



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Peterkin, 2015 ONCA 8

DATE: 20150112

DOCKET: C57756

Feldman, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mackel Peterkin

Appellant

Gary J. Grill and James M. Stevenson, for the appellant

Gillian Roberts, for the respondent

Heard: June 20, 2014

On appeal from the conviction entered on January 16, 2013
    by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2013 ONSC 165, 295 C.C.C. (3d) 87.

Watt J.A.:

[1]

A dark backyard. A trespasser. A police search. A gun. Some ammunition.
    Drugs. Cellphones. Cash. Several charges. And convictions.

[2]

The appellant, Mackel Peterkin, says the police had no authority to
    search him early that August morning. The things they found on his person
    should not have been admitted in evidence at his trial. He should not have been
    convicted. He wants another trial.

[3]

As I will explain, Peterkins convictions rest on solid ground. The
    police search was lawful. The evidence it yielded, admissible. I would dismiss
    his appeal.

THE BACKGROUND FACTS

[4]

The circumstances that precede and accompany the search of Peterkin fall
    within narrow compass.

The 911 Call

[5]

Early in the morning on August 14, 2011, a 911 operator received a
    telephone call. No one spoke. The operator called back. The line was busy. The
    operator was able to determine the call had originated from unit 132 at 296
    Grandravine Drive in Toronto. The neighbourhood is one where police respond to
    a higher than usual number of violent radio calls, including reports of
    domestic disputes, gunshots, and shootings. Two police officers were dispatched
    to check on the well-being of the occupants and otherwise investigate the call.

The Arrival of the Police

[6]

Two uniformed police officers arrived at the scene. With their
    flashlights, they checked the front and back doors of the townhouse. The doors
    were locked. The unit was in darkness. No one answered the officers knocks. They
    heard no sounds from within the unit. They saw no signs typical of an actual or
    attempted forced entry.

[7]

The front door of the unit faced the interior of the housing complex.
    The rear yard was fenced and backed onto Grandravine Drive. The fence, about
    three feet high, had a gate that opened to a patio stone walkway. The gate was
    open when police arrived. The walkway led across a grassy boulevard to the
    sidewalk along Grandravine.

The Decision to Wait

[8]

The police were concerned about the state of anyone who might be inside
    unit 132 as a result of the truncated 911 call. They decided to have the police
    dispatcher contact the landlords security service to have a security guard
    sent to open the unit.

The Stranger in the Backyard

[9]

As the officers waited for a security guard to arrive to let them into
    the unit, they noticed a man  Mackel Peterkin  walking along the sidewalk on
    Grandravine. The man turned from the sidewalk, walked across the patio stones,
    and entered the fenced backyard through the open gate. A few feet into the
    backyard, the man turned around and used his cellphone.

The Police Approach

[10]

The
    police officers walked over to the man who had entered the backyard. They
    thought he might live in the unit or know something about the 911 call. If the
    man did not live there, the officers wanted to know what he was doing in the
    backyard of a house belonging to somebody else at three oclock in the morning.

The Discussion

[11]

In
    answer to the officers questions, the man explained he did not live in unit
    132. He said he was waiting for a ride and pointed to a vehicle driving along
    Grandravine towards the townhouse. The officers did not think his responses made
    sense. Why would anyone walk into a backyard to make a telephone call to get a
    ride, rather than stand on the street to be more visible to the driver?

[12]

The
    officers thought further investigation was warranted.

The Investigative Detention

[13]

At
    about 3:15 a.m., the officers told Peterkin he was under investigative
    detention in connection with the
Trespass to Property Act
, R.S.O.
    1990, c. T.21. They wanted to find out who the appellant was and his
    connection, if any, to the townhouse.

[14]

The
    evidence the officers gave at trial about the basis upon which they
    investigatively detained Peterkin differed from what they had said at the
    preliminary inquiry and recorded in their notes. Both made reference to the
    check address 911 call as the basis for the detention, but said nothing about
    the
Trespass to Property Act
.

The
Charter
Advice

[15]

The
    police officers confirmed with Peterkin that he understood what they meant by
    investigative detention and asked whether he wanted to speak to a lawyer. In
    providing the
Charter
advice, the officers made no mention of the toll-free
    number for duty counsel or the availability of immediate free legal advice.
    They did not explain why Peterkin might want to talk to a lawyer.

[16]

Peterkin
    produced a drivers licence to confirm his identity. He declined to speak to a
    lawyer.

Peterkins Conduct

[17]

As
    the police officers waited for a response to their query, they noticed Peterkin
    tapped his right hip at waist level twice. He held his wrist at waist level. For
    them, these movements are characteristic of a person who is armed. They
    described Peterkin as blading away from them. He moved his right foot back
    and turned to his right so his left shoulder was towards and perpendicular to
    the officers. Peterkin appeared nervous to one of the officers. The officers
    did not know where Peterkin had put his cellphone after he ended his call. They
    acknowledged he could have put the phone in a holster on his hip.

[18]

When
    the officers received confirmation that there were no hits for Peterkin on
    the police information system, one of the officers returned Peterkins drivers
    licence. The officer passed the document to Peterkins right side. Rather than
    reach out for the licence with his right hand, Peterkin kept his right elbow
    tucked tightly to his body and on his right hip. He turned his whole body and
    awkwardly extended only his right forearm to take the proffered licence.

The Safety Search

[19]

Both
    officers suspected Peterkin had a firearm. They advised him they were going to
    give him a pat-down for their safety before he could be on his way. As one
    officer reached out towards him, Peterkin backed up quickly, grabbed at his
    right waist area, and yelled something. He struggled to escape. The officers
    wrestled him to the ground. He continued to reach for his right waist area,
    first with his right arm, then with his left. One of the officers felt the butt
    of a gun on the right side of Peterkins waist and removed it. The struggle
    stopped.

The Arrest

[20]

The
    officers arrested Peterkin for unlawful possession of a firearm. Peterkin confirmed
    the firearm was loaded with a bullet in the chamber. When the officers searched
    Peterkin incident to his arrest, they recovered 40 rounds of ammunition, some
    cocaine and marijuana, two cellphones, and $275.00 in cash.

The Defence Evidence

[21]

Peterkin
    testified that at about 3:15 a.m. on August 14, 2011 he was walking along the
    sidewalk on Grandravine Drive towards Driftwood Avenue. He was talking on his
    cellphone and waiting for his girlfriend, Chereta Palmer, to pick him up and
    drive him home. Police stopped him on the patio stone walkway between the
    public sidewalk and the backyard of unit 132. He never reached the backyard. He
    said he was stopped regularly by the police; about two to four times each week.
    He surrendered his drivers licence because he thought he had no choice but to
    comply with their demand for identification.

[22]

Peterkin
    denied being told he was under investigative detention or advised of his right
    to counsel. When told he would be searched, he stepped away from the officers,
    probably into the backyard of the townhouse. As the officers reached for him,
    he struggled with them and all three men fell to the ground. The contraband
    belonged to a man, Mike, who had given Peterkin marijuana in return for
    delivering the contraband to another person.

[23]

Palmer
    confirmed she was on her way to pick Peterkin up when she saw him talking to
    two police officers on the sidewalk. She said Peterkin was nowhere near the
    back gate of the townhouse when he was taken down and arrested.

The Grounds of Appeal

[24]

Peterkin
    advances two grounds of appeal. He says that the trial judge erred:


i.

in holding the officers were lawfully entitled to conduct a safety
    search (i.e., a pat-down) incidental to his investigative detention; and


ii.

in failing to exclude the gun, cocaine, and trafficking paraphernalia
    under s. 24(2) of the
Charter
.

Ground #1: The Lawfulness of the Safety Search

[25]

On
    appeal, Peterkin no longer contests the lawfulness of his investigative
    detention in the backyard of unit 132. Peterkins focus is on whether the
    warrantless safety search which followed the investigative detention was
    lawful.

The Relevant Circumstances

[26]

A
    second recitation of the circumstances in which the safety search was conducted
    is unnecessary. Brief reference to some features of the encounter will suffice.

[27]

Peterkin
    walked into the backyard of an apparently unoccupied townhouse sometime after
    2:30 a.m. as officers were responding to a static line 911 call from the unit. Brief
    questions from the officers quickly established Peterkin had no connection to
    the townhouse. He properly identified himself, but explained his presence with
    a reason the officers considered implausible.

[28]

Several
    features of Peterkins behaviour caused the officers to be concerned about
    their safety. Peterkin appeared nervous. He avoided eye contact. He tapped his
    right hip twice and held his right wrist there. He bladed his body so only
    his left side was visible to the officers. When an officer proffered Peterkin
    his drivers licence on his right side, the appellant reached awkwardly for the
    document, holding his right elbow tight to his hip, turning his whole body and
    extending only his right forearm to take the licence. When the officers told Peterkin
    they were going to pat him down, he backed away and began to run.

The Findings of the Trial Judge

[29]

The
    trial judge was satisfied the police had a sufficient legal basis to
    investigatively detain Peterkin in the backyard of the townhouse unit.

[30]

The
    trial judge then considered whether the police had sufficient grounds to
    conduct a safety search incident to the lawful investigative detention. Three
    paragraphs of the trial judges reasons reflect his analysis and determination
    of this issue:

[92] While completing their investigation, the accused
    conducted himself in a way that caused the police to reasonably suspect that he
    was armed with a weapon.  In this regard, the observed conduct of the accused
    in relation to his right hip area  tapping his right wrist on this area of his
    hip, holding his right wrist on this location, and oddly maintaining his elbow
    on his right hip area when receiving his drivers licence  together with the
    blading of his body so as to turn the right side of his body away from the
    police, reasonably caused the police to suspect that the nervous accused might
    well be armed with a weapon.  All of this activity was strangely suspicious
    conduct by the accused that the police had been trained to observe and
    understand.  Constable ONeil interpreted this conduct by the accused  quite
    accurately as it turned out  as indicative of someone with a concealed weapon
    in the waistband of his pants.

[93] At this point, if not before, the police were lawfully
    entitled to conduct a brief pat-down search of the accused in order to ensure
    and preserve their own physical safety.  When the accused refused to permit
    this search and sought to escape their custody, the police officers were
    entitled to employ the necessary force to physically subdue the accused and
    conduct this search. Accordingly, the physical search of the accused, which
    resulted in the discovery of the loaded firearm, ammunition and illicit drugs,
    was not in violation of s. 8 of the
Charter
.



[95] Accordingly, as in
R. v. Amofa
, in my view, the
    proposed pat down search of the accused for weapons was fully justified as
    incidental to the investigative detention of the accused given that the reason
    for the search was officer safety, and the officers reasonably believed that
    their safety was at risk.  Of course, when the accused refused to permit this
    incidental pat down search for weapons and instead tried to flee, the police
    were entitled to use reasonable and proportional force to prevent the accuseds
    escape, and to conduct the necessary weapons search to protect themselves and
    the general public in the vicinity.  See:
R. v. Mann
, [2004] 3 S.C.R.
    59, at para. 36-45;
R. v. Clayton and Farmer
, [2007] 2 S.C.R. 725, at
    para. 40-49;
R. v. Dene
, 2010 ONCA 796, at para. 4-5;
R. v. Amofa
,
    at para.
8-10, 18-26;
R. v. Plummer
(2011), 272
    C.C.C. (3d) 172 (Ont. C.A.) at para.
44, 48-61;
R. v. Byfield
,
    [2012] O.J. No. 2440 (S.C.J.) at para. 78-81; 110-114.

The Positions of the Parties

[31]

For
    the appellant, Mr. Grill begins with a reminder that a warrantless safety
    search is presumptively unreasonable. This presumption is only rebuttable where
    the Crown establishes, on a balance of probabilities, that the police had
    reasonable and probable grounds to believe, at the time the search was
    conducted, their own or public safety was at risk. Reasonable belief is
    synonymous with reasonable and probable grounds.

[32]

Mr.
    Grill submits that a reasonable suspicion of the presence of a weapon is not
    sufficient to discharge this obligation. A reasonable suspicion standard for a safety
    search incidental to an investigative detention would not fulfil the purposes
    of the
Charter
. The safety risk must be identifiable, reasonably
    imminent, and relate to police or public safety. Reasonable suspicion of
    possession or even concealment of a weapon is insufficient. The evidence must
    give rise to a reasonable
belief
, reflective of a standard of
    probability, not just suspicion, which reflects a standard of possibility.

[33]

According
    to Mr. Grill, the evidence adduced at trial fails to satisfy even the more
    modest reasonable suspicion test. Neither officer said he felt his safety was
    at risk. Peterkins conduct  nervousness in the presence of the police
    officers, checking his waist area, and turning in a different direction  was essentially
    neutral. Peterkin had been cooperative throughout.

[34]

For
    the respondent, Ms. Roberts contends the relevant standard by which the
    lawfulness of a safety search incidental to an investigative detention is to be
    determined is that of
reasonable suspicion
, not reasonable belief.
    This standard requires demonstration of
reasonable grounds for a belief
that police or public safety is
at risk
. This standard relates to
    reasonable possibility of harm, not a reasonable probability.

[35]

Ms.
    Roberts says there is no logical reason why a concomitant power to conduct a
    limited safety search incidental to a lawful investigative detention should
    require a higher standard than for the detention itself. She also argues that
    even if the higher reasonable and probable grounds standard for which Peterkin
    contends applies, the evidence adduced at trial satisfied that standard.

[36]

Ms.
    Roberts also reminds us about the standard of review we are to apply to the
    decision of the trial judge on this issue. Our task, she says, is to determine
    whether the totality of the circumstances is capable of supporting the
    conclusion reached by the trial judge. His findings of fact are to be accorded deference.
    His legal conclusions are reviewed on a standard of correctness. Ms. Roberts
    submits that neither reflects error.

The Governing Principles

[37]

The
    principles that define the basis upon and scope within which police may conduct
    a safety search incidental to an investigative detention control our decision
    on this ground of appeal.

[38]

In
R. v. Waterfield
, [1964] 1 Q.B. 164, the English Court of Criminal
    Appeal articulated the test for whether a police officer has acted within his
    or her common law powers. Under the
Waterfield
analysis, to determine
    whether an officers
prima facie
unlawful interference with an
    individuals liberty or property falls within his or her common law powers, a
    court must engage in two steps of analysis:

1.

Does the police conduct in question fall within the general scope of any
    duty imposed on the officer by statute or common law?

2.

If so, in the circumstances of this case, did the execution of the
    police conduct in question involve a justifiable use of the powers associated
    with the engaged statutory or common law duty?

See
Waterfield,
at pp. 170-171;
R. v. Mann
,
    2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 24-26.

Investigative Detention

[39]

The
Waterfield
analysis has been applied to bestow on police officers a
    limited power to detain a person for investigative purposes:
Mann
, at
    paras. 23-24, 34.

[40]

The
    test for determining whether an investigative detention is justifiable under
    the second prong of
Waterfield
is one of reasonable
suspicion
.
    An investigative detention must be viewed as reasonably necessary on an
    objective view of all the circumstances informing the officers suspicion that
    there is a clear nexus between the prospective detainee and a recent or ongoing
    criminal offence:
Mann
, at para. 34. To conduct this analysis, we must
    assess the overall reasonableness of the detention decision, testing it against
    all the circumstances, most notably:


i.

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


ii.

the liberty that is the subject of the interference; and


iii.

the nature and extent of the interference.

See
Mann
, at para. 34.

[41]

To
    be justifiable, the investigative detention must also be executed in a
    reasonable manner. The investigative detention should be brief and does not
    impose an obligation on the detained individual to answer questions posed by
    the police:
Mann
, at para. 45.

Searches Incidental to
    Investigative Detention

[42]

The
Waterfield
analysis has also been applied to recognize a power of
    search incidental to investigative detention.

[43]

Under
    the first prong of
Waterfield
, the interference clearly falls within
    the general scope of the common law duty of police officers to protect life and
    property:
Mann
, at para. 38. However, the power to search incidental
    to an investigation does
not
exist as a matter of course:
Mann
,
    at para. 40. Nor can the power to conduct a safety search of an investigatively
    detained person be equated with the power to conduct a search incident to
    lawful arrest:
Mann
, at para. 45.

[44]

The
    main issue on this appeal is what test properly applies under the second prong
    of
Waterfield
to determine when a safety search incidental to an
    investigative detention is justifiable. The Supreme Court of Canada has held
    safety searches incidental to investigative detentions are justified where the
    officer
believes
on reasonable grounds that his or her own safety, or
    the safety of others, is
at risk
:
Mann
, at para. 40. The
    search must be grounded in objectively discernible facts to prevent fishing
    expeditions on the basis of irrelevant or discriminatory factors:
Mann
,
    at para. 43.

[45]

The
    Supreme Court articulated two further reasonableness criteria that must be
    established for a safety search incidental to an investigative detention to be
    justified. First, the officers decision to search must be reasonably necessary
    in light of the totality of the circumstances:
Mann
, at para. 40. It
    cannot be justified on the basis of a vague or non-existent concern for safety,
    nor can the search be premised upon hunches or mere intuition:
Mann
,
    at para. 40. Second, the safety search must be exercised in a reasonable manner:
Mann
, at para. 45.

[46]

In
R. v. Clayton
, 2007 SCC 32, 220 C.C.C. (3d) 449, the Supreme Court
    again addressed the issue of safety searches incidental to investigative
    detention. Police received an early morning 911 call reporting that four of
    approximately ten black guys in a parking lot in front of a strip club were
    openly displaying handguns. The caller described four vehicles in the parking
    lot. Police responded to the call. Among other things, two officers stopped a
    vehicle as it approached a rear exit. The vehicle did not fit the description
    of any of the four vehicles mentioned in the 911 call.

[47]

One
    officer asked the driver, Farmer, to step out of the car. Farmer protested
    twice before getting out. The officer, concerned for his safety in light of
    Farmers protests, told Farmer to put his hands on top of the car. When asked
    questions by another police officer, Clayton, a passenger in the car, gave
    strange and evasive answers and stared straight ahead. He was wearing gloves,
    which struck the officer as inappropriate given the weather conditions. The
    officer asked Clayton to step out and put his hands on the trunk of the car.
    Clayton blocked the officers view of the interior of the car and bolted when
    directed to the rear of the car. Other officers subdued Clayton, searched him,
    and found a loaded prohibited handgun in his pocket.

[48]

A
    majority of the Supreme Court concluded the police had acted within the scope
    of their common law powers when they investigatively detained Clayton and
    Farmer:
Clayton
, at paras. 22-23. The investigative detention was
    justified because they had a reasonable
suspicion
Farmer and Clayton
could
    be in possession of the handguns
reported in the 911 call and that, as a
    result, the lives of the officers and the public were
at risk
:
Clayton
,
    at para. 46.

[49]

Citing
Mann
, the Supreme Court unanimously held a safety search incident to
    an investigative detention is justified if the officer
believes
on
    reasonable grounds that his or her safety, or that of others, is
at risk
:
    at paras. 29, 104. Applying this test to the facts of
Clayton
, the
    court held that the
same safety concerns
that justified the
    investigation detention justified the incidental safety search: paras. 48-49.

[50]

More
    recently, the Supreme Court considered the authority for safety searches in
R.
    v. MacDonald
, 2014 SCC 3, 303 C.C.C. (3d) 113. However,
MacDonald
did not involve a safety search incidental to an investigative detention.

[51]

In
MacDonald
, police responded to a noise complaint. They knocked on
    MacDonalds door. MacDonald opened the door a short distance. The officers
    could see into the room but were unable to get a full view of the interior.
    Macdonald had something black and shiny in his hand, hidden behind his pant
    leg. The officer twice asked MacDonald what he had in his hand. MacDonald said
    nothing. To get a better look, the officer pushed the door open a few inches
    further. He saw the object was a gun. The officer quickly forced his way into
    the unit, disarmed MacDonald, and seized the loaded, restricted firearm.

[52]

The
    trial judge found no
Charter
breach. A majority of the Nova Scotia
    Court of Appeal agreed: the officer had validly exercised the authority to
    conduct a safety search. The Supreme Court concluded that pushing the door open
    amounted to a safety search, and went on to consider whether the search was
    justifiable.

[53]

Citing
Mann
at paragraphs 40 and 45, a majority of the court concluded safety
    searches are authorized by law only if the officer
believes
on
    reasonable grounds his or her safety is
at stake
and that, as a
    result, it was necessary to conduct a search:
MacDonald
, at para. 41.
[1]


[54]

A
    minority of the court concurred in the result (that the safety search was
    justified), but held the majority had been unfaithful to the teachings of
Mann
and the subsequent case law by positing a new standard of reasonable
    grounds to believe a person was armed and dangerous rather than reasonable
    grounds to suspect

such was the case:
MacDonald
, at paras.
    66, 77. The minority maintained that although
Mann
employed the
    language of reasonable grounds to believe, pairing this language with the
    concept of safety being at risk inherently built in the standard of a possibility:
MacDonald
, at para. 69. By using the language of reasonable grounds to
    believe a person is armed or dangerous (at paras. 39, 42), and reasonable
    belief in an imminent threat to safety (at paras. 40, 43-44), the majority
    replaced what was in essence a reasonable suspicion standard with one of
    reasonable belief:
MacDonald
, at paras. 66-71.

Other Related Applications of the
Waterfield
Analysis

[55]

The
    two-stage
Waterfield
test also governs an assessment of police conduct
    in response to a 911 call:
R. v. Godoy
, [1999] 1 S.C.R. 311, at para.
    16.

[56]

The
    principles governing investigative detention and the conduct of searches
    incidental to investigative detention set out in
Mann
have also been
    applied to investigative detentions and incidental searches under the
Trespass
    to Property Act
:
R. v. Amofa
, 2011 ONCA 368, 85 C.R. (6th) 265,
    at paras. 15-21.

The Principles Applied

[57]

I
    would not give effect to this ground of appeal.

[58]

It
    is worth remembering that the focus of Peterkins challenge at trial to the
    lawfulness of the police conduct was not that the safety search was not up to
    the
Waterfield
and
Mann
standards. His claim at trial was
    that he was arbitrarily detained. The detention was based on racial profiling. He
    argued the requisite reasonable grounds were lacking.

[59]

A
    second preliminary point concerns the decision in
MacDonald
. We need
    not decide whether, as the
MacDonald
minority argues, the majority,
    without overruling the prior decision in
Mann
, has recalibrated the
    standard to be applied in determining the lawfulness of a safety search. This
    is because the evidence in this case satisfies the test as articulated in
MacDonald
:
    reasonable belief an individuals safety is at stake.  Further, in my respectful
    view, we need not determine whether the decision in
MacDonald
is
    distinguishable because the safety search with which the court was concerned in
MacDonald
was not incidental to an investigative detention, but free-standing.

[60]

To
    be lawful, the investigative detention and safety search incidental to it must
    satisfy the two-stage
Waterfield
test. The conduct must fall within
    the general scope of a statutory or common law duty imposed on the officer, and
    must also involve a justifiable use of powers associated with that duty:
Mann
,
    at para. 24;
MacDonald
, at paras. 35-36.

[61]

When
    Peterkin entered the backyard of unit 132 at 296 Grandravine Drive, the
    officers were investigating a static line 911 call from the unit. In doing so,
    they were discharging their common law duty to preserve the peace, prevent
    crime, and protect life and property. Peterkins entry into the fenced rear
    yard also entitled the officers to detain him to investigate a potential breach
    of the
Trespass to Property Act
, an arrestable offence under s. 9(1)
    of that
Act
.

[62]

As
    the interaction with Peterkin continued, the officers noticed several movements
    they considered to signal possession of a gun. Taps to the waistband of the
    appellants pants. Blading to obstruct their view of the appellants right
    side. Awkward receipt of the drivers licence when the officers returned it to
    the appellant. An indication by the officers of a pat-down search for the officers
    safety. Resistance. An attempt to flee. Apprehension and only then a search.
    This accumulation of factors fully supported a reasonable belief on the part of
    the officers that their safety was at stake and justified the search.

Ground #2: Admissibility of the Evidence under s. 24(2)

[63]

Peterkin
    advances a second argument. He challenges the correctness of the trial judges
    ruling to admit the evidence obtained during the search after the attempt to
    flee.

The Reasons of the Trial Judge

[64]

Despite
    finding no violation of s. 8 of the
Charter
, the trial judge found two
    other
Charter
breaches preceded the search of Peterkin.

[65]

The
    first was a breach of s. 10(a). The police advised Peterkin he was being
    detained for investigation for breaching the
Trespass to Property Act
,
    but failed to tell him they were also investigating a 911 call in connection
    with the townhouse where he appeared.

[66]

The
    second was a breach of the informational component in s. 10(b). The officers
    failed to tell Peterkin about the availability of duty counsel for immediate
    legal advice and provide him with the toll-free number to call to receive that
    advice.

[67]

The
    trial judge followed the three lines of inquiry mandated by
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, in deciding whether to admit as evidence the
    items found in Peterkins possession on arrest: the seriousness of the
Charter
-infringing
    state conduct; the impact on the accuseds
Charter
-protected
    interests; and societys interest in the adjudication of the case on its
    merits.

[68]

The
    trial judge found the police had been negligent, but not wilful or deliberate
    in their failure to fully advise Peterkin of the reasons for his detention and
    his right to counsel. The trial judge was not prepared to characterize the
    officers omissions as having been made in good faith, but did not conclude
    their conduct reflected bad faith. The first line of inquiry under
Grant
favoured
    exclusion of the evidence.

[69]

Turning
    to the second line of inquiry, the trial judge concluded the infringements did
    not have a serious impact on Peterkins
Charter
-protected interests. Peterkin
    made no statement to police. Neither breach was directly linked or causally
    connected to the discovery of the evidence, which inevitably would have been
    discovered when the police searched Peterkin incident to his arrest. This line
    of inquiry favoured admission of the evidence.

[70]

The
    final line of inquiry also favoured admission of the evidence. Societys
    interest in the adjudication of charges on the merits was furthered by the
    admission of reliable real evidence, critical to proof of the Crowns case.
    Exclusion of the evidence would undermine societys justifiable expectation of
    an adjudication of the allegations on their merits.

[71]

The
    trial judge weighed the results of the three lines of inquiry and concluded the
    balance favoured admission of the evidence.

The Arguments on Appeal

[72]

Mr.
    Grill contests the correctness of the trial judges s. 24(2) analysis. He
    submits the trial judge undervalued the seriousness of the s. 10(a) and s.
    10(b)
Charter
violations and their impact on the Peterkins
Charter
-protected
    interests. These errors, he says, skewed the s. 24(2) analysis. The evidence
    should have been excluded.

[73]

For
    the respondent, Ms. Roberts says the trial judge got it right. No errors in
    principle. No reliance on irrelevant factors. A proper assessment of relevant
    considerations. Deference due.

The Governing Principles

[74]

For
    present purposes, two brief points about the
Grant
analysis will
    suffice.

[75]

First,
    where a trial judge has considered the proper factors and has not made any
    unreasonable finding, his or her determination is owed considerable deference
    on appellate review:
Grant
, at para.
86;
R. v.
    Beaulieu
, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5;
R. v. Côté
,
    2011 SCC 46, [2011] 3 S.C.R. 215, at para.
44.

[76]

Second,
    discoverability of the evidence sought to be excluded remains a relevant factor
    under the current s. 24(2) analysis. It weighs in favour of admissibility:
R.
    v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 54;
Côté
, at
    para. 69. However, despite its relevance to the first two lines of inquiry
    under
Grant
, discoverability is not determinative:
Côté
, at
    para. 70.

The Principles Applied

[77]

I
    would not give effect to this ground of appeal.

[78]

The
    trial judge considered each line of inquiry as directed by
Grant
. His
    factual findings and analysis are entitled to deference in the absence of
    demonstrated error or unreasonable findings. Peterkin has established neither.

[79]

The
    infringements that occurred here, of both s. 10(a) and s. 10(b) of the
Charter
,
    were aptly characterized as the product of negligence, not the result of wilful
    or deliberate misconduct. The information the officers provided Peterkin about
    the reasons for the investigative detention and his right to counsel was
    incomplete. However, the information did alert Peterkin to the extent of his
    jeopardy. Nothing omitted yielded any response of evidentiary value. The items
    recovered would have been discovered in any event on a search incident to
    arrest under the
Trespass to Property Act
. They afforded reliable real
    evidence central to the demonstration of guilt.

CONCLUSION

[80]

For
    these reasons, I would dismiss the appeal.

Released: January 12, 2015 (KF)


David
    Watt J.A.

I
    agree K. Feldman J.A.

I
    agree K. van Rensburg J.A.





[1]
The paragraphs cited in
Mann
use the phrase at risk, not at stake.
    However, the French language versions of
Mann
and
MacDonald
use
    the same language. In
Mann
, the words at risk in paragraphs 40 and 45
    are translated as est menacée". In
MacDonald
, the words at stake
    in paragraph 41 are also translated as est menacée".


