BARRIE COURT FILE NO.: CR-20-57-00

DATE: 20230308

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

ANTHONY HOLTORF

Applicant

Miriam Villamil-Pallister, Katherine Spensieri, for the Respondent

Mary Cremer, for the Applicant

HEARD: February 7, 10-11, March 16, 17, May 26, July 28-29, September 9, 19, 2022

RULING RE BREACH OF CHARTER RIGHTS

CASULLO J.:

SUMMARY

[1]

Summary

On March 21, 2019, at 5:30 p.m. the Nottawasaga OPP received a call from the complainant, M.B., reporting a suspicious man who was approaching young girls at Stonemount Park¹. The park was located across the street from her home in Angus, Ontario.

2One of the girls the man approached was M.B.’s daughter, R.B. The man asked R.B. and her friends whether they wanted to play a game and “taste stuff,” and he would give them money. They said no. He eventually left the park in a black Chevrolet sedan.

3Twenty-five minutes later M.B. called police again, advising that the man had returned to the park in the same car, and was approaching another group of young girls who were unsupervised.

4At 6:11 P.C. Gagnon arrived at the park and saw a man sitting in the driver’s seat of a car matching M.B.’s description. He gave dispatch the plate number, and a background check revealed the car was registered to a woman in Cornwall, Ontario. P.C. Gagnon approached the car and twice asked the man for his driver’s license. He refused each time. The man was asked to exit the car, placed under investigative detention, and handcuffed.

5P.C. Gagnon took the man’s wallet from his pants pocket and found a driver’s license identifying the male as the accused, Mr. Holtorf. Mr. Holtorf was placed in the backseat of the police cruiser.

6P.C. Gagnon requested a back-up unit, and asked dispatch to have M.B. meet him at the park. She did, and he questioned her about the incident she reported.

7At 6:21 p.m. Mr. Holtorf was placed under arrest. His person, and the car, were searched incident to arrest.

8Mr. Holtorf faces four charges in this trial: criminal harassment in respect of R.B. and S.B., pursuant to s. 264(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46; and two counts of child luring in respect of R.B. and S.B., pursuant to s. 281 of the Criminal Code.

9The defence argued the following grounds constitute breaches of his s. 8 Charter rights:

a. the removal of Mr. Holtorf’s wallet and driver’s licence exceeded the legal boundaries of a search incident to investigative detention;

b. the search of Mr. Holtorf’s underwear and clothing constituted a strip search; and

c. the search of Mr. Holtorf’s vehicle post-arrest exceeded the legal authority for a search incident to arrest.

10The defence further argued that the following ground constitutes a breach of his s. 10(b) Charter rights:

d. the prolonged delay before Mr. Holtorf was provided with his rights to counsel.

11The defence seeks an order excluding the evidence located on Mr. Holtorf’s person, the evidence located inside the vehicle, and the evidence located inside the mesh bag, the knapsack, and the plastic bag, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.²

12The Crown argued that Mr. Holtorf’s rights were not violated on any of the enumerated grounds, and that the seizure of the evidence was authorized by law and reasonable. If there was a breach, the Crown submits that the evidence should not be excluded pursuant to the analysis set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

13The trial proceeded as a blended trial/voir dire, with all of the Crown’s evidence going in on the voir dire, to be applied to the trial as I find it admissible. Defence called no evidence on the voir dire or the trial, and argument proceeded on all voir dire and trial issues.

14Four civilian witnesses and four constables offered their testimony at the trial.

15The outcome of the trial is held in abeyance pending the release of these reasons, my reasons on the similar fact evidence application, and final submissions of counsel.

16For the reasons that follow, I find that Mr. Holtorf’s Charter rights were not infringed.

THE RELEVANT EVIDENCE

PC Gagnon

[17]

The Relevant Evidence

As noted above, PC Gagnon arrived at Stonemount Park at 6:11 p.m. It was still daylight, and he readily identified the car described by M.B. It was the only car in the parking lot, and Mr. Holtorf was sitting in the driver’s seat. PC Gagnon approached Mr. Holtorf’s open driver-side window and advised that someone had called in a complaint about him.

18Mr. Holtorf twice refused to identify himself when asked. When PC Gagnon coupled this with the nature of the complaint (unknown man approaching young girls in the park), and the car being registered to an owner who lived well outside of the region, PG Gagnon decided to place Mr. Holtorf under investigative detention. He asked him to get out of his car, which he did. PC Gagnon explained that Mr. Holtorf could call any lawyer of his choosing, or words to that effect. His notes indicated that Mr. Holtorf understood what he was told, but he did not ask to speak to a lawyer at that time.

19PC Gagnon’s intention was to speak with M.B. to obtain grounds relating to the offences Mr. Holtorf was being investigated for. Accordingly, Mr. Holtorf was handcuffed from behind, and subjected to a brief pat-down to ensure he was not carrying any weapons. He was not.

20Because Mr. Holtorf had twice refused to identify himself, PC Gagnon removed the wallet he could see outlined in Mr. Holtorf’s pants pocket, locating his driver’s license inside. He did not search the wallet any further. PC Gagnon testified that at this point he was not searching for evidence.

21Mr. Holtorf was then placed in the cruiser and PC Gagnon stepped away to speak with M.B., who was on the grassy area to the left of the parking lot, all the while keeping an eye on Mr. Holtorf in the cruiser. Based on the information he obtained from M.B., PC Gagnon concluded he had grounds to arrest Mr. Holtorf for criminal harassment.

22PC Gagnon returned to the cruiser and advised Mr. Holtorf he was under arrest. He asked him to get out and began to conduct a search incident to arrest. Mr. Holtorf was facing the cruiser. As he searched Mr. Holtorf, PC Gagnon came across a purple remote with a purple cable in the front of Mr. Holtorf’s left pants pocket. The cable went into the waistband of his jeans. As he pulled the cable he felt resistance, and Mr. Holtorf immediately asked him to be careful, as the other end was “in his boxers”.

23PC Gagnon was unsure what was on the other end of the cable, so he placed two fingers at the waistband of Mr. Holtorf’s jeans, right about the button, and pulled his pants out a couple of inches from his body to look inside. It was a quick glance – less than two seconds – and PC Gagnon saw what he thought to be an oval-shaped sex toy against Mr. Holtorf’s penis. PC Gagnon testified that Mr. Holtorf’s penis was not erect.

24PC Gagnon managed to remove the object without pulling Mr. Holtorf’s jeans down. Once it was out PC Gagnon pressed the “on” button and it vibrated, confirming his suspicions. PC Gagnon then continued with the pat-down, removing Mr. Holtorf’s cell phone. There was no one in the parking lot who may have witnessed this search.

25At 6:22 p.m., when the pat-down was complete, Mr. Holtorf was read his rights to counsel again, this time from PC Gagnon’s OPP issued card. Mr. Holtorf indicated that he understood, and said he would like to speak to duty counsel.

26Mr. Holtorf was then read the caution from the OPP issued card. Mr. Holtorf indicated he understood.

27PC O’Neill arrived on the scene around this time. After speaking with PC Gagnon, PC O’Neill began searching Mr. Holtorf’s car.

28At 6:41 p.m. PC Gagnon left the scene, driving Mr. Holtorf to the station. They arrived at 6:56, and Mr. Holtorf was promptly lodged by two other officers. A secondary search of Mr. Holtorf revealed items missed by PC Gagnon, including a sleep mask, a sock, and a condom.

29At 7:19 p.m., while Mr. Holtorf was being lodged, PC Gagnon called duty counsel. Duty counsel called back at 7:31 p.m. and spoke with Mr. Holtorf.

PC O’Neill

[30]

PC O’Neill

PC O’Neill (now DC) was dispatched to the scene at 6:12 p.m. He understood someone had called the station about a man at the park approaching young girls and asking them to taste something. The man had left, but returned again to speak with other young girls, prompting a second call to police.

31Enroute PC O’Neill heard over the radio that PC Gagnon had arrested the man for criminal harassment and luring³. At some point, also likely enroute, PC O’Neill heard over the radio that Mr. Holtorf was subject to a weapons ban.

32PC O’Neill arrived on the scene at 6:24 p.m. He noted PC Gagnon standing outside of his cruiser, and a male sitting in the back seat. There was only one other car in the parking lot, matching that of the description called in by M.B.

33PC O’Neill spoke to PC Gagnon, who provided an update as to what had transpired to that point. PC Gagnon pointed out the complainant, as well as a group of two women and two young girls who were standing across the street on Greenwood Ave (MB, RB, SB, and SB’s mother). PC O’Neill told PC Gagnon he would search the car. PC Gagnon left to take Mr. Holtorf to the station.

34When PC O’Neill put the weapons ban together with the allegation of approaching young girls at the park, and the fact that Mr. Holtorf had, in his words, a “dildo” attached to him, he decided to search the car. He testified he was looking for evidence relative to luring, not weapons necessarily.

35The car was turned off, with the key in the ignition. The driver’s side window was down completely. PC O’Neill looked through the car’s window before he entered, observing a bag on the front passenger seat, and a backpack on the floor well in-front of the front passenger seat. He also saw a jackknife on the console between the two front seats. He thought the knife could be evidence of luring.

36The bag on the seat had a mesh side that was facing up, and PC O’Neill could see ropes and straps inside. When he opened the bag he found a number of other items including a whip, condoms, and a bottle of sex toy cleaner. In his view, these items could be evidence of luring children to the car.

37PC O’Neill also found an empty Cialis prescription box. He understood Cialis was for erectile dysfunction.

38Each item PC O’Neill found served to increase his concerns, compelling him to keep searching.

39In the backpack PC O’Neill found computer equipment. These items were not significant in respect of the charges Mr Holtorf faced, but he thought they might become of use when examined by someone else.

40There was nothing in the backseat of the car. However, based on the items in the car and the mesh bag, including the restraints, DC O’Neill decided to search the trunk in case someone might be in there. The trunk contained a case of bottled water and a plastic grocery bag. In the grocery bag were candies and marijuana in the form of buds. PC O’Neill thought the candies could be evidence, given the information he had that the man had asked the girls to taste something, so he seized the plastic bag as well.

41Once his search was complete, PC O’Neill went across the street to speak with the complainant and the girls, asking that they attend at the detachment to provide formal statements.

42PC Gagnon and PC O’Neill did not discuss whether they should obtain a warrant to search the car. PC O’Neill testified that it was his understanding he had the right to search the car incident to arrest. He confirmed that if he did not think he had the authority to search the car, he would have obtained a warrant.

43PC O’Neill also confirmed that at the time he conducted his search of the car there were no officer safety concerns, as Mr. Holtorf had been arrested and was on his way to the station.

ANALYSIS

Issue I – Were Mr. Holtorf’s s. 8 Charter Rights Breached?

44To comply with s. 8 of the Charter, a search must be reasonable: “A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out was reasonable.” See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 23.

45Mr. Holtorf submits there were three breaches of his s. 8 Charter rights – the search incident to investigative detention, the search of his person incident to arrest, and the search of his car incident to arrest. I will address each issue separately.

A. Search Incident to Investigative Detention

[46]

A. Search Incident to Investigative Detention

Mr. Holtorf does not argue that his investigative detention was invalid.

47While in investigative detention, Mr. Holtorf was subjected to a search of his person. This search led to the removal of his wallet and driver’s licence, the latter of which was used to conduct a CPIC search. Mr. Holtorf submits PC Gagnon’s actions exceeded the legal limitations of a search incident to investigative detention.

48The starting point for considering whether the search was valid is R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. In Mann, the Supreme Court of Canada found there was a power of investigative detention, and a concomitant power of a search incident to investigative detention. This particular search power is limited to safety concerns:

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk […] The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

Mann, para. 40.

49In the process of placing Mr. Holtorf in investigative detention, PC Gagnon conducted a brief pat-down search, which was reasonable in the circumstances. He did not know who he was dealing with, as Mr. Holtorf had twice refused to produce his driver’s licence. Further, there may have been weapons concealed in his hoodie.

50During the pat-down search PC Gagnon recognized the outline of a wallet in Mr. Holtorf’s back pants pocket and removed it. The purpose and intent behind removing the wallet was to determine Mr. Holtorf’s identity. This too was reasonable in the circumstances. PC Gagnon found the driver’s licence inside and did not search the wallet any further.

51Defence submits that the search in this case is analogous to the search conducted by police in Mann. There, the officer conducting the pat-down search felt something soft in the accused’s pocket and pulled out a packet of drugs. The Supreme Court held that the act of reaching into Mr. Mann’s pockets was not justified, as it was a more intrusive search that went beyond officer safety, and violated Mr. Mann’s reasonable expectation of privacy. The evidence was excluded as being obtained in a matter that breached Mr. Mann’s s. 8 Charter rights.

52I find the case at bar distinguishable from Mann. To begin, the wallet was visible in Mr. Holtorf’s pants pocket. It wasn’t hidden and located through a pat-down. Second, pulling a visible wallet out of a pair of pants is not an intrusive search. Third, Mr. Mann had identified himself to police when asked. Thus, police knew who they were dealing with, and could readily conduct any required background investigations.

53Here, there were reasonable grounds to have safety concerns. The only information available to PC Gagnon were the allegations of suspicious activity, namely a man repeatedly approaching young girls at a park, and that that same man was driving a car that was registered to a woman who lived well outside the region. In my opinion, until Mr. Holtorf’s identity was established, he was a wild card.

54As the Supreme Court cautioned in R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 65:

While it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope.

55In the totality of the circumstances, the decision to search Mr. Holtorf incident to investigative detention was based on reasoned considerations, not vague concerns for safety, nor mere hunches. Mr. Holtorf’s s. 8 Charter rights were not violated.

B. Search of Mr. Holtorf’s Person Incident to Arrest

[56]

B. Search of Mr. Holtorf’s Person Incident to Arrest

Mr. Holtorf does not argue that his arrest was invalid.

57Mr. Holtorf submits that once he was arrested, he was subjected to a search of his person that amounted to a strip search, in violation of his s. 8 Charter rights.

58The Crown disagrees that the search of Mr. Holtorf was a strip search.

59The power to search incident to arrest grants police “considerable leeway in the circumstances of an arrest which they do not have in other circumstances: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 20.

60In Caslake, at para. 14, the Supreme Court set out three conditions to establish a valid search incident to arrest:

a. The arrest must be lawful;

b. The search must be truly incidental to arrest; and

c. The search must be conducted in a reasonable manner and not in an abusive fashion.

61Caslake, at para. 19, cites with approval the three purposes behind a search incident to arrest, as established by L’Heureux-Dube J. in Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158:

a. to ensure the safety of the police and the public;

b. to protect evidence from destruction; and

c. to discover evidence of the offence for use at trial.

62Strip searches have been defined as “…the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments”: see R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 at para. 47.

63The Court in Golden confirmed that strip searches may be conducted incident to arrest, but at paras. 91-94, 98, set out a list of conditions, such that the search must:

a. be conducted as incident to a lawful arrest;

b. not be conducted as a matter of routine or an inevitable consequence of every arrest;

c. be conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;

d. be based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest in addition to reasonable and probable grounds justifying the arrest;

e. not be conducted based on a mere possibility that the person is concealing evidence; and

f. be conducted in a reasonable manner.

64As PC Gagnon pulled on the wire attached to the remote in Mr. Holtorf’s pants pocket, Mr. Holtorf asked him to be careful, because the wire led into his boxers. At that point PC Gagnon was faced with a significant safety concern, not simply for himself, but for Mr. Holtorf as well. He was in the dark as to what the wire was attached to, and immediate investigation was necessary. PC Gagnon’s only recourse was to remove “it”, thereby removing “its” potential to cause harm.

65The fact that Mr. Holtorf was cooperative, polite, and not physically resistant to PC Gagnon, thus removing any immediate concerns for officer safety, was of no consequence in this particular and unusual circumstance. Even pleasant and cooperative individuals conceal weapons.

66PC Gagnon did not believe the search he conducted was a strip search, because Mr. Holtorf’s clothing was not removed, and his genitalia were not exposed. PC Gagnon was mistaken. As the majority held in Golden, at para. 47, the rearrangement of clothing constitutes a strip search. PC Gagnon rearranged Mr. Holtorf’s clothing when he pulled Mr. Holtorf’s jeans away from his body. And despite describing his actions as simply glancing into Mr. Holtorf’s boxers, he still observed Mr. Holtorf’s penis, and the sex toy against it.

67I accept that strip searches conducted in the field pose a greater threat to one’s individual bodily integrity than a strip search done in the controlled environment of a police station. However, the case meets the exigent circumstance test in Golden, where strip searches in the field are only to be conducted when there is a demonstrated urgency to search for weapons or objects that may cause harm. It would not have been reasonable to transport Mr. Holtorf back to the station in the cruiser, with whatever object the wire was attached to remaining in his boxers, in order that the strip search be conducted there.

68It is true that Mr. Holtorf was still handcuffed with his hands behind him. But as PC Gagnon testified, people can maneuver their bodies in many ways, and Mr. Holtorf could possibly have positioned himself so he could operate the remote.

69In Golden, the Supreme Court emphasized that in most cases, a “frisk” or “pat-down” will suffice to determine whether the person is concealing a weapon. It is only where the “frisk” or “pat-down” reveals a possible weapon on the detainee’s person that the more invasive strip search will be warranted. In this instance, there was no mere possibility that Mr. Holtorf may have been concealing evidence or a weapon. The remote with the wire attached to it had upped the ante, revealing a distinct possibility that a weapon was being concealed.

70I find that the strip search of Mr. Holtorf was reasonable on the following grounds:

a. it was incident to arrest;

b. it was an unusual situation which arose during a routine “pat-down”;

c. the purpose of the search was for PC Gagnon’s safety, as well as Mr. Holtorf’s;

d. PC Gagnon did no more than was necessary to identify, remove, and secure the item;

e. the search was carried out in a discreet manner, with no one else in the parking lot; and

f. Mr. Holtorf’s clothing was not removed.

71Mr. Holtorf submits that the search and removal of the sex toy was extensive, invasive, degrading, and humiliating. For the following reasons I disagree:

a. the process of searching for and removing the sex toy was brief;

b. PC Gagnon was the same sex as Mr. Holtorf;

c. Mr. Holtorf’s clothing was not removed;

d. Mr. Holtorf’s genitals were not exposed; and

e. the search was done at the side of the cruiser, out of the public’s purview.

72The strip search was entirely necessary in these circumstances. I am satisfied it would not have taken place but for PC Gagnon locating a remote in Mr. Holtorf’s pants pocket, with the attached wire leading into his boxers.

73I find that the strip search did not violate Mr. Holtorf’ s. 8 Charter rights.

C. Search of Mr. Holtorf’s Car Incident to Arrest

[74]

C. Search of Mr. Holtorf’s Car Incident to Arrest

For the following reasons, Mr. Holtorf submits that the search of his car incident to arrest was in violation of his s. 8 Charter rights:

a. he was under arrest for criminal harassment;

b. there was nothing in the context of the investigation, or Mr. Holtorf’s conduct, that would reasonably present a concern for officer safety or the destruction of evidence;

c. the search of the car went beyond the legal authority of a search incident to arrest;

d. he had a reasonable expectation of privacy in the car; and

e. the car was searched without a search warrant.

75The Crown submits that Mr. Holtorf did not have a reasonable expectation of privacy in either the car or its contents. In the alternative, if I were to find Mr. Holtorf did have a reasonable expectation of privacy in the car or its contents, the search of the car was lawful and in compliance with s. 8 of the Charter.

76The burden rests on Mr. Holtorf to prove he had a reasonable expectation of privacy in the car, and the items contained therein. If that burden is successfully discharged, then Mr. Holtorf must demonstrate that the search was conducted in an unreasonable manner.

77In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the Supreme Court held that determining whether one has a reasonable expectation of privacy is to be arrived at based on the totality of the circumstances. Some of the factors to consider, as set out at para. 45, are:

i. presence at the time of the search;

ii. possession or control of the property or place searched;

iii. ownership of the property or place;

iv. historical use of the property or item;

v. the ability to regulate access, including the right to admit or exclude others from the place;

vi. the existence of a subjective expectation of privacy; and

vii. the objective reasonableness of the expectation.

78One’s privacy interest in a car is lower than one’s privacy interest in a home or office: see R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341 at para 38.

79The level of one’s privacy interest in a car is also variable. The interior, where items are in plain view, carries a lower privacy interest than the trunk, a separate area equipped with a lock and key and concealed from public view: see R. v. Calderon (2004), 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 (ONCA), at para 98.

80In R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26, the Supreme Court provided the following factors to consider when conducting a privacy interest analysis:

a. What was the nature or subject matter of the evidence gathered by police;

b. Did the accused have a direct interest in the subject matter;

c. Did the accused have a subjective expectation of privacy in the subject matter; and

d. If so, was the subjective expectation objectively reasonable having regard to the totality of the circumstances?

81The subjective branch of the test requires an analysis of whether Mr. Holtorf had an expectation of privacy in the subject matter. When determining whether the subjective expectation was reasonable, the court is to examine whether an “independent and informed observer, viewing the matter objectively would consider it reasonable”: see Patrick at para. 20.

82The Court in Patrick went on to provide a number of factors to consider when determining whether a claimant’s subjective expectation is objectively reasonable, including where the search occurred, and whether the informational content of the subject matter was in public view.

83One’s privacy interest in a car applies even when the driver is not the registered owner, but is operating the car with the owner’s permission: see Belnavis, at para. 19.

84Mr. Holtorf submits he was driving his girlfriend’s car, implying permission, thereby asserting his privacy rights. However, there is no evidence that this was communicated to police at the scene. The only evidence concerning the car’s ownership comes from the statement Mr. Holtorf gave at the station, when he recounted the following exchange he had with the officer after his arrest:

“‘Please, can I just call someone so that my car doesn’t get towed.’ He said [referring to the officer], ‘No’. I said ‘Please, like it’s not my car. It’s going to be a really big issue.’”

85Mr. Holtorf does not say he told police the car belonged to his girlfriend at the scene.

86Looking at the totality of the circumstances in this case, and applying the guidance provided by the Supreme Court, Mr. Holtorf has not satisfied the court he had a reasonable expectation of privacy in the car, for the following reasons:

a. He was not the car’s registered owner;

b. He did not disclose the identity of the registered owner;

c. The car was registered to a woman five hours from Stonemount Park;

d. There was no evidence he was driving the car with the owner’s consent;

e. The car was located in a parking lot, on public property, where members of the public are expected to attend, not at a residence, or on private property; and

f. The events took place in the full light of day (late afternoon/early evening), with plenty of visibility and there for everyone attending the park to see. The car was not, for example, hidden in an abandoned warehouse parking lot.

87If I am mistaken in so finding, and Mr. Holtorf did have a reasonable expectation of privacy in the car, then I find that the search incident to arrest was lawful.

88As set out in paragraph 61 above, the three main purposes of a search incident to arrest are to ensure the safety of police and public; to protect evidence from destruction; and to discover evidence to use at the trial.

89When conducting a search incident to arrest, police are also subject to subjective and objective considerations:

Naturally, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the rule of law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search incident to arrest before the search is carried out. This accords with the ultimate purpose of s. 8, which, as Dickson J. stated in Hunter, supra, is to prevent unreasonable searches before they occur.

Caslake, at para. 27

90Mr. Holtorf was arrested on charges of criminal harassment, for allegedly engaging in conduct (either besetting or watching the girls in the park, or engaging in threatening conduct directed at the girls) that caused R.B. and S.B. to fear for their safety.

91Mr. Holtorf submits that the charge of criminal harassment is based on behaviour and conduct. PC O’Neill’s decision to search the car for physical evidence was unjustified on the grounds that (a) there were no safety issues (Mr. Holtorf was enroute to the station), and (b) there was no reasonable basis to expect there to be physical evidence in the car to support the charge.

92However, I find that the potential for public safety concerns was not obviated by Mr. Holtorf being removed from the park. This was a dynamic situation. Mr. Holtorf had driven the car to a public park not once, but twice. Each time, he parked the car and got out to approach groups of young, unsupervised girls. He then returned to the car. The car was registered to a woman who lived hours away from Angus. And Mr. Holtorf had twice refused to provide his driver’s licence when asked.

93Further, PC O’Neill was aware that Mr. Holtorf had offered the girls money to play a tasting game. It was not unreasonable to search the car for evidence to support this allegation. Such evidence might include money, or a food product such as candy.

94When PC O’Neill decided to search the car for evidence I find that, at least initially, public safety was implicitly part of his decision. He approached the car and looked inside before entering. He saw the knife on the console. On the front passenger seat was a drawstring bag with mesh on the side, through which he could see ropes and straps. Upon observing these items, in conjunction with the information he had been provided, his public safety concern crystalized.

95PC O’Neill entered the car and began his search. He testified that with every object he uncovered in the mesh bag, his concern for public safety intensified: a neck collar set to the smallest setting; a black metal chain with a leather handle; a black leather whip with a jeweled handle; a bottle of sex toy cleaner; ropes; a set of restraints; condoms; and scissors.

96PC O’Neill then extended his search to the trunk, was also fully justified given the items he had found. While not probable, it was not inconceivable that a body might be concealed in the trunk. He specifically identified this concern in his notebook:

“Due to nature of occurrence and previous items seized, search trunk for other items to lure or restrain. No one inside.”

97PC O’Neill’s search of the car was for articulable and lawful purposes, and was conducted reasonably. It was conducted incident to arrest, with a temporal and spatial connection between the arrest and the search.

98In all of the circumstances I find it was objectively reasonable to search the car incident to arrest. In fact, there was no other reasonable option.

99Mr. Holtorf’s s. 8 Charter rights were not violated when the car was searched incident to arrest.

Issue II – Were Mr. Holtorf’s s. 10(b) Charter Rights Breached?

[100]

Issue II – Were Mr. Holtorf’s s. 10(b) Charter Rights Breached?

Mr. Holtorf submits that he was subjected to a prolonged delay in being provided his rights to counsel while he was placed in investigative detention.

101Section 10(b) of the Charter provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay, and to be informed of that right.

102It is accepted that s. 10(b) of the Charter extends to those who are placed under investigation detention: see Mann, at para. 22.

103In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 41-42, the Supreme Court of Canada described the magnitude of being detained by the police, and the importance of the right to counsel at the point of detention:

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interface with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately”. If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

[…] Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

104In addition to informing the detainee of the right to counsel and facilitating access to counsel, police also have a concomitant duty to refrain from eliciting information from the detainee who has not yet had an opportunity to speak with counsel: see R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233.

105An officer’s first duty is informational – and the obligation arises immediately upon arrest or detention. However, immediately does not equate to “instantaneously”. A brief delay to conduct a search, secure the parties, and gain control of the scene has been found to be a reasonable limit on the immediacy requirement: see R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 57-62.

106The second and third duties are facilitative, and are not triggered until the person detained indicates a desire to exercise their right to counsel: see R. v. Willer, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 30.

107Mr. Holtorf states that he should have been given his rights to counsel the moment he was put under investigative detention. Instead, he was handcuffed, subject to an intrusive search of his pockets and wallet, placed in the back of the cruiser while PC Gagnon spoke with the complainant, arrested, and then subject to a strip search, all before being advised of his rights to counsel.

108It is instructive at this point to provide a timeline of Mr. Holtorf’s interaction with police on March 21, 2019, as I accept it to be:

Time

Event

6:11 p.m.

PC Gagnon arrives on scene.

6:13 or 6:14 p.m.

Mr. Holtorf placed under investigative detention and told he has a right to counsel of his choice. There is no note about this caution in PC Gagnon’s notebook, but he testified that it is his practice to give it whenever he places anyone under investigative detention. If Mr. Holtorf had asked to speak to a lawyer, PC Gagnon said he would have made a specific note of that.

6:21 p.m.

Mr. Holtorf placed under arrest for criminal harassment and searched incident to arrest. During the search PC Gagnon finds the wire attached to the remote, follows the wire to Mr. Holtorf’s boxers and sees the sex toy against his penis, which he removes.

6:22 p.m.

Mr. Holtorf provided rights to counsel a second time. This time PC Gagnon read the rights and caution from his OPP issued card. Mr. Holtorf indicated he understood his rights and asked to speak to duty counsel.

6:22 p.m.

DC O’Neill on scene.

6:41 p.m.

PC Gagnon transports Mr. Holtorf to the station.

6:56 p.m.

Mr. Holtorf is lodged.

7:19 p.m.

Duty counsel called on Mr. Holtorf’s behalf.

7:31 p.m.

Mr. Holtorf speaks to duty counsel.

109It bears noting that PC Gagnon did not have his cell phone with him. Thus, had Mr. Holtorf been fully advised of his rights to counsel, PC Gagnon did not have a cell phone that could have accommodated Mr. Holtorf had he asked to speak to a lawyer.

110PG Gagnon was cross-examined on the fact that Mr. Holtorf had his own cell phone that he could have used to call counsel from the scene. PC Gagnon testified he never thought about that option. In re-direct he confirmed that he was the only officer on the scene, and if he were to let Mr. Holtorf use his personal phone, PC Gagnon would have had to remove the handcuffs and step away to provide Mr. Holtorf privacy. PC Gagnon would have no way of knowing who Mr. Holtorf called, and it could have been a friend to help him escape. In the circumstances, PG Gagnon would not have been comfortable allowing Mr. Holtorf to make a call from the scene.

111I find that PC Gagnon failed to advise Mr. Holtorf of his rights to counsel when he was put under investigative detention. PC Gagnon’s words, to the effect of “you can call any lawyer you wish,” were insufficient. While s. 10(b) does not mandate the use of any particular word or combination of words, there is a core set of information that the detaining officer must convey to the detainee, including the availability of duty counsel and legal aid.

112To quote Chief Justice Lamer in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at p. 198:

To conclude, Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention. In case there is any doubt, I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10(b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away. Failure to provide such information is, in the absence of a valid waiver (which, as I explain infra, will be a rarity) a breach of s. 10(b) of the Charter.

113Being advised of the right to duty counsel is a crucial component of the right to counsel, which Mr. Holtorf was deprived of until he was placed under arrest. I am prepared to find a violation of s. 10(b) of the Charter based on this failure.

SECTION 24(2) ANALYSIS

114Having found Mr. Holtorf’s Charter rights were infringed, I am required to conduct a s. 24(2) analysis to determine whether the evidence was “obtained in a manner that infringed” the Charter and thus should be excluded.

115As Justice Henschel held in R. v. Ruscica, 2017 ONCJ 864, 401 C.R.R. (2d) 224, at para. 98:

Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter. Section 24(2) of the Charter requires the Court to exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The accused bears the burden of proving this on a balance of probabilities.

116Section 24(2) of the Charter empowers a court to exclude evidence as a remedy for a Charter breach, provided that the evidence was “obtained in a manner that infringed” the persons’ rights thereunder: see generally R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.

117The leading authority for the application of s. 24(2) is set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. At para. 71, the Supreme Court set out a three-part test to be applied when considering the admissibility of evidence when Charter breaches are alleged:

When faced with an application for exclusion under 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct;

(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.

Seriousness of the State-Infringing Conduct

118While four violations were alleged, I found only one Charter violation, being PC Gagnon’s failure to fully advise Mr. Holtorf of his rights to counsel.

119At the outset of my analysis it is important to point out there was nothing in the evidence before me to suggest that the police willfully neglected or disregarded Mr. Holtorf’s Charter rights, or that they acted anything but professionally throughout the investigation.

120Despite this, I am satisfied that the failure to comply with s. 10(b) while Mr. Holtorf was under investigative detention was serious.

121In the event I have erred in finding that the remaining three violations were not infringed, I briefly address whether those breaches are serious.

122The removal of Mr. Holtorf’s wallet was not a serious breach. It was done solely to ascertain his identity. His wallet was visible through his clothing. Further, once he was arrested, PC Gagnon could have seized the wallet incident to arrest. Recall that PC Gagnon ceased looking into the wallet once he found Mr. Holtorf’s driver’s licence.

123PC Gagnon did not set out to do a strip search – that arose out of necessity once he found the remote and the wire. Although the ensuing search was done quickly and discreetly, and for clear safety reasons, this was a serious state infringement.

124The search of the car and its contents were minimally intrusive given the fact that the car did not belong to Mr. Holtorf, the bags were in plain sight on the passenger seat and floor, and the trunk was searched for valid public safety reasons.

The Impact on Mr. Holtorf’s Charter Protected Interests

125In respect of the breach of s. 10(b), Mr. Holtorf’s time in investigative detention was brief – only ten minutes – and his rights to counsel were fully given once he was placed under arrest. Between the investigative detention and his arrest, PG Gagnon, the sole officer in attendance, was securing the scene, calling for backup, and ensuring the complainants were available to speak with him. The events would have unfolded exactly as they did, regardless of whether Mr. Holtorf was told about duty counsel at the outset or not. Thus I find that the impact on Mr. Holtorf’s Charter protected interests was minimal.

126I pause to note that at no time between Mr. Holtorf being placed under investigative detention, and his speaking with duty counsel back at the station, did any police officer engage Mr. Holtorf in a discussion about the ensuing investigation. Neither was there an attempt to elicit information from him. This is an important consideration when considering that the animating purpose of s. 10(b) is to protect those who are detained from self-incrimination.

127Again, I will examine the impact of Mr. Holtorf’s Charter protected interests in respect of the remaining three alleged breaches:

a. In terms of the removal of the wallet, its impact on Mr. Holtorf’s Charter protected interests was minimal. Once he was placed under arrest, the police could have searched him and obtained the same information.

b. If the search of the car was in breach of Mr. Holtorf’s Charter protected interests, this too was minimal, as the car was not his, and the most serious of the items found were in a bag there to be seen on the passenger seat. The bag was also partly mesh, which allowed DC O’Neill to observe some of its contents without even touching it.

c. The strip search, if carried out in breach of Mr. Holtorf’s Charter protected interests, would be most impactful on Mr. Holtorf. Certainly one’s dignity and bodily autonomy are at stake in a strip search. There is a heightened expectation of privacy in the integrity of one’s own body. Given this high degree of privacy, if it is found to be a violation of s. 8, it would be a serious breach favouring the exclusion of evidence.

Society’s Interest in an Adjudication on the Merits

128When considering this third prong, I must ask myself whether the truth-seeking function of the criminal trial would be better served by the admission of the evidence, or by its exclusion. Factors to consider include the reliability of the evidence, and its importance to the Crown’s case. I have conducted this portion of the examination globally, addressing the one breach and the three alleged breaches.

129Courts are reminded in Grant that: “The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.”

130The protection of children, the most vulnerable members of our society, is paramount. The offences faced by Mr. Holtorf are serious. I find that excluding the evidence would deprive the public of a trial on the merits. I further find that a decision not to admit this evidence would be shocking to the community, undermining public confidence in the criminal justice system. Conversely, the admission of the evidence will not impact on Mr. Holtorf’s ability to make full answer and defence.

131In light of these considerations, no evidence shall be excluded under s. 24(2) of the Charter.

CONCLUSION

132Mr. Holtorf’s s. 10(b) Charter rights were infringed. However, I am not satisfied that admitting the evidence obtained thereafter would bring the administration of justice into disrepute. Indeed, based on society’s interests in having this case tried on the merits, excluding the evidence would have the effect of eroding public confidence in the justice system.

133Accordingly, Mr. Holtorf’s application to exclude the evidence obtained during the search of his person and his car is dismissed.

Footnotes

1. 1Or Greenwood-McCann Park. Regardless, the park is typical of those found within Ontario communities. One enters the parking lot from Greenwood Drive. Beyond the parking lot, to the right, is an outdoor pad, or arena, with boards such as one would see on a hockey rink. There is a roof over the entire arena, with walls covering the left and right sides. The front and back of the arena are open, allowing one to see through to the opposite end. To the left of this structure is a splash pad, and to the left of the splash pad are colourful playground facilities, including swings and slides. The park is wide open, with trees lining the left side of its perimeter.
2. 2Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.
3. 3It is unclear to me whether Mr. Holtorf was arrested for criminal harassment and luring at the same time, and that was what PC O’Neill heard, or whether the luring charge came later. The difference in evidence between the two officers (PG Gagnon’s evidence was that he placed Mr. Holtorf under arrest for criminal harassment) was not explored to my recollection. I find nothing rests on this discrepancy, however.