COURT FILE NOS.: CR-23-146 and CR-23-164 (Brampton) DATE: 2024-04-05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – FITZROY ALLEN

Counsel: Andrew Hrivnak, for the Crown/respondent Joel Prajs, for the accused/applicant

HEARD: March 13-14, 2024 [^1]

REASONS FOR RULING ON APPLICATION TO EXCLUDE EVIDENCE

Rahman, J.

1. Introduction

[1] The accused/applicant, Fitzroy Allen, is charged in a three-count indictment with possession for the purpose of trafficking cocaine, flight from police, and dangerous driving. He is charged in a separate indictment with failing to comply with a release order. The Crown alleges that the applicant fled a traffic stop on September 30, 2020 and that a subsequent search yielded cocaine in two areas of the car. Two Peel Regional Police officers testified that they pulled over the applicant because of his alleged “aggressive” driving. They said that the applicant initially pulled over his car after they turned on their lights and siren. But as one officer stepped out of the car, the applicant started driving again. After a short pursuit, the police managed to stop the applicant’s car by hitting it to disable it. They arrested the applicant for flight from police. It was after this arrest that they discovered the cocaine.

[2] The applicant applies to exclude evidence on the grounds that the police violated his ss. 8, and 9 Charter rights. [^2] The applicant argues that the police did not have sufficient grounds to conduct a traffic stop. The applicant alleges that the police did not have valid a Highway Traffic Act (HTA) reason to stop his car. The applicant also contends that the traffic stop was motivated, in part, by unconscious racial profiling, because the police noticed that the applicant was a Black man before they pulled him over. The applicant argues that the unconstitutional traffic stop made the subsequent stop and search of his car unlawful. He applies to exclude evidence gathered as a result of the unconstitutional stop under s. 24(2) of the Charter.

[3] The Crown concedes that the police breached the applicant’s s. 9 Charter rights. The Crown says that, while the police would have had grounds to stop the applicant under the HTA, the purpose of the stop was not to enforce the HTA. The Crown acknowledges that the police lacked the requisite reasonable suspicion required to detain the applicant. However, the Crown argues that the cocaine and other evidence was seized lawfully from the car and not in breach of s. 8 of the Charter. The Crown argues that the applicant’s flight from the initial traffic stop gave the police independent grounds to arrest the applicant for fleeing from them. The Crown argues that this intervening act made the police’s subsequent actions constitutionally compliant and made their ultimate stop and arrest of the applicant lawful. The Crown also disputes that the stop was motivated at all by racial profiling. The Crown argues that the s. 9 Charter breach does not justify the exclusion of evidence.

[4] For the reasons that follow, the application is granted. I find that the police breached the applicant’s ss. 8 and 9 Charter rights. The police had no lawful authority for the initial traffic stop. That stop violated the applicant’s s. 9 Charter rights. The police had no legitimate traffic-related reason to stop the applicant. They were stopping him to conduct a criminal investigation. I do not find that the traffic stop was motivated by the applicant’s skin colour. The applicant’s s. 8 Charter rights were also breached because the grounds to stop him came from the initial unconstitutional stop of his car. The Charter breaches justify exclusion of the evidence. The breaches here were serious because the police had insufficient grounds under both the HTA and the common law to justify the stop. The impact on the applicant’s Charter-protected interests was significant. The importance of the evidence to the Crown’s case, and its reliability, cannot save the evidence from exclusion. It is appropriate to exclude both the physical evidence that was seized and the post-breach observations of the police.

2. The Charter application

2.1. The officers’ testimony about the reason for the traffic stop

[5] Two Peel Regional Police officers, Cst. Skwarek and Cst. Cippolone, testified that they were on their way back to their police division, driving west on Queen Street in Brampton, when a blue Acura caught their attention. Both officers described the Acura’s movements as aggressive in what was medium to heavy traffic. They first noticed the car when it was about 100 yards ahead of them.

[6] Cst. Skwarek was in the passenger’s seat of the marked police cruiser. Cst. Cippolone was driving. Cst. Skwarek testified that he noticed the blue Acura driving “aggressively.” He believed that the car was trying to “make space” between itself and the officers’ cruiser. He told Cst. Cippolone what he saw. The officers tried to catch up the Acura. Once they were about 30 feet from the Acura, Cst. Skwarek could read the car’s license plate. He ran the plate through three police databases. Cst. Skwarek said that he ran the plate because the car was driving in a careless and aggressive manner and he wanted to know why the car was trying to drive away from them. In cross-examination, when asked about the manner of the applicant’s driving, Cst. Skwarek could not say how many times the applicant changed lanes, but believed it was more than three. He said that it was the way the applicant conducted the lane changes and the number of them that caught his attention. He disagreed with the suggestion that the applicant’s driving was completely consistent with a driver trying to get ahead in traffic. In cross-examination, when asked about his suspicion that the applicant was trying to create distance between himself and that police, the officer added that he recalled the applicant trying to get ahead of a transport truck and that it appeared that he applicant was trying to get ahead of the truck to get out of the police’s sight. The officer acknowledged that he had nothing about the truck in his notes.

[7] After querying the plate, Cst. Skwarek testified that he learned that the registered owner was named Fitzroy Allen and that he was “non-white.” He also learned the applicant’s height, weight and date of birth, and that he was facing charges of conspiracy, importing, dangerous operation, and resisting arrest. Cst. Skwarek said that he told his partner the results of the query. Cst. Cippolone also testified that he would have been able to see the information on the screen.

[8] Cst. Skwarek said that when they pulled behind the Acura, he could see the driver was a Black male. The officer testified that he saw the driver reach into the centre console with his right arm, and then reach into the back passenger seat floor area. Cst. Skwarek said that he found this to be suspicious. He saw the driver reach back a second time. On the second occasion, Cst. Skwarek testified that the driver twisted his whole body and reached back to the same area – the rear passenger’s side floor area. Cst. Skwarek believed that he “vocalized” what he was seeing, but he would not describe anything that he said to his partner as amounting to a “discussion” about what to do. Cst. Cippolone also testified that the driver of the Acura was driving aggressively and that the car was weaving in and out of traffic. The car’s movements were abnormal compared to the medium to heavy traffic that it and the police were driving in. Cst. Cippolone made the same observation about the driver turning around and reaching into the backseat area. He testified that he noticed that the driver matched the general description of the registered owner.

[9] According to both officers, it was Cst. Cippolone who made the decision to pull over the car. When asked about the traffic stop, Cst. Cippolone gave a very long answer. He testified that he believed he had a basis to stop the applicant for HTA violations of changing lanes unsafely and careless driving. Without any prompting the officer said that he had written in his notes that the stop was “not driving related.” The officer explained that this did not mean to him there was no driving-related reason for stopping the car. Rather, he made this note at the time as an indication that he had not planned on writing a ticket for “dangerous driving” because “giving out traffic tickets is not something I do often.” The officer explained that he has since stopped using this notation. The officer explained that he also wanted to investigate the applicant’s behaviour and that he was looking at the situation in its totality. Because the officer’s grounds for stopping the applicant are an issue, I set out the entirety of the officer’s answers below:

Q. After making that observation [of the driver turning and reaching into the back seat] and learning what you learned from police databases, what did you do next?

A. I try to look at situation as a totality. So I try to account for – because I can’t get away from fact I do know, I do know what his previous record is like, I don’t like to say in my notes, I don’t like to say my thought process that that had nothing to do with it. So, I try to think of things, um, the totality of things. So you’ll see my notes going from page 6 to 7, I’ll say why. So I’ll say I conducted a traffic stop on the vehicle. So the traffic stop is me activating full lights and my full sirens in order to allow the vehicle to know that I’m trying to pull it over. And then I specify as to my reasons why I stop the car. The first thing you’ll see is that I write “not driving related.” When I say not driving related, I commute rather far to and from work. So for me actually giving out traffic tickets is not something I do very often. I notice violations in the Highway Traffic Act and I will stop people for them, but I don’t give a ton of tickets so for me at this point when I say it’s not driving related I’m saying if I stop this car, I’m not giving him a dangerous operation of motor vehicle ticket, I could give him a change lane not in safety ticket, there’s a lot of reasons according to Highway Traffic Act that I feel I have the grounds to stop this veh. And I do admit my phrasing in my notes, not driving related -- I have since changed that because it’s kind of confusing.

Q. Just to be clear, you’ve since changed –

A. I’ve since changed –

Q. ­– when you’re making notes

A. when I make notes –

Q. – in other instances

A. – yeah when I make notes now if a similar situation comes up, I try to phrase it a little bit more appropriately. But all I’m saying is I probably wouldn’t have given a ticket but I do believe there was a Highway Traffic Act violation, so I take that into account. But I do want to conduct an investigation on his combined behaviours as well. So the behaviour one would be weaving in and out of traffic so that would be the Highway Traffic Act violation but it would also be to see what the reason for that is. The response for the registered owner of the vehicle who matched the description from what I saw at that point, and the turn around when we were being him. So these three behaviours in one draw my attention and my purpose is to go an speak about the driving and speak about the Highway Traffic Act violation but also to investigate the reasons as to why they came about. So I do conduct the traffic stop again keeping the entire situation the totality in my mind.

[Emphasis added]

[10] In response to questions from the court about the officer’s grounds to stop for a traffic violation, Cst. Cippolone explained that he could have laid a careless driving charge and that he could definitely have laid an unsafe lane change charge. The officer said that he often stops people for these offences but only gives them verbal warnings. He again explained that the notation about the stop not being driving related meant that he would not have written a ticket.

2.2. Analysis

[11] The Crown’s concession that there was a s. 9 Charter breach in this case was very reasonable and appropriate. Despite Cst. Cippolone’s testimony, I cannot accept that his intention was in any way traffic related. Rather, the officer knew that the applicant had serious outstanding charges, saw him making some lane changes, and wanted to see what he was up to. Because there was no HTA purpose behind the stop, the officer required reasonable suspicion of some specific criminal activity before stopping the applicant’s car and detaining him. As I will explain further, I am not satisfied that the officer had any HTA reason to pull over the applicant.

[12] Cst. Cippolone’s lengthy answer, excerpted above, makes it clear to me that he did not have a valid basis to stop the applicant under the HTA. The most significant factor is that the officer wrote in his notes that the stop was “not driving related.” Respectfully, his spontaneous explanation about the meaning of that entry, excerpted above, strains credulity. His explanation that he commutes a long distance and that he would not have written a ticket for dangerous driving (a criminal offence) but that he could have given a for ticket for changing lanes unsafely (an HTA offence) was difficult to understand. The convoluted nature of his explanation that his notes did not mean what they said was not convincing. Cst. Cippolone is not a rookie officer. He has 10 years of experience. He would have known the meaning this entry would have conveyed. That is likely the reason he felt the need to explain it without prompting. He would have known that his notes did not exist as some cryptic message to himself.

[13] Although the Crown conceded the s. 9 breach, I will consider whether the officer had grounds to conduct a traffic stop for traffic offence because it is relevant to the racial profiling allegation, and the Crown’s reliance on s. 24(2) of the Charter. I cannot agree that Cst. Cippolone had grounds under the HTA to stop the applicant. I recognize that the police had the power to lawfully stop the applicant without seeing him commit a traffic-related offence. However, that is not the power they purported to exercise. Cst. Cippolone said he had a basis to charge the applicant with HTA offences. I cannot agree he had an objective basis to do so. I have very little evidence about precisely what it was about the applicant’s driving that would have made it “unsafe.” The officers described his lane changes as “aggressive” and said that he was “weaving” in and out of traffic. But neither officer gave evidence how his driving and lane changes were unsafe. The fact that other cars braked, or that his lane changes affected other cars, on its own, does not suggest that he was making unsafe lane changes. And the driving that they described did not come close to what would be required to constitute careless driving. Cst. Cippolone acknowledged that he did not see the Acura do anything “extreme” and that no car had to take evasive action or swerve because of the applicant’s driving. I do not doubt that the officers saw the applicant make more than three lane changes and that this drew their attention to his car. But I do not accept that they had grounds to conduct an HTA stop for any HTA violation.

[14] Apart from the allegation that the applicant was “weaving” in and out of lanes, and that other cars had to apply their brakes, there is no evidence that would suggest his lane changes were unsafe. Neither officer testified that the applicant’s driving caused a safety issue, nor can their conclusory statements about his driving support a finding that it was unsafe. The mere fact that they saw other cars braking, does not mean the lane changes were unsafe. They did not give evidence that the applicant was cutting off other cars or that any of them had to brake suddenly. And Cst. Cippolone’s testimony that three or more such lane changes would constitute careless driving is simply incorrect.

[15] I will now turn to the allegation that the police’s decision to stop the applicant was based, in part, on his skin colour.

2.3. The racial profiling allegation

[16] Although this case does have some indicators of racial profiling, I am not satisfied that the applicant’s skin colour played a part in Cst. Cippolone’s decision to stop the applicant. I say that because I believe that Cst. Cippolone stopped the applicant to investigate him because he had outstanding charges, and that the officer would likely have done the same thing to someone who was not Black. In short, Cst. Cippolone probably stopped the applicant because of the serious outstanding criminal charges and not because he is Black.

[17] Given the systemic nature of anti-Black racism, and the prevalence of the problem, courts must take claims of racial profiling seriously. A significant body of case law has set out how courts should deal with these serious allegations. In R. v. Musara, 2022 ONSC 3190, at para. 361, Nakatsuru J. helpfully set out the following list of principles from that case law that apply in assessing allegations of racial bias:

• Racial profiling occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment.
• There are two components to racial profiling: (1) the attitudinal component, i.e. where the person in authority accepts that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous; and (2) the causation component, i.e. where this thinking consciously or unconsciously motivates or influences, to any degree, decisions by persons in authority in suspect selection or subject treatment.
• The inquiry is primarily focused on the motivations of the police, but given the unconscious nature of racism, a denial of racism by the police is not the end of the inquiry.
• Racial profiling will rarely be proven by direct evidence and will normally be proven by inferences drawn from circumstantial evidence, including the “correspondence test”, where the circumstances correspond to the phenomenon of racial profiling which provides a basis to reject direct evidence to the contrary.
• The existence of objective grounds for the detention cannot justify the impugned police decision or conduct if they are tainted by any degree of racial profiling. Policing decisions based even in part on racism or racial stereotypes are by definition objectively unreasonable decisions.

[Emphasis added; citations omitted]

[18] In applying the correspondence test referred to above, there is no need to find that an officer has lied about the reason for the allegedly racially motivated investigative step. That is because officers may not be aware that they were influenced by race. That is the nature of unconscious bias. In R. v. Sitladeen, 2021 ONCA 303, the Court of Appeal described the totality of circumstances approach courts should take in assessing claims of racial profiling. The court held (at para. 54) that a trial court must “consider all the circumstances that led to an accused's detention and/or arrest” and then “determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law.”

[19] Cst. Cippolone is the one who decided to initiate the traffic stop, so it is his grounds that are central to the racial profiling allegation. Although Cst. Skwarek testified that he was communicating with his partner, I accept both officers’ evidence that it was Cst. Cippolone’s decision to stop the applicant because he was the driver.

[20] To be sure, there are some indicators of racial profiling in the case. The applicant is a Black man who was subject to a traffic stop without objectively reasonable grounds. The purported reason for the stop was aggressive driving, even though it was ultimately motivated by a desire to do a criminal investigation. However, in the end I am not satisfied that the evidence here establishes racial profiling. As I have explained above, Cst. Cippolone’s reason for stopping the applicant was based on his desire to conduct a criminal investigation because the registered owner of the vehicle – whose description matched the applicant – had outstanding charges. Although he knew the applicant was Black before initiating the traffic stop, I am satisfied that Cst. Cippolone planned to pull him over as soon as he learned the applicant had a spate of serious outstanding charges. I am not satisfied that the applicant has established that Cst. Cippolone’s reasons for stopping the applicant included the fact that the applicant was Black.

[21] I should add that Cst. Skwarek’s testimony about believing that the applicant was trying to create space is concerning and, on its face, raises the spectre of racial profiling more than Cst. Cippolone’s. I say that because, without any basis, the officer believed that the driver of the blue Acura was trying to create space between himself and the police. He disagreed with the suggestion that the car did not simply look like it was trying to get ahead. Yet there was nothing he described about its driving that would support any suspicion that the driver was trying to get away from the police. That is especially so because there was at least 100 yards of distance between the police and the Acura when the first noticed its aggressive driving. It is hard to understand why Cst. Skwarek believed that the driver of a car who was a football field away would have noticed the police and then, drawing attention to himself, would have tried to get away from them. However, I do not attribute the officer’s inexplicable belief to racial profiling. Rather, I believe that the officer decided in hindsight, after having seized cocaine from the applicant’s car, that this was the reason for the way the car was driving. Indeed, his answers in cross-examination seem to support this form of after-the-fact reasoning. When asked at what point he believed the applicant had noticed them, Cst. Skwarek answered that he made the assumption “almost immediately” because the applicant’s driving was “evasive” and “abnormal to the flow of traffic.” The officer said that this driving made it seem like the applicant was trying to “create space” and get away from the police intentionally. He then added “And that from what we now know is cocaine and the stashing motions is what made me believe that he did know we were behind him.”

[22] I will next consider whether the search of the car violated s. 8 of the Charter.

2.4. Section 8

[23] The Crown argues that the ultimate search of the applicant’s car was lawful and did not violate s. 8 of the Charter. The Crown argues that, even though the initial traffic stop was unlawful, the applicant’s flight was “an intervening event that broke the chain of non-compliance [with the Charter].” In support of its position the Crown relies on the following two cases: R. v. Fountain, 2013 ONCJ 434, aff’d 2015 ONCA 354, and R. v. Blackwood.

[24] In my view, neither case helps the Crown and both cases are distinguishable from the facts in the case at bar.

[25] In Fountain, the police detained the accused as part of a pro-active policing “carding” stop. As the police were completing the contact card, a third person “interjected himself” into the interaction between the police and the accused. The accused’s response was to “blade” his body, pinning his arm to his left side. One of the officers perceived this as a threat, and reached out and patted the accused. The officer felt something he perceived was a gun and yelled “gun.” The accused immediately fled the scene and discarded the gun during the chase. Horkins J. found that the initial stop and detention of the accused was unlawful because the police lacked reasonable suspicion. However, Horkins J. found that the seizure of the gun “had relatively nothing to do with the question and answer session or the carding of Mr. Fountain.” Horkins J. found that the discovery of the gun happened “when the carding was interrupted by the sudden arrival of this third individual who surprised and startled the officers. That intervening act suddenly moved the dynamic flow of events in a different direction.” Horkins J. concluded (at para. 68) that the discovery of the gun had nothing to do with the earlier unlawful detention:

Does the fact that the pat-down revealing the gun occurred in the context of an unlawful detention make the search itself unlawful. In my opinion, no. There was a dramatic intervening act which re-set the circumstances. Until this dramatic turning point there was no indication that the officer had any intention, or interest, in actually arresting Mr. Fountain let alone in searching him.

In my assessment the discovery of the gun therefore flowed from a lawful search conducted in exigent circumstances. It did not flow from the earlier unlawful detention. In my view it is this intervening exigent circumstance that distinguishes this case from many of those that were put forward in support of excluding the gun from evidence in this case.

[Emphasis added.]

[26] In concluding that the search did not violate s. 8, Horkins J. considered this court’s decision in Blackwood. Blackwood has more similarity to the case at bar. Mr. Blackwood was the passenger in a car that had been pulled over by police. The police had queried the names of the people in the car and learned that they were known to carry guns. Mr. Blackwood was told to keep his hands visible and was asked focussed questions. When Mr. Blackwood was told to get out of the car he refused. An officer reached in, grabbed Mr. Blackwood, and took him from the car. As Mr. Blackwood was being walked to the back of the car, he assaulted the officer, pushing him to the ground. After Mr. Blackwood was brought under control of the officers, they discovered that he had a handgun. Thorburn J. (as she then was) found that, although Mr. Blackwood was entitled to defend himself, his actions were offensive rather than defensive and went beyond what was required to defend himself. Thorburn J. concluded that the search was not unlawful because it was conducted following Mr. Blackwood’s assault of the officer.

[27] Both Fountain and Blackwood are distinguishable from the case at bar. In Fountain, the intervening event was unrelated to the event that led to the discovery of the gun. The police’s grounds to search Mr. Fountain were not based on his unlawful detention. Similarly, in Blackwood, the police conducted a search after Mr. Blackwood used excessive force. Again, the police did not obtain grounds to search Mr. Blackwood by virtue of their unconstitutional detention. In the case at bar, the applicant drove away from an unlawful traffic stop. He was entitled to leave. When he left, he had not yet committed the criminal offence of flight from police. That offence is only committed during a pursuit. A pursuit did occur after he had driven away. The police’s basis for their pursuit, and the applicant’s subsequent arrest, was the officers’ belief the applicant had no right to leave. But he did. Moreover, there was also no intervening event that created exigent circumstances. There was nothing that the police had to do to protect public safety because of the manner of the applicant’s flight. There is no evidence that the applicant’s driving, either when he drove away from the stop or during the pursuit, was dangerous or otherwise causing a safety issue on the road. Cst. Cippolone said that when the applicant drove away “he was not gliding away, but driving away.” Cst. Skwarek said that the applicant’s car initially drove slowly but then sped up. While the police were concerned about him entering the intersection, their safety concerns related more to their continuation of a pursuit. Neither officer testified that the manner of the applicant’s driving required the police’s intervention.

[28] I cannot accept Crown counsel’s submissions that, for policy reasons, it would be inappropriate to find that the applicant had the right to leave the traffic stop. Crown counsel correctly observes that there is no evidence that the applicant knew why the police were trying to pull him over. He could not have known that they lacked grounds to arrest him. However, as Blackwood demonstrates, detainees are entitled to lawfully resist their unlawful arrest provided they do not use excessive force. As with a traffic stop, a detainee is not in a position during a quick interaction with the police to determine whether the police have sufficient grounds to arrest them. Yet they are lawfully entitled to resist that arrest with reasonable force. I should also add that I am deciding this question in the context of a Charter application. I am not deciding whether the applicant would have a defence on the merits of the charge. Simply put, I cannot see any policy reason to ignore the police’s unconstitutional conduct when it is that conduct that led directly to their grounds to arrest the applicant and then search him incident to that arrest. If the applicant had committed a separate offence, like driving dangerously, my conclusion on s. 8 may have been different. But that is not what happened here.

[29] The police’s pursuit of the applicant and their forcing him to pull over was also a violation of s. 9 because they had no authority to initially detain him. His arrest flowed directly from this unlawful detention and his decision not to comply with it. Consequently, the search of his car violated s. 8 of the Charter.

[30] I will next consider the application of s. 24(2) of the Charter.

3. Section 24(2) of the Charter

[31] During submissions on the third branch of the Grant inquiry, an issue arose about precisely what evidence the court could exclude as having been “obtained in a manner” that violated the Charter. I will first deal with that question before moving on to the three-step exclusionary inquiry.

3.1. What evidence was obtained in a manner?

[32] The applicant’s notice of application did not specify what evidence he was seeking to have excluded. It simply said that the applicant was seeking “an order excluding the evidence.” To be fair to Mr. Prajs, he may not have been the lawyer from his firm who drafted and filed the application, because the notice simply contains the firm’s name, and was not signed by any lawyer. It appears that Mr. Prajs’ only appearance on this file was for this application. I will comment that Charter applications require more particulars about how a claimant’s rights were allegedly breached and precisely what evidence the claimant wants excluded than was included here.

[33] When Mr. Hrivnak made submissions about the effect of the exclusion of the evidence, he remarked it would effectively end the Crown’s case. I asked whether the Crown might still have a case on the other charges. Mr. Hrivnak quite fairly observed that if the court excluded the officers’ observations after the breach, that would put an end to the Crown’s case on all counts. The point was not argued any further, perhaps because of my comment that it was questionable whether a court could exclude observations in these circumstances. Since then, having re-examined the caselaw, I find that the police’s observations after a Charter breach can be considered evidence that was “obtained in a manner” and can be subject to exclusion.

[34] Most of the case law that considers whether the police’s observations should be excluded concern observations made by police before they commit a Charter breach and when they are lawfully placed to make their observations. In R. v. Wannamaker, 2019 ONSC 6459, Dawe J. (as he then was) considered whether observations that preceded a Charter breach ought to have been excluded. Similarly, in R. v. O’Shea, 2019 ONSC 1514, Schreck J. held that while evidence preceding a Charter breach could be subject to exclusion under s. 24(2), the observations of the police prior to the Charter breach were not sufficiently causally, temporally, or contextually connected to the breach. In O’Shea, the observations were made two hours before the breach.

[35] What both Wannamaker and O’Shea make clear is that observations, like any other evidence, may be subject to exclusion where they are sufficiently connected to the breach to be considered to have been “obtained in a manner.” In the case at bar, I find that there is a sufficient temporal and causal connection. The temporal connection is strong. The observations are temporally connected because they happened during the breach of the applicant’s rights and immediately after it. The causal connection is not as strong as the temporal connection, but it is also not tenuous. The officers would not have been in a position to make their observations had they not initially violated the applicant’s rights. In the end there is a sufficient connection between the breach and the violation of the applicant’s rights that the police’s post-breach observations were obtained in a manner that violated the Charter.

3.2. The Grant inquiry

[36] An application of the three stages of the Grant inquiry favours exclusion of the evidence.

[37] On the first step of the Grant inquiry, I find that the breaches here were serious. The police did not have grounds to stop the applicant. Cst. Cippolone did not have reasonable suspicion that the applicant was involved in a specific crime. Moreover, I do not accept the Crown’s argument that Cst. Cippolone had grounds to conduct a traffic stop, even if that was not his intention. As I have explained above, I am not satisfied that Cst. Cippolone’s observations disclosed any HTA violations, and certainly not the ones he specified. As already mentioned, his own notes state that the traffic stop was not driving related. The police’s interest in the applicant was based on his outstanding charges. The police wanted to stop his car to see what he was up to. I appreciate that, when the applicant fled the first traffic stop, the police became concerned that he was fleeing from them and believed that they had a right to stop him. Although they initially lacked authority to stop him, their actions in stopping him the second time are more understandable, even if they were unlawful. The subsequent ss. 8 and 9 breaches caused by the second stop and the subsequent search are less serious. However, the s. 9 breach arising from the first traffic stop is sufficiently serious, on its own, that this step of the Grant inquiry strongly favours exclusion.

[38] The second step of the Grant inquiry also favours exclusion. The applicant was twice detained unlawfully by police. The first detention was brief, because the applicant decided to leave on his own. However, the police did not have lawful authority to detain him after he left. The first stop was unlawful, and the applicant was entitled to leave. He was not driving dangerously such that the police were justified in trying to stop him again to protect the public. His car was the searched because of the second unlawful detention. As the Supreme Court observed in R. v. Harrison, 2009 SCC 34, at para. 31, an unconstitutional stop and search of a car “impacts on [a] motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial.” The breaches had a significant impact on the applicant’s liberty and privacy interests. This step of the Grant inquiry also strongly favours exclusion.

[39] The third step of the Grant inquiry favours admission, as it usually does. The evidence in question is reliable and its exclusion will leave the Crown with no case. Society’s interest in an adjudication on the merits, especially where the charges are serious, is high. This step of the Grant inquiry strongly favours admission.

[40] Balancing the three Grant factors, I find that the evidence must be excluded. The third step of the Grant inquiry is the only one that favours admission. The first two steps strongly favour exclusion. As the Court of Appeal recently observed in R. v. Whittaker, 2024 ONCA 182 at para. 33:

Where the first two factors make a “strong case for exclusion”, the third will rarely, on its own, justify admission. That said, “where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission” [Citations omitted.]

[41] There is no compelling public interest here that overwhelms the first two factors. The evidence must be excluded.

4. Conclusion

[42] The application is granted. The evidence seized from the applicant’s car, and the observations of the officers after they initiated the unconstitutional traffic stop are excluded from evidence.

Rahman, J.

Released: April 5, 2024

[^1]: I heard this application as a case management judge under s. 551.3 of the Criminal Code. [^2]: The applicant’s notice of application also alleged a breach of s. 10 of the Charter. The application contained no particulars, and Mr. Prajs abandoned it before the hearing began.