COURT FILE NO.: CR-21-1467

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BASIL MANSFIELD

Mr. T. Powell, for the Crown/Respondent

Mr. C. Levien, for the Accused/Applicant

HEARD: February 23, 2022 by videoconference

REASONS FOR DECISION

STRIBOPOULOS J.

Introduction

[1] The accused, Basil Mansfield, faces various firearms-related charges. The charges resulted from the police finding two handguns in the pockets of his pants when they searched him following his arrest on October 18, 2020.

[2] As a case management judge, I heard a Charter application brought by Mr. Mansfield. He claims that the arresting officer lacked the reasonable grounds required to arrest him. It follows, he submits, that his arrest and search were unlawful and violated his section 9 and section 8 Charter rights. By way of remedy, Mr. Mansfield seeks an order excluding the firearms from evidence under section 24(2) of the Charter.

[3] The Crown opposes the application. The Crown submits that there were reasonable grounds to arrest Mr. Mansfield and, as a result, that neither his arrest nor subsequent search breached his Charter rights. Alternatively, even if the firearms were obtained in a manner that violated Mr. Mansfield’s constitutional rights, the Crown submits that their admission into evidence would not bring the administration of justice into disrepute in all the circumstances. Therefore, argues the Crown, an order excluding the firearms from evidence under section 24(2) of the Charter is not justified.

[4] These reasons will proceed in two main parts. In the first part, the evidence of the arresting officer, Constable Hillmer, who was the only witness to testify on the application, will be summarized. Then, in the second part, these reasons will address the issues raised given the evidence, the governing principles, and findings.

I. Evidence

[5] The investigation culminating in Mr. Mansfield’s arrest began on October 12, 2020, when police received a confidential tip that a man named “Jaheim Powell” had a firearm. After receiving that information, police began surveilling Mr. Powell. They wanted to ascertain the addresses Mr. Powell frequented and the people he associated with to acquire the grounds necessary to secure and execute search warrants to locate and seize the firearm.

[6] During their investigation, police determined that Mr. Powell lived at 1155 Queen Street East, Apartment 2504, and occasionally visited 15 Eastbourne Drive, Apartment 606, each in Brampton.

Surveillance on October 13, 2020 – Mr. Mansfield enters the picture

[7] On October 13, 2020, Constable Hillmer attended 15 Eastbourne Drive. The building has CCTV cameras located in its lobby and on its elevators. With the building manager’s assistance, Constable Hillmer reviewed surveillance footage from that day. While doing so, he observed a man entering the elevator on the sixth floor and then exiting in the lobby. The building manager identified that person as “Basil” and told Constable Hillmer that he was the son of the tenant in Apartment 606.

[8] Later that day, Constable Hillmer attended the police division, where he queried the police system for occurrences relating to Apartment 606. Reports concerning that apartment revealed that it had been the subject of frequent noise complaints and that the tenant was “Basil Parkes,” and that his son was named “Basil Mansfield.”

[9] The confidential informant had not mentioned Mr. Mansfield. Accordingly, Constable Hillmer ran various records checks on Mr. Mansfield. Although the officer could not recall if Mr. Mansfield had a criminal record, he remembered not finding anything to suggest that Mr. Mansfield had any involvement with firearms.

[10] Constable Hillmer then informed the investigative team of Mr. Mansfield’s identity, appearance, and connection to the Eastbourne Drive address. According to the officer, Mr. Mansfield only became a “person of interest” as the investigation unfolded because of his association with Mr. Powell.

Surveillance on October 14, 2020

[11] On October 14, 2020, at 5:11 p.m., police officers conducting surveillance at 15 Eastbourne Drive saw Mr. Powell standing on Apartment 606’s balcony; he was with some other men, but not Mr. Mansfield.

[12] A short time later, at 5:33 p.m., Constable Hillmer, who was participating in surveillance that day, saw Mr. Mansfield standing on the balcony, alone, while talking on a cell phone. Then, at 5:54 p.m., Constable Hillmer observed Mr. Mansfield exit the building by himself. He then got into the passenger seat of a blue Honda Civic parked out front of the building and drove off.

[13] At 6:29 p.m., surveillance officers saw Mr. Mansfield return to the building in that same vehicle. He exited from the car’s passenger side before walking to a convenience store across the street. Mr. Mansfield returned to the building at 6:37 p.m. in the company of another man, and together they entered the lobby.

[14] At 8:58 p.m., surveillance officers observed Mr. Powell exit 15 Eastbourne Drive from the front lobby doors. Once outside, he got into a Honda Civic on the passenger side, and the vehicle drove away. Police followed the car to 1155 Queen Street East, where Mr. Powell entered the building. At 9:38 p.m., police observed Mr. Powell leaving the building in the company of a man and a woman in their twenties; they entered the same Honda Civic, which then drove off. The police followed the car for a period but eventually lost sight of it on Highway 401.

Surveillance on October 15, 2020

[15] On the evening of October 15, 2020, Constable Hillmer attended 15 Eastbourne Drive. While reviewing surveillance footage at the building, he saw that Mr. Powell had returned by himself at 4:41 p.m. that day. Police continued conducting surveillance at 15 Eastbourne Drive but made no further noteworthy observations that evening.

Surveillance and the issuance of search warrants on October 16, 2020

[16] On October 16, 2020, the police obtained a search warrant for 1155 Queen Street East, Apartment 2504, and 15 Eastbourne Drive, Apartment 606. The warrant authorized police to search both addresses for a firearm, ammunition, and related documentation. The warrant was valid for a daytime search between October 16, 2020, and October 18, 2020.

[17] That afternoon, Constable Hillmer attended at 15 Eastbourne Drive to review surveillance footage to determine whether Mr. Powell was present at that location. After doing so, he concluded that Mr. Powell was not there. Police continued conducting surveillance at the building until 9:00 p.m. that night but did not make any noteworthy observations.

Surveillance and Mr. Mansfield’s arrest on October 18, 2020

[18] On October 18, 2020, Constable Hillmer went back to 15 Eastbourne Drive. After reviewing surveillance footage, he began watching the live feed from the building’s CCTV cameras. At 1:57 p.m., he saw Mr. Powell and Mr. Mansfield enter the lobby of the building accompanied by an unknown male. The three men then took the elevator up to the sixth floor.

[19] Having confirmed that Mr. Powell was present at 15 Eastbourne Drive, Constable Hillmer advised the other police officers involved in the investigation of this development so that they could begin preparing to execute the search warrant at Apartment 606.

[20] At some point that afternoon, Constable Hillmer recalls seeing “two or three parties” enter the elevator on the sixth floor and attend the lobby. These individuals went to a vending machine before returning to the elevator and the sixth floor. Unfortunately, Constable Hillmer failed to make a notation concerning this observation, and he could not recall who these people were and whether Mr. Mansfield was one of them. Nevertheless, he was confident that he had previously seen whoever attended the lobby during the police investigation.

[21] Eventually, Constable Hillmer was advised that the tactical team was on its way to 15 Eastbourne Drive to execute the search warrant at Apartment 606. While he was still in the management office next to the lobby, he was tasked with meeting members of the tactical team at a back door to grant them access to the building. As a result, Constable Hillmer left the management office and made his way down a long corridor to the southeast corner of the building. There, he opened the door for members of the tactical team so they could enter the building and ascend to the sixth floor using a staircase at that location.

[22] Constable Hillmer opened the backdoor, and the tactical team members entered the building. He estimated that there were more than ten but less than twenty tactical officers. The last tactical officer inside held the door for Constable Hillmer, who then went to his vehicle to put on his police equipment. When Constable Hillmer returned a few minutes later, the tactical officer who held the door said that he would remain in that position in case anyone attempted to flee the building from that door. He asked Constable Hillmer to go to a back entrance on the other side of the building to do the same.

[23] Constable Hillmer then began making his way over to the back exit on the other side of the building. As he ran down a hallway on the main floor and toward the lobby, now wearing his police vest, at approximately 4:00 p.m., he saw a man he believed to be Mr. Mansfield walk through the lobby in the distance. Constable Hillmer had no idea where Mr. Mansfield was coming from. Mr. Mansfield was walking in the direction of a side exit at the front of the building, and Constable Hillmer decided to follow him.

[24] Constable Hillmer briefly lost sight of Mr. Mansfield. Once outside, however, Constable Hillmer saw Mr. Mansfield in the distance walking across the parking lot and toward a nearby green space. He testified that Mr. Mansfield was “not running,” “not doing a fast walk,” but instead was “doing a slow walk away from the building.” Although Constable Hillmer could not see his face, he believed it was Mr. Mansfield because he wore the same clothing he had on earlier in the day. At that point, Constable Hillmer called over his radio for assistance.

[25] Constable Hillmer testified that Mr. Mansfield was facing straight ahead as he walked. He never looked back over his shoulder. There was nothing about Mr. Mansfield, such as how he moved his hands or gait, that left Constable Hillmer with the impression that he was carrying anything.

[26] As Mr. Mansfield walked away from the building, Constable Hillmer ran towards him and quickly closed the space between them. Constable Hillmer called out “Basil” when he was within a few feet of Mr. Mansfield. With that, Mr. Mansfield turned around just as Constable Hillmer placed a hand on him, while telling him he was under arrest for unauthorized possession of a firearm, and ordered him to the ground. Mr. Mansfield complied with that direction and went to the pavement. The arrest occurred at approximately 4:05 p.m.

[27] Constable Hillmer testified that as he approached Mr. Mansfield, he intended to place him under arrest for unauthorized firearm possession after positively identifying him. During his testimony, Constable Hillmer described “reasonable grounds” as the standard that governs his authority to arrest. When asked to explain his grounds for arresting Mr. Mansfield, Constable Hillmer testified:

Well, it starts with the fact that we had received information that Jaheim Powell was in possession of a firearm, and we knew, based on surveillance, that Jaheim Powell was an associate of Mr. Mansfield’s. We also had observed, through surveillance that both of them had access to this unit 606 within the building and were seen within that unit during surveillance. That day, of - on the October 18th, the day of the execution of the search warrant, we observed Mr. Mansfield and Mr. Powell attend the building together, in each other’s company, get on the elevator and exit the sixth floor together, presumably to go to unit 606. But we don’t, we don’t have surveillance on that, that floor. So we have a granted search warrant for the premise of 606 at 15 Eastbourne Drive and believe that there is a firearm in that unit. Then as our TAC is arriving at the - to execute the, the warrant, and they’re, they’re heading up the stairs, presumably - again, I don’t know where they are at this point, but they are there to execute the search warrant. I observe Mr. Mansfield attempting to leave the building at the time that the warrant is being executed, which leads me to believe that he is possibly fleeing for the purpose of taking any evidence, i.e., firearms, out of that unit and away from, from - away from the scene, away from the apartment.

[Emphasis added]

[28] As Constable Hillmer took Mr. Mansfield to the ground, his knee struck something hard in Mr. Mansfield’s front left pants pocket. That caused Constable Hillmer, once they were on the ground, to immediately reach into that pocket. He located a silver revolver-style handgun. The officer slid the gun out of their reach. Within moments, a second police officer pulled up in his police vehicle to assist Constable Hillmer. The two officers then began handcuffing Mr. Mansfield. As they did so, Mr. Mansfield said something that caused the second officer to reach into Mr. Mansfield’s front right pocket, where he retrieved another firearm, a semi-automatic handgun.

[29] Constable Hillmer testified that Mr. Mansfield was compliant and cooperative until the officers handcuffed him. After that, he testified that Mr. Mansfield became upset and started swearing at them.

[30] Asked about his legal authority to search Mr. Mansfield, Constable Hillmer cited the search incident to arrest power. The officer testified that he searched Mr. Mansfield for evidence concerning the firearm offence.

[31] Constable Hillmer did not unholster his firearm as he approached Mr. Mansfield to arrest him. Constable Hillmer conceded that if he planned on arresting someone he believed armed with a gun, he would ordinarily remove his firearm and order the person to the ground. However, Constable Hillmer explained why he did not do that in this case. He testified to worrying that Mr. Mansfield would respond by taking flight if he took that approach. He explained that in this “dynamic situation,” he made a “split-second” decision not to use his firearm, testifying:

And as I’m running towards him, it all happened so quickly that I decided that the best course of action was for me just to take physical control of him, as he didn’t see me approaching him until I had closed the gap to where I’d be able to put - physically put hands on him before he’d be able to access anything. So that was my conscious decision not to use my firearm because I had been able to close the gap on him without him realizing that I was there because, as I mentioned, he wasn’t looking behind him. And then when I called out to him, I was able to put hands on him at the, at the moment that he turned around and saw me, and I ordered him to the ground. So that was my - that was my reasoning for not pulling my firearm on this occasion.

II. Law and Analysis

[32] With the evidence summarized, these reasons turn to analyze the issues raised by the application given the governing principles and findings.

1. Did the arrest violate Mr. Mansfield’s section 9 Charter right not to be arbitrarily detained?

[33] Section 9 of the Charter provides that: “Everyone has the right not to be arbitrarily detained or imprisoned.”

[34] The starting point for analyzing a claim under section 9 is determining whether a claimant was “detained or imprisoned.” The constitutional guarantee is only engaged when an individual is subject to significant physical or psychological constraint, incursions on their liberty that rise to the level of detention or imprisonment: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 29; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19.

[35] When arrested, a person is taken into custody, which entails a complete and involuntary suspension of their liberty: see R. v. Whitfield, 1969 CanLII 4 (SCC), [1970] S.C.R. 46, at p. 48; R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 42-45. Those arrested are not free to leave; compelled to remain, they are necessarily “detained” under section 9 of the Charter: see Grant, at para. 34

[36] Therefore, Mr. Mansfield was “detained” under section 9 of the Charter when Constable Hillmer arrested him.

[37] Once a claimant establishes a detention, the court must determine if it was arbitrary. A detention must satisfy three requirements to comply with the constitutional guarantee. The detention (i) must be authorized by law; (ii) the law cannot be arbitrary; and (iii) it must be carried out reasonably: see Grant, at paras. 54-56; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124. The first requirement means that “a detention not authorized by law is arbitrary and violates s. 9”: Grant, at para. 54. Accordingly, if Mr. Mansfield’s arrest was unlawful, it violated his section 9 Charter right not to be arbitrarily detained: see R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3; R. v. Tim, 2022 SCC 12, at para. 22.

[38] In the circumstances, Constable Hillmer’s lawful authority to arrest Mr. Mansfield depended on section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. Under that provision, a police officer may arrest a person without a warrant “who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.” (emphasis added).

[39] An earlier iteration of section 495(1)(a) provided that an officer must have “reasonable and probable grounds” to arrest: Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.), s. 450(1)(a) (emphasis added). However, among other reforms, the Law Reform Commission of Canada recommended the removal of the word “probable” from the section because it was “superfluous”: see Law Reform Commission of Canada, Arrest (Working Paper 41) (Ottawa: Supply and Services Canada, 1985) at pp. 74-76, 82. Parliament acted on that recommendation: see Criminal Code, R.S.C. 1985, c. C-46, ss. 495(1)(a).

[40] That amendment has not affected the meaning of section 495(1)(a) because “reasonableness comprehends a requirement of probability”: R. v. Smellie (1994), 1994 CanLII 1612 (BC CA), 95 C.C.C. (3d) 9 (B.C.C.A.), at p. 17, leave to appeal refused [1995] S.C.C.A. No. 64. Courts have treated “reasonable grounds” and “reasonable and probable grounds” to believe as different ways of expressing the very same standard: see Steven Penney, “Standards of Suspicion” (2017) 64 Crim. L.Q. 23, at p. 28.

[41] The Supreme Court of Canada has recognized that the “reasonable and probable grounds” standard has both subjective and objective elements. The arresting officer must personally believe that they possess reasonable and probable grounds to arrest. Further, that officer’s grounds for arrest must also be objectively established, meaning that a reasonable person, standing in the officer’s shoes, would have believed reasonable and probable grounds existed to make the arrest: see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 24; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 28.

[42] To be sure, the “reasonable and probable grounds” standard is difficult to define with precision. Nevertheless, the Supreme Court of Canada has elucidated its meaning by placing it along a spectrum. It expresses a standard of reasonable probability, which involves something less than proof beyond a reasonable doubt, a balance of probabilities or a prima facie case: see R. v. DeBot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; Storrey, at pp. 250-251; Stillman, at para. 28; Tim, at para. 24.

[43] At the same time, it demands more than the less exacting “reasonable suspicion” standard, which governs the investigative detention power: see Mann, at para. 34. Unlike “reasonable suspicion,” which requires “a reasonable belief that an individual might be connected to a particular offence,” the “reasonable and probable grounds standard” demands “a reasonable belief that an individual is connected” to a crime: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 74 (italics in original). Stated differently, “reasonable suspicion” engages a reasonable possibility, whereas “reasonable and probable grounds” requires a reasonable probability: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26, 32.

[44] In short, the standard of reasonable and probable grounds is met “at the point where credibly-based probability replaces suspicion”: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167.

[45] With the governing principles summarized, I begin my analysis by considering the subjective part of the test. Did Constable Hillmer subjectively believe he had reasonable and probable grounds to arrest Mr. Mansfield for possessing an unauthorized firearm?

[46] During his testimony, Constable Hillmer correctly identified “reasonable grounds” as the standard controlling his authority to arrest. However, he did not testify, possibly because no one asked him directly, that he believed he had reasonable and probable grounds to arrest Mr. Mansfield. Instead, Constable Hillmer detailed his grounds before explaining that he arrested Mansfield because he believed he was: “possibly fleeing to take any evidence, i.e., firearms, out of that unit and away from, from – away from the scene, away from the apartment.” Constable Hillmer’s actions preceding the arrest suggest his use of the word “possibly” was not just a slip of the tongue.

[47] Notably, Constable Hillmer did not draw his gun to affect the arrest. That is difficult to square with him believing that Mr. Mansfield probably had a gun. After all, had Mr. Mansfield suddenly turned around and pointed a firearm at him, Constable Hillmer would have had no way of defending himself against a potentially lethal threat. In that respect, Constable Hillmer's explanation for why he did not draw his gun seems, at best, an after-the-fact rationalization instead of an accurate description of his actual thought process in the moments preceding the arrest. How Constable Hillmer chose to carry out the arrest provides powerful circumstantial evidence that, at the very most, he thought there was only the remotest possibility that Mr. Mansfield might have an unauthorized firearm

[48] For these reasons, I find that Constable Hillmer did not possess reasonable and probable grounds to arrest Mr. Mansfield from a subjective standpoint. As the Supreme Court of Canada observed in Feeney, at para. 34, “[a]ny finding that the subjective test is not met will generally imply that the objective test is not met, unless the officer is to be considered to have an unreasonably high standard.”

[49] Out of an abundance of caution, however, it is sensible to go on and consider whether there were reasonable and probable grounds to arrest Mr. Mansfield for possession of an unauthorized firearm from an objective standpoint. Although in the circumstances, that would unlikely impact the legality of Mr. Mansfield’s arrest, it could weigh heavily in deciding whether to exclude or admit the evidence under section 24(2) of the Charter.

[50] With the benefit of hindsight, we now know that Mr. Mansfield had two handguns hidden in his pants pockets. However, the results can play no role when assessing whether a police officer had reasonable and probable grounds before arresting or searching: see R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 23; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 100, Binnie J., concurring. Allowing the results to weigh in the assessment would only validate arrests and searches that yield evidence of a crime and do nothing to protect the law-abiding from unjustified interferences with their liberty or unreasonable intrusions on their privacy. It is important to remember that courts almost only ever see cases where police investigative efforts paid off, and an arbitrary detention or an unreasonable search fortuitously yields evidence of a crime: see R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at p. 547, Wilson J., concurring; R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at p. 13, LaForest J., concurring.

[51] Instead, as the Supreme Court recently explained in Tim, at para. 24: “The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.” (emphasis added). In this case, the totality of the circumstances known to Constable Hillmer, an officer who had eight years of experience when he arrested Mr. Mansfield, included:

• The police received a confidential tip on October 12, 2020, that Mr. Powell had a firearm.

• On October 13, 2020, Mr. Mansfield was observed at 15 Eastbourne Drive.

• On October 14, 2020, within about a half-hour of one another, police observed Mr. Mansfield and then Mr. Powell on the balcony of Apartment 606 at 15 Eastbourne Drive.

• Mr. Mansfield’s father was the tenant at 15 Eastbourne Drive, Apartment 606, and the unit had been the subject of past noise complaints.

• On October 15, 2020, the police observed Mr. Powell attend 15 Eastbourne Drive.

• On October 16, 2020, the police obtained a warrant which authorized a search of 15 Eastbourne Drive, Apartment 606, between October 16, 2020, and October 20, 2020, for a firearm, ammunition, and related documentation. The issuance of that warrant undoubtedly furnished police, Constable Hillmer included, with reasonable and probable grounds to believe that there was a firearm inside that apartment.

• Mr. Mansfield and Mr. Powell were observed entering the building at 15 Eastbourne Drive together at 1:57 p.m. on October 18, 2020, boarding the elevator at the lobby and exiting on the sixth floor.

• Sometime after that, Constable Hillmer observed “two or three” people he had seen during the police investigation taking the elevator to the lobby from the sixth floor, going to a vending machine, and then heading back up to the sixth floor.

• The confidential informant had only relayed information concerning Mr. Powell having a firearm; the informant did not mention Mr. Mansfield. Police records checks did not reveal any basis to suspect that Mr. Mansfield had any involvement with guns.

• Constable Hillmer saw Mr. Mansfield walking through the lobby shortly after the tactical officers entered the building on October 18, 2020. However, Constable Hillmer had no idea from where Mr. Mansfield was coming.

• Constable Hillmer then saw Mr. Mansfield walking through the building’s parking lot towards a nearby green space. He was not looking around as he walked but facing straight ahead. There was nothing about Mr. Mansfield, such as how he moved his hands or gait, to suggest he was carrying anything.

[52] The entirety of the circumstances, considered cumulatively, fell far short of furnishing reasonable and probable grounds for an experienced police officer, like Constable Hillmer, to conclude that Mr. Mansfield had an unauthorized firearm in his possession and, thereby, justify his arrest.

[53] When he arrested Mr. Mansfield, Constable Hillmer had reasonable and probable grounds to believe that Mr. Powell had an unauthorized firearm and that he was keeping it in Apartment 606. He knew that Mr. Mansfield had a connection to Apartment 606 and some association with Mr. Powell. He also knew that Mr. Mansfield left the building shortly after the tactical officers arrived to execute the search warrant. These circumstances undoubtedly made Constable Hillmer suspicious that Mr. Mansfield might be spiriting the gun away. Acting on that suspicion, he decided to arrest Mr. Mansfield. However, without something more, the circumstances did not furnish reasonable and probable grounds to believe that Mr. Mansfield had an unauthorized firearm in his possession.

[54] The situation would have been very different if Constable Hillmer knew that the arrival of the tactical officers was conspicuous and that the occupants of Apartment 606 could have seen them arriving because of the apartment’s location in the building. If against that backdrop, Constable Hillmer saw Mr. Mansfield leaving the apartment, he would have at least had reasonable grounds to suspect he might have an unauthorized firearm: see e.g., R. v. Chaif-Gust, 2011 BCCA 528, 280 C.C.C. (3d) 548, at paras. 39-40. Combined with all of that, had Mr. Mansfield been running away from the building, acting furtively, or otherwise exhibiting behaviour consistent with carrying a gun, there would undoubtedly have been reasonable and probable grounds to believe he had a firearm.

[55] Instead, Constable Hillmer did not know whether the people in the apartment could even see the tactical officers arriving. Further, he did not know where Mr. Mansfield was coming from when he saw him in the lobby. Additionally, there was nothing about Mr. Mansfield’s background to suggest his involvement with firearms. Finally, there was nothing about his behaviour as he walked through the parking lot to indicate he had a gun.

[56] From an objective standpoint, there was nothing more than a remote possibility, slightly better than barren suspicion, that Mr. Mansfield might have a firearm because of his connection to Mr. Powell and the apartment, and him leaving the building after the tactical team arrived. That fell far short of furnishing the credibly based probability necessary to justify Mr. Mansfield’s arrest for possessing an unauthorized firearm.

[57] As a result, there was an absence of reasonable and probable grounds to arrest. Consequently, the arrest was unlawful and violated Mr. Mansfield's section 9 Charter right not to be arbitrarily detained.

2) Did the search violate Mr. Mansfield’s section 8 Charter right to be secure against unreasonable search or seizure?

[58] Section 8 of the Charter provides that: “Everyone has the right to be secure against unreasonable search or seizure.”

[59] The Supreme Court of Canada has recognized that a search or seizure conducted without a warrant is presumptively unreasonable: Hunter, at p. 161. To rebut that presumption, the Crown must establish on a balance of probabilities that a search or seizure (i) was authorized by law; (ii) the law itself was reasonable; and (iii) the search or seizure was carried out reasonably: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 37.

[60] The Crown relies on the common law search incident to arrest power to satisfy the first precondition and establish that Constable Hillmer lawfully searched Mr. Mansfield.

[61] The Supreme Court of Canada has identified three requirements for a valid search incident to arrest. First, the person searched must have been lawfully arrested; second, the search must be truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and third, the search must be conducted reasonably: see Tim, at para. 49; R. v. Stairs, 2022 SCC 11, at paras. 6 and 35; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para, 27.

[62] The conclusion that the arrest of Mr. Mansfield was unlawful is determinative of his section 8 Charter claim. The Crown cannot establish the first requirement for a valid search incident to arrest. Because the arrest was unlawful, the search violated Mr. Mansfield’s section 8 Charter right: see Stillman, at para. 27; Tim, para. 50.

3) Should the firearms be excluded from evidence under section 24(2) of the Charter?

[63] Mr. Mansfield seeks an order excluding the firearms from evidence under section 24(2) of the Charter. In contrast, the Crown maintains that the circumstances do not justify making such an order.

[64] The starting point for determining whether to exclude the firearms from evidence under section 24(2) is to decide whether they were “obtained in a manner” that violated Mr. Mansfield’s Charter rights. There was a direct causal link between the Charter breaches and the discovery of the firearms. Additionally, the constitutional violations have a close temporal and contextual connection to the evidence: see R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235 at para. 21; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-1006; Tim, at paras. 78-80. As a result, the firearms were “obtained in a manner” that violated Mr. Mansfield’s Charter rights and are eligible to be considered for exclusion under section 24(2) of the Charter.

[65] The decision whether to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires the court to consider “all the circumstances” of the case. To do so, the court must assess and balance the effect of admitting the evidence on the repute of the administration of justice in the long term, having regard to the three lines of inquiry recognized by the Supreme Court of Canada in Grant: at para. 71, 85-86.

a) The seriousness of the Charter-infringing state conduct

[66] The first line of inquiry requires the court to assess the state conduct that led to a Charter violation and situate it along a “spectrum” or “scale of culpability”: see Grant, at para. 74; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; Le, at para. 143; Tim, at para. 82. The Supreme Court of Canada recently provided a helpful summary of the governing principles concerning this first line of inquiry, noting in Tim, at para. 82, that:

At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern.

Mindful of these principles, in all the circumstances of this case, I believe the breaches deserve placement at the more culpable end of the spectrum.

[67] There is no basis to suggest that Constable Hillmer set out to unlawfully arrest Mr. Mansfield in willful disregard of his Charter rights. Instead, Mr. Mansfield’s departure from the building shortly after the tactical officers arrived to execute the search warrant aroused Constable Hillmer’s suspicion. Wanting to eliminate even the remote possibility that Mr. Mansfield might be walking away from the building with the handgun, Constable Hillmer decided to arrest him rather than risk losing what the police were hoping to find through the execution of a search warrant. Unfortunately, the officer’s focus was solely on the possible loss of evidence and not on the limits on his authority to arrest and the importance of respecting Mr. Mansfield’s Charter rights.

[68] No doubt, one could attempt to characterize the resulting Charter breaches as the product of “an understandable mistake,” especially given that Constable Hillmer had very little time to decide whether to detain Mr. Mansfield or let him walk away. Nevertheless, I am hard-pressed to describe the resulting Charter breaches so charitably for two principal reasons.

[69] First, based on the evidence, it would appear that Constable Hillmer did not appreciate the meaning of the “reasonable and probable grounds” standard. That a police officer with eight years of experience would think that the possibility that a person was engaged in criminal behaviour was sufficient to justify the intrusive step of an arrest is concerning. As the Supreme Court made clear in Grant, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith”: Grant, at para. 75. Accordingly, the police “are rightly expected to know what the law is”: Grant, at para. 133. Building on that observation, the Supreme Court noted in Le, at para. 143, that “the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards.”

[70] Second, this is not a situation involving a police officer faced with quickly unfolding events who had to make a snap decision and arrested based on grounds falling only just short of the mark. Instead, as explained, Constable Hillmer’s grounds to arrest Mr. Mansfield fell well below what the law requires. Although the officer acted without time for much reflection and did not have any malevolent intent, his decision to arrest based on little more than barren suspicion renders the breaches more serious. As the Supreme Court of Canada observed long ago, in R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at p. 29:

Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less.

[71] The court must disassociate itself from the spectre of the police arresting members of the community based on little more than suspicion. Especially when one remembers "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": Grant, at para. 75.

[72] In short, although the breaches were not deliberate, they were the result of unacceptable police negligence and represented a significant departure from well-established statutory and Charter standards. Therefore, they deserve placement at the more culpable end of the spectrum, which strongly favours exclusion.

b) The Impact of the breaches on Mr. Mansfield’s Charter protected interests

[73] Under this line of inquiry, the court must evaluate the extent to which the Charter breaches "actually undermined the interests protected by the right infringed": Grant, at para. 76.

[74] In undertaking that assessment, the court must "look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests": Grant, at para, 77. It must situate the impacts along a spectrum, which may vary from "fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed": Tim, at para. 90; Grant, at para. 76.

[75] The more impactful the breach is on the constitutionally protected interest, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute": Grant, at para. 76.

[76] The purpose of section 9 of the Charter is to protect "individual liberty from unjustified state interference": Grant, at para. 20. The right is not only concerned with protecting an individual's ability to move about freely unencumbered by unwarranted state interference but also aims to protect "against incursions on mental liberty by prohibiting the coercive pressures of detention … from being applied to people without adequate justification": Grant, at para. 20.

[77] Mr. Mansfield's unlawful arrest significantly impacted the interests that section 9 of the Charter aims to protect. Constable Hillmer told Mr. Mansfield he was under arrest while placing his hands on him and ordering him to the ground. In arresting Mr. Mansfield, Constable Hillmer took physical control over him, resulting in a complete suspension of his freedom of movement. Additionally, being arrested invariably occasions “significant psychological stress” for the person affected: Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 139. Therefore, the breach had a considerable impact on the liberty interests that the right is supposed to protect.

[78] Additionally, the search of Mr. Mansfield that followed his unlawful arrest meaningfully impacted the interests that section 8 of the Charter is meant to safeguard: his reasonable expectation of privacy: Hunter, at pp. 159-60. No doubt, there are far more privacy-invasive searches than a police officer emptying the contents of an individual’s pockets. However, a search inside one's pockets is no small matter. It involves some incidental physical contact with the person searched and probing into places that individuals have a relatively high expectation will remain free from unwarranted state intrusion.

[79] In summary, the impact of the breaches on Mr. Mansfield's Charter-protected interests also supports the exclusion of the evidence. The intrusions occasioned by the arrest and search were neither fleeting nor technical. On the contrary, these investigative measures meaningfully impacted Mr. Mansfield's liberty and privacy interests.

c) Society’s interest in the adjudication of the case on the merits

[80] Under the third and final line of inquiry, the court must consider society’s interest in having this case adjudicated on its merits. That requires the court to assess whether it would better serve truth-seeking to admit or exclude the evidence: Grant, para. 79.

[81] The firearms are entirely reliable evidence, and their exclusion will undoubtedly prove fatal to the prosecution of the charges against Mr. Mansfield: Grant, at paras. 81, 83. Under the final line of inquiry, these considerations weigh heavily in favour of admitting the evidence.

d) The final balancing

[82] After considering the three lines of inquiry identified in Grant, which encapsulate “all the circumstances” of the case, the court must decide whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: Grant, at paras. 85-86. This balancing exercise invariably requires a qualitative assessment that does not lend itself to “mathematical precision”: Grant, at para. 140.

[83] In this case, the gravity of the state misconduct occasioning the Charter breaches strongly favours exclusion. So too does the fact that the breaches had a significant impact on Mr. Mansfield’s liberty and privacy interests. In contrast, the third line of inquiry weighs heavily in favour of admitting the firearms into evidence.

[84] The first two lines of inquiry do not both need to favour exclusion for a court to conclude that the admission of the evidence would bring the administration of justice into disrepute. “It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”: Le, at para. 141. Nevertheless, as they do here, when “the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility”: Le, at para. 142.

[85] In all the circumstances, on balance, I have concluded that an order excluding the evidence is necessary. The repute of the administration of justice would be more negatively affected by the court admitting the evidence and failing to dissociate itself from rather serious Charter breaches that had a significant impact on Mr. Mansfield’s constitutionally protected interests.

Conclusion

[86] For all these reasons, the court grants Mr. Mansfield’s application and orders the firearms excluded from evidence under s. 24(2) of the Charter.

Justice J. Stribopoulos

COURT FILE NO.: CR-21-1467

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BASIL MANSFIELD

REASONS FOR DECISION

Stribopoulos J.

Released: May 17, 2022