Court File and Parties

COURT FILE NO.: CR-22-00000006-0000 DATE: 2023Sep25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TAHVONNE DANTE HALL Defendant

Counsel: Tim Kavanagh, for the Crown Carlos Rippell, for the Defendant

HEARD: July 5 and 6, 2023

Lacelle J.

REASONS FOR DECISION

(Application under s. 8, 9 and 10 of the Charter of Rights and Freedoms)

[1] The accused, Mr. Hall, brings a Charter motion seeking to exclude evidence found by police following their interactions with Mr. Hall on April 26, 2022. A number of Charter breaches are alleged.

[2] Following the hearing, counsel were advised that I have allowed the defence application and excluded the impugned evidence. These are my reasons for that ruling.

Overview of the evidence

[3] On April 26, 2022, Mr. Hall was a passenger in a vehicle being driven by a woman named Keisha White. The vehicle came to the attention of police (OPP officer Sgt. Henry) because it was travelling at a high speed in a dangerous manner. The vehicle was eventually stopped after other police vehicles from another police force (the Tyendinaga Police Service) were enlisted to assist in its stop. The vehicle was travelling through areas that fell under the jurisdiction of multiple police forces.

[4] There is no issue that the police had grounds to detain the driver of the vehicle. What is at issue is what occurred with Mr. Hall, who was a passenger, and who was not under any criminal investigation.

[5] The evidence is clear that officers Maracle and Worley of the Tyendinaga Police Service were on scene when the vehicle came to a stop in a parking lot. Sgt. Henry arrived afterward.

[6] There is also no dispute in the evidence that Sgt. Henry determined that there were grounds to arrest Ms. White, and that he and officer Maracle attended to Ms. White’s arrest while PC Worley stood by the vehicle she had been driving. By all accounts, there were no grounds to detain Mr. Hall at that point and he was free to walk away.

[7] Eventually, after dealing with Ms. White, Sgt. Henry approached the vehicle on the passenger side, where Mr. Hall was located. Sgt. Henry says he saw a marijuana cigarette in the door on the passenger side of the vehicle. However, there was no odour of marijuana or other indication that substance had been used. By this point, Mr. Hall had stepped out of the vehicle and was standing near PC Worley.

[8] Sgt. Henry says he conducted no further examination of the cigarette to determine if it was, in fact, marijuana. He says he directed PC Worley to detain Mr. Hall under the Cannabis Control Act [“the CCA”] and to give him his rights to counsel, and that PC Worley seemed to understand that. Sgt. Henry then continued with a search of the vehicle on the driver’s side, where he says he found a Ziploc bag containing what he believed to be psilocybin. He then announced to the other officers that Mr. Hall was arrestable for the joint possession of a controlled substance. He says he again asked PC Worley to read Mr. Hall his rights to counsel. Sgt. Henry testified that the discovery of the psilocybin gave him a basis to search the vehicle further under the CDSA, and he eventually located a pill bottle containing Percocet pills. The bottle was in a bag in the rear of the vehicle.

[9] PC Worley testified that he was directed by Sgt. Henry to arrest Mr. Hall under the CDSA. He did not confirm the evidence of Sgt. Henry to the effect that Sgt. Henry had previously told him to detain Mr. Hall under the CCA.

[10] PC Worley testified he arrested Mr. Hall, but not before he and PC Maracle had asked Mr. Hall to identify himself, which Mr. Hall did after persistent questioning. It seems that Mr. Hall gave a false name at this point, which the officers discovered upon finding his wallet on a pat down search done incident to his arrest. PC Worley testified that he did not provide Mr. Hall with his rights to counsel at any point. PC Worley could not account for anything that required him to delay the giving of rights to counsel immediately upon arrest. He acknowledged that the scene was under control, and ultimately, there were five officers present.

[11] Other officers, Cagley and Grant, eventually arrived on scene. At this point, it was determined that one of these officers would assume carriage of the investigation and that Mr. Hall would be transported to an OPP detachment with PC Cagley. PC Cagley performed another pat down search of Mr. Hall before transferring Mr. Hall to his police vehicle. During his pat down search, PC Cagley found a magazine containing ammunition on one of Mr. Hall’s legs, and what appeared to be a loaded handgun on the other. After asking if Mr. Hall had a PAL, PC Cagley arrested Mr. Hall for offences relating to the firearm and ammunition. He provided Mr. Hall with his rights to counsel. This was at 8:21 a.m., and somewhere in the vicinity of 21 minutes after his initial arrest by PC Worley, and possibly longer.

[12] Sgt. Henry testified that he alerted the officers from Lennox and Addington about what he had found. At one point he said he believed he pointed out the psilocybin to PC Cagley. At another point in his evidence, he said he told PC Worley about the psilocybin, but he was not sure if he showed it to him. He also testified that he told at least one officer about it, and pointed out to him where it was discovered. Sgt. Henry also testified he told someone about the marijuana he had seen, but he was not sure who.

[13] PC Cagley testified that Sgt. Henry indicated at the scene that he found pills. He could not recall Sgt. Henry referencing any other substance. Nor could any other officer.

[14] Sgt. Henry testified that he left the marijuana cigarette and the Ziploc bag with the psilocybin in the vehicle where he found them. The evidence of all other officers on scene was to the effect that no one else went into the vehicle before it was towed to the police detachment.

[15] Ultimately, police obtained a search warrant to conduct a further search of the vehicle. This search was done after the vehicle had been towed to the detachment. No marijuana cigarette was found in the vehicle, nor any psilocybin.

[16] No report to a justice was done subsequent to the searches of the vehicle.

The positions of the parties

[17] The defence submits that Mr. Hall’s rights were breached in a number of ways under ss. 8, 9, and 10 of the Charter. I have generally agreed with the arguments of the defence in my analysis and conclusion and do not further outline its position on the Charter breaches here. With respect to the s. 24(2) analysis, the defence submits that the combination of Charter violations seriously exacerbates the seriousness of the Charter offending conduct and the evidence should be excluded. Counsel recommends the analysis of the Supreme Court in R. v. Le as being similar to the analysis which should be undertaken in this case.

[18] The Crown concedes that Mr. Hall’s s. 8 rights were breached when he was subjected to persistent questioning by the officers who did not accept his refusals to answer prior to his arrest. The Crown also acknowledges that PC Worley breached Mr. Hall’s 10(b) rights in failing to provide him with RTC upon his initial arrest, since the evidence discloses no basis to have delayed giving the accused this information. Counsel also concedes a breach of Mr. Hall’s s. 8 rights given the failure to file a report to a justice.

[19] On the 24(2) analysis, the Crown concedes the first factor favours exclusion. While he argues that the case should survive the 24(2) analysis based upon these breaches since they had minimal practical impact upon Mr. Hall and the second factor in the Grant analysis is neutral, counsel agrees that if the court is not satisfied that there were grounds for the initial search, then the police conduct which followed has had a significant impact upon Mr. Hall’s Charter interests. Nevertheless, counsel argues that the long term impact on the administration of justice from exclusion of the evidence is such that the court should deny Mr. Hall’s application to exclude it under s. 24(2) of the Charter. This is based on the pressing societal concerns about firearms offences, and the nature of the weapon and ammunition found here.

[20] In any case, the Crown argues that there is no evidence of a systemic problem here and suggests this was a unique situation where three different police services were involved and there was insufficient coordination of the investigation such that certain key investigative steps were not taken.

Analysis

[21] The Crown agrees that if there were insufficient grounds for the search under the CCA, triggered by the plain view of marijuana cigarette, then the remaining searches are also without grounds and constitute breaches of s. 8.

[22] I am not satisfied that the search under the CCA was conducted with either subjective or objective grounds. This is because I cannot reconcile the marked disparity in the evidence between Sgt. Henry and the other officers on the scene, nor with the fact that no marijuana cigarette or Ziploc bag with psilocybin were subsequently located in the search of the vehicle at the detachment. There is no circumstance disclosed by the evidence that can account for why those items were not found if they had been in the vehicle as described by Sgt. Henry.

[23] The evidence of Sgt. Henry is that he alerted at least PC Worley of the CCA issue and directed PC Worley to arrest Mr. Hall under the authority of the CCA. Yet, PC Worley testified that he was directed to arrest upon Sgt. Henry’s location of CDSA contraband. The evidence of PC Maracle is consistent with that of PC Worley on this point. She did not hear any mention of a marijuana cigarette, nor of the CCA. According to officers Maracle and Worley, the only contraband referred to by Sgt. Henry in their presence was a reference to pills and the CDSA. However, according to Sgt. Henry, the pills were found only after he saw what he believed to be a marijuana cigarette on the passenger side door, and a Ziploc bag with what he believed was psylocibin on the driver’s side door. The pills were found in a bag only after he determined that he had grounds, based on these items, to conduct a further search of the vehicle and its contents under the authority of the CCA and CDSA.

[24] The discrepancy in the evidence of the officers about what occurred at the scene is not remedied by other evidence. For instance, Sgt. Henry testified that he left the marijuana cigarette and Ziploc bag with the psilocybin in the vehicle. No other officer removed anything from the vehicle. The vehicle was later searched at the police detachment on the authority of a search warrant. Yet, neither the marijuana cigarette nor the Ziploc bag were found. Nor were they photographed by anyone at the scene.

[25] In these circumstances, I have real concerns that there was a marijuana cigarette or a Ziploc bag containing psilocybin. The evidence does not support a finding, even on a balance of probabilities, that Sgt. Henry actually saw these items. Consequently, I am not satisfied that he had grounds to search the vehicle, nor to direct an arrest of Mr. Hall. Mr. Hall’s s. 8 and 9 rights were breached.

[26] This factual finding is, effectively, determinative in this case. This is because the police conduct that follows, which had a significant impact upon the accused, was premised on a legitimate basis to search the vehicle. The subsequent police conduct, grounded on that premise, occurred without lawful authority and was unreasonable.

[27] At a minimum, I find that the following breaches of Mr. Hall’s Charter rights occurred:

a. S. 8 breach – search of the vehicle by Sgt. Henry. I am not satisfied that there were grounds to search the vehicle. I am not satisfied that Sgt. Henry viewed a marijuana cigarette or a Ziploc bag containing psilocybin. There was no basis to search the vehicle; b. S. 9 breach – arrest and detention of Mr. Hall by PC Worley. Mr. Hall was a passenger in the vehicle and there was no basis to investigate him. As I have explained, I am not satisfied that as or after Mr. Hall had stepped out of the vehicle Sgt. Henry developed grounds to arrest Mr. Hall under the CCA or the CDSA. I further find that upon Mr. Hall exiting the vehicle, he was interrogated about his name for the purposes of gathering evidence. Mr. Hall was unlawfully detained; c. S. 8 breach – persistent questioning by officers Worley and Maracle who did not accept Mr. Hall’s refusals to answer (conceded by the Crown). I find that the officers engaged in questioning Mr. Hall for a criminal law purpose and Mr. Hall was not free to leave; d. S. 8 breach – since the arrest was not lawful, there was no authority for a search incident to arrest or the pat down search which occurred, either by PC Worley or PC Cagley. The gun and magazine were therefore obtained following a search conducted without lawful authority; e. S. 10 (b) breach – failure to provide rights to counsel upon arrest by PC Worley (conceded by the Crown). The evidence is clear that PC Worley never provided the accused with his s. 10(b) rights upon arrest. The breach is based on this complete failure by police to execute this duty, and not merely on an unacceptable delay in informing the accused of his s. 10(b) rights. I agree with the defence that the only reason Mr. Hall was ever given his rights to counsel was because PC Cagley discovered the firearm and ammunition during his pat down search; f. S. 8 breach – failure to file a report to justice (conceded by the Crown).

The section 24(2) analysis

[28] I turn now to considering whether the administration of justice would be brought into disrepute by the admission of the evidence at issue.

[29] Section 24(2) is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. It will be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute: R. v. Beaver, 2022 SCC 54 at para. 117.

[30] I apply the test set out in R. v. Grant, and further discussed in Beaver and R. v. Tim, 2022 SCC 12. Ultimately, I agree with the defence that this case also has strong parallels with the circumstances in R. v. Le, 2019 SCC 34, where the Supreme Court of Canada determined that the impugned evidence should be excluded.

[31] I am mindful that where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, I must consider whether the admission of evidence risks doing further damage to the administration of justice by diminishing its reputation, such that reasonable members of Canadian society might wonder whether courts take individual rights and freedoms and police misconduct seriously: Le at para. 140. The focus is on the overall repute of the justice system, viewed in the long term.

[32] I am also mindful that the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion: R. v. McGuffie, 2016 ONCA 364 at para. 62; Le at para. 141 and Beaver at para. 134. Further, I consider that: 1) it is the sum and not the average of the first two lines of inquiry that determines the pull towards exclusion: Le at para. 141; and 2) the third line of inquiry, which typically pulls in the opposite direction, is particularly strong where the evidence is reliable and critical to the Crown’s case. As recently stated in Beaver at para. 134,

[w]hen undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” (Lafrance, at para. 90 (emphasis in original). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” (Lafrance, at para. 90). The third line of inquiry “becomes important when one, but not both, of the first two inquires pushes strongly toward the exclusion of the evidence [citing McGuffie and other cases]. It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter-protected interests (Le, at para. 141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission.

The seriousness of the Charter-infringing state conduct

[33] I find that the state conduct in this case was a major departure from Charter standards. The s. 8 breach committed by Sgt. Henry led to a further search of the vehicle and the accused’s detention and arrest. Sgt. Henry’s search of the vehicle was without grounds since I am not satisfied that Sgt. Henry located the items he testified he relied upon to justify the search. The officer’s conduct in further searching the vehicle and directing the arrest of the accused in these circumstances must be characterized as a wilful disregard of Charter rights. It is not in the nature of an “understandable mistake”. It was an inappropriate and unjustified use of police powers.

[34] This conduct alone pulls strongly towards exclusion of the evidence. There are additional breaches that were independent of this one, however (e.g. arising from the persistent questioning of the accused, the complete failure to provide him with his rights to counsel upon arrest, and the failure to file a report to a justice following the search), and they add even greater force to the pull towards exclusion.

The impact of the breach on the Charter-protected interests of the accused

[35] As I have said, I have determined that Sgt. Henry did not have grounds for a search of the vehicle under the CCA. The Percocet pills subsequently located by Sgt. Henry were in a bag in the backseat of the vehicle and would not have been found but for the illegal search. The impact of this breach upon the accused’s interests is significant.

[36] Further, the impact of the s. 8 and 9 breaches by Sgt. Henry and PC Worley were particularly significant given that they led to the conduct of PC Cagley in doing a pat down search of the accused. This led to the discovery of evidence that the police would not otherwise have discovered – the handgun and magazine containing ammunition.

[37] This was a circumstance where Mr. Hall was entitled to be left alone. He had been a passenger in the vehicle which was of interest to police. There was no basis to further investigate Mr. Hall. Cumulatively, the impact of the breaches upon Mr. Hall’s Charter rights is very significant and pull strongly toward exclusion.

Society’s interest in an adjudication of the case on its merits

[38] The evidence found in this case is reliable. It is necessary to the Crown’s case. The weapons charges in particular are very serious and of a kind that are of extreme concern in the community. Weapons of the kind located on Mr. Hall’s person are capable of causing enormous damage and are a grave danger to public safety. The exclusion of the handgun and ammunition in particular undermines the truth-seeking function of the justice system and risks rendering the trial unfair from the public’s perspective. These considerations apply forcefully here and pull strongly towards admission of the evidence.

Conclusion

[39] I find that this was serious Charter-infringing police conduct that constituted a major departure from Charter standards. The impact on Mr. Hall’s protected interests has been very significant. As I have explained, the first two lines of inquiry both pull strongly towards exclusion, particularly given the nature of the breaches and their cumulative impact. Taken together, the first two factors pull with exceptional strength towards the exclusion of the evidence. Upon balancing the relevant factors, I conclude that the admission of the evidence obtained during the search would bring the administration of justice into disrepute. The court must distance itself from the police conduct in this case. The long-term risk to the administration of justice of admitting the evidence compels this result.

[40] The application is allowed and the impugned evidence is excluded.

Lacelle J.

Released: September 25, 2023