BARRIE COURT FILE NO.: CR-14-071

DATE: 20141212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SEEBASTIAN HARIRAJ

Accused/Applicant

Carolyn Noordegraff, for the Crown

Michael DeRubeis, for the Accused/Applicant

HEARD: November 12 and 13, 2014

RULING ON BLENDED VOIR DIRE

RE APPLICATION PURSUANT TO SS.8, 9 AND 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

DiTOMASO J.

THE CHARGES

[1] The Applicant Seebastian Hariraj is charged with possession of cocaine and possession of cocaine for the purposes of trafficking contrary to s.4(1) and s.5(2) of the Controlled Drugs and Substances Act.

[2] Mr. Hariraj contends that the charges all flow from an unlawful and arbitrary detention, followed by an illegal search of his person and the vehicle he was driving at the time of his arrest on March 25, 2013. He seeks an order excluding all evidence seized from his person and the vehicle he was driving as well as any items seized by the police pursuant to a search warrant of residences known as 201 Ferndale Drive South and 375 Ferndale Drive South in the City of Barrie.

FACTUAL OVERVIEW

[3] On March 25, 2013, Mr. Hariraj was stopped and arrested by members of the Street Crime Drug Unit of the Barrie Police Service. He was arrested without a warrant for possession of a controlled substance for the purposes of trafficking. At the time of his arrest, Mr. Hariraj was the sole occupant and operator of a 1999 Nissan Altima motor vehicle. He had just turned off Highway 400 onto Essa Road in the City of Barrie. The stop and arrest took place at about 5:35 p.m. The arrest took place after Mr. Hariraj had returned from attending for short periods of time two addresses in the City of Toronto.

[4] After being arrested, the police searched Mr. Hariraj and seized 2.6 grams of cocaine. The 2.6 grams of cocaine was found in right jeans’ pocket. A search of his vehicle shortly thereafter resulted in the seizure of 520.6 grams of cocaine.

[5] In the early morning of March 26, 2013, the police obtained and executed telewarrants at 201 Ferndale Drive South and 375 Ferndale Drive South in the City of Barrie and located money. Approximately $20,000 in Canadian currency and two grams of cocaine were located at 375 Ferndale Drive South.

POSITIONS OF THE PARTIES

The Applicant Hariraj

[6] The Applicant’s position is that the grounds to arrest articulated by the police did not satisfy the objective standard. As a result of the illegal arrest and arbitrary detention, the police had no power to search Mr. Hariraj or his vehicle. It is submitted that the cocaine seized should be excluded. It is further submitted that reference to it and other seized items should be excised from the Information to Obtain (“ITO”) to obtain the telewarrants. Its remaining portions do not contain sufficient grounds to justify the search of the addresses on Ferndale Avenue and as a result, the funds and drugs seized should also be excluded. None of the evidence should be admitted as it would bring the administration of justice into disrepute.

[7] It is submitted that the police did not have reasonable and probable grounds for the arrest as they did not satisfy the objective grounds:

(a) the applicant did not have a criminal record;

(b) the information provided by a confidential informant was not cogent;

(c) the applicant’s contact with known drug associates was not as compelling as the police believed; and,

(d) the trip to Toronto on March 25, 2013 did not disclose evidence of drug trafficking.

[8] It is submitted that when the facts surrounding the seizure of cocaine on Mr. Hariraj’s person and in his car are excised from the telewarrants, there existed no grounds for their issuance.

[9] It is further submitted that the admission of the evidence would bring the administration of justice into disrepute as:

(a) the violations are serious, advertent and continuous;

(b) the impact of the Charter rights of the Applicant are significant; and,

(c) the balancing of factors (a) and (b) outweigh society’s interest in the adjudication of the Applicant’s case on its merits.

[10] It is submitted as a result, the evidence of the cocaine and money should be excluded.

Position of the Crown

[11] The Crown submits that there have been no Charter violations. The police and specifically Sgt. Patrick Brouillard considered a number of objective factors which upon consideration, provided Sgt. Brouillard with reasonable grounds to believe that Mr. Hariraj had refreshed his cocaine supply in Toronto and would be in possession of cocaine for the purposes of trafficking.

[12] It is submitted that the police had reasonable and probable grounds to stop and arrest the Applicant. It is submitted that the search of the Applicant and his vehicle were done pursuant to his lawful arrest under the common law doctrine of search incident to arrest.

[13] The Crown submits that the police search of the Applicant was not intrusive and was carried out in a reasonable and professional manner.

[14] The Crown submits that, objectively speaking, it was reasonable that a person in Sgt. Brouillard’s shoes would believe that the Applicant was in possession of a quantity of cocaine for the purposes of trafficking. Sgt. Brouillard formed the requisite grounds based on his experience and that it is appropriate to rely on an officer’s experience as a lens through which his observations can be viewed in assessing whether there were reasonable grounds to arrest.

[15] It is submitted that Sgt. Brouillard honestly believed that he had grounds to arrest Mr. Hariraj and to investigate that offence. It is submitted his actions were objectively reasonable and that there was nothing arbitrary, much less unconstitutional, about his actions.

[16] The Crown submits that “the totality of the circumstances” in this particular case was sufficiently viewed to give the police the reasonable and probable grounds required to arrest Mr. Hariraj. Further, the Crown submits the search of Mr. Hariraj that followed was proper pursuant to common law authority for the police to search incident to arrest. Accordingly, it is submitted that there has been no breach of Mr. Hariraj’s Charter rights.

[17] Ultimately, the Crown submits that the application ought to be dismissed and that the trial proceed on its merits.

[18] Regarding the s.24(2) analysis, if the court finds that there was a breach of Mr. Hariraj’s s.8 and 9 Charter rights, the Crown submits the evidence should not be excluded after a consideration of the factors set out in R. v. Grant and a balancing of those factors. It is submitted that on balance, excluding cocaine would have a greater negative impact on the repute of the administration of justice than admitting the evidence at trial. It is submitted that the evidence of cocaine should not be excluded.

[19] Counsel agree that a ruling is sought in respect of whether Mr. Hariraj’s Charter rights have been violated and whether evidence ought to be excluded pursuant to s.24(2) of the Charter. In doing so, they agree that it is not necessary for me to address the validity of the telewarrants.

EVIDENCE ON THE BLENDED VOIR DIRE

[20] At the commencement of the trial and after Mr. Hariraj was arraigned and his pleas were taken, counsel agreed that Mr. Hariraj’s application be heard and for that purpose a blended voir dire took place. Four police witnesses testified on the voir dire: D.C. Mark Hankin, Sgt. Patrick Brouillard, D.C. Justin Ford and D.C. Andrew Pye. The defence called no evidence on the blended voir dire. The following is the summary of the evidence.

D.C. Mark Hankin

[21] Detective Constable Hankin received information from a human confidential informant source that Mr. Hariraj was actively dealing cocaine in the City of Barrie. This information triggered a police investigation of Mr. Hariraj. D.C. Hankin obtained a physical description of Mr. Hariraj and two vehicles he drove. Information was obtained as to where Mr. Hariraj lived and this information was linked to two addresses in the south end of the City of Barrie: 201 Ferndale Drive South and 375 Ferndale Drive South.

[22] D.C. Hankin was tasked to conduct certain computer searches in response to the C.I.’s tip. The niche data base search was conducted on Mr. Hariraj whose alias was “Rocky”. Also information was obtained in respect of where he lived and the vehicles he drove. Also conducted was a CPIC search which indicated Mr. Hariraj’s criminal record for forcible confinement, assault with a weapon, use imitation firearm and fail to comply with a recognizance. These convictions involved a drug related home invasion. D.C. Hankin was also involved in surveillance of Mr. Hariraj.

[23] In cross-examination D.C. Hankin agreed that the information that the C.I. made it easy to confirm a person’s identification. The searches were conducted at the commencement of the investigation which we know from other witnesses commenced in January of 2013. D.C. Hankin only learned on the morning of trial on November 12, 2014 that Mr. Hariraj’s convictions with the exception of the fail to comply connected to the home invasion were overturned by the Court of Appeal. He was unaware that the Crown advised the Barrie Police Service on August 23, 2012 that the said convictions had been overturned.

[24] He was never told by Sgt. Brouillard that the convictions were overturned. At the preliminary hearing held December 6, 2013, D.C. Hankin testified that Mr. Hariraj had a criminal record. He had no discussions with anyone about Mr. Hariraj’s criminal record.

[25] In this case, D.C. Pye was the officer in charge and Sgt. Brouillard was the team leader. Mr. Hariraj had been the subject of surveillance for 12 days prior to his arrest. Neither Sgt. Brouillard nor D.C. Pye clarified with him the status of the appeal and the convictions set aside. At the time that the he testified at the preliminary hearing, D.C. Hankin believed that the CPIC information was good. He had no discussions with Sgt. Brouillard about the appeal or the convictions being set aside before testifying at the preliminary hearing. His information did not lead to the arrest of a drug supplier in Toronto.

[26] D.C. Hankin knew that the accused’s mother lived at 201 Ferndale Drive South in the City of Barrie. For the accused to visit her there would not be unusual.

[27] He testified about his personal surveillance on two occasions of significance.

[28] The first occasion was at the Cineplex Odeon Theatre at the south end of Barrie. He observed a secluded area of the parking lot where the accused was parked in his vehicle. A male exited another vehicle, went over and sat inside the accused’s vehicle for a short period of time and then returned to the other vehicle. That other vehicle was registered to a Maxine Gunderman. She has no criminal record. Her boyfriend at some point in time was one Jessie Phillips. Mr. Phillips was a passenger in a vehicle driven by Patrick Johnson when Mr. Johnson was arrested in 2008 and charged with simple possession of marijuana.

[29] At the Cineplex surveillance, D.C. Hankin did not see the transfer of anything between the unidentified male and the accused during the interaction which lasted about seven minutes. The next significant surveillance occurred on the date of the arrest, March 25, 2013. Mr. Hariraj travelled southbound on Hwy. 400 to Toronto. The police did not have any previous knowledge that the accused was going to Toronto. He was followed to a plaza on Millwick Avenue in Toronto. This plaza has commercial stores below and residences above. D.C. Hankin does not recall if he had a camera with him that day. He made no observations at the Millwick address. He testified that Mr. Hariraj attended 74 St. Lucie in Toronto. No observations were made of Mr. Hariraj at that address by D.C. Hankin. He did not conduct any niche check of the address. He overheard Sgt. Brouillard say over the radio there was a party associated with the address that was a heroin user.

[30] After that, he observed Mr. Hariraj drive back to Barrie. Mr. Hariraj made no stops along the way. There were no “heat checks” observed by Mr. Hariraj. Mr. Hariraj was stopped on Essa Road on the Hwy. 400 overpass. He was very co-operative on arrest. The police had made no previous seizures in respect of the investigation prior to the police takedown. Further, this was the first time that the Barrie Police had used this C.I. human source.

Sgt. Patrick Brouillard

[31] Sgt. Brouillard has been a detective with the Street Crime Unit of the Barrie Police Service for the last five years. In 2013 he was investigating Mr. Hariraj. D.C. Pye and D.C. Hankin had received information from a C.I. that they believed Mr. Hariraj alias “Rocky” was dealing cocaine in the City of Barrie. They also were informed that Mr. Hariraj would attend Toronto to resupply cocaine.

[32] Sgt. Brouillard had previously known Mr. Hariraj through the police investigation of a home invasion involving Mr. Hariraj, Mr. Guerino and another person. Those individuals were charged with offences related to a home invasion at a residence in Letitia Heights, Barrie in order to collect a drug debt. The result of the trial was that the jury convicted Mr. Hariraj and Mr. Guerino.

[33] The Crown asked Sgt. Brouillard about the treatment of Mr. Hariraj’s convictions. The Crown Shannon Curry called Sgt. Brouillard and advised him that the convictions had been appealed. She asked him to contact the victim D.L. At this point in time, Mr. Hariraj had served his sentence. The Crown was concerned that there would be another trial when the sentence had already been served and whether D.L. would not wish to relive the experience. Sgt. Brouillard spoke with D.L. and thereafter reported to Ms. Curry as to his discussion with D.L. This was the last he heard of the matter.

[34] All of this happened before he investigated Mr. Hariraj in 2013. He knew what the ground of appeal was. He testified that he was never notified by the Crown that the Crown was not retrying the case. It just “slipped his mind”. He never received a fax from the Crown at the Barrie Police detachment regarding the appeal. Even as at the date of trial, the CPIC showing Mr. Hariraj’s convictions had not been removed by the RCMP and the documents were still at the Barrie Police office to have these convictions expunged from CPIC by the RCMP. Those documents had been generated as a result of inquiries that had been generated in the last few weeks. He had “assumed” that the convictions had been removed after the preliminary hearing.

[35] He testified about his personal involvement in this case and that he assisted in some of the surveillance. He was in charge of the entire unit. He was the “road boss” when the surveillance was on the road. As overseer of the investigation, he would receive information from various officers.

[36] On May 25, 2013 Mr. Hariraj was arrested. Sgt. Brouillard made the decision to arrest him. He was asked how he came to that decision to arrest Mr. Hariraj and went through a number of factors that he considered in formulating reasonable and probable grounds to arrest.

[37] He first determined whether Mr. Hariraj was involved in drugs and relied upon the C.I. source for that information. He also took into account his prior knowledge in the home invasion investigation which confirmed that the accused had returned to “that line of work” (presumably involving drugs).

[38] He took into account the days of surveillance at 90 Edgehill Drive in the City of Barrie and Mr. Hariraj’s attendance at that address as well as at the Ferndale addresses. Sgt. Brouillard understood at this address there were problem apartments related to drugs and this was low income housing. He understood one Bradley Jarvis was involved in drugs and Mr. Jarvis lived at 90 Edgehill Drive.

[39] Another piece of information which was a factor in the formulation of reasonable and probable grounds to arrest was the surveillance which the police conducted in respect of a “transaction” at the Cineplex Odeon Theatre parking lot. This involved two parked vehicles in a secluded area with one male getting into Mr. Hariraj’s car for a very short time. Sgt. Brouillard testified that the other vehicle was associated with someone who had a drug record. Sgt. Brouillard testified that after the “transaction” the accused pulled into another parking lot which Sgt. Brouillard called a “heat check” namely, a counter surveillance technique.

[40] Another factor relied upon by Sgt. Brouillard was the accused was not observed to have any gainful employment.

[41] Lastly, the Barrie Police Service followed Mr. Hariraj to Toronto where he attended two addresses, Millwick Plaza and 74 St. Lucie for very short visits. Sgt. Brouillard contacted the Toronto Police while on scene at 74 Lucie and determined that there had been a domestic dispute at that address involving one male who was a heroin user.

[42] After leaving the St. Lucie address, Mr. Hariraj drove back to Barrie where he was arrested on Essa Road under the Hwy. 400 overpass at 5:35 p.m. It was upon Mr. Hariraj leaving the St. Lucie address that Sgt. Brouillard determined that Mr. Hariraj ought to be arrested.

[43] On the way back to Barrie, Mr. Hariraj was driving at a low speed which Sgt. Brouillard stated might be because Mr. Hariraj was “onto the surveillance”.

[44] Sgt. Brouillard was asked why Mr. Hariraj was to be arrested at this moment in time. He testified that he had formed the reasonable and probable grounds that Mr. Hariraj was in possession of narcotics. The arrest on any previous date would not have provided the police with the evidence that they were seeking.

[45] Sgt. Brouillard testified that he was an experienced drug investigator. His forte was surveillance. He had served with the Toronto Police Service Guns and Gangs Unit and had been involved in many drug investigations involving the trafficking of cocaine, heroin and other drugs. He was personally involved in the surveillance at the Millwick Plaza in Toronto. He did not determine where Mr. Hariraj had gone. He was not agreeable to officers going in behind the plaza because he did not want to reveal police surveillance.

[46] He learned later from D.C. Ford that he was also a police officer on surveillance at the Millwick Plaza. While he did not enter the parking lot, he had surveillance of it.

[47] Sgt. Brouillard was extensively cross-examined.

[48] Sgt. Brouillard testified he knew that the decision to arrest was his and to do so he would have to form reasonable and probable grounds. The reasonable and probable grounds were outlined in his evidence at the preliminary hearing and also in-chief.

[49] He knew Mr. Hariraj because of Mr. Hariraj’s involvement in a previous investigation leading to the trial and conviction of charges arising out of a home invasion. He knew the convictions had been appealed. However, he testified that he did not know if a new trial had been ordered.

[50] When asked whether he knew that the convictions had been appealed prior to the commencement of this investigation, he replied that he was not sure.

[51] He knew that the Barrie Police Service had been notified by the Crown on August 23, 2012 about the Court of Appeal overturning Mr. Hariraj’s convictions. He was the officer in charge in respect of Mr. Hariraj’s prosecution on the home invasion charges.

[52] He was asked when the Crown from the Attorney General’s department notified the Barrie Police Service that the convictions were overturned. Sgt. Brouillard stated that he did not know when this was for sure.

[53] He testified that the Crown in Barrie, Shannon Curry told him that the convictions had been overturned and the Crown was considering a new trial and that the Barrie Police Service was definitely advised of this.

[54] Sgt. Brouillard then testified that while he was an experienced officer, he was not familiar with appeals. He was not sure of things that happened on appeals. He finally agreed after some persistent and pointed questioning by defence counsel that where a conviction is overturned on appeal, a person would no longer have a conviction for that offence.

[55] He was then cross-examined on the factors upon which he relied in formulating the reasonable and probable grounds to arrest Mr. Hariraj.

[56] He knew that Mr. Hariraj had played a part in the home invasion. Again, he could not remember the date upon which he learned that the home invasion convictions were under appeal or the appeal was granted.

[57] He did remember speaking with D.L., the victim of the home invasion and he agreed that this occurred after the appeal was granted and the convictions were overturned. He could not recall when the charges were withdrawn and there was no follow up by him. He had a conversation with Shannon Curry, then spoke to D.L. and then spoke with Shannon Curry reporting on his discussion with D.L. At that time, he was not actively working on that case and it “slipped his mind”. After he was made aware that the appeal was successful, he still knew that the convictions were on CPIC. He had never been involved in a case where the accused had served time and then appealed. He wanted to hear from Shannon Curry but he never did.

[58] He was asked about Mr. Hariraj’s previous convictions in respect of formulating reasonable and probable grounds. Put to Sgt. Brouillard was his evidence on the preliminary hearing, which he adopted as his honest evidence.

Q. Let me ask you this. When did you find out the appeal was successful?

A. I don’t think I’ve ever been made aware that the appeal was successful. On that date I remember asking him about it and he said he had a paper somewhere saying that the appeal, it was– but I knew that it was still on CPIC. His conviction was still on CPIC and that it was in the process.

Q. Did you ever think of contacting the Crown’s office to verify?

A. To be honest it didn’t – it wasn’t relevant to me in this investigation.

Q. Well it’s obviously affected you. The fact that you said that one of your grounds was a previous conviction.

A. Absolutely.

Q. Now, did it not concern you that the conviction was overturned?

A. No. The fact that I was there when he was convicted of something is something that I’m not going to forget even if it’s overturned. If it’s appealed I understand it can’t – it’s not going to be used for sentencing or any court purposes, but the fact that the evidence was laid out in court and he was convicted is obviously going to play in my mind.

Q. Okay. Did you ever to this day determined – satisfied that it was overturned and the charges were withdrawn?

A. I never followed up on it. My understanding is his charge is still in CPIC.

(See Appeal Book Tab 3 Transcript of Evidence of Sgt. Brouillard at Preliminary Hearing dated December 17, 2013, p. 31, line 23 – p. 32 line 20)

[59] While the convictions were overturned arising from the home invasion, Sgt. Brouillard testified that he still had it in his mind that those convictions were related to drugs. While he testified that the convictions that were still on CPIC were not relevant to this investigation, it absolutely affected Sgt. Brouillard as one of the factors when he was formulating his grounds. He testified that the previous conviction did absolutely affect the formulation of his reasonable and probable grounds. He was not concerned that the conviction was overturned. He testified that he had previous knowledge of the conviction and could not pretend that he never heard about it.

[60] He never followed up about the convictions being overturned or the charges being withdrawn until this month. The Crown had sent a fax to the Barrie Police Service about this case.

[61] He denied that his conduct was negligent or that he chose to ignore the convictions which had been successfully appealed. He testified that the RCMP had a two year backlog to change CPIC records.

[62] He was cross-examined about the Bail Hearing Brief. The investigation started in January of 2013 although Sgt. Brouillard could not say for sure. The accused was arrested on March 25, 2013. The ITO was prepared on that date. Mr. Hariraj’s bail hearing took place on March 26, 2013.

[63] In the preparation of the ITO by D.C. Pye, Sgt. Brouillard was not aware but it was possible that D.C. Pye included Mr. Hariraj’s CPIC which disclosed his criminal record. Sgt. Brouillard did not review the ITO.

[64] He was asked whether or not he had any conversations with D.C. Pye regarding the conviction being overturned. First he said he did not have a conversation with D.C. Pye but then he said that he did have a conversation with D.C. Pye that the convictions had been overturned. He told D.C. Pye about this when the investigation was ongoing with Mr. Hariraj in January of 2013. He did not make a note of the conversation and he did not recollect where it took place. His best recollection was that Shannon Curry had asked Sgt. Brouillard to check with the victim regarding the appeal and whether or not D.L. objected to a new trial. He agreed that by January 2013 there had been a successful appeal in respect of Mr. Hariraj’s convictions. Sgt. Brouillard thought that while the issue of the victim’s involvement in a new trial was “live”, he thought that D.C. Pye was going to look after contacting Shannon Curry or would check CPIC before putting in the document.

[65] After the morning break, he was further cross-examined about his recollection of the conversation with D.C. Pye. Again, he had no recollection as to where the conversation took place. He could not recall exactly what he told D.C. Pye. When pressed on his best recollection, again he stated that he could not recall the exact conversation. He testified he could not be certain what he told D.C. Pye. He could not recall the exact conversation as to whether D.C. Pye was to follow up. He could not recall what D.C. Pye said to him. He could not recall having any conversations with someone else on the team. When pressed as to whether he ignored the subject completely, Sgt. Brouillard testified that he had one discussion with D.C. Pye.

[66] He was not consulted by D.C. Pye in respect of the drafting of the ITO. In respect of the Bail Hearing Brief, he had no idea who put in the documentation to the effect that Mr. Hariraj had a criminal record. He did not know who approved the brief. Later, evidence disclosed that it was Sgt. Brouillard himself who had signed off on the Bail Hearing Brief.

[67] He was taken through other factors on which he had formulated his reasonable and probable grounds to arrest Mr. Hariraj.

[68] He considered whether the accused was involved in drugs. He was asked whether the home invasion related to a collection of money over drugs rather than the accused being in possession or trafficking in drugs. He could not recall. He was asked about his testimony that the accused had returned to a life of drug trafficking. It was suggested to Sgt. Brouillard that there was no drug trafficking only the collection of money regarding a drug debt. Sgt. Brouillard disagreed.

[69] He was questioned about the surveillance at 90 Edgehill Drive. He agreed that while this was low-income housing, people who live there are not necessarily involved in drugs.

[70] While at one time Bradley Jarvis lived there, Mr. Jarvis’ last entry in the police records is a criminal record in 2006 for possession of drugs for the purposes of trafficking. Sgt. Brouillard did not know whether Mr. Jarvis still lived at 90 Edgehill Drive. He did not know what apartment unit he occupied. He did not know if Mr. Hariraj ever went to Mr. Jarvis’ apartment. Another factor which Sgt. Brouillard considered was the drug “transaction” behind the Cineplex Odeon Theatre. He did not see a drug transaction. There was no drug transaction.

[71] He was questioned about his evidence that Mr. Hariraj was not gainfully employed. There were 12 different days of surveillance between January and March 25, 2013. This surveillance took place at different times of the day. Upon his arrest, Mr. Hariraj told Sgt. Brouillard he was a personal trainer. Sgt. Brouillard agreed it was not unusual that a person goes to a gym every day would have a bag with him. He agreed there was no surveillance to confirm that the accused was a personal trainer. He also agreed that 90 Edgehill Drive was a residential complex consisting of 80 apartment units. It was possible that Mr. Hariraj visited different people in different units at different times.

[72] As for the residences attended on Ferndale, one residence was a house that he was living in and another residence was a house registered in the name of his mother and his grandmother whom he would visit.

[73] It was Sgt. Brouillard’s belief that Mr. Hariraj was a drug dealer and “that’s what he did”.

[74] The last factor considered by Sgt. Brouillard involved the surveillance team travelling to Toronto on March 25, 2013.

[75] Sgt. Brouillard testified that the confidential informant advised that Mr. Hariraj would go to Toronto to obtain drugs. He agreed that not everyone who goes to Toronto picks up drugs. The police did not have any information that Mr. Hariraj was travelling to Toronto until the accused got into his car and travelled southbound on Hwy. 400. The protocol to notify the Toronto Police Service that the Barrie Police Service was involved in surveillance in Toronto’s jurisdiction was not followed. The Toronto Police Service was not notified.

[76] The Barrie Police Service officers travelling in more than two vehicles followed Mr. Hariraj to the Millwick Plaza. There was observation of the accused’s vehicle parked at the back of a building at the Plaza. He was seen to have exited his vehicle and return to it. D.C. Ford was in place surveilling the accused at the Millwick Plaza. He told Sgt. Brouillard that he saw Mr. Hariraj return to his vehicle, carrying a bag and putting it on the passenger seat.

[77] The next address attended by Mr. Hariraj in Toronto was at 74 St. Lucie. Sgt. Brouillard did not observe the accused brining anything into or out of that address. Sgt. Brouillard contacted the Toronto Police Service and was made aware by a clerk over the phone that there had been a domestic dispute at this address involving a male heroin user. Not at the time but much later, it was learned that this event had taken place 11 months earlier and that the information was old. In fact, he first learned that the information was 11 months old on the morning of his attendance at trial.

[78] As Mr. Hariraj was driving to and from Barrie, there is no evidence of a “heat check”. He was driving slowly at 100 km per hour or slightly below the speed limit. He agreed that there should not be any negative inference drawn about a person obeying the speed limit. There were no other indicia of a “heat check”. No stops along the highway, no evidence of moving things about in the car.

[79] Mr. Hariraj was stopped at Essa Road and charged with possession for the purposes of trafficking. Sgt. Brouillard believed that the drug was cocaine. He testified that there was not enough evidence up to March 25, 2013 to allow police to obtain a search warrant. He testified that the trip to Toronto was the final “piece of the puzzle” needed to arrest Mr. Hariraj. He did not know that there were drugs in the car but believed there were.

[80] After the arrest, Mr. Hariraj’s car was taken to a parking lot and a search was conducted incident to arrest. Sgt. Brouillard presumed that the arrest was lawful and it never entered his mind to obtain a search warrant. A search warrant was obtained to search the two Ferndale residences. Sgt. Brouillard testified that he was not upset that Mr. Hariraj was “acquitted” of the previous charges or that the appeal was successful.

D.C. Justin Ford

[81] D.C. Ford was involved in the investigation of Mr. Hariraj in 2013. The officer in charge was D.C. Pye. He testified about his participation in following Mr. Hariraj to the Millwick Plaza in Toronto. He parked his police vehicle and made observations of Mr. Hariraj in his vehicle. He parked his vehicle so that he could observations of where Mr. Hariraj had parked his vehicle in the parking lot of a plaza. Before setting out, he had no observation as to where Mr. Hariraj went. At 4:18 p.m. on March 25, 2013 he observed Mr. Hariraj returning to his vehicle with a black bag slung over his shoulder. He observed Mr. Hariraj putting the bag inside the car on the passenger side seat. Mr. Hariraj then got into his vehicle and drove to 74 St. Lucie. He was followed there where Mr. Hariraj’s vehicle was seen parked in the driveway of 74 St. Lucie. Thereafter, Mr. Hariraj was observed leaving Toronto and driving to Barrie.

[82] In cross-examination, D.C. Ford testified that he had no idea where Mr. Hariraj was travelling southbound on Hwy. 400 until he arrived at the Millwick Plaza. There were no “heat checks” along the way. He did not recall the speed at which Mr. Hariraj was travelling. He described the Millwick Plaza. He did not recall if he had a camera with him. There were multiple exits from the parking lot – two possibly three. He agreed that people could come and go at the plaza. He was in a position to see the accused’s vehicle. He observed the accused coming from a building and walk directly to his car. He had no view exactly where he came from and he did not know what building Mr. Hariraj went into or came out of. He was carrying a black bag. He testified that no drugs were found in the black bag which was placed on the passenger seat. He did not search the vehicle. He had no recollection of Mr. Hariraj’s speed travelling northbound on Hwy. 400. It was nothing out of the ordinary. There were no “heat checks” by the accused. It appeared that Mr. Hariraj was driving “very normal”. He made no observations at the St. Lucie address except that Mr. Hariraj had parked his car in the driveway. He heard something about a drug user at that address but did not know the currency of that information. He could not recall the speed at which Mr. Hariraj was travelling from Toronto to Barrie.

D.C. Andrew Pye

[83] In January of 2013, he was the officer in charge of an investigation relating to Mr. Hariraj. He received information from a confidential informant that lead to this investigation. The information was that Mr. Hariraj was trafficking cocaine in the City of Barrie. He also received information that Mr. Hariraj would attend Toronto to “re-up” or re-supply quantities of cocaine. As a result, an investigation was commenced.

[84] The first steps involved computer checks done by D.C. Hankin. Later, the investigation involved surveillance.

[85] He was questioned about the surveillance at the Cineplex Odeon Theatre. He testified that Mr. Hariraj was seen at the parking lot by other team members. He was also observed on Ardagh Road in the City of Barrie travelling eastbound on Ardagh. He pulled into a T-D Bank parking lot and undertook a slow U-turn. He then proceeded westbound on Ardagh for no reason. He testified that this was a consistent with a “heat check” or anti-surveillance manoeuvre. He confirmed that the ultimate decision to arrest Mr. Hariraj came from the “road boss” Sgt. Brouillard.

[86] D.C. Pye prepared the materials for the Bail Hearing Brief. He put in the arrest report as OIC. The whole team helped to compile the Brief. He did not know who did what. The accused’s criminal record generally would be put in by the records department usually composed of civilian members. They would type information and then submit documents to the police who compiled the Brief. D.C. Pye reviewed all the material before going to the bail hearing. The Brief would have been approved by a superior officer. At the time, March 25, 2013, he understood that Mr. Hariraj had a criminal record relating to the home invasion. At the time of the preparation of the bail hearing and the preparation of the Application for a Search Warrant, D.C. Pye understood that an appeal was in progress. The CPIC search indicated that Mr. Hariraj was convicted regarding the charges stemming from the home invasion. The source of the information that an appeal was ongoing came from Sgt. Brouillard. He had no other information regarding that appeal.

[87] D.C. Pye was cross-examined at some length.

[88] He did not know who the person was that met with the accused at the Cineplex Odeon parking lot. He later learned that Bradley Jarvis’ vehicle had attended Mr. Hariraj’s residence. He does not recall doing any check on Bradley Jarvis. Bradley Jarvis came to light in this investigation as a result of his police involvement in 2006.

[89] Regarding the surveillance of 90 Edgehill Drive there was no evidence as to who Mr. Hariraj visited there. There are numerous apartments at that address. No one from the police followed him to see where he went at 90 Edgehill Drive.

[90] At the Millwick Plaza, D.C. Pye was not involved in any observations. He did not know how many exits there were for the back parking lot. He knew there was an officer viewing the accused’s vehicle. He did not go into the building. He did not know which of the two buildings Mr. Hariraj went into. At 74 St. Lucie, he did not see Mr. Hariraj go in or out of that residence. On the way back to Barrie, he observed no “heat checks” and this was true when Mr. Hariraj travelled southbound to Toronto and then again northbound to Barrie. He did not note Mr. Hariraj’s speed but there was nothing noteworthy. There was no evidence that Mr. Hariraj stopped along the way.

[91] The decision to take down or arrest Mr. Hariraj was made by Sgt. Brouillard. D.C. Pye testified that he had checked CPIC the very morning that he gave his evidence and the record was still in the system and not been updated.

[92] He testified that during his preparation of the Search Warrant, he had a conversation with Sgt. Brouillard about Mr. Hariraj’s record. This was on the date Mr. Hariraj was arrested, namely, March 25, 2013. He confirmed that prior to the trip to Toronto, there were insufficient grounds to obtain a search warrant. Only after, the Toronto trip “finished it off”.

[93] When asked about the conversation he had with Sgt. Brouillard, he testified that the conversation was brief. D.C. Pye was told he believed that an appeal was being sought. He did not know when before the arrest this occurred. He testified that this information was not significant in respect of his ITO. He did not mislead the court. He did not know the existence of the status of the appeal. D.C. Pye obtained the CPIC on Mr. Hariraj and included it in the ITO information. When asked whether the Barrie Police Service received a communication dated August 23, 2012 about the success of appeal, D.C. Pye testified that “this would not shock him”.

[94] He was tested at least half a dozen times in his cross-examination about his conversation with Sgt. Brouillard. He did not have a recollection of what exactly was said except that he believed the appeal was in process. He had no knowledge that Sgt. Brouillard was upset. D.C. Pye was not aware that the appeal had been granted. He believed that the CPIC was accurate. He was not told of any discussions that Sgt. Brouillard had spoken to the victim D.L. to see if the Crown should proceed with a new trial. Again, he confirmed the brief discussion with Sgt. Brouillard “maybe an appeal was in the process”. He did not know that an appeal had been granted because Sgt. Brouillard had spoken to D.L.

[95] Prior to the vehicle search, there was no evidence that anyone saw cocaine during the arrest. He testified that he had no knowledge that the appeal was granted as late as March 2013. He was never informed that the appeal was granted.

[96] If he knew the appeal had been granted, he was sure that Sgt. Brouillard would have told him.

[97] Lastly, it was confirmed that Sgt. Brouillard had signed off on the Bail Hearing Brief.

ANALYSIS

[98] The critical issue on this application is whether on March 25, 2013 did Sgt. Brouillard have reasonable and probable grounds to arrest Mr. Hariraj for possession of cocaine for the purposes of trafficking.

[99] The Defence submits that Mr. Hariraj was arrested without reasonable and probable grounds and that he was the subject of an unlawful and arbitrary detention. That unlawful detention and the warrantless search of his person and car are also the subject of unlawful search and seizure. It is submitted on behalf of Mr. Hariraj that his Charter rights had been violated. Further, any evidence seized as a result of the unlawful arrest and unlawful search and seizure ought to be excluded pursuant to s.24(2) of the Charter.

[100] The Crown submits that there has been no violation of Mr. Hariraj’s Charter rights. The detention was arbitrary but lawful. Sgt. Brouillard had formulated reasonable and probable grounds on a subjective and objective basis to search Mr. Hariraj’s person and vehicle. The Crown submits the search of Mr. Hariraj and his vehicle that flowed from the lawful arrest was proper pursuant to the common law doctrine for police to search incident to arrest.

[101] Counsel for Mr. Hariraj submitted that reasonable and probable grounds have a subjective and an objective component. He is not attacking the subjective component. Rather, the key to this analysis is a focus upon the objective element, namely, those objective elements upon which Sgt. Brouillard formulated his reasonable and probable grounds to arrest.

Legal Principles

[102] Counsel do not dispute the applicable legal principles which were summarized as follows.

[103] In R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, the Supreme Court of Canada held:

In summary then the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[104] In R. v. Brown, 2012 ONCA 225, [2012] O.J. No. 1569 the Ontario Court of Appeal at para. 14 held that there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lend some objective justification or verification to the officer’s belief. Both s.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. The court went on to state:

Without the 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 measureable limits on police powers.

[105] In R. v. MacKenzie, 2013 SCC 50, [2013] S.C.J. No. 50 at para. 38, the Supreme Court of Canada considered the meaning of “reasonable grounds” within the context of detention:

…in the context of detention, “reasonable grounds” means reasonable grounds to suspect that an individual is involved in particular criminal activity, which is synonymous with reasonable suspicion. However, in other contexts, such an arrest, “reasonable grounds” means reasonable grounds to believe that an individual is or has been involved in a particular offence, which is synonymous with reasonable and probable grounds. The former concept is a matter of possibilities, while the latter is one of probabilities. See Chehil, at para. 27; Kang-Brown, at para. 164, per Deschamps J.

[106] In R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 at para. 20, the Supreme Court of Canada held:

While an officer’s “hunch” is a valuable investigative tool – indeed, here proved highly accurate – it is no substitute for proper Charter standards when interfering with a suspect’s liberty.

[107] Reasonable and probable grounds require credibly based probability informed by the context in which the police officer is acting as well as the offences being investigated. Information known to the officer and his experience forms the grounds. The totality of the circumstances at the time of the arrest must raise a reasonable probability that a person has committed or is about to commit an offence. The offence is not to be viewed in isolation. See R. v. Golub, 1997 6316 (ON CA), [1997] O.J. No. 3097 (Ont. C.A.) at para. 21.

[108] There are a number of factors on which the police can rely in compliance with the law. Police can rely on information contained in police computers. However, the police cannot do so negligently. See R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673 (Ont. C.A.) at paras. 22 to 24, R. v. J.F.R., [1991] Y.T. No. 253 (Yukon Territorial Court) at p. 4.

[109] A confidential informant’s tip provides reasonable grounds only where on the totality of circumstances it was objectively reasonable to believe that an offence had been committed having regard to the following:

1. whether the information was specific and compelling – a conclusory tip is not satisfactory;

2. whether the factual basis of the C.I.’s allegations were communicated;

3. whether the C.I. provided information which was credible;

4. whether there is any corroboration of the information;

5. whether the corroborating information was commonly known or readily apparent;

6. had the C.I. been used before or was it the first time that the C.I. had supplied information; and,

7. weaknesses in one area may be counterbalanced by strengths in other areas. See R. v. Debot, 1989 13 (SCC), [1989] S.C.J. No. 118 at para. 53

[110] Any evidence of a person being in a high crime area is not a lawful basis for detention. See R. v. Brown supra para. 18.

Reasonable and Probable Grounds to Arrest asserted by the Police

[111] The police indicated that the grounds to arrest Mr. Hariraj were as follows:

(a) He had a criminal record for forcible confinement, assault with a weapon, use imitation firearm and fail to comply with a recognizance. These convictions involved a drug related home invasion;

(b) The confidential informant had provided information that Mr. Hariraj was selling drugs specifically cocaine and that he would attend Toronto to restock his supply. The C.I. was believed to be reliable as some of this information had been corroborated;

(c) Mr. Hariraj associated with Bradley Jarvis and Jessie Phillips – individuals involved in drug trafficking. Both were connected to addresses that had a history of drug trafficking; and

(d) The following surveillance was conducted of Mr. Hariraj;

i. Attendance at the Cineplex Odeon parking lot in Barrie where he met with an individual for a short period of time. Upon leaving the meeting, Mr. Hariraj conducted a “heat check”. The vehicle driven by the unknown individual with whom Mr. Hariraj was registered to an address – 199 Owen Street in Barrie – that it was connected to drug activity conducted by Jessie Phillips, the boyfriend of its registered owner;

ii. Travelling between his home and 90 Edgehill Drive in Barrie sometimes with and another times without a bag, sometimes stopping for a short period of time at other residences. He would stay at 90 Edgehill Drive for a short period of time. This address was a high rise building known for drug activities and was the address associated with Bradley Jarvis; and

iii. On March 25, 2013 Mr. Hariraj drove to Toronto with a black gym bag and attended a plaza at 183 Millwick Drive for half an hour and a residence at 74 St. Lucie for 15 minutes. The latter address was associated with a known heroin user and had a number of police hits including a domestic incident.

Section 9 – Arbitrary Detention

[112] Section 9 of the Charter provides:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[113] For the following reasons, I find that Mr. Hariraj’s detention by the Barrie Police Service on March 25, 2013 was an arbitrary detention and therefore, was a violation of his s.9 Charter rights.

[114] Mr. Hariraj was arrested without a warrant. His vehicle was searched without a warrant. On the balance of probabilities, he has established that the arrest and the following search of his person and his vehicle were unlawful.

[115] I make this finding after considering whether the police had reasonable and probable grounds for the arrest and if those grounds were satisfied on objective basis. It was the evidence of Sgt. Brouillard that he did not form reasonable and probable grounds until he was enroute back to Barrie from Toronto after conducting surveillance at the Millwick Plaza and the 74 St. Lucie address. I find that he did not have reasonable and probable grounds to arrest Mr. Hariraj on Sgt. Brouillard’s own evidence before he conducted the surveillance in Toronto. I find that the Toronto surveillance did nothing to add to Sgt. Brouillard’s formation of reasonable and probable grounds for reasons I will discuss later. He certainly did not have reasonable and probable grounds to arrest Mr. Hariraj before he left for Toronto and Sgt. Brouillard was in no better position driving back to Barrie from Toronto northbound on Hwy. 400 to formulate those grounds.

[116] I find that Sgt. Brouillard did not have reasonable and probable grounds for the arrest of Mr. Hariraj as the factors he relied upon did not satisfy the objective grounds.

Mr. Hariraj did not have a criminal record

[117] Mr. Hariraj had successfully appealed his convictions for forcible confinement, assault with a weapon and use of imitation firearm. I have carefully considered the evidence of all the police officers in respect of any knowledge regarding Mr. Hariraj’s successful appeal. The key evidence is that of Sgt. Brouillard and to some lesser extent the evidence of D.C. Pye.

[118] Sgt. Brouillard was questioned extensively in respect of his knowledge of Mr. Hariraj’s home invasion convictions and the success of the appeal.

[119] I was not impressed by Sgt. Brouillard’s evidence in chief and cross-examination. To the contrary, I found his evidence disingenuous on this particular point. He is an experienced officer with rank. He has considerable experience in surveillance and drug investigations. He has served as a member of the Toronto Police Services Guns and Gangs Unit as well as the Street Crime Unit for the Barrie Police Service. He was involved as the officer in charge in the prosecution of Mr. Hariraj and others regarding the home invasion. Yet, he testified that he was “not familiar with appeals, not sure about the workings of appeals”. After persistent cross-examination, he finally agreed that when a conviction is overturned on appeal, a person no longer has a conviction for that offence. This was something entirely fundamental and did not require any profound understanding of criminal law or the appeal process. Rather, Sgt. Brouillard knew exactly the meaning of a successful appeal and exactly what was meant when convictions were set aside. It was precisely what happened in the case of Mr. Hariraj and Sgt. Brouillard knew it before this investigation leading to Mr. Hariraj’s arrest on March 25, 2013.

[120] Before Mr. Hariraj’s date of arrest, Sgt. Brouillard had already spoken with the Crown, Shannon Curry. Shannon Curry wanted him to follow up with the victim D.L. in order to find out her feelings about giving evidence at a new trial. This was the reason that he spoke with D.L. and that conversation took place after the appeal had been granted and the convictions overturned. He then reported to Shannon Curry about that conversation. He was not actively working on that case at the time and it “slipped his mind”.

[121] After he was made aware that the appeal was successful, he knew that the convictions were still registered on CPIC. Even though he testified that this matter had slipped his mind, he testified that he wanted to hear from Shannon Curry but never did. He did not follow up with Ms. Curry.

[122] He was taken to his evidence on the preliminary hearing at pages 31 and 32 of the transcript of evidence taken January 17, 2013. He was specifically asked when he found out the appeal was successful. He answered that he didn’t think that he had ever been made aware that the appeal was made successful. This is not true. He knew that the appeal was successful when he spoke with Shannon Curry the first time, when he spoke with D.L. at Ms. Curry’s request and when he reported back to Ms. Curry – all entirely before January of 2013 when the investigation concerning Mr. Hariraj commenced.

[123] When asked whether he ever thought of contacting the Crown’s office to verify, his evidence was it was irrelevant to him in this investigation. Even though he claimed it was not relevant in this investigation, he absolutely agreed that the matter of Mr. Hariraj’s convictions formed one of the grounds. He went on to testify that he was present when Mr. Hariraj was convicted and that he was not going to forget even if the conviction was overturned. The matter of the appeal as far as he was concerned was not going to be used for sentencing or any court purposes, but the fact that the evidence was “laid out in court and he was convicted is obviously going to play in my mind”.

[124] When asked whether even to the date of trial he determined that the conviction was overturned and the charges were withdrawn, he testified “I never followed up on it. My understanding is his charge is still in CPIC”.

[125] Nevertheless, Sgt. Brouillard knew that the convictions had been overturned on appeal and that the appeal was successful. Notwithstanding this knowledge, the evidence he heard at trial leading to Mr. Hariraj’s conviction continued to play in his mind. The fact that he was there when Mr. Hariraj was convicted was something that he was not going to forget, even if it was overturned. Seized with that knowledge, I find Sgt. Brouillard cannot hide behind a stale or erroneous CPIC report. Rather, Sgt. Brouillard proceeded as if the successful appeal and setting aside of the convictions never occurred.

[126] He had has one conversation with D.C. Pye in January of 2013 about the appeal and overturn of convictions. He has no notes of the conversation and he does not recall where this conversation took place. His best recollection is that he told D.C. Pye that Shannon Curry had asked him to check with the victim D.L. and whether or not D.L. objected to a new trial. He agreed that the previous convictions had been successfully appealed by January 2013. Then, he testified in hindsight, that he thought D.C. Pye was going to look after contacting Shannon Curry or checking CPIC before it was put in the documents. Those documents consisted of the Bail Hearing Brief and the ITO for the search warrant. The bail hearing was scheduled for March 26, 2013. The ITO was prepared on March 25, 2013.

[127] There was no basis in evidence for Sgt. Brouillard’s belief that D.C. Pye would do anything with respect of these matters. There is no basis to support the expectation that D.C. Pye was going to do anything in this regard.

[128] This is further confirmed upon additional cross-examination where Sgt. Brouillard could not exactly recall the conversation. He could not be certain what he told D.C. Pye. He could not recollect where that conversation took place. He could not recall what D.C. Pye said to him. He could not recall having a conversation with anyone else on his team about this matter.

[129] In respect of the preparation of the bail hearing documents, Sgt. Brouillard signed off on the Bail Hearing Brief. That Brief contained the incorrect CPIC. He knew the information was wrong and he took no steps to correct information very damaging to the accused i.e. that he still had a criminal record when, in fact, the Court of Appeal had set aside those convictions.

[130] Sgt. Brouillard ought to have known or knew that D.C. Pye was going to be preparing an ITO for a search warrant regarding the Ferndale addresses. Sgt. Brouillard was D.C. Pye’s superior officer. He must have known from his years as an experienced police officer that contained within the ITO would be the CPIC report advising the judicial officer reviewing the ITO that Mr. Hariraj had a criminal record. Yet, Sgt. Brouillard took no steps to speak with D.C. Pye and apprise him of the fact that there had been a successful appeal and the convictions were set aside. As a result, the reviewing judicial officer was left with the entirely false presentation of Mr. Hariraj having outstanding criminal convictions.

[131] As far as D.C. Pye was concerned, there had only been one brief conversation with Sgt. Brouillard during the preparation of the search warrant material. By that point in time Mr. Hariraj had already been arrested. Sgt. Brouillard told D.C. Pye that he believed that an appeal was being sought. In cross-examination, he testified “maybe an appeal was in the process”. He was never informed that the appeal had been granted. Had he known the appeal had been granted, he was sure that Sgt. Brouillard would have told him.

[132] On this voir dire and marked as Exhibit 1 was the affidavit of Carolyne Kerr who deposed that the Crown withdrew or stayed the charges arising out of a home invasion sometime after Mr. Hariraj’s arrest on March 25, 2013.

[133] Ms. Kerr did some follow up and in her affidavit at para. 7 she deposes that she contacted Jennifer Woollcombe of the Crown Law Office who conducted the appeal. The Crown Law Office had sent the requisite paperwork to Barrie Police on August 23, 2012, enclosing the endorsement of the Court of Appeal allowing the appeal, setting aside the convictions and ordering a new trial in the case of Mr. Hariraj.

[134] Further, as of October 21, 2014 CPIC still recorded Mr. Hariraj as having a criminal record for forcible confinement, assault with a weapon and use of imitation firearm.

[135] The fact is that the appeal was successful, and Sgt. Brouillard knew about it whether it was irrelevant to him does not satisfy any objective ground on the erroneous basis that Mr. Hariraj had a criminal record. Clearly, Mr. Hariraj did not have such a record.

[136] Further, Mr. Hariraj was not arrested for any drug offences in relation to the home invasion.

Information provided by the confidential informant

[137] I find that the information provided by the C.I. was not as cogent as the police asserted. It was intelligence information. The information provided by the C.I. was easily and only partially confirmed. All that was communicated to the Barrie Police Service was that the accused was trafficking in cocaine in the City of Barrie and would go to Toronto to resupply. The police were able to obtain much additional information through their own resources. This particular C.I. was used for the first time in this case and whatever information he provided was of limited value.

Mr. Hariraj’s contact with known drug associates

[138] This factor relied upon by Sgt. Brouillard was not as compelling as he or the police believed for the following reasons:

(a) The police did not know who Mr. Hariraj may have visited at 90 Edgehill Drive or if they had criminal records.

(b) His visits to Edgehill Drive varied between a short period of time to two hours in length.

(c) The address on Edgehill Drive was a high-rise apartment with approximately 80 units.

(d) There was no evidence that at the relevant time Mr. Hariraj met Bradley Jarvis. There is no evidence that Bradley Jarvis even resided at that address. No one followed Mr. Hariraj into the building. Although surveilled on 12 different occasions, Mr. Hariraj could have possibly met with different persons in different apartments at different times during the period of surveillance. Rather, there is no evidence that he was involved in any drug activity in respect of his attendances at 90 Edgehill Drive. Further, there is no evidence of any drug activity in respect of his attendances at the two Ferndale addresses – one of which was his own residence and the other was where his mother and grandmother lived.

(e) As for the Cineplex Odeon surveillance, there was no evidence that Mr. Hariraj met with anyone connected to 199 Owen Street in Barrie. The police surveillance that someone driving a car registered at that address met with Mr. Hariraj for seven minutes. Such a meeting does not rise to the level of a “drug transaction”.

(f) There was no evidence confirming that Mr. Hariraj and those with whom he met were involved in drug transactions.

The trip to Toronto on March 25, 2013

[139] I find the trip to Toronto on March 25, 2013 did not disclose evidence of drug trafficking by Mr. Hariraj. The police had no information that Mr. Hariraj was going to Toronto to buy and sell narcotics. It was fortuitous that they followed Mr. Hariraj southbound on Hwy. 400 to the Millwick Plaza (183 Millwick Drive) on that occasion. They had no forewarning from anyone that he was going to make that trip. The only observation made by D.C. Ford was that Mr. Hariraj’s vehicle was parked in the parking lot behind the plaza. He did not see Mr. Hariraj go into any building. He observed Mr. Hariraj coming from a building with a bag, entering his vehicle and placing the bag on the passenger seat. None of the officers conducted any investigation beyond that at the Millwick Plaza. They did not know what building he went into, whom he met and what if anything arose as a result of that meeting.

[140] After Mr. Hariraj was at the plaza for a short period of time, he drove to 74 St. Lucie. His vehicle was observed parked in the driveway of that residence. No observations were made of him going in or coming out of those premises. All that Sgt. Brouillard knew was that the residence was known to the Toronto Police as there had been a domestic dispute at that location which involved a male heroin user. There was no information as to whether or not that person still resided at that address or if anyone residing at that address had any involvement in drugs. All the police observed was Mr. Hariraj’s vehicle parked in the driveway.

[141] The police then followed Mr. Hariraj’s vehicle from the time that he left 74 St. Lucie until he returned to Barrie. Mr. Hariraj was driving at the legal speed limit. He was not driving in any unusual fashion. He was not surveillance conscious at any time nor did any police officer observe him make any movements in his car.

[142] Sgt. Brouillard did not have reasonable and probable grounds to arrest Mr. Hariraj for possession for the purposes of trafficking cocaine when he followed Mr. Hariraj to Toronto on March 25, 2013. I find that the police surveillance of Mr. Hariraj on the way to Toronto, while he was at Toronto and on the way back from Toronto to Barrie did not provide Sgt. Brouillard with any grounds. In fact, the police accomplished nothing in respect of their surveillance of Mr. Hariraj from Barrie to Toronto and back again. I do not find anything arose out of that surveillance which would cause Sgt. Brouillard to conclude that on the way back to Barrie he then had the sufficient reasonable probable grounds to arrest Mr. Hariraj for possession of cocaine for the purposes of trafficking. The police had learned nothing of any significance as a result of their Toronto surveillance. Further, when the police searched Mr. Hariraj’s bag after his arrest, they found it contained no drugs.

[143] I find that despite Sgt. Brouillard’s subjective belief that he had reasonable and probable grounds to arrest Mr. Hariraj, neither each factor viewed individually nor each factor viewed collectively nor the totality of the circumstances provide a basis upon which that belief could be said to be objectively reasonable. I find Mr. Hariraj’s arrest was unlawful and infringed his right not to be arbitrarily detained.

Section 8 – Unreasonable search or seizure

[144] Section 8 of the Charter provides:

8. Everyone has the right to be secure against unreasonable search or seizure.

[145] The onus is on Mr. Hariraj to establish on a balance of probabilities that the search and seizure conducted by the police officers on March 25, 2013 was unreasonable and contrary to his rights under s.8 of the Charter.

[146] In this case, there was a warrantless search of Mr. Hariraj’s person and his vehicle. The warrantless search presumed to be unreasonable and contravenes s.8 of the Charter. The power of search incidental to arrest has long been an exception to this general rule. The Crown contends that the search was a lawful search being an incident to arrest.

[147] I have found that the arrest was unlawful and arbitrary. It contravened Mr. Hariraj’s Charter rights. The search and seizure of his person and his vehicle by the police cannot stand on any better footing. To the contrary, as the arrest was unlawful so was the warrantless search of Mr. Hariraj and his vehicle. The seizure of the cocaine on Mr. Hariraj’s person and the cocaine found in his vehicle was also an unlawful seizure.

[148] I am of the view that Sgt. Brouillard acted on a hunch. As stated by McLachlin C.J., Supreme Court of Canada in R. v. Harrison (2009), S.C.C. 34 at para. 20:

While an officer’s “hunch” is a valuable investigative tool … it is no substitute for the proper Charter standards when interfering with a suspect’s liberty.

[149] Mr. Hariraj has satisfied his onus to establish on a balance of probabilities that the search and seizure conducted by the police officers was unreasonable and contrary to his rights under s.8 of the Charter. I find there has not been an articulation of reasonable and probable grounds with regard to the search. The search was illegal and cannot be justified by either search incident to arrest or exigent circumstances. I find that as a result of the unreasonable search and seizure by the police, Mr. Hariraj’s s.8 Charter rights have been violated.

Section 24(2) – Exclusion of Evidence

[150] Section 24(2) of the Charter provides:

24(2). Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[151] As a result of the illegal search and seizure, the police seized 2.6 grams of cocaine from Mr. Hariraj’s right jeans pocket. They also seized 520.6 grams of cocaine located in the rear panel of the front passenger seat. Search warrants were sought and granted for the addresses of 201 Ferndale Drive South and 375 Ferndale Drive South. Approximately $20,000 Canadian currency and two grams of cocaine were located at the 375 Ferndale Drive South address.

[152] Mr. Hariraj submits that his s.8 and 9 Charter rights have been breached. In this regard, I have made a finding in his favour. He submits that the search was illegal and any evidence obtained by way of the illegal search and seizure ought to be excluded.

[153] The Crown submits that a review of the factors set out by the Supreme Court of Canada in R. v. Grant, [2009] S.C.C. 32 establishes that the administration of justice would not be brought into disrepute by the admission of the seized evidence.

The revised approach to s.24(2) of the Charter

[154] Section 24(2) requires that evidence be excluded where, having regard to all the circumstances its admission would bring the administration of justice into disrepute. In the majority opinion in R. v. Grant (supra) the Supreme Court of Canada held that the purpose of s.24(2) is to maintain the good repute of the administration of justice, and not to punish the police or compensate the accused. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The question, as framed by the majority at para. 68, is an objective one:

[W]hether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[155] The majority determined that a judge faced with an application for exclusion of evidence under section 24(2) must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to three factors:

(i) the seriousness of the Charter infringing state conduct;

(ii) the impact of the breach on the Charter-protected interests of the accused; and

(iii) society’s interest in the adjudication of the case on its merits.

[156] The judge must consider each of the three factors, then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.

The seriousness of the Charter infringing state conduct

[157] The first factor involves an assessment of whether admission of the evidence sends a message to the public that courts condone serious state misconduct. Accordingly, “the most severe or deliberate state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”: see Grant at para. 72.

[158] The majority observed that state conduct that infringes the Charter varies in seriousness, from inadvertent or minor violations, through to wilful or reckless disregard of Charter rights. The former may minimally undermine public confidence in the rule of law, while the latter will “inevitably” have a negative effect and risk bringing the administration of justice into disrepute: see Grant at para. 74.

[159] Deliberate police conduct and violation of Charter standards will tend to support exclusion of the evidence, as will wilful or flagrant disregard of the Charter, or evidence that the conduct was part of a pattern of abuse. Good faith on the part of the police or extenuating circumstances such as the need to preserve evidence may attenuate the seriousness of the conduct.

[160] In respect to the first factor, Mr. Hariraj submits that the police acted in bad faith. He submits that there was a wilful and reckless disregard of his Charter rights. The illegal arrest and the illegal search and seizure were serious and would have a negative effect on public confidence in the rule of law and would bring the administration of justice into disrepute. The police formed the basis to arrest him and search his person and vehicle based on a hunch and not in good faith. The basis of bad faith and a reckless disregard for Mr. Hariraj’s Charter rights was demonstrated by the conduct of Sgt. Brouillard. He had no objective basis to form reasonable and probable grounds to arrest Mr. Hariraj for the possession of cocaine for the purposes of trafficking. His conduct was serious and not a minor infringement of Mr. Hariraj’s constitutional rights. He proceeded in a deliberate and single-minded manner. He was not deterred by the decision of the Court of Appeal in granting Mr. Hariraj’s appeal, setting aside his convictions and ordering a new trial. Sgt. Brouillard knew this before commencing his investigation in January of 2013 regarding the drug charges being the subject of this case before the court.

[161] Having sat through Mr. Hariraj’s trial, testifying and being present when the jury found him guilty was something that Sgt. Brouillard could not erase from his mind notwithstanding the Court of Appeal granting the appeal, setting aside the convictions and ordering a new trial.

[162] Even before January of 2013, Sgt. Brouillard knew all of this because of his conversations with Shannon Curry and the victim of the home invasion, D.L.

[163] Notwithstanding the fact that the Court of Appeal had set aside the convictions, Sgt. Brouillard proceeded as if they still constituted Mr. Hariraj’s criminal record. Prior to Mr. Hariraj’s arrest on March 23, 2013, he did nothing to disabuse anyone on his team that the convictions had been set aside. The Barrie Police Service was aware of the successful status of the appeal, that the convictions had been set aside and that a new trial had been ordered. That is why Ms. Curry had contacted Sgt. Brouillard to follow up with the victim because a new trial was in the offing and her willingness to be involved was important.

[164] Nevertheless, Sgt. Brouillard’s evidence about not being familiar with appeals and their outcomes in all the circumstances was disingenuous. He knew that the successful appeal also involved the Court of Appeal setting aside the convictions and ordering a new trial. However, he made no attempt to take steps to have the CPIC record changed or to advise D.C. Pye of the results of the appeal. He knew D.C. Pye was in the process of preparing a Bail Hearing Brief which included an erroneous CPIC report and he knew or ought to have known D.C. Pye was preparing an ITO to obtain search warrants for the Ferndale addresses. Those materials would contain a CPIC. As an experienced officer of rank, Sgt. Brouillard would have known this. Nevertheless, he signed off on the bail hearing report containing an incorrect CPIC report. He said nothing to D.C. Pye which would have prevented him from including in the ITO materials an erroneous CPIC report which would be reviewed by a judicial officer. Judicial officers would conclude without a doubt based on the erroneous CPIC that Mr. Hariraj had a criminal record when he did not.

[165] By proceeding in this fashion, Sgt. Brouillard acted in a deliberate manner. He was determined to arrest Mr. Hariraj, search him and his vehicle because he believed that Mr. Hariraj was a drug trafficker. That was his hunch. He was going to take down Mr. Hariraj no matter that the Court of Appeal granted Mr. Hariraj’s appeal, set aside his convictions and ordered a new trial. Sgt. Brouillard could not remove from his thinking what evidence he heard at Mr. Hariraj’s trial and the jury’s verdict finding Mr. Hariraj guilty. That flawed thinking tainted his thought process in considering as an objective factor prior convictions when those convictions were no longer in play.

[166] To make matters worse, Sgt. Brouillard signed off on bail hearing documents when he knew that the CPIC was wrong. He did not speak to D.C. Pye about the error. He did not speak to D.C. Pye about the erroneous CPIC forming part of the ITO materials. Instead, he allowed by his deliberate actions matters to proceed before the courts based on erroneous information to the prejudice of Mr. Hariraj but to the advantage of the police and their ongoing investigation of him.

[167] Sgt. Brouillard’s conduct in these circumstances is condemned and not condoned by this court. His conduct in unlawfully arresting Mr. Hariraj and thereafter the police involvement in searching Mr. Hariraj and his vehicle in these circumstances falls at the higher end of the spectrum of police misconduct. The effect of admitting the seized items would send a message that the justice system condones serious state misconduct. It would greatly undermine the public confidence in the rule of law. In the totality of the circumstances, this court does not condone such misconduct and rejects the Crown’s submission that Sgt. Brouillard was acting in good faith. Clearly, he was not.

The impact of the breach on Charter protected interests of the accused

[168] This second factor requires an evaluation “of the extent to which the breach actually undermined the interests protected by the right infringed”. See Grant para. 76. 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 count for little, bringing the administration of justice into disrepute.

[169] The judge must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. In the context of s.8, “an unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not”. See Grant para. 78.

[170] The evidence is that the search by the police was professional. Professional or not, the search was not lawful. The evidence is that Mr. Hariraj was co-operative. Co-operative or not, his arrest and the search and seizure was still unlawful. He had no expectation that the police would arrest him and thereafter search his person and his vehicle. These interests have been impacted by the breach of his s.8 and 9 Charter rights.

[171] I find that the unlawful detention and search of Mr. Hariraj’s person and search of his car resulting in the seizure of cocaine found on his person and in his car impacted on his privacy interest. The impact of the breach on Mr. Hariraj’s s.8 and 9 interests was more than minimal or technical. While I agree that his human dignity was not compromised and the search of the vehicle was carried out in a professional manner by the police, their misconduct was nevertheless serious and significant.

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

[172] Regarding the third factor, because society generally expects that a criminal allegation will be adjudicated on its merits, the judge must determine whether the truth-seeking function of the criminal trial process is better served by admission of the evidence or by its exclusion. The question is whether “the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial”: see Grant para. 82. The reliability of the evidence, and its importance to the prosecution’s case are relevant factors. 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. Exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where that effectively “guts” the prosecution’s case: see Grant paras. 81 and 83.

[173] Mr. Hariraj submits that the confidence of the public would be seriously undermined if the impugned evidence was admitted. The end does not justify the means. Disreputable police conduct should not be condoned by the court. A reasonable member of the community would not condone these police practices which placed the integrity of the police in question.

[174] The Crown submits that the reliability of the real physical evidence of the 520.6 grams of cocaine located in Mr. Hariraj’s car together with the 2.6 grams of cocaine found on his person favours the admissibility of the evidence. Cocaine is a pernicious and destructive drug. The truth-seeking function of the criminal trial process would be better served by the admission of the evidence. The exclusion of evidence that is highly reliable, as it is in this case, would more negatively impact on the repute of the administration of justice where the remedy would effectively gut the prosecution.

[175] Further, there could be no dispute that the drug offences in this case were very serious. It is appropriate in such a case to focus on the “serious social evil” that is cocaine trafficking: see R. v. Harrison at para. 65.

[176] The Crown submits that a reasonable member of the community would find that excluding significant quantities of cocaine from the evidence in this case would bring the administration of justice into greater disrepute than admitting the seized narcotics.

[177] I find the drugs seized are critical to the Crown’s case against Mr. Hariraj. They form the evidentiary foundation supporting the charges against him. They are important pieces of direct evidence. Exclusion of this relevant and reliable evidence may undermine the truth-seeking function of the justice system. The evidence is of such value to the Crown’s case that exclusion would effectively gut the prosecution and could extract too great a toll on the truth-seeking goal of the trial.

Balancing the factors

[178] In balancing the relative factors, I find the police conduct falls at the more serious end of the spectrum of misconduct and there is a danger that admission of the evidence may send a message that the justice system condones serious state misconduct. The impact of the breach on Mr. Hariraj’s s.8 and 9 interests was more than minimal or technical. The misconduct was serious and significant.

[179] I acknowledge that the evidence is real and reliable physical evidence being the quantity of cocaine seized. The truth-seeking function of the criminal trial process would be better served by the admission of the evidence. The exclusion of the evidence that is highly reliable would more negatively impact on the repute of the administration of justice whereas in this case, the remedy would effectively gut the prosecution. I have taken into account the seriousness of the drug offences and all the foregoing considerations. However, the gravity of these offences is only a single factor to consider.

[180] For the reasons that I have given, on balance, I find the admission of the drugs obtained by the s.8 and 9 breaches would bring the administration of justice into disrepute. In this regard, I am guided by the decisions of the Supreme Court of Canada in R. v. Harrison and R. v. Grant. The end does not justify the means.

CONCLUSION

[181] I find that a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the drugs seized from Mr. Hariraj and his vehicle would bring the administration of justice into disrepute.

[182] The application is granted. Mr. Hariraj’s s.8 and 9 Charter rights were violated. Evidence of all items seized from Mr. Hariraj and his vehicle including all drugs shall be excluded pursuant to s.24(2) of the Charter.

DiTOMASO J.

Released: December 12, 2014