ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-139

DATE: 2019-12-06

BETWEEN:

Her Majesty the Queen

– and –

Robert Cave, Defendant

Counsel:

Phillip J. Brissette for the Crown

Steven K. Stauffer for the Defendant

HEARD: November 18 – 20, 2019.

REASONS FOR JUDGMENT

Boswell J.

INTRODUCTION

[1] The Crown contends that Mr. Cave is a drug trafficker. He is charged with five offences, specifically: possession of cocaine; possession of cocaine for the purpose of trafficking; possession of heroin; possession of heroin for the purpose of trafficking; and possession of a prohibited weapon.

[2] Mr. Cave’s trial proceeded over three days. The trial proper was blended with an application Mr. Cave brought to exclude evidence under s. 24(2) of the Charter of Rights and Freedoms. There is no dispute that Mr. Cave was found by the police to be in possession of cocaine, heroin and a prohibited weapon. There is no dispute that the quantity of drugs he was found in possession of are consistent with trafficking. There are other indicia of trafficking present here as well, including $900 in Canadian currency found in Mr. Cave’s pocket and a set of digital scales found in a vehicle Mr. Cave was a passenger in. There is no dispute that Mr. Cave did not have a license to possess the prohibited weapon.

[3] What is in dispute is whether any of the evidence seized by the police – the drugs, the weapon, the money and the scales – should be excluded from evidence.

[4] Mr. Cave asserts that the police breached his ss. 8, 9, 10(a) and 10(b) Charter rights. He submits that the circumstances of those breaches warrant the exclusion of the evidence seized by the police under s. 24(2) of the Charter.

[5] The Crown’s broad position is that none of Mr. Cave’s Charter rights were breached. In the alternative, if there were breaches, they were minor and do not warrant the exclusion of evidence.

[6] It is agreed between the Crown and the defence that the outcome of the Charter applications will determine the outcome of the trial. In other words, it is agreed that if the impugned evidence is excluded, Mr. Cave must be acquitted. On the other hand, if the evidence is not excluded, Mr. Cave concedes that the charged offences are established to the reasonable doubt standard.

THE FACTS

[7] The facts are relatively straightforward and, by and large, not disputed.

The CI Tip

[8] Jeff Varey is a detective constable with the Ontario Provincial Police. He works in their community street crime unit out of Barrie and Orillia. As part of his job he handles confidential informants. He was acting in this role in November 2017.

[9] On November 16, 2017 DC Varey received information from a confidential informant (“CI”) to the effect that there was a black male in Barrie trafficking in heroin and cocaine. The male went by the name “Chris” and he was in the company of two females: Sam, from Angus, and Lisa. They were driving in an older 1990s green pickup truck, driven by Lisa. There was a bale of hay in the bed of the truck.

[10] DC Varey testified that he considered the CI in question to be a trusted and reliable source of information. He said he has received information from the CI on several prior occasions which has led to arrests being made. He said the CI has never given him information that proved to be false. The CI has never received compensation for any information provided.

[11] DC Varey was unable to testify about how recent the CI’s information was, on the basis that disclosing such information might tend to identify the CI. The same answer was given in cross-examination in relation to whether the information provided by the CI was firsthand or hearsay and whether the CI has a criminal record.

[12] In any event, DC Varey contacted DC Brad Breedon of the Barrie Police Service (“BPS”) at about 2:09 p.m. on November 16, 2017 and relayed to him the information he had received from the CI. DC Breedon knew DC Varey from investigations they had worked on together in the past. He testified that DC Varey told him the CI was a reliable source and the information was recent. DC Breedon did not probe DC Varey about what factors informed his opinion that the CI was reliable. He testified that he understood that “reliable” meant there was something to back it up.

[13] Jason Breedon is the brother of Brad Breedon and also a detective constable with the BPS. For ease of reference, going forward in this ruling, when I refer to DC Breedon, I am referring to DC Jason Breedon. Where I reference DC Brad Breedon, I will use his full name.

[14] DC Breedon testified that his brother contacted him at roughly 2:32 p.m. on November 16, 2017 and advised him that he had received information from a CI, via the OPP, that was recent and very reliable. The information was to the effect that there would be a green pickup truck with a hay bale in the back in a particular area of the south end of Barrie. There would be a female driver and a black male passenger who would have cocaine.

[15] DC Breedon did not know the identity of the CI, whether the CI’s information was based on firsthand observations or otherwise, whether the CI had a criminal record, or whether the CI had a history of providing accurate information to the police.

The Surveillance

[16] DC Breedon said that, as a result of the information he had received from his brother, he positioned his marked police cruiser on Country Lane, where it intersects with Mapleview Drive. At 3:10 p.m. he observed a green pickup truck with a bale of hay in the back come through the controlled intersection of Country Lane and Mapleview. He said he observed it accelerate to a high rate of speed to beat a yellow light. As it passed his position, he noticed a female driver and two passengers: another female in the middle and a black male in the passenger side seat.

The Traffic Stop

[17] DC Breedon activated his lights and effected a traffic stop without incident. He said the truck pulled over right away. He approached the driver’s side window and spoke to the driver, who identified herself as “Lisa Stewart”. She said she did not have her driver’s licence with her. Officer Breedon asked her who her friends in the vehicle were. She identified them as “Sam” and “Chris”. He then asked each of the passengers for identification and they each told him they did not carry any. The female identified herself as Samantha Clark, while the male identified himself as Robert Cave.

[18] Mr. Cave testified that he felt intimidated by DC Breedon and felt he had to answer his questions even though he did not want to.

[19] DC Breedon used his police radio to conduct a CPIC query of Robert Cave at the side of the truck. He was advised that Mr. Cave was flagged as “armed and dangerous”. That flag is something of a curiosity because Mr. Cave did not have a criminal record, nor was he wanted on any outstanding charges.

[20] At 3:16 p.m. a second officer – PC Lamont – arrived on scene, in response to a request by DC Breedon for a second unit. Just as PC Lamont was arriving, DC Breedon asked Mr. Cave to exit the vehicle. Mr. Cave described it as more of a demand. He said he asked why and at that point DC Breedon walked around the front of the vehicle to the passenger’s side and again demanded that Mr. Cave exit the vehicle. Mr. Cave complied. As he was doing so, PC Lamont was approaching the passenger’s side of the vehicle from the rear.

[21] There is no dispute that this traffic stop was, in effect, a detention of Mr. Cave. Whether there was a Highway Traffic Act violation that may otherwise have warranted a traffic stop is neither here nor there for the purposes of this proceeding. DC Breedon agreed, under cross-examination, that when he pulled the truck over he was, in his mind, detaining Mr. Cave in relation to a criminal investigation. He described it as a “surreptitious CDSA[^1] investigation”. He did not advise Mr. Cave straightaway about the reason for the detention. He said he did not want to tip Mr. Cave off until there was further evidence.

The Arrest

[22] As Mr. Cave exited the truck, DC Breedon observed a black folding knife fall onto the passenger’s seat. He said he immediately grabbed Mr. Cave’s wrist and detained him for possession of a weapon.

[23] DC Breedon testified that he picked up the knife and found that it could be opened through the use of centrifugal force, which means it was a prohibited weapon as defined in s. 84(1) the Criminal Code. He said he arrested Mr. Cave for possession of a prohibited weapon. The time was 3:17 p.m.

[24] Mr. Cave testified that when he stepped out of the truck DC Breedon handcuffed him, searched him and brought him to his squad car, without saying anything to him.

The First Search of Mr. Cave

[25] DC Breedon conducted a pat down search of Mr. Cave, incident to his arrest. He noted that Mr. Cave was wearing more than one layer of clothing. He was wearing, for instance, a pair of jeans beneath a pair of sweatpants. DC Breedon located two wads of cash in Mr. Cave’s front left pocket. He later counted it out to be $900.

[26] Just as DC Breedon had commenced his search of Mr. Cave, another officer – PC Harris – arrived on scene. PC Harris testified that DC Breedon directed him to search Ms. Clark for weapons, which he did. He then assisted in the search of Mr. Cave, finding a joint of marijuana in the right pocket of an outer jacket Mr. Cave was wearing. DC Breedon said he advised Mr. Cave that he was under arrest for possession of a prohibited substance.

The Search of the Truck

[27] DC Breedon left Mr. Cave in the custody of PC Harris in order to conduct a search of the area of the pickup truck where Mr. Cave had been seated, again incident to Mr. Cave’s arrest. He testified that he located a digital scale with white powder on it and some yellow cellophane wrapping that he associated with drug packaging. In DC Breedon’s opinion, the items he located in the pickup truck corroborated the CI information his brother had passed on to him.

The Strip Search

[28] DC Breedon returned to his police vehicle. PC Harris was with Mr. Cave by the vehicle. DC Breedon noticed what he described as a large bulge in the area of Mr. Cave’s crotch. He asked Mr. Cave what was down the front of his pants. According to DC Breedon, Mr. Cave said, “It’s nothing…go ahead”. DC Breedon said he understood this to be Mr. Cave’s consent to search inside his pants. PC Harris also testified that Mr. Cave said “No, go ahead” in response to DC Breedon asking if he had anything down his pants and if he could take a look.

[29] Mr. Cave’s account of events differs from that of the two officers. He testified that he was asked if they could search him and he said no. Nevertheless they pulled his pants down his thighs and reached into his crotch area. He said he felt humiliated and he told the officers that what they were doing was wrong.

[30] Consent or not, DC Breedon, with the assistance of PC Harris, conducted a search of Mr. Cave’s crotch area. DC Breedon testified that he suspected there were drugs down Mr. Cave’s pants, but he was also concerned that there could be a weapon. He pulled the layers of pants away from Mr. Cave’s body, revealing a white sock tucked between a pair of boxer shorts and Mr. Cave’s penis. He removed the sock and found it to contain a white powdery substance that he suspected was cocaine.

[31] According to DC Breedon, the search took only seconds. Mr. Cave was never exposed to members of the public. He was behind one or more police vehicles that shielded him from passing traffic. Moreover, behind the police vehicles was an open farmer’s field so there was no concern for pedestrian traffic.

Right to Counsel and Caution

[32] DC Breedon testified that he read Mr. Cave his right to counsel and caution from the back of his police notebook at 3:25 p.m. Mr. Cave indicated that he wished to speak to his lawyer, Mr. Stauffer.

[33] DC Breedon left the scene with Mr. Cave at 3:38 p.m. and arrived at the police station about ten minutes later. Mr. Cave was paraded before a booking officer as well as Staff Sergeant Fearon. According to Mr. Cave, he was not provided with information about his right to counsel, nor cautioned, until he arrived at the police station.

[34] It was determined that a full strip search should be conducted of Mr. Cave. DC Breedon did so, in a private room, assisted by PC Harris and Staff Sergeant Fearon. Mr. Cave was placed in a cell following the search.

[35] DC Breedon proceeded to process items seized at the scene. He was under the impression that the booking officer was going to facilitate Mr. Cave’s right to counsel by contacting Mr. Stauffer. But that did not happen. At 4:47 p.m., now some ninety minutes after Mr. Cave was first detained, DC Breedon contacted Mr. Stauffer. Mr. Cave’s right to counsel was implemented at this time.

THE ISSUES:

[36] The factual circumstances and the arguments advanced by the parties raise the following issues for determination:

(i) Was the detention of Mr. Cave arbitrary?

(ii) Was the arrest of Mr. Cave lawful?

(iii) Were the searches of Mr. Cave, and the vehicle he travelled in, lawfully conducted?

(iv) Did the police comply with their obligations under s. 10(a) of the Charter?

(v) Did the police comply with their obligations under s. 10(b) of the Charter?

(vi) If Mr. Cave’s Charter rights have been abridged, should the impugned evidence be excluded under s. 24(2) of the Charter?

[37] I will address each issue in turn.

Issue One: The Detention

The Governing Principles

[38] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.

[39] “Detention” as used in s. 9 refers to “a suspension of the individual’s liberty interest by a significant physical or psychological restraint.” See R. v. Grant, 2009 SCC 32, at para. 44.

[40] That Mr. Cave was detained in this instance is not in dispute. DC Breedon conceded that he intended to detain Mr. Cave when he pulled over the green pickup truck. In his mind it was clear that he would not have let Mr. Cave walk away had he chosen to do so. The dispute is about the lawfulness of the detention.

[41] Police officers have a recognized common law power to conduct brief investigative detentions. See R. v. Mann, 2004 SCC 52, at para. 34. The lawfulness of investigative detentions is premised on the officer in question having a reasonable suspicion that “there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.” Mann, at para. 34. The officer must have a subjective suspicion that the detainee is in some manner connected to a recent or ongoing criminal offence and that subjective suspicion must be objectively reasonable.

[42] The concept of “reasonable suspicion” was elaborated on by the Supreme Court in R. v. Kang-Brown, 2008 SCC 18 where Binnie J. in partially concurring reasons, wrote as follows, at para. 75:

“Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds.

The Parties’ Positions

[43] The Crown’s position is that DC Breedon had a reasonable suspicion that Mr. Cave was engaged in drug dealing based on the information provided by a confidential informant. The CI did not name Mr. Cave specifically, other than by his nickname, “Chris”. But other details were provided that identified him. The Crown contends that DC Breedon was entitled to rely on his brother’s indication that the CI was “very reliable”. Based on that information, DC Breedon’s suspicion that Mr. Cave was engaged in criminal activity was objectively reasonable.

[44] The defence position is multi-pronged. First, defence counsel asserts that DC Breedon was not entitled to simply rely on his brother’s bald statement that the CI was very reliable. It was incumbent upon him to make inquiries and to corroborate the CI’s information before detaining Mr. Cave. Having made no independent investigation regarding the reliability of the CI’s information, DC Breedon’s “suspicion” could not be objectively reasonable.

[45] Second, the information provided by the CI – at least insofar as it is reflected in evidence on this application – is insufficient to ground a reasonable suspicion.

[46] Finally, DC Breedon’s observations – of a green truck, with a hay bale, a female driver and a black male passenger – did not corroborate the material information provided by the CI, which is that the male was in possession of cocaine for the purpose of trafficking.

Discussion

[47] It is clear that DC Breedon could not have lawfully detained Mr. Cave, based solely on his own observations. At best, he observed a pickup truck accelerate through a yellow light, justifying a traffic stop. Mr. Cave was not, however, driving the pickup truck and there was no basis to detain him for any Highway Traffic Act violation.

[48] DC Breedon relied on information he had received from his brother, DC Brad Breedon, to ground his suspicion that Mr. Cave was involved in a criminal offence. DC Brad Breedon, in turn, relied on information he had obtained from DC Varey.

[49] A police officer may form his or her grounds to arrest or detain an individual based on information he or she has received from another officer. Indeed, it was open to DC Breedon to detain Mr. Cave for investigative purposes based on the grounds held by another officer, without knowing what the grounds were. See R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at para. 50; R. v. Awalu, [1997] O.J. No. 5539 (S.C.J.), at para. 17; and R. v. Kassa, [2006] O.J. No. 2952, at para. 26.

[50] In this case, DC Breedon knew what the grounds were, but he was not in a position to make his own assessment about the reliability of the CI’s information. I am satisfied, based on the authorities I referred to in the previous paragraph, that DC Breedon was entitled to rely on another officer’s assessment that the CI’s information was reliable and gave rise to a reasonable suspicion that Mr. Cave was involved in criminal activity. That does not mean that the CI’s information was reliable, only that the detention was not unlawful solely on the basis that DC Breedon did not conduct his own investigation into the reliability of the informant.

[51] The officer who did assess the informant’s reliability was DC Varey. As I set out above, he testified that the CI was a trusted source who had provided accurate information on a number of occasions in the past. He gave sparse additional detail about the CI for fear of disclosing his or her identity.

[52] In R. v. Debot, as above, the Supreme Court provided direction to trial judges faced with assessing the sufficiency of information received by the police and relied upon to support grounds to conduct a warrantless search. These directions are equally applicable when assessing the sufficiency of grounds to obtain a warrant or to arrest or detain a person. The Supreme Court instructed trial judges to consider: (1) whether the information relied upon was compelling; (2) whether the source of the information was credible; and (3) whether the information was corroborated by the police. (Debot, para. 53).

[53] It is important to recognize that in Debot, the police had conducted a warrantless search of a person and vehicle, pursuant to s. 37(1) of the Food and Drugs Act, R.S.C. 1970 c. F-27. That section provided that a peace officer could, without a warrant, enter and search any place other than a dwelling house and any person found in such place. The right to conduct such a search was only triggered where there was a “reasonable probability” that a controlled drug would be found in the place or in the possession of the person to be searched.

[54] A reasonable probability (or reasonable and probable grounds) is a higher standard than reasonable suspicion. While the Debot factors are still, in my view, relevant considerations, one must keep in mind that the information relied upon need not be as compelling to support a reasonable suspicion as it would need to be to support a reasonable probability.

[55] In considering whether a tip from a confidential informant is compelling courts will have regard to a number of different factors, such as the recency of the information, its detail and its source.

[56] In this instance, I find that the evidence was of a modestly compelling nature.

[57] According to the evidence of DC Brad Breedon it was recent. But DC Varey, who handled the CI, would not say whether it was recent. I think, given the nature of the information and the specificity about where the green pickup truck would be and when, the information had to be reasonably recent. It is not otherwise in evidence how the CI came to have his or her information – whether it was firsthand or otherwise. There is no information regarding whether the informant was immersed in the drug subculture. The informant did not provide Mr. Cave’s actual name, so the police had no indication of whether the so-called “black male” was someone known to them, or someone who had a criminal record for drug-related offences. The police had no information that any of the other occupants of the truck were known to be drug users or traffickers.

[58] A detailed description of the vehicle and its occupants was provided, but it appears to me that the details of criminal conduct were rather limited; just a bald assertion that one of the occupants of the vehicle was trafficking in cocaine.

[59] To determine whether the source of information was credible courts will consider such factors as whether the informant was known to the police, whether he or she had provided accurate information in the past, whether the informant has a criminal record, the source of the informant’s knowledge – whether firsthand or otherwise – and whether any benefit was sought by or promised to the informant for the information in issue.

[60] In this instance the source of the tip to the police was a known informant, someone who had provided accurate information on a number of occasions in the past, and there was no inducement or quid pro quo for the information. There is no evidence of the source of the informant’s knowledge, nor any indication as to whether the informant has a criminal record.

[61] On balance, I am satisfied that the tip was credible, principally because it came from a known source with a proven track record.

[62] The information was not otherwise corroborated. While it is true that DC Breedon observed a green pickup truck with a hay bale in the back being driven by a female, none of those factors supported an investigative detention. The sole factor that would support an investigative detention – the allegation of drug possession and trafficking – was not in any way corroborated.

[63] A reasonable suspicion can be established on facts less demanding than those required for reasonable and probable grounds. By less demanding, I am referring to both qualitative and quantitative measures. A reasonable suspicion may arise from evidence that is less reliable than that required to support a reasonable probability. See R. v. Kang-Brown, as above, at para. 75.

[64] My consideration of the Debot factors leads to the conclusion that the police had a modestly compelling, but uncorroborated, tip from a credible source. This constellation of factors would not support a reasonable probability that the black male identified as “Chris” was in possession of controlled drugs. But it is enough, in my view, to support a reasonable suspicion.

[65] Put another way, I am satisfied that DC Breedon had a subjective suspicion that the male occupant of the green truck with a hay bale in the back was implicated in criminal activity under investigation, based on the information conveyed to him by his brother. I am further satisfied, based on DC Varey’s limited evidence about the CI, that his subjective suspicion was reasonable.

[66] This was not an indiscriminate exercise of police power. This stop was not based on a “hunch” or “intuition”. There were objectively discernable facts – albeit limited ones – that enabled me to make an independent assessment of the reasonableness of the suspicion held by DC Breedon.

[67] In the result, I conclude that the investigative detention of Mr. Cave was not arbitrary and did not contravene his s. 9 Charter right.

Issue Two: The Arrest

The Governing Principles

[68] The necessary grounds to effect a lawful arrest are somewhat more demanding than those necessary to effect an investigative detention. Specifically, a police officer may lawfully arrest a person, without a warrant, where he or she has reasonable and probable grounds to believe that the person has committed, or is about to commit, an indictable offence. See s. 495(1)(a) of the Criminal Code.

[69] In this instance, DC Breedon must have had a subjective belief that Mr. Cave had committed, or was about to commit, an indictable offence and that belief must have been objectively reasonable. See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at para. 17.

[70] The “reasonable and probable grounds” standard requires a “credibly-based probability” that the person has committed, or is about to commit, an indictable offence. See for instance, R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (Gen. Div.).

The Parties’ Positions

[71] Defence counsel conceded that DC Breedon was entitled to detain Mr. Cave for investigation of a weapons offence once he saw the knife. He asserted however, that this continued detention was irredeemably tainted by the initial arbitrary detention. He did not otherwise allege that the arrest for possession of a prohibited weapon was unlawful.

[72] The Crown’s position is that DC Breedon had subjective grounds to believe that Mr. Cave was in possession of the knife he observed fall onto the passenger seat of the truck. He had received information that Mr. Cave was flagged on CPIC as armed and dangerous and, of course, he saw the knife fall in the area where Mr. Cave had been sitting just as Mr. Cave was exiting the vehicle. In all the circumstances, those subjective grounds were objectively reasonable and supported a lawful arrest.

Discussion

[73] The lawfulness of the arrest for possession of a prohibited weapon is not, as the foregoing paragraphs may have signalled, a particularly contentious issue. Having found the original detention lawful, it is unnecessary to consider whether it tainted the subsequent detention or arrest.

[74] I accept that DC Breedon subjectively believed the knife he observed was in Mr. Cave’s possession. I find that belief to have been objectively reasonable in the circumstances as described by DC Breedon. Mr. Cave testified that DC Breedon grabbed his arm as soon as he stepped out of the truck, but he offered no evidence to contradict DC Breedon’s version of events as they related to the knife falling onto the passenger seat as he exited the truck. I therefore have only DC Breedon’s version of events, which I found to be generally credible.

[75] In the result, I conclude that the initial arrest of Mr. Cave was lawful.

Issue Three: The Searches Incident to Arrest

[76] The police conducted four searches in this case, all incident to Mr. Cave’s arrest:

(a) A pat-down search of Mr. Cave, following his arrest for possession of a prohibited weapon;

(b) A search of the front seating area of the pickup truck;

(c) A search down the front of Mr. Cave’s pants at the roadside; and,

(d) A full strip search at the police station.

[77] The defence does not contest the lawfulness of the strip search at the police station.

The Governing Principles

[78] Section 8 of the Charter guarantees the right of every person to be secure against unreasonable search or seizure. It serves to protect the privacy of individuals against the intrusive conduct of the state.

[79] Section 8 is engaged only when state agents intrude upon a reasonable expectation of privacy. See R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8 at para. 11. A reasonable expectation of privacy exists if a person subjectively expected privacy in the circumstances and that expectation was objectively reasonable. See R. v. Edwards, as above, at para. 45; R. v. Marakah, 2017 SCC 59 at para. 10; and R. v. Jones, 2017 SCC 60 at para. 11.

[80] Reasonable expectations of privacy exist on a spectrum or in a hierarchy of places: Marakah, at para. 29. While the underlying principle is that s. 8 protects persons and not places, the notion of place is frequently used as “an analytical tool to evaluate the reasonableness of a person’s expectation of privacy”: R. v. Tessling, 2004 SCC 67 at para. 22.

[81] In this instance, the Crown concedes that Mr. Cave had a reasonable expectation of privacy in the passenger area of the pickup truck, albeit a reduced one. He obviously had a reasonable expectation of privacy in his own body. There is no dispute, in the result, that he has standing to allege s. 8 violations.

[82] In Canada, there is a general rule that warrantless searches are prima facie unreasonable under s. 8 of the Charter. Searches incident to arrest, however, are an established exception to this general rule: R. v. Golden, 2001 SCC 83, at para. 84.

[83] The common law recognizes a right on the part of the police to conduct searches of accused persons and their immediate surroundings incident to arrests, without warrants or reasonable and probable grounds. The right depends for its validity on the lawfulness of the underlying arrest. The reasonable and probable grounds for the arrest serve as a proxy for the reasonable and probable grounds to search. See R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 13.

[84] In addition to the requirement of a lawful arrest, a search incident to arrest is only lawful where its exercise is truly incidental to the arrest. Moreover, it must not be conducted in an abusive fashion. See R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27; R. v. Caslake, at para. 13; and R. v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 69 O.R. (3d) 481 (C.A.) at para. 28.

[85] Former Chief Justice Lamer described the authority of the police to search incident to arrest arising not out of any reduced expectation of privacy once a person is arrested, but rather on the “need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy”. (Caslake, para. 17).

[86] Lamer C.J.C. also observed that “there are no readily ascertainable limits on the scope” of the police power to search incident to arrest. The parameters of the search power must be determined by trial judges on a case by case basis, always balancing the right to privacy of the accused against the state’s legitimate law enforcement interests.

[87] Generally, the scope of the power to search incident to arrest is controlled by the limits of what is truly incidental to the arrest. The search requires a valid purpose connected to the arrest, such as the discovery of an object that may pose a threat, or that may facilitate escape, or that may provide evidence against the accused in relation to the offence he or she has been arrested for. See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158 at para. 60 and R. v Nolet, 2010 SCC 24 at para. 49. An arrest for outstanding traffic fines would not, for instance, justify a search of a vehicle’s trunk. See R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195 (C.A.).

[88] Any search conducted by police incident to arrest must be exercised in a manner consistent with Charter values. It must, therefore,

(a) be for a valid objective in pursuit of the ends of justice;

(b) not be conducted for purposes unrelated to the proper administration of justice, such as to intimidate, ridicule or pressure an accused person; and,

(c) not be conducted in an abusive manner.

See Cloutier, as above, at paras. 49, 56 and 61-62.

The Parties’ Positions

[89] The Crown’s position is that the initial pat down search of Mr. Cave was clearly an appropriate search incident to arrest. Considering he had been flagged as armed and dangerous, and had been found in possession of a prohibited weapon, it was entirely reasonable for the arresting officer to conduct a brief search of his person to ensure that he was not in possession of any further weapons.

[90] The initial search of Mr. Cave’s person yielded $900 in Canadian currency and a marijuana joint. At the time, possession of marijuana remained illegal.

[91] Mr. Cave was arrested for possession of a prohibited substance immediately after the initial search of his person. The Crown submits that the two possession offences – the prohibited weapon and the controlled substance – justified what was a short and focused search of the passenger seat area of the pickup truck. That search was, the Crown says, truly incidental to this particular lawful arrest and was conducted in a reasonable manner.

[92] The search of the truck yielded digital scales and cellophane, which DC Breedon associated with drug packaging. Moreover, Mr. Cave was observed to have an unusually prominent bulge in the front of his pants. A second search of his person was justified, in the Crown’s submission, on the basis that it was necessary to determine if Mr. Cave had weapons or illegal drugs stashed down his pants before he was placed into the back of the police cruiser for transport to the station.

[93] The Crown concedes that the search down Mr. Cave’s pants was a strip search, but argues that it was conducted in a reasonable manner, consistent with the principles enunciated in R. v. Golden, as above.

[94] Defence counsel asserts that the detention and arrest of Mr. Cave were unlawful, hence any search incident to them was also unlawful. These assertions are not compelling given that I have found the arrest to have been lawful.

[95] Defence counsel further submits, however, that the initial search of Mr. Cave went too far. He was under arrest for possession of a prohibited weapon. Accordingly, the search of his person should have been restricted to locating any further weapons and would not justify looking into Mr. Cave’s pockets where the cash and joint were found.

[96] Even if the police lawfully located a single joint of marijuana, that item would not support a search of the vehicle. The search of the vehicle, counsel contends, was not truly incident to arrest.

[97] Finally, with respect to the search down Mr. Cave’s pants, defence counsel asserts that this roadside strip search was not conducted for a proper purpose, but rather for the purpose of intimidating and humiliating Mr. Cave. Moreover, Mr. Cave was in the custody of the police, with his hands cuffed behind his back. He was in not position to destroy evidence, nor did he pose any sort of threat to the officers. The search was unwarranted, unjustified and abusive.

Discussion

[98] I have found that Mr. Cave was lawfully arrested for possession of a prohibited weapon. After making the lawful arrest, DC Breedon had the right to search Mr. Cave and to take from him any property which he reasonably believed was connected with the offence charged or which may be used as evidence against Mr. Cave on the charge, or any weapon or instrument that might enable Mr. Cave to commit an act of violence or to escape. See R. v. Rao, 1984 CanLII 2184 (ON CA), [1984] O.J. No. 3180 at para. 38.

[99] The initial search of Mr. Cave yielded a joint of marijuana and $900 in Canadian currency. Both were seized. Neither was connected with the offence charged. Having said that, I think it beyond question that the police were entitled to seize the marijuana, which was a controlled substance at the time. They had reasonable and probable grounds to arrest him – as they did – for possession of a controlled substance. On the other hand, to this point in the investigation, the police had no basis to seize Mr. Cave’s cash. He had not been arrested for trafficking in prohibited weapons or substances and I do not see how the cash was in any way dangerous nor evidence of the offences he was charged with.

[100] I find that the search of the passenger area of the truck was truly incidental to the arrests. The police were entitled, in my view, to search the area of the vehicle where Mr. Cave was located, to determine if there were any additional weapons or drugs. The search was carried out in a reasonable manner. It was focused and brief.

[101] I come now to the roadside strip search. I accept the evidence of PC Harris and DC Breedon that they observed a suspicious bulge in the front of Mr. Cave’s pants. I do not find that Mr. Cave consented to having his pants pulled down on the side of the road. He denied such consent in his evidence and the utterance relied upon by DC Breedon to support the assertion of consent was equivocal in my view.

[102] That said, the police do not need consent to conduct a search incident to arrest. I am satisfied that the second search of Mr. Cave’s person was also truly incidental to his arrests for possession of both a prohibited weapon and a controlled substance. As a matter of common sense, a bulge down one’s pants is consistent with the secreting away of some form or another of contraband. The police were right to be not only interested in, but also concerned about, what might be secreted down Mr. Cave’s pants.

[103] I have set out, in general terms, the limits that the common law places on searches incident to arrest. These limits are not defined by bright lines. Whether the power to search incident to arrest is broad enough to include strip searches was the subject of the Supreme Court’s consideration in R. v. Golden, as above.

[104] The majority of the court in Golden concluded that strip searches are permissible within the scope of the power to search incident to arrest, subject to certain important qualifications. These qualifications arise because of the serious infringement of privacy and personal dignity associated with strip searches. They include the following:

(a) The search must be conducted as incident to a lawful arrest for the purpose of discovering weapons or evidence related to the reason for the arrest;

(b) The police must establish reasonable and probable grounds justifying the strip search in addition to the reasonable and probable grounds justifying the arrest;

(c) Even if the first two conditions are met, the search must be conducted in a manner that does not infringe s. 8 of the Charter. Strip searches should generally be conducted at the police station save in exigent circumstances, where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers, or others.

[105] I have already concluded that a search of Mr. Cave’s person for weapons, or even additional drugs once the joint of marijuana was found, was incidental to his arrest.

[106] I am further satisfied that the police had reasonable and probable grounds to conduct a strip search. I reach that conclusion based on the following:

(a) The information received from the CI, which I have already detailed;

(b) The discovery of certain indicia of drug trafficking including digital scales, drug packaging, and a large sum of cash; and,

(c) The notable bulge down the front of Mr. Cave’s pants.

[107] Where I have a difficulty is the manner in which the search was conducted.

[108] Certain aspects of it were in line with Charter values. It was brief, for instance. It involved only male police officers. Only two officers were involved in the search. Mr. Cave’s pants were not pulled down beyond his thighs and his underwear remained on. And there was no physical touching of his genitalia.

[109] Other aspects of the search do not meet Charter standards in my view.

[110] First, I am not satisfied that there were sufficiently exigent circumstances present to justify a roadside strip search. Two justifications were offered: (1) that Mr. Cave may have a weapon down his pants, which he might access in the rear seat of the cruiser, compromising officer safety; and (2) that Mr. Cave may have narcotics down his pants which he may consume or attempt to dispose of.

[111] I think both concerns may be readily answered.

[112] In my view, a pat down search of Mr. Cave’s groin area would have revealed that he did not have any solid items down his pants, thereby eliminating any concern about weapons.

[113] I further think it highly unlikely that Mr. Cave would have been in a position to ingest or dispose of any narcotics down the front of his pants considering his hands were cuffed behind his back. The drive to the police station was roughly ten minutes. One would expect that if, on that short drive, Mr. Cave even attempted the gymnastics necessary to get his hands to the front of his body, while seated in the back of the cruiser, DC Breedon would have noticed and intervened. The prospect of a loss of evidence was slight.

[114] To compound this, the manner in which the search was conducted was not discrete. It took place on the side of a busy roadway. On the north side of the street is a large subdivision of homes. Mr. Cave testified that three or four cars slowed down to take a look at what was happening. He said he felt humiliated. I accept that cars would have slowed down to have a look as they passed the scene. Such is human nature.

[115] DC Breedon testified that there were three police cars on scene and they were positioned in such a way that no one passing by would have been able to see what was happening with Mr. Cave. There are at least three reasons why I am unsatisfied with this evidence:

(a) I am not persuaded that there were, in fact, three police vehicles present at the time of the strip search. PC Lamont had little interaction with anyone on scene. He did not have an exact note about when he left, but said it was shortly after the third officer (PC Harris) arrived. PC Harris did not even recall a third officer on scene. He could recall only himself and DC Breedon. I find that when the strip search occurred, there were only two officers present;

(b) The configuration of vehicles as described by DC Breedon would not have screened Mr. Cave from all angles of exposure; and,

(c) There were two female passengers of the pickup truck who remained on scene and who have not been accounted for. No apparent effort was made to prevent them from witnessing the strip search of Mr. Cave.

[116] I conclude that the strip search of Mr. Cave at the side of the road breached his s. 8 right to be secure against unreasonable search and seizure.

Issue Four: The Alleged 10(a) Breach

The Governing Principles

[117] Section 10(a) of the Charter provides that everyone has the right, on arrest or detention, to be informed promptly of the reasons therefore. It works in conjunction with s. 10(b) which provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.

[118] These sections are “designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination.” Grant, para. 22. See also R. v. Suberu, 2009 SCC 33, at para. 2.

[119] It is recognized that the section 10(b) right to counsel can only be meaningfully exercised if the person under arrest understands the extent of his jeopardy. “Jeopardy” refers, of course, to what’s at stake. In other words, it includes, in the long term, the individual’s ultimate risk of conviction and punishment and, in the short term, the risk of self-incrimination.

[120] As Doherty J.A. observed in R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767,

Knowledge of the purpose of the detention is so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for a detention, they must all be disclosed.

[121] Individuals who are detained for investigative purposes “must be advised, in clear and simple language, the reason for the detention.” See R. v. Mann, as above, at para. 21.

Discussion

[122] This is a straightforward factual issue. DC Breedon testified that he advised Mr. Cave, at the time of his initial arrest, that he was under arrest for possession of a prohibited weapon. Moments later, when the joint of marijuana was located, he advised Mr. Cave that he was under arrest for possession of a controlled substance. He did not advise Mr. Cave that he was under arrest for possession of a further controlled substance, following the strip search, because, he said, he had already advised Mr. Cave of his arrest for that reason.

[123] Mr. Cave testified that he was not told why he was arrested nor given his right to counsel or cautioned until he arrived at the police station. Mr. Cave, however, appeared to have a relatively poor recollection of events. He testified slowly and appeared able to answer counsel’s questions only after referring to an affidavit that he had sworn and filed on the application. While this may be consistent with nerves or an unfamiliarity with the court process, it is also the case that Mr. Cave’s counsel conceded that he was advised of his right to counsel at the side of the road, well before arriving at the police station. I do not consider Mr. Cave’s account reliable.

[124] Having said that, there remains the fact that Mr. Cave was not promptly advised of the reason for his initial detention. He was entitled to be advised promptly of the reason for that detention, not after the police have conducted further investigations, as DC Breedon said he was planning to do.

[125] As I indicated, sections 10(a) and (b) work together. The right to be advised of the reasons for the detention and the right to counsel must be discharged “promptly” and “without delay” respectively. The Supreme Court has left no doubt about how the phrase “without delay” is to be interpreted. It means “immediately”. Undoubtedly the term “promptly” imports the same immediacy. See R. v. Suberu, as above, at paras. 41-42, where former Chief Justice McLachlin and Justice Charron held as follows:

…In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

…In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[126] DC Breedon acknowledged that he did not immediately advise Mr. Cave of the reason for his initial detention or his right to counsel because, in his words, he was “conducting more of a surreptitious CDSA investigation”. He said he did not want to tip Mr. Cave off to what the investigation was until he had gathered more evidence.

[127] There is nothing wrong with conducting surreptitious investigations. It is undoubtedly a key part of policing. These surreptitious investigations cannot, however, be conducted at the expense of Mr. Cave’s Charter rights. It seems to me that DC Breedon’s intentions were to do the very thing that ss. 10(a) and (b) were designed to protect against.

[128] I conclude that Mr. Cave’s s. 10(a) Charter right was breached.

Issue Five: The Alleged 10(b) Breach

The Governing Principles

[129] When a person is detained by state agents, they are immediately on the wrong side of an enormous power imbalance. Prompt access to legal advice is of the utmost importance for a number of reasons. See R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 16. First, it enables the detainee to obtain advice about his or her rights and about how those rights might be exercised. Second, it serves to reduce the risk that the detainee will unwittingly incriminate him- or herself. Third, it provides the detainee with assistance in regaining his or her liberty. Fourth, it provides psychological support.

[130] In R. v. Rover, 2018 ONCA 745, at para. 45, Justice Doherty described the s. 10(b) right to counsel as a “lifeline” for detained persons. He said it enables them not only to obtain legal advice, but it also gives detainees a sense that they are “not entirely at the mercy of the police while detained.” There is significant psychological value associated with the implementation of the right.

[131] It is well-settled that s. 10(b) imposes three distinct duties on the police when they arrest or detain a person:

(i) To inform the person of his or her right to retain and instruct counsel without delay. The police are further obliged to inform the detainee of the existence and availability of legal aid and duty counsel. This duty is generally referred to as the informational duty;

(ii) To provide the person with a reasonable opportunity to speak to counsel, should he or she indicate a desire to do so. This duty is generally referred to as the implementational duty; and,

(iii) To refrain from eliciting evidence from the person until he or she has had the reasonable opportunity to speak to counsel. This duty is generally referred as the duty to hold off.

See R. v. Bartle, as above, at para. 17.

[132] In the previous section I referred to the duty to advise an accused person immediately on detention of the reason for the detention and the right to counsel. Just as the duty to inform a detainee of the right to counsel arises immediately upon detention, the duty to facilitate reasonable access to counsel arises immediately upon the detainee advising the police of his or her wish to consult with counsel. The police are required to facilitate access to counsel at the first reasonable opportunity. See R. v. Taylor, 2014 SCC 50 at para. 24. The right may be delayed in urgent or dangerous situations. See R. v. Bartle, as above, at para. 17.

[133] The burden is on the Crown to demonstrate that a given delay was reasonable in the circumstances. See R. v Luong, 2000 ABCA 301 at para. 12.

[134] Where the detainee asks to speak to counsel, until the right to counsel has been implemented, the police have an unequivocal duty to refrain from eliciting incriminating evidence from the detainee. See R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 at para. 34.

The Parties’ Positions

[135] The parties agree that Mr. Cave’s right to counsel was provided following the strip search.

[136] The Crown’s position is that no s. 10(a) or (b) breach occurred, but frankly Crown counsel was not strenuous about this position, nor should he have been. Essentially, he suggested that while there was a delay in implementing Mr. Cave’s right to counsel, the delay was not as bad here as it has been in other cases.

[137] The defence position is that Mr. Cave should have been told immediately upon his detention what the detention was in relation to. Moreover, he should have been told of his right to counsel and cautioned immediately. Finally, his right to counsel should have been implemented at the roadside, or, at the latest, immediately following the strip search at the police station.

Discussion

[138] Mr. Cave had the right to be informed of the reason for his arrest and told of his right to counsel immediately upon detention. He was not.

[139] The informational duty was breached.

[140] I find that Mr. Cave advised DC Breedon, at the roadside, that he wished to speak to his counsel, Mr. Stauffer.

[141] Mr. Cave was not provided with any means to contact counsel at the roadside. I am not troubled by that. It was a ten-minute drive to the station and, provided the duty to hold off eliciting evidence from him was respected, there would be little or no concern for self-incrimination.

[142] Unfortunately, Mr. Cave was not provided with reasonable access to legal advice once back at the station. He was booked in and strip searched, then lodged in a cell. His access to counsel was not facilitated until some ninety minutes after his arrest, largely because someone dropped the ball in terms of making the call to Mr. Stauffer.

[143] The implementational duty was breached.

[144] Given that I have found breaches of Mr. Cave’s rights under ss. 8, 10(a) and 10(b) of the Charter, it is necessary to conduct an analysis under s. 24(2) in terms of whether the evidence seized by the police at the time of Mr. Cave’s arrest should be excluded.

Issue Six: Section 24(2)

The Governing Principles

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

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

[146] In R. v. Grant, 2009 SCC 32, at para. 71, the Supreme Court provided trial judges with direction in terms of the analysis to be applied to applications brought under s. 24(2) of the Charter:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[147] Grant instructs that the focus of the exclusionary rule should be on the long-term reputation of the justice system. The s. 24(2) analysis is not about punishing the police for any perceived misbehaviour nor is it about deterring future Charter violations.

[148] As the language of s. 24(2) indicates, an applicant seeking to exclude evidence under s. 24(2) must satisfy the court, on a balance of probabilities, that the evidence sought to be excluded was (1) obtained in a manner that infringed a Charter-protected right; and (2) the admission of the evidence would bring the administration of justice into disrepute.

[149] Although applications are always framed as requests to exclude evidence, the focus is on whether the administration of justice will be brought into disrepute by the admission of the impugned evidence. See R. v. Le, 2019 SCC 34 at para. 139.

The Parties’ Positions

[150] The Crown’s primary position is that none of Mr. Cave’s Charter rights were breached. In the event the court were to find otherwise, Crown counsel argues that any breaches were minimally intrusive and insufficiently serious to warrant the exclusion of evidence.

[151] The defence position, as one might anticipate, is the opposite. The defence position is that the police had the slightest of grounds to detain Mr. Cave in the first place. Once they did, they were cavalier about his Charter rights, breaching both his s. 10(a) and (b) rights. They strip searched him in a public setting at the side of a busy roadway, humiliating him. The breaches were numerous and serious and demonstrated a pattern of disregard for the law.

Discussion

[152] I will consider the three Grant lines of inquiry in order.

The Seriousness of the Breaches

[153] At this first stage of the analysis the court must “situate the conduct on a scale of culpability”. See R. v. Le, as above, at para. 143. Inadvertent, technical or minor breaches are at the low end of the scale. Wilful or reckless disregard of Charter rights are at the high end of the scale.

[154] In this case, there are multiple breaches all occurring within a relatively brief period of time. I have not concluded that the breaches are part of a larger, or systemic, pattern of disregard for constitutional rights. But there are multiple breaches here occurring one after another that do raise red flags.

[155] I have also not concluded that the police acted in bad faith. But such a conclusion is not the equivalent of concluding that the police acted in good faith either.

[156] The decision to delay advising Mr. Cave of the reason for his detention was deliberate. It was for the purpose of ideally obtaining inculpatory evidence from him, before he could figure out why he was being detained. The actions – or more accurately omissions – of the police put Mr. Cave at great risk of self-incrimination – exactly what s. 10 is designed to prevent.

[157] The s. 10(b) breach was entirely avoidable and was the result of carelessness. I find that DC Breedon simply forgot to facilitate Mr. Cave’s access to his lawyer. DC Breedon explained that the Barrie Police Service was transitioning from a convention where the booking officer facilitated access to counsel, to one where the officer in charge facilitated such contact. Staff-Sergeant Fearon, however, testified that it was always the responsibility of the officer in charge. I find that it was DC Breedon’s responsibility and he dropped the ball. I accept that mistakes happen. But in my view, the combined s.10 (a) and (b) breaches were serious.

[158] Recently the Court of Appeal for Ontario commented again on the importance of the rights secured by sections 10(a) and (b) in R. v. Noel, 2019 ONCA 860, where the court said the following:

The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention. (Para. 23).

Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the right against self-incrimination. (Para. 25).

Beyond this, the right to counsel is also important in providing "reassurance" and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty. (Para. 26).

[159] Section 10 (a) and (b) rights are well-settled. I am compelled to conclude that the breaches here were serious.

[160] The strip search on the side of the roadway was also serious. I am in no way minimizing concerns about officer safety, but in my view it would not have taken much of an effort to determine that Mr. Cave did not have a weapon down the front of his pants, without pulling down his pants on the side of the road.

[161] The law surrounding strip searches was settled almost twenty years ago in Golden. I appreciate that police officers have dangerous jobs. And I also understand the substantially different context in which judges make decisions as compared to the dynamic circumstances in which police officers must make decisions. That said, this was not a rapidly changing and dynamic scene. Mr. Cave was compliant. There were steps the police could have taken to ensure their safety, short of pulling down Mr. Cave’s pants at the roadside.

[162] On a scale of culpability, the breaches here are not minor or technical. They trend towards the serious end of the scale. They clearly point towards exclusion of the impugned evidence.

[163] Before moving on to the next line of inquiry, I pause to observe that our Court of Appeal has held that it is not a strict requirement that the accused establish a causal link between a breach and evidence obtained by the police as a prerequisite to an exclusionary order. Impugned evidence may meet the “obtained in a manner” requirement, even without a causal connection to a Charter breach, provided the evidence and the breach are part of the same transaction or course of conduct and provided the connection is neither too tenuous or too remote. See R. v. Pino, 2016 ONCA 389.

The Impact of the Breaches on Mr. Campbell’s Charter-Protected Interests

[164] The impacts of Charter breaches are many and varied. Again, there is a spectrum, from fleeting or technical, at the one end, to profound at the other.

[165] There is no question in my mind that the impact on Mr. Cave’s Charter-protected interests was significant.

[166] While the impacts of the breaches are not at the most serious end of the scale, given that Mr. Cave managed not to make any inculpatory statements, they remain significant nonetheless.

[167] Mr. Cave was in the custody of the police for ninety minutes without the benefit of counsel, “unable to receive the direction, reassurance, and advice that counsel could provide”: Noel, as above, at para. 33. In that time, he was searched three times, including two strip searches.

[168] In terms of the roadside strip search, Mr. Cave’s dignity was significantly impacted by the manner in which he was treated by the police. He testified that he felt intimidated and humiliated and I accept that testimony in light of the circumstances.

[169] I consider this second factor to also point firmly towards exclusion of the evidence.

Society’s Interest in Adjudication on the Merits

[170] At this third stage of the Grant analysis, the court must determine “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” See Grant, para. 79.

[171] The impugned evidence in this case is reliable – a knife, drugs, scales and currency. It is crucial to the prosecution’s case. Should it be excluded, the Crown concedes that Mr. Cave must be acquitted.

[172] The third Grant factor almost always supports admission. See R. v. Harrison, 2009 SCC 34 at para. 34 and R. v. McGuffie, 2016 ONCA 365 at para. 62. It does here. Simcoe County, like many other jurisdictions in Ontario, has a serious drug problem. Mr. Cave was found to be in possession of cocaine and heroin, in amounts clearly consistent with trafficking. The community has a very strong interest in seeing Mr. Cave prosecuted and to seeing the case against him determined on its merits.

The Balance

[173] No magic formula exists to aid in the balancing of the three Grant factors. Assuming each factor may point strongly in a given direction, weakly in a given direction, or be neutral, then there are some 27 configurations of the Grant factors.

[174] The balancing to be conducted under the Grant analysis is not as straightforward as a “two out of three” calculation.

[175] Having said that, as Doherty J.A. held in R. v. McGuffie, as above, at para. 62, the strength of the claim for exclusion under s. 24(2) is equal to the sum of the first two lines of inquiry. Moreover, “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.” (McGuffie, para. 63).

[176] In this instance, the first and second lines of inquiry do point strongly towards exclusion of the evidence in issue. The third inquiry points strongly towards inclusion of the evidence. In my view, however, society’s interest in the adjudication of this case on its merits must give way in this instance. Permitting the admission of the evidence seized from Mr. Cave, in light of the numerous Charter breaches I have identified, would tend to bring the administration of justice into disrepute.

CONCLUSIONS

[177] I have found breaches of Mr. Cave’s s. 8, 10(a) and 10(b) rights.

[178] I have concluded that the breaches were serious and had a significant impact on Mr. Cave’s Charter-protected interests. Although the evidence is highly reliable and crucial to the Crown’s case, I find that its admission, in the circumstances present here, would bring the administration of justice into disrepute.

[179] The evidence in issue – namely the prohibited weapon, joint of marijuana, digital scales, cocaine, heroin and currency – is excluded.

[180] Based on counsel’s agreement, and in light of the exclusion of the evidence, Mr. Cave is acquitted of all charges.

Boswell J.

Released: December 6, 2019

[^1]: Controlled Drugs and Substances Act