COURT FILE NO.: 13-20
DATE: 2021-06-24
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Respondent
– and –
Ali Ismail Applicant
Counsel: Christopher Heron, for the Respondent Aaron Prevost, for the Applicant
HEARD: May 25, 2021
REASONS ON CHARTER APPLICATION
THOMAS, RSJ.:
[1] Ali Ismail (“Ismail”) is charged with seven counts all related to his alleged possession of a loaded handgun found in the backseat area of the pickup truck he was operating.
[2] It is conceded that police could stop this vehicle, detain and then arrest Ismail on an outstanding warrant for failure to attend court. The issue is whether police could then lawfully search the motor vehicle incident to his arrest and if not would admitting the gun into evidence bring the administration of justice into disrepute.
Facts
[3] On September 20, 2019 the Provincial Repeat Offender Parole Enforcement Squad (“ROPE Squad”) was investigating Ismail in relation to outstanding bench warrants for failing to attend court on charges of occupying a motor vehicle knowing there was a prohibited weapon inside, resisting a peace officer, possession of a Schedule I substance and operating a motor vehicle while impaired.
[4] On that date the ROPE team members established surveillance on a London residence where they had previously observed Ismail on an unrelated investigation. There were two motor vehicles in the driveway of the residence, one being a Chevrolet Avalanche pickup truck.
[5] In fact this was the same vehicle that Ismail was operating on June 20, 2019 when he acquired the original charges. He then failed to appear in court on July 21, 2019 and the warrants were issued.
[6] The evidence on this application came from Detective Chevers (“Chevers”) of the Ontario Provincial Police (“O.P.P.”) and Constable Hillier (“Hillier”) of the Windsor Police Service. Both were members of the ROPE Squad which was described by Chevers as a joint Forces police project to apprehend dangerous high risk offenders. There was no informed explanation for the two month gap between the warrant and arrest of this particular accused.
[7] Chevers testified that the team was holding surveillance on the residence when at 11:40 a.m. he was advised that Ismail had exited the residence with a female and had opened the pickup’s rear door and gone into the backseat briefly. He then drove the pickup from the residence with the female in the front passenger seat.
[8] In questioning, Detective Chevers said that his unit operated as a team and did not move in to arrest Ismail before he entered the vehicle as there were only two officers at that location. At the subsequent time of arrest there were five officers present who were then able to control the environment.
[9] The team followed Ismail’s vehicle for some distance in separate vehicles exchanging point positions so that they would not be detected. Chevers testified as to some erratic driving.
[10] It is unclear to me whether he viewed this driving or whether he was receiving radioed information from others. In any event, Detective Chevers described that the Ismail vehicle was changing multiple lanes without signalling and proceeded through a red light. It was the opinion of Chevers, based on his decades of surveillance experience in all major cities in Ontario, that the driving was consistent with drug and gun traffickers who were hoping to identify and evade surveillance.
[11] Eventually Ismail pulled his vehicle into a gas station and the female passenger left the vehicle and entered a variety store. Detective Chevers felt this was a good time for the team to move in and they boxed in the pickup truck. Chevers moved forward and ordered Ismail out of the truck while showing his hands. Ismail was arrested and his hands cuffed behind his back. Chevers then turned him over to the officers for transport. Ismail offered no resistance and was at all times compliant and co-operated with the officers’ demands.
[12] It was at this point that the female passenger returned, and Ismail apparently told her to take the pickup truck and go home. Detective Chevers believed this direction was consistent with there being something in the vehicle Ismail did not want located by police.
[13] It was the evidence of Detective Chevers that he then directed Constable Hillier to search the vehicle incident to the arrest. He was clear that he used those exact words. He said that his 26 years of experience convinced him that the entire vehicle could be searched to secure evidence related to the crime for which the accused was being arrested. In this case for evidence related to the original charges. He learned from Hillier that a handgun had been found in the backseat area of the pickup truck. It was Detective Chevers’ opinion that there was no need to obtain a warrant to search the vehicle.
[14] Constable Hillier, although part of the team, did not encounter the pickup truck until it was already boxed in by police vehicles. At that point Detective Chevers was arresting Ismail and the female passenger was already in the variety store. Hillier had learned through radio communications that Ismail had placed a package in the backseat area. He had also heard about what he described as evasive driving consistent, he felt, with the accused attempting to spot police surveillance.
[15] Constable Hillier recalls reviewing CPIC and knowing that Ismail was wanted for firearms and other offences, and that this vehicle was related to the previous offences. He is not sure if he knew there was a failure to attend court charge. He was aware that the female passenger, now out of the store, was about 15 feet behind the vehicle waiting. Hillier testified that he received no direction to search from anyone and that he needed none. It was his belief, based on all he knew, that there was “possibly” or “likely” a firearm in the vehicle and that he could search the vehicle incident to arrest.
[16] Constable Hillier initially testified that he found a loaded handgun on the floor in the backseat area of the pickup truck. The gun was wrapped in brown paper towel. In cross-examination it became clear the gun was underneath the backseat of the pickup truck.
[17] Constable Hillier said he did not know exactly the reason for Chevers’ arrest of Ismail and that he only searched because there were firearms offences related to this motor vehicle. He did not believe a warrant was necessary.
[18] When Hillier commenced the search, the accused was cuffed and away from the vehicle. When Hillier located the firearm the passenger was also arrested.
Search Incident to Arrest
[19] In R. v. Caslake, [1998] 1 S.C.R. 51, Chief Justice Lamer at paras. 17-23 spoke about the scope and limits to a lawful search incident to arrest:
17 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy. See the Law Reform Commission of Canada, Report 24, Search and Seizure (1984), at p. 36. (For a more in-depth discussion, also see Working Paper 30, Police Powers -- Search and Seizure in Criminal Law Enforcement (1983), at p. 160.) This means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.
18 This position has been taken by a number of lower courts, and particularly well articulated by Doherty J.A. In Lim (No. 2), supra, at p. 146, he stated:
I begin with a determination of whether the search was truly an incident of the arrest. If it is not, the common law power to search as an incident of arrest cannot be relied upon. . . .
In considering whether a search is in fact an incident of arrest, one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search.
Similarly, in R. v. Belnavis (1996), [107 C.C.C. (3d) 195], at p. 213, Doherty J.A. held that an arrest for outstanding traffic fines did not authorize the search of the trunk of a vehicle, stating “[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest.” This decision was affirmed by this Court ([1997] 3 S.C.R. 341), although Cory J., who wrote for the majority, did not address this issue.
19 As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial. The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.
20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.
21 In my view, it would be contrary to the spirit of the Charter’s s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer’s belief that he or she has a legitimate reason to search is reasonable in the circumstances.
22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).
23 As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.
[20] Justice Binnie considered the Caslake analysis albeit in a more condensed fashion at para. 49 of R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851:
[49] A search is properly incidental where the police attempt to “achieve some valid purpose connected to the arrest” including “ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial”: Caslake, at para. 19 (emphasis added); R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 74-75. The appellants were under arrest for possession of the proceeds of crime. It was clearly “incidental” to this arrest to search the vehicle in which the cash was found for evidence of the criminal activity to which the money related: R. v. Rao (1984), [12 C.C.C. (3d) 97 (Ont. C.A.)], and Cloutier v. Langlois, [1990] 1 S.C.R. 158. The officers’ belief that this purpose would be served by a search of the trailer (given their previous roadside observation of the discrepancy in the dimensions) was itself reasonable. The important consideration is the link between the location and purpose of the search and the grounds for the arrest.
[21] Both Caslake and Nolet considered searches of motor vehicles incident to arrest. In Caslake, the Court found that an alleged inventory search of a vehicle impounded hours before violated s. 8 but admitted the cocaine seized after considering s. 24(2). In Nolet, a truck was stopped, and a statutorily authorized search was conducted under the Saskatchewan Highways and Traffic Act. A search of the cab of the truck located bundles of cash and supported an arrest for possession of proceeds of crime and then a further search incident to arrest that located marijuana.
[22] Vehicle stops often present fluid situations. “It is necessary for a court to proceed step by step through the interactions … from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority …” (Nolet, para. 4).
[23] The Supreme Court of Canada revisited search incident to arrest in R. v. Fearon, 2014 SCC 77. Fearon considered the search of a cell phone upon arrest of the accused for a violent robbery. The scope of lawful search incident to arrest was considered at paras. 13, 75 and 76 set out below:
[13] This question about the scope of the power to search incident to arrest cannot be answered in too categorical a fashion. As Lamer C.J. explained in Caslake, the permissible scope of a search incident to arrest turns on several different aspects of the search including the nature of items seized, the place of search and the time of search in relation to the time of arrest: paras. 15-16. Each of these aspects may engage distinct considerations that cannot be addressed in very general terms. Moreover, arrests relate to many different crimes and are made in many different circumstances. It follows that the permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest. The courts will rarely be able to establish any categorical limit applicable to all arrests and all purposes incidental to them.
[75] The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence. Three modifications to the general rules would give effect to this approach.
[76] First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. …
Positions of the Parties
Applicant
[24] The applicant Ismail argues that this was a warrantless search and therefore presumptively unreasonable. Further it was not authorized by law and could not satisfy any of the valid purposes for a search incident to arrest described in Caslake.
[25] The applicant suggests that this case is not unlike the circumstances considered in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 in that without grounds to believe an offence had been committed, the officer acted on a hunch and searched the vehicle finding 35 kg of cocaine. The Court went on to exclude the evidence due to a blatant disrespect for Charter rights and the officer’s misleading evidence at trial.
[26] Here the applicant maintains the breach was serious. These were experienced officers who chose to arrest Ismail in his vehicle so that they could search it without any legal ability to do so. Although the location of the search was a motor vehicle it was a significant intrusion and the firearm must be excluded or the administration of justice would be brought into disrepute.
Respondent
[27] The Crown relies upon Caslake and R. v. Pearson, 2017 ONCA 389 and maintains that the vehicle could be searched as it was rationally related to the reason for the arrest.
[28] The Crown suggests that the information that Ismail placed something in the backseat, the erratic driving and the fact that this was the same vehicle involved in the original charge of occupying a motor vehicle knowing there was a prohibited weapon inside, are all factors contributing to the circumstances of the search. (R. v. Canary, [2018] ONCA 304, para. 25). They may be relied upon to assess the reasonableness as it relates to the first and second purposes articulated in Caslake.
[29] The Crown offers R. v. Robinson, 2016 ONCA 402 at para. 40 as authority for the proposition that “reasonable grounds to search can be based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken.” The Crown argues that, in considering all the circumstances known to Hillier, it was reasonable for him to believe he could search the vehicle upon Ismail’s arrest.
[30] Finally the Crown maintains there was no bad faith on the part of the officers, there was a lessened expectation of privacy in the motor vehicle and the evidence was reliable and essential to the Crown’s case, all leading to the conclusion that even if a breach has been found the evidence must be admitted.
Section 8 Analysis
[31] The analysis here can be focussed as it is conceded by all counsel that the applicant Ismail had a privacy interest in the contents of the Avalanche pickup truck he was driving and further that the detention and arrest were lawful arising from his failure to attend court and the related warrant for his arrest.
[32] The issue is whether the search by Constable Hillier was truly incidental to the arrest in the sense that it was necessary to discover or preserve evidence connected to the arrest, protect safety or protect against escape. (Caslake, paras. 14, 19, 20; Canary, para. 33).
[33] It is important to recognize the disconnect between the authorities relied upon by police and cited by the Crown and the reality of the reasons for the arrest of Ismail.
[34] In R. v. Belnavis, [1997] 3 S.C.R. 341, police stopped the vehicle for speeding and had the right to look for documents in the vehicle pertaining to its ownership and registration in the context of that investigation. The officer was confronted with garbage bags full of new clothes still bearing their price tags. The Supreme Court of Canada was of the view that it was then reasonable to conclude the clothes were stolen which provided a lawful reason to search the balance of the vehicle. (Belnavis, paras. 27-30).
[35] In Canary an experienced drug investigator observed the presence of unlabelled bins of the type regularly used in chemical drug labs. He saw a man emerge from the vehicle carrying a brick-like package in a plastic bag looking similar to packaged cash related to drug deals. The officer could in fact see a $20 bill through the bag. The accused was arrested for drug trafficking and the Court found the vehicle appropriately searched incident to that arrest.
[36] In Nolet the Court found that officers had statutory authority under the Saskatchewan Highways and Traffic Act to search for further evidence of offences under that Act including improper log entries and a lack of registration for commercial use in that Province. The officer opened a bag when he felt paper inside which might have been evidence related to his regulatory search. The bag contained $115,000 in cash. The driver was arrested for proceeds of crime and a lawful search of the trailer ensued locating 392 pounds of marijuana.
[37] In Robinson police found firearms and drugs in a storage locker rented by the accused’s girlfriend. One of the investigators was to apply for a search warrant for the apartment of the accused’s girlfriend. A second officer believed the warrant would authorize a search for firearms but that was not the case. The second officer arrested the accused on the strength of the grounds he reasonably believed were relied upon to gain the warrant. The accused possessed the apartment key and the second officer proceeded to search the apartment for firearms even though the warrant limited the search to drugs. The Court nonetheless held the officer’s mistaken belief about the warrant provided reasonable grounds to believe that firearms would be found in the apartment. The accused was sufficiently connected to the apartment. The arrest was found to be lawful, the detention not arbitrary and the search reasonable.
[38] The difference in all of the cases cited above and the matter before me is that the searches were lawful because they related to evidence of the offences for which the accused was arrested. They were active ongoing investigations. It is important to remember that Ismail was arrested for his failure to attend court. He had been previously arrested and released on the weapons charges related to this vehicle.
[39] There are no ascertainable limits on the scope of this common-law power to search and so “it is therefore the courts’ responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals’ right to privacy”. (Caslake, para. 15).
22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).
(Caslake, para. 22).
[40] By the time Constable Hillier conducted the search of the vehicle Ismail had been arrested, cuffed and removed from the immediate location of the Avalanche pickup truck for transport. The female passenger was away from the vehicle. Ismail had been co-operative and had offered no resistance. If Detective Chevers or Constable Hillier felt there were reasonable grounds to believe there was a gun in the vehicle, they had only to secure it and obtain a warrant. They clearly either felt it was unnecessary or were concerned about whether they had the grounds to obtain it.
[41] As the evidence came to me it is clear I did not have direct evidence of Ismail placing a package in the rear seat area of his vehicle. I was also unclear that with respect to the suspicious driving whether either of the officers who testified had anything more than the knowledge obtained from others over the police radios. While they are able to form grounds on that basis and it is appropriate for me to receive this hearsay in that context, it makes it difficult to assess the legitimacy of those factors. For example, I am skeptical about the conclusion reached by the officers that Ismail was driving like a drug or gun trafficker. There are other potential explanations for erratic driving including the fact that he had a warrant for his arrest since he had failed to attend court.
[42] It was clearly Hillier’s belief that he could search this vehicle because it was connected to the original offences and a gun had been located in the truck before. In the language of para. 22 of Caslake there was no “reasonable prospect of securing evidence of the offence for which the accused was being arrested.” The accused was being arrested for his failure to attend court. There were no officer safety issues at that point. There was no evidence related to the failure to attend court that could be gained from the vehicle. There was no chance Ismail would escape. The search of the vehicle amounted to a breach of s. 8 of the Charter. It was warrantless and not authorized by law.
Section 24(2) of the Charter
[43] Having found a breach of Ismail’s s. 8 right when police searched the rear seat area of his pickup truck, I must now turn to the Grant analysis under s. 24(2). (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353).
[44] At para. 71 of Grant the Court set out its then fresh direction on the impact of s. 24(2):
[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. ...
The Seriousness of the Breach
[45] In his evidence, Detective Chevers emphasized his 26 years of police experience which included significant experience in the surveillance and arrest of dangerous criminals. There was no doubt in his mind that he could direct the search of this vehicle pursuant to the common law power of search incident to arrest. His evidence was that he did just that. Constable Hillier, while not acknowledging any direction from Chevers, was committed to the same reasoning. Neither turned their mind to the reason for the arrest or if they did, chose not to see the importance of it.
[46] In reviewing all the circumstances here it is tempting to conclude that this team of officers was intent from the beginning to search Ismail’s vehicle. The delay in the arrest; the questionable evidence of the purpose for his driving; the reluctance to admit that the gun was under the backseat; the conclusion that Ismail wanted his passenger to drive away before the gun was found, and the unwavering and insistent commitment to the lawfulness of their search power all give me pause. I cannot however conclude this was necessarily a retrospective concoction of the evidence to ground their search.
[47] It is clear however that the officers felt the arrest provided an opportunity to see if Ismail was committing further offences. As Hillier admitted, he was going to look for a gun. The power to search incident to arrest was fully delineated by the Supreme Court of Canada’s reasoning in Cloutier in 1990 and Caslake in 1998. The officers here exhibited an ignorance of the limitations of this long-standing common law power. This was not an inadvertent or technical breach. This illegal search was conducted by a specialized experienced joint Forces team and one is left to wonder how many times it has happened before where nothing was located, or their actions were not challenged. (Grant, para. 75).
[48] Police knowledge of the law was considered by the Supreme Court of Canada at para. 149 of R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34. Le considered the conduct of police entering a private backyard:
[149] The circumstances of Mr. Le’s detention did not take the police into uncharted legal waters or otherwise raise a novel issue about the constitutionality of their actions. Indeed, the authority of police to detain individuals is governed by settled jurisprudence from this Court, as is the (in)capacity of police to enter a private residence without prior judicial authorization or some exigent circumstance. And, as this Court has previously cautioned, “[w]hile police are not expected to engage in judicial refection [sic] on conflicting precedents, they are rightly expected to know what the law is” (Grant, at para. 133). We see no good reason to dilute the force of these authorities where the police have disregarded them in the course of effecting an unconstitutional detention.
[49] In ultimately assessing the seriousness of the police conduct “the court’s task … is to situate that conduct on a scale of culpability with inadvertent or minor violations at one end and wilful or reckless disregard of Charter rights at the other.” (R. v. Marakah, 2017 SCC 59, [2017] S.C.J. No. 59 at para. 61; Grant, para. 74).
[50] In this matter there was an absence of good faith on the part of the police. At best this was an uninformed intrusion conducted with a concerning arrogance. The lawfulness of Ismail’s arrest does not diminish the seriousness of the Charter breach. (Marakah, para. 63). Here the actions of the police fall toward the more serious end of the spectrum and strongly favour exclusion.
Impact on the Accused
[51] This inquiry focusses on the seriousness of the impact of the Charter breach on the accused’s Charter-protected interests. It is necessary to examine the interests engaged by the infringed right and the degree to which the violation impacted that interest. (Grant, para. 77).
[52] Ismail had a reasonable expectation of privacy in his motor vehicle albeit a reduced one. (Harrison, para. 30). While he should have had every expectation that he would be arrested, cuffed and taken to jail on the strength of the fail to appear warrant, there should have been no expectation that his vehicle would be searched in these circumstances. The lowered expectation of privacy in the contents of a motor vehicle derives from the fact that vehicular traffic is highly regulated and there is a need for surveillance and inspection to ensure public safety. (R. v. Wise, [1992] 1 S.C.R. 527 at p. 534). The police conduct related to Ismail’s vehicle was an investigative search having nothing to do with the safe operation of the vehicle and nothing to do with the reasons for his arrest. Even when a vehicle is randomly stopped to ensure public safety, it cannot lead to “unfounded general inquisition or unreasonable search.” (R. v. Mellenthin, [1992] 3 S.C.R. 615, para. 15).
[53] While the detention was justified, the nature of the search must be weighed against the absence of any reasonable basis for justification. Unless the police secured the vehicle and obtained a warrant, Ismail had every right to believe the privacy of his vehicle would be respected and that his female passenger could drive it away. Here there was not only an absence of reasonable grounds, there were no grounds to search the vehicle. While not on the most serious end of the spectrum the intrusion was nonetheless significant and favours exclusion.
Society’s Interest in Adjudication on the Merits
[54] The handgun located in Ismail’s vehicle was reliable evidence. It is also critical evidence in this prosecution. Possession of a loaded handgun in a vehicle is a serious offence. However, the seriousness of the offence must not be allowed to overwhelm the protection of individual freedoms. (Harrison, para. 40). “The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24(2).” (Harrison, para. 41). This line of inquiry however favours admission.
[55] The impact of firearms, particularly handguns, cannot be ignored in considering the potential of a search exclusion but as the Court of Appeal said in R. v. Omar, 2018 ONCA 975 at para 56: “…there is no ‘firearms exception’ …”. The test for considering whether to exclude evidence obtained contrary to the Charter remains the same.
[56] Lauwers J.A. in R. v. Le, 2018 ONCA 56 at para. 151 reflected in his dissent on the tensions being considered in the matter before me:
[151] What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct. …
[57] The end cannot justify the means here. The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, para. 102). While I accept that excluding this dangerous weapon will likely result in the acquittal of the accused “… we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2).” (R. v. Feeney, [1997] 2 S.C.R. 13, para. 82).
[58] On balance I find the long-term repute of the administration of justice would be adversely affected if I were to admit the handgun found in Ismail’s vehicle and it will be excluded from the evidence to be received in this trial.
Regional Senior Justice B. G. Thomas
Released: June 24, 2021.
ONTARIO SUPERIOR COURT OF JUSTICE
Her Majesty the Queen – and – Ali Ismail
REASONS ON CHARTER APPLICATION
THOMAS, RSJ.
Released: June 24, 2021.