



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gonzales, 2017 ONCA 543

DATE: 20170630

DOCKET: C58948

Feldman, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gilbert Gonzales

Appellant

Gregory Lafontaine, for the appellant

Ghazala Zaman and Kelvin Ramchand, for the respondent

Heard: November 28, 2016

On appeal from the conviction entered on October 4, 2013,
    and the sentence imposed on June 11, 2014, by Justice John McIsaac of the
    Superior Court of Justice, sitting without a jury.

Watt J.A.:

[1]

They seemed out of place. Two
    young men in a new van. Rented, but overdue. Driving in and around a
    residential neighbourhood. In the middle of the day. Some new houses, others at
    different stages of completion.

[2]

Another man was in the same area.
    Driving a truck. And trying to blend in. A police officer. Watching what was
    going on in the neighbourhood because there had been a lot of daytime break-ins
    there. Front doors kicked in. Things stolen.

[3]

The officer was suspicious about
    these two young men in the new van. He stopped them on a residential street. As
    he stood by the drivers door speaking to the driver, the officer smelled fresh
    marijuana. Arrests followed. Then searches. First, the van. Then, a house.
    Drugs. Money. A gun. Some ammunition.

[4]

Gilbert Gonzales was the driver of
    the van. A judge convicted him of three firearms offences and a count of
    possession of marijuana for the purpose of trafficking.

[5]

Gilbert Gonzales appeals his
    convictions, seeks leave to appeal the prison sentence imposed on him.

[6]

These reasons explain why I would allow the appeal from conviction, set aside the convictions entered at trial and enter verdicts of acquittal.

THE BACKGROUND FACTS

[7]

The circumstances in which Gilbert Gonzales came to police attention
    arose out of an investigation into a spate of daytime break-ins into homes in
    the southern part of York Region. Plainclothes officers driving unmarked
    vehicles patrolled the area on the lookout for those whose conduct raised their
    suspicions.

The Police Investigation

[8]

In September and early October, 2009, an increase in daytime residential
    break-ins in the Copper Creek area of Markham was reported to the Property
    Crimes Unit of York Regional Police. In response, the police increased their
    presence and the frequency of their patrols in the area. The reports did not
    include descriptions of any suspects or vehicles thought to be involved.

The First Sighting: September 30, 2009

[9]

Early in the afternoon of September 30, 2009, Detective Vernon Ward was
    patrolling and conducting surveillance on some streets where several break-ins
    had occurred. He was driving a truck, unadorned by any police markings or insignia.

[10]

Detective Ward noticed a brand new van being driven along one of the
    streets. There were two younger men in the van, of Latino descent. The
    officer considered what he saw suspicious. A van occupied by two younger men,
    in a residential area, a melange of completed and unfinished homes, coming from
    an area with no access and following a route with no apparent purpose or
    destination.

[11]

The vans occupants cast a suspicious look at Det. Ward as he waved them
    through an intersection. The van pulled into a driveway of a home at 31 Hislop
    and entered the garage. The garage door closed behind the van.  Detective Ward
    watched the home for about an hour. No one entered. No one left. The officer
    then left the area.

[12]

While surveilling the house at 31 Hislop, Det. Ward made some inquiries
    about the van that had entered the garage. The vehicle had been rented by a
    person with a Toronto address and was overdue for return to the rental company.
    Detective Ward considered the possibility that one of the occupants of the van
    lived at 31 Hislop. He could see no connection between the van or its occupants
    and the break-ins in the area.

The Second Sighting: October 5, 2009

[13]

Early in the afternoon of October 5, 2009, Det. Ward returned to the
    same area to continue his patrol and surveillance. He saw a van similar to the
    one he had seen five days earlier. As the van passed by, Det. Ward saw two men
    in it. Gilbert Gonzales was the driver. Both men looked towards him as they
    drove slowly through an intersection. Detective Ward followed.

[14]

The van drove by 31 Hislop, made a U-turn and parked down the street
    four or five houses away. Detective Ward pulled in behind the van. He intended
    to make a traffic stop of the van to pursue the investigation of the break-ins.
    The driver had not committed any highway traffic offence. The van then moved
    away from its parking spot, passed by 31 Hislop and turned onto another street.
    Detective Ward followed. He was suspicious of this vehicle given his impression
    that the driver was trying to avoid him.

The Traffic Stop

[15]

When Detective Ward signalled him to do so, the driver of the van pulled
    over. The officer approached the van. He could see through the side windows
    that the van was full of large cardboard boxes. Each box was sealed closed.
    Detective Ward was curious about the contents of the boxes. At the drivers
    door of the van, the officer displayed his badge and warrant card. Gilbert
    Gonzales, who was the driver, asked why he had been stopped. The officer told
    Gonzales that he (Ward) wanted to ensure that he (Gonzales) was a licensed
    driver entitled to operate the van. Gonzales handed over the documents the
    officer requested.

The Smell

[16]

When Gilbert Gonzales opened the window on the drivers door of the van,
    Det. Ward smelled the odour of fresh marijuana coming from the interior of the
    van. This odour and Gonzales apparent nervousness prompted Det. Ward to
    consider the possibility that the large sealed cardboard boxes contained drugs.

[17]

Detective Ward returned to his truck to verify the documents provided by
    Gonzales. He believed the occupants of the van were in possession of marijuana.
    He intended to arrest them for that offence. Although he was armed, Det. Ward
    was not wearing a protective vest. He called for assistance to make the arrest
    and waited for other officers to arrive before returning to the van.

The Arrest

[18]

When additional officers arrived, Det. Ward told them about his observations
    and his plan to arrest the occupants of the van for possession of marijuana. He
    also explained his intention to look in the van.

[19]

Detective Ward and the other officers approached the van. Detective Ward
    told Gonzales that he was under arrest for possession of marijuana. A uniformed
    officer advised Gonzales of his right to counsel (although the officer was
    delayed in giving Gonzales his caution), searched him incident to arrest,
    handcuffed him and put him in the rear of a police cruiser for transport to the
    police station. Back at the station, Gonzales was strip searched.

The Initial Search of the Van

[20]

Detective Ward opened the side door of the van. He removed one of the
    large cardboard boxes and opened it. Inside, the officer found two sealed,
    large black industrial plastic bags. When the officer opened one of the bags,
    he found several clear freezer-type Ziploc bags. In each was what appeared to
    be marijuana. He replaced the contents, closed the box, put it back inside the
    van and waited to obtain a search warrant to continue his search of the van,
    the boxes and their contents.

[21]

Apart from the box he opened and the contents of which he examined, Det.
    Ward did not conduct any further search of the van, open any other boxes or
    examine their contents.

[22]

Detective Ward arranged for the van to be towed to a police station to
    await issuance of a search warrant to permit a more extensive search of the van
    and its contents.

The Search Warrant for the Van

[23]

Police obtained a telewarrant authorizing a search of the van. The ITO
    included information about the surveillance on September 30 and the further
    observations made on October 5, including the boxes in the van and the contents
    of the box opened by Det. Ward. The affiant also described the ongoing
    investigation into the deluge of residential break-ins in the area where the
    van was stopped and its occupants arrested.

[24]

In the ITO the affiant noted Gonzales address as provided on the rental
    agreement for the van  1332 Gilley Road in Toronto  but failed to indicate
    that a property search disclosed that Gonzales was also a co-owner of 31
    Hislop.

[25]

When the van was searched, police found a substantial amount (252 lbs)
    of packaged marijuana. In a garbage bag between the front seats of the van,
    police found $105,000 in Canadian currency.

The Search Warrant for 31 Hislop

[26]

After the van was searched, police sought and obtained a second search
    warrant for 31 Hislop. The ITO included the results of the search of the van,
    as well as Gonzales connection to the premises at 31 Hislop.

[27]

During a search of 31 Hislop, police found another 185 lbs of marijuana
    along with a large quantity of freezer-style Ziploc bags, vacuum sealer
    equipment, empty cardboard boxes and $27,000 in cash. They also seized debt lists,
    cellphones, a money counter, a firearm and several rounds of ammunition.

The Trial Proceedings

[28]

The trial proceeded as a blended
voir dire
and trial before a
    judge of the Superior Court of Justice sitting without a jury. The trial judge
    found a single breach of s. 10(b) of the
Charter
. After the trial
    judge ruled that the things seized from the van and house were admissible as
    evidence, trial counsel for the appellant made no submissions. The trial judge
    made findings of guilt and entered convictions on three firearms counts and a
    single count of possession of marijuana for the purpose of trafficking.

[29]

Gonzales was sentenced to a global sentence of five years imprisonment.

The Grounds of Appeal

[30]

Gilbert Gonzales (the appellant) appeals both conviction and sentence.
    He raises several grounds of appeal.

[31]

On the appeal from conviction, the appellant advances a number of
    grounds which I would formulate as errors in:

i.

concluding that the appellant had not been arbitrarily detained;

ii.

concluding that the arrest of the appellant and search of the van
    allegedly incidental to that arrest were lawful;

iii.

failing to find a breach of s. 10(a) of the
Charter
when the
    appellant was detained;

iv.

failing to find that the post-arrest strip search of the appellant was
    unreasonable; and

v.

failing to exclude evidence obtained by the search of the van incident
    to arrest, and the van and house at 31 Hislop under warrant.

[32]

On the appeal from sentence, the appellant submits that the trial judge
    erred in jumping the joint submission on sentence.

THE APPEAL FROM CONVICTION

Ground #1: Arbitrary Detention

[33]

To provide a proper setting in which to evaluate this claim of error, it
    is beneficial to recall some features of the testimony of Det. Ward about his
    decision to pull over the appellants van.

The Essential Facts

[34]

Detective Ward was one of several officers patrolling and surveilling a
    residential area where a significant number of daytime break-ins had occurred.
    The officers involved were in plainclothes and drove unmarked vehicles.

[35]

On September 30, 2009, five days before the appellants arrest, Det.
    Ward had seen a brand new van, occupied by two younger-looking Latino men
    driving in an area where several break-ins had occurred. The van came from an
    area to which there was no access, then entered the garage at 31 Hislop. The occupants
    had given Det. Ward a suspicious look as they passed by. Detective Ward watched
    the house for a further hour but saw no signs of activity in or around it.

[36]

On that same day, Det. Ward learned that the van had been rented from a
    car rental company by a Gilbert Gonzales of a Toronto address. The vehicle was
    overdue at the rental agency. Detective Ward concluded that either the driver
    or passenger in the van had some connection with 31 Hislop, perhaps living
    there. He did not think that there was any link between the vehicle or its
    occupants and the break-ins he was investigating. He had no reason to stop it
    for any highway traffic or safety reason.

[37]

On October 5, 2009, Det. Ward saw the same or a similar van in the area
    in which he was conducting surveillance. The appellant was the driver. Both
    occupants of the van looked at Det. Ward prompting the officer to think that
    perhaps they had made him as a police officer. This time, the van did not
    pull into 31 Hislop, rather drove by and stopped a few houses beyond it. When
    Det. Ward pulled up behind the van, the vehicle pulled away.

[38]

Detective Ward signalled the driver of the van to pull over. The driver
    complied. Ward wanted to investigate the occupants to determine whether they
    were linked to the break-ins. The officer had no basis to stop them for any
    highway traffic or safety contravention. Detective Ward pulled the van over
    because he wanted to identify its occupants and to have a look inside the
    vehicle to see whether it contained any stolen property, gloves or anything
    else that would link it or its occupants to previous or future break-ins.

[39]

Detective Ward told the appellant, who was the driver, that he wanted to
    see his licence, ownership and insurance. The appellant complied and also
    turned over a copy of the rental agreement. The appellant avoided responding to
    Det. Wards inquiries about why he (the appellant) was in the area. With the
    drivers window lowered in the van, Det. Ward smelled the odour of fresh
    marijuana and could see several large sealed cardboard boxes in the rear of the
    van. The officer thought the boxes might contain drugs. He began to formulate
    grounds to arrest the occupants for possession of marijuana. The smell. The
    nervous appearance and evasive responses of the appellant. The refusal of the
    appellant to tell Det. Ward what he was doing and what was inside the boxes.

[40]

Detective Ward returned to his truck. He verified the accuracy of the
    appellants documents. He advised dispatch that he needed assistance with a
    traffic stop. Detective Ward then waited in his truck for assistance to arrive.
    About seven minutes later, three officers arrived. Detective Ward advised the
    other officers his belief that the occupants were in possession of marijuana,
    explained his reasons and his plan to arrest the occupants of the van They
    approached the van, told the occupants that they were under arrest for
    possession of marijuana and had them get out of the vehicle.

The Ruling of the Trial Judge

[41]

In a ruling that decided several issues raised on applications made at
    the outset of trial, the trial judge summarized the testimony of Det. Ward
    about the reasons he signalled the van driven by the appellant to pull over on
    October 5, 2009. The trial judge rejected any suggestion of an investigative
    detention and an argument that what occurred was a pretext stop. He considered
    the real driver of the stop was the authority provided by s. 216(1) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8:

I am satisfied that a fair reading of all [Det. Wards] evidence
    on this point confirms that what was really driving this interception was the
    power conferred by the Ontario
Highway Traffic Act
(HTA)



Suffice it to say, in the absence of the applicant satisfying
    me that there was no legitimate highway traffic purpose to this stop, even
    though the predominant motivation may have related to the investigation of this
    rash of residential burglaries, this complaint [of a pretext stop] must fail.
    Borrowing a phrase from [defence counsel]s oral submissions, the police may
    have been conducting a wide-ranging catch and release program to gather
    intelligence about potential perpetrators of these property offences, they were
    doing so in statutorily mandated waters. If I were to accede to the complaint
    in this context, I fear that I would be placing an unreasonable limit on
    legitimate police investigatory powers. I am not prepared to go that far given
    the limited intrusion into the applicants liberty interests in relation to the
    highly regulated privilege to operate a motor vehicle on a public highway.

[42]

The trial judge then compared the circumstances of this case with those
    in
Brown v. Durham Regional Police Force
(1998), 131 C.C.C. (3d) 1 (Ont.
    C.A.) where police stops were authorized by s. 216(1) of the
HTA
and
    concluded:

The parallels between that case and the instant case are
    compelling:

-

Both were motivated to provide intelligence for legitimate police
    interests;

-

Both were selective in the sense of targeting only suspicious members
    of the driving public and were, in that sense, not arbitrary;

-

Both involved plain view assessments of the drivers, passengers,
    vehicles and equipment; and

-

Both were limited to the requirements of the
HTA
and did not
    involve intrusive searches of persons and property.

The Arguments on Appeal

[43]

The appellant says that what occurred here was an arbitrary detention.
    This was a pretext stop, not authorized by law. The stop could not be
    justified, as the trial judge said, under s. 216(1) of the
HTA
.
    Detective Ward acknowledged that his singular purpose was to further the
    criminal investigation of the break-ins. He had no intention, much less basis,
    to investigate any highway traffic or highway safety issues.

[44]

The appellant calls to mind that s. 216(1) requires articulable cause,
    that is to say, a reason, legitimately connected to highway safety concerns, for
    stopping a motorist. There was here no basis to found a reasonable suspicion
    that the appellant was violating any law pertaining to highway regulation and
    safety, or that there were other more generalized safety concerns about the
    vehicle he was operating. Section 216(1) cannot be invoked to legitimize
    unauthorized stops or searches or arbitrary apprehensions.

[45]

The decision in
Brown v. Durham
that the trial judge found
    dispositive has no application. In
Brown v. Durham
, unlike here, there
    were legitimate highway safety concerns, in addition to criminal intelligence
    purposes. That there was a dual purpose to the stops in
Brown v. Durham
did not make them constitutionally invalid. But the evidence revealed but a
    single purpose here, a purpose which had nothing to do with s. 216(1). The
    trial judges finding to the contrary is unreasonable, and based on a
    misapprehension of Det. Wards evidence.

[46]

The respondent resists any suggestion that the initial detention of the
    appellant was arbitrary.

[47]

The respondent says the police have authority to investigatively detain
    persons based on reasonable suspicion, that is to say, reasonable suspicion of
    a nexus between the person who is to be detained and a recent or ongoing
    criminal offence. Here, there was a constellation of facts sufficient to ground
    a reasonable suspicion. Current information about daytime residential break-ins
    in the area where the van and its occupants were seen twice within a week. The
    apparently random nature of their driving pattern.

[48]

In addition, the respondent continues, a sufficient
HTA
purpose
    animated this stop: the need to confirm that the occupants were in lawful
    possession of the vehicle and lawfully licensed and insured to operate it. This
    invoked the dual purpose doctrine relied upon by the trial judge.

The Governing Principles

[49]

Several principles have a say in an assessment of this ground of appeal.

[50]

First, the
Charter
guarantee against arbitrary detention.

[51]

The purpose of the guarantee against arbitrary detention in s. 9 of the
Charter

is to protect individual liberty from
    unjustified state interference
:
R.
    v. Grant
,
2009 SCC 32,
    [2009] 2 S.C.R. 353, at para. 20. Absent a law to the contrary, individuals are
    free to do as they please. On the other hand, the police, more broadly the
    state, may act only to the extent that the law empowers them or it to do:
R.
    v. Mann
,
2004 SCC 52,
    [2004] 3 S.C.R. 59, at para. 15.

[52]

A law, whether originating in a statutory enactment, the common law or
    some combination of sources, may authorize and prescribe the limits on a
    detention. Provided the detention is at once authorized by law and does not
    exceed any limitations the law imposes upon it, the detention is lawful and
    thus not arbitrary within s. 9 of the
Charter
:
Mann
, at para.
    20.

[53]

In approaching a complaint of arbitrary detention, a court should
    consider first whether some lawful authority sanctions the detention, then, if
    permitted, whether the detention falls within or beyond any applicable limits
    on that authority.

[54]

In this case, the trial judge concluded that the detention was lawful
    under s. 216(1) of the
HTA
, even though the primary motivating factor
    was Det. Wards pursuit of his investigation of the daytime, residential
    break-ins in the area. Accordingly, it is necessary to consider whether the
    detention falls within the scope of s. 216(1) of the
HTA
.

[55]

Section 216(1) of the
HTA
authorizes a police officer to stop
    vehicles for highway regulation and safety purposes, even where the stops are
    random:
Brown v. Durham
, at para. 21;
R. v. Ladouceur
, [1990]
    1 S.C.R. 1257, at p. 1288;
R. v. Simpson
(1993), 79 C.C.C. (3d) 482 (Ont.
    C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited
    to the roadside. It must be brief, unless other grounds are established that
    permit a further detention. An officer may require a driver to produce the
    documents drivers are legally required to have with them. To check those documents
    against information contained in databases accessible through the onboard
    computer terminal in police vehicles, an officer is entitled to detain the
    vehicle and its occupants while doing so:
Brown v. Durham
, at para.
    24.

[56]

In addition to requiring production of various documents associated with
    the operation of a motor vehicle, a police officer, acting under the authority
    of s. 216(1) of the
HTA
, may also make a visual examination of the
    interior of the vehicle to ensure their own safety during the detention:
Brown
    v. Durham
, at para. 24;
Ladouceur
, at pp. 1286-1287;
R. v.
    Mellenthin
, [1992] 3 S.C.R. 615, at pp. 623-24. However, s. 216(1) does
    not authorize more intrusive examinations of the interior of the vehicle or
    inquiries of any occupant directed at subjects not relevant to highway safety
    concerns:
Brown v. Durham
, at para. 24;
Mellenthin
, at p.
    623-24.

[57]

A trial judges finding that highway regulation or safety concerns was a
    purpose that animated a traffic stop is a finding of fact. As a consequence,
    the finding is subject to deference and cannot be set aside by this court
    unless it is unreasonable or based upon a material misapprehension of the
    evidence adduced at trial:
Brown v. Durham
, at para. 27.

[58]

Sometimes, a traffic stop may have more than one purpose. However, the
    mere existence of another purpose motivating the stop, beyond highway
    regulation and safety concerns, does not render the stop unlawful. But the
    additional purpose must itself not be improper, or proper but pursued through
    improper means, and must not entail an infringement on the liberty or security
    of any detained person beyond that contemplated by the purpose that underpins
    s. 216(1):
Brown v. Durham
, at paras. 31, 34, 37-39 and 45.

[59]

Gathering police intelligence falls within the ongoing police duty to
    investigate criminal activity. And so it is that it is permissible for police
    to intend, within the confines of a stop and detention authorized by s. 216(1),
    to avail themselves of the opportunity to further the legitimate police
    interest of gathering intelligence in their investigation of criminal activity:
Brown v. Durham
, at paras. 31 and 33;
R. v. Storrey
, [1990] 1
    S.C.R. 241, at pp. 254-55.

[60]

Stops made under s. 216(1) will not result in an arbitrary detention
    provided the decision to stop is made in accordance with some standard or
    standards which promote the legislative purpose underlying the statutory
    authorization for the stop, that is to say, road safety concerns:
Brown v.
    Durham
, at paras. 51-54. Where road safety concerns are removed as a basis
    for the stop, then powers associated with and predicated upon those concerns
    cannot be summoned to legitimize the stop and some other legal authority must
    be found as a sponsor:
Simpson
, at pp. 492-493.

[61]

Police duties and their authority to do things in the performance of
    those duties are not co-extensive. Police conduct is not rendered lawful merely
    because it helped the police perform their assigned duties. Where that conduct
    interferes with the liberty or freedom of an individual, it will be lawful only
    if and to the extent it is authorized by law:
Simpson
, at p. 493.

[62]

Absent statutory authority to legitimize police conduct, the common law
    may provide a place of refuge. Precedents supports a two-step analysis where
    police conduct interferes with an individuals liberty. The first inquiry or
    step requires a determination of whether the police conduct that gives rise to
    the interference falls within the general scope of any duty imposed upon an
    officer by state or at common law. Where this threshold has been met, the
    second step or stage requires a determination of whether the conduct, albeit
    within the general scope of such a duty, involved an unjustifiable use of
    powers associated with the duty:
Mann
, at para. 24. This is the
Waterfield
test, first expressed by the English Court of Criminal Appeal, and adopted,
    refined and incrementally applied by our courts:
Mann
, at para. 25.
    See also
R. v. Waterfield
, [1964] 1 Q.B. 164 (C.A.).

[63]

The second step or stage involves and requires a balancing of the
    competing interests of the police duty and the liberty interests at stake. This
    entails consideration of whether an invasion of individual rights is necessary
    for the police to perform their duty, and whether the invasion is reasonable,
    in light of the public purposes served by effective control of criminal
    conduct, on the one hand, and respect for the liberty and fundamental dignity
    of individuals, on the other:
Mann
, at para. 26. Several factors exert
    an influence in applying this second test, the justifiability assessment:

i.

the duty being performed;

ii.

the extent to which some interference with individual liberty is
    necessary to perform that duty;

iii.

the importance to the public good of the performance of that duty;

iv.

the liberty intruded upon;

v.

the nature and extent of the intrusion; and

vi.

the context in which the police/citizen confrontation took place.

See
Mann
, at para. 26;
Simpson
, at pp.
    499-500.

[64]

Where a person is detained by police in the course of efforts to
    determine whether that person is involved in a criminal activity being
    investigated, that detention can only be justified if the detaining officer has
    some articulable cause, or said in another way, reasonable grounds to suspect,
    the person is involved in the investigated activity. This standard includes
    both objective and subjective components:
Mann
, at paras. 27 and 33;
Simpson
,
    at p. 500.

The Principles Applied

[65]

As I will explain, I would give effect to this ground of appeal and hold
    that the traffic stop made by Det. Ward was an arbitrary detention in breach of
    s. 9 of the
Charter
.

[66]

The principal basis upon which the trial judge found the stop and
    subsequent detention was lawful, thus not arbitrary, was that it was authorized
    by s. 216(1) of the
HTA
. I disagree.

[67]

Recall that the authority for which s. 216(1) provides is circumscribed
    by its purpose  highway regulation and safety. To determine the police purpose
    in effecting a stop and detection, we must consider the evidence of the
    officers involved, the persons detained and any other evidence, testimonial or
    real, concerning the circumstances and conduct of the stop. In this case, that
    takes us to the testimony of Det. Ward.

[68]

Detective Ward was in the area where the stop occurred for a single
    purpose. And that purpose had nothing to do with highway regulation or
    vehicular safety. As he testified, he was there  in plainclothes driving an
    unmarked vehicle  to investigate an untoward number of daytime residential
    break-ins in the area. He drove around and kept his eyes open for any signs
    that might assist in matching suspects with crimes.

[69]

The trial judge was obliged to ground the findings necessary
    to engage s. 216(1) on the evidence adduced on the
voir dire
and any
    reasonable inferences that might arise from that evidence. The record reveals
    no basis upon which to reject Det. Wards testimony that his purpose in
    stopping the van was to pursue his investigation of the residential break-ins,
    his
raison d'être

for
    being in the area

in the first
    place. This he planned to do by looking into the interior of the van for any
    indicia associated with break-ins: contraband, gloves, tools of the trade and
    such. Not only did Det. Ward identify his purpose as other than traffic
    regulation or vehicular safety, but he denied that the latter was the or even a
    purpose for the stop.


[70]

The trial judges finding that what was really driving this
    interception was the power conferred by the Ontario

Highway Traffic Act

(HTA) in particular, s. 216(1) cannot stand. It is
    unreasonable, bereft of evidentiary support. It turns the evidence of Det. Ward
    denying any such purpose on its head, converting his denial into positive proof
    of the contrary. And it misapprehends the substance of his evidence that his
    purpose of stopping the vehicle was to pursue the investigation into
    residential break-ins.


[71]

In responding to an argument advanced by defence counsel at trial that
    this was a pretext stop, the trial judge also suggested that the stop was a
    dual purpose stop and thus constitutionally permissible. Essential to this
    justification are
two
proper purposes: s. 216(1) of the
HTA

and pursuit of the investigation into
    residential break-ins. But as we have already seen, s. 216(1) of the

HTA

afforded no basis for the stop, thus could not be invoked
    as a constituent or component of a constitutionally permissible dual purpose
    stop.

[72]

The elimination of s. 216(1) of the
HTA
as a basis for the stop
    leaves for consideration the availability of any authority Det. Ward may have
    had at common law to investigatively detain the appellant.

[73]

None can gainsay that Det. Wards pursuit of the investigation into
    residential break-ins in the area where he detained the appellant falls within
    the scope of his common law and statutory duty to investigate crime and
    apprehend those who may be responsible for it. This satisfies the first
    requirement under
Waterfield
.

[74]

The second threshold to be met under
Waterfield
requires a
    consideration of whether the stop, albeit within the general scope of common
    law and statutory police duties, involved an unjustifiable use of the powers
    associated with that duty.

[75]

To begin, a police officer has no general authority to detain a person
    whenever that detention will assist the police officer in the execution of
    their duty. Thus, Det. Ward had no general authority to detain the appellant
    because doing so would assist him (Ward) in carrying out his investigation of
    residential break-ins.

[76]

To justify the detention requires a constellation of objectively discernible
    facts that gave Det. Ward reasonable cause to suspect that the occupants of the
    van were criminally implicated in the residential break-in activity under
    investigation.

[77]

Detective Ward had no information to link the van or its occupants to
    the daytime residential break-ins he was investigating. The officer knew about
    the number of break-ins and the time and manner of entry. But neither the
    police, nor Det. Ward, had a description of any individuals or vehicles that
    might have been involved in or associated with these activities. Detective Ward
    had seen the same van in the same area twice in five days. Each time, there was
    a driver and a passenger. However, on the first occasion, what happened
    satisfied Det. Ward that there was no connection between the van and the
    break-ins. The occupants had access to 31 Hislop. They entered the house.
    Detective Ward did not see them leave. He thought that one of the men may have
    lived there. Scarcely the stuff of articulable cause or reasonably grounded
    suspicion.

[78]

Similarly, nothing that happened on October 5, 2009 could ground a
    reasonable suspicion. The same vehicle. Two young men. A look from the
    appellant to Detective Ward as the appellant drove through the intersection. Nothing
    more.

[79]

The stop on October 5, 2009 was an arbitrary detention. The trial judge
    erred in holding otherwise.

Ground #2: The Arrest and Search Incident to Arrest

[80]

This ground of appeal focuses upon the arrest of the appellant and the
    search of one of the sealed boxes found in the interior of the van. Discrete
    but related claims of constitutional missteps are made in connection with both
    the arrest and the search.

[81]

To situate this claim of error in its proper environment requires a
    brief reference to some features of Det. Wards evidence.

The Relevant Circumstances

[82]

Shortly after Det. Ward walked up to the van and displayed his badge and
    warrant card at the drivers window, the appellant lowered the window.
    Detective Ward smelled fresh marijuana from inside the van. On approaching the
    vehicle, Det. Ward also noticed several large cardboard boxes piled on the
    floor of the van, some abutting the back of the front seats. Each box was
    sealed closed with tape. When asked about the contents of the boxes, the
    appellant said nothing.

[83]

Detective Ward had prior experience in drug investigations. He was
    familiar with the smell of raw marijuana from having participated in
    dismantling grow ops. He described the odours from the van as skunky.

[84]

Detective Ward returned to his truck with the appellants licence and
    insurance and the rental agreement for the van. He intended to arrest the
    appellant for possession of marijuana as soon as more officers arrived to
    assist with the arrests. He also planned to search the van incident to arrest,
    in particular, to determine the contents of the sealed boxes.

[85]

After the appellant had been arrested, Detective Ward opened the side
    door of the vehicle, removed a box, opened it and looked at its contents.
    Inside an industrial-size green garbage bag he found sealed Ziploc bags
    containing marijuana. Detective Ward closed up the box and began to prepare an
    ITO for submission to a justice of the peace for a telewarrant to search the
    van.

The Ruling of the Trial Judge

[86]

In brief reasons, the trial judge found that the arrest of the appellant
    without warrant was lawful under s. 495(1)(b) of the
Criminal Code
. He
    was satisfied that Det. Wards experience in drug investigations, coupled with
    the particularity of his description of the odour; the confirmatory opinions of
    other officers who participated in the arrest; and the appellants refusal to
    reveal the contents of the boxes met the standard of reasonably grounded belief
    described by s. 495(1)(b).

[87]

The trial judge was also satisfied that the single box search was
    incidental to arrest and that there was a reasonable likelihood that drugs
    would be found in the sealed boxes.

The Arguments on Appeal

[88]

The appellant says that his arrest for possession of marijuana was based
    solely on Det. Wards evidence that he smelled raw marijuana when the appellant
    lowered the window on the drivers side of the van. Smell alone does not
    constitute a reasonably-grounded belief that the appellant committed an
    indictable offence. It follows, the appellant argues, that the arrest was at
    once unlawful and arbitrary.

[89]

The appellant contends that whether a set of circumstances amounts to
    reasonable grounds to authorize an arrest involves a question of law that is
    subject to review on a standard of correctness. The standard involves both
    subjective and objective elements, which the trial judge conflated in his
    conclusory statement without an analysis. Here, the objective component is of
    critical importance. It cannot be met by speculation or consideration of
    irrelevant factors. Among the factors the trial judge considered, none were of
    any relevance to the issue except the confirmatory opinions of the other
    officers. But those provided negligible, if any support, when considered along
    with the fact that Det. Ward had already advised the other officers of his
    grounds, in particular the smell of the marijuana; and the manner in which the
    marijuana was packaged rendering an ambient odour unlikely.

[90]

In connection with the search of the single sealed box and its contents,
    the appellant contends that, absent an arrest or detention predicate that is
    itself lawful, the dependant search incident to it must equally be a
    constitutional casualty. For the authority to search is parasitic. An
    unconstitutional arrest or detention cannot found a constitutional search
    incident to it.

[91]

The respondent offers a different characterization of the arrest and
    search: both were lawful, neither arbitrary nor unreasonable.

[92]

The respondent says that there is no legal barrier or impediment to an
    experienced police officer relying on the smell of marijuana as a basis upon
    which to justify an arrest without warrant. In this case, the odour was
    specifically described by an officer with experience in drug investigations,
    including dismantling grow ops where the smell of raw marijuana would be
    prevalent. Besides, there were additional factors. Hesitation in lowering the
    window. Confirmation of the order by two other experienced officers. In the
    end, it was open to the trial judge to conclude that the cumulative effect of
    this evidence amounted to reasonable grounds for the purposes of s. 495(1)(b)
    of the
Criminal Code
. His conclusion is entitled to deference.

[93]

Turning to the search of the single carton in the van, the respondent
    says that this search was incidental to the lawful arrest of the appellant. Its
    purpose was to discover evidence of the offence on which the appellant had been
    arrested. The search authority invoked extends to a motor vehicle within the
    arrested persons control. And the search was limited in scope, not extending
    beyond a single carton immediately behind the drivers seat.

The Governing Principles

[94]

A peace officer may arrest without a warrant:

i.

a person who has committed an indictable offence or who, on reasonable
    grounds, the officer believes has committed or is about to commit an indictable
    offence; or

ii.

a person whom the officer finds committing a criminal offence.

See
Criminal Code
, ss. 495(1)(a) and (b).

[95]

The
Criminal Code
requires that an arresting officer
    subjectively have reasonable grounds on which to base an arrest. But more is
    required. In addition, the grounds must be justifiable from an objective point
    of view. To say the same thing in another way, a reasonable person in the
    position of the officer must be able to conclude that there were indeed
    reasonable grounds for the arrest. On the other hand, nothing more than
    reasonable grounds need be shown. Not a
prima facie
case. And not
    proof beyond a reasonable doubt:
Storrey
, at pp. 250-251.

[96]

Possession of marijuana is only an indictable offence where the amount
    in a persons possession exceeds 30 grams, based on the totality of the
    circumstances, including but not limited to the smell of marijuana in the
    vehicle:
R. v. Loewen
, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 4.

[97]

No bright line rule prohibits the presence of the smell of marijuana as
    the source of reasonable grounds for an arrest. However, what is dispositive
    are the circumstances under which the olfactory observation was made.
    Sometimes, police officers can convince a trial judge that their training and
    experience is sufficient to yield a reliable opinion of present possession. As
    with any item of evidence, it is for the trial judge to determine the value and
    effect of the evidence:
R. v. Polashek
(1999), 134 C.C.C. (3d) 187 (Ont.
    C.A.), at para. 14;
R. v. Morris
, 2013 ONCA 223, 106 W.C.B. (2d) 279, at
    para. 8;
R. v. Hoang
, 2013 ONCA 430, 107 W.C.B. (2d) 661, at para. 5.

[98]

It is beyond controversy that a search incident to arrest has its
    genesis in a lawful arrest. No further showing of reasonable grounds for the
    search itself is required:
Cloutier v. Langlois
, [1990] 1 S.C.R. 158,
    at p. 185-86. However, the search must be truly incidental to the arrest. There
    must be some reasonable basis for the search, for example, to ensure the safety
    of the public and police; to protect evidence from destruction; or to discover
    evidence. To be truly incidental to the arrest means that the police must be
    attempting to achieve some valid purpose connected to the arrest. This involves
    both subjective and objective elements. The police must have one of the
    purposes for a valid search incident to arrest in mind when conducting the
    search. And the searching officers belief that this purpose will be served by
    the search must be reasonable:
R. v. Caslake
, [1998] 1 S.C.R. 51, at
    paras. 19, 20 and 25.

[99]

Where the justification for a search incident to arrest is to find
    evidence, there must be some reasonable prospect of securing evidence of the
    offence for which the arrest has been made:
Caslake
, at para. 22. A
    search incident to arrest may include a search of an automobile of which the
    arrested person is in possession, but the scope of that search will depend on
    several factors:
Caslake
, at para. 23;
Polashek,
at paras.
    25-26.

The Principles Applied

[100]

Leaving until later consideration of the impact of the arbitrary
    detention on the lawfulness of the arrest, I would not give effect to either
    branch of this ground of appeal.

[101]

Turning first to the lawfulness of the arrest, I am satisfied that the
    trial judge reached the proper conclusion despite his consideration of two
    factors that appear to me to be irrelevant.

[102]

The trial judge relied on several factors in concluding that Det. Ward
    had reasonable grounds to arrest the appellant:

i.

Detective Wards evidence that he smelled raw marijuana when the
    appellant lowered the drivers door window of the van;

ii.

the specific attributes Det. Ward ascribed to the odour;

iii.

the experience of Det. Ward in drug, in particular, marijuana
    investigations;

iv.

the evidence of the officers assisting in the arrest that they too
    smelled marijuana; and

v.

the appellant had refused to answer Det. Wards questions about the
    contents of the boxes.

[103]

The trial judge stated the statutory conditions precedent to arrest
    without a warrant under s. 495(1)(b) of the
Criminal Code
were met in this case
. This paragraph,
    unlike s. 495(1)(a) does not, in terms, require that the officer have
    reasonable grounds to believe that a person
has
committed an
    indictable offence. What is required is that the officer personally observe
    facts or events that can support a reasonably grounded belief that a person
is
    presently
committing the offence. Depending on the circumstances, an odour
    of fresh or raw, as opposed to burnt or smoked, marijuana, on its own, may be
    sufficient to ground an arrest under s. 495(1)(b).

[104]

In reaching this conclusion that the arrest was lawful, the trial judge
    considered two factors that are irrelevant.

[105]

The first, that the appellant failed to respond to Det. Wards query
    about the content of the boxes, is problematic because the appellant was under
    no obligation to answer that question. To consider his failure to respond  in
    other words, his silence  as a factor extracts a price for the exercise of a
    constitutional right. But the trial judge went on to say that, excising this
    factor, he would reach the same conclusion.

[106]

The second, that other officers who participated in the arrests also
    smelled marijuana, is problematic for a different reason. The olfactory
    observations of these officers did not figure into Det. Wards initial
    determination. Detective Ward also told them of his grounds for the arrest in
    which the issue of raw or fresh marijuana figured prominently. The opinion of
    the other officers, at least as it seems to me, was not a relevant
    consideration in assessing whether the arrest was reasonably grounded.

[107]

Despite consideration of irrelevant factors or circumstances in reaching
    his conclusion on this issue, I would not interfere with the conclusion the
    trial judge reached. Unlike in
Polashek
, the evidence here described
    the odour as that of raw or fresh marijuana, an observation that spoke to an
    offence that was then ongoing. The officer was experienced in drug investigations.
    He had participated in dismantling grow ops, something that could support an
    inference that he would be familiar with the smell of vegetative marijuana. And
    his observations were made in connection with a van filled with large sealed
    boxes. I would not interfere with the trial judges conclusion on this point.

[108]

The search of the single sealed carton was a lawful search incident to
    arrest.

[109]

The single carton search took place immediately following the arrest. It
    involved the vehicle driven by the appellant, the vehicle from which the odour
    of fresh or raw marijuana emanated. The box examined was immediately behind the
    drivers seat, the position occupied by the appellant on arrest. There was a
    reasonable prospect that search of the sealed box would reveal the source of
    the odour, thus evidence of the offence for which the appellant was arrested.
    The search was minimally intrusive, the officer choosing to await issuance of a
    warrant to examine the several remaining identical boxes.

[110]

I would reject this ground of appeal subject to what I will have to say
    later about the impact of the prior arbitrary detention on the lawfulness of
    the arrest.

Ground #3: Failure to Comply with Section 10(a) of the
Charter

[111]

This ground of appeal asserts a failure to advise the appellant of the
    reasons for the initial detention prior to arrest. The appellant does not
    suggest that he was not told of the reasons for his arrest.

[112]

A brief reference to the circumstances of the initial encounter between
    Det. Ward and the appellant will be of service in understanding the complaint
    advanced.

The Essential Background

[113]

Detective Ward was pursuing his investigation of several daytime residential
    break-ins when he signalled the appellant to pull over to the roadside. He
    approached the drivers door and asked the appellant to lower the window. From
    outside the vehicle, Det. Ward could see several boxes piled up in the back.
    When the window was lowered, the officer could smell fresh marijuana. From his
    observations of the odour, the boxes, the appellants mannerisms and his
    failure to respond to direct questions, Det. Ward suspected that the appellant
    was in possession of marijuana, possibly in the boxes.

[114]

Detective Ward asked the appellant for his drivers licence, insurance
    and ownership. The officer explained to the appellant that he wanted to be sure
    that he (the appellant) was entitled to operate the van, validly licensed and
    properly insured. Detective Ward said nothing about the break-ins or the drugs.

[115]

Detective Ward awaited assistance from other officers for about seven
    minutes after he had returned to his truck. During that time, the appellant and
    his passenger remained in the van. Ward was armed, but not wearing a protective
    vest. He summoned assistance for his own safety.

The Ruling of the Trial Judge

[116]

The trial judge considered some authorities describing the informational
    duties of the police under s. 10(b) of the
Charter
and applied them in
    his determination of the claim of an infringement of s. 10(a). He was satisfied
    that because of Detective Wards vulnerability, he was entitled to defer for
    seven minutes his obligation to tell the appellant the reasons for his
    detention. In the result, the trial judge was satisfied that the officer had
    not breached s. 10(a) of the
Charter
as
    a result of the delay
.

The Arguments on Appeal

[117]

The appellant acknowledges that delivery of the information required by
    s. 10(a) can be delayed because of officer safety concerns. But, the appellant
    says, no such concerns reasonably arose here. The occupants of the van were
    cooperative. They did nothing that could be construed as threatening behaviour.

[118]

The respondent supports the conclusion reached by the trial judge. The
    smell of marijuana and the other observations made by Det. Ward were
    contemporaneous with the initial stop. In the usual course, it would be
    incumbent on Detective Ward to provide the s. 10(a)
Charter
advice to
    the occupants of the van immediately. But a reasonable delay in doing so is
    permissible where police safety is at risk as it was here. Detective Ward was
    alone. There were two men in the van. Although the officer was armed, he was
    not wearing a protective vest and did not have available to him all his use of
    force equipment. The driver was acting suspiciously. He refused to answer
    direct questions about his presence in the area and the contents of the sealed
    cartons. He was slow to provide the requested documents.

[119]

The respondent points out that the delay here, solely for the purpose of
    police safety, was a mere seven minutes. The delay was justified. No breach has
    been established.

The Governing Principles

[120]

A few brief points about the operation of s. 10(a) inform my
    determination of this ground of appeal.

[121]

First, the substance of the right.

[122]

Section 10(a) includes both temporal and substantive aspects. The
    beneficiaries are those who are arrested or detained. The phrase on arrest or
    detention serves not only to define the class of beneficiaries  those
    arrested or detained  but also to assist, together with the adverb promptly,
    in marking out when the right accrues. The provision describes the substance of
    the information to be conveyed  the reasons for the arrest or detention. At
    a minimum, s. 10(a) requires that individuals who are arrested or detained for
    investigative purposes be advised, in clear and simple language, of the reasons
    for their detention:
Mann
, at para. 21.

[123]

A functional equivalent of the term promptly in s. 10(a) is the phrase
    without delay, which appears in s. 10(b). There, the phrase is synonymous
    with immediately, but does permit delay on the basis of concerns for officer
    or public safety:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    paras. 2 and 41.

[124]

The right to prompt advice of the reasons for detention is rooted in the
    notion that a person is not required to submit to an arrest if the person does
    not know the reasons for it. But there is another aspect of the right
    guaranteed by s. 10(a). And that is its role as an adjunct to the right to
    counsel conferred by s. 10(b) of the
Charter
. Meaningful exercise of
    the right to counsel can only occur when a detainee knows the extent of his or
    her jeopardy:
R. v. Evans
, [1991] 1 S.C.R. 869, at pp. 886-887.

[125]

To determine whether a breach of s. 10(a) has occurred, substance
    controls, not form. It is the substance of what an accused can reasonably be
    supposed to have understood, not the formalism of the precise words used that
    must govern. The issue is whether what the accused was told, viewed reasonably
    in all the circumstances, was sufficient to permit him to make a reasonable
    decision to decline or submit to arrest, or in the alternative, to undermine
    the right to counsel under s. 10(b):
Evans
, at p. 888.

The Principles Applied

[126]

As I will briefly explain, I would not accede to this ground of appeal.

[127]

For all practical purposes, the original purpose for the traffic stop 
    pursuit of the residential break-in investigation  disappeared when the odour
    of marijuana drifted out of the drivers window, the several sealed large
    cartons hoved into view; and the responses and mannerisms of the appellant
    bespoke up to no good.

[128]

Ideally, Det. Ward should have provided the s. 10(a) disclosure without
    delay when this constellation of circumstances came together. But, he was alone
    with two occupants of a motor vehicle that was fully operable on a residential
    street. Armed, but not fully protected. And concerned about his safety. A seven
    minute delay before arrest and the full informational package does not amount
    to an infringement of s. 10(a) in these circumstances.

Ground #4: The Strip Search

[129]

The final assertion of constitutional infringement relates to a
    post-arrest strip search of the appellant at the police station. The submission
    was advanced briefly in the appellants factum. It requires little factual
    elaboration.

The Essential Background

[130]

Police officers at the division to which the appellant was taken after
    arrest, strip-searched him. Det. Ward, was unaware of the strip search. There
    is no suggestion that the strip search was not conducted in an reasonable
    manner.

The Rulings of the Trial Judge

[131]

The trial judge rejected the complaint summarily. In his view, since
    there were ample grounds to justify the appellants arrest, this complaint
    evaporates. No additional factors suggested that the strip search was not
    warranted.

The Arguments on Appeal

[132]

The appellant says that the strip search was unreasonable because it was
    incidental to an arrest that was itself unlawful because it originated from an
    arbitrary detention. It necessarily follows that since a strip search can only
    be justified as incidental to a lawful arrest, that if the arrest itself was
    unlawful, the strip search is equally so. The strip search was highly intrusive
    and an egregious breach of s. 8 of the
Charter
.

[133]

The respondent urges a different conclusion. The authority to conduct a
    strip search falls within the right to conduct a search incident to arrest. As
    long as the search is related to the purpose of the arrest, it will be
    justified. In this case, the appellant was arrested for possession of a controlled
    substance for the purpose of trafficking. Strip searches are warranted in such
    cases to discover secreted drugs and prevent their disposal.

The Governing Principles

[134]

The principles that govern strip searches are well established and not
    the subject of disagreement between the parties.

[135]

First, the common law search incident to arrest power includes the
    authority to conduct a strip search:
R. v. Golden
, 2001 SCC 83, [2001]
    3 S.C.R. 679, at para. 26. But the authority to conduct strip searches is
    subject to limitations:
Golden
, at para. 26.

[136]

Second, as with all searches incident to arrest, a strip search must be
    incident to the predicate arrest. In other words, the search must be related to
    the reasons for the arrest itself. For example, where the arrest is for an
    offence involving possession of contraband and the purpose of the search is to
    discover contraband secreted on the arrestees person:
Golden
, at
    para. 92;
Caslake
, at para. 17.

[137]

Third, strip searches must not be carried out as a matter of routine, an
    inevitable consequence of every arrest:
Golden
, at paras. 90-95.

[138]

Fourth, in addition to the reasonable grounds which must underpin the
    arrest for it to be lawful, additional reasonable and probable grounds must
    also justify the strip search:
Golden
, at paras. 98-99.

[139]

Finally, and it follows logically from the necessity of reasonable and
    probable grounds to justify the strip search, the mere
possibility
of
    an individual concealing evidence is not sufficient to justify a strip search
    to locate that evidence:
Golden
, at para. 94.

The Principles Applied

[140]

As I will explain, I would give effect to this ground of appeal and hold
    that the strip search of the appellant was unreasonable, thus a breach of s. 8
    of the
Charter
.

[141]

To take first the trial judges reasons for his conclusion that the
    strip search was not unreasonable. The trial judge concluded that since the
    appellants arrest was based on reasonable grounds, the submission that the
    strip search was unreasonable evaporates in the absence of any additional
    grounds.

[142]

As we have seen, the inquiry into the unreasonableness of a strip search
    is not co-extensive with the basis for the arrest to which it is said to be
    incident. As with all searches incident to arrest, a strip search must be for a
    purpose related to the arrest. But reasonable and probable grounds beyond those
    that justify the arrest are required to render the strip search reasonable. And
    where the purpose of the strip search is to discover or prevent the destruction
    of evidence, the mere possibility that evidence might be found falls short of
    what is required.

[143]

From what I have said, it follows that the trial judge erred in treating
    as dispositive of the lawfulness of the strip search the existence of
    reasonable grounds for the predicate arrest. Further, to the extent that his
    statement [t]here were no additional factors advanced suggesting this strip
    search was not warranted suggests that it was for the appellant to adduce
    evidence, it comes uncomfortably close to reversing the burden of proof. After
    all, this was a warrantless search that is presumptively unreasonable. The
    burden of overcoming presumptive unreasonableness lies on the Crown, not the
    appellant.

[144]

Assuming the arrest of the appellant was lawful, the evidence adduced
    simply cannot support a conclusion that would sustain the strip search as
    lawful. In combination, the circumstances do not establish more than, if even,
    a mere possibility that the appellant was concealing evidence that a strip
    search would locate. Recall the contents of the single box searched immediately
    upon arrest. An industrial-sized garbage bag. Large vacuum-sealed Ziploc bags,
    each containing what appeared to be bulk marijuana. Not apparently capable of
    secretion.

[145]

In the result I am satisfied that the strip search was unlawful and that
    the trial judge erred in concluding otherwise.

Ground #5: Admissibility of the Search Evidence

[146]

The final ground of appeal against conviction requires a tally of the
    impact of the
Charter
infringements on the admissibility of the
    evidence seized by the police in their searches of the appellant, the van, and
    the house at 31 Hislop.

[147]

The trial judge found a single breach of the information component of s.
    10(b) when arresting officers failed to advise the appellant of his right to
    retain and instruct counsel until 18 minutes after his arrest. In the interim,
    they had examined the appellants purse and conducted an inventory of the cash
    found on him on a search incident to his arrest.

The Decision of the Trial Judge

[148]

The trial judge admitted evidence of all the marijuana, cash and related
    paraphernalia found during the searches of the appellant, the van and the house
    at 31 Hislop. He was satisfied that the s. 10(b) breach was neither wilful nor
    reckless, albeit moderately serious. The impact on the appellants
Charter
-protected
    right was non-existent. The evidence was extremely reliable and fundamentally
    important to the proof of the case for the Crown.

The Arguments on Appeal

[149]

According to the appellant, consideration of the
Grant
lines of
    inquiry should result in exclusion of the evidence of the results of the
    searches.

[150]

The appellant says that what occurred here were serious breaches of
    several
Charter
rights protecting various interests. Arbitrary
    detention. An unlawful arrest. A breach of the information component of the
    right to counsel. An unreasonable strip search. These breaches had a profound
    impact on a wide variety of
Charter
-protected interests. The first two
    lines of inquiry under
Grant
strongly favour exclusion, a conclusion
    not displaced by the third.

[151]

The respondent contends that should this court find reversible error in
    the trial judges
Charter
ruling, the
Grant
analysis favours
    admissibility.

[152]

The respondent says that the infringements were not serious and, in any
    event, attenuated by good faith. What occurred is not indicative of a systemic
    or flagrant disregard of the appellants
Charter
rights. The search of
    the box in the van incident to the appellants arrest was minimally intrusive.
    The delay to await a warrant reflective of good faith.

[153]

The impact of the infringements on the appellants
Charter
-protected
    rights was not significant. The appellant had a reduced expectation of privacy
    in a rented van that was overdue. The delay in providing s. 10(b) advice did
    not disadvantage the appellant who did not make any incriminating statements.
    Warrants were sought for the van and house and executed in a reasonable manner.

[154]

The respondent points out that the third line of inquiry under
Grant
favours admission of the evidence. This is real evidence: 437 pounds of
    marijuana and $125,000 in cash. Not to mention guns and ammunition. It is
    reliable evidence and essential to the case for the Crown. In its absence, the
    case for the Crown is gutted.

The Governing Principles

[155]

The principles that control this determination are the three lines of
    inquiry mandated by
Grant

to
    assess and balance the effect of admitting constitutionally-tainted evidence on
    societys confidence in the justice system:

i.

the seriousness of the
Charter
-infringing state conduct;

ii.

the impact of the breach on the
Charter
-protected interests of
    the accused; and

iii.

societys interest in the adjudication of the case on its merits.

See
Grant
, at para. 71.

[156]

The first two lines of inquiry work together. Singly and in combination
    they pull towards exclusion of constitutionally-tainted evidence. The strength
    of the claim for exclusion equals the sum of the first two inquiries. The third
    and final inquiry resists this combined influence, pulling in the opposite
    direction with especial force when the evidence is reliable and crucial to the
    case for the Crown:
R. v. McGuffie
, 2016 ONCA 365, 336 C.C.C. (3d)
    486, at para. 62;
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at
    paras. 33-34.

[157]

Where the first two lines of inquiry under
Grant
advance a
    strong case for exclusion, the third line of inquiry will rarely, if ever, tip
    the balance in favour of admissibility. On the other hand, where the first two
    lines of inquiry offer weaker support for exclusion, the third line of inquiry
    will almost certainly confirm the admissibility of the evidence:
McGuffie
,
    at para. 63;
Grant
, at para. 140. See also
, R. v. Côté,

2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89.

[158]

Under the first line of inquiry which assesses the seriousness of the
Charter
-infringing
    state conduct, extenuating circumstances, such as the need to prevent the
    disappearance of evidence and good faith may attenuate the seriousness of the
    breach. But care must be taken to ensure that ignorance of
Charter
standards is neither rewarded nor encouraged and that negligence or wilful
    blindness does not become a proxy for good faith. Evidence that the
Charter
-infringing
    state conduct was part of a pattern of abuse tends to support exclusion:
Grant
,
    at para. 75.

[159]

The second line of inquiry, which focuses on the seriousness of the
    impact of the
Charter
breach on the
Charter
-protected
    interests of the accused evokes an evaluation of the extent to which the breach
    actually undermined the interests protected by the right infringed. We look to
    the interests engaged by the infringed right and examine the degree to which
    the violation impacted on those interests:
Grant
, at paras. 76-77. The
    more serious the impact on the accuseds
Charter
-protected interests,
    the greater the risk that admission of the evidence may signal to the public
    the
Charter
rights, high sounding as they may be, are of little avail
    to the citizen, thus breeding public cynicism and bringing the administration
    of justice into disrepute:
Grant
, at para. 76.

[160]

Under the third inquiry, the fact that the constitutionally-tainted
    evidence may facilitate the discovery of the truth and the adjudication of the
    case on the merits must be weighed against the factors favouring exclusion so
    that the interests of truth may be balanced against the integrity of the
    justice system:
Grant
, at para. 82:
Mann
, at para. 57.

[161]

The inquiries directed by
Grant
require both fact-finding and
    the weighing of various, often competing interests:
McGuffie
, at para.
    64. No overarching rule governs how the balance is to be struck:
Grant
,
    at para. 86. On appellate review, the decision to admit or exclude evidence
    under s. 24(2) is entitled to deference, absent an error in principle, a
    palpable and overriding error of fact or a determination that is unreasonable:
McGuffie
,
    at para. 64.

The Principles Applied

[162]

As I will explain, the trial judge erred in his s. 24(2) analysis. Those
    errors require appellate intervention and a re-appraisal of the admissibility
    of the evidence. That re-appraisal leads to an exclusion of the evidence.

[163]

At the front end of any s. 24(2) analysis is a determination of the
    fact, nature and extent of
Charter
infringement. The trial judge found
    a single infringement  a failure to provide the informational component of s.
    10(b) immediately upon arrest. He further found that this infringement did not
    result in any evidence being obtained.

[164]

The trial judge erred in failing to find that the traffic stop offended
    s. 9 of the
Charter
and, as a result, failed to consider its impact on
    the police conduct that followed and the admissibility of the seized evidence
    under s. 24(2).

[165]

The traffic stop and subsequent detention was arbitrary, thus offended
    s. 9 of the
Charter
because it was not based on any reasonable
    suspicion that the occupants of the van were involved in any way in the
    investigation of the residential break-ins that Det. Ward was then pursuing.
    And it was that detection that permitted Det. Ward to smell the raw marijuana;
    to see the sealed boxes; and to observe the appellants reaction to police
    questions. And it was these circumstances that provided Det. Ward with the
    grounds necessary to arrest the appellant. And it was that arrest that
    permitted the search incident to arrest that located the packaged marijuana in
    the sealed packets in the sealed cardboard box in the van. Which led to the
    search warrant for the van. Which led to the search warrant for the house. All
    of which led to the evidence that constituted the case for the Crown.

[166]

It follows from what I have said that the trial judges s. 24(2)
    analysis is not entitled to deference. His errors in failing to recognize the
    full extent of the
Charter
infringements that occurred here, in
    particular the front end arbitrary detention, led him to conduct his s. 24(2)
    analysis on a much more restricted basis than was required. His errors require
    our intervention and a re-appraisal of the admissibility of the evidence.

[167]

In my respectful view, a proper analysis under s. 24(2) requires
    exclusion of the products of the searches of the appellant, the van and the
    house at 31 Hislop. In combination, the seriousness of the police misconduct
    and the strong negative impact of the breaches on the appellants
Charter
-protected
    interests constitute an unanswerable case for exclusion. Doubtless, society has
    a significant interest in a trial on the merits. The evidence that is the
    subject of the complaints about unconstitutional conduct is reliable and
    crucial to proof for the case for the Crown. But societys immediate interest
    in an adjudication of the merits of this particular case must give way to the more
    important long-term interests served by its exclusion in this case.

[168]

This case involves serious police misconduct. Detective Ward had no
    grounds to believe that the occupants of the van had anything to do with the
    daytime residential break-ins he was investigating. He had seen the same van
    with two occupants enter a garage on the street five days earlier. He concluded
    then that there was no connection of the van or its occupants to the break-ins.
    The officer was not there doing traffic enforcement and had no traffic-related
    reason to pull the vehicle over. The officer knew or should have known that he
    had no basis to signal the vehicle to stop and to detain its occupants.

[169]

Detective Ward was an experienced police officer. He was not faced with
    a situation in which the law was uncertain or had recently changed. The
    controlling legal principles were well-established. Little, if anything, can be
    offered in mitigation.

[170]

A final point on the seriousness of the
Charter
infringing
    state conduct. Evidence emerged from the officers at trial that this stop was
    part of a larger pattern of pulling over suspicious persons and asking them
    what they were doing in the neighbourhood. That the misconduct was part of a
    pattern of abuse tends to support exclusion of the evidence.

[171]

The serious negative impact of the
Charter
breaches on the
    appellants
Charter
-protected interests also favours exclusion. The
    arbitrary detention negated the appellants personal liberty, his right to be
    left alone. The detention led directly to the basis for an arrest, which led to
    the search incident to arrest which revealed marijuana and furnished the
    grounds to apply for a warrant to search the vehicle and later the house where
    the incriminating evidence was found.  In other words, there was a strong
    causal connection between the initial arbitrary detention and the discovery of
    the incriminating evidence that constituted the entirety of the case for the
    Crown. And we should not forget the subsequent strip search, for which there
    was no basis, which offends the principles laid down in
Golden
about a
    decade earlier.

[172]

The first and second inquiries under
Grant
present a formidable
    case for exclusion, one beyond the capacity of the third line of inquiry to
    reverse.

CONCLUSION

[173]

For these reasons, I would allow the appeal from conviction,
    set aside the convictions entered at trial and enter verdicts of acquittal. I
    do not reach the appeal from sentence.

Released: DW June 30,
    2017

David Watt J.A.

I agree. K. Feldman J.A.

I agree. Grant Huscroft J.A.


