DATE: 20130128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JORDAN BAKER
Applicant
Sarah J. Curtis, for the Respondent
Allan J. Lobel, for the Applicant
HEARD: January 14 and 15, 2013
Ruling re Application to Exclude Evidence under s. 24(2) of the Charter
MacDonnell, J.
[1] On January 14, 2013, the applicant came before this court for trial on an indictment charging him with three counts of possession of controlled substances for the purpose of trafficking and one count of possession of property (Canadian currency) obtained by crime. The controlled substances and the currency were seized from the applicant in the course of a search of his person that followed his arrest for public intoxication under the provisions of the Liquor License Act, R.S.O. 1990, chapter L.19 (“LLA”).
[2] At the outset of the trial, the applicant applied for an order under s. 24(2) of the Canadian Charter of Rights and Freedoms excluding the seized items from evidence. He submitted that because the police did not have reasonable grounds to arrest him, the arrest was unlawful and infringed his rights under s. 9 of the Charter. He further submitted that because the arrest was unlawful, so too was the search that followed, and accordingly that his rights under s. 8 were infringed. He submitted that the admission of the fruits of the search could bring the administration of justice into disrepute.
[3] On January 17, 2013, I ruled that the evidence seized from the applicant in the course of the search was obtained in a manner that infringed his rights under ss. 8 and 9 of the Charter and that to admit the evidence would bring the administration of justice into disrepute. At that time, I stated that written reasons would follow. These are those reasons.
A. Was the Evidence Obtained in Breach of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
(i) the requirements for an arrest under [ss. 31(5)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)
[4] Subsection 31(5) of the LLA provides that a police officer “may arrest without warrant any person whom he finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person”. Subsection (4) provides that “no person shall be in an intoxicated condition” in a public place. In order to make a lawful arrest under ss. 31(5), therefore, a police officer must (i) “find” a person in an intoxicated condition in a public place, and (ii) form the opinion that it is necessary for the safety of someone that the intoxicated person be arrested. In this case, the only person whose safety was in issue was the applicant.
[5] The requirement that a police officer ‘find’ the person committing an offence under subsection (4) is satisfied if it is shown that the offence was apparently being committed: cf. Biron v. R., 1975 13 (SCC), [1976] 2 S.C.R. 56. Subsection 31(5) does not expressly require the officer’s belief that the person is intoxicated and that an arrest is necessary to be based on reasonable grounds, but reasonable grounds in relation to both of those factors are required if the provision is to comport with s. 9 of the Charter. In R. v. Brown, 2012 ONCA 1569, Doherty J.A. stated at paragraphs 13-14:
We accept that [the officer] honestly believed that the appellant was in possession of drugs and had attempted a hand-to-hand transaction… In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer’s belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be “reasonable”, meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances. The individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.
[emphasis added]
See also R. v. Johnson, [2010] O.J. No. 4793, at paragraph 39.
[6] In interpreting s. 31(5), it is to be presumed that the Legislature intended to comply with the Charter: Ontario (Attorney General) v. Fraser, 2011 SCC 20, 2011 2 SCR 3, at paragraph 104. In Slaight Communications v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, Lamer J. (as he then was) stated at paragraph 87:
Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.
[7] Subsection 31(5) is open to more than one interpretation. Bearing in mind the presumption that the Legislature intended it to be Charter-compliant, it can and should be interpreted as requiring an objectively reasonable basis for the belief that the person is intoxicated and that an arrest is necessary. I note that Whitten J. reached the same conclusion in R. v. Giri, [2001] O.J. No. 3307, at paragraph 32 (Sup. Ct.).
(ii) the relevant evidence
[8] At approximately 11 p.m. on May 11, 2010, Constables Chris McCann, Brian Dawn and Chad Merritt of the Toronto Police Service were on patrol in uniform in a marked police van in the area of College Street and Spadina Avenue. As they proceeded westbound in a laneway approaching Robert Street, McCann’s attention was drawn to two men standing beside the laneway, one of whom – the applicant – was urinating against the side of a garage.
[9] McCann stopped the van, got out and told the applicant to stop what he was doing. The applicant turned his head toward the officer and asked if he could finish urinating. McCann walked toward the applicant. When the applicant finished urinating, he turned to face the officer. His hands were in the pockets of his pants. McCann testified that the applicant’s eyes were bloodshot and glossy and that he seemed to be a little unsteady on his feet, but “he was not falling over or anything like that”. McCann agreed that there had been nothing unusual about the way the applicant was standing while he was urinating. He asked the applicant if he had been drinking. The applicant did not answer. He just looked McCann in the eye and stared. McCann asked the applicant what he had been drinking. Again the applicant did not respond but continued to stare at the officer.
[10] At that point, McCann formed the belief that the applicant was intoxicated. He formed that belief on the basis of the urination against the garage, the bloodshot and glossy appearance of the applicant’s eyes, his slight unsteadiness, and his silence and staring in response to the questions he was asked. He testified that as he was concerned about the applicant’s safety, he decided that he should be arrested pursuant to ss. 31(5) of the LLA. His intention, it appears, was to have the applicant kept in custody until he sobered up.
[11] The decision to arrest the applicant was made about a minute after McCann had first seen the applicant beside the laneway. Before making that decision, McCann made no other inquiries of the applicant, whom he had never encountered before. He also made no inquiries of the applicant’s companion. He conceded that he never turned his mind to whether there was another way, apart from arrest, to deal with the situation.
[12] Constable McCann told the applicant that he was arresting him for public intoxication and that he was going to conduct a pat-down search. When he put his hand on the applicant’s arm, the applicant pulled the arm away and said “don’t touch me, get away”. As the applicant did this, his hand came out of his pocket and McCann noticed a white package protruding from it. McCann continued to try to effect the arrest and a struggle ensued. Constable Dawn, who had also noticed the package protruding from the applicant’s pocket, intervened to assist McCann. The officers took the applicant to the ground, where they were able to put him in handcuffs.
[13] Dawn then searched the applicant. He testified:
We started searching the male to make sure he didn’t have any weapons, anything that could – during the remainder of the arrest any needles, any knives, anything that could harm me or myself, and also anything of further evidence and wanted to cover [sic] that bag of the substance I alluded to earlier.
[14] In the right front pocket of the applicant’s hoodie Dawn found two bags of white powder and a small quantity of marihuana. In the left front pocket of the hoodie, he located three bundles of Canadian currency. In the right front pocket of the applicant’s pants, Dawn found a baggie containing a white powdered substance. A similar baggie was found in the applicant’s shirt pocket. Another bundle of currency was found in the front waistband of the applicant’s pants.
[15] After the search was completed, McCann advised the applicant that he was under arrest for possession of a controlled substance.
(iii) Were the applicant’s rights under [sections 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and [9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) infringed?
[16] The position of the applicant is that his arrest for public intoxication under ss. 31(5) of the LLA was unlawful and an infringement of s. 9 of the Charter because Constable McCann did not have reasonable grounds to believe that he was intoxicated, let alone that he was so intoxicated that it was necessary to arrest him. The applicant submitted that the warrantless search that followed could only be said to be authorized by law if it was incident to a lawful arrest. As the arrest was unlawful, the search was not authorized by law and it infringed s. 8 of the Charter.
[17] The position of the Crown is that there were reasonable grounds for McCann’s belief that the applicant was in an intoxicated condition. The Crown conceded, however, that McCann did not have reasonable grounds for an opinion that the arrest was necessary and accordingly that the arrest for public intoxication was unlawful. Because it was unlawful, the arrest could not provide authority for the ensuing search. However, the Crown submitted, the observation that the officers made of the package protruding from the applicant’s pocket gave them grounds to arrest him for a drug offence and authority to search him as an incident of that arrest. Therefore, the Crown submitted, the search did not infringe s. 8.
[18] The effects of the consumption of alcohol on a person’s mental and physical faculties fall along a continuum. At which point along that continuum a person can be said to be in an intoxicated condition for the purposes of ss. 31(4) of the LLA can be a difficult question. It is unnecessary to answer that question in this case, however, because to exercise the arrest power under ss. 31(5) Constable McCann not only had to have reasonable grounds to believe that the applicant was intoxicated but also that he was so intoxicated that it was necessary to take him into custody for his own safety. In my opinion, the indicia of intoxication relied upon by Constable McCann could not reasonably provide a basis for the latter belief. Further, McCann did not know anything about the applicant. He did not know where he lived, whether he had family or friends at home, or whether those persons could take care of him. He also knew nothing about the applicant’s companion, what his relationship with the applicant was, whether he was drunk or sober, and whether he was prepared to ensure that the applicant got safely home.
[19] McCann did not know those things because he made no inquires, and he made no inquiries because, as he conceded, he never turned his mind to whether there was any way, short of an arrest, to deal with the situation. In other words, not only was there no objective basis for an opinion that it was necessary to arrest the applicant, McCann never subjectively formed that opinion. In the circumstances, the Crown’s concession that the arrest of the applicant was not authorized by ss. 31(5) of the LLA and that it infringed s. 9 of the Charter was amply justified.
[20] I do not accept the Crown’s submission that Constable Dawn’s observation of the package protruding from the applicant’s pocket gave him grounds to arrest the applicant for a drug offence. As I understood Dawn’s evidence, and in particular the portion of it set out at paragraph 13, supra, Dawn commenced the search of the applicant as an incident to the arrest for public intoxication. Although Dawn testified that he wanted to seize the package he had seen protruding from the applicant’s pocket, he did not say that he believed that that package contained a controlled substance. Nor did he testify that his initial sighting of the package led him to believe that the applicant was now subject to arrest for possessing a controlled substance.
[21] In my opinion, the warrantless search of the applicant was not authorized by law. Accordingly, the search infringed s. 8 of the Charter.
B. Should the Evidence Be Excluded Under s. 24(2)?
[22] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada held that on an application for exclusion of evidence under s. 24(2) of the Charter, a judge must consider 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 judge must balance the assessments under each of these lines of inquiry to determine whether in all of the circumstances of the case admission of the evidence would bring the administration of justice into disrepute. The burden of persuasion in this regard is on the applicant.
(i) the seriousness of the Charter-infringing state conduct
[23] The conduct of Constables McCann and Dawn cannot be described as egregious or as a deliberate breach of the applicant’s Charter rights. While McCann’s decision to arrest the applicant cannot be characterized as a good faith error, neither can it be said that it was made in bad faith. I am satisfied that the true reason for the arrest was the one McCann articulated, namely that he was concerned for the applicant’s safety because he believed that he was intoxicated. At the time he made the decision, McCann was not investigating the applicant for a criminal offence and the arrest was not a ruse to obtain evidence concerning such an offence.
[24] Counsel for the applicant urged the court to find that McCann attempted to mislead the court in relation to the symptoms of intoxication exhibited by the applicant. Counsel pointed out that when McCann testified at the preliminary inquiry he did not mention that the applicant was unsteady on his feet or that there was an odor of an alcoholic beverage in the air. Nor were those things referred to in the officer’s notes. McCann made it clear in his testimony here, however, that he could not attribute the odor of alcohol to the applicant and that he regarded it as a neutral factor in his assessment of whether the applicant was intoxicated. His evidence that the applicant was a little unsteady, but “not falling over or anything like that” did not add much to the grounds for his conclusion in that respect. Had McCann been inclined to dishonestly bolster his grounds for the arrest, it would not have taken much imagination to concoct more convincing symptoms. I do not regard the matters pointed to by counsel for the applicant to be evidence of an intention to mislead the court.
[25] There are several circumstances, however, that make the Charter-infringing conduct serious. The power of arrest is a formidable power. An arrest not only has a profound impact on the arrested person’s liberty but in almost every case it will lead to a search of his or her person. In this case, not only did McCann lack reasonable grounds to believe that the arrest was necessary to secure the applicant’s safety, he never turned his mind to whether there were other ways of addressing that concern. I reject the Crown’s submission that this is a case where McCann acted on grounds falling just short of constitutional adequacy. There is nothing in his evidence to support a suggestion that he was even close to having reasonable grounds to conclude that an arrest was necessary.
[26] Further, while there is no evidence of bad faith, neither can it be said that McCann acted in good faith. There was no uncertainty in the law with respect to the authority to arrest for public intoxication. The preconditions to the exercise of that authority are set out clearly in the LLA. Further, within the decade preceding the arrest of the applicant, at least two judgments of the Superior Court had addressed the issue of necessity in the context of LLA arrests: R. v. Giri, supra, and Radovici v. Toronto Police Services Board, [2007] O.J. No. 2663. In R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paragraph 59, Arbour J. stated that good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority. In Grant, supra, at paragraph 133, the majority noted that “while police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is.”
[27] Given McCann’s evidence that the particular Unit of the Toronto Police Service of which he was a member deals with intoxicated persons on a daily basis, and his evidence that he has made “countless” arrests for public intoxication, his failure to advert to the necessity requirement before placing the applicant under arrest tends to increase the seriousness of his conduct.
[28] On balance, I consider the Charter-infringing conduct in this case to be serious. That conclusion tends to point toward exclusion of the evidence.
(ii) the impact of the breaches on the applicant’s Charter-protected interests
[29] The second line of inquiry requires a consideration of the impact of the breaches on the Charter-protected interests of the applicant. In this case, the impact of the unlawful arrest and search on the applicant’s liberty and privacy interests was neither fleeting nor technical. When the applicant resisted the arrest, he was taken to the ground and handcuffed by two police officers. The infringing conduct was highly intrusive of interests protected by the Charter. That conclusion also points toward exclusion of the evidence.
[30] As I have said, the search of the applicant cannot be regarded as an incident to a lawful arrest for possession of a controlled substance. Even if it could, the fruits of the search would nonetheless have been obtained in a manner that infringed the applicant’s rights because of the unlawful arrest for public intoxication that preceded the search. The evidence would not have been discovered without the unlawful arrest. That is a circumstance that tends to exacerbate the impact of the breach on the applicant’s Charter-protected interests.
(iii) society’s interest in an adjudication on the merits
[31] The third line of inquiry involves an assessment of society’s interest in an adjudication of the charges on the merits. The charges are serious. The evidence in question is highly reliable. In Grant, the majority observed, at paragraph 83, that the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where it will gut the prosecution. Without the fruits of the search, the charges against the applicant cannot be proved. Accordingly, the third line of inquiry points toward admission of the evidence.
(iv) balancing
[32] In R. v. Harrison, supra, which was released concurrently with Grant, McLachlan C.J.C. stated at paragraph 36
It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[33] Determinations with respect to whether the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute are inherently case-specific. In my view, a balancing of the assessments under the three lines of inquiry described in Grant leads to the conclusion that a reasonable person, informed of the circumstances of this case and familiar with the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
C. Disposition
[34] For the foregoing reasons, the application to exclude the fruits of the search of the applicant is granted.
MacDonnell, J.
Released: January 28, 2013
R. v. BAKER, 2013 ONSC 415
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JORDAN BAKER
REASONS FOR Ruling
MacDonnell, J.
Released: January 28, 2013