COURT FILE NO.: CR 20-278, 20-279
DATE: 2021-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Little, for the Public Prosecution Service of Canada, A. Lepchuk for the Crown Attorney
Crown/Respondent
- and -
MACIEJ DYMKOWSKI
S. Shaffie, for the Applicant
Accused/Applicant
HEARD: April 12, 13,15, June 15, October 22, and November 10, 2021
REASONS FOR JUDGMENT
A. J. GOODMAN J.:
[1] The applicant, Macief Dymkowski, (“Dymkowski”) is charged with several drug offences including possession of cocaine and fentanyl, for the purpose of trafficking, contrary to the provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He is also charged with two firearm offences, possession of proceeds of crime and breaches of court orders, contrary to their respective provisions in the Criminal Code, RSC 1985, c. C-46. The offences are alleged to have occurred on October 15, 2018 in the City of Hamilton.
[2] A significant quantity of crack cocaine was in the applicant’s possession and was seized by the police upon his detention and arrest. At the police station and after the applicant was lodged, a loaded firearm was discovered in the rear seat floor area of the police cruiser where the applicant had been seated.
[3] The applicant seeks to exclude the drugs seized by the Hamilton Police Service (“HPS”). The relief sought is premised on several grounds, with emphasis on the applicant’s assertions of an unlawful arrest or detention and a subsequent warrantless search pursuant to ss. 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (“Charter”). There is also an alleged breach of ss. 7 and 24(1) related to lost video evidence surrounding the retrieval and seizure of the firearm.
[4] This case turns on a Charter determination. For the purpose of the Charter voir dire, the matter proceeded as a blended hearing.
Background:
[5] On October 15, 2018, shortly before 8:53 p.m., Constable Duma (“Duma”) and Constable Dwhytie (“Dwhytie”) of the HPS observed a vehicle in which the applicant was a passenger. The vehicle drew Duma’s attention as it turned eastbound onto Wilson Street from Gibson Avenue, crossed several lanes and entered the southbound lane of Wilson Street at a high rate of speed.
[6] The police were able to catch up to the vehicle and obtain the license plate. At that time, Duma learned the status of the license plate was unattached which meant the plate was not assigned to a specific vehicle. According to Duma, in his experience, this could mean a range of things from a simple Ministry of Transportation error to someone swapping plates to disguise a stolen vehicle.
[7] The vehicle continued northbound on Garfield Avenue South, crossed back over King Street again and proceeded to park diagonally in a driveway on the east side of Garfield Avenue South. Half of the vehicle was taking up a driveway and the other half was occupying both the sidewalk and the roadway. At this point, the police had not engaged their emergency lights or siren. Based on these actions, Duma believed the occupants were about to flee the vehicle and engaged the cruiser’s emergency lights.
[8] Duma and Dwhytie both immediately exited the police cruiser. As soon as the officers left their vehicle, the female driver made several spontaneous utterances, including that she did not know who the vehicle belonged to. At that point, the applicant started walking away from the vehicle and he stated that he would go and get the vehicle documents from his house.
[9] Duma advised the applicant that he was detaining him as he needed to find out if the car was stolen. Dwhytie was occupied with the driver.
[10] After Duma placed the applicant under detention, the applicant made an utterance that the vehicle was his and he had yet to switch the plates. The applicant pointed to a house across the street with the utterance that he would go over and obtain the vehicle information. Duma made a demand for identification so he could establish ownership of the vehicle. It was at this point Duma noticed the applicant was wearing a fanny pack strapped to his shoulder as well as a brown leather purse-style bag that was sitting just below the fanny pack. When Duma asked the applicant to provide identification, the applicant turned away from him, shielding the left side of his body. This shielding restricted Duma’s view of the applicant’s fanny packs, and his hands.
[11] Given that the applicant had shielded the officer’s observation of his hands, his center of mass, and of what was under his jacket, Duma became concerned for his safety and the possibility that the applicant was concealing a weapon. Duma grabbed the applicant’s arm and told him not to do that.
[12] The applicant then unzipped the leather purse and produced identification. As Duma was running the name over the radio dispatch, he observed the applicant start to scan the area, looking around. He appeared to be nervous and Duma believed he was possibly looking for a method of escape. At the same time, he began to place his right hand against both the leather purse and fanny pack strapped to his body and once again turned away from Duma. Dymkowski was continuing to “blade” his body.
[13] As the applicant had again shielded Duma’s observation of his hands, his center of mass, and of what was under his jacket on two occasions, Duma became concerned for his safety and the possibility that the applicant was concealing a weapon. He believed the applicant was displaying characteristics of an armed person. At that point, Duma took control of the applicant to search him for weapons. Duma decided to search the fanny pack first as the applicant kept touching it, drawing attention to it and shielding his body while accessing it. There was also more volume to the fanny pack than the leather purse. When Duma unzipped the fanny pack, a large amount of crack cocaine protruded from within the fanny pack.
[14] At 8:56 p.m., Duma placed the applicant under arrest for possession of cocaine for the purpose of trafficking. Duma read the rights to counsel and caution to the applicant. At this point, Dwhytie left the female driver and attended to assist Duma. It is at this point that the female driver ran away. The motor vehicle was determined to be registered to the applicant’s alleged wife with an address in Guelph.
[15] A significant quantity of various illicit drugs were seized, 70.65 grams of fentanyl, 50.72 grams of methamphetamine and 115.4 grams of cocaine. A loaded firearm was later located in the rear footwell area of the police cruiser.
Positions of the Parties- s. 8, 9, 10 and 24(2) of the Charter:
[16] Mr. Shaffie, on behalf of the applicant, submits that his client was not detained for investigative purposes, rather, he was unlawfully arrested at the scene prior to the search of his person. The police officer did neither have reasonable suspicion to detail nor reasonable and probable grounds to arrest the applicant based on the information known to him at the time. There were no observations of a criminal offence and the officer’s suspicions were groundless.
[17] The applicant says that there can be little doubt Duma entertained a subjective suspicion that the motor vehicle was stolen. But this subjective belief was not reasonable. Not only did the officer’s subjective belief prove false, but it led him to violate the applicant’s Charter rights in significant ways. Duma engaged the applicant, a passenger in a car, in a Mann-style criminal law detention within seconds of encountering him. When Duma detained the applicant, he escalated a Highway Traffic Act (“HTA”) stop into a groundless criminal investigation. He “piggy-backed” a criminal law inquiry on top of an HTA investigation in the manner squarely condemned by the jurisprudence.
[18] The applicant says that this violated his s. 9 rights and Duma also conducted a warrantless and baseless search and seizure contrary to s. 8 of the Charter. Further, his rights to counsel (“RTC”) under s.10(b) were also violated during his brief detention. Had Duma simply permitted the applicant to retrieve the documents pertaining to the vehicle, or otherwise conducted a simple VIN search on the car, he would have learned two things: that the applicant’s wife owned the Mercedes; and that the applicant’s parents lived across the street.
[19] As a result of the unlawful arrest or detention, the drugs seized directly from the applicant were illegally obtained. Specifically, counsel points to the inconsistent and unreliable testimony of the police officers, in particular, Duma, and the totality of the evidence as it pertains to the police conduct.
[20] The applicant submits that the circumstances of this case justify the exclusion of the drugs based on s. 24(2) of the Charter and the Grant factors.
[21] The Crown disagrees with the applicant’s assertions. The Crown does not argue that the applicant was arrestable, rather that there were grounds for an investigative detention. The Crown concedes that the applicant was detained when Duma conducted the traffic stop. The Crown submits that there were legitimate grounds to detain and search the applicant, based on the events prior to the car stopping on Garfield Avenue South, his conduct at the scene and the entirety of the circumstances. The Crown says that the applicant’s brief investigative detention was justified in the circumstances as the police reasonably suspected the applicant’s involvement in a specific crime – a stolen motor vehicle.
[22] The manner in which the events unfolded was swift and dynamic. In addition, the applicant’s specific behaviour at the scene, with his turning to one side and protecting his satchel or purse was an indication to police, based on Duma’s experience and background knowledge, that the object he was concealing presented a danger to public peace or safety. The police lawfully detained him and located the illicit drugs.
[23] The detention was not arbitrary as it was authorized under the common law power to detain those who the police have articulable cause to believe have been involved in the commission of a criminal offence. The police are entitled to detain a person for investigative purposes where they have reasonable grounds to suspect that the person is involved in some criminal activity and the detention is necessary. The defence submissions with respect to Duma's evidence and credibility are without merit.
[24] The Crown says that were no violations of ss. 8, 9 and 10 of the Charter in the totality of circumstances. Even if the arrest, detention, or related search and seizure incident to arrest are found to be a violation of the Charter, the evidence ought to be admitted under s. 24(2).
Legal principles:
[25] Section 9 of the Charter states:
Everyone has the right not to be arbitrarily detained or imprisoned.
[26] In addressing police powers of detention, the leading case of the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, provides guidance. Iacobucci J., speaking for the majority, held that police officers do not possess a general power of detention for investigative purposes. Police officers may detain individuals when there are reasonable grounds to suspect that they are connected to a crime and that detention is reasonably necessary. At para. 34, Iacobucci J. states:
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
[27] “Reasonable grounds to detain” was defined by Doherty J.A. in R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182, at p. 202, as requiring “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.”
[28] Police do not require reasonable and probable grounds to believe an offence has been committed in order to detain a suspect. Rather, they only need reasonable grounds rising to the level of “reasonable suspicion”. This standard is more than a hunch or gut reaction, but something less than what is necessary for an arrest. Courts have been reluctant to propose a definitive checklist for reasonable detentions, preferring instead to conduct case-specific analyses that examine the totality of the circumstances.
[29] In R v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, the Supreme Court drew a careful distinction between what constitutes “suspicion” and what constitutes reasonable grounds to arrest. At para. 75, Binnie J., wrote:
The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123:
[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.
What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp.125-26]
Section 9: Legal Principles Applied to this Case:
[30] In conducting the detention of the applicant, the Crown submits that all police officers were acting in the course of their duties to investigate crime.
[31] In the context of a detention, “reasonable grounds” means reasonable grounds to suspect that an individual is involved in particular criminal activity, which is synonymous with reasonable suspicion. The hallmark of reasonable suspicion, as distinguished from mere suspicion, is that a “sincerely held subjective belief is insufficient” to support the former. A “reasonable suspicion” means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at paras. 38 & 41, Kang-Brown, at paras. 74 & 164.
[32] The Mann test was recently re-affirmed in the Court of Appeal for Ontario case of R. v. McGuffie, 2016 ONCA 365, where an officer approached and detained a man that he suspected of being in a group who were passing a handgun around in a bar. The court applied the Mann test and held that when the officer first detained the appellant, he had reasonable grounds to suspect that he was involved in the illegal possession of a handgun. The officer’s investigation raised legitimate and immediate public safety concerns. While he did not have grounds to arrest the appellant, he did have a duty to investigate the gun-related incident and the appellant’s potential connection to it. The appellant’s initial detention on the street was a lawful exercise of the police power to detain a person in the course of a criminal investigation: McGuffie, at paras. 35 & 36.
[33] The fundamental issues here are whether there was a reasonable suspicion to detain the applicant. The parties agree that Duma’s credibility and reliability is a fundamental part of the analysis.
[34] The defence says that Duma’s evidence is untrustworthy and self-serving. The Crown says that Duma testified in a credible and reliable manner and Dwhytie’s evidence is corroborative with respect to the events.
[35] I note that there are some minor external inconsistencies between the two officers with regard to what transpired before and at the scene. The recollection and credibility of the officers’ viva voce testimony must be considered.
[36] Duma testified that he had concerns for officer and public safety due to the potential for weapons and the applicant’s actions, including the “blading” and the applicant’s hands. Both the driver and the applicant made spontaneous utterances immediately upon exiting the car. It was a fast moving, dynamic situation. In cross-examination, Duma conceded that some of his testimony is not found in his notes or willstate. He disagreed with counsel on many assertions raised for his responses. Duma testified that the applicant was not aggressive, but he was “worked up”. Duma did not see a weapon prior to the search. The applicant was scanning the area but did not flee. It was only on the second occasion where the applicant was blading and touching his fanny pack that Duma formed the grounds to believe that his safety was at risk.
[37] In Duma’s testimony, there was some confusing testimony but overall, I accept his evidence at the scene of the stop. I do not accept counsel’s suggestions that the officer went beyond the scope of the police policy in respect of the search at the scene.
[38] Dwhytie confirmed that she was occupied with the female driver who- made strange, spontaneous utterances upon exiting the vehicle. The female driver’s behaviour at the scene was suspicious and warranted investigation.
[39] Principally, on the submissions raised by the Crown, I do not accept the evidence of the defence witness, Alyssa Scott (“Scott”). Scott testified on the voir dire and confirmed that she was the driver of the vehicle. She knew the applicant. She denied making the statements attributed to her by the officers.
[40] I do not accept that Scott merely just sauntered away from the scene. She fled. The witness had been under the influence of drugs and her evidence at trial was internally and externally inconsistent. I reject her testimony related to what she claimed she did not say to the officers. She was not a valid historian.
[41] In this regard, I prefer Dwhytie’s evidence. Dwhytie explained that immediately upon approaching the stopped vehicle, she had received vague responses from Scott, including that she did not know the status of the vehicle, the vehicle “was her husband’s” and referenced the male passenger, later identified as the applicant. At the same time, Scott was unable to provide her male passenger’s last name.
[42] It is trite law that police officers may briefly 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. This includes the ability to briefly search a detainee.
[43] An individual may be detained for investigative purposes if the police are acting in the exercise of their duty and the detention is justified as reasonably necessary in the totality of the circumstances. This standard includes both objective and subjective components.
[44] That being said, Duma’s evidence is clear that he had a reasonable suspicion to detain the applicant due to the circumstances leading up to the stop and the unattached plate. Duma’s conclusions are sustainable on the evidence.
[45] Again, it is important to reiterate the direction from the Supreme Court in Mann. At para. 45, Iacobucci J stated:
[P]olice 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. In addition, where a police officer has reasonable grounds to believe 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. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that 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 and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.
[46] Here, there was more than just the applicant’s mere presence as a passenger in the vehicle. It was the applicant’s specific movements at the scene that prompted the response from the officers and that gave rise to officer safety concerns. Absent those actions, I may have come to a different conclusion.
[47] Indeed, the totality of circumstances must be considered, both inculpatory and exculpatory, to “determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behavior”: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 at para. 6. However, the police do not have to “investigate to rule out exculpatory circumstances.” As Karakatsanis J. explained in Chehil, at para 35:
[T]he objective facts must be indicative of the possibility of criminal behavior. While I agree with the appellant’s submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behavior, or must necessarily be evidence of a specific known criminal act. [emphasis added]
[48] The applicant submits that at no point was Duma investigating the him under the HTA. That point was conceded by the Crown. He was, at all times, investigating him for possession of a stolen vehicle. Accordingly, the cases provided by the applicant of R. v. Mhlongo, 2017 ONCA 562, R. v. Gonzales, 2017 ONCA 543, R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615 and R. v. Harris 2007 ONCA 574, can be distinguished on the facts as they related to passengers in vehicles. The case law is clear – where stops are conducted in order to investigate criminal activity, the standard in R. v. Mann- must be met.
[49] The second threshold to be met under Waterfield requires consideration of whether the stop involved an unjustifiable use of powers associated with the common law and statutory police duties. To justify detention requires a constellation of objectively discernible facts that gave Duma reasonable cause to suspect the applicant was possibly in possession of a stolen vehicle. In this case, the objectively discernible facts were: police were operating a fully marked police cruiser; the applicant’s vehicle turned onto Wilson Street from Gibson Street at a high rate of speed; the unattached license plate; the abrupt, no signal right turn onto Sherman Avenue South once the marked cruiser caught up to it to obtain the license plate; the vehicle travelled across King Street East and then made two quick left turns to head back in the direction it came from, crossing back over King Street again; High rate of speed of the vehicle; at 70 km/hr in a 50 km zone; and the manner in which the vehicle abruptly parked – diagonally with half on a driveway and half on the roadway.
[50] After the reasonable suspicion to detain was satisfied at the scene, I accept that Duma had formed the basis to search the applicant: both the driver and passenger jumped out of the vehicle as soon as the police emergency lights were activated and started to distance themselves from the vehicle; the immediate utterance from the female driver that she did not know who the vehicle belonged to; as soon as he exited the vehicle, the applicant started to walk away from the vehicle stating he would go and get the documents from his house, while pointing ambiguously down the road, the female driver claiming that the applicant was her husband but she did not know his last name; then we have the applicant’s actions with his fanny pack and including his blading of his body away from the officer, even after being warned by the officer to desist.
[51] Notwithstanding Mr. Shaffie’s able submissions, I am not persuaded that the facts in this case leading to a lawful investigative detention would open the door to arbitrary police actions or misconduct.
[52] Indeed, the police cannot be required to negate all possible exculpatory or non-criminal explanations for the conduct they are concerned about before proceeding with an investigative detention. This does not mean that there are no innocent explanations for the behavior in question. The police are entitled to investigate their suspicion of specific criminal activity using investigative detention, even if there are perfectly innocent explanations for the individual behavior in question.
[53] As well, in regard to the nature and scope of a safety search incident to detention there are strict limitations. These can be summarized as follows. A safety search incident to an investigative detention cannot be equated with a search incident to arrest. In fact, it is far more limited in scope than the latter; Mann, at para. 45. It must be solely motivated by safety concerns; Mann, at para. 40; R. v. Plummer, 2011 ONCA 350, at para. 52. It is not a license to search for evidence or contraband; Mann, at para 37. It will be confined to locating weapons; Mann, at para. 41; Plummer, at para. 52; R. v. Lee, 2017 ONCA 654, at para. 31. The focus will be on whether the police possess a “valid protective purpose” and not necessarily on the precise location of the search; Plummer, at para. 58. If evidence or contraband is located during a lawful safety search incident to investigative detention, it can be lawfully seized; R. v. Murray, 2011 ONCA 174; R. v. Clayton, 2007 SCC 32. It is not limited to a pat-down or frisk search of the detainee; Plummer, at paras. 53-58, R. v. Ellis, 2016 ONCA 598 at paras. 26-28; R. v. Webber, 2019 BCCA 208 at para. 70, R. v. Patrick, 2017 BCCA 57 at para. 94.
[54] Whether a search is reasonably necessary will be assessed in view of the totality of the circumstances and objectively considered. An officer is permitted to rely on reasonable and specific inferences drawn from the known facts of the situation: R. v. MacDonald, 2014 SCC 3, at para. 41, R. v. Peterkin, 2015 ONCA 8 at para. 45.
Application of the legal framework to the facts:
[55] In this case, I find that there were reasonable grounds for a protective search of the applicant. This followed the officers’ reasonable grounds to suspect that the applicant was connected to a particular criminal activity related to the status of the vehicle and such detention was reasonably necessary. When Duma asked him to provide him with identification, the applicant turned away from him, shielding the left side of his body. This prevented Duma from viewing the front of the applicant’s chest, the fanny pack he was wearing, and his hands. Based on the officer’s experience, this caused Duma to become concerned about a possible weapon and he grabbed the applicant’s arm and told him not to do that. On the second occasion with the same actions, Duma’s articulated concerns about officer safety were solidified. See R. v. MacKenzie, at para. 62, Lee, at paras. 58, 60, Plummer, at paras. 53, 57 and 78, R. v. Webber, 2019 BCCA 208, at para. 43.
[56] I do not accept the applicant’s argument to apply an extremely restrictive approach as well as a liberal reading of the facts in Mann. This is simply not an accurate statement of the law. Mann provides the framework for such a search but does not state that such a restrictive approach should be applied.
[57] Further as stated by the Court of Appeal in Plummer at para. 53:
However, there is nothing in Mann confining a search incidental to an investigative detention to only the person detained. Indeed, in Mann, the court actually considered both a pat-down search of the person detained, which it upheld, and a search inside the detainee’s pockets, which it found to be unreasonable. Accordingly, I agree with this court’s interpretation of Mann in R. v. Batzer (2005), 2005 33026 (ON CA), 200 C.C.C. (3d) 330 at para. 16: “the [Supreme Court of Canada] leaves the clear inference that on the right facts, a search incidental to a lawful stop could comply with the common law and pass constitutional muster even though it went beyond a pat down.”
[58] The principle enunciated in Mann is that Charter rights must give way to the specific, articulable and reasonable safety concerns that an officer harbours for him/herself and nearby members of the public. The balance between the right to be free from unreasonable searches and legitimate safety concerns is at the core of Mann. The appellant’s bright line approach shifts the focus from this balance to a different factor, the location of the search
[59] There is no logic in this shift. If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question and circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity: Ellis, at paras. 25-30.
[60] I also do not agree with the applicant that the police would be hard pressed to establish that investigative detention was even justified in this case. In summary, on these facts, it could only afford the officer with the right to undertake an investigative detention. As mentioned, in Mann, an investigative detention by police must be premised on reasonable grounds. The detention must be “reasonably necessary on an objective view of the totality of the circumstances” and the investigation has to reveal a “clear nexus between the individual to be detained and a recent or on-going criminal offence.” In this case, on an objective assessment, a clear nexus exists.
[61] With this constellation of combined factors, Duma was entitled to embark on an investigative detention. The detention was lawful having regard to the nature of the situation and the detention was reasonably responsive to and tailored to the circumstances. Accordingly, in this case, Duma had the authority to detain the applicant as he had reasonable grounds to suspect that his safety could be in jeopardy in all the circumstances.
[62] In my opinion, the applicant has not satisfied his onus to demonstrate that there was a breach of his s. 9 Charter rights.
Section 8: Legal Principles:
[63] Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure.
[64] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. There exist certain overarching principles with respect to an analysis of s. 8 of the Charter:
Individual privacy is the “essential value protected by s. 8 of the Charter”: R. v. Kokesch (1990), 1990 55 (SCC), 61 C.C.C. (3d) 207 (S.C.C.) at 228. “Any expectations of privacy must be reasonable” to be afforded constitutional protection: R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 (S.C.C.) at 459. A reasonable expectation of privacy is a personal right the existence of which is determined on the totality of the circumstances in each case having regard to the guidelines in R. v. Edwards (1996), 1996 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.) at 148-152. Further, the purpose behind the right “is to protect the privacy of individuals from unjustified state intrusion”: R. v. Hape, 2007 SCC 26, [2007] S.C.J. No. 26 at para. 166 per Bastarache J. Therefore, “[t]he purpose of s. 8 of the Charter is to protect against unreasonable searches”: R. v. Alkins (2007), 2007 ONCA 264, 218 C.C.C. (3d) 97 (Ont. C.A.) at para. 44.
[P]olice conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of” s. 8 of the Charter: Law, at 457. The essence of a “seizure”, in constitutional terms, involves a non-consensual taking of something by agents of the state: R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.) at 113; R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417 (S.C.C.) at 431.
Warrantless searches are presumptively unreasonable unless the Crown demonstrates on a balance of probabilities their reasonableness in the context of s. 8 principles: R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.) at 324; Buhay at 112, 114; R. v. Evans (1996), 1996 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.) at 34.
Common law authorization may emanate from conditions of urgency: “[w]arrantless searches are presumptively unreasonable, absent exigent circumstances” (R. v. Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129 (S.C.C.) at 142) making it impracticable to obtain a warrant: R. v. Plant (1993), 1993 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) at 169; Grant, at 189.
The Crown cannot rely on “ex post facto justifications” of searches by their results: Kokesch, at 227; R. v. Genest (1989), 1989 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.) at 408. A search, unlawful from the beginning, cannot be converted into a reasonable search because it is carried out in a reasonable manner: R. v. Moran (1987), 1987 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.) at 247.
The test for whether a police officer has acted within his or her common law powers was first expressed by the English Court of Criminal Appeals in Waterfield, supra, at pp. 660-61. From the decision emerged a two-pronged analysis where the officer’s conduct is prima facie unlawful interference with an individual’s liberty or property. In those situations, courts must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law. If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
To continue in the Waterfield analysis, the conduct giving rise to the interference must involve a justified use of a police power associated with a general duty to search in relation to the protection of life and property. Put differently, the search must be reasonably necessary. The relevant considerations here include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference: Dedman, supra, at pp. 35-36.
Section 8: Legal Principles Applied to this case:
[65] Given the valid arrest, was the search incident to arrest and discovery of the fentanyl a violation of s. 8?
[66] It is trite law that warrantless searches and seizures are prima facie unreasonable and violate s. 8 of the Charter. The onus is on the Crown to rebut the presumption of unreasonableness.
[67] The Crown argues that the search, conducted shortly after the applicant’s arrest, was justified by officer safety and public concerns. I agree.
[68] As mentioned, there are two principal authorities under which officers may conduct a safety search. The most common way is the search incident to detention as set out in Mann. It is settled law that “where a police officer has reasonable grounds to believe that his or her own safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual”: Mann, at para. 45.
[69] Pursuant to an investigative detention or arrest, a police officer has no right to conduct a search unless the officer has reasonable grounds to believe his or her safety or the safety of others is at risk. Therefore, a detention and subsequent search and seizure premised on a drug transaction or officer safety concerns might have enabled the officers’ conduct pursuant to the jurisprudence; and that is the evidence before me from the arresting officer. At the time of the applicant’s search, his involvement in the crime had crystalized. It can be said that the officer’s subjective belief was reasonable.
[70] The second authority that is present in this case the stand-alone power to conduct a safety search, which the court identified in MacDonald. LeBel J. explains, at para. 40, that “where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search.” However, as Green C.J.N.L. commented in R. v. Squires, 2016 NLCA 54, at para. 40:
While there are indications in other cases (eg. R. v. Fountain) that in some circumstances a safety search incident to an unlawful detention may nevertheless be upheld, I prefer the approach in McGuffie. Further, as MacDonald recognized, although there may be grounds for a safety search even outside an investigative detention, provided it is necessary to deal with exigent circumstances or an imminent threat, MacDonald was a case where no attempted detention, whether lawful or unlawful, was involved. It does not stand for the proposition that a safety search can be lawfully undertaken in the context of an unlawful - and thus arbitrary - detention.
[71] The search must be authorized by law, the law must be reasonable, and the search must be carried out in a reasonable manner. If the search complies with the common law set out in Mann, the first two criteria are met. The overall reasonableness of the search entails an examination that necessarily overlaps with the reasonable necessity inquiry necessary to ensure compliance with the common law. See R. v. Batzer 2005 33026 (ON CA), [2005] O.J. No. 3929, at paras. 15 and 16.
[72] I note that in this case, the defence concedes that if the s. 9 breach fails then there is little no basis for the s. 8 breach. Nonetheless, counsel goes on to discuss the need for minimal search parameters.
[73] Given the constellation of factors in this case, it was objectively reasonable for Duma to act in the manner he did and to have the applicant detained or arrested. Duma had grounds to detain the applicant for officer safety reasons and conducted a search of the fanny pack, the very item being reached for by the applicant or at the very least the subject of the accused’s attention.
[74] I accept the evidence that there were officer safety concerns. Given my findings that the applicant’s arrest or detention was lawful, it must follow that in this case, the search of his person, in particular the fanny pack revealing cocaine and other drugs was authorized and did not breach the applicant’s s. 8 rights.
Section 10(b) of the Charter- Right to Counsel:
[75] Section 10 of the Charter states:
Everyone has the right on arrest or detention
(a) To be informed promptly of the reasons therefor;
(b) To retain and instruct counsel without delay and to be informed of that right
[76] This alleged breach is a non-starter and requires only brief mention.
[77] On these facts, Duma advised the applicant that he was being detained to investigate whether the vehicle was stolen. Duma also provided the applicant his RTC. It does not matter if the exact wording was not employed. Given the elapsed minute or two of these rapidly unfolding events, I am satisfied that Duma provided the informational component of the RTC and caution and did not seek to obtain conscriptive evidence on that basis. It was only when the officer safety concerns came to light that Duma exercised his lawful authority to search the applicant with the subsequent arrest for the illicit drugs.
[78] Clearly, there was no breach of the applicant’s s.10(a) or s.10(b) Charter rights during this brief detention and upon his subsequent arrest. Once Duma observed the suspect cocaine, he informed the applicant he was under arrest under s. 5(2) of the CDSA and provided him his RTC. The applicant advised he wished to speak with Courtney Keystone. Once at the police station, Duma contacted Courtney Keystone on his behalf and facilitated a private phone call with her.
[79] If I am in error with respect to my analysis of the various Charter allegations of breaches, it is incumbent on me to consider s. 24(2).
Section 24(2) of the Charter:
[80] Section 24 of the Charter states:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[81] In the seminal case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system. The disrepute is to be considered by the court in its role of maintaining the integrity of, and public confidence in the justice system. It is an objective inquiry and it asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[82] The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The focus is not on punishing the police or compensating the accused: Grant, at para. 70.
[83] The onus is on the applicant to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.
[84] The Supreme Court outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence would bring the administration of justice into disrepute. They are:
(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.
[85] In considering the seriousness of the Charter-infringing state conduct, the Court must ensure that they are not, in effect, condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from wilful or reckless disregard of Charter rights.
[86] The impact on any breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The Court should assess whether any breach, if there was one, was “fleeting or technical” as opposed to “profoundly intrusive”: Grant, at para. 76. This factor does not assess the extent to which the state intruded on the individual generally, but only the extent to which the state intruded on the individual beyond any intrusion that was lawfully permitted. In Grant, at para. 109, the Supreme Court described this line of inquiry as “the danger that admitting the evidence may suggest that Charter rights do not count”. The seriousness of the intrusion upon the rights of an accused may vary greatly. I must consider whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.
The Seriousness of the Charter-infringing State Conduct:
[87] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law: Grant at para. 74. At para. 75 of Grant, the court elaborated on this factor by stating:
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[88] The Crown argues that the search of Duma was minimally intrusive. It was brief and at the scene. His fanny pack was in plain view and had been the subject of the applicant’s attention. The officers, as a result of their experience, thought that Duma was reaching for a weapon or something either dangerous or illegal. Upon detention or arrest, a search revealed the cocaine.
[89] I find that Duma’s beliefs were reasonable in the circumstances. I am persuaded that the police conduct in this case was not deliberate and they did not adopt a cavalier attitude towards the applicant’s rights. The police actions could not be considered flagrant. This does not give rise to a serious breach and the potential for systemic concerns. The defence concedes that there is no bad faith on the part of the police. I would go further and find that the police acted in good faith in relation to the detention and seizure of the drugs.
[90] In my opinion, the admission of this evidence would not send a message that the justice system is somehow condoning serious state misconduct and its admission would greatly undermine public confidence in the justice system. In my view, this factor weighs in favour of its admission.
The Impact of the Charter violation on the Charter-Protected Interests of the Accused:
[91] The second branch of the test is outlined in Grant at paras. 76 and 78:
This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity is more serious than one that does not.
[92] The measure of seriousness then is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
[93] Accordingly, discoverability retains a useful role in assessing the actual impact of the breach. It is well established that this factor may weigh against a finding that the breach has had a meaningful impact on the accused’s Charter-protected interests.
[94] Here, we are dealing with real evidence, cocaine and other drugs. The applicant’s detention was momentary, lasting only a minute or two. True, it was not an invasive search, and the applicant was not taken to the ground and searched. There was some urgency to the situation based on officer safety concerns. This is a case like R. v. Omar 2018 ONCA 975, [2018] O.J. No. 6346 (C.A.), per Brown J.A. in dissent, (aff’d. 2019 SCC 32, [2019] S.C.J. No. 32); where the officers were confronted with a difficult, intricate, real-time decision.
[95] While not the determinative factor, the impact on the applicant's Charter-protected interests was significant in this case. I say this even in the absence of any s. 10 breach. Nonetheless, the search and obtaining of the evidence from the applicant was not a serious Charter violation. My consideration of the second factor weighs in favour of admission.
Society’s Interest in the Adjudication of the Case:
[96] In considering this factor, the question to be asked is "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion”: Grant, at para. 79. The reliability of the evidence is an important factor in this line of inquiry. If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion.
[97] In Grant, at para. 83, the Supreme Court discussed how the importance of the evidence to the Crown's case is a relevant consideration:
The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[98] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As Crown counsel submits, should the evidence be excluded, the prosecution’s case would be “gutted”.
[99] Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. This is particularly crucial as the drugs in this case is cocaine and fentanyl or a fentanyl mixture. It is crystal clear that fentanyl is a scourge on society. No doubt, its impact is devastating, not to mention potentially deadly. In this case, it cannot be said that the evidence of the drugs is of marginal value.
[100] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As the Supreme Court stated in Grant, at paras. 79 and 82:
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s ‘collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.’ … Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
…The Court must ask itself “whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial...
[101] The Crown submits that society’s interest in adjudication on the merits leans towards admission. The drugs are real evidence. The importance of the evidence to the Crown’s case is another factor that may be considered in this line of inquiry. The exclusion of the drugs will leave the Crown with absolutely no evidence in support of the prosecution’s case.
[102] While I must be cautious not to place too much emphasis on this latter point, I am mindful that in Grant, the Supreme Court offered that the seriousness of the offence may be a neutral consideration as it has the potential to “cut both ways”. In this case, I conclude that society's interests in the adjudication of the case on its merits are best served by not excluding evidence when its probative value is so strong. A consideration of this public interest factor militates in favour of admission of this evidence.
[103] The final step is a balancing of all of these factors. In Harrison, the Supreme Court provided some guidance to trial judges at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[104] The community needs to have serious cases tried on their merits, especially where possible lethal drug-related crimes are committed.
[105] The impact on the Charter-protected interests of the applicant was not serious. The police conduct in this case did not demonstrate a deliberate disregard of Charter rights. I conclude that the actions of the police would not invite a negative impact on the public confidence in the administration of justice and the rule of law. The balancing of all of the s. 24(2) factors militate in favour of admission of the evidence.
[106] As the defence did not challenge the balance of the Crown’s case, and conceded the quantum of the drugs seized with the intent to traffic substances, the evidence at trial sustains convictions for the drug related offences.
The Firearm Counts:
[107] Back at the police station, after the applicant had been processed, Duma located a loaded firearm in the footwell of the prisoner box in the rear seat area of the police cruiser. The firearm contained no fingerprints, DNA, or other forensic evidence of value. Duma’s search of the applicant at the roadside on at least two occasions did not disclose it.
[108] Segments of the sally port video were disclosed and played at trial. However, the segment that could have showed Duma’s search of the police cruiser in the sally port and his retrieval of the firearm was not disclosed and has been subsequently destroyed.
[109] On December 9, 2018, the Crown’s office received the first disclosure letter from Mr. Shaffie. In this disclosure letter, Mr. Shaffie asked for “[a]ll videos capturing my client’s interactions with police or while lodged in police custody, including but not limited any extant body-camera footage, in-car camera footage, seized surveillance, sally port, booking, and cell video footage”. Based on this request, on March 5, 2019, the Crown’s office requested the DVD of the booking/release/sally port video and advised Mr. Shaffie that they had requested a copy of the booking video as requested.
[110] The next disclosure request from Mr. Shaffie was on March 26, 2020, after the preliminary inquiry, which was held March 9, 2020. This request was over a year after Mr. Shaffie received the booking video and twenty months after his client’s arrest. In this request, for the first time, counsel requested the surveillance video from the police station where his client was not present and where Dumas retrieved the firearm from the police cruiser. The Crown responded to this disclosure request immediately and advised that the Hamilton Police Service has a six-month retention period for videos.
[111] It appears from the evidence that the impugned video was destroyed before the six-month retention period.
[112] There is also an allegation about lost video captures of the exterior parking lot at the police station where it could show the search of the police cruiser at the commencement of Duma’s shift. I need not say any more about this second assertion for a Charter breach as it is entirely speculative and of no merit.
Lost Evidence – Legal Principles
[113] The right to make full answer and defence, of which the right to disclosure forms an integral part, is a principle of fundamental justice enshrined in s. 7 of the Charter: R v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30, at para. 23
[114] If relevant evidence is lost or destroyed, the Crown has a duty to explain what happened to it. If the explanation fails to satisfy the Court, there will be a violation of the accused’s right to disclosure under s.7 of the Charter. To determine if the Crown’s explanation is satisfactory, the Court should consider whether the Crown or the police took reasonable steps in the circumstances to preserve the evidence for disclosure. Of special note is the degree of relevance of the item of evidence: the more relevant, the greater the more care the Court should expect in its preservation: La, at para. 21.
[115] There are three independent bases in law upon which an accused may allege a Charter breach in cases of lost or destroyed evidence. It may be alleged that there has been a violation of the right to disclosure of relevant evidence (i.e. evidence that is not “clearly irrelevant”) owing to “unacceptable negligence” on the part of the state. It may be alleged that the state conduct in relation to the loss or destruction of evidence amounts to an “abuse of process” (e.g. in cases of deliberate destruction of evidence for the purpose of frustrating the administration of justice or in cases of a high degree of negligence); or It may be alleged in extraordinary circumstances that the loss or destruction has caused such serious prejudice to the accused’s fair trial rights that a breach of s. 7 results even where there has been no unacceptable negligence or abusive conduct by the state. See La, at paras. 16-25 R. v. Hassan, 2014 ONSC 1345 at para. 9.
[116] For each of these types of allegations, the Court must embark upon a two-stage process. It must determine at the first stage whether a s. 7 breach has occurred. Then, if a violation of s. 7 has been made out, the Court must determine the appropriate remedy at the second stage: R. v. Hersi, 2019 ONCA 94 at para. 25.
[117] Even if the Crown’s answer is satisfactory, lost evidence can still result in a violation of an accused person’s s. 7 rights if it impinges on their ability to make full answer and defence.
Positions of the Parties- Section 7 of the Charter:
[118] The applicant submits that the loss of video tape evidence of the very act of recovering a firearm, in a facility staffed by police, by personnel who have knowledge of the tape’s existence, is the result of negligence. The potential for extremely grave penal consequences for the applicant, when combined with the ease of securing the evidence, its high degree of relevance and the failure to preserve the tape all point to a serious violation of the applicant’s right to disclosure under s.7.
[119] The applicant says that although the evidence in question was not specifically requested by counsel until after the preliminary inquiry disclosure requests were made on December 9, 2018 and February 26, 2019 which sought: “all fruits of the case(s) herein, including any and all information in the Crown’s possession or control concerning the narrative of the case and the credibility or reliability any witnesses or evidence” [and] “without limiting the generality of this request or the Crown’s general disclosure obligations, I seek the following specific items: All videos capturing my client’s interactions with the police or while lodged in police custody, including but not limited any extant body-camera footage, in-car camera footage, seized surveillance, sally port, booking, and cell video footage; Any and all remaining disclosure.”
[120] The Provincial Crown responds that there is no breach of ss. 7 or 11(d) of the Charter because there has been no unacceptable negligence on the part of the state. In the alternative, if the court determines there has been a s.7 Charter breach, the Crown submits that the loss or destruction of the evidence has not caused such serious prejudice to the accused’s fair trial rights that the extraordinary remedy of a stay is the only recourse.
The Application of the Legal Principles to the Facts:
[121] It is well established that a stay of proceedings is available only the “clearest of cases.” Given the circumstances surrounding the discovery of the firearm, the applicant respectfully submits that lost disclosure concerning this critical event rises to such a level.
[122] Where the allegation is that there has been a violation of the right to disclosure, the burden will be on the Crown to show that there has been no “unacceptable negligence” in relation to the lost or destroyed evidence. For allegations of abuse of process or serious prejudice to the accused’s fair trial rights, the burden remains on the accused throughout: Hassan, at para. 10.
[123] The Ontario Court of Appeal in R. v. Bero, 2000 16956 (ON CA), [2000] O.J. No. 4199 (C.A.) at para. 30, has adopted the following guiding principles for the s. 7 analysis at stage one:
a) The Crown has an obligation to disclose all relevant information in its possession.
b) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.
c) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession [or has lost/destroyed relevant evidence], it must explain their absence.
d) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
e) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
f) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights. In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.
g) […]
h) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. […]
[124] I agree with the Crown that these principles recognize that evidence may be lost or destroyed without there having been any unacceptable negligence or abuse of process. The police are not to be held to a “standard of perfection”. Something more than mere negligence is required. An inadvertent oversight is not enough. As the Supreme Court observed in La, at para. 20:
[…] despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. […]
[125] See also R. v. Laing, 2016 ONCA 184, at paras. 37, 39, Hersi, at para. 30.
[126] For state conduct to rise to the higher level of abuse of process, it must be such as to violate the fundamental principles that lie at the heart of the “community’s sense of decency and fair play”. Deliberate destruction undertaken for the purpose of defeating the Crown’s disclosure obligation is conduct that will typically fall in this category. However, an improper purpose is not essential to a finding of abuse of process. In some cases, an unacceptable degree of negligence may lead to a finding of abuse of process. A stay of proceedings may however be granted in exceptional cases where the state conduct compromises trial fairness.
[127] They may also be imposed in rare circumstances where the state conduct risks undermining the integrity of the trial process. In both cases, the test is the same.
[128] The test used to determine whether a stay of proceedings is warranted consists of three requirements and is outlined by the Supreme Court in R. v. Regan, 2002 SCC 12. [2002] 1 S.C.R. 297 at paras. 54 and 57, and also R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R 309, at para. 32:
There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.
There must be no alternative remedy capable of redressing the prejudice; and
Where there is uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57)
[129] In all cases, a fact-specific analysis will be required with a particular focus on the “actual prejudice” caused to the accused and the degree of prejudice caused to the result at trial or to the administration of justice.
[130] The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration: R. v. Bradford, 2001 24101 (ON CA), [2001] O.J. No. 107 (C.A.) at para. 8.
[131] In assessing alleged prejudice, it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair but not to the fairest of all possible trials. The impact of any lost or destroyed evidence must be considered in the context of the case as a whole including other evidence available to the defence and the presence or absence of police misconduct. Where the defence can achieve the same result through other means, actual prejudice will not be made out: Bradford, at paras. 5 – 8, Hersi, at paras. 36 - 39.
[132] I observe that the February 26, 2019 request by applicant’s counsel did not include the specific request for the sally port video when his client was not present. Based on his request, the police provided the video requested which was stated as “capturing his client’s interactions with police and while lodged in police custody”. There is no reasonable interpretation of counsel’s request that this was to include video portions of the station where his client was not present.
[133] That being said, there was some merit to Mr. Shaffie’s argument that once Duma became aware of the issues related to the seizure of the firearm from the police cruiser, it then crystalized the import of the sally port video. Nonetheless, the applicant must establish that the lack of surveillance video from the sally port during the time the firearm was found in the back of the cruiser has caused actual prejudice to his right to make full answer and defence. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an important consideration. In La, for example, a case in which the police lost the complainant’s recorded statement, the Supreme Court held that the appellant had failed to demonstrate that his right to make full answer and defence had been prejudiced because an alternative source of information was available: La, at paras. 24-25, 32.
[134] Duma was available for cross-examination and questioned about finding the firearm in the cruiser. As well, the surveillance video of the sally port where the accused is present was still available.
[135] In this case, the Crown concedes the evidence was relevant, albeit marginally, and it was destroyed or lost by the state. I accept Ms. Lepchuk’s argument that reasonable steps were taken to preserve and disclose what was perceived to be relevant evidence and the loss of the evidence was not due to unacceptable negligence on the part of the police or the Crown. Hamilton Police have a retention policy of six months for videos taken inside their facilities. There are both storage and cost issues with retaining this type of data. Even if the policy timeframe was not followed in this case, something more than mere negligence is required. An inadvertent oversight is not enough.
[136] I am not satisfied that the loss of the sally port video gives rise to prejudice and the relief sought of a stay of proceedings. Nor is there a basis for exclusion under s. 24(2) of the Charter. The applicant presented a defence based on the evidence disclosed and tested at trial. The officer was cross-examined at length about his actions. In sum, the non-disclosure of the sally port surveillance video did neither affect the fairness of the trial process nor was the applicant was prejudiced to the extent where he could not make full answer and defence. Moreover, the suggestion that the surveillance of the parking lot area where the cruiser was parked before the shift could afford reliable evidence is merely speculative.
[137] The Charter application is dismissed. While the applicant has failed to demonstrate a Charter violation, the lost surveillance video can also be a consideration in my overall assessment of the officers’ testimony and whether the Crown has proven the firearm counts beyond a reasonable doubt.
Analysis: Firearm offences:
[138] With the dismissal of the Charter application, has the Crown established the accused’s culpability for the firearm offences?
[139] Both Duma and Dwhytie described the steps they took to search the cruiser prior to their use on shift. The steps were described for the most part as a habit or practice prior to shift. Duma had no specific recollection. Dwhytie explained that that she actually observed Duma search the police vehicle.
[140] Duma did not have an independent recollection of the detailed steps of the search of the applicant on either occasion. Duma admitted conducting a poor and incomplete search of the applicant. Duma testified that when he found the weapon he thought he was “going to throw up because he could have been shot in the back of his car.” The firearm was described about 5 1/2 inches in length and black in colour. The footwell area of the cruiser is also black.
[141] The applicant was compliant during the searches and while being transported to the police station. There were no unusual movements by the applicant while in the cruiser observed by either officer. Dymkowksi was strip searched at the station and no holsters, cartridges or other devices related to a firearm were found.
[142] Frankly, I am not persuaded by Duma’s evidence on this point. It seems to me that much of his evidence is glossed over by equivocal responses and filling in the gaps, where necessary. Admittedly, there was sloppy police work. The officer admitted not conducting a fulsome search of the accused on both occasions at the scene. After all, what else could he say? A fully loaded gun was found in the police cruiser and the potential for its lethal use towards one or both officers is not lost on them or me. Duma’s responses in cross-examination on this very issue are entirely self-serving.
[143] The accused was handcuffed, restrained in the police cruiser. True, he was left alone for period of time however, there was no evidence that he fidgeted while seated. It also seems that the calisthenics involved to manipulate the gun from his waist or wherever it was secreted to well under the footwell area in front of him, undetected, would be a monumental effort, neither observed nor heard by the officers, at least whilst on route to the police station.
[144] Duma testified that he had to go out on an earlier call for an industrial accident. He claimed he searched the cruiser prior to shift. If he put in the same amount of effort that he had with the accused during the two searches at the scene, with his cursory search of the cruiser at the beginning of the shift, then clearly his efforts are less than robust or complete. I am not satisfied he searched the cruiser thoroughly. Dwhytie’s explanations, if any, are also rejected. With respect to both officers, I find that there was no independent recollection of this date but merely going on their habitual practice.
[145] The issue here is possession and control of the loaded firearm. I agree with Mr. Shaffie that, the officer, having been placed on notice of the issues in this case from the cross-examination at the preliminary inquiry, he ought to have taken steps to alert the Crown about the feasibility of the sally port video to corroborate his evidence. Indeed, the surveillance video of the sally port area would have been some cogent, confirmatory evidence to assist the reliability of this officer’s testimony.
[146] I find that the officers’ testimony in relation to the initial search of the police cruiser and Duma’s searches of the applicant upon arrest is unreliable.
[147] In sum, the Crown has failed to establish possession and control of the impugned firearm beyond a reasonable doubt.
Conclusion:
[148] For all of the aforementioned reasons, I find that the applicant’s ss. 8, 9 and 10 Charter rights were not breached. In any event, the evidence would be admitted under s. 24(2) of the Charter. Absent a Charter violation, the various drugs seized from the applicant are admitted into evidence.
[149] On all of the evidence adduced at trial, I am satisfied beyond a reasonable doubt that the Crown has established the essential elements of the drug related offences and the accused is found guilty of all of the drug charges upon which he was arraigned. Convictions shall be registered on the indictment.
[150] In respect of the firearm related offences, the applicant has failed to establish a breach of his s. 7 Charter rights by virtue of an allegation of lost evidence.
[151] However, I am not satisfied beyond a reasonable doubt that the accused had possession and control of the weapon and had actually placed the loaded firearm in the rear footwell of the police cruiser after his arrest. I reject the police officer’s evidence on this point as unreliable. In other words, the Crown has failed to establish the accused’s exclusive opportunity to commit the offence.
[152] Therefore, the accused is found not guilty of all of the firearm related counts.
A.J. Goodman J.
Released: December 23, 2021
COURT FILE NO.: CR 20-278, 20-279
DATE: 2021/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown/Respondent
- and -
MACIEJ DYMKOWSKI
Applicant/Accused
REASONS FOR JUDGMENT
A. J. GOODMAN J.
Released: December 23, 2021