COURT FILE NO.: 18-00020-00

DATE: 2019/10/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Mohammed Mian

Applicant

Vicky Bae, for the Crown

Peter Kort, for the Applicant

HEARD: September 9, 10 and 11, 2019, at Belleville, Ontario

REASONS on charter application

Doyle J.

Overview

[1] At issue in this application is whether the Applicant’s rights under the Canadian Charter of Rights and Freedoms (“Charter”) were violated after a search of his vehicle’s glove box disclosed a gram of cocaine after a two-vehicle collision in Tweed, Ontario. This search led to his arrest and a subsequent search incident to arrest of his vehicle. Prohibited firearms and marijuana were located.

Brief Background

[2] The undisputed facts are that on May 25, 2017, the Applicant’s vehicle (a “Lexus”) was travelling northbound on Victoria Street in Tweed, Ontario when he was struck in the southbound lane by a southbound vehicle (a “Chevy”). His vehicle was T-boned when the front of the Chevy hit the driver’s side of the Lexus.

[3] The passenger in the Chevy suffered injuries to her foot and shoulder and was transported to the hospital. There was no evidence regarding any injuries to the driver of the Chevy. The Applicant received some medical attention in the Fire Department Van (the “Van”) at the scene of the collision but declined to be taken to the hospital. Later that day, he was transported to the hospital, examined, given pain medication, and released on bail the following day.

[4] Constable Brad Croghan, Constable Robin Veerman, Sergeant James Locke, and Constable Andrew Boyce of the Ontario Provincial Police (“OPP”), Central Hastings detachment, arrived at the collision scene after 2:00 p.m.

[5] Without seeking the Applicant’s permission, Sergeant Locke entered the Lexus and began to look for insurance information. When he opened the glove box, he found a dime bag containing approximately one gram of cocaine in a wallet. The Applicant was arrested for cocaine possession, and his person and his car were searched incident to arrest.

[6] A search of the Applicant’s person revealed a loaded magazine for a firearm.

[7] A search of the vehicle’s trunk disclosed:

• A modified firearm;

• Box of hippy shots;

• A bag of Marijuana; and

• Box of edible THC.

[8] A search of the vehicle at the detachment disclosed a modified firearm in the sunroof and the Applicant’s cellphone.

[9] Although the officers involved discussed the possibility of a search warrant, it was agreed that a search warrant was not required as the post-glove box searches were conducted incident to arrest.

[10] The Applicant does not contest jurisdiction or identification and confirms that the evidence heard in this application will be included as evidence in the trial proper.

Position of the Parties

[11] The Applicant applies for an order to exclude the evidence under s. 24(2) of the Charter. He submits the police conduct in the search and seizure of his property violated s. 8 of the Charter. He also alleges s. 9 and 10 breaches arising from his subsequent detention and arrest. He submits this situation should be described as a “house of cards” with one Charter breach leading to multiple breaches that calls for the exclusion of all of the evidence to preserve the integrity of the justice system.

[12] The Crown opposes the application. The Crown submits that although the original search was not authorized by law, the arrest was lawful and the property seized from the arrest was seized pursuant to a search incident to arrest. The Applicant was provided his s. 10(a) and (b) rights promptly. Alternatively, the Crown submits that even if the Court were to find Charter breaches, the evidence should be included under the R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 analysis.

Issues

[13] The Court will deal with each of the alleged breaches by addressing each of the following issues:

1. Was the Applicant’s s.8 Charter right violated by Sergeant Locke’s search of his glove box?

2. Were the Applicant’s rights under s. 7, 9, 10(a) and 10(b) of the Charter violated during the course of his detention and arrest?

3. Were the warrantless searches of the Applicant’s car at the roadside and at the police detachment justified as a search incident to arrest?

[14] If the Court finds that there were Charter breaches, the Court will then determine if it should exclude the following evidence pursuant to the Grant analysis:

• The glove box cocaine;

• A. 22 calibre magazine;

• Cannabis/marijuana;

• A Firearm – Kel Tec;

• A Henry US Survival Rifle;

• Ammunition, magazines; and

• A Cell phone?

1. Was the Applicant’s s.8 Charter right violated by Sergeant Locke’s search of his glove box?

Introduction

[15] For the reasons that follow I find that the Applicant’s s. 8 Charter right was violated when Sergeant Locke searched his glove box.

Position of the Parties

[16] The Applicant submits Sergeant Locke had no lawful basis to search the glove box. This was a breach of his right to be free from unreasonable search and seizure under s. 8 of the Charter.

[17] The Crown concedes that the search was unauthorized, but it submits it was an “honest mistake” while assisting at a collision scene. The police were not deliberately using regulatory powers or general police duty as a ruse to illegally obtain criminal evidence against a motorist. This was the only error and does not impact the lawfulness of the subsequent police conduct.

[18] The only purpose was to obtain insurance documents for a serious motor vehicle accident, not to obtain criminal evidence.

General Legal Principles

[19] As stated by the Ontario Court of Appeal in R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (2d) 102, the Court must proceed with a step-by-step analysis through the police interactions and the Applicant’s initial stop to determine if the officers stayed within their authority considering what information was lawfully obtained along the way. The Court of Appeal referred to R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851.

[20] Harflett directs the Court in a warrantless search to follow the analysis in R v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, the Crown must to establish on the balance of probabilities that:

• The search was authorized by law;

• The law is reasonable; and

• The search was carried out in a reasonable manner.

[21] In Nolet, the Supreme Court noted that roadside stops develop in different ways. Although the case at bar deals with a collision whereas the Nolet case deals with a traffic roadside stop, the process of reviewing the step-by-step interactions between the police and the Applicant is necessary to determine if the police stayed within their authority.

[22] In Harflett, the officer explained that he searched “every vehicle” when he calls tow trucks as he held himself responsible for the vehicle. In the step-by-step process required by Nolet, the Ontario Court of Appeal found that there was nothing in that case that ought to have triggered an inventory search. There were no public safety concerns. As the driver would be accompanying the driver of the tow truck towing his vehicle, there was no reason for the officer to search the interior of the vehicle and he had no reasonable basis to undertake an inventory by searching the interior of the vehicle.

[23] The officer found a large quantity of marijuana, and Mr. Harflett was convicted of possession of marijuana for the purpose of trafficking.

[24] The Ontario Court of Appeal overturned the trial decision and excluded the evidence under the s. 24(2) analysis. The Court found that the officer believed he was doing the right thing by searching the vehicle. He claimed he was doing an inventory, not a search. The Court found that the state conduct fell on the serious end of the spectrum of misconduct as described by Doherty J.A. in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (C.A.).

[25] The Supreme Court has confirmed that drivers have a reduced expectation of privacy in their vehicles: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 15. The Court in Caslake distinguished the case from R. v. Nicolosi, 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417 (C.A.), where the Court of Appeal found that the officer had a statutory obligation to take custody of the car. From that obligation, they had a duty to take steps to safeguard the vehicle and its contents in accordance with s. 221 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[26] At para. 48 of Harflett, the Court refers to Iacobucci J.’s comments in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, in which he held that even a minimally intrusive search “must be weighed against the absence of any reasonable basis for justification.” Since the Court found no justification for the search, this second line of inquiry militated in favour of exclusion. In that case, the Court of Appeal found that the third branch of the test also called for an exclusion of the evidence.

[27] In Harflett, the Court referred to Cory J.’s comments in R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at p. 629, where he stated:

The unreasonable search carried out in this case is the very kind which the Court wished to make clear is unacceptable. A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted.

Decision

[28] The Court finds that Sergeant Locke’s search of the Applicant’s glove box in the Lexus violated his s. 8 rights under the Charter.

[29] Sergeant Locke had no authority under the common law or any statute to search the glove box. There were no reasonable and probable grounds warranting a search of the Lexus. The Applicant was in the vicinity, was visible, and was accessible to be asked for the vehicle documents. There were no immediate safety issues or exigent circumstances that required the immediate retrieval of the documents.

[30] The Court makes the following findings:

1. Several officers involved in the search admit that they typically search the glove box of vehicles when investigating collisions;

2. The officers could not identify any legal authority for the search of the glove box and agreed they had no legal authority to perform the search; and

3. Sergeant Locke who searched the glove box and found the cocaine admitted that he had no legal authority to search the glove box under the Highway Traffic Act or the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25.

[31] Before moving to the next issue, the Court will deal with the conflicting evidence officers Locke and Veerman.

[32] Constable Brad Croghan was the first to attend the scene at 2:21 p.m. He told Constable Robin Veerman who arrived at 2:22 p.m. to complete the motor vehicle collision report (“report”).

[33] Constable Veerman took few notes at the collision scene. That was confirmed at the preliminary inquiry held on June 18, 2018, as well as at this hearing.

[34] Since Constable Veerman was tasked with the traffic aspect of the motor vehicle accident, he testified that his methodology at collision scenes is that he obtains vehicle documents. In this case, he recalls obtaining the ownership documents, insurance policy details, and driver’s license from the two occupants of the Chevy vehicle. The female passenger was complaining of a sore foot and shoulder and remained in the vehicle with the male driver.

[35] Constable Veerman noted the Applicant was in the back of the Van being attended to, so he went to the Applicant’s Lexus to find his vehicle documents. He believes he found the insurance policy in the glove box. He knew that was enough for him to complete the report. From an insurance policy, an officer can determine the owner of a vehicle using an App in his cruiser.

[36] As it was raining, Constable Veerman was not able to take notes outside. He went back to his cruiser to complete his report and conduct a computer search for the owner of the Lexus.

[37] While in his vehicle, Constable Veerman received a call indicating that there was another motor vehicle accident 15 to 20 kilometres away. Sergeant Locke told him to attend to the other accident.

[38] Constable Veerman returned the documents to the Chevy driver and believes he placed the insurance policy document in the glove box of the Applicant’s vehicle or on the passenger seat.

[39] Constable Veerman recalls that he had no other discussion with the officers attending and had no interaction with the Applicant.

[40] Sergeant Locke arrived at the collision scene at 2:33 p.m. Sergeant Locke indicates that he went to Constable Veerman’s vehicle and spoke to him from the driver’s side and asked if he needed any help. As Constable Veerman had the Chevy documents, he asked Sergeant Locke to look for the ownership and insurance documents in the Applicant’s vehicle. Sergeant Locke recalls that this is the only conversation he had with Constable Veerman.

[41] Sergeant Locke believed that it was important to complete what needed to be done in a timely manner as safely as possible to clear up the highway. The Applicant was 30 yards away being attended to by medical personnel in the Van.

[42] Sergeant Locke noticed a lot of debris, including cash and belongings, on the front passenger seat of the Lexus. He found the vehicle ownership document on the front seat but could not locate the insurance policy. He did not examine the ownership document nor did he ask the Applicant for the location of the insurance policy now that he had the ownership document in hand.

[43] Sergeant Locke then searched the glove box for the insurance policy. He indicates he usually searches for these documents in the glove box as this is where most drivers keep their vehicle documents. He is unsure whether the glove box was closed but it was not locked.

[44] In the glove box, Sergeant Locke saw the owner’s manual and a wallet on top of it. When he pulled the manual out with the wallet, the wallet fell open and a dime bag of cocaine fell out.

[45] He also observed other empty baggies, a set of digital scales, and other objects in the glove box.

[46] Sergeant Locke was later told by the Applicant that the insurance slip was in the ownership documents he had in his hand all along. No one is suggesting that Sergeant Locke knew he had the insurance policy before he searched the glove box.

[47] There is no evidence the glove box was under lock and key. No officer used a key to access it.

[48] Constable Veerman’s evidence that he took the insurance slip does not accord with the other evidence. Sergeant Locke found the ownership document on the passenger seat and eventually was told by the Applicant that the insurance policy document was actually folded in the ownership document.

[49] The Court notes the conflicting evidence of Constable Veerman and Sergeant Locke. Constable Veerman says his only conversation with Sergeant Locke was when he told him to attend to the second accident. Sergeant Locke’s evidence is that Constable Veerman told him to look in the Lexus for the documents. One is mistaken, not being forthright, or just does not recall events accurately.

[50] Was Sergeant Locke fabricating the reason for searching the glove box or was he mistaken in his recollection of events?

[51] The Crown submits that Constable Veerman’s notes lack detail. He could not remember where he found the documents in the Lexus. He cannot remember whether he left the insurance slip on the passenger seat or in the glove box. In addition, the evidence discloses that the insurance slip was folded and tucked in the ownership document. The Crown submits that Sergeant Locke had more detailed notes and provided clearer evidence at the preliminary inquiry and at this hearing.

[52] Although he has no specific notes regarding his attendance at the collision scene and no specific recollection where he found the documents for the Lexus, the Court notes that it is Constable Veerman’s usual practice as the individual in charge of the traffic investigation to locate the vehicle documents.

[53] If Constable Veerman’s evidence is accepted, Sergeant Locke was really on a fishing expedition as there would have been no reason for him to search the Applicant’s glove box. Given the scantiness of Veerman’s notes and his lack of clear recollection of where he found the document nor where he left it, the Court cannot rely on all his testimony.

[54] Notably, Constable Veerman stated that he only had the insurance policy document when in fact the evidence shows that the insurance slip was folded in the ownership document

[55] Therefore, I am not prepared to find that Sergeant Locke was on a fishing expedition when

he went into the Applicant’s glove box. This finding is made even though Constable Veerman

was the traffic officer tasked with the completion of the report and nowhere in Sergeant

Locke’s notes does he indicate that he gave the insurance and/or ownership documents to

Constable Veerman.

[56] In summary, this finding is made because:

• Constable Veerman had very few notes;

• This is in contrast to Sergeant Locke’s detailed notes, and

• Constable Veerman’s mistaken recollection of what document he returned to the Lexus.

[57] In any event, for the purposes of this decision, it is clear that both officers looked in the vehicle for the documents and neither had the authority to do so.

[58] As stated in R. v. Calderon, 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 (C.A.), there is an expectation of privacy in a car, although less than in a person’s home or office. In Calderon, the Court also held that there a greater expectation of privacy in an individual’s locked trunk than the interior of a car, where items are in plain view or accessible.

[59] Sergeant Locke acknowledged that he had no authority under the common law or any statute to search the car. He was just trying to expedite matters because of the collision.

[60] Therefore, there was a breach of the Applicant’s s. 8 rights under the Charter when Sergeant Locke accessed his glove box.

2. Were the Applicant’s rights under s. 7, 9, 10(a) and 10(b) of the Charter violated during the course of his detention and arrest?

Introduction

[61] Firstly, for the reasons that follow, the Court finds that the Applicant was detained.

[62] Further, since he was not promptly informed of the reasons for his detention nor advised of his right to counsel without delay, his section 10(a) and (b) Charter rights were violated.

[63] Finally, I find that the arrest was lawful and therefore there were no breaches of the Applicant’s section 7 or 9 Charter rights.

Detention

Position of the Parties

[64] The Applicant submits that he was detained the moment Sergeant Locke directed him to come with him from the Van to the cruiser.

[65] He submits that the 13 minutes between the time Sergeant Locke found the cocaine and the time he was told he was under arrest violated his s. 10(a) and 10(b) rights.

[66] Sergeant Locke intended to arrest the Applicant after he found the cocaine. Instead, he detained the Applicant at the Van and directed him to come to his cruiser. He did not advise him that he was arresting him. They walked over to the cruiser where a pat down was conducted. A loaded magazine clip was discovered in the inside pocket of the Applicant’s jacket. Sergeant Locke then arrested the Applicant, cautioned him, and gave him his s. 10(b) Charter rights.

[67] The Crown submits the Applicant was not detained at the Van because there is no evidence that he had to stay and cooperate with a criminal investigation. The Crown relies on R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241. His Charter rights were not violated in those 13 minutes.

[68] The Crown submits that despite Sergeant Locke’s admission at the hearing that he believed that the Applicant was detained when he asked him to accompany him from the Van to his cruiser, he was not detained.

The Law of Detention

[69] Police do not possess a general power of detention for investigative purposes. However, they may detain individuals when they have reasonable grounds to suspect they are connected to a crime and detention is reasonably necessary. In R. v. Mann 2004 SCC 52, at para. 34, Iacobucci J. stated:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual being detained and a recent or on-going criminal offence.

[70] Detention is defined as a liberty interest suspended due to a significant physical or psychological restraint.

[71] Not every police-citizen interaction involves a detention for the purposes of Charter rights.

[72] In determining whether a detention has occurred, the Court must determine if there is a significant physical or psychological restraint. See R. v. Mann at para 19 and R. v. Grant at para 26.

[73] At para. 41 of Grant, the Supreme Court stated:

As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter into a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer’s request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions.

[74] In determining whether certain conduct has resulted in a detention, the Court must ask whether a physical or psychological detention occurred. Handcuffing someone is a physical detention. As stated in para. 41 above, psychological detention is when an individual would reasonably conclude he is not free to walk away or must answer questions.

[75] In para. 44 of Grant, the Court addresses the factors that courts can consider to determine if an individual has been deprived of to the right to walk away based on the circumstances of the case:

In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the Court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[76] This is an objective test, and the Court can determine if there is a psychological detention without the evidence of the accused.

Decision

[77] Were the Applicant’s liberty interests “meaningfully constrained” by Sergeant Locke at the Van? Put another way, would a reasonable person in the position of the Applicant perceive that he had no choice but to stay and interact with the police, answer questions and follow Sergeant Locke to his cruiser?

[78] The evidence discloses that Sergeant Locke told Detective Constable Croghan and Constable Boyce that he would arrest the Applicant because he found cocaine in his glove box. This conversation occurred at 2:38 p.m.

[79] Detective Constable Croghan waited at the Applicant’s vehicle and observed Sergeant Locke attend at the Van.

[80] Sergeant Locke waited until the Applicant indicated he would not go to the hospital. He verified the Applicant’s identification from the identification documents, including his driver’s licence found in his wallet which he had retrieved from the glove box.

[81] Sergeant Locke asked the Applicant about his insurance. The Applicant told him that the insurance slip was folded in with the car ownership document that Sergeant Locke was holding in his hand.

[82] Sergeant Locke testified that he had never seen an insurance slip stored in this manner. He was not aware that while searching the glove box he had the insurance slip in his hand all along.

[83] Sergeant Locke stated that he did not arrest the Applicant at the Van because there were many people, including onlookers and first responders in the vicinity, and he did not want to embarrass him.

[84] Sergeant Locke admitted that he detained the Applicant even though he did not tell him he was being arrested. He admitted that if the Applicant had refused to go with him, he would have arrested him by the Van.

[85] On the way to his cruiser, the Applicant requested permission to retrieve his jacket from his vehicle because it was raining and chilly. Sergeant Locke permitted him to do so.

[86] Constable Croghan joined them at the Lexus and accompanied them to Sergeant Locke’s cruiser. Sergeant Locke’s cruiser was parked by the sidewalk and not in the middle of the road.

[87] At his cruiser, Sergeant Locke told the Applicant that he was under arrest for possession of cocaine. He was patted down. A loaded magazine clip, a bottle of Hippy Shot, some lip balm, and an iPhone were found on his person. Sergeant Locke spontaneously asked him, “Where is the gun for this?” The Applicant did not respond.

[88] Sergeant Locke advised the Applicant of the right to counsel at 2:53 p.m., and he said he understood and wanted to speak to Danny Lee, his boss. At 2:55 p.m., Sergeant Locke cautioned him.

[89] Sergeant Locke told the Applicant he could only call a lawyer and not his boss.

[90] At 3:10 p.m. Sergeant Locke returned to his vehicle and advised the Applicant of his findings and arrested once again him on further charges. He left with the Applicant and brought him to the detachment. The Lexus was towed to the station.

[91] The Applicant eventually spoke to Duty Counsel at 4:29 p.m. and finished the call at 4:43 p.m.

[92] In my view, that the Applicant believed he was detained. Sergeant Locke had a settled

intention to arrest the Applicant for possession of cocaine. In my view, the Applicant was

under the impression he had no choice in the matter.

[93] Why else would he ask the officer permission to retrieve his coat from his car on the way to his cruiser? The fact that he asked for permission rather than told Sergeant Locke he was going to get his jacket suggests that he believed he was under the officer’s control.

[94] In addition, Sergeant Locke confirmed the Applicant’s identity with the identification documents in the wallet he found in the glove box. Sergeant Locke asked the Applicant about his insurance slip and the Applicant told him it was in the ownership document that Sergeant Locke was holding.

[95] I accept that obtaining information from the Applicant regarding his identification and insurance document does not necessarily result in psychological detention. It is but one factor for the Court to take into consideration.

[96] Sergeant Locke, a seasoned and experienced officer, admitted that he believed the Applicant was being detained and would not have allowed him to leave if he did not follow him. This is a factor to consider but is not determinative.

[97] Here, the detention lasted for 13 minutes before the Applicant was told of his s. 10 rights. This is not a fleeting period of time.

[98] Given the car’s location in the wrong lane, the liability issues at play, and the highway traffic violations, he must have believed that he was going to be asked questions regarding the accident and his involvement in it. He was certainly in legal jeopardy.

[99] This is further illustrated by Sergeant Locke’s spontaneous question upon discovery of the loaded magazine clip in the Applicant’s inside pocket: “Where is the gun?”

[100] This was a question to an individual who was obviously detained but who had not been advised of his s. 10 rights.

[101] I find that a reasonable person would conclude by the actions of the office that he had no choice to comply.

[102] Therefore, I find that the Applicant was detained when Sergeant Locke told him when he was at the Van to come with him to his cruiser.

Was there a breach of ss. 10(a) and (b) of the Charter?

General Principles

[103] The Supreme Court in R. v. Suberu, 2009 SCC 33 stated that, barring exigent circumstances, s. 10(a) and (b) require that a detained person be advised of the reason for his detention and informed of his right to counsel.

[104] The right to counsel obligates arresting offices to inform detained persons of their right to counsel and facilitate its exercise, if requested, before any information is gathered from the person, absent any exigent circumstances.

[105] Since a detained person is in legal jeopardy, the right to counsel is important to an individual to ensure that they do not incriminate themselves or compromise themselves without the benefit of speaking to counsel.

[106] At para. 41, the Court in Suberu stated:

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.

Decision

[107] Since I have found that the Applicant was detained when Sergeant Locke directed him to come with him to the cruiser, he should have been promptly informed of the reason for his detention and been given his right to be informed of the right to counsel without delay. Neither of these Charter rights were afforded to the Applicant in a timely basis.

[108] I find that the first interaction and questioning of the Applicant “was in the context of a heightened degree of legal jeopardy which demands that particular attention be paid to the information component of s. 10(a) of the Charter”. R. v. Nguyen 2008 ONCA 49.

[109] In Nguyen, the Ontario Court of Appeal at paras. 20 to 21 emphasized the importance of s. 10 rights:

[20] It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.). As to the difference in language between s. 10(a) and 10(b), I return to this court’s holding in Kelly at p. 424:

First, it may be noted that s. 10(a) uses the word “promptly” and s. 10(b) does not. While semantically there may appear to be little difference between “promptly” and “without delay” I think there is a subtle difference between them. The former is a positive term and, I think, does mean “immediately” while the latter does not quite have this connotation. The injunction of the latter is expressed in negative terms – not to delay, or postpone, which does not necessarily convey the notion of immediacy. Further, if the same temporal requirement was intended to be equally applicable to each clause then it is reasonable to think that the same word or words would have been used in each.

[21] Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[110] In addition, Sergeant Locke did not, without delay, advise the Applicant of his right to retain and instruct counsel without delay and to be informed of that right. He waited until he was at the cruiser to advise him of his s. 10(b) right. He asked him a question upon discovery of the loaded magazine in his inside pocket. The Applicant was certainly at “the mercy of state actors” and his right against self-incrimination was breached.

[111] Hence, I find that s. 10(a) and (b) of the Charter were breached.

Arrest

Position of the parties

[112] The Applicant submits that there was no lawful arrest because the grounds for the arrest were obtained via an illegal search.

[113] The Crown submits that, when viewed objectively and subjectively, the arrest of the Applicant was reasonable in light of the discovery of the cocaine.

[114] Sergeant Locke did not turn his mind to the lawfulness of the search of the glove box. He reasonably believed that the Applicant was in possession of cocaine and he could make an arrest.

Legal Principles

[115] Section 495(1)(a) of the Criminal Code of Canada defines a police officer’s powers of arrest, in part, as follows:

A peace officer may arrest without warrant

a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

[116] As stated in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, an arrest is lawful when the arresting officer has reasonable and probable grounds to believe that the individual has committed the offence for which he is being arrested. The officer must have an honest subjective belief which must be based on objectively reasonable grounds. At p. 250, Cory J. wrote:

There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.

[117] Section 7 of the Charter reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[118] Section 9 of the Charter states: “Everyone has the right not to be arbitrarily detained or imprisoned.”

[119] To determine whether proper grounds exist, the Court must review the facts as a whole from the point of view of a reasonable person with similar knowledge, training, and experience as the arresting officer. See R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721.

Decision

[120] Did Sergeant Locke subjectively and objectively have justifiable reasonable and probable grounds to arrest the Applicant? The answer is yes.

[121] Does the fact that police officer obtained his grounds to arrest from evidence obtained by way of an illegal search make that arrest unlawful and therefore a breach of s. 9?

[122] Sergeant Locke did not turn his mind to the lawfulness of the search of the glove box. He reasonably believed that the Applicant was in possession of cocaine and that he could make the arrest.

[123] He had reasonable and probable grounds to arrest him because he had just found a gram of

cocaine in his vehicle. An arrest is not made unlawful retrospectively upon a Court finding that

the search of a vehicle violated the Charter. If it were, that would make every arrest subsequent

to an illegal search a breach of s. 9. In my view, I should not consider the original Charter

breach when I assess whether the officer had the grounds to make the arrest.

[124] Considering the totality of the circumstances, Sergeant Locke’s subjective belief that he had a gram of cocaine had objectively reasonable grounds to arrest.

[125] In determining the objective reasonableness of Sergeant Locke’s subjective belief, the court must consider, the facts as a whole through a reasonable person’s eyes with similar knowledge and training and experience as Sergeant Locke as to whether the arrest was objectively reasonable.

[126] In my view, based on the fact that he had found an illegal substance, the officer had reasonable and probable grounds to make a lawful arrest for possession of cocaine.

3. Are the warrantless searches of the Applicant’s car at the roadside and at the police detachment justified as searches incident to an arrest for possession of cocaine which was unlawfully seized?

Introduction

[127] For the reasons that follow, I find that the searches of the Applicant’s vehicle at the roadside and at the detachment were authorized by law as searches incident to arrest.

Position of the parties

[128] The Applicant claims his rights under s. 8 of the Charter were violated when Sergeant Locke searched the vehicle at the roadside and when the police resumed the search of the vehicle at the police detachment.

[129] The Crown submits that notwithstanding that there was an initial breach committed in searching the glove box, the subsequent search was lawful. The search was not unreasonable and was a search incident to arrest because the police had authority at common law to conduct a warrantless search of a vehicle incident to the arrest of its occupant.

Legal Principles

[130] Section 8 of the Charter provides protection from unreasonable search and seizure.

[131] A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable: Collins, at p. 278. Absent a warrant, a police search or seizure is presumed to be unreasonable: Collins. It is the Crown’s burden to prove that a warrantless search was reasonable.

[132] In Caslake, the Supreme Court stated that a warrantless search of a car incident to the arrest of its driver is lawful if the objective is to search for evidence logically connected to the reason for the arrest. There is no requirement that they are able to do so only when obtaining a warrant is impractical.

[133] In that case, the Court found that the search of the vehicle was incident to arrest. The officers believed that the search of the vehicle would produce evidence relating to identification, the registration plates in the other individual’s name, or the purchase of the car. The search was logically connected to the accused’s arrest for possession of property obtained by crime.

[134] As stated in R. v. Lubansa, 2016 ONCJ 235, a warrantless search of a motor vehicle incident to arrest can be justified even if the police could have obtained a warrant.

[135] In R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510, the Ontario Court of Appeal confirmed that warrantless searches are lawful if the search is incident to arrest. In that case, the accused had been racing and was outside his vehicle. He was arrested for careless driving and outstanding warrants. The police used the accused’s key to search the vehicle and discovered a loaded firearm. The Court of Appeal agreed with the trial judge that the search of the accused’s vehicle was not incident to arrest because the search would not have yielded any evidence in connection with the traffic charges. The Crown argued that the vehicle could have contained missing documentation. In that case, under the s. 24(2) analysis, the Court of Appeal dismissed the conviction appeal and agreed that the evidence should have been included as the breach by the police was not deliberate and the accused had a very limited interest in a vehicle that he did not own and that was apparently abandoned.

Decision

[136] As discussed above, the Lexus was searched at the collision scene after the arrest of the Applicant.

[137] Given that the Court has found that the arrest was lawful, the search incident to arrest was also lawful.

[138] Sergeant Locke went back to the Lexus and performed a cursory search of the interior. He opened the trunk with the key (he does not recall how he obtained the key) and noticed a black leather bag which was opened, a bag of dried marijuana, and a folded machine gun. He decided not to complete the search due to poor weather.

[139] The officers’ subsequent search of the vehicle was undertaken as a search incident to arrest. Since drugs were found in the Lexus, it was reasonable for them to believe that there could be more.

[140] The search on the roadside was terminated due to rain and the heavy traffic, so the police continued it at the detachment. Locke told the Applicant that the cocaine had fallen out of the wallet when he moved the wallet out of the glove box. Locke took the wallet to the Van as he did not want the Applicant to lose it. He admitted had no authority to keep the wallet.

[141] Upon arrival at the detachment, there was a discussion between Detective Sarles and Detective Grogan and other officers. They concluded they had begun a search incident to arrest at the collision scene and that they could continue it at the station. They did not need to obtain a search warrant.

[142] Detective Croghan noticed the lining of the sunroof of the Lexus separated when he pointed his flashlight at it. He knew it could be used for storage and had seen drugs and arms stored in sunroofs before. He found a second firearm in the sunroof area. The police finished searching, processing, and logging the items.

[143] The warrantless search of the Applicant’s vehicle both at the roadside and at the detachment was, according to the Crown, based on the common law doctrine of “search incident to arrest.”

[144] At the secure detachment garage, Sergeant Locke continued the search with Constable Barbara Begbie, who documented the items of property, took photos, and arranged for their logging as evidence.

[145] During her testimony, Constable Begbie referred to an extensive list of documents retrieved from the Applicant’s vehicle and the photos she took of those items.

[146] As stated in Caslake, the legality of the search incident to an arrest is derived from the legality of the arrest itself.

[147] Therefore, the warrantless search was authorized in accordance with the police power of search incident to arrest.

4. Should the evidence be excluded under s. 24(2) of the Charter?

Applicant’s Position

[148] The Applicant submits that this case is a “house of cards” or a “cascade of constitutional violations,” with each connected to the other and culminating with a warrantless search of the Lexus at the police detachment.

[149] The Applicant submits there were too many mistakes to allow this conduct to be characterized as “good faith.” The Applicant submits that the Court must dissociate itself from this conduct to preserve the reputation of the justice system.

[150] Regarding the seriousness of the Charter-infringing state conduct, the Applicant submits that Sergeant Locke deliberately exceeded his authority and was aware that he had no lawful authority to search the applicant’s glove box. This was a familiar pattern.

[151] There are other breaches, including the right to be cautioned and to be informed of the right to counsel under 10(a) and 10 (b) upon detention.

[152] The impact on the Charter-protected interests of the Applicant meant that he was subjected to violations of his right to be secure against unreasonable search and seizure, his right to silence, his right to be immediately informed of the reasons for his detention, and his right to counsel. Even though there is a reduced expectation of privacy in vehicles, this does not give the police carte blanche to perform unlawful searches.

[153] The Applicant concedes that the society’s interest in adjudication on the merits favours admission.

[154] The Applicant relies on the comment of in the dissent decision of R. v. Omar which refers to Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para 63 that “[i]f the first and second inquiries of the Grant analysis favour exclusion, then the third inquiry will seldom, if ever, tip the balance in favour of the admissibility”.

Crown’s Position

[155] The Crown’s position is that the search of the glove box was an “honest mistake” and that this is a minor breach. It submits that there were no other breaches. In any event, a s. 24(2) analysis favours an inclusion of the evidence to ensure the reputation of the justice system.

[156] The Crown submits that Sergeant Locke was processing a collision scene in inclement weather at a dangerous location with heavy traffic. He was endeavouring to be efficient in restoring road safety without interrupting the medical care of the Applicant who had been involved in a serious head on collision. His experience suggested to him that the vehicle documents would be located in the glove box.

[157] There is no evidence that Sergeant Locke searched the glove box as a pretext or ruse in order to further a criminal investigation. He did not touch the cash and he kept detailed notes regarding his interaction with the Applicant.

[158] The Crown submits that Sergeant Locke honestly and understandably believed that the arrest was lawful and not aware that the search of his glove box was a breach. It was inadvertent and unintentional.

[159] Further, any breaches of the Charter were not made in bad faith. Sergeant Locke prioritized the Applicant’s health over the police investigation and respected his right to privacy and comfort when he invited the Applicant to step away from the van to arrest him. When he asked, “Where is the gun for this?”, it was a spontaneous utterance rather than a deliberate attempt to conscript evidence from the Applicant.

[160] An illegal search of a vehicle is considered less serious as it attracts a lower expectation of privacy. It was not a violation of the Applicant’s dignity or bodily integrity. No conscripted or derivative evidence was obtained as a result of the breach.

[161] The Crown submits that the cocaine would have been discovered in any event as he would have had to open his wallet to obtain the documentation.

[162] The third stage of Grant militates towards inclusion of the evidence given the seriousness of the charges, especially given the matter involves two sawed off guns loaded with ammunition and the availability of more ammunition. The evidence here is real, highly reliable, and essential to the determination of the case on its merits. Exclusion of this evidence would impact on the repute of the administration of justice as it would effectively gut the prosecution of these charges.

Legal Principles

[163] Section 24 reads:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.

(2) 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.

[164] This means that the evidence must have been obtained in some way that infringed the Applicant’s rights under the Charter.

[165] As stated by the Supreme Court in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21:

The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

[166] A reading of s. 24(2) confirms that the purpose of this remedy is to ensure that that the administration of justice’s reputation is preserved, to ensure that the public maintains its confidence in the justice system, and that the Charter means something.

[167] A review of the objectives of s. 24(2) is helpful in this case where the police who are doing their job deliberately complete searches without authority.

[168] It is worth repeating the purpose of s. 24(2) as enunciated by the Supreme Court in Grant:

[68] The phrase “bring the administration of justice into disrepute” must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

[70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[169] In Grant, the Court outlined three lines of inquiry when determining whether evidence should be excluded:

1. The seriousness of the Charter-infringing state of conduct: In this analysis, the Court must concern itself as to whether the police acted in a willful way with a complete and deliberate disregard for Charter rights. The Court will dissociate itself the more deliberate the conduct. If there is good faith, however misguided, the need for the Court to dissociate itself is not as great. Unfamiliarity with the law, negligence, or willful blindness are not good faith: See para. 75 of Grant.

2. The impact of the breach on the accused’s Charter-protected interests: As stated in para. 76 of Grant, this inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” At para. 77, Grant says, “To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.”

3. Society’s interest in adjudication of the case on its merits: At para. 79 of Grant, the Supreme Court states that “this inquiry reflects society’s ‘collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”. The Court suggested in Collins that a judge on s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[170] Other considerations include truth-seeking and whether the exclusion of evidence will end the prosecution: See R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212. See para 84 of Grant where the Court said, “Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system.”

[171] Finally, the Grant decision directs judges to weigh the various indications and there is no overarching rule that governs how the balance will be struck: para. 86.

1. Seriousness of the Charter infringing state conduct

Search of the glove box

[172] Firstly, I am satisfied that the evidence obtained here fits the definition of “obtained in a manner” as set out in s. 24(2) of the Charter.

[173] There was no legal justification here to search the glove box.

[174] The firearms and drugs were “obtained in a manner” that violated the Charter. They would not have been located but for the search of the glove box.

[175] Sergeant Locke has been a police officer for 23 years. One would expect that an officer of his experience would have been aware of Charter rights and his legal authority and basis to perform searches and the need to adhere to the law.

[176] The Court will determine whether the initial breach was done in good faith, bad faith, or if there was negligence or wilful blindness.

[177] Constable Veerman admitted to going into the glove box but was not asked if he knew he had the authority to search it. Detective Sarles says he routinely goes to glove boxes does but he was aware of any legal authority.

[178] Sergeant Locke admitted he had no legal authority. He knew he was breaching the Applicant’s s. 8 rights.

[179] Sergeant Locke said the wallet fell open and the cocaine dropped out of it when he went into the glove box.

[180] I have already dealt with the conflicting evidence of whether Sergeant Locke was really asked by Constable Veerman to look for the vehicle documents. There is no viva voce evidence or indication in Sergeant Locke’s notes that Sergeant Locke gave these documents to Constable Veerman. I have found that Sergeant Locke was not on a fishing expedition.

[181] In many cases dealing with the exclusion of evidence under s. 24(2), the courts have looked at the element of “good faith” on the part of the involved officer.

[182] In determining this issue, I have reviewed the nature of the breach, whether the police were aware of it, and the correctness of their actions and reaction.

[183] Was it a deliberate, willful, or flagrant breach in bad faith, or was it inadvertent? Was it arbitrary or high-handed?

[184] In R. v. Caslake, the officer conducted his search in good faith based on a RCMP policy which required the interior of impounded vehicles to be inventoried. The Court held that the breach was not sufficiently serious to justify exclusion of the evidence.

[185] In R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, the officer admitted that he thought he had insufficient grounds to obtain a search warrant. The Court held that the search was not in good faith. The officer chose to avoid the legal requirements of obtaining a warrant when he knew he did not have the grounds to obtain one.

[186] In R. v. Pellerin, 1999 CanLII 13928 (NB CA), 209 N.B.R. (2d) 149 (C.A.), the police obtained a warrant to search the accused’s property but not his residential property. Instead of obtaining another warrant, the police showed a reckless disregard for the accused’s rights that was tantamount to bad faith.

[187] In R. v. Bacon, 2012 BCCA 323, 286 C.C.C. (3d) 132, the British Columbia Court of Appeal upheld the trial judge’s decision to include the evidence as the police were acting under warrants that they reasonably thought were valid, and there was no pattern of willful disregard or systemic police disregard of Charter rights.

[188] In Stillman, the Supreme Court did not find good faith since the police had inquired with the Crown Attorney about their authority and were aware that without the DNA evidence, they would not have enough to charge the accused with murder.

[189] In this case, Detective Sarles said that he had contacted the Crown but no details were provided with respect to what information he had obtained or what was asked or who he spoke to.

[190] In R. v. Harflett, an officer involved in a traffic stop testified that he always searched vehicles he stopped. The Ontario Court of Appeal described the search as a “fishing expedition conducted at a random highway stop”. He was a police instructor and should have been aware of his legal authority. The Court found this behavior serious even though the officer believed he was doing the right thing and to that extent showed good faith. However, the officer’s conduct militated in favour of exclusion of the evidence and an acquittal was entered.

[191] I find these circumstances are similar to Harflett: there was no authorization for the search and the police knew they had no authority to conduct it.

[192] There was no negligence nor wilful blindness. Sergeant Locke knew he had no authority. There was no good faith.

[193] There was no safety issue, and the Applicant was in the vicinity speaking to the Van attendants. He could have been asked for his vehicle documents.

[194] There is a certain level of privacy expected in one’s vehicle, although not as high as in a home or office.

[195] This breach falls on the serious side of the fault spectrum.

Breach of s. 10(a) & (b) rights on detention

[196] There is a fundamental right to be informed of the right to counsel. The Applicant would have been in legal jeopardy if the Applicant had answered Sergeant Locke’s question regarding the location of the gun after the magazine was discovered in his pocket.

[197] The good faith aspect is that the officer wanted to take the Applicant away from the traffic, onlookers, and attendants.

[198] Therefore, this is a serious breach which militates towards exclusion of the evidence.

2. Impact of the breach on the Charter-protected interests of the Applicant

[199] As stated above, this line of inquiry is about sending the right message to ensure that the public is aware that Charter rights count. Like police conduct in the first prong above, the impact of the Charter breaches falls on a continuum from “fleeting and technical to profoundly intrusive”: see para. 76 of Grant.

Glove Box

[200] It could be argued that it is reasonable for the police to retrieve important documents from a glove box in the wake of a collision where an involved driver is unavailable due to serious injuries. It could be argued in those circumstances that the Charter breach is not serious as the police were assisting with the investigation. However, the fact remains that there is no legal authority that permits the police to complete their tasks at collision scenes even where occupants are not available.

[201] Here, the Applicant was available, not seriously injured, and in the vicinity speaking to an attendant. He was not in an ambulance en route to the hospital.

[202] Both Constable Veerman and Sergeant Locke knew he was in the Van. Neither of them asked him for his documents or permission to look for them in his vehicle.

[203] They both knew drivers normally store licence and insurance information in their glove boxes, so they helped themselves. They admitted that they do this on a regular basis.

[204] They did not wish to bother the Applicant who was receiving medical attention.

[205] Detective Sarles admitted to searching glove boxes regularly as well. He indicated that he felt that searching a glove box did not create a legal problem. In cross-examination, he said he spoke to the Crown but no further details were provided on this topic.

[206] Expediency was the objective that day rather than adhering to the Charter. There is a systemic issue with the officers in this case who readily admitted in accessing glove boxes on numerous occasions. This is not a “one off” case.

[207] Sergeant Locke took short cuts to obtain documents he says he needed at the collision scene.

[208] The s. 8 Charter breach was serious and has a serious impact in the analysis. It favours exclusion.

Breach of s. 10 (a) and (b) rights on detention

[209] This is a serious violation: not being told promptly of one’s right to counsel is an important right that the public would expect the police to comply with. As previously indicated, it is serious in the spectrum but was not in bad faith as the officer wished to prevent an embarrassment to the Applicant and wanted to remove him from the traffic.

[210] This line of inquiry is neutral in my view.

3. Society’s interest in adjudication of the case on its merit

[211] For all breaches indicated above, this line of inquiry usually favours inclusion of the evidence as the public does have an interest in the adjudication of the matter on its merits. The exclusion of the evidence in this matter would certainly prevent the prosecution from proceeding on a number of the charges facing the Applicant.

Decision

[212] Finally, the Court must balance all the above factors.

[213] Firstly, if there was only breaches of the Applicant’s s. 10 Charter rights, I would not exclude the evidence. As stated above, Sergeant Locke was acting in good faith when he did not arrest the Applicant at the Van and brought him to his cruiser away from the crowds.

[214] However, the search of the glove box is particularly troublesome.

[215] The police justified their action based on expediency. I have not concluded that Sergeant Locke was on a “fishing expedition” for the reasons cited above.

[216] The Court sympathizes with officers who arrive at chaotic and, at times, tragic traffic collisions where safety is a main concern. Yet, they are also tasked with their collision investigation.

[217] In this case, the Applicant was available to answer queries regarding his vehicle documentation.

[218] However, should those objectives of expediency surpass the rights entrenched in the Charter?

[219] The officers here were in the habit of looking into motorists’ glove boxes without any consideration into their authority to do so.

[220] Defence counsel referred to the Supreme Court of Canada’s short endorsement allowing an appeal in R. v. Omar, where the Supreme Court, in a 4-3 split, adopted the dissenting reasons of Brown J.A. of the Ontario Court of Appeal.

[221] Brown J.A. would have dismissed the appeal from the trial decision. He agreed with the trial judge’s s. 24(2) decision to include the evidence.

[222] Given this is one of the most recent pronouncements from the Supreme Court regarding applications to exclude evidence under s. 24(2), it is worthwhile reviewing the facts of this case.

[223] Mr. Omar was arrested for drug and firearms offences after an early morning encounter with police. He was carrying a concealed revolver. At the time, he was subject to an order prohibiting him from possessing firearms.

[224] Mr. Omar was on the Windsor streets late at night with a recent acquaintance. Two Windsor plain clothes officers on patrol in the neighborhood had been advised to “BOLO” (be on the look out) for a white male who was 5’7”, around 200 lbs, and 25 to 30 years old. Someone matching that description had robbed two Mac’s Milk stores with a knife and was wearing a hooded sweatshirt and a black ski mask.

[225] Mr. Omar was a black male with a slight build and was 5’8”. The evidence indicated that the police could not see that he was black nor was there an allegation of racial profiling.

[226] The two plain clothes officers who were in the vicinity advised a uniformed officer. This uniformed officer pulled up in his marked car and told Mr. Omar and his companion to come over to the car. The officer said, “Hey guys, what’s going on?” The officer then got out and asked them for identification.

[227] One officer went back to the patrol car to run the men’s names in the Canadian Police information Centre (CPIC), while the other officers questioned the accused about where he lived and went to school. One officer told them to remove their hands from their pockets. When Mr. Omar removed both hands from his hoodie, the officer saw the barrel of a gun. He placed him under arrest. A search of his person disclosed four rounds of ammunition. The accused was immediately advised of his right to counsel and was placed under arrest. A search of his person at the police station revealed cocaine.

[228] In Omar, Brown J.A. found that Grant did not bring practical, on-the -street clarity to the issue of psychological detention. He held Grant does not offer general guidance and, at the street level, the “point at which an encounter becomes a detention is not always clear”: Omar, at para. 75.

[229] Brown J.A. found that there is uncertainty when detention occurs because of the inclusion of the psychological element in the concept of detention: para. 76

[230] There is no “bright-line” solution as to when psychological detention begins and Grant provides a “conceptual methodology”: para. 81.

[231] He agreed with the trial judge that even though the police were wrong to detain Mr. Omar, the “detention was understandable” and did not fall into the more serious end of the spectrum: para. 90.

[232] Brown J.A. remarked that Grant’s overemphasis on “context” created a nebulous approach that is difficult for Courts to apply consistently. He refers to the conflicting holdings of R. v. Atkins, 2013 ONCA 586, 310 O.A.C. 397 and R. v. Fountain, 2015 ONCA 354, 324 C.C.C. (3d) 425 as examples of this.

[233] Brown J.A. found that the legal principles set out in Grant were not clear to those on the streets and, therefore, the finding of good faith by the trial judge was not an error.

[234] He agreed that the officers had a subjective belief that they were not detaining Mr. Omar. Their conduct was not abusive, the Charter breach was not deliberate, and the law is not always clear about at what point an encounter with police turns into a psychological detention.

[235] The trial judge found Mr. Omar’s s. 9 rights, to be free from arbitrary detention, had been infringed as there was no clear nexus between him and the two robberies that had occurred the week before. In addition, she found that the seizure of the handgun was unreasonable even though the gun barrel was in plain sight. Further, Mr. Omar’s right to retain and instruct counsel was breached under s. 10(b).

[236] Regarding the first branch of the Grant analysis, the trial judge found that the officers acted in good faith as they had a subjective belief that they were not detaining Mr. Omar. The Charter breach was not deliberate or egregious and would not fall on the more serious end of the spectrum as they were acting in good faith.

[237] In his dissent, Brown J.A. found the officers subjectively believed they had not detained the appellant. The majority found that the trial judge erred by finding that the officers acted in good faith; this conduct fell at the serious end of the fault spectrum. The majority held that since Grant had clearly set out the law of detention, the officers should have known that they were exceeding their powers in their interaction with Mr. Omar.

[238] Brown J.A. reminded us that the Supreme Court in Grant at para. 71 said that “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.”

[239] Unlike in the Omar case, Sergeant Locke knew he was not authorized to search the glove box. He did not honestly believe he was entitled to do so. He just did it. There is a bright line. Other officers in his detachment admitted to doing so. They believed in expediency when investigating an accident and trying to clear the highway for traffic.

[240] In this case, the Applicant was speaking to the attendants in the Van. Sergeant Locke could have gone over to ask him to produce the insurance document. He was not incapacitated, in a ditch, or unavailable. He could have simply requested it. There was no urgency.

[241] Sergeant Locke stated that the Van was 30 yards from his cruiser.

[242] R. v. McGuffie involved an accused convicted of two counts of possession of cocaine for the purpose of trafficking, three counts of breaching a condition of his recognizance, and one count of breaching a probation order. The trial judge found several breaches of his Charter rights but did not exclude the evidence under s. 24(2). The Ontario Court of Appeal found several errors: the trial judge failed to consider the impact of the Charter breaches on the Applicant’s constitutionally protected interests and treated the seriousness of the drug charges as the paramount and overriding consideration.

[243] In McGuffie, the officers detained the accused in a police cruiser for 90 minutes before he was allowed to speak to a lawyer. The officer failed to tell him that he had a right to counsel when he detained him in his cruiser. Further, the accused had to wait an hour after he asked to speak with a lawyer.

[244] Although the trial judge did not make a specific finding, the Ontario Court of Appeal found that the accused’s s. 8 rights were breached during the second search of his person. In addition, the police intentionally and gratuitously inflicted pain on the appellant at the station by standing on his ankles. They also conducted a strip search in a room with an open door and in the presence of other officers.

[245] In McGuffie, at para. 63, the Court stated that “if the first and second inquiries make a strong sense of exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”

[246] Brown J.A. then compares McGuffie to the case of Mr. Omar and comments that the circumstances in McGuffie were quite different. In McGuffie, the breaches were very serious and had a profound impact on the rights of the accused. The search was highly intrusive and showed a disregard for the appellant’s rights. In Omar, the appellant’s handgun was revealed when he removed his hands from his pockets; there was no physical contact and the conduct was not abusive.

[247] Brown J.A. commented that the Court’s comments in McGuffie should be understood

within their factual context. In that case, the Charter breaches were extremely serious. It would

therefore be inappropriate to apply that remark in any case where the first two branches militate

toward exclusion, irrespective of degree.

[248] He reminds us of the Supreme Court’s comments in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 54; the Court noted that s. 24(2) analysis involves a balancing of “mutually incommensurable” factors.

[249] Brown J.A. agrees with the majority that there is no firearms exception requiring that guns obtained in breach of Charter rights be admitted into evidence. However, he strongly suggests that treating seized firearms “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”: para. 123.

[250] Here I am required to determine whether the evidence obtained in a manner that infringed the Applicant’s Charter right should be admitted or excluded “having regard to all the circumstances.”

[251] In this case, the Court heard evidence from a firearms expert regarding how a firearm can be modified to make it easier to conceal. The Court heard how the hand grip can be changed so that the firearm can be used with one hand.

[252] The appellant was driving in a motor vehicle with a prohibited firearm in his sunroof. There was some discussion of how accessible it would be to the driver as it was found in the back section of the sunroof by Constable Croghan.

[253] Nevertheless, I find that anyone in the vehicle, regardless of where they were sitting, could have access to this firearm. There was a loaded magazine in the Applicant’s jacket and another firearm in his trunk.

[254] At para. 127, Brown J.A. in Omar cautions us from viewing these circumstances from that of:

“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” (citations omitted).

[255] Justice Brown’s remarks regarding the remoteness to our daily judicial lives can be now tempered by the fact that gun violence is not localized to specific neighbourhoods and has become a common feature in our communities. The guns and gang units of police forces are kept busy with shootings where individuals are wounded or killed. Some are innocent bystanders. Guns have become a form of communication among those involved in gangs. Communication is by gunfire.

[256] I am reminded to focus on the “long term repute of the justice system” Grant at para 84. The Supreme Court put it eloquently when it stated that “The short-term public clamor 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.”

[257] As stated above, having regard to the three lines of inquiry and the balancing, I do not find that the violations of the Applicant’s s. 10(a) and (b) rights were serious enough to warrant exclusion of the evidence. I find that Sergeant Locke acted in good faith in trying to move the Applicant to a quieter area to arrest him and avoid embarrassing him in front of onlookers.

[258] However, I do find the breach of s. 8 by the search of the glove box to be serious. It is more serious than the Omar case because the officers in that case truly believed that they had the right to detain. Given that the Supreme Court agreed with Justice Brown’s decision, there is no “bright line” in Grant when it comes to applying what psychological detention will mean on the street.

[259] As previously stated, this case is similar to Hartflett.

[260] The other serious consideration is that the exclusion of the firearms will mean the collapse of the Crown’s case with respect to unlawful possession of the prohibited firearms.

[261] As stated by Brown J.A., on the one hand, we have to ensure the police perform their duties lawfully and respect Charter and, on the other, Canadians must believe that their rights are protected yet at the same time feel safe.

[262] In R. v. Chan, 2013 ABCA 385, 561 A.R. 347, the Court stated, at para. 49, “We 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.”

[263] Brown J.A. concluded that the third Grant factor is not to be neutered by a finding under the first and second prongs calling for exclusion. Further, he concluded that illegal handguns are not equivalent to any other kind of evidence for the purposes of s. 24(2) analysis.

[264] This sentiment was expressed by the Supreme Court in Grant, at para. 84:

In our view, while the seriousness of the alleged offence may be valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus.

[265] The seriousness of the offence must be considered but must not take on a disproportionate significance: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34. The Court must balance the public concern over this type of crime against the serious infringements.

[266] I have also reviewed the Harrison analysis in the balancing section of the Grant analysis.

[267] In that case, the accused was driving his vehicle from Vancouver to Toronto. A police officer noticed that he did not have a licence plate in the front of his vehicle.

[268] The accused and his friend were driving a rented sports utility vehicle from Vancouver to Toronto. In Ontario, a police officer on highway patrol noticed that the vehicle had no front licence plate. Only after activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate. The officer was informed by radio dispatch that the vehicle had been rented at the Vancouver airport. Even though he had no grounds to believe that any offence was being committed, the officer testified at trial that abandoning the detention might have affected the integrity of the police in the eyes of observers. The officer’s suspicions seem to have been aroused from the beginning of this encounter. He arrested the accused after discovering that his driver’s licence had been suspended. The officer then searched the vehicle. He found two cardboard boxes containing 35 kilograms of cocaine. On a voir dire, the trial judge held that the initial detention of the accused was premised on a mere hunch or suspicion rather than reasonable grounds and was therefore arbitrary. He further held that the warrantless search of the vehicle was unreasonable within the meaning of s. 8 of the Charter. In the analysis pursuant to s. 24(2) of the Charter, the trial judge found that the violations were serious and that the officer’s explanations for stopping the vehicle were incredible. However, in view of the seriousness of the offence charged and the importance of the evidence to the Crown’s case, he admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission. The accused was convicted of trafficking. The Court of Appeal, in a majority decision, upheld the trial judge’s decision to admit the evidence and affirmed the accused’s conviction. The Supreme Court overturned the conviction and held that the evidence should have been excluded.

[269] The Supreme Court found that the police conduct in stopping and searching the appellant’s vehicle without any reasonable grounds was reprehensible and was aggravated by the officer’s misleading testimony in Court. The Charter infringements had a significant, although not egregious, impact on the Charter-protected interests of the appellant. These factors favoured exclusion, the former more strongly than the latter. On the other hand, the drugs seized constituted highly reliable evidence tendered on a very serious charge, albeit not one of the most serious known to our criminal law. That factor weighed in favour of admission.

[270] The Applicant is not charged with cocaine trafficking, but the Crown submits cell phone extracts indicate the Applicant was involved in trafficking.

[271] In addition, the Applicant is not charged with trafficking prohibited weapons, but the Crown seemed to suggest that some of the evidence pointed to that illegal activity.

[272] The Supreme Court’s decisions have attempted to strike a balance between the interests of law enforcement and civil liberties. This balance is important to ensure that our Charter rights have teeth. Police have wide powers but there are limits to them.

[273] The Applicant’s firearms offences are extremely serious. Given increasing gun violence in our communities, the public is interested in seeing that those involved are dealt with in our justice system.

[274] However, the public would expect these cases be dealt with according to the rules and not by improper tactics that ignore individuals’ rights under the Charter. If the police are permitted to take short cuts, then the justice system will reap what it sows, and these short cuts could become more flagrant. The end of expediency in traffic collisions does not justify the means of deliberately breaching the Charter right of protection from unreasonable searches.

[275] Therefore, having considered all of the circumstances and the seriousness of the s. 8 breach, I find that the admission of the evidence would bring the administration of justice into disrepute. Society does pay a price in these circumstances but this is outweighed by the importance of ensuring that Charter rights are respected.

[276] The Application is granted and the evidence as set out in paragraph 14 above is excluded.

Justice A. Doyle

Released: October 7, 2019

COURT FILE NO.: 18-00020-00

DATE: 2019/10/07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

Mohammed Mian

Applicant

REASONS ON CHARTER APPLCIATION

Justice A. Doyle

Released: October 7, 2019