Court File and Parties

COURT FILE NO.: CR-15-3403 DATE: 20160530 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Asser Omar Gayle Accused

Counsel: Edward J. Posliff, for the Crown Andrew J. Bradie, for the Accused

HEARD: April 20, 21 and 22, 2016

Reasons for Decision

HEBNER J.:

The Issue

[1] The accused, Asser Omar Gayle, is charged with two counts of possession for the purpose of trafficking on August 29, 2014, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, section 5(2). A third charge, trafficking in a controlled substance contrary to section 5(1) of the Controlled Drugs and Substances Act, was withdrawn at the close of the Crown’s case.

[2] The issues in this case involve sections 8 and 9 of the Canadian Charter of Rights and Freedoms. Mr. Gayle makes the following submissions:

1. The police officers who arrested him did not have reasonable and probable grounds to believe that he had committed an indictable offence or was about to commit an indictable offence (section 495(1) of the Criminal Code, R.S.C. 1985, c. C-46).
2. His arrest was therefore unlawful contrary to section 9 of the Charter.
3. The search of his person and his motor vehicle incident to that arrest are also unlawful contrary to section 8 of the Charter.
4. As a result of the Charter violations, the evidence found during the course of the searches ought to be excluded under section 24(2) of the Charter as the admission of that evidence in the proceedings “would bring the administration of justice into disrepute”.

Facts

[3] There are a series of observations made by various RCMP officers that the Crown submits constitute reasonable and probable grounds to believe that Mr. Gayle had committed, or was about to commit, an offence of trafficking narcotics. The observations took place on June 18, August 5, August 28 and August 29, 2014. There is no doubt that the police officers involved formed reasonable grounds in the subjective sense of a personal honestly held belief. The issue is whether the asserted grounds meet the objective test of a reasonable person standing in the shoes of the officer. To answer this question requires an examination of the observations made by the officers.

June 18, 2014

[4] Constable Dean Aspeleiter has been an RCMP constable for 16 years. He has been involved in a number of duties, including duties involving drug possession and trafficking. On June 18, 2014, Constable Dean Aspeleiter was involved in surveillance of an unrelated subject. While on that surveillance, he observed something that caused him some concern at the rear lot of a restaurant located at the corner of Wyandotte and Goyeau streets in Windsor. He saw a white Durango pull into the parking lot. He did not see the driver of the white Durango. An unidentified male entered the vehicle’s passenger side and exited the vehicle quickly. The unidentified male appeared to have something in his hand. The observation was indicative of a drug transaction having just taken place. He did not make a note of what he saw. He was working on another project at the time. Sometime later, Cpl. Rudiak mentioned a white Durango. This prompted Constable Aspeleiter to recall his observation. He told Cpl. Rudiak about his observation and his recollection of the licence plate number. The licence plate number was one digit off of the licence plate number of Mr. Gayle’s white Durango motor vehicle.

August 5, 2014

[5] Cpl. Rudiak has been an RCMP officer for 19 years. He has held the rank of corporal for 12 years. He has been stationed in Windsor for 11 years. He works in a supervisory role. In 2014, Cpl. Rudiak was performing general RCMP duties. On August 5, 2015, he was working afternoon shift, involved in an investigation into drug trafficking. He was a member of a team conducting surveillance at the Food Basics parking lot on Goyeau Street in Windsor. He was watching two white males standing along Goyeau Street on the curb. One of the males was wearing shorts and the other was wearing jeans. They were standing by a silver Hyundai. The male in shorts walked back to the street and looked down along the street. A white Durango drove up. The male got into the white Durango, the vehicle drove 30 yards and stopped and the male then exited the vehicle with his fist clenched. The male walked back to the silver Hyundai. Corporal Rudiak concluded that a drug transaction had just taken place. Cpl. Rudiak followed the Durango to the Italian Sandwich Shop at the corner of Erie Street and Windsor Avenue in Windsor. One of the members of the team ran the licence plate of the Durango and the owner was determined to be Mr. Gayle. There was no evidence that Mr. Gayle was identified as having driven the vehicle on this occasion.

[6] As a result of these two sightings of the white Durango motor vehicle, there was a meeting between several RCMP officers and they decided to locate the white Durango and conduct surveillance to see if there was any activity. The surveillance on the Durango started on August 25, 2014. It was always conducted by a team in individual vehicles. They were all in unmarked cars and wearing plain clothes. All of the vehicles were, in every instance, equipped with radios.

August 28, 2014

[7] Constable Vujanovic has been an RCMP officer for 26 years. He has been assigned to the Windsor Airport office since 2000. He has been involved in drug investigations involving street-level trafficking. In 2001, he had been assigned to the drug unit for six months. In August 2014 he was tasked to commence surveillance on Mr. Gayle’s white Durango motor vehicle.

[8] The surveillance on August 28, 2014, involved Constable Vujanovic, Constable Flemming, Constable Prieur and Cpl. Rudiak. All of the officers gave evidence with the exception of Constable Flemming, who at the time of the trial was stationed in Nunavut. On the morning of August 28, the officers set up the surveillance at the residence of Mr. Gayle, determined from the licence plate search, being 1566 Goyeau St. in Windsor and waited for activity. Each of the officers that gave evidence provided a different version of their observations on August 28. Accordingly, each of the officers’ observations must be detailed.

Constable Vujanovic

[9] Constable Vujanovic followed the vehicle in the morning to a Home Depot store. The accused and an unknown white male went into the store and came out of the store carrying purchases. They drove back to 1566 Goyeau St., arriving at 12:08 p.m. Mr. Gayle left the residence alone at 12:15. He drove to the Italian Sandwich Shop located at the corner of Windsor Avenue and Erie Street where a white male in his 20s, slim build, jumped into the passenger side of the vehicle. Mr. Gayle completed a U-turn, and drove the vehicle around the corner to the Hotel-Dieu Grace Hospital on Ouellette Ave. and stopped. The unknown male exited the vehicle and walked into the pharmacy across the street from the hospital. The white Durango then drove southbound on Ouellette Ave. Constable Vujanovic did not see anything suspicious happen in the vehicle. Constable Vujanovic lagged behind to see what the unknown male was up to while the rest of the police officers followed the white Durango. He thought the meeting was odd as Mr. Gayle drove the unknown male a very short distance, one that could easily be walked in five minutes. Constable Vujanovic then heard Constable Flemming on the police radio say that something occurred at Rexall pharmacy at the corner of Giles Boulevard and Ouellette. Constable Vujanovic drove back to the sandwich shop and, on the way, saw the unknown male walking back to the sandwich shop. Mr. Gayle had driven back by this point, drove by the unknown male and the unknown male waved at Mr. Gayle. Mr. Gayle stopped the vehicle and went into the sandwich shop. He came out of the sandwich shop with a bag that appeared to be the correct size to be carrying a sandwich.

Constable Prieur

[10] Constable Prieur has been an RCMP officer since 2008. He has been stationed in Windsor since 2011. It was Constable Prieur who, using the licence plate number, located the address where Mr. Gayle resides.

[11] On August 28, 2014, Constable Prieur followed Mr. Gayle in his white Durango to the Home Depot in the morning. Mr. Gayle and an older white male attended at the Home Depot, returned to the motor vehicle with some purchases and drove back to Mr. Gayle’s residence on Goyeau Street. Mr. Gayle arrived at his residence at 12:09 and left again at 12:15. He drove to the Italian Sandwich Shop at the corner of Erie Street and Windsor Avenue. He saw a male get into the car on the passenger side and close the door. The car did not move. After two minutes, the male left the car and walked back into the sandwich shop. He then followed Mr. Gayle in his white Durango to the Rexall pharmacy at the corner of Ouellette Avenue and Giles Boulevard. He could not recall the route taken. The white Durango parked in the Rexall parking lot and Constable Prieur followed and parked his vehicle perpendicular to the white Durango. He saw a Caucasian male wearing a bandanna with a sleeveless shirt enter the pedestrian side of the vehicle. After a few seconds, the male left the vehicle with a cell phone in one hand and he appeared to be clutching something in his other hand. Constable Prieur broadcast what he saw over the radio. The white Durango left the Rexall parking lot and Constable Prieur followed it back to the sandwich shop. Constable Prieur concluded, based on the Caucasian male’s quick in and out of the Durango, that the meeting was a pre-arranged meeting between a buyer and a seller of drugs.

Cpl. Rudiak

[12] Corporal Rudiak was the ranking officer in charge of the investigation. On the morning of August 28, 2014, he, too, followed Mr. Gayle from his residence at 1566 Goyeau Street to the Home Depot. He saw Mr. Gayle and another male go into the Home Depot, return to the car with purchases and drive back to the residence on Goyeau Street. Mr. Gayle was at the residence for eight minutes and then left in the Durango and went to the Italian Sandwich Shop. Cpl. Rudiak set up his vehicle east of the sandwich shop. He did not see a male leave the sandwich shop and get into the Durango. He indicated, however, that there may have been other vehicles parked in front of him that blocked his view. He followed the Durango to Ouellette Ave. where it stopped and one male left the Durango and went into the pharmacy across from the hospital. He then followed the Durango to the Rexall parking lot at the corner of Ouellette Avenue and Giles Boulevard. He located the Durango in the parking lot but could not make any other observations. He then followed the Durango back to the sandwich shop at 12:25.

[13] Under cross-examination, Cpl. Rudiak confirmed that he did not make a note of Constable Prieur broadcasting, over the radio, that there was a transaction that occurred in the Rexall parking lot. He agreed that if Constable Prieur had broadcast on the radio that someone had been in and out of the Durango quickly, it would have been significant and it would have been noted in his notebook.

[14] Following the cross-examination, in response to some questions posed by the court, Cpl. Rudiak said he recalls hearing that someone entered and exited the Durango in the Rexall parking lot. At the court’s invitation, counsel for the accused asked additional questions arising out of the court’s questions. In response to those questions, Cpl. Rudiak agreed that, if he had been told about someone coming in and out of the Durango quickly, it would have been of significance. He said he always put significant information into his notebook. He agreed that he did not put that in his notebook. He agreed that it was safe to assume that his radio was on the entire time.

August 29, 2014

[15] The same group of officers was involved in the surveillance that occurred on August 29, 2014. A meeting of the officers occurred in the morning. Cpl. Rudiak was in charge of the meeting. The officers agreed that they had witnessed evidence of drug transactions. They agreed that if they saw something similar that day, they would effect an arrest. To put it in the words of Cpl. Rudiak, they would “jump the vehicle”. Once again, it is necessary to detail each of the officers’ evidence on the occurrences of that day.

Constable Vujanovic

[16] Constable Vujanovic followed the white Durango motor vehicle after it left 1566 Goyeau Street at 10:07 a.m. At 10:10 a.m. it parked in a lot at the corner of Tecumseh Road and Lincoln Road. The vehicle had not made any stops prior to reaching the parking lot. He observed a woman in black wearing shorts and flip-flops on her feet walk from a building to the white Durango. The woman entered the white Durango from the passenger side with nothing in her hands. She was in the car for approximately five minutes. She left the car with a box in her hands. Constable Vujanovic announced over the radio what had just occurred. Constables Prieur and Fleming arrived in their vehicles. Constable Fleming attended to the woman, who is identified as Nicole Lafreniere, and Constables Vujanovic and Prieur attended with the accused. Mr. Gayle was asked to exit the vehicle and was placed under arrest. He was compliant. The order was given to effect the arrest because, according to Constable Vujanovic, the events of the day were typical of the events of prior days and typical of a drug transaction. Mr. Gayle was placed in handcuffs. Constable Vujanovic read Mr. Gayle his rights and caution. He performed a cursory search. He then attended with Constable Fleming and the female. He did not look in the box. He heard that the box contained lights. The suggestion was it was a light fixture box from Home Depot.

Constable Prieur

[17] Constable Prieur followed the white Durango, driven by Mr. Gayle, toward the parking lot at the corner of Tecumseh Road and Lincoln Road. He watched the Durango pull into the lot and park up against the fence. He was told a female had gotten into the car and left with a cardboard box after less than 30 seconds. He parked his vehicle behind the Durango to prevent it from leaving. He arrived at the vehicle first. He knocked on the window and opened the door, which was unlocked. He told Mr. Gayle he was under arrest for the sale of illegal drugs. He asked him to get out of his car and put his hands on the side of the Durango. Mr. Gayle did as requested. Mr. Gayle was placed in handcuffs while Constable Vujanovic read him his rights and caution. Mr. Gayle had three $20 bills clutched in one of his hands. Constable Prieur did a cursory search of Mr. Gayle’s person and removed two bundles of currency (total $2,475) and two cellular phones from his pockets. After the arrest, while the vehicle was still running, Constable Prieur conducted a search of the vehicle. The centre console was open and within arms reach. He made sure the vehicle was in park and turned it off. He then looked inside the console. He had to lift an insert in the console in order to see what was underneath. Underneath the insert was a green pencil case with a grocery bag inside of it. Inside the grocery bag were two smaller baggies with white powder cocaine, which weighed in at 2.2 g. There was a plastic spoon. There was an additional bag of powder with 10.7 g of crack cocaine. Lastly, there was a grey digital scale with white powder residue. The powder in the bags were later tested positive for crack cocaine and powder cocaine. Constable Prieur has no memory of the white female carrying a cardboard box with lighting parts in it. He heard that she had been carrying a cell phone box.

Cpl. Rudiak

[18] Cpl. Rudiak set up his vehicle at 1566 Goyeau Street. He followed the white Durango to the parking lot at the corner of Tecumseh Road and Lincoln Road. He received information over the radio that a female had gotten into the passenger seat. He entered the parking lot from the west side. Cpl. Rudiak took control of the female and Constable Prieur went to deal with Mr. Gayle. Cpl. Rudiak identified himself to the female, who initially denied any involvement. He asked Constable Fleming to search the area in front of the blue van (the van used by Constable Prieur) to see if anything was dropped. Constable Fleming found a small piece of white plastic wrap with cocaine inside of it and a piece of cardboard. The female identified herself as Nicole Lafreniere. She was placed in a police vehicle.

[19] Under cross-examination, Cpl. Rudiak confirmed that it was his decision that if the officers saw someone quickly in and out of the Durango motor vehicle, an arrest would occur. He does recall Ms. Lafreniere carrying a box from Home Depot. He recalls that she was carrying the box after she left the Durango motor vehicle. He recalls the meeting being quicker than five minutes. He acknowledged that a five-minute meeting is not a quick meeting. He also acknowledged that that was the first stop for Mr. Gayle on that day.

Expert Evidence of the Fruits of the Search

[20] Cpl. Connolly was qualified to give expert evidence as to whether the materials seized in the search of Mr. Gayle and his motor vehicle are consistent with possession of narcotics for the purposes of trafficking. Cpl. Connolly identified the currency totaling $2475. The currency consisted of one $100 bill, two $50 bills, 113 $20 bills and three $5 bills. Cpl. Connolly’s evidence was that most drug transactions are in the lower denominations and always occur in cash. He identified 11.3 g of crack cocaine and indicated it had a street value, at the time, of $1,130. He identified the powder cocaine and indicated it could be a “light 8 ball” with a street value of $250. The scale had a weighing value of 0.1 g-100 g and had white powder residue on the scale. The white powder residue was not tested. The pencil case contained the scale, the powder cocaine, the crack cocaine and a plastic spoon. The two cellular phones were identified. Cpl. Connolly did not know whether either of the phones were active. He indicated that the use of multiple cell phones in drug trades is common. One phone may be used for the purpose of communicating with suppliers and customers while the other phone may be a personal phone.

[21] It was Cpl. Connolly’s opinion that the possession of the articles, on the whole, are consistent with drug trafficking.

The Issues

[22] The issues to be determined by this court are as follows:

1. Did the arresting police officers breach Mr. Gayle’s right not to be arbitrarily detained or imprisoned under section 9 of the Charter of Rights and Freedoms?
2. Did the arresting police officers breach Mr. Gayle’s right to be secure against unreasonable search or seizure under section 8 of the Charter of Rights and Freedoms?
3. If the answer to number 1 or 2 is “yes”, having regard to all of the circumstances, would the admission of the evidence obtained on the search bring the administration of justice into disrepute (s. 24(2))?

Analysis

Did the arresting police officers breach Mr. Gayle’s right not to be arbitrarily detained or imprisoned under section 9 of the Charter of Rights and Freedoms?

[23] Section 9 of the Charter of Rights and Freedoms provides that “everyone has the right not to be arbitrarily detained or imprisoned”. An arbitrary arrest includes an unlawful arrest (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 55 and 57). An arrest will be unlawful, and is therefore arbitrary, if the arresting officer does not have reasonable grounds to believe that the accused “has committed or is about to commit an indictable offence” (Criminal Code, s.495(1)).

[24] There is both a subjective and an objective component to the reasonable grounds test. The police officer must have reasonable grounds in the subjective sense of a personal, honestly held belief, and the asserted grounds must be justified using an objective measure of a reasonable person standing in the shoes of the officer (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250). In applying the objective measure, it is essential that the grounds for believing the accused has committed an indictable offence or is about to commit an indictable offence is based on “the operation of reason and not on mere suspicion”. (R. v. Campbell, 2010 ONCA 588 para. 54).

[25] As previously indicated, the police officers involved had subjective grounds in the sense of an honestly held belief. The question is whether the asserted grounds meet the objective test of a reasonable person standing in the shoes of the officer. I find that they do not.

[26] Of the four observations relied on, the first observation that took place on June 18, 2014, was temporally remote in nature. It took place over two months prior to the arrest. In addition, there was no evidence that Mr. Gayle was driving the Durango at the time it occurred. The second observation that took place on August 5, 2014 was also temporally remote, although to a lesser extent. This observation took place over three weeks prior to the arrest. Once again, there was no evidence that Mr. Gayle was driving the Durango at the time it occurred.

[27] The third observation took place on August 28, 2014. There were two instances that took place on that day. Of the first incident, being the short drive between the Italian Sandwich Shop and the pharmacy across the street from the hospital, I accept the evidence of Constable Vujanovic as to what occurred. Looking at it objectively, I find nothing suspicious or odd about the incident. Mr. Gayle drove someone around a corner to a pharmacy, across the street from the hospital, where the passenger left the vehicle. A short time later, when Mr. Gayle passed the same passenger on the street, the passenger waved to him. If, indeed, a drug transaction had taken place, I would expect the participants in the transaction would not acknowledge each other in public in any fashion, least of all in the form of a wave.

[28] Of the second instance that took place on August 28, 2014, (the Rexall pharmacy incident) the only officer who witnessed the incident was Constable Prieur. I have serious concerns about the reliability of Constable Prieur’s evidence for the following reasons:

1. His observations on the first instance were completely different than that of Constable Vujanovic and Cpl. Rudiak. He saw something completely different than those two officers. Both Constable Vujanovic and Cpl. Rudiak saw the Durango drive someone from the sandwich shop to the hospital on Ouellette Street. Constable Prieur, on the other hand, saw someone get into the vehicle at the sandwich shop, the vehicle didn’t move anywhere, and that same person got out of the vehicle.
2. Constable Prieur followed the Durango to the Rexall pharmacy; however he could not recall the route taken.
3. At the preliminary hearing, Constable Prieur gave evidence that Cpl. Rudiak told him there was a confidential information source. He gave that evidence in chief, when being questioned by the Crown. He gave the evidence again in cross-examination. At trial, Constable Prieur said that there was no confidential informant. He said that he knew he made a mistake at the preliminary inquiry soon as he said it in chief. He repeated the information in cross-examination as he didn’t know how to correct his evidence. Although Constable Prieur was very frank in his evidence before this court about the mistake he made in the court below, the fact that he made the mistake is problematic.

[29] For these reasons, I am not prepared to accept Constable Prieur’s evidence.

[30] That leaves us with the fourth incident on August 29, 2014. This is the incident when the arrest took place. The parking lot at the corner of Tecumseh Road and Lincoln Road was the first stop for the white Durango on that day. I accept Constable Vujanovic’s evidence on the events that took place. The woman who entered the white Durango from the passenger side stayed in the car for approximately five minutes. She left the Durango carrying a box with a light fixture or lighting parts. Cpl. Rudiak acknowledged that a five minute meeting is not a quick meeting.

[31] The Ontario Court of Appeal in R. v. Dhillon, 2016 ONCA 38, set out the test in paras. 24 and 25:

An arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Further, those grounds must be objectively justifiable to a reasonable person placed in the position of the officer. The standard does not require that the police demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making the arrest. The standard is met at the point where credibly based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.

[32] I have considered the totality of the circumstances including the two events that I considered to be temporally remote. I find that the circumstances are insufficient to meet the test of an objective measure of a reasonable person standing in the shoes of the officer.

[33] For these reasons, I find that Mr. Gayle’s right not to be arbitrarily detained or imprisoned pursuant to section 9 of the Charter was breached.

Did the arresting police officers breach Mr. Gayle’s right to be secure against unreasonable search or seizure under section 8 of the Charter of Rights and Freedoms?

[34] Warrantless searches are an exception in Canadian law and are presumptively unreasonable unless justified by the Crown on a balance of probabilities (R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 (S.C.C.)). A warrantless search may be justified at common law if it is a search incident to arrest (R. v. Valentine, 2014 ONCA 147). If the arrest itself is not lawful or valid, then the search incident to such an arrest is itself unlawful and, therefore, unreasonable. The Supreme Court of Canada, in R. v. Caslake, [1998] 1 S.C.R. 51, said the following:

In this case, the Crown is relying on the common law power of search incident to arrest to provide the legal authority for the search. In Cloutier, supra, my colleague L'Heureux-Dubé J. (for a unanimous Court) discussed this power in detail. She held that it is an exception to the ordinary requirements for a reasonable search (articulated in Canada (Director of Investigation & Research, Combines Investigation Branch), supra) in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probable grounds (under s. 494 of the Code) or an arrest warrant (under s. 495). However, since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in R. v. Stillman, [1997] 1 S.C.R. 607 (S.C.C.), at para. 27, "[n]o search, no matter how reasonable, may be upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful."

[35] Therefore, I must conclude that Mr. Gayle’s right to be secure against unreasonable search or seizure under section 8 of the Charter was breached. That brings us to the third step in the analysis.

If the answer to number 1 or 2 is “yes”, having regard to all of the circumstances, would the admission of the evidence obtained on the search bring the administration of justice into disrepute (s 24(2))?

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

(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.

[37] The framework for the application of section 24(2) of the Charter is set out in R. v. Grant, 2009 SCC 32 at para. 71:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. 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. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[38] I will address each of the lines of inquiry in turn.

The Seriousness of the Charter-Infringing State Conduct

[39] In Grant, the Supreme Court of Canada directed, at para. 72, that the first line of inquiry:

[R]equires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

[40] I find that, at the time of the arrest, all of the officers acted in good faith. All of the officers had a subjective belief that they had reasonable and probable grounds to arrest Mr. Gayle. At the time of the arrest, there was no wilful or reckless disregard of Mr. Gayle’s Charter rights. There was no evidence of a pattern of abuse on the part of any of the officers.

[41] However, that does not end the inquiry. Mr. Bradie, on behalf of Mr. Gayle, has urged the court to consider the actions of the police officers during the course of this trial, and particularly during the course of their evidence. There are three instances of concern:

1. Constable Prieur’s evidence given at the preliminary inquiry is the first instance. As soon as he realized he made a mistake, while he was still in the witness stand, he should have said something. I appreciate that Constable Prieur is, relatively speaking, a more inexperienced officer and I accept his very frank explanation that he simply did not know how to speak up and correct his mistake. Nevertheless, his failure to do so caused Justice Dean, the judge who presided over the preliminary inquiry, to be misled.
2. As previously indicated, the surveillance of Mr. Gayle commenced on August 25, 2014. There were no instances arising out of the surveillance relied upon by the Crown to constitute reasonable grounds for the arrest until August 28, 2014. However, Constable Vujanovic gave evidence of an incident that took place on August 27, 2014. He said that there was an exchange between the driver of the white Durango and an unknown male. The exchange took place when the vehicle was stopped. The two men spoke through the open driver-side window. The unknown male did not get into the car. There is no evidence that anything was passed between the two men. After two to three minutes, the Durango left the male and the male went to a restaurant. This whole exchange appears to be nothing more than two men known to each other having a conversation on the street. However, Constable Vujanovic said that the meeting was “odd” and “strange”. He said that it “caused him concern as an officer”.

[42] Constable Vujanovic’s evidence in this regard is completely at odds with the evidence he gave at the preliminary inquiry where the following exchange took place in cross-examination:

Q. So in terms of your grounds you’ve alluded to the August 28th the observation you made yourself and the observation which was made by others and communicated to you concerning the Rexall? A. Yes. Q. Those were the suspicious activities that you were made aware of for the 28th? A. That’s correct. Q. And they form part of your grounds for the arrest is that correct? A. That’s correct Q. And there was nothing that you saw on the 25th, 26th or 27th that would’ve contributed to those grounds? A. No nothing.

3. When Constable Prieur gave his evidence about the Rexall incident, he said that he broadcast what he saw over the radio. Constable Vujanovic gave evidence to the effect that he heard about an incident that took place at Rexall pharmacy over the radio. Cpl. Rudiak, on the other hand, gave no such evidence in chief. In cross-examination, he acknowledged that there was no notation in his notebook about someone getting in and out of the vehicle quickly in the Rexall lot. He confirmed that, if that had happened, it would have been significant. He confirmed that, if he heard that this occurred over the radio, he would have made a note of it in his notebook. After cross-examination, in response to my questions, he said that he remembers hearing about it. Further cross-examination took place and Cpl. Rudiak gave the same evidence he previously gave and confirmed that it was safe to assume his radio was on the entire time.

[43] As a result of these three instances, on the whole, I was left with the impression that the officers were trying to bolster their case. They knew the Charter argument that was to be made by the accused and tried to extrapolate from their evidence to convince the court that they had reasonable and probable grounds for the arrest. In R. v. Harrison, 2009 SCC 34, the Supreme Court of Canada, in dealing with a section 24(2) analysis, at para. 26, said the following:

I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed,“the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority” (para. 160).

[44] In this case, I would not go so far as to find that the officers were attempting to mislead the court. However, I find that they did not give their evidence in as impartial and professional a manner as I would have expected.

[45] In Grant, at para. 73, the court said:

This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

[46] Public confidence in the rule of law and the court process requires that police officers give their evidence in an impartial and professional manner. They are persons in authority and need to be trusted, not just when doing their job on the street but also when giving evidence in court. Unfortunately that was not the case in this instance.

Impact on the Charter-Protected Interests of the Accused

[47] This line of inquiry is described in Grant, para. 76 as follows:

This inquiry 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 rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[48] In this case, as in most cases, the detention and the search had an impact on Mr. Gayle’s liberty and privacy interests. The question is how that impact should be characterized. I accept that Mr. Gayle was treated with respect in all the circumstances. There is no evidence that any of the officers drew their weapons. There is no evidence that Mr. Gayle was treated roughly in any way. There is no evidence that the encounter was demeaning to the dignity of Mr. Gayle. The Crown emphasizes the low expectation of privacy in a vehicle. Had the search not turned up incriminating evidence, the detention would have been brief.

[49] In the recent case of R. v. Harflett, 2016 ONCA 248 at para. 47, in dealing with the second Grant line of inquiry, the Court of Appeal said:

The case law has consistently held that drivers have a reduced expectation of privacy in their vehicles: see Caslake, at para. 15; Nicolosi, at para. 9. However, a reduced expectation of privacy does not mean that an unjustified search is permissible. As stated by McLachlin C.J. in Harrison, “[a] person in the appellant’s position has every expectation of being left alone - subject, as already noted, to valid highway traffic stops”: Harrison, at paras. 31-32.

[50] The same can be said of Mr. Gayle.

Society’s Interest in an Adjudication on the Merits

[51] This line of inquiry in the Grant analysis requires a consideration and weighing of society’s interest in the determination of the charges on their merits. The court must consider whether “the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” (Grant at para. 79).

[52] The Crown has acknowledged that, if the evidence obtained on the search is excluded, the Crown has no case. In Grant, at para. 83, the court said:

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.

[53] The evidence is highly reliable. The exclusion of that evidence will effectively gut the Crown’s case. However, the Supreme Court has cautioned, in Harrison, that:

Allowing the seriousness of the offence and of the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’”.

[54] In Harflett, the Court of Appeal said, at para. 54, “in my view, the third Grant factor cannot be used to systematically require the admission of reliable evidence obtained in plain disregard of an accused’s Charter rights.”

Section 24(2)

[55] I am directed, by the Supreme Court of Canada in Grant, after considering the three inquiries, to determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. It is my task to weigh all of the factors. The factors in favour of admission are:

(a) The police had subjective reasonable grounds for the arrest. They acted in good faith. Although I found that the police did not have objective reasonable grounds, this is not a case where, as in R. v. Harrison, the police conducted the search “without any semblance of reasonable grounds”. (b) There is a reduced expectation of privacy in a motor vehicle. (c) The exclusion of the evidence would gut the Crown’s case and the evidence seized is highly reliable evidence on a very serious charge.

[56] The factors in favour of exclusion are:

(a) The Charter infringement had an impact, albeit not an egregious one, on the accused’s Charter-protected interests. (b) The police officers showed a lack of professionalism when they gave their evidence.

[57] In Harrison, at para. 36, the court stated:

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 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.

[58] In that case, “The police misconduct was serious; indeed, the trial judge found that it represented a “brazen and flagrant” disregard of the Charter.” The Court of Appeal found “the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion.” (Para. 39.) That is not the case here. In this case, I find that the seriousness of the offence and the reliability of the evidence do outweigh the factors pointing to exclusion. Considering all three Grant lines of inquiry, I conclude that the balancing of all of the factors favours admission of the evidence in this case.

Original signed by Justice Pamela L. Hebner Pamela L. Hebner Justice Released: Oral decision – May 30, 2016