Court File and Parties

COURT FILE NO.: 17-627

DATE: 2019/04/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Nikolas Darcy Kerr and Tracy Marie Lundrigan

BEFORE: Justice I.F. Leach

COUNSEL: Frances Brennan, for the Crown James Zegers, for the accused Mr Kerr Nicholas Wansbutter, for the accused Ms Lundrigan

HEARD: September 13, 14, 17 and 18, 2018[^1]

ENDORSEMENT

Overview

[1] By way of introduction and overview, the indictment in this proceeding contains a number of joint and several charges against the two defendants to this proceeding; i.e., Nikolas Darcy Kerr and Tracy Marie Lundrigan. In particular:

• Mr Kerr and Ms Lundrigan are jointly charged with one count of possessing methamphetamine for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, (or “the CDSA”);
• Mr Kerr alone is individually charged with a further count of possessing methamphetamine for the purpose of trafficking, contrary to s.5(2) of the CDSA;
• Ms Lundrigan is individually charged with one count of possessing hydromorphone, contrary to s.4(1) of the CDSA; and
• Ms Lundrigan also is individually charged with one count of possessing methamphetamine, contrary to s.4(1) of the CDSA.

[2] The charges stem from events that are alleged to have taken place here in the city of Stratford during the early morning hours of January 20, 2017.

[3] In particular, the Crown says that a vehicle being operated by Ms Lundrigan, in which Mr Kerr and another person were passengers, was the subject of a lawful traffic stop. That in turn is said to have led, through a series of further events that followed in the wake of that traffic stop, to the discovery of a bag of methamphetamine jointly possessed by Mr Kerr and Ms Lundrigan, which in turn led to their arrest, searches of their person and vehicle incident to arrest, and the discovery of further controlled substances in the sole possession of each accused, and weapons in the possession of Mr Kerr.

[4] In a separate but related criminal proceeding brought by the Crown against Mr Kerr alone, (bearing Stratford court file number 17-636), Mr Kerr individually also has been charged with possession of a weapon for a dangerous purpose, contrary to section 88 of the Criminal Code of Canada, (or “the Code”). Again, that charge stems from searches carried out incident to the same arrest of Mr Kerr, noted above, on January 20, 2017.

[5] Mr Kerr and Ms Lundrigan have elected to have the aforesaid charges against them tried in this court by a judge and jury.

[6] By way of similar but separate formal pre-trial applications brought in this court proceeding, Mr Kerr and Ms Lundrigan have requested:

• a. findings that the underlying circumstances involved breaches of the rights guaranteed to them by sections 8 and 9 of the Canadian Charter of Rights and Freedoms, (“the Charter”); and
• b. an order pursuant to s.24(2) of the Charter that would exclude, at trial, evidence of the various controlled substances that were located and seized by police as a result of the alleged Charter right violations.

[7] Initially, no similar formal application was brought by Mr Kerr in the context of Stratford court file number 17-636; i.e., to exclude evidence of various weapons, (a machete, cattle prod and knife), said to have been located and seized by police as a result of the same alleged Charter right violations. However, Mr Kerr then filed an amended notice of application in that regard, and the two criminal proceedings have been moving in tandem with each other.

[8] This endorsement is intended to address, simultaneously, the pretrial applications brought by each accused in this proceeding, and the pretrial application brought by Mr Kerr in the proceeding having court file number 17-636.

[9] The pretrial applications came on for hearing before me on September 13, 14, 17 and 18, 2018, at which time I received oral testimony from the following witnesses, each of whom was called by Crown counsel and separately cross-examined by counsel representing Mr Kerr and Ms Lundrigan:

• a. Donald James Wilson – who was a police officer with the Stratford Police Service (“SPS”) for approximately 29 years prior to his formal retirement in early 2018, and who held the rank of Sergeant from 2006 until his retirement;[^2]
• b. Jaclyn Lange – who has been a police officer with the SPS since January of 2013, and its designated canine officer since September of 2015; and
• c. Joey Otten – who has been a police officer with the SPS since April of 2009, following five years of serving with the Ontario Provincial Police (“OPP”) as an auxiliary constable.

[10] After hearing oral submissions from counsel, I then reserved my decision on the applications.

Application evidence and findings

[11] While I will have more to say about certain aspects of the underlying application evidence later in my reasons, (particularly in relation to the purpose and nature of the traffic stop noted above), the following findings of fact form the basic context of my further analysis:

• In the early morning hours of Friday, January 20, 2017, Sergeant Wilson was engaged in active police duty as the “Road Supervisor” for the 7:00pm to 7:00am night shift of the SPS. In that capacity, he was responsible for supervising occurrences being investigated by other constables, as well as carrying out his own general patrol and investigation duties.
• Sergeant Wilson was in a marked police cruiser, conducting what he described as a “targeted patrol” of a particular area of Stratford; i.e., in the vicinity of residential apartments located at 45 Buckingham Drive, and similar public housing units on nearby Cawston Drive and Franklin Drive. Members of the SPS generally were familiar with the area because it was known for generating above-average calls for police assistance in relation to criminal and non-criminal matters.[^3] As a result, administrators of the Stratford Police Service had identified it as a “high crime area” because it was experiencing above-average drug trafficking, stolen vehicle recovery and weapons-related offences. In response, police administrators had directed supervisors to ensure an elevated police presence in the area; e.g., to conduct “targeted patrols” in police vehicles and on foot, (including walks through apartment buildings), in an effort to increase police observations, (e.g., concerning the presence and movements of persons and vehicles in that area), and ensure a greater degree of police visibility, deterrence and law enforcement. Indeed, the intended response was part of something known as the “H.E.A.T.” program or initiative, with the first two letters of the acronym standing for “High Enforcement”.[^4]
• Sergeant Wilson’s cruiser was equipped with a mobile data terminal, (akin to a lap top computer), that allowed access to a number of different databases. Those databases included information compiled by the Canadian Police Information Centre (“CPIC”), and records, including photographs, of named individuals having prior involvement with the criminal justice system.[^5]
• Sergeant Wilson himself was personally equipped with a radio attached to his belt, a microphone to which may or may not have been affixed to Sergeant Wilson’s lapel or shoulder area for ease of access.[^6]
• As part of the H.E.A.T. initiative, Sergeant Wilson was driving through the parking lots of the aforesaid residential buildings when he noticed, at approximately 2:30am, a parked vehicle he previously had encountered. In particular:
  • The vehicle in question was a grey, four-door Mazda motor vehicle.
  • The registered owner of the Mazda vehicle was a man named Walter Lupsor.
  • In his capacity as a police officer, Sergeant Wilson had dealt with Mr Lupsor “many times” in the past, including at least one previous occasion on which Sergeant Wilson had placed Mr Lupsor under arrest. Sergeant Wilson described Mr Lupsor as a “known criminal, involved in the drug trade”.
  • At some point during the year prior to January 19, 2017, Sergeant Wilson had conducted a traffic stop in relation to the Mazda vehicle, and found that it was being operated not by Mr Lupsor but another man named David Jacobs, whose driving licence had been suspended.
  • During the early morning hours of January 19, 2017, (i.e., the day before), Sergeant Wilson had seen and stopped the Mazda vehicle again, at a nearby location on Buckingham Drive. In his initial testimony, Sergeant Wilson said that was done “to ensure compliance with the Highway Traffic Act and that the vehicle was not stolen”; e.g., having regard to time of day and the distant address to which the vehicle was registered. In the course of cross-examination, however, Sergeant Wilson acknowledged that he actually had stopped the vehicle, (driven at the time by Mr Lupsor), because he knew from other police dealings that Mr Lupsor was residing on Nile Street in Stratford, whereas the most recent information provided by Mr Lupsor to the Ministry of Transportation had indicated a residence in the town of Lion’s Head; i.e., a community located on the eastern short of the Bruce Peninsula, approximately 200km from the city of Stratford. In the circumstances, Sergeant Wilson believed Mr Lupsor to be in contravention of his obligation, under the Highway Traffic Act, (otherwise referred to herein as the “HTA” except when quoting a witness)[^7], to provide the Ministry of Transportation with updated residence information after a move. However, Sergeant Wilson also admitted in cross-examination that another reason for his stopping Mr Lupsor at the time had been Mr Lupsor’s known involvement in the drug trade. At the time of that particular traffic stop, there nevertheless had been no indication of drug-related activity. In the result, Mr Lupsor was simply given a warning about the possible address-related HTA infraction, and the traffic stop resulted in no charges being laid.
• When Sergeant saw the Mazda again at 2:30am on January 20, 2017, it was stopped and parked, with its engine turned off, in one of the lined parking spaces associated with “town house” residential units situated along Franklin Drive. The Mazda was facing south, towards the town houses. Lighting in the area, (provided by some nearby light standards), was “poor” but “adequate”, insofar as it enabled Sergeant Wilson to identify the Mazda vehicle.
• Sergeant Wilson also could see that another vehicle – a black, four door GMC “Jimmy” sport utility vehicle - was parked directly beside the Mazda, in an adjacent parking spot approximately one foot away, and facing in the same direction. Using CPIC, Sergeant Wilson ran a check of the Jimmy vehicle’s rear licence plate, and found that it was registered to Peter Van Arkel, another individual already known to Sergeant Wilson through prior “police dealings” – although it had been years since Sergeant Wilson had seen Mr Van Arkel. The database information available to Sergeant Wilson also indicated that Mr Van Arkel was on probation, the terms of which included a direction that he was not to be associating with “anyone in the drug culture” – which Sergeant Wilson interpreted as anyone having a prior CDSA conviction.[^8]
• When making his initial observations of the Mazda and Jimmy vehicles, at 2:30am that morning, Sergeant Wilson had viewed the two vehicles side by side for approximately 15 seconds, and could not see any occupants in either vehicle.
• Sergeant Wilson then drove his marked cruiser along Franklin Drive and directly around the nearby corner onto Buckingham Drive, where he took up a position in the parking lot of 29 Buckingham Drive, (i.e., approximately 300 meters away from the area where the Mazda and Jimmy vehicles were parked), with his cruiser facing west to the street. In his initial voir dire testimony, Sergeant Wilson expressly admitted that he did so for the purpose of seeing if the Jimmy vehicle would move, at which point Sergeant Wilson intended to effect a traffic stop. Sergeant Wilson also indicated, in his initial testimony, that he contemplated a traffic stop “to ensure that Mr Van Arkel was in compliance with his probation order”. In that regard, Sergeant Wilson said that the time of day and location, (i.e., an identified “high crime area” known for prior occurrences involving drug activity, amongst other things, where neither Mr Lupsor nor Mr Van Arkel were known to reside), caused him to have concerns and suspicions in relation to such matters. However, Sergeant Wilson also conceded, in cross-examination, that he had not yet made, at that point, any observations on which to base any belief that Mr Van Arkel actually had breached the terms of his probation.
• Shortly after taking up his observation/waiting position in the parking lot of 29 Buckingham Drive, Sergeant Wilson observed the Jimmy vehicle drive directly by him, heading northbound on Buckingham Drive. In particular, the Jimmy vehicle passed within approximately 12-15 feet of Sergeant Wilson’s location, and Sergeant Wilson could see that it was being operated by a female driver, with at least one additional occupant sitting in the vehicle’s front passenger seat. Sergeant Wilson otherwise was not able to make any further identification of the vehicle’s occupants at that point.
• Sergeant Wilson then observed the Jimmy vehicle turn right into the next driveway after the one leading to the parking lot of 29 Buckingham Drive; i.e., into the first entrance, (when one proceeds in a northerly direction), of a semicircular driveway leading to a parking area of an apartment building located at 45 Buckingham Drive. (The semicircular driveway in question accordingly has another entrance/exit further to the north.) The Jimmy vehicle came to a stop in that semi-circular driveway, approximately 8-15 meters from the entrance to the apartment building at 45 Buckingham Drive. The immediate area around the vehicle was fairly well lit, through a combination of street lighting, lighting standards in the relevant parking lot, and bright interior lighting emanating from the apartment building’s entrance foyer/lobby.
• At that point, Sergeant Wilson effected a traffic stop by driving his marked cruiser out of the parking lot at 29 Buckingham Drive, proceeding along Buckingham Drive to the most northerly entrance into the semicircular parking lot at 45 Buckingham Drive, and driving into that entrance to bring his cruiser to a stop directly in front of the Jimmy vehicle, (which was facing in the opposite direction), to prevent its further forward progress.[^9] As noted below, the reasons for Sergeant Wilson effecting the traffic stop lie at the heart of these Charter applications. Rather than interrupt the narrative substantially at this point to explore and assess those reasons, I intend to return to those aspects of the evidence, in detail, in the course of my analysis.
• In effecting that traffic stop, Sergeant Wilson deliberately had positioned his marked cruiser so that its headlights would shine into and illuminate the interior seating area of the Jimmy vehicle. Although the headlights of the Jimmy vehicle also remained on, (shining towards the marked cruiser and Sergeant Wilson), the officer was able to see into the Jimmy vehicle, from the driver’s seat of the marked cruiser, and make a number of observations. Those observations included the following:
  • The female driver, (later confirmed to be Tracy Lundrigan), was still positioned in the driver’s seat of the Jimmy vehicle. In that regard, Sergeant Wilson testified and I accept that, at the time, he had known Ms Lundrigan’s name and dealt with her several times in the past, but he did not immediately recognize Ms Lundrigan or recall what she looked like because their previous interactions had occurred many years earlier.
  • A “heavier set” male in dark clothing, (later confirmed to be David Jacobs), was seated in the front passenger seat of the Jimmy vehicle, with his left hand raised so as to obscure his face from Sergeant Wilson.
  • Another “heavier set” male in dark clothing, (later confirmed to be Nikolas or “Nick” Kerr), was located in the back seat of the Jimmy vehicle, directly behind its driver, twisting his torso and leaning behind him into the back “cargo area” of the vehicle, in a manner that completely obscured that rear passenger’s head, hair, face and hands from Sergeant Wilson’s vision.
  • Sergeant Wilson could see that the cargo area of the Jimmy was “fairly full” of property items, but was unable to distinguish, at the time and from his vantage point, what those items were.
• Those observations, (particularly the size and apparently movements of the two male occupants of the Jimmy, which to Sergeant Wilson seemed consistent with evasion and/or the rear passenger possibly reaching for a weapon), combined with prior movements of the Jimmy Sergeant Wilson believed to be suspicious, and Sergeant’s knowledge that the relevant location was a “high crime activity area”, caused Sergeant Wilson to have what he described as a “heightened sense of officer safety”.
• Before proceeding further, (e.g., to approach the Jimmy and interact with its driver), Sergeant Wilson accordingly took the precaution of indicating, over the police radio, that he was engaged in a traffic stop of a vehicle and the location of that traffic stop; i.e., “so that other police units would be aware of where [he] was and what [he] was doing”. Sergeant Wilson’s radio communication in that regard, sent at 2:37am, included an indication that there were multiple occupants in the vehicle he had stopped. It also included an express request for other officers to attend at the scene to provide assistance – although officers of the SPS, hearing that a fellow officer was conducting a traffic stop at that time of night, had a typical practice of attending to check on each other in any event. In that regard:
  • Officer Lange, (who was on uniform patrol with the SPS service dog in her police vehicle, which had visible but “subdued” white on grey markings), heard Sergeant Wilson’s radio call for assistance and indicated that she would respond, as she was a relatively short distance away.
  • Officer Otten, (who was on uniform patrol in an unmarked black police vehicle), also heard Sergeant Wilson’s radio call for assistance. At the time, Officer Otten was located on what he described as the “opposite end” of the city; i.e., near the east boundary of Stratford, and almost “as far from the traffic stop as I could be, in the city”. However, given the time of day, the indication that Sergeant Wilson was outside with a vehicle containing three occupants, the reported location of the traffic stop,[^10] and the fact that he was not otherwise occupied, Officer Otten made an immediate decision to respond voluntarily to the call for assistance as well, and also began proceeding towards 45 Buckingham Drive.
• Approximately 10 seconds after making the aforesaid radio call, Sergeant Wilson exited his marked cruiser and approached the driver’s door of the Jimmy vehicle. As he did so, the female driver lowered her window, and Sergeant Wilson made further observations of its interior which caused him to have further concerns about safety. In particular:
  • The male passenger in the front seat of the vehicle had pulled the hood of his jacket completely over his head, and was using both of his hands to cover his face from view. In Sergeant Wilson’s mind, it was clear that the male did not want to look at Sergeant Wilson or have the officer identify him.
  • The male passenger in the vehicle’s rear passenger seat had returned to a normal seating position, but was engaged in similar behaviour to that of the male passenger in the front seat; i.e., pulling a hood entirely over his head, (as Sergeant Wilson was approaching the vehicle), so that the officer could not see the rear passenger’s face or tell where that rear seat passenger might be looking.
  • Sergeant Wilson considered that additional behaviour by the two male passengers to be evasive, and it increased Sergeant Wilson’s suspicion of criminal activity. In his view, 29 years of policing had taught him that those engaged in criminal behaviour would exhibit that type of evasive conduct.
• After a brief greeting, Sergeant Wilson informed the female driver, (whom he still did not recognize at that point), that he had stopped the vehicle to ensure that she had a valid driver’s licence. Sergeant Wilson also asked the driver to produce her driver’s licence, as well as documentation relating to the vehicle indicating ownership and insurance.
• Without saying anything, the driver began searching for that documentation to provide to Sergeant Wilson. In that regard:
  • Sergeant Wilson recalled, in his voir dire testimony, that the driver quickly produced two pieces of documentation relating to the vehicle, (i.e., ownership and insurance documentation), but was having difficulty locating her driver’s licence – which, the driver said, nevertheless was “in the vehicle somewhere”.
  • Sergeant Wilson could not recall the location from where the driver located and produced those two documents, or whether the driver’s name was on them. As per his usual practice in such situations, (to keep his hands free while ensuring supplied documents were not misplaced and lost as he took them back to his police cruiser for further examination), Sergeant Wilson temporarily placed the two pieces of documentation into a pocket of his trousers while he was waiting for the requested driver’s licence to be produced.
  • In searching for her driver’s licence, the driver turned to her right to look through the darkened contents of a shiny black strapped purse that was situated on the vehicle’s centre console; i.e., instead of bringing the purse onto her lap to search through its contents, and/or turning on the vehicle’s interior lights. In the course of that process, Sergeant Wilson shone his flashlight into the interior of the vehicle. In his voir dire testimony, Sergeant Wilson indicated that he did so to assist the driver with her efforts to locate her driver’s licence, and he then could see – albeit with difficulty – what the driver’s hands were doing. However, as Sergeant Wilson himself acknowledged, shining his flashlight into the Jimmy vehicle also allowed him to make further observations of the vehicle’s seating areas. At the time, Sergeant Wilson nevertheless noted nothing of concern apart from the behaviour of the two male passengers, described above.
• After the driver had searched for her driver’s licence without success for approximately two minutes, (during which Sergeant Wilson’s concerns for his safety were mounting owing to the behaviour of the vehicle’s male passengers)[^11], Sergeant Wilson asked the driver to exit and step away from the Jimmy vehicle; i.e., to create more distance between himself and the vehicle’s male passengers.
• The driver exited the driver door of the Jimmy vehicle, as requested, and moved with Sergeant Wilson to an area near the front of the two opposing vehicles.[^12] As that was happening, Sergeant Wilson continued to make observations of the Jimmy’s two male passengers, who were, in the opinion of Sergeant Wilson, still “concealing their identity”.
• Once Sergeant Wilson and the driver had moved to the area near the front of the two opposing vehicles, Sergeant Wilson asked the driver her name, and she replied that it was “Tracy Lundrigan”. At that point:
  • Sergeant Wilson still was not satisfied that the driver was Tracy Lundrigan, as he still had not recognized her;
  • Sergeant Wilson still was not satisfied that Ms Lundrigan was a licenced driver, as no driver’s licence had been produced;
  • Sergeant Wilson advised Ms Lundrigan that he was still not satisfied as to her identity and status as a licenced driver; and
  • Sergeant Wilson was hoping, (as he candidly acknowledged during this voir dire testimony), “to allow time” for other officers to arrive on scene, so that he could be “complete and thorough in [his] duties” while remaining safe.
• While still standing outside the vehicles with Ms Lundrigan, Sergeant Wilson asked Ms Lundrigan additional questions, and received further responses. In particular:
  • Sergeant Wilson asked Ms Lundrigan who the two passengers in the Jimmy vehicle were. During his voir dire testimony, Sergeant Wilson indicated that he asked the question “for officer safety purposes”, and so that he would be “better able to make further plans for what [his] next move would be”. However, I find that at least one additional purpose of Sergeant Wilson’s question was to determine whether or not Mr Van Arkel was in the Jimmy vehicle, (something Sergeant Wilson admittedly still did not know at that point), which in turn might have justified concerns that Mr Van Arkel had breached the terms of his probation.
  • Ms Lundrigan replied that she did not know who the identity of her two passengers; an answer which, Sergeant Wilson says, “raised [his] suspicions” of criminal activity even further, as most drivers know who their passengers are, and Sergeant Wilson therefore believed Ms Lundrigan was actively engaged in helping to conceal their identities.
  • Either independently or in response to a question from Sergeant Wilson about Mr Van Arkel, Ms Lundrigan told Sergeant Wilson that she had pulled into the parking lot of 45 Buckingham Drive to pick up Mr Van Arkel from the apartment building located there.
• Immediately before Officer Lange’s arrival on scene, at approximately 2:39am,[^13] Sergeant Wilson noticed that the Jimmy’s front seat passenger removed his lap and shoulder seat belt, opened the passenger door of the vehicle, and began walking away in a southerly direction, through a parking lot situated between the apartment buildings at 45 Buckingham Drive and 29 Buckingham Drive. In that regard:
  • Sergeant Wilson indicated in his voir dire testimony that those observed movements raised his “suspicion level” of criminal activity even more.
  • Moreover, in Sergeant Wilson’s view, his intention of carrying out a “complete and thorough” traffic stop to “licence and ID the driver”, and his ability to determine whether Mr Van Arkel was in the Jimmy vehicle, were being frustrated by the departure of the vehicle’s front seat passenger, whose identity was not yet known.
  • Sergeant Wilson asked the front seat passenger to stop, but he did not. At the time, (as Sergeant Wilson confirmed in his later notes and during his voir dire cross-examination testimony), Sergeant Wilson felt he had no authority to arrest the front male passenger at that point.
• At 2:39am, Officer Lange arrived on scene,[^14] pulling her police vehicle to a stop behind the GMC Jimmy vehicle; i.e., such that the Jimmy was then blocked to the front and rear by two police vehicles. Although there was a divergence of testimony between Sergeant Wilson and Officer Lange as to the position of the Jimmy vehicle’s three occupants at that point, (particularly in relation to the rear seat passenger), I find that, at the moment Officer Lange arrived on scene:
  • Ms Lundrigan was standing outside the vehicle and towards its front where she had been speaking with Sergeant Wilson;
  • the front seat passenger had just exited the Jimmy vehicle and was starting to walk south or southeast, towards the rear of the apartment building at 45 Buckingham Drive; and
  • the rear seat passenger was still inside the Jimmy vehicle.[^15]
• In the circumstances, Sergeant Wilson responded to the situation by instructing Officer Lange, (as soon as she exited her police vehicle), to remain with the Jimmy vehicle while Sergeant Wilson set off on foot after the departing front seat passenger. In that regard:
  • According to his own testimony, Sergeant Wilson wanted Officer Lange to remain with the Jimmy vehicle “to maintain continuity” over the scene.
  • However, before departing the scene to follow the front seat passenger, Sergeant Wilson did not articulate or provide Officer Lange with any explanation as to why she was being asked to stay with the vehicle.[^16] Nor did Sergeant Wilson share Ms Lundrigan’s indicated name with Officer Lange,[^17] or provide Officer Lange with any further comments or instructions about the taking of further steps to confirm the identity or licenced driver status of Ms Lundrigan; e.g., by searching or requesting further information about the name Tracy Lundrigan that might have been available on databases available to the police.
  • Sergeant Wilson “caught up” with that front seat passenger approximately 30 seconds later, (and approximately 100 meters away from the Jimmy vehicle), because the unidentified passenger in question had continued to walk without realizing the officer was running or jogging behind him to close the distance. At that point, Sergeant Wilson ran past and to the front of the passenger to shine a light in the passenger’s face. When he did so, Sergeant Wilson immediately recognized the individual as David Jacobs; i.e., the person who, despite being a suspended driver, had been discovered operating the Mazda vehicle owned by William Lupsor when Sergeant Wilson had carried out a traffic stop in relation to that vehicle within the preceding year. However, in the course of his police duties, Sergeant Wilson had dealt with Mr Jacobs “many, many, many times” apart from that particular traffic stop; e.g., in relation to violent offences involving weapons, HTA offences, property offences, and incidents were Mr Jacobs had assaulted and/or attempted to flee from the police.[^18]
  • When Mr Jacobs realized that he had been recognized by Sergeant Wilson, he started running. At that point, Sergeant Wilson “asked” Mr Jacobs to stop, without directing him to do so, as Sergeant Wilson was unable to connect Mr Jacobs with any immediate criminal activity, and therefore did not believe he had reasonable and probable grounds to arrest Mr Jacobs. Mr Jacobs did not comply with Sergeant Wilson’s request that he stop, or make any verbal response to that request, and instead kept on running.
  • While continuing to follow Mr Jacobs, Sergeant Wilson used his radio to request a CPIC “records check” on Mr Jacobs, in order to determine whether Mr Jacobs was wanted on any outstanding arrest warrants or in breach of any applicable terms of probation. Mr Jacob was “within earshot” of Sergeant Wilson as that request was being made, and continued to run towards the entrance of an apartment building located at 61 Cawston Drive – approximately 200 meters away from the Jimmy vehicle.
  • By the time police dispatch provided Sergeant Wilson with the requested CPIC information relating to Mr Jacobs, (approximately three minutes after it had been requested by Sergeant Wilson), Mr Jacobs had passed through the controlled entrance to the apartment building at 61 Cawston Drive, where a blonde woman standing in the building’s lobby had opened the door for Mr Jacobs, who had then entered the building.[^19] From the perspective of Sergeant Wilson, that was unfortunate, as the CPIC information received shortly thereafter indicated that Mr Jacobs was subject to terms of “promise to appear” interim release that included an 11:00pm to 6:00am curfew, which Mr Jacobs clearly had breached by being away from his residence at that time of day. In particular, at that point, Sergeant Wilson believed there were reasonable and probable grounds to arrest Mr Jacobs, and Sergeant Wilson indicated, in his voir dire testimony, that he then would have arrested Mr Jacobs had he seen Mr Jacobs again that morning.
  • By that time, however, Sergeant Wilson increasingly was concerned about the safety of Officer Lange, who had been left alone at the Jimmy vehicle with two individuals; i.e., Ms Lundrigan and the unidentified male passenger in the vehicle’s rear seat. In the circumstances, Sergeant Wilson decided that he personally would not engage in any further efforts to “chase” Mr Jacobs. He instead used his radio to advise other police units that there were grounds to arrest Mr Jacobs for breach of probation, that Mr Jacobs had entered the apartment building at 61 Cawston Drive, and that two constables, (Officers Otten and Robinson), should set up an appropriate “post” or “perimeter” that would allow for the arrest of Mr Jacobs if he was seen leaving the building.[^20]
  • Sergeant Wilson remained at the entrance of 61 Cawston Drive until he heard over the police radio that Officer Otten and Officer Mike Robinson were arriving on scene to establish the requested post or perimeter near or around that building. Sergeant Wilson then began returning on foot to where he had left Officer Lange with the Jimmy vehicle, Ms Lundrigan and the vehicle’s unidentified rear seat passenger; i.e., to the parking lot of 45 Buckingham Drive.[^21]
  • While walking back to 45 Buckingham Drive from 61 Cawston Street, Sergeant Wilson passed and had a very brief conversation with Officer Otten, who had just arrived on scene after completing, in a couple of minutes, his drive to the scene from the east end of Stratford.[^22] Sergeant Wilson confirmed to Officer Otten that Mr Jacobs had managed to enter 61 Cawston Drive, and that his precise location therein was unknown. Officer Otten responded by staying at the 61 Cawston Drive location, taking up a position at the northwest corner of the apartment building there, where he could observe the north and west sides of that building and maintain a lookout for Mr Jacobs. (From that position, Officer Otten also was able to look back in the direction of 45 Buckingham Drive, although it was not possible – from that particular position – to observe the location of the traffic stop to which Sergeant Wilson was returning.) Officer Robinson would arrive a short time later to assume a position allowing observations of the other sides of the building.
• In the meantime, other developments had been taking place at Officer Lange’s location, (i.e., near the Jimmy vehicle in the parking area outside 45 Buckingham Drive), during the 4-5 minute period in which Sergeant Wilson had left to follow Mr Jacobs. In that regard:
  • Officer Lange had remained at the Jimmy vehicle, initially with its two remaining occupants.[^23]
  • At some point, (which in my view likely occurred almost immediately after Sergeant Wilson’s departure, as Officer Lange visually was following the movements of the front seat passenger and the Sergeant as they proceeded behind the apartment building at Buckingham Drive), Officer Lange observed that the Jimmy’s rear passenger had exited the vehicle through its rear driver’s side door, through which he was facing inside the vehicle, (away from Officer Lange), while standing mostly upright, reaching inside and doing something with his hands that Officer Lange described as “rummaging”. In particular, he was making movements consistent with trying to retrieve something from the vehicle’s back seat.
  • Those observed movements of the Jimmy’s rear passenger caused Officer Lange to have concerns about officer safety, and the possibility of weapons or other harmful items in particular. Officer Lange therefore directed the rear passenger to stop reaching inside the vehicle.
  • At or about the same time as Officer Lange gave that direction, the rear passenger complied, or otherwise stopped reaching into the Jimmy, by retrieving a backpack from the vehicle.
  • The rear passenger then put the backpack on his back, and began to leave the area by walking away. Less than two minutes, (and Officer Lange candidly acknowledged it could have been a much shorter period than that), had passed from the time Officer Lange had first seen him standing beside the vehicle’s rear driver’s side door.
  • Officer Lange did not instruct the rear passenger to stop, as she personally had no reason, and had not been given any reason, why the male in question might be required to remain at the scene.
  • Officer Lange also remained with the Jimmy vehicle and Ms Lundrigan, without making any effort to follow the rear passenger as he walked away. Officer Lange nevertheless watched the male proceed in a northeast direction into the front vestibule of the apartment building at 45 Buckingham Drive.
  • Officer Lange then remained at the Jimmy vehicle, alone with Ms Lundrigan, for a few more minutes. During that time, conversation between the two women was limited to what Officer Lange characterized as “small talk about the night”; e.g., with Ms Lundrigan indicating that she was quite cold. Officer Lange also was able to listen to the radio transmissions, (described above), concerning Sergeant Wilson’s inquiries about David Jacobs, the breach of curfew by Mr Jacobs, and Mr Jacobs having managed to enter a building without Sergeant Wilson.
  • Although Ms Lundrigan did not re-enter the Jimmy vehicle entirely, during the time Officer Lange waited with her at the vehicle, Ms Lundrigan did sit on its driver seat, with the driver’s door remaining open and her feet remaining outside.
• When Sergeant Wilson returned to Officer Lange’s location, he found Officer Lange speaking there with Ms Lundrigan, and the vehicle’s rear passenger gone. When Sergeant Wilson asked where the rear passenger had gone, Officer Lange explained that the rear seat passenger had exited the vehicle, and gone into the entrance of the apartment building at 45 Buckingham Drive, approximately 25 feet away. That entrance consisted of an “unsecured” glass outer door, (with adjacent floor to ceiling windows on either side), which led into the building’s illuminated initial lobby, beyond which was a “secured” or “controlled entrance” door leading into the remainder of the building.
• After being told by Officer Lange where the Jimmy’s rear passenger had gone, Sergeant Wilson looked towards the entrance of 45 Buckingham Drive and was able to see, through the outer glass door and its adjacent windows, a male standing inside the illuminated “unsecured” lobby area. From the man’s clothing, large build and “burly” stature, and Officer Lange’s indication that the rear seat passenger had entered the lobby in question, Sergeant was able to recognize that the male in the lobby was the same man he had observed in the rear passenger seat of the Jimmy vehicle.
• At that point, (approximately 2:48am), Sergeant Wilson once again left the Jimmy vehicle and Ms Lundrigan alone with Officer Lange, and entered the unsecured lobby area of 45 Buckingham Drive himself to make a “full and proper” identification of the male in question. In that regard:
  • As the male had the same general stature and height as Peter Van Arkel, (i.e., approximately 6’3”), whom Sergeant Wilson personally had not seen for many years, Sergeant Wilson wanted to confirm whether the male was indeed Mr Van Arkel.
  • If the male was Peter Van Arkel, Sergeant Wilson intended to place the male under arrest. In particular, as Sergeant Wilson had confirmed that the front seat passenger of the Jimmy had been David Jacobs, (whom Sergeant Wilson knew to be a confirmed member of the drug culture), and the terms of Mr Van Arkel’s probation prohibited his association with any such persons, Sergeant Wilson believed he now had reasonable and probable grounds to arrest Mr Van Arkel for breach of probation if it was confirmed that Mr Van Arkel had been the Jimmy’s other male passenger.
  • Upon approaching the male in the lobby, however, Sergeant Wilson immediately recognized that the individual standing there was not Peter Van Arkel, but one of two brothers who resembled each other; i.e., either “Nick Kerr” or “Clint Kerr”, each of whom was familiar to Sergeant Wilson through other prior police dealings. In particular:
    • Before being assigned to “Road Supervisor” responsibilities, Sergeant Wilson had served for extended periods as the officer in charge of the Stratford police station, during which time he had been the officer to whom persons with reporting obligations had been obliged to speak.
    • In the course of those duties, Sergeant Wilson had dealt frequently with both Kerr brothers on many occasions, and had developed an amicable relationship with them.
    • Sergeant Wilson nevertheless also had personally arrested Clint Kerr at some point within the preceding year.
    • As he stood in the lobby of 45 Buckingham Drive on the morning of January 20, 2017, and approached the male who had been the rear passenger in the Jimmy, Sergeant Wilson was quite certain that the male in question was one of the two Kerr brothers. Sergeant Wilson admittedly was not entirely sure whether the male in question was Nick Kerr or Clint Kerr, but he honestly believed the male to be Clint Kerr.[^24]
  • As Sergeant Wilson approached the Jimmy’s rear seat passenger standing in the lobby of 45 Buckingham Drive, he could see the male in question reading the officer’s name tag, which apparently prompted the male to ask Sergeant Wilson how he was doing. However, before Sergeant Wilson could respond, the male also said “I’m out of here”, immediately exited the building, and began walking south in the same direction as David Jacobs had travelled; i.e., walking past Officer Lange, Ms Lundrigan and the Jimmy vehicle to proceed south or southeast towards 61 Cawston Drive.[^25]
• In Sergeant Wilson’s view, the actions of the Jimmy’s rear seat passenger, in walking away, aroused further suspicion of criminal activity warranting further investigation. However, Sergeant Wilson also wanted to resume and complete a “thorough” traffic stop in relation to Ms Lundrigan, who remaining standing outside the Jimmy vehicle. In the circumstances, Sergeant Wilson responded to the situation by:
  • exiting the lobby of 45 Buckingham Drive, shortly after the rear seat passenger, to approach Officer Lange and Ms Lundrigan, (who both were still standing, approximately three feet apart, near the driver’s side of the Jimmy vehicle);[^26]
  • indicating to Officer Lange that he believed he knew the rear passenger, (without mentioning a name), but also was still trying to “figure out” who it was;
  • instructing Officer Lange to follow the rear passenger on foot to see where he went – without instructing Officer Lange to detain the male in question;
  • using his radio to indicate that a male he believed to be “Clint Kerr” was walking away from the traffic stop, while requesting a CPIC records check in relation to “Clint Kerr”; and
  • resuming his interactions with Ms Lundrigan.
• As Sergeant Wilson was completing those procedures, unfolding events led to Officer Lange and Officer Otten both having interaction with the rear seat passenger. In that regard:
  • In accordance with Sergeant Wilson’s direction, Officer Lange had left the area of the Jimmy vehicle to follow the rear seat passenger. When Officer Lange set off to do so, she had no intention of stopping and detaining the male in question. Sergeant Wilson had not given Officer Lange such a direction, and Officer Lange herself felt that she had no grounds to effect such a detention.
  • While Officer Lange continued to follow the rear passenger, she initially stayed approximately 10 meters behind him, as both continued to travel at the same average walking speed. She did so for approximately 15-30 seconds. During that time:
    • Officer Lange and Officer Otten heard Sergeant Wilson on their police radios, effectively indicating, (by asking the police Communications Centre to run a records check on “Clint Kerr” in relation to the second male that was walking away from the traffic stop), his belief that the rear passenger was Clint Kerr;[^27]
    • the rear passenger looked back at Officer Lange to ask her why she was following him; and
    • Officer Lange responded to the rear passenger’s question by indicating that she was following to see where he would go.
  • At approximately 2:50pm, the police Communications Centre then responded to Sergeant Wilson’s inquiry by indicating, over the radio, that Clint Kerr was the subject of an outstanding arrest warrant obtained by the Huron County detachment of the OPP.
  • When Officer Lange and Officer Otten heard the Communications Centre indicate that there was an outstanding warrant for Clint Kerr’s arrest, (having already heard Sergeant Wilson effectively indicate a belief the rear passenger was Clint Kerr, by requesting a records check on that name in relation to the male in question), both officers took action to stop and confront the rear seat passenger. In particular:
    • Officer Lange ran to close the distance and catch up to the rear passenger, while trying to get his attention.
    • Officer Otten looked in the direction of 45 Buckingham Drive and, approximately 50-75 feet away, saw a male walking towards 61 Cawston Drive, (wearing jeans and a “hoodie”, and carrying a backpack), with Officer Lange following approximately eight feet behind, apparently trying to get the male’s attention and/or to have the male interact with her.[^28] Having regard to the information he had heard over the police radio, and his observations suggesting that the male in question was not going to stop for Officer Lange, Officer Otten also moved to close the distance between himself and the rear passenger.
    • In the result, the two officers reached and verbally confronted the rear passenger at approximately the same time, and the male stopped walking.
  • In their independent testimony describing police interaction with the rear passenger that occurred immediately thereafter, Officer Lange and Officer Otten each agreed that the other officer was present at the time. In my view, the testimony of each officer also was remarkably consistent with that of the other, in terms of providing substantive details as to what was said and done on the part of the police, and what the male said and did in response, during the relevant interaction – although each provided certain additional details not mentioned or addressed by the other. To the extent there was an inconsistency between the two officers in their description of what happened, during the relevant interaction, in my view that inconsistency was limited to their respective indications of which officer had been the one who took the lead in speaking and interacting with the rear seat passenger at the relevant time. In particular, each officer indicated:
    • that she or he had informed the male in question there was reason to believe he might be Clint Kerr, and that there was an outstanding warrant for the arrest of Clint Kerr;
    • that the rear passenger had responded with an indication that he was not Clint Kerr;
    • that the officer in question had then invited the rear passenger to produce formal identification confirming he was not Clint Kerr, in which case he would be free to go;[^29]
    • that the rear passenger responded by producing an Ontario Health Insurance Card, with a photograph depicting the likeness of the rear passenger, and indicating that the individual in question had the name “Nikolas Kerr”; and
    • that the officer then was satisfied that the male the two officers were dealing with was not Clint Kerr.
  • In my view, at the relevant time both officers regarded themselves as interacting with the rear passenger, and both shared the same concerns and priorities. In the circumstances, I think the questions and statements made by one officer almost certainly would have echoed or reflected those shared concerns and priorities of the other. In particular, I think it quite possible if not probable that Officer Otten, when he confronted the rear passenger, essentially may have duplicated comments initially made by Officer Lange, moments earlier, as she was catching up to the rear passenger to have him stop. I also think it likely that each officer would have been quite interested in looking at the Ontario Health Card that was produced for inspection, and that each officer almost certainly did so.[^30]
  • However, to the extent it may have significance, I prefer and accept Officer Otten’s testimony that he was the one who spoke with Mr Kerr when Mr Kerr was stopped with the two officers and producing identification. My reasons in that regard include the following:
    • As noted above, Officer Lange indicated and confirmed in her testimony that Mr Kerr had kept walking during all her initial verbal exchanges with him, suggesting that he was determined to keep walking away from her if possible.
    • In his testimony, Officer Otten was firm in his recollection that he initially was inclined to wait in position, and observe the interaction between the rear passenger and Officer Lange, but then moved to close the distance, stop the male’s forward progress, and confront the male, when it became clear that the male was not going to stop for Officer Lange and was instead continuing to walk towards 61 Cawston Drive and Officer Otten.
    • Mr Kerr then clearly did stop to interact with the two officers, when he had not done so earlier. I think he did so in response to Officer Otten blocking his path and giving more express indications that Mr Kerr was obliged to stop. In particular, in contrast to Officer Lange’s testimony describing the comments she initially made to the rear passenger, (e.g., expressing her belief that he might be Clint Kerr, in respect of whom there was an outstanding arrest warrant), Officer Otten’s testimony included a firm recollection of also having told the male there were reasonable and probable grounds for his arrest if he failed to identify himself.
    • In such circumstances, Mr Kerr naturally would be more likely to interact primarily with the officer who stopped him, and vice versa.
    • In my view, that conclusion is reinforced by the reality that Officer Otten’s testimony included more extensive and vivid detail about interactions with Mr Kerr during production of the Ontario Health Card and immediately thereafter. For example, the testimony of Officer Otten included recollections of the following additional matters:
      • that no more than a minute passed between the time of Officer Otten confronting the rear passenger, (with an indication that he was believed to be Clint Kerr and the subject of an outstanding arrest warrant, and that he would be arrested unless he failed to produce identification to make Officer Otten “believe otherwise”), and the rear passenger producing the relevant Ontario Health Card;
      • that, between that initial confrontation and production of the Ontario Health Card, there had been a further exchange, during which Nikolas Kerr had asserted that the police had no right to ask him for identification and Officer Otten had repeated that, failing production of identification to make him believe otherwise, he had grounds to believe the male was Clint Kerr and therefore subject to an outstanding arrest warrant, such that the male would be arrested;
      • that Officer Otten’s manner of speaking to Nikolas Kerr had been “frank” and “straight up”;
      • that Officer Otten read the Ontario Health Card information, including not only the name “Nikolas Kerr” but also the date of birth indicated on the card, (which Officer Otten noted and therefore was able to recall during the course of his testimony), over the radio;
      • that Officer Otten also asked over the radio for a records check of Nikolas Kerr, to confirm that Nikolas Kerr was not the subject of any conditions or outstanding warrants;[^31]
      • that Officer Otten received, (approximately 40-60 seconds after it was requested), a radio indication that Nikolas Kerr had a criminal record but was not the subject of any conditions or outstanding warrants; and
      • that Officer Otten returned the Ontario Health Card to Mr Kerr.[^32]
  • At that point, Officer Otten and Officer Lange were both satisfied, in their respective minds, that the male they were dealing with was not Clint Kerr, and he accordingly was allowed to proceed on his way without any further directions being made to him by either officer. In particular, neither officer felt there was any reason to detain and/or arrest Nikolas Kerr.
  • Mr Kerr, (i.e., Nikolas Kerr), then proceeded to walk away from the two officers, in the direction of 61 Cawston Drive.
  • Following that interaction with Nikolas Kerr:
    • Officer Lange spoke again by radio with Sergeant Wilson, who asked Officer Lange to return to his location at the Jimmy vehicle. Officer Lange then made her way back to the location of the original traffic stop; i.e., at 45 Buckingham Drive.
    • Officer Otten then remained at his original location, watching to see if Mr Jacobs might “resurface” from the apartment building located at 61 Cawston Drive.[^33]
• As noted above, when Officer Lange set off to follow the rear passenger later identified as Nikolas Kerr, Sergeant Wilson had resumed his interactions with Ms Lundrigan. In that regard:
  • Sergeant Wilson asked Ms Lundrigan to continue looking for her driver’s licence, so that he could be “satisfied as to who she was, and that she was not in violation of the Highway Traffic Act”.
  • With Sergeant Wilson, Ms Lundrigan then continued, for approximately 7-9 more minutes, to search for her driver’s licence in the Jimmy vehicle, while repeatedly indicating to Sergeant Wilson that her licence was in the vehicle somewhere, but she just could not find it. In his voir dire testimony, Sergeant Wilson indicated that he did not simply charge Ms Lundrigan for failure to produce a licence at that point, as he was not yet satisfied as to her true identity.
  • As she continued to search the Jimmy vehicle for her driver’s licence, Ms Lundrigan continued to sit in the driver’s seat of the vehicle, with the driver’s door remaining open and her feet remaining outside the vehicle. At the same time, Sergeant Wilson was standing nearby and shining his flashlight into the seating area of the Jimmy vehicle. In that regard, Sergeant Wilson initially testified that he was doing so to assist Ms Lundrigan with her search efforts – although the lighting in that area, (because of illumination from nearby LED streetlights and illumination from the lobby of 45 Buckingham Drive), already was significantly better than the lighting which had prevailed in the area where he first observed the Mazda and Jimmy vehicles parked along Franklin Drive. However, Sergeant Wilson later acknowledged that he also was using the opportunity to examine the vehicle’s seating area, as the previously observed actions of the rear seat passenger had made Sergeant Wilson suspicious of what that passenger had been “doing or using”.
  • At some point during that ongoing search by Ms Lundrigan for her driver’s licence, Officer Lange returned to the scene, and took up a position standing near the rear driver’s side door of the Jimmy. While returning to the scene, Officer had seen Sergeant Wilson and Ms Lundrigan speaking about something, but had not heard what the conversation was about.
  • Approximately two minutes after Officer Lange’s return to the scene, Sergeant Wilson observed, through the open driver’s door of the Jimmy vehicle, a clear plastic “sandwich bag”, approximately 4” by 5” in size, with a seal to prevent its contents from spilling out. In that regard:
    • The sandwich bag was lying on the carpeted floor of the vehicle’s interior, in an area to the left and rear of the driver’s seat, (which had been moved closer to the front of the vehicle than the front passenger seat), near the left side “pillar” of the vehicle; i.e., the vertical component of the vehicle between its driver’s door and rear passenger door, close to where the left foot of the rear passenger, (Mr Kerr), would have been when he was seen in the vehicle.
    • Sergeant Wilson had not previously made any observations of that area of the vehicle’s interior, (e.g., when he initially had asked Ms Lundrigan to exit the Jimmy), because he deliberately had stepped away from the Jimmy and the area of its opening door for reasons of officer safety, when he was still the only officer on scene and simultaneously trying to maintain focus on the vehicle’s two male occupants.
    • However, at that point in the morning’s events, Sergeant Wilson was in a vantage point, (standing inside the area where the driver’s door of the Jimmy had been swung open, near the inside outer edge of that door, and facing towards the interior of the vehicle), to observe the floor area of the Jimmy’s interior to the left and rear of its driver seat, and his attention was drawn to the sandwich bag because, in his experience, such plastic bags frequently were used to carry and conceal illicit drugs.
    • The sandwich bag in question was not crumpled, but lying “fairly flat”, and Sergeant Wilson was able to see, inside the bag, 3 pieces of a substance which he believed to be shards of crystal methamphetamine; a substance he previously had encountered at least 25 times in the course of his police duties.
    • In the course of submissions, it was suggested briefly that the relevant bag and its contents were not where Sergeant Wilson said they were and/or were not plainly visible to Sergeant Wilson at the time in question, having regard to their alleged position and the otherwise cluttered state of the vehicle’s interior. I reject that submission, and find that Sergeant Wilson had a direct and unobstructed view of the bag and its contents, in their location described above, as he stood immediately outside the open driver’s door of the Jimmy vehicle. In that regard:
      • For the reasons noted herein, I find that Sergeant Wilson was keenly focused, from the outset of his interactions with the subject vehicle and its occupants, on his suspicions of possible drug activity and the presence of drugs. In the circumstances, I have no doubt that he would have taken every opportunity possible to carefully look at any visible portions of the vehicle’s interior.
      • In the circumstances, I think Sergeant Wilson definitely would have noticed the bag from his earlier vantage points outside the Jimmy vehicle, (e.g., when Ms Lundrigan initially exited the vehicle, or when she was sitting inside the vehicle with her feet still outside, searching for her licence), had the relevant bag and its contents not been situated towards the rear of the left side of the driver’s seat. In particular, the fact that Sergeant Wilson did not notice and seize the bag and its contents at that earlier time provides a very strong indication, I think, that the bag and its contents were not located immediately to the left side of the driver’s seat in the forward side areas of that seat, but towards the rear side area of that seat.
      • There was absolutely no evidence or suggestion that Sergeant Wilson, before noticing the bag and its contents, entered the interior of the Jimmy vehicle in any way with any part of his body, (e.g., by leaning or reaching inside), let alone any evidence or suggestion that he somehow disturbed anything within the vehicle to uncover or disclose the bag and its contents.
      • In my view, the bag and its contents therefore obviously were lying in a place where they were openly and clearly visible to the Sergeant, at the time in question, from his new position and vantage point outside the vehicle; i.e., standing within the sweep of the vehicle’s open driver’s door. In that regard:
        • Sergeant Wilson explained, and I accept, that he had not seen the bag earlier simply because he had been in a different vantage point when he originally approached the vehicle and dealt with Ms Lundrigan as she exited that vehicle. The bag and its contents nevertheless became visible to Sergeant Wilson when he repositioned himself, outside of the vehicle, by stepping into the space inside the vehicle’s open driver’s door, and without the rear driver’s side passenger door having been opened in Sergeant Wilson’s presence.
        • In my view, that “repositioning” explanation makes sense and is credible, given Sergeant Wilson’s heightened safety concerns at the earlier point in time, when he was the sole officer on scene, there were still two male passengers in the vehicle acting strangely, and the officer was keeping more distance between himself and the vehicle for safety reasons. At the relevant later time, (i.e., when Sergeant Wilson noticed and seized the relevant bag and its contents), the vehicle’s two male passengers had departed, Sergeant Wilson and Officer Lange were both at the Jimmy vehicle with Ms Lundrigan as its sole remaining occupant, and there were no comparable safety concerns.
        • I accordingly think Sergeant Wilson’s testimony about the position of the bag and its contents, and his ability to see the bag and contents directly and clearly from his new vantage point at the relevant time, was truthful and accurate.
        • At that point, Sergeant Wilson reached into the Jimmy to seize the sandwich bag and its contents. On closer inspection, he was satisfied that the substance inside was indeed shards of crystal methamphetamine, and formed the view that there now were reasonable and probable grounds to arrest Ms Lundrigan and Mr Kerr for joint possession of a controlled substance, as it had been located in what he considered to be “plain view”, in an area of the Jimmy vehicle’s interior which Sergeant Wilson regarded as being within an “easy reach” of the vehicle’s driver and the rear seat passenger sitting behind the driver. In that regard:
          • Sergeant Wilson testified, and I accept, that when seizing the plastic sandwich bag in question, the driver’s seat of the Jimmy vehicle had been positioned closer to the front of the vehicle, (e.g., in comparison with the front passenger seat), such that there clearly was space between the interior driver’s side wall of the vehicle and the driver’s seat that would allow someone sitting in the rear passenger seat, behind the driver, to access the location of the sandwich bag; e.g., to reach the bag or place it in that location from that rear passenger seat.
          • Sergeant Wilson testified, and I accept, that he subjectively believed he had reasonable and probable grounds to believe that the transparent bag contained methamphetamine, and was in a location within the vehicle giving rise to an inference of joint possession, sufficient to arrest the two occupants of the vehicle who, in the circumstances, were in close proximity to the bag and its contents, and who had easy and ready access to that plainly visible and transparent bag and its contents.[^34]
          • In my view, there objectively were reasonable and probable grounds for that subjective belief, insofar as a reasonable person, standing in the shoes of Sergeant Wilson, (including his knowledge and experience with methamphetamine and its appearance, and his observations of where the bag and its contents were located in the vehicle, and the observations and physical access its driver and rear seat passenger would have had to it in the circumstances), could and would have formed a similar view – bearing in mind that reasonable and probable grounds do not require proof beyond a reasonable doubt or even a prima facie case.[^35]
  • In the circumstances, Sergeant Wilson decided to arrest Ms Lundrigan, (who was still present with him and Officer Lange), and also direct the arrest of Nikolas or “Nick” Kerr. In relation to the latter:
    • Sergeant Wilson had heard over the police radio, (while dealing with Ms Lundrigan), that there was an outstanding arrest warrant for Clint Kerr.
    • Through further police radio communications, Sergeant Wilson also knew that police, (i.e., Officers Lange and Otten), had confirmed the identity of the rear seat passenger to be Nikolas Kerr rather than Clint Kerr, and that Nikolas Kerr had been allowed by police to proceed on his way; i.e., as there appeared to be no reasonable and probable grounds for his arrest.
    • However, after Sergeant Wilson’s discovery and seizure of the aforesaid sandwich bag, (which Sergeant Wilson believed to have been in the joint possession of Ms Lundrigan and Nikolas Kerr, for the reasons noted above), Sergeant Wilson believed the situation had changed again, and that there now were reasonable and probable grounds to arrest Nikolas Kerr.
  • At approximately 3:00am, Sergeant Wilson accordingly used his radio to indicate that he now had a female in custody for possession of a controlled substance found in plain view,[^36] and to direct officers in the area, (including Officer Otten), to locate Nikolas or “Nick” Kerr again, and arrest him for possession of a controlled substance as well.
  • Neither Sergeant Wilson nor Officer Lange had any further dealings with Nikolas Kerr that morning.
• As far as the ensuing arrest of Ms Lundrigan is concerned:
  • Sergeant Wilson personally effected the arrest of Ms Lundrigan with Officer Lange’s assistance.
  • In that regard, it was Sergeant Wilson who asked Ms Lundrigan to exit the Jimmy vehicle, and who informed Ms Lundrigan that she was under arrest for possession of a controlled substance.
  • Prior to Ms Lundrigan then being handcuffed and physically searched incident to arrest, Ms Lundrigan was advised that was going to happen, and Sergeant Wilson asked Ms Lundrigan, for reasons of officer safety, if she had any objects in her possession. In response, Ms Lundrigan personally removed a number of items from her clothing and pockets, and handed them to Sergeant Wilson. Those items included a set of car keys, as well as a cigarette package containing five orange 12mg hydromorphone tablets or capsules, which Ms Lundrigan described as “pain pills”.
  • Officer Lange then conducted a further physical search of Ms Lundrigan’s person, incident to arrest, and placed Ms Lundrigan in handcuffs positioned to the front of her body.
  • Neither Sergeant Wilson nor Officer Lange had a police vehicle suitable for holding or transporting a person in custody. (Sergeant Wilson was operating a full size Ford 150 truck not equipped with any caging barriers and, as noted above, Officer Lange had her police service dog in the rear of her vehicle.) However, as Ms Lundrigan was complaining about the cold temperature, the officers walked her to the rear passenger side door of Sergeant Wilson’s vehicle, where Ms Lundrigan was permitted to occupy the rear seat to warm up.
  • In Officer Lange’s presence, Sergeant Wilson then verbally advised Ms Lundrigan of her rights to counsel, (in response to which Ms Lundrigan indicated that she would like to speak with duty counsel), and similarly provided Ms Lundrigan with a formal caution; i.e., concerning her right to remain silent, and the possibility of anything she chose to say being used in evidence against her.
  • Sergeant Wilson and Officer Lange then waited at the same location, with Ms Lundrigan, until the arrival of another police vehicle suitable for transporting Ms Lundrigan to Stratford Police Headquarters.
  • When that transport vehicle arrived, Officer Lange walked Ms Lundrigan over to it, (from Sergeant Wilson’s vehicle), and seated Ms Lundrigan inside. Ms Lundrigan was then taken, in custody, to Stratford Police Headquarters.
  • After Ms Lundrigan had left the location at 45 Buckingham Drive, in custody, Sergeant Wilson and Officer Lange remained with the Jimmy for a time to maintain continuity over the vehicle, and its contents, before it could be towed to the Stratford police garage. During that time, Sergeant Wilson located and seized, from the Jimmy vehicle, and its centre console between the driver’s seat and front passenger seat, the shiny black strapped purse in which Ms Lundrigan had been searching for her driver’s licence and another “denim style” bag with a zipper.[^37] Sergeant Wilson did not search or examine the contents of either bag at the scene of the traffic stop. Leaving Officer Lange at the scene to maintain continuity over the Jimmy vehicle, Sergeant Wilson instead left to transport the bags to the Stratford police station.
  • Officer Lange remained at the scene of the traffic stop only a short while longer before she was relieved by another officer, who continued to wait for the Jimmy vehicle to be towed.[^38]
• As far as the ensuing arrest of Mr Kerr was concerned:
  • As soon as Officer Otten heard the further radio transmission from Sergeant Wilson, indicating that Nikolas or “Nick” Kerr was to be located again and arrested for possession of a controlled substance, Officer Otten looked around and observed Mr Kerr to the east, walking on a sidewalk along the north side of Cawston Drive.
  • Officer Otten then entered his nearby police vehicle, and drove the relatively short distance, (a half or quarter block), to Mr Kerr’s location. Officer Robinson proceeded to the location as well.
  • After exiting his vehicle, Officer Otten moved towards Mr Kerr and, at approximately 3:30am, advised Mr Kerr that he was going to be placed under arrest for possession of a controlled substance. Initially, however, Officer Otten kept a distance between himself and Mr Kerr, for reasons of officer safety. In particular, Officer Otten could see, (and had noticed during his prior interaction with Mr Kerr that morning), that Mr Kerr had a large sheath strapped to his right hip; a sheath that was approximately 12-14 inches in length, and which seemed to contain a large knife. Before getting any closer to Mr Kerr, Officer Otten therefore wanted to gauge Mr Kerr’s reaction to being arrested.
  • When told that he was going to be placed under arrest, Mr Kerr initially displayed some of the same behaviours Officer Otten had observed earlier that morning, when Mr Kerr had declined to interact with Officer Lange as she was following him. In particular, Mr Kerr continued to walk away slowly along the sidewalk, while looking down and away from the officer, and/or at a cellular phone he was holding.
  • Mr Kerr nevertheless then asked Officer Otten why he was being arrested, which indicated to Officer Otten that his original communication about Mr Kerr being placed under arrest had been heard and understood.
  • In response, Officer Otten explained that Sergeant Wilson was still at the vehicle from which Mr Kerr had walked away, and that Sergeant Wilson finding or seeing something at that location, having to do with drugs, was leading to Mr Kerr’s arrest for possession of a controlled substance.
  • After receiving that explanation, Mr Kerr was compliant with Officer Otten’s further efforts to complete the arrest. By that point, Officer Robinson also had arrived at the scene, and was standing immediately nearby to assist if/as necessary.
  • In the course of effecting the arrest:
    • Officer Otten approached Mr Kerr carefully, (still having regard to the presence of the knife on Mr Kerr’s hip), realizing that the backpack strapped to Mr Kerr would have to be removed before Kerr was handcuffed to the rear.
    • When told that that the backpack had to come off, Mr Kerr undid clasps across his chest, permitting the backpack to be removed. Officer Otten then handcuffed Mr Kerr to the rear.
    • After the backpack and cellular phone had been taken from Mr Kerr, Officer Otten proceeded with further steps to carry out a search incident to arrest. In that regard, Officer Otten wanted to remove not only the sheathed knife that was in plain view, but also anything else in Mr Kerr’s possession that might pose a danger to himself or other officers. He also wanted to search for evidence relating to the offence for which Mr Kerr had been arrested; i.e., possession of a controlled substance.
    • Mr Kerr’s belt was loosened, and removed part way to allow removal of the sheathed knife, before the belt then was restored to its original position and refastened.
    • Officer Otten also located and removed a group of keys, together with a cylindrical container joined to the keys by a small chain, that had been attached to one of Mr Kerr’s belt loops by a clasp.
    • In the course of the search incident to arrest, Officer Otten also emptied Mr Kerr’s pockets, and located a wallet.
    • As Officer Otten took and removed items from Mr Kerr, he immediately placed those items, (apart from the larger backpack), into a nearby plastic bag that was being held for him by Officer Robinson.
    • Once the search incident to arrest was completed, Officer Otten escorted Mr Kerr to Officer Otten’s nearby police vehicle, and placed him in its rear “prisoner compartment”.
    • No further steps were taken to examine and/or search, at the scene of Mr Kerr’s arrest, the contents of the backpack and other items taken from and/or removed from Mr Kerr. The backpack and the plastic bag containing other items taken and removed from Mr Kerr, (e.g., the sheathed knife, cellular phone, keys with attached cylindrical container and wallet), were instead placed in the rear hatch/cargo storage area of Officer Otten’s vehicle for transport back to the police station, where they would be examined further.
    • At approximately 3:15pm, Officer Otten read Mr Kerr his rights to counsel. Mr Kerr was asked if he understood those rights, and he responded by saying “yes”. Mr Kerr was asked if he wished to call a lawyer, and he responded by saying “no”. Officer Otten then read Mr Kerr the standard primary caution. Mr Kerr was asked if he understood that caution, and Mr Kerr responded by saying “yes”.
  • Officer Otten then transported Mr Kerr back to Stratford Police Headquarters.
• As for the processing and treatment of Ms Lundrigan, after she had been transported back to Stratford Police Headquarters:
  • As noted above, complete processing of Ms Lundrigan, upon her arrival at the Stratford Police Headquarters, required the attendance of Officer Lange, who was the only female officer on duty at the time.
  • However, Officer Lange apparently arrived at the police station shortly after Ms Lundrigan. Officer Lange then conducted a further physical search of Ms Lundrigan, incident to arrest, to ensure that no items in Ms Lundrigan’s possession had been missed during the preliminary searches, described above, that had been carried out at the scene of the traffic stop.
  • Officer Lange then assisted with putting Ms Lange in touch with duty counsel; i.e., by taking Ms Lundrigan to a search room, where Ms Lundrigan was put in telephone contact with duty counsel and permitted to speak privately with a lawyer.
• As for the processing and treatment of Mr Kerr, after he had been transported back to Stratford Police headquarters:
  • Officer Kerr escorted Mr Kerr to a search room, where his handcuffs were removed. For officer and prisoner safety, Officer Kerr also removed Mr Kerr’s belt, and the strings from Mr Kerr’s “hoodie” and shoes.
  • As per his usual practice in relation to such matters, Officer Kerr again asked Mr Kerr if he wished to speak with a lawyer, and the answer once again was “no”.
  • At some point thereafter, however, Mr Kerr apparently changed his mind about speaking with a lawyer. Officer Lange then assisted with putting Mr Kerr in touch with duty counsel; i.e., by taking Mr Kerr back to a search room, where Mr Kerr was put in telephone contact with duty counsel and permitted to speak privately with a lawyer.[^39]
• Further steps then were taken by the police to process, inspect and document the various items of evidence that had been located and seized by police incident to the arrests of Ms Lundrigan and Mr Kerr. In that regard:
  • Officer Otten was designated as the “exhibits officer” with primary responsibility for receiving and documenting seized items relating to the incident, although those responsibilities were shared to some extent with Officer Lange, who provided Officer Otten with assistance if/as necessary.
  • As for the items that had been taken directly from Ms Lundrigan:
    • At approximately 4:15am, Sergeant Wilson delivered, to Officer Otten, items that included the five orange 12mg hydromorphone tablets or capsules, (handed over to Sergeant Wilson by Ms Lundrigan at the time of her arrest), which Officer Otten logged into evidence.
  • As for the items that had been taken directly from Mr Kerr:
    • The sheath removed from Mr Kerr’s right hip was found to contain a knife, approximately 12 inches in length, with a metal blade that was not serrated.
    • The cellular phone seized from Mr Kerr, (who had been actively using the device at the time of his arrest), was determined to be a Samsung model. Officer Otten took no further steps to search the data on that device.[^40]
    • The metal cylindrical container, attached by a small chain to the set of keys taken from Mr Kerr’s belt loop, was found to have a threaded lid which could be unscrewed. When Officer Otten did that, he found that the compartment inside the cylinder contained a folded and rolled “ziplock” bag containing a substance believed to be methamphetamine. The bag and its contents were weighed together by Officer Otten, and found to have a weight of one gram.
    • The wallet removed from Mr Kerr’s pocket at the time of his arrest was found to contain $63.00 in Canadian currency; i.e., three twenty-dollar notes, a couple of two-dollar coins, and a one-dollar coin.
    • The backpack taken from Mr Kerr, and its contents, also were examined and searched by Officer Otten. Items found inside the backpack included the following:
      • a machete that was 12 inches in length, (and distinct from the sheathed item that had been removed from Mr Kerr’s hip at the time of his arrest);
      • a long-handled, battery-operated cattle prod;
      • a cell flashlight with batteries;
      • a “shower bag” that was approximately 9-10 inches long and 4-5 inches wide, made of opaque grey cloth material, with a single strap handle and a zippered opening down its centre;
      • within the aforesaid grey “shower bag”, a plastic “ziplock” bag which in turn contained four other “ziplock” bags, each of which was transparent but had “Star Wars” markings, each of which contained a substance suspected to be methamphetamine, and each of which had exactly the same weight, (including bag and contents), of 9.3 grams; and
      • a “Pro Windows tablet, (i.e., an electronic device), which Officer Otten “powered up” temporarily for the limited purpose of trying to determine its ownership – a process which in turn resulted in the device displaying a full screen photograph of Nikolas Kerr, and a resulting conclusion by Officer Otten that the device belonged to Mr Kerr.[^41]
  • As for the items removed from the Jimmy vehicle by Sergeant Wilson, the Jimmy vehicle itself, and additional items found within the Jimmy vehicle:
    • While Ms Lundrigan and Mr Kerr were being transported back to Stratford Police Headquarters and processed there, the Jimmy vehicle was towed back to a garage bay of Stratford Police Headquarters.
    • At approximately 4:15am, Sergeant Wilson also delivered, to Officer Otten, a number of items which Sergeant Wilson had removed from the Jimmy vehicle, in the manner outlined above.[^42] In that regard:
      • The plastic “ziplock” bag found and seized by Sergeant Wilson, (i.e., from the interior floor area of the Jimmy vehicle, slightly to the left and rear of the driver’s seat near the left side “pillar” of the vehicle separating the doors on its driver side), was noted to be of the exact same type and size as the “ziplock” bags found within the grey “shower bag” located within the backpack Mr Kerr had been wearing at the time of his arrest. In particular, the bag was transparent, with “Star Wars” markings. The bag and its contents were noted to contain long shards of a substance Officer Otten believed to be methamphetamine. Officer Otten weighed the bag and its contents, which were found to have a total weight of 5.5 grams.
      • Items located within the black purse found and seized by Sergeant Wilson, (i.e., from the console area to the right of the Jimmy’s driver seat), which was noted to have additional red, white and blue “Union Jack” markings, included the following:
        • a “ziplock” bag containing a substance believed to methamphetamine, in respect of which the bag and its contents were found to have a weight of 3.3 grams;
        • within the “main” area of the purse, another “ziplock” bag containing a substance also believed to be methamphetamine, (in respect of which the bag and its contents were found to have a weight of one gram), next to which were a number of “new” or additional/unused “ziplock” bags;
        • a smaller purse; and
        • a driver’s licence for “Tracy Lundrigan”, with standard information including Ms Lundrigan’s date of birth.[^43]
      • As for the small grey “shower bag” found and seized by Sergeant Wilson, (i.e., from the same console area to the right of the Jimmy’s driver seat, underneath the black purse):
        • Officer Otten noted that the bag in question was “100 percent identical” to the grey “shower bag”, (described above), that had been located within the backpack Mr Kerr had been wearing at the time of his arrest.
        • Items located within that particular grey “shower bag” included the following:
          • $1,480.00 in Canadian currency, made up of one hundred dollar note, 14 fifty dollar notes, and 34 twenty dollar notes;
          • a digital scale, (which Officer Otten successfully turned on, to confirm that it was operational); and
          • a black “LG” cellular phone.[^44]
        • Later that morning, the Jimmy vehicle was subjected to a more thorough and documented search, incident to arrest. In that regard:
          • Officer Otten physically searched the vehicle, locating and photographing items.
          • In doing so, Officer Lange stood nearby, not physically participating in the search, but providing assistance with preparation of an appropriate “Exhibits List”. In particular, as Officer located items, he would provide Officer Lange with a verbal indication of what she should write down, in terms of what had been found and where it had been located.
          • Additional items of interest found and seized, during the course of that vehicle search, included a “little booklet” found on the vehicle’s dashboard, which contained a “short list of names or something”.

[12] I turn next to a consideration of general principles which, in my view, guide determination of the issues raised by the pretrial applications brought by Mr Kerr and Ms Lundrigan.

General principles

[13] As a general rule, (i.e., subject to the burden of persuasion shifting in certain circumstances, such as those noted below), the burden of establishing a violation of a Charter right is upon the accused.[^45]

[14] As noted above, the applications brought in this particular case rely in large measure on suggested breaches of sections 8 and 9 of the Charter.

[15] General principles and considerations relating to section 8 of the Charter include the following:

• Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions upon individuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or to secure and protect evidence. However, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows that warrantless searches are ordinarily inconsistent with section 8 of the Charter, and prima facie unreasonable under section 8. A party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness.[^46]
• In that regard, a warrantless search will respect section 8 of the Charter if the search is authorized by law, and both the law and the manner in which the search is conducted are reasonable.[^47]
• However, the long-standing common law power of “search incident to arrest” is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable. That common law power is regarded as “eminently sensible”, and “essential for the protection of police officers carrying out their all too often dangerous duties”.[^48]
• In particular, at common law, after making a lawful arrest, a police officer has the right to search the person arrested and take from his person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against the person arrested on the charge, or any weapon or instrument that might enable the arrested person to commit an act of violence or effect his escape.[^49]
• That automatic right of police officers to search incident to lawful arrest, and seize anything in the arrested person’s possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape, or provide evidence against him or her, arises at common law but has survived introduction of the Charter. That common law right must nevertheless be exercised in a manner consistent with the fundamental values enshrined in the Constitution. To that end:
  • The search must be for a valid objective in pursuit of the ends of criminal justice, (such as the discovery of an object that may be a threat to the safety of the police, the accused or public, or that may facilitate escape or act as evidence against the accused). Such searches, made incidentally to arrest and justified, are not limited by necessity.
  • The purpose of the search must not be unrelated to the objectives of the proper administration of justice, (which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions).
  • The search also must not be conducted in an abusive or unreasonable fashion. In particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.[^50]
• Moreover, if the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of that doctrine must be respected. The most important of those limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier v. Langlois, supra, (i.e., protecting the police, protecting the evidence, and discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.[^51]
• If a search is carried out incident to an arrest that is found to be unlawful, the search will be unreasonable and therefore constitute a breach of an individual’s section 8 right to be free from unreasonable search and seizure.[^52]

[16] As the facts outlined above involve a degree of police and Crown reliance on the “plain view” doctrine, (which may distinguish a lawful seizure from an unlawful search contrary to section 8 of the Charter), I think it helpful to bear in mind the nature and limitations of that doctrine as well. In that regard:

• “Plain view” occurs when items fall into the view of an officer who has a right to be in the position he or she is in to have the view he or she has had; and such items have been held to be subject to seizure.
• When an officer finds such evidence, (e.g., contraband, stolen property or crime evidence), unexpectedly in the course of his or her duties, in circumstances where it is at once obvious and visible without positive action on the officer’s part to make it observable, he or she has the right to seize it.
• The plain view doctrine is, in reality, a power to seize, not a power to search, and as such cannot be extended to those items that are not visible.
• Reliance on the plain view doctrine depends on three requirements:
  • First, the officer must be lawfully in a position from which the evidence was plainly in view.
  • Second, discovery of the evidence must be inadvertent, that is, the officer must not have knowledge of the evidence in advance.
  • Third, it must be apparent to the officer at the time that the observed item may be evidence of a crime or otherwise subject to seizure.[^53]

[17] General principles and considerations relating to section 9 of the Charter include the following:

• While section 9 provides that everyone has the right “not to be arbitrarily detained”, it is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision.[^54] On the other hand, an “arbitrary” detention includes an unlawful arrest and the detention that follows upon an unlawful arrest.[^55]
• Although it generally has been recognized that the onus is on an accused to demonstrate that his or her detention was unlawful, the onus is on the Crown to show that the objective facts rise to the level supporting a lawful detention.[^56]
• A police officer may lawfully arrest an individual without a warrant if the officer has subjective and objective grounds to make the arrest. In particular, the Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest, (which requires the officer to have an honest belief, supported by objective facts, that the suspect committed the offence). However, those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they do not require proof beyond a reasonable doubt, a prima facie case for conviction, or even proof on a balance of probabilities, before making the arrest.[^57]
• Determining the existence of reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances, but rather a common sense and non-technical approach. It necessarily is a qualitative standard, upon which reasonable people can differ in some cases.[^58]
• The fact that an experienced police officer has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable.[^59]
• Determining whether reasonable and probable grounds exist is a fact-based exercise, which depends on all the circumstances of the case. The totality of the circumstances relied upon by the arresting officer, including the dynamics within which the officer acted, and his or her knowledge and experience, (which entitle the officer to draw inferences and make deductions drawing on that experience), will form the basis of the objective assessment as to whether there were reasonable and probable grounds for an arrest. In making that assessment in any given case, trial judges should not engage in after-the-fact dissection of an officer’s grounds, and individual facts and observations, considered in isolation. Trial judges also must appreciate that arrests often are made in a fast-moving, dynamic situation without the benefit of lengthy reflection. Moreover, what may appear innocent to the general public may have a very different meaning to a police officer experienced in drug-related matters.[^60] In assessing whether he or she has reasonable grounds, a police officer must take into account all available information, disregarding only such information as she or he has good reason to believe is unreliable.[^61] However, the officer is not required to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.[^62]
• Provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds. If a peace officer is relying on an order or direction from another officer, the undertaking of an independent assessment as to whether a suspect should be arrested is not necessary.[^63]

[18] As noted above, the Charter applications in this particular case rely in large measure on arguments that all detentions, seizures, arrests and searches in this case flowed inextricably from a traffic stop which was said to be unlawful. I therefore also bear in mind governing considerations and principles in that regard, which include the following:

• When police effect a traffic stop of a motor vehicle, the driver and passengers in such a vehicle are clearly detained.[^64] If such a detention is lawful, it is not arbitrary unless the law authorizing the detention is arbitrary. If the detention is found to be unlawful, that finding will play a central role in determining whether the detention also was arbitrary.[^65]
• The right to circulate in a motor vehicle on a public highway is more conveniently referred to as a “liberty”. The right is not a fundamental liberty like the ordinary right of movement of the individual, but a licenced activity that is subject to regulation and control for the protection of life and property.[^66]
• Stopping a motor vehicle for the legitimate purpose of controlling traffic, (e.g., to improve the deterrence and detection of impaired driving), accordingly falls within the general scope of a police officer’s duties to prevent crime and to protect life and property. Police accordingly have authority at common law to stop a motor vehicle for such a purpose.[^67]
• However, that common law ancillary police power is limited to stopping vehicles in the course of the enforcement of laws relating to the operation of those vehicles. It is “clearly not a general power to stop for all police purposes”, but is instead “limited to stops made in furtherance of the police duty to protect those who use the public roadways from those who use those roadways in a dangerous manner”.[^68]
• The common law authority of police officers to stop a motor vehicle for the purpose of controlling traffic has been reinforced by numerous statutory provisions. In Ontario, for example, such authority is found in s.216(1) of the HTA, which reads as follows: “A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle, other than a bicycle, to stop, and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.”
• However, legislation such as s.216 of the HTA is premised on the authorized traffic stops being part of a scheme for the enforcement of laws relating to the operation of motor vehicles; e.g., to achieve safety on highways, and address serious hazards posed by impaired and incompetent drivers, which justifies the close regulation of motor vehicles and their operation. Such legislative authority therefore is intended to authorize the stopping of vehicles only for reasons related to driving a vehicle, such as checking the driver’s licence and insurance, the sobriety of the driver, and the mechanical fitness of the vehicle. Provisions such as section 216 of the HTA accordingly authorize traffic stops only for the limited purpose of enforcing driving related laws and promoting the safe use of motor vehicle; i.e., “highway regulation and safety purposes”. Within that “limited reach” of such legislation, traffic stops pursuant to legislation such as section 216 of the HTA may be random and arbitrary but still constitutional.[^69] Alternatively, if police exercise their power to stop and detain under such legislation based on criteria which are relevant to highway safety concerns, those criteria suffice to provide “articulable cause”, such that the police do not act arbitrarily.[^70]
• The detention authorized by legislation such as s.216 of the HTA similarly is circumscribed by its purpose. In particular:
  • The detention is limited to the roadside, and must be brief, unless other grounds are established for a further detention;
  • The police may require production of the documents which drivers are required to have with them, and may detain the vehicle and its occupants while those documents are checked against information available through computer terminals available in police vehicles; and
  • The police also may assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards and, from outside of the vehicle, make a visual examination of the interior to ensure their own safety in the course of the detention.
  • However, more intrusive examinations, inquiries and procedures directed at matters not relevant to highway safety concerns are not authorized by such legislation, and may only be undertaken based upon reasonable and probable grounds.[^71]
  • Police use of traffic stops pursuant to legislation in the nature of section 216 of the HTA accordingly should not be extended beyond such highway traffic concerns, and such traffic stops must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.[^72]
• However, where a legitimate concern relating to the enforcement of highway traffic laws forms at least one of the purposes motivating a police officer to effect a traffic stop, that stop is not rendered unlawful simply because the police have other co-existing purposes in mind in addition to highway traffic concerns, so long as the other purposes motivating the stop are not themselves improper. In particular:
  • The scope of a police officer’s power to investigate crimes unrelated to the operation of motor vehicles generally is unaffected by section 216 of the HTA – although it empowers the officer to stop a vehicle where the officer otherwise has the lawful authority to stop and detain one or more occupants of the vehicle; i.e., if the office could have stopped or detained one or more occupants of the vehicle had he or she encountered them on the street, such that stopping such occupants would fall within the “lawful execution” of the officer’s duties in any event.[^73]
  • Where a police officer effecting a traffic stop simultaneously has legitimate highway traffic concerns and other legitimate concerns unrelated to highway safety matters, (i.e., such that the traffic stop is “multi-purposed”), the existence of such other concerns or purposes does not necessarily take such a traffic stop and subsequent detentions outside the ambit of legislation such as section 216 of the HTA, and render the traffic stop unlawful.[^74]
  • Having said that, if one of the purposes motivating a traffic stop and detention is improper, (including situations where the purpose is illegal, involves the infringement of a person’s constitutional rights, and/or has nothing to do with the execution of a police officer’s public duties), the traffic stop will be unlawful even if highway safety concerns also factor into the decision to make the stop and detention.[^75] By way of example, officers who stop persons intending to conduct unauthorized searches, select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose and cannot rely on legislation such as section 216 of the HTA, even if they also have highway safety concerns when making the stop.[^76] Police also act for an improper purpose when they intend to pursue a lawful and legitimate police purpose, (such as the investigation of crime), through improper means.[^77]
• In that regard, it must be remembered that the existence of honest and legitimate highway traffic concerns is essential to provide lawful authority for a traffic stop and resulting detentions pursuant to legislation such as section 216 of the HTA. In particular:
  • Once road safety concerns are removed as a basis for a traffic stop, then powers associated with and predicated upon those particular concerns cannot be relied upon to legitimatize the stop. Where the stop and the detention are unrelated to the operation of the vehicle or other road safety matters, the fact that the target of the detention is in an automobile cannot enhance the police power to detain that individual.[^78]
  • Legislation such as section 216 of the HTA accordingly provides no lawful authority for a traffic stop when professed highway safety concerns actually are just a “ruse” or “pretext” used by police to justify to stop and detain persons; e.g., where police have no honest or legitimate highway traffic concerns, but resort to professed reliance on such legislation as a means of effecting a detention to further a criminal investigation in the absence of proper grounds for doing so.[^79]
• It must also be remembered that roadside traffic stops are not static events, and sometimes develop in unpredictable ways. It therefore usually is necessary for a court to proceed step by step through the interactions of the police and accused persons to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. Information, as it emerges, may entitle the police to proceed further or, as the case may be, end their inquiries and allow a vehicle to resume its journey.[^80]
• Where a traffic stop is found to be unlawful, evidence resulting from the stop could well be excluded under s.24(2) of the Charter.[^81]

[19] Where breaches of the Charter have been established, the question of whether or not resulting evidence should be excluded turns on a proper application of s.24(2) of the Charter. Governing principles in that regard include the following:

• Anyone whose guaranteed Charter rights or freedoms have been infringed may apply to the court to obtain such remedy as the court considers appropriate and just under the circumstances. Where the court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the 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”.[^82]
• Accordingly, more than a violation of a Charter right is necessary before such evidence will be excluded. The evidence must not only have been obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter, but it also must be established that the admission of the evidence “would bring the administration of justice into disrepute”.[^83]
• The person seeking to exclude the evidence bears the burden of persuading the court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, “dispassionate and fully appraised of the circumstances of the case”.[^84]
• When faced with an application for exclusion of evidence under s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system. The subsection is not aimed at punishing the police or providing compensation to the accused. Rather, its focus is on the “broad impact of admission of the evidence on the long-term repute of the justice system”.[^85]
• Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s.24(2), viewed in a long-term, forward-looking and societal perspective. In particular, when faced with an application for exclusion pursuant to s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following:
  • First, the seriousness of the Charter-infringing state conduct that led to the discovery of evidence, (bearing in mind that admission of the evidence may send the message that the justice system condones serious state misconduct). The more severe or deliberate the violation, the more likely the evidence ought to be excluded. Extenuating circumstances and “good faith” on the part of the police must be weighed in the balance. However, ignorance of Charter standards must not be encouraged, (especially in the very persons who are charged with upholding the law), and courts must not equate wilful blindness with good faith.
  • Second, the extent to which the Charter breach undermined the protected interests of the accused, (bearing in mind that admission of the evidence may send the message that individual rights count for little). The more serious the incursion on these interests, the greater the risk that admission of the tainted evidence would bring the administration of justice into disrepute.
  • Third, society’s interest in the adjudication of the case on its merits. This aspect of the three-pronged inquiry requires the court to evaluate whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence, and reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Factors to be weighed into this balance include the reliability of the evidence, and its importance to the Crown’s case. Moreover, the court must consider not only any negative impact of the admission of the tainted evidence, but also the impact of failing to admit evidence.
  • The three-pronged inquiry is intended to flexible, and there is no precise rule as to how the balance of these factors is to be struck.[^86]

[20] With the above findings, principles and considerations in mind, I now turn to consideration of the particular issues raised by the pretrial applications brought by Mr Kerr and Ms Lundrigan.

Analysis – [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights

[21] In their Charter application materials, defence counsel raised a broad range of concerns grounded principally in sections 8 and 9 of the Charter.

[22] However, by the time of oral submissions before, defence counsel were candidly indicating that their concern had been distilled, in large measure, to a focus on the suggested impropriety of the initial traffic stop initiated by Sergeant Wilson, and the “knock on” implications of that suggested impropriety on all other police interactions with the defendants on the morning question.

[23] In the result, I was presented with no meaningful argument – and in many respects, no argument whatsoever - that those other police interactions with the defendants were improper or gave rise to Charter right violations, apart from the possibility of their being tainted by the reality that they all resulted from the impugned traffic stop.

[24] For example, leaving aside the possible implications of the traffic stop being improper:

• there was nothing but a passing reference without complaint to the brief detention of Mr Kerr, by Officers Otten and Lange, to confirm that he was not Clint Kerr before he was allowed to continue walking away from the Jimmy vehicle;
• there was no serious or sustained argument that Sergeant Wilson had not effected a valid “plain view” seizure of the transparent bag containing methamphetamine, seized from the floor area of the Jimmy vehicle near the rear left side of its driver’s seat;
• there was no argument that Sergeant Wilson did not have reasonable and probable grounds to arrest Ms Lundrigan and direct the arrest of Mr Kerr at that point for joint possession of a controlled substance;[^87]
• there was no suggestion that the arrest of either accused was carried out in an improper fashion; and
• there was no suggestion that any of the searches carried out incident to arrest were unjustified, inappropriate, or carried out in an improper fashion.

[25] In the words of counsel for Mr Kerr, (adopted by counsel for Ms Lundrigan), the defence position on the applications “all comes down to the traffic stop”.

[26] In that regard, and at the risk of over-simplification, I believe the defence position may generally but fairly be summarized as follows:

• Prior to initiating the relevant traffic stop, Sergeant Wilson had nothing more than a “hunch” or suspicion of criminal activity, (e.g., relating to drugs or breach of probation conditions by Mr Van Arkel), without any meaningful evidence to support such a belief or form proper grounds to detain anyone to further an investigation in that regard.
• Instead of leaving the matter there, Sergeant Wilson decided, without having any real or legitimate highway traffic concerns, to employ the “ruse” or “pretext” of a highway traffic stop as a means of carrying out further investigation, in the hope of finding evidence to support his suspicions of criminal activity.
• The resulting traffic stop, and detention of Ms Lundrigan and Mr Kerr, accordingly was unlawful and arbitrary, constituting a breach of the rights guaranteed by section 9 of the Charter.
• Even if the ensuing “plain view” seizure, arrests and searches incident to arrest otherwise might have been lawful and entailed no Charter violations, in a situation flowing from a lawful traffic stop, those further police measures would not have occurred but for the original section 9 Charter violation, such that those further measures were in turn “tainted”, thereby effectively resulting in further “dependent” violations of section 9 and section 8 of the Charter.

[27] For her part, Crown counsel maintained that the initial traffic stop was lawful and proper, (especially insofar as Sergeant Wilson was said to have been motivated by multiple purposes, which included legitimate highway traffic concerns even if the officer had other suspicions of criminal activity), and remained so for its duration.

[28] Crown counsel also took the position that all ensuing detentions, seizures, arrests and searches were proper and defensible – although she understandably devoted little or no time to the active defence of those other police interactions with the defendants, having regard to the oral submissions of defence counsel.

[29] In the circumstances, I too will focus primarily on the propriety and lawfulness of the traffic stop effected by Sergeant Wilson, without engaging in a very detailed “step by step” examination of those subsequent police interactions with the defendants usually required in such situations.

[30] Before doing so, I nevertheless independently find that, apart from the traffic stop and its implications, the other police interactions with the defendants were lawful and proper, and gave rise to no independent violations of sections 8 or 9 of the Charter. Without limiting the generality of the foregoing:

• While Ms Lundrigan continued to be detained as a result of the traffic stop, up until the time of her arrest, Mr Kerr was permitted to walk away from the Jimmy vehicle without further detention. In particular, although he received a limited direction from Officer Lange to stop reaching into the Jimmy vehicle, he was never directed to remain in or with the vehicle.
• While Mr Kerr was detained briefly by Officers Otten and Lange while walking away from the vehicle, to permit the officers to confirm his identity, in my view that detention was lawful – apart from the implications of the original traffic stop. In particular, the officers had reasonable grounds at that point, (based on an apparent identification of the relevant individual as Clint Kerr by a senior and experienced officer, and knowledge of an outstanding warrant for the arrest of Clint Kerr in relation to a particular offence), to effect an arrest of that individual unless they were satisfied it was not Clint Kerr but someone else. In my view, the lawfulness of the brief detention effected in such circumstances is covered by authorities such as R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paragraph 45, which have clarified and confirmed that a police officer may detain an individual to investigate a criminal offence if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime and that such detention is necessary.
• If the traffic stop was lawful and properly continuing at the time when Sergeant Wilson saw and seized the transparent bag containing methamphetamine from the floor area near the rear left side of the Jimmy vehicle’s driver seat, (recognizing that is an important “if”), then in my view the requirements of the plain view doctrine were satisfied. In that regard:
  • Sergeant Wilson would have been lawfully in the position he was in, at the time, to see that evidence.
  • Discovery of that evidence was inadvertent, in the sense that Sergeant Wilson did not know the bag and its contents were there before he seized and saw it. In particular, while Sergeant Wilson suspected the presence of controlled substances, and was keen to see if his suspicions were justified, in my view he obviously did not know the relevant bag and its contents were in the relevant location prior to effecting its seizure, or the relevant seizure would have happened much earlier during the course of the morning’s events.
  • Having regard to Sergeant Wilson’s years of experience as a police officer in the Stratford community, where methamphetamine has been prevalent and the subject of above-average criminal arrests and prosecutions for many years, I have no doubt that it would have been apparent to him, when he saw the transparent bag and its contents, that he was looking at evidence of a crime; i.e., possession of a controlled substance.
• For the reasons outlined earlier, (and once again leaving aside the possible implications of an unlawful traffic stop), I find there were reasonable and probable grounds, at that point, for Sergeant Wilson to arrest Ms Lundrigan, and direct the arrest of Mr Kerr, for possession of a controlled substance.
• In my view, the resulting arrests were carried out properly, and resulting searches met the requirements for valid and appropriate searches incident to arrest; e.g., insofar as they were carried out for reasons of officer safety, and/or to look for and secure evidence related to the charged offence.

[31] In the circumstances, I accordingly turn to the real focus of the alleged Charter right violations in this case; i.e., the propriety of the traffic stop carried out by Sergeant Wilson.

[32] In that regard, Sergeant Wilson asserted, during the course of his testimony at the voir dire, that his decision to effect the traffic stop was based, (at least in part), on a genuine desire to confirm the validity of the licenced status of the Jimmy’s driver pursuant to the HTA.

[33] However, for numerous reasons, I frankly did not believe or accept Sergeant Wilson’s testimony in that regard.

[34] Without limiting the generality of the foregoing, my reasons for that view include the following:

• In the course of his testimony, Sergeant Wilson acknowledged that he subjectively did not believe he had grounds to stop the Jimmy vehicle at that point; e.g., to see if Mr Van Arkel was complying with the terms of his probation or to conduct a drug investigation. To the contrary, Sergeant Wilson acknowledged that, at the relevant time, acting as a police officer, and responding to what he described as “this specific incident”, (which at that point was limited to his having noticed the Mazda and Jimmy vehicles parked next to each other with no visible occupants, his knowledge of the vehicle owners, and the Jimmy vehicle then driving past his waiting position as it was being operated by a female driver), he thought he “would have to rely on some legislative (sic) authority”. He therefore decided he would rely on legislated authority he believed he had under the HTA to stop any vehicle and determine whether or not its driver had a valid licence. In cross-examination, Sergeant Wilson also confirmed his subjective belief that he had no grounds to stop the Jimmy vehicle apart from whatever authority to stop the vehicle was conferred upon him by the HTA. However:
  • Even making allowances for the fact that Sergeant Wilson had been retired for approximately nine months at the time of the voir dire, he seemed remarkably uninformed about the precise nature of any such authority under the HTA, especially for an officer who himself emphasized that he had spent most of his 29 years as a police officer engaged in patrolling roads.
  • When asked in cross-examination to identify the provisions of the HTA upon which he had been relying, (i.e., for his authority to effect the relevant traffic stop), Sergeant Wilson mentioned only section 32 of the legislation, making it an offence to operate a motor vehicle without a valid licence, and belatedly acknowledged that section did not, in itself, provide police with authority to effect traffic stops.
  • Sergeant Wilson failed to mention or identify section 216 of the HTA, (which expressly provides a police officer acting “in the lawful execution of his or her duties and responsibilities” with the power to require the driver of a vehicle to stop), until the provisions therein were noted by defence counsel.
• Although Sergeant Wilson attempted in later testimony to buttress his decision to stop the Jimmy vehicle by assertions that he had concerns about the vehicle being driven by a female and therefore not by Mr Van Arkel, and that its observed movements were suspicious and/or improper, (e.g., insofar as it drove only a very short distance from its initially observed position before coming to a stop again in a different parking lot, and was said to have turned into that parking lot without use of an appropriate turn signal), Sergeant Wilson already had indicated, in his initial testimony explaining why he had driven around the corner to take up a waiting and observation position in the parking lot of 29 Buckingham Drive, that he wanted to see if the Jimmy vehicle would move so that he could effect a traffic stop and determine whether Mr Arkel was violating the terms of his probation.[^88] In other words, Sergeant Wilson already had decided to carry out a traffic stop of the vehicle for that purpose once he could see that the vehicle was in motion. In short, as Sergeant Wilson effectively was lying in wait for the Jimmy vehicle to drive past him, he already had decided to effect a traffic stop for reasons that effectively were limited to pursuit of a criminal investigation, (e.g., further investigation to determine whether or not there was any support for suspicions of drug activity, or Mr Van Arkel having breached the terms of his probation contrary to s.733.1 of the Code), regardless of how or by whom the Jimmy motor vehicle may have been operated. I think that was clear from Sergeant Wilson’s own initial testimony in that regard during the voir dire, but also from the circumstances of his driving around the corner from the two vehicles to assume an observation position, only a short distance away, facing onto Buckingham Drive, (i.e., a position the Jimmy was likely to pass if and when it moved), at a time when Sergeant Wilson otherwise was to be patrolling the area.
• In my view, that inference, and a conclusion that Sergeant Wilson actually was engaged in what was really a criminal investigation, are buttressed by the personal notes Sergeant Wilson made shortly after the events in question, effectively emphasizing that his focus at the time was on suspected criminal activity related to drug trafficking and/or a breach of probation by Mr Van Arkel. In particular, those notes, emphasizing Sergeant Wilson’s contemporaneous concerns and suspicions leading up to the traffic stop, contained no mention whatsoever of HTA or driver licencing concerns, and instead were focused on the following considerations:
  • that the two parked vehicles he observed were located in the parking lot of public housing “where high drug activity occurs”;
  • that one of the vehicles, which he had stopped the night before, was registered to a person who was “known [to be involved in the] drug culture”;
  • that the other vehicle was registered to Mr Van Arkel, a “known criminal and [also known to be involved in the] drug culture”;
  • that Mr Van Arkel was bound by terms of probation including a condition that he “not communicate directly/indirectly with persons in [the] drug trade”; and
  • that Sergeant Wilson was “suspicious of both vehicles due to location, time of day, extensive convictions, and that [Mr] Van Arkel could be with [a] person in [the] drug trade”.[^89]
• In the course of cross-examination, Sergeant Wilson expressly acknowledged that use of a traffic stop to make further observations was “foremost in his mind” when he made his determination to stop the Jimmy vehicle.
• Moreover, in my view, having regard to all the evidence, (including the history of this matter, the notes Sergeant Wilson prepared shortly after the events in question, Sergeant Wilson’s testimony at the preliminary hearing, and Sergeant Wilson’s testimony during the voir dire), it also was clear that Sergeant Wilson realized that use of his authority under the HTA to effect a traffic stop, for the sole purpose of pursuing what was really only a criminal investigation when the decision was made to effect that traffic stop, might be problematic and in need of shoring up by additional explanations; explanations that nevertheless were belated and/or also problematic.
• In that regard, and as noted above, Sergeant Wilson asserted that, at the time of the traffic stop, his reasons included a concern that the Jimmy vehicle was being operated by a female and therefore not by Mr Van Arkel, which reinforced a desire on Sergeant Wilson’s part to stop the vehicle and check that the female driver had a valid licence. The observation that the Jimmy vehicle was being operated by a female, and therefore not by Mr Van Arkel, was something mentioned by Sergeant Wilson in the notes he prepared shortly after the events in question, and during his preliminary hearing testimony and testimony offered during the voir dire. Sergeant Wilson essentially attempted to characterize it as an additional contemporaneous reason for his decision to carry out the relevant traffic stop. In the course of his voir dire testimony, Sergeant Wilson similarly asserted that observing a female driver operating a vehicle registered to a male provided an additional basis for questioning whether such a female was a licenced driver. However:
  • During cross-examination on his testimony at the preliminary hearing and voir dire, Sergeant Wilson was pressed for an explanation as to why observation of a female driving a vehicle registered to a male, (in this case Mr Van Arkel), logically provided any reason or justification in his mind for a traffic stop pursuant to the HTA, and Sergeant Wilson seemed to struggle in that regard. In the result, he simply indicated that, based on his “experience in 29 years of policing”, most of which had been spent carrying out road patrol duties, he had often found, (albeit without compiling records or statistics in that regard), that a motor vehicle being operated by someone of the opposite sex to that of the registered owner was indicative of a stolen vehicle, or a driver who was unlicenced, disqualified or suspended.
  • I agree with the position of defence counsel, (emphasized during cross-examination and oral submissions), that the explanation offered by Sergeant Wilson in that regard is not rational, given modern day realities. In particular, I think I can take judicial notice of the everyday reality that registered owners of vehicles routinely permit spouses, partners, relatives and friends of the opposite sex to operate their vehicles for entirely innocent and benign reasons. In my view, such gender differences provide no rational basis for doubting the possession of a valid driver’s licence, in turn justifying a traffic stop pursuant to the HTA.[^90]
• In the course of cross-examination on the voir dire, Sergeant Wilson also suggested that he wanted to stop the Jimmy vehicle to ensure it was not stolen. However, in the course of further questioning, Sergeant Wilson acknowledged that no such concern was mentioned in his notes, (highlighting considerations of importance to him at the time), or during his testimony at the preliminary hearing. Sergeant Wilson similarly made no mention of any such concern during the course of his testimony in chief at the voir dire. Moreover, in my view the belated suggestion of a concern that the Jimmy vehicle had been stolen from Mr Van Arkel was entirely at odds with Sergeant Wilson’s stated ongoing suspicion before and after the traffic stop, (e.g., while the male passengers were actively concealing their identities), that Mr Van Arkel was at the location and/or one of the vehicle’s passengers, thereby possibly breaching the terms of his probation.
• During his voir dire testimony, Sergeant Wilson also claimed that his traffic stop was prompted in part by his observation of having seen the Jimmy vehicle make a “quick” right turn into the parking of 45 Buckingham Drive without giving a proper turn signal. However:
  • As already noted, Sergeant Wilson obviously was an experienced police officer at the time of the underlying events, (having been a police officer for approximately 28 years at that point), and in my view therefore would have known that his reasons for effecting the traffic stop were important.
  • In the course of cross-examination during the voir dire, Sergeant Wilson acknowledged that his assertion of the Jimmy vehicle making a sudden turn without signalling was a matter of importance, insofar as such observations lent support to his perceived authority for making a traffic stop pursuant to the authority granted by the HTA.
  • Sergeant Wilson nevertheless also acknowledged that, in the personal notes he prepared shortly after the events in question, (which are certainly not meant to be an exhaustive recitation of all details having possible relevance, but are intended to document reminders of events and considerations of importance at the time), there nevertheless was no mention whatsoever of the Jimmy vehicle making any sudden turn without making a proper signal. (There is simply an indication that the Jimmy vehicle “pulled into [the] driveway of 45 Buckingham”.) Nor was there any note of Sergeant Wilson having said anything to the vehicle’s driver about turning without making a proper signal.
  • During the course of his testimony at the preliminary hearing for this matter, (when events underlying this matter admittedly would have been more fresh in his mind), Sergeant Wilson similarly made no mention whatsoever of any concerns relating to the manner in which the Jimmy vehicle executed its turn into the parking lot of 45 Buckingham Drive. In that regard:
    • Sergeant Wilson made absolutely no mention of the Jimmy making any quick or abrupt turn without giving an appropriate turn signal as it entered the relevant parking lot. He instead indicated, during his preliminary hearing testimony, that the reason he found the “manoeuvre” to be “suspicious” was that the vehicle had travelled “a very short distance”, and had turned into the parking lot of “a public housing building where there is a high amount of drug traffic”.
    • Moreover, during cross-examination at the preliminary hearing, Sergeant Wilson expressly indicated and confirmed that his only professed reasons for stopping the Jimmy vehicle were a desire to check the licenced status of the female driver, and to ensure that Mr Van Arkel was complying with the terms of his probation. According to Sergeant Wilson’s sworn testimony at the time, there was no reason to stop the vehicle “other than that”.
    • In an effort to explain the apparent inconsistency between his preliminary hearing testimony and his testimony during the voir dire, (i.e., in relation to the Jimmy vehicle supposedly making an sudden or abrupt turn without making a proper turn signal), Sergeant Wilson claimed during cross-examination on the voir dire that the reason for the inconsistency stemmed from the fact he was retired at the time of the preliminary hearing, and accordingly was called upon to testify at short notice without having an opportunity to review his notes to properly prepare for the hearing. In my view, however, Sergeant Wilson’s explanation in that regard was not convincing. As noted above, Sergeant Wilson’s notes contained no reference to the Jimmy vehicle having made any sudden or abrupt turn without signalling, and I therefore find it difficult to understand how referring to such notes would have assisted Sergeant Wilson’s supposed independent recollections in that regard. Moreover, as Sergeant Wilson grudgingly was obliged to concede in the course of further cross-examination, he actually had not retired by the time of the preliminary hearing. In particular, the transcript of that preliminary hearing confirmed that Sergeant Wilson had testified in uniform, and Sergeant Wilson acknowledged and confirmed that only active members of the Stratford Police Service were permitted to wear that uniform.
  • During the course of his voir dire testimony, Sergeant Wilson said nothing of having spoken with the Jimmy’s driver about turning without making a proper signal, which in my view the officer would have done had such a turn been observed and represented a significant concern at the time.
• I think it telling that, (as described in more detail below), at various points after initiating the traffic stop, Sergeant Wilson readily and repeatedly engaged in conduct indicating that he was intently focused on investigation unrelated to the identification of Ms Lundrigan and/or determining whether or not she was a licenced driver; e.g., asking Ms Lundrigan intrusive questions unrelated to her status as a licenced driver or other highway traffic concerns, (such as the identity of her passengers), leaving Ms Lundrigan to investigate the identity of Mr Jacobs, instructing Officer Lange to remain with the vehicle to maintain continuity over the Jimmy vehicle, (as opposed to continued detention of Ms Lundrigan to determine her identity or licenced driver status), and leaving Ms Lundrigan again to investigate the identity of Mr Kerr.
• I also think it telling that, (as described in more detail below), Sergeant Wilson’s conduct after the initial traffic stop repeatedly included urgent efforts to request and obtain CPIC information that might justify the arrest of those who had occupied the Jimmy vehicle, whereas he seemed remarkably uninterested in taking any steps whatsoever to see if the licenced status of the vehicle’s female driver could be ascertained by any means short of her physically producing a driver’s licence, even after she had provided Sergeant Wilson with her name. In that regard:
  • As outlined in more detail above, Sergeant Wilson promptly engaged in efforts to identify the vehicle’s male passengers, who turned out to be David Jacobs and Nick Kerr; e.g., by running to catch up with Mr Jacobs to shine a flashlight in his face, and by walking into the lobby of an apartment building to look at the face of Mr Kerr. In each instance, the moment Sergeant Wilson had made a visual identification that associated each male passenger with a name, Sergeant used his radio to request immediate CPIC information on each male; e.g., to see if either was the subject of outstanding warrants or terms of probation or release that may have been violated in the circumstances.
  • In marked contrast, Sergeant Wilson never requested any CPIC or other information about Tracy Lundrigan, even after she had provided Sergeant Wilson with her name at his request, and even though, (as he acknowledged during cross-examination), Sergeant Wilson had means available to request additional records information to confirm Ms Lundrigan’s identity and status as a licenced driver. Nor did Sergeant Wilson ask or instruct Officer Lange to do so; e.g., while he engaged in other investigation relating to Mr Jacobs and Mr Kerr.
  • In what he repeatedly described as an intention to conduct a traffic stop that was “complete and thorough”, Sergeant Wilson instead was content to let Ms Lundrigan stand outside the Jimmy vehicle for a prolonged period of time, (waiting for “back up” officers to arrive, and for Sergeant Wilson to then complete his efforts to personally chase and identify Mr Jacobs and Mr Kerr, without providing Officer Lange with any instructions to complete inquiries regarding Ms Lundrigan’s identity or licenced driver status), and to have Ms Lundrigan search at length, repeatedly and in vain, for her driver’s licence.
  • Indeed, Sergeant Wilson seemed quite content to have that state of affairs continue until he was able to observe and seize evidence of a controlled substance inside the Jimmy vehicle, which finally provided what Sergeant Kerr considered to be reasonable and probable grounds for arresting Ms Lundrigan and Mr Kerr.
  • In cross-examination, Sergeant Wilson attempted to justify his failure to request any similar CPIC or other record checks, in relation to Ms Lundrigan, by supposed concerns about officer safety. I nevertheless find it difficult to understand why any structural concerns prevented an additional brief radio inquiry during the initial time Sergeant Wilson and Ms Lundrigan were standing in the area near the front of the Jimmy and Sergeant Wilson’s cruiser, (i.e., when Sergeant Wilson deliberately had relocated himself and Ms Lundrigan to that area and away from the Jimmy’s male passengers, to address perceived safety concerns while Sergeant Wilson was waiting for back up officers to arrive), how any safety concerns preventing Sergeant Wilson from asking Officer Lange to make such radio or other inquiries once she also had arrived on scene, or how there were any safety concerns preventing such a radio inquiry when Sergeant Wilson, (following his efforts to chase and identify Mr Jacobs and Mr Kerr following their departure from the Jimmy vehicle), was once again back at the Jimmy vehicle, (alone with Ms Lundrigan and/or dealing with Ms Lundrigan at the Jimmy vehicle after Officer Lange also had returned to that location), as Ms Lundrigan continued to search unsuccessfully for her driver’s licence.
  • In the course of cross-examination, Sergeant Wilson confirmed that it would have taken him only a few seconds to make a radio query about the name Ms Lundrigan had provided to him. In my view, that not only underscored the ease with which Sergeant Wilson could have a radio query about Ms Lundrigan – including her status as a licenced driver – but also highlighted the implausibility of Sergeant Wilson’s additional defensive assertion that he refrained from making a radio query about Ms Lundrigan to “keep the radio clear”, in case there were any further updates about Mr Jacobs and/or Mr Kerr.
  • I also think it noteworthy that Sergeant Wilson admittedly never did take any further steps to confirm whether or not Ms Lundrigan had a valid driver’s licence after her arrest on criminal charges, and before another officer later indicated to Sergeant Wilson that Ms Lundrigan’s licence had been found.
  • In the result, I simply do not believe Sergeant Wilson’s explanations for failing to conduct a similar records check in relation to Ms Lundrigan, and do not think Sergeant Wilson was being candid and honest in his testimony about such matters. My impression was that Sergeant Wilson deliberately refrained from engaging in such alternative measures to identify Ms Lundrigan, and confirm her status as a licenced driver, in order to prolong his opportunity to make further observations about Ms Lundrigan and the Jimmy vehicle, and thereby engage in further efforts to address his suspicions about drug activity.
• More generally, for all of the reasons I have identified, my overall impression was that Sergeant Wilson frankly was not being honest or candid with me about his actual reasons for having effected the relevant traffic stop. In my view, the considerations I have outlined, along with Sergeant Wilson’s general demeanor in the witness box, (which was noticeably vague, defensive and unreasonable when it came to explaining why he had effected the initial traffic stop)[^91], made it clear that Sergeant Wilson was not really interested in whether or not the operator of the Jimmy vehicle was a licenced driver, or any other legitimate HTA concern, but was instead focused on pursuing what was really a criminal investigation related to suspected breach of probation conditions and drug activity. I think his testimony to the contrary was deliberately misleading.

[35] In the result, I find that the traffic stop initiated by Sergeant Wilson was not motivated by any honest and legitimate highway traffic concerns, and the stop and resulting detention actually was unrelated to the operation of the Jimmy vehicle or other road safety concerns.

[36] The traffic stop was instead simply a pretext for Sergeant Wilson to stop the Jimmy vehicle and make further observations, in the hopes of discovering evidence that would justify his otherwise supported “hunch” or suspicions of criminal activity. In other words, it was a means of effecting a detention to further a criminal investigation, in the absence of proper grounds for doing so.

[37] In my view, the traffic stop accordingly resulted in a detention of Ms Lundrigan and Mr Kerr that was unlawful, and also arbitrary. It represented a violation of the rights guaranteed to Ms Lundrigan and Mr Kerr by section 9 of the Charter.

[38] In my view, all police interactions with the defendants following the traffic stop would not have occurred but for that breach of the defendants’ section 9 Charter rights. Without limiting the generality of the foregoing:

• Mr Kerr would not have been detained again by two police officers while walking away from the Jimmy vehicle, and obliged to produce identification to avoid arrest.
• Ms Lundrigan never would have opened the driver’s door of the Jimmy vehicle, so as to allow Sergeant Wilson to stand within the sweep of that door’s opening, thereby gaining a view of the transparent bag, and its contents, located to the rear of the left side of the Jimmy’s driver’s seat. There accordingly would have been no “plain view” seizure of that evidence.
• Without that “plain view” discovery and seizure of evidence, there would have been no reasonable and probable grounds justifying the arrest of Ms Lundrigan and Mr Kerr, they would not have been arrested, and they would not have been subjected to further resulting detention.
• Had Ms Lundrigan and Mr Kerr not been arrested, the searches incident to arrest of their persons, bags and the vehicle in which they had been travelling, and resulting seizures, would not have been justified and would not have occurred.

[39] In the circumstances, I agree with defence counsel that police interactions with the defendants in the wake of that unlawful traffic stop, which otherwise may have been proper and defensible, (i.e., had the traffic stop been lawful), effectively were tainted resulting in further breaches of the defendants section 9 Charter rights to be free from arbitrary detention, and section 8 Charter rights to be free from unreasonable search and seizure.

[40] As violations of the Charter rights of Mr Kerr and Ms Lundrigan have been established, I turn next to a consideration of whether or not resulting evidence should be excluded pursuant to s.24(2) of the Charter.

Analysis – Subsection 24 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[41] In this case, for reasons to which I already alluded, I have no doubt that all of the evidence upon which the Crown seeks to rely and the defence seeks to exclude, (i.e., evidence of controlled substances, weapons and other indicia of trafficking), were “obtained in a manner that infringed or denied … rights or freedoms guaranteed by the Charter”.

[42] In particular, in my view there is no question that all of the relevant evidence would not have been noticed, discovered, located and/or seized but for the unlawful and arbitrary traffic stop initiated by Sergeant Wilson.

[43] As for the seriousness of the Charter-infringing state conduct that led to the discovery of that evidence:

• In this case, the relevant police misconduct was carried out by a senior and experienced police officer; i.e., by a Sergeant with approximately 29 years of active service. In the absence of any real or legitimate highway traffic concerns, such an officer certainly ought to have known better than to use a highway traffic stop as a pretext for further a criminal investigation into whether his mere hunch or suspicions of drug activity and/or breach of conditions might prove to be accurate.
• Sergeant Wilson’s abuse of his traffic stop authority also was wilful, deliberate and the subject of reflection, insofar as he made his decision to stop the vehicle before he ever saw it with occupants, or in motion, and then formed and implemented a plan in that regard by driving around the corner to hide and wait for the vehicle to pass by.
• In my view, there were no extenuating or exigent circumstances to mitigate the seriousness of Sergeant Wilson’s traffic stop authority being abused in furtherance of a criminal investigation that was unsupported at the relevant time. In particular, while the situation was dynamic, (particularly insofar as the mobile nature of the Jimmy vehicle and its occupants obviously made it likely that any evidence therein to support Sergeant Wilson’s suspicions of criminal activity would be fleeting and lost to police if the vehicle was not stopped and investigated immediately), the law required Sergeant Wilson to leave the Jimmy vehicle and its occupants alone in the absence of a legitimate justification for stopping it.
• I am mindful that conduct of the police after the initial traffic stop frequently exhibited restraint, and an awareness of limitations on their authority, which in normal circumstances might suggest good faith. For example, the police initially permitted the Jimmy’s two male passengers to walk away from the vehicle, (although both were followed and confronted in various ways to confirm their identities), voluntarily provided Mr Kerr with an opportunity to identify himself to avoid being arrested, (despite the detaining officers having a reasonable basis for believing he was Clint Kerr, and wanted on an outstanding warrant), arrested Ms Lundrigan and Mr Kerr only when there were reasonable and probable grounds for doing so, (based on circumstances objectively justifying Sergeant Wilson’s subjective belief in joint possession of methamphetamine by Ms Lundrigan and Mr Kerr), carried out searches and seizures, (in a proper manner), within the bounds of the plain view doctrine and searches incident to arrest, and refrained from searching the data on electronic devices without obtaining a separate warrant authorizing that to be done. However, the reality is that such police conduct would not have been necessary at all, had the traffic stop triggering the relevant chain of events not been initiated in bad faith.
• In that regard, I think the situation is made far worse by Sergeant Wilson’s apparent realization that he had abused his traffic stop authority; e.g., having regard to his corresponding attempt to defend and justify his conduct after the fact through testimony that was misleading and not honest, particularly insofar as Sergeant Wilson fabricated evidence of highway traffic concerns after the fact. Deliberately misleading police testimony is always a cause for very significant concern. However, I think Sergeant Wilson’s misleading testimony has more relevance in the present circumstances because it reveals an appreciation by the Sergeant himself that he required more than he had, in the circumstances actually prevailing at the relevant time, to make a valid traffic stop of the Jimmy vehicle. He nevertheless went ahead and effected the traffic stop anyway.
• Having regard to all the circumstances, in my view the inappropriate police conduct in this case lies at the serious end of the spectrum. My perspective in that regard is reinforced by the following observations of the Supreme Court of Canada, which I think applicable to this case:

Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows they must leave a suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take [the] latter course, the Charter violation is plainly more serious that it would be otherwise, not less.[^92]

[44] As for the extent to which the Charter breach undermined the protected interests of Mr Kerr and Ms Lundrigan:

• I am mindful of the reality that motorists have a lower expectation of privacy in vehicles than they do in their homes; i.e., because operation of motor vehicles is a highly regulated activity, and that those participating in that highly regulated activity as drivers or passengers know or reasonably ought to know that they may be stopped for reasons pertaining to highway safety. The intrusion on liberty and privacy resulting from a traffic stop therefore inherently is less severe than it would be in relation to a pedestrian.[^93]
• It might also be said that the initial detention resulting from the traffic stop was relatively short-lived, in the sense that Mr Kerr was permitted to walk away from the Jimmy vehicle approximately 6-7 minutes after the stop had been initiated at approximately 2:37am, and Ms Lundrigan was arrested around 3:00am, approximately 23 minutes after the traffic stop was initiated, having been detained at or near the Jimmy vehicle in the meantime. However, I think there is reason to question whether the traffic stop was “brief”, (as contemplated by the Supreme Court of Canada authority noted above), at least in relation to Ms Lundrigan, insofar as efforts to have her produce a licence - or charge her for failure to produce a licence - repeatedly were interrupted and prolonged in the manner outlined above.
• However, when considering the extent to which the relevant Charter breach undermined the protected interests of Mr Kerr and Ms Lundrigan, I think it inappropriate to focus exclusively on the initial detention per se, while ignoring the fundamental reality that the relatively compact experience of Mr Kerr and Ms Lundrigan being detained, arrested and subjected to searches of their persons and bags, as well as the vehicle in which they had been travelling, clearly were the direct and proximate result of the unlawful and arbitrary traffic stop effected by Sergeant Wilson, for which there was no legitimate justification.
• The Supreme Court of Canada has indicated that, when police carry out a traffic stop and resulting searches without justification, the impact on the liberty and privacy reasonably expected by motorists should be viewed as a significant, although not egregious, intrusion on Charter-protected interests.[^94] In my view, that is an appropriate conclusion in this case as well.

[45] As for society’s interest in the adjudication of the case on its merits:

• The controlled substances, weapons and other indicia of drug trafficking located and seized by the police in this case are clearly objective, highly reliable and non-conscripted items of evidence, the admission of which inevitably would further the truth-seeking function of the criminal trial process. In particular, evidence of that nature cannot be regarded as operating unfairly in the court’s search for truth at trial.[^95]
• If the challenged evidence is admitted, the Crown would seem to have an extremely strong case in terms of establishing Ms Lundrigan’s knowledge and possession of controlled substances, and Mr Kerr’s knowledge and possession of controlled substances and weapons. However, if the challenged evidence is excluded, the Crown’s case against both individuals will be “gutted”, (in the sense the Crown almost certainly will be unable to discharge its burden of proof without such evidence), and society’s collective interest in ensuring that the transgressions revealed by the evidence will not be addressed and dealt with according to law. That is a significant consideration in this particular case, where the CDSA and criminal charges advanced in this proceeding, and in the proceeding having court file number 17-636, are inherently serious and of obvious concern to members of the public.
• Having said that, the Supreme Court of Canada has emphasized that the seriousness of an offence has the potential to “cut both ways”, such that courts must consider that important factor but not allow it to take on disproportionate significance. In particular, while failure to prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system, the focus of s.24(2) of the Charter is on the long-term repute of the justice system. The Supreme Court of Canada therefore has cautioned courts not to put that long-term reputation at risk, in the heat of short term clamour, in a case involving criminal behaviour of great significance to a particular community but also inappropriate police conduct and Crown reliance on evidence procured through serious Charter right violations.[^96]

[46] In balancing the above considerations, I am mindful that, while the first two “prongs of inquiry” in my s.24(2) analysis weigh significantly in favour of excluding the evidence, and only the third “prong” militates heavily in favour of the evidence being admitted, the balance to be struck is very much fact driven, and not one capable of mathematical precision. In particular, the balancing required by s.24(2) of the Charter must be qualitative rather than quantitative.[^97]

[47] I also bear in mind, (as mandated by the Supreme Court of Canada), the long-term and prospective repute of the administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.[^98]

[48] I frankly am very reluctant to exclude the evidence discovered and located by police in this matter, particularly insofar as it clearly seems to indicate substantial trafficking in controlled substances which plague this particular community, and the multiple dangerous weapons found in the possession of Mr Kerr obviously are a matter of very serious concern in their own right.

[49] In my view, however, the long term repute of the administration of justice will be significantly undermined if a criminal trial such as this is permitted to proceed based on evidence obtained in such circumstances.

[50] Without limiting the generality of the foregoing, the public must have confidence that the powers granted to police under section 216 of the HTA will not be abused to carry out what are really unlawful detentions for the purpose of facilitating criminal investigations based on little or nothing more than a police officer’s unsupported “hunch” or suspicions.

[51] As the Local Administrative Judge for Stratford, a community unfortunately dealing with above average levels of drug trafficking and associated drug prosecutions, I am presented, at almost each and every trial sitting of this court, with applications and trials outlining significant and extended care taken by members of the Stratford Police Service to investigate possible drug offences within the limits of their authority, in situations which frequently involve reliance on an extensive network of confidential informants, sustained surveillance operations and other investigation before decisions are made to interfere with the liberty and privacy of individuals. In many if not most of those cases, such interference frequently involves the stopping of vehicles to detain or arrest individuals for suspected possession and/or trafficking of controlled substances.

[52] Of course, that is not to say or suggest, by any means, that such evidence is required in all cases before the police are lawfully permitted to effect detentions and/or arrests, and resulting plain view seizures and/or searches incident to arrest. To the contrary, the authorities noted above make it abundantly clear, for example, that valid traffic stops may very well unfold in unexpected ways, leading to unanticipated but lawful detentions, seizures, arrests and/or searches.

[53] Moreover, as emphasized by the Supreme Court of Canada, dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system.[^99]

[54] However, if the court effectively condones the unacceptable police conduct in this case, (i.e., intentional abuse of ostensible traffic stop authority to further an immediately unfounded drug-related criminal investigation, followed by deliberately misleading officer testimony aimed at covering that abuse after the fact), it seems to me that there would be little to discourage the police from resorting to such an approach in future cases whenever those suspected of drug activity happen to move about in a motor vehicle. In my view, the slippery downward path towards undermining our system of laws applicable to such situations, which strikes a careful balance between the protection of constitutionally protected individual rights and the necessary investigation and prosecution of crime, seems all too clear.

[55] Albeit with the reluctance noted above, I therefore find the balance required by s.24(2) of the Charter should be struck, in this particular case, in a manner that excludes the evidence discovered and located by the police in the wake of the unlawful traffic stop to which Ms Lundrigan and Mr Kerr were subjected.

Conclusion

[56] For the reasons set forth above, the relief sought via the applications brought by Mr Kerr and Ms Lundrigan in this proceeding, and via the application brought by Mr Kerr in relation to court file number 17-636, is granted.

[57] In particular, an order shall go in both proceedings, excluding evidence, at trial, of all items found within the Jimmy vehicle, on the persons of Mr Kerr and Ms Lundrigan, and in the packages carried by each accused.

[58] Without limiting the generality of the foregoing, the Crown shall not be permitted to lead evidence at trial in relation to the controlled substances, weapons, and arguable further indicia of drug trafficking, (including the digital scale, plastic bag packaging, cash and booklet - which may have constituted what is known in the vernacular as a “debt list” noting drug purchasers and/or money owed by such individuals), described in my fact findings outlined above.

[59] As noted above, Crown counsel indicated during the course of submissions that such evidence was essential to the Crown’s case in both proceedings, suggesting that neither proceeding could or would proceed in the absence of such absence.

[60] However, the matter shall be spoken to again at 9am on May 13, 2019, (i.e., the first day of the May 2019 trial sittings in Stratford), at which time counsel will have an opportunity to indicate the next steps contemplated in relation to this matter.

“Justice I.F. Leach”

Justice I.F. Leach

Date: April 23, 2019

[^1]: For the sake of completeness, (although such matters will be evident from the record of the proceedings), I note that the voir dire hearing of the application herein had to be paused occasionally, at length, to deal with a number of issues relating to attendance of Ms Lundrigan and Mr Kerr, and to search for certain photographic exhibits from the preliminary hearing which defence counsel wished to have for purposes of cross-examination but which nevertheless had gone missing from the court file for unknown reasons. On the latter point, proceedings were paused for approximately half a day while efforts were made to locate the relevant photographs. When they could not be found, counsel for both defendants indicated they were content to proceed, while reserving their clients’ rights to make a further application, pursuant to section 7 of the Canadian Charter of Rights and Freedoms, (“the Charter”), if and as necessary. In the result, however, there was no further application made in that regard. [^2]: At the time of the hearing before me, the witness accordingly was no longer a police officer or Sergeant. In order to maintain focus on the events giving rise to this proceeding, and to provide an accurate description of those events in the manner in which they occurred, I nevertheless will refer to the witness as “Sergeant Wilson”; i.e., the rank he held at all times material to these proceedings. [^3]: Sergeant Wilson, Officer Lange and Officer Otten independently but consistently gave similar testimony in that regard, emphasizing their prior personal familiarity with the area, and the frequency of drug trafficking and other criminal activity occurring there. In the course of cross-examination and again in oral submissions from defence counsel, it repeatedly was suggested that such focused police activity was inherently inappropriate. For example, it was said that such policing decisions discriminated against persons based on their economic status; i.e., because it involved a heightened and more vigilant police presence in a particular residential area of Stratford that was said to be less affluent, insofar as many of the nearby residences were city-owned housing. It was also said that the detection of more crime in such areas was a self-fulfilling prophecy, insofar as criminal activity self-evidently would not be confirmed by the Stratford police if they had not devoted greater resources and attention to the area. For reasons that include the following, I disagree with such suggestions and arguments: - In many respects, they lack any solid evidentiary foundation. For example, there was no demonstrated correlation between city ownership of housing, or the particular geographic area of Stratford, and the level of economic resources available to persons living in the area. There similarly was no evidence to indicate or even suggest that the Stratford police were targeting all residents of that particular neighbourhood, (e.g., by stopping all vehicles and pedestrians in the area), as opposed to stopping particular vehicles and pedestrians which had aroused particular police suspicions of criminal activity. - Such suggestions and arguments of police discrimination based on economic status also were at odds with the evidence I received. In particular, they ignore clear indications from the three testifying police officers that their familiarity with the area, and the heightened presence of Stratford police in the area, was in fact a response to an above-average level of calls for assistance from that area. If residents of a certain geographic area of a community repeatedly report and express concerns about elevated criminal activity in their neighbourhood, it seems sensible and appropriate that police would devote more resources to geographic areas where those resources are need. Such measures arguably serve to protect rather than target a particular neighbourhood. Of course, the police are still bound, at all times, to be mindful of the limits of their lawful authority, particularly when it comes to carrying out criminal investigations. However, I see nothing inherently wrong with police allocating resources in a manner that puts them in a better geographic position to investigate and detect crime in a lawful manner. [^4]: By the time of the voir dire, Sergeant Wilson no longer could recall what the remaining letters of the acronym had stood for. In cross-examination, Sergeant Wilson explained that, while a “project” undertaken by the police normally would involve dedicated resources and specialty units, a program or “initiative” simply involves uniformed officers being asked to engage in certain tasks when they are available to do so. [^5]: During his initial answers about such matters during cross-examination, Sergeant Wilson suggested that he would not be able to access certain photo information from his police cruiser. In the course of further cross-examination, however, Sergeant Wilson acknowledged that he actually did have the ability to look up someone’s photograph on his mobile data terminal. [^6]: In cross-examination, Sergeant Wilson confirmed that such radio units were available to the members of the Stratford Police Service at the time, but he could not recall with certainty whether he happened to be wearing one of those radio units, or an older model without a shoulder microphone, at the relevant time. In either case, I find that Sergeant Wilson generally had the ability to quickly speak into his radio if and as necessary. [^7]: The statute’s official citation is the Highway Traffic Act, R.S.O. 1990, c.H.8. [^8]: The available information also indicated that Mr Van Arkel resided in the town of Shakespeare, (a smaller community to the east of Stratford), but Sergeant Wilson confirmed there appeared to be nothing in the terms of Mr Van Arkel’s probation requiring him to be at that Shakespeare address at the relevant time. [^9]: In the course of cross-examination, Sergeant Wilson confirmed his personal view that the Jimmy vehicle and its occupants were “detained” at that point. However, he clarified in re-examination that he was not referring to an investigative detention “having some nexus to a criminal offence”, but merely a temporary detention in the sense contemplated by a legal traffic stop carried out pursuant to the Highway Traffic Act. [^10]: In the course of his testimony, Officer Otten noted that he had been to the area many times in the past “for multiple reasons”, was familiar with the elevated level of drug trafficking and other criminal activity there, and had participated in prior efforts to increase police presence and visibility in the area. His past visits to the area had included requested attendance around and inside the city-owned housing in the area, including the building at 45 Buckingham Drive. [^11]: In the course of cross-examination, Sergeant Wilson confirmed that neither male said anything, (by way of threats or otherwise), and that he saw no weapons. However, he remained concerned about what he described as “evasive” conduct, including their ongoing efforts to prevent Sergeant Wilson from seeing their faces. [^12]: In his testimony, Sergeant Wilson could not recall whether the Jimmy’s driver door was kept open or closed at that point. [^13]: In his testimony, Sergeant Wilson was unsure of the precise time of Officer Lange’s arrival on scene; e.g., indicating during his testimony-in-chief that she probably had arrived sometime between 2:37am and 2:41am, but revising his testimony in cross-examination to suggest that Officer Lange probably had arrived at some point between 2:30am and 2:32am. I prefer and accept the very definite testimony of Officer Lange, who obviously had a greater focus on her own movements, and was sure that she arrived on scene at approximately 2:39am. [^14]: As noted above, Officer Lange is a canine officer who works with a trained police service dog, and that dog was in Officer Lange’s police service vehicle when she arrived on scene. However, the dog thereafter remained in Officer Lange’s police vehicle at all times during the subsequent events described below. [^15]: Those findings generally accord with the testimony of Sergeant Wilson, which I prefer and accept on this point. In her testimony, Officer Lange suggested that all three passengers had exited the vehicle by the time she arrived on scene; i.e., that Ms Lundrigan was standing near the open door of the Jimmy vehicle, that the front seat passenger was walking in a southeast direction towards the rear of the apartment building at 45 Buckingham Drive, (i.e., towards the apartment building at 61 Cawston Drive), and that the rear seat passenger was standing outside the rear passenger side door of the Jimmy vehicle, reaching inside with both arms moving in an apparent effort to retrieve something from the vehicle, but also in a manner where his forearms could not be seen. In that regard: - Officer Lange’s testimony about the position of Ms Lundrigan is generally consistent with that of Sergeant Wilson – apart from relatively minor variations as to precisely where Ms Lundrigan may have been standing in relation to the driver’s door of the Jimmy vehicle. - Officer Lange’s testimony about the position and movements of the front seat passenger are consistent with her arriving on scene after that male already had exited the Jimmy vehicle, (as Officer Lange candidly could not say where that male had come from), but before he had walked more than a short distance from the Jimmy vehicle towards the rear of 45 Buckingham Drive. To the extent Sergeant Wilson suggested that the front seat passenger may have exited the Jimmy vehicle after Officer Lange’s arrival on scene, (by as much as two minutes), I prefer the testimony of Officer Lange that the male in question already was out of the vehicle and already walking away at the time of her arrival. Officer Lange otherwise certainly would have seen and known where the walking male had come from. - Although Officer Lange had a definite recollection of seeing the Jimmy’s rear seat passenger standing outside the vehicle and reaching inside for something, for several reasons I believe she is mistaken in her recollection insofar as she believed that such things may have happened between the time of her arrival on scene and Sergeant Wilson’s temporary departure from the area of the Jimmy to follow the Jimmy’s front seat passenger. Without limiting the generality of the foregoing: - At the time of Officer Lange’s arrival, Sergeant Wilson had been alone with the Jimmy vehicle and its occupants for several minutes, during which he had been keenly focused on the position and movements of those occupants. - In particular, Sergeant Wilson repeatedly emphasized, in his voir dire testimony, various officer safety considerations that were at the forefront of his mind as he waited for other officers to arrive on scene. Those considerations included very pronounced concerns about the behavior being exhibited by the Jimmy’s two male passengers to conceal their identities, and about what the rear seat passenger may have been turning and reaching to retrieve from the cargo area of the vehicle at the time of Sergeant Wilson’s initial approach and closer observations. - In the result, Sergeant Wilson provided detailed testimony about such observations, and the steps he took to speak with Ms Lundrigan slightly away from the Jimmy vehicle, from a position where he was still able to keep an eye on what the two male passengers were doing inside the vehicle. - In such circumstances, I think Sergeant Wilson certainly would have noted at the time, and emphasized during the course of his testimony, if all three occupants of the vehicle had exited the vehicle prior to Officer Lange’s arrival, and/or if the rear seat passenger had once again then reached into the vehicle in a manner that made it unclear whether he might be reaching for a weapon. I definitely do not think Sergeant Wilson would have allowed such behavior to go unnoticed and unchallenged until Officer Lange arrived, exited her vehicle, and instructed the rear seat passenger to stop what he was doing. - As described in greater detail below, Sergeant Wilson also was intensely focused on trying to determine the identity of the Jimmy’s male occupants, who were making considerable efforts to conceal their faces while still in the vehicle. Such efforts included Sergeant Wilson taking immediate steps to follow the front seat passenger as soon as he got out of the Jimmy to walk away, (in order to catch up and shine a flashlight in that passenger’s face as soon as possible), and Sergeant Wilson’s later efforts to follow the rear seat passenger into the lobby of 45 Buckingham Drive, (to make a visual identification by walking up to that male), as soon as he learned, on returning to the Jimmy, that the rear seat passenger had gone into that building. In such circumstances, I think it unrealistic to think Sergeant Wilson would not have made earlier efforts to shine his flashlight into the face of the rear seat passenger if that male had exited the Jimmy, and stood for a time near its rear passenger door, while Sergeant Wilson was still present and standing nearby on the same side of the vehicle. - In my view, the inference that the rear seat passenger was still inside the Jimmy and not reaching into its rear window, when Sergeant Wilson left to follow the front seat passenger, is buttressed by Sergeant Wilson’s willingness to leave Officer Lange alone at the scene. (Officer safety concerns at that point were considerably reduced while the rear seat passenger remained inside the Jimmy.) The inference is also supported by the fact that Sergeant Wilson’s contemporaneous comments to Officer Lange, before temporarily leaving the scene, were limited to an indication that he wanted Officer Lange to remain with the vehicle while he followed the front seat passenger. At that point, had the rear seat passenger also exhibited indications of an intention to leave the scene, (e.g., by engaging in the actions described by Officer Lange), I think Sergeant Wilson’s comments almost certainly would have addressed the rear seat passenger as well. - Officer Lange indicated that, when she made her observations of the rear passenger reaching into the Jimmy vehicle, her view of what the male may have been doing and/or reaching for was obstructed in part by the relevant rear passenger door on the driver’s side of the Jimmy vehicle. As Officer Lange had driven her vehicle up behind the Jimmy vehicle, the relevant rear passenger door of the Jimmy vehicle self-evidently would not have blocked her view of what the rear seat passenger was doing reaching into the vehicle at the time of her arrival. Those noted movements of the rear seat passenger accordingly must have occurred at some point after Officer Lange’s arrival; i.e., after Officer Lange had pulled to a stop behind the Jimmy, exited her police vehicle, and taken up a position forward of the Jimmy’s rear passenger door, on its driver’s side. Indeed, such realities strongly suggest that, after arriving on scene, Officer Lange had approached and taken up the position where Sergeant Wilson previously had been standing with Ms Lundrigan, outside the vehicle, before Sergeant Wilson left to follow the front seat passenger. In my view, all of that is quite consistent with Officer Lange approaching Sergeant Wilson and Ms Lundrigan to see what was happening, and obtain instructions, before Sergeant Wilson then left Officer Lange in that position to follow the front seat passenger, after which the rear passenger then exited the vehicle. - Finally, Officer Lange’s personal notes, prepared shortly after the events in question, indicate an observation of the rear seat passenger standing outside the vehicle after Sergeant Wilson had left the scene on foot to follow the departing male, leaving Officer Lange to remain with the vehicle. [^16]: That was Sergeant Wilson’s testimony, which I accept. For her part, Officer Lange had no recollection of Sergeant Wilson articulating any desire for her to maintain continuity over the Jimmy vehicle, although she drew that inference in the circumstances. [^17]: For the following reasons, I find that, during the course of events on the morning in question, Sergeant Wilson never advised Officer Lange that the female driver had identified herself as Tracy Lundrigan, or that he was not yet satisfied as to Ms Lundrigan’s identity, but that Officer Lange independently recognized Ms Lundrigan and somehow recalled her name while still at the scene of the traffic stop, (probably through speaking with Ms Lundrigan while waiting for Sergeant Wilson to return), although that also was not conveyed by Officer Lange to Sergeant Wilson: - In cross-examination, Sergeant Wilson acknowledged that he had no memory of “verbalizing” Ms Lundrigan’s name to Officer Lange in the very short time between Officer Lange’s arrival on scene and Sergeant Wilson leaving the scene to follow the Jimmy’s front seat passenger. Nor did anything in Sergeant Wilson’s testimony indicate or suggest that he ever provided Officer Lange, at any time during that morning’s events, with any indication that the female driver had identified herself as Tracy Lundrigan, or that Sergeant Wilson had any concerns about the female driver’s identity. More generally, nothing in Sergeant Wilson’s testimony suggested any conversation whatsoever with Officer Lange about the female driver’s name or identity, or need to follow up on whether or not she was a licenced driver. - In her testimony, Officer Lange independently testified that she too had no recollection of Sergeant Wilson providing her with any names before he left the scene temporarily to follow the male who had walked away from the area, towards the rear of 45 Buckingham Drive. More generally, Officer Lange’s testimony contained no indication or suggestion that she and Sergeant Wilson had any conversation about the female driver’s name or identity, or any need to follow up on whether or not she was a licenced driver. To the contrary, Officer Lange indicated that, at the time, she simply had no knowledge about whether or not Sergeant Wilson was satisfied as to the female driver’s identity. - In her testimony, Officer Lange nevertheless did candidly indicate that, upon her arrival at the scene, she recalled having dealt with the female driver of the Jimmy vehicle at some point in the past; i.e., during Officer Lange’s policing career. In that regard, Officer Lange could not recall, (at the time of the events in question or during her voir dire testimony), when that prior interaction had occurred. Nor could Officer Lange recall whether, (in addition to immediately recognizing Ms Lundrigan), she immediately had recalled Ms Lundrigan’s name. (In that regard, Officer Lange acknowledged that the notes she prepared after the fact refer to Ms Lundrigan by name from the outset of their narrative, without any suggestion of Ms Lundrigan not being identified until later, while the same notes include an express indication, in relation to Mr Kerr, that he was “identified later” as Nikolas Kerr. However, Officer Lange also emphasized, and I accept, that the wording of her notes in that regard was not meant to indicate or reflect any immediate recognition of Ms Lundrigan by Officer Lange from the outset – although Officer Lange also emphasized that it was possible that she had immediately recognized Ms Lundrigan. Preparing her notes after the fact, at a time when Officer Lange knew the identity of all those involved in the incident, (and had obtained additional information after the fact, such as dates of birth available through CPIC records), Officer Lange instead had included a deliberate additional reference to a passenger “later identified” as Nikolas Kerr – without any similar indication in relation to Ms Lundrigan – in an effort to provide additional context for the specific measures taken that morning to stop and seek identification from Nikolas Kerr after he walked away from the Jimmy vehicle; i.e., to highlight that there had been an initial discrepancy between police thinking that the individual might be Clint Kerr, and the individual turning out to be Nikolas Kerr. In my view, that explanation was consistent with Officer Lange making reference to “David Jacobs” from the outset of the narrative provided by her notes, (in a manner similar to the notes using Ms Lundrigan’s name from the outset), even though Officer Lange had no information, at the time of her arrival on scene, as to the identity of the front seat passenger. - However, Officer Lange was able to confirm, (in her preliminary hearing testimony, acknowledged and accepted during the course of voir dire cross-examination), that she was satisfied, while still at the scene of the traffic stop, that she was dealing with Tracy Lundrigan. Officer Lange could not recall, with certainty, precisely when or how that realization had occurred. However, once her memory had been refreshed by her testimony at the preliminary hearing, Officer Lange was certain that realization had occurred while she was still on scene at the traffic stop. - In my view, there was nothing in the evidence to suggest that Officer Lange consciously withheld her recognition of Ms Lundrigan and recollection of Ms Lundrigan’s name from Sergeant Wilson. At the time of the events underlying this proceeding, Officer Lange simply had not been provided with any indication that Ms Lundrigan’s identity was in question. [^18]: In his notes, and during his voir dire cross-examination testimony, Sergeant Wilson indicated that he had been dealing intermittently with Mr Jacobs since Mr Jacobs was 14 years old. [^19]: In cross-examination, Sergeant Wilson confirmed that those events happened very quickly, with Mr Jacobs having reached and entered the apartment building at 61 Cawston Drive within 60 seconds of his being identified by Sergeant Wilson. [^20]: In response to questions posed during the course of cross-examination, Sergeant Wilson confirmed that Mr Jacobs eventually was arrested and charged with offences stemming from the events of that morning. However, Sergeant was not involved in the laying of those charges, and was not aware of their outcome. [^21]: Sergeant Wilson confirmed in his voir dire testimony that he had no further dealings with Mr Jacobs that day. [^22]: In the course of his testimony, Officer Otten detailed his movements, information and observations between the time of receiving Sergeant Wilson’s call for assistance and arriving on scene. Those details included the following: - As he was driving towards 45 Buckingham Drive, Officer Otten progressively heard further radio transmissions, (described above), indicating that Officer Lange had arrived on scene, that one of the stopped vehicle’s male passengers had left the scene with Sergeant Wilson actively following on foot, and Sergeant Wilson’s indication that the male passenger was David Jacobs. - The initial radio transmission confirming the involvement of Mr Jacobs at the scene immediately elevated Officer Otten’s concern for the safety of officers at the scene. In particular, in addition to having past knowledge and experience indicating that Mr Jacobs had prior involvement in drug trafficking and other criminal activity, Officer Otten had conducted a traffic stop earlier that month involving Mr Jacobs; a traffic stop initiated because Officer Otten saw Mr Jacobs driving, and was aware that the driver’s licence of Mr Jacobs had been suspended. During that traffic stop, Mr Jacobs had acted in what Officer Otten described as an “unbelievably confrontational” manner; e.g., with Mr Jacobs immediately exiting and determinedly walking away from the vehicle he had been driving, while repeatedly refusing to comply with Officer Otten’s requests that he stop and provide a driver’s licence and identification as requested by the officer. That incident eventually had ended with compliance by Mr Jacobs, but only after a non-physical verbal confrontation between Officer Otten and Mr Jacobs that had stopped just short of Mr Jacobs being placed under arrest. - In the result, Officer Otten deliberately “stepped up” his pace of travel to the location of the traffic stop, with a view to providing Sergeant Wilson and Officer Lange with assistance as soon as possible. While doing so, Officer Otten also heard the further radio transmission indicating that Mr Jacobs was subject to an 11:00pm curfew. Given the time of day, and the earlier radio transmissions indicating the presence of Mr Jacobs in a vehicle and outside only a short time before, Officer Otten also realized immediately that Mr Jacobs was arrestable. - As Officer Otten approached the location of 45 Buckingham Drive in his vehicle, he could see the location of the traffic stop, (including Sergeant Wilson’s vehicle and Officer Lange), and that Officer Lange appeared to be “okay”. Upon confirming Officer Lange’s status, Officer Otten made an immediate “u-turn” and proceeded in his vehicle “around the short block” towards the parking area of 61 Cawston Drive; i.e., towards the apartment building where Sergeant Wilson had proceeded, according to the radio transmissions described above. - As he exited his vehicle in the parking lot of 61 Cawston Drive, Officer Otten could see Sergeant Wilson walking away from the west door of the apartment building there, and proceeding on foot “as the bird flies” towards 45 Buckingham Drive; a direction of travel that took Sergeant Wilson immediately past Officer Otten’s location at the time. [^23]: In the course of her testimony, Officer Lange confirmed that, while she could hear over the radio that other officers had arrived in the area, (including Officer Otten), no officers other than Sergeant Wilson attended at the location of the stopped Jimmy while she was dealing with its occupants. [^24]: Sergeant Wilson testified that, at the time, he knew that Clint Kerr, (like Mr Jacobs), had a criminal record involving acts of extreme violence. [^25]: Sergeant Wilson testified that his direct interaction with the rear seat passenger, in the lobby of 45 Buckingham Drive, lasted no more than 10 seconds. [^26]: In her testimony, Officer Lange confirmed that the time between Sergeant Wilson leaving to follow the rear seat passenger into the lobby of 45 Buckingham Drive and the time of Sergeant Wilson’s return to the Jimmy vehicle and Officer Lange was no more than a minute or two at most, during which time nothing or nothing memorable was said by Officer Lange to Ms Lundrigan or vice versa. [^27]: In their independent testimony, Officer Lange and Officer Otten each made it clear that was their firm inference from Sergeant Wilson requesting a records check for “Clint Kerr” in relation to the second male that was walking away from the traffic stop, and in my view the inference was reasonable and accurate in the circumstances. Without limiting the generality of the foregoing: - As emphasized by Officer Otten, Sergeant Wilson was a very experienced officer, and there was absolutely no reason to think he would have requested a records check, at the relevant time, in relation to someone having no connection or involvement in the events that were of immediate concern. - At the time Sergeant Wilson called in the records check on “Clint Kerr”, in relation to the second male who was walking away from the scene of the traffic stop, that male, (followed from the scene by Officer Lange), was the only person observed walking in the vicinity at that time of the morning. - Just a short time earlier, Sergeant Wilson had requested a similar name records check in relation to the first male, (i.e., David Jacobs), who had walked away from the scene of the traffic stop. In requesting a subsequent name records check in relation to the second male walking away from the scene of the traffic stop, it was implicit that Sergeant Wilson believed he had identified the second male as well. [^28]: Officer Otten nevertheless was not yet close enough to hear what Officer Lange was saying to the male. [^29]: In the course of their independent testimony, Officer Lange and Officer Otten each indicated, (albeit in slightly different ways), a belief that it was necessary and appropriate to proceed in that manner, in the circumstances, as she/he did not recognize the male she/he was dealing with, and had not had any prior dealings or interaction with Clint Kerr. (Each officer also testified that she/he had never dealt with Nikolas Kerr either.) Having regard to what they (in my view reasonably and accurately) interpreted as radio indications from Sergeant Kerr indicating that the Sergeant believed the male in question to be Clint Kerr, and information confirming the existence of an outstanding warrant for Clint Kerr’s arrest, Officer Lange and Officer Otten each thought it important to ask the rear passenger for formal identification; i.e., to confirm the rear passenger’s denial of being Clint Kerr. As for whether each officer considered the rear passenger to be detained while his identity was being confirmed: - In cross-examination, Officer Lange initially indicated that she did not regard her interaction with Mr Kerr at that point to be a formal detention. However, Officer Lange then acknowledged that, although Mr Kerr was not physically restrained, he effectively was detained for the limited purpose of confirming his identity; i.e., insofar as Mr Kerr, in the prevailing circumstances, would not have been allowed to leave without providing the police with acceptable documentation confirming his identity. That acknowledgment, during the voir dire, was consistent with the notes prepared by Officer Lange shortly after the events in question, indicating that, after Mr Kerr produced formal identification, (as described below), there was “no reason [to] hold [him] any further”. - In his testimony, Officer Otten readily confirmed, during the course of his testimony in chief, and again in cross-examination, that he considered Mr Kerr to have been detained briefly at that point for the purpose of confirming his identity. In particular, there was no question in Officer Otten’s mind that, in the prevailing circumstances, (e.g., an officer of Sergeant Wilson’s seniority and experience indicating a belief that the male was Clint Kerr and an outstanding warrant for Clint Kerr’s arrest), he would have arrested the rear passenger if the male had attempted to continue walking past him without providing identification. Officer Otten was very firm in saying that, in the circumstances, the male was “not going to get by” the officer without producing identification. [^30]: As each officer considered it extremely important in the circumstances to confirm that the male they were dealing with was not Clint Kerr, I also think each officer naturally would have wanted the other to examine the card; i.e., to confirm the first officer’s impression that the likeness depicted in the photograph on the relevant Ontario Health Card did match the appearance of the male who had produced the card, in turn supporting a conclusion that the male was indeed Nikolas Kerr and not Clint Kerr. [^31]: In his testimony, Officer indicated that he made that additional request, as per his usual practice in such circumstances where identification had been produced and he had never dealt with the person before. In her testimony, Officer Lange confirmed that Sergeant Wilson did not radio a request for a check of records relating to Nikolas Kerr. She simply was not asked about whether Officer Otten had done so. [^32]: In the course of his testimony, Officer Otten noted that was his usual practice in relation to any individual whom he had stopped for identification. Officer Otten also indicated, and I accept, that he probably returned the Ontario Heath Card to Nikolas Kerr after requesting the records check, that he thereafter engaged in idle “chit chat” with Mr Kerr before the results of that check then were received over the radio, (during which time he considered Mr Kerr free to walk away), and that Mr Kerr proceeded on his way after the results of the records check were received. [^33]: In his testimony, Officer Otten emphasized that he did not follow Mr Kerr in any way at the time, because he had no reason to do so. [^34]: Pursuant to s.2(1) of the CDSA, “possession” for purposes of the CDSA means “possession” within the meaning of s.4(3) of the Code. Pursuant to s.4(3) of the Code, where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [^35]: I note that, in the course of oral submissions, counsel for Ms Lundrigan conceded that, leaving aside the important issue of whether the initial traffic stop and continued detention of Ms Lundrigan was legitimate and lawful, and without conceding whether the circumstances were sufficient to establish Ms Lundrigan’s possession of the relevant bag and its contents beyond a reasonable doubt, the circumstances were such that Sergeant Wilson had reasonable and probable grounds to arrest Ms Lundrigan for possession of a controlled substance once it was established and/or accepted that Sergeant Wilson viewed and seized the bag and its contents from the location in which Sergeant Wilson said the bag and its contents were located. For his part, counsel for Mr Kerr did not really dispute such a view in his oral submissions, apart from arguing that I should not accept Sergeant Wilson’s testimony about the location of the bag and its contents, and the ability of the driver and rear seat passenger to access that location. [^36]: In that regard, Officer Otten, (who came to be aware of Ms Lundrigan’s name after the fact), could not remember with certainty whether or not Sergeant Wilson used Ms Lundrigan’s name over the radio at that time. However, he did have a firm recollection that Sergeant Wilson had used a police “10” code, (i.e., “10-92”), to indicate that a female was in custody, following a “plain view seizure” of a controlled substance. (Officer Otten explained, and I accept, that his inclusion of Ms Lundrigan’s name beside the word “female”, when preparing his notes, was not intended to indicate that Sergeant Wilson had used her name over the radio at the time; i.e., as opposed to Officer Otten simply including a reference note as to who the “female” referred to by Sergeant Wilson was, using information Officer Otten came to learn after the fact.) When Officer Otten was asked again about such matters, both in chief and during cross-examination, (e.g., as to whether he could recall Ms Lundrigan being identified by name as a person of interest or under arrest in relation to this matter, prior to Officer Otten’s discovery of Ms Lundrigan’s driver’s licence much later than morning), he candidly indicated that he had no recollection of that having occurred, while also noting that the name of the female driver was of no immediate value or importance to him personally, as he never attended at the traffic stop and had no dealings with the female driver detained and arrested there. Having regard to all the evidence, and for reasons that include the following, I find that Ms Lundrigan’s name actually was never mentioned in radio transmissions that evening: - In his evidence, Sergeant Wilson never mentioned doing so, and in my view he was reluctant to take that action at the time, as he was content to have the traffic stop and possibility of emerging evidence continue while Ms Lundrigan continued to search for her licence. - In her evidence, Officer Lange similarly could not recall Sergeant Wilson ever conveying Ms Lundrigan’s name over the radio, and Officer Lange herself did not do so as she was not asked to make inquiries in that regard. Officer Lange also had recognized Ms Lundrigan in any event. - Although Officer Otten indicated that Ms Lundrigan’s name would have been of no immediate use to him at the time, it was clear to me from the entirety of Officer Otten’s testimony that he actually was quite focused on radio transmissions during the course of events that morning, as they frequently represented his sole window into what was happening at locations he could not see from his location. He remembered, with great clarity, details of the radio transmissions relating to the names David Jacobs, Clint Kerr and Nikolas Kerr. I think he also would have remembered an express radio reference to Tracy Lundrigan, had that occurred. [^37]: In the course of cross-examination, Sergeant Wilson confirmed that he did not enter or examine the back seat or rear cargo/storage areas of the Jimmy vehicle. [^38]: Sergeant Wilson was sure that he had left Officer Lange at the scene, on his departure, to maintain continuity over the vehicle. However, Officer Lange was the only female officer on duty at the time, and accordingly would be needed to assist with further search procedures before Ms Lundrigan could be transferred into the custody of officers at Stratford Police Headquarters. As Officer Lange had no direct knowledge of how the vehicle eventually was towed, (apart from knowing that a tow service had been called), seems unlikely to have abandoned the Jimmy vehicle in the circumstances, and nevertheless was back at Stratford Police Headquarters a short time later to assist with further searches of Ms Lundrigan incident to arrest, the natural inference is that another officer appeared on scene to relieve Officer Lange and maintain custody over the Jimmy vehicle, so that Officer Lange could return to Stratford Police Headquarters as soon as possible. [^39]: Although Officer Lange provided such assistance, she did not participate in the arrest of Mr Kerr, or any searches of Mr Kerr incident to arrest. [^40]: Officer Otten did not go on to say why he had made no effort to examine the device in a manner similar to that done in relation to the Pro Windows Tablet, (described above), to determine its ownership. However, as noted above, Officer Otten personally had observed Mr Kerr holding and actively using the relevant cellular phone at the time of his arrest. In my view, the natural inference is that Officer Otten found those observations to be a sufficient basis for determining that the phone belonged to Mr Kerr. [^41]: In his testimony, Officer Otten emphasized that he thereafter turned off the device and made no further efforts to explore or examine the data on the device, as he knew that doing so raised privacy issues that would have to be addressed appropriately. At the time, Officer Otten felt that his immediate searching authority, in relation to the device, was limited to turning the device on to see if that would assist in determining its ownership. [^42]: In his testimony, Officer Otten indicated that he had been told, by Sergeant Wilson, that all the items being turned over to Officer Otten at 4:14am had been seized from the female driver of the vehicle. However, as noted above, the items were not taken from Ms Lundrigan or found on her person when she was searched incident to arrest. They were instead found within a vehicle that had been occupied by three persons. While Ms Lundrigan’s possession and/or ownership of the items in question may have been the inference drawn by Sergeant Wilson, (who then made a corresponding indication to Officer Otten of the person from whom the items had been seized), that determination may or may not be correct, and in my view is one of the issues to be addressed and decided in these proceedings. For present purposes, I think it more appropriate and sufficient to note that the items were located within the Jimmy vehicle, and where they were located. [^43]: At the time of his voir dire testimony, Officer Otten was not able to recall, without resorting to examination of the contemporaneous photographs he had taken during his searching of the purse, (which he was not asked to undertake), exactly where or how that driver’s licence had been located within the black purse. In particular, Officer Otten was unable to recall whether the driver’s licence had been found lying “loose” within the larger black purse, or if it had been contained within something else inside that black purse. While on the subject of the discovery of that driver’s licence, I also note the following: - In the course of his testimony, Sergeant Wilson confirmed that, throughout the course of the relevant morning’s events, he personally never found or saw any driver’s licence for Ms Lundrigan. - Sergeant Wilson also testified that, throughout his post-arrest interactions with Ms Lundrigan, he was not formally satisfied as to her true identity, as the driver’s licence she claimed to be in the police vehicle had not been located and produced. - Sergeant Wilson did indicate and acknowledge that he was informed later, by another officer, that a driver’s licence bearing Ms Lundrigan’s name and photo likeness had been found inside the shiny black strapped purse in which Ms Lundrigan had been searching. - At the time of the voir dire, Sergeant Wilson could not recall precisely when he heard that information, or the name of the officer who supplied him with that information. In that regard: - Sergeant Wilson initially indicated, during the course of his examination in chief, that he could not recall whether or not he had been told where the driver’s licence had been found. - During the course of cross-examination, however, Sergeant Wilson remembered being told that it had been found in the shiny black strapped purse, in which he had seen Ms Lundrigan searching for it. - Having regard to all the evidence, I accept that Sergeant Wilson did not learn of the location of the relevant driver’s licence until sometime after it was found by Officer Otten, while searching the black purse back at Stratford Police Headquarters, well after the traffic stop had concluded. I also infer that it was Officer Otten, as the exhibits officer, who informed Sergeant Wilson that the licence had been found. [^44]: In his testimony, Officer Otten made no mention of taking any steps to search the content of that device, even to the extent of turning it on in an effort to determine its ownership. Nor was he asked any questions about such matters. However, I think it reasonable to infer that Officer Otten took no such steps because of Sergeant Wilson’s indication that all of the items he turned over to Officer Otten had been seized from the female driver of the vehicle. [^45]: See R. v. Cobham, 1994 CanLII 69 (SCC), [1994] 3 S.C.R. 360, at p.372. [^46]: See Canada v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; and R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at paragraph 52. In practice, this means that, while the burden of establishing a violation of a Charter right generally is on the accused, the burden of persuasion shifts from the accused to the Crown in a case of warrantless search. In particular, once an accused has demonstrated that a search was a warrantless one, the Crown has the burden of showing that the search was reasonable, on a balance of probabilities. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at paragraph 22. [^47]: See R. v. Feeney, supra, at paragraph 46. [^48]: See R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at paragraph 33; R v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 (S.C.C.), at p.488; and R. v. Blazevic, [2010] O.J. No. 67 (S.C.J.) at paragraph 80. [^49]: See R. v. Rao, 1984 CanLII 2184 (ON CA), [1984] O.J. No. 3180 (C.A.), at paragraph 38. [^50]: See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at paragraphs 49, 56, and 61-62. [^51]: See Cloutier v. Langlois, supra, at paragraph 59; and R v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paragraphs 19-20 and 25. [^52]: See: R. v. Iaboni, [2003] O.J. No. 3805 (O.C.J.), at paragraphs 51 and 71; R v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 69 O.R. (3d) 481 (C.A.), at paragraph 28; R v. Cunsolo, [2008] O.J. No. 3743 (S.C.J.), at paragraph 102; and R. v. Williams, [2008] O.J. No. 4404 (S.C.J.), at paragraph 34. [^53]: The principles set forth in this paragraph are drawn from Fontana & Keeshan, The Law of Search and Seizure in Canada, (7th ed.), at pp.551-552, and supported by the authorities cited therein. [^54]: See: R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49, at paragraph 20; and R. v. Clayton, 2007 SCC 32, [2007] S.C.J. No. 32, at paragraphs 20-21. [^55]: See: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paragraphs 55 and 57; and R. v. Jarrett, [2011] O.J. No. 5330 (S.C.J.), at paragraphs 16 and 18. [^56]: See R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paragraph 45, and R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225 (S.C.J.), at paragraph 83(3). [^57]: See R. v. Storrey, [1990] 1. S.C.R. 241 at paragraph 17; R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at para. 51; R. v. Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (C.A.), at paragraph 22; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at paragraph 26; and R. v. Loewen, 2010 ABCA 255, [2010] A.J. No. 980 (C.A.), at paragraph 18, affirmed 2011 SCC 21, [2011] S.C.J. No. 100. [^58]: See: R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (C.A.), at paragraphs 52-54, affirmed 2011 SCC 32, [2011] S.C.J. No. 32; R. v. Chehil, supra, at paragraphs 29 and 62; and R. v. Amare, supra, at paragraph 83(7). [^59]: See R v. Luong, 2010 BCCA 158, [2010] B.C.J. No. 918 (C.A.); R. v. Biccum, [2012] A.J. No. 234 (C.A.), at paragraph 21; R. v. Chehil, supra, at paragraph 47; R. v. Amare, supra, at paragraph 83(3). [^60]: See: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.), at paragraph 4; R. v. Juan, 2007 BCCA 351, [2007] B.C.J. No. 1402 (C.A.), at paragraph 27; R v. Cunsolo, supra