BARRIE COURT FILE NO.: CR-18-140-00
DATE: 20200108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TRISTAN CURRY
Defendant/Applicant
Amber Meiners and Neil Riley, for the Crown/Respondent
Ashley Audet, for the Defendant/Applicant
HEARD: October 7-8 and 11 and November 25, 2019
Ruling on SS. 8 and 9 CHARTER Application
DAWE J.
[1] The Applicant Tristan Curry was arrested in Barrie on December 5, 2017 and charged with various firearms and drug offences. The case against him is largely based on evidence seized by the police during searches they conducted incidental to Mr. Curry’s arrest, both of his person and of the vehicle he was driving when he was arrested.
[2] Mr. Curry is being tried before me, sitting without a jury. He is advancing a Charter-based defence, and his trial was conducted as a blended trial and Charter voir dire during which I heard evidence from a number of police officers.[^1]
[3] Mr. Curry maintains that the police lacked sufficient grounds to lawfully arrest or search him, and that by doing so unlawfully they infringed his ss. 8 and 9 Charter rights. He seeks to have the items the police seized during the searches excluded under s. 24(2).
[4] It is common ground that since Mr. Curry and his vehicle were searched without a warrant incidental to what was a warrantless arrest, the police only had lawful authority to conduct these searches if the arrest was itself lawful. In this situation the Crown bears the burden of establishing on a balance of probabilities that Mr. Curry’s ss. 8 and 9 Charter rights were not infringed: see R. v. Gerson-Foster, 2019 ONCA 405 at paras. 74-75.
I. The evidence
A. The confidential informant tip
[5] At some point – exactly when was not put in evidence – Detective Constable Ryan Davies of the Barrie Police Service received a confidential informant tip that two black males with street names “Biggie” and “Rolo” were dealing drugs from a house in downtown Barrie at 82 Peel St. The confidential informant was described as having been “proven” in a prior investigation, but no further evidence was adduced about his or her past proven performance. The police also had “dated” information that Biggie sold heroin and that Rolo sold crack cocaine and may be in possession of a handgun, but had no further information about what either person looked like, other than that they were both black men.
[6] DC Davies knew from a previous investigation in February 2017 that the 82 Peel St. house was divided into two apartments, and that the tenant in the house’s front unit was a drug user who had previously let drug dealers use her apartment as a place to do business. For this reason DC Davies assumed that the tip also related to the front unit, although the tip had not specified this.
B. The police investigation
[7] DC Davies decided to investigate the tip further. Over the course of several days in late November and early December 2017 a team of Barrie officers periodically conducted surveillance on the 82 Peel St. house and followed some of the people they saw coming and going.
1. Day 1: Surveillance on November 27, 2017
[8] On the first day of surveillance, November 27, 2017, the police began watching the 82 Peel St. house at around 5:30 p.m. and continued their surveillance for approximately three and a half hours. During this time they saw a number of different people – none identified as Mr. Curry – arriving at or leaving the house. At 5:44 p.m. one officer saw a black man with a hoodie leaving 82 Peel St. through the front door and walking south down the street. Some time later, at around 6:00 p.m., a different officer saw a black man who may have been the same person a few blocks away at the public library on Owen St., apparently meeting with a white male and exchanging a letter-size envelope with him.
[9] At 6:02 p.m. a different black male in a white hat arrived at 82 Peel St. in a vehicle. He left after about five minutes and surveillance officers followed him as he drove to another house a few blocks away, at 8 Penetang St. Over the next hour the officers saw a large number of people arriving at 8 Penetang St. and leaving after a few minutes, in a manner they thought was consistent with what would be expected of people who were attending the house to buy drugs.
[10] The black male in the white hat left 8 Penetang St. at 7:16 p.m. and drove to the Georgian Mall in north Barrie, taking an indirect route that the surveillance officers interpreted as the man performing a “heat check” to try to see if he was being followed. The man stayed at the mall for a little over an hour and then drove to Toronto on Highway 400. The police followed his vehicle to Toronto, where they lost it in traffic. While this was going on the officer who had remained to keep watch on the 82 Peel St. house saw a number of people coming and going from that address.
2. Day 2: Surveillance on December 3, 2017
[11] A few days later, on December 3, 2017, the police resumed their surveillance on the 82 Peel St. house, starting at around 12:30 p.m. A few minutes after they arrived a black SUV pulled up to the house and three people – a black man, a white man and a white woman – got out and went into the house. The driver of the SUV, a white male, then drove away. Because the black man who arrived in the SUV was large and heavyset the surveillance officers began referring to him in their notes as “Biggie”, on the assumption that the man’s appearance “would be fitting” for a person with this nickname.
[12] Shortly before 1:30 p.m. a grey Dodge Charger driven by a white male arrived at the 82 Peel St. house, and the three people whom the police had earlier seen arriving at the house came outside and got into the car. The surveillance team decided to follow them and abandon their watch on the house. The car drove to a rooming house on Ross St. that was known to the police as a hotbed of criminal activity, and the black man the officers were calling “Biggie” went inside for a few minutes. When he came back out and got back into the car it drove to a parking lot near Dunlop St. The black male and the white woman then left the car and walked to a number of different places in the downtown area. At one point “Biggie” and another person went behind a chip truck on Maple St., which the police considered particularly suspicious. Eventually, at around 3:00 p.m., “Biggie” and the woman who had come with him from 82 Peel St. walked to 8 Penetang St. together and went inside. They left after a few minutes and walked back in the direction of 82 Peel St. but the police ended surveillance at that point and did not see where they actually went.
3. Day 3: Surveillance on December 4, 2017
[13] The next day the police watched the 82 Peel St. house from around 2:30 to 8:00 p.m. They saw a number of people coming and going, none of whom were black males.
4. Day 4: Surveillance on December 5, 2017
[14] The surveillance team returned to the 82 Peel St. house the following day, shortly after 5:00 p.m. At 5:53 they saw a black male, later identified as Mr. Curry, leave the house and walk north on Peel St. This was the first time the police had seen Mr. Curry during the investigation. Although they had seen several other black men coming and going from the 82 Peel St. house on earlier days, in addition to the heavyset man they had taken to calling “Biggie”, the officers began referring to Mr. Curry in their notes as “Rolo”.
[15] Mr. Curry met a woman on Peel St. – later identified as Felicia Young – and the police observed them walk north together, east on Grove St. E., and south on Newton St., where they got into a white Volkswagen Jetta that was parked on Newton St. just north of the intersection with Gunn St. The police considered it suspicious that they took this circuitous path to get to the parked car instead of taking the much shorter route of walking directly east along Gunn St. One of the surveillance officers, DC Justin Ford, testified that he associated this behaviour with drug dealers trying to spot police in an area.
[16] Surveillance officers followed Mr. Curry and Ms. Young as they drove in the white Jetta to a housing complex at 63 Ferris Lane, north of downtown Barrie, taking a “straightforward” route to get there. The 63 Ferris Lane complex consists of row houses with various intersecting laneways, and was described by one of the officers as a “well known drug area”. The surveillance team decided not to follow the white Jetta into the complex laneways in order to avoid arousing their targets’ suspicions. The car stayed in the complex for only one or two minutes before exiting again.
[17] The team followed the Jetta as it drove to south Barrie and at 6:14 p.m. saw it enter another townhouse complex at 177 Bayview Drive, which was also an area known to the police for drug trafficking. This complex also had parking areas joined by laneways, and the surveillance team again decided not to follow the Jetta into the complex for fear of being spotted. However, one officer saw it pull into a parking space beside a red pickup truck and pull out again after only about twenty seconds and drive back out to the main road.
[18] The surveillance team then followed the white Jetta as it drove to a third housing complex at 549 Yonge St., which is also in south Barrie. This time one of the team members, DC Kevin Calleja, followed the car into the complex parking lot in his own vehicle. He saw a white male walk diagonally across the parking lot, apparently from one of the townhouse units, holding a cell phone to his ear. This man got into the back seat of the white Jetta and after about thirty seconds got out again and returned to the townhouse unit from which he had seemingly come. At this point the Jetta drove to the complex exit and after pausing drove northbound on Yonge St.
C. Mr. Curry’s arrest
[19] At this point the police decided they had grounds to arrest the as-yet unidentified occupants of the white Jetta. DC Davies, who was the officer in charge of the investigation, described this decision as one the entire team made collectively, but other officers recalled that the decision to make the arrest was made by Sgt. William Grant, who was the most senior officer and was acting as the surveillance team’s “road boss”. Sgt. Grant’s own evidence was that he “put it out there for discussion” but that “ultimately [he] make the decision that there’s grounds to arrest”.
[20] DC Davies testified that he believed the police had grounds to arrest the occupants of the white Jetta for drug trafficking based on the observations of the vehicle driving to different addresses and making short stops. Sgt. Grant’s evidence was that:
… based on the two suspected transactions that happened earlier at 63 Ferris Lane and 177 Bayview, the suspected transactions, and then our strongest transaction which is the one at 549 Yonge St., based on those three transactions we formulate grounds to arrest Mr. Curry and Ms. Young for trafficking, for possession for the purpose of trafficking cocaine.
[21] The surveillance team followed the white Jetta as it drove back to north Barrie and went into the parking lot of a fast food restaurant across the street from the Georgian Mall. The officers decided that this would be a suitable place to make the arrests because there were not many other people in the area. They boxed in the Jetta with their vehicles and arrested the car’s two occupants. DC Ford arrested Mr. Curry for possession of a controlled substance for the purpose of trafficking and DC Calleja then searched him incident to arrest. He found a small handgun in Mr. Curry’s right jacket pocket, two small bags of marijuana and an iPhone in his left jacket pocket, and approximately $3,500 in cash in his jeans pockets. The gun was loaded, with four rounds in the magazine and a fifth in the chamber. After the gun was found Mr. Curry was also arrested for firearms offences.
[22] A further search of the Jetta turned up $3,700 in cash, seized from a shoulder bag found in the trunk, as well as three more cell phones, one in the trunk and two in the centre console. Two rounds of .380 calibre ammunition were also found in the glove box, which matched the ammunition in the handgun that had been found in Mr. Curry’s pocket.
[23] DC Ford instructed a uniformed officer, PC Allan Claus, to transport Mr. Curry to the police station. Sgt. Grant told PC Claus that Mr. Curry’s fly was open and that he should be subjected to a “complete search” at the station to find if he had anything concealed under his pants. After arriving at the station PC Claus conducted the “complete search”, which is a somewhat euphemistic term for a strip search. Mr. Curry was wearing two pairs of underwear, and PC Claus found a plastic bag tucked into the front of the innermost pair. This bag contained three smaller plastic bags, two holding a white powder and the third holding a brown powder. The powders later tested positive for cocaine and heroin, respectively.
II. Analysis
A. Did the police have objectively reasonable grounds to believe Mr. Curry was trafficking drugs?
[24] In R. v. Storrey, 1990 125 (SCC), [1990] 1 SCR 241 at pp. 250-51, Cory J. explained:
[T]he Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
Although the Code now refers to “reasonable grounds” rather than “reasonable and probable grounds”, this does not change the legal standard.[^2]
[25] As Fairburn J.A. explained in R. v. Canary, 2018 ONCA 304 at paras. 21-23:
To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, [supra] at pp. 250-51; R. v. Bush, 2010 ONCA 554 at para. 38; [R. v. Saciragic, 2017 ONCA 91] at para. 16. The objective inquiry asks whether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: Storrey, at pp. 250-51.
When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73.
The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, “credibly-based probability” replaces suspicion: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25; R. v Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.
[26] In the case at bar, Mr. Curry does not dispute that the police subjectively believed at the time they arrested him that he had recently been trafficking drugs and that he was in possession of additional drugs for the purpose of trafficking. However, he argues that their subjective belief was not objectively reasonable. As noted above, it is the Crown’s burden to demonstrate that the police had enough information to allow their objective grounds to rise to the level where a “credibly based probability replaces suspicion”.
[27] The first piece of information the police received in this case was the confidential informant tip, which the Crown fairly concedes did not on its own give the police reasonable grounds to arrest or search anyone. In R. v. Debot, supra, at p. 1168 S.C.R., Wilson J. explained that three factors must be weighed when assessing the sufficiency of a confidential informant tip:
First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view[^3] that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
In the case at bar, the tip was not “compelling” insofar as no evidence was adduced about either the tipster’s means of knowledge – i.e., whether it was first-hand or second-hand information – or its currency. There was also no evidence provided to me that would allow me to conclude that the tipster was a credible source with a past history of providing reliable information to the police. The bare assertion that the informant had been “proven” in a prior investigation is in my view too vague to be given any real weight.
[28] However, some aspects of the informant’s tip were corroborated to some extent, either by other information the police had already acquired independently or by the surveillance observations they made when they investigated the tip:
(a) The police knew that the front unit tenant at 82 Peel St. had previously let drug dealers use her apartment as a place to sell drugs, which made the tipster’s claim that this was now happening again somewhat more credible;
(b) The police observations during their first few days of surveillance showed an unusually large number of people visiting the front unit of the 82 Peel St. house, which was at least consistent with the possibility that the apartment was being used as a location for drug sales, as the informant had claimed in relation to the address;
(c) Some of the people the police saw coming and going from 82 Peel St. during their first three days of surveillance also engaged in activity at other locations that was at least suggestive of drug dealing. Most significantly, after the black man with the white hat was seen on November 27 going from 82 Peel St. to 8 Penetang St., the police saw a steady stream of short-term visitors coming and going from this second address who acted in a way that suggested to the police that they might be drug purchasers. While this observation did not directly corroborate the informant’s tip – the informant had not mentioned 8 Penetang St. – it did support the police suspicion that there was a link between 82 Peel St. and people involved in the drug trade, which indirectly corroborated this aspect of the informant’s tip;
(d) This police suspicion was reinforced when the police saw a different man – the large black man they referred to as “Biggie” – also going to the 8 Penetang St. house on December 3. While I am not satisfied that the police observations of “Biggie” in downtown Barrie that day were necessarily as objectively suspicious as the surveillance officers subjectively believed them to be, they were at least somewhat suggestive of his possible involvement in drug trafficking;
(e) Finally, in my view the fact that the man the police observed and followed on December 3 was a physically large person who looked like someone who might plausibly go by the nickname “Biggie” had at least some slight corroborative value in relation to the informant’s tip. The police knew of at least one other man in Barrie who went by the street name “Fifty” because he resembled the rapper 50 Cent. This gave some support to the police conjecture that the person the confidential informant had named as “Biggie” might also be a tall and heavyset man who looked something like the late rapper Biggie Smalls.
[29] Although I think it was not unreasonable for the police to at least provisionally identify their December 3 surveillance target as “Biggie”, I agree with Ms. Audet that they had no good reason to jump to the conclusion when they saw Mr. Curry for the first time on December 5 that he was “Rolo”. It was at least equally possible that one of the other three black men they had seen at the 82 Peel St. house on previous days might have been “Rolo”, or that “Rolo” – assuming he existed at all – might be a different person altogether whom the police had not yet seen. In particular, I am puzzled about why the police assumed that “Rolo” was Mr. Curry and not the black man in the white hat whom they had seen engaging in very suspicious activities on November 27, particularly since the police had evidently considered this other man enough of a suspect that they had followed him all the way to Toronto before losing him in traffic.
[30] However, I also do not think the police’s conjectural supposition on December 5 that Mr. Curry was “Rolo” was central to their subsequent determination that they had reasonable grounds to believe he was selling drugs that evening, or to their decision to arrest him. Their own observations of the white Jetta driving to three different housing complexes and staying for only a few minutes strongly suggested that Mr. Curry, whoever he was, was making deliveries of some kind. This conclusion became almost inescapable after the car made its third stop at the 549 Yonge St. townhouse complex and the police saw someone holding a cell phone to his ear meet the vehicle and get inside, and then leave the car again after only about thirty seconds. In my view, the surrounding circumstances very strongly suggested that this was a prearranged meeting rather than a chance encounter, and also strongly supported the further inference that the purpose of this meeting was to conduct a transaction of some sort.
[31] If this observation had stood on its own it might not have been reasonable for the police to infer further that this apparent transaction was an illegal drug sale. As Ms. Audet points out, they did not actually witness any hand-to-hand exchange between the occupants of the Jetta and the man who got into the car. In my view, however, the conclusion that the meeting was for the purpose of conducting a drug deal became objectively reasonable when it is situated in the context created by the prior police surveillance and the confidential informant’s tip:
(a) Mr. Curry had come from a house that the confidential informant had linked to drug trafficking, and which the police knew had been linked to drug trafficking in the past;
(b) Their own observations over the previous days strongly suggested that at least two other people associated with the 82 Peel St. house were engaged in drug trafficking;
(c) When Mr. Curry left 82 Peel St. to go to the white Jetta he took a peculiarly circuitous route to get to the parked vehicle, which the police interpreted based on their experience as a possible form of counter-surveillance;
While any one of these circumstances might have been no more than merely suspicious when viewed in isolation, when they are taken together they pointed very strongly to the conclusion that the police actually drew: namely, that Mr. Curry was driving around south Barrie that evening in order to deliver illicit drugs to his customers. In my view, the totality of circumstances gave the police objectively reasonable grounds to believe that what they witnessed at the 549 Yonge St. housing complex was indeed an illegal drug transaction.
[32] In R. v. MacKenzie, supra, Moldaver J. noted at para. 73 that assessments of the strength of police grounds must “be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.” However, police experience can also create a risk of confirmation bias. I have some concerns that the officers in this case may have been overly quick to associate anything they observe taking place in or around a low income housing development with drug trafficking. I am also inclined to discount the weight I give to Sgt. Grant’s opinion that the meeting between the white Jetta and the man at the 549 Yonge St. housing complex was “for their drug transaction” because Sgt. Grant had:
… probably seen in my experience probably over 100 of these types of transactions and it’s the most common one we see.
As Ms. Audet points out, the reliability of Sgt. Grant’s experiential conclusions is impossible to assess without any evidence about how many of the “over 100” similar incidents he had witnessed had actually been confirmed to have been drug transactions, and not meetings for some other purpose.
[33] However, I do not see this as a case where the objective assessment of reasonable grounds ultimately requires much reliance to be placed on the officers’ experience in order to draw the conclusion that what they witnessed in the 549 Yonge St. housing complex parking lot was probably a drug deal. Rather, I am satisfied that a reasonable person with no prior experience conducting drug investigations would still be able to conclude from the totality of the circumstances that there was no other realistically likely explanation for the parking lot meeting.
[34] Ms. Audet faults the police for not conducting a further investigation of the supposed drug purchaser from the 549 Yonge St. complex before they arrested Mr. Curry and Ms. Young. However, if the police had reasonable grounds to believe Mr. Curry and Ms. Young had committed a drug offence, they were not required to test their grounds by conducting a further investigation before they arrested them. As Karakatsanis J. noted in R. v. Chehil, 2013 SCC 49 at para. 34, “the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.” Conversely, if the police did not have reasonable grounds to arrest Mr. Curry and Ms. Young – or, as Ms. Audet contends, even reasonable grounds to detain them for investigation – it is not at all clear how they could have conducted any meaningful investigation of the other man without unlawfully detaining him.
[35] However, for the reasons I have already given, I am satisfied that the police did have reasonable grounds to support their decision to arrest Mr. Curry and Ms. Young, and that they were not obliged to confirm these grounds by arresting and searching the other man first.
[36] Finally, while the police decision to arrest Mr. Curry specifically for possession of cocaine for the purpose of trafficking seems to have been based to some extent on their conjectural conclusion that he was “Rolo”, whom they believed to be a cocaine trafficker, the police were not required to have reasonable grounds to believe that Mr. Curry was trafficking in a specific illegal drug in order to have lawful authority to arrest him, since the specific drug particularized in a possession charge is ordinarily considered surplusage. Accordingly, while I agree that it was somewhat speculative for them to conclude that Mr. Curry probably possessed cocaine rather than some different illegal drug, it was sufficient that they had reasonable grounds to believe that he was in possession of some controlled substance for the purpose of unlawfully trafficking it.
B. The searches incident to arrest
[37] Ms. Audet focused her submissions on the sufficiency of the police grounds to arrest Mr. Curry and did not separately challenge their decision to search him incident to arrest or to subject him to a strip search at the police station. However, since it is the Crown’s burden to justify the lawfulness of these searches, I will for completeness address these issues briefly.
[38] If the arrest of Mr. Curry for a drug offence was lawful, as I have found, I am also satisfied that the police had lawful authority to search both him and the vehicle in which he had been travelling incident to the arrest in order to look for further evidence: see R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51. It was reasonable in the circumstances for them to search Mr. Curry’s person both for officer safety reasons and to find evidence of the drug offence for which he was arrested. Once they found the handgun in his jacket pocket, it was reasonable for them to search the white Jetta for further evidence in relation to both the drug and the firearms offences for which he was now under arrest. Accordingly, I am satisfied that the police had lawful authority at common law to conduct these warrantless searches, and that the searches did not infringe Mr. Curry’s s. 8 Charter rights.
[39] I am also satisfied that the strip search of Mr. Curry at the police station was lawful and Charter-compliant. In their majority reasons in R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83, Iacobucci and Arbour JJ. held (at para. 99):
In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.
In the case at bar, the police in my view had reasonable grounds to believe that Mr. Curry might have drugs concealed in his pants. They also conducted the strip search in a constitutionally acceptable manner by taking Mr. Curry to the police station and conducting the strip search in private rather than performing it in the public parking lot where he was arrested. Accordingly, I am satisfied that the Crown has met its burden of establishing that the strip search did not violate Mr. Curry’s s. 8 Charter rights.
C. Section 24(2)
[40] In light of my conclusion that Mr. Curry’s ss. 8 and 9 Charter rights were not infringed, it would in my view be a pointless exercise for me to purport to decide whether I would have excluded or admitted the seized evidence under s. 24(2) if I had found any Charter breaches. My conclusion that the police did not infringe Mr. Curry’s Charter rights makes me ill-positioned to conduct any meaningful assessment of the seriousness of any such breaches if it turns out that I am wrong, and that his Charter rights actually were infringed. For this reason, any s. 24(2) analysis I conduct would not be entitled to any appellate deference: see, e.g., R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 129; R. v. Manchulenko, 2013 ONCA 543 at para. 94. In these circumstances I do not think going through the motions of a s. 24(2) analysis would serve any useful purpose.
III. Disposition
[41] In the result, the defence application for a declaration that Mr. Curry’s ss. 8 and 9 Charter rights were infringed and for an order excluding the seized evidence under s. 24(2) is dismissed.
The Honourable J. Dawe
Released: January 8, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TRISTAN CURRY
Defendant/Applicant
SS. 8 and 9 Charter Ruling
The Honourable J. Dawe
Released: January 8, 2020
[^1]: One of the investigating officers, Sgt. William Grant was unable testify before me due to illness, and I permitted the Crown to adduce the transcript of his preliminary inquiry testimony under s. 715 of the Criminal Code.
[^2]: See, e.g., Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416 at p. 446; R. v. Canary, 2018 ONCA 304 at para. 21, footnote 1.
[^3]: In his judgment for the Ontario Court of Appeal: R. v. Debot, 1986 113.