CITATION: R. v. Mark, 2017 ONSC 2206

COURT FILE NO.: CR-16-7-44

DATE: 20170419

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ELIJAH KEDAR MARK

Leslie Paine, for the Crown

Rohan Michael Robinson, for the accused

HEARD: February 13-17, 21-23, 2017

K.L. Campbell J.

Pre-Trial Charter Ruling

I

Overview

[1] The 24-year-old accused, Elijah Kedar Mark, currently faces an indictment that charges him with a number of firearm and drug offences. More specifically, the accused is charged with the following six offences: (1) possession of a restricted or prohibited firearm (a handgun), knowing that he was not the holder of a license under which he may possess it, contrary to s. 92(1) of the Criminal Code, R.S.C. 1985, chap. C-46 ; (2) possession of a loaded restricted or prohibited firearm (a handgun), while he was not the holder of an authorization or license for the firearm, contrary to s. 95 of the Criminal Code; (3) possession of the proceeds of crime (money) having a value not exceeding $5,000, contrary to s. 354(1) of the Criminal Code; (4) trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, chap. 19; (5) possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; and (6) possession of marihuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. All of these offences are alleged to have been committed by the accused in Toronto on September 23, 2014.

[2] On the afternoon of September 23, 2014, members of the Toronto Police Service (TPS) were involved in a surveillance operation at the Ashbridges Bay Park, located just south of Lakeshore Boulevard East, between Coxwell and Woodbine Avenues. There had been a recent rash of thefts from automobiles parked at that location, and the police were trying the catch the perpetrators.

[3] During the course of their surveillance investigation, the accused was observed driving into the parking lot, and parking his black Nissan Altima at the northern most end. He remained in the vehicle, with the windows down, talking on his phone. At some point, a man on a bicycle approached the Nissan. As a result of the brief interaction observed to take place between the accused and this cyclist, the police suspected that there had been a hand-to-hand drug transaction between them. Uniformed police officers subsequently detained the accused, briefly questioned him, removed him from his automobile and then placed him under arrest. As the police were about to search the interior of the Nissan, the accused broke free from the officer that had arrested him, and quickly fled from the area on foot. The police gave chase and, eventually, the accused was apprehended.

[4] The police officer that remained with the Nissan when the foot chase commenced, and with the marked police scout car that had blocked its path, testified that he quickly searched under driver’s seat of the Nissan, where the accused had appeared to be trying to hide a black “fanny-pack” as he was exiting his vehicle, and the officer found a black “JanSport” bag which, when opened, was found to contain a significant quantity of crack cocaine and a loaded semi-automatic handgun. Subsequently, a significant quantity of marihuana was found in the center console of the Nissan.

[5] The accused has brought a pre-trial application seeking the exclusion of this evidence, on the basis that the police violated his constitutional rights as guaranteed by ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. Essentially, the accused contends that the police arbitrarily detained him, without advising him in a timely way of the reasons for his detention, or his right to counsel, and unreasonably searched his vehicle. Further, the accused argues that, in their testimony, the police officers involved in this investigation have lied about what happened that day in the parking lot. The accused argues that, in the result, the cocaine, the marihuana and the loaded handgun should all be excluded from evidence under s. 24(2) of the Charter of Rights.

[6] The Crown concedes that the police violated ss. 10(a) and 10(b) of the Charter in detaining the accused without advising him of the reasons for his detention or his right to counsel, but contends that the accused was not arbitrarily detained, and that the vehicle search conducted as the accused was fleeing the police following his arrest was also Charter-compliant. The Crown argues that, while the evidence of the police officers is, in many respects, inconsistent, the officers all testified honestly. The Crown argues that, in any event, the physical evidence that was seized from the accused’s Nissan should not be excluded under s. 24(2) of the Charter.

II

The Factual Background

A. Introduction

[7] On the blended voir dire proceedings that were conducted in order to determine the admissibility of the contested evidence, the court was provided with the viva voce testimony of the accused and six police witnesses, namely, Cst. Paul Ingley, Cst. Malik Amah, Cst. Jian Zhang, Cst. Joseph Pisano, Sgt. Roger Forde, and Cst. Curtis Celestine. Other materials were also filed, including a transcript of the preliminary inquiry proceedings in this matter, and audio recordings of the various radio transmissions that took place between the police officers on the afternoon of September 23, 2014.

[8] I will not review the details of all of the evidence on this application. It is in many respects conflicting and inconsistent. While the key events of September 23, 2014 took place over a relatively short period of time, the various police officers who witnessed and participated in these events described them, in many respects, very differently. The accused offered his own version of those events, and his evidence was, in many respects, very different from the evidence provided by the police witnesses. Some of the important factual disputes between the parties will have to be resolved, and some findings about the credibility and reliability of witnesses will have to be made. Significantly, the audio recordings of the radio transmissions provide an objectively accurate record of what exactly was said between the various police officers on the afternoon of September 23, 2014, and precisely when these various transmissions took place.

[9] There is one issue I wish to address at the outset. It relates to the testimony of the police witnesses. As I have indicated, defence counsel has alleged that the many inconsistencies in the testimony of the police witnesses, especially when measured against the objective record of their radio transmissions, establishes that the police officers who testified in this matter were, to varying degrees, deliberately fabricating important aspects of their testimony. I reject this contention. In my view, none of the police officers who testified on this application lied. There is no gainsaying the fact that their testimony is, in many important respects, inconsistent and conflicting, if not irreconcilable. But, that does not establish that they were involved in a conspiracy to provide fabricated testimony to the court. In this regard, it is important to appreciate the frailties of human perception and memory. Each of these officers witnessed the relevant events from a different physical location and from their own unique perspective. Most of the relevant events unfolded in a very short span of time, and involved a number of individuals doing and saying different things during that period of time. Further, these events all took place well over two years earlier. It should not be surprising, therefore, that these officers saw and recalled the relevant events differently in many respects. In any event, as I have indicated, I am not satisfied that any of the police witnesses lied in their evidence as to what happened on the afternoon of September 23, 2014.

[10] With that important conclusion in mind, without reviewing in detail all of the evidence adduced on the blended voir dire, I find the relevant facts to be as follows.

B. The Relevant Facts – The Chronology of Events

1. Setting Up the Surveillance Operation

[11] On the afternoon of Tuesday, September 23, 2014, Cst. Ingley, Cst. Amah and Cst. Zhang of the TPS were detailed to attend at Ashbridges Bay Park to conduct a surveillance operation in the large parking lot area associated with the Park, with a view to apprehending any offenders who might be engaged in stealing property from any of the parked vehicles in that location. All three police officers were dressed in plain clothes and acting in an undercover capacity. They arrived at the Park together at approximately 2:25 p.m.

[12] Upon their arrival at the Park, Cst. Ingley remained inside their unmarked, older model, green, Dodge Caravan mini-van with tinted windows, which was parked near the middle of the parking lot. He was planning to make his observations of the parking lot activity from inside the vehicle, and so he sat in the back seat of the mini-van, where he had a 360 degree view of the parking lot area around him. It was a sunny, hot afternoon, so he left some of the windows partially open.

[13] The other two plain clothes officers, Cst. Amah and Cst. Zhang, simply walked around the grassy, treed, park area to the south of the parking lot, making their observations as they strolled through the Park.

[14] The police officers were able to communicate with each other through their portable police radios, and they used a couple of different channels in order to do so. Each of the officers knew that, in accordance with standard police practice, their communications over these radios were being recorded.

[15] Cst. Celestine and his escort, Cst. Sudmals, were detailed to assist in this surveillance operation. They were both in police uniforms and in a marked police cruiser, which was parked near the intersection of Coxwell and Eastern Avenues, north of Lakeshore Blvd. Their responsibility was to simply wait in this nearby location so that, in the event of an arrest, they could transport any arrested individuals back to the police station. Cst. Celestine and Cst. Sudmals also had a police radio and were monitoring the radio communications between the plain clothes surveillance officers.

2. The First Arrival of the Accused in His Black Nissan

[16] The early afternoon was largely uneventful for the officers. As Cst. Ingley mentioned over the radio, at around 2:43 p.m. it was “pretty quiet” with only approximately 30 cars in the parking lot. Subsequent radio transmissions by the officers reveal that there were some observations made of innocuous individuals coming and going to and from the park, as well as some joking between the officers to keep each other alert and engaged. At around 3:35 p.m., Sgt. Forde, their superior officer who was monitoring this surveillance operation through the radio communications from his location at 55 Division station, told them that he liked to hear a “little bit of chatter” amongst them, so that he would know that they were “out there.”

[17] In the early afternoon, at approximately 2:50 p.m., the accused arrived in the Ashbridges Bay Park parking lot, driving his black Nissan Altima, with Ontario license plate marker BRNA 025. He parked his vehicle about 20 meters north-west of the unmarked, green mini-van. The accused was alone in his Nissan, and Cst. Ingley watched him, as he remained seated in the driver’s seat of his Nissan. As Cst. Ingley recalled, the accused was the only one that day who remained in his parked car. The others who arrived at the Park that afternoon all parked their respective vehicles, exited, and went to the beach at the Park.

[18] Cst. Ingley asked Cst. Celestine to conduct a Canadian Police Information Centre (CPIC) check on the vehicle. Cst. Ingley did not have access to a police computer in his undercover vehicle (i.e. the green mini-van), so he asked Cst. Celestine to conduct the check. Initially, Cst. Ingley thought that he made this request over the police radio, but he later recalled that he made this request of Cst. Celestine over his cell phone. There was clearly no such request made over the police radio as there is no recording of any such transmission. In his testimony, Cst. Celestine confirmed that this CPIC request by Cst. Ingley was made by cell phone. The results of this CPIC check came back as “10-60,” meaning that it was “negative” and “clear” but for some Highway Traffic Act offences.

[19] The accused remained sitting in his parked Nissan for approximately 40-45 minutes, and then he started his vehicle and drove out of the parking lot.

3. The Second Arrival of the Accused in His Black Nissan

[20] At approximately 4:05 or 4:10 p.m., the accused returned to the Ashbridges Bay Park parking lot. Again, he was driving his black Nissan Altima, with Ontario license plate marker BRNA 025. The accused parked his vehicle in the same parking spot, about 20 meters north-west of the unmarked, green mini-van. Again, the accused was alone in his vehicle, which was parked facing south (i.e. facing the green mini-van), and Cst. Ingley “instantly recognized” the accused and his vehicle from his earlier attendance in the parking lot. Cst. Ingley watched him as he remained seated in the reclined driver’s seat of his Nissan, with his car windows down, talking on his cell phone.

[21] The accused testified that on the afternoon of September 23, 2014, he only went to the Ashbridges Bay Park parking lot once – not twice. More specifically, he testified that he remained in his residence that day until approximately 4:00 p.m., at which point he drove the short distance to the Ashbridges Bay Park parking lot. I reject this evidence.

[22] The evidence of the accused on this issue is inconsistent with the testimony of Cst. Ingley, whose testimony I accept on this point, and who detailed how the accused visited the park twice that day in his Nissan. The evidence of the accused on this issue is also inconsistent with the testimony of both Cst. Ingley and Cst. Celestine, as to how they had earlier worked together to conduct a CPIC check on the accused’s black Nissan, license plate marker BRNA 025, when he first arrived in the parking lot. Importantly, at 4:21:33 p.m., in the recorded radio transmission in which Cst. Ingley first mentioned seeing a “cyclist” getting into the accused’s black Nissan, and suspected that they were “doing some exchange,” possibly a “drug deal,” in the vehicle, Cst. Ingley expressly stated that, with respect to this vehicle, he “had Celestine run it earlier,” clearly referring to the earlier CPIC check that Cst. Ingley had Cst. Celestine run on the accused’s black Nissan. In my view, this recorded radio transmission by Cst. Ingley proves the fact of the earlier CPIC check on the accused’s black Nissan vehicle and the earlier attendance by the accused, in his vehicle, at the Ashbridges Bay Park parking lot. This real-time radio transmission by Cst. Ingley also establishes that the accused was being untruthful in this aspect of his testimony.

[23] I have no doubt that the accused knew full well that he made two trips to the parking lot that afternoon, despite his testimony that he was only there once. This reflects adversely on his credibility and reliability as a witness.

4. The Suspected Drug Transaction With the Cyclist

[24] At approximately 4:20 p.m. Cst. Ingley observed a white male, with longer reddish-brown hair, and wearing a beige fishing hat, riding a gold and red mountain bike through the middle of the Ashbridges Bay Park parking lot. The cyclist appeared to be looking for something. Once he noticed the accused’s black Nissan, he quickly pedaled his bike directly over to the vehicle. Knowing that there may have been two males involved in the thefts from parked vehicles, and knowing that one vehicle might have been used in these theft offences, Cst. Ingley focused his attention on the cyclist and the Nissan.

[25] Cst. Ingley watched the cyclist as he approached the passenger side of the Nissan. The cyclist then stopped, got off his bike, and lifted it over the short guard rail that was immediately behind the Nissan, so that his bike was parked just to the north of the Nissan, and on the north side of the guard rail, facing west.

[26] Once he had parked his bike, the cyclist walked straight to the front, passenger door of the Nissan, opened the door, got inside the vehicle, and shut the door behind him. As Cst. Ingley explained in his testimony, the cyclist had nothing in his hands as he walked from his parked bike to the front passenger door of the Nissan, and there was no greeting, acknowledgment, conversation, or other communication between the cyclist and the accused before the cyclist got into the front passenger seat of the Nissan.

[27] The cyclist was “in and out” of the Nissan “very quickly,” remaining inside for only approximately 30 to 45 seconds. During this brief period of time, Cst. Ingley observed the cyclist and the accused turn toward each other, and they appeared to engage in a brief conversation, although he could not hear what was being said. Cst. Ingley also observed the cyclist lift up the right side of his body in a way that suggested to the officer that the cyclist was possibly accessing his pocket. The cyclist then appeared to hand something to the accused. The accused appeared to look downward, and then appeared to pass something back to the cyclist. As Cst. Ingley explained, from the way the two men were moving their shoulders, it was clear to him that they were “interacting” with each other, even though he could not see their hands. Once the cyclist got out of the passenger side of the Nissan, Cst. Ingley observed that he briefly put his right hand into the right hip pocket of his pants. There were no parting words or gestures between the cyclist and the accused. The cyclist then returned to his bike, made some repair to the chain on his bike, and then quickly pedaled away from the area.

[28] Cst. Ingley believed that what he saw was a hand-to-hand “drug deal” taking place between the cyclist and the accused.

[29] The accused testified that the cyclist did not enter his Nissan, but rather, after getting off his bike and leaving it by his car, he leaned into the Nissan, through the front passenger window, made some small talk, telling the accused that he had a “nice car,” and then he asked the accused for a “cigarette” or a “lighter.” The accused agreed that this request was odd, and really did not make any sense, but he testified that he explained to the cyclist that he did not smoke, and therefore could not “help [him] out,” and the cyclist got back on his bike and rode away. I reject his evidence in this regard.

[30] The observations by Cst. Ingley are generally confirmed by the recorded radio transmission that he provided to the other police officers at 4:21:33 p.m. Importantly, in this radio transmission, Cst. Ingley expressly indicated, in outlining the nature of his real-time observation, that the cyclist was “just hopping into” the Nissan. This is clearly a real-time recording of the observation by Cst. Ingley that he was watching the cyclist entering the Nissan. Further, Cst. Ingley was not the only police officer who saw the cyclist enter the Nissan. Both Cst. Amah and Cst. Zhang also observed the cyclist ride his bike over to the Nissan, where he opened the door of the accused’s vehicle, get into the front passenger seat of the Nissan, and then close the door, only to leave again approximately a minute later.

[31] I have no doubt that the accused knew that the cyclist actually entered his vehicle, and sat in the front passenger seat of his Nissan for a period of time, as Cst. Ingley observed and reported in his contemporaneous radio transmission. The testimony of the accused to the contrary, that the cyclist did not enter his vehicle, reflects poorly on his credibility and reliability as a witness.

[32] During that same radio transmission, Cst. Ingley expressed his interest in having someone in “uniform” take steps to “stop” the cyclist for further investigation. During this same radio transmission exchange, Sgt. Forde said that he also wanted the “dealer stopped” for further investigation and both Cst. Celestine and Cst. Sudmals indicated that they would try to stop and investigate the cyclist. Cst. Ingley also expressed his interest in having someone in “uniform” investigate the accused, believing that if he has “something” in his Nissan, “you’re going to see it or you’re going to smell it.”

[33] In a subsequent recorded radio transmission exchange, at 4:29 p.m., after Sgt. Forde had another CPIC check performed on the accused and his black Nissan, he indicated that notwithstanding the “very, very low score” that was returned, the accused was “still a crack dealer to me.” Cst. Ingley replied that, based upon what he had seen, they should probably “get a car down here and get this guy out of his car.” However, as Cst. Celestine and Cst. Sudmals were pursuing the investigation of the cyclist, there were no other uniformed officers in a marked police vehicle available to investigate the accused, who remained sitting in his parked black Nissan, talking on his cell phone.

5. The Detention and Arrest of the Accused – The Police Investigation

[34] Eventually, at approximately 4:41 p.m. Cst. Michael Taylor and Cst. Joseph Pisano of the TPS arrived at the Ashbridges Bay Park parking lot. They were both in police uniform and were in a marked police cruiser. Cst. Taylor was driving the police vehicle and Cst. Pisano was in the front passenger seat. In an earlier recorded radio transmission, when they were accepting the detail to investigate the accused, Cst. Ingley told them that he had seen some possible “drug activity,” and he asked them to “box in” the Nissan, and “get [the accused] out of the car” for further investigation. That is, essentially, what they did. Once they located the parked Nissan, Cst. Taylor parked the police car directly in front of the Nissan, and perpendicular to the Nissan, such that the driver’s front door of the police car was directly in front of the Nissan.

[35] Cst. Ingley observed that the accused appeared to notice the marked police cruiser when it first entered the parking lot, and he watched as the accused focused his attention on the police cruiser, and move his driver’s seat from its reclined position back into its normal upright position.

[36] Cst. Taylor then got out of the police car and went to the passenger side of the Nissan, and asked the accused for his driver’s license and his registration for the Nissan. Cst. Pisano went to the driver’s side of the vehicle and stood by the front door. The windows of the Nissan were down. The accused retrieved the requested documentation from his wallet and provided them to Cst. Taylor, who then returned to the police cruiser. At that point, Cst. Ingley exited the green mini-van and walked over to the driver’s door of the Nissan.

[37] When he arrived at the Nissan, Cst. Ingley saw the accused sitting in the driver’s seat of his Nissan, staring straight ahead, with his eyes wide open. Cst. Ingley then leaned on the window sill of the driver’s door of the Nissan with his hands, and engaged the accused in conversation.

[38] By that point in time, Cst. Ingley had given no thought as to whether the accused had been “detained.” He had not told the accused that he was under detention, and had not informed him of the reasons for the police investigation. Nor had Cst. Ingley or either of the two uniformed officers informed the accused of his right to counsel. Cst. Ingley explained that he knew that providing the accused with these Charter rights was not “optional,” but rather was “mandatory,” and he was “not trying to omit” these Charter rights. However, at that point, he was “still trying to control his surroundings” and “gather and process his thoughts.” His adrenalin was still racing, and he wanted to make further observations and a “proper” decision without “rushing into it.” At the same time, he knew that if he began to question the accused, he might say something that might incriminate him. However, Cst. Ingley did not believe that the accused was detained, and he thought that he was entitled to pose questions to the accused. Similarly, Cst. Pisano did not believe that the accused had been detained at that point. However, Cst. Pisano conceded that they were investigating the accused for drug trafficking, and it would have been very difficult for the accused to try to drive away, given the way the police cruiser was parked in front of the Nissan.

[39] As he began to speak to the accused through the open driver’s window of the Nissan, Cst. Ingley “almost instantly” detected the smell of “fresh – not burnt – marihuana” coming from inside the vehicle. Cst. Ingley explained that he was familiar with the smells of both fresh and burnt marihuana, having been previously involved as a police officer in the seizures of large quantities of fresh marihuana and having dealt with people who had smoked marihuana, and he was “pretty proficient” at telling the difference. I appreciate that, as Rosenberg J.A. noted in R. v. Polashek (1999), 1999 3714 (ON CA), 45 O.R. (3d) 434, 134 C.C.C. (3d) 187 (C.A.), at para. 13, the sense of smell may be “highly subjective,” and smells are often “transitory” and “incapable of objective verification.” Nevertheless, while none of the other police officers smelled this marihuana, I accept the evidence of Cst. Ingley that he distinctly smelled “fresh marihuana” inside the Nissan when he leaned against the sill of the driver’s door of the vehicle. I reject the suggestion of defence counsel that this was just an invented “pretext” to justify the subsequent arrest and search of the Nissan.

[40] As to the nature of their conversation. Cst. Ingley began by asking the accused “what are you doing here?” The accused replied: “Just chilling.” Cst. Ingley then asked that accused who the male was who had gotten into his car. The accused replied that “he was just asking for a light.” Cst. Ingley believed that the accused was not being truthful in this response, as it was not what he had earlier observed. In their earlier interaction, neither the accused, nor the cyclist had been smoking, and neither had any lit cigarettes before or after their interaction. Further, Cst. Ingley thought it was unlikely that the cyclist would have entered the Nissan just to ask for a “light.” If that had been all the cyclist was doing, he would simply have remained outside the Nissan at the passenger window. According to Cst. Ingley, this untruthful “alibi” from the accused, together with the smell of fresh marihuana from inside the Nissan, augmented his grounds to believe that the accused had engaged in a drug transaction with the cyclist.

[41] The accused gave conflicting evidence as to which police officer was involved with him in this exchange regarding the cyclist. Initially, in his examination-in-chief, the accused said, on at least a couple of occasions, that it was the plainclothes officer (i.e. Cst. Ingley) who asked him the questions about the cyclist. Later in examination-in-chief, however, the accused said it was the uniformed officer (i.e. Cst. Pisano) who asked him the questions about the cyclist. In cross-examination, the accused firmly maintained that it was the uniformed officer (i.e. Cst. Pisano) who asked him the questions about the cyclist, and he explained that he had been mistaken, and had “misspoke” in his initial evidence on this subject. The accused offered no reasonable explanation for his initial “mistake.” Cst. Pisano denied having any such conversation with the accused. I find as a fact that it was the plain clothes officer (i.e. Cst. Ingley) who engaged in this dialogue with the accused, not the uniformed officer (i.e. Cst. Pisano). I accept the evidence of both Cst. Ingley and Cst. Pisano (and the initial “mistaken” testimony of the accused) in this regard, and I reject the subsequently “corrected” testimony of the accused that it was Cst. Pisano. I find as a fact that it was Cst. Ingley who spoke to the accused as he sat in his Nissan.

[42] After he had this brief conversation with the accused, and smelled the fresh marihuana from inside the Nissan, Cst. Ingley turned to his right to Cst. Pisano, who was standing just a couple of feet behind him, and he told Cst. Pisano to get the accused “out of the car” as he was “arrestable” for drug trafficking. More specifically, Cst. Ingley may have told Cst. Pisano something like: “He is good to go for trafficking – just get him out of the car.” As Cst. Ingley said this, he was standing just in front of, and beside, the driver’s door of the Nissan, so the accused was within “ear shot” of these instructions to Cst. Pisano.

[43] Cst. Pisano then approached the Nissan, opened the driver’s door, and asked the accused to get out of the car. Once the door was open, the accused began to get out of the Nissan.

[44] The accused testified that he was actually physically “pulled out” of the driver’s seat of his Nissan by Cst. Pisano. More particularly, the accused testified that he heard Cst. Ingley instruct Cst. Pisano to get him out of his car. At that point, according to the accused, Cst. Pisano opened his driver’s door, pulled him out of the car by his left arm, pushed him against the side of his car, and started to aggressively “pat [him] down.” I reject this evidence. Rather, I accept the testimony of Cst. Ingley, Cst. Amah and Cst. Pisano that the accused got out of his vehicle under his own steam, without the use of any force. I also accept that there was no immediate “pat down” search of the accused.

[45] Cst. Ingley, who had a full view of the driver’s compartment of the Nissan at this point, noticed that as the accused was exiting the vehicle, there was a black “fanny pack” that was “hanging from his hands” and resting on the edge of the driver’s seat. In “one fluid motion,” the accused put this fanny pack on the floor of the vehicle right in front of the driver’s seat and, as he was getting out with his left leg, he used his right foot to try to push the fanny pack underneath the driver’s seat. It was apparent to Cst. Ingley, from the way that the accused was “looking back” into the Nissan “to see how far he got” the fanny pack under the front driver’s seat, that he “obviously had some kind of interest in the fanny pack,” and was deliberately trying to “conceal” it under the driver’s seat.

[46] The accused denied that he manipulated the fanny pack in the way Cst. Ingley described, and maintained that his fanny pack was, at all times, already stored beneath the driver’s seat of his vehicle. I accept the testimony of Cst. Ingley and reject the evidence of the accused on this topic. Significantly, Cst. Pisano confirmed, to a significant extent, the evidence of Cst. Ingley on this issue, as he too observed the accused put the black fanny pack on the floor of the Nissan in front of the driver’s seat. Cst. Pisano had initially seen the fanny pack on the accused’s lap. Cst. Pisano did not see the accused use his foot to try to push the fanny pack underneath the driver’s seat as he was exiting the Nissan. Nevertheless, I accept the evidence of Cst. Ingley on this point. I find as a fact that the accused tried to push his black fanny pack under the driver’s seat when he was exited the Nissan.

[47] Once the accused was out of the vehicle, Cst. Pisano directed him more toward the back of the vehicle, and then took control of him with his hand and told the accused that he was under arrest for “trafficking.” The accused then stood silently by the rear of the closed Nissan driver’s door, next to Cst. Pisano, who physically maintained a hold on the accused’s arm. At that point, Cst. Ingley noticed that the accused was fidgeting with a patterned, red bandana, and he was “shaking and sweating.” It was, however, a hot afternoon. The accused was looking at the closed driver’s door of his vehicle.

6. The Flight of the Accused – The Vehicle Search

[48] From all that he had witnessed, Cst. Ingley thought that the accused had been trying to conceal something in the fanny pack, and he opened the driver’s door of the Nissan in order to locate and access the fanny pack. Simultaneously, as Cst. Ingley was opening the door, the accused broke away from Cst. Pisano, took flight and ran away. He quickly jumped over the guard rail behind his Nissan, and headed north-west across Lakeshore Blvd. toward Woodbine Park. He was holding his waistband as he ran away. Cst. Taylor and Cst. Pisano immediately gave chase and used their respective police radios to seek other police assistance and track the trail of the accused. These radio transmissions announcing and describing this “foot pursuit” confirm that the accused ran away from the scene at approximately 4:43 p.m.

[49] Cst. Ingley remained at the scene with the vehicles. He quickly located the black “JanSport” fanny pack from under the driver’s seat, and he opened its zippered front pouch. Cst. Ingley described the fanny pack as “heavy” and, when he opened the front pouch, he found some small individually wrapped pieces of aluminum foil in the shape of a ball, and some small tied white plastic bags, also in the shape of a ball. Cst. Ingley suspected that each of these packages contained quantities of crack cocaine, and subsequent testing revealed that this suspicion was correct. These numerous small packages contained a total of over seven grams of crack cocaine, having a street value of approximately $700. When Cst. Ingley opened the other zippered pouch of the fanny pack he discovered a prohibited firearm, namely, a black, .40 calibre, “Springfield Armory,” semi-automatic handgun. Upon making this discovery, Cst. Ingley immediately yelled “gun” for the benefit of the other officers in the area, and then announced that he “recovered a firearm” over the police radio.

[50] Cst. Ingley explained that he accessed the pouches of the fanny pack because the accused was “going to be arrested,” but ran away “from something that was in the pouch.” He explained that he viewed his search of the fanny pack as a “search incident to the arrest” of the accused.

[51] The accused provided a different version of events as to what happened once he was outside of his vehicle. Essentially, he testified that Cst. Ingley told him that they were going to search his vehicle and, if nothing was found, he would be free to go. When the accused asked why they needed to search his car, Cst. Ingley told him that if he had “nothing to hide” he would have “no problem.” One of the officers told him to “shut the fuck up.” According to the accused, his fanny pack containing his drugs and loaded firearm were at all times under the driver’s seat of his vehicle. He testified that Cst. Ingley then began searching the interior of his vehicle. After he had searched the side panel of his driver’s door, under the driver’s sun visor, around the cushions of the driver’s seat, he reached under the seat and discovered the black fanny pack. After Cst. Ingley opened the pockets of the fanny pack and discovered the drugs and the firearm, the accused panicked, “broke free” of the hold that Cst. Pisano had on his arm, and “took off.” The accused claimed that he was in fear of his safety and was afraid that the police might shoot him or beat him up, so he fled from the scene.

[52] I reject this aspect of the accused’s evidence in its entirety. The accused was untruthful in other aspects of his evidence, and I find that this aspect of his evidence is also false. Instead, I accept the evidence of Cst. Ingley as to the sequence of events that took place once he arrived at the driver’s door of the Nissan. I find as a fact that there was no search of the interior of the accused’s vehicle until the accused started to run away. Cst. Amah confirmed that, from the time that the accused got out of his car, until the time that he fled from the scene, no police officers entered the Nissan. I also find that the accused did not flee the scene because of any fear of the police, but rather because he realized that he was being arrested and he knew that the police would inevitably find his drugs and his firearm, and he wanted to avoid being arrested for his crimes in relation to his criminal possession of this contraband.

[53] Cst. Amah and Cst. Zhang, who were still in the grassy, treed area of the park when the marked police cruiser arrived, eventually attended in the area of the Nissan a few minutes later. Ultimately, the accused was not successful in his efforts to escape, and he was again in police custody by approximately 4:46 p.m. This time was confirmed by the radio transmissions of officers who had been giving chase. It was Cst. Pisano who was eventually able to recapture and handcuff the accused, but not before he needed to employ some force to overcome the physical resistance of the accused and get him to succumb. Once the accused was back in custody, he was advised of his right to counsel.

[54] After accessing the fanny pack, Cst. Ingley and Cst. Amah continued to search the interior of the Nissan. Two nearly fully charged cell phones were located in a portion of the center console of the Nissan, in the area of the cupholder. These phones continued to ring frequently while the police searched the Nissan. In addition, Cst. Amah located a significant quantity of marihuana (a total of approximately 11.48 grams), contained in four individually tied, plastic “No Frills” bags, inside the center console of the Nissan vehicle. These were not “vacuum packed” bags of marihuana. When Cst. Amah was asked to prove the semi-automatic firearm from the fanny pack safe, he removed the clip or magazine from the handgun and found that it contained nine bullets. However, the chamber was empty. Subsequent examination revealed that this was a properly functioning semi-automatic handgun.

[55] Cst. Zhang made the arrangements for the tow truck to move the Nissan to the police property unit. Cst. Zhang also conducted an inventory search of the Nissan before sealing the vehicle.

III

Analysis

A. The Detention Was Not Arbitrary – But Based on Reasonable Suspicion

[56] In my view, the accused was “detained” for purposes of ss. 9 and 10 of the Charter of Rights when he was “boxed in” by the arrival of the police cruiser and approached by Cst. Taylor and Cst. Pisano. The Crown did not suggest otherwise. Indeed, the Crown conceded that, at that point in time, the accused was detained. The driver’s door of the police car was parked directly in front of the black Nissan, with the police car perpendicular to the Nissan. Given that there was a guard rail immediately behind the Nissan, and a police car right in front of the Nissan, the accused would have had great difficulty trying to manouever his vehicle if he had wanted to leave. He would not have been permitted by the police to leave the area in any event. While there was no physical restraint upon the accused, and no clear demand or direction restricting his liberty, a reasonable person in the circumstances of the accused would have concluded that they were no longer free to choose whether or not to cooperate with the police. Not surprisingly, the accused testified that he felt that he was being detained by the uniformed police officers, and would not have been permitted to leave the area. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 24-44; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 3-5, 21-34.

[57] Contrary to the submission of defence counsel, however, this was not an arbitrary detention in violation of s. 9 of the Charter. Rather, the detention of the accused was properly based upon an objectively reasonable suspicion on the part of Cst. Ingley, based upon the totality of the circumstances, that the accused had earlier been involved in a hand-to-hand drug transaction in his car with the cyclist. In other words, a reasonable person standing in the shoes of Cst. Ingley would also have concluded that, based upon all of the circumstances of the investigation, there was a reasonable suspicion that the accused had been engaged in trafficking drugs to the cyclist. Recall, of course, that when applying the objective standard of “reasonable suspicion,” the question is only whether the totality of the investigative circumstances objectively reveal the reasonable possibility of criminal behavior – not the reasonable probability of criminal behavior. See R v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 23-35, 45; R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 (C.A.) at p. 499; R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras. 19-20; R. v. Whyte, 2011 ONCA 24, 266 C.C.C. (3d) 5, at para. 31; R. v. Amofa, 2011 ONCA 368, 85 C.R. (6th) 265, at para. 12-26; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 250, at paras. 3, 6, 22-37, 32; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 35-40, 63-65, 71-74, 86; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 34-38; R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, at paras. 24, 28-31.

[58] The accused had parked his black Nissan in the very same parking space at the northern most point of the Ashbridges Bay Park parking lot twice that day. This was a high crime area and, each time, the accused remained alone in his vehicle talking on his cell phone. When the cyclist entered the parking lot, apparently looking for something, he made a beeline for the black Nissan as soon as he saw it. After parking his bike against the guard rail, the cyclist entered the Nissan through the front passenger door without greeting the accused in any way. It appears to have been a pre-arranged meeting. At that point, Cst. Ingley saw a brief interaction between the accused and the cyclist. Based upon the actions of the two men, Cst. Ingley honestly believed that they engaged in a hand-to-hand drug transaction. The cyclist seemed to put something in his pocket when he exited the Nissan, and then he quickly left the area on his bike.

[59] In these circumstances, the detention of the accused was not based on any mere experienced-based hunch, police speculation, or intuitive guesswork, but rather was based upon objectively reasonable grounds to suspect that the accused had committed the offence of drug trafficking. Further, the police were acting in the exercise of their investigative duties and the detention of the accused was reasonably necessary in the totality of the circumstances. See R. v. Mann, at para. 34; R. v. MacKenzie, at para. 35; R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191, at paras. 39-41;R. v. McGuffie, at paras. 35-38. Accordingly, in my view, in detaining the accused for investigative purposes, there was no violation of his rights under s. 9 of the Charter.

B. Violation of Sections 10(a) and 10(b) of the Charter of Rights

[60] While the police were lawfully permitted to detain the accused in furtherance of their investigation of his earlier activities with the cyclist, when the police effected this investigative detention, they were constitutionally obliged to: (a) promptly inform the accused of the reasons for his detention; and (b) inform the accused of his right to counsel without delay. However, none of the police officers involved in the investigative detention of the accused complied with either of these obligations.

[61] Knowing that the two uniformed officers who had just arrived in their police car were new to the investigation and were simply acting on his instructions, and knowing that they had not complied with ss. 10(a) or 10(b) of the Charter, it logically fell to Cst. Ingley to inform the accused of the reasons for his detention and explain his right to counsel immediately upon arriving at the side of the Nissan. He did not. As he indicated in his evidence, Cst. Ingley knew that providing the accused with these constitutional rights in a timely way was not “optional,” but he failed, in my view, to properly comply with his constitutional obligations in this regard because he did not believe that the accused had yet been detained.

[62] In any event, in failing to honour these important constitutional obligations following the detention of the accused, the police violated the accused’s rights under ss. 10(a) and 10(b) of the Charter. See R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, 50 C.C.C. (3d) 1, at pp. 152-153; R. v. Smith, 1991 91 (SCC), [1991] 1 S.C.R. 714, 63 C.C.C. (3d) 313, at p. 728; R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, 92 C.C.C. (3d) 404, at p. 166; R. v. Suberu, at paras. 2, 37-42. As I have indicated, the Crown did not suggest otherwise, but rather fairly conceded the fact of these Charter violations.

C. Search of the Vehicle was Reasonable and Complied with s. 8 of the Charter

[63] When the accused was detained, the police were lawfully entitled to ask him to get out of his car, so that they could safely speak to him face-to-face. They were not obliged to permit the accused to remain in his vehicle while they conducted their investigation. Of course, allowing any detained suspect to remain seated in his or her vehicle during an investigative detention might potentially create a serious risk to officer and public safety. If a detained suspect was permitted to remain seated inside his or her vehicle, the police might only have an incomplete and obstructed view of his or her hands and actions, potentially permitting the detained suspect to surreptitiously gain access to a weapon, or attempt to destroy evidence. On the other hand, the additional step of having the already lawfully detained individual exit his or her vehicle is an insignificant additional intrusion on the personal liberty of the detained individual. Accordingly, the police were lawfully entitled to require the accused to exit his vehicle, in the interests of officer and public safety, before complying with their obligations under s. 10 of the Charter. See R. v. Suberu, at para. 42; R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3, 2005 SCC 37, at paras. 45-51; R. v. Crocker, 2009 BCCA 388, 247 C.C.C. (3d) 193, at para. 63; R. v. Patrick, 2017 BCCA 57, [2017] B.C.J. No. 188, at paras. 23-28, 43-44, 62, 94; Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977), at pp. 109-111; Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882 (1997), at pp. 884-886.

[64] Cst. Ingley certainly thought that he was lawfully entitled to have the accused get out of his car while he was being investigated by the police. That was why he indicated to Sgt. Forde, during their radio transmission exchange at approximately 4:29 p.m., they should get a marked police cruiser to the scene and “get this guy out of his car.”

[65] Of course, when Cst. Ingley and Cst. Pisano had the accused get out of his Nissan vehicle, in anticipation of Cst. Pisano effecting the arrest the accused, Cst. Ingley saw the accused’s actions in relation to the black fanny pack, and his efforts to try to hide the fanny pack under the driver’s seat of the Nissan. In my view, this effort to conceal a bag from the police as he was exiting the vehicle, in combination with the smell of marihuana emanating from the Nissan, and all of the other evidentiary considerations then known to the police, gave them reasonable and probable grounds to arrest the accused for drug trafficking. See R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, at paras. 21-23; R. v. Safarzadeh-Markhali, 2014 ONCA 627, [2014] O.J. No. 4149, at paras. 3-7, 9-10, 16-18; R. v. MacCannell, 2014 BCCA 254, 314 C.C.C. (3d) 514, at paras. 34-50; R. v. Harding, 2010 ABCA 180, 256 C.C.C. (3d) 284, at paras. 21-30.

[66] More particularly, as Cst. Ingley explained in his testimony, by that point in time he possessed all of the following information from the police investigation:

• At that time the Ashbridges Bay Park parking lot was a “high crime” area, but one without much pedestrian or vehicular traffic;

• The accused backed his Nissan vehicle into a parking space at the northern end of the parking lot, away from the other parked cars, and positioned it such that he had a view of the entire parking lot;

• The accused attended at the Ashbridges Bay Park parking lot, parked in the same parking space twice that day, and he was alone in his vehicle both times;

• When the cyclist came into the parking lot he appeared to be looking for something, and when he noticed the Nissan, he quickly pedaled his bike over to the vehicle and got inside passenger side of the vehicle without any gestures or greetings exchanged, suggesting that their meeting in the vehicle had been pre-arranged;

• The interaction between the cyclist and the accused in the Nissan was over very quickly (i.e. in less than a minute), and the cyclist left the area quickly on his bike after putting something in his pocket;

• By virtue of his observations of their physical interaction inside the Nissan, Cst. Ingley honestly believed that he saw a hand-to-hand drug transaction between the accused and the cyclist take place;

• The accused seemed to be constantly talking on his cell phone, especially after the cyclist left the area;

• When he was standing next to the open window of the driver’s front door of the Nissan, Cst. Ingley smelled the odour of “fresh” marihuana emanating from inside the Nissan; and

• When the accused was asked to exit the Nissan, he tried to surreptitiously conceal his fanny pack under the driver’s seat.

[67] The mere fact that Cst. Ingley had already concluded, before seeing the accused try to conceal his fanny pack under the driver’s seat of the Nissan, that the accused was “arrestable,” does not mean that this significant piece of evidence must be ignored in considering whether or not the arrest of the accused was based upon reasonable and probable grounds. As I have indicated, the police were lawfully entitled to have the lawfully detained accused exit his vehicle before complying with ss. 10(a) and 10(b) of the Charter, and the accused was not, in fact, arrested by Cst. Pisano until after he had exited the Nissan and Cst. Ingley and Cst. Pisano had seen the actions of the accused in relation to his fanny pack. See R. v. Amofa, at para. 19.

[68] In any event, the reasonable and probable grounds necessary to effect a lawful arrest may be based, in part, upon information obtained by the police after a decision has been made to arrest the accused, but before the arrest is actually effected. See E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed., 2015), vol. 1, § 5:0200, at p. 5-22.2. After all, it is the actual arrest that must be lawful and based upon reasonable grounds. If the arrest was ultimately based upon such reasonable grounds, it should matter not whether some earlier police decision to try to effect that arrest was based upon such grounds. Intervening events may well shed light on whether the arrest should, in fact, be carried out. Accordingly, as the Supreme Court of Canada observed in R. v. Biron, 1975 13 (SCC), [1976] 2 S.C.R. 56, 23 C.C.C. (2d) 513, at p. 72, the validity of an arrest “must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made.” See also R. v. Roberge, 1983 120 (SCC), [1983] 1 S.C.R. 312, 4 C.C.C. (3d) 304, at pp. 323-325.

[69] This very issue was determined by the Quebec Court of Appeal in R. v. Desbiens (1997), 34 W.C.B. (2d) 353. In that case the police had received tips from a number of different informants that the accused was trafficking in cocaine from inside a particular bar. One of the investigating police officers knew the accused very well, and was aware of his narcotics record. The police decided to arrest the accused and three officers then went to the bar to effect this arrest. When two of the uniformed officers entered the bar, the accused was seen to stuff something inside his pocket. When the police officer known to the accused asked the accused to accompany them outside, the accused took flight out the back door. However, the third officer had been posted at the back door of the bar, and he caught the accused and wrestled him to the ground. During this struggle, the accused pulled a plastic bag from his pocket and held it tight in his closed fist. When the accused was arrested, this bag was found to contain cocaine. At trial, the accused was acquitted after the trial judge found that the police did not have reasonable grounds for the arrest.

[70] The Quebec Court of Appeal reversed this decision and convicted the accused. In so doing, the court held that, in determining whether or not the police had the necessary reasonable grounds to effect a warrantless arrest, the court could properly consider the additional information the police obtained after they had decided to arrest the accused, but before the accused was in fact arrested. More particularly, in the circumstances of this case, the court held that the reasonable grounds needed to lawfully arrest the accused included: (1) the fact that as soon as the uniformed police officers entered the bar, the accused put something in his pocket; (2) when invited to accompany the police outside, the accused tried to run away; and (3) when the accused was wrestling with the police officer who later placed him under arrest, the accused grabbed a plastic bag from his pocket with his closed hand. The court rejected the argument that these additional facts could not be taken into account in assessing whether the police had grounds to arrest the accused, as they had already decided to arrest the accused before they left the police station. In so doing, the court noted that the additional information was subjectively known to the police before the arrest, and that a reasonable police officer, in the same circumstances, would have taken into account “all of the circumstances” of the investigation in deciding whether to arrest the accused.

[71] The Quebec Court of Appeal decision in R. v. Desbiens is an example of the application of the general legal principle that the validity of an arrest must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made. This decision also serves to illustrate that the necessary “reasonable grounds” for arrest may be based, in part, upon information learned by the police after deciding to arrest a suspect, but before the arrest is actually effected. In the circumstances of the present case, that means that the observations made by Cst. Ingley, as to how the accused sought to surreptitiously conceal his fanny pack under the driver’s seat as he exited his Nissan, may properly be considered in assessing whether the arrest of the accused was lawful.

[72] In outlining his grounds for having the accused placed under arrest, Cst. Ingley also noted: (1) the false “alibi” that the accused provided when asked about what the cyclist had been doing in the Nissan; and (2) the apparent nervousness/sweating of the accused once he was out of the Nissan, and standing next to Cst. Pisano. In fairness, in assessing the lawfulness of the arrest of the accused, I have put those two factors entirely aside, and have not considered them. The statement of the accused was elicited by Cst. Ingley in violation of ss. 10(a) and 10(b) of the Charter. See R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561, leave denied, [2011] S.C.C.A. No. 375; R. v. Paterson, 2017 SCC 15, at para. 23. Further, while it is not entirely clear on the evidence, it appears that the perceived nervousness of the accused was only observed by Cst. Ingley after he had been placed under arrest by Cst. Pisano. A police officer cannot rely upon evidence discovered after the arrest of the accused to justify the arrest. See R. v. Montgomery, 2009 BCCA 41, 241 C.C.C. (3d) 469, at para. 27.

[73] According to s. 495(1)(a) of the Criminal Code, R.S.C. 1985, chap. C-46, a peace officer may arrest without warrant a person who has committed an indictable offence or who, “on reasonable grounds,” he believes has committed or is about to commit an indictable offence. The statutory requirement of “reasonable grounds” means that: (1) the police officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the accused; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest. See R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at pp. 249-251; R. v. Hall (1995), 1995 647 (ON CA), 22 O.R. (3d) 289 (C.A.), 39 C.R. (4th) 66, at pp. 298-299; R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743, 117 C.C.C. (3d) 193 (C.A.), at para. 20, leave denied, [1998] S.C.R. ix; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225, at para. 83. As I have already indicated, in my view, the police (and Cst. Ingley in particular) possessed the necessary “reasonable grounds” to arrest the accused.

[74] In determining the objective reasonableness of a police officer’s subjective belief that he or she has the necessary grounds for an arrest, it is worthwhile recalling that such decisions are often “made quickly in volatile and rapidly changing situations” where detached “[j]udicial reflection is not a luxury the officer can afford.” See R. v. Golub, at para. 18; R. v. Carelse-Brown, 2016 ONCA 943, 343 C.C.C. (3d) 365, at paras. 47-48.

[75] Since the arrest of the accused by the police was lawful, the police were also lawfully entitled to search his vehicle incident to that lawful arrest. There are many authorities that permit such interior searches of motor vehicles. See, for example, R. v. Speid, [1991] O.J. No. 1558, 8 C.R.R. (2d) 383 (C.A.), leave denied, [1992] 1 S.C.R. xi; R. v. Klimchuk (1991), 1991 3958 (BC CA), 67 C.C.C. (3d) 385, 8 C.R. (4th) 327 (B.C.C.A.), at pp. 402-403; R. v. Smellie, 1994 1612 (BC CA), [1994] B.C.J. No. 2850, 95 C.C.C. (3d) 9 (B.C.C.A.), at para. 29-47, leave denied, [1995] 2 S.C.R. ix; R. v. Polashek, at paras. 25-26; R. v. Alkins, 2007 ONCA 264, 218 C.C.C. (3d) 97, at paras. 2, 26-38; R. v. Shankar, 2007 ONCA 280, 153 C.R.R. (2d) 298, at paras. 10-17; R. v. Tontarelli, 2009 NBCA 52, 247 C.C.C. (3d) 160, at paras. 50-51; R. v. Crocker, at para. 78; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49; R. v. Valentine, 2014 ONCA 147, 316 O.A.C. 302, at paras. 42-48, 58; However, as Lamer C.J.C. noted in R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, 121 C.C.C. (3d) 97, at para. 23, the right to search a car incident to arrest in any given case, and the scope of that search, will depend on a number of factors, including “the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.” The police must be attempting to achieve some valid purpose connected to the arrest, such as protecting evidence from destruction, or discovering evidence of the offence for which the accused is being arrested. As Watt J.A. recently observed in R. v. Tsekouras, 2017 ONCA 290, [2017] O.J. No. 1768, at para. 87, “[w]hat matters is that there be a link between the location and purpose of the search and the grounds for the arrest.” See also R. v. Ellis, 2013 ONSC 1494, 278 C.R.R. (2d) 324, at para. 76, affirmed, 2016 ONCA 598, 132 O.R. (3d) 510, at paras. 39-42.

[76] In the circumstances of the present case, this long-standing police power to search a vehicle incident to the lawful arrest of its driver is not defeated by the immediate flight of the arrested accused. In this case, the investigating police officers were, at a minimum, still interested in the preservation of any available evidence of the offence of “drug trafficking” inside the Nissan for which the accused had been arrested. The preservation of evidence relevant to the offence for which the accused has been arrested is, of course, one of the important rationales for the existence of this warrantless search power. In this case, the police possessed reasonable grounds to believe that the Nissan contained evidence of the offence of “drug trafficking” for which the accused had been arrested. Accordingly, the police were entitled to search the Nissan incident to their arrest of the accused. See R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, 45 C.C.C. (3d) 57, at p. 404; R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at p. 1146; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, 53 C.C.C. (3d) 257, at pp. 180-182, 186; R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321, at paras, 27-43; R. v. Caslake, at paras. 17-19, 22-25; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, 159 C.C.C. (3d) 449, at paras. 23-24, 75, 84; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 13-14; R. v. Muller, at para. 38; Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009).

D. The Application of Section 24(2) of the Charter

1. Introduction

[77] Given my conclusion that the police seized the drugs and firearm from the accused’s vehicle after violating his constitutional rights under ss. 10(a) and 10(b) of the Charter of Rights, the next step of the analysis is to determine the admissibility of the evidence under s. 24(2) of the Charter. See R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, 107 C.C.C. (3d) 481; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235. This requires the court to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. The court must consider all of the circumstances of the case in conducting this balancing assessment. See R. v. Grant, at paras. 71-75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. McGuffie, at paras. 59-64; R. v. Tsekouras, at paras. 78, 102-113.

2. The Seriousness of the State Conduct

[78] With respect to the first prong of the test, namely, the seriousness of the state conduct, the court must consider whether the admission of the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. The goal is not to punish the police or deter Charter breaches, but to preserve public confidence in the rule of law and its processes. See: R. v. Grant, at para. 72-75; R. v. Paterson, at paras 43-47.

[79] In the present case, the police violated the constitutional rights of the accused: (1) by failing to advise him of the reasons for his investigative detention; and (2) by failing to advise him of the informational component of his right to counsel. Multiple Charter breaches tend to aggravate the overall seriousness of the violations. See R. v. Calderon (2004), 2004 7569 (ON CA), 188 C.C.C. (3d) 481, 23 C.R. (6th) 1 (Ont.C.A.), at paras. 93-94; R. v. Davidson, 2017 ONCA 257, at para. 48. In the circumstances of the present case, however, the violation of both s. 10(a) and 10(b) of the Charter was caused by the same mistake by the police – they failed to appreciate that the accused was detained when the Nissan was first “boxed in” by the marked police cruiser.

[80] If the police had provided the accused with this important information about the reason for his detention and his right to counsel, he would have understood his legal position, the extent of his potential jeopardy, and the details of his right to counsel. Then he could have made an informed decision about how best to exercise that right. However, in the absence of such information, the accused was left with no explanation for his detention and the nature of the unfolding police investigation, and no information about his right to counsel. The accused testified that if he had been told about his right to consult with counsel he would have exercised that right. However, the police did not comply with their obligations in this regard, and both of their failures under ss. 10(a) and 10(b) of the Charter must be taken into account in assessing the gravity of the state misconduct.

[81] As I have indicated, as to the reason the police failed to comply with their constitutional obligations under ss. 10(a) and 10(b) of the Charter, both Cst. Ingley and Cst. Pisano testified that they did not believe that the accused had been detained. Rather, they believed that while the accused was certainly being investigated for the reasonably suspected offence of drug trafficking, he was not detained by the police. I accept their testimony in this regard. This was not a case where the police had physically restrained the accused. Nor was this a case where the police had given the accused a demand or direction that made it clear that he was being legally detained by the police. Rather, this was a case where the detention of the accused flowed from an objective assessment of how the circumstances of the police investigation would have been reasonably perceived, and a conclusion that a reasonable person in the position of the accused would have concluded that he was not free to go, or was required to comply with the police investigation. Of course, it is not always easy to determine, with precision, exactly when a suspect has been detained by the police. The fact that Cst. Ingley and Cst. Pisano were ultimately incorrect in their belief that the accused had not been detained, does not undermine the honesty and bona fides of their subjective beliefs at the time that the accused was not detained.

[82] I am satisfied that Cst. Ingley should have recognized that, when Cst. Taylor and Cst. Pisano arrived in the Ashbridges Bay Park parking lot and parked their police cruiser in front of the accused’s Nissan in such a way as to, for all practical purposes, block its path, that the accused was detained, and was, therefore, entitled to be advised of the reasons for his detention and the informational component of the right to counsel. However, I am also satisfied that this was no more than negligence on the part of Cst. Ingley. He did not deliberately, or even recklessly, deprive the accused of his Charter rights. Rather, the violation of ss. 10(a) and 10(b) of the Charter in this case was the result of an honest mistake by Cst. Ingley (and Cst. Pisano). That does not mean that the police acted entirely in good faith. Negligence is not good faith. See R. v. Grant, at para. 75; R. v. Paterson, at para. 44. But, the mistaken assessment by Cst. Ingley (and Cst. Pisano) that the accused had not yet been detained was not a “significant departure” from the standard of conduct expected of police officers, such that it must be repudiated by the court. See R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 39. It is also worth noting that the detention of the accused, from the arrival on the scene of the marked police scout car, until his flight from the scene of his arrest, lasted no more than approximately two or three minutes. In other words, this was clearly an evolving and dynamic investigation that unfolded very quickly. Nevertheless, in my view, this first prong of the s. 24(2) analysis tends to support, at least slightly, the exclusion of the evidence. See R. v. Grant, at para. 74-75; R. v. Harrison, at para. 23.

3. The Impact of the Charter Violations

[83] As to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breaches undermined the Charter-protected interests of the accused. Needless to say, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to look at the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. See R. v. Grant, at para. 76-78; R. v. Paterson, at paras. 48-50.

[84] In the present case, the Charter violations by the police had a significant impact upon some of the constitutionally protected interests of the accused. Most obviously, immediately after the accused was detained, but before he was advised of the reasons for his detention or his right to counsel, Cst. Ingley engaged in a brief conversation with the accused about what the cyclist was doing in the Nissan. The accused might not have known that he had the right to remain silent or secure free legal advice from a lawyer, and that the police were obliged to facilitate a consultation with counsel if the accused wanted to exercise that right. In the result, instead of remaining silent or asking to speak to a lawyer (who would likely have told the accused to remain silent), the accused responded to the inquiry, providing an answer that Cst. Ingley perceived as an inculpatory and untruthful “alibi.” The significant impact that these violations had on the Charter-protected interests of the accused strongly supports the inadmissibility of this statement by the accused. See R. v. Grant, at para. 89-98. As I have already indicated, I have not considered the alleged false “alibi” by the accused as supporting the lawfulness of the arrest of the accused.

[85] On the other hand, apart from this false “alibi” statement from the accused, the police breach of the accused’s rights under ss. 10(a) and 10(b) of the Charter did not have any significant impact upon any other Charter-protected interests of the accused. Even without the false “alibi” statement from the accused, the police had the necessary “reasonable grounds” to arrest the accused, and their lawful arrest of the accused, in combination with their reasonable belief that there was evidence of “drug trafficking” inside the Nissan, lawfully permitted them to search the interior of the Nissan incident to the arrest of the accused. In short, I am satisfied that the police would inevitably have discovered the drugs and the handgun inside the Nissan regardless of any breach of ss. 10(a) and 10(b) of the Charter, and regardless of whether the accused provided the false “alibi” statement or not. See R. v. Grant, at para. 122; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 64-74. Further, I note that there was no violation of any of the accused’s privacy or property interests protected by s. 8 of the Charter in the way the police discovered the firearm in the vehicle. Generally speaking, individuals have a greatly reduced expectation of privacy in their automobiles and, in this case, the police were lawfully entitled to search the interior of the accused’s black Nissan, given that the accused had been lawfully arrested and the police reasonably believed that evidence of drug trafficking would be found inside the vehicle. This establishes that the breach of ss. 10(a) and 10(b) of the Charter did not have a significant impact upon the Charter-protected interests of the accused in relation to the discovery of the firearm and the drugs in the Nissan.

[86] Accordingly, while this second prong of the s. 24(2) analysis strongly favours the exclusion of the brief false “alibi” statement made by the accused, it also strongly favours the admission of the evidence of the discovery of the handgun and the drugs found in the accused’s Nissan.

4. The Truth-Finding Function of the Trial

[87] As to the third avenue of inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. This prong of the inquiry entails a consideration of the reliability of the evidence and its importance to the Crown’s case against the accused. If the Charter violation has undermined the reliability of the evidence, this will support the exclusion of the evidence. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at para. 79-84; R. v. Paterson, at paras. 51-52.

[88] In the present case, there is no question that the loaded semi-automatic firearm and the drugs found in the accused’s vehicle are inherently reliable and objective pieces of evidence which are crucial to the determination of the merits of this case. If the firearm and the drugs are excluded, the Crown’s case must fail. However, if this evidence is admitted, the Crown would appear to be able to establish that accused had this firearm and the crack cocaine in his fanny pack, and had marihuana in the center console of his Nissan. In my view, society’s interest in the adjudication of criminal trials on their merits would be seriously undermined if this kind of highly reliable and critical evidence were excluded. It is important to recall that the city of Toronto and the greater Toronto area continue to be troubled by gun violence and drug trafficking – offences which seem all too frequently to be committed in tandem, and often with tragic results. Accordingly, this third aspect of the governing s. 24(2) analysis clearly favours the admission of the physical evidence the police discovered inside the Nissan. See R. v. Grant, at para. 139; R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 31; R. v. Jones, 2011 ONSC 4158, [2011] O.J. No. 3069, at para. 67; R. v. Duhamel, 2012 ONSC 6448, [2012] O.J. No. 5392, at para. 85; R. v. Danvers 2005 30044 (ON CA), [2005] O.J. No. 3532, 199 C.C.C. (3d) 490 (C.A.) at para. 77.

[89] On the other hand, the statement that the accused provided to Cst. Ingley upon being asked what the cyclist was doing in the Nissan must be viewed very differently. First, the evidence has no inherent reliability. Viewed in isolation, it might be true, but it might be false. Second, the evidence is not important to the case. Instead, it is inconsequential to the case. Accordingly, the third aspect of the applicable s. 24(2) analysis clearly favours the exclusion of this evidence of the utterance by the accused.

5. Conclusion

[90] There is no overarching rule that governs how these three factors should be balanced. Mathematical precision is clearly not possible, but consideration of these factors provides a flexible and helpful decision tree. See R. v. Grant, at para. 86. The balancing of these three key considerations, in light of all of the circumstances of this case, leads me to the conclusion that (1) the evidence of the police discovery of the firearm and the drugs inside the Nissan is admissible; and (2) the brief utterance by the accused to Cst. Ingley is not admissible.

IV

Conclusion

[91] In summary, in my view the accused was lawfully placed under investigative detention by the police in the parking lot on the afternoon of September 23, 2014. The police had reasonable grounds for their suspicion that the accused had earlier been involved in an illegal hand-to-hand drug transaction. Accordingly, the accused was not detained arbitrarily. While the police were entitled to have the accused exit his vehicle in furtherance of their investigation, the police failed to advise him of the reason he was being detained, and failed to advise him of his right to counsel, in violation of ss. 10(a) and 10(b) of the Charter. Once the accused was out of his vehicle, the police had reasonable and probable grounds to arrest the accused, and they were lawfully entitled to search the interior of his vehicle incident to that lawful arrest. Therefore, the vehicle search was reasonable and in compliance with s. 8 of the Charter. Applying s. 24(2) of the Charter, the loaded firearm and the drugs found inside the Nissan are admissible, but the utterance by the accused to Cst. Ingley about why the cyclist was in his car is inadmissible.

Kenneth L. Campbell J.

Released: April 19, 2017

CITATION: R. v. Mark, 2017 ONSC 2206

COURT FILE NO.: CR-16-7-44

DATE: 20170419

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ELIJAH KEDAR MARK

PRE-TRIAL CHARTER RULING

K.L. Campbell J.

Released: April 19, 2017