ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1505/11
DATE: 201211 30

B E T W E E N:

HER MAJESTY THE QUEEN

J. Leising , for the Crown

• and -

NNAEMEKA OBASI

J. Pyzer , for the accused

HEARD: November 27, 28, 2012

RULING

CHARTER OF RIGHTS

SECTIONS 8, 9, and 10

Justice Thomas A. Bielby

[ 1 ] The accused, Nnaemeka Obasi, has before the Court an application to exclude evidence obtained by the Peel Regional Police, alleging a number of Charter of Rights violations. Specifically it is alleged the accused was arbitrarily detained, was not provided his rights to legal counsel, and was subjected to unlawful search. The accused submits, therefore, that his rights pursuant to sections 8 , 9 and 10 of the Charter were violated and pursuant to section 24(2) the evidence obtained as a result of the Charter violations ought to be excluded.

[ 2 ] The accused stands charged that on or about February 8, 2011, he imported into Canada heroin, contrary to the Controlled Drugs and Substances Act . He is further charged that on the same date he was in possession of heroin for the purpose of trafficking.

EVIDENCE

Sergeant Ceballo

[ 3 ] The first witness was Sergeant Stephan Ceballo (Ceballo) of the Peel Police Department. Ceballo is a 22 year veteran of the force and for a period of a couple of years was assigned to what was known then as Morality Bureau which investigated major drug matters.

[ 4 ] At 10:51 a.m. February 8, 2012, Ceballo received a radio call and was directed to go to 306 Rutherford Road, Brampton (306). He was told that Canada Post had delivered a package to that address but the name on the label was unknown to the persons at that address. He was further advised that after the Canada Post truck departed, a male person entered the premises and advised the package was his. The package was handed over to this unknown person who returned to his car and left with the package. Ceballo was told the licence plate of the car was BHRR 761.

[ 5 ] Upon arriving at 306 he spoke to Hardial Kandola (Kandola) who was the owner of Hardial Auto which is located at 306.

[ 6 ] Ceballo, on what he was told, formed the opinion that a controlled delivery of drugs had taken place. He then detailed an officer to attend at the address of the registered owner which had been obtained via a licence plate search.

[ 7 ] Ceballo testified that he had seen this method of delivery used before in the drug trade and described it as a package being sent to a legitimate business, to an unknown name and claimed by someone else. He testified such packages are easily tracked to the point of delivery.

[ 8 ] Ceballo testified that had the unknown male still been on site when he arrived, he would have been arrested because, based on the information provided by the complainant, Ceballo believed he had reasonable and probable grounds to arrest.

[ 9 ] Shortly thereafter Ceballo learned that Officer McKean (McKean) had located the vehicle and Ceballo left 306 to attend McKean’s location. He testified he arrived on scene at 11:06 a.m.

[ 10 ] Upon his arrival, Ceballo noted that McKean had already detained the vehicle and its operator, the accused. The accused had been removed from his vehicle, handcuffed and placed in the back seat of McKean’s cruiser.

[ 11 ] McKean told Ceballo that the accused appeared to be very nervous. McKean also told Ceballo that, when he removed the accused from his vehicle, he uttered, “The package was not his.”

[ 12 ] Ceballo went to the accused’s car and opened the trunk. He discovered the package which he opened. The package contained packets of women’s hair accessories. He opened one and discovered therein what he believed to be heroin.

[ 13 ] Ceballo then told McKean to arrest the accused.

[ 14 ] Ceballo was asked by the Crown why the vehicle was searched before the arrest. He testified that the accused was already detained, and the package was not his. Ceballo felt that he had the grounds to arrest.

[ 15 ] During cross examination, it was noted that Ceballo used the time of 11:06 a.m. twice in his notes relating to two different occurrences. It was conceded that this was an error and the second entry was correct.

[ 16 ] On cross examination, Ceballo was emphatic that he initially attended 306 and spoke to Hardial Kandola briefly for perhaps five minutes. He testified that the information he had in his notes relating to what occurred at 306 came from Kandola and not from the text he received via his cruiser’s computer terminal.

[ 17 ] Ceballo confirmed that he detailed officers to attend at the registered owner’s address and locate the vehicle. He did not instruct them to arrest or detain the owner.

[ 18 ] Ceballo agreed that the initial radio call referenced a “suspicious person”.

[ 19 ] Ceballo conceded that he did not know where the package came from, or what it looked like. He did not know the name of the recipient. Kandola was unknown to him and Ceballo did not know if there were other businesses located at 306. He further acknowledged that he had no description of the male who picked up the package and he had no idea why Kandola had the suspicion that the package contained drugs.

[ 20 ] Ceballo did not know whether the person who picked up the package was the registered owner of the car.

[ 21 ] Ceballo confirmed that he arrived on scene at 11:06 a.m. and that upon his arrival he had no concerns regarding officer safety or the preservation of evidence. He testified that at the time of his arrival the accused was under investigative detention.

[ 22 ] Ceballo confirmed his opinion that upon his arrival at the scene he had reasonable and probable grounds to conclude drugs were involved based upon what he was told by Kandola. He described it as more than a hunch. He believed that, based on his experience, drugs were in the package.

[ 23 ] Ceballo further testified that the facts suggest a method used by drug traffickers and that he had been involved in a similar fact investigation in the early 1990s and was aware of two other similar fact investigations. He agreed he was suspicious on what he had been told by Kandola.

[ 24 ] Ceballo testified that it did not occur to him to apply for a search warrant. He opened the trunk, took possession of the package, and opened it. He testified that he cut along the seams of one of the packets located in the package and discovered white powder which he believed to be heroin.

[ 25 ] When he had confirmed the existence of drugs in the package, he instructed McKean to make the arrest.

Constable Jamie McKean

[ 26 ] McKean has been a member of the Peel Police Force since 2003.

[ 27 ] At 10:51 a.m. on February 8, 2011, he received from dispatch a radio message concerning a suspicious person at 306. He also received the message textually on the computer terminal located in his cruiser. He relied on the text message later when making his notes.

[ 28 ] He was advised a suspicious person attended at 306 and picked up a package. The complainant was Kandola of Handial Auto. The information received indicated that the package had been delivered by Canada Post and weighed in excess of twenty pounds. The name of the intended recipient on the label was unknown to anyone at the location of delivery.

[ 29 ] The message advised that immediately after the Canada Post truck left 306 a male individual who had been waiting in the parking lot came into the office and claimed the package. The package was handed over to this male person who left in his car in an unknown direction.

[ 30 ] At some point, McKean was advised through normal police means that the licence plate noted was registered to the accused at 72 Michigan Avenue, Brampton (72).

[ 31 ] McKean testified that he was directed by Ceballo to attend at the owner’s address. Upon arrival at 72, McKean parked in front of the house. He noticed a car fitting the description, being a gold Honda coming down the road from behind him. He testified that, as the vehicle was approaching, it was slowing down and moved in a manner suggesting it would be turning into the driveway of 72. As the vehicle passed the cruiser, McKean and the accused made eye contact.

[ 32 ] Mckean stated that the vehicle did not turn into the driveway but continued driving down the road. McKean followed in his cruiser and called for additional police units. He ultimately stopped the gold Honda at the intersection of Kingsmill Road and Bluebonnet Drive.

[ 33 ] After both vehicles stopped, McKean approached the car operated by the accused and observed the accused gripping the steering wheel and looking straight ahead. He thought this very suspicious and concluded the accused was attempting to avoid looking in his direction.

[ 34 ] Mckean yelled at the accused to lower his driver’s window, which the accused slowly did, continuing to look straight ahead. McKean described the accused as being very nervous and shaking.

[ 35 ] Based on his observations, the officer testified that he was concerned the accused might try to leave the scene. He asked the accused to remove the keys and give them to him. The accused complied.

[ 36 ] McKean testified that at 11:04 a.m. he advised the accused that he was being detained on suspicion of drugs. The accused was asked to get out of the car which he did. The accused was described as “flighty”, looking around in all directions. The officer testified that at that point the accused made the spontaneous utterance that the package was not his.

[ 37 ] McKean decided to place the accused in handcuffs for his own safety and that of the officer’s. The accused was placed in the rear of the cruiser.

[ 38 ] Shortly thereafter, Ceballo arrived and McKean briefed him on what had occurred. They then went to the accused’s vehicle and opened the trunk. The package was observed, wrapped in burlap. In the presence of McKean, the package was opened by Ceballo and found to have contained packets of colourful beads and hair bands. Ceballo opened one of the packets and advised McKean it contained what he thought was heroin.

[ 39 ] At 11:10 a.m., after the search, the accused was advised he was under arrest for the possession of heroin for the purpose of trafficking. McKean read to the accused his rights to counsel and the caution. He testified that he, at each point, asked the accused if he understood and the accused indicated he did.

[ 40 ] The accused was asked if he wished to contact a lawyer and the accused said “no lawyer, the package not mine.”

[ 41 ] McKean also provided to the accused the secondary caution.

[ 42 ] McKean then took possession of the package and noted that it was addressed to Mark Johnson, 306 Rutherford Road, Brampton. The sender of the package was a Jerry Akona with a return address in India.

[ 43 ] On cross examination, the following times were confirmed with McKean:

1. Received radio call 10:51 a.m.
2. Arrived at 72 10:59 a.m.
3. Pulled the accused over 11:02 a.m.
4. Detained 11:04 a.m.
5. Arrested accused 11:10 a.m.

[ 44 ] On cross examination, McKean agreed that he was sent to 72 to locate the vehicle and was not instructed to arrest or detain anyone.

[ 45 ] McKean made his own decision to stop the accused. He agreed that the initial radio message concerned a suspicious person. The only information he had was that received by radio and text. He had no description of the person who allegedly picked up the package after it was delivered by Canada Post. He confirmed that the information indicated that the complainant had a suspicion that the package contained drugs but did not provide any details in support of the suspicion. McKean was not familiar with Kandola. He agreed that he was relying on the unknown complainant’s suspicions.

[ 46 ] McKean was asked if there was any urgency and answered that with drugs you need to locate and secure them quickly as they are too easily disposed.

[ 47 ] McKean agreed that his notes did not contain any reference to the car driving slowly and turning slightly as if to turn into the driveway.

[ 48 ] He agreed that, when he pulled the accused’s vehicle over, he was acting on a hunch or suspicion. He described the accused’s body language as out of the ordinary and that, on most traffic stops, drivers turn to look at the officer as he approaches the car.

[ 49 ] Mckean agreed that the accused complied with all the instructions provided to him.

[ 50 ] McKean described the detention of the accused as investigative detention and at the time did not know if the accused was the male person who retrieved the package.

[ 51 ] McKean testified that, based on the information he received from dispatch and his observations of the accused, the detention was justified. He testified that he had no conversation with the accused nor did he ask the accused any questions. When the accused was detained, he was not given any rights to counsel or any caution.

[ 52 ] McKean confirmed on cross examination that it was Ceballo’s decision to search the accused’s vehicle and to arrest the accused. It never occurred to McKean to get a search warrant. McKean described the search as pursuant to investigative detention.

[ 53 ] McKean also testified that the search was necessary to determine if they should arrest the accused or release him.

Constable Louie Dimatteo

[ 54 ] Constable Dimatteo (Dimatteo) is a Peel Police officer and was in uniform capacity on February 8, 2011. He, too, received the radio message and computer text message but he said he received the message at 10:48 a.m. He advised that he used the text message to make his notes.

[ 55 ] Dimatteo went to 306 and arrived at 10:58 a.m. Ceballo was already there. Dimatteo believed that, upon his arrival, Ceballo was talking to the complainant. Dimatteo stayed at 306 for about five minutes. He heard the radio message from McKean that he had a visual of the car and both Dimatteo and Ceballo left and went to McKean’s location, Ceballo arriving first.

[ 56 ] Dimatteo arrived on scene at 11:06 a.m. and, at that point, the accused was already in McKean’s cruiser. The trunk of the accused’s car was already open and the package had also been opened. Dimatteo was instructed by Ceballo to return to 306 and obtain statements.

[ 57 ] On cross examination, Dimatteo testified that, when he went to 306 initially, he got out of his cruiser and briefly spoke to one of the complainants. He agreed these facts were not in his notes.

[ 58 ] When at the scene of the accused’s arrest, Dimatteo did not speak to the accused nor did he hear the accused say anything.

SUBMISSIONS AND LAW

Crown

[ 59 ] With respect to the concept of reasonable and probable grounds, I have had regard to R. v. Storrey , [1990]1 SCR 241 and quote from page 6:

The Criminal Code requires that an arresting officer must subjectively have reasonable and probable ground on which to base an arrest. Those grounds must, in addition, be justified from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[ 60 ] As stated in Storrey on the same page:

The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected from crime.

[ 61 ] While the Crown attorney suggests the threshold is not a high one, it is certainly above that of suspicion.

[ 62 ] R. v. Golub (1997) is an authority relied on by the Crown. On appeal, counsel for the accused argued that the information relied on by the police did not provide reasonable and probable grounds. The information relied on by the police in that case was provided by an outside and unknown source to the police. Counsel for the accused argued that the information the police had would not be sufficient to get a search warrant and that the right to arrest should not be treated in the same way.

[ 63 ] Doherty J.A., at paragraph 17, noted that this proposition was a novel one and if correct would greatly restrict the police power of arrest. From paragraph 18, I quote:

Often the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision base on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding to make an arrest that is demands of a justice faced with an application for a search warrant.

[ 64 ] While I am guided by these comments, the police are still required to have reasonable and probable grounds.

[ 65 ] The Crown submits that the situation faced by Ceballo and McKean was volatile and that of a rapidly changing situation. It is submitted by the Crown that Ceballo initially had the information of the complaint, the experience that comes from 22 years on the police force and a past involved in a case involving the same method of drug delivery.

[ 66 ] The Crown attorney submits that the grounds were further advanced by the information Ceballo received from McKean as to the detention and the utterance. It is submitted that Ceballo, at the time of the search, subjectively believed that he had reasonable and probable grounds to arrest and that objectively, the grounds existed as well. It is submitted therefore the search was incident to an arrest.

[ 67 ] With respect to the spontaneous utterance, the Crown relies on the authorities of R. v. Rivera , and R. v. Milne for his submission that the utterance, while it is not admissible as evidence of credibility or to prove the offence, can be utilized in forming an opinion of whether there are reasonable and probable grounds to arrest.

[ 68 ] Counsel for the accused did not challenge this point.

[ 69 ] With respect to the legality of the search, the Crown relies on R. v. Caslake , [1998] 1 S.C.R. 51. In that case, the Court, starting at paragraph 13, spoke to the right of a “search incident to arrest”. The Crown is relying on this common law principle to justify the search of the accused’s vehicle.

[ 70 ] At paragraph 14 of the Caslake decision, the Court refers to its earlier decision in Cloutier v. Langlois in which L’Heureux-Dube J. set out three important limits on the power to search incident to arrest. As recited in Caslake , they are:

1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.

2. 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 accused or the public, or that may facilitate escaped or act as evidence against the accused. The propose of the search must not be unrelated to the objectives of the proper administration of justices, 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.

3. The search must not be conducted in an abusive fashion and in particular, the use of the physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

[ 71 ] It is the submission of the Crown before me that the purpose of the search was to obtain evidence, that is, to locate the package and determine if there were drugs inside.

[ 72 ] Section 8 of the Charter of Rights protects against unreasonable search and seizure. Searches conducted incident to arrest have been recognized as an exception to the rule that warrantless searches are prima facie unreasonable. In that regard the Crown has the burden of proofing, on a balance of probabilities that the search was lawful.

[ 73 ] From paragraph 26 of R. v. Alkins I quote:

A search conducted incident to arrest will be authorized by law if it meets the requirements set out in R. v. Stillman (1997). First the arrest must be lawful. Second, the search must be truly incidental to arrest. Third, the manner in which the search is conducted must be reasonable.

[ 74 ] At paragraph 32 of the Alkins decision, the Court refers to the Caslake decision and notes that a search incident to arrest extends to motor vehicles. At paragraph 34, the Court stated:

The court repeated that the three main purposes for a search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or other, and the discovery of evidence which can be used at the arrestee’s trial.

[ 75 ] In this case, the search occurred before the actual arrest. It is the position of the Crown that such a search is lawful if, at the time of the search, the police had reasonable and probable grounds to arrest. In that regard, the Crown relies on the decision R. v. Debot (1986). At page 8 therein, Martin J. A. would appear to accept this premise based on the well established practice in the United States.

[ 76 ] It is the position of the Crown that, since the police had the accused in detention, and given there already existed reasonable and probable grounds to arrest, there was no need to arrest the accused prior to the search.

[ 77 ] Section 9 of the Charter states that everyone has the right not to be arbitrarily detained. The Crown submits that the detention was not arbitrary and relies on R. v. Mann . From the case summary, the Crown relied on the following passage:

Although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that detention is reasonable necessary on a objective view of the circumstances. These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, to the liberty interfered with, and to the nature and extent of the interference. At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter .

[ 78 ] The summary goes on to say that such detention is to be brief and that, as far as a search goes, the police can conduct a protective pat-down search. This right is distinct from the right to search incidental to arrest.

[ 79 ] Crown counsel submits the detention of Mr. Obasi was not arbitrary given the passage referred to. It is submitted that the detention was appropriate given the information available to the police and the demeanour evidence provided by McKean.

Defence

[ 80 ] Defence counsel submits that his client’s sections 8 , 9 and 10 Charter rights have been violated and that pursuant to section 24 (2) , the evidence located in the trunk and the spontaneous utterance ought to be excluded as evidence at the trial.

[ 81 ] It is the submission of defence counsel that, until the search was conducted, the police lacked the reasonable and probable grounds to arrest and that the search, without a lawful arrest, was unlawful. It is submitted that the accused’s original detention was arbitrary and that, upon detention, the accused was not provided with his right’s to counsel.

[ 82 ] It is submitted that, prior to the search, the police knew very little regarding the package. They did not know it was sent from a foreign source. The search itself was part of the investigation and was not incidental to a lawful arrest.

[ 83 ] R. v. Debot , [1989] 2 S.C.R. 1140 is an authority relied upon by the accused. At page 4, the Court discusses warrantless searches and focuses on three concerns:

First, was the information predicting the commission of a criminal offence compelling? Second, where a tip originating from a source outside the police, was the source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? Each factor does not form a separate test. Rather it is the totality of the circumstances that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[ 84 ] The accused submits that the source of the information, Kandola, was not known to the police. He concedes that Ceballo spoke to Mr. Kandola but submits that he then made no effort to determine Kandola’s credibility. It is submitted that the complainant’s information was not compelling given the lack of detail such as a description of the unknown male. Further, it is submitted in the 15 minutes between Ceballo’s attendance at 306 and the arrest, no effort was made to corroborate the information.

[ 85 ] Counsel for the accused submitted that his client’s detention was unlawful and was, therefore, arbitrary. In the Mann case, the Court, at paragraph 34, dictates that investigative detention must be premised on reasonable grounds and the detention must be viewed as necessary given all the circumstances.

[ 86 ] It was McKean who made the decision to detain by stopping the accused and taking possession of the keys to the vehicle. He was removed from the vehicle, cuffed and placed in a police cruiser.

[ 87 ] From paragraph 35 of the Mann case, I quote:

The power to detain cannot be exercised on the basis of a hunch, nor can it be a de facto arrest.

[ 88 ] Counsel for the accused relies on the decision, R. v. Simpson (1993) and from paragraph 61 I quote, in regards to detention:

A hunch based entirely on intuition gained by experience cannot suffice, no matter how accurate that hunch might prove to be.

Further on in the paragraph I quote:

A guess which proves accurate becomes in hindsight a hunch.

[ 89 ] Defence counsel argues the police acted on no more than a hunch, making the detention arbitrary. A reasonable suspicion did not exist.

A police officer may detain an individual for investigative purposes if there are reasonable grounds to suspect, in all the circumstances, which an individual is connected to a particular crime and that such a detention is necessary. ( Mann , para.45).

[ 90 ] It is submitted on behalf of the accused that, even if the detention was lawful, the search exceeded that allowed on an investigative detention.

[ 91 ] With respect to the utterance, the accused submitted that his rights to counsel were not provided immediately after his detention contrary to section 10(b) of the Charter . Therefore, anything said when he was out of the car ought to be excluded from evidence. Counsel for the accused concedes, however, that the utterance may be used in determining if there were reasonable and probable grounds for arrest. He submits that even with the statement the said ground to arrest did not exist.

[ 92 ] On behalf of the accused, it is submitted that the search was not incidental to arrest as the arrest occurred after the search and as a result of the search. At the time of the search, reasonable and probable grounds to arrest did not exist.

ANALYSIS

[ 93 ] Officers McKean and Dimatteo gave their evidence in a straightforward manner, directly answering the questions put to them. I cannot say the same about Sergeant Ceballo. He appeared defensive and argumentative. I would expect a 22 year veteran to make a better witness and to keep better notes.

[ 94 ] It seemed as if he tailored his evidence to fit the facts that transpired over a relatively short period of time and that he was interpreting the facts in a manner so as to justify McKean detaining the accused, without being instructed to do so.

[ 95 ] With respect to Ceballo’s evidence regarding his previous experience investigating a similar drug trafficking method, he provided very little detail with respect to this experience.

[ 96 ] It is clear that Ceballo, after obtaining the information from the complainant, detailed an officer to locate the vehicle. There were no instructions given to detain or arrest anyone. The police knew to whom the car in which the unknown male left 306 was registered but had absolutely no description of the unknown male who claimed the package.

[ 97 ] When Ceballo arrived at the scene where the accused’s vehicle was stopped, he was faced with the realization that the accused had been removed from his car, handcuffed, and placed in the back of the cruiser. Clearly, the accused was detained.

[ 98 ] Ceballo spoke to McKean and immediately proceeded to the accused’s car, opened the trunk, located the package, searched the package, finding what turned out to be heroin, and advised McKean to arrest the accused.

[ 99 ] McKean admitted he placed the accused in investigative detention based on a suspicion and testified that, in his opinion, the search was pursuant to the detention.

[ 100 ] I find as a fact that, when Ceballo was at Hardial Auto and after speaking to Kandola, he had no more than a suspicion or hunch that the package was part of a drug offence. I don’t accept that after talking to Kandola, Ceballo believed he had reasonable and probable grounds to arrest anyone. Nor did the grounds exist objectively. I say this taking into account his experience as police officer.

[ 101 ] All Ceballo had was the information of a third party whom he did not know and with respect to whom he made no inquiries as to credibility. No evidence was provided as to why Kandola believed drugs may be involved. No steps were taken to corroborate the information provided by the complainant. Given the lack of detail regarding the package and the lack of a description of the unknown male, the information was not compelling.

[ 102 ] The police had no information regarding the source of the package. Not until the search did they know it was sent from outside the country.

[ 103 ] As stated, Ceballo detailed officers to locate the vehicle. He did not direct them to detain or arrest. From this I infer that he knew, contrary to his testimony, that he did not have the necessary reasonable and probable grounds to arrest anyone.

[ 104 ] I find as a fact that McKean’s detention of the accused was arbitrary and that there is no real case to be made that the accused was a flight or safety risk. He complied with all the police requests and the fact he was nervous could be attributed to many reasons.

[ 105 ] Certainly, the removal of the accused from his vehicle, and the fact he was handcuffed and placed in the cruiser went beyond what was reasonable in the circumstances.

[ 106 ] Even if the detention was lawful, the search of the vehicle based on the detention was unlawful. The only search permissible would be that of the accused’s person for officer safety reasons.

[ 107 ] I accept the evidence of McKean that the search was done as result of the detention.

[ 108 ] I find as a fact that it was not until the search revealed the existence of a substance thought to be heroin did the police have reasonable and probable grounds to arrest the accused. The information provided by McKean did not advance Ceballo’s suspicions to that of reasonable and probable grounds. The search, therefore, was not incident to a lawful arrest.

[ 109 ] If there existed at the time of the search reasonable and probable grounds to arrest the accused, I would have found the search of the vehicle’s trunk incident to arrest. The police were looking for a package which weighed over 20 pounds. If not in plain sight, it was reasonable to conclude it was likely in the trunk. The opening of the package and the discovery of the heroin would also be incident to arrest, all for the purpose of obtaining evidence.

[ 110 ] I find that the accused was detained when he was asked to surrender the keys to his vehicle. I find that, upon his detention, the accused was not advised of his section 10(b) rights and that any evidence as to utterances made after the accused was detained are tainted.

[ 111 ] I find that the police were entitled to use the utterance for the purpose of determining whether they had reasonable grounds to arrest. However, given all the circumstances, the utterance was not sufficient to raise a hunch or suspicion to that of reasonable and probable grounds for an arrest. Nor did it move matters from an unlawful detention to that of a lawful arrest.

[ 112 ] As a result of these findings, the accused’s rights under sections 8 , 9 and 10 of the Charter of Rights were violated. On a balance of probabilities, the Crown has failed its onus to prove the warrantless search was lawful.

SECTION 24

[ 113 ] The Crown submits that, assuming the Charter violations, the results of the search and the utterance should not to be excluded from evidence. He argues the admission of the evidence would not bring the administration of justice into disrepute.

[ 114 ] Counsel for the accused submits that, in fact, the evidence ought to be excluded and that, if it is not so excluded, the administration of justice would be brought into disrepute.

[ 115 ] Both counsel made reference to R. v. Grant and the approach laid out in considering section 24. In weighing the question regarding the administration of justice, I am to have regard to:

1. The seriousness of the Charter-infringing conduct;

2. The impact of the breach on the Charter-protected interests of the accused; and

3. Society’s interest in the adjudication of the case on its merits.

[ 116 ] I find that the Charter -infringing conduct was serious. In a very short in time, three Charter rights were violated. Clearly, it is the duty of the police to investigate the use and trafficking of illegal drugs. I also accept that the police felt they had to act with some urgency to locate any package which they suspected contained drugs. The tipping point on this issue is the exercise of the search. Had the police simply secured the package and investigated the matter further, the seriousness of the violations would have been much less. The search of the package at the scene was not necessary to preserve the evidence. The police had control and possession of the vehicle and the package negating any urgency.

[ 117 ] The impact of the breaches on the Charter protected interests of the accused are significant. He was almost immediately taken into detention without cause and a search conducted of his person and car. The violations were personally intrusive.

[ 118 ] With respect to society’s interest in the adjudication of the case on its merits, given the circumstances, I do not think this ground overrides the accused’s Charter rights. Clearly, there is a strong public interest to have drug cases tried. The penalties imposed for drug importation and trafficking reflect the seriousness that the courts and society attribute to such crimes.

[ 119 ] However, this case involved the breach of a three basic Charter rights. The public has an interest in seeing that our Charter rights are protected and enforced, protecting our rights to liberty, and not to be denied arbitrarily.

[ 120 ] Given the circumstances, I cannot find that the police acted in good faith or simply made a mistake. They knew what was necessary to make an arrest and conduct a search. They would know that the accused’s section 10 (b) rights were triggered upon detention. While the end result was the discovery of a very serious drug, heroin, proving their hunch to be correct, the ends in this case do not justify the means.

DECISION

[ 121 ] In weighing all three considerations, I rule that the evidence resulting from the search and the utterance made by the accused after he was detained but before he was arrested are excluded.

[ 122 ] The accsued’s application pursuant to the Charter of Rights is allowed.

Bielby J.

Released: December 2, 2012

COURT FILE NO.: 1505/11
DATE: 201211 30

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – NNAEMEKA OBASI RULING CHARTER OF RIGHTS SECTIONS 8, 9, and 10 Bielby J.

Released: December 2, 2012