COURT FILE NO.: CR-21-19
DATE: 20231208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
TYRESE DOUGLAS-HODGSON
Defendant
William E. Barnes for the Crown
Kim Schofield and Hedieh Kashani for Mr. Douglas-Hodgson
HEARD: August 14-15, 2023
REASONS FOR JUDGMENT
C. BOSWELL J. (Orally)
I. OVERVIEW
[1] Mr. Douglas-Hodgson was detained by way of a roadside police stop in Huntsville, Ontario on March 18, 2020. For reasons I will explain momentarily, he was subjected to a pat-down search by the police, during which he was found to be in possession of a loaded, prohibited handgun. He faces five charges: carrying a concealed weapon; weapons dangerous; unauthorized possession of a loaded, restricted firearm; and possession of a firearm knowing the serial number has been altered.
[2] Mr. Douglas-Hodgson does not dispute the fact that, on the occasion in question, he was in possession of a loaded .40 caliber handgun that he was not authorized to possess. What he disputes is the lawfulness of the roadside stop, his detention and search. He submits that racial profiling played a role in his detention and he asks that the proceedings against him be stayed or that the firearm be excluded from evidence.
[3] The trial of the charges against Mr. Douglas-Hodgson proceeded over two days in mid-August 2023 as a blended hearing with a variety of Charter applications.
[4] It is agreed between counsel that if the firearm is excluded from evidence, as a result of one or another of the Charter motions, acquittals should be registered on each count. On the other hand, if the firearm is not excluded from evidence, or a stay of proceedings not granted, then the offences are made out.
[5] I will take a few moments to provide a brief outline of the facts and then I will particularize Mr. Douglas-Hodgson’s Charter arguments, though, as I noted, the central issue before the court is whether racial profiling played a role in the decision of the police to conduct the roadside stop.
THE EVIDENCE
[6] The evidence adduced at trial came from three witnesses and an Agreed Statement of Fact.
[7] Detective Sergeant Michael Pigeau testified that he and Detective Constable Shana Wickware were both working a day shift in the Huntsville detachment of the OPP on March 18, 2020. They were attending to administrative matters in the office that day. Shortly after 1:00 p.m., they left together to pick up lunch.
[8] As they were driving away from the detachment, D/Sgt. Pigeau observed what he described as a “suspicious vehicle” in a parking lot opposite the station. It was an SUV with a female driver who appeared to be hunched over in the driver’s seat. The driver appeared to D/Sgt. Pigeau to be Cynthia Sheffield, a person known to him to be involved in the local drug subculture.
[9] PC Shawn Heatherington was similarly working a dayshift on March 18, 2020. He testified that he was in the detachment when he received a call from D/Sgt. Pigeau, asking him to go and check on the suspicious SUV. He attended the vehicle and spoke to Ms. Sheffield. He satisfied himself that there were no concerns for her well-being. She advised that she was waiting for the release of a male named Richard Perneroski. PC Heatherington relayed this information to D/Sgt. Pigeau.
[10] D/Sgt. Pigeau testified that he knew that Mr. Perneroski was not in the cells. He formed the opinion that Ms. Sheffield had lied to PC Heatherington about what she was doing, waiting in her vehicle outside the police station. On his return from picking up lunch, he decided to drive past the detachment in the direction of Ms. Sheffield’s residence, to see if she’d gone home. She lived roughly one kilometre past the station, which is on Ravenscliffe Road where it intersects with Highway 11.
[11] Finding that Ms. Sheffield’s vehicle was not at her residence, D/Sgt. Pigeau turned around and headed back towards the station. On the way back, however, he observed Ms. Sheffield’s vehicle parked on a sideroad. She was in the driver’s seat and appeared to be on her phone. Officers Pigeau and Wickware parked a short distance from her and conducted surveillance on her vehicle. According to D/Sgt. Pigeau, they were simply gathering intelligence.
[12] Ms. Sheffield eventually drove past them on Ravenscliffe Road, went past the police station and over Highway 11, where Ravenscliffe turns into West Road. She continued along West Road, heading eastbound towards Centre Street. Nearing Centre Street, D/Sgt. Pigeau observed a black four-door Honda Civic, that had been travelling westbound on West Road, do a sudden U-Turn and proceed eastbound. The driver of the Civic failed to signal the U-Turn.
[13] According to D/Sgt. Pigeau, the Civic pulled up beside Ms. Sheffield’s vehicle, which was stopped at a red light at the intersection of West Road and King William Road. Ms. Sheffield’s vehicle was in the left lane and the Civic pulled up beside her in the right lane. The driver of the Civic – described by D/Sgt. Pigeau as a “young male” – rolled down his window and appeared to be speaking to Ms. Sheffield through the passenger side window of her vehicle, which was similarly down. D/Sgt. Pigeau said he could not determine the exact race of the driver, but knew he was “darker-skinned”. He said he could have been Latino.
[14] Officers Pigeau and Wickware ran the plate of the Civic and determined that the registered owner was Annemarie Douglas of Mississauga.
[15] When the light turned green, the Civic accelerated quickly to get out in front of Ms. Sheffield’s vehicle. It cut across the front of her vehicle and turned left onto King William Street. Ms. Sheffield similarly turned left and followed the Civic. She eventually accelerated and passed the Civic. She made a number of turns and eventually pulled into the parking lot of an apartment building on Meadow Park Drive. The Civic followed all the while and parked in close proximity to Ms. Sheffield’s vehicle.
[16] D/Sgt. Pigeau said he positioned his car so that he could see both Ms. Sheffield’s vehicle and the Civic. He did not observe any communications between the occupants of the two vehicles, nor did he observe anyone getting in or out of either vehicle.
[17] By this point, D/Sgt. Pigeau had, he said, formed grounds to believe that the driving of both Ms. Sheffield’s vehicle and the Civic was careless in nature. He contacted PC Heatherington and asked him to attend their location and conduct a traffic stop for the offence of careless driving. He confirmed, under cross-examination, that the only purpose to have contact with the Civic was the driving infraction.
[18] While waiting for PC Heatherington, Ms. Sheffield and the Civic were again on the move. They were only in the parking lot for a matter of minutes. As they drove, D/Sgt. Pigeau got on the phone with PC Heatherington to keep him up-to-date on their location.
[19] The traffic stop was eventually executed on Highway 60, just east of the onramp to Highway 11. PC Heatherington arrived on scene, activated his emergency lights and pulled the Civic over to the shoulder. In the meantime, Officers Pigeau and Wickware pulled over Ms. Sheffield.
[20] D/Sgt. Pigeau testified that he approached Ms. Sheffield’s vehicle and observed a bag with white powder in plain view on the floor of her SUV. He suspected it was cocaine. He formed the view that there were reasonable grounds to arrest Ms. Sheffield for possession of a controlled substance. He left DC Wickware to deal with Ms. Sheffield and he made his way to the Civic.
[21] D/Sgt. Pigeau said he approached PC Heatherington to provide him with the grounds he needed with respect to the offence of careless driving. He said he asked PC Heatherington to get the driver out of the vehicle and to speak to him. He instructed PC Heatherington to take the driver to the back of the vehicle. He had, by this point, realized there was a female in the front passenger seat. He wanted to be able to speak to the two of them separately. According to D/Sgt. Pigeau, the driving investigation had now evolved into a drug investigation, though he conceded, under cross-examination, that he had no evidence to support a drug connection between the occupants of the Civic and Ms. Sheffield.
[22] He denied defence counsel’s suggestion that he thought the driver was a drug dealer because he was an unknown, young, Black male.
[23] D/Sgt. Pigeau recognized the passenger in the Civic as Kristy Clarke – someone he knew to be involved in the local drug subculture. He told Ms. Clarke that they had arrested Ms. Sheffield in relation to the possession of a controlled substance. He then asked Ms. Clarke what was going on and why they had been driving the way they were.
[24] Ms. Clarke told him that “Vinny” had come to pick her up from her apartment on Meadow Park. She said she had done nothing wrong and all she had in her possession were Xanax tablets. D/Sgt. Pigeau asked to see the tablets. Ms. Clarke pulled a baggie from under the passenger seat containing the drugs. D/Sgt. Pigeau thought the number of pills was significant enough to be consistent with the offence of possession of a controlled substance. He advised Ms. Clarke that she was being arrested for that offence and he advised PC Heatherington that he could arrest the driver for the same offence.
[25] PC Heatherington’s recollection of the events in issue largely corresponded to D/Sgt. Pigeau’s evidence.
[26] PC Heatherington testified that he received a phone call from DC Wickware at 1:47 p.m. in which she said she wanted assistance stopping Ms. Sheffield’s vehicle as well as a black Honda Civic. The reason for the stop, insofar as he understood it, “had something to do with the way they were driving”. Under cross-examination, he said that he was not sure what the point of pulling over the vehicles was, at the time he did it.
[27] PC Heatherington left the station with PC Matthew Elliott, to pursue and stop the Sheffield vehicle and the Civic.
[28] When he eventually pulled the Civic over, PC Heatherington asked the driver, he said, for his license, ownership and insurance. Under cross-examination, he said that it was “highly unlikely” he asked the driver how he knew Ms. Sheffield. In any event, once he obtained the driver’s paperwork, he went back to his vehicle and checked the driver on their system, which he described as standard practice. He determined that the driver’s license was valid and that the driver had no criminal record.
[29] PC Heatherington said he then asked D/Sgt. Pigeau what he wanted done. The response was a direction to request that the driver exit the vehicle. D/Sgt. Pigeau said that the driver was being detained for a drug trafficking investigation.
[30] Under cross-examination, PC Heatherington said he had no understanding of the grounds to detain Mr. Douglas-Hodgson other than what D/Sgt. Pigeau said. He said he understood that D/Sgt. Pigeau had grounds and was passing them on. He did not, however, know what those grounds were.
[31] PC Heatherington attended at the driver’s door and opened it and asked Mr. Douglas-Hodgson to step out. Mr. Douglas-Hodgson asked “why” and appeared not to want to exit the car. PC Heatherington said he told Mr. Douglas-Hodgson that he was being detained for a drug trafficking investigation. He took him to the rear of the vehicle and handcuffed him behind his back.
[32] PC Heatherington then conducted a pat down search of Mr. Douglas-Hodgson. In the course of that search, he asked Mr. Douglas-Hodgson whether he had anything on him that could harm the police. The answer was yes, though no details were provided. PC Heatherington searched inside Mr. Douglas-Hodgson’s jacket. He located a satchel across his chest. He could feel something in the satchel. He opened it and found a black .40 calibre handgun. It was loaded, with a round in the chamber. He placed Mr. Douglas-Hodgson under arrest for trafficking and possession of a prohibited firearm. The time was 2:00 p.m.
[33] At 2:13 p.m., PC Heatherington read Mr. Douglas-Hodgson his right to counsel and caution. He asked if Mr. Douglas-Hodgson understood and the answer was yes. He asked if Mr. Douglas-Hodgson wished to speak to counsel and the answer was that he would decide when they got to the station.
[34] Ms. Sheffield was released unconditionally from the scene. Mr. Douglas-Hodgson and Ms. Clarke were taken back to the detachment. When they arrived, at 2:50 p.m., D/Sgt. Pigeau gave PC Heatherington the authority to conduct a strip search of Mr. Douglas-Hodgson. He said he was concerned that Mr. Douglas-Hodgson may have drugs secreted on his person.
[35] PC Heatherington conducted the strip search of Mr. Douglas-Hodgson, during which he located a package of drugs secreted in his buttocks.
[36] PC Elliott’s testimony was relatively brief and, in many respects, jived with the testimony of Officers Pigeau and Heatherington. It differed, however, in several notable areas. PC Elliott testified that DC Wickware called the station at 1:47 p.m. PC Heatherington took the call. When the call concluded, PC Heatherington told him that “street crime” were looking for assistance in stopping two cars for a drug investigation. He made a notation of that in his police notebook.
[37] When they stopped the Civic, PC Heatherington approached the driver’s side window and he (PC Elliott) approached the passenger side window. As he did so, it was his understanding that the two individuals were to be detained in relation to the drug investigation, pending further instructions.
[38] He further testified that when PC Heatherington first approached the driver, he asked him what he was doing in Huntsville and what his association was with Ms. Sheffield.
[39] Having set out that relatively brief overview of the evidence, I turn now to a consideration of the issues raised by counsel based on the facts and circumstances I have just laid out.
II. THE CHARGES
[40] Mr. Douglas-Hodgson initially faced a ten-count indictment. Specifically:
Count 1: Possession of a controlled substance, namely Lorazepam
Count 2: [Applicable only to a former co-accused]
Count 3: Carrying a concealed weapon
Count 4: Weapons Dangerous
Count 5: Possession of a controlled substance, namely cocaine
Count 6: Possession of a loaded, restricted firearm
Count 7: Careless carrying of a firearm
Count 8: Unauthorized possession of a firearm
Count 9: Possession of a firearm, knowing the serial number had been altered
Count 10: Possession of the proceeds of crime
[41] The Crown elected to proceed on only counts 3, 4, 6, 7, 8 and 9 and Mr. Douglas-Hodgson was arraigned on only those counts.
III. THE LIVE ISSUES
[42] Based on what Mr. Douglas-Hodgson says were a series of serious breaches of his Charter-protected rights, he applies for a stay of proceedings under s. 24(1) of the Charter, or alternatively, the exclusion of evidence under section 24(2) of the Charter.
[43] In particular, he alleges the following breaches of his Charter-protected interests:
(a) The roadside stop of his vehicle was motivated by racial profiling, and, as such, constituted a breach of:
(i) His s. 7 right not to be deprived of his liberty and security of the person except in accordance with the principles of fundamental justice;
(ii) His s. 9 right not to be arbitrarily detained; and,
(iii) His s. 15 right to equality before and under the law;
(b) The police failed to promptly advise him of the reason for his detention, contrary to his s. 10(a) right;
(c) The police failed to immediately advise him, upon arrest, of his right to counsel, contrary to his s. 10(b) right;
(d) The police further breached his s. 10(b) right by attempting to elicit evidence from him prior to the implementation of his right to counsel;
(e) The police searched his vehicle without lawful authority, contrary to his s. 8 right to be secure against unreasonable search and seizure; and,
(f) The police conducted a strip search without lawful authority, also contrary to his s. 8 right.
[44] Defence counsel emphasized that the principal thrust of the defence position is that the entire interaction between the police and Mr. Douglas-Hodgson on the occasion in issue was the direct result of racial profiling. If the court agrees and finds that race played a role in the targeting and detaining of Mr. Douglas-Hodgson, then the assertion of lawful authority to detain and investigate Mr. Douglas-Hodgson evaporates. The court should, in the result, dissociate itself from the police conduct by excluding the fruits of the investigation.
[45] The Crown asserts that there is no support for the suggestion that Mr. Douglas-Hodgson was targeted for investigation because he is Black. Rather, he came to the attention of the police through an investigation into Ms. Sheffield and the police were able to observe his driving over an extended period of time. The Crown contends that the police had reasonable grounds to stop Mr. Douglas-Hodgson’s vehicle based on his driving. The investigation developed organically from there. The Crown submits that Mr. Douglas-Hodgson’s arrest for possession of a controlled substance and possession of a prohibited weapon were lawful based on the circumstances as they developed. Moreover, the strip search, the Crown says, was lawfully conducted in accordance with the recognized police power to search incident to arrest.
[46] I intend to address the issues raised on the application as follows. I will begin with the central issue of racial profiling and whether it played any role in the investigation into Mr. Douglas-Hodgson’s vehicle. This issue will engage a consideration of Mr. Douglas-Hodgson’s s. 7, 9 and 15 Charter rights. I will next consider the alleged breaches of Mr. Douglas-Hodgson’s rights under ss. 10(a) and (b) of the Charter, followed by a consideration of the alleged breaches of s. 8. Finally, I will consider the issue of what, if any remedy, is justified.
IV. ANALYSIS
Issue One: Did Racial Profiling Play a Role in the Detention of Mr. Douglas-Hodgson?
What is Racial Profiling?
[47] In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39, at para. 33, the Supreme Court defined racial profiling as follows:
Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.
Racial profiling includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed.
[48] The Court of Appeal for Ontario has described racial profiling in similar terms. In R. v. Richards, (1999), 1999 CanLII 1602 (ON CA), 26 C.R. (5th) 286, at para. 24, Rosenberg J.A. described it as follows:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
[49] The definition from Richards was adopted in Peart v. Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457 (C.A.) where Doherty J.A. added, at para. 90:
A police officer who uses race (consciously or subconsciously) as an indicator of potential unlawful conduct based not on any personalized suspicion, but on negative stereotyping that attributes propensity for unlawful conduct to individuals because of race is engaged in racial profiling.
[50] Racial profiling is a concept that focuses on the motivations of the police. It occurs when racial stereotypes about offending or dangerousness are used – whether consciously or unconsciously – to any degree in suspect selection or suspect treatment. See R. v. Le, 2019 SCC 34, at para. 76.
[51] Racial profiling may be the manifestation of overt bias, but more often reflects subconscious or institutional racial bias. The impugned police officer may not have an actual awareness that he or she is acting on racial biases. But as the Court of Appeal made patently clear in Peart, racial profiling cannot be tolerated. “It is offensive to fundamental concepts of equality and the human dignity of those who are subjected to profiling.” (Peart, at para. 93)
How is Racial Profiling Established?
[52] The Court of Appeal has described racial profiling as consisting of two components: (1) an attitudinal component; and (2) a causation component. The attitudinal component refers to the acceptance by the officer in issue that race or racial stereotypes about offending are relevant in identifying the propensity to offend or be dangerous. The causation component requires that this race-based thinking consciously or unconsciously motivates or influences – to any degree – decisions by persons in authority regarding suspect selection or subject treatment. See R. v. Dudhi, 2019 ONCA 665 at paras. 54-55.
[53] The “to any degree” threshold in the causation component must not be glossed over. It is repeated in the appellate jurisprudence, including in Le, Peart and Dudhi. Paccioco J.A. observed in Dudhi, at para. 62 that “If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretense that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.”
[54] Establishing that racial profiling has factored into suspect selection or subject treatment is generally not an easy task. It can rarely be proven by direct evidence, as Morden J.A. observed in R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 173 C.C.C. (3d) 23 (C.A.), at para. 44. It would, of course, be startling if a police officer admitted that he or she was influenced by racial profiling when stopping a motorist. In the result, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.
[55] Morden J.A. went on to establish what has since been referred to as the “correspondence test”. In particular:
…where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. (Brown, para. 45).
[56] The correspondence test is one way to establish racial profiling. It is not the only way. See R. v. Sitladeen, 2021 ONCA 303, at para. 45. Moreover, as Sitladeen makes clear, a finding of racial profiling does not require a finding that the officer is actually lying about why he or she singled out the accused. The focus is whether the court has, in all the circumstances, a basis to reject the officer’s evidence because the circumstances are indicative of racial profiling. The reality is, racial profiling is, more often than not, likely the result of unconscious bias.
[57] In Peart, Doherty J.A. addressed the issue of how to apply the correspondence test. He observed that courts have recognized a number of factual indicators in the research literature and in the caselaw that may support an inference that the police conduct in issue was racially motivated, notwithstanding the existence of an apparent, reasonable justification for that conduct. (Peart, at para. 96)
[58] Some of the “factual indicators” referenced in Peart were identified by Professor David N. Tanovich in his paper, Applying the Racial Profiling Correspondence Test, (2017) 64 Crim L.Q. 359; 2017 CanLIIDocs 4026. They include:
(a) Whether the police conduct took place in a context where experience has shown us that racial profiling manifests itself. The contexts include, but are not limited to: carding and street checks; using race as part of a criminal profile; assessing behaviour for the exercising of investigative detentions; and, exercising arrest and search powers;
(b) Whether the police purported to use a statutory or other investigative power or purpose as a pretext or ruse for a criminal investigation, leaving it open to conclude that what really drove the investigation was racialized stereotypes about crime. Whether a purported driving infraction is a pretext for a racially motivated stop depends on the court’s factual findings in any given case. See Peart, at para. 110. Whether a stop was a pretext stop involves an assessment of the totality of circumstances, including a consideration of such factors as:
• Whether the activity under investigation was consistent with the normal duties of the officer;
• Whether the officer observed a driving infraction before or after he or she began to follow the accused;
• Whether the officer had to go out of his or her way to make the stop;
• The make of the vehicle;
• The location of the call;
• Whether there was a call for back-up; and,
• The nature of the questioning of the individual and whether it is consistent with the purported reason for the stop. For instance, in a routine traffic stop, one would not expect the officer’s first question to be about why the driver is in a particular area.
(c) Whether the conduct in question is consistent with prior instances where racial profiling has been found. For instance,
• Where a decision is made to investigate a young, Black male driving an expensive car;
• Inconsistent evidence about whether the police noticed the race of the driver;
• Stopping a person where he or she appears “out of place”;
• Lying about the reason for the stop;
• An explanation for the investigation that lacks credulity or defies common sense;
• Asking questions about what the person is doing in the area; and,
• Where there are discrepancies or other irregularities in the officers’ notes or testimony.
Did Racial Profiling Play a Role Here?
[59] In all of the circumstances of this case, I reach the unfortunate conclusion that racial profiling played a significant role in the traffic stop of Mr. Douglas-Hodgson’s vehicle and his detention. In my view, the traffic stop – purportedly for a driving infraction – was a pretext to investigate a young, Black man for drug dealing.
[60] The suggestion that the traffic stop in issue was the result of an investigation into a Highway Traffic Act infraction, to be candid, defies credulity. The idea that four police officers, in two separate vehicles, pulled Mr. Douglas-Hodgson over for what amounts to not much more than an improper left turn is simply impossible for me to accept.
[61] I find that the Civic was stopped because D/Sgt. Pigeau had formed the impression that the driver of the Civic was involved in a drug transaction with Ms. Sheffield. That impression was formed, in my view, on the basis that Ms. Sheffield was known to be involved in the local drug subculture, the driver of the Civic had a notable interaction with Ms. Sheffield, and the driver of the Civic was a young, Black man.
[62] I do not accept D/Sgt. Pigeau’s evidence that he could only discern that the driver of the Civic “might have been Latino”. He was, in my view, unusually interested in Ms. Sheffield’s movements on the day in question. He was paying very close attention to her every move. He would have been acutely interested in the interaction she had with the driver of the Civic. He obviously had a clear view of the driver at some point because he was able to say that (1) the driver’s window was down when he was beside Ms. Sheffield at the intersection of West Road and King William Road; (2) the driver was a young male; and (3) the driver was “darker skinned”. He clearly saw the driver. And there would have been no mistake that Mr. Douglas-Hodgson is a Black man.
[63] D/Sgt. Pigeau and DC Wickware – two senior officers – did not, in my view, sit outside the apartment building on Meadow Park Drive to gather more evidence about potential poor driving. They were interested to see if there would be evidence of drug trafficking between the driver of the Civic and Ms. Sheffield.
[64] I accept PC Elliott’s evidence that when the call came into the station for uniformed officers to conduct a traffic stop, the identified basis for the stop was a drug investigation, not an HTA infraction. I accept his evidence for a number of reasons including:
(a) PC Elliott’s evidence is consistent with his contemporaneous notes. There is no reason apparent to me why he would make a note that the request was to stop the Civic for a drug investigation if that was not the case; and,
(b) I find that his notes – and more generally, his testimony at trial – are consistent with the probabilities of the case on the whole.
[65] PC Elliott made a further note about a brief conversation he overheard PC Heatherington have with Mr. Douglas-Hodgson when he first approached the driver’s side window of the Civic. According to PC Elliott, PC Heatherington asked Mr. Douglas-Hodgson what he was doing in Huntsville and what his connection was to Ms. Sheffield. PC Heatherington testified that it was “highly unlikely” that he would have asked Mr. Douglas-Hodgson how he knew Ms. Sheffield. Again, I can think of no reason why PC Elliott would make such a detailed note if it was not true. Frankly, it makes a lot more sense that things transpired in the way PC Elliott described.
[66] If pulling Mr. Douglas-Hodgson over had been a routine traffic stop, the questions posed to him by PC Heatherington would be most unusual.
[67] Moreover, the decision to remove both Mr. Douglas-Hodgson and Ms. Clarke from the Civic is a head scratcher, if in fact this was a routine traffic stop for bad driving. I appreciate that D/Sgt. Pigeau testified that, having observed what he thought was cocaine on the floor of Ms. Sheffield’s vehicle, the traffic stop had evolved into a drug investigation.
[68] Having said that, D/Sgt. Pigeau also accepted, in cross-examination, that he had no reason to suspect a drug connection between Ms. Sheffield and the occupants of the Civic. In other words, even if one were to accept that he had reasonable grounds to make the traffic stop for HTA offences, he did not have the necessary reasonable suspicion to lawfully make even a brief, investigative detention in relation to the purported drug investigation.
[69] In the result, I find it particularly odd that D/Sgt. Pigeau directed that both occupants of the Civic be removed and separated. Drivers are not generally removed from their vehicles and subjected to pat-down searches in the course of being ticketed for HTA offences. Nor are passengers directed out of vehicles during the course of a traffic stop when they have no jeopardy for the alleged driving offence(s).
[70] Something more was definitely going on in this instance. Not every Charter infringement necessarily includes an element of racial profiling. But in this instance, I believe the conclusion that racial profiling played at least some part in how events transpired is an inescapable one.
[71] I find that this was a drug investigation from the get-go; in other words, from the moment that D/Sgt. Pigeau observed the driver of the Civic speaking with Ms. Sheffield. From that moment on, D/Sgt. Pigeau believed that drug trafficking was afoot. That belief informs:
(a) why he continued to follow Ms. Sheffield and the Civic;
(b) why he set up surveillance on them when they stopped at the apartment building;
(c) why he – or DC Wickware at his direction – called for two uniformed officers to make a traffic stop;
(d) why he paid only cursory attention to Ms. Sheffield’s SUV;
(e) why PC Elliott made a note that they were to conduct a traffic stop as part of a drug investigation;
(f) why PC Heatherington asked Mr. Douglas-Hodgson why he was in Huntsville and what his connection to Ms. Sheffield was; and,
(g) why D/Sgt. Pigeau directed that both occupants of the Civic be removed and separated.
[72] At its highest and best, D/Sgt. Pigeau’s belief that a drug transaction was afoot could only be based on a hunch, given that he made no observations consistent with drug trafficking between the occupants of the Civic and Ms. Sheffield.
[73] I conclude that the hunch was based on a number of factors, which include the following:
(a) The fact that Ms. Sheffield was known to be involved in the local drug subculture;
(b) The Civic driver’s U-Turn when it encountered Ms. Sheffield’s vehicle on West Street;
(c) The communication between the driver of the Civic and Ms. Sheffield at a stop light on West Street; and,
(d) The fact that the driver of the Civic was a young, Black male.
[74] Factor (d) is the most significant one for the purposes of this case of course. I take judicial notice of the fact that there is a pervasive stereotype that young Black men are disproportionately involved in criminal activity, frequently drug dealing. I also take judicial notice of the fact that Huntsville is a predominantly white community. A young, Black male in Huntsville, communicating with a person known to the police to be involved in illicit drugs raised a red flag for D/Sgt. Pigeau. It did so, I find, because subconsciously, D/Sgt. Pigeau was influenced in his suspect selection by the pervasive stereotype I have just described.
Issue Two: Did the Police Breach Mr. Douglas-Hodgson’s s. 9 Charter Right?
[75] Pursuant to s. 9 of the Charter, everyone has the right not to be arbitrarily detained or imprisoned.
[76] The Supreme Court has identified the purpose of s. 9 as the protection of individual liberty against unjustified state interference. It limits “the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification.” See R. v. Le, 2019 SCC 34 at para. 25.
[77] A detention, including a traffic stop, is not arbitrary so long as it is authorized by a law that is, itself, not arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9 of the Charter. See R. v. Grant, 2009 SCC 32, at para. 54.
[78] The detention of Mr. Douglas-Hodgson evolved as the incident at the roadside played out. I have found that it began as an investigative detention in relation to alleged drug possession or trafficking. Once the police located the firearm, Mr. Douglas-Hodgson was arrested and detained on charges of drug trafficking and possession of a loaded, prohibited firearm.
[79] I conclude that both the investigative detention and the subsequent arrest were unlawful.
[80] Beginning with the investigative detention, as I noted earlier, even a brief investigative detention requires that the threshold standard of “reasonable suspicion” be met. In other words, a detention – even an investigative detention – cannot be based on a hunch. It must be premised on a reasonable suspicion that the detainee is implicated in criminal activity under investigation and that detention is necessary. See R. v. Mann, 2004 SCC 52, at para. 34.
[81] Here I find that the police lacked the reasonable grounds to detain Mr. Douglas-Hodgson. I reach that conclusion for two reasons. First, D/Sgt. Pigeau admitted, under cross-examination, that when he approached the Civic, he had no reason to believe that there was a drug connection between the two vehicles. Without such a connection, he had no reasonable grounds to suspect that the occupants of the Civic were in any way connected to the drugs observed in the SUV. Second, my conclusion that racial profiling played a role in suspect selection here defeats any assertion of reasonableness for the detention. See R. v. Dudhi, at para. 62.
[82] I turn next to the arrest.
[83] Section 495(1)(a) of the Criminal Code authorizes a police officer to arrest a person without a warrant where the officer believes, on reasonable grounds, that the person has committed or is about to commit an indictable offence.
[84] “Reasonable grounds to arrest” is a standard that contains both subjective and objective elements. The arresting officer must subjectively believe that the person has or is about to commit an indictable offence and those grounds must be objectively reasonable.
[85] The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, as seen from the perspective of a reasonable person with comparable knowledge, training and experience to the arresting officer. See R. v. Tim, 2022 SCC 12 at para. 24. In other words, “a reasonable person, standing in the shoes of the police officer, would be able to see the grounds for arrest.” See R. v. Brown, 2012 ONCA 225 at para. 14.
[86] I am not satisfied that the arrest of Mr. Douglas-Hodgson for the possession of or trafficking in Xanax was lawful. The grounds to arrest came entirely from D/Sgt. Pigeau. PC Heatherington testified that he was reliant on D/Sgt. Pigeau’s grounds to detain Mr. Douglas-Hodgson. He had no subjective grounds of his own. And I have found that D/Sgt. Pigeau’s grounds to detain and, ultimately, to arrest Mr. Douglas-Hodgson on drug charges was tainted by racial profiling.
[87] I am further unsatisfied that the arrest of Mr. Douglas-Hodgson for possession of a loaded, prohibited firearm was lawful. For reasons I will explain shortly, I find that the pat-down search at the roadside was unlawful. During that unlawful search, PC Heatherington located a loaded, prohibited firearm. He arrested Mr. Douglas-Hodgson for possession of that weapon.
[88] Prior to December 1, 2023, one might reasonably have argued that PC Heatherington had subjective grounds to arrest Mr. Douglas-Hodgson for possession of the firearm based on the discovery of the weapon in Mr. Douglas-Hodgson’s satchel. On might further have argued that those grounds were objectively reasonable. In R. v. Zacharias, 2023 SCC 30, released a week ago, however, a majority of the Supreme Court instructed that unlawfully obtained evidence must be excised from the circumstances that inform an arresting officer’s reasonable grounds. In the circumstances of this case, when the discovery of the firearm is excised, PC Heatherington’s reasonable grounds to arrest Mr. Douglas-Hodgson for possession of a loaded, prohibited weapon evaporate.
[89] In the result, both the arrest for possession of a controlled substance and the arrest for possession of a loaded, prohibited weapon were unlawful.
[90] In Charter litigation, the onus is generally on the party asserting a breach to establish the breach on a balance of probabilities. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. I am satisfied that Mr. Douglas-Hodgson has established, on a balance of probabilities, that his s. 9 right was infringed in the circumstances of his detention.
[91] Given my conclusion that the traffic stop was motivated, at least in part, by racial profiling, I conclude that it further breached Mr. Douglas-Hodgson’s Charter rights under s. 7 (his right to life, liberty and security of the person) and s. 15 (his right to equality before and under the law) though I think it unnecessary to engage in a detailed analysis of those sections in this ruling.
Issue Three: Did the Police Breach Mr. Douglas-Hodgson’s s. 10 Charter Rights?
Section 10(a)
[92] Section 10(a) of the Charter provides that everyone has the right, on arrest or detention, to be informed promptly of the reasons therefore.
[93] “Detention” for s. 10(a) purposes, includes an investigative detention. See Mann, at para. 21. It also includes a roadside stop. See R. v. Cole, 2017 ONCJ 83 at para. 17.
[94] “Promptly” means immediately. See R. v. Nguyen, 2008 ONCA 49 at para. 20.
[95] The right to be informed of the reason for one’s arrest is based on the common law principle that a person is not required to submit to an arrest unless he or she is aware of the reason for it. See R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869.
[96] That said, s. 10(a) also works in conjunction with s. 10(b) which provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. A detainee can only meaningfully exercise his right to counsel if he knows the extent of his jeopardy. See R. v. Nguyen, at para. 20. Meaningfully exercising one’s right to counsel involves the initial determination about whether the detainee will consult with counsel but also engages the ability to receive meaningful and informed advice relative to the jeopardy one faces.
[97] Crown and defence counsel agree that Mr. Douglas-Hodgson was detained, for purposes of s. 10, from the outset of the traffic stop.
[98] I find that Mr. Douglas-Hodgson was not immediately told the reason why he was pulled over and detained.
[99] PC Heatherington testified that when he first pulled over Mr. Douglas-Hodgson, he did not know the reason why he was doing so. If that was the case, he obviously would have been in no position to explain it to Mr. Douglas-Hodgson.
[100] That said, I have found that PC Heatherington was informed that this was a drug investigation and that he knew that when he pulled the Civic over. But he did not convey that information to Mr. Douglas-Hodgson. Instead, he asked what Mr. Douglas-Hodgson was doing in Huntsville and what his connection was to Ms. Sheffield. He then asked for Mr. Douglas-Hodgson’s license, registration and insurance, which he proceeded to run through the computer system in his police car. He then had a discussion with D/Sgt. Pigeau to obtain instructions. He was told to remove Mr. Douglas-Hodgson from the vehicle for a drug investigation.
[101] PC Heatherington returned to the Civic. Again, he did not advise Mr. Douglas-Hodgson why he was being detained. He asked that Mr. Douglas-Hodgson get out of the car. Mr. Douglas-Hodgson, well within his rights, asked why? Only then did PC Heatherington tell Mr. Douglas-Hodgson that he was being detained for a drug investigation.
[102] I do not know how much time elapsed between the traffic stop and the point at which Mr. Douglas-Hodgson was advised of the reason for his detention. I do know, however that Mr. Douglas-Hodgson was not advised immediately of the reasons for his detention.
[103] In the result, I find that he has established a breach of his s. 10(a) right.
Section 10(b)
[104] It is well-settled that s. 10(b) imposes three distinct duties on the police when they arrest or detain a person:
(i) To inform the person of his or her right to retain and instruct counsel without delay (the informational duty);
(ii) To provide the person with a reasonable opportunity to speak to counsel, should he or she indicate a desire to do so (the implementational duty); and,
(iii) To refrain from eliciting evidence from the person until he or she has had the reasonable opportunity to speak to counsel (the duty to hold off).
See R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at para. 17. See also R. v. Taylor, 2014 SCC 50 at para. 21 et. seq.
[105] The informational duty arises immediately upon arrest or detention. Similarly, the duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. See R. v. Taylor, at para. 24.
[106] I have concluded that the police breached all three components of Mr. Douglas-Hodgson’s s. 10(b) right.
The Breach of the Informational Component
[107] As I noted, there is agreement between counsel that Mr. Douglas-Hodgson was detained from the outset of the traffic stop.
[108] The point at which the police were legally obligated to provide Mr. Douglas-Hodgson with his 10(b) right to counsel depends on the purpose for the traffic stop. Though traffic stops are generally considered detentions within the meaning of s. 10 of the Charter, a driver’s s. 10(b) right is effectively suspended during a brief, lawful HTA stop. Appellate jurisprudence has concluded that the exercise of s. 10(b) rights is incompatible with brief roadside detentions carried out for road safety purposes. See R. v. Orbanski, 2005 SCC 37. See also R. v. Harris, 2007 ONCA 574, at para. 47.
[109] I have found that the purported HTA purpose for Mr. Douglas-Hodgson’s stop was a pretext. The stop was to further a drug investigation. In the result, I find that Mr. Douglas-Hodgson’s s. 10(b) right was triggered at the outset of the stop. He was entitled not only to be advised by the police of the purpose for the stop but also immediately advised of his right to counsel.
[110] I am not entirely clear on the precise time that the traffic stop was initiated. Both PC Heatherington and PC Elliott testified that they got the call to assist with the traffic stop at 1:47 p.m. PC Elliott said that it was not far from the detachment to the intersection where the traffic stop occurred. I infer from that evidence that it was probably about 1:50 p.m. when the traffic stop occurred.
[111] By 2:00 p.m., Mr. Douglas-Hodgson had been removed from his car, searched and arrested for possession of a prohibited firearm. He was placed in the back of PC Heatherington’s police vehicle.
[112] It was 2:13 p.m. before PC Heatherington read Mr. Douglas-Hodgson his right to counsel. He could offer no explanation for why he waited 13 minutes from the time of the arrest to the time that he provided Mr. Douglas-Hodgson with his right to counsel. He conceded that the delay was too long.
[113] I agree with PC Heatherington. Mr. Douglas-Hodgson should have been told not only the reason for the stop, when first approached by PC Heatherington, but also given his right to counsel. Even if the right to counsel was only triggered at the moment of the arrest for possession of the handgun, a proposition I do not accept, the 13 minute delay in providing Mr. Douglas-Hodgson with his right to counsel failed to meet the immediacy requirement of s. 10(b).
The Breach of the Implementational Component
[114] Mr. Douglas-Hodgson said he would decide if he wished to consult with counsel when they got to the police station. An answer like that makes the s. 10(b) analysis more difficult, given its equivocal nature. It is neither a positive nor a negative response to the question of whether he wished to contact counsel.
[115] Taking a purposive analysis to the application of s. 10(b), I find that Mr. Douglas-Hodgson’s answer that he would “decide at the station” required that he be asked, upon arrival at the station, if he wished to exercise his right to counsel. The right to counsel has been described as a “lifeline” for detained persons. See R. v. Rover, 2018 ONCA 745, at para. 45. It enables them to obtain legal advice and it helps level the playing field between the state and the detainee. Mr. Douglas-Hodgson was in serious legal jeopardy and was constitutionally entitled to consult with counsel without delay. For these reasons I think it was important that the police followed up with his indication that he would decide whether he wished to consult with counsel when they reached the station.
[116] Mr. Douglas-Hodgson was not, however, asked about whether he wished to speak to counsel when they arrived at the station. Instead, he was strip searched. It was only when the strip search was completed that Mr. Douglas-Hodgson raised the issue of his right to speak to counsel. The police eventually made a call to duty counsel on his behalf at 3:24 p.m., roughly 90 minutes after his initial detention.
[117] The law appears to be settled that a detainee is entitled to consult with counsel before a strip search is conducted. See R. v. McGuffie, 2016 ONCA 365, at paras. 22 and 68. See also R. v. Tonkin, 2020 ONSC 5206 at para. 28.
[118] The police should have followed up with Mr. Douglas-Hodgson with respect to his right to counsel when they arrived at the station. They did not. They proceeded instead to gather further evidence from him.
[119] Section 10(b) entitles accused persons to retain and instruct counsel without delay, upon arrest. The term “without delay” means immediately. See R. v. Suberu, 2009 SCC 33. Ninety minutes post-detention is a far cry from immediate.
[120] In my view, the police breached the implementational component of Mr. Douglas-Hodgson’s s. 10(b) right.
The Failure to Hold Off
[121] It will be relatively obvious, based on my findings to this point in the ruling, that I have concluded that the police failed to hold off eliciting evidence from Mr. Douglas-Hodgson until after he had been given an opportunity to speak to counsel.
[122] There are two significant breaches of the failure to hold off here.
[123] The first occurred immediately after the traffic stop. Recall that I have found the stop to have been motivated by D/Sgt. Pigeau’s intention to conduct a drug investigation. To that end, PC Heatherington immediately asked Mr. Douglas-Hodgson what he was doing in Huntsville and how he was connected to Ms. Sheffield. Those questions ought not to have been asked until the requirements of ss. 10(a) and (b) had been satisfied.
[124] The second involved the strip search that was conducted before Mr. Douglas-Hodgson had been given the opportunity to speak to counsel. The police conducted that search and located concealed drugs on Mr. Douglas-Hodgson’s person.
Issue Four: Was Mr. Douglas-Hodgson’s s. 8 Right Breached?
[125] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.
[126] Privacy is the dominant organizing principle of s. 8. See R. v. Tessling, 2004 SCC 67, at para. 19. Section 8 is a shield against unjustified state intrusion on personal privacy. See R. v. Kang-Brown, 2008 SCC 18, at para. 8.
[127] In my view, the police unjustifiably intruded on Mr. Douglas-Hodgson’s personal privacy in three ways, contrary to his s. 8 right. The first intrusion relates to the pat-down “safety” search at the side of the road. The second relates to the strip search. The third relates to the search of his vehicle.
The Pat Down Search
[128] A requirement of prior authorization, usually in the form of a warrant, is generally a pre-requisite to a valid search and seizure where an accused person’s reasonable expectations of privacy will be impacted by the search. See Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.
[129] There is no dispute in this case that Mr. Douglas-Hodgson had a reasonable expectation of privacy in his body and in his car.
[130] There is also no dispute that the police did not have a warrant to conduct any of the impugned searches. Instead, they relied on their common law powers to conduct searches incident to an investigative detention and to an arrest.
[131] For a warrantless search to be valid, three conditions must be met: (1) the search must be authorized by law; (2) the law itself must be reasonable; and (3) the manner in which the search was conducted must be reasonable. See R. v. Collins. The Crown bears the onus of establishing, on a balance of probabilities, that the warrantless searches met the Collins criteria. See Mann, at para. 36.
[132] When the police conducted a pat-down search of Mr. Douglas-Hodgson, they were engaged in an investigative detention. PC Heatherington testified that Mr. Douglas-Hodgson was not under arrest at the time of the pat-down search.
[133] Canadian law recognizes a power of search incidental to an investigative detention. A brief, protective pat-down search may be conducted by a police officer where he or she has reasonable grounds to believe that his or her safety is at risk. That said, the Collins factors must still be satisfied. Both the detention itself, as well as the pat-down search, must be conducted in a reasonable manner.
[134] I have found that the investigative detention of Mr. Douglas-Hodgson was unlawful. The police did not have reasonable grounds to detain him given that the detention was tainted by racial profiling. Crown counsel agrees that, in those circumstances, the pat-down search conducted incidental to the unlawful detention cannot be lawful. It was conducted in breach of Mr. Douglas-Hodgson’s s. 8 right.
The Strip Search and the Search of Mr. Douglas-Hodgson’s vehicle
[135] Strip searches are generally performed as a search incident to arrest. That was the case here.
[136] Similarly, the search of Mr. Douglas-Hodgson’s vehicle following his arrest was conducted as incidental to that arrest. I leave aside the question of whether D/Sgt. Pigeau’s request for Ms. Clarke to show him her Xanax constituted a search of Mr. Douglas-Hodgson’s car as that issue was not fully argued.
[137] Like searches incident to investigative detentions, searches incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable. See R. v. Golden, 2001 SCC 83, at para. 84.
[138] Consistent with Collins, for a search incident to arrest to be valid, three conditions must be met: (i) the arrest must be lawful; (ii) the search must be conducted as an incident to the lawful arrest; and, (iii) the manner in which the search is carried out must be reasonable. See R. v. Stillman, [1997] 1 S.C.R. 67, at para. 27.
[139] Earlier I concluded that the arrest of Mr. Douglas-Hodgson was unlawful. Consequentially, the strip search and the search of the car were both unlawful.
Issue Five: What, if Any, Remedy Is Appropriate?
[140] It may be helpful, before I engage in a discussion of an appropriate remedy, to summarize the Charter breaches I have found. They are:
(a) A breach, at the time of the investigative detention, of Mr. Douglas-Hodgson’s s. 9 right not to be arbitrarily detained. A significant aspect of the s. 9 breach relates to my conclusion that Mr. Douglas-Hodgson was selected for investigation in part on the basis of racial profiling. In the result, his s. 7 and 15 rights were breached as well;
(b) A further breach of s. 9 at the time of the arrest for drug trafficking and possession of a loaded, prohibited weapon;
(c) A breach of Mr. Douglas-Hodgson’s s. 10(a) right to be informed promptly of the reasons for his detention;
(d) Multiple breaches of Mr. Douglas-Hodgson’s s. 10(b) right to counsel. In particular, I found breaches of the informational and implementational components of the 10(b) right as well as a breach of the duty to hold off; and,
(e) Three breaches of Mr. Douglas-Hodgson’s s. 8 right to be free from unreasonable search and seizure.
[141] Section 24(2) of the Charter provides as follows:
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.
[142] Based on the identified Charter breaches, the defence seeks to exclude the drugs seized from Mr. Douglas-Hodgson’s car and from his person, as well as the gun seized from his person.
[143] There are two components to determining whether evidence must be excluded under s. 24(2) of the Charter. First, there is the threshold requirement that the impugned evidence must have been obtained in a manner that infringed or denied guaranteed rights or freedoms. If that threshold is established, the court will engage in an evaluative analysis to determine if admitting the evidence will bring the administration of justice into disrepute. See R. v. Beaver, 2022 SCC 54, at para. 94.
The Threshold – “Obtained in a Manner”
[144] Whether evidence was obtained in a manner that infringed the Charter rights of an accused person depends on the nature of the connection between the breach and the impugned evidence. See R. v. Lafrance, 2022 SCC 32, at para. 189 and R. v. Beaver, at para. 95.
[145] It is settled law that there need not be a causal connection between the breach and the impugned evidence to meet the “obtained in a manner threshold”. See R. v. Pino, 2016 ONCA 389, at para. 72.
[146] There is no serious dispute in this case that the impugned evidence was obtained in a manner that infringed Mr. Douglas-Hodgson’s Charter-protected rights. The gathering of the impugned evidence is temporally, causally and contextually connected to the various Charter breaches I have described.
[147] I will accordingly proceed to the evaluative analysis.
The Evaluative Analysis
[148] The evaluative analysis engages the court in a consideration of whether the impugned evidence should be excluded, on the basis that its admission would bring the administration of justice into disrepute.
[149] The test to be applied under the evaluative stage of the s. 24(2) analysis was established by the Supreme Court in R. v. Grant. Jamal J. recently summarized the test in Beaver, at paras. 116-117, observing that the substance of the analysis is the assessment of the impact that admission of the impugned evidence would have on the long-term reputation of the administration of justice. Three lines of inquiry guide that assessment: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits.
[150] I will consider these lines of inquiry in turn.
(i) The Seriousness of the Breaches
[151] This first line of inquiry engages the court in a consideration of the need to distance itself from the Charter-infringing conduct of the police. Obviously, the more egregious the breach, the greater the need for the court to dissociate itself from it.
[152] The court must situate the offending conduct of the police on a scale of seriousness. At the lower end are the less serious cases involving inadvertent, technical or minor breaches, or those that reflect an understandable mistake. At the higher end are instances of police misconduct that constitute wilful or reckless disregard for Charter rights, a systemic pattern of infringing conduct, or a major departure from Charter standards. See Beaver, para. 120.
[153] Complicating the analysis at this first stage is the fact that a number of the Charter breaches I have found are independent instances of state misconduct while others are what the Supreme Court characterized, in Zacharias, as “consequential”. The characterization is important because, as the majority held in Zacharias, consequential breaches must be factored into the first and second stages of the s. 24(2) analysis but are unlikely to significantly impact the overall seriousness of Charter-infringing state conduct.
[154] I note that the Supreme Court was divided, 3-2, on the correct approach to the assessment of the seriousness of consequential breaches. The majority, which consisted of Justices Rowe, O’Bonsawin and Côté, held that the “focal point for evaluating seriousness is likely to remain the initial breach” rather than a consequential arrest or other unremarkable consequences that follow the arrest. See Zacharias, paras. 52-53.
[155] The minority, consisting of Justices Martin and Kasirer, disagreed. They reasoned that all state conduct that violates the Charter must be weighed carefully in the balancing under s. 24(2). Consequential breaches may add, they said, to the cumulative measure of seriousness. See Zacharias, para. 115.
[156] I am bound, of course, to follow the majority decision. Accordingly, I will take a moment to identify which, of the breaches I have found, are independent instances of state misconduct and which are consequential.
[157] The initial roadside detention was obviously an independent breach. I would say the same of the s. 10(a) and 10(b) breaches. But the pat-down search, the arrest, the subsequent strip search and the search of the vehicle were breaches that the majority in Zacharias would characterize as consequential. For instance, as Justice Côté indicated, in concurring reasons, an arrest made on the basis of clear and reliable evidence of a crime is not misconduct from which the court should dissociate itself. See Zacharias, para. 102.
[158] Though the identification of breaches as independent misconduct as opposed to consequential is not terribly difficult, this remains a difficult case in which to apply the majority’s reasoning in Zacharias to the s. 24(2) analysis.
[159] I find that the manner in which Mr. Douglas-Hodgson was treated reflected an almost complete indifference to his Charter rights. His rights were breached at every step of the process. He was selected as a target on the basis of racial profiling. He was arbitrarily detained. He was not promptly provided with an indication as to why he was detained. He was unlawfully searched. He was not promptly notified of his right to counsel. His right to counsel was not implemented without delay. And he was strip searched before he had a chance to speak to counsel.
[160] I appreciate that the majority held, at para. 59 of Zacharias, that “[i]t will not be necessary or useful in every case to determine whether the sequence of state conduct represents a ‘consequential’ breach”. Perhaps this is the type of case where it is neither necessary or useful to do so. Having said that, until a body of jurisprudence develops that applies the reasoning in Zacharias, I consider it safest to keep my focus on the independent breaches at this first stage of the analysis.
[161] To maintain any integrity and legitimacy whatsoever, the court must unequivocally distance itself from racial profiling. In my view, the initial s. 9 breach, which involved racial profiling, tends, on its own, to situate this case towards the more serious end of the spectrum, even though I am satisfied that the racial profiling engaged in here was not done consciously. Racial profiling, whether engaged in consciously or unconsciously, will always be conduct that the court will strongly wish to distance itself from.
[162] The s. 10(a) and 10(b) breaches add to that already heightened level of seriousness. PC Heatherington began to solicit evidence against Mr. Douglas-Hodgson just as soon as he rolled down his window. While the 13-23 minute delay in providing Mr. Douglas-Hodgson with his right to counsel was not particularly serious, the failure to implement that right to counsel for 90 minutes was egregious, particularly in light of the fact that he was strip-searched in the interim.
[163] In my view, the seriousness of the breaches strongly points to an exclusion of the impugned evidence.
(ii) The Impact of the Breaches on the Charter-Protected Interests of Mr. Douglas-Hodgson
[164] The second Grant line of inquiry focuses on the impact of the breaches on the Charter-protected interests of Mr. Douglas-Hodgson. Again, the court is called upon to situate the impact on a spectrum ranging from “fleeting and technical” to profoundly intrusive”. The greater the impact on an accused person’s protected interests, the greater the risk that admitting the evidence will signal to the public that Charter rights are of little actual value, thus breeding cynicism. See Beaver, at para. 123.
[165] The majority in Zacharias instructed that trial judges must consider the impact of all of the breaches on the accused person’s Charter-protected rights. This is the case whether or not certain breaches may be characterized as “consequential”. See Zacharias, para. 57.
[166] To assess this second of the Grant factors, the court is directed to consider the interests engaged by the right that has been infringed and to examine the degree to which the breach impacted those interests. See Grant, at para. 77.
The s. 9 Breaches
[167] As I noted earlier, s. 9 of the Charter engages Mr. Douglas-Hodgson’s individual freedom from unjustified state interference.
[168] I begin with the observation that for Mr. Douglas-Hodgson, his family and, frankly, any other Black members of our community, regardless of the outcome of this case, the circumstances here will inevitably engender cynicism. Mr. Douglas-Hodgson was not treated lawfully or fairly and a significant contributing reason for that is because he is a young Black man.
[169] Being targeted for criminal investigation on the basis of the colour of one’s skin seriously impacts on an individual’s sense of justice, of fairness, of equality and of dignity. It is demoralizing and humiliating. It undermines many of the foundational principles on which Canadians pride themselves.
[170] I find that the impact of the Charter-infringing conduct on Mr. Douglas-Hodgson’s s. 9 right is significant.
[171] Though I have elected not to engage in a detailed analysis under ss. 7 and 15 of the Charter, I find, for the reasons just expressed with respect to s. 9, that Mr. Douglas-Hodgson’s protected interests under these further sections were significantly impacted by the presence of racial profiling.
The s. 10 Breaches
[172] Mr. Douglas-Hodgson was subsequently deprived of arguably the most important right on detention: the right to retain and consult counsel. The importance of that right, particularly to a person in serious jeopardy like Mr. Douglas-Hodgson, cannot be overstated. The delay in advising him of his right to counsel was problematic, though at 13-23 minutes or so, did not seriously impact on his s. 10(b) right. But the failure to implement that right for 90 minutes was, as I said, egregious. And it seriously impacted on Mr. Douglas-Hodgson because he was subjected to an intrusive strip search in the interim. That search, itself unlawful, may have been avoided had Mr. Douglas-Hodgson been afforded the opportunity to speak to counsel and had he been advised to deliver up any contraband on his person.
[173] The breach of s. 10(a) had, in my view, a less serious impact on Mr. Douglas-Hodgson’s Charter-protected rights. It was only for a relatively brief period of time that Mr. Douglas-Hodgson was not made aware he was being investigated for drug-related offences.
The s. 8 Breaches
[174] In Grant, at para. 78, the Supreme Court held that an “unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.”
[175] In this instance, I find the search of the vehicle to be at the low end of the spectrum of seriousness. There is a reduced expectation of privacy in a vehicle on a public highway.
[176] I situate the pat-down search in the moderate range of the seriousness spectrum. Pat-down searches during detentions are not particularly intrusive and, in my view, would be expected by most detainees. That said, the police did obtain significant evidence against Mr. Douglas-Hodgson as a result of the unlawful pat-down.
[177] Finally, I situate the strip search at the high end of the spectrum. It had a significant impact on Mr. Douglas-Hodgson’s privacy, liberty and dignity interests and led to the discovery of further evidence.
Conclusion
[178] Considering the cumulative impact of the numerous identified breaches on Mr. Douglas-Hodgson’s Charter-protected interests, I conclude that this second Grant factor also strongly points towards exclusion of the impugned evidence.
(iii) Society’s Interest in the Adjudication of the Case on Its Merits
[179] The third line of the Grant inquiry focuses on societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence. The court is directed to look at factors such as the reliability of the evidence, its importance to the prosecution’s case, and the seriousness of the offence at issue. See Beaver, at para. 129.
[180] Mr. Douglas-Hodgson’s factual guilt is not in doubt. He was in possession of a loaded, prohibited firearm, which is a very serious offence. The combination of drugs and guns has been described by many jurists as “toxic”. It is a scourge on our communities. There is a strong public interest in detecting and prosecuting any individual compromising public safety by carrying a loaded handgun in public.
[181] The impugned evidence is undeniably reliable. And it is undeniably critical to the Crown’s case against Mr. Douglas-Hodgson.
[182] This third Grant factor strongly points towards admission of the evidence.
(iv) The Balancing
[183] The final step in the s. 24(2) analysis engages the court in a weighing of the results of the three lines of inquiry. The goal is not a retrospective punishing of the police for misfeasance but rather “to address systemic concerns involving the broad impact of admitting the evidence on the long-term repute of the justice system.” See Beaver, para. 133.
[184] As Jamal J. instructed in Beaver, at para. 134, it is the cumulative weight of the first two lines of inquiry that must be balanced against the third line of inquiry. Where those first two inquiries point strongly towards exclusion, the third inquiry will seldom tip the scale towards admissibility. See Lafrance, at para. 90. See also R. v. McGuffie, 2016 ONCA 365 at paras. 62-63.
[185] I have found that the first two lines of inquiry strongly point towards exclusion. It is relatively rare to exclude a handgun from evidence, notwithstanding conduct by state actors that infringes upon the Charter-protected rights of an accused person. As I said, there is no doubt that Mr. Douglas-Hodgson is factually guilty of carrying a loaded, prohibited firearm in public. The gun is real evidence. It is reliable evidence. And its exclusion will mean the end of the prosecution.
[186] In the circumstances here, however, the nature and extent of the breaches are such that a failure to exclude the impugned evidence seized from Mr. Douglas-Hodgson would, in my view, not only bring the administration of justice into disrepute, but would serve to breed cynicism about the value of Charter-protected rights in this country.
[187] I conclude, therefore, that the impugned evidence, including the drugs seized from Mr. Douglas-Hodgson’s car and from his person, as well as the gun seized from his person, must be excluded under s. 24(2) of the Charter.
[188] In light of this result, and in accordance with the terms of the Agreed Statement of Fact filed by counsel, acquittals will be entered on all counts.
[189] It is unnecessary, in the circumstances, to examine the request for a stay of proceedings.
C. Boswell J.
Released: December 8, 2023