CITATION: R. v. Bielli, 2016 ONSC 6866

COURT FILE NO.: CR-15-40000270-0000

DATE: 20161104

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Henry Poon, for the Crown

Respondent

• and -

ANDREW BIELLI

Kim Schofield, for the Defendant/Applicant

Defendant/Applicant

HEARD: September 13, 14, 15, 16 and 19, 2016, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Charter, ss. 8, 9, 10(a) and (b), and 24(2)

[1] The Applicant is charged with conspiracy to commit an indictable offence, possession of proceeds of crime exceeding $5,000, committing a criminal offence for the benefit of a criminal organization, and two counts of possession of the proceeds of bookmaking exceeding $5,000, contrary to ss. 465(1), 354(1), 467.12, and 354(1) of the Criminal Code[^1], respectively.

[2] On November 30, 2012, the Applicant was stopped by police while driving westbound on Highway 401, not far from Guelph, Ontario. He was detained, his vehicle was searched, and various pieces of property were seized. In this motion, he seeks to exclude the evidence seized during his road-side detention on the basis that his rights were violated under ss. 8, 9, 10(a) and (b) of the Canadian Charter of Rights and Freedoms[^2].

The Facts

[3] The investigation into the Applicant arose as part of Project O’River, a police investigation into a criminal organization operating in Ontario and unauthorized, illegal gambling both online and in the city of Toronto. The Applicant Andrew Bielli was one of the subjects of the investigation, and Det. Kevin Leahy was one of the investigating officers with the Combined Forces Special Enforcement Unit (CFSEU).

[4] In overview, the Platinum SB (Sports Betting) organization operated a betting website. It maintained accounting records of wins, losses, commissions, and accounts payable, had a network of dozens of betting agents or ‘bookies’, and collected commissions from the middle management ‘super agents’ for the benefit of the top level of the organization. The Applicant is alleged to have been one of those collectors for the top level of the Platinum SB organization.

[5] The facts that gave rise to the detention of Mr. Bielli and the search of his vehicle emerged principally from the testimony of Det. Leahy, and Police Constable (P.C.) Joe Brisebois. They both testified at a discovery hearing in the Ontario Court of Justice and at the voir dire before me. The facts also emerge from their memobook notes, from the Operational Plan that was developed for the police scenario to detain and search Mr. Bielli, and from numerous police Surveillance Reports. To understand the scope of this investigation into all the persons of interest who were ultimately arrested and charged, it will suffice to say that the Police Synopsis of the Facts totals over 200 pages. As such, to understand the context of the facts relating to Mr. Bielli’s circumstances, it is necessary to summarize the facts but in some detail.

[6] Det. Leahy was the lead investigator for the project. He reported to Det. Inspector Andrew Karski. Det. Leahy was a member of the Toronto Police Service seconded to the CFSEU, a joint forces unit. Project O’ River commenced in October 2011, and the Applicant soon became a subject of the investigation. Det. Leahy described his findings:

My belief in the middle of November, 2012, is that Mr. Bielli was a central figure within the Platinum Sports Book criminal organization. And that he was making collections from various bookies in relation to the different packages that Platinum Sports operated.

It was my belief that there were a number of different cells of bookies with different bookie packages, with – with a number of bettors underneath them. And that Mr. Bielli was meeting with the heads of these packages, or the designate of the heads of those packages to reconcile debts owed to either the bookies or Platinum Sports.

[7] Det. Leahy described his grounds for this belief:

Several days of surveillance where Mr. Bielli was observed meeting with unknown males and known males for brief periods of time. At certain times, surveillance teams were able to observe the exchange of packages.

On one occasion, the officers did actually observe the exchange of cash being made between Mr. Bielli and one of these members.

The report stated that cash was observed being exchanged.

Early on in the project, there was an undercover officer that was attending a gaming house at 1300 Finch Avenue West. That officer was able to obtain an account on a website called Big Ben Sports. Through that officer’s interactions with the members of that club... Jim Lucki was identified as the owner of Big Ben Sports, this website. It was an illegal gaming website that was facilitating bookmaking activities and illegal gaming on sports activities. As part of our authorizations, we did covert entries into Mr. Lucki’s residence... installed software on his computer and we were able to grab snapshots of his bookkeeping records. The undercover officer was able to identify his [own] account and also explain what the other account numbers referred to on those pages.

I’d also had information from a source, informing me that Big Ben Sports was operated underneath Platinum Sports and Platinum Sports was running Big Ben Sports. That Marty Spruce was doing the collections for Platinum in regards to Big Ben Sports. As the investigation commenced, it became obvious to us that Marty Spruce had substance abuse issues. And it was our belief that he had been removed from making collections, most likely because of his abuse issues...

It was at that point that surveillance members began to see Mr. Bielli meeting up with vehicles that Marty Spruce had previously met with. Some of those people, I believed, had backgrounds in relation to gaming offences. Some of those vehicles – registered owners of those vehicles were mentioned in documents seized as a result of the 2010 York Regional Police arrest for bookmaking offences. Where one of the six people charged pled guilty and charges against [the Applicant] were withdrawn. However, he was associated to that person involved in Platinum Sports book. So, all this was the basis for forming my grounds that Mr. Bielli was involved in illegal game making. And was making collections on behalf of the Platinum Sports book criminal organization. Mr. Bielli was also observed meeting with Mr. Lucki on a couple of occasions. On one of those occasions a package was seen being transferred between the two, Mr. Bielli and Mr. Lucki.

Through intercepts, we had learned that the Steel group was going to a baseball game. And intercepts indicated that some of the big Platinum guys would be at this baseball game. Mr. Bielli, Mr. Thompson and Marty Spruce were observed at this baseball game.

And it was my belief that they were “the big Plat guys” referred to [in the intercepts].

[8] Det. Leahy also summarized the surveillance observations leading up to the planned roadside stop:

It shows Mr. Bielli doing brief meets with people in parking lots. ... Driver door to driver door. Very short meets. And vehicles leaving and other vehicles coming in and meeting.

Exchanges were presumed to have happened. Just given the difficulties of surveillance. And the meets were very consistent with meets being done by the undercover officers, as well, when they were doing payments.

There were a couple of meets where packages were seen. But the vast majority were just brief door-to-door meets.

[9] Det. Leahy’s testimony was corroborated by the Surveillance Reports.

[10] The Applicant was seen meeting with subjects of the investigation on a number of different dates. For example, on Friday, February 3, 2012, two days before the annual Platinum SB party, the Applicant met with Martin Spruce, who then drove to the Le Parc Conference Centre, site of the annual party. The Applicant’s car was also seen parked close to Spruce’s car at the Conference Centre that day.

[11] Surveillance of Martin Spruce, early in the investigation, had shown the pattern of brief meetings that was also later seen in the Applicant’s conduct.

[12] Later surveillance suggested that the Applicant had taken over Spruce’s role in weekly meetings with Platinum SB agents or ‘super agents’.

[13] Moving to the summer of 2012, the entire investigation continued but was coming towards the inevitable “take-down day”.

[14] All of the surveillance and the other fruits of the investigation process, including the wiretaps, led the police to develop the operational plan they deployed here. The observed brief meetings of the Applicant with other persons, was consistent with the experience of the undercover police officer’s weekly meetings with a Platinum SB agent for payment of his winnings and losses on the Platinum SB sports betting website. The operational plan was developed in order to seize the monies believed to be transported by Mr. Bielli because of a fear of losing that important evidence while awaiting the anticipated final takedown at the 2013 Super Bowl party.

[15] The Operational Plan stated that the plan did not rely on judicial authorization, but that officers “are relying on the 2011 decision in the Ontario Superior Court of Justice ... of R. vs. Dibble.”

[16] Before the scenario of a search incident to arrest had been developed, Det. Leahy had earlier considered applying for judicial authorization by way of a General Warrant under Criminal Code, s. 487.01. He consulted with Crown counsel on that possibility, and was advised that it was not feasible:

... we had asked whether we could type a general warrant to come up with an excuse for a search of Mr. Bielli’s vehicle under the guise of a general warrant. He [the Crown] told us that was not something you could do because the accused would not know the full jeopardy of the circumstances.

He said a Judge would not authorize a warrant in that particular scenario because Mr. Bielli would not know the full jeopardy of the stop.

[17] Det. Leahy explained that judicial authorization was not pursued once the grounds for a lawful search incident to arrest became apparent to him:

[A couple of weeks later] it became obvious Mr. Bielli was arrestable for the offence. He’d be arrested, and the car would be searched incident to arrest and you wouldn’t need a warrant.

[18] At a team meeting on November 27, 2012, Det. Leahy raised the possibility of arresting the Applicant on the following Thursday (the Applicant’s usual collections day). Det. Leahy’s expectation was that the Applicant would be in possession of proceeds of crime – gambling losses paid by bettors to their Platinum SB agents or ‘bookies’ and collected from the agents by the Applicant. Det. Leahy discussed this with his superior officer, Det. Inspector Karski.

[19] Det. Leahy met with Det. Inspector Karski on November 28 and discussed his plan to “arrest and release” the Applicant without disclosing the ongoing Project O’ River investigation of the Platinum SB organization. The plan was based on past surveillance of the Applicant’s Thursday routine of driving to brief meetings with persons believed to be Platinum SB agents or ‘bookies’, some of them identified from a 2010 investigation of persons involved in the Platinum SB organization. The Applicant had been seen attending these meetings with his laptop computer and duffel bags, and had been seen receiving packages or bags, and cash, on at least one occasion. After these Thursday meetings, he typically stayed overnight at the Monte Carlo Inn in Vaughan before driving home to London the next day.

[20] Det. Leahy’s plan was to stop the Applicant en route back to London, after his weekly collections in the GTA, purportedly under the Highway Traffic Act[^3] (HTA). Det. Leahy testified that he had reasonable grounds to arrest the Applicant for criminal organization-related gaming offences, but this was not to be disclosed to the Applicant, in order to protect the confidentiality of the ongoing police and wiretap investigation. The uniform officers were to stop the vehicle under the HTA if an offence were observed, or in the alternative, to advise the Applicant that they wanted to check his driver’s licence. After the licence check, the officers were to advise the Applicant that they intended to search his car for contraband because the licence check had revealed OPP information advising of his association with the Hells Angels motorcycle gang.

[21] Before any search, the officer was to advise the Applicant of his right to counsel, caution him as to his right to remain silent, and to facilitate contact with counsel if requested. The officers were to refrain from questioning the Applicant about any evidence that was seized and to advise him not to say anything until he had spoken with counsel. The Applicant was to be given a receipt for any property seized (such as cash, cell phones, and a laptop computer), and the contact information for Det. Sgt. Anne Goodwin of the OPP Asset Forfeiture Unit. The Applicant was to be cautioned that he would be arrested for obstructing police if he resisted the search of his car.

[22] The object of the search of the Applicant’s car was to obtain evidence relevant to the O’ River investigation, including cash, cell phones, a laptop computer, contact numbers and nicknames of targets, names of others involved, and possibly, accounting sheets documenting bets placed with the Platinum SB organization. Such accounting records had been seized in the 2010 arrests of some of the same people under investigation in Project O’ River.

[23] Counsel for the Applicant claimed that that Det. Leahy met with Crown counsel to discuss “the pretense of doing a vehicle stop ... under the authority of the Highway Traffic Act.” While he did meet with Mr. Sabadini, to the contrary, Det. Leahy testified that the meeting actually concerned the possibility of obtaining a general warrant authorizing what would otherwise have been an arbitrary detention. The discussion did not touch on a stop under the HTA. Mr. Sabadini advised that such a warrant could not be obtained because the target, Mr. Bielli, would not know or be advised of the actual jeopardy he faced.[^4] Det. Leahy, in fact, accepted Crown counsel’s opinion and did not pursue a general warrant.

[24] As he saw it, Det. Leahy’s authority, for the pretext traffic stop and search, was the judgment of this court in R. v. Dibble.[^5] Dibble involved a ruse traffic stop in order to search for drugs without revealing the true grounds for the detention. The court found, there, that the detention and search were lawful, but found a breach of s. 10(a) of the Charter because the accused had not been informed of the jeopardy he faced when he was detained.

[25] Det. Leahy’s understanding of that case was that the “breach was found to be reasonable” and the “search lawful”, as the police had grounds for arrest and could search the vehicle incident to arrest, citing R. v. Caslake.[^6] The legal analysis in Dibble is considered below, but Det. Leahy’s understanding of the judgment is part of the factual context for what followed. Indeed, he provided copies of the judgment to the other officers involved in carrying out the plan, including the OPP officers who would detain the Applicant at the roadside. He wanted all of them to be familiar with its contents.

[26] Det. Leahy testified as to his understanding of Dibble. In his view, that decision authorized his actions and provided the basis for the ruse that was used as an excuse for the HTA stop of Mr. Bielli’s vehicle. A similar ruse was used in that decision, where police informed an accused that he was being stopped to search for a radar detector device, when there was other contraband that was the focus and real purpose of the stop. Det. Leahy believed that that case authorized the use of the ruse.

[27] The next day, November 29, 2012, having received approval from Det. Inspector Karski to proceed with the plan, Det. Leahy attended the Port Credit OPP station and briefed P.C. Brisebois and Detective Constable (D.C.) William Lee on the plan. He advised them that he had grounds to arrest the Applicant for gaming and criminal organization offences, but that to protect the confidentiality of the investigation, he did not want to arrest the Applicant at that time. Instead, he asked the officers to purport to stop the Applicant under their HTA powers, and not to inform the Applicant of the true reason for his detention, that is, an arrest on reasonable grounds to believe that he had committed indictable gaming and criminal organization offences.

[28] Det. Leahy further instructed the officers that they were to advise the Applicant of his right to counsel and right to remain silent, and that they were not to question him, and were to facilitate contact with counsel on request. Det. Leahy emphasized his instruction that the Applicant should not be questioned because he would not know the true jeopardy he was facing in relation to gaming and criminal organization offences. In the event that cash was located, Det. Leahy instructed that the Applicant should then be advised he was under investigation for possession of proceeds of crime, and should again be advised of his right to counsel and be permitted to contact counsel again if he wished.

[29] Det. Leahy received further information concerning the Applicant, later that afternoon. He learned on the day before the roadside stop that the Applicant drove from London to the GTA. He had stopped for two minutes on the access ramp to Highway 401, then drove along the 401 at about 130 KPH, until he cut across 3 lanes of traffic to exit the highway, frustrating continued surveillance.

[30] He was next seen parked at a Tim Horton’s coffee shop at Weston Road and Highway 407, for a brief driver’s door to driver’s door meeting. Then the Applicant drove to Pine Valley Drive to meet with a person at the same location where he had attended on November 27. Next, the Applicant’s car was seen, unoccupied, parked outside a bar in Markham. The Applicant was next seen outside the car, opening and closing the trunk of his car, before driving away. He drove to the Monte Carlo Inn in Vaughan, where he spent the night, after carrying a duffel bag from his trunk into the hotel. This duffel bag was seized from the trunk of his car the next day, and was found to contain a large volume of cash.

[31] The next morning, after leaving the hotel at about 10:00 a.m., the Applicant drove to the Colossus Centre for a brief driver’s door to driver’s door meeting with one person. He then headed west on the 401 towards his unexpected meeting with OPP officers. The Applicant exited the 401 at Guelph Line and was observed driving to a strip plaza on a side street not far from the 401, where he was seen one minute later walking back to his car. Police did not observe what he did during that brief stop, before returning to the highway 401 westbound, though it was suggested in cross-examination that he had gotten off the highway to visit the clinic of a friend, very close by, and to use the washroom. He was off the highway, however, for less than ten minutes.

[32] Det. Leahy was kept advised of events as they unfolded on November 30. He received a request for the phone number for the Applicant’s lawyer, James Lockyer, and detailed another officer at the office to provide it to D.C. Lee at the roadside, with P.C. Brisebois, and the Applicant now under detention. Det. Leahy was advised that the officers had seized bundles of cash, a laptop computer, USB data keys, and four cell phones. He was later advised that the Applicant had been released with no charges, and had been given a receipt for the property taken from him.

[33] What actually happened at the scene, as Mr. Bielli’s vehicle was stopped, was related in the evidence of P.C. Brisebois and D.C. Lee. P.C. Brisebois was the OPP Constable tasked with stopping the Applicant under the ruse of an ordinary HTA traffic stop. He made notes in his standard memobook, recording the event as it purported to be a traffic stop and a search based on information that the driver was associated to the Hells Angels. The officer also kept separate Project notes in another book. Those notes recorded the earlier briefing and the true grounds and purpose of the stop, with reference to Dibble as “lawful authority” for the search.

[34] P.C. Brisebois had been briefed on the plan at the Port Credit OPP office the afternoon of November 29, 2012, by Det. Leahy. His backup officer, D.C. Lee, who was to attend the ‘traffic stop’, was also present for the briefing. P.C. Brisebois reviewed the Operational Plan and noted the details, including his demand for the driver’s licence and ownership and insurance papers. He was to return to his cruiser to check the driver’s documents, then return to the Applicant’s car and instruct him to wait in the police cruiser while the officers searched his car for contraband, supposedly because of “his association with the Hells Angels”.

[35] P.C. Brisebois’ instructions at the briefing included advising the Applicant of his right to counsel and his right to remain silent, and to facilitate access to counsel; D.C. Lee would have a cell phone available for that purpose if needed. Det. Leahy provided the Dibble judgment at the briefing and asked the officers to review it. P.C. Brisebois read the judgment, and noted for “lawful authority refer to R. v. Dibble.” If Mr. Bielli resisted, or asked if they had a warrant, or said they were not allowed to do what they were doing, the plan was then to tell him he would be arrestable for obstructing justice. The plan was that that suggestion would likely assist Mr. Bielli in deciding to comply with what was going on or become more cooperative. However, the officers were also told that if Mr. Bielli simply rolled up the windows of his car and refused to comply and drove away, they were not to pursue him.

[36] The next day, November 30, P.C. Brisebois met with D.C. Lee in the GTA. He was aware that Det. Leahy had reasonable grounds to arrest the Applicant for illegal gaming, but that those grounds were not to be disclosed to the Applicant. P.C. Brisebois noted, “I am not to probe Bielli with questions re the money, as he is unaware of the project.”

[37] P.C. Brisebois took up his position on Highway 401 westbound, east of Guelph Line, after D.C. Lee advised him that the Applicant was en route in that direction. At 10:41 a.m., he saw the Applicant’s black Cadillac, with licence plate BKHT 901, passing other cars at high speed westbound on the 401. P.C. Brisebois pulled in behind to monitor the speed, estimated at 130 KPH, but the Applicant abruptly passed from the middle lane to the exit at Guelph Line, leaving the highway. P.C. Brisebois continued for a little distance and pulled over to await the return of the black Cadillac.

[38] At 10:48 a.m., when P.C. Brisebois again saw the Applicant’s Cadillac, he followed and signaled with his lights for the driver to pull off the highway, which the Applicant did. He told the Applicant that he had stopped him because of his speeding, abrupt lane change, and quick exit, which raised suspicion. He took the Applicant’s licence, ownership, and insurance documents to his cruiser. His check of those records showed that the Applicant, of London, Ontario, was flagged for potential violence and association with the Hells Angels. He advised D.C. Lee of the stop and awaited his arrival for backup.

[39] At 11:03 a.m. D.C. Lee arrived, and P.C. Brisebois advised the Applicant that he was placing him under “investigative detention” due to his affiliation with the Hells Angels, in order to search his car “for contrabands and weapons”. The Applicant, knowing his rights as a citizen, replied, “You need a warrant”. In accordance with the operational plan, P.C. Brisebois told him that his choice was to submit, or to be arrested for obstruct police. After a period of discussion, the Applicant co-operated and was handcuffed to his front and placed in the police cruiser after a pat-down search.

[40] At that time, 11:15 a.m., P.C. Brisebois read the Applicant his right to counsel and caution as to his right to remain silent. He understood, declined to say anything, and asked to speak with his counsel, Mr. Lockyer. D.C. Lee had counsel on his phone at 11:22 a.m., and the Applicant then spoke with his counsel, in private in the police cruiser, for close to 20 minutes. P.C. Brisebois spoke briefly with the Applicant’s counsel, providing the same information that he had given to the Applicant – that the traffic stop was for speeding and an unsafe lane change, and that the search was to look for contraband and weapons, based on “affiliation with the Hells Angels.”

[41] P.C. Brisebois testified that his lawful authority to search the Applicant and his car was “incident to arrest”, based on Det. Leahy’s instruction that the police did have reasonable grounds to arrest the Applicant for possession of proceeds of crime. After the discovery of a large volume of cash in a duffel bag in the trunk of the car, and further to the operational plan to portray this as a merely fortuitous discovery pursuant to a traffic stop, P.C. Brisebois then called the OPP Asset Forfeiture Unit for instructions. He spoke with Det. Sgt. Goodwin within the hearing of the Applicant.

[42] At 11:56 a.m., P.C. Brisebois gave further advice to the Applicant that he was now under investigation for possession of proceeds of crime, and in view of this further jeopardy, again advised him of his right to counsel and his right to remain silent. Although defence counsel claimed that after the discovery of the cash in his car, the officer maintained the ruse during the second call with Mr. Lockyer, I find that after the discovery of the cash, the Applicant was instead advised that he was under investigation for possession of proceeds of crime. That was indeed the very offence that was under investigation. That accurate information was provided to the Applicant and to counsel, Mr. Lockyer, when P.C. Brisebois called Mr. Lockyer the second time at 12:08 p.m., so that the Applicant could receive advice (in private) on his new jeopardy for possession of proceeds of crime. P.C. Brisebois also gave the Applicant the contact information for Det. Sgt. Goodwin of the Asset Forfeiture Unit so that he could follow up on the cash seized. From that second detention onward, until he was released without any immediate charges, the Applicant was under detention for investigation of proceeds of crime.

[43] After the discovery of the cash in the duffel bag (and after the Applicant had received advice from counsel), P.C. Brisebois did ask the Applicant a couple of questions, which the Applicant declined to answer. The officer asked (contrary to the operational plan) about the origin of the money and the total sum of the money, as he reviewed with the Applicant the inventory of items seized. He then asked about the Applicant’s driving on the highway.

[44] The search of the Applicant and his car resulted in the seizure of “a stack of cash” in the Applicant’s pocket, “a large sum of money in a grey duffel bag” (eight bundles) in the trunk of the car, two “stacks of money... mainly 100’s” in the back seat, a laptop computer, and several cell phones, among other items. The Applicant was given a receipt for the items seized, and signed a copy.

[45] The Applicant was released at the roadside at 1:48 p.m., and drove away with no cash or cell phones left in his possession. The cash seized, later determined to total $74,835, was not returned to him, and he was later charged with possession of proceeds of crime in relation to that cash.

[46] Whether the Applicant was lawfully searched incident to arrest, or unreasonably searched during an arbitrary detention is, of course, an issue of law that I address in my analysis that follows, but certainly Det. Leahy’s intention in directing the stop and search is a relevant consideration in deciding that issue. Det. Leahy testified to his understanding that the Applicant was to be “arrested” – but without words of arrest being uttered, and the words, “You are under arrest”, were never spoken to him.

[47] However, everything else was treated as though Mr. Bielli was under arrest. As soon as he was told the reason for his stop, that he was being detained, he was given his right to counsel via the chance to speak to his lawyer, which he did. Specific instructions were given to the officer doing the search that once money was located, they were to stop their search. He was not to be permitted to say anything that might further incriminate him. They were to come back to Mr. Bielli and advise him that he was now being investigated for proceeds of crime. He was, again, to be given his right to counsel, and afforded the right to speak to a lawyer a second time, if he wished to: a right that Mr. Bielli did exercise a second time as well.

[48] When questioned about the authority to search, Det. Leahy responded as follows:

Q. What is your lawful authority to search?

A. We can search incident to arrest.

Q. But he’s not arrested?

A. He was arrested. In – in – the intent was to arrest him that day.

A. And search the car incident to that arrest.

Q. Okay. But you understand that he wasn’t arrested...

A. Well, I would disagree with you there. I would say that the words, “You are under arrest” were never uttered that day.

A. However, everything was progressed and done in a way that he was arrested. Other than the words, “You are under arrest.” ... Nothing would have changed in that scenario other than “You are under arrest for possession of proceeds.”

[49] In Det. Leahy’s mind, Mr. Bielli was under arrest at the time he was detained, even though he was not told formally that he was under arrest. In light of the existence of that state of arrest, Det. Leahy believed he or the attending officers were entitled to search incident to arrest. The Applicant contends that Det. Leahy ultimately conceded that he knew that the operational plan was not lawful. However, this is not an accurate reflection of what Det. Leahy actually said. He did not concede the ruse plan was not lawful, but rather that “he knew that the applicant would believe the operational plan was not lawful” (emphasis added).

[50] Mr. Bielli was finally arrested just over two months later on February 3, 2013, at a Super Bowl party at Le Parc Conference and Banquet Centre. A search warrant was executed the next day on the Applicant’s hotel room located at the Deluxe Suites in Vaughan. Police seized $4,300 in cash, 14 cell phones, 6 computers, 2 thumb drives, a pager, and numerous documents. On March 5, 2013, the police executed a second search warrant in relation to the Applicant, at his residence, 470 Second Street, apartment 29, in London.

Issues and Analysis

[51] On this application, Mr. Bielli submits that his rights under ss. 8, 9, 10(a) and (b) of the Charter were breached during the course of his vehicle stop and search on November 30, 2012.

[52] Sections 8, 9, and 10(a) and (b) of the Charter read as follows:

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

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

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

[53] Before proceeding into the analysis here, it is important to note that counsel for the defence concedes, as the evidence plainly shows, that at the time of his detention, there is no question whether police had reasonable and probable grounds to arrest Mr. Bielli for possession of proceeds of crime and the other illegal gambling offences with which he was ultimately charged. He could have been lawfully and formally arrested on November 30, 2012. It was only because the police needed to obtain and not lose the evidence they knew was being carried in Mr. Bielli’s car and because they did not want to compromise the Project O’River investigation that the ruse under Dibble was used, rather than Mr. Bielli formally being arrested and searched. As it turned out, the investigation carried on for two further months before the February 2013 Super Bowl party, when arrests were planned to be made, and when Mr. Bielli was actually formally arrested and charged.

[54] On the other hand, for his part, Crown counsel concedes that the use of the ruse in this case necessarily meant that Mr. Bielli was not told that he was actually under investigation for the illegal gaming and gambling offences, in addition to possession of proceeds of crime. That failure, necessitated by the requirement to protect the ongoing investigation, necessarily resulted in a breach of Mr. Bielli’s s. 10(a) Charter rights to promptly be advised of the grounds for detention or arrest. However, Crown counsel dismisses the suggestion that Mr. Bielli’s ss. 8, 9 or 10(b) rights were violated.

The Detention, the Ruse, and Search Incident to Arrest

[55] Defence counsel argued on this application that Mr. Bielli was arbitrarily detained when his vehicle was stopped, not told why he was stopped, and then, after initially refusing to comply, handcuffed and searched illegally. Defence counsel says that regardless of the claimed legality of the detention, and regardless of the presence of reasonable and probable grounds to arrest, Mr. Bielli was never “arrested” until he was formally arrested two months later on February 3, 2013. As such, the Applicant claims the search was not incident to a lawful arrest, and as such, was an illegal and warrantless search that violated Mr. Bielli’s ss. 8 and 9 Charter rights. In contrast, Crown counsel contends that the Applicant was in fact and in law “arrested” when his car was stopped, and that he was searched incident to that lawful arrest on reasonable and probable grounds.

[56] First, I find no basis to conclude that there was a violation of Mr. Bielli’s s. 9 rights against arbitrary detention. There was no doubt on the evidence that at the time that he was detained on November 30, 2012, the police had more than enough reasonable grounds to arrest Mr. Bielli for not only possession of proceeds of crime, but also the other illegal gambling and conspiracy offenses with which he was ultimately charged.

[57] In R. v. Simpson, Doherty J.A. warned against permitting investigative or street detentions to become in effect, “non-stationhouse incommunicado arrests” (emphasis added; citations omitted).[^7] Simpson establishes that to constitutionally detain someone for investigative purposes, the police require an “‘articulable cause’” that the suspect was engaged in criminal behavior.[^8] This expression was reworded in R. v. Mann to become “reasonable grounds to suspect” that the suspect was engaged in a criminal act:[^9]

To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. … I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [Emphasis added.]

[58] While the Applicant submits that his rights under s. 9 were breached, he concedes that the police had reasonable grounds to suspect that he was involved in illegal gaming. That said, he claims their conduct went well beyond what was theoretically permitted, and that the Applicant was held “incommunicado” for three hours without being told the real reason for his detention, save for a “misleading pantomime of his section 10(b) rights.” To my mind, however, that is not an accurate reflection of what occurred.

[59] I accept that Mr. Bielli was physically searched and that his car was searched without the presence of a warrant. He was certainly handcuffed and made to sit in the back of a police scout car for several hours. He was admittedly threatened with arrest for obstruction of justice if he resisted. He was never told why he was pulled over, detained and searched. However, the fundamental factual reality is that Mr. Bielli had been under investigation and had been under observation for many months.

[60] There is no question that police had reasonable and probable grounds to arrest Mr. Bielli for a variety of offences, well before he was pulled over on Highway 401 near Guelph on November 30, 2012. The police could reasonably detain Mr. Bielli for investigative purposes because it was far from arbitrary, and the police had reasonable grounds to suspect in all the circumstances that the individual in question was connected to a particular ongoing course of criminal conduct, and that such a detention was necessary. Moreover, he was not held incommunicado. Indeed the police took special steps to ensure he would be able to obtain legal advice as soon as he was detained, and Mr. Bielli exercised that right on 2 occasions that day for a total of almost 30 minutes.

[61] The second question relative to his detention is whether the use of the ruse, in this case, was a legitimate policing technique. The police in this case relied on the judgment in Dibble as lawful authority for a pretext traffic stop to conceal the true grounds for the Applicant’s arrest.

[62] In Dibble, Croll J., of this court, held that the search was reasonable, as it was based on reasonable grounds to arrest, notwithstanding that what the police had told the accused was not a proper basis for the search. There was no s. 8 Charter violation.

[63] The court went on to consider the police failure to inform Dibble of the true reason for his detention, in breach of Charter ss. 10(a) and (b). Croll J. held that the police had a “legitimate interest” in using a ruse to conduct the search: to protect the ongoing investigation.[^10] The court also noted that the police had not taken advantage of the situation by conscripting the accused against himself by attempting to elicit evidence from him without the benefit of full information and legal advice. Accordingly, Croll J. held that “the breaches were minor and made in good faith”:

In this case, the police did not comply with the section 10 requirements because they did not want to jeopardize their ongoing investigation. They had a legitimate concern that if the true nature of the vehicle stop was revealed, it could alert Mr. Dibble to the fact that the police had taken steps to crack the trafficking, and that that information could potentially reach Mr. Vivar and his associates. ... In my view, given the nature and critical stage of the investigation at the time of the stop, the police had a legitimate interest in seizing the cocaine being transported out of the city by Mr. Dibble by making him believe that it had been discovered by happenstance by two officers conducting a traffic stop.

I am satisfied that while the police breached their section 10 obligations, they did so to protect the investigation and not to intentionally circumvent Mr. Dibble’s section 10 rights and conscript him against himself. Neither Officer McNaughton nor Officer Hagerman asked Mr. Dibble or the driver Mr. Sicard any questions about the drugs. They did not take any steps to take advantage of Mr. Dibble’s lack of access to counsel; their goal was to intercept the drugs without revealing their source of knowledge about the drugs. Overall, the police actions on the stop and arrest did nothing to undermine Mr. Dibble’s rights. In my view, given the nature of the ongoing investigation, the breaches were minor and made in good faith. The analysis on the basis of this factor militates against exclusion of the evidence.[^11]

Although the court found a breach of ss. 10(a) and (b), the evidence was not excluded under s. 24(2). I consider the implications of the ruse from a s. 24(2) perspective later in these reasons.

[64] More recently, a pretext traffic stop was considered by Campbell J. in R. v. Grant (S.C.J.). Police had grounds to believe that an occupant of a motor vehicle was armed with a firearm; they wanted to safely stop the car and remove the occupants without risk of flight or gunfire. To do so, the officer in charge directed officers to make a traffic stop under the HTA. Once the car was stopped, police conducted a de facto arrest, removing all persons from the vehicle without telling them the true reason for their detention. The occupants of the car were told only of the HTA investigation (for a seatbelt infraction). Campbell J. narrated the facts observing that it was intended to arrest the occupants of the vehicle shortly after the road stop, but they would only be told that they were being detained, when in fact, the police would be effecting an arrest. So when the occupants were removed from the Honda, they were, in fact, being arrested – even though they were not immediately told they were under arrest.[^12]

[65] The similarities of the circumstances and the analogy to the facts in the present case are readily apparent. In those circumstances, Campbell J. held that:

... In my view, the police had the necessary reasonable and probable grounds to arrest the accused, and proceeded to do so when they stopped the Honda and had the accused exit the vehicle. While the accused were not immediately told of the reasons for their arrest, or even that they had been placed under arrest when they first exited the vehicle, in my view they were, in fact, under arrest at that point in time. This de facto lawful arrest permitted the police, in all of the circumstances, to conduct pat-down searches of the accused and conduct a search of the Honda, as incident to this arrest, in an effort to discover the firearm that the police honestly and reasonably believed had been secreted in the Honda.[^13]

Just as in Dibble, the court in Grant (S.C.J.) found a breach of the accused’s s. 10 Charter rights, but declined to exclude the evidence obtained by the search.

[66] Most recently, a similar ruse traffic stop was used to conceal an ongoing investigation in R. v. Whipple, an August 2016 decision of the Alberta Court of Appeal. In that case, the court approved of this police plan:

...a search of the vehicle for the methamphetamine it was believed to be carrying, the police were authorized to mislead the respondent as to their authority for detention and search in order to protect the ongoing investigation of the various conspirators. It was anticipated that the police would make a traffic stop of the vehicle....[^14]

[67] Ironically, in Whipple, the police were actually granted a general warrant for the operation, just as Det. Leahy had presciently first contemplated in this case, when he went to Mr. Sabadini, the Crown then assigned to Project O’River, to ask if such a warrant could be obtained. The Alberta Court of Appeal upheld the validity of such a general warrant, and found that it did not breach s. 10(a) of the Charter. The appeal court added:

It should be borne in mind that the Imoro line of authority is referring to an investigative method that actually prompts the target to do something incriminating. Such a method is well beyond merely getting past the target’s desire to avoid being discovered with evidence or to avoid saying something inculpatory to a person in authority. It is even further removed from police action where all the officer was trying to do was to effectuate an otherwise lawfully authorized and grounded search while keeping the background wiretap authorization secret so the investigation could continue.

The common thread of all of this case history is recognition of the fact that police must often be able to step into the criminal secrecy shadow. To do so, deception is not entirely forbidden. [Italics in original; underlining added.][^15]

[68] This is exactly what was done in this case. A careful operational plan was developed. It specifically addressed ensuring that while the search would be conducted, the attending officers were not to permit Mr. Bielli to give any statements that might self-incriminate him. In my view, this line of cases authorizing the use of an investigative ruse is wholly consistent with the oft-cited dicta of Lamer J. in Rothman v. R., who said long ago:

It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. That a police officer pretend to be a lock-up chaplain and hear a suspect’s confession is conduct that shocks the community; so is pretending to be the duty legal-aid lawyer eliciting in that way incriminating statements from suspects or accused; injecting Pentothal into a diabetic suspect pretending it is his daily shot of insulin and using his statement in evidence would also shock the community; but generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community; nor would, as in this case, pretending to be a truck driver to secure the conviction of a trafficker; in fact, what would shock the community would be preventing the police from resorting to such a trick. [Emphasis added.] [^16]

[69] Not only does this authority recognize the validity of using ruse techniques to achieve valid policing goals without compromising an ongoing investigation, but the recent decision in Whipple[^17] goes even further and suggests such circumstances are suitable for the issuance of a general warrant. Arguably, were this same situation to occur today, Crown counsel would have been able to have been supportive of Det. Leahy’s inquiry into the availability of such a general warrant to permit the search to be conducted, even though the subject would not have known the full jeopardy he faced.

[70] In summary, in my view, the operational plan developed by the police in this case was a legitimate policing tool designed and implemented by them, based on this well-recognized existing line of judicial authority. It was implemented in order to permit them to engage in the stop of Mr. Bielli’s vehicle, in order to search for and seize evidence that was known would be found in his vehicle but that was at risk. The plan was designed with specific regard for Mr. Bielli’s rights against self-incrimination and to ensure he would be given rights to counsel and exercise them, even if it was known it would be on the basis of incorrect information about why he was actually being stopped. The inevitable conclusion of this analysis is that there was no arbitrary detention, and Mr. Bielli’s s. 9 Charter rights were not violated.

[71] Returning to the s. 8 issue and the legal framework that governed the conduct of the police as the detention ruse was unfolding and as the search commenced, the question is whether the search violated Mr. Bielli’s s. 8 rights.

[72] The case law has established principles that govern when reasonable and probable grounds to arrest will be considered to exist, when search incident to arrest is or will be permitted, and when accused persons may be arrested, or released, without formal arrest. As the following paragraphs will show, the application of these principles in the present circumstances supports the conclusion that Mr. Bielli was de facto under arrest during the roadside detention. There are no temporal safe harbours that establish where a person may or may not be searched incident to arrest, but the case law clearly establishes three circumstances where a search may be conducted:

(1) a search incident to arrest may occur prior to the formal arrest,

provided there are reasonable and probable grounds to arrest;

(2) search incident to a de facto arrest may occur without the formal words, “You are under arrest”; and

(3) after a search incident to arrest, the police may release the person without continuing the arrest; the authority for the prior search is not retroactively negated.

[73] In R. v. Debot, Lamer J. adopted the judgment of Martin J.A. in the Court of Appeal for Ontario in confirming that the sequence of reasonable grounds, search, and arrest or release is not determinative:

Martin J.A. also disagreed with the trial judge’s conclusion that the search was not incidental to a valid arrest because the search preceded the arrest and because the officer stated, in effect, that he would not have arrested the accused had the search not produced a prohibited drug. Martin J.A. rejected the contention that this was a finding of fact made by the trial judge. In his view, what constitutes a search incident to arrest is a question of law. As long as the officer has probable cause to arrest the suspect, the fact that he or she postpones the decision until after the search is not fatal. This is so because the reasonable belief that the suspect has committed the offence of being in possession of a prohibited drug may turn out to be erroneous. Alternatively, the officer may still have reasonable grounds for making the arrest but conclude that there would be no chance of obtaining a conviction without the evidence. In these circumstances an arrest would be pointless.[^18]

[74] The judgment of Martin J.A. in Debot has been cited and applied in subsequent appellate decisions on this very issue, including in R. v. Polashek[^19], R. v. Sinclair[^20], R. v. Grant[^21] and Dibble.[^22] Similarly, in R. v. Amofa, where the police had reasonable grounds for arrest but chose not to arrest while they continued the investigative detention of two suspects, the court held that the underlying grounds to arrest were still operating to permit a valid search “incidental to arrest”, despite the absence of a formal arrest before the search.[^23]

[75] The sequence of events in some of the case law, including Polashek, differs from the case at hand, which included a de facto arrest prior to any search. In Polashek, the court found that the police officer was justified in conducting a search occurring directly prior to the arrest.[^24] Here, there was a de facto arrest before a subsequent search. Consequently, this de facto arrest is the one relevant to any analysis tied to the search, not the formal arrest which occurred, months after, at the Super Bowl party on February 3, 2013.

[76] The Supreme Court’s decision in R. v. Latimer[^25] shows that a police officer need not speak the magic words, “You are under arrest”, in order to effect a valid de facto arrest. Even a deliberate plan by the police not to proceed with a formal arrest, and use of the alternative word “detention” (emphasis added) (as in the Applicant’s case) will not negate a valid de facto arrest. As Lamer C.J. explained in Latimer:

22 The appellant alleges that his right under s. 9 against arbitrary detention was violated when he was detained at his farm on the morning of November 4, 1993. There is no doubt in my mind that the appellant was detained, and the parties agree on this point. However, I am equally certain that Mr. Latimer’s detention was not arbitrary. The RCMP officers who attended at the Latimer farm put Mr. Latimer under de facto arrest. Moreover, on the facts of this case, that de facto arrest was entirely lawful because it was based on reasonable and probable grounds that Mr. Latimer had taken his daughter’s life. A de facto arrest which is lawful, in my opinion, cannot be an arbitrary detention for the purposes of s. 9.

23 The appellant’s strongest argument is that no arrest occurred because the officers deliberately chose not to arrest Mr. Latimer. He points to testimony by officers Lyon and Conlon at trial, in which they indicated that they decided prior to appearing at the farm they did not wish to arrest Mr. Latimer. As well, he also points to the use of the word “detention”, instead of the word “arrest”, as proof of that intention.

25 On the facts of this case, a de facto arrest occurred through the use of words that conveyed clearly that Latimer was under arrest, the conduct of the officers, and Mr. Latimer’s submission to the authority of officers.... [Emphasis added.][^26]

[77] Although the applicant’s “arrest” in Latimer was misnamed as an “investigative detention”, it was in all but name an arrest: a de facto arrest. The court in Grant (S.C.J.) discussed a similar de facto arrest in the context of a police ruse to conceal the true reason for a detention and arrest, and in R. v. Zajner[^27], the court noted that the existence of a state of arrest does not require words of arrest.

[78] Finally, on the lawful authority to search based on reasonable grounds to arrest, a search is not retroactively made unlawful if the police decide to release the suspect after the search. As Martin J.A. stated in Debot:

At one time, there was a widely held view by the police, wrongly as I have said elsewhere, that once they had arrested a person, they had no power to release him or her but were required to charge the person and bring him or her before a justice. See Report of the Canadian Committee on Corrections (Ouimet Report) (31 March 1969), at p. 92. It is clear that under the present provisions of the Criminal Code, a police officer who arrests a person without a warrant may, subsequently, release that person unconditionally (s. 454(1)(d) of the Code). [Emphasis in original.][^28]

[79] Given the presence of more than ample reasonable and probable grounds, it was open to the police to arrest Mr. Bielli and perform a search of his person and his vehicle incident to that arrest. I find that the November 30 detention was a lawful de facto arrest, and that the searches of his person and his vehicle were lawfully conducted incident to that lawful de facto arrest. While he was never told the full reason for the detention, on the entire constellation of facts and circumstances as revealed in the evidence, I find that Mr. Bielli was necessarily aware of the gravity of the situation and that he was, for all practical purposes, under arrest and knew he was under arrest. He knew the circumstances were sufficiently grave that he asked if the police who stopped him had a warrant. He knew that he would be charged with obstructing justice if he did not co-operate. When he exited his vehicle, he was handcuffed to the front, and kept in handcuffs in the back of the OPP scout car for at least a couple of hours. Indeed, as such, I find that he was visibly and factually more obviously under arrest than was Robert Latimer in the detention circumstances present in Latimer. Since he was under arrest, the police were entitled to conduct a search incident to that de facto arrest. The search was entirely lawful. The police did not violate Mr. Bielli’s s. 8 rights against unreasonable search and seizure, and the evidence was not unlawfully obtained.

Breach of Mr. Bielli’s ss. 10(a) and (b) Charter Rights

[80] The Applicant argues on this application that his rights under ss. 10(a) and (b) of the Charter were breached from the very start of his roadside detention until he was released, three hours later. Crown counsel concedes that Mr. Bielli’s s. 10(a) rights to be informed promptly of the reasons for his detention were breached in this case because Mr. Bielli was not initially informed of the true reasons for the highway stop, although he was later told after the search revealed the monies and cell phones that he was under investigation for possession of proceeds of crime, one of the offences with which he was ultimately charged. However, Crown counsel contends that there was no violation of his s. 10(b) rights because he was actually given his right to counsel and permitted to exercise them almost immediately after he exited his vehicle, initially in a 20 minute call with his lawyer, and then again in an 8 minute second call after the contraband was located, and he was again read right to counsel, cautioned, and permitted to make that second call.

[81] Section 10(a) requires the police to provide a detainee with enough information to fully appreciate the extent of his or her legal jeopardy. The right attaches immediately following detention.[^29] A person is not required to submit to either being detained or arrested unless he knows the reason why. Such knowledge is necessary in order to properly exercise one’s right to counsel and one’s right to silence. As McLachlin J. stated in R. v. Evans:

The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly (1985), 1985 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.[^30]

[82] Thus, the question to be answered 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 undermine his right to counsel under s. 10(b).”[^31]

[83] It was argued that the purpose behind the existence of the right is to permit the subject to determine whether or not to submit to the detention, but in my view, a more accurate and insightful rationale was the one explained by Sopinka J. in his concurring judgment in Evans. While he concurred with McLachlin C.J. in the result, he also found a violation of s. 10(a) on the facts, and further explained the rights that are protected by s. 10(a):

The purpose of communicating this information to the accused in either case [arrest with warrant and arrest without warrant] is, inter alia, to enable the person under arrest or detention to immediately undertake his or her defence, including a decision as to what response, if any, to make to the accusation. It seems axiomatic, therefore, that this information should be conveyed prior to questioning and obtaining a response from the person under arrest or detention. These basic and important values are included in s. 10(a) of the Charter.[^32]

[84] Sopinka J.’s focus was on the response of the accused to questioning and the right to know what it is that is alleged in order to be able to determine whether and how to respond. Section 10(a) does not, in my respectful view, grant the subject the “right to flee”, but instead grants the “right to know” the basis for the detention or arrest, to permit the subject to determine what if any response to provide to the information he is told. In circumstances where the subject resists compliance, or resists arrest, he can properly be charged with obstructing justice, or possibly, depending on the extent of the resistance, a charge of assaulting police. That reality, in my view, shifts the emphasis of purpose away from a “right to flee”, and towards a “right to silence”. It shifts the analysis in the direction explained by Sopinka J., that the purpose of s. 10(a), and indeed 10(b), is towards protect the subject against the risk of self-incrimination.^33 In that sense, ss. 10(a) and (b) can more appropriately be seen as corollary rights to know what is alleged and to retain and instruct counsel immediately so as to ensure that before providing any response to the circumstances he faces, the accused will have the benefit of legal counsel. As these reasons will show, this consideration factors into the s. 24(2) Charter analysis set out below.

[85] Nevertheless, as noted, the breach of the Applicant’s informational rights under s. 10(a) was conceded by both the Project O’River lead investigator and the searching officer, Det. Leahy and P.C. Brisebois. The Applicant was stopped by P.C. Brisebois at approximately 10:55 am. P.C. Brisebois deceived Mr. Bielli, relative to the real reason for the stop, instead telling him that he was being stopped and detained due to a combination of speeding, an abrupt lane change, and his alleged connections to the Hells Angels. Plainly, that was not the reason for the stop, and plainly, the Applicant’s s. 10(a) rights were breached.

[86] As for the claim of a breach of s. 10(b), while the Crown contends that the steps put in place show that Mr. Bielli was actually permitted to obtain legal advice, I reject that this can save the conduct from also breaching Mr. Bielli’s s. 10(b) rights.

[87] The mere fact that Mr. Bielli was put in contact with counsel does not amount to s. 10(b) compliance. There can be no meaningful communications between the accused and counsel where both are misled and misinformed as to the nature of the accused’s jeopardy. When that misinformation is passed onto a lawyer, whose advice in those circumstances will necessarily be based on deception and an inaccurate understanding of the true circumstances, that will necessarily taint his or her ability to provide accurate and meaningful legal advice. The point was made by Doherty J.A. in R. v. McGuffie.[^34]

[88] Defence counsel argued that after he had seized money, a laptop computer, memory sticks, and documents from the Applicant’s car, about one hour into his detention, P.C. Brisebois again deceived the Applicant. It is said that the preplanned telephone discussion with another officer was meant to mislead the Applicant, but in fact it was at that point that Mr. Bielli was accurately and correctly told that he was now being investigated for possession of proceeds of crime. As such, I reject the Applicant’s contention that at that second point he was again misled as to the true nature of his jeopardy. He was told exactly what he was under investigation for. I reject the notion that the police, at that point, had to give Mr. Bielli any further information about the true nature and scope of the investigation. They were entitled to continue with those aspects of the ruse to protect the integrity of the ongoing investigation.

[89] I acknowledge that the police were consciously mindful of ensuring that the ruse they intended to implement could not be permitted to allow Mr. Bielli to self-incriminate. They were mindful of taking extraordinary steps in the operational plan, to ensure he would immediately or as soon as practicable, but on scene, be permitted to contact counsel for legal advice. He was read rights to counsel twice, both before the search and after the search yielded evidence, and he was then told he was under investigative detention for possession of proceeds of crime: one of the several offenses for which he was arrested and detained in that de facto situation of arrest. He was given rights to counsel two times and he was cautioned twice. He was permitted to speak to counsel twice for a total of just short of half an hour. He was not to be permitted to say anything discriminatory to the police, and he did not.

[90] Notwithstanding that these steps were put in place to procedurally permit him to exercise his s. 10(b) rights, I have found that Mr. Bielli’s s. 10(b) rights were also violated substantively because the right to retain and instruct counsel can only fully be exercised if the advice from counsel is based on the actual facts that are present, rather than the ruse facts that were present and presented here.

[91] In summary, I find the police violated Mr. Bielli’s s. 10(a) rights to be informed of the reasons for his detention and de facto arrest and also his s. 10(b) rights to retain and instruct counsel without delay.

The Charter, s. 24(2)

[92] In the result, I have found that Mr. Bielli’s s. 8 and 9 Charter rights were not violated. He was not arbitrarily detained and the search of his person and his vehicle was entirely lawful as conducted incident to what was plainly a situation of de facto arrest. However, I have also found that the operation of the ruse in this case and the conduct of police in implementing that deception necessarily resulted in a breach of his ss. 10(a) and (b) rights. These findings call upon me to consider whether the evidence, in this case, that was the product of the search and seizure, even if lawfully obtained, must be excluded under s. 24(2).

[93] Section 24(2) reads as follows:

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.

[94] The test for the exclusion of evidence focuses on three factors[^35]:

(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.

[95] The first two Grant factors play a somewhat different role than the third. As recently stated by Doherty J.A. in McGuffie, the seriousness of the Charter-infringing conduct and the impact of the breach on the rights of the accused will both point towards exclusion of the evidence. Society’s interest in adjudication on its merits becomes more important when only one of the previous two factors is significant. When both are serious, the exclusion of the evidence becomes likely:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140. [Emphasis added.][^36]

Seriousness of the Infringement

[96] Beginning with the seriousness of the Charter-infringing conduct, the Applicant contends that the officers’ conduct in this case was brazen, flagrant, and extremely serious. He claims that the police deliberately set out to violate a host of his constitutionally protected liberties.

[97] I accept that the breach of ss. 10(a) and (b) rights was serious in this case. However, I reject the characterization that the conduct was brazen or flagrant or extremely serious because it ignores the numerous mitigating factors that are at play here and that reduce the seriousness of the Charter infringing conduct. The impugned police conduct was mitigated by a number of important factors:

(1) The operational plan took care to avoid taking advantage of the Applicant’s lack of full information:

(a) he was promptly cautioned as to his right to remain silent;

(b) he was advised that the purpose of the search was to discover contraband;

(c) he was promptly given access to legal counsel;

(d) when the large volume of cash was discovered, he was advised that he was being investigated for possession of proceeds of crime (which was indeed the true reason for the arrest and search); and

(e) he was at that point again given access to legal counsel.

(2) In addition, in a specific effort to protect the Applicant’s s. 10 rights, Det. Leahy emphasized in his instructions during the briefing of P.C. Brisebois that the Applicant should not be questioned because he would not know his true jeopardy.

(3) The decision not to advise the Applicant of the true reason for his arrest was necessary to prevent the disappearance of future evidence in the ongoing investigation of the Platinum SB organization;

(4) The police were acting in good faith on their understanding of judicial authority (Dibble) which held that the police had a “legitimate interest” in using the same “ruse” scenario, which Det. Leahy understood to mean that the “breach was found to be reasonable”.

[98] As noted above, Croll J. found in Dibble that “the [s. 10] breaches were minor and made in good faith” because the police had a “legitimate interest” in using a ruse, and had not attempted to elicit evidence from the applicant when he lacked the benefit of full information and access to counsel.[^37] Further, the Supreme Court recognized in Grant that there is a societal interest in preventing the loss of evidence: “Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach” (citations omitted).[^38]

[99] The disappearance of future evidence would have been the result, had the Applicant been told that he was “under arrest for possession of proceeds of crime”. That would have disclosed the police knowledge of the Applicant’s collections activity in the Platinum SB organization. At that time, an undercover officer had infiltrated the organization, and a third wiretap authorization was pending. Disclosure of the true reason for the Applicant’s detention would have seriously jeopardized the undercover officer and the orderly completion of the investigation, and the Super Bowl take down on February 3, 2013.

[100] Disappearance of evidence would also have been the result had the police decided not to arrest the Applicant on November 30, 2012, in order to maintain the confidentiality of the investigation. The large volume of cash, almost $75,000, confirmed the Applicant’s role in collections, and the role of collections in the Platinum SB organization. That evidence would not be available had the police not arrested the Applicant.

[101] Good faith police reliance on the judicial authority of Dibble also mitigates the infringement of the Charter rights in this case. As the Supreme Court held in Grant: “‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.”[^39] The court must ask, “Were the police deliberately and systematically flouting the accused’s Charter rights? Or were the officers acting in good faith, pursuant to what they thought were legitimate policing policies?”[^40] In this case, plainly it was the latter.

[102] As a result, on step one of the s. 24(2) analysis under Grant, I find that the violation was plain and that it was serious. A violation of ss. 10(a) and (b) rights is necessarily serious. But, I also find that it resulted from good-faith police work specifically based on the line of judicial authority, including Dibble, from this court, which permitted the police to conduct such a deceptive ruse in order to preserve the integrity and secrecy of a larger police investigation. The police were also exceptionally mindful of ensuring that the underlying purpose of Mr. Bielli’s ss. 10(a) and (b) rights against self-incrimination were to be protected, and he was to be permitted to contact counsel for advice promptly after being detained. These factors significantly mitigate the seriousness of the Charter offending conduct.

[103] I find that the conduct of the police, in this case, would not shock reasonable members of the community and that there is no need for this court to disassociate itself from this conduct, in the circumstances. Equally significant Charter offending conduct has been approved in other Canadian appellate decisions, including the very recent Alberta Court of Appeal decision in Whipple, decided in August 2016, and the Supreme Court of Canada decision[^41] in the Mr. Big litigation. In total, and on balance, I find that these factors favor admission of the evidence.

Impact on the Charter Interests of the Accused

[104] The second Grant factor is the impact of the police conduct on the Charter-protected interests of the accused. As noted above, the Supreme Court of Canada in Evans identified the Charter-protected interests contemplated by s. 10(a), but as noted, in my view, ss. 10(a) and (b) of the Charter are principally aimed at protecting an individual’s right against self-incrimination. The core interest engaged in a s.10 analysis is that of ensuring a person under arrest or detention is properly informed and advised before they potentially incriminate themselves by way of a response.[^42]

[105] Where, like here, the subject is almost immediately informed of his right to counsel, right to silence and cautioned (and is advised by his counsel of choice), it is evident to me that any impact on his s. 10 rights is much attenuated if not neutralized. Indeed, the Applicant did not incriminate himself, presumably based on the advice of counsel, which was promptly arranged for him by design, by the police.

[106] That the ruse played out over a longer period of time is not a significant factor in this case, where the prophylactic conduct of the police pre-empted the deleterious impact of the deception.

[107] Quite apart from the fact that the Applicant chose not to incriminate himself (and thereby lessened the impact of the breach), the failure to advise the Applicant of the true reason for his detention did not, on the facts of this case, frustrate the exercise of his right to counsel, even if it was not fully informed. The Applicant was informed that he was detained and would be searched for “contraband” by reason of his supposed association to the Hells Angels. It may be inferred, at least for the purposes of this application, that the Applicant knew that he was transporting almost $75,000 in cash, and a computer with betting records that could be linked to the Platinum SB organization. He consulted counsel with full knowledge of what was in his possession, and that he and his car were to be searched for “contraband”.

[108] Further, upon the discovery of the cash in his car, the Applicant was advised that he was now under investigation for possession of proceeds of crime. That was one of the offences under investigation. That accurate information was provided to the Applicant and to counsel, Mr. Lockyer, removing any obstacle to an informed consultation with counsel, or at least in the second call. As such, having informed the Applicant of the lawful grounds for his detention at that point in time, the police were not required to go so far as to disclose to him the full scope of the O’River investigation as it pertained to him.

[109] Whatever legal advice the Applicant received or could have received, the Applicant exercised his right to remain silent; the physical evidence seized would have been obtained in any event, by search incident to lawful grounds to arrest. In my view, the failure to advise the Applicant of the true reason for his detention had no practical impact on the exercise of his right to counsel.

[110] Moreover, the doctrine of discoverability is relevant to the assessment of the impact of the infringement. That impact is attenuated when the evidence would have been discovered in any event, regardless of a Charter breach. The Supreme Court in Grant reaffirmed the importance of the discoverability of the evidence in assessing the impact of a Charter breach:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. ...[^43]

[111] In situations similar to the Applicant’s case, the police conduct was held to have little impact on the Charter-protected interests of the accused because the evidence was not discovered as a result of the breach, and would have been discovered in any event. As Croll J. wrote in Dibble:

In this case, there was no causal connection between the obtaining of the evidence and the section 10 breaches. Stated differently, even if the police had told Mr. Dibble the real reason for his detention and given him his right to counsel, they still would have discovered the evidence, as they would have searched the trunk incident to the arrest.[^44]

[112] Campbell J. reached the same conclusion in Grant (S.C.J.):

The conduct of the police that violated ss. 10(a) and 10(b) of the Charter did not have a significant impact upon any of the Charter-protected interests of the accused. More specifically, the police did not obtain any inculpatory statements from the accused following the police breach of ss. 10(a) and 10(b) of the Charter. Further, the police secured no physical evidence as a result of those violations of the Charter. While the police certainly discovered and seized the firearms from the Honda at a point in time after the police violations of ss. 10(a) and 10(b) of the Charter, the police did not secure that important physical evidence as a result of those Charter violations. Indeed, in my view, there is no question that the police would inevitably have discovered the firearms in the Honda irrespective of either of these Charter violations. Once the police had decided to stop the Honda, arrest the occupants and search the Honda incident to that arrest, the police were going to quickly discover the two firearms. It was only a matter of time. In short, the police would inevitably have discovered the firearms in the Honda regardless of any violation of the accused’s constitutional rights under ss. 10(a) or 10(b) of the Charter. [Emphasis in original.][^45]

[113] Applying the law to the Applicant’s case, had the officers immediately complied with s. 10(a) and advised the Applicant that he was being detained on reasonable grounds to believe that he was in possession of proceeds of crime (thus tipping off the criminal organization to the police investigation), the officers would still have had reasonable grounds to search the Applicant and his car for evidence. The evidence seized would have been discovered in any event.

[114] I find that the Charter offending conduct which breached Mr. Bielli’s ss. 10(a) and (b) rights has no meaningful impact on him because his rights in ss. 10(a) and (b), which are entirely designed to protect against self-incrimination, were not affected. He was encouraged to say nothing, he said nothing, and he had a half-hour of advice from his counsel of choice without delay. This factor also favors admission of the evidence, or put differently, provides no substantive foundation to favor exclusion, given the result that occurred.

The Truth-Seeking Function of the Trial

[115] The third Grant factor is the importance of the evidence to the truth-seeking function of the trial, for an adjudication on the merits. If a Charter breach undermines the reliability of evidence, exclusion of the evidence may well be required. Where the reliability of evidence is not impaired by a Charter breach, however, then the truth-seeking function of the trial calls for admission of the evidence. As the Supreme Court held in Grant:

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.[^46]

[116] In this case, the infringement of s. 10 Charter rights had no effect on the reliability of the evidence obtained. The Applicant made no statement that could have been affected by a lack of information about his true situation. The search resulted only in the seizure of pre-existing physical evidence.

[117] Finally, the third step of the Grant analysis requires that consideration be given to the importance of the evidence to the Crown’s case. Exclusion of evidence essential to the prosecution may bring the administration of justice into disrepute. In this case, the items seized pursuant to the Applicant’s arrest constitute important evidence for the prosecution, the exclusion of which would undermine the truth-seeking function of the trial. The cash seized informs the inferences that may be drawn at trial from the surveillance observations of the accused, and the statements of alleged co-conspirators made in intercepted communications and to undercover officers. Further, there is the subsequently obtained (by warrant from the Applicant’s laptop computer) documents and the reconciliation of accounts among the Platinum SB betting agents or ‘bookies’ and the upper echelon of the alleged criminal organization. Consideration of all of these factors favours admission of the evidence seized from the Applicant. [^47]

[118] I find that the truth-seeking function, in this case, and the public’s interest in seeing serious crime tried with all of the evidence that supports it, favours admissibility of the evidence under step three of Grant. This is an enormous case, in total involving two years of careful and largely judicially authorized police work, including warrants and wiretaps. While the exclusion of this evidence may not gut the Crown’s case against Mr. Bielli and others, as a result of what was seized from Mr. Bielli, it would significantly weaken those cases. In the context of a Project investigation into this enormous illegal gambling operation that involved numerous police officers and revealed complex organized crime involving multiple individuals, including Mr. Bielli, there is no doubt that the truth-seeking function favors admissibility. The third Grant factor favors admissibility.

[119] On balance, taking account of each of the three steps of analysis required under Grant, I find that reasonable members of the public would not consider the administration of justice to fall into disrepute were this evidence to be admitted in Mr. Bielli’s trial. Exactly the contrary.

Conclusion

[120] In conclusion, the evidence seized from Mr. Bielli and his vehicle on November 30, 2012, will be admitted into evidence. This evidence was the product of a lawful search incident to a lawful detention and de facto arrest. The Grant analysis favors admissibility. The Applicant’s Charter motions are dismissed.

Michael G. Quigley J.

Released: November 4, 2016

CITATION: R. v. Bielli, 2016 ONSC 6866

COURT FILE NO.: CR-15-40000270-0000

DATE: 20161104

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

ANDREW BIELLI

Defendant/Applicant

Reasons for Ruling

Re: Charter, ss. 8, 9, 10(a) and (b), and 24(2)

Michael G. Quigley J.

Released: November 4, 2016

[^1]: Criminal Code, R.S.C. 1985, c. C-46.

[^2]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^3]: Highway Traffic Act, R.S.O. 1990, c. H.8.

[^4]: C.f. R. v. Whipple, 2016 ABCA 232, [2016] A.J. No. 781 (which now suggests that such a warrant could have legally been obtained).

[^5]: R. v. Dibble, 2011 ONSC 399, 230 C.R.R. (2d) 323.

[^6]: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51.

[^7]: R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 199.

[^8]: Ibid, at p. 200.

[^9]: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45.

[^10]: Dibble, at para. 41, Croll J.

[^11]: Ibid, at paras. 41-42.

[^12]: R. v. Grant, 2015 ONSC 1646, at paras. 38-40, 42 [Grant (S.C.J.)].

[^13]: Ibid, at para. 73.

[^14]: Whipple, at para. 23.

[^15]: Ibid, at paras. 32-33.

[^16]: Rothman v. R., 1981 23 (SCC), [1981] 1 S.C.R. 640, at p. 697.

[^17]: Whipple, at paras. 26-30.

[^18]: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1157-1158.

[^19]: R. v. Polashek (1999), 1999 3714 (ON CA), 45 O.R. (3d) 434 (C.A.), at p. 443.

[^20]: R. v. Sinclair, 2005 MBCA 41, 192 Man. R. (2d) 283, leave to appeal refused, [2005] S.C.C.A. No. 263, at para. 20.

[^21]: Grant (S.C.J.), at para. 87.

[^22]: Dibble, at para. 34.

[^23]: R. v. Amofa, 2011 ONCA 368, 85 C.R. (6th) 265, at paras. 13-26.

[^24]: Polashek, at p. 443.

[^25]: R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217, at paras. 22-25.

[^26]: Ibid, at paras. 22-23, 25.

[^27]: R. v. Zajner (1977), 1977 2077 (ON CA), 36 C.C.C. (2d) 417 (Ont. C.A.), at p. 419.

[^28]: R. v. Debot (1986), 1986 113 (ON CA), 17 O.A.C. 141 (C.A.), aff’d on other grounds 1989 13 (SCC), [1989] 2 S.C.R. 1140, at para. 35. See also Criminal Code, s. 503.

[^29]: R. v. McGuffie, 2016 ONCA 365, 348 O.A.C. 365, at para. 42. See also R. v. Daley, 2016 ONCA 564, at paras. 12-14; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 44; and R. v. T.G.H., 2014 ONCA 460, 120 O.R. (3d) 581, at para. 31.

[^30]: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-887.

[^31]: Ibid, at p. 888.

[^32]: Ibid, at p. 875.

[^34]: McGuffie, at para. 44. See also Evans, at p. 892.

[^35]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[^36]: McGuffie, at paras. 62-63.

[^37]: Dibble, at paras. 41-42.

[^38]: Grant, at paras. 75, 124, McLachlin C.J. and Charron J.

[^39]: Ibid, at para. 75, McLachlin C.J. and Charron J.

[^40]: Ibid, at para. 124, McLachlin C.J. and Charron J.

[^41]: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544.

[^42]: Dibble, at para. 37.

[^43]: Grant, at para. 122, McLachlin C.J. and Charron J.

[^44]: Dibble, at para. 44.

[^45]: Grant (S.C.J.), at para. 129.

[^46]: Grant, at para. 81, McLachlin C.J. and Charron J.

[^47]: Ibid, at para. 83.