Court File and Parties

COURT FILE NO.: CR-18-1040

DATE: 2019-04-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NATHAN MITCHELL

COUNSEL:

Mr. Robert Levan, for the Crown

Ms. Alexandra Mamo, for the Accused

HEARD: February 27, March 1, and March 11, 2019

RULING ON Charter application

STRIBOPOULOS J.:

Introduction

[1] Mr. Mitchell faces a variety of criminal charges relating to his possession of a loaded handgun. As the designated case management judge, this is my decision on Mr. Mitchell’s Charter application in which he seeks to exclude from evidence at his trial both the gun and any testimony regarding its discovery.

[2] Shortly after midnight on Thursday, March 23, 2017, Police Constable Darrell Corona stopped Mr. Mitchell after his vehicle exited the parking lot of a Mississauga strip club. At the roadside, the officer spoke with Mr. Mitchell while shining a flashlight into the passenger compartment of his car. The officer observed a handgun on the floor of the vehicle near Mr. Mitchell’s feet. He immediately arrested Mr. Mitchell and his girlfriend (Ms. Tran), who was seated in the front passenger seat.

[3] During his testimony on this application, Mr. Mitchell acknowledged a prior criminal record from September 2018 that includes two convictions for trafficking in a controlled substance. He was on bail for those charges in March 2017. Mr. Mitchell also admitted that for about three to four years before his arrest on the charges he currently faces, he was selling cocaine and carrying a handgun. He testified that the firearm was for his protection because of the dangers inherent in the drug trade.

[4] On this Charter application, the critical factual issue is the reason why P.C. Corona stopped Mr. Mitchell’s vehicle. There is conflicting evidence before the court on that question. P.C. Corona maintains that his only reason for carrying out the traffic stop was because the vehicle was driving without its headlights turned on. In contrast, Mr. Mitchell insists that his vehicle’s lights were functioning and turned on before the vehicle stop.

[5] These reasons will proceed in four parts. First, I will briefly set out the positions of the parties. Second, I will detail the conflicting evidence on the application. Third, I will analyze the evidence and summarize the court's findings based on that evidence. Finally, I will explain the governing principles and apply them to the court's findings.

I. Positions of the Parties

[6] The parties urge very different findings regarding P.C. Corona’s reason for detaining Mr. Mitchell. The Crown submits that the court should accept P.C. Corona’s evidence. It argues that the officer's only reason for the stop was that he observed a traffic offence: see Highway Traffic Act, R.S.O. 1990, c. H.8, s. 62(1). In contrast, the defence submits that the court should prefer Mr. Mitchell’s evidence. It argues that P.C. Corona essentially carried out an investigative detention without any supporting grounds.

[7] If the court prefers Mr. Mitchell’s evidence, the defence claims a violation of a number of his Charter rights. First, it argues that because Mr. Mitchell was stopped without lawful authority, his s. 9 Charter right not to be arbitrary detained was violated. Second, it contends that P.C. Corona’s failure to immediately inform Mr. Mitchell of the reason for his detention violated his s. 10(a) Charter right. Third, it submits that the use of a flashlight to probe the interior of the car during an unlawful detention also resulted in an unlawful intrusion upon Mr. Mitchell’s reasonable expectation of privacy and violated his s. 8 Charter right to be secure against unreasonable search or seizure. Finally, the defence argues for exclusion of the handgun and any testimony regarding its discovery under s. 24(2) of the Charter. It contends that the admission of this evidence, in all the circumstances, would bring the administration of justice into disrepute.

[8] If the court prefers P.C. Corona’s evidence, the Crown submits that Mr. Mitchell’s Charter application should be dismissed. On P.C. Corona’s account, this was a lawful motor vehicle stop precipitated by Mr. Mitchell committing a traffic offence. It follows that the detention was not arbitrary. In these circumstances, the use of a flashlight to look inside the car was not a “search.” Further, while the Crown acknowledges that P.C. Corona did not inform Mr. Mitchell of the reason for his detention, it argues that events at the roadside unfolded far too quickly for the officer to fulfill this constitutional obligation. Consequently, there was no violation of s. 10(a) of the Charter because there was no opportunity to comply. Alternatively, even assuming a Charter breach, the Crown argues that in all of the circumstances the admission of the evidence would not bring the administration of justice into disrepute.

II. Evidence on the Application

[9] Three witnesses testified on this application, P.C. Corona, Mr. Mitchell, and Ms. Tran. Although there were some similarities in their respective accounts, there are also some material differences between them. A review of the evidence, especially where it conflicts, is essential to understanding the court’s ultimate credibility findings on this application.

(a) P.C. Corona’s reasons for attending the Locomotion parking lot

[10] Locomotion is a strip club located at 2325 Matheson Boulevard East in the City of Mississauga. Matheson runs east/west, just south and parallel to Highway 401. Locomotion is located at the southeast corner of Matheson and Satellite Drive, which runs north/south. There is a large parking lot on the south side of Locomotion, with smaller adjoining parking lots on its east, west and north sides. The parking lots are accessible by two driveways, one on Matheson to the east of the club and the other on Satellite to the south.

[11] On the evening in question, P.C. Corona was assigned to general uniform patrol in a marked police cruiser. The officer testified to attending at Locomotion’s parking lot to engage in “proactive patrol” because the location is known to police for both criminal and provincial offences. He listed prostitution, human trafficking, firearms, drugs, trespass offences, liquor offences, sobriety checks and Highway Traffic Act offences, as all being a focus of concern. More generally, the officer described his purpose as being to show a police presence in the area to ensure the safety of the public.

[12] The officer had only a limited recollection of his activities in the parking lot. He could not remember how long he was there before Mr. Mitchell arrived; his best estimate was twenty minutes. Nor could he remember how full the parking lot was that evening, explaining that he had been there on many occasions. Further, he could not remember if very many vehicles came and went while he was in the parking lot.

[13] P.C. Corona’s only clear recollection was that he was in the parking lot conducting queries on the license plates of vehicles. These checks would disclose if a vehicle was stolen, if the plate corresponded to the vehicle, the name of the registered vehicle owner, and if the owner had outstanding charges.

[14] During cross-examination, P.C. Corona acknowledged that neither in his notes nor his testimony at the preliminary inquiry did he make any reference to enforcing the Highway Traffic Act as one of his purposes for attending the Locomotion parking lot. He also acknowledged attending the Locomotion parking out of concern for more serious offences.

(b) Conflicting evidence regarding events in the parking lot

[15] In March 2017, Ms. Tran was working as a dancer at the Locomotion strip club. She and Mr. Mitchell were in a relationship. Only a short time earlier the couple began living together in Mississauga. At the time, Mr. Michell’s bail conditions required him to live with his aunt in Whitby. That evening, while driving on the highway to meet a friend in Scarborough, Mr. Mitchell received a text from Ms. Tran. She told him she had finished work early and wanted him to pick her up. He responded by exiting the highway and driving to Locomotion.

[16] P.C. Corona testified he first observed Mr. Mitchell’s vehicle, a silver 2016 Volkswagen Golf, as it entered the Locomotion parking lot from the driveway on Satellite. The officer was unable to indicate where he was located in the parking lot when he first saw the vehicle. When shown a Google map with an aerial view of the area and asked to mark his location when he first saw Mr. Mitchell’s car, P.C. Corona circled a large area encompassing almost the entire parking lot on the south side of the building.

[17] In contrast, Mr. Mitchell testified that he entered the Locomotion parking lot from the driveway on Matheson. This is consistent with him exiting the 401 eastbound at Renforth Drive. However, Mr. Mitchell was unsure where he exited the highway, explaining that he grew up in Pickering, had only recently moved to Mississauga, was unfamiliar with the area, and was using GPS to navigate his route.

[18] According to Mr. Mitchell, after entering off of Matheson, he drove through the parking lot on the south side of the building and towards the front entrance of Locomotion at the west side of the building. As he drove towards the entrance, Mr. Mitchell testified to noticing a marked police cruiser parked in the southwest corner of the parking lot and facing towards the club’s entrance.

[19] Mr. Mitchell testified that as he made the right turn from the parking lot on the south side of the club towards the front entrance, he took the loaded handgun from his waistband and placed it under his seat. He explained doing this out of concern the police officer might stop him. According to Mr. Mitchell, as he pulled up to the front entrance, in his rear-view mirror, he could see the police cruiser’s headlights turn on.

[20] Ms. Tran testified that she was standing outside the front entrance of the club for a few minutes waiting for Mr. Mitchell. She testified that while she waited, she noticed a police car parked at the curb just to the south of the club’s front entrance. She marked the location on a map, placing it even closer to the entrance than described by Mr. Mitchell. Eventually, she saw Mr. Mitchell pull up from her left; she had no idea which driveway he used to enter the parking lot.

[21] The description of the police cruiser’s location in the parking lot provided by both Ms. Tran and Mr. Mitchell placed the vehicle to the southwest of the club’s front entrance. On the description of either witness, P.C. Corona would have had a clear view of the club’s front entrance as Ms. Tran entered Mr. Michell’s vehicle.

[22] Once she was in the car, both Mr. Mitchell and Ms. Tran testified that they drove around the building and through the parking lot on its north side before exiting onto Matheson. As they started driving away from the club’s front entrance, both testified that the police cruiser immediately began following directly behind them. It continued to follow them as they turned onto Matheson.

[23] The evidence of P.C. Corona differs from that of Mr. Mitchell and Ms. Tran. He testified that after he saw Mr. Mitchell’s vehicle enter the parking lot from the driveway on Satellite, he lost sight of it as it drove around to the west side of the building and towards the entrance of the club. He denied having any opportunity to observe the occupants of the vehicle in the parking lot.

[24] P.C. Corona testified that a short time later he observed the same vehicle emerge from around the north side of the building before exiting onto Matheson. He was unable to remember whether he remained stationary or was driving around the parking lot between the first and second sighting of Mr. Mitchell’s car.

[25] The officer could also not remember where he was located in the parking lot when he saw Mr. Mitchell’s vehicle on the second occasion. Asked to mark his location when he observed Mr. Mitchell’s vehicle the second time, P.C. Corona drew an even larger circle on the Google map that encompassed a sizeable portion of the parking lot to the east of the building and a part of the parking lot to the north.

[26] P.C. Corona denied following behind Mr. Mitchell’s vehicle as it pulled away from the front entrance of the club, as both Mr. Mitchell and Ms. Tran claimed in their testimony.

(c) Conflicting evidence regarding the headlights

[27] P.C. Corona testified that when he first observed Mr. Mitchell’s vehicle enter the parking lot from the driveway on Satellite, its headlights were turned on. The officer specifically referenced the glare from the car’s headlights as the reason why he was unable to observe the vehicle’s occupants when he first saw it enter the parking lot.

[28] A short time later, P.C. Corona testified to seeing Mr. Mitchell’s vehicle emerge from the north side of the building and head out onto Matheson, where it turned right and headed east. On this second occasion, he testified that he did not, “observe any headlights to be utilized”.

[29] Asked if the vehicle’s daytime running lights were operating, P.C. Corona could not remember. His direct testimony was that he did not observe any light emanating from the front of the vehicle. During cross-examination, he added that he believed the car’s taillights were on when he saw it on the second occasion and observed that it was operating without headlights.

[30] Mr. Mitchell testified that in the period preceding the traffic stop, his headlights were working properly and turned on. He claimed one-hundred percent confidence in this. Mr. Mitchell testified to being conscientious about promptly correcting any issues relating to his vehicle’s lighting, given that he was involved in illegal activity at that time and wanted to avoid police attention.

[31] For example, he described replacing a burnt-out bulb for either a headlight or taillight on the vehicle just a short time before being stopped by P.C. Corona. An invoice produced by Mr. Mitchell during his testimony suggests that on March 15, 2017, a “miniature bulb” was replaced on his vehicle.

[32] Mr. Mitchell testified that when he pulled up to the front entrance of the club and as Ms. Tran entered the car, he kept his vehicle running. He claimed that the headlights on the vehicle came on automatically and he insisted that he did not turn them off at any point before he was pulled over.

[33] During her testimony, Ms. Tran was unable to say whether or not the headlights of Mr. Mitchell’s vehicle were activated that evening. She explained that she does not drive and that this is not the sort of thing she would notice.

(d) Following the vehicle, querying its license plate and signalling it to stop

[34] After Mr. Mitchell’s vehicle exited onto Matheson, P.C. Corona followed as it travelled eastbound. The officer could not remember whether he simply followed behind the vehicle and then signalled for it to stop, or if he first pulled next to it before falling back and signalling for it to pull over.

[35] The officer described this second manoeuvre, known as a “combination stop,” as something he was trained to do and his usual practice when conducting traffic stops. He explained that this manoeuvre allows a police officer to identify a driver before signalling them to stop, in case the driver takes flight. P.C. Corona was unable to remember whether he used a combination stop on this specific occasion.

[36] In contrast, both Mr. Mitchell and Ms. Tran testified that the police cruiser followed them a short distance before pulling up right next to them. Mr. Mitchell testified that he looked over towards the police cruiser when it was driving next to him and that the officer was looking directly at him. The police cruiser then fell back behind them and signalled for them to stop by activating its police lights.

[37] Although P.C. Corona could not remember if he pulled up next to the vehicle before signalling for it to stop, he did remember querying the vehicle’s license plate as he followed it east along Matheson. He made the query at 12:08 a.m. From this, P.C. Corona learned that the registered owner of the vehicle was a car rental company.

[38] During cross-examination, P.C. Corona testified that the “criminal element” sometimes uses rental cars. He testified that people who are facing charges and subject to bail conditions will drive rental vehicles to conceal their bail status if police query their license plate. According to Mr. Mitchell, this was the very reason he was driving a rental car at that time.

[39] After receiving the results of the license plate query on Mr. Mitchell’s vehicle, P.C. Corona testified that he activated his police lights to signal for the car to stop. Mr. Mitchell responded by immediately pulling to the curb and coming to an abrupt halt.

[40] P.C. Corona testified that the traffic stop took place on Matheson about 300 to 500 metres east of the Locomotion parking lot driveway and just east of Orbiter Drive. He testified that his only reason for stopping Mr. Mitchell’s vehicle was because it was operating without headlights. The officer knew this was an offence under s. 62(1) of the Highway Traffic Act.

(e) Failure to radio police dispatch about the traffic stop

[41] After stopping the vehicle but before approaching it, P.C. Corona did not radio police dispatch to advise them of the traffic stop. He described this as a serious mistake and a departure from the normal police procedure.

[42] By way of explanation, P.C. Corona testified to his guard being down because the vehicle stopped abruptly and because he believed he was only dealing with a routine traffic stop. In hindsight, given that the situation ultimately involved a loaded firearm, P.C. Corona testified that he very much regretted his mistake.

[43] During cross-examination, P.C. Corona denied failing to advise dispatch that he had carried out a traffic stop due to a Highway Traffic Act violation because there was no such violation about which to inform them. He testified that even when radioing in a traffic stop, police practice would be to advise dispatch of the stop and its location, and not provide the reason for carrying it out.

(f) The interaction at the roadside and the discovery of the handgun

[44] After Mr. Mitchell stopped his vehicle, P.C. Corona stopped his police cruiser right behind him. The officer immediately exited his cruiser and approached the driver’s side of the vehicle. Mr. Mitchell was seated in the driver’s seat, with Ms. Tran in the front passenger seat. The officer maintained that this was the first time he saw the occupants of the vehicle. He could not remember if, at this point, he made any observations regarding the headlights on Mr. Mitchell’s vehicle.

[45] In direct-examination, when asked to recount what happened when he first approached the car, P.C. Corona testified that he said to Mr. Mitchell: “Hey, what’s going on man?” The officer acknowledged that there might have been more conversation after that but testified that he was unable to remember the details beyond Mr. Mitchell making some reference to picking-up Ms. Tran.

[46] Mr. Mitchell testified that after he rolled his down his window, the officer said something like, “What’s up, man” and then asked, “What are you doing here?” To which Mr. Mitchell responded, “I am here to pick up my girlfriend.” According to Mr. Mitchell, the officer then asked him for his license, vehicle registration and insurance. Although the officer was unable to remember asking for these documents, he conceded that it was possible he did.

[47] Mr. Mitchell testified that P.C. Corona never told him why he pulled him over and never made any mention of his headlights. According to P.C. Corona, during a traffic stop he usually begins the interaction by greeting the driver and introducing himself, before then explaining the reason for the stop and then asking the driver to produce their license, vehicle registration and proof of insurance. He noted that if the vehicle is a rental, he will also ask to see a copy of the rental agreement. P.C. Corona testified that he never had an opportunity to do any of these things because events unfolded very quickly after he approached the vehicle.

[48] Ms. Tran offered limited testimony regarding events at the roadside. She did not remember the police officer saying anything about why he had pulled them over. All she recalled was the officer making some mention of the fact that the car was a rental. During cross-examination, she conceded that the officer might have also said, “What’s going on man?” According to her, after there was mention of paperwork for the vehicle, Mr. Mitchell leaned over to the glove compartment to retrieve the vehicle’s documents. After doing so, just as he began sitting upright, Ms. Tran testified that the officer was pointing his firearm at him and saying something about a gun.

[49] The officer testified that as Mr. Mitchell was referring to picking up Ms. Tran, he moved the beam from his flashlight in her direction. As he did so, the flashlight illuminated the interior of the vehicle. Through his peripheral vision, the officer glimpsed a handgun on the floor between Mr. Mitchell’s feet. He immediately re-directed the light from his flashlight towards the handgun. According to P.C. Corona, he saw the handgun within seconds of greeting Mr. Mitchell.

[50] At this moment, P.C. Corona testified that everything seemed to slow down. He noticed Mr. Mitchell tense up. The officer believed Mr. Mitchell might be moving forward to grab the gun. In retrospect, he conceded that Mr. Mitchell might have simply leaned forward to see what the officer was looking at. The officer responded by immediately drawing his firearm, pointing it at Mr. Mitchell, and directing him not to move. Mr. Mitchell testified that the officer placed the end of the barrel of his firearm against his head, but P.C. Corona denied this. The officer told both Mr. Mitchell and Ms. Tran to place their hands on their heads; they both complied.

[51] It was at this point that P.C. Corona first radioed police dispatch. He did so from the portable police radio he was carrying. The radio call took place at 12:10 a.m. The parties agreed to make that recording an exhibit. In it, P.C. Corona advises the dispatcher that he has recovered a firearm and has one person in custody.

[52] After this, P.C. Corona issued various commands to Mr. Mitchell and Ms. Tran. They were both eventually taken into custody and placed under arrest. P.C. Corona ultimately examined the handgun to make it safe. Although the gun did not have any rounds in its chamber, there was ammunition inside the firearm’s magazine.

(g) Gaps in P.C. Corona’s memory

[53] At several points during his testimony, P.C. Corona explained various gaps in his memory by referring to the traumatic nature of this incident. The officer suggested that he was unable to remember certain details because of how he came to discover the handgun and the grave danger he faced in the circumstances. The officer strongly denied tailoring his evidence to avoid a finding by the court that he saw Mr. Mitchell, who is Black, before stopping him.

[54] Defence counsel cross-examined P.C. Corona regarding his involvement in another traffic stop, which occurred about a month before the one involving Mr. Mitchell: see R. v. Jama, 2018 ONCJ 730. In that case, P.C. Corona stopped another Black motorist who was driving a rental vehicle for an alleged traffic violation. A search of that driver’s vehicle also resulted in the seizure of a handgun, as well as some drugs.

[55] P.C. Corona acknowledged reviewing the court’s decision in Jama. He agreed that the decision suggested that the driver’s race may have played a role in his decision to carry out the traffic stop. He also acknowledged reading a newspaper article in the Toronto Star about the case that emphasized the potential improper influence of race in that investigation. The officer admitted being upset by the suggestion that race influenced his decision to stop Mr. Jama. The officer steadfastly denied that the Jama decision, or the newspaper coverage it received, in any way influenced his testimony on this application.

III. Analysis of the Evidence and Findings

[56] The critical factual issue on this application is P.C. Corona’s reason for directing Mr. Mitchell to stop his vehicle. Did the officer carry out the traffic stop, as he claims, because Mr. Mitchell was driving without his headlights turned on, or were the lights on, as Mr. Mitchell insists? Only P.C. Corona and Mr. Mitchell provided direct evidence on this question. Accordingly, a careful assessment of their accounts is essential to the court’s decision on this application.

[57] There are readily apparent reasons to approach Mr. Mitchell’s evidence with caution. In his direct testimony, he acknowledged two prior convictions for drug trafficking and also admitted that he was selling drugs and carrying a loaded handgun at the time of his arrest. The criminal antecedents of a witness are relevant to assessing their credibility; this includes the evidence of an accused person: see R. v. Corbett, [1988] 1 S.C.R. 670, at p. 685. Mr. Mitchell also has a clear motive to falsely claim that his headlights were on. Establishing this is essential to his effort to exclude the evidence against him in a prosecution in which he faces serious criminal charges: see R. v. Laboucan, 2010 SCC 12, [2012] 1 S.C.R. 397, at paras. 11-16.

[58] Character and motive are but two relevant factors in assessing credibility; neither is necessarily determinative. Experience demonstrates that a person of bad character who has reason to lie may be telling the truth, while a person of good character with no apparent motive to lie may give false testimony. Ultimately, credibility assessments are “more of an ‘art than a science’”: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 128. They are not amenable to determination based on any fixed rules: see R. v. C. (R.) (1992), 49 Q.A.C. 37 (C.A.), at para. 16, Rothman J.A. dissenting, adopted by [1993] 2 S.C.R. 226. In R. v. D.D.S, 2006 NSCA 34, at para. 77, Saunders J.A. succinctly summed up the reality of how triers of fact must make credibility decisions:

Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together by seasoned judicial stirring will yield proof of veracity. Human nature, common sense and life's experience are indispensable when assessing creditworthiness, but they cannot be the only guide posts. Demeanour too can be a factor taken into account by the trier of fact when testing the evidence, but standing alone it is hardly determinative. Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness's account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminal case?

[59] I have given careful consideration to all of the evidence on this application. In the end, I disbelieve P.C. Corona’s claim that he observed Mr. Mitchell’s vehicle driving without its headlights turned on. Despite the fact that Mr. Mitchell is a convicted drug dealer who was carrying a handgun, I prefer his evidence where it conflicts with that of P.C. Corona. I also accept most of the evidence given by Ms. Tran on this application. I will first address the various concerns that cause me to disbelieve P.C. Corona, before turning to explain why I ultimately accept the evidence of Mr. Mitchell and Ms. Tran relating to the matters at issue on this application.

(a) Assessment of P.C. Corona’s evidence

[60] To begin, on some crucial matters regarding events in the parking lot, there were significant internal inconsistencies in P.C. Corona's evidence. The officer testified: that he observed Mr. Mitchell’s vehicle enter the parking lot from the driveway on Satellite; that the vehicle’s headlights were on at that time (which prevented the officer from seeing inside the car); and that the lights were off as the car came around the northeast corner of the building before turning onto Matheson.

[61] Nevertheless, at the very same time, P.C. Corona claimed an inability to remember even his approximate location in the parking lot as he witnessed these events. The officer’s clear recollection of what are crucial observations in this case, while simultaneously being unable to remember his approximate location when making these observations, struck me as less than credible.

[62] I have similar concerns with P.C. Corona’s evidence regarding what transpired on Matheson as he followed Mr. Mitchell’s vehicle and after he stopped it. The officer gave detailed evidence about certain matters. He testified: that he first ran a query on Mr. Mitchell’s license plate only after he was following the vehicle on Matheson; that he used his police lights to signal the vehicle to stop; that when signalled Mr. Mitchell immediately pulled to the curb and came to an abrupt halt; that he observed the handgun within a few seconds of approaching the car and beginning to speak with Mr. Mitchell; and finally, that the handgun was in plain view between Mr. Mitchell’s feet.

[63] Curiously, while able to clearly remember these important details, the officer was unable to remember whether or not he pulled up beside Mr. Mitchell’s vehicle before falling back and signalling for the car to stop. Similarly, he could not recall what was said after he approached the car beyond his initial “greeting” to Mr. Mitchell. Given that this particular traffic stop resulted in the seizure of a loaded handgun, I find it hard to believe that these details regarding this specific traffic stop would somehow slip from the officer’s memory.

[64] I have considered P.C. Corona’s explanation for his inability to remember certain important details. He cited the trauma associated with suddenly and unexpectedly being involved in a traffic stop involving a loaded handgun as the likely cause of his deficient memory. The difficulty with this explanation is that it seems only to have resulted in a rather selective form of amnesia.

[65] The officer has a clear recollection of those details that are somewhat crucial to the Crown’s position on this application. For example, that the headlights were off as the vehicle exited onto Matheson, and that the handgun was discovered within mere seconds of the officer first approaching the car. Nevertheless, the officer has a conspicuously fuzzy memory of other important details, including the locations from which he made his observations in the parking lot, whether he executed the combination stop manoeuvre, and the details of his conversation with Mr. Mitchell at the roadside.

[66] The impression created by what P.C. Corona claims to remember and insists he forgets, is that he deliberately chose to give selective evidence before this court. The obvious question is why. In certain respects, it seems likely that some of these “gaps” in the officer’s memory stem from what transpired in the Jama case.

[67] In Jama, P.C. Corona testified that his usual practice before carrying out a traffic stop is to pull beside the vehicle and identify the driver. As a result, the officer’s evidence in that case required him to acknowledge this as his usual practice in his evidence on this application. Despite this, he resisted the suggestion that he executed this manoeuvre before stopping Mr. Mitchell. P.C. Corona explained that because he could not remember doing this, he thought it rather unlikely that he did.

[68] P.C. Corona’s memory gaps regarding his observations in the parking lot are similar. The officer testified that he made essential observations about Mr. Mitchell’s entry into and exit from the parking lot. On entry: the officer testified that the headlights were turned on and shining towards him, preventing him from seeing into the car. On exit: with the headlights turned off as the vehicle drove away from the officer, he again could not see into the car.

[69] During his testimony, P.C. Corona acknowledged feeling stung by the suggestion in the Jama decision that race may have played a role in his decision to carry out a traffic stop. It seems likely that P.C. Corona may have testified as he did on this application because he wanted to avoid a similar conclusion in this case. If he did not know Mr. Mitchell was Black, how could it be suggested that race factored into his decision to stop him?

[70] At the same time, the officer was careful not to commit himself to making any of these important observations from any specific location in the parking lot. It is as though he wanted to leave his options open. Again, the officer’s experience in the Jama case may be instructive as to his motive for this obfuscation.

[71] In that case, the officer testified to stopping Mr. Jama because he made an aggressive lane change in heavy traffic in a specific intersection. The officer referenced the particular intersection both in his notes and his testimony. Ultimately, P.C. Corona’s evidence was impeached at that trial through the use of surveillance video from the intersection that he specifically identified. The surveillance video contradicted his claim that traffic was heavy and that an aggressive lane change had taken place. By testifying as he did in this case, claiming an inability to remember what he was doing or where he was when he made important observations, P.C. Corona avoided potentially being ensnared in a similar credibility trap.

[72] This is not how an honest witness testifies. A witness who is committed to telling the truth does not feign an absence of memory regarding important details to hedge his bets in case confronted by contradictory evidence. Beyond these general concerns regarding internal inconsistencies in P.C. Corona’s evidence and their potential motivation, I have additional and more specific reasons for doubting his credibility.

[73] First, there is the officer’s claim that enforcement of the Highway Traffic Act was amongst the reasons he attended at the Locomotion strip club parking lot. In both his notes and in his testimony at the preliminary inquiry, P.C. Corona made no mention of enforcing traffic laws as a reason for his attendance. Beyond this, what the officer did while at that location also betrays his real purpose.

[74] The officer estimated that he was in the parking lot for about twenty minutes before Mr. Mitchell arrived. Given that P.C. Corona stopped Mr. Mitchell around midnight, and Locomotion serves alcohol, there would undoubtedly have been an opportunity to stop at least a couple other motorists to conduct sobriety checks. Despite this, the officer failed to conduct any sobriety checks on motorists. Rather, he admitted to being mainly concerned with more serious forms of criminality. The only thing he did in the parking lot is run queries on license plates, a purpose with a singular focus on identifying the “criminal element” at that location.

[75] Second, I find P.C. Corona’s failure to radio in the traffic stop to the police dispatcher troubling. It is improbable that this is something that slips the mind of a police officer who is on patrol alone, late at night. After all, for such an officer their very life could depend on it. Of course, it is possible that a police officer might fail to radio their dispatcher if faced with an unexpected and quickly unfolding event. A routine traffic stop is different.

[76] Once a motorist complies with a police officer’s direction to stop their vehicle, the officer does not ordinarily face a situation of any urgency. Rather, the officer is in a position of control. This affords the police officer time, before approaching the motorist, to radio the police dispatcher with an update on their location and activities and to query the license plate of the vehicle. As the safest course of action, this is also the normal police procedure.

[77] A police officer engaged in a low-visibility abuse of his authority has good reason not to radio their police dispatcher. For example, if a police officer is detaining someone whom they consider suspicious without any objective justification, the officer has no way of knowing whether anything will come of the encounter. If nothing does, why memorialize the unconstitutional interaction by informing dispatch? Quite obviously, this is not the mindset of a conscientious police officer who is trying to discharge their duties lawfully and transparently.

[78] Given all of the circumstances of this case, P.C. Corona’s claim that his failure to radio the police dispatcher regarding the traffic stop was a mere oversight is not convincing. In my view, this omission also counts against the officer’s credibility on this application.

[79] My final specific concern regarding P.C. Corona’s real purpose for stopping Mr. Mitchell results from the officer’s evidence regarding the interaction at the roadside after he approached the vehicle. Again, this is a topic about which P.C. Corona claimed significant memory gaps. Nevertheless, he testified that his very first words to Mr. Mitchell were: “Hey, what’s going on man?” The officer could not remember what else was said, beyond Mr. Mitchell at some point referencing picking up Ms. Tran.

[80] It is difficult to reconcile P.C. Corona’s selective recollection of what was said at the roadside with his claimed reason for the stop. If this was true, and P.C. Corona was mindful of his constitutional obligations, his very first words to Mr. Mitchell, after possibly saying “Good evening, sir”, should have been, “I stopped you because you are driving without your headlights on” or words to that effect. The officer never said that. Importantly, I am at a loss to understand why there would have been any reference made to Ms. Tran’s presence in the vehicle if the true purpose of this stop was a Highway Traffic Act infraction. This is far more in keeping with Mr. Mitchell’s description of the conversation, which included the officer asking: “What are you doing here?”

[81] For all of these reasons, I do not believe P.C. Corona’s claim that he stopped Mr. Mitchell because he was driving without his headlights turned on. I reject P.C. Corona’s account of the relevant events. He is not a credible witness.

(b) Assessment of the evidence of Mr. Mitchell and Ms. Tran

[82] Ultimately, I prefer the evidence of Mr. Mitchell and Ms. Tran over that of P.C. Corona. In coming to this conclusion, I have carefully considered the Crown’s submissions that neither is credible. I disagree.

[83] In accepting Mr. Mitchell’s evidence, I have carefully considered both his criminal antecedents and his rather obvious motive to lie. Despite this, I believe almost all of his evidence. Ultimately, his account of the relevant events held together as a matter of logic and common sense.

[84] In particular, the idea that Mr. Mitchell would decide to turn off his headlights and thereby invite the attention of the police officer who he just saw, the very officer whose presence caused him to hurriedly (and rather ineffectively) conceal the handgun underneath his seat, strikes me as highly improbable. The illogic of Mr. Mitchell doing such a thing fortifies my belief in his claim that his headlights remained turned on.

[85] Mr. Mitchell’s evidence withstood vigorous cross-examination. The only apparent infirmity in his evidence related to his inability to effectively recount his route from the highway to Locomotion on the night in question or to specifically identify the location on Matheson where the stop occurred. I found his explanation for this, that he grew up in Pickering, had only recently moved to Mississauga, and used GPS to navigate his route, entirely credible. Ultimately, when it comes to his description of the events on the evening in question, I believe Mr. Mitchell.

[86] Similarly, despite the fact that Ms. Tran lied to police following her arrest, by telling them that Mr. Mitchell was living in Pickering and that she lived in Vaughan, in order to conceal that he was breaching his bail by living with her rather than his aunt, I found her to be a credible witness. Although Ms. Tran may have been inclined to help Mr. Mitchell at the time of his arrest, their relationship has been severed for the past two years due to their respective bail conditions. Importantly, two factors cause me to reject the idea that Ms. Tran fabricated her testimony to assist Mr. Mitchell.

[87] First, although Ms. Tran gave evidence similar to that provided by Mr. Mitchell regarding some important details, her testimony did not entirely correspond with his evidence. For example, she described the police car as being in a slightly different location in the parking lot, placing it even closer to the front entrance than Mr. Mitchell did. That is the very sort of minor discrepancy one would expect as between honest witnesses, perceiving an event from different vantage points and with the passage of time remembering that same event slightly differently. Hardly the stuff of co-ordinated and scripted evidence.

[88] Second, it was rather telling that Ms. Tran readily acknowledged that she simply had no idea whether or not Mr. Mitchell’s headlights were turned on or off. Based on my general impression of her as a witness, along with the substance of her testimony, I found her explanation for this convincing. Importantly, if her purpose was to testify in a manner designed to assist Mr. Mitchell on this application, her candour on this particular point suggests quite the opposite. In the end, I also believe Ms. Tran.

[89] All that said, I do not accept every aspect of the testimony given by Mr. Mitchell and Ms. Tran. For example, Mr. Mitchell testified that, at least at the time, Ms. Tran did not know he was selling drugs and carrying a firearm. In contrast, Ms. Tran testified that she knew Mr. Mitchell was selling drugs but denied any knowledge of the firearm. Given that Mr. Mitchell and Ms. Tran were living together at the time, I strongly suspect that she knew about both his drug-dealing and his handgun.

[90] Of course, I am entitled to accept all, some, or none of any witness’s testimony: R. v. Marin-Ariza, 2012 ONCA 385, at para. 18. At least as it relates to the events surrounding the motor vehicle stop, I accept the evidence of both Mr. Mitchell and Ms. Tran in its entirety.

(c) Findings on this application

[91] Given the evidence that I accept on this application and drawing reasonable inferences from it, I am satisfied on a balance of probabilities (R. v. Collins, [1987] 1 S.C.R. 265, at p. 278), that the events on the evening in question unfolded in the following manner:

• P.C. Corona attended the parking lot of the Locomotion strip club solely to investigate serious criminal behaviour, like drug offences, firearm offences, and human trafficking offences. He was checking license plates in order to identify people with criminal records, including persons facing charges and subject to bail conditions.

• Immediately before Mr. Mitchell’s arrival in the parking lot, P.C. Corona was located near the driveway on Satellite, to the southwest of the club’s main entrance. He had a clear view of the entrance.

• P.C. Corona saw Ms. Tran standing at the front entrance waiting for Mr. Mitchell. Given her age and appearance, he concluded that she worked at the club.

• Mr. Mitchell entered the parking lot from the driveway on Matheson. Given his location, P.C. Corona was not in a position to observe Mr. Mitchell’s vehicle as it entered the parking lot.

• P.C. Corona first saw Mr. Mitchell’s vehicle as he drove up to the front entrance to pick up Ms. Tran. Around the same time, Mr. Mitchell saw the officer and hurriedly moved the handgun from his waistband to underneath his seat, out of a concern that he could be pulled over.

• As Mr. Mitchell drove up to the club’s front entrance, given P.C. Corona’s position, the distance, and the lighting in the parking lot, the officer was able to discern Mr. Mitchell’s race.

• The officer then observed Ms. Tran enter Mr. Mitchell’s vehicle.

• Based on this combination of observations, P.C. Corona became suspicious of Mr. Mitchell and immediately decided to follow his car as it pulled away from the club’s front entrance.

• As he began driving behind Mr. Mitchell’s vehicle, the officer queried the license plate. On discovering that the car was a rental, given his belief that criminals who are on bail conditions sometimes use rental vehicles, the officer decided to carry out a traffic stop.

• P.C. Corona’s purpose in carrying out the motor vehicle stop was to explore his suspicions of possible criminal behaviour, by stopping the vehicle, identifying and questioning its occupants, and by looking inside the vehicle with his flashlight.

• Throughout the time that P.C. Corona observed Mr. Mitchell’s vehicle, its headlights remained on, and the lights had nothing at all to do with the decision to stop the car.

• P.C. Corona executed his usual manoeuvre of pulling next to the vehicle so that he could get a better look at the driver, in case he fled, before signalling the car to stop.

• After being signalled to stop, Mr. Mitchell immediately pulled over and abruptly stopped his car. Unbeknownst to him, this caused the handgun to slide forward from underneath his seat and come to rest not far from his feet.

• P.C. Corona deliberately refrained from radioing police dispatch regarding the traffic stop. He did this because he recognized he had no lawful authority to stop Mr. Mitchell and wanted to avoid creating a record of this encounter should nothing come of it.

• On approaching the vehicle, P.C. Corona did not immediately apprise Mr. Mitchell of the reason for the detention, that being his suspicion that Mr. Mitchell might somehow be involved in criminal activity.

• The officer said, “What’s up, man?” before asking, “What are you doing here?” During this exchange, there was some discussion of the car being a rental. There was also some discussion regarding Ms. Tran’s presence in the vehicle and her relationship to Mr. Mitchell. The officer asked Mr. Mitchell to produce his license, car registration, proof of insurance, and the car rental agreement.

• The officer’s purpose for requesting these documents was to identify Mr. Mitchell, so that he could check if he was on bail and, if he was, investigate him for a potential breach. A breach would result in an arrest and provide justification to search the car. The officer also wanted to ascertain whether Mr. Mitchell was entitled to be driving the rental vehicle.

• As Mr. Mitchell leaned over to the glovebox to retrieve these documents, the officer probed the interior of the car with his flashlight. As he did so, the officer saw the handgun on the floor with the aid of his flashlight.

• P.C. Corona immediately drew his firearm and pointed it at Mr. Mitchell, before directing various commands at Mr. Mitchell and Ms. Tran and placing them both under arrest.

• Although the handgun did not have a bullet in its chamber, it had several within its magazine.

IV. Law and Analysis

[92] Given the various Charter claims advanced by Mr. Mitchell, I now turn to applying the governing legal principles in light of the court’s findings on this application.

(a) Was Mr. Mitchell’s section 9 Charter right not to be arbitrarily detained violated?

[93] A motorist in Ontario is legally obligated to stop their vehicle when directed to do so by a police officer: see Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 216(1)-(2). A driver has no choice but to comply with such a direction. When a motorist does so, they are “detained” from a Charter standpoint: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 30; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31; R. v. Hufsky, [1988] 1 S.C.R. 621, at pp. 631-632; R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-644.

[94] Section 9 of the Charter guarantees everyone, “the right not to be arbitrarily detained or imprisoned” (emphasis added). The Supreme Court of Canada has identified the purpose of s. 9 as being, “to protect individual liberty from unjustified state interference”: Grant, at para. 20. Given this, the Court in Grant recognized that “a detention not authorized by law is arbitrary and violates s. 9”: Grant, at para. 54. Accordingly, whether there was a violation of Mr. Mitchell’s right not to be arbitrarily detained depends on the legality of his detention.

[95] On its face, s. 216(1) of the Highway Traffic Act grants police officers in Ontario relatively unfettered authority to stop motorists. After finding that its predecessor provision, which shared almost the very the same wording, was inconsistent with s. 9 of the Charter, the Supreme Court of Canada upheld it under s. 1. In doing so, however, a majority of the Court interpreted the provision as confining the authority of police to the stopping of motorists for reasons related to traffic safety, this includes things, “such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”: R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1287. See also, Hufsky. It also includes the authority to detain a motorist whom a police officer observes or reasonably suspects of committing a traffic offence: R. v. Wilson, [1990] 1 S.C.R. 1291, at p. 1297.

[96] The Supreme Court of Canada has held that a police officer who lawfully detains a motorist for traffic safety reasons may also harbour ulterior criminal investigative purposes for the detention. Provided that traffic safety remains a motivation for the detention, the fact that the officer is also interested in discovering evidence of another offence does not in itself invalidate the detention. That said, in such cases, a police officer must be careful not to exceed the limits of his or her traffic-safety powers. If they do so, they violate the Charter. See R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 4, 23, 32-41.

[97] In this case, P.C. Corona did not detain Mr. Mitchell for any reason related to traffic safety. Accordingly, s. 216(1) of the Highway Traffic Act did not provide him with authority to carry out this detention. A police officer’s authority, “must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised.” R. v. Stevenson, 2014 ONCA 842, at para. 56, leave to appeal refused [2015] S.C.C.A. No. 37.

[98] P.C. Corona’s sole purpose in detaining Mr. Mitchell was to investigate him for criminal behaviour. In other words, this was an investigative detention. The preconditions for a lawful investigative detention are well settled. A police officer is empowered to briefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a recently committed or still-unfolding criminal offence and the detention is reasonably necessary in all of the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. The power to detain is not confined to crimes known to the police but includes crimes that are reasonably suspected: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35; R. v. Nesbeth, 2008 ONCA 579, at para. 18, leave to appeal refused [2009] S.C.C.A. No. 10.

[99] In this case, when initiating the detention P.C. Corona lacked reasonable grounds to suspect any connection between Mr. Mitchell and criminal activity. Mr. Mitchell’s attendance at the Locomotion strip club, a location known to police as a hotspot for various crimes, did not justify his detention: Mann, at para. 47. Even when considered together with the fact that he picked up a young woman from the club and that he was driving a rental car, the totality of circumstances remained benign by any objective measure and did not give rise to a reasonable possibility of criminal activity: see Chehil, at para. 27; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 74.

[100] At its highest, P.C. Corona had a very generalized suspicion that Mr. Mitchell could be involved in something nefarious. That is not enough to justify interfering with an individual’s liberty by carrying out an investigative detention: Chehill, at para. 28. It follows that Mr. Mitchell’s detention was unlawful. Accordingly, Mr. Mitchell’s right not to be arbitrarily detained, as guaranteed by s. 9 of the Charter, was violated.

(b) Was Mr. Mitchell’s s. 10(a) Charter right to be promptly informed of the reasons for his detention violated?

[101] Section 10(a) of the Charter guarantees everyone the right “on arrest or detention” to be “informed promptly of the reasons therefor” (emphasis added). This constitutional right imposes an informational duty on police that they can discharge with relative ease. It merely requires a police officer on detaining a person to tell them in “clear and simple language” the reason(s) why: Mann, at para. 21; R. v. Evans, [1991] 1 S.C.R. 869, at p. 888.

[102] This obligation applies whether a police officer is detaining a pedestrian or a motorist: Orbanski & Elias, at para. 31. Compliance with s. 10(a) assumes added significance when police detain a motorist because the right to counsel does not apply during motor vehicle stops motivated by traffic safety concerns: Orbanski & Elias, at para. 60. As a result, a detained motorist is often, “wholly reliant on the police to provide him with the information he requires to be able to make informed choices.”: R. v. Mueller, 2018 ONSC 2734, at para. 29. Given this, the obligation on police to inform a motorist of the reason for their detention is especially important during traffic safety stops.

[103] In terms of when the person detained must be told of the reason(s) for their detention, the text of s. 10(a) instructs that this take place "promptly." The case law makes clear that this means immediately: R. v. Nguyen, 2008 ONCA 49, at paras. 16-22. The only justification for delay is where the police must first gain control over a detainee whose actions are creating a dangerous situation: R. v. Boliver, 2014 NSCA 99, at paras. 15-20.

[104] In this case, had P.C. Corona observed the handgun within seconds of approaching the car, as he claimed, there would be no basis for finding a violation of s. 10(a). However, that is not how events unfolded. Instead, the officer had time to "greet" Mr. Mitchell before questioning him about his presence in the location. There was also time to refer to the car being a rental vehicle; time for the officer to ask Mr. Mitchell to produce his license, registration, proof of insurance, and a copy of the car rental agreement; time to discuss Ms. Tran’s presence in the vehicle; and finally, time for the officer to probe the passenger compartment with his flashlight. Despite this, the officer did not seem to find the time to tell Mr. Mitchell why he was detaining him.

[105] Based on P.C. Corona’s testimony about the reason for the traffic stop, on first approaching the vehicle he should have immediately told Mr. Mitchell something to the effect of, “I stopped you because you are driving without your headlights on.” However, given the court’s findings regarding the true purpose of this traffic stop, compliance with s. 10(a) would have required the officer to tell Mr. Mitchell something like, “I stopped you because I am suspicious of you and want to find out whether you might be doing something illegal.” Of course, it is not at all surprising that the officer did not confess the impropriety of this traffic stop to the motorist he was unlawfully detaining. However, that in no way excuses the officer’s failure to comply with his constitutional obligation.

[106] In all of the circumstances, I am satisfied that P.C. Corona violated Mr. Mitchell’s right to be promptly informed of the reason for his detention as guaranteed by s. 10(a) of the Charter.

(c) Section 8 – Was Mr. Mitchell’s right to be secure against unreasonable search or seizure violated?

[107] Driving is a licensed activity that is subject to regulation and control in the interests of public safety. The Supreme Court of Canada has upheld a variety of police powers meant to combat the threat posed by impaired, unlicensed and uninsured drivers, as reasonable limits on the constitutional rights of motorists under s. 1 of the Charter: Orbanski & Elias, at paras. 54-60; Hufsky, at pp. 636-637; Ladouceur, at pp. 1279-1288; R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 653-656.

[108] Nevertheless, a person who is lawfully entitled to operate a motor vehicle has a reasonable expectation of privacy in their vehicle, albeit of a diminished nature as compared to a dwelling or a private office. Given this, under s. 8 of the Charter, they enjoy the right to be secure against unreasonable search or seizure in their vehicle: see R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19; R. v. Grant, [1993] 3 S.C.R. 223, at p. 242; R. v. Mooiman and Zahar, 2016 SKCA 43, at para. 39. In assessing what is constitutionality permissible during the detention of a motorist, much depends on a police officer’s purpose and actions.

[109] If traffic safety is amongst a police officer’s purposes for detaining a motorist, the officer can take a variety of steps without engaging the driver’s s. 8 Charter right. For example, a police officer may visually inspect the passenger compartment of the vehicle, including with the aid of a flashlight, require the driver to produce their license, car registration and proof of insurance and also inspect the vehicle to assess its mechanical fitness. Such measures do not encroach upon a motorist’s reasonable expectation of privacy during a lawful traffic stop: Hufsky, at p. 638; Belnavis, at para. 28; R. v. Mellenthin, [1992] 3 S.C.R. 615 at pp. 623-625. These steps do not engage s. 8 even when a police officer also harbours an ulterior criminal investigative purpose for the detention, provided the officer’s traffic safety motivation for the detention persists, and they do not act in excess of the limits on their associated powers: Nolet, at paras. 32-41.

[110] If during the lawful detention of a motorist for traffic safety purposes a police officer happens to observe an item that is immediately recognizable as evidence of a crime or illicit contraband, the plain view doctrine provides the officer with authority to seize the item: Criminal Code, R.S.C., 1985, c. C-46, s. 489(1); Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(8); R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 37; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 27. Alternatively, if while operating within the parameters of their traffic safety powers a police officer acquires the grounds necessary to undertake more invasive investigative steps, then they are entitled to act on such grounds: Nolet, at para. 28.

[111] Once a police officer’s interest in traffic safety ends, however, any intrusion on a motorist’s reasonable expectations of privacy must comply with s. 8 of the Charter. Ordinarily, this means that the police officer will require reasonable and probable grounds to search the vehicle for evidence of a crime: Mellenthin, at pp. 624-625; Nolet, at paras. 28, 39, 43. Alternatively, if the motorist is lawfully arrested, the vehicle may be searched for evidence or weapons incidental to that arrest: see, generally, R. v. Caslake, [1998] 1 S.C.R. 51. Short of this, a protective weapons search could potentially be justified, but only if the police officer believes on reasonable grounds that his or her safety is at stake and that such a search is necessary: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41. Depending on the circumstances, this may justify searching a motorist’s vehicle for weapons: see, e.g., R. v. Plummer, 2011 ONCA 350, at para. 65.

[112] Entirely different considerations apply if traffic safety does not truly factor into the officer’s decision to detain and is merely offered as a pretext (a false justification) to detain a motorist and look for evidence of a crime. Without any traffic safety justification, not only will the pretextual detention result in a violation of the motorist’s s. 9 Charter right from the outset, any resulting intrusion on the motorist’s reasonable privacy expectations will also be unlawful and violate s. 8 of the Charter: see, e.g., R. v. Ladouceur, 2002 SKCA 73, described as “fatally flawed from the outset” in Nolet, at para. 25.

[113] At its very inception the detention in this case had nothing to do with concerns about traffic safety. It had a criminal investigative purpose from the very beginning. As noted above, given that the detention occurred in the absence of the required grounds it violated Mr. Mitchell’s s. 9 Charter right to be free from arbitrary detention. The sole purpose of this unlawful detention was for the officer to explore the possibility of criminal behaviour by questioning the occupants of the vehicle, obtaining Mr. Mitchell’s identification, and taking advantage of the opportunity to look inside the car during the traffic stop.

[114] Although P.C. Corona never had the chance to obtain Mr. Mitchell’s documents and run any police checks, he did briefly question him regarding his reason for being in the area, and he also looked inside the vehicle with his flashlight. Because the questioning and observations occurred during an unlawful detention, they also intruded on Mr. Mitchell’s reasonable expectation of privacy: Mellenthin, at p. 624; R. v. Rutten, 2006 SKCA 17, at para. 21; R. v. Grunwald, 2010 BCCA 288, at para. 39; R. v. Harris, 2007 ONCA 574, at paras. 34, 39-40.

[115] These intrusions on Mr. Mitchell’s reasonable privacy expectations took place without legal authority. Accordingly, Mr. Mitchell’s s. 8 Charter right to be secure against unreasonable search or seizure was violated: Collins, at p. 278.

(c) Section 24(2) - Should the evidence be excluded?

[116] The defence seeks the exclusion of both the handgun and P.C. Corona’s testimony regarding its discovery. There is a direct causal relationship between this evidence and the violations of ss. 8 and 9 of the Charter. These breaches, along with the violation of s. 10(a), also have a close temporal and contextual connection to the evidence. Together, the breaches form part of a single, continuous and closely interconnected transaction. It follows that the evidence was obtained in a manner that violated Mr. Mitchell’s Charter rights: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235 at para. 21; R. v. Strachan, [1988] 2 S.C.R. 980, at pp. 1005-1006. Accordingly, the evidence is eligible for exclusion under s. 24(2) of the Charter.

[117] The decision to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires consideration of all the circumstances of the case. Under Grant, it is necessary to assess and balance the effect of admitting or excluding the evidence on the integrity of, and public confidence in, the justice system. This is to be done having regard to: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breaches on Mr. Mitchell’s Charter protected interests; and 3) society's interest in an adjudication of the case on its merits: Grant, at paras. 71, 85-86.

- The seriousness of Charter-infringing state conduct

[118] The first line of inquiry requires the court to assess the state conduct that led to the Charter violation and situate it along a “continuum of misconduct”: R. v. Blake, 2010 ONCA 1, at para. 23; R. v. Omar, 2018 ONCA 975, at para. 30, application for leave to appeal to S.C.C. filed, 38461 (January 2, 2019). As the majority in Grant explained, at para. 74:

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[119] I turn next to the circumstances of this case and where to situate the Charter breaches along the continuum. P.C. Corona carried out an investigative detention based on little more than a hunch. His purpose was to explore his unsubstantiated suspicions by unlawfully interfering with Mr. Mitchell’s liberty and privacy interests. At the time, the requirements for a lawful investigative detention were long-established and well known. P.C. Corona acted with disregard for the limits on his authority and Mr. Mitchell’s Charter rights. Accordingly, the Charter-infringing state conduct deserves placement at the most severe end of the spectrum; it was deliberate.

[120] The seriousness of the violations is aggravated by the officer’s in-court testimony. The officer’s misguided effort to justify his unconstitutional actions by claiming a selective memory of the relevant events, to maintain the fiction of having observed a traffic offence, only exacerbates the magnitude of the misconduct in this case: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26.

[121] These conclusions weigh heavily in favour of exclusion. As the Supreme Court explained, at para. 72 of Grant, the more “severe or deliberate” the state conduct that resulted in a Charter violation, “the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”

[122] In summary, P.C. Corona’s Charter-infringing conduct was most serious. The blatant disregard for Mr. Mitchell’s Charter rights is aggravated by the officer's misleading testimony on this application. Given all of the circumstances, this is not police conduct that the court should be seen to condone.

- Impact of the breaches on Mr. Mitchell’s constitutionally protected interests

[123] Under this line of inquiry, the court must measure the extent to which a Charter breach, “actually undermined the interests protected by the right infringed.”: Grant, at para. 76. The impact may vary, from being fleeting (transient) or technical to profoundly intrusive. The more serious the impact on the applicant’s constitutionally protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”: Grant, para, 76.

[124] There are several reasons why these breaches might not be considered very impactful. For example, the detention lasted no longer than two minutes before the discovery of the handgun. The search was minimally intrusive; it only involved a cursory inspection of the interior of Mr. Mitchell’s vehicle with the assistance of a flashlight. Although a motorist enjoys a reasonable expectation of privacy in their vehicle, given the highly regulated nature of motor vehicle travel, it is markedly diminished when compared to the expectation of privacy attaching to an individual’s home. Finally, although not told the reason for his detention, Mr. Mitchell did not make any incriminating statements. These considerations suggest the Charter breaches were fleeting and technical in their impact.

[125] In my view, such a characterization would not fairly describe the actual impact of these Charter breaches. Members of the community, even while travelling in motor vehicles, are entitled to expect that they will not be subject to unjustified detention by police. Although motorists accept vehicle stops for legitimate traffic safety reasons, there is a considerable difference between detentions of that nature and what took place in this case.

[126] Mr. Mitchell was singled out by a police officer in uniform driving a marked police cruiser and required to stop his car. When the officer approached Mr. Mitchell, he did not tell him the reason for his detention. Unbeknownst to Mr. Mitchell, this was not a traffic-related vehicle stop. Rather, it was an unjustified investigative detention. In complete ignorance of the detention’s true purpose, Mr. Mitchell was asked to account for his presence in the area. He was also subject to a demand to produce his documentation for inspection. The apparent object of that demand was to check police databases for information regarding Mr. Mitchell to enable the officer to continue pursuing his unjustified suspicions. While this was occurring, the officer shone a flashlight into Mr. Mitchell’s vehicle, directly resulting in the discovery of evidence pivotal to Mr. Mitchell’s prosecution for rather serious crimes.

[127] In my view, it would not be accurate to describe these as fleeting or technical breaches. Such a characterization would ignore the cumulative effect and full context of the constitutional violations. These breaches had a meaningful impact on Mr. Mitchell’s liberty and privacy interests. At the same time, there was an undermining of Mr. Mitchell’s right to make an informed decision whether or not to speak with police.

[128] In all of the circumstances, I would characterize the breaches as having at least a moderate impact on Mr. Mitchell’s Charter-protected interests.

- Society’s interest in an adjudication on the merits.

[129] Finally, I must also consider society's interest in having this case adjudicated on its merits. In that regard, I am required to determine if it would better serve truth-seeking to admit or exclude the evidence: Grant, para. 79.

[130] The handgun, along with the fact that it was found in Mr. Mitchell’s vehicle, is entirely reliable evidence: Grant, at para. 81. Further, the exclusion of this evidence will unquestionably deal a fatal blow to this prosecution: Grant, at para. 83. These considerations count heavily in favour of admitting the evidence. Nevertheless, they must be weighed against the factors pointing towards exclusion.

[131] The fact that the offences involved are extremely serious is essentially a neutral consideration because it has the potential to “cut both ways.” Although the seriousness of the offences increases the societal interest in a prosecution on the merits, the public “also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.”: Grant, at para. 84. This explains why, despite the scourge of gun violence in our communities, courts have routinely exercised their discretion to exclude handguns from evidence under s. 24(2) of the Charter in cases where the totality of the circumstances warrant it. As Sharpe J.A. recently reminded in Omar, at para. 56:

It is … worth recalling that there is no "firearms exception" requiring that guns obtained in breach of Charter rights be admitted into evidence … . In Dunkley, this court … held that it is "clear that there is not a different test for admission where the impugned evidence is a firearm". Hourigan J.A. proceeded to exclude a handgun and Taser from evidence. Here, as in Dunkley, the police "acted negligently albeit not wilfully" and "the impact on the accused's rights was significant". As the British Columbia Court of Appeal held in R. v. Reddy, "in the long-term, the repute of the administration of justice would be adversely affected by admitting the handguns" found as a result of an unlawful detention and search conducted contrary to the law laid down by the Supreme Court. [citations omitted]

In Omar, the majority ruled a handgun discovered during the unlawful detention of a pedestrian inadmissible under s. 24(2).

[132] The immediate effect of excluding reliable evidence of a serious crime on how people view the justice system, while undoubtedly relevant, cannot be allowed to overwhelm the s. 24(2) analysis. That sentiment must be balanced against the impact of admitting the evidence, in all of the circumstances of the particular case, on the long term-repute of the administration of justice: Grant, at paras. 82, 84.

- Conclusion on admission or exclusion under section 24(2)

[133] In the end, after considering the three lines of inquiry identified in Grant, which encapsulate “all the circumstances” of the case, I must determine whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: see Grant, at paras. 85-86.

[134] This balancing exercise invariably requires a qualitative assessment that does not lend itself to “mathematical precision”: Grant, at para. 140; R. v. Herta, 2018 ONCA 927, at para. 73.

[135] In this case, the deliberate nature of the Charter breaches very strongly favours exclusion. There was some impact on Mr. Mitchell’s constitutionally protected interests, which only somewhat favours exclusion. Finally, the evidence is entirely reliable and crucial to proving the Crown’s case, this very strongly favours its admission.

[136] Ultimately, in considering the long-term repute of the administration of justice, as the law requires, I am satisfied that in all the circumstances of this case the balance must be struck in favour of exclusion. In my view, the repute of the administration of justice would be more negatively affected by the court admitting the evidence and failing to dissociate itself from the deliberate violation of Charter rights.

[137] In coming to this conclusion, I have taken into account the Supreme Court of Canada’s reminder at para. 75 of Grant that, “for every Charter breach that comes before the courts, many others go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.”

[138] There is no doubt that some individuals with criminal records and outstanding charges (like Mr. Mitchell and Mr. Jama) will sometimes use rental vehicles to conceal their identities from the police. Nevertheless, common sense tells us that law-abiding members of the community overwhelmingly use such vehicles and do so for entirely legitimate purposes. The court has no way of knowing how many law-abiding individuals have been ensnared by the type of unjustified detention that took place in this case.

[139] The court should not be seen as condoning a practice that runs roughshod over constitutionally protected rights. The fact that this sort of investigative lottery will occasionally pay off, as it did in this case, with the discovery of an illegal handgun, can never justify the police disregarding the limits on their authority.

[140] By excluding the evidence, the court dissociates itself from the police misconduct and reinforces the community’s commitment to the individual rights guaranteed by the Charter: see R. v. McGuffie, 2016 ONCA 365, at para. 83; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56. This outcome helps in ensuring the constitutional rights of all members of the community in future and better serves the repute of the administration of justice in the long-term.

Conclusion

[141] For all of these reasons, under s. 24(2) of the Charter, this court orders the exclusion from evidence of both the handgun and P.C. Corona’s testimony regarding its discovery.

Signed: Justice James Stribopoulos

Released: April 26, 2019