Court File and Parties

Court File No.: CR-17-21 Date: 2023-04-11 Superior Court of Justice - Ontario

Re: R. v. Shaun Krawiec

Before: Justice D.A. Broad

Counsel: Derek Zuraw, for the Crown/Respondent Adam Philip Newman, for the Accused / Applicant

Heard: March 13, 2023

Pretrial Application Ruling

(Orally)

[1] The applicant is charged pursuant to the Amended Indictment with one count of possessing a loaded prohibited firearm without being the holder of an authorization or license under which he may possess the firearm contrary to section 95(1)(a) of the Criminal Code.

[2] The applicant has brought an application to exclude the evidence referred to below from the trial, which is scheduled to commence on April 17, 2023, pursuant to s. 24(2) of the Charter of Rights and Freedoms based on an alleged violation of his s. 8, 9 and 10(b) rights under the Charter when he was detained, arrested, questioned and searched by police.

[3] The evidence on the voir dire was comprised of the transcript of the preliminary inquiry and brief viva voce evidence of Police Constable Jason Nagy (“PC Nagy”) of the Brantford Police Service.

Facts

[4] The relevant facts are as follows.

[5] On January 11, 2019 PC Nagy received a complaint from the owner of a four-door 2009 Chevrolet Impala (the “vehicle” or the “Impala”) that he had lent the vehicle to Megan Charlton but it not been returned to him at the arranged time.

[6] At 18:11 PC Nagy open-radioed to other police officers to be on the lookout for the vehicle. In doing so he stipulated that there were no reasonable and probable grounds for arrest as the vehicle was only late being returned and access to the vehicle had not been denied to the registered owner. PC Nagy stated that he wanted the occupants of the motor vehicle identified for his own investigation.

[7] At approximately 18:14 Police Constable Milmine (“PC Milmine”) observed the vehicle parked within a parking space at a municipal parking lot in downtown Brantford.

[8] PC Milmine entered the parking lot in a low-profile Emergency Response Team pickup truck and pulled up behind the vehicle close to its rear bumper, blocking the vehicle so that the occupants could not flee in it.

[9] PC Milmine observed three individuals standing outside of the vehicle, one of which was the applicant who was standing outside the driver’s side with the driver’s side door open. A second male was standing outside the passenger side of the vehicle with the passenger door closed. PC Milmine observed a female known to him as Megan Charlton standing beside the second male on the passenger side.

[10] PC Milmine asked the individuals why they had yet to return the vehicle. The applicant responded that he did not know what the officer was talking about and began walking towards the other male and Ms. Charlton. PC Milmine asked the applicant to identify himself, whereupon he and the other male began walking away from the vehicle. When PC Milmine instructed the two males to stop they both began to walk faster. PC Milmine radioed other officers, indicating that one of the individuals had left and were not willing to speak with him. PC Milmine remained with Ms. Charlton at the location of the vehicle.

[11] Sgt. Sawkins observed the two male parties walking eastbound on Colborne Street. One male continued to walk very casually on the sidewalk while the applicant ran into a business alcove and then turned eastbound back towards King Street.

[12] When PC Milmine was informed over the radio that the males were attempting to evade Sgt. Sawkins he obtained the keys to the vehicle from Ms. Charlton and crossed the street on foot to assist the other officers in locating the two male parties. He observed the applicant run into the back of a small restaurant named Bahn Mi Vietnam. The applicant quickly came back to the front entrance of the restaurant where PC Milmine met with him. He asked the applicant why he was attempting to evade police to which he responded “I was just trying to skate you guys bro.”

[13] At 8:21 PC Milmine detained the applicant and informed him that he was being placed under investigative detention and placed handcuffs to the rear of his person. PC Milmine patted the applicant down for 10 to 15 seconds, locating a folded knife in the right pocket of his sweater, a cell phone in the right front pocket of his pants, and a large bundle of cash in the left front pocket of his pants. PC Milmine informed the applicant that he had the right to speak to a lawyer and instructed him not to say anything as it may be used in evidence against him. PC Milmine did not read the applicant’s rights to counsel and caution verbatim. The applicant advised that he understood and stopped talking openly.

[14] Sgt. Sawkins entered the restaurant that the applicant had previously entered and was informed by two male parties that the applicant had gone into the bathroom at the rear of the restaurant, was not there for longer than some seconds, and came back out of the bathroom. After obtaining the consent of a staff member of the restaurant Sgt. Sawkins searched the bathroom and located a 9 mm semi-automatic handgun.

[15] At 18.27 Sgt. Sawkins radioed other officers to report that he had discovered a loaded pistol in the bathroom of the restaurant that the applicant had entered.

Concessions

[16] At the commencement of submissions on the voir dire counsel advised that the issues on the application had been narrowed by agreement.

[17] The applicant’s counsel advised that he would not be advancing a claim that the applicant had been subjected to an unlawful arrest when handcuffs were applied to him, but rather that he had been placed under investigative detention.

[18] Crown counsel acknowledged that PC Milmine had breached the applicant’s rights under s. 10(b) of the Charter by failing to complete the informational component of his rights to counsel. He failed to advise the applicant of his right to call a lawyer without delay and of the availability of legal aid and duty counsel.

[19] The Crown also acknowledged a breach of s. 8 of the Charter on the basis that there was no justification for the pat-down search of the applicant upon his detention for investigation. There was nothing in the testimony of the officers which would support the existence of any safety concerns or concerns relating to destruction of evidence.

[20] The Crown advised that it would be seeking to introduce into evidence at trial the handgun itself, the observations of the officers, including of the applicant walking away from PC Milmine, and his identification. The Crown would not seek to introduce any of the tangible items found on the applicant or in his backpack or any of his utterances.

Issue One: Was the applicant arbitrarily detained at the time of his initial encounter with police at the location of the vehicle in the parking lot?

Positions of the Parties

[21] The applicant’s position is that he was psychologically detained by PC Milmine at the time of their initial encounter at the vehicle. He acknowledges that he was not physically detained at that time.

[22] The applicant argues that PC Milmine sought to locate the target vehicle to identify its occupants and to aid PC Nagy’s investigative efforts. When he located the vehicle he positioned his clearly marked and large police vehicle within a few feet of the Impala vehicle’s rear bumper such that it was blocked in.

[23] Applying an objective test, the applicant submits that a reasonable person in his circumstances would conclude that he had been deprived by the state of his choice to leave. Relevant to this determination was the applicant’s relatively young age at the time of the encounter. PC Milmine described the applicant as “fairly young - maybe early to late twenties.” Other factors included the short distance between the police vehicle and the Impala, the fact that the Impala was blocked off by the police vehicle such that he had no choice to drive away, and the visible markings on the pickup truck identifying it as a police vehicle.

[24] The applicant submits that, if he was detained on the first encounter with police, the detention was arbitrary. He argues that there was no clear nexus between him and a recent or on-going criminal offence. There was no basis for PC Milmine to have a reasonable suspicion that he was implicated in any criminal activity under investigation. The information provided by PC Nagy was that there were no reasonable grounds to arrest any of the occupants, but he just wanted to identify the occupants of the vehicle to “further his investigation.”

[25] The Crown argues that the applicant was not detained during the initial encounter by the Impala vehicle. A reasonable person in the applicant’s circumstances would not conclude that he was deprived of his right to leave. In this respect the Crown points to the fact that, at the time of the encounter, the applicant was not situated inside the vehicle, the officer engaged in conversation with Ms. Charlton, the question that the officer posed to the applicant of why the group had yet to return the vehicle was not intrusive, and following the applicant’s response that he did know what the officer was talking about, the officer did not ask him to stop. The Crown submits that it would trivialize the section 9 Charter right to characterize it as a detention.

[26] The Crown acknowledged that the applicant could not drive away due to the positioning of the police vehicle, blocking the Impala in, and conceded that if the applicant had been situated inside the vehicle there would have been a detention. The Crown says that on the totality of the circumstances the initial encounter did not rise to the level of a psychological detention.

[27] If the encounter is found to have been a detention, the Crown argues that it was not arbitrary, as the officer had reasonable grounds to suspect that the applicant was involved in a criminal offence, namely, taking the vehicle without consent. Given that the vehicle had not been returned and the applicant was standing by the open driver’s door of the vehicle, PC Milmine had a reasonable basis to suspect that he was involved in the commission of an offence.

Guiding Principles

[28] Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.”

[29] The purpose of s. 9 is to protect individual liberty against unjustified state interference, including an individual’s right to make an informed choice about whether to interact with the police or simply walk away. If the police have removed an individual’s choice to leave, the individual is detained (see R. v. Thompson, 2020 ONCA 264 at para. 30).

[30] Not every trivial or insignificant interference with individual liberty engages s. 9 as such a broad interpretation would trivialize the applicable Charter rights and overshoot their purpose. The police may therefore interact with or even delay members of the public, without necessarily prompting a “detention” under ss. 9 or 10(b) (see Thompson at para. 32).

[31] Detention may take two forms: physical and psychological. In respect of an alleged psychological detention the question is whether a reasonable person in the circumstances in which the subject found himself/herself would have concluded that he or she had no choice but to stay with the officers and answer the questions posed; that is, whether a reasonable person would have concluded that the choice to walk away had been removed (see R. v. Reid, 2019 ONCA 32 at paras. 19-20). The determination is an objective one, made in light of the circumstances of the encounter as a whole (see Thompson at para. 36).

[32] In the Charter context the words “detained” in s. 9 or “detention” in s. 10 do not equate to being slowed down, kept waiting, or even stopped by the state, but rather refer to situations involving significant physical or psychological restraint (see Reid at para. 24). This requirement strikes an important balance between ensuring that individuals are protected from unjustified state interference, while at the same time making sure that the societal interest in effective policing is not threatened (see Reid at para. 26).

[33] In cases where there is no physical restraint or legal obligation, the court may consider the following factors in determining whether a reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice:

(a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance, maintaining general order, making general inquiries regarding a particular occurrence, or singling out the individual for focused investigation;

(b) the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter;

(c) the particular characteristics or circumstances of the individual where relevant, including age, physical stature, minority status, and level of sophistication.

(see Thompson at para. 37)

[34] An investigative detention will not be found to be arbitrary if it is premised upon reasonable grounds. The officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence the overall reasonableness of the decision to detain must be assessed against all the circumstances, including the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference (see R. v. Mann, 2004 SCC 52 at para. 34).

[35] The Supreme Court of Canada in R. v. MacKenzie, 2013 SCC 51 summarized the test at para. 35 as follows:

[T]he police are entitled to detain a person for investigative purposes where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances.

[36] While the Court in Mann spoke of reasonable grounds to suspect that the individual is connected to a “particular crime” is not necessary that the officer be able to pinpoint the crime with absolute precision (see R. v. Nesbeth, 2008 ONCA 579).

[37] Observations of reactions by suspects to police presence may form part of the constellation of factors that may determine the legality of an investigative detention. The value of such evidence will be determined by its intersection with other circumstances in play (see R. v. Plummer, 2011 ONCA 350 at paras. 22-23).

Was the Applicant Detained on the Initial Encounter with Police?

The Circumstances Giving Rise to the Initial Encounter

[38] The circumstances giving rise to the initial encounter between PC Milmine and the applicant, as they would be perceived by a reasonable person, support a finding that the applicant was detained. The officer was not called to provide general assistance, maintain order, or to respond to unfolding events. A reasonable person would know only that the police showed up at the parking lot and for no apparent reason obstructed the vehicle which the applicant had been driving. PC Milmine did not, for instance, pull into an adjacent or nearly parking spot for the purpose of “assisting in meeting needs or maintaining basic order.” (see Thompson at paras. 53-54).

The Nature of the Police Conduct

[39] I find that PC Milmine’s conduct was authoritative from the outset of the encounter. By obstructing the movement of the vehicle, a reasonable person would perceive him as conveying the message that the applicant was not free to leave until the officer decided otherwise. The police effectively took control of the vehicle and the individuals who had been occupying it, by obstructing and approaching the vehicle and the applicant and seeking information from the applicant.

[40] I do not accept the distinction drawn by the Crown between detention and non-detention, based on the fact that the applicant was not seated in the vehicle. The applicant was standing adjacent to the open driver’s side door. The only reasonable inference from the applicant’s positioning relative to the vehicle was that he was the driver, and but for the obstruction by police, he could have exercised the freedom to leave by re-entering the vehicle and driving away. Even if he was free to leave on foot, his freedom of movement was significantly constrained. If the individual in question is a motorist or a driver, their freedom of movement includes the freedom to leave by driving away (see Thompson paras. 61-62). The applicant’s freedom to drive away was significantly constrained, which suggests that he was detained.

[41] Moreover, I do not accept the Crown’s position that the question posed by PC Milmine was not intrusive. He asked the individuals, including the applicant, why they had yet to return the vehicle. This presupposed that they were subject to an agreed time to return the vehicle which they had failed to adhere to.

Characteristics and Circumstances of the Applicant

[42] There is little on the record before the court respecting the particular characteristics or circumstances of the applicant, including his age, physical stature, minority status, level of sophistication, except that that he was relatively large in stature and appeared to be in his twenties. In my view this is not a relevant consideration which would assist in the determination of whether a detention had occurred.

[43] I am not satisfied that a finding that the applicant was detained would trivialize the Charter right conferred by s. 9 or overshoot its purpose. Moreover, the fact that the applicant did walk away does not affect the determination of whether a detention had occurred. The test is an objective and not a subjective one, namely whether a reasonable person in the applicant’s circumstances would have concluded that he or she had no choice but to stay with the officer and answer his questions.

[44] I find that the applicant was detained at the time of his initial encounter in the parking lot with PC Milmine.

Was the Detention of the Applicant on the Initial Encounter Arbitrary?

[45] I find that the applicant has not discharged his onus of showing that detention of the applicant by PC Milmine on the initial encounter was arbitrary. The detention, consisting of blocking the subject vehicle in in the municipal parking lot, approaching the three individuals standing by the vehicle and asking them why they had yet to return the vehicle, was reasonably necessary on an objective view of the circumstances.

[46] PC Milmine had reasonable grounds to suspect that the three individuals, including the applicant, were connected to criminal activity, being the offence of taking a vehicle without consent. PC Milmine had been advised by PC Nagy that a complaint had been made by the owner of the vehicle that, although consent had been given to Ms. Charlton to drive the vehicle, the agreed period of time covered by the consent had been exceeded. The Impala he observed in the parking lot matched the description provided by PC Nagy.

[47] Although PC Nagy cautioned in his radio dispatch that there were no reasonable and probable grounds to arrest anyone, in my view there were reasonable grounds for PC Milmine to detain the individuals standing by the vehicle for a brief period of time to investigate. PC Nagy had asked only for assistance with his investigation by identifying the individual or individuals in possession of the vehicle. The power that PC Milmine exercised in briefly detaining the individuals, including the applicant, was not exercised on the basis of a hunch, nor did it become a de facto arrest (see Mann at para. 35). In the case of the applicant, PC Milmine observed him standing beside the open driver’s door, reasonably raising a suspicion that he was connected to the offence of taking the vehicle without consent by retaining it beyond the time for which consent had been granted by the registered owner.

Was the Detention of the Applicant on the Second Encounter Arbitrary?

[48] As indicated previously, the Crown and the applicant agree that the applicant was detained, but not arrested, on the second encounter with police when PC Milmine placed him in handcuffs outside the Bahn Mi Vietnam restaurant.

[49] As with the initial encounter, I find that the applicant has not discharged his onus of showing that his detention on the second encounter was arbitrary. The reasonable grounds that PC Milmine had at the time of the initial encounter to suspect that the applicant was connected to the offence of taking a vehicle without consent, was reinforced by his observations of the applicant’s evasive actions in walking away on the initial encounter and by his having learned from Sgt. Sawkins that the applicant had sought to evade police and had entered the restaurant and exited quickly. The applicant’s reactions to the presence of the police formed part of the constellation of factors to be taken into account in determining the legality of the detention. Given the evasive conduct previously engaged in by the applicant, I find that placing handcuffs on the applicant in order to restrain his movements to allow the investigation to be carried out was reasonable and necessary.

Breach of s. 10(b) of the Charter

[50] Section 10(b) of the Charter provides:

Everyone has the right on arrest or detention...

(b) to retain and instruct counsel without delay and to be informed of that right.

[51] Lamer, C.J. summarized the duties on police pursuant to s. 10(b) whenever the police arrest or detain an individual in R. v. Bartle, [1994] 3 S.C.R. 173 at para. 18 as follows:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[52] Lamer, C.J. went on to note that the first duty is an informational one while the second and third duties are in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

[53] As indicated previously, the Crown acknowledged that PC Milmine breached section 10(b) by not completing the informational component. Although he informed the applicant of his right to retain counsel, he did not inform him of his right to do so right away nor the availability of legal aid duty counsel.

[54] Given my finding that the applicant’s initial encounter with PC Milmine at the vehicle was a detention, I find that the officer was subject to the duties under s. 10(b) which he failed to discharge.

[55] As stated, the Crown has acknowledged a breach of s. 8 of the Charter by PC Milmine’s pat-down search of the applicant upon his detention on the second encounter.

Analysis under s. 24(2) of the Charter

Guiding Principles

[56] S. 24 of the Charter provides as follows:

(1) anyone whose rights or freedoms, as guaranteed by this Charter, had been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[57] In the case of R. v. Pino, 2016 ONCA 389 Laskin, J.A. summarized the considerations which should guide a court's approach to the "obtained in a manner" requirement in s. 24(2) as follows:

a. The approach should be generous, consistent with the purpose of s. 24(2)

b. The court should consider the entire "chain of events" between the accused and the police

c. The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

d. The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

e. But the connection cannot be either too tenuous or too remote.

[58] In the case at bar the Crown acknowledged that the two s. 10(b) breaches, being the failure of the officer to complete the informational component on each detention, and the s. 8 breach in connection with the pat-down of the applicant on the second detention, met the "obtained in a manner" requirement. Although the connection between the evidence sought to be introduced by the Crown (the handgun itself, the observations of the officers, including of the applicant walking away from PC Milmine, and his identification) and the breaches was not causal, the Crown agrees that it was temporal and contextual.

[59] The onus is on the applicant to establish on a balance of probabilities that the admission of the evidence connected to the breaches would bring the administration of justice into disrepute.

[60] The purpose of s. 24(2) is to maintain the good repute of the administration of justice. The section does not focus on immediate reaction to an individual case, but rather looks to whether the overall repute of the justice system, viewed in the long-term, will be adversely affected by admission of the evidence. The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute (see R. v. Grant, 2009 SCC 32 at paras. 67-68).

[61] The Supreme Court in Grant at para. 71 outlined three avenues of inquiry, namely:

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

(b) the impact of the breach on the Charter-protected interest of the accused; and

(c) society's interest in the adjudication of the case on its merits

Stage One: The Seriousness of the Charter-Infringing State Conduct

[62] The Supreme Court of Canada in R. v. Harrison, 2009 SCC 34 stated at para. 22 that at the first stage the court considers the nature of the police conduct that infringed the Charter and lead to the discovery of the evidence, particularly whether it involves misconduct from which the court should be concerned to dissociate itself. This will be the case where the departure from Charter standards was major in degree, or where the police knew, or should have known, that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[63] The Supreme Court in Grant observed at para. 74 that the state conduct resulting in Charter violations exists on a spectrum of seriousness. At one end of the spectrum admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law, while at the other end, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[64] The court went on to note that extenuating circumstances may lessen the seriousness of police conduct that results in a Charter breach. Good faith on the part of the police will also reduce the need for the court to dissociate itself from the police conduct. However, the court stated that ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith.

[65] Although PC Milmine failed to immediately provide the applicant with rights to counsel before posing his initial question to the three individuals at the initial encounter, such failure did not represent a wilful or reckless disregard of Charter rights from which the court should be concerned to dissociate itself. Rather it represented a minor violation of s. 10(b) and was in the nature of an error in judgment. By advising the applicant of his right to retain counsel at the time of the second detention, it is clear that PC Milmine was conscious of the applicant’s Charter rights.

[66] The pat-down of the applicant by PC Milmine on the second encounter was of short duration and did not involve any force or violence. The brief pat-down search in the circumstance represented an error in judgment only on the part of the officer and not serious state misconduct.

[67] In my view, in considering this first line of inquiry, the admission of the evidence would not send a message that the justice system is somehow condoning serious state misconduct and that its admission would greatly undermine public confidence in the justice system (see R. v. Dymkowski, 2021 ONSC 8428, per Goodman, J. at para. 90). This factor weighs in favour of admission of the evidence.

Stage Two: The Impact on the Charter-Protected Interests of the Accused

[68] The Supreme Court of Canada in Harrison at para. 28 explained that the second factor looks at the seriousness of the infringement from the perspective of the accused, asking whether the breach seriously compromised the interests underlying the rights infringed or was the breach merely transient or trivial in its impact.

[69] The Court in Grant observed at para. 77:

The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[70] I find that the pat-down of the applicant at the time of the second detention was merely transient or trivial in its impact on the applicant.

[71] The failure of PC Milmine to advise the applicant of his right to retain counsel on the first detention did not have significant impact on the applicant’s Charter-protected rights. He did not make any incriminating statement to the officer, merely stating that the did not know what the officer was talking about. On the second detention the applicant was advised by PC Milmine of his right to retain counsel. He simply did not satisfy the full informational component. Although the applicant’s Charter-protected rights were impacted, I find that the impact of the breaches of s. 8 and s. 10(b) were not at the serious end of the spectrum. This factor favours admission of the evidence sought to the introduced at trial by the Crown.

Stage Three: Society's Interest in the Adjudication of the Case

[72] As confirmed by the Court of Appeal in R. v. St. Clair, 2021 ONCA 895 at para. 48, the final prong of the Grant analysis "asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" (see Grant at para. 79).

[73] The importance of the evidence to the Crown's case is a relevant consideration as the majority explained in Grant at para. 83, as follows:

The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[74] As noted in Harrison at para. 34, where critical evidence of drugs obtained as a consequence of Charter breaches was highly reliable and virtually conclusive of guilt on the offence charged, "the evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial."

[75] At para. 79 of Grant the majority stated that the inquiry at the third stage reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law." Therefore, a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[76] At para. 82 the majority emphasized that the Court must ask itself "whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial."

[77] The Supreme Court in Harrison at para. 34 cautioned that the seriousness of the charged offence must not take on disproportionate significance, as, while the public has a heightened interest in seeing a determination on the merits when the offence charged is serious, it also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high.

[78] I find that the truth-seeking function of the criminal trial process would be better served by admission of the evidence sought to be introduced by the Crown, and therefore find that consideration of the third factor from Grant favours inclusion of the evidence.

Balancing

[79] After considering all three stages of the Grant analysis the court is tasked with weighing the various indications. At para. 86 of Harrison, the Supreme Court described the balancing exercise as follows:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[80] The Charter-infringing conduct of the police was not such that the court is compelled to dissociate itself from it. The impact on the Charter-protected interests of the applicant did not rest at the most serious end of the spectrum. I have found that the truth-seeking function of the criminal trial process would be better served by admission of the evidence.

[81] In assessing the long-term repute of the administration of justice, I find that the applicant has not discharged his onus of showing on a balance of probabilities that the evidence obtained by the police as a result of the search should be excluded from his trial pursuant to s. 24(2) of the Charter.

[82] The application is therefore dismissed.

D.A. Broad, J. Date: April 11, 2023