Court File and Parties

COURT FILE NO.: 387/22 DATE: 2024/04/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King Respondent V. Mazza, for the Crown

- and -

Tiffani Martin Applicant A. Prevost, for the applicant/defendant, Tiffani Martin

HEARD: February 21, 2024

RULING: ss. 7, 8, 9, 10(b) and 24(2) CHARTER APPLICATION

MITCHELL, J.

Overview

[1] Tiffani Martin stands charged with one count of possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”); one count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and one count of possession of more than 30 grams of cannabis, contrary to s. 8(1)(a) of the Cannabis Act.

[2] The applicant seeks to exclude, pursuant to s. 24(2) of the Charter of Rights and Freedoms (the “Charter”), evidence seized by police from a search of her purse following her arrest, which she says was obtained following a violation of her ss. 7, 8, 9 and 10(b) Charter rights. This evidence consists of: 49 g of fentanyl; 61 g of cocaine and 75 g of hashish.

Evidence on the Voir Dire

[3] The events leading to the applicant’s arrest took place on July 26, 2020 on the Chippewas of the Thames First Nations reserve (the “reserve”). In July 2020, the Province of Ontario was in a state of lockdown to prevent the spread of the Covid virus. To that end, the reserve was deemed a “closed community” with access restricted to its residents.

[4] Three police officers testified on the voir dire – Police Constables Jeffrey Beaumaster (“Beaumaster”), Marco Janicas (“Janicas”), and Marco Mentone (“Mentone”). The audio recording of a 911 call was made an exhibit.

[5] At approximately 8:08 PM on July 26, 2020 a concerned resident of the reserve placed a 911 call to police and reported a group of suspicious persons on the reserve.

[6] The caller reported that:

(a) seven (7) black males between the ages of 20 and 30 years and two (2) “little white girls” approximately 20 years of age, were walking past her house heading southbound on Middlemiss Road;

(b) the group had left three (3) motor vehicles parked at the dirt hill blocking access to Middlemiss Road. A description of each vehicle together with license plate numbers was provided;

(c) she was concerned with the presence of the group on the reserve due to Covid restrictions in place and advised the group they were not welcome on the reserve. A member of the group stated they were visiting a friend;

(d) the group were walking westbound on Middlemiss Road; and

(e) she could hear gunshots coming from the direction of the group after they passed by her house.

[7] Gunshots can be heard while the caller is speaking with the 911 operator.

[8] Beaumaster and First Nations Police Constable French were separately dispatched to the reserve and both arrived at the blockade at approximately 8:39 PM. The evening was clear and the sun had not yet set. Upon arriving, Beaumaster could hear the sound of gunshots coming from the west. He and French drove west on Middlemiss Road in the direction of the gunfire. After travelling approximately 3-4 km, Beaumaster and French came upon a group of seven (7) black males (including one child) and two (2) white females (including the applicant) standing beside a vehicle in the laneway of a residence on Middlemiss Road.

[9] Beaumaster and French approached the group with their weapons drawn. Beaumaster had a rifle. French had a handgun. Beaumaster asked the group whether they had any firearms. The group denied having any weapons. French conducted a pat down search of the group, including the applicant. No weapons were found. The group explained that they were on the reserve to drink with friends.

[10] Beaumaster directed the group to line up beside the vehicle. He recalls that the two females did not comply and instead remained standing at the front of the vehicle. He was concerned by their movements at the front of the vehicle and feared they were attempting to hide the gun. Aside from this movement, Beaumaster described the group as calm and non-confrontational and said he had no concerns with the group’s conduct.

[11] Beaumaster estimated being alone with the group for approximately 20 minutes before the K-9 unit arrived. Upon arrival of the K-9 unit, he placed his rifle in the rear of the cruiser and assisted with containment of the group. He was not involved in the search and ultimate discovery of the guns and had no involvement in the arrest of the applicant.

[12] Janicas was the officer in charge. He arrived on scene (together with the K-9 unit) at 8:51 PM. He recalls six (6) males were lined up along the side of the residence and two (2) females were standing next to a broken-down vehicle. He observed spent shell casings loosely scattered on the grassy portion of the laneway and live ammunition in a plastic bag on the corner of the deck in close proximity to the spent ammunition. In contrast, Beaumaster observed loose ammunition in a bag on the ground. Beaumaster did not observe spent bullet casings.

[13] Janicas described the spent ammunition as being “all over the property where we were dealing with these people”. He described the spent casings as the type used in 9 mm and 40 calibre handguns. At 9:15 PM, Janicas directed that the group be placed under investigative detention. The group was provided rights to counsel and cautioned.

[14] The K-9 unit’s search of a grassy area behind the residence led to the discovery of three guns – two (2) 9 mm Glock handguns and one (1) 40-calibre Glock handgun together with magazines for each of the two types of weapons. No guns were found in the residence located on the property.

[15] Following discovery of the weapons, the group was arrested for possession of restricted firearms and given their rights to counsel and cautioned. The applicant was arrested at 9:56 PM. – one hour and fifteen minutes following her initial detention.

[16] Mentone was dispatched to the scene at 8:10 P.M. and arrived at 8:41 P.M. he recalls Beaumaster and French being on scene with guns drawn. He observed six (6) males and two (2) females. Mentone observed live ammunition in a grocery bag and spent shell casings on the ground where the group was congregated. Mentone conducted a further pat-down search of each of the individuals to ensure they did not possess any weapons. None were found.

[17] Further to the direction of Janicas, Mentone placed Ms. Martin under investigative detention and provided her with her rights to counsel and caution. He advised Ms. Martin that she could use her cell phone to call a lawyer. He could not recall whether Ms. Martin requested to speak with a lawyer or in fact spoke with a lawyer. He made no notes to this effect.

[18] Mentone was responsible for placing Ms. Martin under arrest. She was arrested for possession of a prohibited device and possession of a prohibited firearm. She was read her rights to counsel and was cautioned. Her personal belongings, including her purse, were seized. She was handcuffed and placed in the rear of Mentone’s police vehicle.

[19] Upon arriving at the station at 11:20 PM, police confirmed the applicant’s identity. Her clothing was seized and tested for gunshot residue and police conducted an “inventory” search of her purse. Mentone testified that the search of her purse was part of the booking process and was not conducted incident to arrest.

[20] While searching her purse, Mentone found a clear bag containing a brown substance. He asked Ms. Martin what the bag contained. She responded “hashish”. He continued searching her purse and found two further baggies – one containing cocaine and the other fentanyl.

[21] During cross-examination, Mentone acknowledged he may have first pulled out the bag of hashish from the applicant’s purse, questioned her about the nature of the substance and then proceeded to continue to search her purse leading to the discovery of the fentanyl and cocaine.

[22] The applicant was re-arrested for possession of drugs for the purpose of trafficking and again was read her rights to counsel and cautioned. Ms. Martin first spoke with a lawyer at 11:56 p.m. – 3 hours and 15 minutes following her initial detention by officers Beaumaster and French and 2 hours following her arrest for possession of a firearm.

Positions of the Parties

The Applicant

[23] The applicant submits that during her interactions with police on the evening of July 26, 2020, police engaged in conduct violating her ss. 7, 8, 9 and 10 Charter rights. These violations culminated in the unlawful search of her purse which led police to discover the drugs and lay these charges.

[24] The applicant submits that her initial detention at 8:41 PM by Beaumaster and French was arbitrary and, if not immediately arbitrary, became so when her detention was protracted for a period of more than an hour prior to her arrest. The applicant further submits that her arrest was arbitrary because the police lacked reasonable and probable grounds to believe she was in actual or constructive possession of a restricted firearm.

[25] In addition, the applicant submits that the delay of more than 30 minutes following her initial detention before she was informed of her right to counsel violated s. 10(b) of the Charter and the failure by police to implement and facilitate her right to counsel for more than three hours further violated s. 10(b) of the Charter.

[26] Finally, the warrantless search of her purse conducted at the police station following her arrest violated her s. 8 Charter rights.

[27] The applicant submits that, having regard to the number and extent of the Charter violations, the drug evidence must be excluded pursuant to s. 24(2) of the Charter.

The Respondent

[28] The Crown concedes only that police violated the applicant’s s. 10(b) Charter right to be informed of her right to counsel without delay and the implementation of that right following her initial detention.

[29] Crown counsel submits that Ms. Martin's continued detention, her arrest and the search of her purse were lawful having regard to the seriousness of the situation and Ms. Martin being part of the “suspicious” group of persons.

[30] Crown counsel submits that any breach was minor and had little impact on the applicant’s Charter rights. Therefore, the drug evidence, which is reliable and critical to the Crown’s case in support of these serious charges, should not be excluded pursuant to s. 24(2) of the Charter.

Analysis

Sections 7 and 9 Charter Analysis

(i) Arbitrary Detention

[31] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[32] Section 9 of the Charter is corollary to s. 7 and provides that everyone has the right not to be arbitrarily detained or imprisoned.

[33] As was noted by the Supreme Court of Canada in R. v. Mann at para. 35:

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.

[34] The applicant focused her argument on her continued detention following the pat-down search conducted at 8:41 PM. The applicant submits that even had the initial detention been justified, her continued detention after she and other members of her group had been subjected to a pat down search which resulted in no guns being found, was without grounds and was, therefore, arbitrary.

[35] The applicant referred me to the decision of the Ontario Court of Appeal in R. v. McGuffie. In McGuffie, police were dispatched to a bar in response to a report that some male individuals had been passing around a firearm. The doorman identified the accused as one of the males. When the accused walked quickly away from the bar, police followed him, detained him on suspicion of possession of a handgun, handcuffed him, patted him down, placed him in the back of a police car and went back to the bar to continue their investigation. When police returned approximately 30 minutes later the accused was subjected to a more thorough search and a package of cocaine was found. He was then arrested and informed of his right to counsel. The accused asked to speak to a lawyer. Police did not facilitate his request. At the police station the accused was subjected to a “strip search”. During that search, two more packages of cocaine were found. Ninety minutes after his initial detention, the accused spoke with counsel.

[36] These facts led the trial judge to find numerous breaches of Mr. McGuffie’s constitutionally protected rights including violation of his s. 9 Charter rights when police failed to release him after the pat down search revealed he was not in possession of a gun. At para. 38, the Court of Appeal explains the permissible scope of investigative detention as:

The duration and nature of the detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs. A brief detention on the street to question an individual implicated in a criminal investigation involving ongoing events may be justifiable under the Mann criteria, but under those same criteria imprisonment in a police cruiser while handcuffed for some indefinite period while an officer carries out other aspects of a criminal investigation could not be justified. The police cannot use investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect. Nor does investigative detention mean that the police can detain suspects indefinitely while they carry out their investigation.

[37] Mr. McGuffie was found to have been detained the moment the arresting officer stopped him on the street. The court held that the initial investigative detention was lawful as the officer had reasonable grounds to suspect that the accused was involved in the unlawful possession of a handgun.

[38] Similar to the court’s finding in McGuffie, I am of the view that police were justified in briefly detaining the group, including Ms. Martin, to question them about their knowledge of a firearm and any involvement in the discharge of a firearm and conduct a pat down search. I find that this initial detention by Beaumaster and French was lawful based on their safety concerns.

[39] Janicas explained that he placed the group under investigative detention when he arrived on scene at 9:15 PM because he was concerned for police and public safety and he wanted to search the property for firearms before releasing the group. Janicas admitted that he did not enquire of officers already on the scene whether the group had already been placed under investigative detention or whether rights to counsel and caution had been given. During cross-examination, Janicas acknowledged that it was normal procedure to ask for identification so that police knew with whom they were dealing; however, that was not done in this case.

[40] Police justified their continued detention of the group for more than an hour while they searched the property for weapons based on safety concerns. However, these safety concerns are not borne out by the evidence.

[41] During the group’s interactions with police, the group was calm and cooperative. The 911 caller reported the presence of the group on the reserve because Covid restrictions were in place. Neither the 911 caller nor any of the police officers observed the group firing a handgun or in possession of a gun. A pat down search conducted immediately following the group’s initial detention confirmed none of the individuals was in possession of a firearm.

[42] At 9:15 PM on July 26, 2020, it was daylight, there were numerous police officers on scene, the group had been searched and no guns found, the group was cooperative and the sound of gunshots had ceased. In these circumstances, police were required to release Ms. Martin unless they had reasonable and probable grounds to arrest her. There were no such grounds.

[43] The random discharge of firearms is understandably of concern and poses a threat to the safety of the public. The report of a suspicious group and the sound of gunshots coming from the direction of the group justified the initial detention and pat down search of the applicant. However, this information did not justify the continued detention of Ms. Martin while the police continued their search for guns.

[44] The applicant’s continued detention became arbitrary as time wore on. The continued detention of the applicant while police searched for the weapons for more than hour was unnecessary and unreasonable. Ms. Martin’s continued detention was, therefore, unlawful and in violation of her s. 9 Charter rights.

[45] I arrive at this finding, notwithstanding that the applicant was not forcefully restrained upon detention by being placed in handcuffs and placed in a police vehicle in the same manner as Mr. McGuffie. Unlike Mr. McGuffie who was combative with police, the applicant was cooperative. Moreover, unlike the eyewitness evidence in McGuffie, there was no information provided to police that the applicant or anyone in the group of which she was a part, was observed in possession of a gun.

(ii) Arbitrary/Unlawful Arrest

[46] I will now consider whether the applicant’s arrest for possession of a prohibited device and possession of a prohibited firearm was lawful.

[47] Janicas believed all nine (9) members of the group, including the applicant, had knowledge, consent, and control of the guns found at the rear of the property. Janicas relied on the applicant being part of a group described as “suspicious” and being in close proximity to a bag of live ammunition and spent shell casings matching the ammunition used in the guns found, to conclude she was jointly criminally liable for possession of the guns.

[48] Janicas was steadfast in his belief that the group had fired the shots heard by police, notwithstanding that neither the 911 caller nor police observed any member of the group in possession of a gun. He decided to arrest all members of the group, including the applicant and her 12-year-old son, based on weapons having been found on the property, and spent casings and live ammunition observed near the location of the group on the property.

[49] Ms. Martin was not charged with an ammunition-related offence. Beaumaster testified that the presence of live ammunition in close proximity to the group did not constitute reasonable and probable grounds for arrest. This evidence is supported by the fact no arrests were made until the guns were found approximately 45 minutes after the K-9 unit arrived on scene. It is notable that the firing of guns was not reported in the context of the commission of another offence such as a robbery.

[50] I find it was an excessive use of police power to arrest the entire group (including a 12-year-old child) for possession of the weapons found behind the residence located on the property in these circumstances. Aside from the live ammunition and spent casings in close proximity to the group standing in the laneway, and the fact Beaumaster and French and the 911 caller heard gunshots coming from the same direction as the group, reasonable and probable grounds for the group’s arrest did not exist.

[51] At its highest, the information available to police raised a suspicion which warranted the group’s initial detention. Suspicion of possession of guns does not constitute reasonable and probable grounds for arrest for the offence of possession of guns.

[52] A similar approach was taken by police to the arrest of the accused in R. v. Spurgeon. At paragraph 65, the Court criticized the approach, stating:

In this case, the police adopted an “arrest everyone, sort it out later” attitude. While that approach may have been attractive from a practical point of view, it does not meet the legal standard. I have concluded Mr. Spurgeon’s arrest was unlawful.

[53] Ms. Martin’s interest protected by s. 9 of the Charter was her liberty from unjustified state interference absent compelling state justification. R. v. Thompson There were no objectively reasonable and probable grounds to arrest Ms. Martin in the circumstances. The “blanket approach” to arrest employed by police in this case disregarded the applicant’s Charter rights. Her continued “investigative” detention and subsequent arrest overreached on the lawful limits of police authority. Consequently, I find that police violated Ms. Martin’s rights protected by s. 9 of the Charter.

Section 10(b) - Right to Counsel

[54] Section 10 of the Charter is triggered upon detention and/or arrest. Section 10(a) of the Charter requires the person detained or arrested, to be informed of the reasons for their detention or arrest, as the case may be. Section 10(b) of the Charter requires police to inform the person under detention or arrest of their right to retain and instruct counsel and to facilitate (implement) that right without delay. McGuffie

[55] Immediately upon detention, police are required to advise a detainee of the following Charter rights - the reason for their detention, their right to counsel and their right to silence. These rights are only curtailed for the time needed to address concerns for police and/or public safety or any limitations prescribed by law. Thompson at paras. 67 and 71; R. v. Bartle, [1994] 3 SCR 173 at pages 174 – 175, 191 – 192; Mann at para. 22.

[56] Most individuals are unaware of the precise limits of police authority and may “perceive even a routine interaction with police as demanding a sense of obligation to comply with every request”. Thompson at paras. 30-31. A detainee has the right to speak with a lawyer so as to determine the extent of their cooperation and interaction with police. This right recognizes the relative vulnerability of a detainee in the control of the state and is designed to address the power imbalance between the individual detainee and the state.

[57] Ms. Martin was immediately detained by Beaumaster and French when they arrived on the scene. She was advised of the reason for her detention. However, the applicant was not cautioned nor provided with her right to counsel until 9:15 PM – more than 30 minutes following her initial detention. The Crown concedes that the failure by police to caution the applicant and advise her of her right to speak to a lawyer immediately upon being detained violated s. 10(b) of the Charter.

[58] Subsequent alleged breaches relate to the implementational component of Ms. Martin’s right to counsel. Ms. Martin was advised of her right to counsel immediately after being placed under investigative detention at 9:15 PM. However, no effort was made to facilitate that right. Mentone testified that he did not attempt to facilitate Ms. Martin’s right to speak with a lawyer immediately following her arrest. He acknowledged during cross-examination that Ms. Martin could have spoken privately with her lawyer from the rear seat of his police vehicle but he failed to consider this option.

[59] Immediately following her arrest, Ms. Martin was again informed of her right to speak with a lawyer and was cautioned. Again, Mentone did not attempt to facilitate a telephone conversation between Ms. Martin and her lawyer.

[60] Once at the station, the applicant waited an hour before police facilitated a call between her and a lawyer. During the intervening time, Ms. Martin was processed, booked into cells and a search of her purse conducted.

[61] Ms. Martin was first provided with the opportunity to speak with a lawyer more than three hours following her initial detention and only after her purse was searched, drugs were found and she had been rearrested for these drug-related offences.

[62] The safety concerns of French and Beaumaster were put to rest following the pat down search. At that point, exigent circumstances were not present. All parties were cooperative and the scene was under control. Numerous police officers were present. I find that Ms. Martin was not immediately advised of her right to speak with counsel upon being detained and was not provided with an opportunity to speak with counsel for more than 3 hours following her initial detention. Consequently, the delay in doing so was unreasonable and constitutes a breach of her rights under ss. 7 and 10(b) of the Charter.

Section 8 Charter – Unreasonable Search

[63] Section 8 of the Charter guarantees to everyone the right to be secure against unreasonable search or seizure. In the absence of a warrant, the Crown is required to establish on a balance of probabilities that the warrantless search was authorized by law, that the law itself is reasonable and that the manner in which the search was carried out was also reasonable. R. v. Nolet at para. 21, citing R. v. Collins, [1987] 1 S.C.R. 265, at p. 278 and R. v. Caslake, [1998] 1 S.C. R. 51, at para. 10.

[64] As earlier noted, the applicant does not vigorously challenge the authority of police to detain her (and the group) and conduct a pat-down search incident to the group’s initial detention. As noted above, I found this initial detention and related search was lawful having regard to the reasonably held police concerns for public and police safety. This lawful search included a “pat down” of Ms. Martin’s purse. Weapons were not found on Ms. Martin’s person, or in her purse during this search incident to the group’s initial detention.

[65] The applicant’s submissions focussed on the subsequent search of her purse following her arrest. She argues that this subsequent search was not incidental to the investigation of the offence for which she was arrested – namely, possession of a restricted weapon.

[66] R. v. Caslake is the leading authority on police power to conduct a search incident to arrest. As explained in Caslake at paras. 19 and 20, an officer’s search must be “truly incidental” to arrest. This is both a subjective and objective inquiry:

The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be a reasonable one.

[67] It is trite law that a search incident to an unlawful arrest is similarly unlawful. If I am wrong about the lawfulness of Ms. Martin’s arrest, I will now consider whether the search of her purse at the station was “truly incidental” to her arrest for possession of a restricted firearm.

[68] I was referred by defence counsel to the decision of this Court in R. v. Ismail. In Ismail the accused was arrested for failing to appear in court. He had been previously arrested on weapons charges and released on bail. Following his arrest, his vehicle was impounded. Police searched the accused’s vehicle without a warrant claiming the search was incident to arrest. During the search of the vehicle, a loaded handgun was found in the backseat of the vehicle. After quoting at length the principles in Caslake, the court found the search to be unlawful because it was not incidental to or connected in any manner to the offence for which Mr. Ismail had been arrested. The court went on to exclude the handgun found in Mr. Ismail’s vehicle as evidence at his trial.

[69] As explained in Caslake, a search “truly incidental” to an arrest means that:

…if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further. Supra at para. 22.

[70] A pat-down search of Ms. Martin and her purse upon her initial detention yielded no weapons of any kind and specifically no guns. At that point, any concerns for police and public safety were allayed thereby satisfying police that Ms. Martin did not have a gun or other weapon in her actual possession, whether on her person or in her purse.

[71] The police had “no reasonable prospect of securing evidence” of the offence of possession of a prohibited firearm when they proceeded to conduct a search of Ms. Martin’s purse following her arrest. No public and police safety concerns remained. In fact, after the initial pat-down search, police permitted Ms. Martin to remain in possession of her purse. Furthermore, no investigation was ongoing as the guns had been located. It was not reasonable to believe that police would discover a weapon from a search of her purse at the station. In fact, Mentone did not testify that he searched the applicant’s purse suspecting it contained a gun.

[72] I find the search of Ms. Martin’s purse was not conducted incident to her arrest for possession of a restricted firearm. Accordingly, the search by police of the contents of Ms. Martin’s purse was unlawful and, therefore, amounted to a breach of s. 8 of the Charter.

[73] In a further attempt to justify the reasonableness of the search of Ms. Martin’s purse, Mentone claimed he was conducting a lawful inventory of the items contained in the applicant’s purse as part of the booking process. In their submissions, Crown counsel similarly argued the drugs would have been found in any event as part of the inventory-taking process.

[74] I do not accept this argument because it is runs contrary to the applicable law. Caslake also involved a search conducted under the guise of an inventory search. In Caslake police conducted a search of the accused’s motor vehicle which had been seized and impounded following the accused’s arrest.

[75] At paragraph 30, Lamer C.J.C., writing for the court, stated:

The respondent and the interveners (all provincial attorneys general) have argued that even if the search was not properly authorized by search incident to arrest, there ought to be an "inventory search exception" to s. 8, for the protection of the accused's belongings. The United States Supreme Court has held that such an exception exists to the Fourth Amendment in South Dakota v. Opperman 428 U.S. 364 (U.S.S.D. 1976). In my view, this is not an appropriate case to decide this question. In order to meet the standards set out by the Charter, all searches must be authorized by law. Warrantless searches are prima facie unreasonable, and the burden shifts to the party who is seeking to uphold the search. This means, inter alia, the party must be able to point to a law which authorizes the search. The respondent was unable to find either statutory or common-law authority for inventory searches. Hence, for the purposes of this appeal, I would hold that the inventory search is not authorized by law and therefore violates s. 8 of the Charter. Whether such a law would be consistent with s. 8 need not be answered here. Suffice to say that an inventory search per se does not serve a "valid objective in pursuit of the ends of criminal justice" (Cloutier, supra, at p. 186) in the context of an arrest such that it can be justifiably carried out under this warrantless common-law power. Its purposes relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority.

[76] I find this principle applicable to the facts of this case. In my view, even if Ms. Martin had been lawfully arrested, the search of her purse was not undertaken for a valid lawful enforcement purpose, whether that purpose was incident to arrest or undertaken as part of the booking process. This finding is consistent with the court's decision R. v. Spurgeon where an inventory search of a knapsack is deemed unlawful.

Section 24(2) Charter – Excluding Evidence

[77] To summarize, I find the following Charter violations arising from the police conduct in this case:

i. the failure to release Ms. Martin after the pat-down search ignored the obligation to minimize the length of the investigative detention thereby breaching Ms. Martin’s rights under s. 9 of the Charter to be free from arbitrary detention;

ii. the failure to advise Ms. Martin of her right to counsel following her initial detention violated s. 10(b) of the Charter;

iii. a further s. 10(b) Charter violation occurred when Ms. Martin was not provided an opportunity to speak with a lawyer for more than three hours following her initial detention;

iv. reasonable and probable grounds to arrest Ms. Martin for possession of a restricted weapon did not exist making her arrest arbitrary and in violation of her s. 9 Charter rights; and

v. in breach of her s. 8 Charter rights, police conducted an unlawful search of her purse.

[78] I must now determine whether the drugs seized during the search of Ms. Martin’s purse should be excluded as evidence at Ms. Martin’s trial pursuant to s. 24(2) of the Charter.

[79] Section 24(2) of the Charter provides that where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the 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. (Emphasis added)

[80] I must have regard to the three factors enunciated in R. v. Grant. They are:

(a) the seriousness of the State conduct violating the Charter, including the nature of the police conduct that led to the discovery of the evidence, whereby:

(i) the more severe, deliberate or reckless the State conduct is, the greater the need will be for the court to dissociate itself from the conduct by excluding the evidence, so as to preserve public confidence in the justice system and ensure conformity to the rule of the law;

(ii) an inadvertent, trivial or minor violation, the existence of good faith or exigency circumstances, such as the need to prevent destruction of evidence, will favour the admission of the evidence;

(b) the impact and extent of the violation on the Charter interests of the accused, including whether there is a serious incursion on the accused’s interests or whether the impact was merely trivial;

(c) the societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence, having regard to:

(i) the reliability of the evidence and the extent to which it is undermined by the breach(es);

(ii) the importance of the evidence to the Crown’s case; and

(iii) the notion that the discoverability of the evidence is no longer a determinative factor.

Seriousness of the Breaches

[81] The applicant again relies on the decision in McGuffie. In McGuffie, the trial judge found that the many breaches of the accused’s rights under of the Charter led to the inevitable conclusion that the breach of the accused’s Charter rights was serious.

[82] I have found a breach of Ms. Martin’s Charter rights at every turn of this investigation. In their totality, the seriousness of these breaches cannot be overstated. As in McGuffie, this is not a “close call”. In my view, none of the Charter breaches can be characterized as technical or minor. No extenuating or exigent circumstances existed after the pat-down search which might provide an excuse for the persistent disregard of the applicant’s constitutional rights.

[83] I am not suggesting that the police intended to deprive the applicant of her Charter rights. However, the absence of bad faith does not amount to good faith.

[84] This factor favours exclusion of the evidence.

Impact on the accused

[85] When the police came upon the “suspicious” group, Ms. Martin was lawfully detained and subjected to a lawful pat-down search of her person and her purse. No consideration was given by police to the individual constitutional rights of each member of the group, including Ms. Martin. It was not until Janicas arrived on the scene that Ms. Martin was first advised of her right to speak with a lawyer. However, notwithstanding the provision of this information, police made no effort to implement her Charter rights.

[86] Ms. Martin and her son continued to be detained notwithstanding the fact she was not found to have weapons in her physical possession. She was cooperative throughout her interactions with police. After the pat-down search of her person and purse, there were no reasonable grounds to suspect that she posed a threat to the safety of police or the public. Ms. Martin and her young son should have been permitted to leave the scene. However, their liberty continued to be constrained.

[87] Neither the applicant’s continued detention nor her arrest was justified. Her arbitrary detention and arrest strike at the core of her fundamental constitutionally protected right to be free to go about her way without interference by the state in the absence of exigent circumstances.

[88] Had Ms. Martin been released, an unlawful search of her purse would not have been undertaken, the drug evidence would not have been found, and these charges would not have been laid.

[89] Ms. Martin did not testify on the voir dire with respect to the impact of the Charter breaches. However, I am satisfied that the impact on Ms. Martin’s interests was significant. She and her 12-year-old child were subjected to a lengthy period of investigative detention notwithstanding the absence of any information placing her or any member of the group in possession of a gun. During this time, she was not provided with an opportunity to speak with a lawyer to obtain advice with respect to her constitutional rights. Last, police conducted an unlawful search of her purse in which she held a reasonable expectation of privacy.

[90] Accordingly, this factor favours exclusion of the evidence.

Society’s Interest in Adjudication on the Merits

[91] Turning now to the third factor. I must determine whether society’s interest in the adjudication of this case on its merits, including whether the truth-seeking function of the criminal trial process, would be better served by admitting or excluding the evidence.

[92] The seriousness of the offence of trafficking in street drugs, and specifically fentanyl, cannot be overstated. The drug evidence is “real” or non-conscriptive evidence and is therefore inherently reliable. It did not arise from police misconduct although it would not have been found but for the police misconduct. To exclude the evidence will “gut” the Crown’s case against Ms. Martin and I anticipate will lead to her acquittal. However, to admit all evidence obtained as a result of a Charter breach simply because it is unquestionably reliable and relates to a serious offence would render s. 24(2) meaningless.

[93] The trial judge in McGuffie was found to have erred in admitting the drug evidence (notwithstanding his finding of significant police misconduct) because of his exclusive focus on the seriousness of the charges. The Court of Appeal in McGuffie noted the long-established principle (by which I am bound) that if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. McGuffie at para. 63. This is the situation I am faced with.

[94] After considering and balancing the factors in Grant, I find that society’s interests are best served by excluding the evidence.

“Justice A.K. Mitchell”

Justice A. K. Mitchell

Released: April 16, 2024.