R. v. Sauve, 2016 ONSC 3913

Court File No.: 13-73

Date: 2016-06-17

Ontario

Superior Court of Justice

Between:

Her Majesty the Queen Respondent

– and –

Jarrett Sauve and Justin Stewart Applicants

Andre White, counsel for the Crown

Donald W. Johnson, counsel for the Applicant, Jarrett Sauve

Robert J. McGowan, counsel for the Applicant, Justin Stewart

Heard: March 21, 22 and 23, 2016

Ruling on pre-trial application to exclude evidence under s. 24(2) of the Charter (The ammunition and handgun)

Lacelle, J.

Introduction

[1] Jarrett Sauve and Justin Stewart are charged with various offences relating to a hand gun and ammunition alleged to have been in their possession in April of 2012.

[2] They have each brought pre-trial applications under the Charter.

[3] Mr. Stewart is the individual who had possession of the gun at the time it was discovered by police. He alleges his Charter rights were breached because he was detained arbitrarily and unlawfully searched. He further contends that his rights to counsel under ss. 10(a) and (b) of the Charter were breached upon his detention. He argues the hand gun and ammunition found during the search by police ought not to be admitted at trial pursuant to the Grant analysis under s. 24(2).

[4] Mr. Sauve argues that if either of Mr. Stewart’s s. 8 or 9 Charter rights is breached and the evidence is excluded in the trial against Mr. Stewart, the evidence ought not to be admissible against him. He further contends that his right to counsel was breached and that his utterances to police and the videotaped interview following his arrest ought to be excluded from evidence having regard to the breach of his right to counsel and for lack of voluntariness.

[5] The Crown maintains that the Charter rights of Mr. Sauve and Mr. Stewart were not infringed by police in their dealings with them. Should the court disagree, the Crown argues that the s. 24(2) analysis favours a ruling permitting the hand gun and ammunition to be introduced in evidence. The Crown has also brought an application for a finding that Mr. Sauve’s utterances to police and videotaped interview are voluntary and admissible in evidence.

[6] The issue of the admissibility of the statement given by Mr. Sauve having regard to the alleged breach of his s. 10(b) rights and its voluntariness will be addressed in separate reasons. What follows is my ruling on the application to exclude the hand gun and ammunition and the alleged Charter breaches underlying this requested remedy.

Overview of the evidence and preliminary findings of fact

[7] The court heard evidence from Cst. Peter Neily and D/Cst. Randy McGillis. Neither of the accused testified on the application to exclude the hand gun and ammunition.

[8] The evidence given by the officers was largely consistent. Where the evidence of the officers is inconsistent in a material way given the issues to be addressed on this application, I further address my findings of fact upon consideration of the legal issue involved. By way of general overview, however, I find the following facts to have been established by their evidence.

[9] On April 17, 2012, Cst. Neily and D/Cst. McGillis were both police officers on duty as part of the Combined Forces Special Enforcement Unit in Cornwall. The purpose of this unit is to target organized crime in the Cornwall area. The unit is involved in investigations that target groups that engage in the smuggling of contraband tobacco, firearms, and guns, or who engage in human trafficking.

[10] The officers were engaged in an unrelated investigation and travelling eastbound on County Road 2 in an area on the outskirts of the city of Cornwall. The roadway runs parallel to the St-Lawrence River. When the officers first observed Mr. Sauve, they were on a part of the roadway that is directly adjacent to the St-Lawrence River. The waterfront in that area is accessible from waters within the jurisdiction of the United States. A boat leaving the United States could travel without obstruction to the area of the waterfront where the officers were driving.

[11] Cst. Neily characterized his knowledge of smuggling activities along that part of the waterway as good. He testified that the waterway was a known area for smuggling. His own experience as a police officer in the Combined Forces Special Enforcement Unit included investigations involving seizures along the waterway from the Cornwall area eastward through to parts of Quebec. Cst. Neily testified that boats were commonly used in smuggling as they permitted contraband items to be dropped off on the shoreline.

[12] As the officers approached a gas station on County Road 2, they observed a male with a backpack coming up from the embankment of the St-Lawrence River from the shoreline area. Within the vicinity of this man, there was a boat moored at a dock on the shoreline. Two men were on the boat. Cst. Neily, who was driving, thought this was suspicious. He thought he might be seeing a drop off.

[13] While Cst. Neily had not seen where the boat had come from, he was suspicious it had originated in the United States.

[14] Cst. Neily then drove past the man coming up the embankment and made a u-turn into the gas station which was on the opposite side of the roadway across from the river embankment. Both officers observed the man with the backpack, who was later identified as Mr. Sauve, walk to the area of a shed on the gas station property. There, he met a taller man, who was later identified as Mr. Stewart. Mr. Sauve handed off the backpack to Mr. Stewart, who put it on. Both accused were wearing motorcycle style jackets, and Mr. Stewart was beside a motorcycle.

[15] The exchange of the backpack intensified Cst. Neily’s suspicion. He thought the backpack might contain smuggled and illegal goods. Upon the exchange of the backpack, he concluded the backpack should be searched. He testified that he believed that as a designated officer under the Customs Act, s. 99(1)(f) of that Act permitted him to search conveyances if he had grounds to believe smuggled goods were present. Consequently, when Mr. Stewart entered the gas station store moments later, he followed him to investigate. D/Cst. McGillis remained outside to talk to Mr. Sauve.

[16] Upon entering the gas station store, Cst. Neily produced his police badge and told Mr. Stewart he wanted to speak with him. They were within metres of the front door at this time. According to Cst. Neily, Mr. Stewart appeared nervous when he was advised that Cst. Neily, who was in plain clothes, was a police officer. He started to look around. Because Cst. Neily thought this could be a possible flight situation, he started to walk Mr. Stewart to his left. He put his hand out, told him to stop, and guided him to the back of the store.

[17] At the back of the store, Cst. Neily told Mr. Stewart he was being detained under the Customs Act. He gave him a verbal warning to the effect that he did not have to say anything, going from memory as to what was on his police card. He told Mr. Stewart that he was not going anywhere.

[18] At this point Cst. Neily told Mr. Stewart he intended to do a cursory pat down search. Because Mr. Stewart was wearing the backpack, Cst. Neily asked him to take it off. Mr. Stewart complied, and put the backpack on the ground. Cst. Neily performed the pat down search and found nothing of concern.

[19] Cst. Neily then picked up the backpack. He testified he did so to move it away from the vicinity of the accused while he determined what the next steps in the investigation would be. He said that since he did not know what was in the backpack but was concerned its contents might include a weapon, he did not want it within reach of the accused in the event there was a confrontation.

[20] When Cst. Neily picked up the backpack, he observed it to be abnormally heavy. He testified that his first thought was that it contained a firearm. He said his suspicion that there was something illegal in the backpack crystallized at this time. At this point he had only lifted the bag, and had not felt the items it contained. He testified that he had experience as a police officer which suggested to him the weight in the backpack was a firearm. He further testified that as a police officer, he knew the weight of a firearm because he carried one every day. He had also worked in Surrey, B.C. as a police officer and had previously seized handguns from individuals. He also explained that an experience with a shooting on duty had also given him experience with firearms, and that firearms were a prevalent concern for him.

[21] Cst. Neily opened the backpack. He testified that his purpose in opening the backpack was to see if it contained a firearm, and was a decision made to ensure his safety and that of others in the store. Inside the backpack, he first saw a box with the name “Hornady”, which he knew to be ammunition. Following that, he located a handgun.

[22] By this time, D/Cst. McGillis had entered the store. Cst. Neily yelled “gun”, drew his firearm, pointed it at Mr. Stewart, and told him he was under arrest. Mr. Stewart was taken into custody.

[23] The officers then moved outside to arrest Mr. Sauve, who was also arrested at gunpoint. The handgun was secured, and found to be unloaded.

Issue #1: Were Mr. Stewart’s rights under s. 9 of the Charter breached by Cst. Neily because he had no authority under the Customs Act or the common law to detain him?

The positions of the parties

[24] Mr. Stewart argues that he was arbitrarily detained because the police had no authority under the Customs Act or the common law to detain him. He argues that the subsection of the Customs Act cited by the officer in his testimony, s. 99 (1)(f), does not apply as it relates to conveyances, and the object of the investigation here (the backpack) was not a conveyance. He further argues that the officer relied upon insufficient facts to provide grounds for detention either under the Customs Act or the common law.

[25] The Crown’s position is that the accused’s detention was authorized by s. 99(1)(e) of the Customs Act, which permits searches of goods, packages or containers, and that the officer’s detention of the accused on the basis of his authority under the Customs Act was justified. The Crown argues it is immaterial whether the officer was able to recite the precise subsection that gave him the authority for detention under the Customs Act. What matters is that the officer knew that legislation provided him with the authority to detain the accused and that he acted pursuant to that authority.

The legal principles

[26] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. In this case, the issue is whether Mr. Stewart was arbitrarily detained.

[27] A lawful detention is not “arbitrary” within the meaning of s. 9 of the Charter: see R. v. Mann, [2004] 3 S.C.J. No. 49 at para. 20. To be lawful, a detention may be justified by a specific statutory power or the common law: R. v. Simpson, 1993 3379 (ON CA), [1993] O.J. No. 308 (C.A.) at para. 34.

[28] In this case, s. 99 of the Customs Act is the statutory power said to justify the detention. Sub-sections 99(1)(e) and (f) of the Customs Act provide as follows:

99. (1) An officer may …

(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and open or cause to be opened any package or container thereof; or

(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening. [emphasis added]

[29] The language setting out the threshold for detention and searches under s. 99(1)(e) and (f) of the Customs Act is identical. The provisions permit an officer to search either a conveyance (s. 99(1)(f)), or “goods” and packages or containers (s. 99(1)(e)), if the officer “suspects on reasonable grounds” that the Customs Act either has been “or might be contravened”.

[30] The common language used in these subsections of s. 99 has been considered by the Supreme Court of Canada. In R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312, the court considered the lawfulness of a vehicle stop and a subsequent search performed after the detaining officer had received information about a vehicle crossing the New Brunswick border at an uncontrolled point of entry. As in this case, the detention occurred some distance from the point of entry. The court held at para. 14:

The analysis of this case necessarily focuses on the Customs Act, specifically s. 99(1)(f), which authorizes the stop and search of a vehicle (or other conveyance) where an officer suspects on reasonable grounds that the vehicle is or might be involved in a breach of the Act. A breach of the Act includes an attempt, which is defined as an offence in s. 159. With respect to the words “might be” in s. 99(1)(f), I agree with my colleague that they refer to the possibility that an offence is taking place. Scanning s. 99(1)(f) reveals, therefore, that police are authorized to stop and search a vehicle once an officer has formed a reasonable suspicion that there is a possibility that the vehicle is being used to smuggle or to attempt to smuggle contrary to the Customs Act or regulations thereunder. Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices. [Emphasis added]

[31] The court found that this threshold, which was less stringent and lower than that prescribed by other statutes authorizing stops or searches in different circumstances, was “eminently understandable”. At para. 15, it held:

Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.

[32] The court in Jacques further held that this legitimate interest of the state was reflected in the substance of the Customs Act. At para. 16, the court noted:

The Act grants peace officers wide powers to search persons, vehicles and goods and provides for seizure and forfeiture. The Act also recognizes that persons and goods can arrive in Canada by a variety of means and through one of many ports of entry. Points of entry are, of course, not restricted to points along the territorial limits of Canada. The concept of a border is broader than mere geographical boundaries and necessarily, so too is the scope of the Act. Persons, vehicles and goods can arrive in Canada for customs purposes and be subject to the Act even though they are already well inside Canadian territory. [Emphasis added]

[33] At the same time, the court was clear that while the standard set by s. 99(1)(f) was not stringent, it was not illusory. It would not authorize an officer to conduct random stops of vehicles merely because they are in the vicinity of the border and no other basis. However, being at or in the vicinity of the border is relevant to the application of enforcement measures under the Act: see para. 17.

[34] The Supreme Court further addressed how a court is to determine whether an officer has authority to detain and search under s. 99(1)(f). It cautioned that trial judges must not take a “dissecting approach” to evidence. Rather, the court must assess the totality of the circumstances: Jacques at para. 23. The court cited with approval the approach set out by the Court of Appeal for Ontario in Simpson, where Doherty J.A. wrote that “[t]hese cases require 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”: Jacques at para. 24. At paragraph 25, it further approved of the observation of Belleghem J. in R. v. Marin, [1994] O.J. No. 1280 (Gen.Div.), “with respect to the facts (or “indicators”) warranting a detention and search for narcotics under the Customs Act (at para. 16):

The “indicators” are to be seen as a constellation, or cluster, leading or tending to a general conclusion. Looked at individually no single one is likely sufficient to warrant the grounds for the detention and seizure. The whole is greater than the sum of the individual parts viewed individually.

[35] It is also clear from Simpson that the constellation of facts capable of justifying a detention must be objectively discernible. The court directed at para. 61 that “a “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be, because such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation, or could be based on mere speculation. See also R. v. Chehil, 2013 SCC 49 at para. 30. The court in Simpson adopted the following language in further explaining the articulable cause standard:

[i]n order to avoid an attribution of arbitrary conduct, the state official must be operating under a set of criteria that at minimum, bears some relationship to a reasonable suspicion of crime but not necessarily to a credibly-based probability of crime.

[36] Subsequently in Mann, the Supreme Court indicated a preference for the phrase “reasonable grounds to detain” rather than the phrase “articulable cause” used in Simpson, which had originated in American jurisprudence.

[37] In assessing the reasonableness of the officer’s suspicion, the jurisprudence recognizes that the officer’s experience with the form of activity under investigation is at least relevant, and must be considered. See Jacques at para. 27; R. v. Sekhon, 2009 BCCA 197 at para. 86; and R. v. Juan, 2007 BCCA 351 at paras. 18-21. More recently, the issue of an officer’s experience in assessing the reasonableness of his or her suspicion was addressed by the Supreme Court in Chehil at para. 47. It wrote:

[a]n officer's training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer's experience will suffice, or that deference is owed to a police officer's view of the circumstances based on her training or experience in the field: see Payette, at para. 25. A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To the extent that specific evidence of the investigating officer's experience and training supports the link the Crown asks the court to draw, the more compelling that link will be.

[38] Further, Chehil confirms that reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. As the court noted at para. 32, “[m]uch as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations.” The court reasoned that this was acceptable because “the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.”

The principles applied

[39] There is no dispute that the accused was detained by the police within the meaning of s. 9 of the Charter. What is in dispute is whether that detention was lawful.

[40] In this case, the statutory authority put forward to justify the accused’s detention is s. 99 (1) of the Customs Act. The Crown does not seek to justify the detention based on police powers at common law. Accordingly, the issue I must decide is whether s. 99(1) of the Customs Act provided authority for the police conduct in this case, such that the police conduct was lawful. This turns on whether the police could rely on the authority of the Customs Act given the location where they stopped the accused, whether the officer’s reliance on s. 99(1)(f) of the Customs Act during his evidence disentitles the Crown from relying on s. 99(1)(e) to justify the stop, and on whether or not there was a “constellation of objectively discernible facts” which gave Cst. Neily reasonable grounds to suspect that Mr. Stewart was possibly implicated in smuggling activity.

The officer’s reliance on s. 99(1)(f) of the Customs Act

[41] As a preliminary issue, I find the officer’s erroneous reliance on s. 99(1)(f) of the Customs Act during his testimony is immaterial to the question of whether he had authority under the Customs Act to stop Mr. Stewart. The officer properly adverted to the statute and section that provided his authority. To require police officers to quote with specificity the exact sub-sections of the law upon which they are relying in explaining their conduct is too stringent a standard. I find that Cst. Neily believed he had authority under s. 99 of the Customs Act to stop Mr. Stewart, and that an assessment of whether that statute provided the authority for his conduct is not foreclosed because he was incorrect in his evidence about which sub-section applied.

Did the Customs Act permit a stop at a location some distance from a port of entry

[42] I find that in the circumstances of this case, the officers could rely upon their authority under the Customs Act to investigate the activities of the co-accused.

[43] There is no language in the Customs Act that suggests that the powers in s. 99 (1)(e) or (f) may only be exercised within a certain proximity to an international boundary or port of entry. Further, the interpretation of s. 99(1)(f) in Jacques, as well as the result in that case, support the position that investigations under these provisions of the Customs Act may occur at some distance from the border or port of entry.

[44] Jacques is clear that points of entry are not restricted to certain locations along the border. If police are to investigate smuggling activity, as Jacques suggests, they must be permitted to conduct investigations at locations apart from points of entry when the circumstances give rise to a reasonable suspicion of smuggling activity. Jacques explicitly recognized at para. 16 that goods can arrive in Canada and be subject to the Act even though they are already well inside Canadian territory: see also R. v. White, [2007] Q.J. No. 1177, another case where the detention and search of the accused’s vehicle at some distance from the border or a point of entry were found to be lawful by the court.

[45] In arriving at the conclusion that the officers were entitled to pursue an investigation under the Customs Act in this case, I have considered a number of circumstances. The officers involved in this case were designated officers under the Customs Act. They were part of a specialized police unit which investigated organized crime and smuggling activity in the area where they stopped the accused. The officers observed activity that raised their suspicions about possible smuggling activity. Cst. Neily suspected that he was seeing a drop off from a boat that had originated in the United States, and testified that boat drop offs were a manner of facilitating smuggling activity. I consider that this activity was observed in an area of the waterway that was accessible and proximate to the Canada/U.S. border, the porous nature of that border at the portion of the St-Lawrence River where the activity was observed, and the officers’ knowledge and experience with smuggling activity along that portion of the waterway. Given these circumstances, I find that the police were not foreclosed from pursuing an investigation under the Customs Act because they were not at a port of entry, or in close proximity to a port of entry or a point of entry.

Did Cst. Neily rely on objectively discernible facts that justified a reasonable suspicion that Mr. Stewart was involved in smuggling activity?

[46] I find that Cst. Neily had reasonable grounds to form a reasonable suspicion that the backpack might contain contraband, and therefore, that Mr. Stewart was possibly implicated in smuggling activity. Mr. Stewart’s detention was not random. It was based on a constellation of objectively discernible facts.

[47] In particular, I find the following objectively discernible facts are established on the evidence. The area where police first observed Mr. Sauve was immediately adjacent to the St-Lawrence River at a part of that waterway known for smuggling activity. At that part of the waterway, boats may travel from the United States to the Canadian shoreline without obstruction. When police observed Mr. Sauve, he was carrying a backpack (on this factual issue, I do not find there is any material inconsistency in the evidence of the two police officers, as it is clear that whether he was holding it or wearing it, Mr. Sauve was carrying a backpack that was visible to both of them). Within metres of where Mr. Sauve was first observed, two men were observed in a small boat at a small dock on the river. Mr. Sauve carried the backpack over the river embankment, crossed the road to the gas station, and handed the backpack off to Mr. Stewart. These objectively discernible facts in tandem with Cst. Neily’s experience and knowledge of smuggling in the area, and particularly his knowledge that boats are used in smuggling activity to permit the drop off of contraband at the shoreline, provided reasonable grounds to suspect Mr. Stewart was possibly implicated in smuggling activity.

[48] On this point, I note that Cst. Neily fairly acknowledged in his testimony that on their own, some of the facts upon which he relied in determining he had grounds to stop Mr. Stewart were not suspicious. He acknowledged that there were alternative scenarios that might account for the behaviour he was observing. But as indicated in Chehil, the fact that alternative and innocent interpretations of the facts are available does not mean that the reasonable suspicion standard cannot be met, because what is at issue under this standard is the possibility of uncovering smuggling activity, and not a probability of doing so.

[49] I find that Cst. Neily was not acting on a mere hunch. The indicators upon which he relied were objectively discernible, and not merely subjective assessments. Insofar as he was also relying on his police experience of smuggling in the area, given the objectively discernible facts, and the common-sense nature of some of his evidence about his policing experience (e.g. that boats are used to drop off smuggled items along the shore of the St-Lawrence River), his grounds are even more amenable to an objective assessment as to their sufficiency. As I have indicated, I find the facts and circumstances identified by Cst. Neily provided an articulable and cogent basis for his suspicion that went beyond being a subjectively based assessment, and that that suspicion was reasonable in all the circumstances.

[50] As was acknowledged by the Supreme Court in Jacques at para. 29, when it cited its decision in R. v. Wilson, 1990 109 (SCC), [1990] 1 S.C.R. 1291, grounds for detention will be context specific. In Wilson, the court observed at p. 1297 that while the facts at issue in that case

might not form grounds for stopping a vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of a rural community. In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random.

[51] Similarly here, without the geographical context, the close proximity of the conduct observed by the officers to the waterway and the border, and the officer’s knowledge that this part of the St-Lawrence River was vulnerable to smuggling activity facilitated by boat drop offs, the grounds for the detention might be insufficient. Given the evidence and context here, however, Mr. Stewart’s detention was not arbitrary. It was lawful. Accordingly, Mr. Stewart’s rights under s. 9 of the Charter were not violated.

Issue #2: Were Mr. Stewart’s rights under s. 8 breached by Cst. Neily because the search of Mr. Stewart’s backpack was unreasonable?

The positions of the parties

[52] While Mr. Stewart takes no issue with the pat-down search performed by Cst. Neily, he argues that the officer had no authority to search the backpack he was carrying. He alleges that the professed reason for the search given by Cst. Neily, that is that the search was necessary to ensure officer and public safety, is gamesmanship. He argues that if the officer had been genuinely concerned about his safety, he would have focused his attention exclusively on the accused, and would not have searched the backpack. He says the backpack could have been secured without a search, and application for a warrant could have been made prior to the search.

[53] The Crown argues that the search was reasonably conducted to ensure officer and public safety. He says that in a dynamic situation, officers are entitled to feel protected. The Crown says that when a police officer forms the belief the accused is in possession of a gun, the officer should be allowed to search for and seize that firearm. The Crown further argues it was impracticable to secure the backpack and get a warrant and simultaneously ensure officer and public safety, because having even one of the two officers at the scene tasked with securing the backpack would have compromised their security and that of the public.

The evidence about the circumstances of the search

[54] There was some variation in the evidence given by each of Cst. Neily and D/Cst. McGillis about the search conducted by Cst. Neily. I prefer the evidence given by Cst. Neily for a number of reasons. Generally, it was clear as each officer testified that Cst. Neily had the better independent recollection of this investigation, which occurred almost four years prior to the officers testifying. D/Cst. McGillis relied heavily upon his notes, and was less precise and thorough in his recollections of events. As Cst. Neily was the driver of their police vehicle, and the lead officer in the investigation, it makes sense that his recollections would be more clear and focused than those of his partner. Further, D/Cst. McGillis testified that everything happened very fast, and he was not sure of the order of events when he went into the garage station store and observed Cst. Neily with Mr. Stewart. I also consider that to the extent that this issue involves explanations by Cst. Neily for his conduct, he is better placed to recall how and why the search transpired.

[55] Cst. Neily gave the following evidence about the circumstances of the search. Following Cst. Neily’s detention of Mr. Stewart in the gas station store, Cst. Neily conducted a pat down search of the accused. In order to facilitate the pat down search, Cst. Neily asked the accused to remove the backpack, which he was wearing on his back. The accused complied. At this point, while Cst. Neily suspected the backpack contained illegal items of some kind, he did not know for certain.

[56] After the accused put down his backpack, Cst. Neily decided to pick it up to move it further away from the accused so that the accused would not be able to access it while Cst. Neily determined what the next step in the investigation would be. He moved it because he did not know what was in it. In picking up the backpack to move it further away from the accused, Cst. Neily observed that it was abnormally heavy. His first thought and instinct were that the backpack contained a firearm. Having formed this belief, he then opened the backpack, and discovered a box of ammunition and a handgun.

[57] Cst. Neily explained his decision to open the backpack in the following way. He said it became clear to him upon picking up the backpack that it contained something illegal. He said he realized when he moved it that it contained a gun, and that “changed everything”. He said he looked into the backpack for safety reasons.

[58] Cst. Neily disagreed that he did not need to open the backpack, and could have left it to be secured by D/Cst McGillis. If this had occurred, he would have been outnumbered by the two accused. He also indicated that he did not feel this course of action was appropriate because he did not know if the firearm was unloaded, and he would not have wanted to “hand it off in an unsafe way”.

[59] Cst. Neily also testified that while he had initially relied upon his authority under the Customs Act, this changed when he picked up the backpack. Upon picking it up, he wanted to open it immediately to determine what it contained.

[60] With respect to whether he thought a warrant was necessary to permit him to search the backpack, Cst. Neily testified that he felt that his belief that he was dealing with a firearm constituted exigent circumstances that justified the search without a warrant. When it was suggested to him that he had always intended to search the backpack, he said that he believed he “would have gotten there” with further investigation. He agreed that he thought s. 99(1)(f) of the Customs Act gave him the authority to search, and that this authority would permit him to search without a warrant. He did not believe this authority gave him the right to search anyone, anywhere, and said that as a designated officer under the Customs Act, he would require reasonable grounds to believe something was being smuggled before a search would be justified. However, he maintained that he conducted the search of the backpack as and when he did to ensure officer safety.

The legal principles

[61] A warrantless search, such as this one, is presumptively unreasonable.

[62] Pursuant to the test in Collins, warrantless searches will be deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable. The Crown bears the burden of demonstrating, on a balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: see Buhay at para. 32, Mann at para. 36, and R. v. MacDonald, 2014 SCC 3, [2014] S.C.J. No. 3 at para. 29.

[63] In this case, the officer who performed the search does not rely on the statutory authority of the Customs Act to justify it. Consequently, the analysis of this issue commences with consideration of whether the search was justified pursuant to the common law: MacDonald at para. 45. The Crown seeks to justify the search of the backpack in this case based on the common law doctrine which permits searches where there is a risk to officer and public safety.

[64] In MacDonald, the Supreme Court of Canada elaborated on the principles that apply in assessing the reasonableness of a “safety search”. It affirmed that while the police have a common law duty to protect life and safety, police powers and police duties are not necessarily correlative. Consequently, police powers are constrained by the requirement of objectively verifiable necessity.

[65] The majority in MacDonald recognized that safety searches “will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react “on the sudden””. It confirmed that even if such exigent circumstances exist, a safety search must be authorized by law: see MacDonald at para. 32. It adopted the Waterfield test which had been used in the court’s previous jurisprudence in this context.

[66] At the first stage of the Waterfield test, the court must consider whether the police action falls within the general scope of a police duty imposed by statute or recognized at common law. At the second stage of the test, the court must inquire into whether the action constitutes a justifiable exercise of powers associated with the duty. For the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty in light of all the circumstances.

[67] While the court stressed the critical importance of a narrow reading of the Waterfield test to avoid violations of the law by police whenever such conduct could be justified by the public interest in law enforcement, it found the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances. It held that “where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search”.

[68] Most critically, the majority in MacDonald held at para. 41 that the power to carry out a safety search “is not unbridled”. It held that

the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” (Mann, at para. 41).

[69] Subsequently, the Court of Appeal in Peterkin discussed MacDonald in considering the lawfulness of a safety search. Writing for the court, Watt J.A. noted at para. 54 the opinion of the minority in MacDonald, which found that the majority had altered the test set out in Mann and “replaced what was in essence a reasonable suspicion standard with one of reasonable belief: MacDonald, at paras. 66-71”.

[70] Watt J.A. further noted the change in language used by the Supreme Court in Mann from that of the majority in MacDonald. In Mann the court held that a search incidental to an investigative detention will be justified where the officer believes on reasonable grounds that his or her own safety, or the safety of others is at risk: Mann at para. 40, Peterkin at para. 44. In MacDonald, the majority held that safety searches are authorized by law only if the officer believes on reasonable grounds his or her safety is at stake and that, as a result, it is necessary to conduct a search: MacDonald, at para. 41, Peterkin at para. 53.

[71] As suggested by Watt J.A. at para. 54,

The minority maintained that although Mann employed the language of “reasonable grounds to believe”, pairing this language with the concept of safety being “at risk” inherently built in the standard of a possibility: MacDonald, at para. 69. By using the language of reasonable grounds to believe a person is armed or dangerous (at paras. 39, 42), and reasonable belief in an imminent threat to safety (at paras. 40, 43-44), the majority replaced what was in essence a reasonable suspicion standard with one of reasonable belief: MacDonald, at paras. 66-71.

[72] The court in Peterkin ultimately held at para. 59 that it did not need to decide whether the decision in MacDonald had “recalibrated the standard to be applied in determining the lawfulness of a safety search” in order to resolve the issue in that case, because the evidence satisfied the test in MacDonald: reasonable belief an individual’s safety is at stake.

The principles applied

1. Did the police conduct fall within the general scope of any duty imposed by statute or recognized at common law

[73] As noted in MacDonald at para. 35, in the context of safety searches, this stage of the analysis is easily satisfied. I find that the police officer acted within the scope of his general duty to protect life and safety: see Mann at para. 40, MacDonald at para. 35. The first part of the Waterfield test is satisfied.

2. Did the police conduct involve a justifiable use of powers associated with their duty

[74] I find that the search of Mr. Stewart’s backpack by Cst. Neily was not a justifiable use of police powers associated with their duty to protect life. I will expand on my reasons for this conclusion momentarily. First, I address the findings of fact that ground my legal conclusion.

[75] I accept the evidence of Cst. Neily that when he conducted the pat down search of Mr. Stewart, he did so because he was concerned about officer and public safety. I accept that he reasonably suspected that Mr. Stewart might be involved in smuggling contraband in the backpack, and he was suspicious that the contraband could include a weapon of some kind. I further find that the officer was the only police officer in the store with the accused, and members of the public were either in the store or free to enter it at any time.

[76] I further accept that when Cst. Neily picked up the backpack to move it, he was doing so to ensure that Mr. Stewart could not access it during his dealings with him because he did not know what was in the backpack. I also accept that upon lifting the backpack, Cst. Neily observed that it contained something abnormally heavy, and that he thought that it contained a gun based on his instincts and experience as a police officer.

[77] However, I am not satisfied that the Crown has proved on the balance of probabilities that the circumstances giving rise to the officer’s subjective belief in the need to search also meet the standard of “objectively verifiable necessity”. The Crown has not proved that the officer’s belief that the backpack contained a firearm, and his consequential belief that safety was “at stake”, was supported by reasonable grounds. As I have held, the officer had a reasonable basis to suspect that the accused was possibly involved in smuggling, and that the backpack possibly contained contraband. I have considered that the officer identified the smuggling of weapons as one of his concerns in support of his detention of the accused under the Customs Act. I have also considered that the bag contained an abnormally heavy item, and that it is this last circumstance which compelled the officer to search the backpack.

[78] I find this evidence falls short of the “objectively verifiable necessity” required to justify a safety search. The weightiness of the object in the backpack, in combination with the other circumstances known to the officer and his own experience with firearms, could reasonably give rise to grounds to suspect the backpack contained a firearm. However, on balance, and in consideration with the totality of the circumstances, the weight of the item alone cannot be said to provide reasonable grounds to believe that the item in the backpack was a firearm, and therefore, that officer or public safety was at stake.

[79] Before leaving this issue, I note that this case is not like MacDonald, Peterkin, or R. v. Le, 2014 ONSC 2033, [2014] O.J. No. 1515 (S.C.J.), where the accused’s movements suggested he was armed, and where the accused’s refusal to answer police questions and/or attempts to flee were factors in finding that the police had reasonable grounds for a safety search. Here, there was nothing remarkable about the manner in which the accused handled the bag that suggested to the police that he was armed and dangerous. There was nothing else about his conduct that led the police to this belief.

[80] In so finding, I have considered Cst. Neily’s evidence, which I accept, that the accused appeared nervous upon being detained and shown Cst. Neily’s police badge. However, Cst. Neily did not identify this as behaviour that led him to the conclusion that the backpack needed to be searched because the accused was armed and dangerous. In fact, he testified that this behaviour led him to believe that the accused might be a flight risk, which prompted him to direct Mr. Stewart towards the back of the store.

[81] While I accept that the accused’s nervousness may have reinforced the officer’s suspicion the accused was carrying something that was illegal, given the totality of the circumstances in this case, the accused’s nervousness upon detention and being shown a police badge do not amount to conduct on his part that suggested he was armed.

[82] The officer was not asked to articulate why he felt a pat down search of the accused was necessary. The extent to which those reasons might inform his decision to search the backpack was left unaddressed on the evidence. Given the totality of the evidence, at most, the objective bases for the officer’s belief that a safety search was necessary in respect of the backpack were that the accused was suspected of smuggling items which could include a weapon, and the item he was suspected of smuggling proved to be heavy. Even allowing for the role of the officer’s experience with firearms in arriving at this conclusion, as I have said, I find this evidence falls short of the objectively verifiable standard required to justify a search of the backpack on the basis of safety.

[83] Since I have found that the search was not a justifiable exercise of police power associated with the duty to protect life, the second stage of the Waterfield test is not satisfied. There is no need to further consider whether the backpack could have been secured prior to a search in order to permit an application for a search warrant.

[84] On a balance of probabilities, I find that the safety search in this case was not reasonable. The search of Mr. Stewart’s backpack violated his rights under s. 8 of the Charter.

Issue #3: Were Mr. Stewart’s rights to counsel breached by Cst. Neily because he did not inform Mr. Stewart promptly of the reason for his detention?

[85] The parties agree that the point of detention for the purposes of analysing the alleged violations under s. 10 of the Charter is the point of detention identified by the officer in his evidence. Cst. Neily testified that the accused was detained inside the gas station store when he told Mr. Stewart that he was being detained under the Customs Act.

[86] The issue I have to decide is whether Cst. Neily provided sufficient information to Mr. Stewart to comply with s. 10(a) of the Charter.

The positions of the parties

[87] Cst. Neily told the accused he was being detained under the Customs Act, and offered no additional information. He testified that at the time he detained Mr. Stewart, his investigation was focused on the backpack, although he could not have told Mr. Stewart precisely what he was looking for at that time.

[88] Mr. Stewart says that the information provided by the officer about the reason for his detention was insufficient to meet the requirements of s. 10(a) of the Charter. He argues that this information was vague, and did not allow him to know the extent of his jeopardy, or to be able to decide whether or not to submit to the detention and to the search that followed. He says he should have been told the real reason for his detention, which was to permit a search of the backpack he was carrying.

[89] The Crown’s position is that telling Mr. Stewart he was being detained pursuant to the Customs Act was sufficient to comply with his s. 10(a) rights.

The legal principles

[90] Section 10(a) of the Charter provides that “[everyone] has the right on arrest or detention to be informed promptly of the reasons therefor.” Individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention: Mann at para. 21.

[91] Section 10(a) of the Charter has a double rationale. First, the right to be promptly advised of the reason for one’s detention is founded on the notion that a person is not obliged to submit to an arrest if she does not know the reason for it. Second, the right under s. 10(a) of the Charter also serves as an adjunct to the right to counsel conferred by s. 10(b). This is because an individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869 at para. 31.

[92] An analysis of a purported s. 10(a) breach centres on the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used by the officer. The question for the court is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to exercise his right to counsel under s. 10(b): Evans at para. 35.

The principles applied

[93] At the time of the detention, Cst. Neily believed the accused was possibly involved in smuggling, and that the backpack the accused was carrying was being used to smuggle contraband. In the circumstances, I find that Cst. Neily should have gone beyond informing the accused he was being detained under the Customs Act. The officer should also have informed Mr. Stewart that he was suspected of smuggling contraband in the backpack.

[94] This information was necessary to permit the accused to make an informed choice about whether to submit to the detention and subsequent search, and whether to exercise his right to counsel. It was also necessary to ensure the accused could obtain legal advice based on an understanding of his potential jeopardy. The information provided by Cst. Neily was insufficient to achieve these objectives underlying the s. 10(a) Charter right. It was the equivalent of telling an accused he was being detained for the purposes of an investigation under the Criminal Code. More specificity is required in order to satisfy the purposes of s. 10(a) of the Charter.

[95] Accordingly, I find that Cst. Neily violated Mr. Stewart’s rights under s. 10(a) of the Charter when he detained him.

Issue #4: Was Mr. Stewart’s right to counsel under s. 10(b) breached by Cst. Niely because he did not inform Mr. Stewart of his right to counsel immediately upon detention?

[96] Insofar as this issue is concerned, as indicated above, the parties agree that the point of detention was when Cst. Neily told Mr. Stewart he was being detained under the Customs Act. However, Mr. Stewart was not advised of his rights to counsel until after his arrest by D/Cst. McGillis.

The positions of the parties

[97] Mr. Stewart argues that his s. 10(b) right was breached because he was not informed of this right immediately upon detention. He says that as a consequence of not receiving timely legal advice, he did not know that he did not necessarily have to surrender the backpack.

[98] The Crown argues that there was no breach of Mr. Stewart’s right to counsel since the lawful detention and search were brief and no longer than necessary “as contemplated in R. v. Mann and other cases”.

The legal principles

[99] The applicable law on this issue may be briefly stated. The rights provided by s. 10 of the Charter are triggered “immediately” upon detention even where that detention is for investigative purposes (see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 2, 37-42 and Grant at para. 58). However, a delay in providing these rights in order to address safety concerns with pat-down or other searches may be justified: see Grant, 2015 ONSC 1646, [2015 O.J. No. 1229 at paras. 104-109, citing, inter alia, R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at pp. 1163-1164; see also R. v. Johnson, 2013 ONSC 3073, [2013] O.J. No. 2431 (C.A.) at para. 42.

[100] The question of when detention occurs within the meaning of s. 10(b) in the context of a detention pursuant to the Customs Act has been considered in a number of cases: see R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495 at paras. 35-38; R. v. Jacoy, 1988 13 (SCC), [1988] S.C.J. No. 83 at para. 14; R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168 (S.C.J.) at paras. 75 and 83; and R. v. Melchior, [2013] B.C.J. No. 815 (Prov. Ct.) at paras. 27-28 and 50-54. These cases have held that because there is a reduced liberty interest and privacy expectation by travellers at the border, the point at which an accused’s rights are engaged under s. 10 of the Charter is not necessarily co-incident with routine screening or detention under the Customs Act.

[101] Cases like this one, where the detention is not at a port of entry, or does not occur in circumstances where the detainee would have a reduced liberty interest and privacy expectation, are unusual. In at least one case involving similar facts, the court held that the accused was entitled to information about the reason for his detention at the point of the initial detention under the Customs Act: see R. v. Leaf, [2016] O.J. No. 1838 at paras. 136 and 146.

[102] The Crown has not argued that at the time of the initial detention under the Customs Act, the accused had a reduced liberty interest or privacy expectation such that the point of detention for the purposes of the s. 10(b) analysis should be fixed at a later point in the officer’s interaction with the accused. Accordingly, the court’s analysis of the s. 10(b) issue is premised on the finding that the detention occurred when Cst. Neily first detained the accused under the Customs Act.

The principles applied

[103] On the facts here, the accused was not provided with his rights to counsel “immediately”. Following his detention, the officer engaged in a pat-down search, and then a search of his backpack. The accused was then arrested at gunpoint, but he was not advised of his right to counsel at this time. It was only when the accused was escorted outside that he was given any information about his right to counsel.

[104] This delay in informing the accused of his right to counsel would have been justified if the delay in doing so was because the involved officers were engaged in addressing safety concerns. Given my findings on the s.8 issue above, this basis to justify the delay is not available. Consequently, I do not find that the delay in providing Mr. Stewart with his s. 10(b) rights was justified.

[105] I find that Mr. Stewart should have been informed of his right to counsel immediately upon his detention. He was not. Therefore, Mr. Stewart has established the police did not provide him with his rights to counsel as required by s. 10(b) of the Charter.

Issue #5: Should the hand gun and ammunition discovered by Cst. Neily in searching the backpack be excluded as evidence pursuant to section 24(2) of the Charter?

[106] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court re-interpreted s. 24(2) of the Charter. The court’s overview as to the nature of the test under that section bears repeating. It held at paras. 67-70:

The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. …

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. 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.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [emphasis added]

[107] The court confirmed that a trial court should consider and balance three lines of inquiry in determining whether evidence obtained in breach of the Charter would bring the administration of justice into disrepute. In doing so, it must take a long-term, forward-looking and societal perspective: see Grant at para. 71. The lines of inquiry 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 adjudication of the case on its merits.

[108] Following consideration of these lines of inquiry, a trial judge must “weigh the various indications”. Ultimately, the balancing inquiry is qualitative in nature and not to be subjected to a mathematical formula. That is, it is not simply a question of whether the majority of the relevant factors favour exclusion or inclusion in a particular case. The ultimate issue is whether, considering all the circumstances, on balance, the admission of the evidence would bring the administration of justice into disrepute: see Grant at paras. 85-86, and 140.

[109] To the extent that a general rule could be formulated, the Supreme Court provided the following guidance in Grant at para. 127: where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable.

[110] The burden of proof is on the accused to establish, on the balance of probabilities, that the admission of the disputed evidence would bring the administration of justice into disrepute: see R. v. Bartle, 1994 64 (SCC), [1994], 3 S.C.R. 173, and R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343 at para. 16.

The seriousness of the Charter-infringing state conduct

[111] Under this line of inquiry, the court must consider the nature of the police conduct that infringed the Charter. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law: see Grant at par. 72.

[112] As the jurisprudence makes clear, there is broad variation in the nature of state conduct resulting in Charter violations. As indicated in Grant at para. 74, at one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute.

[113] Various factors may attenuate the seriousness of police conduct that results in a Charter breach, including “good faith” on the part of police. However, negligence and wilful blindness on the part of police will not be equated with good faith. Deliberate, wilful or flagrant disregard of established Charter standards by police will tend to support the exclusion of the evidence: see Grant at para. 75.

[114] Where non-bodily physical evidence is concerned, the degree to which this inquiry weighs in favour of excluding the evidence will depend on the extent to which the conduct can be characterized as deliberate or egregious: Grant at para. 112.

The principles applied

The breach of Mr. Stewart’s s. 8 rights

[115] With respect to the conduct at issue here, I find that the Charter infringing conduct by the police was at the lower end of the spectrum, and was not the product of a wilful or reckless disregard for Mr. Stewart’s Charter rights. The search cannot be said to have reflected a blatant or callous disregard of the accused’s Charter rights.

[116] In arriving at this conclusion, I consider that the search took place in circumstances of an urgent nature. Police were in a public place, and public and police safety were important considerations. The decision to look into the backpack was made in a dynamic situation that was unfolding quickly. The decision was not the product of measured consideration, but was made in an instant.

[117] I consider too that at the time of the search, the law setting the standard for safety searches in this context was as set out in Mann, which arguably endorsed the threshold of a reasonable suspicion that the accused presented a risk to safety. I also find that the officer’s subjective belief that his safety was at risk further supports a conclusion that he was not acting in a deliberate manner and therefore did not callously disregard the accused’s Charter rights.

The breach of Mr. Stewart’s s. 10 rights

[118] With respect to the conduct of police in breaching Mr. Stewart’s s. 10 rights, I find that the conduct was negligent. However, I also find that the officer did provide Mr. Stewart with some information to explain his detention, and that he gave Mr. Stewart a verbal caution to the effect that he did not have to say anything to him and told him that anything he said would be evidence. This not a situation where the officer wholly ignored his obligations under the Charter.

[119] In view of the conclusion that negligent conduct produced the s. 10 breaches, and given multiple breaches of Mr. Stewart’s Charter rights, on balance, this factor favours exclusion of the evidence.

The second line of inquiry: the impact of the breach on the Charter-protected interests of the accused

[120] This line of inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. 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: Grant at para. 76.

[121] With respect to s. 8 searches, the court observed in Grant that such searches may impact on the protected interests of privacy, and sometimes, human dignity. An unreasonable search that intrudes on an area in which an individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not: Grant at paras. 78 and 113-114.

[122] Grant also confirms that the concept of “discoverability” of the evidence may play a useful role in assessing the actual impact of a breach on the accused’s protected interests. The more likely it is that the evidence would have been obtained in any event, the lesser the impact of the breach: see para. 122.

[123] Several cases from the Court of Appeal have since considered the discoverability of a firearm in a s. 24(2) analysis: see Johnson, 2013 ONCA 177, [2013] O.J. No. 1308 (C.A.) at para. 52, R. v. Kelsy, 2011 ONCA 605, [2011] O.J. No. 4159 (C.A.) at para. 65. The Court of Appeal for Ontario confirmed in Peterkin that the discoverability of the evidence sought to be excluded remains a relevant factor under the s. 24(2) analysis post-Grant: see paras. 69 and 76. While the discoverability of evidence weighs in favour of its admissibility and is relevant to the first two lines of inquiry under Grant, discoverability is not determinative of the Grant analysis: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at para. 54, R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215 at para. 70.

The principles applied

The breach of Mr. Stewart’s s. 8 rights

[124] In Kelsy, the police also unlawfully searched a backpack. The Court of Appeal held that this was a serious intrusion into the accused’s privacy rights, because the backpack contained the accused’s personal papers and her purse: see para. 67. In this case, the backpack did not contain any personal items belonging to anyone. There was no evidence led as to the ownership of the backpack, which had been provided to the accused by his co-accused moments before he entered the gas station and was detained by police.

[125] I find that this was not a search that engaged the highest of privacy interests. This was not a search of the accused’s home, or his person. This search did not invade the accused’s privacy in regards to private information: see R. v. Grant, 2015 ONSC 1646 at para. 145.

[126] I also consider the question of whether the evidence would inevitably have been discovered. I find that the evidence would inevitably have been discovered in this case because the officer had grounds for the search under s. 99(1)(e) of the Customs Act. The test under s. 99(1)(e) of the Customs Act requires only that the officer have reasonable grounds to suspect that the accused might be smuggling in order to “examine the goods and open or cause to be opened any package or container thereof”. For the same reasons indicated in my conclusion under the s. 9 analysis, I find that the officer had grounds to conduct a search of the backpack under the Customs Act. This consideration mitigates the seriousness of the impact of the breach on the accused’s privacy rights.

The breach of Mr. Stewart’s s. 10 rights

[127] The breaches of Mr. Stewart’s s. 10 rights did not have a serious impact on his Charter-protected interests. No statements to police were made by Mr. Stewart. The breaches were not causally connected to the discovery of the evidence, which, as I have set out above, was discoverable in any event: see Peterkin at para. 79.

[128] On balance, this line of inquiry favours admission of the evidence.

The third line of inquiry: society’s interest in adjudication of the case on its merits

[129] As confirmed in Grant at para. 79, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

[130] Various factors are relevant to this line of inquiry. The reliability of the evidence is an important factor. As explained by the Supreme Court, this is because the admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute: Grant at para. 81.

[131] The importance of the evidence to the prosecution’s case is another factor that a trial court may consider, and is related to the issue of the reliability of the evidence. 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: Grant at para. 83.

[132] The seriousness of the alleged offence may also be considered, but this factor has the potential to cut both ways, and may not be of much assistance: see Grant at paras. 84 and 139.

[133] As indicated in Grant, where physical evidence is concerned, reliability issues will not generally be related to the Charter breach. Accordingly, this consideration tends to weigh in favour of admission of the evidence: see Grant at para. 115.

The principles applied

[134] At this stage of the inquiry, I consider the reliability of the evidence and its importance to the Crown’s case.

[135] The handgun and ammunition are real and highly reliable evidence. They are essential to the Crown’s case.

[136] The societal interest in an adjudication of this case on its merits is high. There is a “virtual chorus of cases” under s. 24(2) of the Charter which hold that there is a serious public interest in merit-based adjudications in the cases involving handguns: see for instance R. v. Bashir, 2012 ONCA 793, [2012] O.J. No. 5427 (C.A.), R. v. Wright, 2013 ONCA 778, [2013] O.J. No. 5895 (C.A.), R. v. Williams, 2014 ONSC 3005 at para. 28 and R. v. Grant, 2015 ONSC 1646 at para. 135, where Campbell J. cites R. v. Blake, 2010 ONCA 1 at para. 31; R. v. Jones, 2011 ONSC 4158 at para. 67; Campbell at para. 18; R. v. Duhamel, 2012 ONSC 6448 at para. 85; R. v. Danvers (2005), 199 (C.C.C. (3d) 490 at para. 77; R. v. Allen, 2015 ONSC 6529 at para. 84; R. v. Clayton (2005), 2005 16569 (ON CA), 194 C.C.C. (3d) 289 (Ont. C.A.) at para. 41; aff’d at [2007] S.C.R. 725 (S.C.C.).

[137] This line of inquiry favours admission of the evidence against the accused.

Balancing the Grant factors

[138] Upon considering and balancing the various factors in the three lines of inquiry outlined above, I am satisfied that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would not conclude that the admission of the evidence would bring the administration of justice into disrepute. Indeed, I find the overall repute of the administration of justice, viewed in the long term, would be adversely affected by the exclusion of the evidence.

[139] While each case turns on its own facts, as was observed by the Supreme Court in Grant at para. 86, “patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved”. Consequently, I have considered that similar conclusions have been reached in the following cases dealing with the admissibility of a firearm following a Charter breach: Grant at para. 140; R. v. Peterkin, 2015 ONCA 8, [2015] O.J. No. 100 (C.A.) at paras. 78-79; Kelsy at paras. 60-70; R. v. Barnes, 2015 ONSC 6462, [2015] O.J. No. 6711(S.C.J.) at para 114; Johnson at para. 54; and R. v. Grant, 2015 ONSC 1646, [2015] O.J. No. 1229 (S.C.J.).

[140] I have also considered that other cases post-Grant have excluded a firearm as evidence. In a number of these cases, there is a discernible pattern in the court’s finding that there had been a deliberate or flagrant breach of the accused’s Charter rights. This factor was given significant consideration in the balancing of the Grant factors: see for instance R. v. Abdel-Gadir, 2015 ONSC 1802 at para. 63; R. v. Solomon, [2009] O.J. No. 4578 (S.C.J.) at paras. 45 and 51; R. v. Reeves, 2009 ONCJ 99, [2009] O.J. No. 1076 (O.C.J.) at para. 86; R. v. Smith, [2015] O.J. No. 3265 (S.C.J.) at paras. 275 and 281; R. v. Jinje, 2015 ONSC 2081, [2015] O.J. No. 1590 (S.C.J.) at paras. 55, 61-65; and R. v. Nguyen, [2009] O.J. No. 4564 at para. 227.

[141] As I have indicated, I do not find that the police wilfully or flagrantly breached the accused’s Charter rights. The breaches occurred in the context of a dynamic situation where decisions were made quickly. In the end, there was authority for the search performed by Cst. Neily aside from the safety reasons he cited for its justification, and the evidence seized was discoverable. The handgun and ammunition are reliable evidence, and the public interest in a merit-based adjudication of this case is high.

[142] The handgun and ammunition are admissible at trial.

Issue #6: Are the handgun and ammunition admissible at trial against Mr. Sauve?

[143] Mr. Sauve argues that if either of Mr. Stewart’s s. 8 or 9 Charter rights is breached and the evidence is excluded in the trial against Mr. Stewart, the evidence ought not to be admissible against him.

[144] Given my ruling that the evidence is admissible against Mr. Stewart, there is no basis to exclude the evidence against Mr. Sauve, even if Mr. Sauve is correct in his position that the remedy of the exclusion of evidence under s. 24(2) of the Charter is available to him on the basis of a breach of another individual’s Charter rights (the tenor of the authorities is contrary to this position: see R. v. Pugliese, 1992 2781 (ON CA), [1992] O.J. No. 450 at paras. 16-21; R. v. Muller, 2011 ONSC 4892, [2011] O.J. No. 3971 at paras. 91-2, overturned on other grounds 2014 ONCA 780, [2014], O.J. No. 5327 (C.A.); R. v. Ramos, 2011 SKCA 63 at paras. 21-23; R. v. Sandhu, 1993 1429 (BC CA), [1993] B.C.J. No. 1279 (B.C.C.A.) at paras. 9-27.)

[145] I would add, however, that even if it could be said that Mr. Sauve’s s. 9 rights were breached because the police relied on the fruits of an illegal search of another individual to ground his arrest, I would nevertheless admit the evidence obtained in Mr. Sauve’s trial as well.

[146] With respect to the first line of inquiry on the Grant analysis, the seriousness of the Charter-infringing state conduct, my conclusion with respect to this factor with respect to Mr. Sauve differs. This is because his arrest flowed from the discovery of the firearm, which I have found was not the result of a wilful Charter breach, and was not linked to any evidence obtained following the negligent breach of Mr. Stewart’s s. 10 rights. Further, there was nothing in the manner of Mr. Sauve’s arrest which would compel a different characterization of the police conduct that resulted in the breach of Mr. Stewart’s s. 8 rights. I find this factor favours inclusion of the evidence with respect to Mr. Sauve.

[147] In regards to the second line of inquiry, the impact of the Charter-protected interests of the accused, there is nothing in the facts surrounding the arrest of Mr. Sauve which would compel a different conclusion with respect to how this factor is assessed in his case. The discoverability of the evidence would have ultimately led to his arrest on constitutionally sound grounds, and supports the admission of the evidence.

[148] Insofar as the third line of inquiry is concerned, society’s interest in the adjudication of the case on its merits, for the same reasons given in respect of the case against Mr. Stewart, this line of inquiry favours admission of the evidence against the accused. Similarly, and for the same reasons articulated with respect to Mr. Stewart, a balancing of all the Grant factors favours the admissibility of the evidence.

Madam Justice Laurie Lacelle

Released: June 17, 2016