COURT FILE NO.: CR-21-90000556-0000 DATE: 20230330

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Respondent

• and - EZE MOSES OJUKWU Applicant

Counsel: Kerry Benzakein and Elisa Mastrorillo, for the Respondent Crown Sonya Shikhman, for the Applicant, Eze Moses Ojukwu

HEARD: February 28 and March 1, 2023

By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury hearing this trial retires to consider its verdict.

J.M. Barrett J.

RULING ON SECTIONS 8 AND 24(2) CHARTER APPLICATION

A. Overview

[1] On what was to be the first day of a two-week jury trial, the defence filed a Notice of Application to exclude evidence contained in a knapsack found beside the accused at the time of his arrest. The knapsack contained nearly one kilogram of heroin – evidence that is essential to the Crown’s case on Count 1.

[2] The Crown moved unsuccessfully to have the application dismissed summarily on two bases. First, due to the failure of the defence to comply with r. 34.03 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7. Second, the lack of any reasonable prospect of success. After hearing submissions, the request for summary judgment was dismissed on February 22, 2023. The Crown was granted a short adjournment to prepare responding materials.

[3] There are now two issues to be decided. First, whether the search of the knapsack was unreasonable, contrary to s. 8 of the Charter. Second, if it was an unreasonable search, should the heroin seized by the police be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

[4] The Crown called three officers on the voir dire: Constables Gonsalves, Weeks and Van Daalen. Two videos were also admitted: one of Mr. Ojukwu’s arrest and the search of his knapsack, the second of his booking at 31 Division.

[5] The defence position is that the search was unlawful because it was not truly incidental to Mr. Ojukwu’s arrest since its purpose was not for at least one of the following three objectives: (i) police and public safety, (ii) preventing the destruction of evidence, or (iii) discovering evidence that may be used at trial: see R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, at para. 36; R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 19, 22.

[6] The defence argues that the search of the knapsack was conducted as a matter of course without any forethought as to whether it was necessary for one of these three lawful purposes. The defence analogizes the search of Mr. Ojukwu’s knapsack to an inventory search which is not within the scope of the power to search incident to arrest: see Caslake, at para. 30; R. v. Smith, 2019 SKCA 126, 383 C.C.C. (3d) 73, at para. 43, citing R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 53.

[7] Following from this alleged breach of s. 8, the defence seeks the exclusion of the heroin from evidence. The defence argues that the s. 8 Charter breach in this case is particularly serious because it reflects a broader systemic failure by the Toronto Police Service (“TPS”) to properly train and educate officers on the proper scope of their extraordinary power to search incident to a lawful arrest. According to the defence, the testimony of Officers Weeks and Van Daalen reflect a fatal misunderstanding of the law, namely a belief that a search of an arrestee’s property incident to arrest automatically follows every arrest.

[8] The Crown’s position is that the search of the knapsack was lawful as it was for purposes of safety and the discovery of evidence. However, should a s. 8 violation be found, the Crown argues that any breach is minor and ought not to result in the exclusion of evidence under s. 24(2) of the Charter.

[9] These are my reasons for finding that the search of the knapsack was a lawful search incident to arrest. In the event I am wrong, I would nevertheless admit the evidence under s. 24(2) of the Charter.

B. Background

[10] On November 21, 2020, at approximately 12:51 a.m. the police received a dispatch call to attend at 500 Murray Ross Parkway, unit #1707. It was a priority 1 call, the highest priority.

[11] Upon arrival, an ambulance was on scene attending to a female and her four-month-old infant. The male suspect was the child’s father i.e., Mr. Ojukwu, who was believed to still be in the apartment unit. He was not. Rather, he was found asleep in the stairwell. A pat down search revealed a satchel containing three large bundles of cash. The knapsack found directly beside him was also searched. It contained over 900 grams of heroin and personal documents. Mr. Ojukwu was transported 31 Division to await a show cause hearing as he was also in breach of his release terms related to a prior charge of domestic assault on the same complainant.

[12] The defence seeks an exclusion of the heroin found in the knapsack. If granted, the Crown cannot proceed with the prosecution on Count 1. This is the more serious of the two charges in this case.

C. The Evidence

(1) The Police Dispatch to Scene

[13] On Saturday November 21, 2020, at approximately 12:51 a.m., the police received a dispatch from a “hot shot echo-tiered call” to attend at 500 Murray Ross Parkway, unit #1707. Such a call is used when paramedics, police and firefighters are required at the scene. Paramedics were the first to arrive in response to the 911 call concerning a four-month-old baby having difficulty breathing.

[14] Officers Gonsalves and Weeks were the first officers to respond. Upon arrival, they observed two patients in the ambulance receiving treatment – a female and her four-month-old infant. The female reported that both she and her infant were assaulted by her partner Eze Moses – the infant’s father. She was not forthcoming with details. The driver of the ambulance told Officer Weeks that the suspect had thrown the infant against the wall.

[15] Officer Weeks called for back-up officers. He advised that the male suspect was arrestable for two counts of assault. In response to his call for back-up, Officer Weeks learned “over the air” that the suspect – Eze Moses Ojukwu – was in breach of a no contact term relating to a prior domestic assault on the same complainant at the same address. Officer Weeks was concerned. He testified that he knew they were dealing with allegations of “some violent crime” by a suspect who was possibly still in the apartment unit.

[16] Officers Van Daalen and McDonald arrived at 1:11 a.m. They accompanied Officer Weeks to unit #1707. At 1:18 a.m., the three officers entered the unlocked unit. They discovered it was empty. Officer Weeks described the search as “minimal” as they were only looking for people due to safety concerns for “anyone involved”. Once the two or three minute search was finished, they were joined by Sergeant Rowsome. It was decided they would split into two pairs for a top-down search of the building to look for Mr. Ojukwu as he was “arrestable”. At 1:33 a.m., Officer Van Daalen radioed that she found the suspect in the east stairwell.

(2) The Arrest and Pat Down Search

[17] The discovery of Mr. Ojukwu in the stairwell and the events that followed were video-recorded by building security cameras. The recording has no audio. The recording starts with a timestamp of 01:33:48 on Saturday November 21, 2020, when Mr. Ojukwu was found asleep and stretched out on the steps just above the landing to door 12E.

[18] Officer Van Daalen testified that when she and her partner, Officer MacDonald, first discovered Mr. Ojukwu, he was snoring. He smelled of alcohol. The odour of alcohol was a concern to Officer Van Daalen. She explained that as alcohol can make people more volatile, this hastened the need to place Mr. Ojukwu under arrest “asap” to avoid a fight.

[19] Mr. Ojukwu was awakened and immediately informed by Officer MacDonald that he was under arrest for two counts of assault and one count of fail to comply. Mr. Ojukwu’s hands were handcuffed behind his back. Officer MacDonald picked up the knapsack that had been beside Mr. Ojukwu. Before looking inside, he placed it back down almost immediately to conduct a pat down search. Strapped to Mr. Ojukwu’s torso was a satchel containing bundles of cash. Three large bundles of cash were removed from the satchel and placed on the steps. [1]

[20] At approximately 1:38 a.m., Mr. Ojukwu was escorted, handcuffed, from the stairwell by Officers Van Daalen and MacDonald. During cross-examination, Officer Van Daalen agreed that the plan was to arrest, search and transport Mr. Ojukwu to the station where he would be held for a bail hearing given his outstanding charges. Officer Weeks commenced his search of the knapsack as Mr. Ojukwu was escorted out of the stairwell handcuffed.

(3) The Search of the Knapsack

[21] Officer Weeks’ search of the knapsack was brief. It was videotaped in its entirety by building security cameras. He testified that when he arrived in the stairwell, Mr. Ojukwu was already handcuffed. He observed property on the stairs, including “stacks of cash” and a backpack. Officer Weeks testified that during the pat down search of Mr. Ojukwu he was “standing by” to “just keep a lid on things”. He did this because of safety concerns due to the assault allegations and the breach related to the prior domestic assault.

[22] In an outer compartment of the knapsack, Officer Weeks found a small clear plastic bag containing a white substance he believed to be crack cocaine. In the bag’s main compartment, he found several manilla envelopes, a scale, and a tied grocery bag. The grocery bag contained a large clear plastic bag with nine smaller bags all of which had a similar white substance. By 1:50 a.m., Officer Weeks exited the stairwell with the knapsack in hand.

[23] Officer Weeks testified that the search of the knapsack was incidental to Mr. Ojukwu’s arrest. It was to look for weapons and inventory the property. His search for weapons was because there was a “fair bit of violence adding up in this scenario” given Mr. Ojukwu’s arrest for two counts of assault and his breach related to an earlier assault.

[24] During cross-examination, Officer Weeks agreed he had no information to suggest that a weapon was involved in the incident. Nor did Mr. Ojukwu resist arrest. However, Officer Weeks rejected defence counsel’s suggestion that there was “no heightened police safety concern”. He testified as follows:

Q. To conclude from that [i.e., that no weapons were found], what we have seen on the video and what you know so far, during the arrest of Mr. Ojukwu there was no heightened police safety concern correct? A. I don’t know that I can entirely agree with that counsel. I know now, we look back on everything and watch the video, looking back on things, but that night again, the echo-tiered hot shot call for service involving an infant, the mother who was not entirely forthcoming with me. I take your point that [in] the video we saw, Mr. Ojukwu did not appear to resist the arrest by those two officers, but there’s still a lot of violence hanging in the air with all of this. And I mentioned the history that come over the air that was broadcast about a possible breach relating to an earlier domestic assault so it’s – I mean it’s still a possibility.

Q. You don’t expect to find a weapon in his backpack do you? A. So, given everything looking back, no, of course. But, at the time I don’t know what was in the backpack.

Q. But, you don’t think there’s a possibility at that point. You have no reason to believe that there may be a weapon in the backpack? A. I would agree with you that there was no information communicated about a weapon having been used that night. But when you say that’s there’s no possibility, again I think that’s a bigger statement than I could agree with.

Q. There’s always a possibility. There’s no reasonable possibility? A. Again, no information indicating that a weapon was used that night.

Q. Officer, … I want to be fair. Now, when I say no possibility that’s too far. There’s always a possibility. There’s always a possibility of anything. But there’s a difference between possibility and a reasonable possibility. Do you agree? A. Sure.

Q. There was no reasonable possibility in these facts of finding a weapon in that backpack, is that fair? A. Again, none of the information that night, leads to a reasonable belief that there would be a weapon in there. No allegations of a use of a weapon.

[25] Officer Weeks was asked why he did not just take the knapsack to the station without searching it, or alternatively, why he did not just leave it with building security or in apartment #1707. Officer Weeks explained that to leave the knapsack in unit #1707 would set Mr. Ojukwu up for a breach of his release terms and he never considered leaving the bag with building security. Officer Weeks testified that the “inventory” of the bag was part of the booking process at the station.

[26] Officer Weeks testified that over the course of his fourteen-year policing career, he has made hundreds of arrests. He has spent the entirety of his career at 31 Division which he described as a fairly busy division. Every arrest has involved a search incident to arrest either by himself or another officer. He testified that “the primary reason is safety”. During cross-examination, he agreed that if an arrestee has property beside them, he will seize and search the property incident to the arrest. In some circumstances, he has asked an arrestee what they want to happen with the item. However, he would never turn property over to a third party without first searching it. He explained that it would “not be in the best interests of the public” to just hand something over without knowing what it is as a bag could contain “anything”, including weapons, evidence related to the offence, or illicit drugs.

(4) The Booking Process at 31 Division

[27] By 1:55 a.m., Mr. Ojukwu arrived at 31 Division. He was brought before Staff Sergeant Harnett. His booking at 31 Division was video and audio recorded.

[28] At the outset of the booking process, Officer Van Daalen requested that Mr. Ojukwu be strip searched based a risk of concealed contraband. Staff Sergeant Harnett declined this request. Instead, he directed a frisk search as a first step. Mr. Ojukwu was never strip searched.

[29] Officer Weeks also attended at 31 Division with Mr. Ojukwu’s property. The contents of the knapsack were turned over to Officer Castillo, a scenes of crime officer, to photograph. The photographs show the personal nature of the material found in manila envelopes, including bank records, Canada Revenue Agency’ records, and legal documents relating to Mr. Ojukwu’s refugee claim.

(5) TPS Search Policy

[30] The TPS policy on “Search of Persons” (the “Policy”) was filed as an exhibit by the defence. It was issued on November 24, 2021, and replaced an earlier policy dated April 29, 2021. The Policy in effect on the date of Mr. Ojukwu’s arrest – assuming there was one – was not filed. The Policy was not shown to Officer Weeks. Rather, during cross-examination, Officer Weeks testified that his last training on search incident to arrest was “a few years ago” when changes were made to level 2 and level 3 searches which are now called “frisk” and “strip” searches. This change in policy came with an on-line learning module but did not specifically address search incident to arrest.

[31] The Policy was shown to Officer Van Daalen, who at the time of Mr. Ojukwu’s arrest, had been an officer for approximately 18 months. During cross-examination she was asked about her training. She testified that her mandatory training at Police College included training on search incident to arrest. Officer Van Daalen testified that the current Policy accorded with her understanding of the common law power to search incident to arrest. She was unaware of any difference between property found on an arrestee versus property found on the ground next to an arrestee.

[32] The Policy states its “Rationale” as follows:

The right to search a person is of paramount importance to the safety of prisoners, members, and all other persons employed within the criminal justice system. It is critical that officers make a proper evaluation of the potential risks, ensure that the appropriate type of search is conducted, and that they are diligent while searching persons in custody.

In December 2001, the Supreme Court of Canada made a ruling in the case of R. v. Golden, which directly impacted on the search of person incident to arrest.

The lawful authority for searching a person comes from statute or common law. Officers conducting searches must be able to articulate their authority and grounds for doing so. Information has been included in this Procedure that will assist officers in properly assessing the appropriate type of search to be conducted, and identify some of the risks that must be addressed (see Appendix B). In the absence of clear direction in the form of legislation, the courts have expressed some concerns with “routine police department policy applicable to all arrestees”. As a result, although this Procedure outlines possible risk factors, and places an obligation on police officers to address them, the decision as to what type of search is appropriate must be assessed on a case-by-case basis.

[33] With regards to “Searching a Person”, the Policy provides:

For a search to be lawful it must be reasonable and justified given all the circumstances and it must be conducted for a valid reason. The onus is on the officers conducting and authorizing a search to demonstrate that the search is justified in law, necessary and reasonable.

Warrantless searches are prima facie unreasonable and contrary to s. 8 of the Charter. However, searches incident to the arrest of a person are recognized as lawful at common law and do not require a warrant. Searches cannot be justified by citing standard procedures. However, for safety reasons, except in extenuating circumstances, all persons under arrest must be searched at the first available opportunity.

[34] The Policy contains a section titled “Search Incident to Arrest”. It reads:

The right to search as an incident to a lawful arrest is found in common law, and has been upheld by the Supreme Court, as long as the search is conducted for a valid objective and is not conducted in an abusive fashion. (Cloutier v. Langlois, 1990)

As an incident to arrest a police officer may search for

• weapons
• anything that could cause injury (including drugs and alcohol)
• anything that could assist in a person’s escape
• evidence

[35] The Policy provides a list of general procedural directions to “members” when conducting a search. These include the direction that members “shall” (i) “search the area within the person’s immediate surroundings, if applicable” and (ii) “remove weapons, anything that could cause injury (including drugs and alcohol), anything that could assist in the person’s escape, or evidence of an offence, as applicable”.

D. The Governing Legal Principles

(1) A Warrantless Search is Prima Facie Unreasonable

[36] It is well established that any warrantless search is prima facie unreasonable and in violation of s. 8 of the Charter. It follows that the onus is on the Crown to demonstrate, on a balance of probabilities, that the warrantless search in this case was reasonable: see R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 45; R. v. Santana, 2020 ONCA 365, 389 C.C.C. (3d) 79, at para. 23; R. v. Aviles, 2017 ONCA 629, 387 C.R.R. (2d) 68, at paras. 14-17. The Crown agrees that it bears this onus. The defence bears the onus under s. 24(2) of the Charter to demonstrate that the evidence should be excluded if the search is found to violate s. 8.

[37] A search will be reasonable and in compliance with s. 8 of the Charter if it is authorized by law, the law is reasonable, and the search is conducted in a reasonable manner: see Tim, at para. 46; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12. In this case, the Crown relies on the common law power of the police to search incident to arrest for the warrantless search of Mr. Ojukwu’s knapsack and the seizure of the heroin found therein.

(2) Common Law Power to Search Incident to Arrest

[38] A three-prong test determines whether a search is valid pursuant to the common law power to search incident to arrest. First, the arrest must be lawful. Second, the search must be truly incidental to the arrest in that it is for a valid law enforcement purpose related to the reasons for the arrest. Third, the search must be conducted reasonably: see Stairs, at paras. 6, 35; Tim, at para. 49; Fearon, at para. 16. In this case, the defence concedes the lawfulness of the arrest. There is also no dispute concerning the reasonable manner of the search. That does not, however, end the inquiry. What is disputed is whether the search was truly incidental to the arrest.

[39] The common law power to search incident to arrest is “extraordinary” in that it requires neither a warrant nor reasonable and probable grounds. It is a “focussed power” of the police to facilitate prompt investigations of crime that is triggered upon every lawful arrest: Fearon, at para. 16. However, the search must be truly incidental to the arrest such that it is for one or more of the three valid purposes of (i) police and public safety, (ii) discovery of evidence, or (iii) prevention of the destruction of evidence: see Stairs, at paras. 35-36; Fearon, at paras. 16-17; Caslake, at para. 17.

[40] Provided the police act in furtherance of one of the three valid law enforcement purposes, their power to search incident to arrest applies not only to the individual arrested, but also to the arrestee’s “immediate surroundings”: Cloutier v. Langlois, [1990] 1 S.C.R. 158, at pp. 180-81. The arrestee need not be in control of the surrounding area at the time of the search. In fact, in some circumstances, a lawful search of surroundings can occur hours after an arrest while the arrestee is in custody. The police must, however, subjectively believe that the search is “connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable”: Stairs, at para. 37. See also Caslake, at paras. 19-25.

[41] Whether a search is truly incidental to the arrest “cannot be answered in too categorical a fashion”: Fearon, at para. 13. What is permissible will vary based on the “particular circumstances of the particular arrest”: Fearon, at para. 13. Relevant factors may include the alleged crime, the nature of the items seized, and the place and time of the search in relation to the place and time of the arrest: Fearon, at para. 13; Caslake, at paras. 15-16.

[42] As explained by the majority in Stairs, “[t]he inquiry is highly contextual; the determination must be made using a purposive approach to ensure that the police can adequately respond to the wide variety of factual situations that may arise. Depending on the circumstances, the surrounding area may be wider or narrower”: Stairs, at para. 60.

[43] Given the highly contextual nature of the inquiry, there is no blueprint for determining its precise scope. Rather, the fact-specific inquiry relies on the police being able to “clearly explain why they did what they did and how it was connected to the arrest”: R. v. Bakal, 2021 ONCA 584, 157 O.R. (3d) 401, at para. 60. See also Fearon, at paras. 13, 21-22.

[44] The key issue is whether the police had “some reasonable basis” to do what they did: Stairs, at paras. 37, 67, citing Caslake, at para. 20. See also Fearon, at para. 22. The test of “some reasonable basis” is met provided the search is “based on generalized concerns arising from the arrest”: Stairs, at para. 67. In other words, there must be a “link between the location and purpose of the search and the grounds for the arrest”: Stairs, at paras. 60, 79, citing Nolet, at para. 49.

[45] In this case, the Crown relies on two of the three valid objectives for a search incident to arrest, namely (i) safety and (ii) the discovery of evidence.

E. Analysis

[46] The key disputed issue on this motion is whether the search of the knapsack was truly incidental to Mr. Ojukwu’s arrest. The Crown has advanced two lawful bases: safety and the discovery of evidence. In his testimony, however, Officer Weeks spoke only of safety concerns as the basis for his search of the knapsack. Accordingly, while a search may have also been reasonable for purposes of discovering evidence, this was not the subjective belief of Officer Weeks at the time he searched the knapsack.

[47] The defence position is that any safety concerns that may have existed were eliminated once Mr. Ojukwu was removed from the stairwell. I disagree. In my view, safety concerns are not extinguished simply because a bag is no longer in the accused’s physical control. Nor are safety concerns necessarily diminished simply because the use of weapons is not reported: see Aviles, at para. 28-33; Santana, at para. 37. It is well established that a safety search is not limited to circumstances where there exists a reasonable belief of a risk of “imminent harm”: Stairs, at paras. 76-77.

[48] Whether the police can look in a bag found in an arrestee’s physical possession based on safety concerns, will depend on the particular circumstances of each case. That said, there can be little doubt that the power to search incident to arrest includes the power to take possession of any bag on or with an arrestee at the time of the arrest.

[49] In some circumstances, any safety threat may be eliminated once an accused no longer has access to the item. That was the finding in R. v. Howell, 2020 BCSC 1731, 387 C.R.R. (2d) 68. In that case, the accused was handcuffed and secure in the police vehicle without access to his knapsack at the time it was searched. The officer testified that the search was conducted as a matter of course. The court found that the search was unreasonable as there was no safety risk. Nor was there any basis upon which the officer could reasonably believe the search might uncover evidence related to the arrest on outstanding warrants for 26 counts of fraud. Consequently, the drugs found in the knapsack were excluded from evidence.

[50] Similarly, in Smith, the court found that any threat of safety was “reasonably and effectively averted” once Smith was arrested, handcuffed, and separated from her purse: at para. 37. Given that there was “no suggestion” the police believed Ms. Smith had a weapon in her purse, it could not be searched incident to her arrest: Smith, at para. 35. On appeal, the court upheld the trial judge’s decision to exclude the 2.7 ounces of methamphetamine found in a camera case in her purse.

[51] While the defence analogizes the instant case to that of Smith and Howell, those cases share two common factors not found in Mr. Ojukwu’s case. Specifically, both Smith and Howell involved arrests for outstanding warrants related to non-violent offences. In Smith, the outstanding warrant was for possession of stolen property and obstruction. In Howell, the outstanding warrants were for 26 counts of fraud. The non-violent nature of the index offence combined with the lack of any temporal proximity between the alleged crime and the arrest render these cases wholly distinguishable from Mr. Ojukwu’s case.

[52] In my view, the instant case is more akin to Aviles. In Aviles, the police searched a shoulder bag that fell to the ground during Aviles’ arrest for assault. The shoulder bag was searched after the accused was handcuffed and in the police vehicle. The assault did not involve any reported use of a weapon. On appeal, the Court of Appeal for Ontario upheld the trial judge’s finding that the search was a lawful search incidental to his arrest due to safety concerns given the intent to bring the bag to the station, it was searched to ensure it did not contain a firearm despite the fact that the assault did not involve any reported use of a weapon. The bag contained drugs and a knife – evidence that was admitted at trial.

[53] In this case, the key issue is whether Officer Weeks had “some reasonable basis” to search the knapsack based on Mr. Ojukwu’s arrest: Stairs, at para. 67. See also Caslake, at para. 20. In my view, he did.

[54] The test of “some reasonable basis” is far lower than the standard of reasonable grounds to believe (or credibly based probability). It is also distinct from – and less stringent than – the “reasonable suspicion” standard “because it permits searches based on generalized concerns arising from the arrest, while the reasonable suspicion standard does not”: Stairs, at para. 67. It is evident from Officer Weeks’ testimony that the search of the knapsack was due to safety concerns. Throughout his testimony, Officer Weeks repeatedly mentioned the “domestic” nature of the call and Mr. Ojukwu’s breach of his release terms on a prior domestic incident as giving rise to safety concerns. These concerns did not terminate upon Mr. Ojukwu’s removal from the stairwell. Rather, as stated by Officer Weeks, the knapsack could contain “anything”.

[55] Officer Weeks’ subjective belief that a search of the knapsack was required for safety purposes is objectively reasonable. First, Mr. Ojukwu’s breach of his release terms shows a blatant disregard for the law; a factor that elevates safety concerns. Second, one cannot discount the highly dynamic and unpredictable nature of domestic calls. None are routine. Even the most benign call can quickly become dangerous and, in some cases, fatal. When responding to any domestic call, officers face a significant risk of danger. As observed by the majority in Stairs, “[g]iven the prevalence of domestic violence and its attendant risks, responding police officers must have the ability to assess and control the situation”, including the “surrounding area of the arrest”: Stairs, at para. 93.

[56] The fact that there was no use of weapons reported is of no consequence. “[T]he police must expect the unexpected”: Stairs, at para. 74; R. v. Golub (1977), 34 O.R. (3d) 743 (C.A.), at para. 44, leave to appeal refused [1997] S.C.C.A No. 751. That said, the possibility of weapons on a call concerning domestic violence is hardly “unexpected”. In responding to a call concerning domestic violence, officers would be remiss in their duty if they relied on the absence of any reported use of weapons as indicative of a diminished risk of the presence of weapons. It is common knowledge that the minimization and denial of violence is prevalent in the domestic violence context. That was certainly true in this case as Officer Weeks testified that Mr. Ojukwu’s partner – Mary Agwaze – was not forthcoming with information.

[57] It was imminently reasonable for Officer Weeks to search the knapsack out of safety concerns. There was more than “some reasonable basis” to check the knapsack to ensure its contents did not pose any safety risks. In my view, given the high-risk volatile circumstances faced by the officers in this case, it would be wrong to second guess Officer Weeks as to his honest belief for the need to conduct a protective safety search. To do so would view his conduct with the benefit of twenty-twenty hindsight – a luxury not afforded to officers responding to emergency calls.

[58] The defence argues that Officer Weeks’ admission, during cross-examination, that there was no “reasonable possibility” of finding a weapon in the knapsack demonstrates its unlawfulness. In my view, this submission is legally misconceived. The standard of “reasonable possibility” is higher than “some reasonable basis”. A “reasonable possibility” requires a non-speculative belief of attaining a particular result, i.e., that a weapon would be found. In contrast, a standard of “some reasonable basis” is not tied to an end result. Rather, applied in this case, the question is whether, in the circumstances, “it seemed reasonable to check” the knapsack for any object that may pose a safety threat: Caslake, at para. 20. In my view, it was. There was a clear direct link between the arrest and the search of Mr. Ojukwu’s knapsack: see Bakal, at para. 58.

[59] The defence further argues that Officer Weeks’ testimony reflects a systemic failure by the TPS to properly train officers on the limited scope of their discretionary power to search incident to arrest. While Officer Weeks testified that a search incident to arrest has occurred in all of his arrests, I do not view this as reflecting a systemic failure by the TPS to properly train their officers on the limited scope of this power. Rather, it was clear from Officer Weeks’ testimony that he viewed the search of Mr. Ojukwu’s knapsack as standard. He was never asked whether his normal practice of conducting a search incident to arrest would have changed had he been faced with circumstances similar to those in Smith or Howell or if the item to be searched was Mr. Ojukwu’s motor vehicle as in R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102.

[60] Finally, the defence argues that the police had a duty of inquiry concerning the knapsack. In other words, Mr. Ojukwu ought to have been given a choice. The defence analogizes the circumstances of this case to those involving a motor vehicle wherein custody of the vehicle is given to a third party who is present at the time of a roadway stop. The defence argues that a search of the knapsack was unnecessary as Officer Weeks had three non-search options available namely, to leave the knapsack (i) in apartment #1707, (ii) with the building security office or (iii) in a sealed property bag at 31 Division. In my view, this argument must fail. It is not a correct proposition of law. This case is wholly distinguishable from cases referred to by the defence involving motor vehicles. In those cases, the police lacked any valid purpose to search the vehicle incident to arrest. Further, as Officer Weeks explained, given that the knapsack could contain “anything”, it would be imprudent to leave the knapsack anywhere or with anyone without first searching it. Nor does the evidence support the viability of the proposed alternative options. First, leaving the bag in apartment #1707 would invite a breach of bail. Second, there was no evidence that the building security office was open at the time of the arrest. Finally, placing the knapsack in a sealed property bag would appear to conflict with Officer Weeks’ testimony that all property of an arrestee that is taken to the station must be inventoried as part of the booking process.

[61] Having found no s. 8 violation, it is not necessary for me to address exclusion under s. 24(2) of the Charter. However, in the event I erred in concluding Mr. Ojukwu’s s. 8 rights were not violated, the evidence is admissible under s. 24(2).

F. Section 24(2) of the Charter

[62] Evidence obtained in violation of a Charter right is not automatically excluded. Rather, the onus is on the accused to establish that the admission of the evidence would bring the administration of justice into disrepute having regard to all the circumstances in the particular case: see Tim, at para. 75.

[63] The analytical framework for determining whether evidence is admissible under s. 24(2) of the Charter is set out in the Supreme Court’s seminal decision of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. Courts must consider the following three lines of inquiry:

(i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused’s Charter protected interests; and (iii) society’s interest in the adjudication of the case on its merits.

[64] No one line of inquiry is determinative. Instead, the final step of the s. 24(2) analysis requires “balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice”: Tim, at para. 98.

(1) The Seriousness of the Charter-Infringing State Conduct

[65] This first line of inquiry focuses on the nature and degree of police misconduct. The court must consider whether there is police misconduct from which the court should dissociate itself. The concern is not to punish the police, but to preserve public confidence in the administration of justice through an exclusion of the evidence seized as a prospective remedy: Tim, at para. 82. See also Grant, at paras. 72-73.

[66] Charter violations due to deliberate or egregious state misconduct increase the need for the court to dissociate itself from the conduct by excluding the evidence. Police conduct must be evaluated on a “spectrum” or a “scale of culpability”: Tim, at para. 82, citing Grant, at para. 72 and R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. In my view, if there was a breach of s. 8 in this case, it was not serious.

[67] The defence position is that the police conduct in this case is serious because it reflects an ignorance of Charter standards both at an individual level and on a broader systemic level. At the individual level, the defence argues that Officer Weeks’ search of the knapsack was done as a matter of routine practice, not as an exercise of his discretionary power to search in furtherance of a lawful objective. At the broader systemic level, the defence argues that the search reflects a failure by TPS to properly train officers on the limited scope of their discretionary power to search as an incident of a lawful arrest. As evidence of this systemic failure, the defence pointed to the following aspects of the Policy as deficient and misleading:

(i) Page 4 states “for safety reasons, except in extenuating circumstances, all persons under arrest must be searched at the first available opportunity” (emphasis added). The term “all” suggests this is a mandated procedure rather than a discretionary power that must be tied to a lawful objective. (ii) Page 5 sets out the items an officer may search for (i.e., weapons, anything that could cause injury, anything that could assist in a person’s escape, evidence) but fails to link this to an officer’s subjective reasonable belief that these items will be found or that a search for “evidence” must be related to the arrest. (iii) Page 6 provides that the member shall “search the area within the person’s immediate surroundings if applicable” but fails to link this to one of the valid purposes related to the arrest.

[68] I disagree. The TPS Policy is not deficient or misleading. Rather, a review of the Policy as a whole demonstrates its consistency with jurisprudence. Officers are explicitly instructed to do a “case-by-case” assessment of “the potential risks” to “ensure that the appropriate type of search is conducted”. Officers are properly informed that a search of a person incident to arrest “cannot be justified by citing standard procedures.” It recognizes, however, that “all persons under arrest must be searched at the first available opportunity” for safety reasons “except in extenuating circumstances”. The Policy correctly identifies the common law as the source of this power and that the power “may” be exercised but must be in furtherance of at least one of four listed valid objectives, namely: (i) weapons; (ii) anything that could cause injury (including drugs and alcohol); (iii) anything that could assist in a person’s escape; and (iv) evidence. Officers are also directed to consider a search of “the area within the person’s immediate surroundings, if applicable” and “to remove weapons, anything that could cause injury (including drugs and alcohol), anything that could assist in the person’s escape, or evidence of an offence”. In short, the Policy accurately sets out the governing legal principles and calls for a case-by-case assessment by officers in the exercise of their discretionary power to search incident to arrest. While the Policy could be more detailed, it is not deficient or misleading, such that it facilitates systemic violations of Charter rights.

[69] The defence argues that the testimony of Officers Weeks and Van Daalen reflects a belief that there is a “blanket” automatic power to search incident to a lawful arrest. I disagree. The officers’ testimony must be viewed in the context of this case. In this case, the officers were engaged in a dynamic potentially high-risk arrest involving allegations of domestic violence by a suspect with similar outstanding charges. In these circumstances, the search of the knapsack – which was obviously in Mr. Ojukwu’s possession – in the minutes immediately after his arrest was properly viewed as routine. The need to gain control of the scene extends to items in the accused’s possession at the time of the arrest. While this discretionary power does not impose a duty, the practical reality is that this will be routine in most cases, particularly for primary response officers working in Canada’s largest city. As noted by Fairburn A.C.J.O. in Bakal, “the common law does not expect the police to ask themselves pristine questions” of law: Bakal, at para. 59. Notably, neither officer was asked whether their routine practice would be followed in circumstances where the arrest was for a historical non-violent offence as occurred in Howell and Smith or if the item to be searched was Mr. Ojukwu’s motor vehicle as in R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102.

[70] This is not a case involving a wilful disregard of Charter rights, nor one involving multiple breaches. Indeed, an uncommon feature of this case is the concession that Mr. Ojukwu’s arrest was lawful. Typically, it is the unlawfulness of the arrest that gives rise to an unlawful search. In my view, the seriousness of any potential breach is attenuated by the lawfulness of the arrest, and the reasonable manner of the search. In fact, defence counsel commended the professionalism of all officers involved in Mr. Ojukwu’s arrest. There was no flagrant disregard for Mr. Ojukwu’s Charter rights. Rather, any breach of Mr. Ojukwu’s Charter rights was the product of understandable human error concerning the scope of the power to search Mr. Ojukwu’s “immediate surroundings” following his removal from the scene of the arrest. In terms of placement of the police conduct in conducting a search in these circumstances, if there is a breach, it falls at the lower end of the scale.

[71] This first line of inquiry under Grant favours the admission of the evidence.

(2) The Impact of the Breach on the Charter Protected Interests of the Accused

[72] This second line of inquiry is assessed from the perspective of the accused and is focused on whether the breach “actually undermined the interests protected by the right infringed”: Tim, at para. 90, citing Grant, at para. 76. Relevant to this inquiry is the extent of an accused’s privacy interest in the place searched. For instance, a search of one’s home or body will have a greater impact than a search of a suitcase or vehicle: see Grant, at para. 78.

[73] The defence argues that Mr. Ojukwu’s privacy rights were significantly impacted because some of the documents in his knapsack contained highly personal information. That, however, relies on the fruits of the search as the determinative factor rather than the reasonable expectation of privacy in the item searched. A knapsack, as with a briefcase – locked or unlocked – is not an item in which heightened privacy interests vest. Provided it is searched for a valid objective, it falls within the power to search incident to arrest: see R. v. Mohamad (2004), 69 O.R. (3d) 481 (C.A.); R. v. Rochwell, 2012 ONSC 5594, 268 C.R.R. (2d) 283, at paras. 46-52. As stated by Code J. in Rochwell, at para. 52, “briefcases, backpacks, duffel bags, equipment bags, and purses all can be used to secrete the fruits and instrumentalities of crime. … The common law has always allowed the police to search inside such a receptacle, incident to a lawful arrest.”

[74] In this case, the first item Officer Weeks found in the knapsack was a clear plastic baggie containing a white substance believed to be crack cocaine. The documents contained in the envelopes were only viewed after Mr. Ojukwu was booked at 31 Division. As noted by Doherty J.A. in R. v. Nicolosi (1988), 40 O.R. (3d) 417 (C.A.), at para. 36, once the police take custody of an arrestee’s property, there is a duty to safeguard it and its contents. This duty requires that the contents of the item seized be documented. This accords with Officer Weeks’ testimony that an inventory of the knapsack was part of the booking process at 31 Division.

[75] In my view, the moderate impact of the breach weighs in favour of exclusion.

(3) Society’s Interest in an Adjudication of the Case on its Merits

[76] This third line of inquiry is focused on whether the truth-seeking function of the criminal trial process is better served by the admission or exclusion of the evidence. Factors relevant to this inquiry include the reliability of the evidence and its importance to the Crown’s case: see Tim, at para. 96; Grant, at para. 79. “Reliable evidence critical to the Crown’s case will generally pull toward inclusion”: Tim, at para. 96. See also Grant, at paras. 80-81; R. v. Harrison, 2009 SCC 34. at paras. 33-34.

[77] In this case, there can be little doubt that the heroin found in Mr. Ojukwu’s knapsack is highly reliable and relevant real evidence. The possession of this quantity of heroin is extremely serious and would attract a significant penitentiary sentence. This evidence is also essential to the Crown’s case on Count 1 – the charge of possession for the purpose of trafficking. While I am cognizant that in some circumstances the exclusion of a large quantity of drugs central to the Crown’s case may be warranted because “the price paid by society for an acquittal … is outweighed by the importance of maintaining Charter standards”, that is not this case: Harrison, at para. 42.

[78] The defence argues that although the exclusion of the heroin is fatal to Count 1, this factor should be given diminished weight in the circumstances of this case for three reasons. First, excluding the heroin will not gut the Crown’s case entirely. Rather, the Crown has stated its intention to continue the prosecution of Count 2 regardless of the outcome of this motion. Second, the Crown choose not to pursue the charges related to the drugs found in the apartment – charges that did not depend on the admission of the heroin. Third, the critical nature of the heroin to Count 1 is because the Crown choose not to pursue avenues that may have yielded other evidence relevant to its proof of Count 1, i.e., a production order for cellphone records of the phones found in Mr. Ojukwu’s possession. No authority was cited for this proposition. In my view such a proposition is legally incorrect. It invites a weighing of factors extraneous to the specific issue that is the focus of the third line of inquiry.

[79] In my view, society’s interest in a trial on its merits in the circumstances of this case weighs heavily in favour of admitting the evidence. As noted in R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 94, heroin is highly addictive. By its very nature, trafficking is a crime marked by greed and a disregard for the public toll it inflicts on society.

(4) Balancing the Factors

[80] Balancing all the relevant factors under the three lines of inquiry is the final step in the s. 24(2) analysis. It is a qualitative exercise, not quantitative. Its goal is not to punish the police for Charter breaches. Instead, it takes a prospective approach. It aims to guard against any further harm to the repute of the justice system if evidence obtained through a Charter breach is admitted: see Tim, at para. 98; Grant at para. 69.

[81] In my view, the long-term repute of the administration of justice is best served by the admission of the evidence in this case. An exclusion of the evidence in the circumstances of this case would have a greater negative effect on the repute of the justice system than its admission.

G. DISPOSITION

[82] In the result, the ss. 8 and 24(2) Charter motion is dismissed and the evidence, namely, the seized heroin, is admitted.

Joan M. Barrett J.

Released: March 30, 2023

Footnote:

[1] The cash totaled $44,360.00.