Court File and Parties
COURT FILE NO.: CR-16-3785 DATE: 20180706 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Sean Walters
COUNSEL: Paul A. Bailey, Counsel for the Crown Frank Miller, Counsel for the Accused and Applicant
HEARD: April 17, 18 & 20, 2018 and July 6, 2018
BEFORE: Justice C. M. Bondy
Endorsement
A. INTRODUCTION
1) The application
[1] The applicant and accused, Sean Walters (“Mr. Walters”), is charged with possession of cocaine for purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] Mr. Walters maintains that he was illegally searched contrary to s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“the Charter”); arbitrarily detained contrary to s. 9 of the Charter; and not properly advised of his right to retain and instruct counsel, contrary to s. 10(b) of the Charter. Accordingly, he seeks to exclude the drugs that were discovered during that search.
[3] A blended voir dire was held. This is my decision and reasons for the decision as to the admissibility of the evidence obtained from Mr. Walters that day.
2) The quality of the evidence
a) The evidence of Constable Mark Rogers
[4] Constable Mark Rogers (“Constable Rogers”) has been an officer with the Ontario Provincial Police (“the OPP”) for 20 years. He described himself as the “investigating officer”. I approached his evidence with some caution. There were several reasons.
[5] One is that Constable Rogers was often somewhat evasive during cross-examination.
[6] Another is that his evidence on at least one vital point differed from the preponderance of evidence in that regard, including the evidence of Constable Hishaam Pahary (“Constable Pahary”). Where the evidence of Constable Rogers and Constable Pahary differed, for the reasons below, I preferred that of Constable Pahary.
[7] As another example, the evidence of Constable Rogers from time-to-time lacked common sense. In defending the second of three physical searches of Mr. Walters, Constable Rogers initially maintained that a second physical search of Mr. Walters was necessary to ensure that he did not have any weapons. In cross-examination, Constable Rogers acknowledged that at the time of the second physical search there were no concerns about weapons because they would have been revealed in the previous pat-down search. Additional examples regarding my cautious approach to the credibility and reliability of Constable Rogers’ evidence are given below.
b) The evidence of Constable Hishaam Pahary
[8] I had no reason to question Constable Pahary’s credibility.
[9] As to his reliability, Constable Pahary often expressed an inability to recall particular details, and that inability was candidly acknowledged. That said, I found the things that he purported to recall reliable in that they were internally consistent and consistent with the preponderance of evidence that I believed. As a result, I find the evidence that Constable Pahary purported to recall to be both credible and reliable.
3) The evidence as to the events of December 2, 2015
a) The genesis of the drug investigation
[10] At approximately 12:54 p.m. on December 2, 2015, the OPP in Leamington received an anonymous complaint that an individual named Cody Crowley (“Mr. Crowley”) had just approached him and attempted to sell drugs to him at the corner of Mill Street East and Erie Street South. Constables Rogers and Pahary were dispatched to the location. Both constables knew Mr. Crowley. Constable Rogers described it as a drug transaction “in progress”.
[11] Although Constable Rogers had a suspicion as to who the informer may have been, that was never confirmed. In other words, the police officers had no way of gauging the potential reliability of that information. The impact of that inability to gauge the reliability of that information is more fully considered below.
b) The police locate Mr. Crowley
[12] Constable Rogers and Constable Pahary both testified that they were familiar with the area. Constable Rogers said that there were a number of bars in the area. He also said that the level of drugs and crime were increased in that area. As a result, he described it as “target area”.
[13] Constable Rogers, Constable Pahary, and Constable Josh Galea (“Constable Galea”) arrived in separate police cruisers at about the same time and immediately found Mr. Crowley. According to Constable Rogers, Mr. Crowley was, at the time, walking eastbound on Mill Street East, stumbling from side-to-side, and observed bumping into the wall of the adjacent school building.
c) Mr. Crowley is placed in investigative detention, questioned, and searched
[14] Mr. Crowley was placed under investigative detention and taken to the rear of Constable Pahary’s police cruiser. He was given a pat-down search, purportedly for officer safety reasons.
[15] It was Constable Rogers’ evidence that he searches everyone who is detained on an investigative detention. Constable Rogers testified that he had been a police officer since 2000. He also expressed an awareness of the decision in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, which had been decided in 2004, as to the proper limits on searches during investigative detentions. It was his evidence in the first day of cross-examination that OPP training received after the Mann decision mandated that he conduct a weapons search on every detained person whether or not there are grounds to believe there is a weapon. When Constable Rogers returned the following day, he advised the court that he had reviewed OPP training slides regarding the issue and wanted to correct his testimony to reflect that the OPP are not taught to do a pat-down search on everyone detained. He explained that the search incident to investigative detention can only be conducted where it is reasonable to ensure police or public safety.
[16] The search did not reveal any drugs, however, the detention continued while Constable Rogers searched the area. It was his evidence that, based upon his experience as a police officer, Mr. Crowley may have drugs located in the area. Again, that search did not disclose any drugs. During that timeframe, Constable Pahary questioned two students he located in the parking lot beside the school and an administrator from that school.
[17] Constable Rogers confirmed that Mr. Crowley had been questioned about the crime being investigated that day.
[18] In cross-examination, defence counsel asked Constable Rogers about his police training in that regard. Constable Rogers acknowledged having been told not to ask questions of the accused before the right to counsel was effected. Constable Rogers distinguished what had occurred on the basis that this was what he described as “an initial contact”. Mr. Walters had simply been “asked a couple of questions”.
d) Mr. Crowley’s right to counsel is not facilitated
[19] Defence counsel asked Constable Rogers what the OPP teaches about the right to counsel. It was his evidence that the training says that once detained, the right to counsel should be read “without delay”. He said that each situation is different and, accordingly, “without delay” is different in each situation. “Without delay” could be one minute or it could be ten minutes depending on the circumstances. He also agreed with a defence suggestion that it is his understanding that “without delay” does not mean “immediately”. He further agreed with a defence suggestion that it was his understanding that the right was to be facilitated “as soon as possible but not immediately”.
[20] Constable Rogers acknowledged that Mr. Crowley had never had his right to counsel facilitated. There were several reasons given.
[21] The primary reason was that Constable Rogers did not want to read the right to counsel unless he did it properly. The card that he reads had been left in his police cruiser. He thought it was a better use of his time to simply continue the investigation. It was his logic that by doing so the detention would end sooner if the right to counsel was not facilitated unless he found it necessary. This implies that Constable Rogers had failed to read the right to counsel in an effort to inconvenience Mr. Crowley as little as possible.
[22] Another reason that Mr. Crowley was not cautioned or reminded of his right to counsel was based on priorities. Officer safety was the first priority. Again, the focus was to make the detention brief. That said, in cross-examination Constable Rogers acknowledged that he knew Mr. Crowley well and that he had always been co-operative in the past. He had never found weapons on Mr. Crowley during a pat-down search, although he had on one occasion found weapons in Mr. Crowley’s apartment. Constable Rogers also acknowledged that there were at least two police officers there, being himself and Constable Pahary, and that Constable Galea may have also been there.
[23] In cross-examination, Constable Rogers acknowledged that notwithstanding the lack of compliance with s. 10(b), questions had been asked regarding drugs and weapons. He agreed that the drugs were at the heart of the very charge that was being investigated at the time.
e) Mr. Crowley is released
[24] Once the police had finished questioning Mr. Crowley and at least three nearby people, and searched both him and the surrounding area, they released him. In that very thorough investigation no drugs had been discovered.
[25] The police officers returned to their marked police cars. Mr. Crowley then entered what Constable Rogers initially described as an alley, but conceded in cross-examination was a fairly large parking lot. It was the same parking lot that was located directly east of the school building where two students and a school administrator had been questioned.
f) The police observed Mr. Crowley with the applicant
[26] Mr. Crowley re-emerged from the parking lot in what Constable Rogers estimated to be less than a minute later. He exited at the same location that he had entered the parking lot. He was, at the time, walking with the applicant. The applicant had a bicycle with him.
[27] According to Constable Rogers, the two nodded at one another and then went separate ways. According to Constable Pahary, the two appeared to mouth something to one another. Mr. Walters then nodded at Mr. Crowley and the two went their separate ways.
[28] In any event, Constable Pahary acknowledged in cross-examination that he had not seen Mr. Walters in the parking lot during his earlier investigation of that lot.
[29] Constable Rogers testified that at that point in time he and Constable Pahary formed a belief that the applicant and Mr. Crowley were involved together in drug trafficking activities. They based that belief on the interaction they witnessed and made the decision to investigatively detain Mr. Walters. That belief arose because of police officers’ knowledge and training that street-level drug traffickers often work in pairs, allowing one person to solicit customers while the other holds on to the drugs. He said that their conclusion was reinforced by the fact that Mr. Walters had left the area quickly.
[30] Constable Pahary also expressed a belief that street-level drug traffickers often operate in pairs. It was his evidence that one member of the team will, in his words, “carry the load” while the other solicits customers.
[31] Constable Pahary’s evidence as to the conduct observed was somewhat different than Constable Rogers. In cross-examination, Constable Pahary specifically denied that he had formed an intention to detain as of that point in time. He testified that as of then he suspected that they might be working together, but at the time was not sure. He said that “they did not have anything more”. Constable Pahary then said that he “was not going to arrest him for nodding to someone”. It was his evidence that he wanted to speak to Mr. Walters further in order to gain additional information.
[32] In cross-examination, Constable Rogers acknowledged that he did not know Mr. Walters nor did he know of him. In other words, Constable Rogers knew of nothing to suggest that Mr. Walters had in the past been in any way involved with drugs or with any crime. Constable Rogers also acknowledged that there have been no suggestion by anyone that Mr. Crowley was working with another person that day. Nor had there been any suggestion by anyone that Mr. Crowley had been seen in the company of a Black male that day. The applicant is a Black male.
[33] Constable Rogers also testified in cross-examination that he was never able to confirm who the anonymous informant was. He agreed with a defence suggestion that, as a result, there was no way to test the reliability of the information that had led to the fruitless search of Mr. Crowley.
[34] After parting ways with Mr. Crowley, Mr. Walters rode his bicycle east on Mill Street to its intersection with Princess Street, north on Princess to its intersection with Talbot Street West and then west on Talbot Street West. Constable Rogers at one point described Mr. Walters as riding his bicycle at “an extremely high rate of speed for a bicycle”.
g) Mr. Walters is investigatively detained
[35] Constable Rogers testified that he instructed Constable Pahary to investigate and detain the applicant. Constable Pahary activated his emergency lights and used his horn to get Mr. Walters’ attention. He intercepted Mr. Walters about 50 feet west of the intersection of Talbot Street West and Princess. Constable Rogers estimated that was approximately 1 - 2 minutes after Mr. Crowley and Mr. Walters had parted ways.
[36] Constable Rogers arrived shortly after Constable Pahary had detained Mr. Walters. According to Constable Pahary, he had in the meantime asked Mr. Walters why he had been riding his bicycle away from him. Mr. Walters had replied that he was on his way to the laundromat. Consistent with that reply, Mr. Walters at the time had a bag of laundry and laundry soap with him.
[37] Constable Rogers confirmed that from the time Constable Pahary had “taken control” of Mr. Walters that day, he had been under investigative detention in relation to their investigation of the drug trafficking offence reported by the anonymous informant.
[38] According to Constable Rogers, he was further suspicious of Mr. Walters at that point in time because he was breathing heavily, sweating, and appeared to be nervous. To be clear, those observations were made after the investigative detention had begun.
[39] Constable Rogers also asked Mr. Walters where he was going. Mr. Walters again said that he was going to do his laundry.
[40] According to Constable Rogers, once detained Mr. Walters had been asked whether or not he knew Mr. Crowley and whether or not he was involved in the drug trafficking incident that they were investigating. Constable Rogers could not recall whether that questioning had occurred before or after the CPIC inquiry that is considered below. In any event, Mr. Walters denied any involvement in the offence being investigated.
h) Mr. Walters is searched incident to investigative detention
[41] At the end of the examination-in-chief of Constable Rogers I was left with the impression that Mr. Walters had been physically searched once by the police in relation to this matter. By the conclusion of cross-examination, it became clear that Mr. Walters had in fact been physically searched a total of three times that day. The evidence as to each is considered below.
[42] The first physical search occurred immediately upon detention. It was a pat-down search purportedly for officer safety reasons. Constable Rogers candidly acknowledged that the search had been conducted notwithstanding that Mr. Walters was being co-operative, and notwithstanding that Constable Rogers had no reason to believe that Mr. Walters was in possession of a weapon. Constable Rogers acknowledged that the bag containing Mr. Walters’ laundry had also been searched. He, however, could not recall whether that had occurred during the first search or the second physical search, which is discussed below.
[43] Once that initial pat-down search was completed, Constable Rogers requested identification. Mr. Walters produced a Jamaican driver’s licence. Using that driver’s licence, Constable Rogers conducted a CPIC inquiry using his hand-held radio. That inquiry disclosed what Constable Rogers described as an immigration warrant.
i) Mr. Walters is arrested on an administrative warrant and searched again incident to his arrest on that warrant
[44] Mr. Walters was then arrested for the first time. This arrest was based on the immigration warrant, and he was put in handcuffs. According to Constable Rogers, Mr. Walters had been compliant throughout the entire process. Also according to Constable Rogers, no force had been applied or threatened to be applied to Mr. Walters during that process. As is more fully considered below, Mr. Walters was not cautioned or read his right to counsel upon this arrest. He was not cautioned and reminded of his right to counsel until he was arrested a second time for possession of cocaine for the purpose of trafficking.
[45] Upon the second arrest, Mr. Walters was then searched a second time. Constable Rogers said that the second search was incident to arrest. He said that he was searching for evidence, means of escape, and protection of the public, the accused, and the officers at the scene. It was Constable Rogers’ evidence that the OPP “orders” mandate that everyone arrested be searched incident to arrest.
[46] Constable Rogers testified that the second search for evidence was for things such as a passport or other documents related to the immigration warrant.
[47] Constable Rogers was also questioned about a search for means of escape. Initially he was unable to give an example of what he might be looking for. Sometime much later in cross-examination, Constable Rogers explained that an individual may be in possession of a handcuff key.
[48] Constable Rogers initially maintained that a second search for weapons was necessary. Defence counsel put Constable Rogers’ testimony at the preliminary inquiry to him. That evidence made it clear that Constable Rogers did not have any concerns about weapons at the time that the second search had been conducted. That is because the pat-down search that had been conducted had revealed no weapons. Constable Rogers ultimately acknowledged that to be true.
[49] Finally, Constable Rogers testified that he was looking for means by which Mr. Walters could hurt himself. It was his evidence that would “definitely” include drugs. In other words, Constable Rogers was searching for drugs during that search. I reiterate that drugs were at the very heart of the crime for which Mr. Walters had initially been investigatively detained.
[50] In any event, the search incident to the second arrest produced nine small Ziploc baggies containing a mixture of powdered and crystallized cocaine. The total weight was approximately 6.4 grams.
j) Mr. Walters is re-arrested, cautioned, and his right to counsel is facilitated
[51] Mr. Walters was then re-arrested for possession of a controlled substance for the purpose of trafficking. Mr. Walters was placed in Constable Pahary’s police cruiser at 1:10 p.m. He was cautioned and read his right to counsel by Constable Pahary. He was then transported to the OPP Leamington detachment.
[52] Defence counsel asked Constable Pahary why he had not been read his right to counsel earlier. Constable Pahary said that he believed that waiting until that point in time was the safest.
[53] Defence counsel also asked Constable Rogers why Mr. Walters had not been read his right to counsel earlier. He was not sure. It was again Constable Rogers’ evidence that he had left the card containing the proper language for reading the right to counsel in his police car.
[54] In any event, Constable Rogers again did not find it expedient in what he described as a “fluid situation” to take the time to inform Mr. Walters of his right to counsel at any point prior him having been arrested for the second time, and placed in the police cruiser.
[55] At one point, Constable Rogers reasoned that the sequence that he chose to follow that day was expedient and, as a result, would benefit Mr. Walters by shortening his detention. He explained that if the search did not reveal any contraband, and Mr. Walters was not involved in the crime that they were investigating, then there would be no reason to arrest him and, accordingly, no reason to caution him or read him his right to counsel. Minutes later, he further explained that an arrest would only be justified if the search revealed further evidence.
[56] Later in cross-examination, Constable Rogers denied that the failure to facilitate a right to counsel was based solely upon expediency. He again referred to what he described as the “fluid situation”. He explained that one officer must be watching the other while the investigation continues. He also said there were a fair number of people around and that Mr. Crowley had walked by the place where they were engaging Mr. Walters. Constable Rogers said that reinforced his belief that Mr. Walters had been involved with Mr. Crowley in the crime being investigated. I had some difficulty with that explanation. One officer could have watched while the other read Mr. Walters his rights. Mr. Walters could have been put into the police cruiser at an earlier point in time. I was not given any concrete reason as to why neither had occurred.
k) Mr. Walters is searched for a third time at the police station
[57] Constable Rogers testified that Mr. Walters had been physically searched for a third time at the police station.
[58] The video footage depicts Mr. Walters, Constable Rogers, and Constable Pahary entering the booking area at the Leamington OPP detachment. Mr. Walters is in handcuffs. According to Constable Rogers, Mr. Walters began to ask to use the bathroom as soon as they entered the detachment. He continued to do so with some regularity until he was ultimately allowed to use the bathroom.
[59] The third physical search commenced in that booking room with Mr. Walters removing clothes beginning with his shoes.
[60] The three then moved to the hallway off the booking area to a location in the hallway immediately in front of cell number five. That is the only cell off of that hallway. Mr. Walters can then be seen removing his pants and then his long underwear at the request of, and with some assistance from, Constable Rogers. I reiterate that Mr. Walters remained in handcuffs. Constable Rogers explained that was to prevent him from taking something from somewhere on his body and either putting it in his mouth or in the nearby toilet.
[61] He is then only wearing boxer shorts on the bottom, although he still has his shirt on. Constable Rogers said that it was his practice to examine the waistband of an individual’s underwear in those circumstances and that he had probably done so that day. Constable Rogers can be seen in the video doing something consistent with such conduct. He explained that he likely would have done so because the small packages of cocaine that had been found earlier could be hidden just about anywhere.
[62] Mr. Walters and Constable Rogers can then be seen entering cell number five. According to Constable Rogers he asked Mr. Walters whether or not he had anything in his underwear. Mr. Walters responded by pulling his underwear down to his knees without having been asked to do so. Constable Rogers checked the underwear, removed the handcuffs and then allowed Mr. Walters to use the toilet in cell number five. The police officers watched him doing so in order to ensure that something would not be thrown down the toilet. During the time that Mr. Walters’ underwear was down, his buttocks was visible but was not searched.
[63] Both Constable Rogers and Constable Pahary expressed some certainty that what had occurred was not a strip search. The reasons are more fully considered below.
[64] In re-examination, Constable Rogers for the first time testified that he was the senior officer on duty at the time. Defence counsel asked for the opportunity to reopen cross-examination to explore that issue given that it had not been addressed by the Crown during examination-in-chief. That permission was granted on consent. Constable Rogers then acknowledged that while he was the senior officer at that detachment, Sergeant Higgins was the shift supervisor on duty. It was his evidence that shift supervisors often supervise more than one detachment at a time. On that particular day, Sergeant Higgins was in the Kingsville detachment but supervising both detachments. Constable Rogers acknowledged that it would have been easy to discuss the issue with Sergeant Higgins by telephone.
[65] Once he had used the toilet, Mr. Walters returned to the booking area where he dressed himself.
l) The implementation of Mr. Walters’ right to counsel
[66] I reiterate that at 1:10 p.m., Mr. Walters was given his right to counsel by Constable Pahary.
[67] At 1:40 p.m. Constable Pahary began calling duty counsel. After three attempts, a duty counsel lawyer called back at 2:32 p.m. Mr. Walters was placed in a private booth and allowed to consult counsel.
[68] Later that day, the police were in the process of attempting to obtain a statement from Mr. Walters. During that interrogation, Mr. Walters again asked to speak with duty counsel. At 4:25 p.m., Constable Pahary again contacted duty counsel and shortly after that Mr. Walters was again placed in a private booth and the request to speak with counsel was facilitated.
[69] Constable Rogers could not recall whether he or any other police officer had asked any questions between the time of the arrest and the time of Mr. Walters effecting his right to counsel. Further, he did not have any notes as to any statements during that timeframe.
B. ANALYSIS
1) Introduction
[70] There are two conditions or stages of inquiry that must be met before evidence will be excluded: (i) the evidence must be “obtained in a manner that infringed or denied any rights or freedoms guaranteed” by the Charter, and (ii) the admission of the evidence in the proceedings “would bring the administration of justice into disrepute”: see R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1000.
2) The first stage of the analysis - was the evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter?
a) Introduction
[71] There was a chain of events that led to the evidence being obtained by the police. Absent any one of the links in that chain, the evidence would not have been discovered. Several of the links contained separate and independent Charter breaches.
[72] The conduct of the police that day, including those breaches and the other conduct of the police officers toward Mr. Crowley and Mr. Walters, must be considered in the context of proactive community policing in high crime areas. Such policing must be carried out in a manner that does not diminish the individual rights and freedoms of the members of the public involved and only where such is necessary to address risk: see R. v. Reid, 2016 ONCA 944, at para. 30; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 21.
[73] I will consider each of the links in that chain of events in turn.
b) The detention and search of Mr. Crowley
[74] The first link in that chain relates to Mr. Crowley. To be clear, I am aware that Mr. Walters lacks the necessary standing for an application for relief under s. 24(1) of the Charter and so I will not purport to grant any such relief: see R. v. Rahey, [1987] 1 S.C.R. 588, at pp. 618–19. That said, the treatment afforded to Mr. Crowley by the police officers that day provided some insight into these officers’ understanding of, and respect for, Charter values.
[75] I reiterate that Mr. Crowley was detained and questioned based upon nothing more than a tip from an anonymous informant that he was a drug dealer. The police were unable to confirm the reliability of that source other than to observe that the clothes Mr. Crowley was wearing that day matched those in the description that had been given by the informant. Anyone standing on that street corner that day could have observed Mr. Crowley’s clothes.
[76] Based upon that very thin information, the police detained Mr. Crowley, questioned him with respect to the offence they were investigating, searched his person, and searched the surrounding area. Constable Pahary also questioned at least three nearby individuals. At no time was Mr. Crowley informed of his right to counsel during that entire process.
[77] Constable Rogers testified that it is his practice to search everyone who is detained on an investigative detention. I reiterate that on the first day of his cross-examination, Constable Rogers expressed a belief that OPP training received after the decision in Mann mandated that he conduct a weapons search on every detained person whether or not there are grounds to believe there is a weapon.
[78] When Constable Rogers returned to court the following day to continue his cross-examination, he advised the court that he had reviewed OPP training slides regarding the issue and wanted to correct his testimony. It was then his evidence that the OPP are not taught to do a pat-down search on everyone detained. He explained that the search incident to investigative detention can only be conducted where it is reasonable to ensure police or public safety.
[79] In this case, I reiterate the police officers testified that they knew Mr. Crowley. He had always been co-operative in the past and was being co-operative that day. He had been searched by the police officers many times. No weapons had ever been discovered on his person while he was on the street. There was nothing special about that day that would suggest that Mr. Crowley then had a weapon.
[80] That evidence gives rise to two possibilities.
[81] One is that the actual purpose of the search was to obtain evidence of the crime that the officers were investigating, thinly disguised as a search for officer safety. The other is that Constable Rogers had an honest-but-mistaken belief as to the state of the law. In either case, Mr. Crowley’s rights were potentially violated by the search. That search and the questioning that took place also potentially violated his right to counsel.
[82] I found that the conduct of the police officers toward Mr. Crowley that day was cavalier and demonstrated disregard for Mr. Crowley’s Charter rights and Canadian society’s values as expressed in the Charter. I reiterate that Mr. Walters lacks standing to obtain relief as a result of those potential breaches. Those observations are, however, important in considering the reasonableness of the various decisions made by the police officers in the totality of the circumstances that occurred that day.
c) The detention of Mr. Walters
i. Introduction
[83] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. The onus is on the applicant to show that in the circumstances she or he was deprived of their liberty: see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 28.
[84] There is tension between interpreting a Charter right too narrowly, thereby impoverishing the right on the one hand, and on the other hand interpreting it too generously, expanding the right beyond its intended purpose. As a result the language in s. 9, must be construed in a generous manner that does not overshoot its purpose: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 17; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.
ii. Was the applicant detained?
[85] In Suberu, at para. 23, the Supreme Court affirms the purposive approach to detention taken in Grant. In para. 19; the Court observes that:
The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
[86] In this case, Constable Rogers testified that he had instructed Constable Pahary to detain Mr. Walters, and that once Constable Pahary had “taken control of” Mr. Walters that he had been investigatively detained.
[87] On the basis of the facts above, I agree with that conclusion and accordingly find that Mr. Walters was detained within the meaning of s. 9 of the Charter.
iii. Was the applicant’s detention arbitrary?
Introduction
[88] A lawful detention is not arbitrary: see Mann at para. 20.
[89] Ascertaining whether or not a detention was lawful is a two-stage process.
The first stage
[90] At the first stage, the court must consider whether the conduct in question falls within the general scope of the duties imposed on an officer, either by statute or at common law: see Mann at paras. 20 & 24.
[91] In this case, the Crown maintains that the lawful purpose was an investigative detention pursuant to the duty to investigate a tip related to drug trafficking. I agree with that proposition.
The second stage
[92] If the threshold issue at the first stage is met then the analysis proceeds to the second stage. At the second stage, the issue is whether the conduct involved an unjustifiable use of the powers associated with the exercise of those duties: see Mann at para. 24.
[93] Canadian jurisprudence shows support for interpreting the right to security of the person generously in relation to delays: see Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 14, and R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 59.
[94] The standard for investigative detention equates with something more than a mere hunch and something less than reasonable grounds to believe. It involves “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”: see, R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.), at p. 202 [cited to O.R.]; and R. v. Basset, 2008 ONCJ 44736, 177 C.R.R. (2d) 330, at para. 26. The nexus between the individual and the suspected crime must be clear: see Mann, at para. 34.
[95] The objective reasonableness of the arrest must be viewed through the lens of the arresting officers. The analysis involves considering reasonable grounds at the front end of the assessment and then the overall reasonableness of the decision to detain: see, R. v. Williams, 2014 ONCA 908 at para. 14.
[96] As to the reasonableness of the grounds for detention, I reiterate that it was Constable Rogers’ decision to investigatively detain Mr. Walters. There were two overarching aspects to that decision.
[97] The first aspect was his conclusion that a drug trafficking offence had or was about to occur. That conclusion was based upon an unverified anonymous tip that Mr. Crowley was attempting to sell drugs. I reiterate that Mr. Crowley had been detained, questioned, and searched. The area in which Mr. Crowley had been found had also been searched. At least three nearby individuals had been questioned by police. That investigation had not revealed any evidence to suggest that the unverified anonymous tip was truthful or valid.
[98] The second aspect of his conclusion was based upon Mr. Walters and Mr. Crowley having been seen briefly together and nodding at one another.
[99] Given the lack of any evidence of a drug transaction other than a tip from an anonymous informant, which had been acted upon without result, it seems to me that Mr. Walters’ very brief contact with, and parting nod to, Mr. Crowley falls far short of reasonable grounds to suspect that Mr. Walters was involved in criminal activity.
[100] Accordingly, I conclude that there were no reasonable grounds for detention.
[101] Even if I had found reasonable grounds, I would have found the detention unlawful on the basis of a lack of overall reasonableness of the decision to detain.
[102] The overall reasonableness of the decision to detain must be assessed against all of the circumstances. The circumstances include, without limitation, the extent to which the interference with individual liberty is necessary to perform the officer’s duty when that duty is considered in the context the liberty interfered with, and the nature and extent of that interference: see Mann, at para. 34.
[103] In this case the Crown relies upon officer training and experience to create a nexus between the applicant and the crime reported by the anonymous informant. The Crown relies on the proposition that police officers are trained to detect criminal activity and because of that, a fact that may have no significance to a layperson may be consequential in the hands of the police: see R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 62; R. v. Yeh, 2009 SKCA 112, 337 Sask. R. 1, at para. 53.
[104] I reiterate that the evidence relied upon by Constable Rogers consisted of an observation of Mr. Walters walking with Mr. Crowley for a brief period of time, and then nodding to one another. It was his evidence that based upon that brief and superficial exchange that the two were friends or associates linked together in the drug trafficking business and so an investigative detention was appropriate.
[105] I reiterate that the reasonableness of that conclusion must be considered the context in which it occurred. I make the following observations about those circumstances and the reasonableness of that conclusion.
[106] The first observation is that as of the point in time that Constable Rogers formed that conclusion, Constable Pahary had not. I reiterate that it was Constable Pahary’s evidence as of then that he suspected they might be working together, but at the time he was not sure. He said that “they did not have anything more”. Constable Pahary then said that he “was not going to arrest him for nodding to someone”. In other words, Constable Pahary’s conclusions call the reasonableness of Constable Rogers’ conclusions into question from the perspective of a fellow arresting officer.
[107] The second observation is that the evidence that a drug transaction had actually occurred, or was about to occur, was quite thin. I say again that the police had been informed by an anonymous and never identified informant that Mr. Crowley was in the midst of a drug transaction. They had investigated those allegations and discovered nothing to support the conclusion the allegations were true. Common sense dictates that the police ought to have been quite suspicious as to the truthfulness of the anonymous tip. That suspicion ought to have informed their treatment of Mr. Walters.
[108] The third observation is that Constable Rogers candidly acknowledged never having information about Mr. Walters personally. He was not known to the police as a drug dealer, an individual involved in crime, or otherwise. In other words, there was nothing about Mr. Walters personally to suggest that he may have been involved in a drug transaction that day.
[109] Relatedly, Mr. Walters is a Black man. There was no information to suggest that Mr. Crowley had been seen in the company of a Black person that day.
[110] The fourth observation is that there was no information to suggest that Mr. Crowley had a partner in the drug dealing that was reported to be occurring. In other words, the existence of a partner was nothing more than a hunch on the part of the police.
[111] Given those observations as to the circumstances, I conclude that when considered from the standpoint of the police officer the decision was objectively unreasonable.
[112] For all of these reasons I conclude that the detention was arbitrary and in contravention of the rights of Mr. Walters under s. 9 of the Charter.
d) The pat-down search of Mr. Walters
[113] Constable Pahary stopped Mr. Walters using his emergency lights and horn. Constable Rogers testified that he arrived about ten seconds later.
[114] After Constable Pahary stopped him in that fashion, Constable Rogers asked Mr. Walters why he was in the area and if he was involved with drug trafficking with Mr. Crowley. Mr. Walters denied that he was involved in drug trafficking. Mr. Walters explained that he was on his way to do his laundry. Constable Rogers acknowledged that, consistent with that assertion, Mr. Walters had a bag of clothes and laundry soap on his person at the time.
[115] Constable Rogers stated that he found Mr. Walters suspicious because he was breathing heavily and sweating at the time and it was then December. He also appeared nervous.
[116] I reiterate that I had some difficulty with the evidence of Constable Rogers. This evidence is an example of my reasons for those concerns.
[117] Constable Rogers observation as to Mr. Walters breathing and sweating must not only be considered in the context of the time of year but also in the context of the physical activity which Mr. Walters had been engaged in immediately prior to his detention. Constable Rogers said that Mr. Walters had been riding his bike at what he had at one point described as “an extremely high rate of speed for a bicycle”. Mr. Walters had gone east down Main Street, turned left onto Princess Street, headed north for what appears to be a long city block, and then turned left on Talbot Street West headed west. He was eventually stopped on Talbot Street West just west of Princess. I do not find it surprising that Mr. Walters would be sweating and breathing heavily in the circumstances described by Constable Walters, nor do I think sweating and breathing heavily would have been any reason for Constable Rogers to have been suspicious at the time.
[118] As to Mr. Walters’ nervousness, he had just been detained by three police officers who had arrived in three separate police cars. At least one of those police cars was using emergency lights. Again, I do not find it a stretch to conclude that most people would appear nervous in those circumstances.
[119] In summary, after that questioning had occurred the police had no reason to believe that Mr. Walters was going anywhere but to do his laundry. The detention was initially based upon Constable Rogers having seen Mr. Walters beside Mr. Crowley for a brief period of time and the two nodding at one another. I reiterate my finding above that detention on that basis was unreasonable.
[120] I also conclude that the events immediately following Mr. Walters detention added nothing meaningful to the original grounds. Mr. Walters had his laundry, and it was his stated intention to do that laundry. The police should have allowed him on his way.
[121] Instead, they decided to do a pat-down search incident to investigative detention in the same way they had searched Mr. Crowley a few minutes before. There was nothing in the evidence to suggest that the police had any reasonable ground to suspect Mr. Walters had a weapon with him. I reiterate that they had no prior contact with him. They were not even aware of Mr. Walters’ existence until they had seen him in the parking lot a few minutes earlier with Mr. Crowley. There was no evidence that Mr. Walters had acted in a suspicious fashion or that the police had seen anything that would suggest the possibility of a weapon.
[122] As such, there are two possibilities. The first is that Constable Rogers was unaware of a change in the law regarding search incident to investigative detention that had taken place approximately 11 years prior to these events. Constable Rogers acknowledged having taken courses regarding and having read the Supreme Court decision in Mann. The other possibility is that this search was a thinly disguised attempt to obtain evidence regarding the drug trafficking offence then under investigation.
[123] In either case I find that that search again violated Mr. Walters’ constitutional rights.
e) The demand for Mr. Walters’ identification
[124] Once that unconstitutional search had been completed, Constable Rogers requested identification. Mr. Walters produced a Jamaican driver’s licence that Constable Rogers used to conduct a CPIC inquiry. That inquiry in turn revealed that Mr. Walters had an outstanding immigration warrant.
[125] When an officer asks for identification and then uses that identification to conduct a CPIC inquiry, the resulting information available from CPIC is no different than the police asking a series of questions about an individual’s criminal past, bail status, and the terms of any bail that Mr. Walters may have. That conduct amounts to a search and seizure, and thus attracts the protection of s. 8 of the Charter: see R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at paras. 39 & 40.
[126] There are cases where a breach will be saved by s. 1 of the Charter; for example a request for a driver’s licence during a traffic stop. That said, there was no suggestion of a legitimate reason for the request for information by Constable Rogers.
[127] I find that the search and seizure related to the request for identification again violated Mr. Walters’ constitutional rights.
f) The second physical search of Mr. Walters
[128] Mr. Walters was arrested based upon an administrative warrant, and a second physical search incident to that arrest revealed nine small Ziploc baggies containing cocaine. The total weight was approximately 6.4 grams.
[129] Given that the arrest was based on evidence obtained through the violation of Mr. Walters’ constitutional rights, I find the arrest was not lawful and that, as a result, Mr. Walters’ rights pursuant to s. 9 were again violated when he was imprisoned as a result of the unlawful arrest.
[130] I am aware that where an arrest is unlawful, it does not necessarily follow that the detention is arbitrary. In some cases, grounds that fall short of reasonable grounds to arrest may constitute reasonable grounds to detain: see Basset, at para. 25; Simpson, at p. 189; and Mann, at para. 64. The objective reasonableness of the arrest must be viewed through the lens of the arresting officers: see Williams, at para. 14.
[131] As said above, I find that the detention was not reasonable. Similarly, I find that when viewed through the lens of the arresting officers that the arrest was not objectively reasonable either.
[132] Even if I had not found the arrest to have been unlawful, I would have found that the search violated Mr. Walters’ constitutional rights in any event. That is because there were no reasonable grounds to conduct such a search.
[133] I reiterate that Constable Rogers initially maintained the second search was also necessary from the standpoint of officer safety. He, however, resiled from that position when his evidence at the preliminary inquiry was put to him. That evidence made it clear that Constable Rogers did not have any concerns about weapons at the time of the second physical search.
[134] Constable Rogers also said the search was necessary to identify any means of escape. The only example he could give was the possible possession of a handcuff key. There was no evidence to suggest that he had any reason to believe that Mr. Walters had such a key in his possession. To be blunt, I found that evidence to be somewhat of a stretch.
[135] Constable Rogers also testified that the search was necessary to establish means by which Mr. Walters could hurt himself. It was his evidence that would “definitely” include drugs. In other words, Constable Rogers was searching for drugs during that search. That was the offence originally being investigated and in no way connected to the immigration warrant.
[136] In addition, it appears from the evidence of both Constable Rogers and Constable Pahary that a further physical search would be automatically conducted when Mr. Walters was being booked at the police station. Given that Mr. Walters was handcuffed and had already been search for weapons I was at a loss to understand why this search was necessary other than for the police to obtain evidence as to the drug offence which they were investigating.
[137] Finally, defence counsel pointed out to Constable Rogers that the immigration warrant was not a Part XXVIII warrant as envisaged by s. 495 of the Criminal Code. Defence counsel pointed out that it was an administrative warrant and that as a result there had been no offence charged, and thus there could be no evidence of an offence to search for.
[138] Constable Rogers testified that he was unaware of what an administrative warrant was at the time, notwithstanding that he knew something about immigration warrants from the time he had worked as an officer with the Canada Border Services Agency. It was his evidence that he presumed that there was an offence because there was a warrant. It was also his evidence that it would have been too cumbersome to inquire as to the basis for the warrant from the roadside. He explained that immigration has a “callback number” and he had no way of knowing when they would return his call if he made an inquiry. Given Constable Rogers’ professed familiarity with that system I presumed that this was not the first occasion on which Constable Rogers had been involved with a Canada Border Services Agency warrant.
[139] Simply put, there was no reason for that search to have occurred prior to Mr. Walters having his right to counsel facilitated. Again, it was difficult to escape the conclusion that the second search was designed to locate evidence of the crime being investigated rather than the warrant for which Mr. Walters had been arrested.
g) The third search of Mr. Walters
[140] I reiterate that Mr. Walters was searched a third time at the detachment.
[141] I reiterate that because the search was incident to an unlawful arrest this search also violated Mr. Walters’ constitutional rights.
[142] This search raises another important issue. That is, whether or not Mr. Walters was strip searched that day. Strip searches are considered prima facie unreasonable because of their invasive character. Accordingly, it is up to the Crown to rebut that presumption: see R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 at para. 105.
[143] Constable Rogers reasoned that because Mr. Walters’ genitalia had not been physically touched, and because a cavity search had not been conducted, a strip search had not occurred. Similarly, Constable Pahary was under the impression that in order to constitute a strip search of person not wearing any clothes it was required to “spread their legs”. I disagree with that logic.
[144] “[T]he term ‘strip search’ is properly defined as follows: the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments”: see Golden, at para. 47 (emphasis added).
[145] In this case, Mr. Walters had nothing covering either his genitalia or buttocks area. On the evidence before me I find that consistent with a strip search. That said, it was not at all clear on the evidence before me that the police officers had intended to perform a strip search.
[146] Constable Pahary’s evidence in that regard was simple and straightforward. He said there was no intention to do so. Constable Rogers also testified that he had no intention of performing a strip search on Mr. Walters. It was his evidence that Mr. Walters had removed his underwear on his own without any meaningful suggestion by the police that he do so.
[147] That said, both officers testified that Mr. Walters had expressed a need to urinate time and time again. There was obviously some urgency to Mr. Walters’ need. The police may have created a situation where Mr. Walters was induced to remove his underwear in order to access the toilet.
[148] On the evidence before me I am reluctant to find that what occurred that day would be properly categorized as a strip search instigated by the police. That said, it seems to me that common decency required the police officers to allow Mr. Walters to urinate significantly sooner than they did. I found that conduct consistent with the police officers substandard and cavalier treatment of Mr. Walters throughout the day.
h) The right to counsel
i. Introduction
[149] Section 10(a) of the Charter provides that “everyone has the right on arrest or detention to be informed promptly of the reasons therefor”. The onus is upon the accused to demonstrate that they were not facilitated to exercise their right to counsel or that they were informed of their right, exercised it, and were notwithstanding denied counsel: see R. v. Baig, [1987] 2 S.C.R. 537, at p. 540; R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), at p. 431, aff’d in R. v. Evans, [1991] 1 S.C.R. 869, at pp. 891–892.
[150] In R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242–43, Lamer J. (as he then was) delineated three duties on police at the time of detention. They are:
- the duty to inform a detainee of the right to counsel
- the duty to facilitate contact with counsel
- the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel
[151] I reiterate my finding that the investigative detention of Mr. Walters was not lawful. It follows that he should have had his right to counsel facilitated. Even if I had found the investigative detention lawful, his right to counsel would continue to exist.
[152] I am aware that the right to counsel, like all rights guaranteed by the Charter, is subject to reasonable limitations as prescribed by law, pursuant to s. 1 of the Charter. As an example, an investigative detention for a driver to perform a sobriety test is a detention, but the right to counsel is not triggered as a result of s. 1: see R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; and Suberu, at para 45.
[153] That said, there is no general suspension of the s. 10(b) right to counsel for investigatory purposes with or without some form of use immunity: see Suberu, at para. 45. I did not find the circumstances of this case to fall within such a limitation.
[154] In this case, I find that there was nothing to engage s. 1. Mr. Walters should have been cautioned and informed of his right to counsel at the onset of the investigative detention. I find that in the circumstances of this case both the informational and implementation components of Mr. Walters’ right of counsel should have been completed prior to any of the three physical searches and the one document search that took place. Both components should have been completed prior to the questioning that occurred about the crime that was being investigated.
ii. The “Informational Component”
[155] The “informational component” requires the police to inform an individual of their right to retain and instruct counsel without delay, and of the existence and availability of legal aid and duty counsel.
[156] Constable Rogers was asked many times, and in many ways, about the delay in the informational component of Mr. Walters’ right to counsel. I reiterate that, at one point, Constable Rogers explained the expediency of the sequence which he chose to follow that day. He explained that if the search did not reveal any contraband, and Mr. Walters was not involved in the crime that they were investigating, there would be no reason to arrest him and accordingly no reason to caution him or read him his right to counsel. Minutes later, he further explained that an arrest would only be justified if the search revealed further evidence.
[157] Given that Constable Rogers was attempting to obtain evidence that would potentially incriminate Mr. Walters, I find that the right to counsel should have been facilitated immediately upon detention.
[158] That observation finds support in Constable Rogers’ candid acknowledgement that evidence of the crime that he was investigating may have been found on Mr. Walters’ person during the course of the search that he conducted.
[159] As indicated above, there was no urgency to conducting the second search. A third, thorough search would be conducted at the detachment in any event. That could have been done after the right to counsel had been facilitated to be either waived or acted upon.
[160] I am aware that later in cross-examination Constable Rogers denied that the failure to facilitate a right to counsel was based solely upon expediency. He again referred to what he described as the “fluid situation”. Constable Rogers explained that one officer must be watching the other while the investigation continues. He also said there were a fair number of people around and that Mr. Crowley had walked by, which Constable Rogers said reinforced his belief that Mr. Walters had been involved with Mr. Crowley in the crime being investigated.
[161] I again had some difficulty with that explanation. One officer could have watched the other read Mr. Walters his rights. In the alternative, at any point in time they could have put Mr. Walters into the police car if they were concerned about other people in the area. I was not given any concrete reason as to why that could not have occurred at various earlier points in time.
[162] Constables Rogers and Pahary gave various iterations of their understanding of what the words “without delay” mean in the context of the right to counsel.
[163] I reiterate Constable Rogers was of the belief that the meaning of “without delay” is different in each situation. Without delay could be one minute or it could be ten minutes, depending on the circumstances. He also agreed with a defence suggestion that it is his understanding that “without delay” does not equate with “immediately”. He also agreed with a defence suggestion that it was his understanding that the right was to be facilitated “as soon as possible but not immediately”.
[164] That understanding is clearly not correct. The law is well-settled that, subject to concerns for officer or public safety, the words “without delay” mean “immediately”: see Suberu, at para. 42. The burden is on the Crown to show that any delay was reasonable in the circumstances: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; and R. v. Luong, 2000 ABCA 31, 271 A.R. 368, at para. 12.
[165] In this case, there was no evidence to suggest officer safety was a real and meaningful issue. I reiterate that there had never been any reason to suspect that Mr. Walters had a weapon. Even if there had been, a pat-down search had been conducted immediately upon commencement of the investigative detention.
[166] For all of these reasons I make two conclusions.
[167] The first is that the officers were obviously unaware of the requirement to give the informational component of Mr. Walters’ right to counsel immediately. A lack of awareness of the current state of the law was a recurring theme throughout the testimony of both officers. I reiterate that was not the fault of the OPP. The OPP had provided the officers the necessary materials to stay current with the law.
[168] The second conclusion is that there were ample opportunities to facilitate Mr. Walters’ right to counsel long before it had been.
[169] I find that each of those missed opportunities was a breach of Mr. Walters’ rights under section 10(b) of the Charter.
iii. The “Facilitation Component” or “Implementation Component”
[170] For the reasons above I find that Mr. Walters writes with respect to the facilitation or implementation component was breached at several separate points in time.
3) The second stage of the analysis: Would the admission of the evidence bring the administration of justice into disrepute?
a) Introduction
[171] Once a Charter violation is established, the evidence may still be admissible provided its admission would not bring the administration of justice into disrepute: see R. v. Collins, [1987] 1 S.C.R. 265 at p. 280.
[172] The three factors to consider in this analysis are set out in Grant. The Supreme Court established that an assessment and balancing of the effect of admitting evidence on society’s confidence in the administration of the justice system must be carried out. The three avenues of inquiry are cited by Justices McLachlan and Charron and they appear at para. 71 of the judgment. They are as follows:
(1) The seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (3) Society’s interest in the adjudication of the case on its merits.
b) The seriousness of the breach
[173] As to the seriousness of the breach, the Court set out four considerations at para. 75. First, “extenuating circumstances” such as the need to prevent the disappearance of evidence may attenuate the seriousness of police conduct. Second, “good faith” on the part of the police reduces the need for the court to dissociate itself from improper police conduct, however, wilful blindness cannot equate with good faith. Third, wilful or flagrant disregard of the Charter may require that the court disassociate itself from the conduct. Fourth, exclusion will be supported by conduct found to be “part of a pattern of abuse” of Charter rights.
[174] Prior to considering my findings I would like to begin by stating that I do not believe either police officer deliberately set out that day to infringe anyone’s Charter rights. In other words, I found the violations attributable to inadvertent, rather than deliberate, conduct.
[175] That said, I found the conduct could be described as approaching recklessness. The sheer volume of the number of breaches speaks to that issue and demonstrates a clear pattern of abuse that day. The police officers’ notes were woefully inadequate as to important issues. For example, Constable Rogers could not recall whether he or any other police officer had asked any questions between the time of the arrest and the time that Mr. Walters was informed of his right of counsel. Further, he did not have any notes as to any statements made during that timeframe.
[176] Constable Rogers’ candid and honest acknowledgement that he did not understand the principles enunciated in Mann also speaks to the issue of recklessness. That said, that candid and honest acknowledgement was important in my having concluded that there was no bad faith on the part of either officer.
[177] Importantly, the legal uncertainty was not the fault of the OPP organization. As Constable Rogers acknowledged, the appropriate materials were available for him to ascertain the appropriate procedures.
[178] Finally, these breaches occurred in circumstances where there was no urgency. I conclude that they were driven by an overzealous-but-misguided attempt to investigate a crime of drug trafficking in a high crime area.
c) The impact of the breach upon the Charter interests of the accused
[179] As to the impact of the breach, the Court sets out in Grant, at para. 76, that an evaluation must be conducted of the extent to which the breach actually undermines the interest protected by the right infringed. The Court explains that the more serious the impact on the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights, however-sounding, are of little actual avail to the citizen, breeding public cynicism and bring the administration of justice into disrepute.
[180] The interests at stake are significant and many. Mr. Walters’ privacy, dignity, bodily integrity, liberty, and freedom of choice were all directly and negatively impacted by this conduct.
[181] He was unlawfully detained. He was denied his right to counsel at several junctures. Each time that right was denied he was also denied the right to make informed decisions in his dealings with the state.
[182] He was unlawfully physically searched not once, not twice, but three times. The last search was a very invasive search. While I accept that the police did not intend Mr. Walters to strip, their refusal to allow Mr. Walters to urinate despite persistent and repeated requests to do so may have created a situation where Mr. Walters was prepared to undergo the indignity of stripping rather than continue to forgo the ability to urinate.
[183] He was unlawfully searched a fourth time with respect to his identity by way of the CPIC inquiry.
[184] There was a close causal, temporal, and contextual connection between these Charter breaches and the discovery of the evidence which the applicant seeks to exclude.
[185] Individuals in Canada should feel confident in the ability to walk the streets without being unreasonably questioned, searched, or imprisoned.
[186] In this case, the police had no idea who Mr. Walters was. I reiterate that there was only a report of a drug transaction from an anonymous informant underlying the chain of events that led to Mr. Walters’ arrest. The veracity of that tip had been tested by the detention and searching of Mr. Crowley, and the area immediately adjacent to where Mr. Crowley had been found that day. At least three nearby individuals had also been questioned. The only thing linking Mr. Walters to that very vague possibility of a crime was the fact that he had been seen momentarily with Mr. Crowley and had nodded at him.
d) Society’s interest in the adjudication of the case on its merits
[187] As to society’s interest in the adjudication of the case on its merits, the Court clarified at para. 79 of Grant, and affirmed in Collins, that an appropriate assessment involves a consideration of not only the negative impact of the admission of evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence.
[188] In conducting that assessment, relevant factors to be balanced include “truth-seeking” which should be assessed in the context of the reliability of the evidence (para. 81); the importance of the evidence the prosecution’s case which again should be assessed in the context of the reliability of the evidence (para. 83); and finally, the seriousness of the offence at issue (para. 84).
[189] For the reasons above, I find that the admission of the evidence obtained as a result of these breaches would negatively impact the repute of the administration of justice. That said, the failure to admit would also tend to negatively impact the repute of the administration of justice in the circumstances of this case
[190] I say that because the drug evidence seized is reliable, direct evidence that is fundamentally important to the prosecution’s case. Without that evidence the case will indeed be difficult to prove. Drugs such as cocaine are wreaking havoc on society. They tend to disproportionately affect marginalized members of society such as the poor and the mentally ill. It necessarily follows that society has a significant interest in having this case adjudicated on its merits.
4) Conclusions
[191] In conclusion, the seriousness of the impact of drugs on society weighs heavily in favour of the admission of this evidence. That factor must however be considered and balanced in the context of the entire situation.
[192] I reiterate that there was a chain of events that led to the evidence being obtained by the police. Absent any one of the links in that chain the evidence would not have been discovered. There were at least seven or eight separate breaches of Mr. Walters’ Charter rights that day. He was unlawfully detained on two separate-yet-both-improper grounds; he was unlawfully physically searched three times; he was unlawfully searched when he was asked for identification; he was imprisoned as a result of an unlawful arrest, and he was denied his right to counsel, which had been triggered at several points throughout his detention/arrest.
[193] Those breaches were the result of conduct on the part of the state approaching recklessness. I found the fact that so many different Charter rights were breached in such a short period of time alarming.
[194] When those breaches are considered in the context of the treatment of Mr. Crowley that day, a pattern of disregard for Charter values emerges. Such a pattern cannot be condoned by the courts.
[195] To the contrary, there is a need for the courts to distance themselves from such behaviour. I conclude that in the circumstances of this case, the court’s failure to do so would undermine society’s confidence in the justice system.
[196] As a result, I find that I am left with no reasonable alternative but to exclude the evidence.
C. ORDER
[197] For all of the above reasons the application is granted and the evidence is excluded.
“original signed by Justice Christopher M. Bondy”
Christopher M. Bondy
RELEASED: July 6, 2018 Justice