COURT FILE NO.: CR-12-40000186

DATE: 20130116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

MACKEL PETERKIN

Elizabeth Jackson, for the Crown

James Silver, for the Accused

HEARD: November 13-15, 2012

Mr. Justice Kenneth L. Campbell

Pre-Trial Ruling on Charter Application

I

Overview

[1] As a result of a late night interaction with the police, the accused, Mackel Peterkin, was found in unlawful possession of a loaded firearm, ammunition and cocaine. He seeks the exclusion of this evidence, claiming that it was obtained in violation of his constitutional rights under the Charter of Rights.

[2] The accused has pled not guilty to an indictment alleging that, on August 14, 2011, in the City of Toronto, he committed two criminal offences, namely: (1) that he did unlawfully possess a loaded restricted firearm while not the holder of an authorization, licence or registration for the firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, chap. C-46; and (2) that he did unlawfully possess a controlled substance (cocaine) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, chap. 19.

[3] In the early morning hours of August 14, 2011, two police officers with the Toronto Police Service were dispatched to investigate a 911 emergency call connected to a townhouse unit in a Toronto Housing Authority complex. When they arrived, no one answered the door. As they waited for the arrival of a security guard to let them into the premises, the accused arrived on the scene on foot. The officers testified that he walked into the fenced back yard of the townhouse unit under investigation. The accused denied entering the back yard. When approached by the officers, the accused denied any connection to the townhouse, and explained that he was just waiting for a ride. The accused’s girlfriend arrived in her vehicle almost immediately thereafter.

[4] Not satisfied with the explanation proffered by the accused, the officers detained the accused. However, they neglected to fully advise him of the reasons for his detention and all aspects of his right to counsel. According to the officers, while they were checking the accused’s driver’s license, he began to act suspiciously. He was seen tapping his right hip with his right wrist, and “blading” himself to the officers so that his right side was furthest away from them. When his documentation was returned, the accused received it awkwardly by holding his right elbow tightly to his right hip. Suspecting the accused was carrying a weapon, the police decided, in the interests of their own safety, to conduct a “pat-down” search for weapons before releasing the accused. When the accused refused to permit this search and tried to flee, he was quickly taken down to the ground by the officers. The police officers discovered, almost immediately, that the accused was in illegal possession of a firearm, a box of ammunition, and a significant quantity of cocaine.

[5] The accused has brought an application to exclude the incriminating results of this search of his person under s. 24(2) of the Charter, alleging violations of ss. 8, 9 and 10 of the Charter. More specifically, the accused claims that he was arbitrarily detained by the police, not fully advised of the reasons for his detention, not fully advised of his right to counsel, and subjected to an unreasonable search and seizure. The Crown acknowledges a violation of s. 10(b) of the Charter as a result of the police failure to fully advise the accused of the informational component of his right to counsel when he was detained, but contends that the evidence should nevertheless be admitted under s. 24(2) of the Charter.

II

The Evidence

A. Introduction

[6] The application by the accused proceeded upon the evidentiary basis of: (1) the preliminary inquiry testimony of Constables Sean O’Neil and Lee Perelli, the two Toronto Police Service officers who were engaged with the accused in the early morning hours of August 14, 2011; (2) the Constables’ supplementary viva voce testimony on the application; and (3) the evidence of the accused and his girlfriend, Chereta Palmer, both of whom provided affidavits and also gave testimony on the application as to the key events that transpired that night.

B. The Evidence of the Police Officers

1. The Background

[7] On August 14, 2011, Constables O’Neil and Perelli were working out of 31 Division in the Primary Response Unit. They were in uniform in a marked police car and were working the night shift, 11:00 p.m. to 7:00 a.m., on general patrol. At the time, Constable O’Neil was an officer with approximately five years of experience, while Constable Perelli had approximately two years of experience. Both officers agreed that with respect to the investigation of this case, while both were involved, it was Constable O’Neil who took the lead as the more experienced officer.[^1]

2. The Static Line 911 Emergency Call

[8] At 2:30 a.m., the officers were dispatched on a “check address” call as a result of a “static line 911 call” that had been received from a phone connected to 296 Grandravine Drive, unit 132, in Toronto. The officers understood that a “static line 911 call” was a call placed to the 911 emergency number, but when the connection is made, there is no one on the other end of the phone, and when the 911 operator calls back to the incoming telephone number, no one picks up the phone. In such circumstances, police officers are dispatched to the location to check on the well-being of the occupants of the address and otherwise investigate the emergency call.

[9] In accordance with this protocol, Constables O’Neil and Perelli were dispatched to the residence at 296 Grandravine Drive, unit 132. Constable O’Neil testified that he was familiar with the neighbourhood where this residence is located, as he had been there on numerous earlier occasions. Constable O’Neil explained that this was a neighbourhood where there are often calls in connection with domestic disputes, gun shots and shootings. This was one of the neighbourhoods in 31 Division that had a higher incidence of violent radio calls.

3. The Initial Police Investigation of the Townhouse

[10] When the police officers arrived at the location, they checked the premises. Unit 132 was a townhouse within a Toronto Housing Authority project. The fenced-in back yard of the unit, like the other townhouses in that area, backed onto Grandravine Drive. There was a gate in the fence that opened to a patio stone walk-way that led across the grassy boulevard to the sidewalk along Grandravine Drive. The front door faced the interior of the housing complex. With the assistance of their flashlights, the officers checked the front and the back doors. Nothing seemed amiss. There were no signs of pry marks or any kind of forced entry. The doors were all locked. However, no one answered their knocks on the doors. There were no noises from inside the premises. There were no lights on inside the unit, and the curtains on the closed windows were drawn.

[11] Constable O’Neil testified that he still had concerns as he was not sure what was going on inside the unit. Constable Perelli explained that they wanted to make sure there was no one inside the premises “laying on the floor bleeding” and in need of assistance. Accordingly, at approximately 3:00 a.m., Constable O’Neil contacted dispatch, and asked for a security guard from the Toronto Housing Authority to attend to allow them to enter the premises and continue their investigation. The officers had discussed other options, such as calling the fire department, or forcibly entering the premises, but Constable O’Neil thought that arranging for the attendance of the security guard was the least invasive and destructive option given the level of risk posed by the call. They admitted that they did not try to speak to any of the neighbours in the area, even though such inquiries can sometimes be helpful.

[12] Shortly thereafter, at approximately 3:03 a.m., the dispatcher advised the officers that subsequent attempts had been made to try to contact the person who had placed the 911 emergency call, but these calls to the incoming number were getting a “busy” signal. The officers then remained nearby waiting for the attendance of the requested security guard.

4. The Appearance of the Accused – His Back yard Entry

[13] While waiting for the security guard, the police officers observed a male, later identified as the accused, walking eastbound on the sidewalk along Grandravine Drive. The accused was observed to turn from the sidewalk, onto the patio stones leading to the gate area, and then walk through the open gate into the fenced-in back yard of unit 132. Constable O’Neil estimated that the back yard area was approximately 12 feet by 18 feet in size and covered in grass. The surrounding fence was approximately three feet high.

[14] Constable O’Neil testified that the accused walked approximately six feet into the fenced-in back yard of unit 132, and then turned around. Constable Perelli estimated that the accused walked approximately five to ten feet into the back yard. At that point, the officers saw the accused use his cell phone. Constable O’Neil noticed the phone become illuminated, and the accused held it up to his head. It was fairly dark at this time of night, but there was some artificial light from the street lights.

5. The Police Interaction With the Accused in the Back yard

[15] At that point, the two police officers walked over to the accused to talk to him. They thought the accused might live in the unit and might be able to allow them access to the residence to see if everyone inside was safe, or might know something about what was going on inside the premises. If he did not reside there, they wanted to know what the accused was doing in the back yard of the premises at 3:00 in the morning. It seems that the accused had not earlier seen the officers as he appeared startled and surprised when he noticed the officers in the back yard with him.

[16] Constable O’Neil asked the accused if he resided at the premises. The accused replied “no.” When Constable O’Neil asked him what he was doing there, the accused said: “I am waiting for a ride; see here it comes.” The accused then pointed towards an approaching motor vehicle, which ultimately parked nearby on Grandravine Drive.

[17] Constable Perelli thought that the accused appeared nervous as he was not making eye contact with the officers, was speaking very quietly, and kept his head down. Constable O’Neil testified that while he took this response by the accused “at face value,” he was suspicious of the accused. His response did not make sense. If the accused was just waiting for a ride, why did he walk into the back yard of unit 132, the same residence the police were investigating? The officers testified, essentially, that there was no apparent reason why the accused needed to go into the back yard of the townhouse in order to make his phone call, and the accused provided no explanation in this regard. Constable O’Neil testified that he wanted to know who the accused was, why he was in the back yard, and what he was doing there. He wanted to investigate the accused further in relation to his trespass onto the townhouse unit property and also in relation to their “check address” 911 call.

6. Placing the Accused Under Investigative Detention

[18] At 3:15 a.m. Constable O’Neil advised the accused that he was under “investigative detention.” Constable O’Neil testified that he advised the accused that this investigative detention was in regards to the Trespass to Property Act. Constable O’Neil explained that an agreement with the Toronto Housing Authority permitted the police to enforce the Trespass to Property Act, and the accused was under investigation for being on this property, which belonged to the Toronto Housing Authority. Once the accused said that he did not live in the townhouse unit, he was trespassing on the property. In these circumstances, the officer wanted to ascertain his identity, and learn what, if any, attachment the accused had to the townhouse. The officer explained that he thought that the trespass by the accused into the fenced back yard of the townhouse unit was “suspicious.” Constable O’Neil testified that he thought he could take this step in the circumstances, especially given the “check address” 911 call. He explained that he thought that the trespass by the accused gave him another valid reason to continue to speak to the accused.

[19] In his evidence, Constable O’Neil was not able to point to any specific statutory or judicial authority that permitted him to detain the accused for investigative purposes, but he testified that he understood that he was lawfully able to detain the accused in these circumstances from his training as a police officer.

[20] Constable O’Neil testified that he had two motives in detaining the accused, namely, for his apparent violation of the Trespass to Property Act and in relation to their investigation of the “check address” 911 call. In cross-examination at the preliminary inquiry, however, Constable O’Neil testified that the investigative detention of the accused was actually in relation to the “check address” 911 call, and had nothing to do with the Trespass to Property Act. Constable O’Neil agreed that he was just using the Trespass to Property Act to investigate the 911 telephone call. At trial, however, Constable O’Neil explained that his detention of the accused was for more than one reason, although he did not separate these motives out at the time of the detention.

[21] In his trial testimony, Constable O’Neil mentioned that he had a vague recollection of mentioning the “check address” call to the accused. He admitted that he had not given this evidence at the preliminary inquiry and there was no mention of this in his notes. He did not remember exactly what he said to the accused. Constable O’Neil agreed that he did not “go into a full description” of the Trespass to Property Act in explaining the reasons for the detention of the accused.

[22] Constable Perelli testified that when his partner advised the accused that he was under “investigative detention,” Constable O’Neil told the accused that it was because of the “radio call” that they were attending to, explaining that they wanted to determine his identity and his reason for being on the property. Constable Perelli testified that his partner mentioned the Trespass to Property Act authority pursuant to the agreement with the Toronto Housing Authority, as this was one of the aspects of their investigation. As Constable Perelli explained, they wanted to find out whether or not the accused was, indeed, trespassing on the property.

[23] After advising the accused that he was under “investigative detention,” Constable O’Neil confirmed with the accused that he understood. When asked if he wanted to speak to a lawyer, the accused declined the invitation. Constable O’Neil agreed that in advising the accused generally of his right to counsel, he did not specifically advise the accused of any 1-800 telephone number he could call, the availability of legal aid generally, the immediate availability of free legal advice in the middle of the night, or why he might want to talk to a lawyer.

[24] When asked to produce some identification, the accused provided Constable O’Neil with his driver’s license. Constable O’Neil wanted some identification from the accused so that he could check his home address to see if he lived at the townhouse unit. Both police officers thought the Trespass to Property Act permitted them to ask for this identification and make inquiries of him as to what he was doing on the property. At that point, Constable O’Neil placed a call to dispatch and asked for a background check concerning the accused.

[25] Constable O’Neil testified that as he was talking to accused, Constable Perelli, stood to his right side. Both officers were inside the back yard of unit 132 at the entrance way into the back yard. The accused was still further inside the back yard.

7. The Suspicious Activity of the Accused

[26] According to Constable O’Neil, while he waited for the results of this background check, he saw the accused do a “hip check.” Constable O’Neil described this as the accused twice tapping his right wrist on his right hip at the waist, and then holding his wrist in that location. Given his police training, this action caused Constable O’Neil to believe that the accused may have a firearm. This was a characteristic of an armed person. Constable O’Neil also observed the accused “blading” away from him, in that the accused moved his right foot back and turned his body to the right, so that his left shoulder was toward the officer and the accused was standing perpendicular to the officer so the officer could only see his profile.

[27] Constable O’Neil conceded, however, that he did not know where the accused had put his cell phone after he finished his call, and he admitted that the accused might have put his cell phone in his pocket or in a holster on his hip.

[28] Constable Perelli testified that he also observed the accused “blading” at this point. He viewed this as an “aggressive stance” which, in his experience, suggested that the accused might be preparing to run away. This obvious movement “caught [his] attention very quickly.” Constable Perelli testified that from where he was standing, he could only see the left side of the accused’s body. Constable Perelli also thought that the accused appeared “very nervous.”

[29] When the background check was finished with no “hits” on the system in relation to the accused, Constable O’Neil returned the driver’s license to the accused. Constable O’Neil passed the document to the right side of the accused. Both officers noticed that the accused did not reach out for the license as one expect. Rather, the accused kept his right elbow tucked tightly to his body, and on his right hip. The accused turned his whole body, extending only his right forearm to take the license. Constable Perelli described this as a “strange motion” and an “unnatural move” by the accused.

8. The Search and Seizure

[30] Constable O’Neil testified that this suspicious activity by the accused caused him to believe that the accused had a firearm. Accordingly, he advised the accused that he was going to give him a “pat down” for “officer safety” before letting him go. Constable Perelli testified that police officers are taught that, when an individual is under investigative detention, they may conduct a “pat down” search for safety reasons.

[31] When Constable O’Neil reached out to try to conduct this “pat down” search, the accused backed up quickly and grabbed at his right waist area. Constable Perelli heard the accused yell something at that point, but could not say what the accused said. Initially, the accused struggled to get away and tried to run out of the back yard between the two officers, but they were able to wrestle him to the ground in relatively short order. Even as he was falling to the ground, the accused was observed to grab at his front waist area. He did this first with his right arm, but once the police put his right arm behind his back, the accused reached for his right waist area with his left hand.

[32] As the accused continued to struggle with the police on the ground, Constable O’Neil reached around the accused to this area of the accused’s right hip, and he could feel the butt end of a gun. Constable O’Neil removed the firearm from the waist area of the accused and yelled “gun” to his partner. Once the gun was discovered, the accused stopped struggling with the officers.

[33] At 3:20 a.m. the accused was placed under arrest for his unlawful possession of this firearm. When asked if there was a bullet in the chamber, the accused replied in the affirmative. When Constable O’Neil removed the magazine from the firearm, he discovered numerous rounds inside. He also removed the single round from the chamber. The search of the accused revealed that, in addition to this loaded firearm, the accused was also in unlawful possession of a box of ammunition (i.e. Remington Centerfire cartridges) for the gun, and a significant quantity of cocaine. He also had $275 in Canadian bills. Once the accused was handcuffed, he was advised of his right to counsel, and he indicated that there was a specific lawyer (William Reid) with whom he wished to consult.

9. Priority Neighbourhood – Not Racial Profiling

[34] Constable O’Neil agreed in cross-examination that the fact that this incident took place in a “priority neighbourhood” in the division may have “enhanced his suspicions.” However, he rejected completely the suggestion that the skin colour of the accused played any factor, even subconsciously, in the manner in which he dealt with the accused that night. The officer explained that the fact that this was a “priority neighbourhood” in the division meant only that he had a heightened awareness of the potential for violence in the area. It had nothing to do with the accused’s colour or any suggestion of “racial profiling.”

C. The Defence Evidence

1. The Evidence of the Accused

[35] The accused is 24 years of age. He is a Canadian citizen with no prior criminal record. He lives on Driftwood Avenue in Toronto. He provided an affidavit in support of his application and also provided viva voce testimony.[^2]

[36] The accused testified that at approximately 3:15 a.m. on August 14, 2011 he was walking along the sidewalk on Grandravine Drive toward Driftwood Avenue, talking on his cell phone. He was waiting for his girlfriend, Ms. Palmer. He had called her on his cell phone and had asked her for a ride, and he was waiting for her arrival.

[37] According to the accused’s affidavit, he was eventually stopped on the sidewalk in the general vicinity of the back yard of the townhouse which, he subsequently learned, was of interest to the police that night. The accused denied ever going into the back yard area of this townhouse. According to the accused, he remained at all times outside the fenced-in back yard. In his viva voce testimony, however, he agreed that when the police stopped him, he was on the patio stones that formed the short walkway between the public sidewalk and the rear fence of the back yard of this townhouse. The accused explained that he was not on the sidewalk at this point as he was “cutting across” the “leafy” and “grassy” boulevard area between the sidewalk and the row of fenced back yards.

[38] The accused testified that the officers asked him if he lived at the townhouse, and he said “no.” When they asked him if he knew anyone who lived there, again he said “no.” When they asked him what he was doing, he told them that he was waiting for a ride. At that point, the accused saw his girlfriend approaching in her vehicle, and he pointed out her car to the officers. The officers then asked him if he had ever been in trouble with the police before, and he told them that he had just finished a charge of assault, but he was not on any conditions and was “clean.”

[39] According to the accused, the police then demanded his identification and he provided them with his driver’s license. The accused explained that he had always lived in this general area and he was “regularly stopped” by the police on the streets, on average two to four times a week. Given the position of the officers blocking his path on the sidewalk, their demands of him, and their general demeanour towards him, the accused testified that he thought he had no choice but to comply with their demand for his identification. After the police checked his identification, he was given back his license and told that he was “okay.”

[40] According to the accused, one of the officers then advised him that he was going to quickly search him. The accused refused. In his evidence, the accused explained that he did not know why he was being investigated. He denied that he was ever told anything about being under investigative detention, or advised of any right to talk to a lawyer.

[41] As the officer approached him, the accused stepped back away from him. At that point, the officer advised the accused that they were now allowed to search him as he had stepped onto “private property.” The accused admitted that, at that point, he was probably inside the back yard area of the townhouse. The accused testified that he told the officers that they could not search him, and that they were violating his rights. According to the accused, the police assured him that they were “allowed” to search him. Both of the officers reached for him, and they ended up in a “tussle” and he fell to the ground.

[42] The accused admitted that when he was physically searched by the police, they found that he was in possession of a fully loaded firearm, a box of ammunition, some individually packaged quantities of cocaine and marijuana, $275 in cash, and two cell phones. The police found the firearm in his waist band and the drugs and ammunition in his pants pockets.

[43] In his testimony, the accused explained that he had been given all of this contraband earlier in the evening by a man named “Mike.” The accused had apparently contacted Mike to buy marihuana from him, as he had done on earlier occasions. Mike had offered to give him his marihuana purchase for free that night if the accused would deliver the contraband articles to another individual. The accused accepted this proposal. Indeed, he was on his way to meet this nameless third party behind a shopping mall located near the intersection of Jane Street and Finch Avenue to deliver the contraband. The accused testified that Mike had given him a phone number so as to be able to contact this third party, and he was going to deliver the contraband and then go home. He had not told his girlfriend about this, however, even though he was going to ask her to drive him to the back of this shopping mall.

[44] The accused denied that the $275 in his possession that night was from selling drugs. He agreed that, at the time, he was on financial assistance, did not usually carry large amounts of cash, and did not know why he had that amount of cash with him that night. Nevertheless, he denied that it was drug money, as he was not involved in selling drugs.

[45] The accused testified that he did not usually carry two cell phones, but agreed that he had two cell phones with him at the time of his arrest. He explained that his own cell phone had stopped working, so he borrowed one from someone else.

[46] The accused testified that at no point that evening did he ever tap his waist area with his wrist. Nor was he ever advised of his right to talk to a lawyer or given an opportunity to contact a lawyer, even after he was taken back to the police station following his arrest. In his affidavit, however, the accused indicated that it was “not until [he] was back at the station that anyone told [him] about [his] right to call a lawyer.”

[47] The accused testified that William Reid was a lawyer with whom he was familiar. However, he denied giving the police this lawyer’s name as someone he wanted to contact when advised of his right to counsel. The accused agreed that there was no reason he was aware of that could explain how the police would know of his connection with Mr. Reid. He denied that the police ever told him that he had a right to a lawyer.

2. The Testimony of the Accused’s Girlfriend

[48] Chereta Palmer is 22 years of age. She is a Canadian citizen with no prior criminal record. Ms. Palmer provided an affidavit in support of the application by the accused, and also provided viva voce testimony.[^3] In August of 2011, the accused was her boyfriend. They have known each other for a number of years.

[49] Ms. Palmer testified that at approximately 3:15 a.m. on August 14, 2011, she was on her way to pick up the accused. He had called her earlier at home and had asked her to pick him up at a friend’s house on Grandravine Drive. They spoke with each other again on the phone, while she was on the way, as she was running late. She mentioned just one of these calls in her affidavit.

[50] When she arrived, Ms. Palmer saw the accused standing on the sidewalk. She was absolutely sure that the accused was not inside the back yard of any of the nearby townhouses. Indeed, the accused was nowhere near the back gate of townhouse unit 132. Ms. Palmer testified that at that point the accused was talking to two police officers. She could not hear what was being said as her vehicle windows were closed. However, Ms. Palmer saw the accused hand something to one of the police officers. The officer then talked into his radio and then handed it back to the accused. At one point, one of the officers reached out toward the accused and he pulled back. According to Ms. Palmer, the accused was then arrested by being taken down to the ground. Later, they took the accused to their police cruiser.

[51] Ms. Palmer testified that, subsequently, other police officers arrived. Ultimately, she was arrested, handcuffed, and placed in the back of one of the police cruisers while her vehicle was searched. She was never told why she was arrested, nor was she told anything about talking to a lawyer. At one point, the police enlisted her services to open the hood of her car to aid in their search of her vehicle. Eventually, the police let her go after lecturing her about her association with the accused. She returned to her car and went home.

[52] Ms. Palmer testified that she knew nothing about any firearm or drugs that may have been in the possession of the accused. The accused had not told her anything about delivering any drugs or guns. She admitted, however, that she knew that in the past on at least one occasion, the accused had transported drugs for someone else.

III

Analysis

A. Resolving the Credibility Issues

[53] Having carefully considered all of the evidence in this matter, I accept the testimony of the two police officers as credible, and as a truthful and reliable account of the events of the early morning hours of August 14, 2011. Both officers struck me, by their demeanour and the substance of their evidence, as candid and honest witnesses trying to recall accurately the sequence of events that evening and the reasons for their investigative conduct.

[54] Moreover, the testimony of the police officers provided a logical and sensible account of the events that night. The police were investigating a 911 emergency call at a particular townhouse location. By wandering into the back yard of that same townhouse location at 3:00 in the morning, with no sensible explanation, it is understandable that the police would want to speak to him and check his background to ascertain any potential connection with the townhouse under investigation. Being unlawfully possessed of a loaded firearm, ammunition and illicit drugs, it is easy to imagine how the accused might have been nervous when approached by the police, and how he might have wanted to ensure that his firearm remained concealed in the waistband of his pants with his wrist and elbow. Observing the accused acting suspiciously, like a person armed with a weapon, would reasonably have caused the officers to suspect that the accused was armed, and would understandably lead them to want to conduct a brief “pat down” search of the accused for their own safety before releasing him. Their reasonable suspicions could only have been confirmed when the accused resisted the proposed search and tried to flee.

[55] While Constable O’Neil could not clearly articulate the precise legal basis for his investigative detention of the accused and seemed at times confused in relation to this issue, this deficiency in his legal knowledge does not cause me to have any questions or concerns about the overall veracity of his testimony as to the events of August 14, 2011 and his interactions with the accused that night. Neither police officer waivered at all in their evidence that the accused was only approached when he left the public sidewalk and walked into the back yard of the townhouse unit under investigation.

[56] I was much less impressed with the testimony of the accused and Ms. Palmer. Aspects of their evidence were inconsistent, made little sense when contrasted with the testimony of the two police officers, and in my view, were driven by self-interest.

[57] For example, in his viva voce testimony, the accused denied ever being advised of his right to talk to a lawyer or being given an opportunity to contact a lawyer on the evening in question, even after he was taken back to the police station. This evidence cannot be true, and is inconsistent with the accused’s own affidavit. At the preliminary inquiry, Constable O’Neil testified that when they were back at the police station, he inquired as to whether the accused wanted to speak to a lawyer, and the accused gave him the name, William Reid, a lawyer that he wanted to contact. In his viva voce testimony, the accused admitted that these police officers had never arrested him before. The accused also admitted that his previous lawyer was named William Reid. As the police could not have come up with the correct name of the accused’s lawyer on their own, the alleged conversation at the police station must have happened as described by Constable O’Neil. Indeed, in his own affidavit, the accused suggested that once they were “back at the station” he was told of his right to call a lawyer.

[58] By way of further example, in their respective affidavits both the accused and Ms. Palmer clearly indicated that the interaction between the accused and the two police officers took place on the sidewalk on Grandravine Drive. More particularly, in his affidavit, the accused stated that he was walking along the sidewalk on Grandravine Drive when the two police officers stepped onto the sidewalk ahead of him, walked toward him, and engaged him in conversation. Indeed, they “blocked the sidewalk” in front of him while they questioned him about the nearby townhouse unit. Similarly, Ms. Palmer also indicated that upon her arrival on the scene, the accused was on the sidewalk and the two officers were blocking his path. According to the accused, subsequently, when the officer told him that he wanted to conduct a “quick search” of him, he “backed away” from the officer. Similarly, in her affidavit, Ms. Palmer explained that when the officer reached for the accused, she saw the accused “step backwards” and away from the officer. It was at that point, according to the accused’s affidavit, that the police told him that he was “now allowed to search [him] because [he] was on private property.” The accused verbally protested, and a physical tussle ensued. Ms. Palmer also witnessed this tussle.

[59] This version of events makes little sense to me. From the evidence (especially from the photography of the scene), it is apparent that there is quite a distance between the public sidewalk and the fenced-in back yards of the townhouses. There are large trees growing on this intervening grassy boulevard area. There is also a patio-stone laneway running perpendicular to the sidewalk, leading across this grassy boulevard area from the sidewalk to the back yard gate. If the original interaction between the police and the accused had taken place on the sidewalk, as these two affidavits suggest, the accused would have had to do more than simply “back away” or “step backwards” from the reaching officer in order to put himself physically onto the “private property” of the townhouse unit. Of course, it would make no sense for the police officers to claim that the accused was trespassing on “private property” unless the accused was actually inside the fenced-in area of the back yard. In any event, in my view, the events of that evening could not have unfolded as claimed in the affidavits affirmed by the accused and his girlfriend.

[60] Significantly, in his viva voce testimony, the accused changed his evidence. More specifically, he agreed that when he was first stopped by the police, he was not on the sidewalk, but rather was on the patio-stone laneway between the sidewalk and the fenced-in back yard of this townhouse. He explained that he had been “cutting across” this grassy boulevard area when he met up with the police. This is a significant change in the version of events provided by the accused in his affidavit, without any credible explanation for the change. One would have thought that it would not be difficult to remember where the interaction that night took place, especially if part of the interaction was alleged to have taken place on “private property.”

[61] Interestingly, Ms. Palmer did not change her version of these events when she gave her viva voce testimony. Indeed, she confidently maintained that the entire interaction between the police officers and the accused that night took place on the sidewalk. She testified that she was sure that the accused was not anywhere near the gate to the back yard of townhouse unit 132. While consistent with the affidavit evidence of the accused, this testimony is inconsistent with the viva voce evidence of the accused.

[62] In any event, I accept neither version of the events provided by the accused or Ms. Palmer. More particularly, I do not accept the affidavit evidence that he was randomly stopped by the police as he was walking on the sidewalk in the general vicinity of the townhouse under investigation. Similarly, I do not accept the viva voce testimony of the accused, that he was randomly stopped by the police on the patio-stone laneway dissecting the grassy boulevard on Grandravine Drive. Nor do I accept the defence suggestion that this allegedly random detention of the accused was due largely, or even partially, to his status as a young black man. Indeed, in my view, there is no evidence to support the suggestion that this was, in any way, a race-based investigation or detention on the part of the police.

[63] Instead, I accept the testimony of the two police officers as to their conduct that evening, and their interactions with the accused. To the extent that the evidence of the accused and Ms. Palmer is inconsistent with that account of the relevant events, I reject their evidence as untruthful or inaccurate.

B. The Essential Findings of Fact

[64] Based on my acceptance of the testimony of the two police officers, I make the following findings of fact based on their testimony.

[65] At approximately 3:00 a.m. on August 14, 2011, while the police were awaiting the arrival of a Toronto Housing Authority security guard, the accused walked from the public sidewalk on Grandravine Drive into the back yard of unit 132, through the open gate of the fenced-in back yard. The accused walked at least five feet into the back yard area.

[66] When the officers spoke to the accused, he told them that he did not reside in the unit. His only explanation for what he was doing in the back yard was that he was “waiting for a ride.” During his interaction with the officers at that point, his conduct was suspicious. He seemed nervous and did not make eye contact with the officers, but kept his head down. More importantly, his explanation for his presence in the back yard of the townhouse made no sense. If he was just waiting for a ride, he should have been out on the sidewalk near the street, not in someone’s back yard.

[67] I accept that, at that point, the police wanted to continue to investigate the accused in relation to both his apparent trespass upon the property of townhouse unit 132, and also in relation to their “check address” 911 static line emergency call. The police placed the accused under investigative detention for both of these two purposes. I make this finding of fact notwithstanding the somewhat confused testimony of Constable O’Neil (at the preliminary inquiry and at trial) as to the legal basis for his investigative detention of the accused. While Constable O’Neil was unable to clearly and consistently articulate his legal basis for detaining the accused, I have no doubt that these two reasons formed the true factual basis for his investigative detention of the accused. The testimony of both police officers, in my view, strongly supports this conclusion.

[68] However, I also accept that Constable O’Neil did not fully advise the accused as to the reasons for his detention. More specifically, I find that the police only advised the accused that he was under investigative detention in relation to the Trespass to Property Act, and did not also advise the accused as to the specifics of the “check address” 911 call in relation to that same townhouse, and that he was also being detained in relation to that continuing investigation. While Constable Perelli thought that his partner had mentioned both reasons to the accused in placing him under investigative detention, Constable O’Neil had no clear recollection of mentioning the “check address” call to the accused, and admitted that there was no mention of this in his notes or in his preliminary inquiry testimony.

[69] Further, I find that the police, in placing the accused under investigative detention, mentioned his right to consult with counsel generally, but failed to fully and properly inform the accused of all aspects of the informational component of his rights under s. 10(b) of the Charter. More specifically, Constable O’Neil failed to advise the accused of his right to immediately access counsel through a 1-800 telephone number, and the availability of free legal advice at that time of the night. Accordingly, the accused declined the opportunity to consult with a lawyer without being advised of all of the reasons for his detention and without accurately being apprised of the details of his right to a lawyer.

[70] I accept the evidence of the police officers that as they waited for the completion of the background computer check, the accused engaged in further suspicious conduct by performing a “hip check” by twice tapping his right wrist on his right hip, holding his wrist there at his waist, and “blading” his body away from the police. I also accept that when Constable O’Neil returned the driver’s license the accused received it awkwardly by keeping his right elbow pressed tightly against his right hip.

[71] I also accept that, based upon his training as a police officer, Constable O’Neil viewed this suspicious and nervous conduct by the accused as indicative of someone who may well be armed with a weapon, thereby justifying a brief “pat-down” search of the accused for reasons of officer safety. It was only when the accused refused to permit this search and sought to escape that the police officers physically wrestled the accused to the ground, conducted the search, and found the contraband articles in the possession of the accused.

[72] Finally, I find as a fact that the conduct of the police officers on the evening in question was driven only by their legitimate investigative interests, and had nothing to do with the race of the accused or any potential racial profiling on their part – either consciously or unconsciously.

C. The Legal Consequences of These Findings of Fact

1. Introduction

[73] The legal consequences of my findings of fact, based on my conclusions regarding the issues of credibility, are as follows.

2. The Investigative Detention of the Accused

[74] When the accused walked into the back yard of townhouse unit 132 on Grandravine Drive, at approximately 3:00 a.m. on August 14, 2011, the police were entitled, if not duty bound, to make inquiries of the accused as to his potential connection to the premises. The police were, after all, conducting an ongoing investigation flowing from a 911 emergency call regarding those very premises. The accused might well have had helpful information in relation to that investigation. Police officers are, of course, entitled to question any person, whether they are suspected of unlawful activity or not, from whom the officer thinks useful information might be obtained. See: R. v. Dedman (1981), 32 O.R. (2d) 641 (C.A.) at p. 653; Affirmed: R. v. Dedman, [1985] 2 S.C.R. 2.

[75] When the accused disavowed any connection to the premises, however, nervously explaining only that he was in the back yard “waiting for a ride,” the police were lawfully entitled to place him under investigative detention. At that point, the accused was technically in violation of the Trespass to Property Act, and the police were entitled to briefly detain him for further investigation both in relation to his apparent trespass on the townhouse property and also in relation to their continuing investigation of the 911 emergency call connected to these premises.

[76] In placing the accused under investigative detention, the officers were not acting on any mere hunch. Nor were the police using the apparent trespass by the accused as any kind of pretext or ruse to continue their investigation. Nor were the police engaged in any kind of racial profiling exercise. Rather, the police were, in my view, simply acting on their reasonable suspicions that the accused was either trespassing on the townhouse premises or was connected in some way to the emergency call emanating from the townhouse premises under investigation. Accordingly, the accused was not arbitrarily detained in violation of s. 9 of the Charter.[^4]

[77] This case is, in my view, indistinguishable from the decision of the Court of Appeal for Ontario in R. v. Amofa, 2011 ONCA 368, 85 C.R. (6th) 265. In that case, the police were involved in a robbery reduction initiative and were on plain clothes patrol at a Toronto Transit Commission (TTC) subway station in Toronto. Their purpose was to observe and investigate individuals “loitering” in violation of the Trespass to Property Act, R.S.O. 1990, chap. T.21. The program had been launched in response to a number of incidents of swarming in subway stations. This particular station had been identified as a high risk area for crime.

[78] On the day in question, the officers saw two young men loitering in the station. After 20 minutes of surveillance, the police believed the men were looking for particular individuals and they became concerned that this might lead to a robbery or mugging. The officers approached the two men, identified themselves, and told them that they were being investigated under the Trespass to Property Act for loitering on TTC property. The two men identified themselves with valid drivers’ licenses. One officer told the accused that they were being investigated for an arrestable offence, but were not actually under arrest. However, the officer indicated that he wanted to conduct a “pat down” search for officer safety reasons. The accused effectively refused. In so doing, the accused “bladed his body” so as to place it in a profile that obscured the side of his body where a loaded handgun was ultimately found. At that point, the police arrested the accused for trespassing. The accused resisted and tried to escape, but was ultimately subdued. When searched, he was discovered to have a loaded .45 calibre semi-automatic handgun in the waistband of his pants.

[79] Blair J.A., delivering the judgment of the court, found no violation of either s. 8 or 9 of the Charter. With respect to the “detention” of the accused, Blair J.A. agreed with the trial judge, at para. 12, that the detention was not arbitrary “because the police had a reasonable belief that the men were loitering and they were entitled to question them.” With respect to the search of the accused, Blair J.A., at para. 15-26, held: (1) that the police surveillance of the subway station was well within the scope of the police duty to protect the public; (2) that there were ample grounds justifying the police use of their power to investigate, detain and arrest the accused for loitering under the provincial trespass legislation; and (3) sufficient grounds existed to justify the search of the accused as “incidental to an investigative detention” given that the reason for the search was officer safety and the officers reasonably believed that their safety was at risk. See also: R v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45.

[80] In the present case, like R. v. Amofa, the initial investigation of the townhouse premises and the accused was well within the scope of the police duty to preserve the peace, prevent the commission of crimes and other offences, assist potential victims of crimes, and generally protect the lives and property of the public. See also: Police Services Act, R.S.O. 1990, chap. P.15, s. 42; R. v. Dedman, [1985] 2 S.C.R. 2, at pp. 11-12; R. v. Godoy, [1999] 1 S.C.R. 311, at para. 11-12, 14-17.

[81] Again like R. v. Amofa, the detention of the accused in this case was not arbitrary as the police had reasonable grounds for their belief that the accused was trespassing in the back yard of the unit 132 townhouse, contrary to s. 2(1)(a)(i) of the Trespass to Property Act. That provision makes it a provincial offence for anyone, not acting under some legal right or authority, and without the express permission of the owner or occupier of the premises, to enter on premises when entry is prohibited under the Act. According to s. 3(1)(b) of the Trespass to Property Act, entry on premises is prohibited, without any notice, on premises that are “enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises.”

[82] There is, under s. 3(2) of the Act, a presumption that “access for lawful purposes to the door of a building” on premises by a “means apparently provided and used for the purposes of access” is not prohibited. In my view, however, this statutory implied permission to enter lands to approach a door for some lawful purpose has no application in this case given that the accused was not, in fact, approaching the door of the building for any lawful purpose. It is important to recall that the accused entered the fenced-in back yard of these premises at 3:00 in the morning, with no intention whatsoever of approaching the door of the premises, and without any lawful purpose in mind in connection with the dwelling.

[83] In my opinion, viewing these provisions of the Trespass to Property Act together, they do not permit, but rather prohibit, late night access to a fenced-in back yard by random members of the public. By enclosing the back yard with a fence, even one with a gate, the occupier of the premises has evidenced his or her intention to keep persons off the premises. Further, as I have already stated, there was no implied permission to enter the premises in the circumstances of this case. Accordingly, once the accused told the police officers that he had no connection to the unit 132 townhouse, they had reasonable grounds to believe that he was trespassing on the premises contrary to s. 2(1)(a)(i) of the Trespass to Property Act.

[84] The accused placed heavy reliance on the fact that the gate happened to be open at the time he entered the fenced-in back yard of the townhouse premises. In my view, however, whether the accused was trespassing or not cannot turn on whether the gate happened to be open or closed. Under s. 3(1)(b) of the Trespass to Property Act, entry is prohibited where the premises are “enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises.” Such “enclosed” areas will almost invariably have some type of gateway to permit the owners or occupiers to come and go. Accordingly, the existence of such gateways, regardless of whether they are open or closed, cannot be determinative of the “occupier’s intention.” Moreover, the mere fact that such a gate is found open is not an implied invitation to enter the fenced-in back yard in the middle of the night.

[85] The validity of the investigative detention of the accused does not, however, turn solely upon the provisions of the Trespass to Property Act. More particularly, in my opinion, the police were doubly justified in briefly detaining the accused given their ongoing investigation of the 911 emergency call.

[86] In R. v. Godoy, the Supreme Court of Canada dealt with the question of whether or not the police were entitled to forcibly enter a dwelling house in response to a 911 emergency call. Lamer C.J.C., delivering the judgment of the unanimous court, concluded that the police had a legal duty to respond to such distress calls and could justifiably use force in their investigation of such calls where warranted. In reaching this conclusion, Lamer C.J.C. observed, at para. 16, that 911 emergency calls are “distress” calls, and cries for “help.” While such calls may be precipitated by criminal events, “criminal activity is not a prerequisite for assistance.” The purpose of the 911 emergency response system is “to provide whatever assistance is required.” In cases where the call is disconnected, and the nature of the distress unknown, it is imperative that the police “assume that the caller is in some distress and requires immediate assistance.” The police duty to protect life is, therefore, engaged by such calls.

[87] The Supreme Court accepted that, as Doherty J.A. observed in R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont.C.A.) at p. 499, the justifiability of a police officer’s conduct in such circumstances depends on a number of factors, including the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. In the circumstances presented in R. v. Godoy, Lamer C.J.C. concluded, at para. 18-23, after considering all of these factors, that the police conduct in forcibly entering the dwelling house was justified in all of the circumstances.

[88] Applying the analysis from R. v. Godoy to the circumstances of the present case, I conclude that the brief investigative detention of the accused in connection with the 911 emergency call was a justifiable exercise of police power. The police were under a legal duty to investigate the 911 call, and were obliged to assume that the 911 caller connected to the townhouse unit was in some type of distress that required immediate assistance. The fact that the accused trespassed on the premises of this very townhouse unit at 3:00 in the morning and had no logical explanation for his presence in the back yard of this unit, justified the police officers’ investigative interest in the accused. In order to check the identity and background of the accused to see if he had any connection with the townhouse under investigation, at least some temporary interference with the accused’s liberty was required. The police were not bound to accept the word of the accused that he had no connection to the townhouse unit and had just randomly wandered into the fenced-in back yard to wait for his ride. The police were, at that point in time, still unsure of the reason for the 911 emergency call and the safety of any persons who may be inside the townhouse. Given the critical importance of the police duty to investigate all 911 distress calls, and the very limited nature of the brief interference with the liberty of the accused to perform this investigative step, in my view, the police conduct in placing the accused briefly under investigative detention was justified in the circumstances of this case.

[89] The accused argued that the police can only place an individual under investigative detention pursuant to R. v. Mann if they are involved in the investigation of a particular criminal offence. I disagree. While the court in R. v. Mann, at para. 45, certainly formulated the legal threshold for “investigative detention” as being based upon reasonable grounds to suspect that an individual was “connected to a particular crime,” the judgment in R. v. Mann has not been interpreted as restricting the use of investigative detention to only those situations where the police can pinpoint a particular crime under investigation with precision. See: R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567 (Ont.C.A.) at para. 18. Nor has the judgment in R. v. Mann been interpreted as restricting the police power of investigative detention to the investigation of true crimes, as opposed to the investigation of offences more generally. Indeed, the decision of the Court of Appeal for Ontario in R. v. Amofa, at para. 5, 8, 12-16, 21, expressly recognized the legal ability of the police to employ the power of investigative detention to detain individuals suspected of the provincial offence of “loitering” under the Trespass to Property Act. See also: R. v. Reid, 2011 ONSC 6797, at para. 10-19, 26-31, 83-87, 99. Further, in R. v. Godoy, the Supreme Court of Canada expressly concluded, at para. 16, that while 911 emergency call investigations may be precipitated by criminal events, “criminal activity” is not a prerequisite for police assistance in relation to such investigations.

[90] Moreover, the judicial authorities are clear that investigative detention is a police power that is justified, in the totality of the circumstances, on the basis of “articulable cause” or “reasonable grounds for suspicion” and under the traditional two-part test articulated in R. v. Waterfield, [1963] 3 All E.R. 659, requiring: (1) that the police be acting in the course of their duty when they interfered with the liberty or property of the citizen; and (2) that the conduct of the police did not involve the unjustifiable use of powers in association with that duty in the circumstances of the case. Of course, the important duties placed upon police officers by the common law and statute extend well beyond the investigation of the commission of true criminal offences. See: R. v. Mann, at para. 23-35, 45; R. v. Godoy, at para. 7-9, 12; R. v. Stenning, [1970] S.C.R. 631; R. v. Knowlton, [1974] S.C.R. 443; R. v. Dedman; R. v. Simpson, at p. 499; Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.); R. v. Amofa, at para. 8, 12-16, 19-24.

3. The Protective Search for Weapons

[91] In my view, in all of the circumstances of the present case, again just like R. v. Amofa, sufficient grounds existed to justify the proposed brief “pat down” search of the accused for any potential weapons, and the physical search of the accused which ultimately ensued.

[92] While completing their investigation, the accused conducted himself in a way that caused the police to reasonably suspect that he was armed with a weapon. In this regard, the observed conduct of the accused in relation to his right hip area – tapping his right wrist on this area of his hip, holding his right wrist on this location, and oddly maintaining his elbow on his right hip area when receiving his driver’s licence – together with the “blading” of his body so as to turn the right side of his body away from the police, reasonably caused the police to suspect that the nervous accused might well be armed with a weapon. All of this activity was strangely suspicious conduct by the accused that the police had been trained to observe and understand. Constable O’Neil interpreted this conduct by the accused – quite accurately as it turned out – as indicative of someone with a concealed weapon in the waistband of his pants.

[93] At this point, if not before, the police were lawfully entitled to conduct a brief “pat-down” search of the accused in order to ensure and preserve their own physical safety. When the accused refused to permit this search and sought to escape their custody, the police officers were entitled to employ the necessary force to physically subdue the accused and conduct this search. Accordingly, the physical search of the accused, which resulted in the discovery of the loaded firearm, ammunition and illicit drugs, was not in violation of s. 8 of the Charter.

[94] Moreover, the police officers were right to be especially cautious about the potential for concealed weapons when, as in the present case, their duties caused them to undertake an investigation in a “high priority” area known for an increased level of violent crime. Their own self-preservation dictates that they observe an enhanced vigilance in relation to potential concealed weapons in such geographical locations.

[95] Accordingly, as in R. v. Amofa, in my view, the proposed “pat down” search of the accused for weapons was fully justified as incidental to the investigative detention of the accused given that the reason for the search was officer safety, and the officers reasonably believed that their safety was at risk. Of course, when the accused refused to permit this incidental “pat down” search for weapons and instead tried to flee, the police were entitled to use reasonable and proportional force to prevent the accused’s escape, and to conduct the necessary weapons search to protect themselves and the general public in the vicinity. See: R v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 36-45; R. v. Clayton and Farmer, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 40-49; R. v. Dene, 2010 ONCA 796, at para. 4-5; R. v. Amofa, at para. 8-10, 18-26; R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172 (Ont.C.A.) at para. 44, 48-61; R. v. Byfield, 2012 ONSC 2781, [2012] O.J. No. 2440 (S.C.J.) at para. 78-81; 110-114.

4. The Charter Violations by the Police

[96] The conduct by the two police officers, however, in their dealings with the accused, was not entirely beyond reproach. In failing to advise the accused as to both of the reasons for his investigative detention, the police violated s. 10(a) of the Charter, which provides that everyone under arrest or detention has the right to “be informed promptly of the reasons therefor.” In addition, in failing to fully advise the accused of all aspects of the informational component of his right to counsel, the police also violated the accused’s rights under s. 10(b) of the Charter.

D. The Admissibility of the Evidence

1. Introduction

[97] As the police seized the contraband from the accused after violating his constitutional rights under s. 10(a) and 10(b) of the Charter of Rights, the next step is to determine the admissibility of the evidence under s. 24(2) of the Charter. See: R. v. Goldhart, [1996] 2 S.C.R. 463; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235.

[98] According to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, there is a three-pronged test to be applied. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state 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. The court must conduct this balancing assessment considering all the circumstances of the case. See also: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 45-48; R. v. Cole, 2012 SCC 53, at para. 80-98; R. v. Aucoin, 2012 SCC 66, at para. 45-52.

2. The Seriousness of the State Conduct

[99] As to the first prong of the test, namely, the seriousness of the state conduct, the court must consider whether the admission of the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. The goal is not to punish the police or deter Charter breaches, but preserve public confidence in the rule of law and its processes. See: R. v. Grant, at para. 72-75.

[100] As I have already indicated, in the present case, the police violated the constitutional rights of the accused by: (1) failing to fully advise him of both of the reasons for his investigative detention; and (2) failing to fully advise him of the informational component of his right to counsel. Of course, both failures by the police must be taken into account in assessing the gravity of the state misconduct.

[101] It is important for the police, whenever placing a suspect under investigative detention, to fully advise the suspect of the reasons for that detention, as required by s. 10(a) of the Charter. It is only when fully and accurately advised as to the reasons for the detention that a suspect will be in a position to determine whether, and the extent to which, it is necessary to consult with counsel. Accordingly, if there are two or more reasons justifying investigative detention, those reasons should all be explained, at least briefly, to the suspect. As Iacobucci J. stated, in delivering the judgment of the majority of the court in R. v. Borden, [1994] 3 S.C.R. 145, at p. 166:

As this Court has previously stated, the rights in s. 10(a) and 10(b) of the Charter are linked. One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy: R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-153; and R. v. Smith, [1991] 1 S.C.R. 714, at p. 728.

[102] Accordingly, when placing the accused under investigative detention in this case, the police ought to have told him that he was being detained: (1) for further investigation in relation to his apparent trespass into the fenced-in back yard of the townhouse premises; and (2) in relation to their ongoing investigation of the 911 emergency call connected to this same townhouse unit. Had the police provided the accused with all of this information about his investigative detention, he would then have understood his legal position, the full extent of his potential jeopardy, and he could have made a fully informed decision about how best to exercise his right to counsel.

[103] It is also important for the police, whenever placing a suspect under investigative detention, to fully advise the suspect of the informational component of his or her right to counsel, as required by s. 10(b) of the Charter. Without fully providing this important informational component of the right to counsel, there can be no guarantee that the suspect will be aware of the details of their constitutional right to counsel. See: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 2, 37-42. It is now well-settled that, in Ontario, one aspect of the informational component of the right to counsel is the right to be informed of the immediate availability of free legal advice from legal aid duty counsel. See, for example: R. v. Brydges, [1990] 1 S.C.R. 190, at p. 211-218; R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 191-203; R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 256-265; 278-279; R. v. Pozniak, [1994] 3 S.C.R. 310, at p. 319; R. v. Latimer, [1997] 1 S.C.R. 217, at para. 2, 32-39. While the accused in the present case was generally advised of his right to counsel, the Crown accepts that the accused was not advised of this important aspect of his right to counsel. In the circumstances, the danger of this omission is that the accused might have perceived his right to counsel as not easily or practically exercised in the middle of the night.

[104] The evidence is not clear as to why Constable O’Neil failed to advise the accused fully as to the reasons for his investigative detention and failed to fully inform him as to his right to counsel. I find the police failure to properly inform the accused of his right to counsel especially difficult to comprehend. The right to counsel is not new, and the details of the informational component of the right have been settled for many years. All Constable O’Neil had to do was to read the accused the details of the right to counsel printed at the back of his police Memo Book for precisely this purpose – as the officer would undoubtedly have done on many earlier occasions. While I do not believe that these omissions by Constable O’Neil were deliberate or willful, I cannot say that the officer was operating entirely in good faith. Negligence is not good faith, and I am compelled to the conclusion that Constable O’Neil’s failure, at least in relation to the failure to fully advise the accused of his right to counsel, amounted to negligence on his part.

[105] Accordingly, these violations of the Charter rights of the accused were serious, and this first prong of the governing s. 24(2) analysis supports the exclusion of the evidence. See: R. v. Grant, at para. 74-75.

[106] The accused argued that the gravity of the police misconduct in this case is made more serious by virtue of the way in which the police subsequently dealt with Ms. Palmer. I disagree. The law is well-settled that the accused has no standing to complain of alleged violations of constitutional rights possessed by third parties. See, for example: R. v. Edwards, [1996] 1 S.C.R. 128.

3. The Impact of the Charter Violations

[107] As to the impact of the Charter violations, the second prong of the test, the court must assess the extent to which the breaches undermined the Charter-protected interests of the accused. Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to look at the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. See: R. v. Grant, at para. 76-78.

[108] In the present case, the violations of the Charter by the police did not have a particularly significant impact upon the Charter-protected interests of the accused. More particularly, after these breaches of the Charter, although the accused did not consult with a lawyer, he also did not provide the police with any incriminating evidence or inculpatory statements. Had the accused, for example, confessed to his illegal possession of a firearm, ammunition and illicit drugs following these violations of the Charter, the impact of the Charter violations would have been much more serious and the evidence more likely excluded. See: R. v. Grant, at para. 89-98. However, it is fair to observe that the police actually obtained no evidence from the accused as a consequence of their violations of his Charter rights. Indeed, in my view, it is hard to imagine how the sequence of events on the night of August 14, 2011 might have been altered, in terms of how the police came to discover the contraband in the possession of the accused if the police had not violated the Charter rights of the accused. Accordingly, the second prong of the s. 24(2) analysis favours the admission of the evidence.

4. The Truth-Finding Function of the Trial

[109] As to the third avenue of inquiry, the court must inquire whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support the exclusion of the evidence. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public, and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See: R. v. Grant, at para. 79-84.

[110] In the present case there is no question that the loaded firearm, ammunition and illegal drugs in issue are inherently reliable and objective pieces of evidence that are crucial to the determination of the merits of this case. If this body of evidence is excluded, the Crown’s case must fail. If the evidence is admitted, however, it would appear that the Crown would be able to establish that the accused was, indeed, in possession of this contraband. Society's interest in the adjudication of criminal trials on their merits would be seriously undercut if this kind of highly reliable and critical evidence were excluded. Accordingly, this third aspect of the governing s. 24(2) analysis clearly favours the admission of the evidence. See: R. v. Grant, at para. 139; R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont.C.A.) at para. 31; R. v. Jones, 2011 ONSC 4158, at para. 67; R. v. Duhamel, 2012 ONSC 6448, at para. 85.

5. Conclusion

[111] There is “no overarching rule” that governs how these three factors should be balanced. Mathematical precision is obviously not possible, but consideration of these factors provides a flexible and helpful “decision tree.” See: R. v. Grant, at para. 86. The balancing of these three key considerations, in light of all of the circumstances of this case, leads me to the conclusion that the evidence should be admitted.

[112] In summary, the police conduct in violating the Charter rights of the accused was negligent, but it was neither deliberate nor intentional. While the police did not act in good faith, neither did they act in bad faith. They were negligent because they ought to have known better how to provide the accused with his Charter rights when placing him in investigative detention. Accordingly, the first factor supports the exclusion of the evidence. On the other hand, the impact of these Charter violations on the accused was not significant. In failing to properly advise the accused as to the reasons for his detention and the informational nuances of his right to counsel, the police obtained no incriminatory evidence that they would not inevitably have obtained in any event. More particularly, the accused did not provide the police with any admissions or inculpatory statements. Moreover, the evidence would inevitably have been discovered. Therefore, this second factor supports the admission of the evidence. Finally, the evidentiary value of the firearm, ammunition and drugs is quite considerable given that this contraband is objectively reliable evidence that is essential to the just determination of this case on its merits. As a result, this third factor also supports the admission of the evidence. See: R. v. Grant, at para. 129-140. As I have said, in trying to best balance all of these important considerations, against the factual background of the entire case, I have concluded that the evidence is admissible under s. 24(2) of the Charter.

IV

Conclusion

[113] In summary, the accused was lawfully placed under investigative detention by the police on the evening of August 14, 2011. Accordingly, there was no arbitrary detention of the accused in violation of s. 9 of the Charter. Further, the police had reasonable grounds for their suspicion that the accused was armed with a concealed weapon that night. Therefore, their resulting personal search of the accused was reasonable and not contrary to s. 8 of the Charter. However, the police failed to properly advise the accused of all of the reasons for his investigative detention, and also failed to fully advise him of the informational component of his right to counsel. Accordingly, there were violations of the constitutional rights of the accused under both ss. 10(a) and 10(b) of the Charter. Nevertheless, the contraband seized by the police is admissible as evidence in this case under s. 24(2) of the Charter.

Kenneth L. Campbell J.

Released: January 16, 2013

COURT FILE NO.: CR-12-40000186

DATE: 20130108

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

MACKEL PETERKIN

PRE-TRIAL RULING ON

CHARTER APPLICATION

Kenneth L. Campbell J.

Released: January 16, 2013

[^1]: Unless otherwise indicated, the summary of the evidence of the two police officers includes both their evidence at that preliminary inquiry and at trial.

[^2]: Unless otherwise indicated, the summary of the evidence of the accused includes both his affidavit evidence and his trial testimony.

[^3]: Unless otherwise indicated, the summary of the evidence of Ms. Palmer includes both her affidavit evidence and her trial testimony.

[^4]: I note in passing that while this issue was not raised by the police officers in their evidence or by the parties in argument, the officers could likely have detained the accused for further investigation in relation to the potential criminal offence of “trespassing at night,” contrary to s. 177 of the Criminal Code, given that the accused appeared to be loitering in the back yard of property belonging to another person near a “dwelling house” that was located on the property. See: R. v. Priestap, 2006 CanLII 12288 (ON CA), 207 C.C.C. (3d) 490 (Ont.C.A.) at para. 18-34. However, I need draw no final conclusions in this regard.