COURT FILE NO.: CR-22-0369-00

DATE: 2023 11 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

-and-

TRISTEN BAILEY (Applicant)

COUNSEL: David Quayat and Nadia Klein for Public Prosecution Service of Canada Sayed Hafizi, counsel for Tristen Bailey

HEARD: APRIL 25 and JULY 4, 2023

DECISION ON SECTION 9 AND 10(B) APPLICATION

D. E. Harris J.:

[1] The police executed a search warrant on the house at 34 Nanwood Drive, Brampton as part of an investigation into Chynel Miller-Moore and Keashawn Harper-Grant on November 25, 2020. The applicant Mr. Bailey was not targeted in the search, but the police knew he lived in the house. He was present during the execution of the warrant. Fentanyl and firearm ammunition were found and Miller-Moore, Harper-Grant and Mr. Bailey were each charged.

[2] Mr. Bailey is charged with possession for the purpose of trafficking of 22 grams of fentanyl and simple possession as well. He applies under the Charter to exclude the fruits of the search as against him.

[3] The issue raised revolves around the police treatment of a non-targeted resident of a home during the execution of a search warrant. There are two aspects of the police action which are challenged, both principally implicating section 9 of the Charter: 1. The Halton Police Tactical squad was brought in to execute the warrant at 34 Nanwood Drive. Mr. Bailey was handcuffed by PC Proulx. The defence argues that there were no grounds justifying the handcuffing and that it was an arbitrary detention under section 9 of the Charter. Because he was detained, the applicant also argues that his s. 10(b) right to counsel was violated; and 2. Custody of Mr. Bailey was taken from PC Proulx by Peel Regional Police (PRP) Officer Reid. He arrested Mr. Bailey for possession of a controlled substance. Mr. Bailey argues that the arrest was unlawful and arbitrary and a further violation of section 9.

THE HANDCUFFING OF MR. BAILEY

[4] The entry into the residence at 34 Nanwood Drive was dynamic. Officer Proulx held the door open for the other tactical officers and then followed them. He was the trailing officer, the last into the home. Officer Proulx was not able to say how many officers were involved in the search, but I conclude that in an operation of this kind, there must have been quite a few.

[5] The police knew that Bailey lived in the Nanwood residence as he had been observed by surveillance officers there and was photographed in the days before the execution of the search warrant. As Officer Lamarre testified, Bailey was referred to in the “run sheets”—i.e. police planning for the search—and had come up during briefings as someone who lived at Nanwood.

[6] At the top of the stairs, Officer Proulx found Mr. Bailey lying prone in a hallway. I infer that the other tactical officers had commanded him to get down on the floor as they passed through. Officer Proulx commented that the tactical officers tend to go through a residence “like water” while executing a warrant. Proulx identified and then handcuffed Bailey with plastic flexicuffs and seated him on the bed in the nearest bedroom. He was with him for a few minutes until PRP Officer Reid entered the room. Officer Proulx then left.

[7] Officer Proulx’s evidence was that the policy of his force is to handcuff everyone present while executing a warrant. He had done that in all his previous searches over the previous 8 years. It was not clear how many searches that was but it is likely that it was not a small number. Officer Proulx did not attest to specific grounds to handcuff Bailey apart from the policy. In fact, although Proulx did not review it beforehand, it was brought out during this hearing that the operational plan for the search acknowledged that Bailey lived in the house and that he was “not arrestable.”

[8] The Crown obtained the Halton Regional Police policy after this hearing was complete (Halton Regional Police Service Policy Directive, Issue Number OPS-020, p 10 of 14 at 11(c)). The pertinent part of it states “[o]fficers conducting the search shall…immediately secure all persons present” (emphasis added). Clearly, “secure” does not necessarily mean to handcuff. The evidence was that Mr. Bailey was fully co-operative. No reason was given or apparent for the handcuffing apart from the policy. Officer Proulx misinterpreted and misapplied the policy. The Crown labelled Officer Proulx’s mistaken reliance on the police policy as “concerning evidence.” I agree with this sentiment.

[9] There can be no dispute that police officers executing a search warrant may need to control the scene both for safety reasons and for the purpose of preserving evidence. This general power is not properly characterized as an investigative detention although there will be circumstances in which additional grounds may lead to such a detention. Rather, as the jurisprudence makes clear, the power to control the scene is better viewed as an ancillary power which stems from general police duties while in the execution of a search warrant: R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980 at para. 42 per Dickson C.J.C., para. 70 per Wilson J.; R. v. Kirby, 2001 18488 (MB PC), [2001] 10 W.W.R. 750 (Man. Prov. Ct.) at paras 79-83; Levitz v. Ryan, 1972 399 (ON CA), [1972] 3 O.R. 783 (C.A.); and Horyski v. H. (R.), 2006 34889 (MB PC), 210 Man. R. (2d) 1 (Prov. Ct.) at para. 106.

[10] Only investigative detention or lawful arrest can justify depriving individuals of their liberty by handcuffing. In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, Justice Iacobucci said at paras. 34-35,

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference.

While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

(Emphasis added)

[11] There was no hint in the evidence or argument that there was any necessity or justification for the handcuffing. Officer Proulx’s handcuffing as a routine everyday procedure during residential searches constitutes an arbitrary detention under s. 9 of the Charter. A deprivation of liberty by the handcuffing of all occupants in every instance in which a search warrant is executed is clearly not authorized by law.

[12] The Crown conceded breaches of section 9 and 10(b) in their written submissions. This is an instance which exemplifies the warnings in Mann and in the other cases. While Mann cautioned against investigative detentions turning into a de facto arrest, in this situation, a common law right to control searched premises turned into a de facto arrest. That is significantly more serious. The situation is reminiscent of R. v. Gogol (1994), 1994 19055 (ON CJ), 27 C.R. (4th) 357 (Ont. Prov. Div.), where an elderly woman was handcuffed for about two hours. Justice Fairgrieve said at para. 42,

… recognizing that the ultimate burden to establish a Charter infringement is on the accused, it is impossible to characterize Ms. Gogol’s detention by being handcuffed as either “reasonable” or a “necessary part of the search authorized”.

She was detained, I find, merely because her getting up from the chair or making comments about the documents being examined at the dining table were annoying to the officers, and it was simply more convenient for them to restrain her by placing her in handcuffs. This amounted, in my view, to an arbitrary detention of the kind proscribed by s. 9 of the Charter.

Also see paras. 38-40.

[13] The degree of restraint imposed by handcuffs is not minimal. I agree with what Justice Nakatsuru said on the subject in R. v. Campbell, 2016 ONCJ 236, at para. 124: “… handcuffing is a serious interference with the liberty and dignity of the detainee and is normally reserved for the person who has been placed under arrest.” Preventing the use of a person’s hands is not a minor intrusion into bodily integrity. There is no justification for handcuffing someone who it not at the least under investigative detention.

[14] General policies that are used with no regard to the specific evidence known to the police, like the one applied by Officer Proulx, often infringe the Charter: see e.g. R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 3. It is easy and convenient to have an invariable policy that can be implemented in every instance. Little thought is required. But the Charter rights of individuals generally do not permit categorical restrictions with no attention to the prevailing facts.

[15] In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, there was a police protocol to delay the giving and implementation of the right to counsel when the police intended to obtain and then execute a search warrant. Justice Doherty criticized this automatic default position, saying,

32 … On the evidence of the police, there was no need to consider the specifics of this case. For them, the decision to arrest the appellant before seeking the search warrant dictated that the appellant would not be allowed to contact a lawyer until the warrant was executed.

33 In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. … The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person’s right to speak with counsel for several hours.

[16] Also see LaForest J., dissenting in R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, at para. 70.

[17] For these reasons, it must be concluded that Mr. Bailey’s s. 9 and s. 10(b) rights were violated by the handcuffing.

THE ARREST OF MR. BAILEY

[18] When a PRP officer entered the bedroom, Officer Proulx left promptly. According to both of them, there was no conversation. On his way out, Officer Proulx heard the officer arrest Mr. Bailey and give him his right to counsel. It is reasonably clear that the overlap between the officers was momentary. The PRP officer was Officer Reid. He testified on this hearing that he believed that because he was handcuffed, Mr. Bailey had already been arrested. That was a reasonable conclusion. Yet, he arrested him again on fresh grounds for simple possession of a controlled substance. He did not recall seeing the operational plan specifying that Bailey was not arrestable.

[19] Officer Reid testified that he did not know whether the room Mr. Bailey was in was his. But he assumed that he was in care and control of what was in the room. These were the grounds for arrest articulated by Officer Reid:

There was a digital scale on a TV stand in the room;

There were two phones near Mr. Bailey, one on the floor, one on the bed where he was sitting. Officer Reid testified that cell phones, particularly disposable phones like one of the phones, are commonly used in drug trafficking; and

The police were executing a Controlled Drug and Substances search warrant.

[20] The Supreme Court held in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, that there must be subjectively held and objectively reasonable grounds to support a lawful arrest. In R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 24 the Supreme Court summarized the objective ground:

The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.

[21] In my view, the arrest effectuated by Officer Reid was not clothed in reasonable grounds in the objective sense. First, the digital scale and the two phones in Mr. Bailey’s proximity were dependant on there being reasonable grounds associating Mr. Bailey with the bedroom. But Officer Reid acknowledged that he did not know whether the bedroom was Mr. Bailey’s. His further testimony that he believed that Mr. Bailey was in care and control of the items in the room—the scale and the phones—particularly in view of the fact that he was handcuffed and not at liberty, cannot be squared with not knowing it was Bailey’s room. In this context, the care and control conclusion was unreasonable. For this reason, the scales and the phones could not, on the objective branch, form a constituent part of the officer’s grounds.

[22] There is another aspect to the grounds. Officer Proulx found Bailey on the ground in the hallway and moved him into the closest room. It was pure happenstance that he ended up in the room Officer Reid found him in. The Crown correctly argues that an officer does not to be correct with respect to a circumstance leading to grounds as long as he entertains a reasonable belief with respect to it: R. v. Whitfield, 2023 ONCA 479, at paras. 21-26. Reasonable grounds is a relatively low standard of certainty and an officer is entitled to be wrong as long as his belief is reasonable.

[23] As found above, because of the lack of a reasonable belief that it was Mr. Bailey’s room, it was also not a reasonable belief that the items in the room were Mr. Bailey’s. However, there is another reason the grounds are not made out. Officer Proulx left Officer Reid without communicating anything to him. Officer Reid understandably presumed that Mr. Bailey was under arrest based upon him being in handcuffs, which he was not. In my view, there was a responsibility to convey the facts to the succeeding officer, rather than to just leave Mr. Bailey in his legal custody with no information whatsoever.

[24] Communication between officers is necessary to effective law enforcement (see R. v. Debot 1989 13 (SCC), [1989] 2 S.C.R. 1140, at paras. 48-52) and, in addition, to ensure fairness to the accused. On these facts, the police ought not to be permitted to rely on their mistaken belief. It was not reasonable. The true state of affairs was well within their knowledge and control and ought to have been conveyed. That it was not, epitomizes the police carelessness and indifference with respect to Mr. Bailey and his rights.

[25] Ultimately, police duties and responsibilities cannot be ignored when evaluating the reasonable grounds standard. The rationale for requiring that grounds are objectively justifiable is to ensure police do not have free rein and that their actions are subject to judicial scrutiny. A review of police grounds is necessary otherwise an officer would have carte blanche to take any investigative step he thought necessary, with no oversight. As stated in Storrey per Justice Cory, “…even the most democratic society could all too easily fall prey to the abuses and excesses of a police state”: para. 14.

[26] Similarly, in R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, the Supreme Court adopted dicta from an English case, stating at paragraph 150 that objective grounds are “a valuable protection to the community; …power may easily be abused and become a danger to the community instead of a protection.” To permit the police to benefit from their own lack of attention to duty would be contrary to the very purpose of the objective standard.

[27] In any case, even if there was reason to believe that Mr. Bailey lived in that room and the things in the room were his, the grounds for the search were insufficient. The presence of two cell phones added at best marginally to grounds. Many people have two cell phones now and the inference from two phones to the conclusion of drug dealing is weak. The scales did add to the grounds but were not enough in themselves.

[28] With respect to the third factor, the Crown supports Officer Reid’s belief that because the officers were executing a drug warrant, Mr. Bailey’s presence in the house was a valid factor adding to grounds. I do not agree. Mr. Bailey was listed as not arrestable in the operational plan. The officer’s belief that the mere presence of a person in a house being searched has some probative value towards grounds cannot be accepted. It is contrary to the presumption of innocence and the function of objective grounds in protecting individual liberty. The necessary conclusion from the officer’s logic is that anytime a warrant is executed on a residence, the grounds to detain or arrest a person found in the home are elevated due to the fact that a warrant is being executed. That is a surprising suggestion, one clearly contrary to our law.

[29] As was said in R. v. Ejiofor, [2002] O.J. No. 891, (Ont. C.A.), at para. 8, guilt by association,

… offends one of the most fundamental principles of the criminal law. People can only be convicted for what they do, not for the company they keep.

[30] The Crown argues in their written argument that:

The Court of Appeal has allowed for the possibility that an individual’s attendance at a drug house, when the information concerning the drug house is current and reliable, may provide sufficient grounds for an investigative detention. Indeed, the Court has found “there are times where, based upon the totality of circumstances, a person’s attendance at a drug house may even form grounds for arrest”: citing R v Buchanan, 2020 ONCA 245 at para. 32.

(Emphasis added)

[31] The Crown stressed the last, italicized sentence. For this proposition, Buchanan cites Rover, at paras. 11-13.

[32] A reading of Buchanan and Rover clarifies that this line of authority does not stand for the legal position advanced by the Crown. In Buchanan, the police had information that drugs were being sold out of a residence. They set up surveillance on the residence and ultimately stopped Buchanan because he drove to the residence and remained inside for 15 minutes before leaving. When stopped, he was arrested and drugs were found in a search incidental to the arrest. At trial, a key issue was what inferences could be drawn from Buchanan’s “attendance at a drug house.” The trial judge found that based on this and the experience of the officers there were grounds for an investigative detention but not for the arrest. The Court of Appeal upheld the finding of sufficient grounds for investigative detention and opined that there may be situations in which there would even be grounds for arrest, citing Rover.

[33] The factual context in Rover was essentially the same as in Buchanan although Rover was a prosecution of the drug dealer, not the customer as in Buchanan. But the question was the same: what was the evidentiary value of brief attendance by an alleged customer at a house suspected to be a site for drug dealing? That is fundamentally different from the facts in this case. Mr. Bailey was not someone arriving and then soon after leaving the house. He lived in the house and was found in it. The knowledge the police had before they entered did not lead to any inference implicating him. That he was said to be not arrestable in the operational plan pointed away from grounds to support arrest.

[34] In summary, it was not reasonable to assume that the bedroom was Mr. Bailey’s or that the contents in the bedroom were his. Even beyond this, the three grounds cited for the arrest were insufficient.

[35] I would add that the cumulative weakness in the grounds leads me to question whether Officer Reid truly entertained a subjective belief that there was enough for an arrest. A lack of reasonable grounds can cast doubt on whether the police actually held subjective grounds. This is such a case. There is reason to suspect that the arrest grounds were formulated after the arrest, not before.

[36] There are several reasons which support this conclusion. As mentioned above, the grounds, objectively analyzed, were flimsy. There are also unanswered, concerning questions. Why did Officer Reid arrest Mr. Bailey when he believed Mr. Bailey had, moments before, been arrested by Officer Proulx and was already handcuffed? How could Officer Reid have gathered grounds for his arrest when, according to Officer Proulx’s evidence, Officer Reid was only in the room with Mr. Bailey for a matter of seconds before he arrested him? In odd language, Officer Reid’s notes say that he “observed” the digital scale at 10:25 p.m. before the arrest but say that he “located” the digital scale while searching the room an hour later at 11:24 p.m. If he had earlier observed it, why then did he later need to locate it?

[37] Why did Officer Reid arrest Mr. Bailey for simple possession rather than for trafficking when he supposedly saw a digital scale in the room before the arrest? The explanation that a factor adding to the grounds for arrest was that a search warrant was being executed is particularly weak. It is implausible that Officer Reid could have believed that when a search is undertaken, a presumption is raised that any person found inside the residence may well be guilty of criminal acts.

[38] For these reasons, in my view the arrest was unlawful. The arrest being unlawful, it was arbitrary and a violation of s. 9: see Tim, at para. 22; Grant, at para. 54; and R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3.

SHOULD THE EVIDENCE BE EXCLUDED UNDER SECTION 24(2) OF THE CHARTER ?

[39] The dilemma with respect to remedy is this: The thematic pattern of the multiple breaches of the Charter are, viewed cumulatively, at the high end of seriousness taking everything into account. Furthermore, the impact on Mr. Bailey was serious although not at the very highest degree of concern. But, of significant importance, there is no doubt that the evidence would have been discovered quite apart from the breaches. In light of that factor, balancing the various considerations, should the evidence be excluded?

I. Seriousness of the Breach

The Handcuffing

[40] The Crown concedes s. 9 and 10(b) breaches based on the handcuffing of Mr. Bailey. In my view, these were breaches towards the most serious end of the spectrum. Although relatively short in duration, it was an extreme departure from proper police investigation and enforcement. The proposition that people in a building being searched ought to invariably and routinely be handcuffed is extraordinary. Here, there was no possible justification for handcuffing. Although the extent of the detention was not as all encompassing as some other modes of deprivation, this was a stark and unacceptable departure from the usual norms. As was said in R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at para. 57, “The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law.” Also see Mann, para. 56; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 31.

[41] I agree with Justice Fairgrieve’s condemnation of the handcuffing in Gogol at para. 49:

In my view, the violations here are extremely serious. It is outrageous, I think, that police officers would regard a search warrant as sufficient authority to handcuff an elderly woman and detain her for a protracted period either to prevent her from leaving her home or as an unjustified pre-emptive measure to prevent the mere possibility that a “basically co-operative person”, as she was described in the evidence, might interfere with the search. It is more than a little alarming that Cst. Lee would testify that handcuffing occupants while premises are searched is a “routine thing” barely worthy of note. Equally shocking, I think, is the notion that in 1992 police officers could think that a person could be detained in this way without any consideration of the need to comply with s. 10 of the Charter. The Court should not permit a search warrant to be misconstrued by police officers as a warrant for the arrest of the occupants of the premises, or as authority to disregard the rights that any other person under arrest would have.

[42] I would characterize the breach in this case as flagrant. Handcuffing in these circumstances has never been permissible. The law in this regard is neither new nor obscure. Denunciation of the conduct and distancing the court from it is critical to uphold our fundamental conception of liberty in one’s own home: Grant at para. 72; McColman, at para. 57.

[43] Officer Proulx did not know that he was violating the rights of individuals in the homes he was searching by handcuffing them. But he clearly ought to have known. There was a high degree of negligence to the point of recklessness aggravating the breach: R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 93; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692 at para. 143; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 43-45; Grant, at para. 74; and Harrison, at paras. 24-25.

[44] On his own evidence, Officer Proulx has been consistently violating the Charter by handcuffing all persons present during the execution of residential search warrants for a stretch of eight years. It is true that it is not clear how many instances this involves but Officer Proulx being on the tactical squad, it was unlikely to be a small number. The Crown argues that there is no systemic aspect to the breach. I disagree. Search warrants are executed by teams of police officers. Clearly, no one told Officer Proulx during the execution of previous warrants that what he was doing was wrong. They were either doing the same thing or were indifferent to Officer Proulx’s clear violations of the Charter. That is troubling: Harrison, at para. 25; Tim, at para. 88.

[45] Systemic violations of the Charter are more likely to implicate the long-term reputation of the administration of justice than are isolated instances of Charter violations. The majority in Grant wrote,

70 Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[46] These were Charter violations committed in the accused’s home where his right to autonomy and to be left alone was at its highest point. That is a foundational fact in this application. To protect the historically entrenched privacy and right to be left alone in the home, the Supreme Court of Canada in Feeney superimposed the need for a special arrest warrant for an arrest in a dwelling house. In doing so, the Court emphasized the cherished values at stake, values which were violated by the police actions in this instance: Feeney, at paras. 153-166.

[47] To take one of the many examples reiterating that the pinnacle of personal privacy is in a home, in R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, a case in which the manner of the search of a residence was challenged, Chief Justice Dickson said,

44… The … point was made by Mr. Justice La Forest (dissenting) in the later case of R. v. Landry (1986), 25 C.C.C. (3d) 1 at p. 16, 26 D.L.R. (4th) 368, [1986] 1 S.C.R. 145 at p. 167 (S.C.C.):

The sanctity of the home is deeply rooted in our traditions. It serves to protect the security of the person and individual privacy. The same thought was expressed as early as 1604 in the language of the day in the first proposition of the celebrated Semayne’s Case (1604), 5 Co. Rep. 91a at p. 91b, 77 E.R. 194 at p. 195, as follows:

That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose;

45 In his book The Law of Search and Seizure in Canada, 2nd ed. (1984), p. 44, Butterworths: Toronto, James A. Fontana states:

A higher duty of propriety in execution seems to rest traditionally with an officer who is about to conduct a search of a dwelling house more than with one about to conduct a search of other types of premises such as warehouses, depots, garages and public buildings.

[48] These comments pertain to s. 9 as well as to s. 8 of the Charter. The s. 9 right protects liberty, the right to be left alone and personal autonomy. The s. 8 right protects the closely related right to privacy.

[49] Furthermore, there was not only the arbitrary detention but also a violation of Mr. Bailey’s right to be informed of and to exercise his right to counsel under s. 10(b) of the Charter. While it may well be that the 10(b) right would not likely have been availing in the circumstance, the importance of the right to counsel and the right to silence it protects extends beyond purely utilitarian considerations: R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173 at para. 55; R. v. O’Brien, 2023 ONCA 197 at paras. 48-49; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 80.

[50] In addition, the surrounding circumstances lend the violations a particular tone. The tactical squad commanded or physically forced Mr. Bailey to lie down on the ground as they flowed through, itself a detention and probably an arbitrary detention. No doubt the purpose and design was to leave him prostate there so that Officer Proulx could take control of Mr. Bailey. This was unjustifiable. There were likely plenty of officers available to stay with Mr. Bailey if that was deemed necessary.

[51] In summary, this was not a good faith breach. It was flagrant and reckless in relation to Mr. Bailey’s liberty, there was a systemic thread running through it, two Charter rights were violated, and it was markedly contrary to what has been the law for many years. Overall, there was a pronounced lack of respect for Bailey’s rights, a person the police knew lived in the house.

The Unlawful Arrest

[52] Officer Reid affected an unlawful arrest of a man in his own home. The grounds fell well below the objective level required for a valid arrest. The component of grounds based on the two cell phones, one on the floor and one on the bed, with the explanation that drug dealers use multiple cell phones, is so meagre as to suggest that this was conjured up after the fact. Even more implausible is the explanation that the grounds were bolstered by the fact that the officers were executing a search warrant on the home. On this explanation, everyone in a home being searched has at least one strike against them. That is anathema to a system premised on individualized guilt.

[53] Here too the surrounding circumstances increase the seriousness of the breach. When Officer Reid entered the room, Officer Proulx left. They both agreed that there was no exchange of information between them with Mr. Bailey in custody. Officer Reid did not know that Bailey was not under arrest and had been found in the hallway, not in the bedroom. That is irresponsible and unacceptable. In addition, Officer Reid, like Officer Proulx, did not read the operational plan for the search. Again, this is at least negligent if not worse.

[54] In the end, given the litany of weaknesses, there are significant questions whether Officer Reid in fact held subjective grounds that Mr. Bailey was in possession of drugs. In totality, the unlawful arrest was a serious breach. At the very least, it bordered on bad faith.

Conclusion with Respect to the Seriousness of the Breach

[55] The tactical squad’s action in commanding Mr. Bailey to the floor, his handcuffing without grounds, the failure of officers Proulx and Reid to communicate between themselves, the inattention to the operational plan and the arrest of Mr. Bailey without proper grounds all lead to one ultimate conclusion. The police exhibited a pattern of cavalier and, in my view, conspicuous disrespect for Mr. Bailey in his own home. The police were there to execute a search warrant and the other people living in the house were an inconvenience and would have to be detained and physically restrained with handcuffs. Their rights were of little consequence in light of the importance of the search being conducted. The facts of this case demonstrate a continuing pattern of flagrantly unlawful and arbitrary detention and arrest of a person inside their own home. The conduct of the police was highly negligent with substantial systemic ramifications and, in the case of Officer Reid, bordered on bad faith. The restraint appropriate in the exercise of police powers was completely absent: see Comment, T. Quigley, R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721. Cumulatively, the breaches committed were towards the most serious end of the scale.

II. Impact on the Charter Protected Interests of the Accused.

[56] The major factor lining up against exclusion is the lack of a connection between the Charter breaches and the finding of the evidence. The Charter breaches caused by the arbitrary handcuffing and the unlawful arrest all preceded the finding of the evidence. The evidence was therefore obtained in a manner that breached the Charter: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 98-109.

[57] But the breaches did not lead in any sense to the seizing of the evidence. The police had a search warrant to search the residence. They had a right to search the room Mr. Bailey was in quite apart from his arbitrary detention and arrest. There was a temporal connection between the breaches and the drugs. But the drugs would inevitably have been discovered. Discoverability is useful in assessing the impact of the breaches on the applicant: R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 125; Grant, at para. 122. This factor was of substantial importance in the majority decision in Beaver not to exclude the evidence: see para. 135.

[58] Despite its importance, discoverability is not determinative: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 70; R. v. S.S., 2023 ONCA 130 at para. 89. The Charter violations are not altered by discoverability. If the primary thrust of the exclusion remedy is to denounce and disassociate the court from police misconduct, this remains a vital rationale even if the evidence would have been discovered in the absence of the Charter violations committed.

[59] The second Grant factor is distinct from the first, the perspective being that of the accused as opposed to that of the community: McColman, at para. 59. In Le it was said with respect to s. 9 of the Charter,

152 What interests, then, of Mr. Le are protected by s. 9 of the Charter? This question was answered by this Court in Grant, at para. 20: “[t]he purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference” (emphasis added). Such interference extends not only to “unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention ... from being applied to people without adequate justification” (para. 20). Underlying this purpose is an uncontroversial principle that is inherent to a free society founded upon the rule of law: “government cannot interfere with individual liberty absent lawful authority to the contrary” (J. Stribopoulos, “The Forgotten Right: Section 9 of the Charter, Its Purpose and Meaning” (2008), 40 S.C.L.R. (2d) 211, at p. 231). Absent compelling state justification that bears the imprimatur of constitutionality by conforming to the principles of fundamental justice (Grant, at para. 19), Mr. Le, like any other member of Canadian society, is entitled to live his life free of police intrusion.

155 It is, of course, true that the length of Mr. Le's detention was brief. But it does not necessarily follow that the impact on his liberty was trivial (Grant, at para. 42). Even trivial or fleeting detentions "must be weighed against the absence of any reasonable basis for justification" (Mann, at para. 56 (emphasis in original)). And, when weighed against the absence of justification to investigate the young men at all, the impact of this police misconduct is heightened considerably. That this show of police force took the form of an intrusion into private residence — which, as we have already explained, informs the assessment of whether and when Mr. Le was detained — is also pertinent to the impact on his Charter-protected interests.

[60] There are important considerations with respect to impact of the violations in this case. The detention by the coercive measure of handcuffing, the de facto arrest by Officer Proulx and the successive unlawful arrest by Officer Reid detrimentally impacted on Mr. Bailey’s right to be left alone in his own home, a right of self-autonomy, and impacted upon his dignity: see Grant, para. 78. Borrowing from the analytically distinct but related s. 8 jurisprudence, he had the right to “privacy and tranquillity against the overwhelming power of the state”: Silveira, per LaForest J., dissenting at para. 43.

[61] The Supreme Court said in Le,

51 …The nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public. People rightly expect to be left alone by the state in their private spaces.

[62] Although there is little direct comment in the authorities on the issue, I believe that the negative impact of the Charter breach is accentuated by reason of Mr. Bailey being a Black man. In the Supreme Court case of Le, the Court held that in considering the issue of whether a detention has occurred under s. 9 of the Charter, it is appropriate to look at what a reasonable person in the shoes of the accused would have perceived. It was held that this test must incorporate the question of race. The majority said,

75 At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain.

[63] Applied to Black men, the Court endorsed taking judicial notice of the disproportionate and discriminatory impact of policing upon them,

97 We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359). … a common and shared experience of racialized young men … []is being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused.

[64] In R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, Tulloch J.A. (as he then was) said,

[143] The existence of anti-Black racism in Canadian society is beyond reasonable dispute and is properly the subject matter of judicial notice. It is well recognized that criminal justice institutions do not treat racialized groups equally: [citations omitted]. This reality may inform the conduct of any racialized person when interacting with the police, regardless of whether they are the accused or the complainant (Emphasis added).

[65] In my view, this reasoning is directly applicable to the second Grant inquiry. As the question of whether there is a detention under the Charter must be informed by the perception of a reasonable person of a “similar racial background” to the accused, so too must the question of the impact of Charter breaches on an applicant be informed by the perception of a reasonable person of similar racial background. This process, because Mr. Bailey is Black, encompasses the reasonable perception of a Black man. The arbitrary detentions—in this case, by white police officers--of Mr. Bailey in his home would have tapped into the long and sorry history of anti-Black discrimination and discriminatory interactions with the police. This increased the impact of the Charter violations on Mr. Bailey.

[66] In addition, it is important to remember that Mr. Bailey was, at this stage, just another occupant of the house; one who had been said in the police operational plan to be not arrestable. He was in no different position than Mr. Harper-Grant’s mother, for example, who was also present. In law, he was an innocent bystander. Any other view would be to employ an ex post facto perspective, prohibited by basic principle: Feeney, at para. 167; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 20.

[67] Furthermore, the deprivation of the right to counsel also had a serious impact on Mr. Bailey. It is a fundamental right, critical in the investigatory police process. The failure to give the right also had systemic aspects. It is safe to say that during Officer Proulx’s handcuffing of all persons present during search warrant executions, most if not all detainees, like Mr. Bailey here, were not given their right to counsel.

[68] In Rover, like in this case, there was no causal connection between the 10(b) breach and the finding of evidence. It is true that the breach in Rover was considerably lengthier than here, extending for several hours. But Justice Doherty held that the impact was serious, saying,

45 The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

47 Having regard to the security of the person interest protected by s. 10(b), and the risk posed by the police practice to the maintaining of the appellant’s right against self-incrimination, I would hold that the s. 10(b) breach had a significant negative impact on the appellant’s Charter-protected rights. While that impact was certainly not as serious as it would have been had there been a causal connection between the breach and the obtaining of the evidence, it was nonetheless significant.

[69] Also see Grant, paras. 136-138.

[70] Without the discoverability aspect, this second factor would point strongly to exclusion. With it, I would assess this factor as lying at a lower level. The police breaches did not lead to the evidence and so the finding of the evidence was not directly implicated. But the impact on Mr. Bailey was nonetheless significant. As a result, this factor tips moderately towards exclusion.

III. Adjudication on the Merits

[71] This factor strongly points towards admission of the evidence. There were items in the room found after the arrest which were in Mr. Bailey’s name. These served to associate him with the room and therefore with the drugs found in the room. The fentanyl offences charged are exceedingly serious. Mr. Bailey is charged with a significant quantity for the purpose of trafficking as well as simple possession of a smaller amount. The drug has been referred to as public enemy number one by the Supreme Court: R v Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, at paras. 93, 87. Excluding the evidence would lead to Mr. Bailey’s acquittal despite the evidence being real evidence, reliable, and highly incriminating.

IV. Balancing the Three Factors

[72] The seriousness of the Charter breaches, their continuing nature and the pattern of utter disinterest and disrespect for the constitutional rights of a man living in a home being searched, is the most prominent factor on s. 24(2). It inclines powerfully towards exclusion. A man was subjected to being handcuffed as a matter of routine in his own home by one officer and then unlawfully arrested by another officer. There was no excuse for these breaches of the Charter and they constituted a major departure from proper police conduct. The impact on Mr. Bailey, given that the evidence could have been discovered even without the Charter breaches, is diminished from a strong movement towards exclusion to a significant movement towards exclusion. On the other hand, the importance of adjudication on the merits is unquestionably important and strongly supports admission.

[73] Balancing these factors, in my view the evidence of what was found in the bedroom vis a vis Mr. Bailey must be excluded. The pattern of violations demonstrating disrespect for a Black man in his residence and the impact upon him must predominate over the discoverability of the evidence and the importance of adjudication on the merits of what is indisputably a very serious criminal offence. Given the deliberate, non-accidental nature of the breaches in this case, while incorporating all the other factors, the long-term repute of the administration of justice is better served by exclusion than by admission.

[74] For these reasons, the application is allowed and the evidence found in the bedroom is excluded from the trial.

D.E. Harris J.

DATE: November 30, 2023

COURT FILE NO.: CR-22-0369-00

DATE: 2023 11 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HIS MAJESTY THE KING v. TRISTEN BAILEY, (Applicant)

BEFORE: D. E. Harris J.

COUNSEL:

David Quayat and Nadia Klein for Public Prosecution Service of Canada

Sayed Hafizi for Tristen Bailey

DECISION ON SECTION 9 AND 10(B) APPLICATION

D.E. Harris J.

DATE: November 30, 2023