible for inputting information into CPIC were aware of the problem two months before the applicant’s arrest in Peel. On this record, they did nothing to correct the erroneous and misleading information. This failure to act was a significant contributing factor to the Charter breach and adds to the seriousness of the negligent clerical error. Given the apparent speed with which CPIC entries were made in relation to the June 10, 2011 unconditional release, on this record it would be reasonable to infer the TPS had sufficient time to address the issue. Even if the June, 2011 entry was unusually fast or I am misinterpreting that entry, the Form 10A that led to the unsigned recognizance was signed on February 22, 2011. The unsigned recognizance and terms were entered on February 28, 2011.

114The role of the TPS is further aggravated by the failure to assist the Crown and the Court in explaining what occurred. While it is not surprising that someone at the records office would not appear voluntarily “on behalf of the TPS” without internal approval or a subpoena, Mr. Taylor spoke to the “second in command” of that unit so a person in authority at that unit was aware of this issue. Either that officer or someone else at Records Management told the Crown the TPS’s counsel would contact them. There is no evidence or indication the TPS ever followed up in any way. In addition, I accept the Crown’s submission that there is nothing to suggest any further inquiries or subpoenaing anyone would have borne fruit in relation to the outstanding issues. I draw an adverse inference in relation to the TPS involvement because the service knew there was an issue with entries that police service put on CPIC and chose not to assist the prosecution or the Court.

115While subpoenaing someone from the TPS may have been an exercise in futility, it might have got their attention more than Mr. Taylor’s inquiries. While I appreciate Mr. Taylor had not been assigned to the case until shortly before the trial started and make no criticism of his conduct of the case, the Crown Attorney’s office had twelve months to try to get explanations for what happened. It would have been possible to subpoena the Chief of the TPS or his designate without an adjournment. There is no requirement that service occur a specified number of days before the appearance although, as much notice as feasible, is a good and preferred practice. However, I accept Mr. Taylor’s submission that whether any concrete information would have been forthcoming is uncertain.

116Returning to the roadside on August 14, 2011, I find P.C. Sibley was entitled to rely on the CPIC curfew entry and arrest the applicant. Police officers are entitled to rely on the CPIC records as a basis for the arrest. I accept his evidence that other persons had told him their condition had been varied when it had not. An officer is not required to accept everything a detainee tells him or her. R. v. Sheppard 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 23; R. v. Bush, (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.). I also accept the officer intended to further investigate the issue at the division. Understandably, the intervening discovery of the gun and drugs made those inquiries unnecessary. It would have made no difference had he found there was no curfew after the items were found. He would not have given the applicant the gun and drugs and unconditionally released him.

117Neither am I persuaded Constable Sibley should have or was required to make inquiries from Records Management from the roadside. There is no evidence the applicant told P.C. Sibley about the June 10, 2011 arrest by the TPS which might have given more credence to his position. In addition, when P.C. Mavrou made roadside inquiries on June 10, he was told the curfew condition was valid. It was only when he got to 54 Division and had the release orders faxed to him that he was able to determine there was no curfew in existence. I am not aware of any way to have release orders faxed to the roadside. In addition, there was only eight minutes between the arrest and the gun and drugs being found.

118The final chapter in the sequence of events was the applicant’s failure to enter the last variation, a release order that did not contain the curfew clause. Having gone back to court to obtain the order he thought he was going to get in February, 2011, there is no explanation why he did not enter the recognizance.

The Search

119Both counsel agree the validity of P.C. Cerson’s search is determined on his evidence despite the conflict between him and Constable Sibley about what he was told before the search. Sibley says he believed he told Cerson what he had seen on CPIC and asked him to search to see if the applicant stashed anything when he saw he was being pulled over. Cerson says he was not asked to search but did so, on his own initiative because it was his usual procedure. He said all he knew was that the applicant was “arrestable” for failing to comply.

120In proceeding on this basis, I am not rejecting P.C. Sibley’s evidence that he asked Cerson to conduct the search. In order to examine Cerson’s subjective belief I had to proceed on what he says he was told. In those circumstances, it is not necessary to make any findings of credibility on this point although I accept that Sibley wanted the car searched, whether he told Cerson or not.

121When first asked what he was going to search for in examination-in-chief, he said it was for “evidence of an offence, and for other weapons, or other officer safety issues.” Later, in his examination-in-chief, when asked what he was going to search, he said he was going to search the entire car. When Mr. Taylor asked why he would conduct that search, he said it was mostly for evidence, to make sure there were no weapons or explosives in the car because it was going to be seized and towed. He was searching for evidence of a criminal offence, but had no reason to believe the applicant had committed any offence other than failing to comply with his curfew.

122In cross-examination, counsel asked if he was going to conduct a general search of the car. P.C. Cerson replied that he was searching for evidence the applicant had failed to comply with his curfew such as a receipt that would show he had been at an establishment after his curfew. He agreed with Ms. Cremer that the applicant being in his car at the roadside at 4:15 a.m. was pretty good evidence of the breach. Later in cross-examination, he said he was searching the car because the applicant had been arrested and the car was going to be seized and towed. He assumed all the officers at the scene shared the view that officers could search any vehicle that was going to be seized and towed after the driver’s arrest.

123Two issues arise: first, why did P.C. Cerson’s search the car? Second, were his reasons sufficient to justify a search incident to arrest?

124Why did P.C. Cerson search the car of his own initiative? I find the officer searched the car primarily because he believed the applicant’s arrest and the seizure of the car, with nothing more, gave him the authority to do so. Throughout his evidence he gave various reasons including “for other weapons or other officer safety issues,” “for evidence of an offence,” “mostly for evidence,” to make sure there were no weapons or explosives because the car was going to be towed and for evidence regarding the fail to comply charge.

125Some of his answers could not justify a vehicle search incident to arrest, others did. While his evidence that he was searching for evidence of an offence is somewhat ambiguous, it is not inconsistent with his initial answer in cross-examination that he was looking for evidence of the offence the applicant committed. When questioned further he said he was looking for receipts that might provide evidence of the offence charged. While urged to do so, I am not prepared to reject his evidence that he was at least, in part, looking for evidence of the breach.

126I turn next to whether Constable Cerson’s reason or reasons for searching the car, were truly incidental to the arrest? Was there some reasonable basis for the search based on officer or public safety, the protection of evidence or the discoverability of evidence that could have been used at the trial for the offence for which the applicant was arrested? As regards his primary basis for the search, searching a car because the driver has been arrested and the car seized is not a search that is truly incidental to the arrest, nor does it provide a reasonable basis for the search based on officer or public safety or for the protection or discovery of evidence to be used at the trial on the failing to comply charge.

127Turning to the officer’s other answers, searching the vehicle for “other weapons” when none had been found when he started the search or for other officer safety issues does not justify the search. Based on what Constable Cerson said he knew, there were no concerns the applicant had weapons. If his answer he was searching “mostly for evidence” of a criminal offence, was not linked to the failing to comply, there was no legal basis to conduct a general search for any criminal offence. Searching for weapons or explosives because the car was to be towed and seized, if a basis for a search incident to arrest without more, would mean any car could be searched regardless of whether there was any reasonable basis to conclude that type of search was justified. Constable Cerson knew nothing about the applicant other than that there were reasonable and probable grounds to believe he had breached his curfew.

128As for the officer’s reference to looking for receipts, that would be a valid reason for the search as noted earlier from Wilson at para. 72 if it was a reason or the reason Constable Cerson searched the car. While it took some time to get to that answer, I accept his evidence that was something he was looking for and that it was to support the fail to comply charge. It is not clearly inconsistent with his earlier answer that he was looking for evidence of an offence and that he was only aware of one offence the applicant was alleged to have committed. He was not shaken in cross-examination. I did not detect that he was engaging in an after-the-fact reconstruction of his reasoning.

129I conclude P.C. Cerson misunderstood the extent of his right to search motor vehicles incident to arrest, believing that an arrest and car seizure justified a search. Like P.C. Mullroy, he believed he could search any car that had been driven by a person who was arrested as a search incident to arrest. That is not the law in Canada. Any doubts in that area were resolved by the Supreme Court of Canada in Caslake, fourteen years before this arrest and search.

130I agree with Mr. Taylor that Constable Cerson exhibited confusion with respect to his right to search in some areas, giving grounds that did not justify the search. In other answers such as the receipt, he was correct. I accept the Crown’s argument that his evidence revealed confusion as to the extent of his search powers but not that he was attempting to mislead the Court. That he could have justified his own arrest of the applicant for possession of marijuana based on the green leafy flakes scattered about the passenger area of the car and searched the car incident to that arrest yet failed to do so supports his credibility.

131Before leaving Constable Cerson’s evidence, one further issue requires examination. The applicant submitted the police required no further evidence of the breach. The applicant was found out of his home at 4:00 a.m. Nothing more was needed to prove the charge. There is no law that requires officers to stop investigating or attempting to strengthen their case after reasonable and probable grounds to arrest exist and the accused has been arrested. See: R. v. Wilson [2006] O.J. No. 4461. Indeed, on occasion, it is further investigation that casts doubt on the validity of the arrest as the applicant learned on June 10, 2011.

132The applicant submitted Constable Sibley lacked grounds to search the vehicle. I disagree. While I rejected Constable Cerson’s references to searching for other weapons or officer safety, I reach a different conclusion in regard to P.C. Sibley. He had more information than Cerson, information that provided him with the bases upon which to search the car for officer and public safety concerns. First, at the time of the arrest and search, Sibley honestly believed he had made a valid arrest that permitted a search incident to arrest if the criteria noted earlier were satisfied. Second, I find without engaging in speculation that P.C. Sibley would have found the gun and drugs had he searched the car. I accept that he wanted to car searched because he concluded the applicant had a weapon in the car, whether he told Cerson to conduct the search or not. I find that had there been no other officers at the scene he would have searched the car on his own. Accepting Constable Cerson’s evidence about the loose parts around the console area, Sibley would have found the gun and drugs. As Mr. Taylor put it, removing Cerson from the fact situation would inevitably have resulted in Sibley finding the gun and drugs. Finally, even with Cerson’s involvement and after he found the items, Sibley assisted with the search by looking in the front passenger area including the glove box and console area, lending further support to the conclusion that he would have found the gun and drugs had Cerson not done so.

133Second, P.C. Sibley could have relied upon the suspicious circumstances of the applicant leaving the plaza without tail lights at 4:00 a.m., the outstanding charges including escaping lawful custody, that he was a surveillance person in relation to a homicide, and most importantly, that there were cautions the applicant was “armed and dangerous” and “violent”. That constellation of factors provided P.C. Sibley with sufficient grounds to lawfully search the car incident to arrest for officer and public safety. He was concerned that the applicant had stashed something in the area of the driver’s seat. I appreciate the “armed and dangerous” entry was dated, but it remained on CPIC, had not reached the expiry date and I accept the officer’s evidence that he had never found entries to be unreliable. It was not one or two of these factors that provided the bases for the search. It was the constellation of factors in the circumstances in which they were known to the officer that provided the grounds to search.

134P.C. Sibley testified he believed the applicant had a weapon in the car. That is why he asked Cerson to search the car. Whether that belief was objectively reasonable so as to support the issuance of a warrant need not be determined because what was required was a reasonable basis to search the car for weapons. Subjectively, he obviously had grounds and I find those grounds were objectively reasonable. In the words of Cloutier v. Langlois, he had a valid purpose in pursuit of the ends of criminal justice such as the discovery of an object that may be a threat to public or police safety. In the words of Caslake, he was entitled to search the car for weapons incident to the arrest because in the circumstances it seemed reasonable to check whether that person might be armed. See also: R. v. Humphrey 2011 ONSC 3024.

135I do not accept the applicant’s argument that given the dated entries regarding his dispositions that unless he acted violently that night there were no grounds to search the car. The officer had to make a decision on the side of the road in the middle of the night. To ignore the CPIC entry would have been irresponsible.

136As noted earlier, Constable Sibley did assist in a further search of the car after the gun was found and was in the area where the gun and drugs were located. I accept P.C. Cerson’s evidence that the trim and molding on the car were very loose and would have been moved by anyone searching the car.

137I turn next to the application of those findings of fact to the s. 24(2) analysis.

The Three Avenues of Inquiry Applied

The Seriousness of the Charter Infringing Conduct

138To determine where along the “misconduct continuum” the breaches lie, requires an examination of the conduct of the TPS, the conduct of Constables Sibley and Cerson, whether there is evidence of good faith or otherwise in all the police conduct, whether the conduct reflects a pattern of Charter infringing state conduct or isolated incidents, whether the fact charges were laid against the women in the applicant’s car is a relevant consideration, the location searched, the nature of the breaches, whether the drugs and gun were otherwise discoverable, the relevance of the applicant being on pre-trial release in general, and the actions of the applicant.

139First, I have to consider the police conduct: The Charter infringing conduct was the result of actions or inactions by two police services. In submissions, Mr. Taylor queried whether the PRP were, in effect, “saddled” with the TPS conduct. What is being examined here is the seriousness of Charter infringing conduct by the state. Both police services were engaged in state conduct. Accordingly, the conduct of both is relevant in the analysis.

140The TPS’s entry of the unsigned recognizance reflected a significant degree of negligence. While entering an unsigned release order may very well be a “one off”, the entries viewed by Constable Sibley contained numerous other errors, aggravating the seriousness of the state conduct. That the TPS were aware of the inaccurate release entry yet did nothing to correct it, significantly aggravates the seriousness. Doing nothing when notified of the error, displayed a willful and reckless disregard for the accuracy of police records that placed the applicant’s Charter rights in jeopardy.

141The seriousness was further enhanced when the TPS refused to assist the Crown and inferentially the court, when the problem was identified. While the breaches occurred on August 14, 2011, police conduct after a breach is a relevant consideration in assessing the seriousness of the conduct. In R. v. Harrison, McLachlin C.J.C. addressed the trial judge’s finding the officers in that case gave misleading testimony as follows at para. 26:

I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).

142While no one from the TPS testified in a misleading manner, as the officers did in Harrison, that the TPS would not assist is a relevant consideration in assessing the seriousness of the violation although not to the extent that giving misleading evidence would.

143There is nothing from which it could be inferred the TPS’s initial error was intentional or that any further conduct referenced above was a deliberate effort to violate Mr. Bacchus’ rights. However, it is impossible to see how any semblance of good faith could be found given the extent of the negligence and willful disregard of Charter rights shown by the TPS.

144In addition, caselaw reveals this was not simply a “one-off” for inaccurate information being available on CPIC. In R. v. Wilson [2003] O.J. No. 4465 (S.C.J.), affirmed [2006] O.J. No. 4461, a cell phone possession restriction remained on CPIC despite having been removed two months before an arrest based on Wilson possessing a cell phone. In R. v. Clark [2003] O.J. No. 1323 (C.J.) the recognizance had not been in effect for 10 months yet remained on CPIC. In R. v. Harris, (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193 (Ont. C.A.) an accused was arrested for breaching his release order when the charges had been disposed of eight days earlier. It appears the case proceeded on the basis the police did not have time to update CPIC, a reasonable inference, and no Charter issue was raised on the basis of the inaccurate record. All of these were TPS cases. No doubt, the TPS would be as frequent a contributor to CPIC as any police service in Canada. However, that does not relieve that service from ensuring the accuracy of their records, particularly when they are notified of the problem.

145The reported errors are not limited to the TPS. See: R. v. J.F.R., [1991] Y.J. No. 235 (Yukon Terr. Ct.), Lord v. Canada (Attorney General), 2001 BCSC 212, [2001] B.C.J. No. 205 (S.C.), Khadikin v. Nelson (City), 2003 BCSC 1987, [2003] B.C.J. No. 3062 (S.C.).

146Turning next to the PRP conduct, P.C. Sibley acted properly throughout. I accept his evidence that he had never had a problem with CPIC accuracy in the past. He did not intentionally or negligently violate the applicant’s rights. He acted in good faith, relied on CPIC, as he was entitled to do. I accept he was going to make further inquiries when he went to the division.

147Constable Cerson was going to search the Mazda primarily because the applicant had been arrested and the car was going to be seized and towed. To the extent that he believed that was all he needed to search, since the law had been clarified fourteen years earlier, his actions cannot be viewed as occurring in an area of legal uncertainty. Neither can ignorance of the law equate with good faith. As the Supreme Court of Canada held, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith.

148The evidence shows this basis for searching a seized car after an arrest was not an isolated incident. First, the officer testified searches of this nature were his normal procedure when cars were seized after an arrest of the driver. Second, on the evidence in this case, it appears to be the common belief among at least some PRP officers that an arrest and seizing and towing a car provides grounds to search. In addition, there has been at least one previous finding that a senior PRP officer was unfamiliar with the search incident to arrest law. See: R. v. Martin and Campbell 2012 ONSC 2298.

149It is disturbing that it appears a number of officers from one of Canada’s largest municipal police services are unaware of their search powers. Viewed in isolation, this is the type of conduct that courts have to seriously consider dissociating themselves from lest the police service and the public get the impression courts do not protect Charter rights.

150However, there is more to P.C. Cerson’s reasons for the search on this record. He gave several other reasons for the search. While some would not support the search, at least one did. He said he was searching for evidence of an offence, only knew of one offence the applicant was alleged to have committed and clarified in cross-examination that he was looking for evidence of the breach. That would justify the search because the search was linked to this arrest as a means of looking for evidence to support the failing to comply with the curfew. I accept that while not the primary reason for the search it was one of the reasons he embarked on the vehicle search.

151The last issue in relation to the PRP is the applicant’s submissions that there were no exigent circumstances and the officers should have obtained a telewarrant, or perhaps more properly phrased, they should have attempted to get a warrant but had insufficient grounds to do so. I am not persuaded those issues impact on the seriousness of the breaches for the following reasons. First, for a search incident to arrest there is no requirement to show exigent circumstances. Second, the reason there was no consideration given to obtaining a telewarrant was P.C. Cersons’ misunderstanding of their search powers incident to arrest. Third, had anyone sought to obtain a telewarrant, it would have failed because the Information to Obtain would have to include a statement of the indictable offence and the officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place to be searched, a higher test than for a valid search incident to arrest. s. 487.1(4) Fourth, the issue here is whether the officers had grounds to search incident to arrest as outlined in the authorities referenced earlier. It is not a situation where the breach is aggravated because the officers could not have obtained a warrant unless the officers had no lawful basis to search incident to arrest.

152The applicant argued the fact his passengers were also charged on the night of his arrest aggravates the seriousness of the breaches. The application is based on breaches of the applicant’s rights, not his passengers’. In R. v. Nguyen 2010 ONCA 536 at para. 20 the Court found the trial judge erred in placing considerable emphasis on the conduct of the police towards the passenger in the respondent’s vehicle and that the police breached their rights. If I am wrong in that conclusion, the relevance of those arrests would be minimal on this analysis.

153The above noted factors viewed alone would result in the seriousness of the breaches being well along the fault continuum. However, it was submitted that other factors attenuate the seriousness. I agree.

154First, the search was of the applicant’s motor vehicle. His expectation of privacy in his automobile is not as great as would occur with searches of his home, searches of his person or strip searches. Harrison, at para. 30; R. v. Stevens (2011), 2011 ONCA 504, 274 C.C.C. (3d) 353 (Ont. C.A.) at para. 50. The breaches also do not involve more invasive searches, such as where the right to silence is breached or there are breaches involving the sanctity of the home.

155Second, the evidence was discoverable without a Charter violation. As noted earlier, discoverability arguments arose in two contexts. First, Mr. Taylor argued that someone was going to find the gun after the car was towed. On this ground, I am not persuaded the gun and drugs were discoverable. It would be speculation to conclude that when towed the vehicle would be moved so that loose parts would move exposing the items or that someone involved in towing would touch the loose items resulting in the discovery of the items. Without photographs, it is impossible to draw the inferences sought.

156The second discoverability issue, that P.C. Sibley would have found the gun anyway leads to a different conclusion. As noted earlier, I find Constable Sibley had sufficient grounds to search the car based on his observations of the Mazda that night and the information he obtained from CPIC. That some of the information was wrong does not impact on his reliance on the information as a basis for the search.

157From Caslake, the police would be entitled to search for weapons incident to a valid arrest, if under the circumstances it seemed reasonable to check whether that person might be armed. They must have some valid purpose connected to this arrest, to be determined on the bases of what they were looking for and why. The test includes both a subjective and objective component. The information P.C. Sibley had satisfied those tests. He believed he had grounds to search and those grounds were objectively reasonable. That the evidence was discoverable reduces the seriousness of the violations.

158I turn next to the role of the applicant in the sequence of events. That the applicant’s counsel started the sequence of events that resulted in the unsigned recognizance being entered and Mr. Bacchus’ unexplained failure to enter the last variation must be factored into the equation as well. Had it not been for the unfortunate error in the Form 10A, the unsigned recognizance would never have been prepared or entered on CPIC. Actions taken on behalf of the applicant started the process that led to the unsigned release order being entered on CPIC. Actions taken on behalf of the applicant could have resulted in a new and accurate release order being entered on CPIC and the inaccurate entry being removed. However, for some unknown reason the applicant never entered the release order.

159Mr. Taylor argued that in general there was a reduced expectation of privacy when a person was on interim release pending trial. While that status may result in some restrictions on an accused person’s liberty, I am not persuaded there is a general reduction in privacy simply because a person is on release awaiting trial. Some persons are released on Appearance Notices or Promises to Appeal, with no conditions except to attend court. Others are released on recognizances, some with numerous terms, others with only a requirement to attend court.

160In all of these circumstances, I am persuaded the factors that reduce the seriousness of the breaches move the conduct some distance towards the less seriousness end of the spectrum but not to the point that this avenue favours admission. I find the seriousness remains significant and favours exclusion of the evidence. The TPS contributing conduct is serious and disturbing. The failure of the PRP officers to know the law regarding searches incident to arrest is of concern but is modified by the officer having another valid basis for the search.

The Impact of the Breaches on the Charter-Protected Interests of the Applicant

161Where along the spectrum referred to earlier the impact falls requires an examination of the rights infringed, the nature of the breaches and of the activity the applicant was engaging in, the applicant’s conduct, whether the gun and drugs were discoverable, and whether the applicant’s detention in custody is a relevant consideration.

162While the applicant was subject to a valid judicial interim release order he had signed, he was nevertheless free to drive about at any time of the day or night and not be subject to arbitrary detention. While his initial stop did not result in a breach, the arrest did. The search that discovered the gun and drugs was a violation of his right to be free from unreasonable or illegal searches. While not as serious as some others, the breaches restricted his right to move about freely. Had there been no search, he would have been on his way with a caution about driving without rear lights or perhaps a HTA charge.

163In the recently released Supreme Court of Canada decision in R. v. Aucoin 2012 SCC 66 involving the search of a driver detained by police at the roadside, Moldaver J. noted the impact of the Charter-infringing search of the detainee’s pockets was significant. While not as invasive as that search, this search remains a significant violation of the applicant’s privacy.

164To use the words from Grant, the impact on the applicant’s Charter-protected rights was more than fleeting or technical but less than profoundly intrusive. The search here was of the applicant’s car, not his person as occurred in Grant. Accordingly, this search was less intrusive than the one in Grant. Between the time of his arrest and the gun was found was of relatively brief duration, eight minutes. Unlike Harrison, here there was a valid basis for the initial stop.

165That the evidence was discoverable by P.C. Sibley is also an important consideration. It reduces the impact on Mr. Bacchus’ Charter-protected rights because reduces the intrusiveness of the search. Cote at para. 72

166I also have to take into consideration the applicant’s initial contribution to the clerical error and not attending to enter the last release order that did not contain the curfew. That the applicant’s conduct or actions taken on his behalf played a role in setting in motion the CPIC errors regarding the recognizance and in not having an accurate release order on CPIC, reduce the impact of the breaches on his Charter-protected rights. However, it has to be kept in mind that those actions were taken without any knowledge on his or his counsel’s part of what implications would follow.

167The applicant argued that his detention in custody after his arrest and after he served his sentence for the outstanding drug offence was as a result of the breaches of his Charter-protected interests. I disagree. Mr. Bacchus remains in custody lawfully, not arbitrarily. Presumably, he either consented to his detention initially or was detained after a bail hearing. Those findings are not subject to review here on the basis his Charter-protected interests have been impacted. In addition, in Harrison, McLachlin C.J.C.’s analysis of that driver’s detention and unreasonable search was limited to the time at the roadside until the drugs were found.

168In all the circumstances, while not severe, I am persuaded the impact on the applicant’s Charter-protected rights was more than minimal and results in the impact being slightly closer to the more serious end of the spectrum. Accordingly, this avenue favours exclusion of the evidence.

Society’s Interest in an Adjudication on the Merits

169The gun and drugs are highly reliable evidence. Both are critical evidence for the Crown’s case.

170The possession of a controlled substance charge is relatively minor compared to most offences tried in this Court. The possession of a loaded gun is very serious, reflected in the three year minimum sentence. With the proliferation of gun charges and offences committed with firearms in this area, the public has a heightened interest in seeing gun charges disposed of on their merits. However, the public also has an interest in a justice system that is beyond reproach, particularly where the penal consequences are high. Similarly, as the Supreme Court has cautioned, the seriousness of the offence cannot be given disproportionate significance particularly where the penal stakes are high for the applicant.

171In all the circumstances, I find the final avenue of inquiry strongly favours the admission of the evidence. It would promote the public interest in having the case dealt with on its merits. The admission of the evidence would not work unfairly having regard to the truth seeking function of a trial.

Balancing the Factors

172Considering all the circumstances, would the admission of the evidence bring the administration of justice into disrepute? It bears repeating that there is no overarching rule about how the balance is to be struck. However, it is not simply a question of whether the majority of the factors favour exclusion. The evidence in each line of inquiry must be weighed in the balance to answer the question.

173That an offence involves a gun charge is a very important consideration but is not itself determinative. A review of the case law shows that more frequently than not firearms will be admitted under s. 24(2) but it is not automatic. To automatically admit firearms would be to ignore the requirement to assess all of the circumstance on a case by case basis.

174For example, the gun was admitted in Grant where the officers were acting in an area of legal uncertainty. That tipped the scales in favour of admission. In R. v. Cote the Supreme Court upheld a trial judge’s decision to exclude a firearm. In R. v. Stevens (2011), 2011 ONCA 504, 274 C.C.C. (3d) 353 (Ont. C.A.) the firearm was excluded although the charges involved the careless storage of a firearm. These cases illustrate that while the fact a firearm is involved is important, it is not, in itself, determinative of admissibility.

175I have weighed the evidence on each of the three lines of inquiry and regard this as a very close call on admissibility. However, on balance, notwithstanding the TPS conduct and Constable Cerson’s primary uninformed belief about searches of motor vehicles incident to arrest that was modified by his later explanation, the applicant has not persuaded me that the evidence should be excluded. Indeed, I find that to exclude the evidence would bring the administration of justice into disrepute. While the decision is based on all the evidence, that the gun and drugs were discoverable in these circumstances, tips the scales towards admissibility. While the breaches were serious and the impact on the applicant’s Charter-protected rights not insignificant, combined those factors do not overcome society’s interest in this case being tried on the merits.

Conclusion

176The application is dismissed.

DURNO, J.

Footnotes

1. 1While the bail orders in the Superior Court are at made at 361 University Avenue, Toronto. The orders are entered by the accused persons and sureties at the Old City Hall, Toronto.
2. 2The applicant pleaded guilty to the outstanding possession for the purpose of trafficking charge on October 26, 2011, and was serving that sentence until August 6, 2012.
3. 3R. v. Blake, (2011), 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 25.