Court File and Parties
BARRIE COURT FILE NO.: CR-18-134-00AP
DATE: 20211210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AARON LEWIS
Appellant
COUNSEL:
Jennifer Armenise, for the Crown
Eric S. Neubauer, for the Appellant
HEARD: September 20, 2021
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
MCKELVEY J.:
Introduction
[1] In the early morning hours of October 9, 2016, police were called by a security officer at the Travel Lodge on Bayfield Street in Barrie because of a disturbance she was witnessing outside the hotel.
[2] Police responded to the call and saw three males on the east side of Bayfield Street. One of those men subsequently went into the hotel and disappeared. The responding police officer, Sgt. Henderson, engaged the other two men, one of whom turned out to be the appellant, Aaron Lewis. The conversation with Mr. Lewis was initially very brief. Sgt. Henderson asked him for his identification. Shortly thereafter, Mr. Lewis fled the scene. By that point other officers were attending and one of them in a police cruiser blocked Mr. Lewis’s path. Mr. Lewis ran into the back end of the police cruiser where he was detained. Subsequently information from Mr. Lewis’s sister confirmed his identity and the fact he was breaching the terms of his bail. He was then arrested for breach of a recognizance and resisting a peace officer in the execution of his duty by running away, struggling and refusing to place his hands behind his back, contrary to s. 129(a) of the Criminal Code.
[3] At his trial the appellant did not dispute his factual guilt. He based his defence on alleged Charter violations. His Charter application was dismissed by the trial judge and he was convicted on both charges. He appeals his conviction on the basis that the trial judge erred in dismissing his Charter challenges.
[4] For the reasons which follow, I have concluded that the appellant’s convictions must be set aside.
The Applicable Standard of Review
[5] The scope of appellate review on findings of fact made by the trial judge is very narrow. Findings of fact are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review on a question of law is correctness.
[6] In R. v. Grosse, 1996 6643 (ON CA), the Ontario Court of Appeal noted that the jurisdiction of a summary conviction appeal judge to review the findings as to the sufficiency of evidence is limited. A summary conviction appeal court is not entitled to retry the case, but to determine whether the verdict is unreasonable. This requires the appeal court judge to determine whether the trial judge could have reasonably have reached the conclusion that the accused was guilty beyond a reasonable doubt. The test, therefore, is not whether the summary conviction appeal judge would have reached the same decision, but whether the trial judge’s decision was reasonable. Where evidence exists to support a factual inference, an appellate court will be hard pressed to find a palpable and overriding error. As noted by the Supreme Court of Canada in the Housen decision, it is open to an appellate court to find an inference of fact made by a trial judge is clearly wrong. However, deference is owed to a trial judge when it comes to assessing and weighing the evidence and making the factual inferences. It is not the role of the appellate court to second guess the weight to be assigned to various items of evidence. If there is no palpable or overriding error with respect to the underlying facts that the trial judge relies upon to draw the inference, then it is only where the inference drawing process is palpably in error that an appellate court can interfere with the factual conclusion.
Issues on this Appeal
[7] As previously noted, the outcome of this appeal focused on the trial judge’s decision on a series of Charter challenges brought by the appellant. The trial judge’s decision on these Charter issues was as follows:
In this case, both counsel are agreed, that at some point in the initial encounter between Mr. Lewis and Sergeant Henderson, it evolved to an investigative detention. In his cross-examination, Henderson also agreed with that suggestion by Mr. Neubauer, in that Mr. Lewis was not free to go and was detained. It is also clear, from his cross-examination, that Henderson, who is an experienced police officer, was aware of what investigative detention is. He indicated that he understood that it permitted a brief search for officer safety purposes and that also, right to counsel was required to be given forthwith.
As in most cases involving dynamic situations, the circumstances here must be considered in context. At 3:30 in the morning, Henderson was dispatched to the scene as a result of a 911 call made by Ms. Malenjant, who was concerned about an incident of potential violence involving a group of people. Henderson was the first to arrive. And shortly after, a group of three people were pointed out to him by her. They included Mr. Concsicao, Mr. Lewis and the third man who walked away.
In my view, Henderson was in the execution of his duty at the time, when he fist engaged the two men, as from the information that had been provided to him, he was required to investigate whether a crime had been committed. It was clearly a busy time for Henderson, who was still the only officer there. In trying to sort out what was going on, he asked the two remaining men to identify themselves. Mr. Concsicao complied but Mr. Lewis did not. He didn’t provide any information to Mr. Henderson – to officer Henderson, other than that the harassment that he was receiving caused his father to leave.
Henderson continued to ask Lewis to produce identification, feeling that Lewis was looking for a route to escape by, while Concsicao stood there as well. At some point during their less than two-minute encounter, both Concsicao and Lewis became investigatively detained. But before Henderson could tell them that, or why, or provide rights to counsel, Mr. Lewis decided to run for it, despite Henderson’s shouting for him “To stop”. And when he didn’t, necessarily pursuing him on foot, with Scott, who had arrived just in time to see Mr. Lewis begin to take flight.
In his evidence-in-chief, Henderson indicated that Lewis was handcuffed as part of his investigative detention. He had not arrested Lewis at that point, as he didn’t know his identity, or have reasonable and probable grounds to arrest him, as he didn’t know what, if any, offence he may have committed until just after he was handcuffed. Lewis’s sister identified him to Henderson and told Henderson that Lewis was breaching the terms of his release.
In my view, this external source of information revealing Mr. Lewis’s identity and the fact that he was bound by conditions, provides a critical distinction between this case and Regina v. Chanmany, found at 2016 O.J. No. 2422. In that, Chanmany, while being investigatively detained, without having been given rights to counsel, himself provided his identification to the police, which then quickly through CPIC, led to the fact that he was bound by the conditions that he was breaching, and his arrest followed.
It was very shortly after being given that information by Mr. Lewis’s sister when Henderson instructed Reid to arrest Lewis for the breach. In fact, Reid indicated in his evidence, that until Henderson told him that information, he did not have reasonable and probable grounds to arrest Mr. Lewis as dictated by the court in Regina v. Storey.
Mr. Neubauer cross-examined the police officers who testified, especially Henderson, at some length. In his submissions, he forthrightly indicated that, in his view, they were largely credible and reliable, despite some contradictions that could be noticed, when all the evidence was viewed as a whole. It is with this background that Mr. Neubauer has fairly, ultimately submitted, that Mr. Lewis’s defence, must rise or fall, on the basis of the Charter application that has been brought. It is a view that I share as well, having considered it all and particularly with respect to the critical areas of the evidence.
Ms. Curry’s position, as indicated earlier, is that no Charter breaches have been established. And thus, there was no – there is no basis upon which to exclude otherwise admissible evidence. Or, alternatively, if a breach or breaches exist, a proper Grant analysis should result in inclusion, rather than exclusion of any evidence.
Have – having considered this matter then, I find and conclude as follows: Sergeant Henderson’s demands of Lewis, for Mr. Lewis to identify himself, or produce identification, while not unreasonable in the circumstances at the beginning of their encounter, evolved into Mr. Lewis being investigatively detained. And thus, required Henderson to tell him the reason for it and give him his rights to counsel under s. 10 of the Charter. Henderson was aware of his responsibilities in this regard, but it did not occur. Not because of Henderson infringing Mr. Lewis’ s. 10 rights, but rather because Mr. Lewis decided to flee before Henderson, who was still alone, was able to properly do it, in all of the circumstances, fulfilling his intention that Henderson was concerned about virtually from the start of their encounter. Lewis kept running despite Henderson and Scott following him and shouts for him, “To stop”. As Henderson was still in the execution of his duty to investigate what happened and considered that Lewis’s continued investigative detention was still required, he followed Lewis, who went to the ground, after he ran into Reid’s police SUV north of Coulter Street.
I find that this view is supported by the evidence and thus was not arbitrary. I have earlier found that Mr. Henderson – I’m sorry, that Mr. Lewis, was not run down by officer Reid driving the SUV but rather, an intoxicated Mr. Lewis ran into it, after it had been pulled into his path and brought to a stop. This was not an unreasonable or excessive use of force and did not constitute a breach of Mr. Lewis’s s. 7 rights, as it was necessary in the circumstances, nor was his being placed in handcuffs.
There were a total of four police officers present. But only two of them participated in placing Mr. Lewis in handcuffs, as the other two stood by for officer safety, in the presence of a fairly large crowd, many of whom, were associates of Mr. Lewis. Any force used to place Mr. Lewis in handcuffs, was, in my view, proportionate and necessary in the circumstances and did not violate section 7. I appreciate that he ended up with some bumps, scrapes and bruises. But find that these resulted from his own actions in struggling and resisting the police while they were gaining control of him, as opposed to being inflicted upon him by any improper or excess force applied to him by the police.
His ultimate arrest by officer Reid was not arbitrary and based on inadequate grounds, resulting in a breach of s. 9 of the Charter. It was based on reasonable grounds as required by the Supreme court of Canada in Regina v. Storey. The grounds were provided to him by Sergeant Henderson after he had been told of Mr. Lewis’s identity and breach of conditions by his sister, who was admittedly present. Any search that was incident to his arrest would thus be lawful and not a breach of his s. 8 rights under the Charter. As I indicated earlier, the defence is no longer seeking a stay of the proceedings based on the originally alleged abuse of process.
In the circumstances then, having considered the evidence in the Charter application as a whole, I’ve concluded that the defence has been unable to establish a breach of Mr. Lewis’s Charter rights on a balance of probabilities. That being the case, there is no basis upon which to consider whether to exclude otherwise admissible evidence.
[8] The appellant has raised the following issues on this appeal. They argue that,
The trial judge erred in law in finding that the defence alone bore the onus of establishing the alleged Charter infringements;
The trial judge erred on questions of fact and law in finding that the appellant’s s. 10(b) rights were not infringed;
The trial judge erred in law on finding that the appellant’s s. 8 rights were not infringed;
The trial judge erred on questions of fact and law in finding the appellant’s s. 9 rights were not infringed; and
The trial judge erred in finding that the force used to apprehend and detain the appellant was not excessive.
[9] The appellant further submits that absent the above errors, the trial judge would have correctly concluded that the appellant was subjected to serious and excessive Charter infringements and that the admission of the identity and bail evidence upon which the Crown’s conviction relied would tend to bring the administration of justice into disrepute, requiring its exclusion.
Did the trial judge err in law in finding that the defence bore the onus of establishing the alleged Charter infringements?
[10] The appellant asserts that the judge erred when he stated in his reasons that the onus of establishing a breach of the appellant’s Charter rights lay with the defence. I accept that this was an error of law. While ordinarily an accused bears the burden of establishing a Charter breach, where that claim involves a warrantless search, it falls on the Crown to justify both the reasonableness of the search and the lawfulness of the arrest. The Crown acknowledges that the above is a correct statement of the law but argues that the judge’s comment in his decision was a general statement when he was outlining the basic principles that he relied upon in formulating his judgment. I note, however, that in his judgment, the trial judge not once but twice stated that the onus was on the defendant to establish a Charter breach. On the first occasion, the statement was made early on in the judgment as a statement of general principle that he was required to consider and apply. He states,
Although in the Charter application he has brought, he does bear the onus of establishing alleged breaches of his Charter rights on a balance of probabilities.
[11] While this may be correct as a general principle, it does not apply to the s. 8 search. Later, at the conclusion of his judgment, the trial judge concludes that the defence has been unable to establish a breach of Mr. Lewis’s Charter rights on a balance of probabilities. Taken together, these two statements by the trial judge would appear to suggest that the trial judge erred in his consideration of the s. 8 Charter issue by putting the onus on the defence to establish the Charter breach. Clearly this would be an error in law.
[12] This does not necessarily mean that the trial judge’s verdict was unreasonable. However, as will be discussed further below, the issue with respect to the s. 8 infringement becomes a very live issue when the trial judge’s reasons are more closely examined.
Did the trial judge err in finding that the appellant’s right to counsel (s. 10(b)) were not infringed?
[13] In R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, the Supreme Court held that police officers, “may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary”.
[14] The court goes on to find that in addition, where a police officer has reasonable grounds that his or her safety or that of others is at risk, the officer may engage in a protective pat down search of the detained individual. The investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention, a protective search power, are to be distinguished from an arrest and the incidental power to search on arrest, which does not arise in the case of an investigative detention.
[15] In R. v. Suberu, 2009 SCC 33, [2009] 2 SCR 460, the Supreme Court dealt with the need to advise a detainee about his right to counsel. At para. 28 of the Suberu decision the court states that where police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply. However, where a person has been detained, the court goes on to state that the “police must immediately inform them of their right to counsel as soon as the detention arises”.
[16] In the present case the trial judge found that at least initially the appellant was not detained, but “that at some point in the initial encounter between Mr. Lewis and Sergeant Henderson, it evolved to an investigative detention.” I do not see any basis to interfere with the trial judge’s conclusion on that issue. Nor do I see any basis to interfere with the trial judge’s finding that before Sgt. Henderson could inform him of his s. 10(b) rights, “Mr. Lewis decided to run for it”. There was sufficient evidence before the trial judge to make this finding. In particular, this conclusion was based on the evidence of Sgt. Henderson.
[17] I therefore conclude that there is no basis to interfere with the trial judge’s conclusion that the appellant’s rights to counsel were not infringed.
Did the trial judge err in finding no s. 8 breach?
[18] With respect to the alleged s. 8 breach, the trial judge simply refers to the fact that after officer Reid arrested the appellant, “any search that was incident to his arrest would thus be lawful and not a breach of his s. 8 rights under the Charter.” This, however, ignores the potential s. 8 violations which occurred prior to the arrest by Officer Reid. These issues are not dealt with by the trial judge in his reasons and in my view constitutes a misapprehension of the trial evidence.
[19] In his evidence, Sgt. Henderson testified as follows at p. 168:
Question: All right. So, please continue. What happened next?
Answer: So I repeatedly asked for ID and he was, again just looking around, not cooperating, not giving me identification.
Question: Okay.
Answer: I could see that there was a big bulge in his pocket …
Question: Mm-hmm.
Answer: … and I said something to the effect of, “Okay, your ID’s right there, give me your ID”. And that’s not a quote but it would have been accurate content.
[20] Later on cross-examination when being referred to what happened after Mr. Lewis’s unsuccessful escape attempt, Sgt. Henderson testified as follows at p. 207,
Question: Right. And eventually what occurs is – is – after a time, he gets – he gets raised to his feet and there is a – it – at least I saw on video, I don’t know if you have an independent recollection of this, but it looks like you are searching for his wallet?
Answer: Well I’m – I’m not just searching for his wallet, I’m searching for weapons, wallet, means of escape, anything that can harm me. I just want to make sure that he’s got nothing on him that’s going to hurt me, hurt him, and identification, yeah.
Question: Right. And so you – and so part of what you were doing was looking for identification so that you could verify whether or not he was on conditions and he was in breach of those conditions?
Answer: Yes.
[21] It is also clear from the evidence that the appellant’s wallet containing his identification was seized prior to him being placed into the police cruiser and being arrested for breach of recognizance. This was confirmed in the evidence of Officer Scott who testified as follows:
Question: Ok. So after Mr. Lewis was placed in the cruiser what did you do next?
Answer: I checked through his wallet and – to locate some identification for him, ‘cause we still didn’t know who he was at this point.
Question: Ok. And do your recall how it was that you came to be in possession of his wallet?
Answer: I don’t remember if Sergeant Henderson left it on the hood of the vehicle or if he had it in his possession from when he searched Mr. Lewis, but I got it either from Sergeant Henderson or off the hood of the vehicle.
[22] Officer Scott proceeded to do a CPIC search which did not disclose the terms of the appellant’s recognizance.
[23] In R. v. Harris, 2007 ONCA 574, the Ontario Court of Appeal dealt with the issue of whether a request for identification infringes s. 8 of the Charter. At para. 34 of the decision, Doherty J.A. comments that where the subject of the questioning is under police detention and reasonably believes he or she is compelled to provide information sought in the questions, “I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information from the detained person.”
[24] At para. 42 of the decision, the court states that if a request for identification is made in circumstances of detention in which the detained individual reasonably feels compelled to answer the request for identification then the question assumes a coercive quality in the nature of a demand which suggests state seizure of the response.
[25] In R. v. Chanmany, [2016] O.J. No. 2422, Campbell J. concluded that if the police are entitled to detain and investigate an individual when they have reasonable grounds to suspect that the individual is involved in some unlawful conduct, then the police must be permitted, at a minimum, to make inquiries as to the identity of the person so detained, an ask them questions of the detainee in furtherance of their investigation. He concludes that such brief investigative inquiries are reasonably warrantless searches for information and the responses of the detainee are reasonably “seized” by the investigating officers.
[26] However, in R. v. Johnson, 2013 ONCA 177, [2013] O.J. No. 1308, the Ontario Court of Appeal found that the accused was detained without lawful authority and asked him for information to conduct a CPIC check. The court commented that this request was treated as a violation of Johnson’s right under s. 8 of the Charter. As a result, for purposes of the appeal the court proceeded on the basis that Johnson’s s. 8 rights were breached.
[27] There is a strong argument that Sgt. Henderson’s requests for identification for purposes of conducting a CPIC check which was unrelated to his investigation constituted a s. 8 violation. However, without drawing any firm conclusions on this issue, it is apparent that his demand of Mr. Lewis to produce a copy of his identification went beyond what was permissible because an individual under investigative detention is not subject to search except for officer safety.
[28] Sgt. Henderson’s admission that he searched Mr. Lewis after he was caught after fleeing and that he was searching him for his wallet to get his identification for a CPIC check was a clear s. 8 violation in light of the fact that he had not yet then been arrested. This is clear from his evidence at p. 208-209 of the transcript where he gives the following evidence:
Question: All right. Now just – just so I’m absolutely clear, you had specifically said that Mr. Lewis was not under arrest when he was on the ground, that he was just detained?
Answer: At that – at that point when we’re trying to handcuff him – I – I don’t have the breach of recog, so he’s not under arrest for breach of recog.
I certainly had grounds to arrest him for cause disturbance and I certainly had grounds to arrest him for resisting arrest – resisting police officer – not resisting arrest, but resist – obstruct resist. I had the grounds to arrest him for both of those things.
Had he complied with me and talked to me on the corner I would have never arrested him for cause disturbance because the disturbance would have essentially been over.
So I – I didn’t – I didn’t specifically say, “you’re under arrest for obstruct resist”, but that’s because we’re fighting with him trying to get him in custody.
So I had the grounds to, but at that point I didn’t have the – the grounds for breach of recog, because I didn’t know about the recog. So I am still trying to detain him at that point, it’s part of the investigation, to find out what is going on. [Emphasis added.]
[29] On the evidence of Sgt. Henderson, therefore, I have concluded that he went beyond the search powers available for an investigative detention and seized Mr. Lewis’s wallet in order to obtain a copy of his identification and to run a CPIC check. This all occurred prior to the appellant’s subsequent arrest. This conclusion is consistent with the trial judge’s finding where in the reasons he states:
As Henderson was still in the execution of his duty to investigate what happened and considered that Lewis’s continued investigative detention was still required, he followed Lewis, who went to the ground, after he ran into Reid’s police SUV north of Coulter Street.
[30] In summary the trial judge erred in failing to identify the correct onus on a warrantless search. In addition, he failed to consider the searches which occurred during the investigative detention of the appellant. I have concluded that in fact there was a s. 8 Charter breach in this case. The breach consisted of the seizure of the appellant’s wallet and his identification while he was investigatively detained, but prior to his arrest.
Did the trial judge err in finding that the appellant’s arrest was premised on sufficient grounds so as not to be arbitrary pursuant to s. 9 of the Charter?
[31] With respect to this issue the appellant asserts that the trial judge failed to consider and resolve a critical conflict between the evidence of Officer Reid and Sgt. Henderson. According to Sgt. Henderson, when the appellant was cuffed and placed in the back of the police car, the appellant was not yet arrested, but rather investigatively detained. After the appellant was in the police vehicle he proceeded to speak with a number of people including the appellant’s sister. Sgt. Henderson stated that only then did he direct that Officer Reid arrest the appellant.
[32] Officer Reid testified that he placed the appellant under arrest almost immediately after he was placed in the police vehicle. He stated that the collision and apprehension of the appellant was over at 3:34 a.m. and the arrest was effected at 3:35 a.m. The appellant asserts that this is entirely inconsistent with Sgt. Henderson’s evidence that the appellant was placed in the vehicle and several minutes later obtained the grounds to arrest the appellant. The appellant asserts that the failure of the trial judge to consider these issues meant that the Crown did not meet its onus of establishing that the appellant’s arrest was lawful.
[33] In looking at the evidence, however, it is apparent that the evidence of Sgt. Henderson and Officer Reid is generally consistent. Sgt. Henderson testified that after the appellant was placed into the police cruiser, he spoke to a person who identified herself as Aaron Lewis’s sister. He was not able to put an exact time on that discussion. He was advised by Aaron Lewis’s sister that the appellant was out on bail and that he was breaching his bail conditions. The evidence of Officer Reid is that he was advised by Sgt. Henderson that the name of the individual in the cruiser was Aaron Lewis and that he was arrestable for breach of recognizance.
[34] Officer Reid took the time that he was physically stationed on scene in his police cruiser from the police computer in his vehicle. This was recorded at 3:34 a.m. However, his recording of the time of arrest came from his watch which may or may not have been calibrated to his computer. In these circumstances, I do not see a significant inconsistency between the evidence of Sgt. Henderson and Officer Reid. In his Reasons the trial judge notes,
It was very shortly after being given that information by Mr. Lewis’s sister when Henderson instructed Reid to arrest Lewis for the breach. In fact, Reid indicated in his evidence, that until Henderson told him that information, he did not have reasonable and probable grounds to arrest Mr. Lewis as dictated by the court in Regina v. Storey.
[35] I have concluded that there is no basis to interfere with the trial judge’s conclusion on this issue.
Did the trial judge err in finding that the force used to apprehend and detain the appellant was not excessive?
[36] The appellant asserts that the force used to detain him after he attempted to flee was excessive.
[37] With respect to this issue, the trial judge concluded that Mr. Lewis was not run down by Officer Reid in his cruiser, but that an intoxicated Mr. Lewis ran into it. He further found that any force used to place Mr. Lewis in handcuffs was in his view proportionate and necessary in the circumstances and did not violate s. 7. It is noted that while he ended up with some bumps, scrapes and bruises, those resulted from his own actions in struggling and resisting the police while they were gaining control of him as opposed to being inflicted upon him by any improper or excessive force applied to him by the police.
[38] These are all findings of fact which were available to the trial judge based on the evidence adduced at the trial. There is no basis to interfere with those findings.
The application of s. 24(2)
[39] As I have found there was a s. 8 Charter breach in this case, it is necessary for me to conduct a s. 24(2) analysis to determine whether the evidence of Mr. Lewis’s identity should be excluded.
[40] The first issue to consider in this regard is whether the obtaining of evidence about Mr. Lewis’s identity was sufficiently connected to the infringements to engage s. 24(2).
[41] In the Ontario Court of Appeal decision in R. v. Pino, 2016 ONCA 389, the court dealt with the proper interpretation of s. 24(2) and in particular whether the “obtained in a manner” requirement could only be met by a causal connection between the Charter breach and the discovery of the evidence. At para. 51 of the decision the court noted that the Supreme Court has taken an increasingly generous and broad approach to the “obtained in a manner” requirement in s. 24(2) and stated that their approach, “looks to the overall purpose of the section, whether the admission of the evidence would bring the administration of justice into disrepute”. The Court in Pino noted that a causal relationship between the breach and the impugned evidence is not necessary. As a result, the court found that a Charter breach after discovery of the evidence sought to be excluded could properly be considered in the s. 24(2) analysis.
[42] In the Pino case, the court of appeal set out the following principles which should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2) . These principles are as follows:
- The approach should be generous, consistent with the purpose of s. 24(2).
- The court should consider the entire “chain of events” between the accused and the police.
- The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
- The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
- But the connection cannot be either too tenuous or too remote.
[43] I have concluded that the “obtained in a manner” requirement has been met in this case as all of the events in question took part as part of the same transaction or course of conduct.
[44] I therefore must proceed to determine whether the evidence of the appellant’s identity should be excluded. In R. v. Grant, 1993 68 (SCC), [1993] 3 SCR 223, the Supreme Court held that a court must balance three factors: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on the Charter-protected interests of the accused; and 3) society’s interest in the adjudication of the case on its merits.
[45] Concerning the state conduct, I have concluded that this factor favours exclusion of the evidence. Sgt. Henderson’s demand for identification from the appellant was clearly for an unlawful purpose (ie. to run a CPIC check). In my view, this was a blatant disregard for the appellant’s constitutional rights. This factor therefore favours exclusion of the evidence.
[46] With respect to the second factor, the impact of the breach in this case was not trivial. By asking the appellant for his name and seizing his identification, the police conducted an invasive and unwarranted search into his personal information. However, the CPIC search in this case did not reveal any evidence of a breach of recognizance. In fact, the evidence with respect to Mr. Lewis’s identity and his breach of recognizance was provided by his sister and was therefore unrelated to the CPIC search. This tends to significantly mitigate the seriousness of the impact of the breach on the appellant’s privacy right.
[47] With respect to the third Grant factor, society has a great interest in the adjudication of this case on its merits. However, the evidence in this case made clear that the practice of detaining and demanding physical identification prior to an arrest was systemic. According to the evidence of office Howlett, “everyone who was involved with the bust was identified, ran though the computer system and then anyone who didn’t have any further involvement were just released”. And “nobody left the scene who was involved before their names were checked”. Officer Howlett described this as a fairly standard practice in the Barrie Police Service. This view was reiterated in the evidence of Sgt. Henderson.
[48] While the societal interest in adjudicating on the merits generally weights against exclusion, the Supreme Court in R. v. Morelli, 2010 SCC 8, at para. 108, has made it clear that in balancing the Grant factors, it is important to bear in mind, “the long term and prospective repute of the administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused. In the Morelli case the court noted that,
[J]ustice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.
[49] In my view, the public must have confidence that invasions of a person’s privacy are justified. To admit the evidence in this case would undermine that confidence in the long term. I am therefore of the view that the third Grant factor would favour exclusion of the evidence.
[50] On balance, I am of the view that admission of the evidence relating to the appellant’s identity would bring the administration of justice into disrepute.
Conclusion
[51] I have therefore concluded that the appeal must be allowed. The conviction of the accused on both counts is therefore set aside and acquittals are entered in their place.
Justice M. McKelvey
Released: December 10, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
AARON LEWIS
Appellant
REASONS FOR judgment on summary conviction appeal
Justice M. McKelvey
Released: December 10, 2021