Court File and Parties

COURT FILE NO.: CR-17-3964 DATE: 20180622 Decision: Oral and in writing June 22, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – BRANDON NUNN Accused

Counsel: Jennifer Rooke, for the Crown Julie Santarossa, for the Accused

HEARD: March 5, 6, 7, 8, and 9 and April 16, 2018

Ruling on voir dire

King J.

[1] Brandon James Nunn is charged that on April 15, 2017, at the City of Windsor in the Southwest Region, he did unlawfully possess fentanyl, a substance included in Schedule I, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act [^1].

[2] At the commencement of the trial the accused brought an application to exclude the evidence obtained by the Windsor Police Service (the “WPS”) at the time of his arrest pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. The evidence sought to be excluded consists of 81 tablets of fentanyl.

[3] Specifically, he asserts that the WPS violated a number of provisions of the Canadian Charter of Rights and Freedoms, including:

i) Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ii) Section 8: Everyone has the right to be secure against unreasonable search or seizure. iii) Section 9: Everyone has the right not to be arbitrarily detained or imprisoned. iv) Section 10(b): Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right.

[4] The application and the trial proper proceeded as a blended voir dire.

ISSUE ON THE VOIR DIRE

[5] The issue on this voir dire is whether the evidence seized as a result of the alleged Charter-infringing conduct of the WPS should be excluded on the basis that its admission would bring the administration of justice into disrepute as dictated by s. 24(2) of the Charter.

THE EVIDENCE

[6] From the outset, I note that the Crown has conceded the events of April 15, 2017, namely the conduct of the WPS, constituted a violation of ss. 8, 9, and 10 of the Charter, but disputes that there was a violation of s. 7.

[7] Notwithstanding the admission by the Crown, a review of the evidence is necessary to determine whether the evidence seized should be excluded pursuant to s. 24(2).

[8] The Crown called five witnesses on the voir dire. Constable Sean Jones, Constable Adam Langlois, Constable Mark Andreychuk, and Constable Harrison Young are officers with the WPS. The fifth witness was James Quinn. He was a manager at the McDonald’s restaurant located at the corner of Wyandotte Street East and Goyeau Street in Windsor, Ontario.

[9] It was at this restaurant that an incident occurred involving the accused that set a series of events in motion that led to the eventual seizure of fentanyl from the pocket of the accused and to this charge.

[10] Sometime just before 1:00 p.m. on April 15, 2017, the accused entered the McDonald’s restaurant at the corner of Goyeau Street and Wyandotte Street in the City of Windsor.

[11] Events inside the restaurant were seen on a number of security cameras positioned at various locations inside and outside the restaurant.

[12] The accused approached a line of persons waiting to order. He spoke somewhat animatedly with the person ahead of him in the line. After a few seconds of discussions, the accused turned and started to walk towards one of the doors of the McDonald’s before he pivoted and returned towards the other individual in a somewhat quick and aggressive manner. There is no audio of the conversation, and the individual with whom the accused is speaking did not testify.

[13] The accused stopped a few feet from this individual. At that point, the other person sprayed a substance on the face of the accused. It is not disputed that this was pepper spray.

[14] The accused was immediately overcome by the pepper spray. He was observed from another camera angle running through the McDonald’s with his hands to his face before exiting the building.

[15] The accused then made his way across the parking lot of the McDonald’s to the west through the rear parking lot of a Shoppers Drug Mart located at the corner of Ouellette Avenue and Wyandotte Street at 600 Ouellette Avenue.

[16] It was reported to police that on entering the drug store, the accused was screaming for medical assistance. Someone called for an ambulance, and a member of the ambulance staff called police for assistance. There is no evidence whether the call for police occurred before or after the EMS crew arrived at the Shoppers Drug Mart.

[17] As well, while some of the officers who testified heard the requests for assistance over their police radios, no one testified in the voir dire as to anything that occurred in the Shoppers Drug Mart. Specifically, there was no evidence before the court as to who called for an ambulance, which ambulance staff called for police assistance, or the reason for this request.

[18] Officer M. Andreychuk attended at the McDonald’s restaurant with another officer. They were shown the various video footage from the incident by Mr. James Quinn, who was the manager of the McDonald’s at the time. Officer Andreychuk had no direct contact with the accused that day.

[19] Officer H. Young was dispatched at 1:06 p.m. to assist the ambulance at the Shoppers Drug Mart. As he was dispatched, he was made aware that a male person had been sprayed in the face with pepper spray at the McDonald’s restaurant. He also learned that at least 10 persons had been affected by the pepper spray.

[20] Officer Young arrived at the store at 1:09 p.m. He had contact with two paramedics, but did not have any information as to their identity. The paramedics were standing outside their ambulance in the rear parking lot of the drug store. The vehicle was facing southbound and the side door on the passenger side was open.

[21] The accused was described to Officer Young by ambulance staff as a male victim of pepper spray. Officer Young was not otherwise aware of his identity on arrival.

[22] Officer Young observed the accused in the back of the ambulance. He was wiping his eyes with a towel. He was also spraying his face with water. He was constantly moving, cursing, and yelling at the paramedics that he wanted to go to the hospital.

[23] He described the accused as looking like he was angry and in pain.

[24] Officer Young had not dealt with the accused prior to this day. He asked the accused for his name and date of birth. He described his behaviour as belligerent. He considered the conduct belligerent solely because the accused refused to answer basic investigative questions about the pepper spray incident. He responded with vulgar remarks rather than answers to the officer’s questions regarding the incident at McDonald’s.

[25] On viewing the accused, Officer Young observed the following:

i) He had red, bloodshot eyes; ii) His face was extremely red; iii) He had mucous running from his nostrils; iv) He was crying and screaming; and v) He appeared to be in a great deal of pain.

[26] As well, while the accused was agitated and clearly in pain, Officer Young said the accused understood what he was being told by the officer. He was also repeatedly screaming that he wanted to go to the hospital.

[27] At 1:11 p.m., Officer Young was advised via the police radio that other officers were viewing the incident on the video at the McDonald’s.

[28] The officer then provided his dispatcher with the accused’s name and date of birth. He requested that dispatch provide him with his local and CPIC records. He testified this was a standard request he makes at most calls he attends. Officer Young testified that he conducts pat-down searches such as this one even when the individual does not have a criminal history. He said he does this to ensure everyone’s safety, including the ambulance and hospital staff.

[29] Officer Young testified he requested to perform a pat-down search on the accused for safety purposes, because he had received information from the dispatcher that the accused could be violent. He was also concerned that pepper spray could still be present, but had no specific information in this regard. He did not discuss his decision to conduct the pat-down search with the other officers who had attended to assist.

[30] Officer Young requested that the accused exit the ambulance so that he could perform a pat-down search. At that time, the accused remained seated in the patient seat immediately behind the driver’s seat of the ambulance.

[31] Officer Young’s notes indicate the search of the accused took place at approximately 1:13/1:14 p.m. In conducting the pat-down search, the officer ultimately opened the left pants pocket of the accused, peered in, and viewed a clear plastic bag along with his cell phone. Officer Young removed the bag from the pocket of the accused. The bag contained pills.

[32] The pills were not in a prescription bottle. The bag was tied off at the top. The officer did not return the bag to the pocket of the accused.

[33] The officer did not search the ambulance.

[34] Officer Young did not arrest the accused at that time. While he had suspicions regarding the composition of the pills, he stated his main concern was getting the accused medical treatment. The ambulance departed from the Shoppers’ parking lot for the Ouellette Campus of Windsor Regional Hospital at 1:17 p.m. The ambulance was escorted there by other officers.

[35] Officer Young did not accompany the ambulance. He secured the bag containing the pills and delivered it to another officer for transportation to the police station. He then attended at the McDonald’s, but did not remember what he did there.

[36] A few minutes later, Officer Young received confirmation that the pills seized from the accused contained fentanyl. At that point, he attended at the hospital. Once there, he provided the accused with his notification of the right to consult with a lawyer, and his right to duty counsel. That occurred at 1:34 p.m.

[37] With respect to the search of the accused, Officer Young testified that:

1. He had not been given any grounds to detain the accused;
2. The accused was not arrested for any criminal offence at the time of the search;
3. He did not have reasonable and probable grounds to believe the accused had committed an offence; and
4. He had no information that the accused was in possession of any weapon, including pepper spray.

[38] He testified that when he is asked to assist paramedics, he will generally conduct a pat-down search in the following situations:

i) if someone is known to be violent; ii) if the EMS personnel have a safety concern; iii) if the individual has mental health issues; iv) if the individual is generally a threat to public safety; and v) if the person is known to be a drug user.

[39] Notwithstanding that he has conducted 300-400 such searches in his three years as a constable, Officer Young testified he has not received specific training as to when he can or cannot perform public safety searches.

[40] In this instance, Officer Young had been advised that the accused had a history of violent behaviour, but he did not know the context of that behaviour. At the scene, Officer Young concluded the accused was being aggressive and irritable. On cross-examination, he agreed that his aggressiveness was only related to his wanting to be transported to the hospital.

[41] On cross-examination, Officer Young submitted that he requested the accused exit the vehicle to be searched and that the accused voluntarily complied with this request. When it was put to Officer Young that at the preliminary hearing that he told the accused, “You need to come out. We need to search you so you can get to the hospital,” he did not agree this was a direction or command. He categorized it as a request. At trial, the officer indicated he had only said “words to that effect.” It was his evidence that the accused had voluntarily consent to this request.

[42] He disagreed with defence counsel that he had demanded the accused submit to a search. However, he did agree that he was asking an individual, who was clearly suffering and in significant pain from pepper spray, a choice between not being searched and his physical health. On further questioning, he agreed that he had given the accused a choice between his constitutional right to be free from unreasonable search and seizure and his right to health care treatment.

[43] Officer Young made no inquiries to determine if there were any other medical issues in the accused’s background.

[44] At no time did Officer Young advise the accused that:

1. he had the right to refuse to be searched;
2. anything found on him could be used as evidence against him;
3. that he could speak to a lawyer (parenthetically, he did not call a lawyer for the accused); or
4. that he had the right to just stay in the ambulance.

[45] Officer Young testified that, in his opinion, the accused could have walked away at any time. However, when it was suggested to him in cross-examination that he could not have been much of a “public threat” if the officer was prepared to let him go, the officer disagreed. However, he provided no explanation for this conclusion.

[46] Once Officer Young observed the clear plastic bag in the left pocket of the accused, he seized the bag and contents for further investigation and possible evidence. Officer Young agreed that at that time he did not conclude that he had reasonable and probable grounds to arrest the accused for a drug offence.

[47] As noted, following the incident in the Shoppers Drug Mart parking lot, Officer Young provided the bag containing the pills to another officer who then delivered them to the station, and a short time later he was advised that the pills contained fentanyl. He was also advised by an officer at the hospital that the accused was talking about leaving the hospital. He was unable to remember which of these two pieces of information came to his attention first.

[48] As mentioned, Officer Young then attended Windsor Regional Hospital immediately to arrest the accused. He said he did this promptly, because it would have been more difficult to locate the accused if he left the hospital.

[49] As he arrested the accused at the hospital, he read him his rights to counsel and his Legal Aid options. The accused indicated he wanted to speak to a lawyer named Michael O’Hearn. However, he was not given an opportunity to speak to Mr. O’Hearn, or any other lawyer.

[50] Officer Young then provided the accused with the standard caution regarding any statements he might make. However, Officer Young then asked him if he had anything to say and the accused indicated the pills were “Tylenol”. The officer testified that he was unaware that he had an obligation to not ask the accused any questions until he had the opportunity to speak to counsel once the accused had made that request.

[51] In summary, at no time prior to the search of his pockets was the accused suspected of committing a crime, placed under investigative detention, or under arrest. Furthermore, the search was not incident to arrest. Rather, Officer Young consistently indicated the sole reason for the search was for public safety purposes.

ANALYSIS

[52] The accused argues that his ss. 7, 8, 9, and 10(b) Charter rights were breached when Officer Young detained the ambulance he was inside and demanded that he acquiesce to a search before being transported to the hospital and when Officer Young searched and questioned him without giving him his right to speak to legal counsel.

[53] The Crown concedes that the Charter rights of the accused pursuant to ss. 8, 9, and 10(a) were violated but takes the position that the admission of the evidence will not bring the administration of justice into disrepute as prescribed in s. 24(2).

[54] The parties dispute whether there was a violation of the s. 7 right of the accused to not be deprived of life, liberty, and security of the person except in accordance with the principles of fundamental justice.

[55] I have determined that I can fully decide the motion of the accused without making a determination of the s. 7 issue. Accordingly, I will not conduct an analysis of the evidence as it relates to that provision.

1. Was the accused detained contrary to s. 9 of the Charter?

[56] It is conceded by the Crown and the Court finds that the accused’s s. 9 Charter right to be free from unlawful detention was violated.

[57] In order to conform to s. 9 of the Charter, the police must have reasonable grounds to detain members of the public for investigative purposes. [^2] In this case, no such grounds existed.

[58] The accused was the victim of an attack by pepper spray and was clearly in need of (and understandably requesting) medical attention.

[59] More significantly, Officer Young was not aware of any grounds to detain the accused. Neither did he have reasonable and probable grounds to believe the accused had committed an offence, nor was he in possession of a weapon. Other than being told by the WPS from their records that he “could be violent”, he did not have grounds to believe that the accused was a threat to public safety.

[60] I find that Officer Young detained the accused when he stated to him, “You need to come out. We need to search you so you can get to the hospital.” While the officer tried to couch these words at trial by indicating he said words “to that effect” only, I find it was being made clear to the accused that there was going to be a search before he would be going to the hospital. The effect of those words is clear. There are two acts linked temporally. The second phrase “so you can get to the hospital” is linked to the first, namely the “need to search”. A reasonable person hearing those words would rationally conclude that they were being detained and needed to exit the ambulance to be searched before they would be transported in the ambulance to the hospital.

[61] That these words (or similar words) were uttered by a police officer to an individual suffering the effects of pepper spray administered many minutes earlier and while still awaiting transportation by ambulance as he requested exponentially compounds the effect and meaning of the officer’s words in these circumstances. Not only was the accused being detained, he was being detained while access to treatment was, at a minimum, being further delayed.

2. Was the subsequent search of the accused unreasonable and contrary to s. 8 of the Charter?

[62] Having determined that the detention of the accused violated s. 9 of the Charter, I now have to determine whether the search of the accused was contrary to s. 8 of the Charter. That section states, “Everyone has the right to be secure against unreasonable search or seizure.”

[63] While the Crown has conceded that a s. 8 Charter violation occurred, the nature and scope of the violation must be assessed in order to conduct a proper s. 24(2) Charter analysis.

[64] With respect to consent searches, the Ontario Court of Appeal stated in R. v. Atkinson [^3] citing R. v. Wills [^4]:

The consent must be voluntary and informed. To be voluntary, the consent, which may be express or implied, must not be the product of police oppression, coercion, or other conduct that negates the consenting party’s freedom to choose whether to allow police to pursue the course of conduct requested or to deny them that right: Wills, at p. 354 O.R. To be informed, the consenting party must be aware of (i) the nature of the police conduct to which the consent relates; (ii) the right to refuse to permit the police to pursue the conduct; and (iii) the potential consequences of giving consent. Wills, at pp. 354-55 O.R.

[65] The police have a common law police power to conduct a search incident to an arrest. Police officers who conduct such searches have important duties, such as seeing that the suspect does not escape by reason of being armed and discovering any evidence of the offence for which the suspect was arrested on his or her person. [^5] Police are also able to conduct safety pat-down search incident to investigative detention when they have reasonable grounds to believe that their safety or the safety of others is at risk. [^6] A search incident to arrest or safety search incident to investigative detention is only “authorized by law” if the arrest or investigative detention is itself lawful according to s. 9 of the Charter. [^7]

[66] As was decided by the Supreme Court of Canada at para. 36 of R. v. Mann:

Any search incidental to the limited police power of investigative detention…is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 21.

[67] The Court in Mann articulated the test for when a pat-down search incident to an investigative detention is justifiable, at para. 40 as follows:

The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk…. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or nonexistent concern for safety, nor can a search be premised upon hunches or mere intuition.

[68] In this case, the pat-down search of the accused following detention by Officer Young will only be lawful if the Crown establishes the detention was lawful in and of itself when viewed on the totality of the evidence.

[69] I have already found that the detention of the accused was unlawful and in contravention of s. 9 of the Charter.

[70] There were clearly no objectively reasonable grounds to detain the accused in these circumstances.

[71] Therefore, the search was not in compliance with s. 8, because it was not “authorized by law” on account of the detention being lawful.

[72] In any event, Officer Young did not have grounds to conduct the search.

[73] That it might have been normal practice of Officer Young to routinely conduct pat-down searches of individuals when assisting ambulance calls provides no justification for this search. I conclude there were no reasonable grounds for the officer to conclude the accused was an imminent threat to the public or police.

[74] At best, Officer Young had some general information which he received via his own inquiry of the police service as to the background of the accused.

[75] The officer had no other information upon which to logically form the conclusion that a search was necessary before the accused was transported to the hospital for treatment from pepper spray in order to ensure the safety of the officer, the ambulance attendants, the hospital staff, or the public generally. There was no evidence to explain why the police were called to assist the EMS workers.

[76] Furthermore, those safety concerns would only be justified if they arose out of suspected criminal activity or behaviour. There was nothing criminal about the accused sitting in the back of the ambulance treating himself from a pepper spray attack with a towel and flushing water on his eyes while awaiting transportation to the hospital for treatment.

[77] I conclude that as there were no reasonable grounds for the detention, the search of the accused was without legal authorization, and violated his s. 8 right to be free from unreasonable search and seizure. In addition, even if grounds for detention had existed, there were no grounds for a search incident to investigative detention in these circumstances.

3. Were the s. 10(b) rights of the accused violated?

[78] I find that the s. 10(b) right of the accused to retain and instruct counsel without delay and to be informed of that right were profoundly violated in this instance.

[79] Not only did Officer Young fail to advise the accused of his s. 10(b) rights following detention and prior to the search, he was not advised in this regard at any time while in contact with the accused in the Shoppers Drug Mart parking lot.

[80] In fact, the accused was not advised of his s. 10(b) rights until approximately 20 minutes after the plastic bag containing the fentanyl pills was seized and the accused was at the hospital.

[81] The failure to advise the accused of his right to counsel after detention was a violation of the informational component of his s. 10(b) right. [^8]

[82] Officer Young then compounded the violation by asking the accused questions after he had expressed a desire to speak to Mr. O’Hearn without affording him that opportunity. This conduct was a violation of the implementation component of s. 10(b). [^9]

[83] In R. v. Taylor [^10], the accused was involved in an accident while driving at a high rate of speed. He was arrested for impaired driving. He was informed of his Charter rights on arrest. He indicated he wanted to speak to his lawyer. After being taken to the hospital for treatment, two separate samples of blood were obtained without an attempt being made to have an opportunity to speak to counsel.

[84] The trial judge admitted evidence from the first blood sample on the basis that there was no reasonable opportunity to speak to counsel privately while awaiting medical treatment. The accused was convicted of impaired driving causing bodily harm. This verdict was reversed by the Alberta Court of Appeal, and that decision was upheld at the Supreme Court of Canada.

[85] At paras. 40 and 41 of the decision, Abella J. wrote:

Moreover, the impact of the breach on Mr. Taylor’s Charter-protected interests was serious. Arrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson’s choice between a frank and open discussion with medical professionals about their medical circumstances and treatment, and exercising their constitutional right to silence. The police placed Mr. Taylor’s medical interests in direct tension with his constitutional rights. His legal vulnerability was significant, and, correspondingly, so was his need for his requested assistance from counsel.

There is no need to speculate about the advice Mr. Taylor might have received had he been given access to counsel as he requested, such as whether he would have refused to consent to the taking of any blood samples for medical purposes. It is clear that the denial of the requested access had the effect of depriving him of the opportunity to make an informed decision about whether to consent to the routine medical treatment that had the potential to create — and in fact ultimately did create — incriminating evidence that would be used against him at trial. The impact of the breach on Mr. Taylor’s s. 10(b) rights was exacerbated when Mr. Taylor was placed in the unnecessarily vulnerable position of having to choose between his medical interests and his constitutional ones, without the benefit of the requested advice from counsel. Mr. Taylor’s blood samples, taken in direct violation of his right to counsel under s. 10(b), significantly compromised his autonomy, dignity, and bodily integrity. This supports the exclusion of this evidence. As this Court said in Grant, “it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s . . . bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability” (para. 111).

[86] Officer Young required the accused leave the ambulance and submit to a search before he would be transported to the hospital for treatment from pepper spray without the benefit of advice from counsel. I find this clearly and significantly compromised the autonomy, dignity, and bodily integrity of the accused in the same manner as resulted in the exclusion of the highly relevant and reliable evidence in Taylor.

[87] Had the accused been given the opportunity to speak to counsel in a timely manner, before the search, the accused may well have been advised that he did not have to submit to a search in those circumstances.

[88] For these reasons, I conclude that the accused’s s. 10(b) rights were violated.

4. Should the evidence be excluded pursuant to s. 24(2) of the Charter?

[89] Having found the rights of the accused pursuant to ss. 8, 9, and 10(b) of the Charter were infringed, the fentanyl obtained in consequence of these Charter violations will still be admissible in evidence at this trial unless the accused can establish that the admission of the evidence would bring the administration of justice into disrepute. [^11]

[90] Section 24(2) of the Charter provides as follows:

Where in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[91] The Charter is legislation of fundamental significance to Canadian society. The principles and rights enunciated in the Charter provide the solid underpinning for a just system of criminal law. The Charter is the anchor that balances two important societal considerations.

[92] On one side is the need to protect citizens, residents, and visitors in Canada from criminal activity. However, in a free and just society, these interests must be protected by a system in which persons are presumed innocent until proven guilty and only subject to questioning and arrest by authorities when the police have reasonable and probable grounds to do so. The Charter protects against indiscriminate and/or discriminatory exercises of police power.

[93] In the absence of those basic rights and protections, persons could be subject to detention, questioning, and arrest without objectively determined reasonable or probable grounds. Those are the hallmarks of a totalitarian state.

[94] The Charter provides the legal framework that maintains the interests of crime prevention, detection, and punishment in balance with the right of all members of the public to be free from arrest for arbitrary reasons or worse, no reason.

[95] As was set out in R. v. Grant [^12], determining whether the evidence should be admitted pursuant to s. 24(2) involves balancing the following three factors:

(a) the seriousness of the State conduct violating the Charter, including the nature of the police conduct that led to the discovery of the evidence, whereby: (i) the more severe, deliberate or reckless the State conduct is, the greater the need will be for the court to dissociate itself from the conduct by excluding the evidence, so as to preserve public confidence in the justice system and ensure conformity to the rule of the law; and (ii) an inadvertent, trivial, or minor violation and the existence of good faith or exigency circumstances, such as the need to prevent destruction of evidence, will favour the admission of the evidence; (b) the impact and extent of the violation on the Charter interests of the accused, including whether there is a serious incursion on the accused’s interests or whether the impact was merely trivial; (c) the societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence, having regard to: (i) the reliability of the evidence and the extent to which it is undermined by the breach(es); (ii) the importance of the evidence to the Crown’s case; and (iii) the notion that the discoverability of the evidence is no longer a determinative factor.

[96] The role of the Court in a s. 24(2) application is to make assessments under each of these three lines on inquiry, balance these assessments and determine, in all the circumstances, whether the admission of the evidence would bring the administration of justice into disrepute. [^13]

a) What is the seriousness of the Charter-infringing state conduct?

[97] I conclude that the search falls within the range of state conduct that is considered egregious in that the officer did not have reasonable and probable grounds to:

1. detain the accused;
2. arrest the accused for committing an offence;
3. believe he had committed an offence; or
4. be suspicious that the accused was in possession of any weapon.

[98] Furthermore, the situation was exacerbated because the accused was in pain due to being pepper-sprayed. In the circumstances, the officer’s conduct telling the accused he had to undergo a search “so that he could get to the hospital” must be considered severe, deliberate, or reckless. It was not conduct that could be considered an inadvertent, trivial, or minor violation of the Charter that occurred in good faith or exigent circumstances.

[99] Requiring the accused to undergo a search rather than having him transported forthwith to the hospital for required medical treatment cannot be condoned in situations where an officer has no grounds for detention or arrest, has no information that the individual has committed an offence or be suspicious that the person is in possession of a weapon. In these circumstances, persons should not have to consent, permit, submit to, or otherwise not oppose a search of their person by a police officer as a pre-condition to receiving medical treatment in a fair and just society.

[100] The inability (or the failure) of Officer Young to understand the basic Charter rights of persons with whom he has contact with in situations such as this does not result in a characterization of this misconduct as inadvertent, trivial, or minor.

[101] These were not inadvertent or minor violations of the Charter that might permit the admission of the evidence obtained pursuant to s. 24(2). As was set out by the majority in Grant at para. 75,

“Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encourage and negligence or wilful blindness cannot be equated with good faith. [^14]

[102] I find that this unawareness or disregard for the Charter rights of the accused by a police officer charged with upholding the very right in question requires the court to disassociate itself from such conduct.

b) What is the impact on the Charter-protected interests of the accused?

[103] As set out at para. 76 of Grant [^15], the extent of the impact of a Charter breach may range from “fleeting and technical” to profoundly intense. What is the impact of these Charter infringements on the protected interests of the accused? When the evidence is reviewed in its totality, I conclude that the effect of the unlawful detention contrary to s. 9 of the Charter and the unreasonable search contrary to s. 8 as well as the violation of the right to retain and instruct counsel or be made aware of that right contrary to s. 10(b) of the Charter had significant impact on the interests of liberty, privacy and human dignity of the accused.

[104] On the evidence in this matter it is clear that the liberty of the accused was infringed during the period of the detention and search. His privacy rights while in the ambulance were violated. The accused had a significant expectation of privacy with respect to the items in his pockets and with respect to his body. This expectation of privacy in the contents of his pockets and his body was violated by the pat-down and search inside his pockets.

[105] A search of the pockets of the accused was conducted when he was in clear medical distress in a situation where there was no suspected criminal activity. The only basis for conducting a safety search was based on a tidbit of non-specific information that the officer obtained via radio from the police service that the accused was “known to be violent.”

[106] In the recently decided case of R. v. Dasilva [^16], London police responded to a call that a person was slumped over the steering wheel in a locked vehicle parked in a shopping mall.

[107] Police unlocked the vehicle as the person was unresponsive.

[108] While attempting to rouse the individual, a purse was observed and a $20 bill and a portion of a sandwich bag was visible.

[109] The individual awoke, was responsive, and answered all questions without appearing intoxicated. The officer searched the purse as he was concerned the individual might still be in medical distress. A total of six grams of methamphetamine were seized as a result. In excluding the evidence, Mitchell J. concluded as follows at para. 47 of her decision:

The “help yourself approach” taken by PC Pocrnich when searching the accused’s purse purportedly in an effort to ascertain her medical condition in a non-emergent situation, was a significant intrusion on the accused’s interests. I find that the police acted recklessly and with blatant disregard for Ms. Dasilva’s Charter rights.

[110] The situation in this matter is even further compounded by the removal of the accused from the ambulance in a situation that was non-emergent to all but the accused and by the delay or deferral of transportation to the hospital.

[111] The Charter was designed to prevent indiscriminate and discriminatory exercises of police authority. Police conduct requiring an individual who has been subjected to pepper spray to effectively make a choice between being searched before being taken to the hospital in circumstances such as this is exactly the type of indiscriminate and/or discriminatory conduct the Charter was enacted to prevent. That is not an informed choice. This conduct violates the personal privacy, dignity, and autonomy interests that are protected by the Charter. In his own words, the conduct of the officer had the effect of putting the Charter rights of the accused on a collision course with that person’s health rights. In these circumstances, the accused should not have been required to surrender or subordinate his Charter rights in order to receive appropriate health care. To admit the evidence seized in these circumstances would clearly send a message that individual Charter rights are of little benefit to members of our society.

c) Society’s interest in an adjudication on the merits

[112] In this case, the evidence in issue (fentanyl) would never have been discovered but for the illegal search.

[113] It is not disputed that the evidence obtained by the WPS as a result of the Charter breaches was highly reliable. If admitted into evidence, it will likely be conclusive of the guilt of the accused of a serious offence.

[114] It is also known that fentanyl is an opioid drug that is being used illicitly by an increasing number of persons and is taking a significant toll on our society. There is an extremely high incidence of mortality related to persons overdosing illicitly on fentanyl.

[115] Clearly those responsible for contributing to the opioid crisis, especially traffickers of fentanyl, should be held accountable for the destruction stemming from their actions.

[116] Accordingly, the interests of society in having this matter adjudicated are significant and weigh towards the inclusion of the evidence.

d) Balancing the considerations under s. 24(2) of the Charter

[117] The interests in adjudicating the case on its merits are not, however, fully dispositive of the issues on this voir dire. Society also has a significant interest in maintaining a justice system that is fair to all and beyond reproach. As McLachlin C.J. stated for the majority at para. 36 of R. v. Harrison [^17]:

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

[118] I have also relied on the decision in R. v. McGuffie [^18], with respect to the three considerations facing the court in a s. 24(2) analysis. Doherty J. of the Ontario Court of Appeal states at paras. 62 and 63:

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

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

[119] Given the strong basis for exclusion on the first and second inquiries, I am not persuaded that the balance should be tipped in favour of admissibility. Notwithstanding the seriousness of the matter and the interests of our society to have this matter adjudicated, I acknowledge that a s. 24(2) analysis is not, as noted in R. v. Harrison, a mathematical formula and that 2-1 outcome is not necessarily determinative. However, in this case the nature of the Charter-infringing conduct and its impact on the interests protected by the Charter are so egregious that any interest in adjudicating the matter is clearly outweighed.

[120] As the Supreme Court of Canada found in R. v. Harrison at para. 96:

As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’” (para. 150). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences. In relying on Puskas in these circumstances, the trial judge seemed to imply that where the evidence is reliable and the charge is serious, admission will always be the result. As Grant makes clear, this is not the law.

[121] The focus of s. 24(2) is to preserve the long-term reputation of the Canadian justice system. Convicting the accused solely on the basis of evidence obtained as a result of serious Charter violations would be a step on the path towards the complete erosion of the significant and fundamental rights parliament has enshrined in the Charter. As stated at para. 84 of R. v. Grant [^19]:

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[122] Therefore, the seriousness of the offence and the impact of fentanyl trafficking is not enough to persuade me that the evidence at issue should be admitted.

CONCLUSION

[123] Having taken into consideration the seriousness of the Charter breaches, the impact of same on the Charter-protected interests of the accused, and society’s interest in an adjudication on the merits, I have concluded that to admit into evidence the seized fentanyl would seriously erode, if not virtually negate, the very protections enshrined in ss. 8, 9 and 10(b) of the Charter. I find that the rights prescribed in ss. 8, 9, and 10 of the Charter would be rendered illusory if this evidence is admitted into this trial in these egregious circumstances. The admission of the evidence would bring the long-term administration of justice into disrepute as prescribed in s. 24(2). Accordingly, the evidence seized from the accused on April 15, 2017 (namely the fentanyl pills) will not be admitted into evidence at this trial.

Original signed by Justice George W. King

George W. King Justice

Released orally and in writing: June 22, 2018

COURT FILE NO.: CR-17-3964 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – BRANDON NUNN RULING ON VOIR DIRE George W. King Justice

Released orally and in writing: June 22, 2018

Footnotes

[^1]: Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). [^2]: See R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 55; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 11. [^3]: R. v. Atkinson, 2012 ONCA 380. [^4]: (1992), 7 O.R. (3d) 337 (C.A.) [^5]: R. v. Fearon, 2014 SCC 77 at para. 14; R. v. Brezak, [1949] O.R. 888 (C.A.) at para. 13. [^6]: Mann, supra note 2 at para. 40. [^7]: See Harrison, supra note 2 at para. 11. [^8]: R. v. Bartle, [1994] 3 SCR 173; R. v. Willier, 2010 SCC 37. [^9]: Bartle, supra note 8; Willier, supra note 8. [^10]: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495. [^11]: Grant, supra note 2. [^12]: Grant, supra note 2 at para. 71. [^13]: Ibid. [^14]: Ibid., at para. 75. [Citations omitted]. [^15]: Ibid., at para. 76. [^16]: R. v. Dasilva, 2018 ONSC 3349. [^17]: Harrison, supra note 2 at para. 36. [^18]: R. v. McGuffie, 2016 ONCA 365. [^19]: Grant, supra note 2 at para. 84.