COURT FILE NO.: CR-19-9211
DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GREGORY SAPPLETON
Defendant/Applicant
Michael Ventola, for the Crown
Carlos Rippell, for the Defendant/Applicant
HEARD: November 17-19, 2020
REASONS FOR DECISION
DE SA J.:
Overview
[1] Gregory Sappleton, the Applicant, has brought an application pursuant to sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The Applicant seeks exclusion of evidence, namely a firearm, found in his vehicle.
[2] The Applicant’s vehicle was stopped after police saw him enter into a crosswalk shortly before the stoplight turned green. After arresting the Applicant on unrelated charges, the investigating officers searched the Applicant’s vehicle relying on section s. 12(3) of the Cannabis Control Act (CCA). The search related to a small amount of marijuana found in a satchel on the Applicant’s person.
[3] The Applicant takes the position that the initial vehicle stop was racially motivated and in violation of his s. 9 rights.
[4] The Applicant also argues that the police violated the Applicants s. 10(b) rights by asking him whether he had anything in his car and also violated his s. 8 rights by searching his vehicle.
[5] I disagree that the initial stop was arbitrary or racially motivated. However, I do agree that some of the initial questioning violated the Applicant’s 10(b) rights. I also agree that the search of the Applicant’s vehicle was unlawful and in violation of the Applicant’s s. 8 rights.
[6] Having regard to the serious nature of the violations, the firearm is excluded under s. 24(2) of the Charter.
[7] These are the reasons for my decision.
Summary of Facts
[8] On October 17, 2019, PC Caleb Allison pulled over the Applicant for a Highway Traffic Act infraction. Officer Allison observed the Applicant’s vehicle enter into an intersection before the light turned green. As the Applicant turned left at the light and entered into the parking lot of 24 Woodstream Boulevard, Officer Allison turned on his lights to stop the vehicle.
[9] Officer Allison exited his cruiser and approached the Applicant’s vehicle on the driver’s side. Officer Allison requested the Applicant’s license, ownership and insurance.
[10] After running checks on his license, Officer Allison discovered that the Applicant had an outstanding charge of assault and was on a recognizance with conditions that prohibited him from being within 500 metres of 24 Woodstream Boulevard. The Applicant was in breach of the terms of his recognizance by attending at the address.
[11] During the same checks, Officer Allison also discovered a Special Interest Police notification (SIP) pertaining to the Applicant. The notification indicated that the Applicant was the subject of a Guns and Gangs investigation and was believed to be in possession of a firearm.
[12] Officer Allison called dispatch asking if the arrest would interfere with any ongoing investigations. Officer Allison also called for backup for officer safety as he made the decision to arrest the Applicant for the breach of recognizance.
[13] Shortly after Officer Allison made the call, Officer Justin Carosi arrived on scene. PC Allison informed Officer Carosi of the circumstances, and the concern related to a firearm. With the assistance of Officer Carosi, Officer Allison approached the driver’s side of the Applicant’s vehicle and asked the Applicant to exit the vehicle. As the Applicant was exiting the vehicle, Officer Allison advised the Applicant he was being arrested for the breach of recognizance.
[14] After exiting the vehicle, both officers conducted a pat down search of the Applicant. They also asked the Applicant if he had any weapons on his person or in the vehicle.
[15] The Applicant was found to have a satchel containing cannabis in his possession. The marijuana in the satchel was tied in a plastic baggie, and there was additional marijuana in a piece of cellophane wrap. The evidence is unclear as to whether the satchel was zipped closed. Officer Allison asked the Applicant if he had any other drugs in the car. The Applicant stated just the weed and some tobacco.
[16] PC Allison testified that after observing the marijuana in the satchel, he made the decision to search the vehicle. Officer Allison testified that given that the marijuana was easily accessible to the driver, he was authorized to search the vehicle pursuant to the Cannabis Control Act (CCA).
[17] PC Allison placed the Applicant in his police cruiser and advised the Applicant that he intended to search the Applicant’s vehicle pursuant to the CCA. PC Allison again asked if the Applicant had anything he should know about in the vehicle. PC Allison then gave the Applicant his rights to counsel. The Applicant stated that he would like to speak with his lawyer.
[18] PC Allison and PC Carosi did a thorough search of the vehicle. Both officers testified that they were searching for additional marijuana stored in contravention of the CCA. PC Allison acknowledged that the SIP relating to the firearm increased his interest in doing a thorough search of the vehicle. However, PC Allison testified that he did not change the manner of his search because of the possible presence of a firearm. According to Officer Allison, the search for additional marijuana contemplated a search of the same locations.
[19] The officers conducted a thorough search of all areas of the vehicle including the back seats, the glove box and the trunk. During the course of his search of the vehicle, PC Allison discovered a Glock 9 mm lodged behind the glove box of the car. Officer Allison arrested the Applicant for possession of a firearm.
[20] A female had come around the vehicle (Sinead Brown) observing the Applicant’s arrest from her apartment. She was the Applicant’s girlfriend and she asked if she could take the vehicle. The Applicant agreed to this, and the vehicle was turned over to Ms. Brown by the officers after the search was complete.
Position of the Parties
[21] The Applicant takes the position that the initial detention was arbitrary. The Applicant submits that the initial vehicle stop was racially motivated and in violation of his s. 9 rights.
[22] The Applicant also argues that the police violated the Applicant’s s. 10(b) rights by asking him whether he had anything in his car and also violated his s. 8 rights by searching the vehicle in the manner that they did. The Applicant takes the position that the various breaches justify exclusion of the firearm pursuant to s. 24(2) of the Charter.
[23] In response, the Crown submits that the stop of the Applicant’s vehicle was lawful. The Crown argues that the question regarding weapons in the vehicle was authorized to ensure officer safety. Finally, the Crown argues that the search of the vehicle was lawful and authorized by the Cannabis Control Act.
Analysis
1. Was The Initial Stop an Arbitrary Detention?
[24] The Applicant is a black man who was 33 years-old at the time of his arrest. The Applicant submits that the decision to stop his vehicle was tainted by racial profiling, and the stop of his vehicle was a violation of the protection against arbitrary detention afforded to him by s. 9 of the Charter.
[25] Engaging in racial profiling is improper even when the police conduct can be justified apart from resorting to negative stereotyping based on race. If the race of the Applicant was a factor in the officer’s grounds to detain, the detention will be arbitrary as the purpose of the detention will be deemed improper. Brown v. Durham Regional Police Force 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274; R. v. Richards, [1990] O.J. No. 1420.
[26] In this case, the Applicant points to the circumstances of the Applicant’s detention as the evidentiary basis for his claim of racial profiling. The Applicant was pulled over for a very minimal infraction (entering an intersection on a red light). According to the Applicant, the minimal nature of this infraction itself is strong evidence indicating the decision to stop the Applicant was not based solely on his driving. R. v. Brown, 2003 CanLII 52142 (ON CA), [2003] O.J. No. 1251, at para. 8. The Applicant asks this court to conclude that Officer Allison must have observed the Applicant and decided to stop him because of his race.
[27] In this case, the Highway Traffic Act offence and subsequent traffic stop are captured on video. The Applicant cannot be seen on the In-Car Camera video recorded from a camera located on the dash of PC Allison’s cruiser. PC Allison testified that he never saw the occupant of the vehicle until after the stop. While the officer acknowledged in cross-examination that he may have been passed by the vehicle at some point, he maintained that he did not know the occupant’s appearance at the time of the stop. I believe him.
[28] I find that there is no s. 9 violation. The officer was entitled to stop the Applicant in the manner that he did.
2. Was the Question pertaining to weapons a violation of the Applicant’s s. 10(b) rights?
[29] The Applicant argues that the police violated the Applicant’s s. 10(b) rights by asking him whether he had anything in his car. As the Applicant was exiting the vehicle, PC Carosi asked if the Applicant had any weapons on his person or in his car. PC Allison also asked if he had any other drugs in the car. The Applicant points out that the questioning preceded the provision of the rights to counsel. The Applicant submits that the unlawful questioning produced the marijuana which led to the search of his vehicle and ultimately the discovery of the firearm.
[30] The right to counsel guaranteed by s. 10(b) of the Charter arises upon arrest or detention. Once a person has been detained or arrested, the police must comply with the informational and implementation components of s. 10(b); see: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 17.
[31] A detainee or arrestee must be advised of the right to counsel, including the availability of legal aid, and further that the detainee or arrestee be permitted an opportunity to contact counsel of choice; see: R. v. Taylor, 2014 SCC 50. Subject to concerns about officer or public safety, the police are required to immediately advise a detainee or arrestee of the right to counsel; see: R. v. Suberu, 2009 SCC 33, at para. 41.
[32] The Crown argues that the questioning was lawful and authorized for officer safety. The Applicant was being arrested in relation to the breach of recognizance. The SIP indicated that the Applicant was possibly in possession of a firearm. There was a meaningful risk that the Applicant would be in possession of a firearm. PC Allison explained that the questioning was directed at ensuring officer safety.
[33] In R. v. MacDonald, [2014] 1 SCR 37, 2014 SCC 3, the Supreme Court addressed the limits to the “safety search” authority. The Court explained that the police authority to conduct a safety search was limited to instances where there was an imminent risk to the safety of the officer. It was not to be used or abused for other (investigative) purposes. At para. 43 the court explained:
Indeed, the execution of the police duty to protect life and safety lies at the very core of the existence of the police as a social entity. Further, the law will justify the exercise of this police power only if exercising it is reasonably necessary in order for the police to conduct the safety search in question. As I explained above, it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad. In so doing, it ensures that the law itself is reasonable and can be reasonably delineated. [Emphasis added.]
See also R. v. Godoy, [1999] 1 SCR 311, 1999 CanLII 709 (SCC).
[34] I agree that PC Allison was entitled to ask the Applicant whether he was in possession of weapons on his person. Such questioning is no different than conducting a pat down search on the Applicant and was reasonable in the circumstances.
[35] However, given that the Applicant had already been removed from the vehicle, in my view, it became unnecessary for the officers to make inquiries regarding the presence of any weapons in the vehicle. Any weapons in the vehicle would not give rise to safety concerns given that the Applicant had already been placed under arrest and removed from the vehicle.
[36] This is not to say that in an appropriate case, the police cannot question a person under arrest regarding the presence of weapons in a vehicle where safety concerns are engaged: R. v. Godoy, supra. Clearly such questioning is authorized for officer safety purposes. The police would also have the authority to search the vehicle incident to arrest provided the search was truly incidental. R. v. Caslake, [1998] 1 SCR 51, 1998 CanLII 838 (SCC).[^1]
[37] In this case, however, I agree with the Applicant, that this questioning seems to be more of a pretext to further investigate the information gleaned from the SIP regarding a possible firearm in the vehicle. In the circumstances, the officer should have cautioned the Applicant in advance of the questioning.
[38] After placing the Applicant in the police cruiser, PC Allison again asked the Applicant if he had anything of concern in the vehicle as he intended to search it. Again, in my view, this questioning violated the Applicant’s s. 10(b) rights.
[39] There was no imminent threat to the officer’s safety at the time of the questions. Moreover, the officer had already made the decision to search the vehicle. The questions were not directed at determining whether a search of the vehicle for marijuana was justified. Had the questions pertained to the state of marijuana stored in the vehicle, they would have been warranted. In my view, the questions here did not have that purpose. Rather, they were directed at questioning the accused regarding the firearm believed to be in the vehicle.
3. Was the Marijuana Stored in Compliance with the Regulations?
[40] Section 12 of the Cannabis Control Act (CCA) reads as follows:
Transporting cannabis 12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat. Exception (2) Subsection(1) does not apply with respect to cannabis that, (a) is in its original packaging and has not been opened; or (b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. Search of vehicle or boat (3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (I) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
[41] The language of s. 12 of the CCA closely resembles s. 32 of the Liquor Licence Act (LLA). Section 32 of the LLA reads as follows:
Conveying liquor in vehicle, boat 32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. [R.S.O. 1990, C. L.]9, S. 32 (])](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l9/latest/rso-1990-c-l9.html). Exception (2) Subsection (1) does not apply if the liquor in the vehicle, (a) is in a container that is unopened and the seal unbroken; or (b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. (5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
[42] Subsection 12 (1) of the Cannabis Control Act (CCA) provides for an absolute prohibition on the possession of marijuana in a vehicle. Subsection (2) outlines the exceptions to this prohibition, namely: 1) when the cannabis is in its original packaging and has not been opened; and 2) is packed in baggage that is fastened close or is not otherwise readily available to any person in the vehicle.
[43] The relevant exception in this case is s. 12(b) of the CCA. Section 12(b) of the CCA exempts marijuana in a vehicle that:
is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.
[44] The Applicant takes the position that the CCA prohibits the transport of marijuana that is left in the open or otherwise unsealed. The Applicant submits that, in this case, the marijuana was stored in compliance with the regulations as it was in a satchel that was “fastened close”.
[45] The Applicant points to various cases under the LLA to establish that observations of alcohol within the proximity of the driver are not sufficient to support a search of a vehicle.[^2] The Applicant submits that provided that the marijuana is in a bag which is “fastened close” as in this case, the storage is compliant with 12(b) of the regulations.
[46] I disagree with the Applicant that proximity to the driver and accessibility is not a relevant factor to be considered. The purpose of the regulation is to limit accessibility/availability of the marijuana to occupants of the vehicle. Marijuana, like alcohol, should be properly stored away while being transported.
[47] In the cases referenced by the defence, the bottle of liquor was still sealed which is analogous to the marijuana being sealed in its original packaging. To suggest that a driver can simply place unsealed marijuana or other edibles containing marijuana in a satchel and carry them with him on his person seems problematic to me.
[48] I agree with the Crown that “packed in baggage that is fastened closed” should be read together with “or is not otherwise readily available to any person in the vehicle or boat.” They are not completely distinct exceptions. If they were, they would have been listed separately like the exception in s. 12(a) of the CCA. Section 12(b) contemplates that the marijuana will be stored away and not be readily available to the driver or other occupants of the vehicle.
[49] In R v. Burke, 2020 ONCJ 516, the Court explained at paras. 37-40:
Given the identical intent of the Liquor Licence Act and the Cannabis Control Act, there is no reason to believe that the legislature intended to make accessing cannabis easier than accessing liquor. The exact phrase of “packed in baggage that is fastened closed”, indicates the legislature intended, for cannabis as it did for alcohol, to prevent easy access, while having care or control of a motor vehicle. [Emphasis added.]
[50] Obviously, whether the marijuana is properly stored (not readily available) is very much a contextual assessment. This assessment is informed by the underlying purposes of the regulations. The regulations are directed at road safety and preventing the risk of marijuana use by the driver or other occupants of the vehicle while driving. Society requires and expects protection from intoxicated and dangerous drivers. R v. Burke, 2020 ONCJ 516: R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 534: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at paras. 38-39. See R. v. F., 2015 ONSC 3068. Accessibility/availability of the marijuana for use will clearly be a relevant consideration.
[51] In this case, the evidence is not clear that the satchel was “fastened close”. Even if the satchel was zipped closed, the marijuana was still “readily available” and easily accessible to the Applicant. This is particularly concerning as the Applicant was the driver of the vehicle. In the circumstances, it was reasonable for the officer to conclude that the marijuana was not being carried in compliance with the regulations and to seize it.
4. Was the search of the vehicle lawful?
[52] According to the Applicant, the CCA only applies to a driver in “care and control” of a vehicle. In this case, the Applicant was already in police custody and no longer in “care and control” of the vehicle. Accordingly, the Applicant submits that there was no ongoing police authority to search the vehicle.
[53] The Applicant also argues that the police completely disregarded the limits of their search authority under the CCA. Even if the marijuana was stored contrary to the provisions of the CCA, the Applicant argues that there was no basis to believe additional marijuana would be stored in the trunk or other locations in the vehicle. As such, after seizing the marijuana from the Applicant, a further search of the vehicle was not authorized.
[54] I do not agree that the Applicant’s arrest would somehow vitiate the police authority to search the vehicle. The police are authorized to search the driver and occupants when there are reasonable grounds to believe that marijuana is being transported in contravention of s. 12.
[55] The Applicant’s suggestion that the authority to search somehow lapses upon arrest is like saying that police cannot issue a ticket to a driver for a HTA infraction once a vehicle is parked. Indeed, the search authority permits for the seizure of the items. The fact that the driver was also arrested and placed in a cruiser does not nullify the authority to search.
[56] The Applicant’s reliance on the “care and control” jurisprudence in the context of a s. 254(2) breath demand is misplaced. These authorities relate to roadside screening measures which suspend the s. 10(b) rights of the driver and necessarily have temporal limits. In my view, these cases have no application in this context.
[57] That said, I do agree with the defence that the police must possess the requisite grounds to believe that marijuana is stored in contravention of the regulations in order to search the vehicle. Again, the police are only authorized to search a vehicle/person for marijuana being transported in contravention of the regulations if they possess the requisite grounds.
[58] Furthermore, the exercise of this search power is circumscribed by that which is necessary for the carrying out of the specific regulatory purpose. It must be exercised reasonably, having regard to the nature of the privacy interests involved. As explained in Orbanski at para. 27:
The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35). [Emphasis added.]
See also R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at p. 35.
[59] Similar comments were made by the Supreme Court in R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615 (S.C.C.) regarding the limits of regulatory interventions. Police pulled over the accused for a routine HTA stop. The initial detention was for motor vehicle-related law enforcement, which was found constitutional. The court emphasized, however, that this HTA authority could not be used for other purposes.
Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [Emphasis added.]
[60] Police conduct does not become invalid merely because other objectives (investigating crime) may also be in play. In other words, the fact that police were alive to the fact that a firearm may have been located during a search does not invalidate an otherwise lawful search. As explained in R. v. Nolet, [2010] 1 SCR 851, 2010 SCC 24, at para. 43:
“the expectation that the search might also uncover drugs” (p. 335) did not convert a Charter-compliant regulatory search into a Charter violation: R. v. Sewell, 2003 SKCA 52, 175 C.C.C. (3d) 242.
[61] However, statutory authority cannot be used as pretext to improperly interfere with Charter rights. Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. R. v. Nolet, supra, at para. 39. As explained in R. v. Caslake, [1998] 1 SCR 51, 1998 CanLII 838 (SCC) at para. 27:
Naturally, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the rule of law.
[62] In this case, the officers did not have reasonable grounds to believe that any additional marijuana was stored in the vehicle in contravention of the CCA. I also agree with defence that there was no basis for officers to search the trunk or the various other locations of the vehicle in the manner that they did.
[63] Officer Allison took the discovery of improperly stored marijuana in the satchel as a basis to conduct a full search of the entire vehicle and the trunk. The authority to search is derived from the existence of reasonable grounds. Finding marijuana is not an open licence to unreasonably interfere with the Applicant’s Charter rights by searching his entire vehicle.
[64] Indeed, if the police had grounds to believe that marijuana was still being stored in contravention of the Act, a reasonable search for the marijuana would have been warranted. Additional questioning regarding the presence of marijuana and the location and/or manner it was stored would have also been a reasonable exercise of police authority. In some cases, questioning of this nature may obviate the need for an extensive search.
[65] However, that was not the police approach here. In my view, the search was an unreasonable one and exceeded the permissible scope of the authority granted under s. 12 of the CCA.
5. Should the Evidence be excluded under [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[66] The Supreme Court elucidated the three-branch formulation of the s. 24(2) analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. In Grant at para. 71, the Court summarized the framework for determining whether the administration of justice would be placed into disrepute if the evidence was to be excluded:
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.
[67] The onus is on the accused to establish on a balance of probabilities that admission of the evidence would bring the administration of justice into disrepute.
[68] In this case, the seriousness of the police misconduct is at the higher end of the spectrum. This is not a case of an inadvertent or minor error. On the facts before me, it seems clear that the police were intent on searching the vehicle for the firearm from the moment Officer Allison observed the SIP. It is for this reason that Officer Allison was questioning the Applicant regarding the contents of his vehicle shortly after removing him from the car.
[69] The nature of the questioning (for weapons) and the expansive search of the vehicle in the absence of the requisite grounds is a serious breach of the Applicant’s Charter rights (ss. 8 and 10(b) rights).
[70] Moreover, the conduct here was systemic in nature. Officer Allison testified that he would routinely perform searches of this nature. As Doherty J.A. explained in R. v. Rover, 2018 ONCA 745 at para. 40:
Constitutional breaches that are the direct result of systemic or institutional police practices must render the police conduct more serious for the purposes of the s. 24(2) analysis. A police practice that is inconsistent with the demands of the Charter produces repeated and ongoing constitutional violations that must, in the long run, negatively impact the due administration of justice.
[71] Under the second branch, the impact of the breaches on the Charter protected interests was also significant. There is no doubt that there is a diminished expectation of privacy in a vehicle.
[72] “The reasonable expectation of privacy in a car must, from common experience and for the good of all, be greatly reduced.”: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at paras. 38-39. As the majority of this Court stated in R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 534, the expectation of privacy in a vehicle cannot be as high as that in a home or office:
Society . . . requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office. [Emphasis added.]
[73] That said, the nature of the search here was extensive and intrusive. And while there is a reduced expectation of privacy, the Applicant’s privacy rights here were flagrantly disregarded by the sweeping nature of the search.
[74] There is no doubt that the charges themselves are serious which strongly militates in favour of admission under the third branch. The Crown also points out that the evidence at issue is reliable evidence and is necessary to prove the Crown’s case.
[75] Society’s interest in adjudicating the case on its merits is high. When exclusion of the evidence will essentially end the prosecution on serious charges, the third branch will strongly favour admission. There is no doubt that the administration of justice suffers significant harm by a failure to have serious charges adjudicated on their merits.
[76] However, to permit the third branch to be used as a means to routinely excuse serious Charter violations would inevitably undermine the significance of Charter rights altogether. The courts cannot condone serious Charter violations by always giving undue weight to the seriousness of the charges in the analysis. It is the long-term repute of the administration of justice which must always be considered. As explained in Grant at para. 84:
The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
[77] In this case, the serious nature of the breaches weighs heavy in the analysis. Admission in the circumstances would send the wrong message regarding the significance of the rights in question given the extremely flagrant nature of the breaches. In my view, the long-term repute of the administration of justice requires that the evidence be excluded.
Justice C.F. de Sa
Released: January 18, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GREGORY SAPPLETON
Defendant/Applicant
REASONS FOR DECISION
Justice C.F. de Sa
Released: January 18, 2021
[^1]: 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. Caslake, surpa., at para. 19 citing Cloutier v. Langlois, 1990 CanLII 122 (SCC).
[^2]: See R. v. Poulin, [2004] O.J. No. 1354: R. v. Ishmael, [2005] O.J. No. 2690: R. v. Bernard, [2010] O.J. No. 4762: R. v. Campbell, [1996] O.J. No. 4478.