Court File and Parties

COURT FILE NO.: CR-22-90000616/CR-22-900000617 DATE: 20230913

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – NICOLE FIFE and LEONIDA PILLIATIS Defendants/Applicants

Counsel: Sarah Virani and Jennifer Lynch, for the Crown/Responding Party Michael Webster, for the Defendant/Applicant Nicole Fife Anthony Wong, for the Defendant/Applicant Leonida Pilliatis

HEARD: May 23, 24 and 26, 2023

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] In September 2021, the City of Toronto was still in the grip of the COVID-19 pandemic. People who lived in congregate settings were among the most vulnerable, including those using homeless shelters. At the same time, Toronto was feeling the deadly impact of a pandemic of a completely different kind – fentanyl. Not surprisingly, drug addicts, including fentanyl users, often found themselves homeless. In an attempt to control the spread of COVID through this vulnerable group of people, the City of Toronto began to house people in hotels, many of which were largely vacant during the pandemic. One such hotel was the Bond Hotel, located at Bond and Dundas Streets in Toronto. Unfortunately, that area of the city then became plagued with drug trafficking, and drug overdoses. On the afternoon of September 9, 2021, there was yet another convergence of those two worlds – a man lying on the sidewalk outside the Bond Hotel, suffering from a drug overdose; and, coincidentally and simultaneously, two people (the accused in this case) arrested in the parking lot across the street and charged with possession of fentanyl and crystal meth for the purposes of trafficking.

[2] A 911 call was placed at 3:46 p.m. on September 9, 2021 calling emergency personnel to respond to a man who had collapsed on the sidewalk outside the Bond Hotel due to a drug overdose. Among the emergency teams responding to that call were two members of the Toronto Police Service 51 Division Primary Response Unit (“PRU”): P.C. Patrick Joyce and P.C. Emma McKinney. They were in uniform and in a marked police car.

[3] Three other officers, all members of the Major Crime Unit (“MCU”) at 51 Division were also in the area when the call came over the police radio. They were: Det. Graham Ellis; P.C. Rui Esteves; and P.C. Paul Walker. They were in plain clothes and in an unmarked van. P.C. Esteves was driving. They headed to the scene, but could see there were other first responders there dealing with the situation, including a scout car and an ambulance. As they drove past the hotel, their attention was drawn by a BMW sitting in the parking lot across the street from the hotel.

[4] What evolved from there is the subject of considerable dispute. However, as the events unfolded, Leonida Pilliatis and Nicole Fife found themselves under arrest for possession of large quantities of fentanyl and crystal methamphetamine for the purposes of trafficking. Both accused allege significant breaches of their Canadian Charter of Rights and Freedoms rights by the police and seek to have all the evidence obtained excluded from their trial. That trial is scheduled to proceed in December 2023 before a jury. I was appointed as the case management judge to hear the pretrial applications.

[5] On the theory of the defence, there has been a complete fraud on the court perpetrated by these three MCU officers, who they allege: (1) investigated the BMW based solely on racial profiling; (2) pulled the two accused out of the car and illegally searched it; (3) colluded to cover up the illegal search by fabricating a staged discovery of the drugs recorded by the body camera of a PRU officer who arrived on scene; (4) again in collusion, fabricated their notes with respect to these events; and (5) lied under oath about these events in their testimony before me on the application. If these alleged facts were true, I would without hesitation exclude the drugs from the evidence at trial, which would result in the acquittal of both accused.

[6] The onus is on the accused to establish that their Charter rights have been breached. On the applications before me, I heard evidence from the three MCU officers initially involved in investigating the BMW and the two uniformed PRU officers who attended at the scene to assist. The video from the body cameras worn by the two PRU officers was also filed as an exhibit. There was no defence evidence.

[7] I reject the defence submission that the police officers colluded and fabricated their evidence at the hearing. The police conduct was not perfect and there were some breaches of the Charter rights of the accused. However, nothing even approaching the magnitude of the misconduct alleged by the defence has been established.

[8] I find that the police breached the Charter rights of Ms. Fife by: (1) failing to advise her of the reason for her detention; (2) failing to advise her of her rights to counsel upon detention; and (3) failing to hold off on questioning her after she was under arrest and before she had an opportunity to speak to her lawyer.

[9] With respect to Mr. Pilliatis, I find no breach. However, if there was a breach, it was trivial, and had little impact on him. Applying the test from R. v. Grant, I would find the evidence to be admissible at trial, even if there was a breach.

[10] The breaches of Ms. Fife’s rights were more substantial and had a greater impact on her. Even with the concession by the Crown that the statements Ms. Fife made at the scene would not be admitted at trial, I am not satisfied that the interests of the administration of justice are consistent with admitting the evidence against her at trial. Accordingly, neither the evidence obtained from the BMW, nor the statements made by Ms. Fife to police at the scene, are admissible at trial against her.

[11] My detailed reasons follow.

B. THE EVIDENCE

Initial Decision to Investigate

[12] On the afternoon of September 9, 2021, three officers attached to the MCU of the TPS were driving in downtown Toronto in an unmarked van. They heard a broadcast from dispatch about a 911 call for an overdose victim near the Bond Hotel. Because they were close by, they headed there. P.C. Esteves was driving; Det. Ellis was in the front passenger seat; and P.C. Walker was in the backseat. Upon approaching the location, it was apparent that other emergency personnel were already on scene dealing with the issue, including a marked police car. Therefore, P.C. Esteves drove on. Det. Ellis testified that as they were passing the parking lot across from the hotel, his attention was drawn by a woman leaning into a car at the southwest corner of the lot and then going to a group of people hanging around nearby. He thought he could be witnessing a drug transaction. He could not remember what, if anything, he said to the other officers, but believed he must have said something because they circled around a block or so and came back for another pass by the parking lot. He acknowledged that what he saw initially might not have been a drug deal and recognized that his mind may have gone in that direction because this was an area plagued with drug use and trafficking and it was on his mind because of the recent 911 call. He stated that this “could possibly” have been drug trafficking and it was “worthy of a second look.”

[13] P.C. Walker testified that he heard Det. Ellis say he had seen a possible hand-to-hand drug transaction in the parking lot. P.C. Walker could see the car and a group of people around it, but did not witness the reported transaction. P.C. Esteves also noted the car and the group of people. He testified that these people “stood out as being underhoused” and that they would not normally be “hanging out by a BMW.” He drove around the block so that they could come by the parking lot again.

[14] As they drove by a second time, Det. Ellis reported again seeing a woman picking something up from the car and dropping it with pinched fingers into the hand of a man in the group. He said he was about 20 yards away when he saw this. Because his initial view of both individuals during the first drive by was limited, he was unable to say for sure if this was the same woman he saw before. P.C. Esteves heard Det. Ellis say he had witnessed a hand-to-hand. He drove through the parking lot towards the BMW, at which point the group that had been around the BMW scattered. P.C. Esteves stopped in front of the BMW. He said there was a male in the driver’s seat and a woman standing at the passenger side of the car. He said this was the first time he got a clear view of these two individuals. P.C. Walker testified that there were about four to six other people in the group around the BMW and they had the appearance of being drug users.

The Detention

[15] P.C. Esteves testified that he stopped the van in front of the BMW, deliberately blocking it in because he was worried that otherwise it would drive away. He testified that “technically” this would be a detention within the meaning of the Charter and that he believed he was detaining both the driver and the woman beside the car. He said the purpose of the detention was to investigate these two people for drug trafficking, based on the observations made by Det. Ellis. He also was suspicious that the car might have been stolen, based on its location and the people around it. He agreed that he did not at this point have reasonable and probable grounds to arrest anyone.

[16] At 4:08 p.m., P.C. Walker placed a call to dispatch advising that they had two “subjects stopped” in the parking lot next to the Bond Hotel. He asked for a scout car with an on-board computer to run the license plate of the vehicle to see if it had been stolen. He advised that he was with Officers Ellis and Esteves. According to Det. Ellis, this would have been very close to the time when they entered the parking lot. At 4:10 p.m., in response to an inquiry from dispatch, he said there were “two occupants” and that “all in order for now.” In his evidence, he explained that “all in order for now” is a kind of alert that there could be trouble, things were not completely safe, but that things were in hand at that time. He also said that “subject stop” means that it is people who are detained, as distinguished from a motor vehicle stop. He said he misspoke when he said “two occupants” as Ms. Fife had never been seen inside the car.

[17] P.C. Walker also believed that the purpose of blocking the BMW was to prevent it from fleeing and to permit them to investigate the two individuals for possible drug dealing. In his view, neither individual was free to leave. He said his grounds for the investigative detention were the observations made by Det. Ellis.

[18] Det. Ellis stated that he believed there was a “strong possibility” that the woman had been doing a drug transaction. He described this as having a “reasonable suspicion” of drug dealing, but did not constitute reasonable and probable grounds to arrest. He also suspected that the car might be stolen. This was in part due to the fact that it was seemingly being used for drug trafficking. When asked in cross-examination what the connection was between drug dealing and stolen cars, he replied that when people are breaking one law, they will often be breaking others. He conceded, however, that his concerns about whether the car was stolen did not amount to a “reasonable suspicion.” According to Det. Ellis, he did not believe at that time that he had sufficient grounds to detain either individual. He was initially dealing primarily with Ms. Fife. He said he did not advise her that she was detained because he did not believe he had grounds to detain her.

[19] After the police van parked in front of the BMW, Det. Ellis was the first one out of the vehicle. He headed directly toward the driver’s side of the BMW. Mr. Pilliatis was in the driver’s seat and his window was down. Ms. Fife was on the passenger side, close to the car. Det. Ellis testified that he was asking in a loud voice about who owned the car, and directing his questions to both individuals. He said Mr. Pilliatis was angry and confrontational, but his interaction with him was only a matter of seconds, as he went past the driver’s side and walked over to deal directly with Ms. Fife. The other two officers were immediately behind him, and he left it to them to deal with Mr. Pilliatis.

[20] He said Ms. Fife told him that the car belonged to a friend of hers. He did not tell her she was being detained, because he did not consider this a detention, and he therefore also did not advise her of her rights to counsel. He said that if she had tried to walk away at that time, he “may have let her go.” While he was continuing to speak to Ms. Fife, he could see that Mr. Pilliatis had gotten out of the car and was extremely angry and confrontational. Just a few minutes after that, he heard P.C. Esteves announce that he could see drugs in a bag inside the BMW. At that point, Det. Ellis placed Ms. Fife under arrest.

[21] P.C. Walker and P.C. Esteves dealt with Mr. Pilliatis. P.C. Walker told him he was not free to leave and that he was being detained for a drug investigation. He said Mr. Pilliatis got out of the car. He described him as being very confrontational and uncooperative, yelling profanities, and saying things like, “You can’t stop me.” P.C. Walker testified that although he had detained Mr. Pilliatis, he was unable to advise him of his rights to counsel due to safety concerns. He said Mr. Pilliatis was very aggressive and was constantly cutting him off, such that he probably would not have been able to hear the rights to counsel anyway. He was also concerned that this would just give Mr. Pilliatis a chance to assault him.

[22] P.C. Walker testified he was sure he was involved in handcuffing Mr. Pilliatis, but could not recall if that was before or after P.C. Esteves had seen the drugs in the car. This would have been a difference of about two minutes.

[23] P.C. Esteves was clearer in his recollection. He described Mr. Pilliatis as being erratic, angry, yelling and screaming, and that his behaviour was “off the charts”. He recalled that they cuffed Mr. Pilliatis for this reason, but was not sure if it was he or P.C. Walker who actually applied the cuffs. P.C. Esteves was also clear that he considered Mr. Pilliatis to be under investigative detention. He acknowledged the legal obligation to advise him of his right to counsel immediately, but said this was not possible at the time because he was screaming and yelling so much it was hard to get a word in. He denied taking the approach they did for the purpose of antagonizing Mr. Pilliatis stating, “I don’t need my job to be any harder than it is.”

[24] At 4:11 p.m. Officers Joyce and McKinney responded to dispatch that they were taking the call and were nearby. They arrived just prior to the arrests.

The Arrest and Events Subsequent to the Arrest

[25] After cuffing Mr. Pilliatis at the front of the BMW, Officers Walker and Esteves walked him over to the passenger side of the car. P.C. Esteves, still suspicious about the car being stolen, looked through the passenger front window of the BMW so that he would have a view of the ignition to see if it had been “punched out.” He testified that there was an open backpack on the front passenger seat and that in one of the pockets he could see a bag containing drugs. He immediately advised his fellow officers. Both detainees were then advised that they were under arrest for possession of drugs for the purposes of trafficking. P.C. Esteves testified that “way less than” five minutes had elapsed from the time the three MCU officers detained these two individuals to the time he saw the drugs in the car. At about this time, PRU Officers McKinney and Joyce had arrived on scene.

[26] P.C. Esteves then opened the car door, removed the backpack from the car, and took the drugs he had seen out of the backpack. There is video of him doing that, recorded by P.C. Joyce’s body camera, which ran from 4:13:25 to 4:26:37 (Exhibit 3 at trial).

[27] P.C. Esteves acknowledged on cross-examination that at the time he looked in the car window he did not have reasonable and probable grounds to arrest either of the detainees. He said he was primarily looking to see if the ignition had been tampered with, but the possibility that there might be drugs was “also in the back of [his] mind.” He maintained that his seizure of the drugs was lawful because the drugs were in plain view. He said he did not have to do anything other than look through the open window.

[28] P.C. Walker testified that about two minutes after they cuffed Mr. Pilliatis, he saw P.C. Esteves remove the backpack from the BMW and pull out the bag of drugs. He said that he was shocked by the large quantity of drugs. At 4:15 p.m., P.C. Walker advised Mr. Pilliatis that he was under arrest for possession of drugs for the purpose of trafficking and patted him down as an incident to that arrest. He advised him of his right to counsel and Mr. Pilliatis stated that he wanted to talk to a lawyer. P.C. Walker told him that he would be able to talk to a lawyer by phone at the police station. He turned Mr. Pilliatis over to P.C. Joyce at 4:16 p.m. for transport to the station. P.C. Walker testified that it was not possible to put Mr. Pilliatis in touch with a lawyer from the scene due to the lack of privacy and safety concerns.

[29] Det. Ellis advised Ms. Fife she was under arrest. He then handcuffed her with the assistance of P.C. McKinney. He borrowed P.C. McKinney’s memo-book to advise Ms. Fife of her rights. Ms. Fife stated that she wished to speak to a lawyer. Both Det. Ellis and P.C. McKinney did not consider it feasible to facilitate Ms. Fife’s right to speak to counsel at the scene of the arrest, but told her this would be done at the police station. P.C. McKinney then took charge of Ms. Fife.

[30] Det. Ellis then searched the vehicle, locating a digital scale under the front passenger seat. This can also be seen on video. He also found some documentation with Ms. Fife’s name on it, but did not seize it.

[31] P.C. Esteves approached Ms. Fife and ordered her to walk a short distance away with him. P.C. McKinney followed them. Her body camera was operating, so the conversation between P.C. Esteves was recorded, although not everything that was said is discernible. P.C. Esteves admitted in cross-examination that he knew Ms. Fife had invoked her right to speak to counsel before having a conversation with her. He asked Ms. Fife who drove the car there, and she said that she did. She told him that she had been there for 20 minutes. P.C. Esteves pointed to a backpack and asked her if that was her property. She said that it belonged to her son, and that she had purchased it, paying in cash. At one point, P.C. Esteves said, “Listen to me,” and “This is not my first rodeo.” P.C. Esteves acknowledged that his questions of Ms. Fife were of an investigative nature, but denied that he was trying to get her to implicate Mr. Pilliatis.

[32] P.C. McKinney heard this entire exchange. She testified, under cross-examination, that she knew that upon a detainee expressing a wish to speak to a lawyer, police officers were required to hold off on any questioning of that accused. She acknowledged that she stood by as a witness while a fellow officer questioned Ms. Fife, in violation of her Charter rights. She also acknowledged that she had a duty to speak up in that situation. When asked why she did not, she said it was MCU’s investigation and that she was not paying close attention. When specifically asked if it was because this was a senior male officer taking over, she said it was more that it was his investigation. At that time, P.C. McKinney had been a police officer for approximately one year, whereas P.C. Esteves had 12 years’ experience.

[33] At 4:17 p.m., an officer requested dispatch to send a “wagon” to the scene to take both accused to the police station. This method of transport was being used at that time due to the COVID pandemic. The wagon arrived on scene at 4:24 p.m. and went directly to the police station with both accused on board. Mr. Pilliatis was paraded first, which started at 4:47 p.m. and was completed at 4:56 p.m. He was then placed in an interview room at 4:57 p.m. Four minutes later, both officers paraded Ms. Fife.

[34] Ms. Fife was paraded from 5:01 to 5:11 p.m., and placed in a separate interview room at 5:12 p.m. She had asked to speak to a lawyer, Michael Webster. P.C. McKinney called Mr. Webster at 5:27 p.m. (15 minutes later). Mr. Webster answered the call and spoke immediately with Ms. Fife, who afterwards indicated she was satisfied with the call.

[35] Mr. Pilliatis had also asked to speak to a lawyer, John Kaldas. P.C. Joyce placed a call to Mr. Kaldas at 5:35 p.m., which was 13 minutes after he had finished dealing with the booking process for both accused (38 minutes after he had been placed in the interview room). P.C. Joyce left a message for Mr. Kaldas. At 5:52 p.m. he placed a second call and again left a voice message. He then spoke again to Mr. Pilliatis and advised him that Mr. Kaldas had not yet called back. He asked him if, in the meantime, he wanted to speak to duty counsel, and Mr. Pilliatis said that he did. P.C. Joyce called duty counsel at 5:58 p.m.

C. ANALYSIS: FACTUAL FINDINGS and BREACHES OF THE CHARTER

Impact of Prior Charter Breach in Another Case by P.C. Esteves

[36] In the course of the testimony of P.C. Esteves, defence counsel sought to cross-examine him with respect to his conduct in a prior case, R. v. James. In that case, P.C. Esteves had arrested Mr. James and removed a set of keys from his person. Using those keys, he unlocked the accused’s car and searched it without lawful authority. Defence counsel argued that this was evidence of a propensity by P.C. Esteves to breach the Charter and was also relevant to credibility.

[37] I permitted the cross-examination to proceed on the basis that the evidence could be relevant to the s. 24(2) analysis with respect to the seriousness of the Charter- infringing state conduct. I ruled that another judge’s findings with respect to the credibility of this officer in another case and whether he accepted his evidence in that case was not a permissible line of questioning before me. I made no ruling at that time on the use that could be made of this evidence with respect to credibility and/or propensity, stating that I would do so at the end of the hearing.

[38] P.C. Esteves was questioned about what happened in 2019 in the James case. He acknowledged that he had illegally searched the vehicle in that case.

[39] Having considered the matter, I find this particular incident does not have any impact on my assessment of the credibility of this witness. He was forthright about what he did when he testified in the James case, and also when asked about it in the hearing before me. I simply do not find what he did then to be of any assistance in determining whether he told the truth before me with respect to his dealings with these two accused. Likewise, I do not find that one prior improper search of a car amounts to a propensity to violate the Charter. This evidence had no impact on my assessment of the reliability or credibility of the evidence given by P.C. Esteves before me. I found his evidence to be both credible and reliable. His conduct at the scene was improper, which I will deal with in more detail later in these reasons. However, I believe he was truthful about what happened.

Collusion and Fabrication of Notes and Evidence by the Police

[40] The defence theory is that the MCU officers who drove by the parking lot saw no more than some people milling around the BMW and did not witness anything that looked like a hand-to-hand drug deal. Alternatively, it is asserted that the reason for their initial investigation of the BMW was racial profiling, in that it was an expensive car being driven by a Black man.

[41] The defence also submits that upon arrival at the BMW, the MCU officers physically pulled both accused out of the car and searched it. Upon finding the backpack with the drugs, they placed it on the front seat of the vehicle and called for a Primary Response Unit to come to the scene. Then, P.C. Esteves staged his discovery of the backpack and drugs for the benefit of the camera, in order to cover up the earlier Charter breaches. This would mean that all three officers colluded to fabricate their notes and also deliberately lied under oath in court.

[42] Neither of these theories is supported by the evidence or go beyond mere speculation. If the officers were fabricating their notes, surely more than one of them would claim to have seen one or both of the hand-to-hand transactions. At the very least they would have recorded in their notes that Det. Ellis made this observation, which is why they circled around for a second look. However, only one of the other two officers present said he heard that.

[43] There must have been a reason for them to go around the block and come back for another look. I found Det. Ellis’ evidence on this point to be credible and reliable. He did not exaggerate his evidence, and it makes sense. The subsequent actions of the police are consistent with him having made that observation. I also accept his evidence that he could not tell the race or colour of the BMW’s driver at that time. It would have been very difficult for him to discern that detail at the distance from which he saw it, while driving by in a moving vehicle, and while his attention was focused on the woman whom he believed to be engaged in drug trafficking. I find that racial profiling had nothing to do with the actions of these three police officers that day.

[44] I also reject the theory that the three MCU officers pulled two people from the car and proceeded to search it, then put the drugs back and called for a PRU to be present, with cameras, for the purpose of recreating the discovery without Charter violations. If they were going to do that, they surely would have had the cameras look into the car window to show the drugs before opening the car door. This is an extremely serious accusation, with no evidence at all to support it. I find no collusion and no fabrication of evidence on this point.

[45] In my view, the officers’ notes do not tally in sufficient particular to have been the product of a planned collusion to cover up Charter breaches. P.C. Walker and Esteves said the two accused were detained by blocking in the vehicle; Det. Ellis maintained they were not detained. Det. Ellis acknowledged not advising Ms. Fife of her rights to counsel upon detention. P.C. Walker said he told Mr. Pilliatis he was under detention, but P.C. Esteves made no note of that. P.C. Esteves thought it must have been P.C. Walker who cuffed Mr. Pilliatis, because his recollection was that he still had his cuffs at the end of the event. P.C. Walker did note cuffing Mr. Pilliatis, but P.C. Esteves had no record of that. They also were not entirely consistent about the timing of cuffing Mr. Pilliatis. Neither were clear about when Ms. Fife made the comment about the car belonging to a friend of hers. Surely, if the three officers sat down to collude on their notes and fabricate a story for trial, they would also have colluded about advising the two accused of the reasons for their detention and their rights to counsel. However, on the evidence before me, only one officer recorded that he advised Mr. Pilliatis of the reason for his detention and nobody had a note of giving the rights to counsel information to either accused. Supposing for the sake of argument that three experienced officers set out to cover up their Charter breaches so as to preserve the evidence of drugs they had improperly seized, surely this is not the way they would do it.

[46] The defence theory is also inherently implausible. As P.C. Esteves observed, why would they want to make their jobs harder or more dangerous? If both accused were inside the car, it would make little sense for the three officers to pull them out at the same time, even if just from the perspective of officer safety.

[47] Further, based on the timing of these events, it would have been extremely difficult for these officers to have accomplished all of this planning and collusion before summoning the PRU scout car to the scene.

[48] Although there was considerable focus at the hearing before me on the inability of the three officers to describe any of the individuals they said had been milling about the BMW or what happened to them, I do not consider this to undermine the reliability or credibility of the officers. Their evidence was not inconsistent, it was simply not detailed. All of them saw a group of people, and all of them said the group dispersed in all directions when the police arrived, leaving just the two accused, one inside the car and one outside. All the officers found it unusual that these people would be gathered around an expensive, occupied BMW. One officer described the group as “under-housed;” another officer said they looked like drug users. Det. Ellis testified that it was a “large group,” which he further described as being five or six people. P.C. Walker described it as a “kind of small group,” which he then elaborated as being “maybe five or six.” P.C. Esteves said it was more than two and less than ten. Although they were using different words, they were actually describing a similar group. None of the officers was focused on this group; all of them were focused on the driver of the car and the person Det. Ellis said he had seen involved in a hand-to-hand transaction. I find the officers’ lack of memory as to the details of this group to be completely understandable.

[49] The one detail that puzzles me relates to the colour of the BMW. All three MCU officers described the colour of the BMW as beige. In fact, the BMW was grey. When this issue was raised with P.C. Esteves, he had no explanation for why all three officers would say the car was beige. He denied that they consulted with each other about the colour. He acknowledged admitting at the preliminary hearing that the car was grey, but stated he has been thinking about it since and believes the car might look different in different lighting. P.C. McKinney saw the car in the same lighting. She described it as grey. In the video footage and photographs it appears to be grey. Further, on the vehicle registration, it is described as grey. Even more troubling is the evidence of Det. Ellis at trial who said that he wrote in his notes that the car was beige and that he has been thinking about it ever since the issue was raised at the preliminary hearing and is convinced that the colour was distorted in some way. In fact, neither the video footage of the grey car, nor the issue of whether the car was grey, was raised with P.C. McKinney at the preliminary hearing. Although all three officers denied conferring about the colour of the car when doing their notes, I find it hard to accept that all three would mistakenly record the colour as beige. Further, Det. Ellis’ testimony illustrates that there was discussion about this discrepancy after the preliminary hearing, at least as between himself and one of the other two officers, likely P.C. Esteves. This is troubling. However, the colour of the car is a completely irrelevant detail. I think it highly likely that the three officers conferred about this detail, which is not a matter of concern. I am more troubled that they subsequently discussed their evidence about that discrepancy. However, it does not alter my general finding that they did not collude about the reason for investigating the BMW, nor about staging the discovery of the drugs after-the-fact for the benefit of the camera.

[50] As is often the case, I do not necessarily accept everything the police officers said. However, I reject the suggestion that they colluded to create a staged event for the benefit of the camera, with the necessary implication that they then further colluded to fabricate their notes and commit perjury. There is nothing to support such an extreme proposition.

[51] Not every officer remembered every detail. No officer’s notes were perfect. I do not find this necessarily diminishes their credibility. This entire event took approximately 10 minutes. The events were fluid and dynamic, with each officer doing different things at the same time. I would not expect each of them to have the exact same recollection of the events. However, overall, their evidence is consistent with respect to the essentials of what took place. I find their evidence to be both reliable and credible, with minor exceptions to which I have referred below.

The Police Lawfully Detained the Two Accused

[52] The defence submits that both accused were unlawfully detained from the moment the police van boxed in the BMW, preventing it from leaving. The Crown agrees that there was a detention, but argues that it was lawful, rather than arbitrary. All counsel agree on the test to be applied and that the onus is on the defence to establish the arbitrary detention.

[53] It is clear that Mr. Pilliatis was detained the instant the car in which he was the driver was blocked in by the MCU van. Indeed, that was the specific intention of the driver of the MCU van, P.C. Esteves. If there was any doubt about that, it was removed almost immediately thereafter when P.C. Walker told Mr. Pilliatis that he was not free to leave as they were investigating a suspected drug trafficking incident.

[54] An argument could be made that Ms. Fife was not physically detained at that point. However, she had a clear connection to the car and had personal belongings in it. Three officers poured out of the MCU van. Det. Ellis testified that he was speaking loudly to both Ms. Fife and Mr. Pilliatis, asking about who owned the car. Ms. Fife is a small, frail person and an opiate addict. Any reasonable person would have been intimidated in the face of this, and I am sure she was. Even if Ms. Fife was not physically detained, I find that in these circumstances she was psychologically detained. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Det. Ellis testified that he wasn’t sure what he would do if she attempted to walk away. However, it is clear Mr. Pilliatis was not being permitted to leave, and given that Ms. Fife was the person Det. Ellis suspected of involvement in two transactions he believed to be drug trafficking, I very much doubt that she would have been permitted to walk away either. I find both accused were detained, as in fact is conceded by the Crown.

[55] Police officers acting in the execution of their duties are permitted to detain individuals for investigative purposes. To be lawful, such a detention must be justified on both a subjective and objective basis. There must be reasonable grounds to suspect that the individual is connected to a particular crime and the detention must be necessary for the purposes of the investigation. The officers who decided to detain the individual must subjectively believe they have such grounds, and their suspicion must be reasonable in all the circumstances. The Supreme Court of Canada stated in R. v. Mann:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably 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, in order to meet the second prong of the Waterfield test.

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34-35.

[56] The Supreme Court of Canada held in R. v. Clayton that whether a particular detention is justified must be assessed based on the totality of the circumstances. R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 30; see also R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 48. I accept the evidence of Det. Ellis that he observed two interactions that had the appearance of being hand-to-hand drug transactions. This is the framework within which the analysis as to whether the detention was arbitrary must be conducted. However, this was not one isolated and ambiguous incident. There were two incidents, the second of which was observed more closely than the first. Both incidents involved a woman leaning into the BMW, then going from the BMW to a group of people nearby. In the second incident she is observed holding something with pinched fingers that she drops in another person’s hand. In addition, this was a high drug trafficking area. The officers’ suspicions were also aroused by the gathering of a group of people who looked to be drug addicts around an expensive BMW in the parking lot across the street from a hotel known to house many drug addicts. It is the whole of these circumstances that must be taken into account. In this regard, I would distinguish the cases of R. v. N.O. and R. v. Brown, which were cited by the defence as authority for the proposition that a detention based on an isolated and ambiguous hand-to-hand transaction was not lawful.

[57] P.C. Esteves parked the police van in front of the BMW blocking it in. He did so deliberately, based on what he stated was his suspicion that the BMW had been involved in drug trafficking. Subjectively, he believed he had grounds to detain. P.C. Walker was of the same view. He told Mr. Pilliatis that he was detaining him on suspicion of drug trafficking. Although Det. Ellis stated that he did not believe he had grounds to detain, he also said that he had a “reasonable suspicion” that Ms. Fife had been dealing drugs from the BMW to members of the group that had gathered there.

[58] In R. v. MacKenzie, Moldaver J. provided a helpful explanation of the distinction between reasonable grounds to suspect (as required for a lawful detention) and reasonable grounds to believe (as required for a lawful arrest), stating that grounds to arrest are a matter of probabilities, whereas grounds to detain are a matter of possibilities. R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 38. In describing his own state of mind, Det. Ellis articulated the test for grounds to detain: a reasonable suspicion that a particular crime has been committed and that the individual in question was involved. I therefore find that he did have the proper subjective grounds, although he erred in his understanding of the law as to whether his reasonable suspicion constituted grounds to detain.

[59] I also find that the officers’ subjective belief was reasonably based in all of the circumstances. It was reasonable to investigate the involvement of the BMW and the two individuals associated with it to determine if they were trafficking in drugs. The actions of the woman going back and forth from an expensive car to a group of people who appeared to be “underhoused” or “drug addicts” was highly suspicious and had the earmarks of drug trafficking. The recent overdose just across the street was a pointed reminder of the dangerous nature of this activity. By definition, a car is mobile. If steps were not taken immediately, the opportunity would likely be forever lost. The detention was likely to be brief, and indeed was brief, as it became an arrest in a matter of only a few minutes. In all of these circumstances I find that the detention was not arbitrary and there was no breach of s. 9 of the Charter.

[60] I do not find that there was a reasonable suspicion that the car was stolen. However, this was merely an added concern for the officers involved – more of a hunch, than a suspicion. They did not purport to rely on that ground alone as a basis for the detention.

Grounds for Detention and Rights to Counsel Upon Detention

[61] Sections 10(a) and (b) of the Charter provide that “[e]veryone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right.”

[62] P.C. Walker immediately told Mr. Pilliatis that he was under detention for suspected drug trafficking. That satisfied the requirements of s. 10(a) even though most of the questions directed at Mr. Pilliatis at this point were about who owned the car. Police are entitled to considerable latitude in their questioning, provided the detainee knows the reason they are being detained.

[63] No officer advised Mr. Pilliatis that he had the right to speak to a lawyer. However, I accept the evidence of all three officers that Mr. Pilliatis was in a rage at this point and was shouting at the officers, without their being able to get a word in, even if he was listening to them or could have heard them. His own conduct prevented the officers from advising him promptly about those rights. I therefore find no breach of his rights under s. 10. If I have erred in that regard, I note that he was arrested only a few minutes after he was detained and he was fully advised of his rights upon arrest. The delay in advising him of his right to counsel upon detention was therefore very brief.

[64] The situation is different for Ms. Fife. She was not advised of the reason for her detention, nor was she advised that she had a right to speak to a lawyer. At that time, she made an utterance that the car belonged to a friend of hers, which was incriminating as it connected her to the vehicle. There was nothing about her conduct that would have prevented fully advising her of her rights. I note, however, that the length of the detention was very brief as it was closely followed by the arrest.

The Discovery of the Drugs in the Car was Lawful

[65] P.C. Esteves testified that he simply looked into the passenger side front window of the BMW to see if the ignition was intact. He did not open the door to do so. He merely looked through the open window while standing outside the car. He said that he could see drugs in the open compartment of a backpack sitting on the front seat of the car. When he called out that he had found the drugs, the two detainees were told they were under arrest. At this point, P.C. Joyce’s body camera was operational. P.C. Esteves can be seen removing the backpack from the car. The video confirms that he did not unzip and search the backpack, but merely pulled out the bag of drugs, right from the top of the backpack. This discovery is also fully consistent with the prior observations of Det. Ellis who saw Ms. Fife leaning into the BMW and then apparently delivering something to one of the people gathered nearby.

[66] There was no warrant to search the car, and the two individuals were merely detained (as opposed to being under arrest) at the time P.C. Esteves saw the drugs. Therefore, this was not a search incident to arrest. The onus is on the Crown to establish that the search was reasonable. The Crown relies on the plain view doctrine.

[67] In R. v. Jones, the Ontario Court of Appeal summarized the authority of a police officer to seize evidence of criminal activity that is in plain view, as follows:

The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however:

(i) The officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of the authorities);

(ii) the nature of the evidence must be immediately apparent as constituting a criminal offence;

(iii) the evidence must have been discovered inadvertently;

(iv) the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.

See, generally, R. v. Spindloe (2001), 2001 SKCA 58, 154 C.C.C. (3d) 8 (Sask. C.A.), at pp. 29-37; R. v. Fawthrop (2002), 166 C.C.C. (3d) 97 (Ont. C.A.), at paras. 28-34; Law, supra, at para. 27, and the authorities cited therein.

[68] In this case, the officers had lawfully detained Mr. Pilliatis and Ms. Fife, both of whom were connected to the vehicle. Immediately before he was detained, Mr. Pilliatis had been in the driver’s seat and had gotten out of the car in an outburst of anger towards the officers for blocking his car. As such, the officers were lawfully positioned beside the car. There was nothing unlawful in an officer looking in the open window and seeing what was clearly visible to anyone who walked by and looked in. It was immediately apparent to this experienced officer that what he saw was an illicit drug. Accordingly, I find that the requirements for the plain view doctrine are met and that P.C. Esteves acted lawfully in seizing the drugs in the backpack. There was no breach of s. 8 of the Charter.

[69] It follows that the two accused were lawfully arrested. Det. Ellis did a search of the car as an incident to that arrest, which was reasonable given the discovery of the drugs. He found a digital scale under the seat where the backpack containing the drugs had been sitting. That scale was also lawfully seized.

Breaches of Rights to Counsel Following Arrest

[70] Both Mr. Pilliatis and Ms. Fife were arrested as soon as the drugs were discovered. Both were immediately advised of the grounds for their arrest. There was no breach of s. 10(a) of the Charter.

[71] When a person is arrested, s. 10(b) of the Charter imposes three duties on the police:

(1) The police must inform the accused persons of their right to retain and instruct counsel without delay and of the availability of legal aid and duty counsel. (2) If an accused expresses a wish to speak to a lawyer, the police must provide them with a reasonable opportunity to exercise that right; and (3) The police must hold off eliciting any evidence from an accused until there has been a reasonable opportunity for that accused to speak to a lawyer. R. v. Bartle, [1994] 3 S.C.R. 173, at para. 18; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 23.

[72] Mr. Pilliatis was advised immediately of his rights to counsel and he stated that he wished to speak to a lawyer. He was told he would be put in touch with his lawyer when he reached the police station. The defence argues that he should have been given an opportunity to speak to a lawyer at the scene, prior to transport to the station. I do not agree.

[73] It is quite often the case that the first reasonable opportunity to connect an accused with a lawyer will be when the accused is taken to the police station. In R. v. Devries, Doherty J.A. noted that there can be insurmountable practical problems in connecting an accused with a lawyer from the scene of an arrest or detention, such as the “availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice.” R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at para. 30. In R. v. MacDonald, Labrosse J. noted a number of practical problems with facilitating a call to counsel from the scene of an arrest, as follows:

I accept the evidence heard from various officers who testified in these proceedings that there are security issues surrounding a practice of providing an accused person with a police cell phone for use at the scene of an arrest. There are also evidentiary issues that surround giving an accused person their own cell phone and allowing them to tamper with what may be evidence, particularly in a drug trafficking case. There is also the issue of a lack of privacy for the accused to properly exercise his rights to counsel and control of who an accused is calling if a cell phone is given to him. In these circumstances, there was a pending entry into the residence and there is no evidence of the availability of a payphone. R. v. MacDonald, 2018 ONSC 4341, 416 C.R.R. (2d) 1, at para. 124.

[74] In the case at bar, it was simply not feasible to put Mr. Pilliatis in touch with his lawyer from the parking lot in which he was arrested. There are valid investigative and security concerns involved in permitting him to have full and private access to his own phone. Further, police officers are not required to turn over their personal cellphones to an accused for this purpose, again for security reasons. Privacy is required for an accused to have proper access to counsel. There was no way to do this at the scene, and the delay involved in waiting until they were at the police station was minimal. I find no breach of the Charter in failing to facilitate access to counsel from the parking lot.

[75] Once Mr. Pilliatis was at the station, he was paraded immediately and P.C. Joyce took prompt steps to facilitate his access to counsel. After two unsuccessful attempts to reach Mr. Pilliatis’ counsel of choice, P.C. Joyce checked back with Mr. Pilliatis to see if he wanted to wait for his own lawyer or to seek advice from duty counsel instead. Mr. Pilliatis chose the second option, and the officer again took prompt steps to facilitate that access. The officer did everything right. The police did not attempt to elicit any evidence from Mr. Pilliatis prior to him having an opportunity to speak to a lawyer for advice, and he made no inculpatory statements. I find no breach of his rights under s. 10(b) of the Charter.

[76] Ms. Fife was also advised of the grounds for her arrest and of her rights to counsel promptly. She also stated that she wanted to speak to her lawyer, and provided a name. Like Mr. Pilliatis, she was told that this would be facilitated when she got to the station. However, with respect to Ms. Fife, the police did not hold off questioning her after she had invoked her right to counsel. On the contrary, P.C. Esteves took her aside and, in a very forceful manner, interrogated her, including challenging the answers she gave and telling her, “This is not my first rodeo.” The questions were investigative in nature and Ms. Fife gave answers that clearly incriminated her. The Crown concedes that Ms. Fife’s s. 10(b) rights were violated and has undertaken not to introduce into evidence any of the statements she made at the scene.

[77] As with Mr. Pilliatis, I find no breach of the implementational aspects of failing to provide access to counsel for Ms. Fife in the parking lot. Although she had to wait a little longer at the station for a call to be placed to her lawyer, that was because Mr. Pilliatis was paraded first. I consider it reasonable to complete this routine processing before providing access to a lawyer for advice. The delay was not significant, and, at least at the station, no officers attempted to elicit evidence from her.

[78] Accordingly, I find her s. 10(b) rights were violated, but only with respect to the officers’ duty to hold off questioning until after she had spoken to a lawyer.

D. SECTION 24(2) – ADMISSIBILITY OF THE EVIDENCE

The Test

[79] Under s. 24(2) of the Charter, I must determine the impact on the repute of the administration of justice if evidence obtained in a manner that infringed the Charter was admitted at trial. In reaching that conclusion, I am required to consider three factors: (1) the seriousness of the Charter- infringing state conduct; (2) the impact of the breach on the Charter -protected rights of the accused; and, (3) society’s interest in the adjudication of the case on its merits. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[80] This is by no means a mathematical exercise. However, society’s interest in an adjudication of the case on its merits will almost always favour admitting the evidence. This is particularly the case where the evidence is tangible and reliable and where public safety is at issue. Much depends on the strength of the defence case on the first two factors. Where the breach is egregious (particularly where the police acted in bad faith or where the breach reflects systemic failures) and the impact on the accused is significant, the strength of these two factors will likely outweigh society’s interest in an adjudication on the merits. In these types of situations, the hearing judge will often refer to the need for the court to distance itself from the Charter- infringing conduct at issue. Conversely, where the Charter breaches have not been serious, or have had little impact on the accused, the third factor will likely dominate and tilt the scale towards admitting the evidence.

[81] Doherty J.A. summarized this exercise as follows in R. v. McGuffie:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter -protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g., Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see, e.g., R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see, e.g., Grant, at para. 140. R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63.

Mr. Pilliatis: The Evidence is Admissible

[82] I have found that, viewed in context, the police did not breach any of the Charter rights of Mr. Pilliatis.

[83] There are three areas where the police conduct was somewhat close to the line, although I have found no Charter breach: (1) the failure to advise him of his rights to counsel upon detention; (2) the failure to implement his expressed wish to speak to a lawyer prior to being transported to the police station; and (3) the delay of approximately 38 minutes after booking before P.C. Joyce placed a call to Mr. Pilliatis’ lawyer.

[84] The time between when Mr. Pilliatis was detained and when he was arrested was a matter of a few minutes. He said nothing of an incriminatory nature between those two points in time. He was advised of his right to counsel upon arrest, and no evidence was elicited from him between then and when he actually spoke to counsel. Even when the call was placed, there was a waiting period, as his counsel of choice was unavailable. Therefore, even if any of these issues constituted a Charter breach, they were not serious in nature and had minimal, if any, impact on the rights of Mr. Pilliatis. On the other hand, this was a substantial quantity of drugs, and the fentanyl in particular represents a severe threat to community safety. Accordingly, the Grant analysis would tip strongly towards admitting the evidence.

[85] By whichever route, this evidence is admissible.

Ms. Fife: The Evidence is Not Admissible

[86] There were three clear breaches of Ms. Fife’s rights under the Charter, as follows:

(1) she was not told the reason for her detention, in breach of s. 10(a) of the Charter; (2) she was not advised of her right to counsel upon detention, in breach of s. 10(b) of the Charter; (3) after she invoked her right to counsel at the time of her arrest, she was interrogated by police at the scene, in breach of the police duty under s. 10(b) of the Charter to refrain from such questioning until after she had an opportunity to consult a lawyer for advice.

[87] I have found that the failure to provide Ms. Fife with the means to contact a lawyer from the parking lot immediately after her arrest was not a Charter breach and that the delay in putting her in touch with counsel after she was at the police station was also reasonable and not a breach.

[88] Det. Ellis explained his failure to advise Ms. Fife of the reason for her detention by saying he did not think at that point that he had the necessary grounds to detain. However, he is a senior, experienced police officer. He, himself, said that he had a reasonable suspicion that she had been engaging in drug trafficking, which was why he wanted to investigate the matter further. He also said that he likes to take a more “nuanced” approach” in his investigation, rather than starting the conversation immediately with a discussion of the suspected drug trafficking. Therefore, he preferred to talk to Ms. Fife about the car and who owned it, rather than tell her anything about the suspected drug trafficking. I do not consider this to be an acceptable explanation. No doubt, it will be easier to get information out of someone before telling them they are suspected of criminal activity. That is not an excuse for breaching someone’s Charter rights. Given what Det. Ellis had seen, and the fact that the BMW was boxed in and prevented from leaving, and the extreme reaction to this by Mr. Pilliatis, I do not for a moment believe that Ms. Fife was at liberty at that point to simply walk away. The “nuanced” approach favoured by Det. Ellis is not Charter compliant. Under the Charter, he was required to tell Ms. Fife right away why she was being detained. This would take a matter of seconds and there is no valid reason for not doing it.

[89] This is aggravated by the fact that Ms. Fife, not knowing of her jeopardy, provided information connecting her to the BMW. I do not know if she would have answered these questions or provided the same answer if she had been advised of her rights. It is too late to unscramble that particular omelette.

[90] The impact on Ms. Fife of this infringement of her rights at the detention stage is somewhat ameliorated by the short length of time between when she was detained and when she was arrested. At the time of her arrest, she was immediately advised of her rights. Therefore, the period of time under detention without knowing her rights was quite abbreviated.

[91] The most significant infringement of Ms. Fife’s rights was her interrogation by P.C. Esteves in the parking lot. He was fully aware that she had invoked her right to counsel, and also aware that he had a duty under the Charter to hold off questioning her. He acknowledged that the questions he asked were investigative in nature. The questioning was done with intensity, at a time of great vulnerability for Ms. Fife. As I mentioned before, she is frail, and has suffered greatly from her drug addiction. Worse still, Ms. Fife answered the questions in a manner that incriminated her. Also aggravating is the fact that another officer stood by, knowing that this woman’s rights were being breached, and said nothing. I appreciate that she was in a difficult position given her junior rank. Nevertheless, the fact that two officers were complicit in this breach makes it worse, and no doubt would have been perceived that way by Ms. Fife. Both officers knew that they would not be permitting Ms. Fife to speak to a lawyer until she got to the station. This should have brought home to them even more sharply that it was unlawful to question her in this manner at that time.

[92] The Crown concedes that this was a serious breach but has undertaken not to put the statements into evidence at trial. The Crown argues that this reduces the impact of the breach on Ms. Fife. In my view, this is merely a concession that, at the very least, the appropriate remedy for the Charter breach here is to exclude the statements that were obtained as a direct result of a serious Charter breach. It does not diminish the fact that the breach was serious and that the impact of the breach on the rights of Ms. Fife was significant.

[93] I have no difficulty reaching the conclusion that the statements must be excluded. They were obtained from a vulnerable accused in breach of her rights and without her having had time to reflect or obtain legal advice. She was herself an addicted drug user. As one of the officers noted at trial, it is extremely unusual for a known drug addict to have control over such a large quantity of drugs. The man with whom she was involved in the alleged drug trafficking was in the vicinity when she made these statements. The reliability of this inculpatory evidence is suspect, given the circumstances in which it was obtained.

[94] The real issue here is not whether the statements should be excluded (as the Crown agrees they should be), but whether the evidence of the drugs found in the car should also be excluded. The Crown points out, correctly, that there is no causal connection between the statements and the discovery of the drugs. I agree that this is a factor that leans less heavily towards excluding the evidence than might otherwise be the case. However, a direct causal connection is not required for the evidence to be considered as having been “obtained in a manner” that infringes the Charter. In R. v. Pino, the Ontario Court of Appeal held that, for purposes of considering a remedy under s. 24(2) of the Charter, the following considerations should guide the court’s approach in determining whether evidence was obtained in a manner that infringed the Charter:

• the approach should be generous, consistent with the purpose of s. 24(2);
• the court should consider the entire “chain of events” between the accused and the police;
• the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
• the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
• but the connection cannot be either too tenuous or too remote. R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72.

[95] This entire incident, from the time the detention started to when both accused were placed under arrest, was approximately 10 minutes. During that time, Ms. Fife was first detained by Det. Ellis without being told why and without being advised of her rights to counsel. At that point she made her first inculpatory statement connecting her to the BMW. Almost immediately thereafter, or perhaps even simultaneously, P.C. Esteves saw the drugs in plain view in the backpack in the car. Ms. Fife was arrested and advised of her rights to counsel, but those rights were then immediately violated by P.C. Esteves, while another officer stood by and did nothing. Again, Ms. Fife provided incriminating information. She did not volunteer this information, or blurt it out. She provided it in response to very pointed questions by P.C. Esteves. Those questions related to the car where the drugs were found and the drug transactions that were being investigated by the police. In my view, this is “one chain of events.” These various Charter breaches are properly considered as part of the “same transaction or course of conduct.” Ms. Fife’s rights were violated both before and after the discovery of the drugs, even though the seizure of the drugs was otherwise lawful. There is no causal connection, but there is both a temporal and contextual connection, that is neither tenuous nor remote. These are all factors that point towards excluding the evidence, notwithstanding the lack of a causal connection.

[96] The fact that there were multiple Charter breaches by multiple officers also is a factor supporting exclusion of the evidence.

[97] The first two Grant factors point strongly towards excluding all the evidence against Ms. Fife, not merely the statements she made. The third Grant factor points strongly towards admitting the evidence. This is real and reliable evidence. As I have already indicated, fentanyl is a scourge on our society and there is a significant societal interest in ensuring that those involved in selling fentanyl are dealt with at a trial on the merits, rather than disposed of based on police actions that breached the Charter rights of the accused.

[98] However, in this case, I find that the third factor is outweighed by the strength of the other two. In my view, the court cannot be seen to condone the actions of the police in running roughshod over Ms. Fife’s Charter rights in this situation. I would therefore exclude from the evidence at trial, not only Ms. Fife’s statements to the police, but also the evidence found in the car. In my view, to do otherwise would risk bringing the administration of justice into disrepute.

[99] In reaching that conclusion, I want to be clear that I do not agree with the defence position that the prior conduct of P.C. Esteves in conducting an illegal search of a car in a completely different case is relevant to what I have to decide here. That other case was very different on its facts from the one before me. The fact that the interaction with Ms. Fife was not the first time P.C. Esteves breached someone’s Charter rights does not amount to a systemic failure, nor do I consider it to have tipped the balance towards excluding the evidence. I will say, however, that there are now two documented incidents of flagrant Charter violations by this officer. Eventually, if there are further such incidents, it may well be regarded as a systemic issue requiring the court to distance itself from the misconduct. However, in coming to my decision in this case, I have not taken the prior incident into account.

Molloy J.

Released: September 13, 2023