COURT FILE NO.: CR 19-012
DATE: 2020-02-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
TREVOR KENNEDY
Applicant
T. Mimnagh, for the Public Prosecution Service of Canada
A. Goldkind, for the Applicant
HEARD: September 23, 24, October 7, and December 19, 2019
REASONS FOR JUDGMENT WITH RESPECT TO ss. 8, 9, & 24(2) of the CHARTER OF RIGHTS AND FREEDOMS
A. J. GOODMAN J.:
[1] The applicant is charged with possession of fentanyl, for the purpose of trafficking, contrary to the provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The offence is alleged to have occurred on October 26, 2017 in the City of Hamilton.
[2] A significant quantity of fentanyl patches or fentanyl mixed with heroin (also known as ‘popcorn’) were in the applicant’s possession on October 26, 2017 and were seized by the police upon his arrest.
[3] The applicant seeks to exclude the drugs seized by the Hamilton Police Service (“HPS”). The relief sought is premised on several grounds, with emphasis on the applicant’s assertion of an unlawful arrest or detention and a subsequent warrantless search pursuant to ss. 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (“Charter”).
[4] For the purpose of this Charter voir dire, the Crown called four witnesses and filed certain exhibits. The applicant called three witnesses.
Background:
[5] As a result of confidential and reliable source information regarding Jason Taylor (“Taylor”), an investigation by the HPS ensued. There is no dispute that the police had reliable and verifiable information about Taylor’s activities with illicit drugs and reasonable and probable grounds for his arrest. The applicant, however, was unknown to the police and was not the target of the investigation.
[6] On October 26, 2017, police attended at 45 Fairholt, a residence known to be frequented by Taylor and set up surveillance. At some point, Taylor was observed leaving the house in a silver Honda driven by his female companion. This was consistent with some of the reliable information known to police about Taylor. Police officers, Matt Reed (“Reed”) and Ryan Smutnicki (“Smutnicki”) followed Taylor to the Pioneer gas station located at 711 Queenston Road. Taylor was dropped off at that location and the Honda left the scene.
[7] Taylor remained under surveillance by Reed, who was in the Pioneer lot, and Smutnicki, who was in the neighbouring location. Taylor lingered about the gas station, entering into the kiosk and later loitering around the lot. Soon thereafter, police observed a high-end Mercedes SUV drive into the Pioneer gas station and park at the rear end of the parking lot. The SUV did not use the gas pumps. There were several persons situated in the SUV.
[8] Reed advised Smutnicki that Taylor was about to meet up with a group of people. From various vantage points, police officers observed the applicant exit the SUV and walk in the parking lot. Police decided to arrest Taylor for drug possession. Upon Reed approaching and confronting Taylor, with Kennedy nearby, the applicant left the area. The manner of the applicant’s departure from the scene, if it occurred, is in dispute.
[9] As a result of the applicant leaving the scene and the police officers’ belief that he was implicated in a drug transaction with Taylor, Kennedy was quickly apprehended and taken to the ground and placed under arrest. He was searched incident to arrest by Smutnicki and Officer Zwolak. Kennedy refused to comply with officers’ demands to remove his hands from his pockets. Smutnicki located 116 fentanyl patches in Kennedy’s pocket.
[10] Both Taylor and Kennedy were taken to the police station. All of the other occupants of the Mercedes SUV were detained and eventually permitted to leave from the Pioneer gas station.
Positions of the Parties:
[11] Mr. Goldkind, on behalf of the applicant, submits that his client was not detained for investigative purposes, rather, he was unlawfully arrested at the scene prior to the search of his person. The police officer did not have reasonable and probable grounds to arrest the applicant based on the information known to him at the time. There were neither observations of a drug transaction nor any information related to the applicant in the original investigation.
[12] As a result of the unlawful arrest, the applicant’s s. 9 Charter rights were breached and the drugs seized directly from the applicant were illegally obtained.
[13] The applicant adds that the circumstances of this case, justify the exclusion of the drugs based on the Grant factors. Specifically, he points to the inconsistent and unreliable testimony of the police officers, in particular, Smutnicki, and the totality of the evidence as it pertains to the police conduct.
[14] The Crown disagrees with the applicant’s assertions. The Crown does not argue that the applicant was arrestable, rather that there were grounds for an investigative detention. The Crown submits that there were legitimate grounds to detain and search the applicant, based on his conduct at the scene, the entirety of the circumstances and the reliable informant information related to Taylor.
[15] The Crown says that while the circumstances of Taylor’s arrest are not before this Court, they provide context for Kennedy’s detention and arrest. The police had very compelling information that Taylor was a drug dealer. He was being driven around for these purposes in a silver Honda. He was arrested at the gas station while (at minimum) meeting with parties from the vehicle in which Kennedy was travelling.
[16] The Crown says that the applicant’s detention was justified in the circumstances. Police decided to take Taylor down at what looked to them to be a drug deal. The police reasonably suspected the applicant’s involvement in a specific crime - being a party to a drug transaction. Everyone at the scene was subject to brief investigative detention.
[17] The manner in which the events unfolded was swift and dynamic. In addition, Kennedy’s flight from police with his hands in his pockets was an indication to police, based on their experience and background knowledge, that the object he was concealing presented a danger to the public peace of safety, or, that the destruction of evidence was imminent. The police lawfully detained him and located the fentanyl patches.
[18] The Crown submits that the defence submissions with respect to Smutnicki's evidence and credibility are without merit. The applicant’s testimony and that of the defence witnesses should be rejected. Their testimony was collectively and individually inconsistent, and defied reason.
[19] The Crown submits that even if the arrest, detention, or related search and seizure incident to arrest are found to be a violation of the Charter, the evidence ought to be admitted under s. 24(2) of the Charter.
Legal principles:
[20] Section 9 of the Charter states:
Everyone has the right not to be arbitrarily detained or imprisoned.
[21] In addressing police powers of detention, the leading case of the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, provides guidance.
[22] Iacobucci J., speaking for the majority, held that police officers do not possess a general power of detention for investigative purposes. Police officers may detain individuals when there are reasonable grounds to suspect that they are connected to a crime and that detention is reasonably necessary. At para. 34, Iacobucci J. states:
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 to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must be further assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
[23] “Reasonable grounds to detain” was defined by Doherty J.A. in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, at p. 202, as requiring “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.”
[24] Police do not require reasonable and probable grounds to believe an offence has been committed in order to detain a suspect. Rather, they only need reasonable grounds rising to the level of “reasonable suspicion”. This standard is more than a hunch or gut reaction, but something less than what is necessary for an arrest. Courts have been reluctant to propose a definitive checklist for reasonable detentions, preferring instead to conduct case-specific analyses that examine the totality of the circumstances.
[25] In R v. Kang Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, the Supreme Court drew a careful distinction between what constitutes “suspicion” and what constitutes reasonable grounds to arrest. At para. 75, Binnie J., for the majority, wrote:
The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123:
[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.
What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search.
Section 9: Legal Principles Applied to this Case:
[26] In conducting the detention of the applicant, the Crown submits that all police officers were acting in the course of their duties to investigate crime. There is no challenge to the fact that they had legitimate and reliable information regarding Taylor and his modus operandi regarding drug transactions.
[27] The fundamental issues here are whether there were reasonable and probable grounds to arrest or reasonable suspicion to detain the applicant. The parties agree that Smutnicki’s credibility and reliability is a fundamental part of the analysis.
[28] The officers allege that the applicant began to walk towards Taylor and nearly engaged in a handshake with him. At that point, Reed went over and placed Taylor under arrest. The applicant attempted to flee and was taken down within a second or two by Smutnicki at Reed’s request.
[29] The Crown says that all four police officers testified in a credible and reliable manner. Their evidence was internally and externally consistent and corroborative with respect to the events. Smutnicki had concerns for officer and public safety due to the potential for weapons and dangerous substances like fentanyl and heroin. Zwolak’s evidence supports the testimony of both Reed and Smutnicki.
[30] Reed testified that he believed Taylor was looking for someone. Taylor was on his phone and had gone into the gas kiosk. Reed testified that a SUV pulled into the parking lot, and he believed it could be the person Taylor was meeting. After a few minutes, two individuals exited the SUV, Dellen MacDonald (“MacDonald”) and Kennedy. Both were unknown to Reed. Taylor left the kiosk and made his way towards the SUV. There was nothing in anyone’s hands. Reed approaches the group. Moments later, Kennedy started to run away and Reed yelled out to Smutnicki to stop Kennedy.
[31] In cross-examination, Reed testified that he had grounds to arrest Taylor as soon as Taylor arrived at the gas bar. He admitted that Taylor acted suspiciously. He agreed that he did not see a handshake between Taylor and Kennedy, but it was an “almost handshake”. He could not say either way if Taylor was meeting up with McDonald. He admitted that there was no information about any guns. He testified that Kennedy’s flight was more than a second or two, and the applicant did not have both hands in the pockets; rather he ran with his right hand in his pocket. McDonald bolted to get back to the SUV. Reed agreed that at the time of Taylor’s arrest, he had no grounds to arrest Kennedy, only to detain him.
[32] Zwolak testified that when he arrived on the scene, Kennedy was fleeing from Smutnicki. He observed Smutnicki ground Kennedy and assisted Smutnicki in his search of Kennedy. He was brought to his feet when a bulge was observed by both officers and the fentanyl patches were located. Zwolak testified that the “flight” was a “half-jog” of five to ten feet. Kennedy’s hands were not in his pockets. He admitted that he did not see the entire event.
[33] In Smutnicki’s testimony, there was some confusing testimony about which of Kennedy’s hands were in his pocket while fleeing. Overall, Smutnicki held firm that both hands were in the pockets when Kennedy was running and when taken to the ground. In other words, no hand was out of his pocket to protect him from the fall. Smutnicki testified that he believed that Kennedy and Taylor did meet, despite not having any direct observations. In cross-examination, Smutnicki did not resile from that proposition despite being presented with other scenarios.
[34] Smutnicki testified that in his opinion, if a person is in close proximity to a drug trafficker, then he is arrestable on reasonable and probable grounds. He agreed that Kennedy did not run away when Reed first approached him. He agreed that apart from the fentanyl, there was no other issue of public safety and no information about guns. He testified that his understanding is when dealing with arrest versus investigative detention, he has the same search powers.
[35] It is trite law that police officers may briefly 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. This includes the ability to briefly search a detainee. Reed directed Smutnicki to detain Kennedy when he fled. Reed testified that:
A. We have the term called re-upping. Re-upping means getting more supply. So if you're at a certain level, then you have to get re-upped or supplied by somebody who's a little bit higher in the food chain.
Q. So you have to get your drugs from somewhere. You're not getting them from legitimate sources, you're, you're getting them from somebody a little bit higher in the food chain, so it was my belief that this was potentially a re-up situation.
Q. Okay, and what about the situation led you to believe that it was a re up?
A. Just the, the high-end car. You know, he was there to meet somebody, and then after the fact, once we searched him, he had a small possession of drugs and he had twenty-three hundred and seventy-five dollars in cash.
Q. Okay.
A. It was clear to me that he was there to buy drugs.
Q. Was there anything about the location of this meeting that peaked your interest?
A. Yeah, the location was, you know - they're parking in a, in a parking lot with - and, like they'e not, clearly not there to use the gas station. They're not getting gas. They're not using the, the, the pumps. Not using the phone. Again, nobody uses pay phones, but that's something else that was there to their avail, and they weren't using it, they were just parked there. And once Jason Taylor came around the corner, it was clear that they were there to meet each other.
[36] The Crown suggests that Kennedy's flight added to the constellation of factors relevant to his lawful detention. When Kennedy gave chase he provided further grounds for detention. Prior to the flight, he could not have been so detained, and as such, the detention was not crystalized until Smutnicki caught up with him. Yet, at the same time, Smutnicki and for that matter, Reed believed that everyone in the parking lot was either detainable or arrestable, depending on whose version is accepted.
[37] R. v. Nesbeth, 2008, ONCA 579, 238 C.C.C. (3d) 567, was a successful Crown appeal where an accused was met by police and then fled to avoid questioning and discarded his knapsack. The court overturned the trial judge’s conclusions regarding detention. Rosenberg J.A. discussed at para. 19:
In R. v. Storrey, (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (SCC), at 324, the court held that for an arrest to be valid, the officer must have a subjective belief in reasonable and probable grounds to arrest and those grounds must be objectively established. It may be that the same form of analysis should apply to a Mann investigative detention: See R. v. Simpson, (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.).
[38] While the facts tend to mirror the case at bar, the distinguishing facts are found at para. 17 of Nesbeth. Here, the applicant was linked to the police officers’ evidence regarding Taylor. Reed did not arrest the applicant. His grounds to detain the applicant are also subject to some question. Smutnicki testified that the applicant’s arrest was for officer and public safety. Moreover, in cross-examination, all of the officers conceded that they intended or could have arrested Taylor at the residence if they were present at the relevant time.
[39] The applicant says that at most, the police had a mere suspicion that the applicant was involved in criminal activity. Smutnicki’ evidence is illustrative of this point. In examination-in-chief, Smutnicki provided the following evidence:
Q. Okay. And when you arrive on the scene, what is your intention – you told us – sorry, you told us you’re intending to assist mister – Officer Reid affecting the arrest of Mr. Taylor. Could you describe to us what that means?
A. At this point in time, there were several people on the scene – at the scene, sorry, to assist with the arrest. Things change, I guess. The scenario immediately changed as our target was obviously obeying Mr. Reid’s demand and, and did not flee at that point. Now, Mr. Kennedy is fleeing on foot, so my attention quickly changes over to Mr. Kennedy, who at that point in time I believe is in possibly in possession of drugs, as he had met up with our, our target.
Q. Okay. Could you articulate to us why you believe – why you believed Mr. Kennedy was in possession of drugs?
A. I believe that an, an exchange between Mr. Kennedy and Mr. Taylor occurred as the reason for Mr. Kennedy fleeing, as he had no reason to flee. I’m not an intimidating person, giving Mr. Kennedy any reason to flee, other than him to be in possession of something he should not be.
Q. Okay. Was there anything else that led you to give chase?
A. Mr. Kennedy’s hands were in his pocket. I believe that he was in possession of something inside of his pocket.
[40] I note that there are some minor external inconsistencies between officers with regard to what transpired before and at the scene. The recollection and credibility of the officers’ viva voce testimony must be considered.
[41] Smutnicki’s evidence is clear that he did not conduct an investigative detention in relation to Kennedy. Smutnicki asserted that he had the reasonable and probable grounds to arrest Kennedy and everyone else in the parking lot.
[42] Frankly, I am not persuaded by Smutnicki’s evidence. It seems to me that much of his evidence is glossed over by equivocal responses and filling in the gaps, where necessary. Perhaps it is some inexperience, but his oft-repeated statements and explanation of his police powers; that all of the parties were arrestable at the scene based on information he had at hand, is troubling.
[43] I say this because there were no observations of any hand-to-hand transaction, or other evidence of a drug transaction, other than a potential hunch, suggestion or suspicion of a meeting of individuals, all of whom leaving the SUV were unknown to the police or the investigation prior to the applicant’s arrest.
[44] I also question Smutnicki’s evidence about the applicant running away with both hands in his pockets. A person trying to flee - running away - would have both hands in their pockets? Or hands in their pockets when taken to the ground? This tends to defy logic and common sense and is also externally inconsistent with the evidence of the other police officers.
[45] Smutnicki is equally clear that he did not actually see any interaction between Kennedy and the target of the investigation. He observed no direct contact; no hand-to-hand; no communication or chit chat. This is the quintessential example of an officer working from a “hunch”.
[46] Since Smutnicki made no actual observations of anything indicative of criminal activity, the attempt to flee became the cornerstone for arrest. Yet, even with purported flight, the most that could be said was that Smutnicki had a suspicion of criminal activity. The strength of Smutnicki’s belief does not make it more likely that it is accurate. It is trite to state that confidence in one’s own belief does not make that belief more true or reliable. On more than several occasions, Smutnicki was unwilling to concede even the possibility that he was wrong. Smutnicki repeatedly overstated his evidence. He testified about observations that he never actually made. He expressed absolute confidence in his beliefs despite the existence of evidence so clearly to the contrary.
[47] I prefer the evidence of the defence witnesses. The applicant, along with MacDonald and Tara Stremble (“Stremble”) testified on the voir dire.
[48] The applicant testified that he did not know Taylor, he was not interacting with Taylor and did not try to run away when Taylor was arrested. MacDonald and Stremble testified to the same effect. MacDonald testified that:
Q. Did you see Trevor make a run for it, flee, take off, make a beeline away from the heat – I mean the cops or wherever the men were, run on step away, two steps away, one to two seconds, any of that language, did you see Trevor do anything even remotely like that?
A. No.
[49] The applicant testified that the driver of the Mercedes SUV was his friend, Terry. He was certain that Terry is not Asian. This is contrary to the evidence provided by Smutnicki. In this regard, I prefer the applicant’s evidence.
[50] The applicant testified that he did not run and defence witnesses have corroborated this. I am not persuaded that the applicant attempted to flee either for less than 10 seconds as stated by Reed, or the one or two seconds as described by Smutnicki. I also reject Smutnicki’s testimony that the applicant fled the scene, in the manner described, running with both hands in his pockets at the same time. This evidence defies common sense. However, if I am in error about my assessment of the “flight” from the scene, I return to the threshold issue.
[51] Again, it is important to reiterate the direction from the Supreme Court in Mann. At para. 45, Iacobucci J stated:
[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.
[52] Pursuant to an investigative detention or arrest, a police officer has no right to conduct a search unless the officer has reasonable grounds to believe his or her safety or the safety of others is at risk. Therefore, while a detention and subsequent search and seizure premised on a drug transaction or officer safety concerns might have enabled the officers’ conduct pursuant to the jurisprudence; that is not the evidence before me from the arresting officer. At the time of the applicant’s search, his and the involvement of the SUV passengers in the crime had not as yet crystalized. It cannot be said that the officer’s subjective belief was reasonable.
[53] Mere presence at the scene of a crime is an inadequate basis upon which to arrest an individual. In R. v. Mohammed, 2015 ONSC 905, Leroy J. was tasked with assessing whether the accused, driving a motor vehicle with two passengers, had been the subject of an unlawful arrest. In that case, the passengers were in possession of marihuana. The officer testified that he “believed he had grounds to arrest the three occupants of the vehicle under the CDSA for possession for the purpose of trafficking when he discovered the marihuana” on the passenger. After reviewing the authorities, Leroy J. stated at paras 38-41, 45:
Reasonable and probable grounds are not to be confused with a prima facie case for conviction. The judicial review is not intended to deconstruct the officer’s opinion in minute detail. The review amounts to more than a checklist to reasonable probable cause to arrest. Sometimes the grounds are obvious. Analytically, deficiencies in one or more pieces of the puzzle may be buttressed by strengths in other areas. The analysis is protean.
In this case, there were particularized and objective basis for suspecting the person stopped for criminal activity of knowledge, consent and control. The factors relied on by Constable Bellefeuille informed that level of interest.
I do not accept that an ordinary prudent and cautious person in the officer’s position would conclude that the Applicant was probably guilty of possession for the purpose of trafficking. There are too many innocent explanations.
The prospect for conviction based on the known evidence was non-existent. The constable drew unsupportable inferences to get to reasonable and probable grounds to arrest the Applicant. He concluded knowledge, consent and control without any logically connecting evidence.
The police decisions in the instant case are comparable to those made in by the arresting officers in R. v. Daoud, [2002] O.J. No. 4754. The ratio there was that mere presence at the scene of a crime does not affix liability. It is not good practice to arrest everyone at the scene for that reason alone.
[54] Not only did officer Smutnicki not have reasonable grounds to arrest because he relied on unreasonable inferences, his evidence also demonstrated that he was uncertain as to what gave him the reason to arrest. It will be recalled that he provided the following evidence:
Q. Okay. And why would that make you chase him?
A. Public safety, safety – officer safety and to ensure that Mr. Kennedy did not have any weapons or any controlled substance on his person.
Q. Could you describe for us in detail what exact concern for public safety would have been in your mind at that time?
A. Queenston Road is a very busy, busy road with pedestrian traffic. Also, I was concerned for the safety of Mr. Kennedy as he was running in the direction of very heavy traffic. That was my concern at that time.
Q. Okay. And could you describe for us, in detail, what the concern for officer safety would have been, in your mind?
A. Any weapons, any fentanyl or heroine, which, in fact, was the specific drug that was being trafficked at that time, which is a definite public safety issue and officer safety issue. As I’m sure you know, if you are exposed to fentanyl then you could be at risk.
[55] Overall, Smutnicki’s evidence is concerning with respect to the fundamental issues. I cannot understand how the officer concluded that he had powers of arrest in the situation that arose here. In cross-examination, Smutnicki testified that he had the power to arrest or detain everyone in the parking lot. I agree with the applicant; this is not the law. Crown counsel has not persuaded me that it was a misspeaking of his powers of arrest. Smutnicki repeated this assertion several times during the course of his testimony.
[56] The evidence offered by Reed was not much better. He testified that once he placed Taylor under arrest, “I definitely had enough to detain everybody there for drug investigation based on my reasonable grounds for Jason Taylor…” Yet, nothing had changed from the time Taylor departed the residence to the time he was loitering in the parking lot. The information in the possession of the police did not enhance any change in circumstances leading to the forming of grounds to arrest Taylor, without anything more.
[57] As I accept, on a balance of probabilities, that the applicant had no contact with Taylor. Smutnicki did not have grounds for an arrest.
[58] In R. v. Saciragic, 2017 ONCA 91, at para. 17, the court listed several factors relied upon by the trial judge to reach the conclusion that the officer had reasonable and probable grounds for the arrest. Unlike Saciragic, in this case, there was no driving in a suspicious manner consistent with counter-surveillance, no driving to a deserted parking area, no trunk-to-trunk transaction, no exchange of a box sufficient to hold a kilogram of cocaine and no shaking of hands.
[59] Again, taking the evidence of the police at its highest, there was no basis to believe that the applicant had a weapon or fentanyl on him. Police may have had a suspicion of criminal activity but this was an inadequate basis upon which to formulate an arrest. The arrest was based solely on suspicion, conjecture and ensuing unreasonable inference.
[60] On these facts, at best, it could only afford the officer with the right to undertake an investigative detention. Even if Smutnicki had a reasonable suspicion, that is not his evidence, nor the grounds he exercised in relation to Kennedy. Clearly the facts in this case do not afford grounds to arrest Kennedy and everyone else at the scene.
[61] As mentioned, in Mann, an investigative detention by police must be premised on reasonable grounds. The detention must be “reasonably necessary on an objective view of the totality of the circumstances” and the investigation has to reveal a “clear nexus between the individual to be detained and a recent or on-going criminal offence.” In this case, no nexus exists. While it may or may not be the case that the applicant was the equivalent of a passer-by in the circumstances of this case, the decision to arrest Kennedy was based on intuition, a hunch and a misguided understanding of the law related to a police officer’s powers of arrest.
[62] I also agree with the applicant that the police would be hard pressed to establish that investigative detention was even justified in this case. Even referring to the guidance in Nesbeth, in this case an investigative detention was predicated on a state of affairs that did not exist.
[63] In my opinion, the applicant has satisfied his onus to demonstrate that there was a breach of his s. 9 Charter rights.
Section 8: Legal Principles:
[64] Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure.
[65] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In the event of a warrantless search, the onus is on the Crown to rebut the presumption of unreasonableness.
[66] There exist certain overarching principles with respect to an analysis of s. 8 of the Charter:
Individual privacy is the “essential value protected by s. 8 of the Charter”: R. v. Kokesch (1990), 1990 CanLII 55 (SCC), 61 C.C.C. (3d) 207 (S.C.C.) at 228. “Any expectations of privacy must be reasonable” to be afforded constitutional protection: R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 (S.C.C.) at 459. A reasonable expectation of privacy is a personal right the existence of which is determined on the totality of the circumstances in each case having regard to the guidelines in R. v. Edwards (1996), 1996 CanLII 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.) at 148-152. Further, the purpose behind the right “is to protect the privacy of individuals from unjustified state intrusion”: R. v. Hape, 2007 SCC 26, [2007] S.C.J. No. 26 at para. 166 per Bastarache J. Therefore, “[t]he purpose of s. 8 of the Charter is to protect against unreasonable searches”: R. v. Alkins (2007), 2007 ONCA 264, 218 C.C.C. (3d) 97 (Ont. C.A.) at para. 44.
[P]olice conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of” s. 8 of the Charter: Law, at 457. The essence of a “seizure”, in constitutional terms, involves a non-consensual taking of something by agents of the state: R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.) at 113; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 (S.C.C.) at 431.
Warrantless searches are presumptively unreasonable unless the Crown demonstrates on a balance of probabilities their reasonableness in the context of s. 8 principles: R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.) at 324; Buhay at 112, 114; R. v. Evans (1996), 1996 CanLII 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.) at 34.
Common law authorization may emanate from conditions of urgency: “[w]arrantless searches are presumptively unreasonable, absent exigent circumstances” (R. v. Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129 (S.C.C.) at 142) making it impracticable to obtain a warrant: R. v. Plant (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) at 169; Grant, at 189.
The Crown cannot rely on “ex post facto justifications” of searches by their results: Kokesch, at 227; R. v. Genest (1989), 1989 CanLII 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.) at 408. A search, unlawful from the beginning, cannot be converted into a reasonable search because it is carried out in a reasonable manner: R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.) at 247.
The test for whether a police officer has acted within his or her common law powers was first expressed by the English Court of Criminal Appeals in Waterfield, supra, at pp. 660-61. From the decision emerged a two-pronged analysis where the officer’s conduct is prima facie unlawful interference with an individual’s liberty or property. In those situations, courts must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law. If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
To continue in the Waterfield analysis, the conduct giving rise to the interference must involve a justified use of a police power associated with a general duty to search in relation to the protection of life and property. Put differently, the search must be reasonably necessary. The relevant considerations here include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference: Dedman, supra, at pp. 35-36.
Section 8: Legal Principles Applied to this case:
[67] Given the arbitrary arrest, was the search incident to arrest and discovery of the fentanyl a violation of s. 8?
[68] It is trite law that warrantless searches and seizures are prima facie unreasonable and violate s. 8 of the Charter. The onus is on the Crown to rebut the presumption of unreasonableness.
[69] The Crown argues that the search conducted shortly after the applicant’s arrest was justified by officer safety and public concerns.
[70] There are two principal authorities under which officers may conduct a safety search. The most common way is the search incident to detention as set out in Mann. It is settled law that “where a police officer has reasonable grounds to believe that his or her own safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual”: Mann, at para. 45.
[71] I do not accept the evidence that there were officer safety concerns. There was no reliable evidence that a weapon was involved in this case. The police cannot rely on the fact that fentanyl poses a danger to the community as a ground to bolster investigative detention: that fact was unknown to them at the relevant time.
[72] The second authority is the stand-alone power to conduct a safety search, which the court identified in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37. LeBel J. explained, at para 40, that “where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search.” However, as Green C.J.N.L. commented in R. v. Squires, 2016 NLCA 54, at para. 40:
While there are indications in other cases that in some circumstances a safety search incident to an unlawful detention may nevertheless be upheld, I prefer the approach in McGuffie. Further, as MacDonald recognized, although there may be grounds for a safety search even outside an investigative detention, provided it is necessary to deal with exigent circumstances or an imminent threat, MacDonald was a case where no attempted detention, whether lawful or unlawful, was involved. It does not stand for the proposition that a safety search can be lawfully undertaken in the context of an unlawful - and thus arbitrary - detention.
[73] Given the constellation of factors in this case, it was not objectively reasonable for Smutnicki or Reed to act in the manner they did and to have the applicant detained or arrested. Smutnicki did not have reasonable and probable grounds for the arrest prior to the applicant leaving the scene. I find that the applicant has established a s. 9 Charter breach as there was no authority or right to detain the applicant.
[74] Given my findings that the applicant’s arrest or detention was unlawful; under s. 9 of the Charter, it must follow that in this case, the search of his person revealing fentanyl patches or fentanyl mixed with heroin was a warrantless search that breached the applicant’s s. 8 rights. Of course, having found breaches of both ss. 8 and 9, I must go on to consider an analysis under s. 24(2) of the Charter.
[Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[75] Section 24 of the Charter states:
(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.
[76] In the seminal case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system. The disrepute is to be considered by the court in its role of maintaining the integrity of, and public confidence, in the justice system. It is an objective inquiry and 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.
[77] The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large. The focus is not on punishing the police or compensating the accused: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.
[78] The onus is on the applicant to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.
[79] The Supreme Court outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence would bring the administration of justice into disrepute. They are:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.
[80] In considering the seriousness of the Charter-infringing state conduct, the Court must ensure that they are not, in effect, condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from wilful or reckless disregard of Charter rights.
[81] The impact on any breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The Court should assess whether any breach, if there was one, was “fleeting or technical” as opposed to “profoundly intrusive”. This factor does not assess the extent to which the state intruded on the individual generally, but only the extent to which the state intruded on the individual beyond any intrusion that was lawfully permitted. In Grant the Supreme Court described this line of inquiry as “the danger that admitting the evidence may suggest that Charter rights do not count”. The seriousness of the intrusion upon the rights of an accused may vary greatly. I must consider, whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.
The seriousness of the Charter-infringing state conduct
[82] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law: Grant at para. 74. At para. 75 the court elaborated on this factor by stating:
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[83] The Crown argues that the search of Kennedy was minimally intrusive. It was brief and at the scene. His pocket was the immediate area of interest to the police. The officers, as a result of their experience, thought that Kennedy was holding onto something either dangerous or illegal. Upon detention or arrest, a search of the pocket revealed the fentanyl.
[84] In my view, the police “jumped the gun” in this investigation as it related to Kennedy. They may very well have had reasonable grounds to arrest Taylor but in the absence of an established nexus between Taylor and Kennedy, those grounds did not exist to justify the applicant’s detention or arrest. Running away from the police in this case does not enhance the lack of reasonable suspicion to detain the applicant.
[85] I find that the beliefs held by both Smutnicki and Reed are unreasonable in the circumstances. Given Smutnicki’s testimony, I am persuaded that the police conduct in this case was deliberate and they adopted a cavalier attitude towards the applicant’s rights. The police actions could be considered flagrant. The fact that both officers either directly or implicitly suggest or state that, in their view, all persons in the parking lot were arrestable, suggests that the Charter-infringing conduct arose from a complete ignorance of Charter rights. This gives rise to a serious breach and the potential for systemic concerns. Had the police merely waited to observe a potential transaction or even contact between the applicant and their known target, my consideration of this factor may have been different.
[86] In my opinion, the admission of this evidence would send a message that the justice system is somehow condoning serious state misconduct and its admission would greatly undermine public confidence in the justice system. In my view, this factor weighs in favour of exclusion.
The impact of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) violation on the Charter-protected interests of the accused.
[87] The second branch of the test is outlined in Grant at paras. 76 & 78:
This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity is more serious than one that does not.
[88] The measure of seriousness then is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
[89] Accordingly, discoverability retains a useful role in assessing the actual impact of the breach. It is well established that this factor may weigh against a finding that the breach has had a meaningful impact on the accused’s Charter-protected interests.
[90] Here, we are dealing with real evidence, fentanyl. The applicant’s arbitrary arrest was not momentary. After an illegal arrest police discovered the fentanyl. True, it was not an invasive search, nonetheless, the applicant was taken to the ground and searched.
[91] This is also not a case where the lines between non-detention, justified detention and unjustified detention are thin. In this instance, the police observed the parking lot prior to the SUV arriving. The police had ample opportunity to consider their options. There was no urgency that could have impeded the alleged transaction to run its course. It was clear from the evidence that the police were going to stop everyone who was travelling in the SUV. This is not a nuanced approach. Instead, this is a case where the police made a blanket decision that was not grounded in law. This is not a case like R. v. Omar 2018 ONCA 975, [2018] O.J. No. 6346 (C.A.), per Brown J.A. in dissent, (aff’d. 2019 SCC 32, [2019] S.C.J. No. 32); where the officers were confronted with a difficult, intricate, real-time decision. In my view, this case is more egregious in that the police did not appear to even consider the Mann factors.
[92] Given the direction from the Court of Appeal, I find that the breaches in the case before me are very serious in that they represent a flagrant violation of the applicant’s rights. In sum, it is clear to me that the officers never had the reasonable and probable grounds to arrest the applicant. In this case, Kennedy’s alleged flight does not bolster those grounds. It cannot be said that there was a minimal impairment of the applicant’s rights.
[93] While not the determinative factor, the impact on the applicant's Charter-protected interests was significant in this case. I am not persuaded that the fentanyl would necessarily have been discovered. I find that that the warrantless search and obtaining of the evidence from the applicant was a serious Charter violation. My consideration of the second factor weighs in favour of exclusion.
Society’s interest in the adjudication of the case
[94] In considering this factor, the question to be asked is "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion." The reliability of the evidence is an important factor in this line of inquiry. If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion.
[95] In Grant, at para. 83, the Supreme Court discussed how the importance of the evidence to the Crown's case is a relevant consideration:
The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[96] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As Crown counsel submits, should the evidence be excluded, the prosecution’s case would be “gutted”.
[97] Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. This is particularly crucial as the drugs in this case is fentanyl or a fentanyl mixture. It is crystal clear that fentanyl is a scourge on society and packets of fentanyl are extremely dangerous. No doubt, its impact is devastating, not to mention potentially deadly. In this case, it cannot be said that the evidence of the drugs is of marginal value.
[98] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As the Supreme Court stated in Grant, at para. 79:
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. 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.’ … Thus the Court suggested in Collins that a judge on a 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. The Court must ask itself “whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.
[99] The Crown submits that society’s interest in adjudication on the merits leans towards admission. The fentanyl is real evidence. The importance of the evidence to the Crown’s case is another factor that may be considered in this line of inquiry. The exclusion of the drug will leave the Crown with absolutely no evidence in support of the prosecution’s case.
[100] While I must be cautious not to place too much emphasis on this latter point, I am mindful that in Grant, the Supreme Court offered that the seriousness of the offence may be a neutral consideration as it has the potential to “cut both ways”. In this case, I conclude that society's interests in the adjudication of the case on its merits are best served by not excluding evidence when its probative value is so strong. A consideration of this public interest factor militates in favour of admission of this evidence.
[101] The final step is a balancing of all of these factors. In Harrison, the Supreme Court provided some guidance to trial judges at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[102] The community needs to have serious cases tried on their merits, especially where possible lethal drug-related crimes are committed. On the other hand, the severity of the breaches and the massive impact associated therewith are simply too powerful to ignore.
[103] Indeed, I am mindful that 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.
[104] The impact on the Charter-protected interests of the applicant was serious. The police conduct in this case demonstrated a deliberate disregard of Charter rights. While I do not find bad faith, per se, I conclude that the actions of the police would invite a negative impact on the public confidence in the administration of justice and the rule of law. The balancing of all of the s. 24(2) factors militate in favour of exclusion of the evidence.
Conclusion:
[105] For all of the aforementioned reasons, I find that the applicant’s ss. 8 and 9 Charter rights were breached as a result of the unlawful arrest and unlawful search incident thereto.
[106] While recognizing the potential lethal and notoriously harmful impact of fentanyl on individuals and society, and notwithstanding the significant quantity of drugs found in the applicant’s possession, I must exclude the evidence pursuant to s. 24(2) of the Charter.
A.J. Goodman J.
Released: February 13, 2020
COURT FILE NO.: CR 19-012
DATE: 2020/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown/Respondent
- and -
TREVOR KENNEDY
Applicant
REASONS FOR JUDGMENT
Sections 8, 9, & 24(2) of the Charter
A. J. GOODMAN J.
Released: February 13, 2020