R. v. F., 2015 ONSC 3068

CITATION: R. v. F., 2015 ONSC 3068

COURT FILE NO.: 13-Y1165

DATE: 2015/06/19

PUBLICATION OF THE NAME OF THE RESPONDENT IS PROHIBITED BY THE PROVISIONS OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2012, C.1

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant

– and –

J. F. Respondent

Andre Seguin, for the Appellant

Trevor Brown, for the Respondent

HEARD: April 22, 2015

on appeal from the acquittals entered on march 5, 2014 by justice david paciocco of the ontario court of Justice

C. mckinnon j.

[1] At issue in this appeal are the powers of police officers to enter and search vehicles and their occupants without warrant pursuant to the Ontario Liquor Licence Act, R.S.O. 1990, Chapter L.19.

The Facts

[2] The Respondent was charged with possession of MDMA (Ecstasy) and marihuana contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The Respondent was 17 years old at the time he was charged. He was tried as a youth.

[3] The charges arose out of the incident that occurred on the night of March 11, 2013. Police had information received from concerned parents and members of the community that there would be underage drinking and drug use at an “all ages dance party” or “rave” that was being held at a bowling alley located in the Orleans area of the City of Ottawa. Police had tracked Facebook postings advertising the party, which was being promoted as a drinking and drug taking event. As a result, police dispatched numerous officers to deal with the young people attending the event, including placing undercover officers in the bowling alley.

[4] The concern for the police was well founded. During their patrols they discovered several parties of underage teenagers drinking alcohol in areas around the bowling alley, which was located in an industrial zone surrounded by many hidden driveways. Police discovered copious amounts of alcohol on the youths that they encountered throughout the evening. Upon meeting underage drinkers, police exercised their discretion by simply confiscating the liquor that they possessed and allowing the youths to move on and attend the party.

[5] Officers Michael McNaught and Christopher Evraire were two of the officers patrolling that evening. They were in uniform, driving an unmarked police car. At approximately 11:50 p.m. they drove past a closed Esso gas bar located approximately 200 to 300 metres from the bowling alley. As they passed the gas bar, they observed a group of five male youths standing behind the gas bar, some of whom were urinating into a snowbank. The officers drove into the gas bar and approached the youths on foot. The youths dispersed into two groups: a group of three and a group of two. Officer McNaught dealt with the group of three and Officer Evraire dealt with the group of two.

[6] It was clear to Officer McNaught that the three males with whom he dealt were intoxicated: they were unsteady on their feet, their speech was slurred, their breath smelt of alcohol and some of them possessed open cans of beer. All males appeared to be underage and admitted to Officer McNaught that they had been drinking. Officer McNaught wanted the car moved from the Esso location. The young people said they would move their car and began walking towards it with Officer McNaught following them. The vehicle, a Ford Flex, was parked a short distance away on the lot of the gas bar. It was Officer McNaught’s intention to confiscate any liquor from the underage youths and either send them home or allow them to continue to the party in a safe manner. It was his intention to have the car moved to the area of the bowling alley, assuming he could locate a sober driver.

[7] Upon arriving at the car one of the youths opened the rear door on the driver’s side of the Ford, a large vehicle with three rows of seats. Officer McNaught directed his flashlight into the vehicle and noticed a male sitting in the second row behind the driver seat attempting to conceal himself, quite unsuccessfully, by holding a coat over his head. The male turned out to be the Respondent, J.F. Officer McNaught testified that J.F. was drunk. He was ordered out of the vehicle. He smelled of alcohol and was unsteady on his feet. As J.F. exited Officer McNaught observed a 40 ounce bottle of Absolut vodka, approximately three quarters full, located beside a black backpack on the floor directly behind the driver seat and directly beside the location where J.F.’s feet had been. The backpack was somewhat “weighty” and, according to Officer McNaught, was “open” at the top with the zippers held apart by approximately four to six inches, permitting “easy access” to the backpack. It was within easy reach of any driver of the vehicle.

[8] Officer McNaught seized the bottle of vodka and the backpack. He intended to search the backpack, believing there to be alcohol in it. Officer McNaught then noticed another person hiding in the third row of seats under a number of coats. That person was also intoxicated. Officer McNaught ordered the male out of the car.

[9] Because he was now dealing with five individuals Officer McNaught ordered backup on his radio. All five individuals were clearly intoxicated and all appeared to be obviously under the age of 19. Subsequent identification showed that all of the youths were age 17.

[10] Other officers arrived at the scene. One of the officers recognized one of the individuals as a person in breach of his probation. The individual was arrested. At some point the Respondent ran from the scene. Officer McNaught advised the remaining males that he was going to search the vehicle for alcohol pursuant to the Ontario Liquor Licence Act.

[11] Officer McNaught then turned his attention to the backpack and searched it. He did not find any liquor in the backpack but he did find 6.2 grams of MDMA (Ecstasy) in powder form, 8.05 grams of marihuana, two digital scales, a large glass “bong”, and four Provincial offence tickets in the Respondent’s name, together with some personal items. Officer McNaught was asked to explain his reasons for searching the backpack. Officer McNaught answered:

After locating the open bottle of liquor when the car door was open and seeing the open liquor, in addition to all the information we had with what was going on that evening with - you know, with this party, essentially being organized for underage drinking, the amount of alcohol we seized before, and then observing open alcohol in this vehicle similar to other incidents we saw, in my belief, I – it was reasonable to believe there may be additional alcohol located in the vehicle, open liquor. And, and, you know, under the Liquor Licence Act this would enable a police officer to search the vehicle for that additional alcohol.

[12] During cross-examination Officer McNaught was asked if he expected to find drugs when he searched the backpack. His answer was:

I expected to find alcohol, seeing how the gentleman we were dealing with had open alcohol in public, and then observing the 40 ounce bottle of Vodka, I expected to find alcohol in that bag.

[13] Officer McNaught testified that his authority to search the vehicle for liquor arose from the provisions of the Ontario Liquor Licence Act, which prohibits open liquor in a vehicle, consuming liquor in a public place, and drinking underage. He grounded his right to search pursuant to s. 32 of the Act.

[14] Officer McNaught acknowledged that at the time he approached the vehicle no one was driving the vehicle nor in care or control of the vehicle. No one was sitting in the driver’s seat, or the front passenger seat. The vehicle was not running and the keys were not in the ignition.

[15] Officer McNaught testified that he believed that J.F. may have moved from the driver’s seat to the seat immediately behind, or alternatively J.F. could have moved to the driver’s seat and set it in motion. He was unaware whether J. F. was in possession of keys to the ignition because he had run from the scene. In due course, the driver proved to be one of the two individuals being dealt with by Officer Evraire.

Section 32 of the Liquor Licence Act

[16] As stated, Officer McNaught grounded his right to search the vehicle and the backpack belonging to the Respondent in the powers created by s. 32 of the Liquor Licence Act. That section, including its titles, is crucial to the determination of the issue before me. It reads as follows:

Conveying liquor in vehicle, boat

32. (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32 (1).

Exception

(2) Subsection (1) does not apply if the liquor in the vehicle,

(a) is in a container that is unopened and the seal unbroken; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. R.S.O. 1990, c. L.19, s. 32 (2).

Conveying liquor in boat

(3) No person shall operate or have the care or control of a boat that is underway while there is contained in the boat any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32 (3).

Exception

(4) Subsection (3) does not apply if the liquor in the boat,

(a) is in a container that is unopened and the seal unbroken; or

(b) is stored in a closed compartment. R.S.O. 1990, c. L.19, s. 32 (4).

Search of vehicle or boat

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. R.S.O. 1990, c. L.19, s. 32 (5).

The Ruling of the Learned Trial Judge

[17] The learned trial judge found that it was clear on the evidence that Officer McNaught’s claim to authority at the time for conducting a search was s. 32(5) of the Liquor Licence Act. That section refers to liquor that “is being unlawfully kept in a vehicle or boat.” The trial judge ruled that the search of the Respondent’s backpack was unlawful because Officer McNaught lacked the authority under the Act to search the vehicle and its contents, including the backpack, for liquor. The Act permits vehicle searches for liquor when there are reasonable grounds to believe that the vehicle contains liquor that is “unlawfully kept.” He held as follows:

Liquor is only unlawfully kept under this provision… if a person is driving or has care or control of the motor vehicle. And, the liquor is kept in an open and unsealed container that is not in baggage that is fastened or closed, or that is otherwise readily available to the driver.

[18] The trial judge found that although Officer McNaught had grounds to believe that there may be other liquor in the automobile other than the Absolut vodka in open view, based upon all his observations made that evening, he nonetheless lacked the requisite grounds to believe that any such liquor was “unlawfully kept.” First, there was no one driving or in care and control of the parked Ford vehicle, which is the first condition required to search a vehicle for liquor. Second, even if it could be considered that someone was in care and control of the vehicle, there was no authority to search the backpack for liquor since it was in a piece of closed baggage. Notwithstanding the evidence that the zippers of the backpack were open four to six inches, the judge found after personally observing the backpack that the backpack was effectively “fastened closed” for the purpose of the Act. As such, the backpack could lawfully contain liquor, open or not, inside the vehicle.

[19] The learned trial judge rejected the argument that s. 32(5) of the Act permits a search of anything contained in a vehicle in circumstances where there is reason to believe that there may be liquor unlawfully kept in a vehicle. Rather, he held that an officer must have, with respect to the individual items searched, reasonable and probable grounds to believe that those items contain unlawfully kept liquor. The learned trial judge held as follows:

The issue is not, therefore, whether there were reasonable and probable grounds to believe that the backpack contained liquor. It is whether there were reasonable and probable grounds that it contained liquor that was unlawfully kept.

Liquor, whether sealed or not, would not be unlawfully kept under this provision if it is in “baggage that is fastened closed.” Put more clearly, a police officer cannot under the authority of s. 32(5) search for items that are in baggage that are fastened closed because it would not be unlawful to keep, even unsealed, liquor inside baggage that is fastened closed, even if there had been a driver under care and control. So, the issue before me is whether this bag was fastened closed.

What is required to be fastened closed depends, in my view, on the nature of the container. The language “fastened closed” does not connote or require that the item be locked. In my view, a zippered bag is fastened closed if it is zipped up. The objective of this statute in this provision is to impede access by drivers, or persons in care and control, to liquor, and by that I am referring to ready or easy access which does not require the opening of a container. The minor aperture that I have found to exist at the top of the backpack, as described by the officers, was clearly not a functional opening. It was, in my view, a minor gap left by the imperfect closure of the bag. And the bag was, therefore, in my view, “fastened closed” within the meaning of the section. It had to be pushed open in order to realistically fetch open liquor inside that bag if it was indeed contained inside. (Emphasis added)

In my view, even if there had been a person driving the motor vehicle, or in care or control of the motor vehicle, or committing an offence contrary to s. 32(1), there was no reasonable and probable grounds to believe that any liquor that may have been in the bag was unlawfully kept contrary to this provision. (Emphasis added)

The search, in my view, was therefore unlawful in both respects that I have described. It is therefore an unreasonable search contrary to s. 8 of the Charter, and Mr. F.’s Charter rights have been violated.

[20] The learned trial judge proceeded to conduct an analysis pursuant to s. 24 of the Charter and, when applying the test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 [Grant], he found that the search of the backpack was a moderately serious breach of the Respondent’s s. 8 rights. While noting that the breach was committed as the result of an honest but mistaken view of the officer’s search powers under the Act, the trial judge nevertheless found that it was a serious violation of the Respondent’s privacy and that, on balance, it would do more harm to the administration of justice to admit the evidence than exclude it.

The Position of the Appellant

[21] Mr. Seguin submits that the learned trial judge adopted an overly restrictive interpretation of the provisions of s. 32 of the Liquor Licence Act, including an overly restrictive interpretation to the power to search for “unlawfully kept” liquor in a vehicle. Mr. Seguin also submits that the trial judge failed to consider that there may be other ways under the Act in which liquor may be unlawfully kept in a vehicle apart from someone driving or having care and control of the vehicle with liquor that was open and accessible. Mr. Seguin submits that the trial judge failed to consider other provisions in the Act that provide police officers with the authority to search a vehicle and its contents for evidence of other offences such as underage drinking.

[22] Citing Elmer A. Driedger, Construction of Statutes (2nd ed. 1983) at p. 487:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[23] This modern approach recognizes the importance that context plays in interpreting statute. This approach is supported by the general rules of statutory construction and set out in Ontario’s Legislation Act, SO 2006, c. 21, s. 64(1), which states that an Act “shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

[24] Mr. Seguin submits that ss. 32(1) and (2) prohibit the conveyance of liquor in a vehicle unless it is sealed or in a closed container and that s. 32(5) provides the power to search a vehicle for liquor.

[25] The trial judge construed that s. 32(2) is not just as an exception to prohibition against conveying liquor in a car under s. 32(1), but also as an absolute limitation on the manner in which liquor may be lawfully or unlawfully kept in a vehicle. It is not unlawfully kept as long as no one was driving the vehicle or that the liquor was in a closed bag. Consequently, unless reasonable grounds existed to believe that someone was driving the car, or in care or control of it, with open liquor, then the police had no legal authority to search the vehicle for liquor.

[26] Mr. Seguin submits that the Act, however, does not define what it means for liquor to be “unlawfully kept” in a vehicle. Following the principles of statutory interpretation adopted by the Supreme Court of Canada in Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, 2002 S.C.C. 42, [2002] 2 S.C.R. 559, at para. 26, recourse must be had to the entire scheme and object of the Act in order to properly interpret these provisions.

[27] Mr. Seguin submits that when reading the Act in context, it is clear that its objective is the responsible use of liquor. It accomplishes that objective by closely regulating its production, sale and use. The Act sets out various restrictions on the use of alcohol and proscribes offences for violating those restrictions. It also provides powers to police officers and other designated persons to conduct investigations, inspections, searches, seizures and arrests for breaches of the Act.

[28] Mr. Seguin submits that when considering the object of the Act as regards to vehicle searches for alcohol, it should be kept in mind that the Supreme Court has long recognized the important need to highly regulate the operation of motor vehicles in the interest of public safety: Dedman v. the Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; Hufsky v. the Queen, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257.

[29] Two other provisions in the Act are relevant to the contextual interpretation of the power to search a vehicle under s. 32(5) of the Act, notably s. 30(a) which provides that no person under the age of 19 shall have, consume, attempt to purchase, purchase or otherwise obtain liquor, and s. 31(2), which provides that no person shall have or consume liquor in any place other than a residence, licensed premise, or private place as defined in the Regulations, unless the liquor is in a closed container.

[30] These provisions illustrate other ways in which liquor could be unlawfully kept in a vehicle under the Act which would not depend on someone driving or having care or control of it. A teenager possessing liquor in a vehicle or any person consuming liquor in a vehicle, whether in motion or not, would constitute liquor that was “unlawfully kept.”

[31] Mr. Seguin submits that it was patently clear that Officer McNaught had reasonable grounds to believe that liquor was unlawfully kept in the vehicle. The discovery of the nearly full 40 ounce bottle of vodka at the feet of an intoxicated teenager turned any reasonable belief into a virtual certainty and authorized the search of the vehicle and its contents pursuant to s. 32(5) of the Act. Mr. Seguin submits that the trial judge was incorrect in finding that there had to be reasonable grounds to believe that there was additional unlawful liquor in the vehicle to conduct such a search. The bottle of vodka itself completed the grounds and triggered the officer’s authority to search.

[32] Mr. Seguin submits that on a fair reading of s. 32(5), police are not prevented from searching closed baggage in vehicles. Section 32(5) provides that once there are reasonable grounds to believe liquor is unlawfully kept in a vehicle, the police may, at any time, search the vehicle and any person found in it. A fair and liberal interpretation of this provision means that police may search the entire vehicle, including any baggage. Indeed, if police are specifically empowered to search persons in the vehicle, they should be permitted to search inanimate contents such as the backpack of the Respondent. If the police were not permitted to search an entire vehicle for liquor in cases such as this, public safety could be endangered since intoxicated persons could continue to consume liquor they had stored in their baggage once police had left the scene.

[33] Mr. Seguin relies on the case of R. v. Annett (1984), 1985 CanLII 3654 (SCC), 43 C.R. (3d) 350 (Ont. C.A.). In that case, Martin J.A., writing for the Ontario Court of Appeal, held that the existence of reasonable grounds to believe that liquor was unlawfully kept in a vehicle in a case where an open and partially consumed bottle of beer was observed on the floor of the vehicle, conferred upon the police authority to search a vehicle for liquor including baggage in the locked trunk of the car.

[34] In that case the accused was charged with possession of cocaine for the purpose of trafficking. The single ground advanced on appeal related to the search leading to the discovery of the cocaine which was said to constitute an unreasonable search, thereby contravening s. 8 of the Charter.

[35] Two special constables employed by the Toronto International Airport were on plainclothes detail in the cargo area of the airport and observed an empty blue Mercury motor vehicle known to them to belong to an employee of the airport. An open six pack of Molson Canadian beer was observed on the front passenger floor of the vehicle. One bottle had its cap removed and appeared to have been partially consumed. Surveillance was conducted on the car and eventually the accused and the owner of the car were observed entering the vehicle. The special constables immediately identified themselves and ordered the owner of the vehicle to open the trunk. The special constables testified that they were looking for alcohol. In the trunk they located a brown vinyl bag. Inside the bag was another plastic bag containing 195 grams of cocaine.

[36] The court was called upon to interpret s. 48(2) of the Liquor Licence Act, R.S.O. 1980. The wording of subsection (2) is exactly the same as the present subsection (5) of s. 32 of the Liquor Licence Act. Martin J.A. held as follows:

Patently, the officers had reasonable grounds to believe that liquor was being unlawfully kept or had in the motor vehicle. Accordingly, s. 48 was clearly applicable and conferred upon the officers’ authority to search the vehicle.

In our view, the finding of the trial judge that the search was made pursuant to the provisions of s. 48 and was reasonable was a finding which he was entitled to make and it is supported by the evidence.

[37] Mr. Seguin submits that quite apart from the authority to search the vehicle and its contents in this case, the police also had authority to search the Respondent’s backpack for evidence of an offence under the Act. Under s. 61.1(c) of the Act a person is guilty of an offence if they knowingly contravene any provision of the Act or its regulations. In addition, s. 47.01(a) of the Act permits a police officer to seize any thing, including liquor, if he or she reasonably believes that the thing will afford evidence of an offence under the Act. In this case it was reasonable to believe that the Respondent was under the age of 19 and had been consuming liquor. Further, since there was an open bottle of vodka sitting right beside the Respondent’s backpack, it was reasonable to believe in all the circumstances that there may be further liquor inside the backpack. A search of the backpack could yield further evidence of the offence of underage drinking and accordingly s. 47.01(a) conferred upon the officer authority to seize and search the backpack.

[38] It is submitted that the trial judge erred in not considering other provisions of the Act that also authorized the police to search the Respondent’s backpack for liquor.

The Position of the Respondent

[39] Mr. Brown submits that even if this Court were to conclude that s. 32(5) allow police the power to enter and search a vehicle not occupied by a person who is driving or in care or control of the vehicle, the appeal must still fail. Based on the testimony of Officer McNaught the trial judge found as a fact that the officer’s subjective grounds for the search were related to an offence under s. 32 of the Act. It is argued that at the time Officer McNaught entered the vehicle to seize the backpack he intended to conduct a search of the vehicle for further evidence of a s. 32 offence as opposed to any specific underage drinking or unlawful liquor possession offence. The officer’s subjective purpose of seizing the backpack was to seize the backpack pursuant to his power under s. 32(5) of the Act for an offence under s. 32(1) and not exempt under s. 32(2).

[40] Mr. Brown submits that this is a factual finding made by the trial judge on the evidence before him, including the opportunity to assess the witness as he gave his evidence.

[41] Section 32(5) of the Liquor Licence Act allows for a search on reasonable grounds to believe that liquor is being unlawfully kept in it. Reasonable grounds to conduct a search must exist both subjectively and objectively: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at para. 17; R. v. Benjamin, 2008 CanLII 66156 (S.C.) at paras. 41-47.

[42] Mr. Brown submits that the trial judge found that the officer’s subjective intention in seizing the bag was to look for evidence of a s. 32(1) offence as opposed to evidence of an offence of the underage drinking or unlawful possession provisions of the Liquor Licence Act. Absent a subjective intention to search the vehicle under one or more of the other unlawful liquor offences in the Liquor Licence Act, the officer could not rely on the fact that a search may have afforded evidence of underage drinking or unlawful possession to justify the search. The officer’s subjective purpose in seizing the backpack was to seize the backpack further to his power under s. 32(5) of the Act for an offence under s. 32(1) and not exempt under s. 32(2).

[43] Mr. Brown submits that there is a high expectation of privacy in one’s backpack, as stated by the Supreme Court of Canada in R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 at para. 62, which held that because of the role in the lives of students, backpacks objectively command a measure of privacy. Mr. Brown submits that Officer McNaught proceeded to search the backpack without first making any preliminary evaluation of the likely relevance of that baggage to the search for liquor. He did not know who the backpack belonged to, whether or not it contained alcohol, and whether any alcohol was sealed. In the circumstances Officer McNaught was not entitled to search the backpack.

[44] Mr. Brown submits that the trial judge respected the law relating to the proper interpretation of statutes and specifically mentioned it in his reasons. In speaking of s. 32(5) the trial judge stated:

The focus on the analysis here has to be with the vehicle, which is the location where the bag was secured from…The search that is authorized is a search for liquor that is being unlawfully kept. The powers found in s. 32(5) pertain, as I have indicated, to the breach in s. 32(1). If this was intended to be a generic power to search with respect to any unlawfully kept alcohol it would be contained in a general provision in the statute, rather than as a subsection of s. 32.

[45] Mr. Brown submits that rather than representing a generalized power to enter and search a motor vehicle for any violation of the Liquor Licence Act, the exceptional search power is limited to circumstances directly connected to its legislative aim, namely, combatting drinking and driving.

[46] Mr. Brown refers to the case of R. v. Annett as authority for the point that until a driver or person taking care or control of the vehicle enters the vehicle, no grounds exist to search the vehicle. In that case the special constables waited for the owner and the accused to enter the vehicle before searching it. He submits that Mr. Seguin’s expansive interpretation of s. 32(5) would lead to an absurd result, including a wide ranging search power which would permit searches of unoccupied motor vehicles and all baggage within them for the barest of offences.

[47] Mr. Brown submits that Mr. Seguin’s interpretation of the scope of s. 32(5), which removes the link to an individual driving a vehicle or having care and control of the vehicle, would allow a police officer to enter an unoccupied motor vehicle without a warrant at any time. So long as the officer reasonably believed that a person under the age of 19 was standing in the vicinity of the motor vehicle, then, on the strength of the officer’s observation of a single open bottle of beer inside the vehicle, the officer could search the entirety of the vehicles contents including purses, backpacks and bags.

The Standard of Review

[48] The question of whether or not certain conduct constitutes an offence under the Liquor Licence Act is a question of law in the strictest sense: Johnson v. The Queen, 1973 CanLII 198 (SCC), [1975] 2 S.C.R. 160 at p. 170. On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para. 8.

The Issues

[49] The key issues on appeal are:

(1) Did the search of the Respondent’s backpack violate his right to privacy under s. 8 of the Charter? To determine this issue, the following sub-issues must be addressed:

a) Were there reasonable and probable grounds to believe that liquor was being “unlawfully kept” in the vehicle, such that the power to search under s. 32(5) of the Act was triggered?

b) If the search power under s. 32(5) was triggered, did that search power permit the officer to search the Respondent’s backpack?

(2) If the search did violate the Respondent’s privacy rights, should the evidence obtained as a result of the search be excluded under s. 24(2) of the Charter?

Analysis

1. Did the search of the Respondent’s backpack violate his right to privacy under s. 8 of the Charter?

[50] Section 8 of the Charter guarantees the right to be secure from unreasonable search and seizure. According to the Supreme Court in Collins v. The Queen (1987), 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at 278, “a search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which it was carried out is reasonable.”

[51] In this case, the key issue is whether the search was authorized by law. Officer McNaught testified that his authority to search the vehicle arose from all the provisions of the Ontario Liquor Licence Act that prohibit open liquor in a vehicle, consuming liquor in a public place, and drinking liquor underage. Nonetheless, he did, in specific response to questions put to him by Mr. Brown at trial, assert that his right to search arose from s. 32 of the Act.

[52] Assuming, without deciding, that Officer McNaught was therefore bound by the provisions of s. 32 with respect to his right to search the Respondent’s backpack, I shall restrict my findings to a determination of the meaning of s. 32 of the Liquor Licence Act.

(a) Were there reasonable and probable grounds to believe that liquor was being “unlawfully kept” in the vehicle, such that the power to search under s. 32(5) of the Act was triggered?

[53] The search power under s. 32(5) is triggered by reasonable grounds to believe that liquor is being “unlawfully kept” in a vehicle or boat. Whether or not Officer McNaught’s search of the Respondent’s backpack is captured by the provision turns on the meaning of “unlawfully kept” liquor.

[54] I agree with the learned trial judge that the meaning of “unlawfully kept” liquor refers to liquor kept in contravention of s. 32(1), and not to liquor held in contravention of other provisions of the Act.

[55] First, I agree with the learned trial judge that the structure of the Act indicates that this search power relates specifically to the s. 32(1) offence. If s. 32(5) were intended to grant a general search power, it would not be contained within a subsection to s. 32, but within the general provisions of the Act. Legislative context, including the location of a provision within the overall structure of a statute, is an important consideration in statutory interpretation: R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701 at 744; R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762 at paras. 43-46.

[56] Second, the phrase “unlawfully kept” indicates that its meaning is restricted to liquor contained in a vehicle or boat in contravention of s. 32(1). If s. 32(5) were intended to grant a broader search power and apply to, for example, unlawful consumption of liquor in public, or unlawful possession or purchase of liquor by a minor, the wording of the provision would have been broader. It would have included words to capture liquor being unlawfully consumed, possessed or purchased.

[57] Third, if “unlawfully kept” liquor included liquor kept in contravention of other offences under the Act, it would be anomalous, in my view, to restrict the search power to motor vehicles and boats – offences under other sections of the Act are not restricted to those locations, so it would seem logical that a general search power intended to deal with those other offences would permit a wider range of searches.

[58] I also agree with the learned trial judge that, as “unlawfully kept” liquor refers to liquor kept in contravention of s. 32(1), there must be a driver or a person in care or control of the vehicle or boat to trigger the search power under s. 32(5). Subsection 32(1) provides as follows:

No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. (emphasis added)

[59] It is an offence for a person to drive or have care or control of a motor vehicle that contains liquor, subject to the exceptions in s. 32(2). Therefore, if there is no one driving or in care or control of a motor vehicle, there can be no offence under s. 32(1).

[60] While Officer McNaught testified that, at the time he reached the vehicle, no one was driving or in care or control of the vehicle, he also testified that he believed that J.F. could have just moved from the driver’s seat, or that he could move to the driver’s seat from where he was seated. Based on this testimony, it is clear that Officer McNaught had a subjective belief that, immediately prior to his approach, J.F. could have been in care and control of the vehicle, and that J.F. could have easily regained care and control from where he was seated.

[61] While it turned out that one of the individuals stopped by Officer Evraire in fact possessed the keys to the car, Officer McNaught had no way of knowing this at the time he searched the backpack because, at that point, the Respondent had fled.

[62] Officer McNaught’s subjective belief that he had reasonable grounds was, in my view, objectively reasonable. Based on the fact that J.F. was attempting to conceal himself when the officer approached, it seems plausible that J.F. might have just moved from the front of the car, where he would have been more easily seen. Officer McNaught’s belief with respect to J.F.’s care and control of the vehicle, coupled with his observation of the three-quarters full bottle of vodka on the vehicle floor, triggered the search power under s. 32(5). It is enough to have reasonable and probable grounds to believe that a person has just contravened s. 32(1) to trigger the search power under s. 32(5). The decision to execute the search need not be contemporaneous with the commission of the offence.

(b) If the search power under s. 32(5) was triggered, did that search power permit the Officer to search the Respondent’s backpack?

[63] I respectfully disagree with the learned trial judge’s holding that, because the backpack could not have contained “unlawfully kept” liquor, s. 32(5) did not authorize Officer McNaught to search the Respondent’s backpack.

[64] First, I do not think that the search authorized by s. 32(5) is restricted to a search for “unlawfully kept” liquor. Rather, I am of the view that s. 32(5) permits a search for liquor generally. As an example, if an officer observed that a driver had an open container of liquor next to him while operating a vehicle, it would be reasonable for that officer to search the vehicle for liquor and seize any liquor found, whether or not that liquor was being “unlawfully kept.” This would prevent the driver from simply opening another container of liquor upon the police leaving the scene.

[65] This position is supported by the Ontario Court of Appeal’s decision in R. v. Annett, in which the Court upheld the search of a trunk (where liquor would not be readily accessible to passengers, and thus not unlawfully kept).

[66] Second, even if I am wrong and a search under s. 32(5) is restricted to searching for “unlawfully kept” liquor, I disagree with the learned trial judge’s finding that the Respondent’s backpack could not have potentially contained unlawfully kept liquor. In my view, liquor placed inside a backpack that is unzipped by 4 to 6 inches does not meet the conditions set out in s. 32(2)(b), which requires that liquor “is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.”

[67] According to the Oxford English Dictionary, the word “fasten” means: “close or do up securely; be closed or done up in a particular manner; fix or hold in place.” Including the word “fastened” indicates a legislative intention that something more than simply “closed” is required. Even if the requirement was just that the baggage be “closed,” I do not think a partially unzipped backpack would qualify as being “fastened closed.” Liquor in a partially unzipped backpack would be readily available to anyone in the car. Simply by reaching one’s hand into the backpack, even if that required pushing the zipper back to create a larger opening, would have been easy.

[68] Further, a four to six inch opening would have been ample space to slip a bottle of liquor into the backpack. The purpose of the legislation is, as the trial judge noted, to impede access by drivers, or persons in care and control, to liquor and, in so doing, protect the public. This purpose would be frustrated if a driver or passenger intent on consuming liquor in a vehicle could simply keep a backpack nearby with enough of an opening to slip an open alcoholic beverage into it if necessary to conceal that beverage from the police. To prevent the search of a bag in those circumstances would unduly hinder the police in carrying out the objectives of the legislation.

[69] As such, I find that Officer McNaught had reasonable and probable grounds to believe that the backpack could contain unlawfully kept liquor, and, as such, the search did not violate the Respondent’s s. 8 rights.

2. If the search did violate the Respondent’s privacy rights, should the evidence obtained as a result of the search be excluded under s. 24(2) of the Charter?

[70] Even if I am wrong in my conclusion that Officer McNaught’s search of the Respondent’s backpack did not violate the Respondent’s. 8 rights, I would nevertheless find that the evidence should not be excluded under s. 24(2) of the Charter. While a trial judge’s findings under s. 24(2) of the Charter should be given considerable deference on appeal, I am unable to find that exclusion of the evidence in this case is within the range of reasonable outcomes: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at para. 44.

[71] Section 24(2) provides that, where evidence is obtained in violation of the Charter, such 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.”

[72] In Grant, the Supreme Court of Canada set out a revised approach to s. 24(2). At paras. 67-70, Chief Justice McLachlin and Justice Charron, writing for the majority, held that s. 24(2)’s focus is long-term, prospective and societal. The inquiry under s. 24(2) is objective and “asks whether 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” (at para. 68).

[73] At para. 71, the Supreme Court set out three avenues of inquiry that a court must undertake to determine if evidence should be excluded pursuant to s. 24(2).

When faced with an application for exclusion under s. 24(2) , a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

The seriousness of the Charter-infringing state conduct

[74] In terms of the seriousness of the Charter-infringing state conduct, I find that Officer McNaught’s conduct falls on the lower end of the spectrum. The trial judge found that Officer McNaught genuinely believed that he was conducting an authorized search. Further, Officer McNaught testified on more than one occasion that the circumstances he was facing were at times “chaotic” and always “fluid.” This constituted an inadvertent violation of the Charter, and not an instance of wilful or reckless disregard for the Respondent’s Charter rights.

[75] The evidence establishes that Officer McNaught acted in good faith throughout his dealings with all young people with whom he came into contact that evening, including the individuals at the gas bar and the Respondent.

[76] There is no evidence to the effect that the search of the Respondent’s backpack was part of a pattern of abuse.

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

[77] Although the trial judge found that the backpack was not abandoned and this issue was not focused on at trial, I am of the view that there is a good argument to be made to the effect that the Respondent abandoned the backpack, thereby considerably reducing his privacy interest in the backpack.

[78] In determining whether something has been abandoned for the purposes of a claimant’s s. 8 interests, the question is whether the claimant “has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances”: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. at para. 25. The Respondent’s decision to flee the scene – rather than staying present and asserting his rights to his backpack – was, in my view, inconsistent with the assertion of a continued privacy interest in the backpack, or at least inconsistent with the assertion of anything more than a minimal privacy interest.

[79] In addition, the Respondent may well have fled in an attempt to dissociate himself with the backpack and its contents. An attempt to dissociate oneself from the subject matter of a search may well result in a finding that the subject matter has been abandoned along with any privacy interest in it: R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567 at paras. 22-23, and R. v. B. [L.], 2007 ONCA 596, 86 O.R. (3d) 730 at para. 69.

[80] In my view, the Respondent’s decision to flee strongly indicated to Officer McNaught that the Respondent was abandoning the backpack. Under these circumstances, the violation of the Respondent’s privacy rights would have to be considered minimal.

[81] Even if the backpack was not abandoned, I find that Officer McNaught’s search of the backpack was, at most, a moderate infringement of the Respondent’s privacy rights. While an individual undoubtedly has a privacy interest in his backpack, the search of a backpack is not on the same level as a body cavity search, or a strip search: see, for example, R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 at para. 99.

Society’s Interest in an Adjudication on the Merits

[82] The reliability of the evidence obtained as a result of the unlawful search is an important factor in this line of inquiry – a breach that puts into question the reliability of evidence would support the exclusion of that evidence: Grant, at para. 81. Here, we are dealing with non-bodily physical evidence. According to the majority in Grant at para. 115, “[r]eliability issues with physical evidence will not generally be related to the Charter breach. Therefore, this consideration tends to weigh in favour of admission.”

[83] The items seized from the Respondent’s backpack are highly reliable evidence. This evidence formed the entirety of the Crown’s case against the Respondent. As noted by the majority in Grant at para. 83, “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.”

Conclusion

[84] Having considered the three lines of inquiry set out in Grant, I find that, on balance, the admission of the items found in the Respondent’s backpack would not bring the administration of justice into disrepute.

Disposition

[85] In the result, the appeal is allowed, the acquittals are set aside and a new trial ordered.

C. McKinnon J.

Released: June 19, 2015

PUBLICATION OF THE NAME OF THE RESPONDENT IS PROHIBITED BY THE PROVISIONS OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2012, C.1

CITATION: R. v. F., 2015 ONSC 3068

COURT FILE NO.: 13-Y1165

DATE: 2015/06/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

– and –

J. F. Respondent

REASONS FOR JUDGMENT

C. McKinnon J.

Released: June 19, 2015