COURT FILE NO.: CR-19-30000528-0000
DATE: 2022-10-31
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MOHAMMAD PATEL Applicant
Counsel: Kevin Pitt, for the Crown Marianne Salih, for the Applicant
HEARD: September 12, 13 and 14, 2022
BEFORE: Allen J.
REASONS FOR JUDGMENT
(Blended Voir Dire, s. 8, Charter of Rights)
THE PROCEEDING
[1] The parties re-elected a judge-alone trial and the matter proceeded as a blended voir dire over three days.
OVERVIEW
[2] The Applicant was charged on February 11, 2019 with several firearms offences in relation to possession of a loaded firearm. He was also arrested for first degree murder involving a firearm which charge is not before the court in this proceeding.
[3] The police observed the Applicant driving a vehicle they learned was a rental vehicle. The Guns and Gangs Task Force recovered the firearm and searched the vehicle incident to arrest. The search was conducted incident to a firearm related homicide that took place two years previously. During the search, the Applicant was handcuffed to the back and secured in an unmarked police vehicle.
[4] The Applicant seeks exclusion of the items seized from the vehicle, the firearm, the scene of crime photos, rental documents, and a driver’s licence in the Applicant’s name, on the basis that the search violated the Applicant’s rights under s. 8 of the Charter of Rights.
[5] The Applicant takes the position that there was no reasonable basis to search the vehicle for safety or to discover evidence related to the offence. The Applicant submits that the evidence demonstrates that the search was a routine matter or a matter of general police policy. In the Applicant’s estimation, the police drew conclusions about the Applicant based on “propensity reasoning and broad generalizations about loosely defined classes of people to search”.
[6] The Applicant argues that the search of the vehicle was not truly incident to the arrest and as such the police action constituted serious misconduct that breached the Applicant’s right to be protected from unreasonable search and seizure thereby jeopardizing public confidence in the administration of justice.
[7] The Respondent takes the position that there was no breach of the Applicant’s rights and that the police were justified in searching the vehicle because they were seeking to arrest the Applicant for the serious crime of first degree murder involving a firearm. It is the Respondent’s view that the police legitimately had officer safety and the safety of the public and the Applicant in mind when they searched the vehicle.
ISSUE
[8] Section 8 of the Charter of Rights protects a person’s right to be free from any and all unreasonable searches and seizures. The sole issue before the court is whether the search of the vehicle violated the Applicant’s rights as not being truly incident to his arrest.
THE EVIDENCE
The Task Force Briefing
[9] At a Guns and Gangs Task briefing conducted by Det. Johnston on February 11, 2019, officers on the Task Force were tasked to the area of the Applicant’s address at 410 McCowan Road, Unit 31 to locate and arrest him for first degree murder. They received this request from the Homicide Squad.
[10] The police on the Task Force on this investigation were Det. Stolf, Det. Johnston, DC Oliver, DC Racette, and DC Xiouris. DC Stolf was the officer in charge of the team. The officers were in plainclothes and driving unmarked vehicles. They arrived at the target address at 10:30 a.m. and began surveillance.
[11] The information from the Homicide Squad was that the Applicant, and at least one other individual, were alleged to have committed the murder in March 2017, two years before the arrest. The Task Force was not provided with the details of the incident or the role the Applicant played in the murder. Specifically, they did not know whether the Applicant was the shooter or a party to the offence.
The Homicide Squad Briefing
[12] The Task Force has expertise with firearm investigations. Other units such as the Homicide Squad and the Holdup Squad at times ask the Task Force for assistance with surveillance and arrest of suspects in their cases involving firearms.
[13] On February 8, 2019, a briefing between officers in the Homicide Squad and the Task Force was conducted by Det. Sgt. North of the Homicide Squad. DC Xiouris, Det. Stolf and Det. Johnston were in attendance. The Task Force officers received limited information which included a photo of the Applicant. The basic occurrence information the Task Force had in hand was that a murder was committed two years previously and that there was one person involved in addition to the Applicant. The Homicide Squad did not provide input to the decision to arrest and search the rental vehicle. Nor were they asked for input. The Homicide Squad did not give direction on what to search for.
Surveillance
[14] Shortly after 4:30 p.m. on February 11, 2019, DC Xiouris observed who he believed might be the Applicant exit the target address and enter a Ford Focus rental vehicle parked nearby. DC Xiouris remained at the target address after other officers departed. He arrived at the ESSO station, where the Applicant was eventually arrested, after the arrest was effected.
[15] In terms of safety concerns, the officers did not see the Applicant enter the vehicle carrying anything with him. Neither did they see him displaying the characteristics of an armed person. Nor did the Task Force have information that the rental vehicle was implicated in the homicide. As well, at no time did any officer observe the Applicant reach around in the vehicle.
[16] The officers followed the vehicle to an ESSO gas station at 2871 Eglinton Avenue East. At 4:43 p.m., the driver parked beside the vacuum cleaners. At 4:44 p.m., DC Oliver announced that he drove past the vehicle. He could not get a clear observation of the driver, later confirmed to be the Applicant, because he was seated reclined in the driver’s seat. He could only briefly see the top of his head. DC Oliver stated he had only seconds to observe the Applicant and could not see what he was doing.
[17] Moments later at 4:49 p.m, DC Oliver further observed the driver outside the vehicle and was able to confirm that the driver was the Applicant. He saw the Applicant exit the vehicle and begin to vacuum the front passenger side floor of the vehicle. At this point, Det. Stolf called for a take down and arrest of the Applicant.
The Arrest
[18] The police quickly approached the vehicle. DC Oliver and Det. Stolf went to the passenger side and took the Applicant to the ground and arrested him. Det. Johnston assisted with the arrest. The Applicant was arrested without incident within five minutes of leaving his residence. He was handcuffed to the rear and patted down. No firearm, only money, was seized from his person. Det. Stolf advised the Applicant of the reason for the arrest and gave him his rights to counsel.
[19] The Applicant was escorted to an unmarked police vehicle where Det. Stolf remained with him. He was then escorted to DC Racette’s police van where DC Racette remained with him. In terms of a safety concern, the police had no reason to believe the Applicant would be meeting another person at the gas station. There were five officers on the scene while the officers were searching the vehicle.
The Decision to Search the Vehicle
[20] There was no discussion among the officers before Det. Johnston called for the vehicle to be searched. As will be seen below in the evidence of each of the officers, they automatically decided to search the vehicle as a matter of the routine they follow with firearm-related homicides. The officers’ evidence is that the need to search was prompted by the concern for the safety of the officers, the public and the Applicant.
The Search
[21] Det. Johnston took scene of crime photos before and after the search. Officers Johnston, Xiouris, and Racette embarked on a search of the vehicle incident to arrest. DC Racette searched the front passenger area and recovered an I-phone that was plugged in. In the glove box he found a temporary driver’s licence and vehicle rental documents bearing the Applicant’s name.
[22] DC Racette then searched the rear passenger area of the vehicle. In the back pouch of the front passenger seat, located in front of the back passenger, DC Racette found a teal-coloured firearm. The firearm had one live round in the chamber and a 10-round magazine containing 9 mm bullets. The firearm was seized and proved it safe.
[23] DC Xiouris searched the driver’s side area where he located a satchel and a plastic shopping bag neither of which had evidentiary value. At the police station, DC Xiouris was detailed to seal the rental vehicle for towing and to assist with processing the arrest. After locating the firearm, the Task Force officers decided to have the vehicle towed to provide for the Homicide Squad to obtain a search warrant. No further evidence was seized.
[24] In terms of safety concerns, the Applicant was not near the scene of the rental vehicle when it was searched. He was handcuffed to the rear and situated 25 to 30 feet away secured in the police van guarded by officers. As noted earlier, there were five officers on the scene at the time of the search.
DC Oliver
[25] DC Oliver did not take part in the search of the vehicle. He searched the Applicant’s person and seized some currency. As noted above, he was tasked with remaining with the Applicant who was seated in his police van after the arrest by Det. Stolf. He testified he was confident the Applicant was secured in the vehicle as he handcuffed him to the rear in the company of another officer. DC Oliver estimated that his police van was about 25 to 30 feet from the rental vehicle.
DC Xiouris
[26] DC Xiouris was new on the Task Force at the time of this investigation. This was his first such assignment. DC Xiouris said he assumed there was a discussion with the Homicide Squad about the decision to search but he was unaware of it. His evidence about the purpose of the search was to make an arrest in connection to the homicide. DC Xiouris said he was looking mainly for electronic devices and possibly a weapon and clothing. He was concerned about lost evidence if the vehicle was not searched.
[27] The Task Force officers did not ask about, and did not know what, the Homicide Squad may have already seized during the homicide investigation two years previously such as the firearm, the Applicant’s clothing or electronic devices. DC Xiouris said he would still have seized any clothes or devices and surely the firearm in spite of not knowing what the Homicide already had seized. He thought forensic evidence from two years ago could still be extracted from the cellphone.
[28] DC Xiouris testified that the date of the homicide did not impact the decision to search the vehicle. He thought electronic devices and clothing could be kept for two years. He added that because the vehicle was a rented vehicle he was concerned that if the vehicle was not searched before it was returned to the rental company, and the rental company failed to search it, a subsequent renter or family could be endangered if a firearm remained in the vehicle.
[29] About the lack of communication between the Homicide Squad on the details of the investigation, DC Xiouris expressed concern that if the Homicide Squad had provided them information about the investigation, the Task Force Officers would not be able to be impartial in their investigation. He also indicated that the Homicide Squad would withhold information of its investigation because disclosing sensitive information could affect the investigation. DC Xiouris said he did not ask questions because he was new to the unit and left the questions to the more senior officers. However, he said he heard no questions from any other Task Force officer.
[30] Two scenarios were put to DC Xiouris and he was asked if he would search incident to arrest in those circumstances. He responded that if the Applicant was outside his vehicle when the police encountered him he would not search his vehicle. As well, DC Xiouris testified that if the police observed the Applicant drive to a mall and go shopping for three hours, then return to his vehicle, he would not search the vehicle.
DC Racette
[31] As noted earlier, DC Racette searched the front passenger side of the vehicle. His evidence was that there was no conversation about the decision to search the vehicle. He indicated the police were searching for the same types of items DC Xiouris mentioned, including identification documents.
[32] DC Racette was asked what he expected to find on the search given the two-year gap between the homicide and the search. He said a firearm. He said he would expect this because, unlike drugs, a firearm is not perishable which appears he meant a firearm can exist against the test of time. DC Racette stated that all firearm investigations are basically the same and the investigations are processed the same way. When a homicide involving a firearm is being investigated the vehicle where the suspect is found is routinely searched.
[33] DC Racette repeated his evidence from the preliminary inquiry that a person who has been involved in gun crime is likely to always carry a gun, whether the person was an accomplice or the principal. But at trial he added that whether a vehicle is searched is “situational”. It depends on the crime and the context. His position is that one of the situations where a search incident to an arrest is appropriate is where there is a reasonable belief a firearm would be found.
[34] DC Racette was also asked about the scenarios put to DC Xiouris.
[35] The officer testified that on a firearm investigation if he observed a suspect walking to his vehicle but had not entered it, he would not search the vehicle. And unlike DC Xiouris, with the mall scenario where the suspect shopped for three hours and approached his vehicle and was arrested, DC Racette indicated he would search the vehicle if the surveillance team had followed the suspect around and saw him enter and exit the mall. This he would do because there would be a likelihood a firearm would be found in the vehicle.
[36] A further scenario was presented about a suspect under investigation for a firearm whom the officers saw the day before and who is arrested in another location. DC Racette was also asked whether he would arrest the suspect. His response was if he did not see him in his vehicle, he would not arrest him.
[37] DC Racette was presented with a further scenario where he observes a suspect in his vehicle on a previous day and the suspect goes home to sleep and comes out of the house the next morning, where he had continuous observation of the suspect, would he arrest the suspect. DC Racette’s response was that he would not arrest the suspect because there would have been time to get a search warrant for the vehicle.
Det. Stolf
[38] Det. Stolf testified about the meeting with the Homicide Squad on February 8, 2019. He too testified that Det. Sgt. North gave limited information about the murder which Det. Stolf passed on to the Task Force three days later. He testified that his officers were asked to assist with surveillance and arrest in a firearm-related murder that took place in March 2017 involving two parties. The Task Force was not asked to execute a search warrant. Det. Stolf indicated that Det. Sgt. North advised there were grounds to arrest the Applicant. Det. Stolf’s team was tasked to follow the Applicant and another team was detailed to follow the other suspect.
[39] A person of interest package was provided by the Homicide Squad containing the names, physical descriptions, photos, criminal history, associates and addresses of the suspects. The Task Force officers were told the Applicant was known to drive rental cars. Det. Stolf never asked Det. Sgt. North what evidence, whether a firearm, had already been seized by the Homicide Squad at the homicide scene.
[40] Det. Stolf testified that he had never been to a Homicide Squad briefing where the specific details of the homicide investigation were provided. The Task Force was not provided with a list of items to collect in relation to the arrest of the Applicant.
[41] Det. Stolf testified he did not recall asking or being told what evidence should be collected. His view was that because a firearm was involved his team should search incident to arrest for safety and evidentiary purposes. Safety of the police, the public and the Applicant were his primary concerns. He indicated that he was aware the Applicant had a criminal background involving firearm and drug offences and that also influenced the decision to search.
[42] Det. Stolf testified he was not involved with the search and he did not speak to the other officers about the search. Regarding a decision to search a vehicle, Det. Stolf testified that supervising detectives give the order to search. He said Det. Johnston was the guiding officer on the search and gave the order to search the vehicle. Det. Stolf said he took no issue with that decision. He stated there is often no planning for a search in advance because of the fluidity of situations.
[43] Once the firearm was found, Det. Stolf arrested the Applicant, patted him down and escorted him to his patrol vehicle. Det. Stolf called the Homicide Squad to inform them about the arrest and the firearm. It was decided that the vehicle would be sealed and a search warrant obtained and the vehicle towed.
Det. Johnston
[44] Det. Johnston also attended the Homicide Squad briefing. He confirmed the limited information that other officers indicated was provided by the Homicide Squad. Det. Johnston indicated that the Homicide Squad only provides information necessary for the continuation of their investigation.
[45] Det. Johnston said the combined concern over the homicide with a firearm and the observations of the Applicant driving the vehicle, and then unusually reclining in his seat, justified the search of the vehicle. He was aware the Applicant was on bail for firearms and drugs and that the police could likely find bail papers in the vehicle that could lead to further charges.
[46] Once the Applicant was under arrest, Det. Johnston began taking the scene of crime photos which include photos of the interior of the vehicle and the seized items which were shown in court. He did not seize anything himself.
[47] Det. Johnston also testified he had heightened concerns about the safety of officers, the public and the Applicant because of the homicide involving a firearm. He also considered the prospect that the Applicant might have known he was being surveilled since he leaned back in his seat so he could barely be seen. However, he admitted he had no information that the Applicant was aware of being watched by the police and that the police could not see what he was doing in his vehicle. This was just speculation.
[48] Det. Johnston listed the reasons the search was justified: the suspect being connected to the vehicle; that the arrest involved a serious crime; the suspect searching the vehicle in an “unobtrusive manner” especially as he was on the driver’s side where he was reclined. He indicated he had no fear of the Applicant escaping custody.
[49] Det. Johnston acknowledged that the search must be reasonable in the circumstances. He also echoed DC Xiouris’s concern that the vehicle needed to be searched to prevent it being returned to the rental company with dangerous contraband in it.
[50] Scenarios were also presented to Det. Johnston. He responded in the negative to each question about whether he would arrest a suspect in certain circumstances. He was asked whether if the Applicant was leaving his house and he was arrested, would he have the authority to search his vehicle. The officer responded in the negative. He was also given the shopping mall scenario posed to Officers Xiouris and Racette and he responded that he would not arrest in those circumstances.
THE LAW
Basic Principles
[51] The Applicant does not challenge the validity of the search or the manner in which the search was conducted. The Applicant’s position is based on his view that the arrest was too remote in time for the police to be justified in its search and that there was no real concern for safety once the Applicant was arrested and handcuffed to the rear, moved away from his vehicle and secured in a patrol vehicle.
[52] Searches incident to an arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84, (S.C.C.). A search incident to an arrest may be conducted: to guarantee the safety of the police and the public; to prevent the escape of a suspect; to obtain evidence against a suspect; and to prevent the destruction of evidence: Cloutier c. Langlois (1990), 1990 122 (SCC), 53 C.C.C. (3d) 257 (S.C.C.) and R. v. Belnavis (1997), 997 320 (SCC), 1997 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.). It follows that an arrest itself must be lawful for the police to have the authority to conduct a search incident to the arrest.
[53] Prior judicial authorization by means of a search warrant is generally required before a search can be effected. This places limits on the power to search incident to arrest. The search must be “truly incidental to the arrest” which requires the police to establish a valid reason, related to the arrest, for conducting the search at the time the search was conducted. The reason must be objectively reasonable. That is, the police must subjectively have a valid purpose for the search and that reason must be objectively reasonable: R. v. Caslake, 1998 838 (SCC), [1998] 1 SCR 51, at para. 25, (S.C.C).
[54] R. v. Caslake sets down the three main factors that must be satisfied to justify a search incident to arrest:
a) to ensure the safety of the police or the public or the accused;
b) to prevent the destruction of evidence by the arrested person and others; or
c) to discover evidence of the offence for which the arrest was made.
[55] The Respondent does not assert that the police conducted the search to prevent the destruction of evidence.
[56] The objective factor is met if the police had a “reasonable basis” to conduct the search for one of the aforementioned purposes having regard to all the surrounding circumstances: R. v Caslake, at para 20. The necessity to meet subjective and objective factors means that the power to search incident to arrest is discretionary and requires the police in advance of conducting a search to apply their minds to whether they have the basis for the search and to satisfy themselves that a basis does exist: Cloutier c. Langlois, 1990 122 (SCC), [1990] 1 SCR 158 (SCC).
[57] The Saskatchewan Court of Appeal, citing a scholastic work on detention and arrest, comments on the problem with police conducting searches incident to arrest routinely and as a matter of a general policy:
The power to search flows directly from the arrest; on the other hand, the search should not be conducted automatically. In effect, police might well be able to decide each time, “I will now conduct a search”; what they cannot do is decide in advance, “every time I arrest someone I will conduct a search.”. A search that is simply conducted in accordance with a general policy to search will not satisfy the subjective criterion “the police must be able to explain ... why they searched”
R. v. Smith, 2019 SKCA 126, at para. 22, (SK.C.A)
THE CASLAKE FACTORS
Safety Concerns and a Search Incident to an Arrest
[58] R. v. Smith is a case involving a person arrested for possession of stolen property in her purse. The Saskatchewan Court of Appeal held that the police were not authorized to search the arrestee’s purse for officer safety. What must be considered is the fact that the accused was handcuffed, patted down and separated from her purse and the location of the search. On their own, those facts will not preclude the police from conducting a search incident to arrest but they will affect their reasonable basis to conduct the search. In circumstances such as those in R. v. Smith, the police cannot rely on the risk of the arrestee using a weapon to endanger the police or to escape: R. v Smith, 2019 SKCA 126, at para. 47, (SK.C.A.),
[59] The Court concluded that in such circumstances the safety concern becomes one of whether there might be something near the search location that, independent of any action by the arrestee, and independent of the arrest, could injure an officer or a member of the public. The Court observed that the arrestee’s possessions no longer with them or within their reach are not likely to present an ongoing risk to the safety of the police or public. Where there is no risk, the police lack a reasonable basis to conduct a search for weapons incident to the arrestee’s arrest: R v. Smith, at paras. 42 and 45 and paras. 37 - 38 and 46 – 37).
[60] The Supreme Court of Canada in a recent decision, R. v. Stairs, addresses what appears to be an exceptional circumstance involving a police search conducted with little information, and thus scant objective grounds, where the arrestee was not in control of the location of the search.
[61] The Court seems to say there may be exceptional circumstances, such as those in a domestic violence case, where the police had limited information about the risk of danger to other persons who may be either vulnerable persons in the home like children or other persons who themselves might pose a risk. The Court affirmed the police’s authority to conduct a cursory search or a “mere visual scan” of a basement incident to an arrest for domestic violence in circumstances where the accused was secured by handcuffs at the time.
[62] From this case it might be that the police may be authorized to conduct a search in exceptional circumstances where the location of the search is outside the arrestee’s control where in the totality of the circumstances it may be reasonable to do so: R. v Stairs, 2022 SCC 11, at paras. 73, and 87 - 101, (S.C.C.). The particular surrounding context of the search can be a factor in the decision to search.
Search Incident to Arrest to Discover Evidence
[63] R. v. Caslake also sets out factors to consider when assessing the reasonableness of the police conducting a search to discover evidence, those being:
a) When the police search a location incident to arrest for the purpose of discovering evidence of the offence, the police must subjectively believe that the search of the location at that time would disclose evidence.
b) Even if the police subjectively believe this, the objective test will not be met if there was no reasonable prospect of securing evidence of the offence for which the accused is being arrested” at the time the search is carried out.
R. v Caslake, at paras 22 and 25
[64] The police must have not only a subjective belief that the location to be searched will disclose evidence, there has to be a reasonable prospect that the evidence will be there.
APPLICATION OF THE LAW
Overview
[65] For the following reasons, I do not accept that the police had valid safety concerns or a reasonable expectation that the firearm would be found when they searched the Applicant’s vehicle incident to arrest. For that reason, the search was not truly incident to the arrest.
[66] I start with the passage of time between the time of the homicide and the search of the vehicle. I find the police improperly exercised their discretion in deciding to search the vehicle. Except for DC Xiouris, the other officers, particularly the supervising detective, had extensive experience with firearm investigations and forming reasonable expectations before a search. I find it simply implausible that the officers would have a valid subjective belief that the firearm from a murder two years previously would be in the Applicant’s rental vehicle when they decided to conduct the search after the Applicant was arrested.
[67] I do not think DC Racette’s view that once an offender has been involved in gun crime there is a reasonable basis to believe the suspect would be carrying a gun at any given time. DC Racette advances that perception as a factor offering a justification to search the vehicle. To my mind, that sounds in an over generalization based in biased thinking for which DC Racette provided no support. In any case, that reasoning does not provide a reasonable subjective basis to search.
[68] Each of the officers testified it was a common practice, a policy, that where a firearm is involved in an investigation, especially of a homicide where the arrestee is found in a vehicle, the police routinely conduct a search of the vehicle incident to arrest. The officers were in accord that there was no discussion before the search and that they were authorized to conduct the search. This, of course, runs against the guidance provided by Caslake and Cloutier c. Langlois.
[69] It was evident that the officers did differ on the scope of their authority to search incident to arrest. Their answers to the questions about their authority in the various scenarios put to them by the defence varied among the officers.
[70] The police did not apply their minds to whether they had a legitimate objective basis to search and did not go on to confirm a basis existed. The officers who attended the meeting with the Homicide Squad did not ask the basic question of whether the homicide police had recovered the firearm involved in the homicide. While I appreciate that the Homicide Squad would want to protect sensitive information, I fail to see how that narrow question would jeopardize the homicide investigation since the Task Force was asked to get involved with the homicide investigation in relation to a firearm.
[71] In any event, I find the police’s expectation that there would be a firearm in a rental vehicle two years after the homicide was not a well-founded expectation.
[72] Further, the Task Force had no evidence from the Homicide Squad or otherwise that the vehicle the Applicant was driving was implicated in the crime. Regarding the assessment of potential danger, nor did the police know anything of the Applicant’s role in the homicide, whether he was the principal in the murder or a secondary participant. This is also information along with a question about the firearm, that if requested might have assisted with the arrest and the decision to search.
Safety Concerns and A Search Incident to an Arrest
[73] There are a number of facts that contradict the officers’ evidence that they were obligated to conduct a search for the safety of officers, the public and the Applicant, which I find as follows:
a) the Applicant was arrested and patted down without incident and cuffed to the rear before the search;
b) the police saw him reclined momentarily in the driver’s seat but did not observe him reaching around in the vehicle.
c) he was secured in a police vehicle guarded by officers some 25 to 30 feet from his vehicle;
d) there was no evidence that any other person would get involved at his vehicle and cause a risk to safety;
e) there was no evidence the rental vehicle was implicated in the homicide; and
f) there were five officers at the scene of the arrest during the search of the vehicle.
[74] As the Court in R. v. Smith observed, where the arrestee’s belongings are separated from him and are outside the arrestee’s grasp, there is not likely to be continuing risk to the police and the public. Where there is no danger, the police lack a reasonable basis to conduct a search incident to the arrest. I find there were no valid safety concerns that justified the officers conducting the search of the vehicle.
Search Incident to Arrest to Discover Evidence
[75] The police must have a valid subjective belief that at the time of the search the search would disclose the evidence, in this case, a firearm. Pursuant to the factors set out in R. v. Caslake, for reasons I cited above, there was no basis for a reasonable subjective belief that the firearm involved in the homicide would be recovered two years after the homicide took place. There was no basis for a subjective belief that, at the time of the search, there was an objective basis to believe the firearm involved in the homicide would be found in the vehicle.
[76] The search of the vehicle was not justified by a reasonable prospect of locating the firearm in the vehicle.
CONCLUSION ON VIOLATION OF SECTION 8 OF THE CHARTER
[77] I find the police violated the Applicant’s rights under s. 8 of the Charter by reason that they conducted a search of his rental vehicle that was not truly incident to his arrest for murder. The Applicant seeks exclusion of the firearm, ammunition, the scene of crime photos of the interior of the vehicle and the rental documents and the driver’s licence. I must now determine whether the violation is such that the evidence ought to be excluded.
WHETHER TO EXCLUDE EVIDENCE UNDER SECTION 24(2) OF THE CHARTER
[78] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. This requires a balancing of the effect that admitting the evidence would have on society’s confidence in the justice system.
[79] The balancing exercise involves considering three inquiries set out in R. v. Grant: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits. The seriousness of the breach falls along a spectrum where at on one end are violations that are inadvertent or minor in nature and on the other end, violations that demonstrate a reckless and deliberate disregard of Charter rights: R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 at paras. 72 and 74, (S.C.C.).
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.
The First Inquiry
[80] I do not regard the police action in this case to be on the most extreme end of the seriousness spectrum. But neither do I find it inconsequential. The police gave no thought, did not turn their minds, to whether they were justified in conducting the search into the private space inside the Applicant’s vehicle. The police regarded the search as a matter of routine, of general policy. And that is concerning, the idea that the police just casually moved within mere minutes of seeing the Applicant in his rental vehicle and searched it where there was no genuine concern for officer safety at the time of the search. This is flagrant and willful conduct.
[81] In arriving at the conclusion that the search was not on the most extreme end of the flagrancy spectrum, I take into account the seriousness of a firearm-involved homicide investigation. The Applicant was wanted for the homicide and the Task Force quickly succeeded in their quest to find and identify who the Homicide Squad believed was involved in the crime.
[82] From a contextual standpoint, I respect the fact that the police were tasked with an arrest for one of the most serious crimes in Canada. They were not looking to arrest someone involved in petty crime. That context does to some extent affect my assessment of the seriousness of the police action. But it does not nullify or reduce the seriousness of their action to insignificance.
[83] This is because another context I have to consider is the one created by the routine casualness the police demonstrated in regard to the rights of the Applicant. None of the officers had a problem with what they did which means they would likely repeat it if not cautioned. It was just business as usual.
[84] Of course, the other context I cannot ignore is the temporal one, the passage of time between the crime and the search. This is the fact at the centre of the failure to establish a reasonable justification for the search. The homicide was too remote and the scene too well secured for the police to legitimately establish danger. But they concocted an atmosphere of danger where there was none after the fact to justify what they did. This does not promote confidence in the administration of justice.
[85] Also concerning is the fact the officers had differing views of the scope of their authority to search as expressed in their answers in relation to the scenarios. Not being clear on the scope of their authority, this too has a deleterious effect on the public’s confidence that justice will be applied fairly and consistently.
[86] This is not frivolous conduct or simply careless oversight. It was deliberate; something the officers have done before. The court cannot condone this. The court must send a message dissociating itself from this type of police conduct.
The Second Inquiry
[87] The second inquiry looks at the impact of breaches on Charter-protected interests of the accused. The impact on the accused’s rights, I find, was not on the serious end of the spectrum. There is no issue raised about the physical search on his person. His arrest was without incident.
[88] The Applicant was driving a rented vehicle so his expectation of privacy would not be as great as it would be with his own personal vehicle: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 45, (S.C.C.). However, he is not without any expectation of privacy. Much of a person’s private life could be lived in a rental vehicle if renting cars is common to a person’s life as it appears was the case with the Applicant. There is also the impact of an unjustified search and arrest in the public space of a gas station where the Applicant would possibly be exposed to passersby and curious onlookers.
[89] I find there was moderate impact on the Applicant in regard to the second inquiry.
The Third Inquiry
[90] The third inquiry requires the court to look at the seriousness of the offence. The Supreme Court of Canada in R. v. Harrison asks the court to balance the implications of excluding evidence of an offence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted.
[91] I found the firearm was recovered as a result of an unjustified search of the Applicant’s vehicle. This points toward exclusion. But admitting the firearm cannot be regarded as operating unfairly in the court’s search for the truth at trial: R. v. Harrison, at paras. 81 and 82. The firearm is undeniably critical to the Crown’s ability to prosecute this case.
[92] The exclusion of the firearm will effectively eviscerate the Crown’s opportunity to litigate one of the most serious crimes - possession of a loaded firearm with accessible ammunition in a vehicle parked in a public place. It cannot be ignored that firearms are a plague on many communities. There are daily accounts of homicides and threats to the lives of people in urban centres like Toronto. The safety and vitality of marginalized communities are particularly at risk. It is truly chilling to imagine why the Applicant had the firearm in his vehicle.
[93] R. v. Harrison cautions however that the seriousness of the offence cuts both ways. The serious consequences to our justice system that can result from a failure to prosecute a serious crime due to excluded evidence, on the one hand; and, on the other hand, the longer term effect on the justice system of prosecuting a crime where the evidence was procured through serious violations of an accused’s rights. The Court had this to say:
In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus.
[94] The Court cautions that the judge on a s. 24(2) application should not allow the outcry for convictions for offences afflicting a community at a particular time to entirely drive the determination on the application. One of the bases the Crown seeks to have the firearm admitted is the seriousness of gun crime in the Toronto area. On the other side, is the possibility of putting at risk the long-term repute of the administration of justice if a matter is prosecuted in the heat of time-defined clamour in a case where the police had flagrant disregard for Charter protections. The seriousness of the offence must be considered, but must not take on disproportionate significance: R. v. Harrison, paras. 34 and 84.
[95] I must balance public concern over the type of crime against the serious infringements of the Applicant’s rights. I am required to balance the seriousness of the crime against the implications to the administration of justice if a serious crime is not addressed because the firearm that could provide conclusive proof is not admitted.
The Balancing
[96] The court is required to perform a fact-based balancing of the three lines of inquiry. The exercise is not simply a quantitative evaluation of whether the majority of the factors favour exclusion. The question to be considered is what effect on the long-term repute of the administration of justice would result from admitting the evidence: R. v. Harrison, at para. 36.
[97] The offences charged are without question serious and the seized evidence central to the Crown’s success at trial. I do not underestimate the impact on the Crown’s case.
[98] However, when I weigh the three inquiries and consider my findings on the seriousness of the police conduct as set out above, I conclude that the long-term interest of the administration of justice would not be served by admitting the evidence in this case. Again, this was not mere inadvertence or carelessness. This was deliberate conduct where the police attempted to concoct danger to justify searching a vehicle after the fact when they had no reasonable justification. It is conduct they admitted they do routinely. This is a practice they have done in the past and might have continued into the future.
[99] I find the balance favours the exclusion of the firearm, ammunition, the photos of the interior of the vehicle, the rental documents and the driver’s licence.
DISPOSITION
[100] The Application to exclude evidence is granted.
Allen J.
Released: October 31, 2022
COURT FILE NO.: CR-19-30000528-0000 DATE: 2022-10-31
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING – and – MOHAMMAD PATEL Applicant
REASONS FOR JUDGMENT (Blended Voir Dire, s. 8, Charter of Rights)
Allen J.
Released: October 31, 2022