RULING ON VOIR DIRE

P.J. Monahan J.

[1] At approximately 6 PM on July 22, 2018, two males armed with a handgun stole a large quantity of cellular phones from a Rogers cellular phone store on Eglinton Avenue West in Toronto. One of the phones obtained during the robbery was equipped with a Global Positioning System (“GPS”). The police tracked the GPS device to a small shopping plaza at 2526 Finch Avenue West, where they observed two males who appeared to resemble the description of the suspects who had committed the armed robbery. They subsequently arrested these two individuals, Kadir Aidarus and I.B. (a youth), as well as the accused in this proceeding, Romain Miller.

[2] The police searched Mr. Miller’s person along with his motor vehicle and found a loaded firearm. As a result of that discovery, as well as further investigations undertaken by the police, Mr. Miller was charged with a number of offenses, including robbery with a firearm, possession of property obtained by crime, and possession of a loaded prohibited firearm.

[3] Mr. Miller alleges that the police lacked sufficient grounds to arrest him and, therefore, the arrest violated his right to be free from arbitrary detention and arrest, guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms. He also alleges that the search of his person and his vehicle was unlawful and contrary to s. 8 of the Charter, and that the police officers who arrested him failed to adequately inform him of his right to counsel, contrary to s. 10(b) of the Charter. Mr. Miller maintains that these breaches of his Charter-protected rights were sufficiently serious as to justify the exclusion of the evidence obtained through the search, in accordance with s. 24(2) of the Charter.

[4] These reasons set out my findings and conclusions with respect to the Charter application brought by Mr. Miller.

I. Overview of the Case

[5] Shortly after 6 PM on July 22, 2018, police obtained a description of the two suspects observed in the robbery of the Rogers store on Eglinton Avenue West.

[6] One suspect was described as a black male, under six feet tall, 250 pounds, chubby and wearing an all-white jumpsuit. This male was carrying a blue duffel bag with white stripes.

[7] The other suspect was described as a black male in his mid-20s, six feet tall, 200 pounds, wearing a white tracksuit, white socks, no shoes, and armed with a black Glock handgun.

[8] Both suspects were described as wearing black ski masks to cover their faces. They fled in a white U-Haul Van.

[9] The Toronto Police Operations Centre was able to track the GPS device in one of the stolen phones in real time. The GPS device was moving northbound and westbound, and at about 6:25 PM it became stationary at the northwest corner of the intersection of Finch Avenue West and Gracedale Boulevard. A small shopping plaza, known as the Finchdale Plaza, is located on the northwest corner of that intersection.

[10] Within five minutes of being advised that the GPS tracker phone had become stationary at the northwest corner of Finch and Gracedale, six plainclothes police officers in a number of different unmarked vehicles began arriving at the Plaza.

[11] Officer James Dunne, who was first on the scene, pulled into the Plaza and scanned the parking lot looking for a white U-Haul van. Although he did not observe any such van, his eye was immediately drawn to a black BMW automobile parked directly in front of a small cell phone store, I-Tech Solutions, located in the corner of the Plaza.

[12] The BMW was double parked behind another vehicle and was in a no parking section of the parking lot. It was also parked at an odd angle in relation to the other vehicles nearby. The two vehicle doors on the driver’s side were both open and two black males, both of whom were wearing white T-shirts, were standing beside the vehicle and reaching into it. One of them pulled out a red and black jacket and put it on over the white T-shirt he was wearing. Officer Dunne observed this individual to be a heavy set black male. Dunne believed his appearance was consistent with the description of the robbery suspect who had been described as a black male under 6 feet tall weighing about 250 pounds. (It is acknowledged that this individual was later identified as Kadir Aidarus.)

[13] The second black male observed by Officer Dunne walked around to the other side of the BMW, pulled out a duffel bag from the back seat and put it into the trunk.

[14] After a few moments a tall, thin black male came out of the I-Tech Solutions store. He was wearing green sweatpants, black running shoes, appeared to be over 6 feet tall and in his mid-20s. Officer Dunne believed that this individual resembled the description of the other suspect in the robbery under investigation. (It is acknowledged that this individual was later identified as I.B.) I.B. spoke with Mr. Aidarus and went back into the I-Tech Solutions store. A moment later, I.B. came back outside the store, interacted with the other unidentified black male, who by this time was sitting in the driver’s seat of the BMW, and thereafter returned inside the I-Tech Solutions store.

[15] Officer Dunne was sharing his observations via police radio with the other officers who were arriving on the scene. Dunne indicated that he had initially observed two black male individuals standing around the BMW and that “it looked like they were changing their clothes.” He also indicated that he had observed a third black male come out of the I-Tech Solutions store, interact with the other two individuals around the BMW, before returning inside the store.

[16] After some minutes, the unidentified black male backed the BMW up and drove away. Mr. Aidarus remained standing outside the I-Tech Solutions store, while I.B. was inside the store.

[17] At this point the senior police officer on scene, Officer Jennifer Cash, ordered the arrest of Mr. Aidarus, as well as any other individuals inside the I-Tech Solutions store associated with Mr. Aidarus. The six officers converged on the I-Tech Solutions store in their vehicles, immediately taking Mr. Aidarus down to the ground and arresting him. A key to a U-Haul vehicle was found in his pocket.

[18] A number of officers proceeded directly into the I-Tech Solutions store looking for other suspects.

[19] The first two officers inside the store were Officers Joe MacLean and Josh Heineman, who entered with their firearms drawn. They observed three males behind the counter in the store who appeared to be employees. Officer MacLean yelled “where are they?” One of the males behind the counter directed him towards a door behind the counter in the rear right portion of the store.

[20] MacLean and Heineman ran behind the counter and opened the door indicated by the employee. They entered a room which appeared to be an area reserved for employees, where they encountered three males standing around a table.

[21] Two of the males were on the right-hand side of the table and were wearing business casual clothing. These two individuals appeared to MacLean and Heineman to be panicked and afraid by what was occurring and backed away as the officers entered the room. MacLean and Heineman believed these two individuals were employees of the cell phone store.

[22] The third individual was on the left-hand side of the table, leaning against a counter scrolling through his cell phone. He was a black male wearing track pants and a hoodie and carrying a satchel. (It is acknowledged that this individual was Mr. Miller.) Mr. Miller did not immediately react to the appearance of the police officers and continued to scroll through his cell phone.

[23] On the table between the three individuals in the staff area was a large stack of cell phones in boxes.

[24] Both MacLean and Heineman were concerned over the fact that Mr. Miller was carrying a satchel. In their experience, those carrying firearms often keep them hidden in a satchel. Because there had been a firearm involved in the robbery on Eglinton Avenue West, the officers were concerned that there might be a firearm in this satchel.

[25] Officer MacLean holstered his firearm and, after identifying himself as police, asked Mr. Miller what was going on. Mr. Miller responded “nothing” and may also have said “we are talking”. Officer MacLean did not find this response satisfactory and decided to arrest Mr. Miller in connection with the robbery under investigation. MacLean told Mr. Miller that he was being arrested for robbery and told him to put his hands behind his back. When he resisted, MacLean and Heineman took him down to the ground and managed to place him in handcuffs.

[26] The police were still looking for I.B.. Officer Heineman proceeded through the staff area into a storage room, where he found I.B. hiding in a closet and arrested him.

[27] Meanwhile, Officer MacLean attempted to inform Mr. Miller of his right to counsel and cautioned him that anything he said could be used as evidence against him. Mr. Miller was asking a lot of questions, saying he did not understand, and asking what was going on. MacLean attempted a second time to inform Mr. Miller of his right to counsel.

[28] MacLean then removed the satchel Mr. Miller had been carrying and searched through it. He did not discover a firearm but did find a wallet containing ID identifying him as Romain Miller. MacLean also discovered a key to a Dodge Durango vehicle.

[29] Over the next hour, the surveillance video from the I-Tech Solutions store was reviewed and statements were taken from the store employees. The officers learned that shortly before the police takedown, Mr. Miller and I.B. had brought a large quantity of cell phones into the store in a duffel bag in order to sell them. Surveillance video from July 19, 2018 also disclosed that on that day Mr. Miller and another unidentified male had brought a large quantity of cell phones into the I-Tech Solutions store and sold them for cash.

[30] Shortly before 8 PM, a search was conducted of the Dodge Durango, which was parked immediately outside the I-Tech Solutions store, by two other officers on scene. One of the officers observed a firearm in a child’s car seat in the backseat of the car. Once the firearm was located and made safe, the search was halted and the car was sealed and towed away pending issuance of a search warrant in relation to the Durango. The search warrant was duly issued and the firearm in the Durango was seized.

II. Issues

[31] The following issues arise on this application:

a. Were there reasonable and probable grounds to arrest Mr. Miller?

b. Was the search of Mr. Miller’s satchel and motor vehicle conducted in a manner inconsistent with Mr. Miller’s right to be protected against unreasonable search and seizure in accordance with s. 8 of the Charter?

c. Did the police officers violate Mr. Miller’s right to counsel as protected by s. 10(b) of the Charter?

d. What significance should be attached to the fact that police subsequently obtained a search warrant to search Mr. Miller’s vehicle where the firearm was found?

e. If the police violated any of Mr. Miller’s Charter-protected rights, should the evidence obtained through the search of his satchel and motor vehicle be excluded in accordance with s. 24(2) of the Charter?

III. Were there Reasonable and Probable Grounds to arrest Mr. Miller?

A. Governing Principles

[32] Section 495(1) of the Criminal Code[^1] authorizes a peace officer to arrest an individual whom the peace officer believes “on reasonable grounds” has committed or is about to commit an indictable offence.

[33] The “reasonable grounds” requirement of s. 495(1) encompasses both a subjective and an objective component. The officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the individual. In addition, those grounds must be justifiable from an objective point of view, namely, 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 that were known to the officer.[^2]

[34] The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. The standard is met once credibly-based probability replaces mere suspicion, since it is at this point that the state’s interest in detecting and preventing crime begins to prevail over the individual’s liberty interest in being left alone.[^3] On the other hand, proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt or even the establishment of a prima facie case against the accused.

[35] Courts have also emphasized that the dynamics at play in an arrest situation are very different from those which operate in an application for a search warrant. As Doherty J.A. noted in R. v. Golub:[^4]

Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[36] In considering whether the reasonable and probable grounds threshold has been met, the totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. No single fact or observation should be considered in isolation. It is also appropriate for the officer to rely upon his or her knowledge and experience as a police officer.[^5]

B. Position of the Applicant

[37] Mr. Miller argues that the police had no objectively reasonable grounds to arrest him.

[38] First, Mr. Miller challenges the original decision by Officer Cash to order the takedown. He argues that Officer Cash’s decision was based on erroneous information provided by Officer Dunne, namely, that individuals around the BMW were “changing their clothes”. Mr. Miller argues that no one around the BMW was changing their clothes and that Officer Dunn fabricated this information in an attempt to cause Officer Cash to order the takedown.

[39] Second, even if the initial takedown decision itself was justified, Mr. Miller argues that there were no grounds for him to be arrested. Mr. Miller was unknown to officers MacLean and Heineman prior to his arrest. He had not been observed outside the I-Tech Solutions store prior to the takedown and he did not match the description of either suspect who robbed the Rogers cell phone store. There was no indication that anyone other than the two males who actually entered the Rogers cell phone store had been involved in the robbery. At the time of his arrest, he was standing calmly in the rear area of the I-Tech Solutions store and not acting in a hostile manner.

[40] Moreover, the officers took no steps to detain or investigate the other two males who were present in the back area of the I-Tech Solutions cell phone store at the time of Mr. Miller’s arrest. Mr. Miller argues that the only objective factor that differentiated him from the other two men is that he is black and the other two individuals are of a brown complexion.

[41] I consider, first, the reasonableness of Officer Cash’s decision to order the arrest of Mr. Aidarus and those associated with him inside the I-Tech Solutions store. I then consider whether there were reasonable and probable grounds to arrest Mr. Miller, in conjunction with the takedown ordered by Officer Cash.

C. Were there Reasonable and Probable Grounds to Order the Arrest of Mr. Aidarus and his Associates?

[42] Officer Cash testified that she ordered the takedown because she believed that Mr. Aidarus had very likely been involved in the robbery of the Rogers cellphone store, and that he and his associates were in the process of selling or disposing of the stolen goods in the I-Tech Solutions store. Her grounds for this belief were as follows:

a. the GPS device that had been taken by the perpetrators had been tracked to the Finchdale Plaza where it had become stationary. Officers were on scene within five minutes of the tracker phone becoming stationary. The reasonable inference is that individuals involved in the robbery were at the Plaza;

b. although there was no U-Haul van observed in the Plaza, there was a BMW parked in an unusual manner right outside a cell phone store in the Plaza. The vehicle was double parked in a no-parking area immediately in front of the cell-phone store;

c. the occupants of the BMW were observed by Officer Dunne to be changing their clothes, which suggested to Officer Dunne that they were attempting to change their appearance;

d. one of the individuals observed standing outside the I-Tech Solutions store (i.e. Mr. Aidarus) matched the description of one of the participants in the robbery, in that he was a black male, under six feet tall, chubby and weighing approximately 250 pounds;

e. a second individual whose appearance was consistent with the description of the second participant in the robbery was observed coming out of the I-Tech Solutions store and interacting with Mr. Aidarus. This individual (i.e. I.B.) was a black male over six feet tall, who appeared to be in his 20s.

[43] Officer Cash indicated that although only two perpetrators had been observed inside the Rogers cell phone store during the robbery, she believed it was likely that there were more than two individuals involved. In her experience, it is common for there to be a driver of the getaway vehicle as well as a look out. On this basis, she believed that anyone in the store who was associated with Mr. Aidarus, or with the stolen property, was arrestable.

[44] In considering the objective reasonableness of Officer Cash’s decision to order the arrest of Mr. Aidarus and others associated with him, I note that a distinguishing feature in this case is the fact that the police had GPS data tracking the stolen property to the location where the arrest took place. The GPS tracker phone became stationary in the area of the Finchdale Plaza at about 6:25 PM and the officers began arriving at that location less than five minutes later. It was thus reasonable to expect that persons involved in the robbery were still there with the stolen property.

[45] Also relevant is the fact that a BMW was parked immediately in front of the I-Tech Solutions store in an unusual manner. One of the two individuals standing around the BMW (i.e. Mr. Aidarus) matched the description of one of the suspects involved in the robbery of the Rogers store. This individual was also observed putting on a red and black jacket over a white T-shirt, which suggested to Officer Dunne that he was attempting to change his appearance. A second individual matching the description of the other suspect (i.e. I.B.) was observed coming out of the cell phone store and interacting with the individuals associated with the BMW.

[46] It is true that the GPS data did not specifically indicate that the stolen property was in the I-Tech Solutions store. But the Finchdale Plaza was a small shopping plaza with a limited number of stores. The I-Tech Solutions store was the only cell phone store in the Plaza that was open that day. Officer Cash indicated that in her experience, it was common for stolen cell phones to be disposed of for cash. It was thus objectively reasonable to believe that the stolen property would be found in the I-Tech Solutions store. This was reinforced by the fact that a black male resembling the description of one of the suspects in the robbery came out of the cell phone store twice and interacted with both individuals associated with the BMW parked immediately out front.

[47] Counsel for Mr. Miller argued that the decision to order the arrest was not justified because it was based on Officer Dunne’s statement that he saw the individuals standing around the BMW “changing their clothes”. Counsel correctly pointed out that, although Mr. Aidarus put on a red and black jacket, he did not remove any of his clothing. In this sense it was factually incorrect to state that anyone was “changing clothes”.

[48] While Mr. Aidarus was not literally “changing” his clothes - in the sense of removing any of his clothing - he did put on a red and black jacket over top of a white t-shirt he was wearing. One of the distinctive features of the description of the suspects in the robbery of the Rogers store was that they had both been wearing white jumpsuits. Officer Dunne testified that he believed Mr. Aidarus was attempting to alter his appearance by putting on the red and black jacket. What Officer Dunne should have said was that he observed someone attempting to change his appearance by “putting on clothes”, as opposed to “changing clothes”. Nevertheless, I attach no particular significance to this error in his description, since the essential point was that he believed that persons around the BMW were attempting to change their appearance, so that their clothing would appear different to anyone who might have been looking for someone wearing a white jumpsuit.

[49] What of the fact that Officer Dunne stated over the radio that “they” were changing clothes? Only Mr. Aidarus was putting on a red and black jacket. Officer Dunne’s reference to more than one person changing their clothing was a further error in his description, shared with the other members of the team converging on the Plaza. Moreover, in cross-examination, Officer Cash acknowledged that had she been made aware that only one of the individuals around the BMW was changing his appearance, rather than a number of them, this would have made the circumstances somewhat less suspicious.

[50] While Officer Cash candidly acknowledged that Officer Dunne’s observation of persons around the BMW changing clothes was a factor in her decision to order the takedown, it was merely one of the constellation of factors which led her to make that decision. Quite apart from the reference to persons changing their clothes, there was more than ample evidence to order the arrest of Mr. Aidarus. In particular, Officer Cash pointed to the fact that the tracker phone had led the police to this particular location, which happened to be outside of a cell phone store, and Mr. Aidarus matched the description of one of the participants in the robbery.

[51] As discussed above, what must be considered is whether the totality of the circumstances relied upon by the arresting officers provided an objectively reasonable basis for the arrest, as opposed to any one fact or observation in isolation. While recognizing that Officer Dunne was mistaken in stating that “they were changing clothes”, I find that this error was made in good faith. I further find that, quite apart from this observation, the remaining circumstances relied upon by Officer Cash were sufficient to provide an objectively reasonable basis for ordering the arrest of Mr. Aidarus and others associated with him.

[52] The decision to arrest Mr. Aidarus and others associated with him in the I-Tech Solutions store was therefore based on reasonable and probable grounds.

D. Were there Reasonable and Probable Grounds to Arrest Mr. Miller?

[53] Mr. Miller argues that only two participants had been observed in the robbery of the Rogers cell phone store. Mr. Miller did not match the description of either person involved. Although he was observed in an area used by staff as opposed to members of the public, there could have been an innocent reason why he was in that area of the store. For example, it was possible that he was an employee who had changed his clothes after completing his work shift. Mr. Miller maintains that the only reason he was arrested was that he was a black male.

[54] Officer Cash stated that, based on her experience, she fully expected that there were additional suspects involved in the robbery. In fact, prior to the takedown being ordered, it was apparent that there were at least three individuals involved in this particular robbery, the third person being the driver of the BMW. Thus, the fact that Mr. Miller did not resemble the descriptions of the two perpetrators of the robbery at the Rogers store did not necessarily mean that he was not arrestable.

[55] Officer MacLean testified that he decided to arrest Mr. Miller on the following grounds:

a. when the takedown was ordered, the police knew that at least one other suspect, namely, I.B., was inside the cell phone store, but they had no way of knowing whether others who might have participated were also present;

b. when Officers MacLean and Heineman entered the cell phone store and asked the employees behind the counter “where are they?”, they were directed to a staff area behind the public area of the store;

c. Mr. Miller was in the staff area but, given his clothing (which differed significantly from the business casual dress of the two apparent employees who were also in the staff area), he did not appear to be an employee and thus had no reason to be in that area of the store;

d. the two employees in the staff area backed away when Officers MacLean and Heineman arrived, but Mr. Miller did not seem to react and continued to scroll through his cell phone;

e. when questioned, Mr. Miller did not provide any satisfactory explanation for being in an area of the store normally used by employees; and

f. Mr. Miller had a satchel which, in the officers’ experience, is often used to carry a firearm.

[56] Counsel for Mr. Miller appeared to concede that the officers had sufficient grounds to detain him for further investigation, but maintained that they did not have objectively reasonable grounds to make an arrest. His counsel highlighted the fact that Officer MacLean did not make any attempt to arrest or investigate the other two individuals who were present in the back area of the I-Tech Solutions store. In cross-examination, Officer MacLean indicated that “any number” of black males in the rear area of the store were arrestable. Mr. Miller argues that the only reason he was arrested was because he was a black male and that Officer MacLean engaged in racial profiling, similar to the arresting police officer in R. v. Dudhi.[^6]

[57] In my view, there were a number of circumstances which made the arrest of Mr. Miller objectively reasonable. In particular, the employees in the public area of the I-Tech Solutions store had indicated that individuals involved in the robbery could be found in the rear area of the store. When Officer MacLean entered this area, he immediately encountered Mr. Miller. Mr. Miller did not appear from his attire to be an employee, and he continued to scroll through his cell phone when confronted by the officers. Nor did he provide any explanation as to why he was in an area of the store normally used by staff. Mr. Miller was also wearing a satchel which caused the police officers to fear that he may have been carrying a concealed handgun.

[58] To be sure, the police officers did not question the other two individuals who were present in the rear area of the store. But, as Officer MacLean explained, this was because they appeared to be employees of I-Tech Solutions, and thus would not reasonably be expected to have been involved in the robbery of the Rogers cell phone store.

[59] Counsel for Mr. Miller claimed that Officers MacLean and Heineman had lied when they testified that that they had attempted to question Mr. Miller prior to arresting him. Counsel further claimed that the officers had also lied when they testified that the two employees in the rear area of the store had backed away when the officers entered the room. Counsel pointed to the preliminary inquiry testimony of both employees which, he argued, did not make any reference to the employees backing away upon the arrival of the police officers. Counsel argued that there was no reference in either of the police officers’ notes to the fact that the store employees had backed away from the officers when they entered the rear area of the store.[^7] It was also pointed out that the employees did not recall any conversation between the officers and Mr. Miller prior to the arrest.

[60] I note that counsel for Mr. Miller did not put to either Officer MacLean or Heineman that they were lying in these aspects of their testimony. He waited until his closing submissions to advance this argument, in apparent disregard of the rule in Browne v. Dunn.[^8]

[61] In any event, I see no contradiction between the preliminary inquiry evidence of the two employees and that of Officers MacLean and Heineman at trial. While the two employees did not make any reference in their preliminary inquiry testimony to having backed away when the police officers entered the room, they were not specifically asked about this matter. Nor do I attach any significance to the fact that the officers’ notes did not make reference to the employees backing away when the officers entered the rear area of the store. Both Officers MacLean and Heineman testified that they did not regard this fact as being significant enough to include in their notes. I accept their evidence that they observed the employees back away when the officers burst into the rear area of the store, despite the fact that this detail was not included in their notes.

[62] Both officers also testified that they did not rely on the specific content of any conversation that might have occurred with Mr. Miller in deciding to arrest him. What was more significant, in their view, was that he did not react in a manner which they regarded as satisfactory and he provided no explanation for his presence in the rear area of the store. In this sense, I do not regard the fact that the two store employees did not recall any conversation between the officers and Mr. Miller as being inconsistent with MacLean and Heineman’s evidence.

[63] In general terms, I find MacLean and Heineman’s description of the arrest to be plausible and credible. I note, in particular, the fact that they did not seek to rely on the presence of a large number of cell phones sitting on the table in front of Mr. Miller as a justification for arresting him. They testified that in the circumstances they were focused on Mr. Miller rather than whatever might have been sitting on the table. This supports the conclusion that they were not engaged in an ex post facto exercise aimed at justifying the arrest, but were attempting to provide a genuine account of their actions and reasoning.

[64] Finally, I note that in cross-examination, Officer MacLean indicated that “any number” of black males found in the rear area of the store were arrestable. At the same time, Officer MacLean refused to speculate as to how many persons might have been subject to being arrested.

[65] I find no basis to conclude that Officer Maclean’s arrest of Mr. Miller was a result of racial profiling. Rather, I find that Officer MacLean was looking for individuals who reasonably appeared to be associated with Mr. Aidarus or the stolen property and was not simply intent on arresting any black male he might have encountered in the store, regardless of the circumstances. As such, the facts here are very different from those before the Court of Appeal in Dudhi, where there was evidence that the arresting officer had relied upon racial stereotypes in making an arrest.

[66] I find the observations of Doherty J.A. in Golub to be particularly applicable in the present circumstances. The decision to arrest Mr. Miller took place in the context of a dynamic and dangerous situation. The officers were investigating an armed robbery involving a firearm. They had no way of knowing how many suspects were involved in the robbery. They had been directed by store employees that they would find participants in the robbery in the back area of the store, where they had encountered Mr. Miller. He did not appear to be an employee and yet he was standing in an area of the store reserved for employees. The officers had reason to be concerned that Mr. Miller may have been armed and had to make a decision on whether to arrest him almost immediately, before he could access any firearm he may have had in his possession.

[67] Officers MacLean and Heineman subjectively believed that they had reasonable and probable grounds to arrest Mr. Miller for robbery. I further find that, considering the totality of the circumstances, there were objectively reasonable grounds to justify the arrest of Mr. Miller. Although no one factor identified above may have been determinative, considered together, they establish that there was a reasonable probability that Mr. Miller was involved in the robbery.

[68] I also find that the arrest was carried out in a reasonable manner. The officers took Mr. Miller down to the ground only when he resisted their instructions to place his hands behind his back. After being handcuffed, he was placed on a chair. I find that no more force than was necessary to subdue Mr. Miller was applied in the circumstances.

[69] For the reasons above, I find that the arrest of Mr. Miller was based on reasonable and probable grounds and that there was no breach of his s. 9 Charter right to be secure from arbitrary detention and arrest.

IV. Was the Search of Mr. Miller’s Satchel and Motor Vehicle Consistent with s. 8 of the Charter?

A. Governing Principles

[70] The common law has long recognized a police power to search incident to a lawful arrest. The rationale for this power is that, assuming the arrest itself is lawful, police are permitted to take appropriate steps to ensure the safety of the police, the accused, and the public, prevent the suspect’s escape, and gather evidence relevant to the grounds for the arrest.[^9]

[71] That said, the power to search incident to arrest is subject to important limitations. First, the arrest itself must be lawful; second, the search must be truly incidental to the arrest and not undertaken for some collateral purpose; and third, the search must be carried out in a reasonable manner.[^10]

[72] I have already found the arrest of Mr. Miller to be lawful. I turn now to consider whether the search of his satchel and of his motor vehicle was reasonable and consistent with s. 8 of the Charter.

B. Search of the Satchel

[73] I have little difficulty in concluding that the search of Mr. Miller’s person, including his satchel, was truly incidental to his arrest and was carried out in a reasonable manner. Given the fact that the robbery had been committed with a firearm, Officers MacLean and Heineman were reasonably concerned that Mr. Miller’s satchel might contain a firearm. It was therefore entirely necessary and appropriate, in order to ensure their own safety, along with the safety of the employees, as well as that of Mr. Miller himself, that they search the satchel to determine if it contained a firearm.

[74] I also find that the search of the satchel was carried out in a reasonable manner. Although Mr. Miller was taken to the ground by the officers, this was done because Mr. Miller initially resisted his arrest. After taking him to the ground and placing him in handcuffs, Officer MacLean sat Mr. Miller on a chair and attempted to inform him of his rights to counsel. At this time, he removed the satchel and looked through it. Although he did not discover a firearm, he did locate, amongst other things, Mr. Miller’s ID and a key to a motor vehicle.

[75] The search of the satchel was therefore consistent with the police power to search incident to arrest and did not involve a violation of s.8 of the Charter.

C. Search of the Dodge Durango

a. Relevant Evidence

[76] A few minutes after Officer MacLean arrested Mr. Miller, he brought him outside the store and had him sit on a curb to await the arrival of other police vehicles to transport Mr. Miller to the police station. Officer MacLean handed the satchel that Mr. Miller had been wearing over to another member of the police team involved in the takedown, Officer Steven Sgroi.

[77] Officer Sgroi was unsure as to whether the satchel had been searched. Out of a concern for officer safety, he looked into the satchel. It did not contain a weapon, but Officer Sgroi observed that it did contain a key to a motor vehicle. When he removed the key from the satchel and pressed the buttons on the vehicle key, it linked to a Dodge Durango parked facing east, in a no-parking area, right next to the I-Tech Solutions store. In fact, the Durango was parked very near to where the BMW had previously been parked. Officer Sgroi placed the key to the Durango back in the satchel and did not at that time undertake a search of the vehicle.

[78] Officer Sgroi proceeded to take statements from the employees of the cell phone store regarding the events that had occurred prior to the takedown. The employees indicated that Mr. Miller had come in to the store and asked the store owner if he wanted to buy cell phones. Mr. Miller and I.B. had then carried a large gym bag containing phones into the back room of the store. Both Mr. Miller and I.B. had remained in the back area of the store until the police entered.

[79] While Officer Sgroi was obtaining these statements, Officer Heineman was reviewing the surveillance video from inside the I-Tech Solutions store. It disclosed that at approximately 6:25 PM, Mr. Miller entered the I-Tech Solutions store and spoke to an employee. Mr. Miller then returned to the BMW parked immediately outside the store and reached into the rear passenger seat of the vehicle. A few minutes later, Mr. Miller and I.B. came into the store carrying a large blue duffel bag. It is conceded that this duffel bag contained phones that were stolen from the Rogers cell phone store. Mr. Miller and I.B. took the duffel bag behind the store counter and into the rear area of the store. The blue duffel bag was subsequently located in the back area of the I-Tech Solutions store.

[80] While he was reviewing this surveillance video, Heineman was advised by another officer on scene, Aman Nasser, that there had been another armed robbery of a Rogers cell phone store on July 19, 2018 in which a white U-Haul van was used by the suspects to make good their escape. Because of the similarity between the two robberies, Nasser directed Heineman to review the July 19, 2018 surveillance video from the I-Tech Solutions store to determine if there was any evidence linking the three suspects to the earlier robbery.

[81] The July 19, 2018 surveillance video showed Mr. Miller entering the I-Tech Solutions store and motioning a store employee to come outside. Approximately one minute later, Mr. Miller, accompanied by an unidentified male, re-entered the store carrying a large green duffel bag. Mr. Miller and his associate proceeded to the back area of the store. Some minutes later, Mr. Miller and his associate returned to the public area of the store, where they could be observed receiving a cash payment from an employee. Mr. Miller and his associate then left the store.

[82] Officer Heineman informed Officer Nasser of his observations of Mr. Miller on the surveillance video from both July 19, 2018 and July 22, 2018. Officer Sgroi also informed Officer Nasser of what he had learned from the store employees regarding Mr. Miller’s involvement in the attempted sale of cell phones prior to the takedown. In addition, Officer Sgroi told Officer Nasser that the key that had been found in Mr. Miller’s satchel was linked to the Dodge Durango parked immediately in front of the I-Tech Solutions store.

[83] Officer Nasser testified that when he learned that the key found in Mr. Miller’s satchel was linked to the Dodge Durango, he decided to search the vehicle incident to the arrest of the three suspects. Based on the information he had received up to that point, he believed it was likely that the suspects had used the Durango to get to the Plaza after abandoning the U-Haul van. He therefore believed that the Durango would likely yield evidence relevant to the investigation, including stolen property or clothing used by the perpetrators.

[84] He was also concerned over the fact that he had 20 to 30 officers at that time searching for the U-Haul in the vicinity of the Finchdale Plaza. If he could confirm that the Durango, rather than the U-Haul, had been used to transport the suspects to the Plaza, most of the officers searching for the U-Haul could be assigned to other tasks. Nasser also testified that he was unaware of the possible involvement of a BMW in the robbery, and indicated that he had not heard the references to a BMW on the police radio prior to the takedown.

[85] Officer Nasser then directed Officer Sgroi to assist him in a search of the Dodge Durango. After unlocking the vehicle, Officer Sgroi opened the rear passenger door where he observed a child’s carseat. On the carseat was a diaper. Underneath the diaper he observed a loaded firearm. After being informed of this discovery, Officer Nasser proved the firearm safe and the car was sealed.

[86] Officer Nasser had directed a number of officers to retrace the movement of the GPS tracker phone back towards the Rogers cell phone store. Within approximately 25 minutes, the officers located the U-Haul parked in the vicinity of the Rogers store.

b. Analysis

[87] As noted above, it is well established that, as an incident of arrest, police officers may search the accused’s person as well as his immediate surroundings. Depending on the circumstances, this may include a search of a motor vehicle being driven by the accused or within his or her immediate control. The right to search a car incident to arrest, and the scope of that search, will depend on a variety of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of arrest, and other relevant circumstances.[^11] What matters is whether the search of the motor vehicle is truly incidental to the arrest, in the sense that police are attempting to achieve some valid purpose such as protecting evidence from destruction by the accused or others, or discovering evidence of the crime under investigation.[^12]

[88] Counsel for Mr. Miller argued that Officer Nasser was lying when he testified that he believed the Dodge Durango had been used to transport the suspects to the Finchdale Plaza. Counsel argued that Officer Nasser must have been aware of the fact that a BMW had been observed directly outside the I-Tech Solutions store. The logical inference was that the BMW rather than the Durango had been used by the suspects after they abandoned the U-Haul van.

[89] Counsel did not cross-examine Officer Nasser on this particular issue, thereby raising, again, a Browne v. Dunn concern. In any event, I have no reason to reject his evidence to the effect that he did not recall having heard about a BMW involving the suspects prior to the takedown being ordered by Officer Cash. Furthermore, regardless of whether the BMW had been used to transport some of the suspects, it was certainly reasonable for Officer Nasser to conclude that Mr. Miller had arrived at the Plaza from the scene of the crime using the Dodge Durango. Mr. Miller had a key that linked him to the Dodge Durango, and the vehicle was parked immediately in front of the I-Tech Solutions store where Mr. Miller had been arrested. It stands to reason that Mr. Miller had driven the Durango to the Plaza. By the time Officer Nasser decided to search the Durango, there was overwhelming evidence (based on the surveillance video as well as the statements provided by the store employees) that Mr. Miller had been involved in the robbery.

[90] I accept Officer Nasser’s evidence that his purpose in searching the Durango was to obtain evidence relevant to the investigation as well as to prevent destruction of any such evidence. He was also concerned to free up the considerable number of police officers who had been searching for the U-Haul vehicle in the vicinity of the Finchdale Plaza. I find that this was a valid purpose incident to the investigation.

[91] I further find that the search itself was carried out in a reasonable manner. Immediately upon locating a loaded firearm sitting on the child’s car seat, the firearm was proven safe and the vehicle was sealed. It was then transported to a secure location pending an application for a search warrant.

[92] I therefore find that the search of the Dodge Durango was incident to the lawful arrest of Mr. Miller, and was carried out in a reasonable manner. It follows that the search did not violate Mr. Miller’s rights protected by s. 8 of the Charter.

V. Did the Officers violate Mr. Miller’s Right to Counsel, as protected by s. 10(b) of the Charter?

[93] Mr. Miller argues that Officer MacLean failed to properly inform him of his right to counsel, contrary to s. 10(b) of the Charter.

[94] Section 10(b) of the Charter requires that anyone who is arrested must be informed of their right to counsel “without delay”. In R. v. Suberu,[^13] the Supreme Court of Canada interpreted the phrase “without delay” as meaning “immediately”.

[95] In this case the uncontradicted evidence is that Officer MacLean did in fact attempt to inform Mr. Miller of his right to counsel immediately upon arresting him. Officer MacLean testified that he attempted to advise Mr. Miller of his right to counsel after handcuffing him. However, Mr. Miller was objecting to his arrest and asking numerous questions, and indicating that he did not understand what was going on.

[96] After a few moments, Mr. Miller appeared to calm down. Officer MacLean told him he was under arrest for robbery and that he could contact a lawyer or would be provided with a free lawyer if he could not afford one. Mr. Miller was also cautioned that anything he said could be used as evidence against him. In his evidence, Officer MacLean stated that Mr. Miller may have indicated again that he did not understand. Officer MacLean asked him whether he had ever been arrested before. Mr. Miller advised that he had previously been arrested for an assault. Officer MacLean explained that the same thing was happening now except that he was being arrested for robbery rather than assault. Mr. Miller did not ask to speak to a lawyer.

[97] The police have an obligation to communicate the right to counsel to a person they are arresting. As the Supreme Court of Canada held in R. v. Evans, if there is an indication that the person does not understand what they are being told, the police must make reasonable efforts to explain what the right entails.[^14]

[98] In this case, Officer MacLean made two attempts to effectively advise Mr. Miller of his right to counsel immediately upon arresting him. Moreover, he did so in a clear and understandable manner, as opposed to reciting a mechanical formula. I find that Officer MacLean made good faith and reasonable efforts to advise Mr. Miller of his right to counsel.

[99] I would further observe that, unlike in Evans, there is no evidence to suggest that Mr. Miller would not have understood what he was being told. I therefore find no basis upon which it could reasonably be concluded that Mr. Miller would not have understood that he had a right to counsel upon being arrested.

[100] I therefore find that there was no breach of his right to counsel under s. 10(b) of the Charter.

VI. What significance should be attached to the fact that police subsequently obtained a search warrant to search Mr. Miller’s vehicle where the firearm was found?

[101] Following the initial search of the Dodge Durango, the vehicle was sealed and towed to a secure location. An ITO was prepared by Officer Nasser in order to authorize a search of the Durango as well as the U-Haul van that was found near the Rogers cell phone store. That search warrant was granted, and the subsequent search of the Durango resulted in the seizure of the firearm on the baby seat.

[102] The Crown argues that even if I were to find that the police violated Mr. Miller’s Charter rights, the proper remedy is simply to excise any references to information obtained as a result of these Charter violations from the ITO. The ITO had made reference to the fact that an initial search of the Dodge Durango had resulted in the discovery of a firearm in the backseat of the vehicle. The Crown concedes that, if the initial search of the Durango was invalid, the reference to the firearm having been observed in the vehicle should be excised from the ITO. However, even with this redaction, the Crown argues that there were sufficient grounds to justify the issuance of a warrant to search the Durango. Therefore, the issuance of the warrant was valid and the search that was conducted of the Dodge Durango was authorized by a valid warrant.[^15]

[103] In considering whether the warrant to search the Durango could have been validly issued even absent reference to the firearm discovered in the initial warrantless search, I note that the ITO contained extensive and detailed information linking Mr. Miller to the robberies that had been committed on July 19, 2018 and July 22, 2018. This included the statements obtained from the employees of I-Tech Solutions describing Mr. Miller and I.B. bringing a large duffel bag containing cell phones into the store to be sold for cash. The police had also reviewed surveillance video showing Mr. Miller bringing duffel bags containing cell phones into I-Tech Solutions on both July 19, 2018 and July 22, 2018.

[104] I further find that the police would have discovered the connection between Mr. Miller and the Durango had they merely detained him for further investigation, as opposed to arresting him. Counsel for Mr. Miller concedes that there were sufficient grounds to justify the detention of Mr. Miller, given his presence in an area of the I-Tech Solutions store normally used by employees. Given that there had been a firearm used in the robbery of the Rogers cell phone store, combined with the fact that Mr. Miller was wearing a satchel, the police would have been justified in searching the satchel.[^16] Such a search would have resulted in the discovery of the key to the Dodge Durango, as well as a link between Mr. Miller and the vehicle.

[105] I therefore find that, quite apart from information that may have been obtained in contravention of the Charter, there were ample grounds in the ITO to justify the issuance of a warrant to search the Dodge Durango.

[106] This finding does not necessarily obviate the necessity to consider whether the evidence relating to the firearm should be excluded at trial, pursuant to s. 24(2) of the Charter. As Sopinka J. noted in Grant (1993) where there is a temporal link between an infringement of the Charter and the discovery of the evidence, such that the Charter violation and the discovery of the evidence occur in the course of a single transaction, the evidence will have been “obtained in a manner” that infringed the Charter.

[107] In this case, the arrest of Mr. Miller and the subsequent search of the Dodge Durango were part of a single transaction occurring over a short span of time. The police discovered the connection between Mr. Miller and the Durango through his arrest and the search of his satchel. The subsequent search of the Durango occurred within 90 minutes of his arrest. I find that the search of the Durango cannot be severed from the arrest of Mr. Miller. Thus, had I found that Mr. Miller’s arrest and/or the search of his satchel and the Durango violated his Charter rights, despite the issuance of the search warrant I would have found it necessary to consider whether the firearm should be excluded pursuant to s. 24(2) of the Charter.

VII. If Mr. Miller’s arrest and/or search was unlawful, should the evidence be excluded pursuant to s. 24(2) of the Charter?

[108] Although I have found that the police did not violate any of Mr. Miller’s rights in arresting and searching him and the Dodge Durango, I consider whether, if I had reached a different conclusion, I would have excluded the evidence obtained by the police pursuant to s. 24(2) of the Charter.

A. Governing Principles

[109] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute.

[110] As the Supreme Court of Canada determined in R. v. Grant (2009), the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to:

a. The seriousness of the Charter-infringing state conduct;

b. The impact of the breach on the Charter-protected interests of the accused; and

c. Society’s interest in the adjudication of the case on its merits.[^17]

[111] In considering the first prong of the test, namely, the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send a message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes.[^18]

[112] With respect to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused. As with the first prong of Grant (2009), this requires a consideration of the degree of seriousness of the impact on protected Charter rights. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual or practical significance.

[113] Under the third prong of analysis, the court must consider whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. Although this third line of inquiry typically pulls toward inclusion of the evidence, in order to further the societal interest in an adjudication on the merits, this will not always be so. As the Supreme Court of Canada observed recently in R. v. Le,[^19] an adjudication on the merits, in a rule of law state, presupposes an adjudication grounded in legality and respect for long-standing constitutional norms.

[114] These three lines of inquiry cannot be applied with mathematical precision according to a fixed formula. Rather, what must be considered is the overall impact that admission of the evidence would have upon the reputation of the administration of justice. This necessarily requires a qualitative assessment of the totality of the circumstances.[^20]

B. Application of the Principles

a. The seriousness of the Charter-infringing state conduct

[115] In my view, the Charter-infringing state conduct in this case tends to fall on the less serious end of the spectrum. The police were attempting to apprehend persons whom they believed had been involved in an armed robbery. They believed that time was of the essence given the fact that it was likely that the participants in the robbery were in the process of disposing of the stolen property. The decision to order the takedown and the eventual arrest of Mr. Miller was made in a volatile situation where officer safety, as well as the safety of the public, were significant considerations. I further find that the officers acted in good faith throughout, based on the limited information they had before them.

b. The impact on the Charter-protected interests of the accused

[116] While challenging the legality of Mr. Miller’s arrest, counsel for Mr. Miller appeared to concede that the police would have been entitled to detain him in order to investigate his possible involvement in the robbery. This is material since, within half an hour of arresting Mr. Miller, the police obtained significant evidence implicating him in the robbery. This evidence consisted of the statements made by the store employees as well as the surveillance video showing Mr. Miller bringing a duffel bag containing phones into the store. It is conceded for purposes of this application that the phones in the duffel bag were those that had been stolen from the Rogers store.

[117] In short, if the police had merely detained Mr. Miller rather than arrested him, within a short period of time they would have had sufficient grounds to arrest him. In this event, his liberty would have been restricted from the moment the takedown was ordered - he would not have been permitted to leave - and the end result would have been that he was lawfully arrested and charged with robbery. Thus, while recognizing that any unlawful arrest involves a significant deprivation of liberty, the impact in this case is somewhat attenuated by the fact that he would have been lawfully arrested shortly thereafter.

[118] Also relevant is the fact that the police subsequently obtained a warrant to search the Dodge Durango. As discussed earlier, that search warrant could have been validly issued even absent any information or facts obtained as a result of the arrest of Mr. Miller and the initial warrantless search of the vehicle. Where evidence would have been inevitably discovered regardless of any Charter violation, this tends to lessen the impact of the breach on an accused’s Charter rights.[^21]

[119] Also relevant to this branch of the s. 24(2) analysis is the fact that the firearm was discovered through a search of a motor vehicle, namely, the Dodge Durango. It is settled law that individuals have a diminished expectation of privacy in a motor vehicle.[^22] Therefore the search of the Durango, even if unauthorized, would have involved a less serious breach of his Charter rights.

c. Society’s interest in Adjudication on the Merits

[120] The charges against Mr. Miller are serious and the evidence is highly reliable. Moreover, if the evidence is excluded it will significantly impact the Crown’s case. This factor tends to support the admission of the evidence.

d. Balancing the Factors

[121] Police were responding to a serious threat to public safety, namely, an armed robbery committed in a cell phone store. They acted in good faith in the context of a volatile situation involving a serious threat to officer and public safety. They had articulable cause to detain Mr. Miller and investigate his involvement in the robbery and would have obtained evidence sufficient to justify his arrest within half an hour of detaining him. Moreover, even absent a Charter violation, the firearm would have been inevitably discovered through the issuance of a valid search warrant.

[122] Considering the totality of the circumstances, even if there had been a breach of Mr. Miller’s Charter-protected rights in either his arrest or search of the vehicle, I do not believe that admission of the evidence obtained from this search would send a message to the public that courts condone serious state misconduct. I find that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of evidence obtained by the police in this case would not bring the administration of justice into disrepute. The evidence is therefore admissible.

VIII. Disposition

[123] Mr. Miller’s application to exclude evidence obtained as a result of his arrest and search is dismissed.

[^1]: R.S.C. 1985, c. C–46.

[^2]: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, at pp. 250-251.

[^3]: For a helpful summary of the general principles that have been developed in this area see the analysis of K.L. Campbell J. in R. v. St. Clair, 2018 ONSC 5173, at paras. 46-49.

[^4]: 1997 CanLII 6316 (ON CA), 34 OR (3d) 743 (C.A.), at para. 18.

[^5]: R. v. Lawes, 2007 ONCA 10, at para. 4.

[^6]: 2019 ONCA 665.

[^7]: Counsel for Mr. Miller also pointed out that surveillance video taken from the public area of the I-Tech Solutions store briefly captured one of the store employees in the rear area just as the officers were entering that rear area. Counsel claimed that the video did not show the employee backing away as the officers entered the rear area. However counsel did not cross-examine any of the police witnesses on this issue; in any event, I find the video to be inconclusive on this point.

[^8]: (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), at pp. 70–71.

[^9]: See R. v. Fearon, 2014 SCC 77, 3 SCR 621, at paras. 16-18.

[^10]: See R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at para. 14.

[^11]: Caslake, at para. 23.

[^12]: R. v. Tsekouras, 2017 ONCA 290, at para 87.

[^13]: 2009 SCC 33, 2 SCR 2, at paras. 41-42.

[^14]: 1991 CanLII 98 (SCC), [1991] 1 SCR 869.

[^15]: See R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223, at pp. 251-252 (“Grant (1993)”); R. v. Ricketts, 2000 CanLII 4859 (Ont. C.A.), at para. 18

[^16]: See R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, at paras. 40-43.

[^17]: R. v. Grant, 2009 SCC 32, 2 SCR 353, at para. 71 (“Grant (2009)”).

[^18]: See R. v. Boussoulas, 2014 ONSC 5542, at para. 157, affirmed in 2018 ONCA 222.

[^19]: R. v. Le, 2019 SCC 34, at para. 158.

[^20]: See the analysis of Brown J.A. in R. v. Omar, 2018 ONCA 975, at paras. 108-121, affirmed in 2019 SCC 32.

[^21]: R. v Grant (2009), at para. 122.

[^22]: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341.

R. v. Miller, 2019 ONSC 6589

Case Summary

RULING ON VOIR DIRE

I. Overview of the Case

II. Issues

III. Were there Reasonable and Probable Grounds to arrest Mr. Miller?

A. Governing Principles

B. Position of the Applicant

C. Were there Reasonable and Probable Grounds to Order the Arrest of Mr. Aidarus and his Associates?

D. Were there Reasonable and Probable Grounds to Arrest Mr. Miller?

IV. Was the Search of Mr. Miller’s Satchel and Motor Vehicle Consistent with s. 8 of the Charter?

A. Governing Principles

B. Search of the Satchel

C. Search of the Dodge Durango

a. Relevant Evidence

b. Analysis

V. Did the Officers violate Mr. Miller’s Right to Counsel, as protected by s. 10(b) of the Charter?

VI. What significance should be attached to the fact that police subsequently obtained a search warrant to search Mr. Miller’s vehicle where the firearm was found?

VII. If Mr. Miller’s arrest and/or search was unlawful, should the evidence be excluded pursuant to s. 24(2) of the Charter?

A. Governing Principles

B. Application of the Principles

a. The seriousness of the Charter-infringing state conduct

b. The impact on the Charter-protected interests of the accused

c. Society’s interest in Adjudication on the Merits

d. Balancing the Factors

VIII. Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 3

Legislation 2