CITATION: R. v. Ricardo, 2016 ONSC 6952

COURT FILE NO.: 168/2015

DATE: 08/11/2016

SUPERIOR COURT OF JUSTICE

ONTARIO

BETWEEN:

Her Majesty the Queen

Respondent

• and -

Ricardo Jackson

Applicant

B. Eberhard, for the Respondent

C. DeMelo, for the Applicant

HEARD: August 22 2016

TEMPLETON J.

AMENDED RULING

[1] Mr. Jackson stands charged that on or about February 7, 2015 he possessed cocaine for the purpose of trafficking.

[2] He alleges that his rights contrary to ss. 8, 9 and 10(b) of the Charter were breached as a result of which the evidence ought to be excluded pursuant to s. 24 (2) of the Charter.

The Evidence

(a) The Evidence of Mr. Jackson

[3] At approximately 12:30 am on February 7, 2015 Mr. Jackson was driving his yellow Mazda Protégé on the #401 westbound back to London. He was in a hurry. His girlfriend who was pregnant with his baby had unexpectedly gone into labour while they were in Toronto and had been taken to the hospital. She needed her personal belongings and things for the baby and it was his job to return to London to pick up the things she needed and take them back to her.

[4] As he approached the Veterans Memorial Parkway ramp to exit the #401, he encountered a truck driving in the same direction in the slow lane. He moved over from the centre lane to behind the truck in the slow lane and then proceeded off onto the ramp where he came to a stop. He did so because a police cruiser with flashing lights had pulled in behind him.

[5] A police officer in uniform approached his car on the right side and shone a flashlight so he could see and be seen. Mr. Jackson spoke to the officer through the front passenger window.

[6] The officer asked Mr. Jackson if he knew why he had been stopped and told Mr. Jackson that he had been pulled over for speeding and aggressive driving. The officer asked him why he was driving so fast and learned from Mr. Jackson that he was going home to get clothes for his wife who was in a Toronto area hospital in labour.

[7] The officer noticed a bottle of alcohol in an LCBO bag on the passenger seat. Mr. Jackson told the officer that he had not been drinking and they confirmed that the bottle in the bag was not open.

[8] The police officer asked for Mr. Jackson's driver's licence and documentation which were provided and returned to his cruiser. Mr. Jackson remained in his car waiting for the officer to return.

[9] In his testimony, Mr. Jackson told the Court that when a second vehicle arrived about ten minutes after he was stopped, PC Elliot came back to his car and ordered him to get out saying that he was going to search the vehicle and was going to search him.

[10] Mr. Jackson got out of the car as required and the second officer who had arrived (Sgt. Graham) took Mr. Jackson to the front of his Mazda and told him to spread his legs.

[11] The second officer did a 'pat down' and touched Mr. Jackson's breast coat area. He asked Mr. Jackson what was in the pocket. Mr. Jackson responded by going to touch his pocket but was stopped by the first officer (PC Elliot) who touched his hand. Thereafter, Sgt. Graham searched Mr. Jackson as he was standing in the front of the Mazda near the passenger side headlights. Sgt. Graham found a candy container in the front pocket and PC Elliot found a knife in another pocket.

[12] According to Mr. Jackson, when the officers finished searching him, they told him he was under arrest. He could not recall exactly what they said at the time but he knows that they did not say much to him except, "You're under arrest". They did not explain to him why he was under arrest.

[13] Mr. Jackson told the Court, "They did not say, "You're under arrest for alcohol…for drugs." They just "found the things" and told him that he was under arrest.

[14] Mr. Jackson testified that he was then taken to the cruiser and it is there that PC Elliot read him his rights. He did not answer PC Elliot when he was asked if he wanted to call a lawyer.

[15] Mr. Jackson went on to state that while in the cruiser, PC Elliot asked him about the drugs and he told PC Elliot that he had done "a couple of lines". He does not remember specifically what happened after that.

[16] As far as Mr. Jackson could remember, the police let him talk to someone on the phone at the police station. The officer asked him if he wanted to talk to someone and advised him to do so. He was terrified and just wanted to go and see his girlfriend. The officer arranged the call and he spoke to duty counsel.

[17] Under cross-examination, Mr. Jackson agreed that his evidence was based on his memory only and that he did not make any notes at the time of the event. He also agreed that he had used cocaine earlier that day but told the Court that he had not used cocaine to the extent that he was impaired as suggested by the officer.

[18] It is his recollection that he had waited for 10 to 20 minutes before PC Elliot returned to his car in the company of a second police officer.

[19] Mr. Jackson reiterated that when PC Elliot returned to his car, PC Elliot said nothing more than, "Step out of the vehicle. We are going to search you."

[20] Sgt. Graham did a pat down search when he was placed in front of the Mazda at which time he felt the "Jolly Rancher". PC Elliot was standing at the side "looking nervous." Sgt. Graham asked what the object was. Mr. Jackson testified that reacted with his hand and told them that it was a "Jolly Rancher". Once they found the Jolly Rancher container, PC Elliot said that he was under arrest but did not tell him why he was under arrest for until he was in the cruiser.

[21] Mr. Jackson testified that even though he had a cell phone in his car, he did not use it to call anyone while he was waiting for PC Elliot to let them know that he was going to be late. Further, he did not ask to use it after his arrest before he left the scene. He was very nervous.

[22] Mr. Jackson agreed that he was unable to recall everything that happened that night or word for word. He recalls some things. He remembers clearly, for example, that he was taken to the front of his Mazda and not to the rear of his Mazda as suggested by the officers.

(b) The Evidence of the officers

[23] The evidence of the officers is somewhat different from Mr. Jackson's particularly with respect to what was said to him.

[24] What Mr. Jackson did not know while he waited in his car for PC Elliot to return with his documents, was the following:

• PC Elliot had been following him on the #401 and observed that although Mr. Jackson had been driving at approximately 117 km per hour, over the course of two kilometres, the speed of his vehicle increased to 133 km per hour;
• to PC Elliot, Mr. Jackson appeared to have made an erratic lane change quickly on the #401 moving from the centre lane, across the slow lane and onto the off ramp without any signal;
• while speaking for two or three minutes to Mr. Jackson through the open front passenger window, PC Elliot had become immediately concerned that Mr. Jackson's ability to drive his motor vehicle was impaired by a drug because:
  • Mr. Jackson had failed to maintain a constant speed while driving;
  • Mr. Jackson had made a sudden erratic movement while driving; and, during the conversation:
  • Mr. Jackson was moving/squirming around in his driver's seat;
  • his hands were shaking violently even as he handed the documents over to the officer;
  • the pupils of Mr. Jackson's eyes were "massive";
  • Mr. Jackson's eyes were darting back and forth;
  • he was grinding his teeth;
  • his speech was very quick;
  • Mr. Jackson was very chatty and appeared unable to control the speed of his speech;
  • he appeared to be on a stimulant[^1];
  • and there was no odour of alcohol.
• prior to leaving Mr. Jackson's car and returning to his cruiser, PC Elliot had formed the reasonable and probable grounds that Mr. Jackson's ability to operate a motor vehicle was impaired by a drug;
• while in his cruiser, PC Elliot called and asked for assistance and arranged for Mr. Jackson's vehicle to be towed. A second officer was requested because they were on the side of a busy highway and for safety reasons

[25] Sgt. Graham of the OPP arrived at the scene in an unmarked cruiser at approximately 12:50 am having been dispatched at 12:39 am. A third officer arrived to wait for the tow truck. About ten minutes had elapsed between the time PC Elliot had returned to his cruiser and the arrival of Sgt. Graham.

[26] When Sgt. Graham got out of his vehicle on arriving at the scene, PC Elliot also got out of his and returned to Mr. Jackson's car on the driver's side where he asked Mr. Jackson to get out. Mr. Jackson complied.

[27] Up until this point in time, PC Elliot had had no conversation with Mr. Jackson other than that described.

[28] When Mr. Jackson got out of his car, PC Elliot told Mr. Jackson under arrest for operating a motor vehicle while his ability to do so was impaired by a drug. Mr. Jackson was taken to the rear of his car.

[29] Mr. Jackson went to reach for his left front breast pocket in his jacket. PC Elliot reminded Mr. Jackson that he was under arrest and that he was not to reach for his pockets. Again Mr. Jackson complied.

[30] While standing between Mr. Jackson's car and PC. Elliot's cruiser, Mr. Jackson was handcuffed to the rear. PC Elliot asked Mr. Jackson if he had anything on his person that would hurt them.

[31] Sgt. Graham commenced searching Mr. Jackson incident to his arrest for impaired driving. PC Elliot held Mr. Jackson's right arm while he did so.

[32] In Mr. Jackson's left breast pocket of his coat, Sgt. Graham found a large plastic candy container which he shook. There no audible noise indicating that candy was inside. The officer then opened the container and found two transparent bags inside. The first bag he removed contained what appeared to be one (1) ounce of powdered cocaine and the second bag contained a piece of paper towel inside of which appeared to contain one (1) ounce of crack cocaine.

[33] At that point in time, Mr. Jackson was arrested in addition for possession of a substance and possession for the purpose of trafficking contrary to the Controlled Drugs and Substances Act.

[34] PC Elliot continued the search and in Mr. Jackson's right lower outside jacket pocket, he found a 3-inch folding knife and a glass vial with white powder. In the right front pants pocket, he located a glass stem ('crack pipe').

[35] Mr. Jackson was placed in the back of PC Elliot's cruiser to be taken to the OPP station.

[36] In the cruiser, at 1:00 am, PC Elliot (who was seated in the driver's seat) told Mr. Jackson about his rights to counsel, cautioned him and made a "drug recognition expert demand". PC Elliot read to Mr. Jackson his rights to counsel from a card that is issued by the OPP and contains the necessary wording.

[37] At the conclusion of reading the rights to counsel to Mr. Jackson, PC Elliot asked Mr. Jackson if he would like to speak to a lawyer or duty counsel. PC Elliot had a cell phone available that had been issued by the police force for the purpose of allowing a person in custody to speak to a lawyer or duty counsel. Mr. Jackson declined.

[38] At 1:03 am, PC Elliot left the scene with Mr. Jackson. Sgt. Graham followed.

[39] In the cruiser, PC Elliot spoke to Mr. Jackson and asked him how much crack he had smoked to which Mr. Jackson replied, "I smoked a bit in the day and I did a few lines. I ain't gonna lie, 'bro'."

[40] At 1:10 am, PC Elliot and Mr. Jackson arrived at the OPP Detachment.

[41] At 1:15 am, PC Elliot was in the booking area of the police station with Mr. Jackson. While conducting a secondary search and going through Mr. Jackson's coat, PC Elliot found a digital scale (a mini CD 100) that was in working order in the inner jacket pocket and saw white powdery resin on the scale.

[42] At 1:25 am, PC Elliot asked Mr. Jackson again if he would like to speak to duty counsel or a lawyer before commencing the drug tests. Mr. Jackson indicated that he would like to speak to duty counsel.

[43] At 1:44 am, PC Elliot called the duty counsel office and a lawyer called back at 2:17 am after which Mr. Jackson was placed in a private booth to speak to duty counsel. Mr. Jackson spoke with the lawyer from 2:17 am until 2:40 am.

[44] Mr. Jackson was then turned over to the drug recognition expert.

[45] Under cross-examination, PC Elliot indicated that

• he did not confirm (a) why the address on the licence provided by Mr. Jackson was an Innerkip address rather than a London address; (b) that Mr. Jackson's wife was indeed in a hospital in Toronto; or, (c) why the ownership of the vehicle came back as registered to a male party when Mr. Jackson had indicated that the car belonged to a female friend of his;
• the car driven by Mr. Jackson did not "come back" as stolen;
• after speaking initially to Mr. Jackson for the two or three minutes and prior to returning to his cruiser, he did not
  • tell Mr. Jackson that he had formed the opinion that his (Mr. Jackson's) ability to drive was impaired by a drug;
  • tell Mr. Jackson that his investigation had turned from speeding/aggressive driving to impaired driving;
  • give him his rights to counsel or a caution;
• as soon as Mr. Jackson stepped out of the car, he told Mr. Jackson that he was under arrest for impaired driving;
• before he started searching Mr. Jackson, he did not give Mr. Jackson his rights to counsel or caution him and did not ask Mr. Jackson if he consented to the search;
• Mr. Jackson was going to be searched whether or not he consented;
• he searched Mr. Jackson even though there were two officers there;
• he gave Mr. Jackson his rights to counsel and cautioned him inside the cruiser because they were on the side of a busy highway and it was cold;
• he did not take notes of Mr. Jackson's responses when his rights and the caution were read but that he has an independent recollection that Mr. Jackson understood and indicated that he did not wish to speak to a lawyer.

[46] Sgt. Graham testified that on his arrival, he learned from PC Elliot that PC Elliot intended to arrest Mr. Jackson for impaired operation of a motor vehicle by drug.

[47] They approached Mr. Jackson's vehicle. Sgt. Graham saw PC Elliot speak to Mr. Jackson through the open passenger window and ask Mr. Jackson to get out. Mr. Jackson was direct to the back of his car. Mr. Jackson faced north. PC Elliot told Mr. Jackson that he was being placed under arrest for the impaired operation of a motor vehicle by drug.

[48] At the time PC Elliot was about to place handcuffs on Mr. Jackson, Mr. Jackson made a motion toward the upper left breast area of his coat. He was told to return his hand down. Neither officer knew what Mr. Jackson had intended or what he had been reaching for. The officers completed placing the handcuffs on Mr. Jackson.

[49] Sgt. Graham was concerned about what Mr. Jackson may have been reaching for so touched the upper left breast pocket and could feel a hard object. At that time, he unzipped Mr. Jackson's heavy winter coat and open an inner pocket that was zipped closed. In this pocket, he found a candy container containing a paper towel which contained large white powder chunks he suspected to be crack cocaine. Located underneath the paper towel in the container was a plastic baggie that was tied in a knot and in this bag was a white powdery substance he suspected was powdered cocaine.

[50] PC Elliot searched the right side of Mr. Jackson's person and found a knife and a glass vial.

[51] Sgt. Graham confirmed that he followed PC Elliot and Mr. Jackson back to the OPP Detachment, assisted with the paperwork and with lodging Mr. Jackson in his cell.

[52] Under cross-examination, Sgt. Graham indicated that

• there were lamp posts in the area but it was hard to see;
• he could not recall if PC Elliot was holding a flashlight when they searched Mr. Jackson;
• he could not recall if PC Elliot read Mr. Jackson's rights to counsel off a card at the roadside but believes they were given to Mr. Jackson in layman's terms;
• he could not recall if Mr. Jackson responded. He thinks that rights to counsel may have been given to Mr. Jackson during the arrest and/or search but could not recall. He was not the officer making the arrest so did not note it;
• he did not make any observations of drug impairment. PC. Elliot took the lead on speaking to Mr. Jackson. Sgt. Graham stood behind Mr. Jackson.

The Issues

[53] Did the officers breach Mr. Jackson's right pursuant to s. 8 of the Charter to be secure against unreasonable search and seizure?

[54] Did the officers breach Mr. Jackson's right pursuant to s. 9 of the Charter not to be arbitrarily detained or imprisoned?

[55] Did the officers breach Mr. Jackson's right pursuant to s. 10(b) of the Charter to be informed of the right to retain and instruct counsel without delay?

[56] In all of the circumstances, should the evidence be excluded pursuant to s. 24 (2) of the Charter?

The Position of the Defence

(a) Breach of Section 8

[57] It is the position of the defence that the officers conducted a warrantless search which was prima facie unreasonable.

[58] Mr. Jackson was held in investigative detention but the search incident to this detention was not reasonably necessary and did not involve a justified use of police search power.

[59] There was no reason for these officers to feel that their safety was at risk. There were two officers and Mr. Jackson alone. In addition, the officers were physically bigger than Mr. Jackson.

[60] PC Elliot had no reason to believe based of defendant’s conduct or attitude that there was a concern for officer safety.

[61] In addition, Sgt. Graham was not told of any reason to be concerned for officer safety. This search was not related officer safety. It was not related to impaired driving.

[62] This search was based on the past experience of PC Elliot. It was based on nothing different from a search based on a hunch. This search was going to happen either way according to the officer.

[63] The police had Mr. Jackson securely in their custody had him when they started their search. They made a decision that they were going to search him regardless of the basis for the search.

[64] After the arrest, the search was only justifiable if it was related to the purpose of the arrest. The search had to be related to the impaired driving. In this case, however, the officers were searching for whatever they could find because they thought that this was their right to do so. This search was going to happen either way according to PC Elliot. They did not stop and think whether they even had the right to search Mr. Jackson.

[65] The officers acted on mere suspicion and/or hunches in searching Mr. Jackson and thereby breached his rights protected by s. 8 of the Charter.

(b) Breach of Section 9

[66] This was a case of arbitrary detention. When Mr. Jackson was asked to step out of the car, PC Elliot needed to tell Mr. Jackson his rights at that point. The evidence is clear that Mr. Jackson was not provided with his rights to counsel under s. 10(b) until he was in the cruiser.

[67] PC Elliot confirmed that Mr. Jackson was not allowed to leave after the stop. He was questioned about speeding but was detained for fifteen minutes on other grounds until the second officer arrived.

[68] PC Elliot was operating on a hunch which is an insufficient basis on all accounts.

[69] Mr. Jackson’s conduct was consistent with someone under pressure due to his wife being in labour, he need to be with her and the urgency of the pending birth.

[70] It is of not that Sgt. Graham made none of the visual observations that PC Elliot did. PC Elliot had no evidence of drugs at the time of the arrest.

[71] On the basis of all of the evidence, Mr. Jackson's rights protected by s. 9 of the Charter were breached.

(c) Breach of Section 10(b)

[72] Mr. Jackson was detained and therefore his rights pursuant to section 10(b) of the Charter were triggered.

[73] In this case, Mr. Jackson was initially detained for a speeding infraction but after speaking to the officer, he was detained for an impaired driving infraction. PC Elliot did not tell Mr. Jackson that he was being detained for a drug related offence. He simply returned to his cruiser to wait for backup.

[74] PC Elliot did not tell Mr. Jackson that he was arresting Mr. Jackson for a drug related offence until Mr. Jackson was out of the car and as he was under arrest.

[75] When Mr. Jackson's jeopardy changed from a provincial offence of speeding to a criminal offence of impaired driving, PC Elliot had a duty to immediately advise Mr. Jackson and provide to him, his rights to counsel under s. 10(b). He failed to do so.

[76] In this manner, Mr. Jackson's rights protected pursuant to s. 10(b) under the Charter were breached.

(d) Exclusion pursuant to s. 24(2)

[77] Mr. Jackson was charged with possession of cocaine for the purpose of trafficking because of what the officers found pursuant to their infringement of Mr. Jackson's Charter rights.

[78] This was a serious infringement that was not motivated by circumstances of urgency or necessity. Other investigative techniques were available. The officers could have given Mr. Jackson his rights and then searched him. He was polite, co-operative and compliant.

[79] Not until ten minutes after the search was Mr. Jackson informed of his rights under s. 10(b).

[80] Were it not for the search, the police would have no evidence with respect to the charge before the Court.

[81] The breaches of Mr. Jackson's rights under the Charter were not fleeting. They lasted for 25 to 30 minutes. Mr. Jackson was improperly detained and searched. Officer safety was not the purpose of the search. The course of the investigation changed from a traffic violation to a drug offence and Mr. Jackson was not told.

[82] This myriad of breaches in these factual circumstances weighs in favour of exclusion of the evidence.

The Position of the Crown

[83] The evidence in this case was not obtained in a way that breached Mr. Jackson's rights or in any way that ought to result in its exclusion.

(a) Section 8

[84] Mr. Jackson was subject to a traffic stop due to his horrendous and unsafe driving on a major highway. speeding and lane changing and erratic driving warranted police intervention pursuant to the HTA

[85] The nature and circumstances of his driving warranted intervention. This was not an arbitrary stop. The evidence is that when PC Elliot first approached the vehicle, the possibility of impairment was on his mind. He then saw the demeanour of defendant. Sgt. Graham did not see these indicia because he was standing back and did not stoop down to look inside the car where Mr. Jackson was seated.

[86] The search of Mr. Jackson that occurred outside of the vehicle once PC Elliot formed the reasonable and probable grounds to believe and did believe that Mr. Jackson's ability to operate a motor vehicle was impaired by a drug, was lawful.

[87] PC Elliot had seen the nature of Mr. Jackson's driving and then made observations about Mr. Jackson himself, his manner of speech and his body movement. Mr. Jackson showed indicia of impairment. He arrested Mr. Jackson. This was a lawful search incident to that arrest

[88] PC Elliot testified that he was thinking of his and the other officers' safety and Mr. Jackson's safety when he searched Mr. Jackson. It has been his experience that as soon as a person is placed under arrest, that person's demeanour can change. As it was, they found cocaine, a crack pipe and a knife. They later found a scale.

[89] There is no evidence that this search was vigorous. It was reasonably conducted and the officers believed that their reason to search was reasonable. The search of Mr. Jackson's coat was part of the search of his person. It was not like the search of an independent container such as the purse referred to by counsel for Mr. Jackson in the case relied on by her.

(c) Section 9

[90] There is no evidence before the Court that Mr. Jackson was detained and/or searched based a merely a hunch. The only evidence before the Court is that PC Elliot was on the #401 westbound when he saw horrendous driving.

[91] The officer then saw an impaired driver of that vehicle on speaking to him. this was not an arbitrary detention. It was a traffic investigation that soon turned into an impaired driving investigation and a drug investigation.

(d) Section 10(b)

[92] In the course of arresting Mr. Jackson for impaired driving, the police searched him and found drugs.

[93] Although Mr. Jackson was not advised of his rights to counsel immediately upon arrest, those rights were provided without undue delay.

(e) Section 24(2)

[94] In this case, at every stage of the alleged Charter breach, the officers acted in good faith.

[95] The officers initially conducted no more than a pat down search of Mr. Jackson's person at a roadside and then his coat pockets which yielded dangerous drugs and a weapon.

[96] It should be noted that there is no other evidence to support the charge before the Court. This was non-conscripted evidence which tells a story and is essential to the Crown's case.

[97] The administration of justice would not be brought into disrepute.

Analysis

[98] In R. v. Nolet[^2], The Supreme Court of Canada held that "The courts must proceed step by step through the interactions of the police and the accused from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. Such information as it emerges may entitle the police to proceed further, or, as the case may be, require them to end their enquiries and allow the vehicle to resume its journey".

[99] I had an opportunity to see and hear the witnesses in this case. I have now had the opportunity to review their evidence as well.

[100] I formed the impression that Mr. Jackson was a charming and honest witness but I also found his evidence to be unreliable. Mr. Jackson's memory of the events was admittedly not clear and complete save and except where he was standing in relation to his car at the time he was searched. He did not have the benefit of notes to refresh his memory and he was understandably distracted at the time by the pending birth of his child and his need and desire to be with his baby's mother in Toronto.

[101] On the other hand, PC Elliot provided straightforward and consistent evidence regarding the events of that morning. He had an independent recollection of the events and was able to refresh his memory as required using notes he had made at the time or shortly thereafter.

[102] On all the evidence before me, I make the following findings of fact:

• At approximately 12:30 am on February 7, 2015 Mr. Jackson was driving his yellow Mazda Protégé on the #401 westbound back to London from Toronto where his girlfriend/wife was in labour delivering his baby;
• At the same time, PC Elliot who was in uniform was operating a marked cruiser westbound on the #401. The highway consisted of three lanes west bound and three lanes eastbound. The temperature was - 10 degrees. He was following the yellow Mazda Protégé in the centre lane at 12:36 am when he saw the car accelerate which caused the officer to investigate the driver's speed.
• He then saw the driver of the Mazda make an erratic lane change from the centre lane across the slow lane and eventually onto the shoulder of the off ramp at Veterans Memorial Parkway.
• The officer activated his roof lights. He saw the car's nose dive forward as it came to a violent and hard stop due to what appeared to be a "full brake application."
• He approached the Mazda on the passenger side (due to location of the stop on a highway) and told the driver that the driver had been stopped for aggressive driving and speeding. The officer had a very good view of the interior of the car by way of his flashlight.
• The officer became immediately concerned about impaired driving due to the observations he had made regarding the driving and the observations he was making as he interacted with the driver immediately after the stop all of which are described above.
• For the reasons noted above, PC Elliot returned to his cruiser to request the attendance of a second officer to make an arrest for impaired driving by a drug contrary to s. 254(3) of the Criminal Code.
• Approximately ten minutes lapsed while PC Elliot and Mr. Jackson sat in their respective vehicles.
• Mr. Jackson was told to get out of his car and further told that he was under arrest for impaired driving by a drug. Mr. Jackson then reached for a pocket in his jacket causing PC Elliot to be concerned for his safety or the concealment of a drug.
• After the search, Mr. Jackson was placed in PC Elliot's cruiser where he was given his rights to counsel and cautioned.
• Mr. Jackson initially indicated that he did not wish to contact a lawyer/duty counsel but changed his mind at the station once he was given his rights pursuant to s. 10(b) again.
• Mr. Jackson spoke to duty counsel in private at the police station.
• 21 grams of crack cocaine and 29.5 grams of powder cocaine were found on Mr. Jackson along with a knife, a crack pipe and ultimately a set of scales.

[103] On the basis of all of the evidence elicited during the voir dire, I am satisfied that PC Elliot had reasonable and probable grounds to lawfully arrest Mr. Jackson for impaired driving.

[104] I am further satisfied that in view of the location of the stop in an isolated area just outside of London, the fact that it was dark, the fact that he was going to be transporting Mr. Jackson back to the police station in his cruiser and in view of the movement of Mr. Jackson's hand toward his coat pocket when he was informed he was under arrest, the police search of Mr. Jackson was reasonable as a search incident to arrest.

[105] The three main purposes of a search incident to arrest are (a) ensuring the safety of the police and the public; (b) the protection of evidence from destruction at the hands of the arrestee or others; and, (c) the discovery of evidence that can be used at the arrestee's trial[^3].

[106] I am satisfied that this search in this case was based on the safety of the officers involved and that this was a reasonable basis in all of the circumstances. The number of officers may well be irrelevant if one person in the fray has a weapon. The strength of the officers may well be irrelevant if one person in the fray has a weapon. These two factors do not therefore oust the reasonableness of an officer's concern for his own safety and the safety of other officers involved.

[107] The lawfulness of this search incident to arrest flows from the lawfulness of the arrest itself and so does not require independent reasonable grounds[^4]. In addition, the search was limited in its scope to the clothing Mr. Jackson was wearing.

[108] I find that there was no breach of Mr. Jackson's rights under s. 8 of the Charter.

[109] I am also satisfied that this was not an arbitrary detention. PC Elliot stopped Mr. Jackson from driving for a lawful purpose. He stopped the vehicle for traffic safety reasons. Early in that stop, he formed the reasonable and probable grounds to believe that the offence of driving a motor vehicle while the ability to do so was impaired, had been committed.

[110] As in R. v. Lutchmedial [^5], Mr. Jackson's initial detention was lawful pursuant to s. 216(1) of the Highway Traffic Act. The Court of Appeal found in that case that, "[t]he lack of reasonable grounds to arrest the appellant for impaired driving did not convert his detention into an arbitrary detention. The appellant’s continued detention was justified to further the investigation into his horrendous driving. The observations of the breathalyzer technician were admissible as evidence of impairment because they did not arise as a result of a Charter violation. The observations made by the breathalyzer technician could have been made by any police officer at the station. The appellant was not arbitrarily detained."

[111] I find that the police did not breach Mr. Jackson's rights under section 9 of the Charter.

[112] I am also satisfied that upon getting out of his car, Mr. Jackson can reasonably be supposed to have understood the reason for the police investigation. He knew that he was being placed under arrest for driving while his ability to do so was impaired by a drug.

[113] Turning now then to the allegation that Mr. Jackson's rights under s. 10(b) of the Charter were breached.

[114] Police are not required to give a detained person his/her s. 10(b) rights during a brief lawful Ontario Highway Traffic Act roadside stop[^6]. The Court has ruled that, "The exercise of the rights guaranteed by s. 10(b) is incompatible with the brief roadside detention contemplated by a stop made for road safety purposes."[^7]

[115] I am concerned, however, that the informational component of Mr. Jackson's rights to counsel was not provided immediately to him at the time he was arrested. On the other hand, it is very clear that any delay between Mr. Jackson's arrest and the provision of his rights to counsel under section 10(b) of the Charter in the cruiser was very brief indeed - under a few minutes.

[116] I agree with the Crown that any statements made by Mr. Jackson, both inculpatory and exculpatory, were voluntary and made after he was advised of his rights under s. 10(b) and cautioned.

[117] I accept the evidence of PC Elliot that he placed Mr. Jackson in the cruiser and read the section 10(b) rights and caution there as well as the drug demand rather than at the roadside in view of the cold temperature outside.

[118] I am satisfied that Mr. Jackson's rights under s. 10(b) of the Charter were not breached.

[119] In the event that I have erred, however, in regard to the finding that the police did not breach Mr. Jackson's rights under section 8, 9 and 10(b), I turn to a consideration of s. 24(2) of the Charter.

[120] But before I do so, I wish to address the argument made by Mr. Jackson, as I understand it, that by virtue of a change in Mr. Jackson's jeopardy from being investigated for an offence under the Ontario Highway Traffic Act to an offence under the Criminal Code, he ought to have been given his rights to counsel.

[121] It is clear law that the failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee’s decision to cooperate with the police or not is informed as well as free.

[122] In this case, Mr. Jackson had not yet been arrested. An investigation was ongoing as he was speaking to the officer. The jeopardy always was driving related. There was no issue that any initial advice was no longer sufficient or correct. This was a traffic stop that through investigation of the driver resulted in his arrest of a criminal offence.

[123] I turn now then to a consideration of s. s. 24(2) of the Charter in this case.

[124] The Supreme Court R. v. Grant[^8]outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence brings the administration of justice into disrepute. They are:

(a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on the Charter- protected interests of the accused; and (c) society's interest in the adjudication of the case on its merits.

[125] In consideration of these three factors, I am satisfied that even if I were wrong and the police had in fact breached any one or more of Mr. Jackson's Charter rights as set out in sections 8, 9 and 10(b) and as alleged, the admission of this evidence would not bring the administration of justice into disrepute.

[126] Firstly, there is no probative evidence that there was a reckless or willful disregard of Mr. Jackson's Charter rights. The law is also clear that 'good faith' on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. I am satisfied that at all times the police were concerned for their own safety and the safety and wellbeing of Mr. Jackson and the public. There is no need for the Court to dissociate itself from their conduct.

[127] Further, there is no evidence that any of the Charter-infringing conduct, if I am in error, was part of a pattern of abuse that tends to support exclusion of the evidence seized during the search.

[128] I find that the impact of a Charter breach in this case, if there were such a breach, was fleeting and technical with respect to s. 10(b) but the breach of s. 8 in this case, would have a substantial impact on Mr. Jackson's rights under that section.

[129] Finally, I am entirely satisfied that the truth-seeking function of the criminal trial process referred to by the Court in R. v. Pasian[^9] would be better served by admission of this evidence.

[130] Should the evidence be excluded, the prosecution will not have any case against Mr. Jackson with respect to this charge. Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. There is no doubt about society's interest in prosecuting offences dealing with possession of drugs for the purpose of trafficking.

[131] The drugs existed entirely independently of any Charter breach and is considered non-conscripted evidence. There is no dispute that the illicit drugs are of high significance to the prosecution. This is not a case that can be proven by the Crown through other evidence that does not involve a Charter breach.

[132] As the Court has explained in R. v. Harrison [^10], "[t]he balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[133] Having taken all of the evidence into account in the context of the three factors set out above, I find that the balancing of all of the s. 24(2) factors militate in favour of admission of the evidence.

Conclusion

[134] The applicant has not met his onus to establish a breach of his rights guaranteed by sections 8, 9 and 10(b) of the Charter.

[135] Even if I were wrong in this regard with respect to any or all of the Applicant's allegations of a breach of the Charter, I am satisfied that pursuant to s. 24(2) of the Charter, the evidence ought to be admitted at trial.

Justice L. Templeton

Justice L. C. Templeton

Date: November 8, 2016

[^1]: In the Applicant's Factum (Summary of the Facts), it is also noted that PC Elliot saw white foam at the corners of Mr. Jackson's mouth and around his lips. [^2]: 2010 SCC 24, [2010] 1 SCR 851 [^3]: R. v. Caslake 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 [^4]: R. v. Caslake 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 [^5]: 2011 ONCA 585, [2011] O.J. No. 3999 (Ont. C.A.) [^6]: R. v. Harris [2007] O.J. No. 3184 (Ont. C.A.) [^7]: R. v. Orbanski et al 2005 SCC 37, [2005] S.C.J. No. 37 [^8]: 2009 SCC 32, [2009] S.C.J. No. 32 [^9]: [2015] O.J. No. 1712 [^10]: 2009 SCC 34, [2009] 2 S.C.R. 494