COURT FILE NO.: CR-21-9 DATE: 2023-11-27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and -

JEAN AUCLAIR Defendant

BEFORE: M. Bordin J.

COUNSEL: J. Pereira, for the Crown S. Foda, for the Defendant

HEARD: September 5, 6, 7, and 8, 2023

AMENDED REASONS FOR JUDGMENT AT TRIAL AND WITH RESPECT TO SS. 8 AND 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

Overview

[1] Mr. Auclair is charged with possession for the purpose of trafficking of a substance included in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), contrary to s. 5(2) of the CDSA, punishable as an indictable offence under s. 5(3)(a), and with possession of proceeds obtained by crime contrary to s. 354(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] The charges arise out of Mr. Auclair’s admission to the Intensive Care Unit (“ICU”) of the Norfolk General Hospital on June 20, 2020 for a suspected drug overdose.

[3] In the ICU, Mr. Auclair’s shorts were removed. A nurse found cash and what appeared to be a package of drugs in the shorts. The nurse removed the package and cash. Mr. Auclair’s consent was not requested to search his shorts. The Ontario Provincial Police (“OPP”) were called.

[4] The OPP arrived at the hospital and seized the drugs and cash and sent a sample of the suspected drugs for analysis. No warrant was obtained.

[5] The defence brought a Charter application at the outset of trial alleging a breach of s. 8 and seeking the exclusion of the drugs and cash. The Crown and defence agreed that the application could proceed by way of a blended voir dire, that all the evidence would be called, and that I would decide the Charter issue at the conclusion of the trial.

[6] The Crown called four witnesses: a. Nurse Harrison, the ICU nurse who removed Mr. Auclair’s shorts and found the cash and suspected drugs; b. Nurse Ferris, the supervising nurse; c. Const. Monahan, the OPP officer who attended at the hospital; and d. Det. Staff Sgt. Nathan Parker to give expert evidence.

[7] The defence called one witnesses, Sgt. David Wallace, to give expert evidence.

Mr. Auclair’s attendance at the hospital and the drugs and cash found on his person

[8] On June 20, 2020, Nurse Harrison was working in the ICU. Mr. Auclair was brought to the ICU with a suspected overdose. He was wearing athletic shorts and no shirt. Nurse Harrison noticed something bulky in the pockets of the shorts.

[9] To take the necessary swab from Mr. Auclair to check for antibiotic-resistant bacteria, the shorts had to be removed. In addition, the shorts were wet or soiled and had to be removed for sanitary reasons. Before removing the shorts, Nurse Harrison asked Mr. Auclair if he could remove them. He explained why. Mr. Auclair said yes. He was conscious but lethargic.

[10] Nurse Harrison suspected that whatever Mr. Auclair had overdosed on was likely in his shorts. He says he checked the pocket of the shorts to prevent Mr. Auclair from taking more of what he had overdosed on while in hospital. He says he was trying to act in the patient’s best interest. He did not ask Mr. Auclair what was in his pocket or if he could check the pockets. He has no explanation for why he did not ask.

[11] In the pocket of the shorts, Nurse Harrison found a clip of money and a white, circular ball in a clear bag or saran wrap. The ball was somewhere between the size of a golf ball and a tangerine. He said there was powder flaking off inside the bag.

[12] As it was the early days of the pandemic, Nurse Harrison, like other staff, was wearing full PPE.

[13] Nurse Harrison did not tell Mr. Auclair what he had found after he searched his pockets. Uncertain what to do, he carried the suspected drugs and money in his gloved hands out to the nurses’ station about 12 feet away.

[14] The supervising nurse, Nurse Ferris, saw the package and cash and decided to call the police. A call was placed to 911, the contents of which were played in court. Nurse Ferris reported that she thought it was cocaine. She says that they did not call management before she decided to call 911. On the other hand, Nurse Harrison recalled calling management first.

[15] At 8:48 p.m. Const. Monahan received a call regarding the events at the hospital. At 9:04 p.m. he went to the ICU and spoke to Nurses Harrison and Ferris in private. In his words, he seized the currency and the suspected drugs. They were given to him at the nurses’ desk. He returned to the OPP detachment at approximately 9:30 p.m. with the drugs and cash.

[16] Const. Monahan did not obtain a warrant for the seizure of the drugs and cash. He agreed it was a warrantless seizure. No explanation was offered by him for why a warrant was not obtained.

[17] By 9:33 p.m., Const. Monahan began processing the drugs and cash. He counted $2,345 in cash and weighed the drugs at 24.94 grams. Const. Monahan suspected the drug was crack cocaine. He then removed a .35 gram sample at 9:36 p.m. He entered the necessary information into the police database for lodging in the storage vault.

[18] After preparing the sample to be sent to Health Canada for analysis and entering the information in the police database, Const. Monahan issued a warrant for Mr. Auclair’s arrest. Mr. Auclair was not immediately arrested because of his condition at the time Const. Monahan attended at the hospital.

[19] Mr. Auclair was discharged sometime the next day. No evidence was led as to the time of his discharge. No cogent evidence was led as to the particulars of Mr. Auclair’s arrival at the hospital or where he came from before being brought in. Mr. Auclair was arrested a few days after June 21, 2020.

The Charter Application

[20] The defendant asserts that the nurses were state actors or agents of the police and that the search of Mr. Auclair’s shorts and the seizure of the suspected drugs and money was in violation of section 8 of the Canadian Charter of Rights and Freedoms and that the evidence pertaining to the cash and drugs should be excluded under section 24(2) of the Charter. Alternatively, Mr. Auclair argues that the subsequent seizure of the suspected drugs and money by the police violated section 8 and the evidence should be excluded.

[21] The Crown asserts that the nurses were not state actors or agents of the police and there was no violation of section 8 by the nurses or the police.

[22] The issues raised by Mr. Auclair’s application are: a. Did Mr. Auclair have a reasonable expectation of privacy over the contents of his shorts in the ICU? b. Were the nurses agents of the police? c. Were the nurses a part of government for the purposes of section 32 of the Charter? d. If the nurses were agents of the police, or a part of government, was there an unreasonable search and seizure? e. Did Mr. Auclair have a continued reasonable expectation of privacy after the search by Nurse Harrison? f. Did Const. Monahan seize the drugs and cash? g. Was the seizure of the cash and drugs by Const. Monahan without a warrant unreasonable? h. If the search and seizure was unreasonable, should the evidence be excluded under section 24(2) of the Charter?

Section 8 General Principles

[23] Section 8 of the Charter does not exist to protect that which people want to keep private, solely because they want to keep it private, nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search: R. v. El-Azrak, 2023 ONCA 440, at para. 27.

[24] The Court of Appeal for Ontario in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.CC. (3d) 525, at paras. 37-40, set out the following summary of principles (citations omitted): Section 8 stands as “a shield against unjustified state intrusions on personal privacy”. A s. 8 privacy claim may relate to the person, a place, information, or any combination of the three. A claimant alleging a breach of s. 8 must demonstrate first that the impugned state conduct amounted to a search or seizure and, second, that the state conduct fell below the reasonableness standard demanded by s. 8. … When deciding whether state conduct amounts to a search or seizure, the focus is not so much on the nature of the state conduct as it is on the impact of the state conduct on the privacy interests of the s. 8 claimant. State conduct that, in the totality of the circumstances, infringes a claimant’s reasonable expectation of privacy will be treated as a search or seizure for the purposes of s. 8. The reasonable expectation of privacy inquiry is fact-sensitive and fact-specific. Different factors will carry different weight in different circumstances.

[25] Whatever the form of privacy at issue, determining whether someone has a reasonable expectation of privacy necessitates both a factual and a normative inquiry. The factual inquiry necessitates a command over all the circumstances at work in the case. The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. In this sense, s. 8 does not simply focus on the here and now but also concerns itself with the long-term consequences of government action on society. Properly viewed through a normative lens, privacy interests will rise to constitutional status when those interests reflect the “aspirations and values” of the society in which we live: El-Azrak, paras. 30-31.

[26] The reasonable expectation of privacy inquiry must be framed in neutral terms. To frame the inquiry by reference to the criminal activity in issue would all but eliminate the right to privacy through the adoption of a system of subsequent validation for searches: Orlandis-Habsburgo, at para. 45.

[27] The legitimate interests of third parties will in some circumstances diminish or otherwise modify a claimant’s reasonable expectation of privacy. The reasonable expectation of privacy analysis must take into account societal values reflected in countervailing interests: Orlandis-Habsburgo, at para. 47; R. v. M. (M.R.), [1998] 3 S.C.R. 393.

[28] In determining any s. 8 issue, the court must start by considering whether s. 8 is engaged, in the sense that there was a search or seizure within the meaning of s. 8 of the Charter. This turns on whether the accused has a reasonable expectation of privacy in relation to the subject matter of the search. It is the accused’s onus to establish a reasonable expectation of privacy, failing which, s. 8 protection is not extended: El-Azrak, at para. 28.

Did Mr. Auclair have a reasonable expectation of privacy over the contents of his shorts in the ICU?

[29] The factors for consideration in determining whether there exists a reasonable expectation of privacy are grouped under four headings: El-Azrak, at para. 32. The test asks: a. What is the subject matter of the search? b. Does the accused have a direct interest in that subject matter? c. Does the accused have a subjective expectation of privacy in the subject matter? d. Would an expectation of privacy be objectively reasonable in the circumstances of the case?

[30] Only where the answer to the fourth question is “yes” does the claimant have standing to assert a s. 8 right. If the court determines that the answer is “no”, then the state action cannot violate s. 8: El-Azrak, at para. 33.

The subject matter of the search

[31] In determining the subject matter of the search, a functional and holistic approach is applied, one that derives from the actual circumstances of the case: El-Azrak, at para. 38.

[32] Determining the subject matter of a search should not take on hypothetical dimensions. It must remain rooted in reality: El-Azrak, at para. 40.

[33] Here, the subject matter of the search is Mr. Auclair’s person, specifically his shorts, and even more particularly, the contents of his shorts.

Does the accused have a direct interest in the subject matter?

[34] Mr. Auclair had a direct interest in the contents of the pockets of his shorts. This was not disputed by the Crown.

Does the accused have a subjective expectation of privacy in the subject matter?

[35] A subjective expectation of privacy is not a prerequisite to or determinative of the existence of a reasonable expectation of privacy, but it is a consideration.: Orlandis-Habsburgo, at para. 82.

[36] It takes little to cross the subjective expectation of privacy threshold. In appropriate circumstances, it can be inferred: El-Azrak, at para. 60.

[37] Although there was no direct evidence in this regard, I infer that Mr. Auclair had a subjective expectation of privacy based on the subject matter of the search.

Is an expectation of privacy objectively reasonable in the circumstances?

[38] A reasonable expectation of privacy is to be determined from the totality of the circumstances. Numerous factors may be considered including: (i) the accused’s presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; and (v) the ability to regulate access: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45. In my view, these factors, considered in the circumstances of this case, favour a conclusion that Mr. Auclair had a reasonable expectation of privacy in his shorts and the contents of the pockets of those shorts.

[39] Section 8 seeks to protect a biographical core of personal information that “individuals in a free and democratic society would wish to maintain and control from dissemination to the state.” This biographical core includes information that “tends to reveal intimate details of the lifestyle and personal choices of the individual”: El-Azrak, at para. 80. The contents of one’s clothing and pockets can contain information that can tend to reveal intimate details of the lifestyle and personal choices of an individual.

[40] It is also necessary to consider the context in which the search took place: M.(M.R.), at p. 413, para. 32.

[41] Here, the search was carried out by the nurse responsible for Mr. Auclair, in an ICU, while Mr. Auclair was suffering from a suspected overdose.

[42] Considering all these factors, I conclude that Mr. Auclair did have a reasonable expectation of privacy with respect to his shorts and the items in the pockets of his shorts. However, the need for privacy “can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion”: R. v. Colarusso, [1994] 1 S.C.R. 20, p. 53.

[43] The reasonable expectation of privacy may be diminished in some circumstances, and this will influence the analysis of s. 8 and a consideration of what constitutes an unreasonable search or seizure: M.(M.R.), at para. 33. At para. 33 of M.(M.R.) the Supreme Court noted that individuals have a lesser expectation of privacy at border crossings because they know they may be subject to questioning and searches. As a result, a customs search did not have to meet the standards in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, to be reasonable. In M.(M.R.), the Court held that the reasonable expectation of privacy of a student in attendance at a school is less than it would be in other circumstances because students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school and they know that this may sometimes require searches of students and their personal effects and seizure of prohibited items.

[44] In my view, the expectation of privacy is similarly diminished in a hospital ICU. Patients are subject to more scrutiny. It is routine to have clothes removed. Other patients are in close proximity. Nurses are responsible for the medical care and safety of the patient and others. It would not be reasonable to expect to be free from the possibility that clothes and belongings in an ICU setting might need to be searched.

[45] I conclude that in these circumstances Mr. Auclair did have a reasonable expectation of privacy in the contents of his shorts when he attended the ICU and that s. 8 was engaged in the circumstances, but it was reasonable for him to expect a lesser degree of privacy in that setting.

Were the nurses agents of the police?

[46] Mr. Auclair asserts that Nurse Harrison was an agent of the police notwithstanding that the police were called after the drugs were discovered. If so, this would make the search subject to s. 8: M.(M.R.), at para. 26.

[47] Nurse Ferris said the package caused her concern for the safety of everyone in the unit. It is clear from the 911 call that she thought the package contained crack cocaine even though she testified at trial that she could not distinguish anything in the package. She said that there had been another patient recently with a fentanyl overdose. However, at the time of the 911 call, the nurses did not know it was fentanyl. Nurse Ferris said she did not want to be responsible for the package, was uncertain how to deal with it, and wanted it out of the unit.

[48] The mere fact that the nurses cooperated with the police is not sufficient to indicate that the nurses were acting as agents of the police: M. (M.R.), at para. 28. In R. v. Katsigiorgis (1987), 62 O.R. (2d) 441, 62 O.R. (2d) 441, 39 C.C.C. (3d) 256 (C.A.), the Court of Appeal found that a nurse who took vials of blood from the accused’s arm and who allowed the police to put a seal on the vial of blood and remain with the vial of blood and the nurse to maintain continuity was not an agent of the police.

[49] In speaking to the 911 operator, Nurse Ferris offered more information than she should have, some of her own accord and some when requested by the police. Nurse Ferris told the 911 operator that Mr. Auclair was known to be involved in a stabbing last summer. She said she thought there might be a need for added security. She gave the operator Mr. Auclair’s name and date of birth as well as the name and date of birth of a woman brought in at the same time for a suspected overdose. She said she gave the police the names and identity because the dispatcher asked for it. Even so, this cooperation does not support a finding that there was some kind of agreement with the police to assist in a criminal investigation or that there was an agency agreement. By this time, the suspected drugs and cash had already been found.

[50] In M. (M.R.), at para. 29, the Supreme Court confirmed that the essential elements of the test of whether an individual is acting as an agent of the police was set out in R. v. Broyles, [1991] 3 S.C.R. 595: Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. … [W]ould the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?

[52] Applying the test in Broyles, it must be determined whether the search of Mr. Auclair would have taken place, in the form and manner it did, but for the involvement of the police.

[53] Nurse Harrison acknowledges that locating the drugs in Mr. Auclair’s pocket did not help with treatment because they would not be able to discern what the drugs were from the package. Determining what drugs Mr. Auclair had taken would be done by urine testing which provides results in about two hours. However, he said it was necessary to prevent Mr. Auclair from using the drugs again which is why he conducted the search. Nurse Harrison said that this was done with patients generally.

[54] I find Nurse Harrison’s explanation for why he searched the pockets credible. He was unshaken on this point. His explanation is also reasonable. His understanding at the time was that if the drugs were left with or near the patient, a patient who was an addict might take more drugs.

[55] In my view, removing street drugs from the vicinity of a patient who is admitted for a suspected drug overdose is done for the purpose of medical treatment which is to help the patient recover from the overdose and prevent a further overdose.

[56] Nurse Harrison also testified that he removed the drugs to protect himself and other staff as they were an occupational hazard.

[57] I do not accept that Nurse Harrison searched Mr. Auclair’s shorts to protect himself or other staff from the drugs. The first time he gave such evidence was at trial. He did not say this in his statement to police or at the preliminary inquiry. Further, at the time he searched the shorts, he had no idea what kind of drugs he would find. He handled the drug package with his hands, although he was wearing gloves and everyone was wearing PPE. The money and package were held at the nurses’ station.

[58] The primary motive for the search was the protection and safety of Mr. Auclair, for which Nurse Harrison was responsible. There is nothing in the evidence to suggest that Nurse Harrison initiated the search or conducted it differently because of police intervention or did it to assist the police.

[59] I do not accept the defence’s submission that the interactions with the 911 dispatcher after the search by Nurse Harrison inform whether at the time of the search he was acting as an agent of the police. Nurse Harrison did not know exactly what he would find when he conducted the search, although he had a reasonable suspicion it was tied to Mr. Auclair’s overdose.

[60] The evidence demonstrates the search and the reporting to the police would have taken place and was no different than it would have been if there had been no police involvement after the search. I conclude therefore, that the nurses were not acting as agents of the police.

Were the nurses a part of government for the purposes of s. 32 of the Charter?

[61] Another possibility to bring the search within the ambit of s. 8 is if Nurse Harrison and the hospital were a part of government pursuant to s. 32 of the Charter.

[62] Hospitals have been identified as specific areas of concern in the protection of privacy given the vulnerability of individuals seeking medical treatment: Colarusso, at p. 53. The seizure of bodily fluids by hospital staff and their use by police in criminal investigations has been considered by the Supreme Court several times: see R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Dersch, [1993] 3 S.C.R. 768; and Colarusso. In none of these decisions does the Supreme Court say that the seizure of blood or bodily fluids by hospital staff make the staff or hospital a part of government or an agent of the state. Rather, it is the involvement of the police which attracted the s. 8 scrutiny.

[63] In Pohoretsky, a police officer asked a doctor to take a blood sample directly from a suspect who was in an incoherent and delirious state. The court found that the taking of the sample constituted a search and seizure that warranted Charter scrutiny.

[64] In Dyment, the Supreme Court held that a doctor treating a patient who collected a vial of free-flowing blood for medical purposes had no right to take it for other purposes or to give it to a stranger for non-medical purposes unless otherwise required by law.

[65] In Dersch, emergency room doctors treating a patient by taking a blood sample for medical reasons were held not to be agents of the state.

[66] The defence relies on the Supreme Court’s decision in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, to assert that the law has changed and that nurses in a hospital ICU are part of “government” within the meaning of s. 32 of the Charter.

[67] There are many public or quasi-public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy. When it is alleged that an action of one of these bodies, and not the legislation that regulates them, violates the Charter, it must be established that the entity, in performing that particular action, is part of “government” within the meaning of s. 32 of the Charter: Eldridge, at para. 36.

[68] The Supreme Court in Eldridge held that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that implements the program, it is government that retains responsibility for it. The rationale applies to any entity charged with performing a governmental activity, even if that entity operates in other respects as a private actor: Eldridge, at para. 42.

[69] For the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program: Eldridge, at para. 43.

[70] This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature – for example, the implementation of a specific statutory scheme or a government program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other private activities: Eldridge, at para. 44.

[71] The Supreme Court, in Eldridge, held that, pursuant to the legislation in British Columbia, hospitals carry out a specific governmental objective. Hospitals were the vehicle which the government chose to deliver its social program. The court noted that health care, including that generally provided by hospitals, has become a keystone tenet of governmental policy and that the interlocking federal-provincial Medicare system entitles all Canadians to essential medical services without charge: Eldridge, at para. 50.

[72] The court in Eldridge concluded that while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act: Eldridge, at para. 50.

[73] In Eldridge, the court was scrutinizing whether a provincial government’s failure to provide funding for sign language interpreters for deaf persons when they receive medical services violates s. 15(1) of the Charter.

[74] I do not have evidence or submissions regarding the specific statutory regime in Ontario respecting the delivery of health care. I have no evidence of policies that may have been in place either in the province, at the hospital, or in the ICU with respect to searching patients while delivering medical care. In the absence of evidence of the statutory regime or policies, I cannot determine the level at which such a decision is made.

[75] The decision by a nurse to search the pockets of a patient is, in my view, too far removed from the kind of issue considered in Eldridge. The decision not to provide sign language interpretation as part of health care was akin to a policy decision as to what type of health care services should be provided. A decision by a nurse on a ward respecting the manner of implementing the treatment of a patient, and whether a search of the patient is required is too far removed to be a part of government pursuant to s. 32 of the Charter.

[76] Finally, I note that the court in Eldridge did not comment on Pohoretsky, Dyment, Dersch, or Colarusso. I cannot conclude that the Supreme Court intended to upend the implicit conclusions in those cases that the doctors were not acting as agents of the police or state without considering or commenting on them.

[77] I conclude that the Charter does not apply to the actions of the nurses. If I am wrong in this conclusion, I consider whether the search by Nurse Harrison was reasonable.

Was the search by Nurse Harrison reasonable?

[78] In my opinion, the analysis of the Supreme Court in M.(M.R.) applies by analogy to the circumstances of the search by Nurse Harrison of a patient’s clothing. It is a situation where it would not be feasible to require that a warrant or any other prior authorization be obtained for the search. To require a warrant would be impractical and unworkable in the hospital setting. Nurses must be able to respond quickly and effectively to issues in the hospital, including patient care. A more lenient and flexible approach should be taken to searches conducted by nurses than would apply to searches conducted by the police.

[79] I was not provided with any statutory authorization for a nurse to search a patient, but I accept that a search may be reasonably necessary in the context of nurses’ responsibility to their patients to provide medical treatment or ensure their safety and well-being.

[80] The expectation of privacy is attenuated in an ICU. I find that a warrant is not required when a nurse conducts a search or seizure without the patient’s consent while administering health care or medical treatment, or to protect the safety and well-being of the patient. The absence of a warrant in these circumstances does not lead to a presumption that the search was unreasonable.

[81] However, there must be a reasonable basis upon which to conduct the search and the search must be appropriate considering the circumstances and the nature of the suspected risk to the patient.

[82] All the circumstances surrounding a search must be taken into account in determining if the search was reasonable.

[83] Nurse Harrison and Nurse Ferris agreed that as nurses they had a duty to protect the confidentiality and privacy of patients. Nurse Harrison was not aware of any policy on searching a patient’s clothing.

[84] Nurse Harrison had a reasonable basis to believe that there might be drugs in the pocket of the shorts and that the drugs could pose a risk to the health, safety and well-being of Mr. Auclair.

[85] Nurse Harrison acknowledged that he could have put the shorts in a bag and moved them out of Mr. Auclair’s room instead of searching them. Nurse Harrison could have placed the shorts into biohazard containers that were available. He could have stored them in an available safe. The shorts could have been stored in bags available for a patient’s belongings.

[86] In the context of an ICU, the standard to be applied cannot be perfection. Mr. Auclair was brought in with a suspected overdose, Nurse Harrison was responsible for his care and took steps to protect the health, safety and well-being of his patient. The search of the shorts was appropriate considering the circumstances as well as the attenuated nature of the privacy right in an ICU and the nature of the suspected risk to Mr. Auclair, even if other potential options may have been available. The court should not second guess a nurse’s reasonable decision because there may have been other options available for securing the shorts.

[87] I conclude that if s. 8 of the Charter applied to Nurse Harrison’s search, the search did not violate s. 8 of the Charter.

Did Mr. Auclair have a continued reasonable expectation of privacy after the search by Nurse Harrison?

[88] Mr. Auclair must have an ongoing reasonable expectation of privacy in the contents of his pockets for s. 8 to be engaged with respect to the taking of the drugs and cash by the police.

[89] The Supreme Court in R. v. Buhay, [2003] 1 S.C.R. 631, concluded at para. 34 that the appellant did not lose his privacy interest in the contents of his locker because private security guards had entered the locker, told the police of the contents of the locker, and then let the police into the locker.

[90] Neither can it be said that Mr. Auclair abandoned his expectation of privacy. The Supreme Court in R. v. Law, [2002] 1 S.C.R. 227, at para. 17, addressed the notion of abandonment or relinquishing an expectation of privacy in an item: It has been held that an individual can effectively abandon his own property by relinquishing any privacy interest in it: see Stillman, supra. It has also been implied that where the police recover property that has been cast off or stolen, they may infer it has been “abandoned” for the purposes of their investigation: R. v. LeBlanc (1981), 64 C.C.C. (2d) 31, 64 C.C.C. (2d) 31 (N.B.C.A.), cited in Dyment, supra, at p. 435; see also, United States v. Procopio, 88 F.3d 21 (1st Cir. 1996). Without more, however, the mere fact that the police recover lost or stolen property is insufficient to support an inference that the owner voluntarily relinquished his expectation of privacy in the item.

[91] Where the police cannot reasonably conclude the property has been abandoned by its owner, they are limited in their investigation by the privacy interest of the owner as protected by s. 8 of the Charter: Law, at para. 19.

[92] The reasoning in Dyment at p. 431 that any consent to the seizure of blood was restricted to the use of the sample for medical purposes is somewhat analogous. The consent to remove Mr. Auclair’s shorts and the search of his pockets without consent, was restricted to doing so for medical purposes.

[93] I find that Mr. Auclair did not relinquish his privacy interest in the contents of his shorts after Nurse Harrison searched his shorts.

Did Const. Monahan seize the drugs and cash?

[94] The Crown asserts that the police did not seize the drugs and cash because they had already been found by the nurses. I do not agree.

[95] The Crown relies on R. v. King, 2021 ABCA 271, 405 C.C.C. (3d) 303, and R. v. Brown [2000] No. O.J. 2536 (S.C.), aff’d [2001] No. O.J. 2863 (C.A.) to support its position that the police were entitled to seize the drugs and cash without a warrant and that the actions of the police did not engage s. 8.

[96] In King, the police looked at a flash drive provided by the accused’s wife and used the information from their review to obtain two search warrants for the accused’s house, truck and electronic devices. The Alberta Court of Appeal, referencing Orlandis-Habsburgo, at para. 34, held that receiving reports of a crime does not engage s. 8 rights and the police can presumptively look at most evidence provided to them without breaching s. 8. That is not the situation before me. The police did not just look at the suspected drugs. The police seized the drugs, kept them, and tested them.

[97] In my view, Brown can be distinguished. As noted by the Court of Appeal in Brown, counsel did not argue that even if the opening of the package by Purolator to reveal the drugs did not contravene s. 8, that the officer’s subsequent seizure violated s. 8.

[98] As the Supreme Court of Canada noted in Dyment at p. 431, the essence of a seizure is the taking of a thing from a person by a public authority without that person’s consent. See also Colarusso at p. 54-55 and Buhay, at para. 33.

[99] Here, we are also dealing with a seizure in the context of a hospital setting, although not the seizure of bodily fluids. Even where the nurses were entitled to be in possession of the contents of Mr. Auclair’s shorts, the police conduct is still subject to scrutiny. As noted in Colarusso at p. 55: … the lawful possession of the sample by another cannot be allowed to detract from the review of the police actions which must remain a primary focus for the Court.

[100] At p. 56, the majority in Colarusso stated: In my opinion, it is clear that the "taking" of a bodily fluid sample need not be directly from the person whose rights are affected (and from whom the sample originated) … The protection of s. 8 necessarily extends to a state seizure where the "taking" is from the immediate possession of another person who is lawfully in possession of the bodily sample.

[101] The majority in Colarusso went on to say at p. 56: That being so, the actions of the agents of the criminal law enforcement arm of the state will be subject to scrutiny under s.8 of the Charter even if, absent the intervention of the police, the initial non-police seizure would not run afoul of the Charter.

[102] Further, the Supreme Court in Buhay noted at para. 34 that it has held that in certain circumstances the mere “transfer of control” of evidence from a private citizen to police can constitute a seizure within the meaning of s. 8. The court cited Dyment, at p. 435: If I were to draw the line between a seizure and a mere finding of evidence, I would draw it logically and purposefully at the point at which it can reasonably be said that the individual had ceased to have a privacy interest in the subject-matter allegedly seized.

[103] Recently, the Ontario Court of Appeal in R. v. Lambert, 2023 ONCA 689, considered the meaning of seizure. The court referred to the passage from Dyment just referenced: Lambert, at para. 68. Paccioco J.A. for the court confirmed that seizure includes taking control of something that had been offered without the consent of a person holding an expectation of privacy in that thing; seizure does not apply only to police-initiated acts of taking: Lambert, paras. 68 and 70. Finally, seizure is an ongoing act: Lambert, at para. 68.

[104] At the time he attended at the hospital to obtain the drugs and cash, Const. Monahan must have known that the items would ultimately be used for a purpose contrary to the interests of Mr. Auclair. This is supported by the fact that he returned to the detachment and immediately began processing the evidence and sent the suspected drug out for testing.

[105] Mr. Auclair did not consent to the taking of the contents of his shorts by Nurse Harrison or Const. Monahan and had not relinquished his privacy interest in the contents of his shorts. I find that the police seized the cash and drugs within the meaning of s. 8 of the Charter.

Was the seizure without a warrant unreasonable?

[106] Warrantless seizures are presumptively unreasonable, and the onus rests on the Crown to demonstrate on a balance of probabilities that the seizure was reasonable: R. v. Reeves, [2018] 3 S.C.R. 531, at para. 14. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the way the search was carried out is reasonable: Reeves, at para. 14. The standard of proof the Crown must present to establish that a search is reasonable is the balance of probabilities: Lambert, at para. 89.

[107] The Crown asserted that s. 8 was not engaged and a warrant was not required. The Court of Appeal confirmed in Lambert at para. 82 that I can consider whether any statutory or common law authority justified the seizure. However, the court clarified that the Crown cannot rely on lawful authority to justify the seizure unless evidence on the record shows that the officer who conducted the seizure believed that they had the lawful authority that the Crown is relying upon. Put another way, the Crown cannot rely on common law or statutory authority unless the seizing officers turned their mind to whether they had such authority and concluded that they did: Lambert, at para. 82.

[108] The defence asserts that the warrantless seizure of the drugs and cash by Const. Monahan was unlawful because there were no exigent circumstances and no risk to the destruction of evidence. The defence says a warrant could have been obtained while the nurses held the items.

[109] I pause to note that drugs and cash are different from a bodily fluid sample which is the typical subject of the seizure in hospital settings. Bodily fluid samples are not readily identifiable as evidence of a crime or obtained in the commission of a crime – they require further analysis and investigation before they can be used in the investigation of crimes.

[110] Section 11(7) of the CDSA authorizes a peace officer to search and seize evidence without a warrant if the conditions for obtaining a warrant exist but there are exigent circumstances making it impractical to get one. Exigent circumstances exist when there is an imminent danger of loss, removal, destruction, or disappearance of the evidence, or there is an immediate risk to the safety of the police or public: R. v. Paterson, [2017] 1 S.C.R. 202, at para. 32.

[111] There was no evidence of exigent circumstances and no immediate danger of the loss, removal, destruction, or disappearance of evidence if the seizure was delayed.

[112] I turn now to s. 489(2) of the Criminal Code, which addresses seizure of evidence without a warrant: (2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (a) has been obtained by the commission of an offence against this or any other Act of Parliament; (b) has been used in the commission of an offence against this or any other Act of Parliament; or (c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[113] Section 489(2) does not authorize a search; it expands seizure powers: R. v. Riccardi, 2017 ONSC 2105, at para. 21.

[114] Where the seizure is not pursuant to a valid warrant as is the case here, for s. 489(2) to apply, it must first be determined whether the officer is lawfully present in a place pursuant to the execution of his duties. Const. Monahan was lawfully present at the hospital. He had been called there by the nurses who suspected they now had possession of a quantity of drugs and cash. Const. Monahan was attending pursuant to a 911 call in which a nurse indicated that they had found a golf ball sized baggie of cocaine and over $1,000 in cash. He attended there in the execution of his duties.

[115] Secondly, it must be established that Const. Monahan had reasonable grounds to believe the thing seized satisfies the requirements of one of s. 489(2)(a)-(c).

[116] A person has reasonable grounds when they believe that there is a credibly based probability that the material fact exists; they must have more than a suspicion that the material fact exists; and must subjectively believe that the material fact is probable (the “subjective component”), based on information known to them that would enable a reasonable person placed in their position to be satisfied that the material fact is probable (the “objective component”): Lambert, at para. 86.

[117] Const. Monahan did not explicitly give evidence as to his subjective belief that he had reasonable and probable grounds. However, I can determine from the record what he subjectively believed: Lambert, at para. 88. It is clear from the evidence that he believed that the substance was a controlled substance, likely cocaine or crack cocaine, and that he subjectively believed this to be true.

[118] In my view, it is not necessary that objective reasonableness of the grounds be based on those grounds that were specifically articulated by the officer: R. v. Fyfe, 2023 ONCA 715, at paras. 48-63.

[119] I am persuaded that the officer’s subjective belief was objectively reasonable. A person forming the belief is entitled to rely, in forming their conclusion, upon hearsay from a source that can reasonably be credited: Lambert, at para. 89. It was reasonable for Const. Monahan to accept as credible the information provided by the nurses that they now had in their possession cocaine taken from Mr. Auclair. Further, the substance itself was produced and the officer formed his own conclusion.

[120] In my opinion, Const. Monahan had reasonable grounds to believe that all three subsections of s. 489(2) were engaged. When the items were presented to Const. Monahan, he suspected the package contained drugs. Even the nurses suspected it contained drugs. Const. Monahan thought it was crack cocaine. This was further supported by the amount of cash found with the drugs. As such, it would have been something obtained by the commission of an offence, used in the commission of an offence, or which afforded evidence in respect of an offence under the CDSA.

[121] In the result, I find that the seizure of the drugs was justified under s. 489(2) of the Criminal Code.

Should the evidence be excluded pursuant to s. 24(2) of the Charter?

[122] Although I have found no breach of s. 8, I consider s. 24(2) of the Charter in the event that I am incorrect in that analysis. For this analysis, I assume that the search by the nurses breached s. 8, as did the seizure of the drugs by the police.

[123] Section 24 of the Charter states: 24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have 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.

[124] In R. v. Grant, [2009] 2 S.C.R. 353, at para. 67, the Supreme Court held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. It is an objective inquiry, and it 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: Grant, at para. 68.

[125] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system: Grant, at para. 68. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic concerns: Grant, at para. 70.

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

[127] The court in Grant outlined the following three lines of inquiry to consider when determining whether the admission of the evidence brings the administration of justice into disrepute. They are: a. the seriousness of the Charter-infringing state conduct; b. the impact of the breach on the Charter-protected interests of the accused; and c. society’s interest in the adjudication of the case on its merits.

Seriousness of the Charter-infringing state conduct

[128] The first Grant line of inquiry requires the court to consider the nature of the police conduct that infringed the Charter. It focuses on the extent to which the state conduct at issue deviates from the rule of law. Or, as the Supreme Court phrased it in R. v. Harrison, [2009] 2 S.C.R. 494, at para. 22: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?”

[129] The court must “situate the conduct on a scale of culpability” (Paterson, at para. 43) or on a spectrum from inadvertent or minor violations on one end and wilful or reckless disregard of Charter rights on the other (Grant, at para. 74.) To do so, the court must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75. Were the police compelled to act quickly to preserve evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? The court must adopt a holistic analysis to properly situate state conduct on the scale of culpability: R. v. McColman, 2023 SCC 8.

[130] The court, at para. 75 of Grant, elaborated this factor by stating: Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[131] Even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct, such as constitutional requirements for reasonable grounds: Paterson, at para. 44; see also Harrison, at paras. 24-25.

[132] If there was a Charter breach by the nurses, it would perhaps be the first time such a Charter breach has been found as counsel could not provide any other authorities indicating that nurses in similar circumstances had breached s. 8. Accordingly, the nurses would have no idea that their conduct was subject to Charter scrutiny and it appears they would have no idea of their obligations under the Charter.

[133] Further, the nurses were engaged in caring for Mr. Auclair in an ICU and searched his pockets for his safety and well-being. As noted, the expectations of privacy would be attenuated in such a setting. There was no evidence of systemic or institutional abuse by hospital staff. Absent a clear policy to the contrary or prior legal authority clearly finding nurses’ conduct in such circumstances subject to s. 8 of the Charter, the nurses cannot be faulted for their conduct and I would place the breach on the minor end of the spectrum.

[134] This factor pulls in favour of inclusion of the evidence with respect to the nurses’ conduct.

[135] Failure to obtain a warrant by the police, if one was required, is a significant breach. There was no urgency to seize the drugs. The police could have obtained the drugs by obtaining a warrant.

[136] Although warrantless searches have long been presumed to be unreasonable, there was some uncertainty as to whether the police could seize the drugs from the nurses without a warrant as evidenced by the cases relied on by the Crown. The police could reasonably have believed that no warrant was required when called to the hospital and presented with what everyone believed was a controlled substance by the nurses who were now in possession of it. In my view, if the officer was required to obtain a warrant to seize the drugs, the officer’s mistake and the Charter breach were honest and inadvertent, rather than wilful or reckless.

[137] However, it has been held that where there is legal uncertainty, police officers have a duty to act cautiously and to question the limits of their authority: R. v. McColman, 2023 SCC 8, at paras. 60 and 63.

[138] Considering all the circumstances, the breach was not so serious as to require the court to distance itself from the police actions. On balance, this line of inquiry pulls moderately in favour of exclusion.

Impact of the breach on the Charter protected interests of the accused

[139] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. The court looks at the interests engaged by the infringed right and must evaluate the extent to which the breach undermined the interests protected by the right infringed. Like the first line of inquiry, the second line envisions a sliding scale of conduct, from fleeting, transient or technical to profoundly intrusive: Grant, at para. 76.

[140] The Supreme Court described this line of inquiry as the concern that admitting the evidence obtained in violation of the Charter may “send a message to the public that Charter rights are of little actual avail to the citizen”: Grant, at para. 76 and McColman, at para. 66.

[141] The more serious the intrusion on the interests protected by the right infringed, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute: Grant, at paras. 76-77.

[142] The search by the nurses impacted the privacy rights and dignity of their patient, Mr. Auclair, who was in a hospital ICU and in a vulnerable state. However, those privacy rights are attenuated in such a setting. I would place the breach on the mid-range of the sliding scale. The breach was not fleeting; the nurses continued to maintain control of the contents of Mr. Auclair’s shorts, continuing the breach. If there was a breach of s. 8 by the nurses, I would find that this factor would moderately favour exclusion of the evidence.

[143] Grant makes it clear that the discoverability of evidence is no longer a determinative factor but “retains a useful role” when assessing the “actual impact of the breach on the protected interests of the accused”: Grant at paras. 121-122. The court must assess whether there is a causal connection between the breach and the discovery of the evidence. The more likely the evidence would have been obtained without the breach, the lesser the impact of the breach on the accused’s underlying interest; the converse is also true: Grant, at para. 122.

[144] The seizure by the police did not create the evidence; the drugs existed independently of any breach by the police of s. 8 as the evidence had already been found by the nurses. The police could have readily obtained a warrant and would have obtained the evidence. However, if the search and seizure by the nurses constituted a breach of s. 8, then the obtaining of the drugs and cash by the police, whether by warrant or otherwise, would be tainted by the breach by the nurses.

[145] On balance, assessing the conduct of the police had there been a breach of s. 8 by the police, whether there had been a prior breach by the nurses or not, I find the second line of inquiry moderately favours exclusion of the evidence.

Society’s interests in the adjudication of the merits

[146] As explained by the court in McColman at para. 69 citing Grant at para. 79, the third line of the Grant inquiry, which considers society’s interest in the adjudication of the case on its merits, asks whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. It requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence.

[147] The court in McColman at para. 70, citing Grant at paras. 81 and 83-84, explained that under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence, although the final factor can cut both ways. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach.

[148] If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion: Grant, at para. 81. In Grant, at para. 83, the Supreme Court discussed how the importance of the evidence to the Crown's case is a relevant consideration: [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.

[149] The breach of s. 8 in the present circumstances would not undermine the reliability of the evidence. The drugs and cash are real and reliable evidence. Without the drugs and cash, the Crown’s case collapses. Although the seriousness of the offence is not the controlling consideration and is not to be over-emphasized, I note that trafficking in fentanyl is a serious charge. The negative impact of fentanyl on our streets is well known.

[150] I have considered Mr. Auclair’s argument that if there was a s. 8 breach by the nurses and the police, admitting the evidence may result in a chilling effect. I am not persuaded that citizens may be reluctant to place themselves in the care of medical practitioners for fear of being subjected to criminal investigations as argued by Mr. Auclair. It is not clear to me that reasonable persons who are appraised of the facts of this case would as a result be reluctant to obtain medical care.

[151] While there is an obvious impact upon the administration of justice in admitting evidence obtained in contravention of the Charter, the truth-seeking function of the criminal trial process would be better served by admission of the evidence considering the reliability and importance of the evidence as well as the seriousness of the alleged offence. Admission of the evidence would not damage the long-term repute of the justice system.

[152] The third line of inquiry pulls strongly in favour of the admission of the evidence.

Final balancing of factors

[153] The final step is a balancing of all these factors. The cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. Lafrance, 2022 SCC 32, at para. 90; R. v. Beaver, 2022 SCC 54, at para. 134.

[154] In Harrison at para. 36, the Supreme Court provided some guidance to trial judges: 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 of 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.

[155] While I have not found a breach of the defendant’s rights, in assessing the alleged breaches by the nurses and the police, the first line of inquiry just slightly favours exclusion of the evidence and the second line of inquiry did so moderately. However, the third line of inquiry pulls strongly in favour of inclusion and outweighs the cumulative weight of the first two lines of inquiry because of the crucial and reliable nature of the evidence as well as the important public policy concerns about the scourge of fentanyl trafficking.

[156] Bearing in mind the long-term repute of the administration of justice, on balance, the exclusion of the evidence would bring the administration of justice into greater disrepute. Considering all the circumstances, the evidence should not be excluded under s. 24(2).

Burden of Proof

[157] An accused is presumed innocent until the trier of fact, weighing all the evidence, makes a determination at the end of the trial that the Crown has proven its case beyond a reasonable doubt. The standard of proof of beyond a reasonable doubt is intertwined with the presumption of innocence. The Crown bears the burden of proving all the essential elements of the offences beyond a reasonable doubt.

[158] Beyond a reasonable doubt has been described as one that is not far-fetched, imaginary, or frivolous. It is not based on sympathy or prejudice. It is based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient for a trier of fact to believe that the accused is probably or likely guilty. Such a conclusion must result in an acquittal. However, the Crown is not required to prove anything with absolute certainty. It is nearly impossible to do so.

[159] As set out by the Court of Appeal for Ontario in R. v. Pham, 2019 ONCA 338, 377 C.C.C. (3d) 64, at para 22: Triers of fact are not to examine facts piecemeal, applying a standard of proof to each one: R. v. Miller (1991), 5 O.R. (3d) 678 (C.A.), at p. 701; R. v. Morin, [1988] 2 S.C.R. 345, at p. 359; R. v. Rodgerson, [2015] 2 S.C.R. 760, at para. 23. Except in rare situations, like those in which the Crown’s entire burden is carried by a single fact, it is an error to proceed in that fashion: R. v. White, [1998] 2 S.C.R. 72, at pp. 105-6. Pieces of evidence must not be considered in isolation, but cumulatively in an effort to decide whether, on the evidence as a whole, guilt is established beyond a reasonable doubt. It is the cumulative effect of that evidence that matters. As noted by Watt J.A. in R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 82, each item of evidence must be considered relative to the other items of evidence and against the evidence as a whole.

[160] I am guided by the three-part test in R. v. W.(D.), [1991] 1 S.C.R. 742, where the court set out a suggested formula for assessing credibility in the context of the criminal standard of proof: a. If I believe the evidence of the accused, I must acquit. b. If I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit. c. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[161] The evidence of the accused in the W.(D.) formulation applies not just to the accused’s testimony, but to exculpatory evidence led by the accused or arising out of the Crown’s evidence.

[162] I am not to choose between the evidence of the accused and the Crown’s evidence. I am to assess the totality of the evidence.

Possession for the Purpose of Trafficking

[163] The Crown must prove each of the following essential elements of the offence beyond a reasonable doubt: a. The substance was a controlled substance; b. Mr. Auclair was in possession of the substance; c. Mr. Auclair knew the nature of the substance; and d. Mr. Auclair possessed the substance for the purpose of trafficking.

Controlled Substance

[164] Fentanyl is a controlled substance under Schedule I of the CDSA.

[165] The Certificate of Analyst filed as an exhibit indicates that the sample sent to Health Canada consisted of fentanyl and caffeine.

[166] I find that the substance was a controlled substance.

Possession

[167] Section 2 of the CDSA directs that the definition of "possession" is the same as in the Criminal Code.

[168] Section 4(3) of the Criminal Code defines "possession" in relevant part as follows: (3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession.

[169] A person is in possession of a substance if he is aware that he has physical custody and control of it. Control means that the person has some power or authority over the substance, whether or not he used that power or authority.

[170] The controlled substance was found on Mr. Auclair’s person, in the pocket of his shorts. He had custody of it and control over it. I infer that Mr. Auclair had knowledge of the substance in his shorts and find that he had personal possession of the substance.

Knowledge of nature of the substance

[171] Where the substance is one of those prohibited under the CDSA it makes no difference if the accused believed it was another substance, provided that it is a substance the trafficking in which is illegal under the Act: R. v. Kundeus, [1976] 2 S.C.R. 272; R. v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660, at para. 19.

[172] Knowledge is established if the Crown proves beyond a reasonable doubt that Mr. Auclair knew the substance was a controlled substance or that he thought it was some other substance the trafficking of which is prohibited.

[173] In Sansregret v. The Queen, [1985] 1 S.C.R. 570, at p. 584, the Supreme Court described willful blindness as arising “where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.” Further, “The culpability … in willful blindness” “is justified by reason of the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.”

[174] I find that the only reasonable inference to be drawn is that Mr. Auclair either knew or was wilfully blind to the fact that the substance was a controlled substance under the CDSA. It matters not whether he knew or was wilfully blind to the substance being cocaine, crack cocaine, or fentanyl.

Possession for the purpose of trafficking

[175] The defence’s submissions on the trafficking charge focused on the fourth element – that the substance was possessed for the purpose of trafficking.

[176] “Traffic” means to sell, administer, give, transfer, transport, send, or deliver the substance.

[177] The defence argues that a reasonable inference can be drawn that Mr. Auclair thought the substance was crack cocaine, the crack cocaine was contaminated by fentanyl, and that 24.94 grams of crack cocaine could, in the circumstances, have been for personal use, not trafficking.

[178] Two experts were called. Both experts had significant experience in drug investigations and policing, although Sgt. Wallace somewhat more so as an undercover officer in some 500 drug transactions. Both had been previously qualified as expert witnesses. Both were credible and forthright.

[179] I am not to prefer the evidence of one expert over the other. I am to consider the expert evidence, along with all the other evidence at trial, through the analytical framework prescribed by the Supreme Court in R. v. W.(D.), to determine whether the Crown has met its burden of proving Mr. Auclair’s guilt beyond a reasonable doubt: R. v. K.J., 2021 ONCA 570, paras. 17-19.

[180] There were some issues with each expert’s evidence. Sgt. Wallace had never been to Simcoe before. His policing experience was mostly in Toronto, although he has done work in drug investigations and undercover work in smaller centres such as Woodstock, Peterborough, North Bay, and a four-month stint in Sudbury. He was candid that he could not speak directly to what happened specifically in Simcoe but relied on his experience in Toronto and the smaller centres where he had worked.

[181] Det. Staff Sgt. Parker’s ability to give evidence as to what was happening on the streets during the COVID-19 pandemic was limited because he had been moved to another department during the pandemic and had very limited involvement in drug enforcement.

[182] The defence says that a reasonable inference may be drawn that Mr. Auclair believed he was purchasing cocaine for personal use for a number of reasons: a. Mr. Auclair had suffered an overdose; b. cocaine and fentanyl can be mixed intentionally or unintentionally; c. there were unintentional overdoses in the early days of the pandemic because people were taking fentanyl when they thought they were taking cocaine; d. a drug user cannot tell the difference between cocaine and fentanyl by looking at the substance; e. there were two people who were brought in for an overdose, which suggests that Mr. Auclair’s overdose was unintentional; f. the nurse and Const. Monahan thought the drug was crack cocaine; g. a qualitative and quantitative assessment of the substance was not done and the court cannot be sure that the sample was not taken from a fentanyl hot spot; h. financial support from the government due to the pandemic was available in June 2020 making cash available for drug users to buy in bulk; i. there are insufficient indicia of trafficking; j. the amount of the substance, if it was crack cocaine, would have only been enough for seven to eight days of use for a heavy user and three and a half to four days if the substance was shared; and k. it was not unreasonable in the early days of the pandemic for an individual to purchase 25 grams of crack cocaine.

[183] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 35. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all the evidence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at para. 35.

[184] A reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence: Villaroman, at para. 36.

[185] As noted in para. 37 of Villaroman, when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. Further, the Crown may need to negative reasonable possibilities but does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[186] The line between a plausible theory and speculation is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at para. 38. To justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative: Villaroman, at para. 41.

[187] Alternative inferences must be reasonable, not just possible: Villaroman, at para. 42.

[188] The Court of Appeal for Ontario, in R. v. Okojie, 2021 ONCA 773, 158 O.R. (3d) 450, at paras. 137, states: In a case in which proof of one or more essential elements of an offence depends exclusively or largely on circumstantial evidence, the inference of guilt or of an essential element of the offence must be the only reasonable inference to be drawn from the evidence as a whole.

[189] I accept that Mr. Auclair suffered an overdose. There was no evidence as to the source of the overdose.

[190] The expert evidence establishes that cocaine and fentanyl can be mixed inadvertently or intentionally and that one cannot tell the difference between cocaine and white fentanyl with the naked eye.

[191] Nurse Ferris and Const. Monahan thought the drug was crack cocaine. Neither were experts in the identification of drugs nor testified as to their experience identifying drugs. There is no evidence as to what Mr. Auclair thought the drugs were. This is not to say that Mr. Auclair had an obligation to lead such evidence. Accused persons are not required to prove facts to support explanations other than guilt or to raise a reasonable doubt.

[192] Sgt. Wallace testified that when the borders were closed during the pandemic, it was harder to get cocaine into Ontario. The police began to see fentanyl passed off as cocaine or added to cocaine because the supply of cocaine was limited. Sgt. Wallace’s evidence was that fentanyl is cheaper for drug dealers to acquire although it is more expensive at the street level. Det. Staff Sgt. Parker agreed that cocaine was harder to get during the pandemic than fentanyl.

[193] Sgt. Wallace testified that it was not uncommon during the pandemic that users who overdosed thought they were doing cocaine but were ingesting fentanyl. He also testified that cocaine and fentanyl have different effects on a user and a user would know if it was fentanyl instead of cocaine.

[194] Det. Staff Sgt. Parker agreed that a user would not be able to verify if crack cocaine was contaminated with fentanyl. A user would not be able to determine the concentration or strength of the fentanyl except through use.

[195] Det. Staff Sgt. Parker testified that if someone thought they were buying crack cocaine and it was fentanyl and the person was not a fentanyl user, they would suffer an overdose.

[196] The defence asserts that the absence of a qualitative and quantitative assessment of the substance is a gap in the evidence because the court cannot assess if the sample was taken from a hot spot in the substance or assess the possibility that only the small amount tested had fentanyl and the rest was crack cocaine. However, both experts agreed on the basic procedure for sending drug samples to Health Canada for testing and that it is not common to request a qualitative and quantitative analysis except in specific circumstances which did not apply here. Neither expert expressed a concern with the conclusion in the Certificate of Analyst or that the failure to obtain a qualitative and quantitative assessment meant that the rest of the ball was pure crack cocaine.

[197] There was some evidence that someone else was brought into the hospital who was experiencing a suspected overdose at the same time as Mr. Auclair. However, I have no cogent evidence as to that person’s connection to Mr. Auclair, that they were together at the time of their overdose, or that they overdosed on the same drug.

[198] There was evidence that Mr. Auclair was in possession of a substantial quantity of fentanyl and over $2,500 in cash. There was no evidence of common indicia of trafficking such as scales, baggies, meetings between Mr. Auclair and others, cell phones, or cell phone records.

[199] Indicia of trafficking are just that – indicia. There are no required indicia of trafficking per se. This is supported by the expert evidence of Sgt. Wallace who testified that such indicia are usually, but not always, present in the case of a street level trafficker who is in possession of about an ounce of drugs and that there are no required indicia of trafficking.

[200] Sgt. Wallace testified that 25 grams of a drug is not necessarily an indicator of trafficking or of using but he also conceded that a larger quantity of drugs could be indicative of trafficking. Sgt. Wallace agreed that larger quantities of drugs could pose an affordability issue for a user. They could also be concerned with being caught with a larger quantity of drugs. Sgt. Wallace testified that the price of drugs increases as you move away from Toronto and it becomes harder to buy drugs. A heavy user might buy more at once so fewer trips to buy drugs would be required. Det. Staff Sgt. Parker conceded that an addict may be able to purchase in bulk for a discount, that buying in bulk would reduce the chances of being apprehended by police, and that prices and value of street drugs can vary depending on availability and demand.

[201] Sgt. Wallace testified that 24.94 grams of fentanyl would have a value of about $2,000 in Toronto and that it would likely be about double that amount in a rural area. Det. Staff Sgt. Parker’s evidence was that one ounce (28.35 grams) of fentanyl would cost $5,000 and that the value of the fentanyl found could be up to $15,000 depending on how it was sold.

[202] Sgt. Wallace testified that an ounce of cocaine and crack cocaine would be about $1,200 in Toronto and likely about twice as much in a location like Simcoe.

[203] The parties agreed that I could take judicial notice that the COVID-19 pandemic began in mid-March 2020 and that the government took measures to provide individuals with financial support arising out of the pandemic shortly after mid-March 2020. However, there was no evidence before me that Mr. Auclair was in receipt of such financial support. Again, this is not to say that Mr. Auclair had an obligation to lead such evidence, he did not. There was no cogent evidence that because of the government funds users were buying drugs in bulk for their personal use.

[204] Sgt. Wallace gave examples of instances where money was seized from individuals but it was later learned that they had the money for various legitimate reasons. He said money was not necessarily an indicator of trafficking. However, there was no evidence before me as to the source of the cash found on Mr. Auclair’s person or as to his financial circumstances.

[205] Sgt. Wallace testified that when undercover he has purchased about an ounce of crack cocaine at a time. He said that a heavy user of crack cocaine could use 3.5 grams a day. Det. Staff Sgt. Parker said that a single use of crack cocaine would be .5 to 1 gram and a heavy user of crack cocaine could use up to 3 grams per day. On this evidence, 25 grams of crack cocaine would last a heavy user seven to eight days. There is no evidence whether Mr. Auclair was a regular user of crack cocaine or a heavy user.

[206] Sgt. Wallace testified that a heavy user of fentanyl would use about 2.5 grams in a day. In cross-examination, he agreed it could be between .5 grams and 1.5 grams. Det. Staff Sgt. Parker testified that a typical user of fentanyl would use up to .1 gram per use and a heavy user of fentanyl would use between .5 grams and 1.5 grams a day. On this evidence, 25 grams of fentanyl would last a user of fentanyl between ten to 50 days. There is no evidence whether Mr. Auclair is a regular user of fentanyl or a heavy user.

[207] Considering the evidence, I find that the defence’s theory is speculative. While it is possible that Mr. Auclair was a heavy user of crack cocaine, and possible that he thought it was crack cocaine, and possible that he overdosed on the part of the ball that was laced with Fentanyl, and possible that the rest of the ball was crack cocaine, and possible that Mr. Auclair overdosed because he thought he was consuming crack cocaine instead of fentanyl, and possible that he had the cash to purchase that quantity for personal use because of the financial support of the government, and possible that he purchased a larger quantity for personal use because of the increased difficulty in obtaining crack cocaine during the pandemic, it does not rise to the level of plausible or reasonable.

[208] I recognize there is a lack of some of the indicia of trafficking. However, significant indicia of trafficking are present: Mr. Auclair was found with almost 25 grams of fentanyl on his person together with over $2,500 in denominations from $5 to $100. To accept that Mr. Auclair was in possession of a 25 gram ball of fentanyl or even crack cocaine and that amount of cash in various denominations for personal use, in the absence of evidence and on the evidence before me, is not, in my view a reasonable inference on these facts.

[209] Accordingly, I find that the Crown has met its burden of establishing beyond a reasonable doubt that Mr. Auclair possessed the drugs for the purposes of trafficking. Therefore, I find Mr. Auclair guilty of the offence of possession for the purpose of trafficking.

Included offence of Possession (Schedules I, II and III of the CDSA only)

[210] I turn now to the included offence of possession.

[211] For the reasons set out above, I find that the Crown has established beyond a reasonable doubt that the substance was a controlled substance, Mr. Auclair was in possession of the substance and Mr. Auclair knew the nature of the substance.

[212] However, the Crown and defence agree that s. 4.1(2) of the CDSA applies. Section 4.1(1) and (2) of the CDSA provides: 4.1 (1) For the purposes of this section, medical emergency means a physiological event induced by the introduction of a psychoactive substance into the body of a person that results in a life-threatening situation and in respect of which there are reasonable grounds to believe that the person requires emergency medical or law enforcement assistance. (2) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency is to be charged or convicted of an offence under subsection 4(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.

[213] The Crown concedes that as a result of s. 4.1(2) the charges against Mr. Auclair for personal possession should be stayed or that Mr. Auclair should be acquitted.

[214] Therefore, I find Mr. Auclair not guilty of the included offence of possession.

Possession of Proceeds of Crime s. 354 (1)(a)

[215] The second count against Mr. Auclair is possession of the proceeds of crime pursuant to s. 354(1)(a) of the Criminal Code. The Crown must prove each of the following essential elements beyond a reasonable doubt: a. that Mr. Auclair was in possession of cash; b. that the cash was obtained by or derived from crime; and c. Mr. Auclair knew that the money had been obtained by crime.

[216] Mr. Auclair had the cash in his possession as it was found in his pocket.

[217] The fact of the amount of cash, the denominations in which it was held, and that it was found in Mr. Auclair’s pocket together with 24.94 grams of fentanyl establish that the cash was obtained, at least in part, directly or indirectly, from or derived by crime, i.e., trafficking. Taken together with the totality of the evidence and my conclusion that Mr. Auclair was trafficking the substance, I find the only reasonable inference is that the cash was obtained by or derived from crime.

[218] On the evidence, I would infer that Mr. Auclair was aware that the proceeds had been obtained, at least in part, directly or indirectly from crime.

[219] I find Mr. Auclair guilty of the charge of possession of proceeds of crime.

M. Bordin, J.

Released: November 27, 2023

Addendum a) The words “for the purpose of trafficking” was added to paragraph 1.

COURT FILE NO.: CR-21-9 DATE: 2023-11-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Plaintiff - and – JEAN AUCLAIR Defendant REASONS FOR JUDGMENT M. Bordin, J. Released: November 27, 2023