



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bakal, 2021 ONCA 584

DATE: 20210830

DOCKET: C67651

Fairburn A.C.J.O., Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mustafe Bakal

Appellant

Lance Beechener, for the appellant

Jeffrey Pearson, for the respondent

Heard: February 10, 2021 by video conference

On appeal from the convictions entered by Justice John M.
    Johnston of the Superior Court of Justice on July 3, 2019.

Fairburn A.C.J.O.:

A.

OVERVIEW

[1]

In the early morning hours of August 13, 2017, a
    woman called 911 to report that she had just been assaulted by the appellant, Mustafe
    Bakal, who was her boyfriend at the time. She told the 911 operator that the
    appellant had just left the apartment with a firearm in the waistband of his
    pants. That 911 call precipitated a quick police response.

[2]

With the assistance of the appellants cell
    phone service provider, Detective Constable (D.C.) Meredith of the Toronto
    Police Service (T.P.S.) was able to successfully track the appellants phone
    moving in an eastbound direction from Toronto toward Ottawa. The tracking
    information was conveyed to the Ontario Provincial Police (O.P.P.), who were
    then able to locate the appellant and his brother travelling in a vehicle on
    Highway 401 just east of Kingston, Ontario. The police stopped the vehicle and arrested
    the appellant for assault.

[3]

When the vehicle was searched incident to the arrest
    for assault, a vacuum-sealed package of what was believed to be cocaine was located
    in a hidden compartment in the trunk. The police then stopped the search and
    obtained a telewarrant for further inspection, after which they discovered two loaded
    firearms hidden in a locked compartment in the centre console of the vehicle.

[4]

At their trial for multiple firearm and drug related
    offences, the appellant and his brother alleged

various
    violations of the
Canadian Charter of Rights and Freedoms
, seeking the
exclusion
    of all evidence seized from the motor vehicle. While the appellants brother
    succeeded in that pursuit (including in relation to a serious s. 10(b) breach
    that the trial Crown acknowledged), the appellant did not. Ultimately, the
    appellant was convicted of multiple drug and firearm counts, resulting in a global
    custodial sentence of six years. The charges against his brother were dismissed.

[5]

This appeal is predicated on three alleged errors said to have been made
    by the trial judge. Two of those errors are said to be rooted in the trial
    judges reasons for dismissing the appellants s. 8
Charter
application. The appellant contends that the trial judge erred by concluding
    that: (1) the exigent circumstances doctrine justified the warrantless tracking
    of his cellular phone; and (2) the search incident to arrest doctrine justified
    the initial warrantless search of the motor vehicle.

[6]

The third alleged error relates to what the appellant argues was the
    improper admission of expert evidence at trial related to drug pricing and jargon.
    The appellant maintains that if this court concludes that the expert evidence should
    not have been admitted, then acquittals must be entered because, without that
    evidence, the verdicts were necessarily unreasonable. Conversely, if the expert
    evidence was properly admissible, the appellant acknowledges that the
    reasonableness of the verdicts cannot be questioned.

[7]

For the reasons that follow, I would dismiss the appeal.

B.

The
    General Facts Leading up to the Police Response

[8]

Shortly before 3 a.m. on August 13, 2017, the complainant called 911 to
    report that she had just been assaulted by her boyfriend. The complainant
    conveyed to the 911 operator that, after assaulting her, the appellant had left
    the apartment with a gun in the waistband of his pants. The complainant said
    that the appellant always carried his gun with him and, while he had
    threatened her with his gun in the past, he had not specifically done so that
    night. Rather, the appellant had told the complainant that he was going to cho[ke]
    [her] and put [her] to sleep and throw [her] over the balcony.

[9]

The complainant told the 911 operator that the appellant had taken a
    suitcase containing her belongings with him when he left the apartment. While
    she did not know where the appellant had gone, she said that he had family in
    both Toronto and Ottawa. She also provided his cell phone number.

[10]

Shortly after the 911 call was made, Constable (Cst.) Cicchirillo of
    the T.P.S. arrived at the apartment. The complainant provided him with a few
    additional details, including about the assault and firearm. She said that the assault
    occurred in the bedroom and included the appellant banging her head against the
    wall multiple times, pushing her onto the bed, and choking her with both of his
    hands. The complainant also explained that the appellants gun was on the bedside
    table during the assault and that she didnt want to get shot. When asked
    whether the appellant threatened her with the gun, she said: No, but it was
    right there at the time. She described the gun as resembling Cst.
    Cicchirillos service firearm.

C.

The Warrantless Tracking of the Appellants Cell Phone

(1)

The Facts Leading up to the
    Pinging of the Cell Phone

[11]

D.C. Meredith worked as an investigator in the Major
    Crime Unit of the T.P.S. While it was unusual for an investigator in that unit to
    be involved in a domestic allegation, D.C. Meredith got involved because of the
    information about the gun.

[12]

After listening to the information being
    conveyed over the police radio and speaking with Cst. Cicchirillo (who had just
    spoken to the complainant), D.C. Meredith formed the view that it was critical for
    public safety that the appellant be located as quickly as possible. In his view,
    this required the use of an investigative technique known as pinging, a
    colloquial term used to refer to an exchange of signals between a cell phone
    tower and a cell phone. As cell phone towers only cover a certain geographical radius,
    the exchange of signals can provide information about the general location of
    the cell phone at the time the signal exchange occurs:
R. v. Grandison
, 2016 BCSC 1712, 342 C.C.C. (3d) 249, at paras. 64-65.

[13]

Given D.C. Merediths opinion about the urgency
    of the situation, he asked a T.P.S. civilian supervisor to contact the
    appellants telecommunications provider to request the companys assistance in pinging
    the appellants cell phone. The civilian supervisor declined to do so because,
    in his view, there was no urgency associated with finding the appellant and the
    matter could wait until judicial authorization had been obtained.

[14]

In contrast, it was D.C. Merediths belief that
    time was of the essence: there was a male who was unlawfully in possession of
    a firearm who had just committed an offence of violence while he had the
    firearm and it was in the public interest  and for the public safety to get
    the firearm and, if I didnt,  Id be in neglect of my duty. Accordingly, D.C.
    Meredith contacted the telecommunications company himself and asked for its assistance
    in locating the appellants phone. The company agreed to assist. Over the next
    short while, the pings demonstrated that the appellants cell phone was
    moving in an eastbound direction along Highway 401. That information was
    conveyed to the O.P.P., allowing officers to locate the vehicle in which the
    appellant was travelling.

(2)

The Trial Judges Reasons

[15]

The appellant claimed at trial that his s. 8
Charter
rights had been infringed when his cell phone was tracked without a warrant. He
    argued that there were no exigent circumstances that could justify this
    warrantless tracking, given that the complainant was safe and in police
    protection at the time that the pinging occurred. As there was no immediate
    risk of danger, the police should have been required to obtain a warrant before
    tracking his cell phone.

[16]

The trial judge dismissed that argument,
    concluding that, while the complainant may well have been safe, exigent
    circumstances remained. Given the appellants history of violence, his
    assaultive behaviour that night, the proximity of the firearm to the acts of
    violence, and the placement of the firearm in the waistband of the appellants pants
    when he left the apartment, the trial judge determined that there was a strong
    inference that the appellant was prepared to use the firearm on short notice.
    In these circumstances, the trial judge concluded that exigent circumstances
    justified the warrantless tracking of the appellants cell phone in an effort
    to locate him.

(3)

The Appellants Argument on Appeal

[17]

For the most part, the appellant repeats on
    appeal the same argument he advanced before the trial judge. He maintains that,
    given the complainant had been moved out of harms way, there were no objective
    circumstances justifying the warrantless search. The appellant emphasizes that there
    was no suggestion that he used or threatened to use the gun during the alleged assault
    of the complainant, and he did not threaten to shoot or harm anyone after he
    left the apartment. Therefore, the appellant says that there was nothing that
    could justify a warrantless tracking of the appellants cell phone.

(4)

Exigent Circumstances Justified the Warrantless Tracking

[18]

In the normal course, the police need prior
    judicial authorization to track a cell phone, which in turn provides
    information about an individuals whereabouts:
Criminal Code
, R.S.C. 1985, c. C-46, s. 492.1(2). The question for determination
    on appeal is whether the warrantless approach taken was justified on the basis
    that the police were operating in exigent circumstances. I see no error in the
    trial judges conclusion that this was the case.

[19]

This warrantless search doctrine, involving as
    it does exigent circumstances, is not designed to promote efficiency or
    expediency. Rather, its singular purpose is to accommodate those situations
    where the state can forgo obtaining prior judicial authorization because of the
    urgency of the matter at hand. In particular, the police can act without prior
    judicial authorization where there exists an imminent threat to police safety
    or public safety or in circumstances where there exists a risk of imminent loss
    or destruction of evidence:
R. v. Paterson
,

2017 SCC 15,
[2017] 1 S.C.R. 202,
at paras. 32-33;
R. v.
Feeney
,
[1997] 2 S.C.R. 13,
at para. 52;
R.
    v. Kelsy
, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para.
    24.

[20]

The exigent circumstances doctrine has deep
    roots in both the common law and statute: see e.g.
Criminal Code

ss. 117.02, 487.11, 529.3;
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19, s. 11(7). While the
    respondent made reference on appeal to the fact that the warrantless tracking
    of the appellants cell phone was provided for under s. 117.02(1)(b) of the
Criminal
    Code
, I will only briefly address this point as no submissions
    or authorities were provided to justify that suggestion.

[21]

Undoubtedly, s. 117.02(1)(b) reflects an important
    codification of the common law exigent circumstances doctrine where firearms and
    other forms of weaponry are involved. It is frequently used to search motor
    vehicles and other locations for firearms: see e.g.
R. v. T.A.V.
, 2001 ABCA 316, 299 A.R. 96, at paras. 23-26;
R. v.
    Narayan
, 2007 BCCA 429, 245 B.C.A.C. 243;
Virgo
    c. R.
, 2013 QCCA 1114. The provision reads as follows:

Where a peace
    officer believes on reasonable grounds



that an offence is
    being committed, or has been committed, under any provision of this Act that
    involves, or the subject-matter of which is, a firearm,

and
evidence of the offence is likely to be found on a person, in a
    vehicle or in any place or premises other than a dwelling-house
, the peace officer may, where the conditions for obtaining a
    warrant exist but, by reason of exigent circumstances, it would not be practicable
    to obtain a warrant,
search, without warrant, the
    person, vehicle, place or premises, and seize any thing by means of or in
    relation to which that peace officer believes on reasonable grounds the offence
    is being committed or has been committed
. [Emphasis
    added.]

[22]

It is not clear that the warrantless tracking
    of a cell phone to locate a person is provided for under s. 117.02(1)(b).
    Included in the list of outstanding questions would be: whether pinging a
    cell phone constitutes evidence of the offence; if it is evidence of the
    offence, whether it is evidence likely to be found on a person, in a vehicle
    or in any place or premises other than a dwelling-house; and, if these
    requirements were met, whether the search of one of those locations without a warrant
    would lead to the seizure of a thing by means of or in relation to which that
    peace officer believes on reasonable grounds the offence is being committed or
    has been committed.

[23]

While I would not rule out the application of s.
    117.02(1)(b) for purposes of the investigative technique used in this case, in
    my view, it would be unwise to determine the matter in the absence of
    submissions on the point. This is particularly true in this case given that the
    common law fills the void. Indeed, it is the common law that the trial judge
    leaned on to resolve the question of exigent circumstances at trial.

[24]

I reject the appellants assertion that there
    were no exigent circumstances present because he did not pose an imminent risk
    to others. While the exigent circumstances doctrine should be invoked only
    where it is necessary, the factual matrix within which the decision to track
    the appellants cell phone was made met that requirement:
Kelsy
,

at para. 35.

[25]

The police are charged with the responsibility
    of protecting the communitys safety. To this end, what the police knew was
    that the appellant had just violently assaulted his girlfriend on a bed while
    his firearm lay next to them. The police had been informed that the appellant
    had a history of violence, including previously threatening his girlfriend with
    his gun. They also knew that he had left this highly volatile situation with his
    firearm in the waistband of his pants. It is against that factual backdrop that
    the trial judge concluded that the concerns over public safety were well-founded.

[26]

The
trial judge also concluded that, had there
    been time, the police could have obtained a tracking warrant.

[27]

Section 492.1 of the
Criminal Code

was amended in
    2015 to create two types of tracking warrants, one for the tracking of
    transactions and thing[s] (s. 492.1(1)) and the second for tracking an
    individuals movement by identifying the location of a thing that is usually
    carried or worn by the individual (s. 492.1(2)):
Protecting Canadians from
    Online Crime Act
, S.C. 2014, c. 31, s. 23.
[1]
When it comes to tracking individuals (s. 492.1(2)), a reasonable grounds
    standard is operative: A justice or judge who is satisfied by information on
    oath that there are reasonable grounds to believe . See:
Robert
    W. Hubbard, Peter M. Brauti & Scott K. Fenton,
Wiretapping and
    Other Electronic Surveillance: Law and Procedure
,
    loose-leaf (2020-Rel. 76) (Aurora, Ont.: Canada Law Book, 2000), at ch. 3-13.

[28]

Although not strictly necessary to the reasoning process in this
    case, I agree with the trial judge that
, if there had been
    time, a tracking warrant pursuant to s. 492.1(2) of the
Criminal
    Code

could have been obtained. Indeed, the warrant
    likely would have been issued on the force of the complainants information
    alone. Yet the police were operating in exigent circumstances and, quite
    simply, did not have the time to obtain a tracking warrant.

[29]

While it was suggested to D.C. Meredith in
    cross-examination that he could have obtained a telewarrant to track the
    appellants cell phone in 15 minutes, the officer rejected that suggestion. So
    did the trial judge. So do I.

[30]

Section 487.1(1) of the
Criminal Code

allows an application for a
s.
    487

warrant to be made by telephone or other means of
    telecommunication where a peace officer believes that it would be
    impracticable to appear personally before a justice. Several other warrant
    provisions incorporate s. 487.1 by reference: see e.g., ss. 529.5, 487.092(4),
    487.05(3), 487.01(7). Notably, s. 492.1 of the
Criminal Code

is absent from that list of provisions.

[31]

In any event, a telewarrant is not free for the asking.
    To be sure, a telewarrant application carries the same degree of solemnity as
    an application that would be determined after being dropped at a courthouse in
    the light of day. While s. 487.1 provides for more flexibility in terms of how
    an application for a warrant is placed before a justice, it does not alleviate
    the normal demands placed upon an affiant in relation to preparing that
    application. Nor does it relieve the application justice from taking the time
    necessary to properly consider the application to determine whether the requested
    authorization should be granted.

[32]

In my view, even if a telewarrant had been
    available for purposes of obtaining prior judicial authorization to track the
    appellants phone, the police would have been hard pressed to obtain one in the
    less than three hours that transpired between when it became clear that the
    appellant had to be located and when he actually was located a few hundred
    kilometres away.

[33]

For all of these reasons, I would not give
    effect to this ground of appeal.

D.

The Search of the Motor Vehicle Incident to Arrest

(1)

The Facts Leading up to the Search Incident to Arrest

[34]

Once it was determined that the appellants cell
    phone was travelling in an eastbound direction, D.C. Meredith contacted the O.P.P.
to ask for their assistance.
While D.C. Meredith said
    that he believed that the appellant was headed for Ottawa, he also said that the
    only thing we know for sure is, hes heading eastbound on
[Highway]
401. D.C. Meredith also said that
    the appellant was wanted for a domestic assault in Toronto and that a warrant
    would be issued for his arrest.

[35]

Cst. Snider was the O.P.P. officer involved in
    locating the vehicle, stopping it, arresting the appellant for domestic assault,
    and conducting the search of the vehicle. While a cursory search was originally
    done at the scene, the vehicle was quickly towed to the police detachment to permit
    for a safer search environment.

[36]

Once at the police detachment, and before
    continuing the search, Cst. Snider called D.C. Meredith to discuss the alleged domestic
    assault and to gain a better understanding of what he should be looking for
    within the vehicle. Cst. Snider stated that he knew that, pursuant to the
    search incident to arrest doctrine, he could only search for offence-related
    property to the domestic assault.

[37]

While Cst. Snider knew that there was speak of
    a firearm, until he spoke with D.C. Meredith, he was unsure as to whether the
    firearm was offence-related property. He testified that D.C. Meredith told
    him that the firearm was related to the assault and that this information had
    been received from the victim of the domestic assault. The content of that
    discussion is clearly memorialized in Cst. Sniders handwritten notes, which
    were provided as part of the record on the
Charter

application: Advised firearm was related to domestic assault. Info
    from victim.

[38]

The call with D.C. Meredith occurred at 6:46
    a.m., and the search incident to arrest at the police detachment commenced at
    7:01 a.m.

[39]

Recall that the complainant told the police that
    the appellant had taken her suitcase, which was full of her possessions. Cst.
    Snider testified that he located suitcases in the back of the vehicle and that
    one of them contained womens clothing and a passport bearing a females
    identification.

[40]

The police also located a compartment in the
    trunk of the vehicle. Once opened, it appeared to contain a vacuum-sealed
    package of cocaine. A short time later, a superior officer directed that the
    search be stopped and a telewarrant obtained. A number of hours later, with the
    telewarrant in hand, the search recommenced, and two loaded firearms were found
    hidden in a locked compartment in the centre console of the vehicle. Both had
    their serial numbers removed. One had its trigger guard removed.

(2)

The Trial Judges Reasons

[41]

The trial judge concluded that Cst. Snider subjectively
    believed that he was entitled to search the vehicle incident to the arrest of
    the appellant for assault and that it was objectively reasonable to conduct
    that search in the circumstances.

[42]

While the trial judge acknowledged that the
    firearm was not used by the appellant in the course of the assault, he
    emphasized that the assault occurred in the bedroom, that the appellant had his
    gun on the bedside table in the same room, and that the complainant feared that
    she would be shot. He described the gun as being part of the events that
    unfolded in the condominium in Toronto on that early morning.

[43]

The trial judge concluded that Cst. Snider was
    entitled to rely upon the information he had received from D.C. Meredith as to
    the circumstances of the assault, and that those circumstances formed his
    reasons for searching the vehicle incident to arrest. Cst. Snider was entitled
    to search the vehicle for any evidence related to the assault and threats
    alleged by
[the complainant]
.

[44]

The trial judge then went on to express serious concerns
    regarding D.C. Merediths credibility. The details around why that is so are
    beyond the scope of these reasons. What is important is that the trial judge
    was so concerned with D.C. Merediths evidence that, 
[
t
]
o the extent that
    he had to rely upon D.C. Merediths evidence, he would only do so if it was
    corroborated. While it was true that Cst. Snider relied in part upon D.C.
    Merediths information to form his belief that the firearm was involved in the
    assault, the trial judge found that Cst. Snider was also searching the vehicle
    for other offence-related evidence and not exclusively for the firearm.
    According to the trial judge, Cst. Snider was entitled to do that. Ultimately,
    the trial judge concluded the following:

I do find the search was incident to the
    lawful arrest. The grounds formed by [Cst.] Snider, in my view, were not
    tainted by [D.C.] Meredith to the point that it was not a lawful search
    incident to arrest.

(3)

The Appellants Position on Appeal

[45]

The appellant advances two broad arguments regarding
    the search incident to arrest: (1) the trial judge erred by extending the
    search incident to arrest doctrine too far by including searches for what he
    describes as collateral evidence to corroborate a complainants version of
    events; and (2) the trial judge erred by concluding that Cst. Snider had a lawful
    basis to search the vehicle incident to arrest despite D.C. Meredith providing
    false and misleading statements to Cst. Snider.

(4)

The Firearm was Related to the Assault

[46]

The appellant takes issue with the following
    statement from the trial judges reasons:

While the firearm was not involved as part of
    the actus reus

of the assault, according to [the complainant], in any
    event, it was present. It was evidence at the scene.
The firearm may well have been evidence to corroborate the
    complainant[s] version of what she claimed happened in that condominium
    bedroom. In other words, locating a firearm could be seen as evidence to
    bolster [the complainants] statement that the [appellant] had the handgun at
    the time of the assault, and the threats
. Again it is
    clear that she is not alleging the gun itself was involved in the assault.
    [Emphasis added.]

[47]

The appellant contends that it is a step too far
    to use the search incident to arrest doctrine to seize evidence that might
    bolster the credibility of a complainant on what the appellant refers to as collateral
    matters. The appellant suggests that such an extension of the doctrine would
    lead to unbridled warrantless search powers because virtually anything could be
    seen to bolster a complainants credibility.

[48]

In support of this position, the appellant
    points to
R. v. Caslake
,

[1998] 1 S.C.R. 51, at para. 22, where
Lamer
    C.J. emphasized that for the police to search incident to arrest, there must
    be some reasonable prospect of securing evidence
of the offence for
    which the accused is being arrested
 (emphasis in
    original). The appellant argues that the trial judges reasons are unfaithful
    to
Caslake
,

as they improperly expand
    the scope of the search incident to arrest doctrine beyond its intended limit
    to capture all forms of evidence, not just that which is necessary to proving
    the offence.

[49]

I reject the suggestion that
Caslake
,

or any other
    authority for that matter, places the types of restrictions advocated for by
    the appellant upon the search incident to arrest doctrine. Before addressing
    why that is so, I will first address why the firearm was much more than evidence
    that would serve to corroborate the complainant
[
s
]
version of what
    she claimed happened in that condominium bedroom.

[50]

To be clear, the firearm was not some benign
    object lying on the bedside table beside the bed where the complainant was
    being choked. Rather, it was a deadly weapon that she had been previously threatened
    with and that she was afraid may actually be used during the violent assault.
    As before, she told the police that the firearm was right there at the time
    and that she didnt want to get shot.

[51]

The firearm was very clearly part and parcel of
    the offence, part of the physical and psychological domination taking place during
    the assault. While it was not used in the sense of being pointed at the
    complainant during the assault, it was plainly related to the assault and
    would be entirely relevant at a later trial for assault. It would also be
    entirely relevant to any sentencing proceeding that may ensue were the
    appellant to be convicted. Therefore, it was not merely corroborative of the complainants
    account, but fundamentally linked to the offence.

[52]

In any event, I reject the suggestion that the
    search incident to arrest doctrine turns on the nuanced distinction the
    appellant draws between collateral and non-collateral evidence. Even if the
    appellant were right, and the firearm could be properly characterized as
    collateral in nature because it could only serve to bolster the complainants
    credibility, the search incident to arrest doctrine would justify its seizure.

[53]

The search incident to arrest doctrine is a
    warrantless search power that strikes a vital balance between the privacy
    interests of individuals and the objectives of law enforcement:
Cloutier v.
    Langlois
,

[1990] 1 S.C.R. 158
;
Caslake
, at para. 14;
R.
    v. Golden
,

2001 SCC 83,
[2001]
    3 S.C.R. 679,
at para. 46. There are three legitimate
    goals that can justify searching incident to arrest: (1) ensuring the safety of
    the police and the public; (2) protecting evidence from destruction; and (3) discovering
    evidence 
of the offence for which the accused is being arrested
:
Caslake
, at para. 22 (emphasis
    in original).

[54]

Cst. Snider made clear that he searched the
    vehicle to discover evidence. While one can imagine another officer having said
    that the search was done for safety, staying with Cst. Sniders justification
    for the search, I will remain focused upon the evidence discovery component of the
    search incident to arrest doctrine.

[55]

There are three conditions that must be
    satisfied to certify the validity of a search incident to arrest:
R.
    v. Stillman
,
[1997] 1 S.C.R. 607,
    at para. 27
. First, the arrest must be lawful:
Caslake
, at para. 39. There is no complaint on appeal about the lawfulness
    of the appellants arrest. Second, the search must be truly incidental to the
    lawful arrest, meaning that the search must be directed at achieving a valid
    purpose connected to the arrest:
Caslake
,

at
    para. 19. And, third, any search incident to arrest must be conducted
    reasonably:
R. v.
Fearon
, 2014 SCC 77,
[2014]
    3 S.C.R. 621,

at para.
    27;
R. v. Saeed
, 2016 SCC 24,
[2016] 1 S.C.R. 518,
at para. 37.

[56]

Searching incident to arrest is undoubtedly an
    extraordinary power because: (1) it permits the police to search without a
    warrant; and (2) it permits the police to search in circumstances where
    judicial authorization might not even be available:
Fearon
,

at para. 16. This latter observation means that, for a
    search incident to arrest to take place, the police need not possess the reasonable
    grounds that would be required to obtain prior judicial authorization:
Caslake
,

at para. 20. Rather, all the police need is some reason
    related to the arrest for conducting the search at the time the search was
    carried out, and that reason must be objectively reasonable:
Caslake
,

at para. 25.

[57]

I take the appellant to be arguing that where a
    search incident to arrest is directed at discovering evidence, it will only be
    justified where there is a real prospect of securing actual evidence of the
    offence that can be admitted at trial. On this basis, the appellant contends
    that there was nothing the police would be justified in looking for within the
    vehicle incident to arrest.

[58]

Respectfully, I do not accept this submission.
    In my view, the common law animating the principles around the doctrine of
    search incident to arrest is clear. There is nothing in that body of jurisprudence
    that limits the police to searching only for evidence that is admissible at
    trial as going to prove an element of the offence. To the contrary, the police
    can search for those things that relate directly to the arrest. While those
    things may, from time to time, be admissible at trial as proof of the offence,
    when the police are searching for those things, they are not concerning
    themselves with questions of admissibility. Rather, as the common law directs,
    they are concerning themselves with whether there is a direct link between the
    arrest and what is being looked for.

[59]

The common law makes good, practical sense  sense
    that can be applied on the ground in real search incident to arrest scenarios. Importantly,
    the common law does not expect the police to ask themselves pristine questions
    about the elements of an offence and how what they are looking for might tie
    into those elements. Nor does the common law expect the police to consider complicated
    questions of admissibility.

[60]

Rather, the common law requires the police to
    ask whether the search is truly incidental to the arrest in question:
Caslake
,

at para. 17. Officers must take into account all of the
    known information when deciding whether what they are looking for is truly
    incidental to the arrest. At the end of the day, what is required is that the
    police are able to clearly explain why they did what they did and how it was
    connected to the arrest. On that basis, an after-the-fact reviewer will be able
    to determine whether a valid purpose connected to the arrest was being
    pursued and, if so, whether it was objectively reasonable in the
    circumstances:
Caslake
,
at paras. 19, 25.

[61]

Cst. Snider understood exactly that. As Cst.
    Snider explained, it is precisely why he called D.C. Meredith, so that he could
    discuss the alleged domestic assault and gain a better understanding of what related
    to the arrest and, therefore, what he was entitled to look for in the vehicle.
    As he put it, he could only search for offence-related property. He was right,
    and he did just that.

(5)

The Impact of D.C. Merediths False and Misleading Statements

[62]

The appellant advances two arguments related to
    the trial judges adverse credibility findings as they related to D.C. Meredith.

[63]

First, the appellant asserts that the trial
    judges conclusion about D.C. Merediths credibility should have resulted in a
    finding of an unlawful search because Cst. Snider based his reasons to search only
    upon what he was told by D.C. Meredith. I do not agree with this suggestion.

[64]

The appellants argument conflates the rejection
    of a witnesss credibility on a
voir dire

with the need to reject everything that the witness has said on an
    earlier occasion. That is not so.

[65]

Importantly, this is not a case where a trial
    judge determined that the information supplied by D.C. Meredith to Cst. Snider
    was inaccurate. To the contrary, and as previously discussed, it was entirely
    accurate and well supported in the record. While it is true that the trial
    judge had difficulty with D.C. Merediths credibility in his capacity as a
    witness on the
Charter voir dire
, those
    credibility findings did not touch on the accuracy of the information that D.C.
    Meredith conveyed to Cst. Snider. Accordingly, the trial judge was right to
    conclude that [Cst.] Snider was entitled to rely on the information that he
    received from [D.C.] Meredith as to the circumstances of the assault, and that
    those formed the grounds for his belief and the grounds to search the vehicle
    incident to arrest.

[66]

Second, the appellant argues that, even if this
    court concludes that the firearm was related to the domestic assault (which I
    have concluded), there is nothing supporting the suggestion that D.C. Meredith
    knew that to be the case when he advised Cst. Snider that, as reflected in Cst.
    Sniders notes, the: firearm was related to the domestic assault. Info from
    victim. It is the appellants position that D.C. Meredith merely invented that
    suggestion when he spoke to Cst. Snider and that it is pure happenstance that
    his invention turned out to be true. According to the appellant, the fact that
    it turned out to be true should not excuse that it was an invention in the
    first place and, therefore, the search incident to arrest should be found
    unlawful.

[67]

I reject the suggestion that D.C. Meredith was
    inventing anything.

[68]

The appellant emphasizes that Cst. Cicchirillo agreed
    with defence counsels suggestion in cross-examination that the firearm was not
    related to the assault. In my view, this observation on Cst. Cicchirillos
    part does not advance the appellants cause. The fact is that Cst.
    Cicchirillos evidence is riddled with detailed accounts about what the complainant
    had shared with him about the appellants firearm.

[69]

Police officers do not provide evidence on
Charter
    voir dires

to assist the court with the law. Rather,
    like all witnesses, they testify to assist the court with understanding the
    facts and it is up to the court to settle upon the actual facts and then draw
    legal conclusions from them. To this end, Cst. Cicchirillo testified about
    facts that established the clear legal nexus between the firearm and the
    assault. The fact that he did not characterize the firearm as related to the
    assault is neither here nor there.

[70]

While Cst. Cicchirillo could not recall exactly
    what he told D.C. Meredith, what is clear from both of their testimonies is
    that they spoke to each other after Cst. Cicchirillo spoke to the complainant,
    meaning after Cst. Chicchirillo learned the information about the firearm being
    related to the assault. What is also clear from Cst. Cicchirillos evidence is
    that, while he could not recall the specifics by the time of trial, he knows
    that he told D.C. Meredith about the firearm.

[71]

Like Cst. Cicchirillo, D.C. Meredith did not
    have good notes about what they discussed. What D.C. Meredith recalled by the
    time of trial was that Cst. Cicchirillo told him that the complainant had
    informed him that the appellant had a firearm. While by the time of trial D.C.
    Meredith could not recall telling anyone that the firearm was related to the
    assault, Cst. Sniders notes memorialized the fact that D.C. Meredith had done just
    that.

[72]

Therefore, of central importance is the fact
    that Cst. Snider had a note memorializing what he says that D.C. Meredith told
    him: that the firearm was related to the assault and that that information had
    come from the victim. That is true; that is accurate; and that is correct. Accordingly,
    I reject the appellants suggestion that D.C. Meredith was engaged in an
    elaborate invention when he spoke to Cst. Snider and told him what is actually
    true: Advised firearm was related to domestic assault. Info from victim. When
    looked at in context, it is clear that, while this case involved some foggy
    police memories by the time of trial, foggy police memories do not make for
Charter

breaches. Rather, looked at in its full context, as the
    trial judge did, it is clear that Cst. Cicchirillo learned from the complainant
    of the nexus between the firearm and the offence and passed that information on
    to D.C. Meredith, who in turn passed it on to Cst. Snider. Cst. Snider then
    memorialized that accurate information in his notebook.

[73]

Against that factual backdrop, it is clear that
    both Cst. Cicchirillo and D.C. Meredith will want to take better notes in the
    future. What is equally clear is that D.C. Meredith was not inventing anything.
    He simply forgot the specifics of his conversations with colleagues by the time
    of trial.

[74]

Accordingly, Cst. Snider had lawful grounds to
    search the vehicle incident to arrest. As such, the appellants s. 8
Charter

rights were not violated during the search incident to
    arrest of the vehicle.

E.

THE Expert Evidence

[75]

The trial Crown proffered the expert evidence of a police
    officer, Detective Sergeant (D.S.) Canham of the O.P.P. Organized Crime
    Section, to testify about various subjects pertaining to drug trafficking, including
    drug pricing and drug jargon. The appellant opposed the admission of that
    evidence on the basis of D.S. Canhams lack of training in the matter of drug
    jargon and the fact that he does not have the requisite degree of expertise
    and the experience to offer a fair, informed, balanced and reliable opinion on
    the definition and meaning of language that is used by suspected drug
    traffickers.

[76]

At the conclusion of the
voir dire
,

the trial
    judge ruled as follows:

The issue that I struggle with and have struggled with over the
    break is on the issue of [D.S. Canhams] expertise in jargon and language, and
    whether this officers expertise or experience meets the threshold reliability.
    At the end of the day, for reasons that I am going to expand on, I do find that
    he meets the threshold reliability. I will allow him, therefore, to testify in
    both of those areas.

[77]

We are informed by the parties that the reasons for this ruling do not
    appear to have been provided. Even so, this court has held that a failure to
    provide reasons for an evidentiary ruling is not fatal, provided that the
    decision is supportable on the evidence or the basis for the decision is
    apparent from the circumstances:
R. v. Tsekouras
, 2017 ONCA 290, 353
    C.C.C. (3d) 349, at para. 156, leave to appeal refused, [2017] S.C.C.A. No. 225.
    In this case, as in
Tsekouras
, the absence of reasons on the ruling is
    not fatal on this issue. In my view, considered in the entire context, the
    record provides an adequate basis upon which to decide the matter.

[78]

The appellant points to the fact that D.S. Canham is a member of the O.P.P.,
    the same police service as Cst. Snider. The appellant contends that this should
    have been a relevant factor in determining the admissibility of the expert
    evidence.

[79]

I do not take the appellant to be saying that, standing on its own, the
    fact that D.S. Canham is a member of the same police service as Cst. Snider
    necessarily disqualified him based on lack of impartiality. Nor could that
    argument be advanced: see
R. v. Mills
,

2019 ONCA 940, 151 O.R.
    (3d) 138, at para. 62. Whether of the same police service or not, the real
    question for determination is whether the expert was unable or unwilling to
    carry out the duties of an expert:
Mills
, at para. 62. Here, D.S.
    Canham stated that he had zero involvement in the investigation into the
    appellant, and he clearly explained his understanding that he had an obligation
    as an expert to give impartial opinion. I see no difficulty on this record
    with the expert being proffered from the same police service as the one that
    conducted the investigation.

[80]

In challenging the admissibility of this expert evidence, the appellant
    also emphasizes that D.S. Canham did not have any specific training in the area
    of drug jargon. The appellant also points to the fact that evidence about drug
    jargon is not capable of scientific validation.

[81]

Expert evidence does not need to be predicated upon years of training.
    From time-to-time, police officers will testify as experts on the basis of
    expertise that has been obtained through practical experience on the job over
    many years:
Mills
,

at para. 54;
R. v. Sekhon
,

2014
    SCC 15, [2014] 1 S.C.R. 272, at paras. 73-74,
per
LeBel J. (dissenting,
    but not on this point). While D.S. Canham had not taken a course in drug
    jargon, his experience with on-the-ground policing was vast, involving
    approximately twenty years of involvement with drug trafficking investigations.
    He had been working in a
milieu
involving drug culture for many years
    and had come to know the language used by those involved in its trade.

[82]

Moreover, expert opinion evidence does not have to be capable of
    scientific validation. To make this point, I would simply adopt what Doherty J.A.
    said in
R. v. Abbey
, 2009 ONCA 624, 246 C.C.C. (3d) 301, at para. 109,
    leave to appeal refused, [2010] S.C.C.A. No. 125: "[m]ost expert evidence
    routinely heard and acted upon in the courts cannot be scientifically
    validated." Examples abound, including psychiatrists testifying about the
    existence of mental states; doctors testifying about the causes of injury or
    death; and accident reconstructionists testifying about the location or causes
    of accidents:
Abbey
, at para. 109. Like these types of expertise, the
    evidence about drug jargon cannot be supported by scientific error rates,
    resting as it does upon "specialized knowledge gained through experience
    and specialized training in the relevant field":
Abbey
, at para. 109;
Mills
,

at para. 53.

[83]

Finally, the appellant maintains that D.S. Canham was partial, in the
    sense that he was disposed to only assisting the Crowns case, and that he did
    not meet the test for threshold reliability.

[84]

A few examples are provided to demonstrate D.S. Canhams alleged
    partiality, including the witness being confronted with and outright rejecting
    the suggestion that a zip, which he said referred to an ounce of cocaine,
    could in fact be an ounce of marijuana. Indeed, the expert went so far as to
    suggest that he did not need to check on the Internet to see whether zip
    could be used to refer to marijuana because, in his experience, zip was a
    common term for an ounce of cocaine and hes never heard anyone call an ounce
    of marijuana a zip.

[85]

In oral submissions, the appellant gave another example of what is said
    to be demonstrative of the experts lack of reliability and his partiality. At
    one point, the expert testified in-chief that drug prices have not changed that
    much over the years, only to later acknowledge in cross-examination that he did
    not know the price of cocaine per kilogram in some earlier years.

[86]

In my view, what is referred to on appeal as examples of partiality are
    really just examples of the expert being unprepared to accede to suggestions
    put on cross-examination. While it may be true that at points the expert was
    dug in a little more than others experts may have been, these were all matters
    for the trial judge to take into account in determining the weight he would
    place upon the expert opinion.

[87]

In the end, it was open for the trial judge to accept the expert
    evidence. Importantly, it did not overwhelm the inquiry. Rather, the trial
    judges reasons make it clear that he considered the expert evidence as only
    one piece of circumstantial evidence in arriving at his conclusion on the
    appellants guilt. This is underscored by the following passage in the trial
    judges lengthy reasons:

I do consider the experts evidence, particularly as it relates
    to the general drug chatter on the cell phones. I take into account the fact
    that each individual had two cell phones. I do take into account that in this
    day and age sometimes people have more than one phone. I take into account the
    quantity of cocaine that was seized. I take into account that two firearms were
    located, that both were loaded. I take into account that the Bakal brothers
    were stopped after leaving Toronto.



Taking into account all of the
    circumstances
, the location of where the items were seized, I conclude
    that Crown counsel has proven beyond a reasonable doubt that both individuals
    in the vehicle had possession and control of both the drugs and the two
    firearms. [Emphasis added.]

[88]

Therefore, it cannot be said that the trial judge erred by admitting
    D.S. Canhams expert evidence pertaining to drug pricing and drug jargon.

[89]

As this ground of appeal does not gain traction, and in accordance with
    the appellants position, there is no need to consider the argument regarding
    unreasonable verdicts.

F.

Disposition

[90]

For the reasons above, I would dismiss the appeal in its entirety.

Fairburn A.C.J.O.

I agree R.G. Juriansz
    J.A.



Paciocco J.A. (Concurring):

A.

overview

[91]

I, too, would dismiss the appeal, but on a different basis. I agree with
    Fairburn A.C.J.O. that the exigent circumstances doctrine justified the
    warrantless tracking of Mustafe Bakals cellular phone, and that the expert
    evidence was properly admitted by the trial judge. However, unlike my
    colleague, I am persuaded that the trial judge erred in finding that the search
    of the motor vehicle incident to the arrest that led to the discovery of the handguns
    was lawful. In my view, the search that led Cst. Snider to find the handguns
    was, in fact, unconstitutional.

[92]

I agree with my colleague that Cst. Cicchirillo and the police
    dispatcher had objective grounds linking the handgun to the assault. But that
    is not enough. Cst. Snider conducted the search of the motor vehicle. As a
    matter of law, it is Cst. Snider who required grounds for the search and he
    lacked objective information that could link the handgun to the assault for
    which Mr. Bakal was arrested. To be sure, Cst. Snider conducted the search in
    reliance on D.C. Merediths grounds, and if D.C. Meredith had the requisite
    grounds for the search that would have been enough. But no evidence was led
    during the
Charter voir dire

that D.C. Meredith had objective
    information linking the handgun to the assault for which Mr. Bakal was
    arrested. Indeed, the evidence was to the contrary. Unfortunately, the trial
    judge missed this crucial fact, and thereby erred in upholding the
    constitutionality of the search.

[93]

Despite finding a
Charter

violation I would deny this
    ground of appeal. In my view, the repute of the administration of justice
    requires that the evidence obtained during the unconstitutional search of the
    motor vehicle be admitted.

[94]

I therefore join my colleague in the outcome of her decision, but not in
    all her reasoning.

B.

the legal principles

[95]

Four legal principles animate my conclusion that the trial judge erred
    in finding that the search of the motor vehicle incident to Mr. Bakals arrest
    was lawful.

[96]

First, given the intrusive and powerful authority that searches incident
    to arrest entail, courts are obliged to strictly interpret the central
    guiding principle  that the search must be  truly incidental to the arrest:
R.
    v. Balendra
, 2019 ONCA 68, [2019] O.J. at para. 44;
R. v. Fearon
,
    2014 SCC 77, [2014] 3 S.C.R. 621, at para. 16. Of relevance to this case, the
    purpose relied on to justify the search at trial must have been the actual
    reason the police conducted the search:
R. v. Santana
,
2020
    ONCA 365, at para. 28, per Doherty J.A.;
R. v. Caslake
, [1988] 1
    S.C.R. 51, at paras. 21-22; 26-27. It follows that if Cst. Snider lacked the
    lawful authority to search the hidden compartments of the motor vehicle for
    evidence of the alleged assault incident to Mr. Bakals arrest, the search was
    unconstitutional. The fact that there may have been other legal avenues
    available to Cst. Snider for searching those hidden compartments does not
    change this, a point I will return to below, when determining that the evidence
    obtained must be excluded pursuant to s. 24(2) of the
Charter
.

[97]

Second, a subjective/objective test applies to searches incident to
    arrest, including for the purpose of discovering evidence. As Cromwell J. noted
    in
Fearon
, at paras. 21-25:

[T]he police must be attempting to achieve some valid purpose
    connected to the arrest. That turns on what they were looking for and why.
The police must have one of the purposes for a valid search
    incident to arrest in mind when the search is conducted, and the officer
    conducting the search must reasonably believe that this purpose may be served
    by the search.

This is not a standard of reasonable and probable grounds, but
    simply a requirement that there be some reasonable basis for doing what the
    police did. For example, if the purpose of the search is to find evidence,
there must be some reasonable prospect of finding evidence of
    the offence for which the accused is being arrested.



[In
R. v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851]
    Binnie J. reiterated the important point made in
Caslake
and
Golden
that a search is properly incidental to arrest when the police attempt to
    achieve some valid purpose connected to the arrest, including ensuring the
    safety of the police and the public, the protection of evidence from
    destruction at the hands of the arrestee or others, and the discovery of the
    evidence: para. 49, quoting
Caslake
, at para. 19. As Binnie J. put
    it, 
[t]he important consideration is the link between
    the location and purpose of the search and the grounds for the arrest  the basis
    of the warrantless search is not exigent circumstances, but connection or
    relatedness to the crime for which the suspect has been arrested
(Emphasis added.)

[98]

Third, as the above passage confirms, it is the officer conducting the
    search who must reasonably believe that a valid purpose may be served by
    the search. When evaluating the constitutionality of the conduct of the
    officer conducting the search, it is not enough that others, including other
    police officers, may have had lawful grounds to act. The issue is whether the
    state agent exercising the challenged police power had the authority they
    purported to be exercising:
R. v. Gerson-Foster
, 2019 ONCA 405, [2019]
    O.J. No. 2877, at paras. 77-78.

[99]

Fourth, there is an exception to the third principle just described that
    permits officers who do not personally have the requisite grounds, to exercise
    police powers on the instruction or advice of other officers who do have the
    requisite grounds. However, an officer who lacks the requisite grounds cannot
    confer authority on other officers to act lawfully:
R. v. Debot
, [1989]
    2 S.C.R. 1140, at pp. 1166-1167;
Gerson-Foster
, at para. 84. As noted
    by the majority in
R. v. Ahmad
, 2020 SCC 11, 63 C.R. (7th) 1 (S.C.C.),
    at para. 32, [T]he hunch or mere suspicion of one police officer cannot
    become something more simply because it was shared with other officers.

[100]

To illustrate
    this fourth point in the context of this case, even if Cst. Snider personally
    lacked the objective grounds for the search he conducted, it would have
    sufficed if D.C. Meredith had the requisite grounds since Cst. Snider was
    conducting the search at D.C. Merediths behest. The problem is that D.C.
    Meredith did not have the requisite grounds.

C.

THE
    REQUISITE OBJECTIVE KNOWLEDGE WAS LACKING

(1)

Cst. Sniders Grounds

[101]

Cst. Snider
    testified that his purpose in searching the motor vehicle incident to arrest
    was to discover evidence of the offence for which Mr. Bakal was arrested,
    namely, the alleged domestic assault. In law, he could search only for items he
    reasonably believed to be linked to that assault. It is evident from his
    testimony that Cst. Snider understood this.

[102]

At the time of
    the initial roadside search, Cst. Snider had only minimal information that he
    obtained from the call for service, specifically, that Mr. Bakal was in
    possession of a semi-automatic handgun as well as several kilograms of cocaine,
    and that an arrest warrant would be issued for a domestic assault which had
    happened in Toronto. Although there was speak of a firearm Cst. Snider had no
    information as to whether the handgun was offence-related property linked to
    the alleged assault. Indeed, when testifying about his knowledge at the time of
    the roadside search about the role, if any, that the handgun played in the
    assault he said, [t]he information on that is still not clear in regards to
    the firearm, if its offence-related property or what the status of that is.
    At this point, Cst. Snider clearly lacked the objective grounds to search for
    the handgun as evidence of the assault for which Mr. Bakal was arrested.

[103]

Cst. Snider
    testified that after Mr. Bakal was arrested and the vehicle was impounded and
    brought to the police detachment, he want[ed] to gain a better understanding
    of what [he would] be looking for within the confines of the vehicle. He
    therefore contacted D.C. Meredith, who had sought the assistance of the OPP in
    arresting Mr. Bakal. During their conversation, D.C. Meredith advised Cst.
    Snider that the firearm was believed to potentially have been related to the
    domestic assault, information from the victim. However, in his testimony Cst.
    Snider confirmed that he was not told that the handgun had been used in the
    commission of the offence, or that it had been present during the assault.

[104]

Simply put, Cst.
    Snider was aware that D.C. Meredith believed, based on unspecified information
    from the complainant, that the handgun was potentially related to the assault. But
    even after speaking personally to D.C. Meredith, Cst. Snider had no specific
    information supporting the reasonableness of that belief.

[105]

Armed with knowledge
    that D.C. Meredith was of the view that the handgun was potentially related to
    the assault, Cst. Snider proceeded to search for the handgun. He conducted a
    more intrusive search of the motor vehicle, including by forcefully opening the
    two hidden compartments that had been discovered.
[2]
The handgun that Cst. Snider was searching for was found along with another
    handgun in the second compartment that had been forcibly opened.

(2)

D.C. Merediths
    Grounds

[106]

Although Cst.
    Snider personally lacked objective information linking the handgun to the
    assault, he was entitled to rely on D.C. Merediths grounds in searching for
    the handgun, but only if D.C. Meredith had the requisite grounds. However,
    there is no evidence that D.C. Meredith had an objective basis for believing
    that the handgun was evidence of the assault. To be sure, D.C. Meredith did
    testify that he believed that the handgun had been used during the domestic
    assault, but that conclusory statement, even if credited, affirms only his
    subjective belief, not the objective foundation for that belief. An examination
    of D.C. Merediths evidence shows that he lacked a reasonable or objective
    basis for his subjective belief that the handgun was potentially related to the
    domestic assault.

[107]

Specifically,
    D.C. Meredith testified that he had received information over the air that
    the complainant was assaulted by Mr. Bakal and that he banged her head against
    the wall, punched her in the face and choked her. He provided no evidence
    about having been told that a handgun was used in the assault or was present
    when the assault occurred.

[108]

D.C. Meredith
    also testified that he had received information over the air that Mr. Bakal was
    seen walking away from the complainants apartment, and that he was in
    possession of two suitcases and a handgun and a quantity of cocaine. This
    information provided D.C. Meredith with a sound basis for concluding that Mr.
    Bakal had a handgun with him when he left the apartment, but no basis for
    reasonably inferring that the handgun was linked to the assault.

[109]

Based on his
    testimony, this is the total of what D.C. Meredith knew. He testified
    explicitly that he did not believe he received any further information from
    Cst. Cicchirillo. He also said that when he attended at the scene he was not
    following through with the details of the assault. When asked if he inquired
    whether the handgun had been used in the commission of the assault he said,
    no, and he gave the same answer when asked if he had inquired into whether
    Mr. Bakal had possession of the handgun during the assault. When pressed again
    on whether he asked Cst. Cicchirillo, look, did this firearm have anything to
    do with the assault?, D.C. Meredith replied, I dont recall if I did, no. He
    also agreed with the suggestion that he did not know even when testifying
    whether the handgun was related to the assault.

[110]

Simply put, at
    no point did D.C. Meredith testify to having any knowledge relating to any role
    that the handgun played in the assault.

[111]

In my view, Cst.
    Cicchirillos testimony that he told D.C. Meredith that there was the
    possibility of a handgun in play cannot be relied upon to conclude that D.C.
    Meredith had a reasonable basis for inferring that the handgun was linked to
    the assault. Cst. Cicchirillos reference to a handgun in play is simply too
    obscure to have reasonably enabled D.C. Meredith to infer that the handgun was
    linked to the assault.

[112]

Indeed, when
    Cst. Cicchirillos evidence about telling D.C. Meredith that there was a handgun
    in play is read in context it becomes clear that Cst. Cicchirillo was
    testifying that he told D.C. Meredith that there was a handgun in play in the
    community, not that the handgun had been in play in the assault. I say this
    for three reasons.

[113]

First, when the
    entire answer Cst. Cicchirillo gave relating to the handgun being in play is
    considered, it is apparent that he was telling D.C. Meredith that the handgun
    was in play in the community. Specifically, he said:

We were discussing what was  what was  we were discussing the
    possibility of a handgun in play and someone 
I mean,
    [the] possibility of someone having a handgun in public basically is a concern
(Emphasis added.)

[114]

Second, when
    asked during cross-examination whether he told D.C. Meredith anything beyond
    the fact that [Mr. Bakal] had [a handgun] at some point and that it was black,
    Cst. Cicchirillo testified, thats it. I just told him he had a gun, she says
    he had a gun. Cst. Cicchirillos answer is consistent with his having told
    D.C. Meredith that the handgun was in play in the community and is inconsistent
    with the suggestion that he told D.C. Meredith that it was in play during the
    assault.

[115]

Third, when
    asked specifically if he told D.C. Meredith what the complainant said about the
    gun being located on the table while the assault was underway, Cst. Cicchirillo
    answered, no. Once again, this answer is consistent with his having told D.C.
    Meredith that the handgun was in play in the community, but it is not
    consistent with the suggestion that he told D.C. Meredith the handgun was in
    play during the assault.

[116]

I am therefore
    persuaded that on the evidence presented during the
Charter

voir

dire
, the Crown failed to establish that D.C. Meredith had the
    objective basis required to support a search for the handgun incident to
    arrest.

(3)

Conclusion on the
    Objective Grounds

[117]

In my view, the
    Crown failed to establish that either the searching officer, Cst. Snider, or
    the directing officer, D.C. Meredith, had an objectively reasonable basis
    linking the handgun to the assault.

[118]

With respect, I
    cannot accept my colleagues view that it can be inferred that the officers
    exchanged the objective foundation for the search but had foggy memories about
    having done so. The Crown bore the burden of establishing the reasonableness of
    this warrantless search. It is inconsistent with the Crowns burden to infer
    that forgotten evidence would have supported the Crowns position. The absence
    of evidence of the objective basis for a warrantless search, whether
    attributable to forgotten memories or not, is a basis for allowing the
Charter
challenge, not for defeating it.

[119]

Indeed, as I
    have described, the inference that the officers must have exchanged the
    objective information that Cst. Cicchirillo possessed is inconsistent with the
    affirmative evidence.

[120]

It was therefore
    unlawful for Cst. Snider to open the hidden compartments to search for the
    handgun incident to Mr. Bakals arrest for assault.

D.

the trial
    judges decision

[121]

The trial judge
    nonetheless upheld the search for the handgun as a lawful search incident to
    arrest. I see ambiguity in his reasons. The trial judge said that [Cst.]
    Snider was entitled to rely on the information that he received from [D.C.]
    Meredith as to the circumstances of the assault, and that those formed the
    grounds for his belief and the grounds to search the vehicle incident to
    arrest. This passage suggests that the trial judge relied upon D.C. Merediths
    grounds to support Cst. Sniders search. But after addressing credibility
    problems with D.C. Merediths evidence, the trial judge appears to have upheld
    the search for the handgun not based on Cst. Sniders reliance on D.C.
    Merediths grounds, but because Cst. Snider was searching for other
    offence-related evidence when he found the handgun. Specifically, the trial
    judge said:

Notwithstanding my concern about [D.C.] Merediths evidence, I
    do accept that [Cst.] Snider had grounds incident to arrest to search the
    vehicle. It is true that [Cst.] Snider did rely in part on [D.C.] Merediths
    information to form his belief that the firearm was involved in the assault.
    However, [Cst.] Snider also testified that he was searching the vehicle for
    other offence-related evidence and not exclusively for the firearm. In my view,
    he was entitled to do that. There was a connection, subjectively and
    objectively.

[122]

Neither line of
    reasoning withstands scrutiny. If the trial judge upheld the search based on
    Cst. Sniders reliance on D.C. Merediths grounds, he erred in failing to
    consider whether D.C. Meredith had an objective basis for his belief that the handgun
    was linked to the assault. As I have explained, no such grounds existed.

[123]

Alternatively,
    if the trial judge concluded that Cst. Snider had the requisite grounds because
    he was conducting a search for other offence-related evidence when he found the
    handgun, this too would have been in error. For a search incident to arrest to be
    valid there must be a link between the
location
and purpose of the search and the grounds for arrest:
R. v. Nolet
,
    2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49 quoted in
Fearon
, at
    para. 25 (emphasis added). Therefore, police may only search a place for
    evidence incidental to an arrest if they reasonably believe that they will find
    such evidence in the place searched:
Fearon
, at para. 21;
R. v.
    Rutten
, 2006 SKCA 17, 279 Sask. R. 201, at para. 30. As indicated, the
    handguns were found in a hidden compartment in the motor vehicle. Although
    there was a reasonable basis for believing that cocaine or handguns could be
    found in the hidden compartments that were forcibly opened, recall that Cst.
    Snider purported to justify his search as a search for evidence incidental to
    the assault for which Mr. Bakal was arrested. There was no reasonable basis for
    believing that evidence linked to the assault, such as the female clothing Cst.
    Snider referred to, would have been secreted inside a hidden compartment. In my
    view, the seizure of the handguns cannot be upheld based on the theory that
    Cst. Snider was searching for offence-related property when he found them, and
    the trial judge erred in finding to the contrary.

E.

section
    24(2)

[124]

Although the
    search for the handgun was contrary to s.8 of the
Charter
, I would not
    remedy that breach by excluding the evidence. The balancing of the three
    factors identified in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 requires
    that the evidence, including the handguns and the cocaine, be admitted into
    evidence in Mr. Bakals prosecution.

(1)

The Seriousness of
    the Violation

[125]

The first
Grant
factor concerns the seriousness of the
Charter
-infringing state
    conduct, a determination that is heavily influenced by the state of mind of
    police officers relating to the
Charter
breach. The strongest
    pro-exclusionary factor is the trial judges finding that D.C. Meredith gave
    disingenuous, if not downright deceitful testimony during the
Charter
    voir dire
. This reprehensible behaviour strikes at the integrity of the
    judicial system and the truth-seeking function of the courts which lie at the
    heart of the admissibility inquiry envisaged under s. 24(2) of the
Charter

    and this significantly aggravates the seriousness of the
Charter

breach:
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 26-27;
R.
    v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 102-103. However,
    whether dishonest testimony during a
Charter voir dire

will
    lead to exclusion depends on all the circumstances:
R. v. Lai
, 2019
    ONCA 420, 438 C.R.R. (2d) 1, at paras. 36-37. In this case, three factors
    mitigate the need for the court to dissociate itself from such behaviour by
    excluding the evidence.

[126]

First, the false
    testimony was not about the search for the handguns, the legal issue now under
    consideration. Specifically, the trial judge found that D.C. Meredith was not
    forthright in his testimony related to whether he had knowledge that Mustafe
    Bakal left the condominium in Toronto with cocaine. Although D.C. Meredith was
    found to have misled the court on this issue because he believed it had some
    relevance to the
Charter

application, that lie did not relate
    to the issues now under consideration.

[127]

Second, and more
    importantly, Cst. Snider, who conducted the search, clearly did so in good
    faith, which reduces the taint of D.C. Merediths behaviour:
R. v. James
,
    2016 ONSC 4086, at paras. 47, 49.

[128]

Third, there
    were legal avenues available that would have permitted the officers to search
    for the handgun, had those legal avenues been used. As my colleague intimates,
    a search incident to arrest for the firearms may have been justifiable for
    officer safety or on the same exigent circumstances that permitted the motor
    vehicle to be tracked to the location where the initial search occurred.
    Indeed, there is authority suggesting that a search incidental to arrest may be
    conducted for evidence which may  assist [the police] in their determination
    as to whether the arrested person should be held:
R. v. Lim
, [1990] 1
    C.R.R. (2d) 136, at para. 31, per Doherty J., as he then was, affd (1993), 12
    O.R. (3d) 538. In this case, possession of a firearm in a car while leaving the
    scene of a domestic assault would certainly have informed that decision.

[129]

I am not
    suggesting that the availability of
Charter
-compliant means to secure
    unconstitutionally obtained evidence will always mitigate the seriousness of
    the breach. Rather, if police knowingly use illegal means to search in order to
    forgo legal avenues, the breach will be undertaken in bad faith and this will
    aggravate the seriousness of the breach:
R. v. Buhay
, 2003 SCC 30, [2003]
    1 S.C.R. 631, at para. 63;
R. v. Feeney
, [1997] 2 S.C.R. 13, at para.
    76;
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 82. Where,
    however, the failure to pursue
Charter
-compliant means to secure
    unconstitutionally obtained evidence arises from the non-negligent failure of
    the police to know the law, the availability of those means can mitigate the
    seriousness of the breach:
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14
    (Ont. C.A.), at paras. 43-44.

[130]

Although the
    breach remains serious because of D.C. Merediths disingenuous, if not downright
    deceitful testimony and his failure to take the modest investigative steps
    necessary to ensure that there were proper grounds to encourage a search for
    the handgun, this is the only
Grant

factor that offers any
    support for exclusion.

(2)

The Impact of the
    Breach

[131]

The second
Grant

factor, the impact of the breach on Mr. Bakal, does not offer any such
    support. Mr. Bakal did not have a reasonable expectation of privacy in the
    place that was searched, namely, the motor vehicle. Although that search was
    aggressive, causing damage to the motor vehicle, it was not Mr. Bakals motor
    vehicle that was impacted. The impugned search did not touch upon Mr. Bakals
    person or property, other than to rid him of possession of a handgun he could
    not legally possess.

(3)

Societys Interest

[132]

The third
Grant

factor focuses on societys interest in the adjudication of the case on its
    merits. This factor works decidedly in favour of inclusion. The charges are
    serious, the evidence is reliable, and its exclusion will entirely gut the
    Crowns case.

F.

conclusion

[133]

In the
    circumstances, I am persuaded that the admission of the unconstitutionally
    obtained evidence would not bring the administration of justice into disrepute.
    It would therefore be improper to exclude it.

[134]

Accordingly, I
    would reject this ground of appeal.

Released:   August 30, 2021 JMF

David M. Paciocco J.A.





[1]
Notably, s. 487.11 of the
Criminal Code

allows for warrantless tracking
    in exigent circumstances: see,
Kelsy
,

at para. 27;
R. v.
    Chuhaniuk
, 2010 BCCA 403, 261 C.C.C. (3d) 486, at para. 68. The difficulty
    is that s. 487.11 has not kept stride with the amendments to s. 492.1, meaning
    that it does not make reference to what is now s. 492.1(2), the provision that
    allows for the tracking of an individuals movements. Section 487.11 reads: A
    peace officer  may  exercise any of the powers described in  s.
492.1(1)
without a warrant if the conditions for
    obtaining a warrant exist but by reason of exigent circumstances it would be
    impracticable to obtain a warrant (emphasis added). The respondent does not
    rely upon s. 487.11 as providing a statutory basis for the exercise of exigent
    circumstances in this case, presumably because it does not make reference to s.
    492.1(2).



[2]
Although a telewarrant was secured after cocaine was found in the first hidden
    compartment that had been forced open, the trial judge upheld the search for
    the handgun based on the search incident to arrest.


