DATE: 20140307

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. GAVVIN GREEN

BEFORE: Justice Spies

COUNSEL: Hafeez Amarshi, for the Crown

Keely Duncan, for the Defence

HEARD: February 18, 19, and 20, 2014

RULING ON DEFENCE charter APPLICATION TO EXCLUDE EVIDENCE

Introduction

[1] The Defendant Gavvin Green is charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He re-elected trial by judge alone and pleaded not guilty to both charges.

[2] Mr. Green brought an application for an order declaring that his right to be free from arbitrary detention and unreasonable search and seizure, and his right to be informed both of the reason for his detention and his right to retain and instruct counsel, have been violated. He seeks an order excluding the evidence that was obtained in a manner that infringed his rights under ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, pursuant to s. 24(2).

[3] The voir dire for the application was blended with the trial and was argued before the end of the Crown’s case.

The Issues

[4] Officers Bulbrook and Lee from 11 Division of the Toronto Police Service (“TPS”), who arrested Mr. Green on April 11, 2012, testified that they detained him in order to ask him questions and that Officer Bulbrook conducted a pat down search for officer safety reasons. Officer Bulbrook testified that during that search he felt a substantial hard object in Mr. Green’s right front pant pocket that he believed might be a weapon. He proceeded to remove the object; a plastic bag containing a quantity of crack cocaine weighing 20.99 grams in total, from that pocket. At this time Officer Bulbrook placed Mr. Green under arrest for possession of cocaine and gave him his rights to counsel and caution. He then proceeded to conduct a search incident to arrest and found currency totaling $320 Cdn. and $15 US in Mr. Green’s left front pant pocket. During a Level Three search at the station an additional $1,210 Cdn. and $1 US was found in a sock tied to Mr. Green’s penis.

[5] For the reasons that follow I find that Mr. Green was detained from the moment Officers Bulbrook and Lee followed him into a small bathroom on the second floor of 92 Lappin Avenue (“Lappin”) in Toronto and Officer Bulbrook told him to put his hands up. There is no dispute that the cocaine and currency evidence was found following Mr. Green’s detention as a result of the pat down search conducted by Officer Bulbrook and the Level Three search he and Officer Lee conducted at the station. There are, therefore, three issues to be determined:

(a) Has Mr. Green established on a balance of probabilities that his detention was not a lawful investigative detention and that his s. 9 Charter rights were breached?

(b) Has the Crown established on a balance of probabilities that the pat down search of Mr. Green, which was done without a warrant, was a lawful search incident to an investigative detention and that there was no breach of Mr. Green’s s. 8 Charter rights?

(c) Has Mr. Green established on a balance of probabilities that his s. 10(a) and/or s. 10(b) Charter rights were breached and if so, what remedy should be granted?

(d) If Mr. Green’s s. 9 and/or s. 8 and/or s. 10 Charter rights were breached, should the cocaine and currency evidence be excluded pursuant to s. 24(2) of the Charter?

The Evidence and Findings of Fact

[6] Officers Bulbrook and Lee were both experienced members of the TPS at the time of Mr. Green’s arrest. Officer Bulbrook had been a member of the TPS for almost six years and had spent his entire time at 11 Division, first in the Primary Response Unit (“PRU”) and then, as of September 2009, the Bail Compliance Unit (“BCU”). In the BCU he worked with Officer Lee as his permanent partner. Officer Lee started with TPS in 2004 at 11 Division and had experience in the Community Response Unit (“CRU”), the Criminal Investigation Bureau (“CIB”) and the BCU; all within 11 Division.

[7] Officers Bulbrook and Lee both testified that after completing their daily checks on people that they were monitoring to confirm bail compliance, because they were not tied down to radio calls they would take the initiative to go and check problem areas in the Division, including houses where, in their experience, regular calls had been made for service by the PRU for serious problems such as drugs and prostitution. Officer Bulbrook described it as a proactive way to deter what was going on in these areas.

[8] Officer Lee testified that they would try to find out at the station where the most activity was in the Division; as he termed them, “hotspots,” and try to respond to those addresses. As members of the BCU they sat in on CRU meetings and vice versa and they had crossover meetings as well where community complaints were discussed.

[9] Officer Lee testified that Lappin had been known for some time as an extremely active address for drug activity. It had been the source of numerous community complaints in the Division concerning drug dealing, drug activity and other criminal activity. He had no idea when the last community complaint had been made about Lappin, prior to their attendance in question, but stated that he would have heard about it at one of these meetings. Officer Bulbrook attended the same meetings but he was not asked about this and did not refer to them when he answered questions about his knowledge of complaints.

[10] Officer Bulbrook described Lappin as a three apartment house that had had a long history of drug problems. According to Officer Bulbrook, Lappin was the one problem house in the neighbourhood where police might be called as many as 100-200 times a year; it was an address where there were always ongoing issues. There were kids living next door and used needles found in the area of the house were of concern. Officer Bulbrook testified about numerous calls for drug and prostitution concerns about Lappin.

[11] Officer Bulbrook admitted that they had not been told to ramp up patrols at Lappin by their Staff Sergeant. He could not recall ever being detailed to go to Lappin, while he was with the BCU, because of an ongoing community complaint. He was asked by Ms. Duncan when the last community complaint was that he knew of concerning Lappin. He said he had no idea date-wise, but that it could have been as far back as December 2011. He said that he would not know a date because community complaints were not filtered down to him when he was in the BCU. He was not asked but I assume he meant formally as he also stated that he proactively went there because he was aware of community complaints.

[12] Prior to this arrest Officer Bulbrook had attended at Lappin hundreds of times and while in the BCU he went there five to six times a week. He had been visiting this address with and without Officer Lee for one to one and a half years and before that he had visited Lappin several times when he was with PRU. As a result he was very familiar with most of the residents at Lappin and the address itself. He had made several arrests at this home and executed search warrants there. He recalled a home invasion where people were assaulted or threatened by a knife or gun and he recalled several assaults occurring there and one serious mischief offence. He said it was “one issue after another” and that this had been ongoing for years; his entire career at least.

[13] Officer Lee confirmed that because the address was so active he and Officer Bulbrook would probably be there four to five times in seven days. They took this upon themselves and they would be checking on the tenants in each of the three apartments to see if they were alright. The officers were also checking what activity was going on at Lappin. Officer Lee testified that because of the criminal element that was at Lappin, a lot of drug users and drug dealers would go there and these people were usually on bail conditions as well. The house was also known for weapons. Accordingly the officers conducted bail compliance checks at Lappin even though the people living in the apartments were not on bail conditions at that time.

[14] According to Officer Bulbrook, a lot of the tenants at Lappin were addicted to drugs and had experienced constant and ongoing issues with drug dealers coming into Lappin, taking over their unit, refusing to leave and “plying their craft”. These people would come in and stay in the tenant’s room for days or weeks and do whatever they wanted such as selling drugs. The tenants were afraid of asking them to leave for fear of retaliation and so these people would stay until the officers asked them to leave. Officer Lee also testified that the tenants in Lappin would almost be bullied to the point where drug dealers could conduct their dealings in their apartments.

[15] Officer Bulbrook had dealt with Cameron Whibley, one of the upstairs tenants, several times but had never arrested him. He testified that Mr. Whibley had the appearance of a heavy drug user and he believed he used crack cocaine; he did not know him to be a drug dealer. Mr. Whibley was in his early thirties, not a large man, and gaunt. Officer Lee added that he believed that Mr. Whibley might have some mental capacity issues.

[16] Officer Bulbrook testified that Mr. Whibley was one of the tenants he believed was being taken advantage of and that Mr. Whibley and the other tenants at Lappin on occasion would ask the officers to get people who were in their apartments to leave. The tenants would not make this request in front of any of these people as they were afraid that they might be assaulted if they spoke up. Officer Lee had not heard of this happening to Mr. Whibley but he knew that sometimes the other elderly, frail man; Barry, who shared the second floor unit, had been forced to let people in.

[17] Officers Bulbrook and Lee described their routine as entering through the main door of Lappin and knocking on the doors to the individual units. Through the main door there was a lockable door to the unit on the main floor and to the unit on the second floor. The second floor unit had two bedrooms and was being shared at the time by Mr. Whibley and Barry. As far as Officer Bulbrook knew, they were the only tenants on the second floor. There had been someone living in a back room but that person had moved on.

[18] The officers had a good rapport with Mr. Whibley and he regularly let them into his apartment so they could ensure that all was in order. On the day in question Officers Bulbrook and Lee went to Lappin in uniform, in a marked scout car, around midday. It was a routine visit to check on the tenants. No one tasked them to attend at the address on that day and there had been no specific complaint for them to investigate.

[19] When the officers arrived they knocked on the door in the hall that leads to the upstairs unit and Mr. Whibley opened the door and invited them in. Officer Bulbrook could not recall the precise conversation but testified that Mr. Whibley was always cooperative and would have asked them to come in as he was always like that.

[20] Officer Bulbrook was asked by Ms. Duncan about the specific conversation that he had with Mr. Whibley on this date and he clearly had difficulty recalling it, which is understandable given his evidence and the time that has passed. Officer Bulbrook testified that there was usually a short conversation with Mr. Whibley asking him how it was going, if anything was going on and that he would answer “not much, come on in”. Officer Bulbrook admitted that this is what he was told at this time and that Mr. Whibley did not say there was an issue. Officer Bulbrook testified that he had also made a habit of asking “who’s here?” and could not recall if Mr. Whibley said if anyone was in the apartment, although according to Officer Bulbrook, he often wouldn’t if other people were around. Officer Bulbrook admitted that he could not see anyone there but he also acknowledged that if Mr. Whibley had said no one was there he would not go up to check since Mr. Whibley was not out on bail.

[21] Officer Lee also testified that Mr. Whibley always invited them inside to have a look around. On this occasion he did not recall asking Mr. Whibley if there was anyone in the apartment although he agreed that this would have been prudent to know.

[22] Officer Bulbrook admitted in cross-examination that they went upstairs not knowing what they were walking into and that he had no idea how many people were upstairs. When he saw Mr. Green he could not see into the living room and could see next to nothing in the kitchen that was to the right at the top of the stairs because there is a half wall there. He said that that was why he was going to check. He admitted that it would be good to know the number of people who were there but said that they go into a lot of places where they are outnumbered and that it is part of their job.

[23] I find that it is likely that Mr. Whibley said something that caused the officers to decide to go upstairs, notwithstanding the fact that Officer Bulbrook could not recall specifically what Mr. Whibley said. Given the length of time that has passed, that is not unreasonable. The officers obviously took a risk in going upstairs, as they likely did every time they attended at Lappin. It really does not matter what Mr. Whibley said to the officers as I find that they were there with his consent and were motivated by a desire to check things out on the second floor; something they had done regularly for some time. Certainly there is no suggestion in the evidence that they had made earlier observations of Mr. Green or that they were following up on some tip related to him or even looking for him. This type of pro-active policing is to be encouraged by the courts.

[24] Officer Bulbrook, with Officer Lee behind him, followed by Mr. Whibley, went up the staircase to the second floor. Officer Bulbrook testified that when he was five to six steps from the top he saw a black male come out of the bathroom, past the doorframe and take a couple of steps into the hall. The bathroom was the first door on the right side of the upstairs hall. There is no dispute that this black male was Mr. Green.

[25] According to Officers Bulbrook and Lee, at this point Mr. Green looked at the officers and immediately turned and ran back into the bathroom. Officer Bulbrook then ran up the remaining stairs. Officer Bulbrook testified that he did not see anyone else and his focus was on getting to the bathroom. When he got to the bathroom the door was not yet shut and Officer Bulbrook could see Mr. Green standing with his left side closer to the officers and the right side of his body facing away from the officers; what the officers described as “blading”. According to the officers, Mr. Green had his right hand in his right pocket.

[26] Officer Bulbrook testified that when Mr. Green’s right hand was in his right front pocket, he couldn’t see what Mr. Green had in his right hand or what he was doing with his right hand. He had some concern that Mr. Green had put a weapon down his pants or in his pocket and that he was hiding something. Officer Bulbrook testified that he was concerned for his safety and his partner’s safety. Because Mr. Green was “blading his body away from me” that indicated to him that he was concealing something from him as there wasn’t any reason why Mr. Green would be turned away from him. This concern went hand in hand with the fact that when Mr. Green first saw them he ran into the bathroom.

[27] Officer Bulbrook testified that he made these observations through the open door and that he then went into the bathroom. At that point he and Mr. Green were basically against each other although not physically touching as the bathroom is tiny. Officer Lee confirmed the layout of the bathroom in the same fashion that Officer Bulbrook testified to once his memory was refreshed from his preliminary hearing transcript; the bathtub was along the wall opposite the door, the sink and toilet were next to each other on the wall to the left of the door (looking in) and the wall to the right was blank.

[28] Officer Lee said that he was able to make virtually the same observations of Mr. Green after he exited the washroom as he was only two steps behind Officer Bulbrook and they were walking up the stairs offset to one another. He testified that he went into the washroom as well right after Officer Bulbrook. He was also able to observe Mr. Green’s right hand in his right pocket. The evidence of Officer Lee, save for a few exceptions that I will come to, was consistent with the evidence of Officer Bulbrook.

[29] Officer Bulbrook testified that he asked Mr. Green to take his hand out of his pocket and put his hands on the wall and that Mr. Green was cooperative and complied with the request. He told him that he was going to do a pat down. He did not recall asking Mr. Green if he had anything in his pockets or if he had weapons on him or anything that could hurt the officers. He agreed it would have been prudent to ask if Mr. Green had a needle in his pocket but did not recall if he had asked this question. Officer Lee testified that either he or Officer Bulbrook would have asked Mr. Green if he was a resident as they had never seen him before. He made no note of this, however, and acknowledged that Officer Bulbrook did not ask this question before the pat down search. Officer Lee also testified that Officer Bulbrook would probably have asked Mr. Green if he had anything in his pockets that could hurt him as that is one of the things they always ask but he did not have a recollection of this either.

[30] Officer Bulbrook proceeded to do a pat down search of Mr. Green. He testified that his number one concern in doing the pat down was to ensure that Mr. Green did not have any weapons that could hurt the officers. Once he determined there were no weapons then they could continue speaking and “depending on what the situation is – the investigation”. Officer Bulbrook testified that he was not going to take a lot of time to establish whether or not Mr. Green had a weapon “before we figure out who he is and why he’s there”. Officer Bulbrook did not know Mr. Green at the time and he had never seen him at that unit before. He did not know how he was related to Mr. Whibley.

[31] Officer Bulbrook said more than once than his “primary concern” was whether or not Mr. Green had a weapon. He was asked in cross-examination what his secondary concern was and he answered that he was concerned about needles, drugs, and drug paraphernalia like a pipe. He admitted that a needle could be used as a weapon.

[32] Officer Lee also testified that as soon as he entered the washroom and saw Mr. Green in the position he was in, with his body bladed towards them and with his right hand in his pocket, given his body language and the positioning of his hands, Officer Lee was concerned for their safety and about the possibility that he had a weapon.

[33] Officer Bulbrook did not remember anything particular about Mr. Green’s demeanour but according to Officer Lee, Mr. Green appeared to be very nervous, fidgety and evasive. His eyes were darting around the room as if he was looking for a way of escape. Officer Lee admitted Mr. Green was possibly nervous because two uniformed officers had just run into the bathroom after him.

[34] Officer Bulbrook testified that he patted Mr. Green down over his clothing and this was confirmed by Officer Lee. Officer Bulbrook described the pat down search in this case and it is consistent with what is expected of such a search. He ran his hands along Mr. Green’s arms, shoulders and the sides of his body and the pockets on the front and back of his pants from the outside of his clothing. According to Officer Bulbrook, Mr. Green was facing towards the wall on the right side of the bathroom and he was directly behind Mr. Green when he did the search.

[35] Officer Lee’s evidence was consistent with the evidence of Officer Bulbrook save that he testified that Officer Bulbrook was facing Mr. Green when he did the pat down and that he reached across his body to touch his right pocket. He was not very certain about this, however, as he was not clear about which hand Officer Bulbrook used to pat the right pocket. He said “I’m going to say he used his left hand”. On that basis he admitted that Officer Bulbrook would have been facing Mr. Green off to one side. I do not find this to be a significant factual issue but on this point I prefer the evidence of Officer Bulbrook as he is the officer who did the pat down and he testified that he would not do a pat down facing a suspect. This makes sense.

[36] According to Officer Bulbrook, he felt a hard object in Mr. Green’s right front pocket. It was maybe one and a half to two inches across and felt like a large rock that would fit in your pocket. Officer Bulbrook admitted that he had no idea what this object was but he pulled the object out of the pocket to ensure it was not a weapon. He didn’t think it was drugs initially but stated again that it could have been anything. Officer Bulbrook did not ask Mr. Green what it was that he reached into his pocket and pulled the object out. He passed what appeared to be a large chunk of crack cocaine; the cocaine evidence to Officer Lee. He didn’t feel anything in Mr. Green’s left pocket.

[37] Officer Lee testified that after Officer Bulbrook patted over the right pocket he saw Officer Bulbrook pull the lining of that pocket out so that whatever was inside would come to the top. Again there is a difference in their evidence but the evidence of Officer Lee was never put to Officer Bulbrook so it is difficult to say how different. In any event, I did not find it material.

[38] There is no dispute that once Officer Bulbrook seized the cocaine, he arrested Mr. Green for possession of cocaine, handcuffed him to the rear and gave him his rights to counsel and caution. He did not read from his memo book but was able to recount on the witness stand what he would have said. Certainly based on his evidence at trial he would have covered all the bases. Ms. Duncan took issue with this but there was no evidence called by her to suggest that what Officer Bulbrook did was in breach of police policy so I do not find this significant.

[39] Officer Bulbrook testified that Mr. Green responded that he understood and in response to whether or not he wished to speak to a lawyer he said “later”. Officer Bulbrook interpreted that to mean that he wanted to speak to a lawyer later in time. Officer Lee could not recall what Mr. Green said in response to Officer Bulbrook giving him his rights to counsel and caution. Neither officer recalled Mr. Green requesting to speak to a lawyer while he was in their custody.

[40] There was some confusion in the evidence of Officer Lee as to the size of the crack cocaine. At one point he suggested it was the size of a marble; about half an inch in diameter. After being referred to his evidence at the preliminary inquiry, Officer Lee testified that there was one large piece with three or four smaller pieces that looked like they had broken off the main piece. I did not find this confusion to be significant to his credibility. Furthermore, to the extent the evidence of the officers was inconsistent on the shape of the crack cocaine I do not find that material. Officer Bulbrook testified that he immediately handed the drugs over to Officer Lee so he can really only say what the package felt like. Whether it was all in one ball or not, it would have felt hard. It also may have broken up somewhat as he pulled it from Mr. Green’s pocket.

[41] In cross-examination Officer Bulbrook admitted that the object he felt did not feel like a gun. He said, however, that it could have been a small knife in its sheath and that a knife with a cover on would feel like a rock. He knows of knives that are sort of round or octagon shaped and that are used as belt buckles. Officer Bulbrook also testified that anything hard had the potential to be a weapon, especially in “those circumstances” and that you never know until you pull it out. He explained that he was referring to going into a house with that history, the fact that when a male saw him he ran back into the washroom and that to him that was “a bit alarming”. He had no idea what the object was but his primary concern was “was it a weapon?”

[42] Officer Lee testified that from the time of their first observations of Mr. Green to his arrest was not more than one to two minutes. There is no doubt that the officers had to react very quickly to what they saw.

[43] After Mr. Green was arrested Officer Bulbrook finished a general pat down and found some money in Mr. Green’s left pant pocket. He passed both the crack cocaine and the money to Officer Lee. The officers did not see the elderly man; Barry, or ask Mr. Whibley about him or check for him. At this point Officers Bulbrook and Lee took Mr. Green directly to 11 Division where they paraded him before Staff Sergeant Mann. When the Staff Sergeant asked Mr. Green if he had any other property, drugs or weapons on him, Mr. Green advised that he had a quantity of money in a sock tied to his penis. I note the Crown has not sought to rely on this statement presumably because this evidence was found during the course of the Level Three search that followed and it would have been found in any event.

[44] Once the officers finished parading Mr. Green and conducting the Level Three search, they put Mr. Green into an interview room. They did not deal with him after that. Officer Bulbrook stated that the Major Crime Unit (“MCU”) from 11 Division took over the case when he and Officer Lee brought Mr. Green in but he did not know why. When Officer Bulbrook was asked by Mr. Amarshi why he didn’t charge Mr. Green with possession of cocaine for the purpose of trafficking he answered that the case wasn’t his choice anymore; I presume a reference to the fact the case had been transferred.

[45] Officers Bulbrook and Lee went to the MCU and at 1:00 p.m. Officer Lee turned over all of the cash to Officer Miles of the MCU and the crack cocaine to Officer Park, also of the MCU. Ms. Duncan submitted that Officer Park testified that he was told of all three charges by Officer Lee which becomes important to her s. 10(a) argument but I have carefully reviewed the evidence and can find no reference to Officer Park giving any such evidence. Furthermore, neither Officer Bulbrook nor Officer Lee testified that they were aware of the additional charges in this timeframe. I believe Ms. Duncan is simply mistaken in her recollection.

[46] In cross-examination Officer Park testified that the crack cocaine was bagged in two clear sandwich bags. This evidence is at odds with the evidence of Officer Lee who said there was only one but I did not find this discrepancy significant as the bags were clear. According to Officer Park, the cocaine was solid but he could not remember if it was in one or more pieces.

[47] Mr. Green was released on a Form 10 and was not held for a bail hearing.

[48] I found both Officer Bulbrook and Officer Lee to be credible witnesses. To the extent that there were internal and external differences in their evidence I found it was due to the fact that this arrest was almost two years ago. For example, in Officer Bulbrook’s evidence at trial he described the bathroom as having the sink on the left side and the toilet on the right. He acknowledged that when he gave his evidence at the preliminary inquiry in June 2013, he described both the sink and toilet as being on the left side. After he reviewed that earlier evidence Officer Bulbrook testified that what he said in June was correct; readily acknowledging that his memory of the layout was better then.

[49] There was one puzzling reference in the notes of these officers which suggested that they were in the living room, but they were both firm that at no time on this occasion were they ever in the living room. In Officer Bulbrook’s notes he stated “invited in by tenant known as Cameron Whibley in living room observed a male black exit bathroom”. I do not know what the punctuation if any was in the notes but Officer Bulbrook testified that he was never in the living room and he had no idea why he wrote it this way. He stated that he couldn’t give Ms. Duncan any reasonable reason for why he wrote that and he readily acknowledged that he sometimes makes mistakes in his notes.

[50] Officer Lee also had a note about this that reads “male invited inside proceed upstairs to living room”. He said he should have stated that on their way up to the living room they were interrupted by what they saw.

[51] I accept the evidence of the officers on this point and find that they were not in the living room at any time. Although I find the references in their notes to the living room puzzling, it is clear from the evidence as a whole that these officers did not collaborate on their notes or in giving evidence. In fact Ms. Duncan submitted that because of what she characterized as significant differences in the evidence of the officers that I should not accept their evidence. I do not accept that submission. Neither officer appeared to be reluctant to answer any of her questions and they seemed genuinely interested in giving her fulsome answers. The differences in their evidence in my view reflect different recollections of the same event which is not uncommon with honest witnesses. Furthermore, to the extent the officers were relying on their independent recollection versus their notes, their memory of the event could be impacted by what they usually do. For this reason, I am not surprised that Officer Bulbrook had difficulty remembering the actual conversation they had with Mr. Whibley. Similarly, Officer Lee was influenced in his evidence about questions he believed Officer Bulbrook asked Mr. Green by what they usually do. He readily conceded that his memory was faulty when referred to his notes.

[52] The only internal inconsistency raised with Officer Lee was that at the preliminary inquiry when asked if he knew Mr. Whibley’s roommate he answered “no”. His explanation at trial was that he knew that the roommate was an elderly gentleman but that he didn’t know his name. I accept that evidence. Given the number of times the officers attended at Lappin, there would be no reason for Officer Lee not to know this tenant although it seems both officers were more familiar with Mr. Whibley.

[53] Whether or not the door to the upstairs unit swings in or out, whether or not Officer Bulbrook reached into Mr. Green’s pocket or rolled it out or the position he was in when he did the pat down are not significant issues in my view.

[54] On the whole then I accept the evidence of the officers as to why they attended at Lappin and what occurred just before the arrest of Mr. Green and thereafter while he was in their custody. I turn then to the issues that I do have to decide.

Analysis

Has Mr. Green established on a balance of probabilities that his detention was not a lawful investigative detention and that his s. 9 Charter rights were breached?

[55] There is no dispute that the officers were lawfully in the second floor unit at Lappin since Mr. Whibley; a tenant, invited them inside. Their reasons for attending Lappin are relevant, however, to my determination of the lawfulness of the detention of Mr. Green.

[56] Mr. Amarshi submitted that Officer Bulbrook’s six years of experience in 11 Division, including time in the PRU and the BCU, informed the decisions he made that day. It was a “hotspot” where police needed to be vigilant. Mr. Amarshi submitted that as a society we expect police to look out for people like these tenants as they were particularly vulnerable and that there was nothing wrong with the officers attending Lappin on a regular basis for this purpose - the community in that area would expect it.

[57] I accept that submission. As MacDonnell J. (as he then was) stated in R. v. Orellana, [1999] O.J. No. 5746 (O.C.J.), at para. 32:

We do not expect the police to sit in their station houses waiting for those who commit offences to walk in and confess. We expect them to be out in the community and, when suspicious events occur, to make inquiries. The Charter is not a barrier to those inquiries.

[58] I also find that there is no issue with the decision of the officers to go upstairs when invited in by Mr. Whibley. Although Officer Bulbrook had no recollection of Mr. Whibley asking for help he testified he would not go upstairs unless he thought there was someone upstairs. That makes sense and I accept that evidence. The logical inference then is that something said by Mr. Whibley caused the officers to decide to go upstairs. In my view since they were lawfully in the unit with the consent of one of the tenants that was a reasonable decision. There is certainly no evidence to suggest that the entered the unit and went upstairs for an improper purpose.

[59] Ms. Duncan submitted that the actions of the officers belie their evidence that they had officer safety concerns. She submitted that they would not have gone into the house and upstairs if they did not know who was there, given what they knew about the house. Ms. Duncan also pointed out that the officers didn’t look in the living room to see if anyone was there and they had no sightline into the kitchen. They would have had no idea if there were ten people in the living room when they chose to act as they did.

[60] I do not accept this submission. First of all the evidence is clear that the officers went upstairs and the only plausible reason would be to check the unit and the welfare of the tenants. This was not a social call. Furthermore, the evidence of the officers was that these safety concerns crystallized when they observed Mr. Green inside the bathroom. They also testified that what they did was not unusual and that they take these types of risks every day. Although they might have done more to determine from Mr. Whibley what the particular risks were that day, I accept their evidence that they went upstairs to check things out and in my view that was reasonable. The fact they might have done more to minimize the risk to themselves does not undermine the credibility of this evidence.

[61] The issue then is whether or not the detention of Mr. Green was a lawful investigative detention.

[62] Ms. Duncan submitted that as soon as both officers crossed the threshold of the bathroom for the purpose of speaking to Mr. Green, as they were right up against him, he was physically detained. I agree that this is the point when Mr. Green was detained but since the officers did not physically touch Mr. Green at this point, in my view he was psychologically detained. As Ms. Duncan submitted he was cornered in the bathroom with the officers blocking his only way of escape. He had no opportunity to simply walk away from the officers as he would have had he met them on the street.

[63] It is Ms. Duncan’s position that the detention was an arbitrary one as it was not a lawful investigative detention. She relies on the fact that the officers were not specifically tasked to go to Lappin on that particular day. They had not received a radio call nor were they given any instructions to attend at Lappin for the purpose of investigating any matter. They were not investigating any specific community complaint. She also submits that the officers had not made any visual observation of any particular crime. Ms. Duncan also relies on the fact the officers didn’t receive any information in this particular case before reacting. There was no attempt to engage Mr. Green in conversation.

[64] In R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49, the Supreme Court of Canada recognized that an officer may detain an individual for investigative purposes if there are reasonable grounds to suspect in all of the circumstances that the person is connected to a “particular crime” (at para. 45). Ms. Duncan relies on this language but I note the court in Mann also stated that:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. ... The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, the liberty interfered with and the nature and extent of the interference (at para. 34).

[65] In considering this issue I also note that at para. 16 of Mann the Supreme Court of Canada noted that “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the frontlines of policing.” This was a case where the officers had to react and respond quickly to their unexpected encounter with Mr. Green.

[66] In the context of Mann, the issue then is whether or not the decision of the officers to follow Mr. Green into the bathroom and then detain him so they could question him was lawful.

[67] I raised with Mr. Amarshi my concern that Officer Bulbrook gave no evidence as to why he decided to run after Mr. Green and the fact that he did not testify about any specific subjective belief that he wanted to investigate Mr. Green because he suspected that Mr. Green might be committing a particular crime in Lappin. Mr. Amarshi conceded that the officers never testified that they were motivated by any particular criminal activity when they rushed after Mr. Green and submitted that in some ways this was not even a case where it was necessary to conduct a s. 9 analysis. He submitted that this was a novel and unusual set of facts that the cases don’t address in that the primary motive for the officers was officer safety and that the officers were not looking for evidence of criminal activity.

[68] The difficulty with this submission is that Mann at para. 17 provides that preventative policing in high crime areas does not give police a general power of detention. Furthermore, I am not aware of any authority that provides that police have a power to detain solely for the purpose of officer safety when they suddenly encounter someone they have good reason to question, although I must say that such a power would not seem unreasonable. The difficulty on the facts of this case is that the police were not overtly threatened in any way by Mr. Green.

[69] Mr. Amarshi posited the question of “what else were the officers supposed to do in this situation”? I agree with him that they could not simply walk away and leave Mr. Whibley, and possibly Barry, with this unknown person in the house without taking further steps to determine why Mr. Green was there. He submitted it is not reasonable to expect that the officers would not follow Mr. Green into the bathroom and that what they saw then was highly troubling and they had no reasonable alternative. However, implicit in this submission is the argument that what the police saw gave them cause to want to investigate Mr. Green.

[70] Given some of the evidence of Officer Bulbrook that I have referred to, although he made no mention of a particular offence, when he first saw Mr. Green he clearly wanted to investigate Mr. Green and ask him questions to find out what he was doing in Lappin. Given his experience with this address, that was reasonable but the issue is complicated by the fact that before he got to the point of asking those questions he had detained Mr. Green.

[71] Ms. Duncan conceded that it never looks good when someone runs from police and that the officers may have been suspicious and had a hunch but that was not sufficient to detain Mr. Green for investigative purposes. I agree that flight alone is not enough. In R. v. Dene, 2010 ONCA 796, [2010] O.J. No 5012; aff’d [2010] O.J. No. 5193, the Court of Appeal confirmed that flight prior to detention may be a factor in supporting grounds for detention but alone is not likely to provide reasonable grounds. Ms. Duncan also submitted that merely being in an apartment suspected of housing drug activity is not sufficient grounds for detention. I agree with that submission as well. However, in this case both of these facts were present and there was much more.

[72] Mr. Amarshi relies on R. v. Schell, [2003] O.J. No. 5189. Although this case was decided before Mann, the facts are of some assistance. The officers were in a neighbourhood with a relatively high incidence of crime and so there was a need for the police to be vigilant for problems. They saw a group of men in that area and when someone in the group called out “police”, Mr. Schell ran and continued to run notwithstanding the officers shouting at him to “stop police”. On these facts Cumming J. held at para. 70 that the officers had articulable cause to detain Mr. Schell for investigative purposes because they:

made the reasonable inference from the constellation of objectively discernable facts that Mr. Schell was quite possibly implicated in criminal activity that required immediate investigation. This was not mere suspicion or a hunch on their part that he was engaged in criminal activity. His behaviour would suggest to any reasonable observer that he was possibly so engaged.

[73] In considering the lawfulness of Mr. Green’s detention by the officers and in particular Officer Bulbrook, I must consider if it matters that he did not testify that he suspected Mr. Green was involved in any particular offence when he decided to run after him.

[74] This issue was dealt with in R. v. Nesbeth, 208 ONCA 579, a case relied upon by Mr. Amarshi, where Rosenberg J.A., speaking for the court, dealt with issues of detention and search and seizure. The facts were different in that when police came upon the accused while checking the stairwell of an apartment in a high crime area, he ran and threw away a knapsack while being chased. Police caught and arrested the accused and retrieved the knapsack which contained cocaine. This was, as observed by Justice Rosenberg, a “classic case of police officers faced with a rapidly evolving situation to which they attempted to respond quickly and effectively.” (at para. 13) Those words are apt to the case at bar as well.

[75] Rosenberg J.A. concluded (at para. 17) that the accused had not been detained until he was tackled at the end of the chase and that the validity of that detention had to be measured by the facts known to the police at that time which included the fact that the accused had immediately bolted when he saw the uniformed officers, he had used some force in an attempt to impede the officers’ progress by throwing a shopping cart in their way, he threw away a knapsack that he had been tightly holding until then and it was late at night and he was in the stairwell of a building known to be a high crime area.

[76] Rosenberg J.A. concluded that this “constellation of factors” was sufficient to give the police officers reasonable grounds to suspect that the accused was involved in criminal conduct. He went on to say:

While the court in Mann speaks of reasonable grounds to suspect that the individual is connected to “a particular crime”, in my view, it is not necessary that the officers be able to pinpoint the crime with absolute precision. Given the respondent’s behaviour in relation to the knapsack and the desperation with which he fled the police, the police could reasonably suspect that he was in possession of contraband: either drugs or weapons or both. They were therefore entitled to detain him for investigation in accordance with Mann. (at para. 18)

[77] Justice Rosenberg went on to point out and consider a possible gap in the evidence as none of the police officers actually articulated in their evidence why they detained the accused. He referred to R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.), a case involving the power of police to arrest and suggested that the two part analysis from that case which requires an officer to have both a subjective belief in reasonable and probable grounds to arrest and that those grounds be objectively established might apply to a Mann investigative detention. On that basis he found that the officers objectively had reasonable grounds to detain the accused even though none of them articulated their subjective belief as to the grounds. He went on to say (at para. 20):

While it would have been helpful had the officers expressly testified to their grounds for detaining the respondent, the court is entitled to draw reasonable inferences from the circumstances. In my view, it is apparent that the officers believed that they had grounds to detain the respondent by the time the chase ended.

[78] For these reasons I have concluded that I can consider all of the evidence of the officers including reasonable inferences from the evidence in determining whether or not Officer Bulbrook’s detention of Mr. Green was lawful. In doing so I should determine whether or not he subjectively believed that he had grounds to detain Mr. Green and whether or not that belief was objectively reasonable.

[79] I have no difficulty in finding that Officer Bulbrook subjectively believed that he had grounds to detain Mr. Green once he made the observations of Mr. Green inside the bathroom that I have referred to, before he crossed the threshold and effectively detained him.

[80] In considering whether or not Officers Bulbrook and Lee objectively had grounds to detain Mr. Green, I have considered the facts known to them just before they decided to cross the threshold of the bathroom, as follows:

(a) Officers Bulbrook and Lee knew the notorious nature of criminal activity in Lappin based on their extensive experience with the house while police officers at 11 Division and their proactive policing in attending regularly at Lappin to check on the tenants;

(b) Some of the tenants were addicted to drugs including cocaine and they had been taken advantage of in the past by drug dealers;

(c) The officers did not know Mr. Green and had never seen him before. They did not observe him engage in any criminal activity and did not know him to be a problematic person. However, they also did not know him to be a tenant in Lappin;

(d) As soon as Mr. Green saw the uniformed officers he bolted back into the bathroom and tried to close the door;

(e) While still outside the bathroom and through the partially open door Officers Bulbrook and Lee observed that Mr. Green was “blading” and trying to conceal his right side from the officers. They also observed that Mr. Green had his right hand in his pocket.

[81] In my view this constellation of factors was sufficient to give the officers reasonable grounds to suspect that Mr. Green was involved in some criminal conduct and in particular that he might be concealing a weapon. These were not the actions of a bona fide visitor of either Mr. Whibley or the other tenant on the second floor. Given Mr. Green’s behaviour and what the officers observed through the bathroom door they could reasonably suspect that he might be concealing a weapon. The obvious officer safety concerns entitled the officers to detain Mr. Green for investigation in accordance with Mann. I also find it significant that the officers each came to essentially the same conclusions and that they did so independently.

[82] Although as I have said the facts were different in Nesbeth, the factors I have referred to are similar to those considered by Justice Rosenberg in concluding that the detention in that case was lawful, see Nesbeth at paras. 17-18.

[83] Mr. Amarshi also relied on the words of Doherty J.A. in R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097 at para. 45 (C.A.), appeal discontinued [1997] S.C.C.A. 571. Although this case considered the lawfulness of an arrest, it has some relevance to the situation faced by Officer Bulbrook when he first saw Mr. Green:

…one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised. The frustration of the effective enforcement of the criminal law is the hallmark of the exceptional circumstances identified in Feeney. [citations omitted]

[84] It was only because of the unusual circumstances of this case, and in particular Mr. Green running back into a small bathroom, that the officers’ safety concerns became paramount and needed to be addressed before they could question Mr. Green. In my view it was not possible for Officer Bulbrook to simply ask Mr. Green some questions; for example why he was attending at Lappin and what it was that he had concealed. I accept that Officer Bulbrook was genuinely concerned that he might be concealing a weapon and in those circumstances the safety of Officers Bulbrook and Lee and Mr. Whibley were paramount. Furthermore, this was also a dynamic and rapidly evolving situation. As Blair J.A. noted in R. v. Amofa, 2011 ONCA 368 at para. 19:

The flow of the investigative detention, the arrest and the search was a dynamic process. Section 8 analyses ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture.

[85] Officer Bulbrook reacted very quickly to what he observed when Mr. Green stepped out of the bathroom and then when he saw him rush back inside. He had only a few moments to consider his actions as he rushed up the stairs after him and observed Mr. Green in the bathroom blading and with his right hand in his pocket as if he was concealing something and his concern that it could be a weapon,

[86] For these reasons, I find that Mr. Green has not satisfied me that his detention was arbitrary and thus unlawful and in breach of his s. 9 Charter rights.

Has the Crown established on a balance of probabilities that the search of Mr. Green was a lawful search incident to an investigative detention and that there was no breach of Mr. Green’s s. 8 Charter rights?

[87] During argument Ms. Duncan conceded that if this was a lawful investigative detention, then pursuant to Mann, the police had the power to do a pat down search of the nature that was done. She submitted, however, that this did not entitle Officer Bulbrook to go into Mr. Green’s pocket and as such there was a section 8 breach. There is no dispute that Mr. Green had a reasonable expectation of privacy to the contents of his pockets.

[88] Any search incidental to the limited police power of investigative detention is a warrantless search and presumed to be unreasonable unless the Crown satisfies the court of the reasonableness of the search on a balance of probabilities, (Mann at para. 36). In the circumstances of an investigative detention, the court in Mann held that where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat down search of the detained individual (Mann at para. 45, emphasis added). As the court stated in Mann, “[p]olice officers face any number of risks every day in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible.” (Mann at para. 43). However, the officer’s decision to search must be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition, (Mann at para. 40). The search must be confined in scope to an intrusion reasonably designed to locate weapons. (Mann at para. 41).

[89] Considering the law as stated above from Mann and having accepted the evidence of the officers and all of the facts known to the officers that I relied upon in concluding that the detention of Mr. Green was lawful, I find that Officer Bulbrook’s decision to do a pat down search of Mr. Green was because he was concerned that Mr. Green might be concealing a weapon. I have no difficulty in finding that the pat down search was objectively reasonable. Presumably this is why Ms. Duncan conceded the lawfulness of the pat down search in the event I found a lawful detention.

[90] Ms. Duncan’s real issue is with the decision of Office Bulbrook to put his hand into Mr. Green’s pocket and pull the object out. She submitted that the evidence of Officer Bulbrook that anything that felt hard could be a weapon save for a cell phone, is problematic for two reasons. First, she argued that his evidence that the object he felt and described could have been a knife with a cover was not credible. She also queried what the implications are of the evidence of Officer Bulbrook to the effect that if the object feels hard during a pat down search the officer can take the object out of the suspect’s pocket unless the officer believes it to be a cell phone.

[91] Neither counsel were aware of any cases dealing with this issue of an officer feeling a hard object and then seizing that object in these type of circumstances save that Mr. Amarshi relied on R. v. Bussidor, [2006] M.J. No. 508, a decision of the Manitoba Provincial Court. In that case police responded to a report of domestic violence and there was no serious issue that it was a proper investigative detention. The relevance of the case to the case at bar is that as part of the police procedure before placing the suspect in the cruiser car and for his own personal safety the officer did a pat down search of his pockets and felt something hard in one of his pockets. The officer testified he was concerned that Bussidor may be in possession of weapons on his person. He stressed he did not know if Bussidor had a weapon in his pocket. He did not request Bussidor to empty his pockets because of a risk of a knife or other weapon being pulled on him. Instead the officer inserted his hand into the accused’s pocket and pulled out the contents which included a weigh scale and other objects. The hard object in the accused’s pocket turned out to be the scale. I do not agree with Ms. Duncan’s submission that this was actually a search incident to arrest. The case is clear that Bussidor was brought to the scout car to allow the officer to assist his partner.

[92] I have concluded that the evidence of Officer Bulbrook is credible. I believe him when he testified that he felt a hard object about one and a half inches in size that he thought might be a weapon. He was very fair and admitted that what he felt could have been anything. Although he was not asked if the object could have been crack cocaine from the way it felt, I expect he would have agreed with that suggestion. However, I do not find on the evidence that this is what he believed or that this is why he pulled the object out. Although I would not conclude that an officer could reach such a conclusion merely by feeling a hard object, in this case the object was not insubstantial in size. Although the crack cocaine or a photograph was not entered into evidence, there is no dispute that crack cocaine would feel hard. The facts are clearly distinguishable from Mann where the officer felt something soft. In fact, during the course of her submissions Ms. Duncan conceded that it was possible that what Officer Bulbrook felt could have been a weapon.

[93] Given the dynamics of the situation, accepting that the officers had a reasonable concern for officer safety, I am not satisfied, that considered objectively I should second guess Officer Bulbrook’s decision to pull the object out to ensure it was not a weapon.

[94] I have also considered the fact, as submitted by Mr. Amarshi, that Officer Bulbrook’s search was brief and minimally intrusive and confined in scope to an intrusion reasonably designed to locate weapons. He did the pat down first and did not go into Mr. Green’s left pocket until after the arrest. Furthermore the pat down search did not locate the sock with the cash that Mr. Green had hidden next to his genitals.

[95] Considering only the submissions of counsel during oral argument, for these reasons I would have concluded that the Crown had satisfied me that the search of Mr. Green that was conducted by Officer Bulbrook at Lappin before his arrest was not a breach of Mr. Green’s s. 8 Charter rights.

[96] Unfortunately that is not the end of the matter. After argument on the application was complete, a recent decision from the Supreme Court of Canada, R. v. MacDonald, 2014 SCC 3, came to my attention. I notified counsel and it was agreed that they would provide written submissions to me. I was advised initially by both counsel that they were each of the view that the MacDonald decision was not applicable, but for different reasons. Ultimately I received more substantive submissions from each counsel.

[97] Mr. Amarshi made further submissions in the event that I found the two step Waterfield test as discussed in MacDonald to be of assistance. Ms. Duncan submitted that the analysis with respect to how an individual’s section 8 Charter right should be viewed is directly on point even though the facts in the MacDonald decision are distinguishable. She too made submissions utilizing the two step Waterfield test.

[98] Surprisingly neither counsel referred to the reasons of Moldaver and Wagner JJ., writing for themselves with Rothstein J. concurring, particularly as the entire panel was only seven judges. The minority came to the same conclusion as the majority (four) judgment of Lebel J. but for very different reasons. They argued that the case ought to have been resolved by extending the logic of Mann (at para. 87) and that instead the majority had effectively overturned the “safety search” power recognized in Mann and a decade of subsequent jurisprudence (at para. 90). As the minority pointed out (at para. 84), the majority’s decision assumed that the officer in question had reasonable grounds to believe that Mr. MacDonald was armed and dangerous although the officer had only testified that he was concerned that Mr. MacDonald “might” have a weapon. They concluded that the consequence of the majority decision was to deprive officers of the ability to conduct protective searches except in circumstances where they already have ground to arrest” (at para. 90).

[99] Arguably the minority in MacDonald are in the best position to interpret what the effect of the majority’s decision is. Accepting that as the case, I seem to have no alternative but consider and weigh the factors in the two stage Waterfield test (at para. 39). Ms. Duncan concedes the first stage of the test; namely that proactive policing as these officers engaged in falls within the general scope of duties of a police officer. Considering then the factors for the second stage of the test set out by the majority (at paragraph 39), I do not accept Ms. Duncan’s submission that the duty of the officers to protect the tenants at this time was not of the utmost importance. As I have already stated I find that Officer Bulbrook would not have gone upstairs if he had not had some concern that someone else was there. He was performing a very important function of police in checking on the vulnerable tenants at Lappin. As for the third factor, for the reasons already stated, I found that the infringement on Mr. Green’s liberty was justified to the extent it was necessary to search for weapons.

[100] The difficulty is that in considering the second factor the majority stated that: “When the performance of a police duty requires an officer to interact with an individual who they have reasonable grounds to believe is armed and dangerous, an infringement on individual liberty may be necessary.” (at para. 39, subpara. 2, emphasis added). This is repeated at para. 41 where the majority states that “the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search”. [Emphasis added]. Although this statement is less clear, there could be no doubt what the majority meant given the statement of their factual conclusion at para. 44 that the officer had reasonable grounds to believe that there was an imminent threat to the safety of the police”.

[101] I have considered whether or not the majority’s decision can be distinguished since both counsel agree the facts of this case are different. As Mr. Amarshi pointed out, in the MacDonald decision, s. 8 Charter rights were engaged more significantly since the search occurred at the doorway of the accused’s dwelling where he clearly had a strong reasonable expectation of privacy. However, the minority decision is very persuasive and clearly they are of the view that the majority has raised the standard required before an officer can lawfully conduct a pat down search as they stated (at para. 90).

[102] As I am bound by the majority judgment, clearly the evidence of Officer Bulbrook does not meet the second factor of the second stage of the Waterfield test as set out above. At no time did Officer Bulbrook testify that he believed Mr. Green was in fact armed and dangerous. His evidence, which I accept, was that he was concerned that Mr. Green might be concealing a weapon and that he needed to do a pat down search and remove the hard object that he felt to rule out his possession of a weapon. For reasons already stated I find that this concern was both subjectively held and objectively reasonable. If that is no longer the basis upon which a protective pat down search can be done lawfully, as stated by Justices Moldaver and Wagner, then at least as of the MacDonald decision, the protective search conducted by Officer Bulbrook was not lawful.

[103] For these reasons, I must find that the search done by Officer Bulbrook was not lawful in that he did not have reasonable grounds to believe, nor did he testify that he did, that Mr. Green was armed and dangerous. On that basis I must find that at least in light of the MacDonald decision, there was a breach of Mr. Green’s section 8 Charter rights.

Has Mr. Green established on a balance of probabilities that his s. 10(a) and s. 10(b) Charter rights were breached and if so, what remedy should be granted?

[104] Pursuant to s. 10(a) of the Charter, Mr. Green had the right on arrest or detention to be informed promptly of the reason for his detention. He also had the right to retain and instruct counsel and to be informed of that right without delay under s. 10(b) of the Charter.

[105] In the course of her submissions Ms. Duncan conceded there was insufficient information to substantiate a s. 10(b) breach. She confirmed that with respect to the alleged breach of s. 10(a) she was not seeking a s. 24(2) remedy. I do not know if a statement was given by Mr. Green to police, but in any event the Crown does not seek to rely on any statement. Ms. Duncan argued that this independent Charter breach is relevant to any s. 24(2) analysis in that it shows a pattern of the behaviour of the officers and their disregard for Mr. Green’s Charter rights, which is troubling.

[106] Ms. Duncan argued that Officer Park had testified that when the drugs were handed over to him by Officer Lee he knew that Mr. Green had been charged with possession for the purpose of trafficking, possession of cocaine and possession of proceeds. She argued on that basis that the additional charges must have been added while Mr. Green was in the custody of Officers Bulbrook and Lee and that they should have given him his rights to counsel again and re-cautioned him. Since the officers went straight from lodging Mr. Green in the interview room to Officer Park it would be reasonable to infer that they knew about the three charges and yet never took any steps to inform Mr. Green of the additional charges or ensure that he had an ability to exercise his right to counsel.

[107] There are a number of problems with this submission. First of all, I have carefully reviewed the evidence of Officer Park again and at no time did he say that he knew about the other two charges. There is absolutely no evidence that Officer Bulbrook and Officer Lee were informed of the additional charges at the material time. In fact their evidence is that they turned Mr. Green over to the MCU and clearly it was someone from that Unit who must have made the decision. Whether or not Mr. Green was informed of the additional charges before he was released on a Form 10, is not something that was before me. I heard no evidence about what happened to Mr. Green after he was lodged in the interview room by Officers Bulbrook and Lee with respect to his release from the station.

[108] I therefore find that Mr. Green has not proven that there was a breach of his s. 10(a) Charter right.

Given the breach of Mr. Green’s s. 8 Charter rights, should the evidence be excluded pursuant to s. 24(2) of the Charter?

[109] Having found a breach of s. 8 of the Charter, a s. 24(2) analysis is necessary. I must now consider whether or not to exclude the cocaine and the currency from the evidence at trial. I am guided by the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, which sets out the factors I must consider and balance in order to make this determination.

[110] The first factor, the seriousness of the Charter breach, requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law. (Grant at para. 72) This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the other hand, showed “willful or reckless disregard for Charter rights” (at para. 74). The court must also consider whether the police acted in good faith, ( at para. 75).

[111] The court in Mann considered whether or not the police were acting in “good faith”. Justice Iacobucci (at para. 55) 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 …”. Similarly, in Grant, at para. 75, “…ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith…”

[112] Given my factual findings that Officer Bulbrook subjectively believed that Mr. Green might be concealing a weapon and that that belief was objectively reasonable and given that his pat down search and pocket search complied with the law set out in Mann as understood before the MacDonald decision, I have no difficulty in finding that the breach of the Charter was not serious. The officers acted in accordance with what they had good reason to believe was the law as it had been for many years in terms of a search incident to an investigative detention. Furthermore, I have accepted Officer Bulbrook’s evidence as to why he reached into Mr. Green’s pocket. I have not found that he was acting with an improper motive. He was not looking for evidence. In these circumstances, given my finding that the officers acted in accordance with the principles in Mann, as it was understood at the time, I find that they acted in good faith. This is not a case in my view where the officers and in particular Officer Bulbrook should have known that his conduct was not Charter compliant.

[113] The second factor in Grant, which to some extent overlaps the first, requires a consideration of the impact of the breach on the defendant. When considering the impact of the breach on the accused person’s Charter protected interests, it is necessary to evaluate the extent to which the breach actually undermined the interests protected by the right infringed. A court should consider whether the impact of the breach was “fleeting and technical” or “profoundly intrusive” and consider the effect of the breach on the accused’s human dignity: paras. 76, 78.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: at para. 76.

[114] The majority of the court in Mann found that the evidence obtained as a result of the unlawful search during a detention short of arrest should be excluded. Although the court determined this issue under the earlier test prescribed by R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, the case is still instructive, given its factual similarity. Iacobucci J. said (at para. 56):

While a frisk search is a minimally intrusive search, as noted by this Court in Cloutier, supra, at page 85, the search of the appellant’s inner pocket must be weighed against the absence of any reasonable basis for justification. Individuals have a reasonable expectation of privacy in their pockets. The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of the appellant’s protection against unreasonable search and seizure.[Emphasis added]

[115] Although a person’s pocket may be a place where there is a relatively high expectation of privacy the search was a brief, minimally intrusive pat down search over Mr. Green’s clothing followed by Officer Bulbrook pulling the object he felt from that pocket. It was not profoundly intrusive nor did it seriously impact Mr. Green’s human dignity.

[116] Finally, considering the third Grant factor; society's interest in the adjudication of the case on its merits, this is reliable evidence and the Crown’s case depends upon it. Without this evidence the Crown has no case. Mr. Green has admitted that this quantity of cocaine was in his possession for the purpose of trafficking which is a very serious offence. This is a strong factor favouring inclusion of the evidence. This, however, has the potential to “cut both ways” in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high; Grant at para. 84.

[117] Although the Supreme Court in Grant made it clear that reliable evidence is not automatically admissible, the court went on to say that “exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: at para. 81. Furthermore, the Court of Appeal in R. v. Byfield, 2005 CanLII 1486 (ON CA), [2005] O.J. No. 228, noted that cocaine is a more dangerous substance than marijuana which was the drug in Mann.

[118] For these reasons, I find that the truth seeking function of this criminal trial would be better served by admission of the evidence.

(i) The Balancing

[119] At this stage of the analysis I must weigh the various factors. I do so understanding that there is no overarching rule governing how the balance should be struck; Grant at para. 86. I have found that the police acted in good faith throughout. The evidence is reliable and important to the Crown’s case and the charges are serious.

[120] Had I found that Officer Bulbrook deliberately acted beyond the scope of his authority and searched Mr. Green because he suspected that he had drugs on him, that would be a serious and flagrant breach of the Charter favouring exclusion of the evidence. In this case however, the only breach of the Charter by the officers results from a change by the Supreme Court of Canada in the interpretation of Mann. The officers applied the law at the time as it was understood then. Having found that the officers acted in good faith and balancing all of the factors as required by Grant, I find that the other Grant factors tip the balance of the s. 24(2) factors in favour of the admission of the evidence.

Disposition

[121] For these reasons, the defence application alleging a breach of Mr. Green’s rights under ss. 8, 9, 10(a) and 10(b) of the Charter is dismissed. The cocaine and currency seized from Mr. Green’s person shall be considered as part the evidence at trial.

SPIES J.

Date: March 7, 2014