COURT FILE NO.: 7998/19

DATE: 2019-12-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

W. Trent Wilson / Robert Skeggs, Counsel for the Crown

Respondent

• and -

JOHN PINE and RONALD BARON and WILLIAM ROSS

Tania Bariteau, Counsel for J. Pine

Kenneth G. Walker, Counsel for R. Baron

C. Bruce Willson, Counsel for W. Ross

Applicants

HEARD: November 12-15, 2019

Varpio J.

Reasons on Application to Exclude Evidence as a Result of Charter Breaches

Introduction

[1] This is an application to exclude evidence located in the trunk of a red Ford Fusion as a result of an investigation into a home invasion robbery. The evidence includes guns, items stolen the day of the robbery, and disguises ostensibly used in the robbery.

[2] After the home invasion occurred, the police attended at residences known to be associated with criminal activity in order to see if they could find the perpetrators. Approximately three hours after the robbery, the police attended at a residence located at 33 Hamilton Ave. in Sault Ste. Marie. They discovered a truck that matched the description of a truck used in the robbery. A red Ford Fusion was parked behind the truck.

[3] Approximately four hours after the police attended at the residence, two males exited the house and drove away in the red Ford Fusion. They were pulled over. The driver was a suspended/disqualified driver and the car was thus impounded.

[4] A subsequent search of the trunk revealed hidden guns and masks apparently used in the robbery.

[5] For the reasons given below, the detention of the accused persons and subsequent search of the red Ford Fusion violated the accuseds’ section 9 and 10(b) Charter rights. The seriousness of the breaches and their impact are sufficiently severe that the need to exclude the evidence overbears society’s need to adjudicate the matter on its merits.

[6] Accordingly, the application is granted, and the evidence located in the trunk will be excluded.

Evidence

Undisputed Evidence

[7] The evidence on this application was comprised of filed transcripts from the preliminary hearing which were amplified by the viva voce evidence of witnesses. As will be noted below, this led to some evidential issues.

[8] At approximately 7:50 a.m. on September 22, 2019, three masked men entered a residence in the west end of Sault Ste. Marie in a home invasion robbery. They kicked in the back door. The three men were armed with guns. They terrified the two victims who were present. Based upon the evidence marshalled by police, the police believe that the three home invaders attended at the wrong address.

[9] The three intruders left the residence. A neighbour saw them enter a black pick-up truck and drive up Third Avenue towards Second Line. The victims called police who attended promptly at the scene. The victims advised that their cellphones had been taken, and one victim used the phone app “Find my Phone” to determine that the phone had been dropped somewhere near the corner of Second Line and Goulais Avenue. A “ping” was played on the phone. Police searched the area near the “ping” and discovered the phone near the Northern Credit Union. A video seized from the Northern Credit Union showed a black truck with identifiable physical features attending at the location shortly after the approximate time of the home invasion. A fingerprint was subsequently taken from the phone, and it was determined to be that of Mr. John Pine.

[10] Police officers began searching Sault Ste. Marie for the culprits. At approximately 10:38 a.m., Cst. Runco and Cst. Lillington of the Sault Ste. Marie Police Service (“SSMPS”) attended at 33 Hamilton Ave. in central Sault Ste. Marie. A black truck was parked in the driveway at 33 Hamilton Ave. The truck had similar features to the truck used in the robbery. A red Ford Fusion was parked behind the truck. The police attended this address because it is a location associated with criminal activity. Police had reason to believe that Mr. Seamus Fyfe used that residence and that Mr. Fyfe was a local drug dealer. The police set up surveillance on 33 Hamilton Ave. Officers Runco and Lillington parked close to the residence under the direction of Sgt. West and later, Sgt. Crema.

[11] At 2:25 p.m., Cst. O’Dell conducted a bail check upon the address where Mr. Fyfe was supposed to reside (not 33 Hamilton Ave.) since Mr. Fyfe was on bail at the time of the incident. No one responded to this bail check.

[12] At approximately 3:00 p.m., two men exited 33 Hamilton Ave. and entered the red Ford Fusion. The ford Fusion drove away.

[13] Cst. Runco and Cst. Lillington stopped the Ford Fusion at approximately 3:08 p.m. They spoke with the occupants until Sgt. Crema attended at the Ford Fusion.

[14] Mr. Ron Baron was identified as the driver and Mr. John Pine as the passenger in the red Ford Fusion. Mr. Baron was arrested as both a suspended and disqualified driver. Both accused men were ultimately released at the scene.

[15] The red Ford Fusion was seized by police for 45 days. It was towed and stored at Town and Country Towing’s storage facility.

[16] On October 3, 2017, the SSMPS received an anonymous tip that there were firearms in the red Ford Fusion. Sgt. Crema attended at Town and Country Towing’s yard with Cst. Pavoni. Sgt. Crema called Ms. Odette Baron, Mr. Ron Baron’s mother, who was the registered owner of the red Ford Fusion. Sgt. Crema received consent to search the vehicle. The conversation was audio taped and tendered as an exhibit in the instant application.

[17] Cst. Pavoni opened the trunk of the car and found a blanket lying on top of other objects. Cst. Pavoni moved the blanket and found an open bag with a long gun sitting inside. The officers then searched the bag and found a number of other objects including a guitar, masks and the like. These objects were sent away to the Centre of Forensic Sciences for examination.

[18] The three accused men were arrested for the crimes before the court.

Disputed Evidence

Cst. Runco

Examination-in-Chief

[19] At 8:25 a.m. on September 22, 2017, Cst. Runco and Cst. Lillington were in the same marked police unit. They attended at the Northern Credit Union near the corner of Second Line and Goulais Avenue in the city’s west end. They were looking for the victim’s cellphone. At 9:04 a.m. Cst. Potter located the cell phone. Cst. Runco and Cst. Lillington left the area to continue investigating.

[20] Cst. Runco and Cst. Lillington attended a number of addresses in Sault Ste. Marie which they believed to be associated with criminal activity. At 10:38 a.m., Cst. Runco and Cst. Lillington attended at 33 Hamilton Ave. where they observed the black pickup truck and the red Ford Fusion. The Fusion was parked behind the truck. Cst. Runco checked the ownership of the vehicles. The truck was owned by Ms. Maria Fyfe and the car was owned by Ms. Odette Baron. The officers stayed in the area and Cst. Runco kept his eyes on the vehicle[^1]. At 11:09 a.m., Sergeant West directed Cst. Runco to wait near the corner of Fauquier Ave. and Beatrice St., which is close to 33 Hamilton Ave.

[21] Other police vehicles attended at 33 Hamilton Ave., but Cst. Runco and Cst. Lillington were driving the only marked police vehicle. At one point, a grey Toyota Camry drove past the officers. It was being driven by Ms. Sibohan Fyfe, who was known to Cst. Runco. Ms. Maria Fyfe was the registered owner of the Camry. Ms. Sibohan Fyfe was Mr. Seamus Fyfe’s surety at the time of the robbery.

[22] At 3:08 p.m., the police radio confirmed that there was movement at the residence. Cst. Runco drove down the hill (Fauquier St. is on a hill) to a point where he could observe 33 Hamilton Ave. He saw the red Ford Fusion leaving the address with two male occupants. Cst. Runco initiated a traffic stop in front of 12 Borron St. The officer testified that

[w]e’re stopping the vehicle to identify possible suspects in the home invasion. We walk, I walk up to the driver’s side as Constable Lillington is with me. There are two males in the vehicle. The driver I identified immediately, as per past occurrences, I had just dealt with Ron Baron a few months prior at a neighbour dispute.

[23] The police were thus not stopping the vehicle pursuant to the Highway Traffic Act.

[24] Cst. Runco performed police checks and determined that Mr. Baron was a suspended and prohibited driver. At 4:01 p.m., Cst. Runco arrested Mr. Baron for driving while disqualified and read him his rights to counsel. Mr. Baron was placed in the rear of the cruiser.

[25] As for the passenger, Cst. Runco stated that,

Mr. Pine was free to go once we were able to ID him, he was the front passenger in the car. He decided he was going to walk and figure out his own way home.

[26] Cst. Runco described this stage of the investigation as follows:

At the time we were still actively investigating a home invasion from Third Avenue. We knew the persons, there were three persons involved with a shotgun. They had left in a black Chevy truck, a quad cab with black rims, a push bar and silver striping. I had located that vehicle at 33 Hamilton, sat there for numerous hours until there was movement out of the residence to which once there was, a traffic stop was investigated on a red Ford fusion to identify the two persons involved.

Q. The Fusion, other than knowing that the registration came back to Odette Baron, you knew nothing else about the car at that point?

A. No. I just knew it was parked at the same residence as the Chevy truck.

[27] Cst. Runco testified that the vehicle was impounded for 45 days as a result of the driving disqualified charge.

Cross-Examination

[28] Cst. Runco testified that his role was to stop the car. When asked whether he was given direction, Cst. Runco replied that “I ask over the air, over the radio to Sgt. Crema… ‘cause at the time him being a, like a break and enter or plain car sergeant, I didn’t know if he had gathered more information or not and he said, “No, stop the car”, which we did.” At 3:08 p.m., Cst. Runco was directed to stop the car which he and Cst. Lillington did within a minute or two of the direction. Cst. Runco was not given any reason to stop the car beyond the fact that it was related to the home invasion.

[29] Cst. Runco also testified that he did not believe that he approached the vehicle immediately due to the fact that there was a shotgun involved in the home invasion. Cst. Runco recognized Mr. Baron from his previous dealings with Mr. Baron. Cst. Runco spoke with Mr. Baron, confirmed the identity of the other vehicle occupant, and investigated other aspects of the home invasion robbery. Cst. Runco confirmed that he did not discuss much – if any – of the home invasion evidence prior to Sgt. Crema’s arrival at the vehicle.

[30] Sgt. Crema arrived shortly after the stop was effectuated. Once Sgt. Crema arrived, Cst. Runco “backed off” so as to allow Sgt. Crema the opportunity to speak with Mr. Baron. Cst. Runco estimated that Sgt. Crema was with the two motor vehicle occupants for around 30 or 40 minutes.

[31] Cst. Runco also indicated that the car was impounded for 45 days as a result of the drive disqualified charge. Cst. Runco was pressed about having the car impounded. Cst. Runco indicated that he believed that the vehicle would be impounded as a result of the driving disqualified charge even if it belonged to someone else. Cst. Runco testified that Mr. Baron offered to notify Ms. Odette Baron that the car had been impounded. Cst. Runco testified that Mr. Baron was released at the scene.

[32] Cst. Runco also provided the following answer to counsel regarding his contact with Messrs. Baron and Pine:

Q. You’ve told them that you stopped the car for the home invasion investigation?

A. I told them that we were stopping the car in correlation with an investigation that was happening on Third Avenue.

Q. So of course by telling that they understand that they’re stopped, they can’t leave now. Correct?

A. Yes.

[33] Cst. Runco testified that Mr. Pine identified himself to Cst. Runco, but that Cst. Runco had no other conversation with Mr. Pine.

[34] Cst. Runco testified that he was not making decisions, but that he was being assigned tasks by lead investigators.

Cst. Lillington

Examination-in-Chief

[35] Cst. Lillington testified that on September 23, 2017, he and Cst. Runco were dispatched to the area of Third Avenue in regard to a home invasion robbery. Cst. Lillington testified that he and Cst. Runco searched certain addresses and spoke with certain businesses shortly after the incident. Cst. Lillington then described searching for the phone in the vicinity of the Northern Credit Union. While at the Credit Union, Cst. Lillington was informed that a black Chevy pickup truck was a possible suspect vehicle. The vehicle had a dual cab, had black rims and silver striping on the door. Cst. Lillington was made aware that the vehicle may have passed where the phone was located. Cst. Lillington was made aware of the existence of this vehicle between 9:24 a.m. and 10:10 a.m.

[36] Cst. Lillington and Cst. Runco were on their way to the station to work on their notes when Cst. Lillington suggested to Cst. Runco that they check one more location – 33 Hamilton Ave. At 10:10 a.m., they departed for Hamilton Ave. and arrived shortly thereafter whereupon they saw a black truck parked in the driveway. A red car was parked behind the black truck. The truck was registered to a Ms. Maria Fyfe and the address is known to be associated to a Mr. Seamus Fyfe. The two officers surveilled the residence until 11:09 a.m. when Sgt. West instructed them to change locations.

[37] At 3:07 p.m., the officers were advised by Sgt. Crema that the red car was exiting the residence and heading north on Fauquier Avenue. Cst. Lillington testified that,

Okay. So at 15:07 we do, we do a traffic stop, we initiate a traffic stop, at 15:08, just in front of 12 Borron for investigative purposes. The driver – so once we stopped in front of 12 Borron, the driver immediately exited the vehicle and he started, in my notes, I described it “he was playing with the passenger front tire” so it was a little bit suspicious but…

Q. Okay. And you said “we’ve stopped the vehicle”, so who, who’s done that?

A. Myself and Constable Runco.

Q. Okay. All right.

A. So we, so we activate our lights, the vehicle comes to a stop on the shoulder of the road in front of 12 Borron Avenue.

[38] Cst. Lillington testified that there were two males in the vehicle, that he did not know either male, and that he did not have much interaction with either male. Sgt. Crema showed up and Sgt. Crema began speaking with the occupants. Mr. Baron was arrested for driving while disqualified. Cst. Runco took the lead on the driving investigation. Both men were released at the scene.

Cross-Examination

[39] Cst. Lillington agreed that the red Ford Fusion was not a suspect vehicle at the time of the investigation.

[40] When asked about the impetus behind the vehicle stop, Cst. Lillington testified that he believed that he and Cst. Runco decided to pull the vehicle over. He did not believe that Sgt. Crema advised them to pull it over. When asked about the justification for such a stop, Cst. Lillington testified that

We’re probably gonna want to speak to anyone who leaves that area when a suspect vehicle is parked there shortly after. So when the vehicle – we’re there, we’re there for a reason to stop anybody or, or stop a vehicle for anyone who exits that residence.

[41] Cst. Lillington later testified that he and Cst. Runco made joint decisions regarding attending the address in question and pulling the vehicle over. With respect to the stop, Cst. Lillington testified that,

Well I mean Runco and I were in the vehicle. I certainly didn’t instruct him we’re gonna pull that vehicle over. We were just, we were in the vehicle, the vehicle was coming up and we’re gonna investigate it and we were gonna pull it over.

… [N]o one came forward and said, we just, we stopped the vehicle. No, no one said, hey, let’s stop the vehicle. We stopped the vehicle. We’re there to investigate anyone who, who comes outta there. So I don’t, there was no conversation and no one took charge, we were gonna pull over anyone that came out of there. That’s the reason why we’re there.

[42] Cst. Lillington also admitted that he did not know when the red Ford Fusion arrived at the residence.

[43] Cst. Lillington testified that Sgt. Crema arrived shortly after the Ford Fusion had been pulled over, maybe five or ten minutes later.

[44] Cst. Lillington testified that at no time was Mr. Pine given rights to counsel, and that Mr. Baron was only given rights to counsel upon arrest.

Sgt. Crema

Examination in-Chief

[45] Sgt. Crema testified that he is a police officer in his 22nd year of service with the SSMPS. He is a unit supervisor with the break and enter unit and was working in that capacity on September 22, 2017. He testified that the incident first came to his attention at approximately 7:30 a.m. when he received information about a black GMC/Chev pickup truck that had left the scene of a home invasion robbery on Third Avenue. He and Cst. O’Dell went to different areas of town trying to find a vehicle matching that description. Sgt. Crema attended court in the morning. During the day, he became aware that a vehicle matching the description of the truck used in the home invasion was observed at 33 Hamilton Ave.

[46] After lunch, he returned to the station, and then attended at 33 Hamilton Ave. Sgt. West, Cst. Belanger, Cst. Roach and Cst. Brown were engaged in surveillance.

[47] Sgt. Crema indicated that, when he attended at the scene, decisions were made in “pretty much a team effort. There was no real direction. I would have to say I would assume the responsibility of, of any decisions that were made that day”. This happened because the other officers present were all constables, with the exception of Sgt. West (who left the scene at some point).

[48] As for Officers Runco and Lillington,

[t]hey were in the area. If anyone was to have come or gone from the address, I would have asked Runco and Lillington to conduct a traffic stop or to speak to those individuals to try to identify them and see if they’re part of this investigation.

[49] At approximately 3:15 or 3:20 p.m., the red Ford Fusion left the residence and a traffic stop was conducted.

[50] Sgt. Crema attended the traffic stop at Borron Ave. The traffic stop was conducted

[t]o attempt to determine if the persons in the vehicle were associated to the offences being investigated in relation to the home invasion.

[51] At the time of the traffic stop, Sgt. Crema believed that Mr. Seamus Fyfe could have been involved in the commission of the offence, but that he had no idea as to who was driving the red Ford Fusion. Sgt. Crema was asked who made the decision to stop the Fusion, to which Sgt. Crema replied,

[i]t was Lillington or Runco. We asked them to stop the vehicle and I know that as a result of that it was stopped.

Q. So when you say “we” asked them to stop the vehicle.

A. I.

Q. You did? Okay. So you didn’t know who was driving the vehicle.

A. Correct.

[52] When asked why he wanted to know who was driving the vehicle, Sgt. Crema answered

[w]e wanted to know who would be coming, in particular, that vehicle at that time, yes, but who would be coming and going from the residence that may be related to the investigation… Because we believed that, or had information that Seamus Fyfe was orchestrating these types of [debt collection-style robberies].

[53] Sgt. Crema attended at the red Ford Fusion after it was stopped. Sgt. Crema knew both Mr. Pine and Mr. Baron. He spoke with Mr. Pine on the passenger side of the vehicle for three to five minutes. Mr. Pine did not want to be at the scene, and so he left.

[54] Sgt. Crema then spoke with Mr. Baron. Mr. Baron was arrested for driving while disqualified. The red Ford Fusion was impounded for 45 days.

[55] On October 2, 2019, the SSMPS received an anonymous tip that stolen items and weapons were located in the trunk of the Ford Fusion. Sgt. Crema attended with Cst. Pavoni at the Town and Country Towing compound – where the Ford Fusion was impounded - to look in the trunk of the vehicle. When they arrived, Sgt. Crema received verbal consent over the phone from Ms. Odette Baron, the registered owner of the vehicle. The officers searched the trunk and located firearms as well as other items associated with the robbery.

Cross-Examination

[56] Sgt. Crema initially testified that on the day of the surveillance at 33 Hamilton Ave., he attended at the Ford Fusion shortly after 3:08 p.m. He confirmed that he did not read anyone their rights. He believes that Mr. Baron would have been read his rights to counsel as a result of his arrest for driving while disqualified prior to his attendance at the scene. His conversation with Mr. Baron only lasted a few minutes.

[57] With respect to his understanding of detentions, Sgt. Crema testified that

[i]f I detain someone, then if certain things get triggered, the rights to counsel when they’re detained, depending on why they’re stopped… If, if somebody tells me to fly a kite at the side of the road and I have no reason to keep them there I’m not detaining them any further.

[58] Sgt. Crema testified that Mr. Pine was not detained during the traffic stop. Sgt. Crema testified that,

Mr. Pine was free to leave at any point, he spoke with me at the side of the road. He didn’t want to stay any longer and he left… He walked away. Mr. Baron was dealt with via the charge and was released as well.

[59] With respect to timing of his attendance at the vehicle, Sgt. Crema clarified that,

I’m looking at my notes and I see that my arrival time at the scene was 27 minutes after the vehicle left the address. So there’s a significant amount of time between when the vehicle left Hamilton Ave. and when I actually got to the scene of the traffic stop.

[60] Sgt. Crema also confirmed that, when he was speaking with Messrs. Baron and Pine, Cst. Runco and Cst. Lillington stepped back and let him assume the lead role in speaking with the occupants of the vehicle. Sgt. Crema testified that he believes that Mr. Baron was at the back of the vehicle when he spoke with him. Mr. Pine was seated in the passenger seat. Sgt. Crema indicated that he prefers the occupants to be separated. Sgt. Crema confirmed that, at no point, did he tell Mr. Pine that he was free to go. At no point did Sgt. Crema provide rights to counsel to Mr. Pine because he did not believe Mr. Pine was detained.

[61] Sgt. Crema confirmed that he had no independent recollection or notes of the conversation that he had with Mr. Baron or of his interaction with Mr. Pine.

[62] With respect to the October 3, 2017 search of the Ford Fusion, Sgt Crema testified about his failure to visit Ms. Odette Baron to obtain consent in writing:

With the nature of the information that there are potentially firearms in the vehicle, I thought it was more prudent to go to the scene where the vehicle was and continue the investigation from that point rather than going out to Thessalon [where Ms. Baron lives] and taking up more time. I went straight to the location where the vehicle was…

We had information there were firearms in the vehicle…

I didn’t think it was a good place for them to be in the trunk of a vehicle in a compound and wanted to get there to continue the investigation into those firearms being there.

Cst. Pavoni

[63] Cst. Pavoni testified that at 9:20 a.m. on October 3, 2107, he and Sgt. Crema attended the Town & Country Towing compound in order to search the red Ford Fusion.

[64] Cst. Pavoni testified that he waited while Sgt. Crema obtained consent from Ms. Odette Baron to search the vehicle based upon a tip that firearms were located in the trunk.

[65] Sgt. Crema advised Cst. Pavoni that consent was obtained.

[66] Cst. Pavoni testified that the trunk was locked. He could not remember if he opened the trunk with a key fob or if he had to enter the key into the lock to unlock the trunk. In any event, Cst. Pavoni unlocked the trunk.

[67] Inside, he observed a blanket, which he moved. He then observed a brown long gun in the trunk.

[68] Cst. Pavoni left the trunk to advise Sgt. Crema of his findings and Cst. Pavoni then testified at the preliminary hearing that

I go back to the car, search the trunk further, at which point I observed a black long gun in the trunk, a guitar and laptop inside of a black bag. At which point I returned to the, to Crema’s vehicle and then notified him of what else I had located.

[69] Cst. Pavoni also testified that the guns were checked, and one was found to be loaded.

[70] In cross-examination before me, Cst. Pavoni testified that items were located in a duffle bag in the trunk. Cst. Pavoni also testified that, when he moved the blanket, he could see the duffle bag which was open.

[71] I note that photographic evidence of the truck corroborates the suggestion that the duffle bag was open in the trunk.

Ms. Odette Baron

[72] Ms. Baron testified that she is the mother of Mr. Ron Baron. She testified that lives in Thessalon, Ontario and that she was the registered owner of the red Ford Fusion at the relevant times. She indicated that she purchased the red Ford Fusion so that Mr. Baron’s girlfriend could have a vehicle which would enable her to, inter alia, drive Mr. Baron (who has no license) and Ms. Baron. Mr. Baron was not allowed to drive the car.

[73] With respect to the telephone conversation, Ms. Baron testified that she has no recollection of the conversation in so far as she was on pain medication on the date of the call. She thought she took the call in the evening in that she had to discuss the call with her care giver which in turn enables Ms. Baron to put a time to the call.

[74] Ms. Baron, upon listening to the audiotape of the call that was tendered into evidence, indicated that her voice was hesitant and that she clearly did not understand the ramifications of the discussion she was having with the officer.

Position of the Parties

[75] The Crown argued that, although the vehicle was detained, there were reasonable grounds to pull it over and that there were no Charter breaches. In the alternative, if a Charter breach is found, the Crown argued that the detention was not sufficiently serious so as to warrant exclusion of evidence.

[76] The defence argued that the initial detention was unreasonable and that it was conducted in an unreasonable manner. The defence argued that the accused men were not given their rights to counsel at roadside. They argue that the accused persons have privacy interests in the items seized from the trunk of the vehicle and that the balancing of the factors at play under section 24(2) of the Charter are such that the items located in the trunk need to be excluded from the trial.

Analysis

The Law

The Charter

[77] Sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms state as follows:

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right...

Detention and Rights to Counsel

[78] Police officers are allowed to conduct investigative detentions on suspects that fall short of full-blown arrests. At paragraph 45 of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, Iacobucci J. described investigative detentions as follows:

[P]olice officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [Emphasis added.]

[79] Upon detention, an accused must be informed of his rights to counsel as per paragraphs 37, 38, 41 and 42 of R. v. Suberu 2009 SCC 33:

Once an individual is detained, s. 10(b) of the Charter is engaged and guarantees an individual the right to retain and instruct counsel without delay, and to be informed of that right. The issue raised on this appeal asks whether the words "without delay" require the police to execute their duties to facilitate a detainee's right to counsel immediately upon detention, or whether this obligation can be fulfilled at a later point in time.

Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. 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.

To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. 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. [Emphasis added.]

Searches and Standing

[80] It is trite law to suggest that an accused must generally prove standing in order to ground a section 8 Charter application: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 (S.C.C.). With respect to automotive searches, drivers and passengers will be treated differently depending upon the facts of a given situation: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341. In Belnavis, it was recognized that drivers will often have standing in situations where they are driving a motor vehicle that has apparently been borrowed from someone else: para. 19.

[81] When determining whether or not the passenger has a reasonable expectation of privacy in the vehicle, an examination of all the relevant factors must be undertaken. At para. 20 of Belnavis, the Supreme Court stated:

The approach outlined in Edwards makes it clear that the question as to whether a passenger will have a reasonable expectation of privacy in a vehicle will depend upon the totality of the circumstances. All of the relevant facts surrounding a passenger’s presence in the vehicle will have to be considered in order to determine whether the passenger had a reasonable expectation of privacy. In this case, although Lawrence [the passenger] was present at the time of the search, there are few other factors which would suggest she had an expectation of privacy in the vehicle…

[82] Despite finding that the accused had no reasonable expectation of privacy in the motor vehicle, the Supreme Court found that it was open for the accused to claim a reasonable expectation of privacy in items seized at paragraph 24 of Belnavis:

The only other manner in which Lawrence could claim a violation of her s. 8 rights is if she could demonstrate a reasonable expectation of privacy in relation to the items seized, specifically, the bags of merchandise. This she could not do. When asked about the three garbage bags in the back seat of the car, Lawrence stated only that each of the occupants of the vehicle owned one of the bags. She did not identify one of the bags as hers, or make any gesture which suggested that she claimed one bag in particular as her own. Nor was there anything on the exterior of any of the bags to indicate a connection to Lawrence. A garbage bag is very different from a suitcase with initials displayed or a kit bag with a name on it. A green garbage bag offers no hints that it has a particular owner. And a garbage bag filled with brand new clothes with price tags still affixed is both anonymous and suspicious. In short, there was nothing to indicate that she had an expectation of privacy in relation to any particular bag.

[83] After Belnavis, an accused was often placed in a situation as described by Harvison Young J.A. at para. 21 of R. v. Labelle 2019 ONCA 557:

Justice Coté [the author of the Jones decision] indicated that the foregoing exception to the general rule that the applicant bears the burden of proof on a Charter application is justified on the basis that to preclude Mr. Jones from relying on the Crown theory that he authored the text messages would place him in an intolerable "Catch-22". He could either admit that he was the author of the text message on the Charter voir dire (in aid of seeking standing to challenge the validity of the Production Order and Authorizations) or forego challenging the admission of evidence tendered to prove he was the author in the trial proper: Jones, at para. 18. In Mr. Jones' case, the admission that he authored the text messages was tantamount to an admission of the underlying offence: Jones, at para.23.

[84] In R. v. Jones, 2017 SCC 60, 2017 S.C.C.60, the Supreme Court of Canada wrestled with the issue of whether an accused needed to adduce evidence related to standing in order to advance a Charter application under section 8, or whether the accused could rely upon the Crown theory in order to ground the standing argument. At paras 9, 32 and 33 of Jones, the Court stated:

I conclude that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. In this case, Mr. Jones should have been permitted to rely on the Crown allegation that he authored the Text Messages, and his subjective expectation of privacy in the subject matter of the search is accordingly established.

In my view, that is best accomplished by concluding that counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. Alternatively, the court may encourage prosecutors to be forthright in regards to their theory.

The preceding lays out an exception to the rule that a Charter applicant "bears the burden of persuading the court that [his] Charter rights or freedoms have been infringed or denied". Mr. Jones is entitled to rely on this exception because, as explained above, Ontario Crown counsel tendered the Text Messages to prove that he was the author of their inculpatory contents, and admitted in the voir dire that the evidence was "very clear" in that respect. Pursuant to the Crown's theory, then, he should have been presumed to be the author of the Text Messages for the purposes of his s. 8 application. [Citations omitted.]

[85] In justifying an applicant’s ability to rely upon the Crown theory, the Supreme Court described the nature of the subjective belief in a reasonable expectation of privacy at paras 20 and 21:

To begin, the subjective expectation requirement has never been “a high hurdle” (R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37). And for good reason. Overemphasizing the presence or absence of a subjective expectation of privacy cannot be reconciled with the normative nature of the s. 8 inquiry. As Justice Binnie explained in Tessling, at para. 42:

The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society. . . . It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard. [Underlining added.]

The idea here is simple: a Charter claimant’s subjective belief that Big Brother is watching should not, through the workings of s. 8, be permitted to become a self-fulfilling prophecy. The importance of the subjective expectation element is therefore attenuated in the s. 8 analysis, and the evidentiary foundation required to establish that element is accordingly modest. A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at the voir dire (see Patrick, at para. 37; Tessling, at para. 38; Cole, at para. 43). The modest evidentiary foundation necessary to establish one’s subjective expectation of privacy therefore reflects the notion that s. 8’s normative import transcends an individual claimant’s subjective expectations.

[86] Thus, courts should be wary not to overemphasize the nature of the subjective belief when examining the reasonable expectation of privacy.

[87] The Court then examined the nature of text messages themselves as they inform the analysis of both the subjective and objective components of the reasonable expectation of privacy at paras 34, 37 and 39:

In the instant circumstances, it follows that Mr. Jones subjectively expected privacy in records of his electronic conversation found in the service provider’s infrastructure. As the Court of Appeal correctly noted, text messages are private communications. This is not in dispute. Further, as the application judge found, Mr. Jones and his co-accused used third-party names so as to “avoid detection or association with” the Text Messages (application judgment, reproduced in A.R., vol. I, at pp. 1-41, at para. 31). This suggests they intended their communications to remain private. Accordingly, we may infer that Mr. Jones had a subjective expectation of privacy in the subject matter of the search.

…As I see it, it was reasonable for him to expect that the Text Messages he sent would not be shared by a service provider with any parties other than the intended recipient. And, as explained below, neither the absence of a contractual policy, nor the fact that the Production Order targeted a third party, deprives him of that protection.

In the context of informational privacy, specifically, this Court has long recognized that “all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit” (Dyment, at p. 429, quoted in Spencer, at para. 40). The concern here is informational self-determination. Just as individuals may choose to be left alone in their own homes by closing the door on the state and reasonably expect privacy, they may choose to divulge certain information for a limited purpose, or to a limited class of persons, and nonetheless retain a reasonable expectation of privacy, depending on the circumstances. When it comes to s. 8, protecting such choices is essential.

[88] Therefore, it appears that the nature of the items seized - in Jones, text messages – must be analyzed relative to the Crown theory when determining standing.

[89] As will be seen below, I will not engage in any s. 8 analysis as it is superfluous to the result. Nonetheless, for the sake of completeness, I will make findings of fact later in these reasons relevant to this area of the Charter.

Section 24(2) of the Charter

[90] Section 24(2) of the Charter states:

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.

[91] In R. v. Grant 2009 SCC 32, the Supreme Court of Canada described a three-prong test to determine whether evidence ought to be excluded under section 24(2). The test involves the examination of:

a. The seriousness of the breach;

b. The seriousness of the impact of the breach; and

c. Society’s interest in adjudicating the matter on its merits.

[92] At para. 84 of Grant, the Supreme Court was clear that, in balancing these factors, courts are to take a long-term view of the impact of any given decision to exclude evidence.

[93] In R. v. Mhlongo, 2017 ONCA 562, [2017] O.J. 3439, the Ontario Court of Appeal dealt with the seriousness of breaches flowing from unlawful detentions and resultant searches. The Court considered a case where the trial judge found that the police began a detention as a Highway Traffic Act investigation which morphed into a Criminal Code investigation. The trial judge found that the shift to a criminal investigation resulted in an approximate half-hour unlawful detention where rights to counsel were not read. The accused threw some cocaine under a car. The accused sought to exclude the evidence and the trial court admitted same stating that the accused had no remedy as per Grant.

[94] In reversing the trial court, the Court of Appeal stated at paras 60 to 64:

Once it is accepted, however -- as I conclude -- that the appellant was held, unlawfully, in investigative detention for more than half an hour, without being provided with his right to counsel during that period, and that there were therefore three consecutive Charter breaches committed -- two, at least (s. 9 and s. 10(b)), quite serious in nature -- the analysis points in the opposite direction, in my view.

On the trial judge's analysis, the s. 8 violation was less serious than might otherwise have been the case. He concluded that P.C. Richardson reasonably believed (although perhaps mistakenly) that the appellant had not been wearing a seat belt when the Honda passed his cruiser in the alley, that he could have ticketed the appellant for that infraction (although he did not), and in those circumstances would have had a lawful means to ask the appellant for identification (although, as noted above, on the trial judge's findings, P.C. Richardson did not in fact ask the appellant for his identification on account of the seat belt issue).

Looked at in isolation, this view of the s. 8 violation, on a spectrum of less serious to more serious s. 8 violations, may be less serious. However, the s. 8 violation provided the entrée to the two serious ss. 9 and 10(b) violations that followed. Once the latter violations are in the mix, the s. 8 violation cannot be viewed in isolation for purposes of the "seriousness of the breach" analysis.

Two other considerations played into the trial judge's approach to that analysis. The first was his finding that the police officers had not acted in bad faith, or in deliberate or willful breach of the appellant's Charter rights, or in an attempt to mislead the court in their testimony. The second was his view that the appellant was not detained for criminal investigative purposes until P.C. Stone physically detained and handcuffed him at 7:57 p.m.

In spite of the appellant's vigorous attack on the trial judge's findings with respect to bad faith generally, the finding was open to him on the record, and I see no basis for interfering with it. I accept those findings for purposes of the s. 24(2) analysis. That said, given my conclusion that there were three consecutive Charter breaches -- two of which are serious -- it is also open for me to observe that the police conduct in these circumstances can fairly be described as demonstrating at least a sustained indifference to the appellant's Charter rights. I do not accept the finding of no-bad-faith as enough to tip the first Grant factor analysis in favour of admitting the evidence. [Emphasis added.]

[95] The Court then summarized its findings at para 66 and 67:

While acceptable in the context of the trial judge's approach, this analysis is of little assistance in the context of the s. 9 and much more prolonged s. 10(b) breaches. I view the unlawful detention of the appellant for purposes of a criminal investigation - in circumstances where P.C. Richardson concedes he had no basis at all for such a detention - as well toward the serious end of the breach spectrum, and the failure to provide the appellant with his right to counsel for more than half an hour after the commencement of that unlawful detention as even further along that spectrum.

The first Grant factor points strongly towards exclusion of the impugned evidence, in my view. [Emphasis added.]

[96] With respect to the impact of the breach, the Ontario Court of Appeal stated at paras. 72 – 74 of Mhlongo:

The unlawful detention was what gave rise to the appellant's immediate right to counsel. By failing to inform him of his s. 10(b) rights, the police deprived the appellant of any meaningful opportunity to assert his legal rights during the investigative detention and, ultimately, he incriminated himself by throwing the drugs in his possession under the white vehicle. Protection against self-incrimination is an important concern underlying the s. 10(b) right: see Suberu, at paras. 40-41. Had the appellant been informed of his rights -- as he should have been, at or around 7:25 p.m. -- events might well have unfolded differently.

It is not enough to say, as the Crown asserts, that the computer searches of the appellant's name (flowing from the s. 8 breach) were inconsequential because they yielded no incriminating evidence with respect to the drug charge or, as the trial judge found, that the appellant created his own difficulties by intentionally discarding the drugs and giving up any privacy rights in them. The right to counsel is designed to guard against the very eventuality of self-incrimination.

The second Grant factor strongly favours exclusion of the evidence.

[97] Thus, I believe that the court in Mhlongo is clearly indicating that extended, unlawful detentions where rights to counsel are not read to an accused person are serious breaches of an accused’s s. 9 and 10(b) Charter rights, irrespective of whether an accused’s s. 8 rights are affected.

[98] The court in Mhlongo dealt with the third prong of Grant in a truncated fashion which is of limited assistance in this case in so far as the evidence excluded in Mhlongo was cocaine, whereas the evidence in the case before me includes loaded firearms. While the possession of considerable amounts of cocaine is serious, I believe that the use of loaded firearms is even more dangerous to society given the obvious safety concerns. In fact, society’s interest in trying firearms cases on their merits was recently examined by both the Ontario Court of Appeal and the Supreme Court of Canada in R. v. Omar, 2019 SCC 32, [2019] S.C.J. No. 32; 2018 ONCA 975, [2018] O.J. No. 6346 (Ont. C.A.). In Omar, police stopped two men walking down the streets of Windsor, Ontario. The police were looking for a man who was white and was ostensibly in possession of a knife. The accused was of similar height to the suspect who was sought, but was black. After being asking for identification, the accused handed the police a wallet. The wallet contained, inter alia, someone else’s identification. The police asked a number of other questions of the men on the street and asked the men to put their hands out. At this point, the police saw a firearm and the accused was arrested.

[99] At trial, the judge found that the police breached the accused’s ss. 8, 9 and 10(b) rights. As per s. 24(2), the judge found that the breach was not serious in that the officers acted in good faith. The impact of the breach was found to be serious while society’s need to adjudicate on the merits was powerful. The guns were admitted into evidence.

[100] The matter was appealed. At paragraph 45 and 46 of its decision, the majority of the Court of Appeal examined the oft-repeated axiom that,

an absence of bad faith does not amount to good faith… [a]ccordingly, claims of good faith should be rejected if based upon ignorance or an unreasonable application of established legal standards. As the Supreme Court stated in Grant, at para. 74, ‘ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith’” (para. 45-6).

[101] The majority allowed the appeal and found that the evidence ought to be excluded.

[102] Brown J.A. dissented. He deferred to the trial judge’s findings of good faith. At paras. 74 to 76, Brown J.A. stated:

C. Did Grant bring clarity to street interactions between the police and the public?

I do not share my colleague's view that Grant brought practical, on-the-street clarity to the issue of when a psychological detention occurs within the meaning of s. 9 of the Charter.

Grant offered general guidance at the conceptual level about when a psychological detention occurs. However, the jurisprudence reveals that the application of Grant's conceptual principles to the reality of street-level interactions stills leaves us in the situation described by the trial judge -- "the point at which an encounter becomes a detention is not always clear."

Grant's conceptual level generality

Uncertainty about when a detention occurs has existed throughout Charter jurisprudence, in large part because of the inclusion of the psychological element in the concept of detention. Going back to 1990, the Supreme Court in R. v. Schmautz, 1990 CanLII 134 (SCC), [1990] 1 S.C.R. 398, recognized, at p. 415, that when dealing with the concept of detention, "it is not always easy to determine in given circumstances whether and when it legally occurs."

That difficulty could be mitigated, although not eliminated, if the law required police officers to remain in their cars or stations unless responding to the specific report of a criminal event or executing a judicially authorized warrant. But that is not our law. In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court stated, at para. 3, that "[s]ection 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime."

Nevertheless, neighbourhood policing gives rise to a "complex situation": Grant, at paras. 38 and 40. Part of that complexity lies in ascertaining when a police interaction with a member of the public crosses the line to create a psychological detention. The complexity inherent in that line-drawing exercise was described by the Supreme Court in R. v. Mann…

[103] At paras 85 to 87, Brown J.A. then described how street-interactions can be viewed through the lens of Grant:

I start with Grant, the facts of which my colleague has recited. When did the point of detention occur? Not with the officer approaching Mr. Grant and making general inquiries: "Such preliminary questioning is a legitimate exercise of police powers": at para. 47. What were the preliminary inquiries made in Grant? "The officer asked the appellant 'what was going on’ and requested his name and address. In response, the appellant provided a provincial health card": at para. 6.

The officer then told Mr. Grant to "keep his hands in front of him." A psychological detention? Not necessarily. It depends on the "context": "This act, viewed in isolation, might be insufficient to indicate detention, on the ground that it was simply a precautionary directive": at para. 48. However, in Grant, "consideration of the entire context of what transpired from this point forward leads to the conclusion that Mr. Grant was detained": at para. 48.

The message to police officers? Telling a person to keep his hands in front of him may, or may not, create a psychological detention. It depends on what you do next -- the ensuing "context".

[104] Brown J.A. thus appears to indicate that the interaction between the police and an accused can be fluid which can, in turn, affect the seriousness of the breach and the officers’ good faith. At paras 117 to 121, Brown J.A. then examined the Court of Appeal’s findings in R. v. McGuffie, 2016 ONCA 365 as they pertain to his discussion regarding “street-level” interactions.

McGuffie involved findings of very serious Charter breaches: (i) a breach of s. 9 rights, where an initial lawful investigative detention turned into a lengthy (90 minute) de facto arrest when no grounds to arrest existed; (ii) a lengthy denial of s. 10(b) rights; and (iii) several unlawful searches of the accused, including an unreasonably conducted strip search. It was in that context that Doherty J.A., stated, at para. 63:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence... 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... Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]

A considerable distance exists between the nature of the police conduct in McGuffie and that in the present case. In McGuffie, Doherty J.A. held that: there was "an overwhelming case for exclusion"; the police misconduct fell "at the very serious end of the continuum"; the police breaches had a "profound impact" on the appellant's Charter-protected interests; and, the search was "highly intrusive": at paras. 75-76, 79, 82. Overall, the police demonstrated a "blatant disregard for the appellant's constitutional rights": at para. 83. By contrast, in the present case there was a brief detention before Mr. Omar revealed his handgun when he removed his hands from his pockets, no physical contact and, as the trial judge found, the officers' conduct was not abusive.

I am concerned that if the statements in McGuffie are taken out of the context in which they were made - findings of very serious, intrusive breaches of Charter rights amounting to a "blatant disregard" of constitutional rights -- and applied to police conduct that stands at the less serious end of the fault spectrum, courts risk turning those statements in McGuffie into a kind of "two-strikes-and-the-evidence-is-out" rule. That, in turn, would create three risks:

*A return to the days of a kind of "all-but-automatic exclusionary rule", which the Supreme Court rejected in Grant by directing that "[n]o overarching rule governs how the balance is to be struck": at para. 86;

*Ignoring Paterson's recognition, at para. 54, that s. 24(2) involves balancing "mutually incommensurable" factors, thereby necessitating the consideration of all three factors; and

*Effectively subordinating the third Grant factor to a position where it would play no practical role in the balancing exercise; it would be neutered.

I would note that in Paterson the majority described the result of their s. 24(2) balancing as a "close call": at para. 54. Although in that "close call" case the majority referred to the McGuffie decision, it did not refer to or comment on the statements from McGuffie relied upon by my colleague.

I think the s. 24(2) balancing exercise must remain open to the Supreme Court's direction to follow the constitutional text -- "in all the circumstances" -- and eschew any overarching rule as to how the balance is to be struck. [Emphasis added.]

[105] Brown J.A. then turned his attention to the societal impact of firearms on the third factor in Grant. At paras 122 to 130:

B. The treatment of Grant's third factor in gun cases

In dealing with the third Grant factor in his s. 24(2) balancing exercise, my colleague states, at para. 56, that "[i]t is also worth recalling that there is no 'firearms exception' requiring that guns obtained in breach of Charter rights be admitted into evidence."

I do not quarrel with that proposition, put that way. However, I would respectfully submit that to fail to give some recognition to the distinctive feature of illegal handguns -- which are used to kill people or threaten them with physical harm, nothing else -- and, instead, to treat them as fungible with any other piece of evidence risks distorting the Charter's s. 24(2) analysis by wrenching it out of the real-world context in which it must operate.

As interpreted by the jurisprudence, the legal rights and freedoms enumerated in the Charter attach to an autonomous person. However, both the text of the Charter and the jurisprudence recognize that the legal (and philosophical) construct of the autonomous person must bend to the reality that we all depend upon and interact with others as we go about living our daily lives. Most of us live in community with others, many in dense urban environments. Few of us live in the splendid solitude of the notionally autonomous person.

In the Charter, the "I" of the autonomous rights-bearing person meets up with the "We" of the community in ss. 1 and 24(2). Under both sections, the Charter vests in the judiciary the job of striking some sort of balance between the construct of the autonomous person and the reality of living together in community.

In the case of s. 24(2), the judiciary must determine whether evidence obtained in a manner that infringed or denied any Charter right or freedom should be admitted or excluded from a criminal proceeding: more specifically, whether "having regard to all the circumstances" the admission of such evidence in the proceedings "would bring the administration of justice into disrepute."

To do so, the case law instructs that a judge is required to view the matter through "the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case", grounding his or her discretion in the "long term community values", and ensuring that he or she does "not render a decision that would be unacceptable to the community when that community is not being wrought with passion or otherwise under passing stress due to current events": Collins, at pp. 283-84.

Although Collins puts judges into the position of acting as the reasonable person fostering "long term community values" when deciding under s. 24(2) whether to admit or exclude evidence, such as an illegal handgun, practical limits exist on the perspective judges bring to that task.

Why is that?

Because the lethal problem posed by illegal handguns often seems remote from our daily judicial lives: we tend to live in safe residential areas; and we work in highly secure courthouses. The problem may directly touch others in the community; but for most of us it is a problem only read about in the media. As a result, we judges can be tempted to conceptualize issues under 24(2) in a somewhat abstract fashion, making decisions in an environment some distance removed from that where their real-life impact will be felt.

[106] In deferring the trial judge’s findings, Brown J.A. then summarized his views regarding society’s need to adjudicate firearms offences on their merits at paras. 133 to 138:

My colleague, faithful to the jurisprudence, points to language from the Supreme Court directing that when judges conduct s. 24(2) exercises they must focus on the "long-term repute of the justice system": Grant, at para. 84. Indeed, in Grant the majority used even more colourful language stating, at para. 84, that: "The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice."

In the present case, there was no evidence of any "short-term public clamour" for a conviction of Mr. Omar. I suspect that it was a media "non-event": just another young drug-dealer carrying a concealed illegal handgun. A chronic, everyday event in most Ontario urban centres.

However, a community's desire to live free from the lethal threat of illegal handguns is not the product of a community "wrought with passion" or "otherwise under passing stress due to current events." It is a most rational desire for a necessary component of the rule of law - the existence of a safe and ordered community in which individuals have the ability to exercise their liberty rights free from fear and threat of harm to their persons. As Grant teaches, the term "administration of justice" in s. 24(2) is not limited to "the processes by which those who break the law are investigated, charged and tried", but it more broadly "embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole": at para. 67 (emphasis added).

We judges must never forget the impact that our decisions have on the day-to-day reality in which most of our fellow Canadians live -- and from which we are by and large insulated.

I completely agree with my colleague that it is "fundamental to our social order that the police, like all other state actors, perform their duties in accordance with the law and that they respect Charter rights": at para. 55. At the same time, it is equally fundamental to our social order that Canadian citizens can walk their public streets and exercise their Charter liberty rights without finding themselves at the wrong end of an illegal handgun. In R. v. Chan, 2013 ABCA 385, 561 A.R. 347, the Alberta Court of Appeal put the matter as follows, at para. 49: "[W]e consider society's interest in the adjudication of the merits to be greater where the offence is one that so literally involves the safety of the community."

It is, of course, a matter of balance under s. 24(2). But the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a s. 24(2) analysis.

[107] The case was appealed to the Supreme Court of Canada. The Supreme Court released a three-paragraph judgment reversing the Ontario Court of Appeal. They stated:

A majority of this Court would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal. The majority adds this. It may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day.

Justices Karakatsanis, Brown and Martin dissent, substantially for the reasons of Sharpe J.A. at the Court of Appeal. The dissenters add this. It may be that consideration should be given to whether the police should caution persons that they stop and question that such persons need not remain or answer questions, but the dissenters would leave this for another day.

The appeal is allowed and the convictions are restored.

Factual Findings

The Decision

[108] There are two preliminary findings of fact that need to be made prior to embarking on a legal analysis. First, I must determine who made the decision to pull the car over. In this case, Cst. Lillington testified that it was a form of a “group” decision whereas Cst. Runco and Sgt. Crema both testified that, as the sergeant on scene, it would have been Sgt. Crema who was responsible for the decision.

[109] Upon examination of all the evidence, it is clear to me that there was a level of uncertainty in the officer’s testimony on this point. From the transcripts, it appears that the officers did not have specific notes as to who ordered that all people leaving the house were to be stopped. In fact, it occurs to me that, given the level of uncertainty in this regard, it is possible that Sgt. West was involved in that general decision-making prior to Sgt. Crema’s arrival. With that said, I accept the evidence of Cst. Runco and Sgt. Crema that police protocol would generally require a ranking officer to take control of an investigation. Were this not the case, individual constables could run around a crime scene hither and yon without central direction or purpose. As such, I accept that Sgt. Crema either directed that the car be pulled over or agreed that such activity was to continue as per an existing standing order given prior to his arrival.

Sgt. Crema’s Belief that the Accused Persons Were Not Detained

[110] The second factual determination has to do with whether I find that the police testified honestly before me. Specifically, I have been asked to examine whether or not Sgt. Crema honestly believed that Messrs. Baron and Pine were not detained. It must be stated that findings of credibility are difficult in this case in so far as the parties filed three days’ worth of preliminary hearing transcripts and agreed to use those transcripts as the evidence on the application (supplemented with viva voce evidence). I commend the parties for this decision in so far as it expedited the litigation and allowed me to focus on those issues that are key to this hearing.

[111] With that being stated, however, transcript evidence has limitations. Sgt. Crema was cross-examined regarding the legitimacy of his belief at the preliminary hearing and, by definition, I was not able to observe that testimony. As has been noted in cases like Hryniak v. Mauldin, 2014 SCC 7, [2014] SCJ No. 7, an assessment of credibility is not impossible via transcript but is nonetheless attenuated when the trier of fact cannot see the viva voce evidence. Sgt. Crema was not cross-examined extensively on this issue in front of me. An examination of the facts reveals that, while the flashing lights at the traffic stop demand that the accused persons were detained from the moment they were pulled over, Mr. Pine walked away from the scene. Mr. Pine’s departure provides some evidential corroboration of Sgt. Crema’s belief. I therefore find that Sgt. Crema honestly held his belief that Messrs. Baron and Pine were not detained when the car was pulled over, despite the Crown’s rightful concession that a detention in fact occurred ab initio.

[112] Nonetheless, I find that Sgt. Crema’s honestly held belief was not reasonable in the circumstances. First, as was indicated by all the officers on scene, every person leaving the house was going to be pulled over and identified so as to further the criminal investigation. This conduct is, by definition, a detention. Anyone so stopped, would not have had the right to ignore the police and continue on their way. This is especially true in a traffic stop. Sgt. Crema rightly indicated that, where a person is not detained, they can tell a police officer to “go fly a kite” upon being approached by the police on the street. In the case before me, however, Messrs. Baron and Pine were not walking on the street. They were driving a car. The accuseds undoubtedly stopped the car because Cst. Runco and Cst. Lillington activated the police lights in the police cruiser. The use of the police lights demands that any driver must stop lest they face further police investigation associated with failure to stop for police. Such a stop is obviously a detention and, while I accept that Sgt. Crema’s belief is honestly held, that belief cannot be said to be reasonable in the circumstances.

Section 9 of the Charter

Reasonable Grounds

[113] The next step of the analysis is to decide whether the police had reasonable grounds to detain the red Ford Fusion.

[114] Upon review of the evidence, no officer was ever asked what factors were relied upon in order to justify their detention of the red Ford Fusion. By itself, that lack of evidence is enough to suggest that the officers did not turn their minds to grounds for detention at the scene and further suggests that the officers had insufficient grounds to detain. At best, the police were aware of the following at the time of the detention:

a. The police were in possession of “intelligence” that suggested that Mr. Fyfe was having people collect drug debts. This intelligence was never specified;

b. That the address at 33 Hamilton Ave. was associated to Mr. Fyfe;

c. That Mr. Seamus Fyfe’s surety was seen in the vicinity of 33 Hamilton Ave. during the investigation;

d. That a black truck was used at the home invasion. That said black truck had certain identifiable physical features;

e. That the black truck located at 33 Hamilton Ave. had similar features to the truck used in the robbery;

f. That the red Ford Fusion presumably arrived at 33 Hamilton Ave. after the black truck arrived at that location since the Fusion was parked behind the truck; and

g. That both vehicles were in the driveway approximately two-and-a-half to three hours after the home invasion, as initially observed by Cst. Lillington and Cst. Runco.

[115] An analysis of these grounds reveals that they were insufficient to provide reasonable grounds to detain the red Ford Fusion. First, the nature of the “intelligence” was never described in court. Accordingly, the “intelligence” could be entirely unreliable and obviously untrustworthy. The “intelligence” is therefore accorded no weight.

[116] Second, the red Ford Fusion was not in any way described by witnesses as being present at the crime scene. Put another way, there was nothing tying the vehicle or its occupants to the home invasion.

[117] Third, the two-and-a-half to three-hour time gap as between the home invasion and the discovery of the truck is simply too much time to suggest that a red Ford Fusion found behind the black truck was associated with the home invasion. Had the time gap been two-and-a-half to three minutes, or had the accused persons driven away in the black truck, the police may have had grounds to detain. But that is not the case in the matter before me.

[118] When the police spotted the black truck approximately three hours after the home invasion robbery in another part of Sault Ste. Marie, too much time had elapsed and too much distance had been travelled to suggest that another car (which arrived on scene after the truck) would have had anything to do with the robbery. As such, the police did not have grounds to stop the red Ford Fusion ab initio.

The Detention Itself

[119] As was noted earlier in these reasons, investigative detentions are to be brief and rights to counsel are to be read immediately upon detention. In this case, the police failed on both counts. I cannot resolve how long it took for Sgt. Crema to attend at the Ford Fusion. For the purposes of this decision, it does not matter. All counsel agree that both Mr. Baron and Mr. Pine were detained at roadside for at least 30 minutes without rights to counsel being read. In Mr. Pine’s case, he left the scene. In Mr. Baron’s case, he was given rights to counsel almost an hour post-detention. Neither scenario is close to being Charter compliant and both constitute further ss. 9 and 10(b) Charter violations.

The Section 9 and 10(b) Charter Breaches Summarized

[120] To summarize, the police breached both Mr. Pine and Mr. Baron’s section 9 and 10(b) Charter rights in that:

a. They had insufficient grounds to pull over the red Ford Fusion in order to pursue a criminal investigation;

b. They detained Mr. Pine for 30 plus minutes and Mr. Baron for 50 plus minutes in a quasi-arrest; and

c. They did not read Mr. Pine his rights to counsel and they waited until Mr. Baron was arrested for driving while disqualified (50 plus minutes after detention) to provide him with same.

Section 8 of the Charter

[121] As noted above, Reeves leaves open whether a third party – in this case, Ms. Baron – can waive an applicant’s privacy rights. Ultimately, I need not resolve this issue since it is immaterial to my final outcome, however, for sake of completeness, I make the following findings of fact.

Mr. Baron

[122] First, Ms. Odette Baron testified that, while Mr. Baron was not allowed to drive the car as a result of his disqualification from driving, she had nonetheless lent the car to Mr. Baron’s girlfriend for her use. I accept that evidence.

[123] Second, I reject Ms. Baron’s evidence that she did not remember her conversation with police wherein she gave consent to search the trunk. She claims that she was on pain medication at the time of the call. Upon listening to the call, Ms. Baron’s voice was clear and her interactions were entirely appropriate. There was nothing in the call that could corroborate the contention that she did not remember the interaction with police. Further, she was made aware in the call that there might be firearms in her vehicle and she was appropriately concerned in the audiotape. To suggest that Ms. Baron did not remember the call therefore strains credulity.

[124] Accordingly, I reject Ms. Baron’s evidence on this point and find that she in fact consented to the search. I make no findings regarding whether the audio-taped consent search – as opposed to a warrant, or even a written consent – was appropriate in the circumstances.

[125] With regards to Mr. Baron’s privacy interest in the truck, I need not resolve this issue.

Mr. Pine

[126] With respect to Mr. Pine, counsel submitted that Mr. Pine would be allowed to claim a privacy interest in the trunk of the car, albeit in a very limited fashion. Counsel also submitted that Mr. Pine had a heightened privacy interest in in the duffle bag based on Jones.

[127] I have no evidence regarding Mr. Pine’s subjective belief in his privacy in the trunk or the bag, or any evidence to suggest that this belief is reasonable. I have no evidence suggesting that Mr. Pine had any interest in the trunk or the bag. Equally, it occurs to me that there is nothing in the trunk that in and of itself leads to the inference that a passenger would have a privacy interest therein even given the Crown theory as per Jones.

[128] I also note that Cst. Pavoni testified that the bag was open inside the trunk and that firearms were plainly visible. This evidence was not contested particularly in cross-examination and I accept it. I need not, however, resolve whether Mr. Pine had a privacy interest in the truck.

Summary of S.8 Breaches

[129] I make no findings with respect to putative violations of the accuseds’ section 8 rights as it would be unnecessary given the findings that follow.

Section 24(2) of the Charter

[130] Having found that the accused’s section 9 and 10(b) Charter rights were breached, I must now balance the competing Grant factors and determine whether or not to exclude the evidence.

Factor One: Seriousness

[131] With respect to the seriousness of the breach, the section 9 and 10(b) Charter breaches are serious. As indicated in Mhlongo, lengthy stops without rights to counsel are, in and of themselves, serious breaches irrespective of whether s. 8 Charter rights are also breached[^2]. Lengthy detentions without rights to counsel are serious breaches, especially where the police had insufficient grounds to detain in the first place. They are akin to an arrest without grounds for said arrest. The Court of Appeal has made the import of this situation clear.

[132] As for the possibility that the police acted in good faith, I have found that Sgt. Crema honestly believed that the accused persons were not detained. However, as indicated earlier, said belief was not reasonable in the circumstances. Sgt. Crema observed the vehicle leaving. He would have had to have assumed (if not directly ordered) that Cst. Lillington and Cst. Runco pull the car over using their lights and/or siren. Given that there are Criminal Code and Highway Traffic Act consequences for failing to stop for a police officer in such situations, Sgt. Crema’s belief was not grounded in the law or common sense. Thus, while Sgt. Crema’s honesty negates the finding that the police acted in bad faith, neither can it be said that the police acted in good faith. This is therefore a neutral factor.

[133] This is also not a case like Mhlongo where a brief traffic stop morphs into a criminal investigation. This is not a case where the lines between non-detention, justified detention and unjustified detention are thin. In this instance, the police observed the residence for several hours before the red Ford Fusion left the scene. The police had ample opportunity to consider their options. It was clear from the evidence that the police were going to stop everyone leaving the residence. This is not a nuanced approach. I do not have the officers’ views of their reasonable grounds to detain. Instead, this is a case where the police made a blanket decision that was not grounded in law.

[134] This is also not a case like Omar where the officers were confronted with a difficult, intricate, real-time decision involving possibly aggressive accused persons. This case is more egregious in that the police had time, but did not appear to even consider the Mann factors when stopping the car. Given the clear position taken by the Court of Appeal in such situations, I find that the breaches in the case before me are very serious in that they represent a flagrant violation of the accused’s rights.

Factor Two: Impact

[135] The impact of the breaches was also very serious. Because the police did not have grounds to pull the car over, they would not have discovered Mr. Baron driving and would not have been able to impound the car but for the breach. Therefore, the items seized would not have been discovered. To suggest that the impact of the breaches for either accused is anything other than quite serious has no basis in common sense. This holds true not only for Mr. Baron, but also for Mr. Pine since he too has the right to be free from unwarranted detention. Again, had the police not breached Mr. Baron and Mr. Pine’s s. 9 Charter rights, they would not have found the evidence seized. The impact of the breach is therefore obvious.

Factor Three: Society’s Interest

[136] In this case, the firearms seized were not handguns as were discussed in Omar[^3]. Defence counsel argued that this distinction means that society’s interest in adjudicating the matter on its merits was somehow lessened. I disagree.

[137] This is not a case where shotguns or rifles were used in hunting and/or storage offences. They were apparently used to perpetuate a home invasion robbery. Short of crimes involving physical harm or violation, I cannot think of more serious infractions. Home invasion robberies with firearms are horrifying.

[138] Exacerbating this phenomenon is the fact that Sault Ste. Marie is in the midst of an opioid crisis. As I ruled in R. v. Elie 2019 ONSC 2248 at para. 9: “there is a national opioid epidemic and ... said epidemic is currently of pronounced concern in Sault Ste. Marie, Ontario”. With respect to whether this robbery is drug-related, one need only read the monthly updates of criminal cases in this country in order to note that home invasion robberies are often associated with the drug trade.

[139] Therefore, the distinction between a handgun discovered by police (but not used on members of the public) as opposed to long guns that were used against Canadian citizens in possible drug debt collections is not a distinction capable of lessening society’s interest in adjudicating this matter on their merits. If anything, trying cases where guns are pointed at individuals ought to attract a higher societal concern.

[140] It must also be noted, however, that other pieces of evidence exist which the trier of fact may consider at trial[^4]. This is not a case, therefore, where exclusion of the evidence would “gut” the prosecution.

[141] Accordingly, as per Omar, I find that society’s interest in trying the matter on its merits is very high, but not as high as it would be had the guns been the only evidence of identification.

The Balance

[142] This is a difficult case given the concerns described in Omar and the local situation that I have referred to in Elie.

[143] This community needs to have serious cases tried on their merits, especially where possible drug-related firearms crimes are committed. There are far too many drugs and firearms in this community given its size.

[144] Nonetheless, the Charter of Rights and Freedoms is a document that underpins much of Canadian life, whether in relation to polite social intercourse or police searches of vehicles containing firearms putatively used in home invasion robberies. Canada has as a foundational principle the notion that the state will obey reasonable limits when interacting with anyone it sees as threatening the social order. This sets us apart from other countries, where such freedoms are not held dear. Community passions for trying cases on their merits must not cause the courts to bend to the emotions of well-meaning but enraged people. The courts must strike appropriate long-term balances in order to ensure that the rule of law acts as a social rudder when emotional responses push society towards reactionary stances. I do not see Brown J.A.’s dissent in Omar as diminishing this view. Rather, it seems to me that Omar stands for the proposition that a powerful societal need to try a particular case on its merits should not be underestimated, especially where firearms are involved.

[145] Nonetheless, the severity of the breaches and the massive impact associated therewith are simply too powerful to ignore as per McGuffie. Indeed, I am mindful that, “[i]f 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.” I accept this statement on the facts of this case, even given Brown J.A.’s limiting statements in Omar. This guidance from the Court of Appeal is instructive in the circumstances.

[146] As regards to the applicants, the police had ample time to investigate the scene at 33 Hamilton Ave. and consider their options. I have no evidence that the police even considered Mann as they are required to do. While the community has a heightened interest in trying this case on its full merits, there is an even greater long-term community need for the police to undertake reasonable involvement with the public. The police cannot simply pull vehicles over where there is no reason to believe that said vehicle was involved in a crime[^5]. This is especially true where the impact of the breach is heightened. To admit the contents of the trunk (especially the guns) into evidence in this case would be to validate serious Charter breaches in situations where:

a. The police detain people without reasonable grounds;

b. The police provide no justification for their actions;

c. The positions taken by the police were not reasonable;[^6]

d. The breaches are serious;

e. The breaches gave rise to the evidence in such a way that, absent the breaches, it is likely that the evidence would never have been discovered; and

f. The police failed to follow the rules by ensuring that the detentions were short and that rights to counsel were read.

[147] The long-term effect of admission of the evidence would therefore diminish society’s view of the administration of justice, irrespective of society’s interest in adjudicating this particular case on its merits. Such a result cannot be countenanced. The evidence must be excluded as against both accused persons because the seriousness and the impact of the breach is pronounced.

Conclusion

[148] The application is successful. The evidence located in the trunk of the red Ford Fusion is excluded from evidence at trial.

Varpio J.

Released: December 30, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JOHN PINE and RONALD BARON and WILLIAM ROSS

REASONS on application to exclude evidence as a result of charter breaches

Varpio J.

Released: December 30, 2019

[^1]: The evidence was never clarified as to which particular vehicle remained under observation.

[^2]: I note that Mhlongo and McGuffie both involved searches subsequent to lengthy detentions. With that being said, as noted earlier in these reasons, I believe the law is clear that lengthy detentions without rights to counsel are serious breaches, especially where the police had insufficient grounds to detain in the first place.

[^3]: In these reasons, I will only deal with the firearms seized since they attract the highest import. Obviously, if the firearms are excluded, so are the other items located in the trunk.

[^4]: Mr. Baron has confessed. Mr. Pine’s fingerprint was found on a victim’s phone. Mr. Ross’ DNA was found on a cigarette butt located in the victims’ bathroom toilet.

[^5]: This assumes, of course, no Highway Traffic Act grounds to stop a vehicle.

[^6]: Sgt. Crema’s position that the accused men were not detained.