CITATION: R. v. Tran 2015 ONSC 3907
COURT FILE NO.: 14-4552
DATE: 2015/06/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Antoniani, for the Public Prosecution Service of Canada
Crown/Respondent
- and -
TRUNG TRAN
L. Shemesh for the Applicant
Applicant
HEARD: June 15 & 16, 2015
REASONS FOR JUDGMENT WITH RESPECT TO ss. 8, 9, 10(b) & 24(2) of the CHARTER OF RIGHTS AND FREEDOMS
A. J. GOODMAN J.:
[1] The applicant is charged with various drugs offences contrary to their respective provisions of the Controlled Drugs and Substances Act (“CDSA”) along with the theft of electricity, contrary to s. 326(1)(a) of the Criminal Code. All of these offences are alleged to have occurred on November 14, 2013 in the City of Hamilton.
[2] The applicant seeks to exclude the keys that were in the applicant’s possession and seized by the police during the events from the driveway area of the residence at 58 Curran Drive in Ancaster (City of Hamilton). Initially, the relief sought was as a result of an arbitrary detention. During submissions, counsel sought exclusion of the house keys on the basis of the applicant’s unlawful arrest and a warrantless search, pursuant to alleged breaches of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms (“Charter”). The applicant also raises a breach of his s. 10(b) Charter rights. There is no issue with regards to the search warrant issued for the premises at 58 Curran Road.
[3] For the purpose of this Charter voir dire, the Crown called four witnesses and filed certain exhibits. The applicant did not present any evidence.
The Facts
[4] The case has its genesis from information provided to the police from a Hydro employee who reported a high level of hydro consumption and a hydro by- pass. Members of the Hamilton Police Service made inquiries and they learned that the owner of the home and hydro account was in the name of Mrs. Hanh Thi My Pham. Ms. Pham was unknown to the police.
[5] On November 5 2013, police attended at 58 Curran Road and observed the front lights to be on. There were no vehicles present. Officers walked by the residence and did not detect the odor of marijuana. On November 6 2013, officers again attended the residence and neither vehicles observed nor an odor of marihuana was detected.
[6] On November 7, 2013, police set up surveillance and a male was seen exiting the residence in question and getting into a black BMW motor vehicle with licence plate ASJT 138. A description of this Asian male was noted by police. The motor vehicle was registered to a Thanh Duc Tran, residing at 88 Wimberly Avenue in Waterdown, Ontario.
[7] Specifically, during surveillance on November 7, Officer Mark Wilson observed the individual exit the subject address of 58 Curran Road, secure the door, and enter a black BMW. Police followed the BMW and observed the Asian male stop at a nearby temporary mail box, and use a key to retrieve the mail. Police then followed the vehicle to the registered owner’s address in Waterdown.
[8] On November 8, 2013, Officer Mark Wilson conducted surveillance at 58 Curran Road. He observed the same BMW in the driveway. Twenty minutes after commencing surveillance, Officer Wilson again observed the same individual exit the residence and get into the BMW. Officer Wilson did not observe any other vehicles or people at that address.
[9] On November 14, 2013, police obtained a s. 487 Criminal Code search warrant to enter the residence in relation to theft of hydroelectricity. At a briefing prior to the execution of the warrant, officers were apprised of two potential targets, the latter being the unidentified driver of the BMW. While conducting surveillance and prior to executing the search warrant, members of Hamilton Police Service observed the individual driving to the residence, and then exiting the same BMW, in the driveway of 58 Curran Road. The Asian male was recognized as being the same person who had been seen at the residence on November 7, and who was seen exiting the residence again on November 8.
[10] Officer Matthew Reed exited his police vehicle and went toward the Asian male, identified as the applicant. As he approached, Reed testified that he observed the applicant discard one set of keys, by tossing them onto the front lawn of 58 Curran Road. The officer later confirmed two sets of keys. Officer Reed picked up the keys and asked the applicant whether there were any other people in the house. The response was “no”. The applicant was immediately arrested by Detective Peckford at 4:34 p.m.
[11] Several officers went into the residence to clear the house. Shortly thereafter, police located the marihuana grow operation. The applicant had been brought into the residence within moments of the arrest. At 4:37 p.m. Reed provided the applicant with his Rights to Counsel for the offences of production of marihuana, possession for the purpose of trafficking, as well as for the hydro theft. The applicant was transported to the police station and was later provided with an opportunity to contact counsel although there was a delay in reaching duty counsel; once it was determined that counsel of choice could not be contacted. The applicant made no additional utterances to police prior to speaking to counsel
[12] Police held the residence and obtained a second search warrant, this time under the CDSA, in relation to the marihuana grow operation.
Positions of the Parties
[13] Ms. Shemesh, on behalf of the applicant, submits that her client was not detained for investigative purposes, rather he was unlawfully arrested at the scene prior to the search of the residence. The officer did not have reasonable and probable grounds to arrest the applicant based on the vague descriptors provided to the arresting officer and the dearth of any identifiers or other information related to the applicant as opposed to a generic description. As a result of the unlawful arrest, the keys seized directly from the applicant were illegally obtained. The applicant argues that his ss. 8 and 9 rights were breached as the search of his person for the keys.
[14] The applicant submits that he was not provided with the informational component of his rights to counsel upon arrest. The applicant was not granted a timely opportunity to exercise his rights to counsel of choice while at the police station. The applicant adds that in the circumstances of this case, the inconsistent and vague testimony of the officers and the evidence of the totality of conduct of the police justify exclusion of the keys based on the Grant factors.
[15] The Crown disagrees with the applicant’s assertion in the he was unknown to police on November 14th, 2013. The applicant was seen by police in control of the residence at 58 Curran Road, on two occasions.
[16] The Crown submits that there was a legitimate warrant to search the residence and that the applicant had been identified by the police. The Crown argues that there was no search as the applicant effectively abandoned his keys by tossing them away prior to his arrest. On the crucial points of the application, the Crown submits that Officer Reed’s evidence out to be preferred over that of Det. Peckford with respect to their arrival at their scene and their initial dealings with the applicant.
[17] The Crown says that the applicant was arrested for a very brief period prior to being provided with his Rights to Counsel and caution. Crown counsel submits that even if the arrest, or search and seizure are found to be a violation of the Charter, the evidence ought to be properly admitted under s. 24(2) of the Charter. The Crown adds that there was no violation of the applicant’s s. 10(b) Charter rights as he was provided with the informational and implementation components of his rights.
Legal principles
[18] Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure.
[19] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In the event of a warrantless search, the onus is on the Crown to rebut the presumption of unreasonableness.
[20] Section 9 states:
Everyone has the right not to be arbitrarily detained or imprisoned.
[21] It is settled law that the police have limited authority to conduct a search for officer safety purposes
[22] In the leading decision of the Supreme Court of Canada in R. v. Mann, [2004] S.C.J. No. 49, 2004 SCC 52, Iacobucci J., speaking for the majority, held that police officers do not possess a general power of detention for investigative purposes but may detain individuals when there are reasonable grounds to suspect that they are connected to a crime and that detention is reasonably necessary. At para. 34, Iacobucci J. states:
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must be further assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
[23] “Reasonable grounds to detain” has been defined by Doherty J.A. in R. v. Simpson (1993), 12 O.R. (3d) 182, at p. 202, as requiring "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."
[24] Police do not require reasonable and probable grounds to believe an offence has been committed in order to detain a suspect. Rather, they only need reasonable grounds rising to the level of “reasonable suspicion”. This standard is more than a hunch or gut reaction, but something less than what is necessary for an arrest. Courts have been reluctant to propose a definitive checklist for reasonable detentions, preferring instead to conduct case-specific analyses that examine the totality of the circumstances.
Sections 8 & 9 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) - Principles Applied to this Case
[25] In conducting the search of 58 Curran Road, all police officers were acting in the course of their duties to investigate crime and were legally entitled to be on the property and enter the residence pursuant to the search warrant.
[26] It is not disputed that if the applicant was arrested, it was a momentary detention of two or three minutes while officers were clearing the residence and prior to his s. 10(a) and (b) rights being afforded to him.
[27] I note that there are some minor external inconsistencies between officers and what transpired during the briefing and at the scene. The recollection and credibility of the officers’ viva voce testimony must be considered.
[28] I am not persuaded by Peckford’s evidence. While he presents well in court, it seems to me that much of his evidence is window dressing, glossed over by a lack of police notes and filling in the gaps where necessary. His somewhat cavalier attitude towards his testimony and his dearth of notes and details of his involvement in the case is troubling. He had to resort to explaining his testimony by referring to common practice, “would have’s” and conjecture, rather than what actually may have occurred. In my view, his equivocal responses with respect to what he claimed he observed about the keys and their origin or retrieval is not reliable, (unlike Officer Reed who specifically noted and recalled the two sets of keys). Overall, Peckford did not have accurate or detailed notes to refresh his memory. He did not have reliable independent recall and I reject his evidence where it conflicts with other officers’ testimony.
[29] Notwithstanding counsel’s thorough cross-examination, I accept Officer Wilson’s evidence and his observations and description of the applicant as being the very same person he observed on two prior occasions and on the date of the execution of the search warrant.
[30] I respectfully disagree with Ms. Shemesh’s submission that Officer Reed was not forthright and whose evidence is not reliable. I accept Reed’s evidence and I find him to be entirely credible. The officer conceded points in cross-examination and did not embellish his evidence. He testified that upon the police officers’ arrival, the applicant was exiting the BMW, looking at his direction and discarding his keys. Reed testified that he thought it was one set of keys being jettisoned, but upon closer examination, he found that there were two sets of keys and described the number of keys he located on each key ring. Reed was not seriously challenged on this point during cross-examination. Ms. Shemesh suggests that her client’s discarding of keys in these circumstances is illogical. I do not subscribe to that conclusion as such an action can be understood when one reacts to being precipitously confronted by a team of police officers or other persons unknown, proximate and on the sudden to one’s arrival at a location.
[31] I find on the evidence that upon the abrupt arrival of the police at the driveway of the residence, the applicant reacted and discarded his keys to the ground and therefore abandoned them. Thus, there is no search and no violation of his s. 8 Charter rights.
[32] My conclusion effectively disposes of this application and the relief being sought. However, if I am in error, I will address the issue of whether the applicant was arbitrarily arrested.
[33] Reed testified that the applicant’s detention was for officer safety and to permit the clearing of the house. On this point the actual arresting officer, Peckford testified unequivocally that he arrested the applicant and there was no investigative detention. Moreover, all of the officers conceded in cross examination that they intended to arrest either of the two targets at the residence if they were present at the relevant time.
[34] While a detention and subsequent search and seizure in this case premised on officer safety concerns might have enabled such activity pursuant to the jurisprudence; that is not the evidence before me from the arresting officer.
[35] Pursuant to an investigative detention, or arrest, a police officer has no right to conduct a search unless the officer has reasonable grounds to believe his or her safety or the safety of others is at risk. Given the constellation of factors in this case, it was not objectively reasonable for Peckford to act in the manner he did and to have the applicant arrested, rather than having him detained briefly for investigative purposes. Peckford did not have reasonable and probable grounds for the arrest and the arrest was arbitrary.
[Section 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[36] Section 10(b) reads as flows:
Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[37] Once engaged, s. 10(b) imposed both an information and implementation duty on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementation duty requires that police provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also required the police to refrain from eliciting incriminating evidence from the detained person until he or she has exercised the right to counsel and has been provided with a reasonable opportunity to reach a lawyer or has unequivocally waived his or her rights.
[38] Even if there was a breach of some informational or implementation component of these rights, the police did not solicit any statements or glean any evidence from the applicant. Given the fast pace of the unfolding events, I am satisfied that the applicant was informed of the charges and the change in jeopardy he faced and was given an opportunity to exercise his rights to counsel after unsuccessful attempts were made to reach counsel of choice.
[39] In my view, in the context of the implementation of the rights to counsel, the police did not seek to engage the applicant in questions and receiving incriminating responses from him. R. v. Bartle, [1994] 3 S.C.R. 173.
[40] I am not satisfied on a balance of probabilities that the applicant has demonstrated a breach of his s. 10(b) rights.
[Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[41] Section 24 of the Charter states:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(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.
[42] In the seminal case of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system. The disrepute is to be considered by the court in its role of maintaining the integrity of, and public confidence, in the justice system. It is an objective inquiry and it 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.
[43] The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large. The focus is not on punishing the police or compensating the accused: R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34.
[44] The onus is on the applicant to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.
[45] The Supreme Court outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence brings the administration of justice into disrepute. They are:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.
[46] In considering the seriousness of the Charter-infringing state conduct, the Court must ensure that they are not, in effect, condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from wilful or reckless disregard of Charter rights.
[47] The impact on any breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The Court should assess whether any breach, if there was one, was “fleeting or technical” as opposed to “profoundly intrusive”. This factor does not assess the extent to which the state intruded on the individual generally, but only the extent to which the state intruded on the individual beyond any intrusion that was lawfully permitted. In Grant the Supreme Court described this line of inquiry as “the danger that admitting the evidence may suggest that Charter rights do not count”. The seriousness of the intrusion upon the rights of an accused may vary greatly.
Sections 8 & 9: Application of These Principles to the Present Case
[48] As mentioned, I do not find a Charter violation. Nonetheless, there are three lines of inquiry at play under s. 24(2) of the Charter. I must consider, whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. Each factor is of equal import.
The seriousness of the Charter-infringing state conduct
[49] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a wilful or reckless disregard of Charter rights will inevitable have a negative effect on the public confidence in the rule of law: Grant at para. 74.
[50] In Grant, the Supreme Court at para. 75 elaborated this factor by stating:
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[51] The applicant relies on the case of R. v Doan, [2012] O.J. No. 3066, (S.C.), and submits that it is a case with very similar facts. The applicant argues that he was arrested for theft of hydro although there was no indication as to whether he resided at the home, or, whether he was responsible for the hydro consumption. He was certainly not the account holder and not the owner of the residence or vehicle in question but was merely present at the time of the search. It is submitted that he had no link to the house in question and the police had acted in total disregard of his constitutional rights.
[52] I am persuaded that Doan is distinguishable on its facts. In Doan, the police did not see the accused at the residence during surveillance. In the case at bar, police viewed saw Mr. Tran on two prior occasions, and watched him exit the residence and use a key to access a nearby mailbox. In Doan, there was no evidence that the vehicle driven by the accused had ever been seen at the residence; here, the vehicle and the applicant were seen on two previous occasions. In Doan, the police had already attended inside the home and located a marijuana grow operation. At the time of Mr. Tran’s arrest, the police had no prior knowledge about a marijuana operation. Finally, in Doan, police conceded that upon arrest of the accused, there was nothing connecting the individual to the residence, which is not the argument before me.
[53] The identification of this particular applicant and his immediate arrest in the circumstances of this case is not as narrow as counsel suggests. In my opinion, it is not merely the fact of a generic description of any Asian male who would be arrested if he happened upon the scene; rather I accept the officer’s evidence that the target was an Asian male, 5’6 to 5’8”, black hair, longer on top, slim build, aged 20’s to 30’s, driving a black BMW with a specific identified licence marker, and whose timely arrived at the residence played a role in the investigation and arrest. These facts are quite dissimilar to the situation found in Hill J.’s decision in Doan.
[54] I find that the police conduct in this case was not deliberate and they did not adopt a cavalier attitude towards the applicant’s rights. I agree with Ms. Shemesh that the police actions could be considered somewhat careless but they were not flagrant. In my view, the admission of this evidence would not send a message that the justice system is somehow condoning serious state misconduct and its admission would greatly undermine public confidence in the justice system. In my view, this factor weighs in favour of inclusion.
The impact of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) violation on the Charter-protected interests of the accused.
[55] The second branch of the test is outlined in Grant at paras. 76 & 78:
...focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. 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 right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. 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.
[56] The measure of seriousness then is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
[57] Accordingly, discoverability retains a useful role in assessing the actual impact of the breach. It is well established that this factor may weigh against a finding the breach has had a meaningful impact on the accused’s Charter-protected interests.
[58] Here, we are dealing with real evidence, keys to a residence. The arbitrary arrest of the applicant was momentary, a matter of two or three minutes. After discovery of the marihuana grow-operation, it is clear to me that the officers would have had the reasonable and probable grounds to arrest the applicant at the scene. While not the determinative factor, in my opinion, the impact on the applicant's Charter-protected interests was not significant in this case. There was a minimal impairment of the applicant’s rights. In this case, I find that that the warrantless search of the applicant is not a serious Charter violation. My consideration of the second factor weighs in favour of inclusion.
Society’s interest in the adjudication of the case
[59] In considering this factor, the question to be asked is "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion." The reliability of the evidence is an important factor in this line of inquiry. If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion.
[60] In Grant, the Supreme Court discussed how the importance of the evidence to the prosecution's case is a relevant consideration:
The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, 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.
[61] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As Crown counsel submits, should the evidence be excluded, the prosecution would still have a case but its evidential basis linking the crime to the applicant would be considerably impacted. I note Ms. Antoniani’s submissions and tacit disagreement in relation to Ms. Shemesh’s assertion that the exclusion of the keys would not “gut” the Crown’s case. However, I need not delve into what was or was not discussed as between counsel on this issue.
[62] Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. The keys existed entirely independent of the breach and is considered non-conscriptive evidence. The identity of those responsible for the grow-op and the hydro by-pass is the issue in this case. It cannot be said that the evidence of the keys is of marginal value.
[63] While I must be cautious not to place too much emphasis on this latter point, I am mindful that in Grant, the Supreme Court offered that the seriousness of the offence may give rise to be a neutral consideration as it has the potential to “cut both ways”. In this case, I conclude that society's interests in the adjudication of the case on its merits are best served by not excluding evidence when its probative value is so strong. A consideration of this public interest factor militates in favour of admission of this evidence.
[64] The final step is a balancing of all of these factors. In Harrison, the Supreme Court provided some guidance to trial judges at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[65] The impact on the Charter-protected interests of the applicant was not serious. The police conduct in this case did not demonstrate a deliberate disregard of Charter rights. I do not find that the actions of the police would invite a negative impact on the public confidence in the administration of justice and the rule of law. Even if there was a Charter violation, I find that the balancing of all of the s. 24(2) factors militate in favour of admission of the evidence.
Conclusion
[66] I do not find that the applicant’s ss. 8 or 9 Charter rights were breached as a result of his abandonment of the keys at issue. However, if there was an unlawful arrest for a brief interval and a subsequent warrantless search and seizure of the keys by the officers, I would admit the evidence pursuant to s. 24(2) of the Charter.
A.J. Goodman J.
Released: June 18, 2015
CITATION: R. v. Tran 2015 ONSC 3907
COURT FILE NO.: 14-4552
DATE: 2015/06/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown/Respondent
- and -
TRUNG TRAN
Applicant
REASONS FOR JUDGMENT
Sections 8, 9, 10(b) & 24(2) of the Charter
A. J. GOODMAN J.
Released: June 18, 2015