COURT FILE NO.: CRIM J(F) 156/20
DATE: 2021 04 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Geoffrey Roy, for the Crown
Applicant
- and -
DILBAG AUJLA
Respondent
Daniel J. Brodsky, for the Accused (Applicant)
HEARD March 2, 2021 by video
RULING ON CHARTER APPLICATION
Fowler Byrne J.
[1] The Applicant Dilbag Aujla has brought this application wherein he seeks an order, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, that all evidence obtained during a traffic stop and warrantless vehicle search further to that traffic stop be excluded on the basis that it violated his rights under ss. 8, 9 and 10(a) of the Charter.
[2] I make this decision as case management judge.
I. The Charge
[3] Mr. Aujla has been charged with trafficking a controlled substance, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
II. Evidence
[4] For the purposes of this hearing, the parties relied on: an agreed statement of facts; the Application Record, containing the police notes and records of Constables Mitchell Gan, Valerie Till and Constable Sauve, as well as the Surveillance Report of Detective Flemming; the transcript of the evidence given by Constables Gan and Till at the preliminary hearing of this matter; and two video clips of a warehouse under surveillance in the summer of 2018.
III. Background
[5] In the spring and summer of 2018, the Peel Regional Police were investigating Ravi Shanker and his associates. This investigation centered around a warehouse at 10 Wilkinson Road, Unit 12, in Brampton, Ontario (“the Warehouse”). In the course of this investigation, the police executed several general warrants and installed covert video cameras inside the Warehouse. The general warrants and the camera demonstrated that on April 16, 2018 and July 13, 2018 Mr. Shanker and Gurinder Bedi possessed significant amounts of opium which they stored in various places in the Warehouse, including in a piece of furniture, in the kitchen, in an open joist in the bathroom area, and in a palette in the warehouse.
[6] Pursuant to these warrants, on August 10, 2018, Mr. Bedi was observed in the kitchen area of the warehouse, removing a substance that appeared to be opium from a yellow plastic bag and cutting it with a knife. Mr. Shanker also went into the kitchen and examined the black substance that Mr. Bedi was cutting. Mr. Bedi then placed a portion of the black substance in a clear plastic bag and went to another part of the warehouse, which was out of view. Mr. Shanker placed another portion of the substance in a yellow plastic bag and also took it to the interior of the warehouse, which was out of view.
[7] On the next day, August 11, 2018, the police were able to monitor a meeting between Mr. Bedi and Mr. Aujla, using the covert video cameras.
[8] This video footage shows that on that day, Mr. Bedi entered the kitchen area of the warehouse, followed by Mr. Aujla at approximately 1:02 p.m. Mr. Aujla observed Mr. Bedi put something in a white plastic bag, leave the kitchen area and go into the warehouse area out of view. Mr. Aujla was observed waiting and then too went into the warehouse area. One to two minutes later, Mr. Bedi returned with a yellow plastic bag and returned to the kitchen. After doing something at the counter, he exited the kitchen with a block of some substance wrapped in what appears to be clear or white plastic wrap. Mr. Aujla is then seen returning from the warehouse area and Mr. Bedi hands the substance wrapped in plastic to Mr. Aujla in front of the kitchen. Mr. Bedi then leaves the building, leaving the door ajar, which partially obstructs the view into the kitchen. Mr. Aujla returns to the kitchen, and appears to be putting something in a bag, but it is not clear because the exterior door is obstructing the view. Mr. Aujla exits the warehouse just past 1:06 p.m.
[9] The exterior surveillance camera then immediately picks up Mr. Aujla leaving the warehouse with an object in his hand, block-shaped, either in white or clear plastic, and getting into the front seat of his car, which is a Honda CR-V. He immediately exits his car, carrying nothing, and goes into his hatchback and retrieves what appears to be something to drink. He gets ready to drive away at approximately 1:09 p.m.
[10] Detective Flemming was part of the surveillance team watching Mr. Aujla on that day and as a result of his observations, believed that Mr. Aujla was transporting illegal narcotics. Detective Flemming called for assistance from a police officer on patrol to arrest Mr. Aujla. Constable Gan was a uniformed constable who was on patrol that day. At 1:22 p.m. he received a call from his dispatch requesting assistance from the Mobile Unit. He was advised that police had eyes on a vehicle and needed assistance to pull the vehicle over. He also received a phone number of an officer to call who had more information. Constable Gan called this number and spoke to Detective Flemming at 1:31 p.m. He was advised that the Mobile Unit from Intel was actively watching this particular Honda CR-V. Detective Flemming advised that his team had observed a hand-to-hand exchange of what they believed was drugs in a bag, which was located in the front seat of the subject vehicle. The license plate number of this vehicle was provided. Constable Gan was also advised that upon arresting Mr. Aujla for possession, he was to be immediately released. Constable Gan indicates that the information received from Detective Flemming provided him with probable cause to arrest Mr. Aujla. At the time, Constable Gan did not know that the interest in this particular individual was part of a larger investigation called Project Terminal.
[11] Shortly thereafter, at 1:35 p.m., Constable Gan met up with Constable Till, who was also on patrol and relayed to her the grounds for arrest so that they could work together. With the assistance of Detective Flemming, Constables Gan and Till located the subject vehicle and were able to follow it as it travelled east on Ray Lawson Blvd, that turned into County Court Blvd when on the east side of Hurontario Street. After the subject vehicle crossed Hurontario Street, Constable Gan observed that the vehicle moved from the left-hand lane into the right-hand lane for Havelock Drive without signaling his lane change. Constable Gan then initiated a traffic stop on Havelock Drive at 1:43 p.m. Constable Till was right behind Constable Gan; she pulled her cruiser up behind his. Her notes indicate that Mr. Aujla’s vehicle was stopped at 1:43 p.m.
[12] Constable Gan’s evidence at the preliminary hearing, in cross-examination, was as follows:
A. So as I was behind the vehicle, eastbound on, um, Ray Lawson as it turns to County Court, the vehicle had gone into the right-turn lane to Havelock without indicating. Um, so when I approached the vehicle I had mentioned that he had failed to indicate that lane change.
Q. Okay. And you also make mention in your notes regarding the checking of a bag?
A. That’s correct. Part of the conversation that I had with him, um, when I approached the vehicle there was a lot of bags in the backseat, I also observed a different grey bag on the front seat, um, from there I asked where he had been, he said he had been shopping and I asked if I was able to check the bag. If I can just refer to my notes? I asked what was in the bag in the front, he said some things, you can check. He appeared nervous, he was stuttering. When I brought up checking the bag, he changed his mind saying that I could check the car and not the bag.
Q. And did you check the car prior to arresting him?
A. I did not.
Q. So tell us about the arrest then.
A. So from that point when I asked him to step out of the vehicle, I verbally told him that he was under arrest for possession of a controlled substance. At which point I walked him back to my cruiser, which was parked directly behind his vehicle. Again, once back at the cruiser, standing beside it, I told him again what he was under arrest for making sure that he understood that. At that point I began a search of his, Mr. Aujla’s, person incident to arrest. When – at that point as I was searching Mr. Aujla, Constable Till, um, began a search of the vehicle.
Q. And with respect to telling him what he was under arrest for, what did you tell him he was under arrest for?
A. I told him it was possession of a controlled substance.
Q. And when you were searching him incident to arrest, what type of things were you searching for?
A. I was searching for any weapons or means of escape, anything like that.
Q. Okay, continue Officer Gan.
A. Okay. Um, upon searching him outside of the cruiser, um, there was some currency in his pockets that I located. I have the specific values and locations in my notebook, if I could refer?
Q. Sure, go ahead.
A. So in his front right – sorry, front left pocket there was $325 which was in $20 denominations with one $5 bill. In his back right pocket I located two $50 dollar bills, two $100 dollar bills, two $20 bills, one $10 bill and our [sic] $5 dollar bills. That gave a total of $695. Front right pocket I located a small baggie with a solid black rock substance resembling heroin. It was approximately the size of a thumb nail. In the same pocket I also located two toonies, one loonie, one dime and two nickels for a total of $5.25.
[13] Constable Gan arrested Mr. Aujla at 1:45 p.m. After his search of Mr. Aujla’s person, Constable Gan handcuffed Mr. Aujla and placed him in Constable Gan’s cruiser, where he was advised of his right to counsel at 1:50 p.m. Mr. Aujla indicated he wanted to speak to counsel. Constable Gan then recorded the money found on Mr. Aujla’s person, which was returned to Mr. Aujla. Constable Gan spoke to Detective Flemming a second time and confirmed that he was to release Mr. Aujla, unconditionally at that time, which was done. Constable Gan believes he told Mr. Aujla that the suspected drugs recovered from the vehicle would be tested and they would follow up with him. Constable Gan did not facilitate contact with counsel because he immediately released Mr. Aujla.
[14] In re-examination, Constable Gan stated that he was told to pull over Mr. Aujla and he would have irrespective of whether Mr. Aujla had failed to signal his lane change. At this time, Constable Gan had been in this position with the Peel Regional Police for less than a year and this was the first occasion that he was asked to pull over a vehicle in circumstances where he was provided with the grounds to arrest.
[15] Constable Till gave evidence at the preliminary hearing that she was asked to assist with a traffic stop for Intel by either a dispatch or by Constable Gan.
[16] When she met with Constable Gan, she was advised that Intel had been watching Mr. Aujla and that they saw him with a bag they believed contained some type of drug, which may be on the front seat. She understood that they were to conduct a traffic stop and arrest him for possession. They were advised of where Mr. Aujla was and when they saw the vehicle, she and Constable Gan followed him in their respective cruisers.
[17] Constable Till stated that after Mr. Aujla was pulled over, she observed Constable Gan approach Mr. Aujla’s vehicle from the driver side, inform Mr. Aujla of the reason for the stop and advise him to get out of the vehicle. She heard Mr. Aujla saying that he was grocery shopping and there were groceries in the bags. After Mr. Aujla was arrested and brought back to Constable Gan’s cruiser, Constable Till started searching the vehicle starting on the passenger side, specifically looking for drugs, based on the information provided to her by Intel. When she searched Mr. Aujla’s car, she found some plastic bags, primarily a grey plastic bag that contained two bricks of a black brownish tar-like substance, and also smaller “dime baggies” of that same substance that was less pliable, on the front passenger seat. The grey plastic bag on the front seat was in plain sight. On the driver’s side front door, she found two white envelopes containing the same substance. In the center console of the vehicle, there was a small clear plastic Ziploc bag containing some white pills. She found nothing of interest in the back seat or the trunk. As she found some items, she held them up to show Constable Gan and she believes Mr. Aujla was trying to explain to Constable Gan what the bags contained.
[18] As indicated, Mr. Aujla was released unconditionally on August 11, 2018 at 2:26 p.m. Mr. Aujla was later arrested again on August 30, 2018 with the above-noted offence.
IV. Position of the Defence
[19] Mr. Aujla submits that his rights under ss. 8, 9, 10(a) and 10(b) of the Charter were violated.
[20] First, he maintains that the police did not have reasonable grounds to pull his vehicle over and detain him, therefore violating his s. 9 rights. In particular, Mr. Aujla maintains that the constables used an alleged infringement of the Highway Traffic Act, R.S.O. 1990, c. H.8, (failing to signal a lane change) as a ruse to stop him and conduct a search of his vehicle and find drugs without the necessity of a warrant. When the police searched his vehicle subsequent to this improper detention, they violated his s. 8 rights.
[21] In addition, Mr. Aujla states that even if there were reasonable grounds for the arrest, he argues that his s. 10 rights were breached because Constable Gan detained Mr. Aujla and asked to look inside Mr. Aujla’s grocery bags prior to telling him that he was pulled over on the basis of a suspicion that he had drugs in a bag on his front seat, and before he was advised of his right to counsel.
[22] As a result, Mr. Aujla submits that all the evidence obtained as a result of these actions should not be admitted as evidence at his trial.
V. Position of the Crown
[23] The Crown maintains that the officers on the scene had reasonable and probable grounds for detaining Mr. Aujla. Once arrested, they were entitled to search Mr. Aujla’s vehicle subsequent to his arrest.
[24] The Crown does concede a breach of Mr. Aujla’s s. 10 rights, in that Constable Gan started questioning Mr. Aujla about the contents of the bags in his car prior to advising him that he was being detained regarding the possession of a controlled substance and arresting him for same. However, the Crown submits that the application of the criteria in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, weighs against the evidence’s exclusion.
VI. Analysis
[25] The following sections of the Charter are relevant for this application:
Search or seizure
- Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
- Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
- Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
Enforcement of guaranteed rights and freedoms
- (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.
Exclusion of evidence bringing administration of justice into disrepute
(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.
A. Sections 8 and 9
[26] When determining if a person is arbitrarily detained contrary to s. 9 of the Charter, the court must first determine whether they were detained, and then, whether that detention was arbitrary: R. v. Le, 2019 SCC 34, at para. 29.
[27] When a vehicle is required to pull over by a police officer, they are detained under the Charter: Grant, at para. 30.
[28] An unlawful detention is arbitrary and therefore a breach of a person’s s. 9 rights: R. v. Odle, 2020 ONSC 3991, at para. 9, relying on R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15 and Le, at para. 29; Grant, at para. 54.
[29] There are a number of reasons why a detention could be lawful. Two of these reasons are relevant here.
[30] First, the police have broad powers to stop motor vehicles for highway regulation and safety purposes, and in some circumstances to arrest drivers of motor vehicles. In particular, s. 216(1) of the Highway Traffic Act gives the police the power to stop a vehicle, even if the stop is random and the officer lacks reasonable and probable grounds. However, a police officer is not permitted to use this power to detain for another purpose, such as a separate criminal investigation, if they do not also have legitimate road safety purposes subjectively in mind; the HTA stop cannot merely be a ruse for another purpose. If there are no legitimate road safety concerns and there is no other legal authority for the stop, then the stop is not authorized by law and is therefore a breach of that person’s s. 9 rights: R. v. Mayor, 2019 ONCA 578, at paras. 6-9.
[31] When determining if a detention pursuant to the HTA is lawful, it is incumbent upon the court to make a factual determination as to whether the officer had a road safety purpose in mind or whether they were using the HTA as a ruse to conduct a criminal investigation. In doing so, the court must consider all the circumstances, including the evidence of the officers, the evidence of the detained person, the circumstances of the stop and the police conduct during the stop: Mayor, at para. 10.
[32] Second, a person may be detained if the detention relates to a criminal investigation, independent of any apparent HTA violation. Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, gives a police officer the right to arrest a person without a warrant if, on reasonable and probable grounds, the police officer believes that person has committed or is about to commit an indicatable office. Detention without reasonable suspicion is unlawful and therefore arbitrary: Grant, at para. 55. A police officer can also briefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a recently committed or still-unfolding criminal offence and the detention is reasonably necessary in all of the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45.
[33] In R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at p. 250, the Supreme Court of Canada notes the following when considering whether a police officer has reasonable and probable grounds:
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. [Citations omitted.]
[34] Where a police officer has a valid reason to stop a motor vehicle, the presence of additional reasons to stop a vehicle does not make a detention arbitrary or unlawful: R. v. Kaddoura, 2009 BCCA 113, 267 B.C.A.C. 185, at para. 23.
[35] In the case before me, I find that Constable Gan had two lawful reasons for detaining Mr. Aujla. First, I find that he had reasonable and probable grounds to arrest Mr. Aujla in relation to the evidence gathered by Detective Flemming. Detective Flemming told Constable Gan that they had video surveillance on Mr. Aujla, who has handed what they believed to be a controlled substance, that Mr. Aujla left the building with this substance, and that he was driving with it in the front seat area. This was more than a suspicion of criminal activity. Constable Gan was advised that there was visual confirmation based on surveillance. Accordingly, I find that not only did Constable Gan subjectively believe there were grounds to arrest Mr. Aujla, but he was advised of objective evidence to support the belief that Mr. Aujla was transporting a controlled substance in the subject vehicle. This fact is what distinguishes this case from the case law provided by Mr. Aujla. In Mr. Aujla’s cases, there were no reasonable and probable grounds on which to arrest the accused, only suspicion, and the police used the HTA in order to pull the accused over and investigate their suspicions.
[36] While I find that Constable Gan’s primary reason for following Mr. Aujla in the subject vehicle was to arrest him in relation to the possession of drugs, he was also given another reason when he observed Mr. Aujla failing to signal a lane change. Section 142 of the HTA states that a driver, before moving from one lane to another shall first see that the movement can be made in safety, and if the operation of another vehicle may be affected, they must signal. Constable Gan testified that he was driving behind Mr. Aujla and saw that he changed lanes without signalling. In the transcript relied on, Constable Gan gave evidence that his observation of the lane change was sufficient to pull Mr. Aujla over. Neither party insisted that Constable Gan give viva voce evidence at this application and test this evidence on this point. Accordingly, considering the circumstances and the evidence before me, I find that Constable Gan did have a road safety purpose in mind when he pulled Mr. Aujla over, but that it in addition to his main purpose – the possession of a controlled substance. This makes the detention lawful, and not a ruse in order to pull Mr. Aujla over.
[37] In finding that Constable Gan has a lawful reason to detain Mr. Aujla, I have considered the information relayed to Constable Gan by Detective Flemming and Constable Gan’s personal observations of Mr. Aujla’s lane change. I have considered the fact that Constable Gan was directed to pull Mr. Aujla over and arrest him, irrespective of whether Mr. Aujla committed any HTA infractions. The decision to arrest had already been made before lane change without a signal was observed. Constable Gan was also instructed to release Mr. Aujla unconditionally after the arrest. This direction, again, was given before there was any HTA violation. The arrest of Mr. Aujla and his subsequent release would have occurred whether or not Mr. Aujla had failed to signal his lane change. Accordingly, I find that Mr. Aujla’s rights under s. 9 were not violated by the stop and the subsequent search after his arrest did not violate his s. 8 rights.
B. Section 10
[38] When Constable Gan first approached Mr. Aujla’s vehicle, he asked Mr. Aujla what was in the bag on the front seat. Constable Gan asked this question knowing that it was suspected that the bag contained a controlled substance. He asked this question prior to advising Mr. Aujla of the reason for his detention (other than the lane change), and prior to advising him of his rights to counsel. The Crown has conceded that this violated Mr. Aujla’s ss. 10(a) and 10(b) Charter rights.
[39] Nonetheless, it is the Crown’s position that this violation should not result in the exclusion of the evidence seized from Mr. Aujla’s car.
C. Section 24(2) Analysis
[40] Section 24(2) of the Charter is triggered where evidence is obtained in a manner that violates an accused’s Charter rights. An inquiry under s. 24(2) examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the accused’s Charter-protected interests and (iii) society’s interest in the adjudication of the case on the merits. The court’s role on a s. 24(2) application is to balance the assessments under these three inquiries and determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71.
[41] While the first two inquiries typically pull towards the exclusion of evidence, they need not pull with identical degrees of force in order to compel exclusion. Evidence can be excluded even if only one of the first two questions supports exclusion. The third line of inquiry, while not a rubber stamp deeming all evidence reliable, typically pulls towards admission. When however, the first two inquiries taken together make a strong case for exclusion, “…the third inquiry will seldom if ever tip the balance in favour of admissibility”: Le, at paras. 141-142.
[42] A temporal connection between the breach of a Charter right and the discovery of evidence is enough to engage a s. 24(2) analysis even if there is no causal connection between the breach and the evidence obtained: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 79.
[43] Any analysis under s. 24(2) should be conducted so that it takes into account the cumulative effect of the various Charter breaches: R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 62.
A. Seriousness of Breach
[44] When determining the seriousness of the breach, the court should determine whether the police engaged in misconduct from which the court should disassociate itself. On the more serious end of the spectrum of conduct from which the Court should disassociate itself is wilful or reckless disregard of Charter rights which will have a negative effect on the public confidence in the rule of law and bring the administration of justice into disrepute. On the other end of the spectrum is inadvertent or minor violations of the Charter, or an understandable mistake, which would not undermine public confidence in the rule of law: Grant, at paras. 72-74; Thompson, at para. 83.
[45] The Crown argues that this this breach falls within the middle of the spectrum of seriousness. I agree. This was not a minor or technical breach. The constable was aware of his Charter obligations, yet delayed them for a few minutes. He asked questions in violation of these rights. I cannot find though, that his disregard for Mr. Aujla’s Charter rights was wilful or flagrant. The questions were limited in nature, Mr. Aujla’s refusal to consent to the search of his grocery bag on the front seat was respected, and Mr. Aujla was advised of the other reason for his detention and his right to counsel immediately thereafter. There was at most a two-minute interaction between Constable Gan and Mr. Aujla prior to being advised of the non-HTA reason for his detention and no evidence was obtained as a result. It took Constable Gan approximately seven minutes from the time he detained Mr. Aujla, and five minutes from when he placed Mr. Aujla under arrest for possession of a controlled substance, to advise Mr. Aujla of his right to counsel. Mr. Aujla indicated he wanted to speak to counsel. Mr. Aujla was not questioned and no evidence was obtained after Mr. Aujla so indicated. He was released at 2:26 p.m., approximately 36 minutes after being advised of his right to speak to counsel.
[46] Constable Gan stated in his evidence that this was the first time he was instructed to pull someone over for something other than a HTA offence, and that he now realizes that he should not have asked any questions about the bag before advising Mr. Aujla accordingly.
[47] The Crown raised the case of Thompson, in which the accused was not advised of his right to speak to counsel for 18 minutes after his arrest and 21 minutes after he was detained. The Ontario Court of Appeal found the breach to be particularly serious because of a systemic problem within the Peel Regional Police in disregarding the constitutional obligations of those they detain. The Crown argues that the actions of Constable Gan are not reflective of the systemic problem identified in Thompson. I agree; Constable Gan fulfilled his Charter obligations within minutes of pulling Mr. Aujla over.
B. Impact of Breach
[48] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. The court must evaluate the extent to which the breach actually undermined the interests protected by the right infringed. The impact of the breach may range from fleeting and technical to profoundly intrusive. The more serious the impact of the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen, bringing the administration of justice into disrepute: Grant, at para. 76.
[49] In the case before me, the rights that were infringed were the right to be advised of the reason for detention, and the right to retain and instruct counsel without delay. These rights are understandably intertwined.
[50] As stated in R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at paras. 20-21:
[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….
[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.
[51] As stated by the Supreme Court of Canada in R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217, at para. 28:
[28] Section 10(a) of the Charter provides the right to be informed promptly of the reasons for one’s arrest or detention. The purpose of this provision is to ensure that a person “understand generally the jeopardy” in which he or she finds himself or herself. There are two reasons why the Charter lays down this requirement: first, because it would be a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for that arrest, and second, because it would be difficult to exercise the right to counsel protected by s. 10(b) in a meaningful way if one were not aware of the extent of one’s jeopardy. [Citations omitted.]
[52] Bearing in mind the purpose of s. 10, I find that the impact on Mr. Aujla’s s. 10 rights was not trivial, but at the lower end of the spectrum. He was advised of the reason for his detention and his right to speak to counsel within two minutes and seven minutes, respectively, of being stopped. While Mr. Aujla was not initially advised of the police’s belief that he had drugs in the car, at no time did he consent to the search of his vehicle before advised of his s. 10(a) rights. Between the time of his detention and being advised of his s. 10(a) rights, the police obtained no evidence. All evidence was obtained after Mr. Aujla was advised of his s. 10(a) rights and was obtained incident to a lawful arrest.
[53] As a result, Mr. Aujla was aware of his jeopardy quite soon after he was pulled over and was able to obtain legal counsel to address those charges when he was released.
C. Societal Interests
[54] Society expects that a criminal allegation will be adjudicated on its merits. In considering this final factor, the court is asked to determine whether the admission of the evidence, even if obtained due to a breach of the Charter, would assist the court in its truth-seeking function. If the breach undermines the reliability of the evidence, then the court should be more inclined to exclude it. On the other hand, the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute: Grant, at paras. 79-81.
[55] In the case before me, I do not find that the breach of Mr. Aujla’s rights under s. 10 resulted in the police obtaining any evidence. The evidence obtained was a result of the lawful detention and search of his vehicle. It is relevant and admissible, and therefore to exclude it would undermine the public’s confidence in this administration of justice.
D. Analysis of Factors
[56] In order for this court to find that the evidence should be excluded, Mr. Aujla must show that, having regard to all the circumstances, the admission of the evidence in the proceeding would bring the administration of justice into disrepute. An analysis under s. 24(2) requires an approach that balances the competing relevant factors with a view to maintaining the long-term repute of the administration of justice: R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at paras. 76, 83.
[57] I have considered the circumstances in which the evidence was obtained in this manner, and find that Mr. Aujla has failed to satisfy this Court that the admission of this evidence would bring the administration of justice into disrepute. I find that the breach of Mr. Aujla’s s. 10 rights were moderate in nature, but had a minimal impact on the rights s. 10 was designed to protect for Mr. Aujla. He made no self-incriminating statements and consented to no searches prior to being appropriately advised of the charge and his rights. The evidence which Mr. Aujla wishes to exclude was not obtained in breach of his Charter rights. It is appropriate that the evidence recovered be admitted into evidence at his trial.
VII. Conclusion
[58] Based on the foregoing, Mr. Aujla’s application is dismissed.
Fowler Byrne J.
Released: April 1, 2021
COURT FILE NO.: CRIM J(F) 156/20
DATE: 2021 04 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and -
Dilbag Aujla
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: April 1, 2021