



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mhlongo, 2017 ONCA 562

DATE: 20170630

DOCKET: C59129

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zwelakhe Mhlongo

Appellant

Nathan Gorham, for the appellant

Victoria Chan and Anya Weiler, for the respondent

Heard: May 17, 2017

On appeal from the conviction entered on April 18, 2014
    by Justice Robert J. Nightingale of the Superior Court of Justice, sitting with
    a jury.

R.A. Blair J.
A.:

[1]

Mr. Mhlongo appeals from his conviction for possession of cocaine for
    the purposes of trafficking.  His grounds of appeal are founded on the trial
    judges refusal to exclude the evidence of cocaine and cash seized by the police
    during events surrounding a vehicle stop for a
Highway Traffic Act
(
HTA
)
    offence.

[2]

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

Facts

[3]

On July 27, 2012, the appellant was a front-seat passenger in a rental
    car being driven by his friend, Justin Booth.  In the back seat was another friend,
    Glen Thomas.  At approximately 7:15 p.m., the car was pulled over and stopped
    by P.C. James Richardson, a member of the Hamilton Police force.

[4]

P.C. Richardson had parked his cruiser in an alleyway in an area in
    Hamilton known to be a drug area, and close to what was believed to be a crack
    house.  He said he noticed a black Honda vehicle (the vehicle driven by Mr. 
    Booth) drive by him at an extremely slow rate of speed, which caught his eye, and
    that he noticed as well that the front passenger was not wearing his seat belt
    as the vehicle passed by.  He pulled out behind the Honda and, after conducting
    a data search while following the vehicle, had reason to believe that it had
    unauthorized licence plates attached to it, contrary to the
Highway Traffic
    Act
, R.S.O. 1990, c. H.8.  He pulled the car over into a parking lot to
    investigate that infraction and called for back-up.

[5]

Over the course of the next three-quarters of an hour the following
    series of events took place.

The
    Arrest of Mr. Booth

[6]

As P.C. Richardson approached the Honda, the appellant got out of the
    car.  P.C. Richardson ordered him to get back into the car, which he did.

[7]

P.C. Richardson then asked the driver, Mr. Booth, for his ownership
    papers and drivers licence, and the passengers for their identification.  Mr. Booth
    provided his drivers licence. The appellant provided his health card with his
    photo on it and the ownership and insurance documents, which were in the glove
    compartment.  Mr. Thomas gave only a false name, orally.

[8]

P.C. Richardson returned to his cruiser and, after conducting a computer
    search, confirmed that the licence plates on the vehicle did not belong to it. 
    He returned to the rental car, arrested Mr. Booth and placed him in the rear of
    the cruiser.

[9]

It was 7:25 p.m.

[10]

The appellant and Mr. Thomas were then asked to get out of the vehicle while
    P.C. Richardson conducted a search of it.  Another police officer, P.C. Michael
    Stone, one of the two officers who had arrived on scene in response to P.C.
    Richardsons call for back-up, stood nearby while the two passengers waited
    outside the vehicle.

The
    CPIC and Niche Searches

[11]

Following the arrest of Mr. Booth, P.C. Richardson conducted computer
    checks of the passengers, using the CPIC and Niche RMS database systems.
[1]
He acknowledged in cross-examination that he was conducting a criminal
    investigation of the appellant at this point in time, and that he did not then
    have any specific crime in mind.  He had asked for the passengers
    identification with this purpose in mind.

The
    Incident Regarding Mr. Thomas

[12]

The CPIC and Niche searches led to an incident relating to Mr. Thomas,
    who had originally given the false name.

[13]

As a result of running the name appearing on the appellants health card
    through a CPIC check, P.C. Richardson discovered that the appellant had a
    criminal record.  He also learned that the rear passenger was likely Glen
    Thomas, who was known to have a tattoo on his shoulder.  If that were the case,
    P.C. Richardson believed that Mr. Thomas was in breach of a recognizance that
    prohibited him from being in the company of someone with a criminal record.

[14]

By this time, it was approximately 7:48 p.m.

[15]

At P.C. Richardsons direction, P.C. Stone approached Mr. Thomas and asked
    to see his shoulder. Upon request, Mr. Thomas revealed his shoulder tattoo. 
    However, when P.C. Richardson then returned to the rental car and insisted that
    Mr. Thomas tell him his real name, Mr. Thomas took flight.  P.C. Richardson and
    another officer gave chase, followed by P.C. Stone, telling the appellant to
    remain where he was. The appellant was alone for a short time after that.

[16]

Mr. Thomas was caught and arrested within a minute or so of taking
    flight.

The
    Arrest of the Appellant


[17]

The third part of the chronology then unfolded.

[18]

When P.C. Richardson was returning from his chase of Mr. Thomas, he told
    P.C. Stone to detain the appellant because, although he had no specific crime
    in mind at the time, P.C. Richardson thought that something else might be going
    on besides the
HTA
offence.  He conceded that if the appellant had in
    fact been detained in those circumstances it would not have been legal. 
    However, what happened next led to the appellants arrest on the drug offence.

[19]

P.C. Stone testified that before he could detain the appellant he
    observed the appellant walk towards a white vehicle parked next to the rental
    car in the parking lot.  He saw the appellant make a downward motion with his
    hand, as if he were throwing something on the ground under the white car.  He
    then saw the appellant approach the drivers door of the white vehicle and ask
    the driver for a cigarette.

[20]

P.C. Stone decided to detain the appellant so that he could retrieve the
    evidence of what he believed had been thrown under the car.  He placed the
    appellant in handcuffs and told the appellant that he was being detained for
    further investigation.  It was 7:57 p.m.

[21]

P.C. Stone did not immediately conduct a search of the appellant, nor
    did he advise the appellant of his right to counsel.  He went to the white
    vehicle and found a bag containing approximately 23.5 grams of cocaine under
    the car and a smaller bag of 0.45 grams of cocaine in the area where the
    appellant and Mr. Thomas had been standing.

[22]

The appellant was arrested at 7:58 p.m.  He was subjected to a pat-down search
    that yielded an iPhone, a Blackberry and $420 in cash.  The appellant was advised
    of his right to counsel at approximately 8:00 p.m.

The
    Trial Judges Disposition

[23]

The appellant applied for an order excluding the evidence of the cocaine
    and cash, pursuant to s. 24(2) of the
Canadian Charter of Rights and
    Freedoms
, on the basis that the police had violated his s. 8, s. 9 and s.
    10(b) rights.  The trial judge found a breach of s. 8 (unlawful search and
    seizure) and an understandably brief breach of s. 10(b) (the right to counsel),
    but no breach of s. 9 (arbitrary detention).  In spite of finding the s. 8 and
    short-lived s. 10(b) breaches  but against the background of that
Charter

analysis  he exercised his discretion to refuse to exclude the evidence
    under s. 24(2).  He concluded that the police had not acted in bad faith and 
    after balancing the criteria set out by the Supreme Court of Canada in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353  that the admission of the
    evidence would not bring the administration of justice into disrepute.

Analysis

[24]

The resolution of this appeal revolves primarily around whether the
    trial judge erred in his s. 9 analysis.  Did the detention of the appellant,
    initially lawful for purposes of the
HTA
investigation, remain lawful
    throughout until his arrest, as an incident of that investigation (as the trial
    judge concluded), or did it become unlawful the moment Mr. Booth was arrested
    and the
HTA
investigation was concluded (as the appellant contends)? 
    The answer to this question, in turn, depends on whether the trial judge
    properly applied the decision of this Court in
R. v. Harris
, 2007 ONCA
    574, 87 O.R. (3d) 214.

[25]

If the trial judge erred in his s. 9 analysis, and the appellant was
    detained for criminal investigative purposes for more than 30 minutes before
    being given his s. 10(b) rights to counsel, the s. 10(b) analysis leads to a
    different conclusion as well.  In the face of a breach of three
Charter
rights in these circumstances, the
Grant
analysis would favour
    exclusion of the evidence, in my view.

Section
    9 (Unlawful Detention)

[26]

The Crown conceded that the appellant was detained when P.C. Richardson
    told him to get back into the vehicle when he first got out immediately after
    the traffic stop, and he complied.  Defence counsel conceded that P.C. Richardson
    had a valid reason to stop the vehicle and detain the driver and passengers
    during the investigation of the
HTA
offence.

[27]

The trial judge agreed that, because the police had a valid reason to
    stop the vehicle and conduct the
HTA
investigation, they were
    justified in taking control of the driver and passengers for this purpose.  The
    initial detention of the appellant was therefore lawful. He then considered,
    and rejected, the appellants argument that the detention became arbitrary, and
    therefore unlawful, when the appellant was subjected to a groundless criminal
    investigation following Mr. Booths arrest.  Relying on this Courts decision
    in
Harris
, the trial judge concluded that the justification for the
    detention pursuant to the
HTA
investigation continued while P.C.
    Richardson checked the appellants identification through the police data
    system.  The request for the appellants identification, in the trial judges
    view, did not prolong or alter the nature of his detention.

[28]

Accordingly, on the trial judges analysis, there was no arbitrary
    detention of the appellant between 7:25 p.m. and 7:48 p.m., when the computer checks
    were completed and the officers returned to deal with Mr. Thomas. When P.C.
    Stone physically detained the appellant nine minutes later, he was entitled to do
    so in view of the information he had at the time.

[29]

The trial judge therefore concluded that there was no violation of s. 9. 
    Respectfully, I disagree.

[30]

In my view, the trial judge erred in law and made palpable and
    overriding errors of fact in arriving at the foregoing conclusion.  The error
    in law consisted of his misinterpretation of the principles enunciated in
Harris
. 
    The errors in fact relate to his finding that the appellants detention for criminal
    investigative purposes did not commence until he was detained by P.C. Stone
    just prior to his arrest at 7:58 p.m. On his own evidence, P.C. Richardson was
    satisfied at the time of Mr. Booths arrest (based on the appellants photo on
    his health card), that the appellant was who he said he was and what he (P.C.
    Richardson) then intended to do was to undertake a criminal investigation of
    the appellant through the database checks.

[31]

I agree with Mr. Gorham that this Courts decision in
Harris
does not establish a sweeping legal principle that, once a passenger has been
    lawfully detained in the course of an
HTA
stop, the detention remains
    lawful for as long as it takes the police to conduct an investigation of the
    passengers identity for whatever purpose.  As I read it,
Harris
stands for the proposition that, once a passenger is lawfully detained as an
    incident of a proper
HTA

stop and investigation, and the
    continued detention remains otherwise lawful, the detention is not rendered
    unlawful by an unconstitutional request for the passengers identification and
    the follow-up police check of that identification.  To put it another way, the
    improper request for the passengers identification for a purpose unrelated to
    the
HTA
stop and investigation will be a breach of s. 8 of the
Charter
,
    but that breach does not, itself, render a continued detention that is related
    to the continuing
HTA
investigation unlawful.

[32]

There are significant differences between this case and
Harris
,
    however.

[33]

Mr. Harris was a passenger in a vehicle that was stopped pursuant to a
    valid
HTA
investigation.  The investigating police officer asked all
    occupants for identification, and did so for purposes that were not related to
    the
HTA
investigation (i.e., to conduct a general CPIC search in order
    to obtain information about criminal records and whether persons were on
    probation or bail or under some level of surveillance).  The officer carried
    out the CPIC checks of all occupants at the same time and thus, the CPIC check
    of Mr. Harris and his continued detention took place while the
HTA
investigation was still ongoing.

[34]

The trial judge in
Harris

found  and this finding was
    accepted on appeal  that the CPIC check of the driver was enmeshed in the
    check of the passenger [Harris].  She also found that when the police officer
    asked Mr. Harris for his identification, the detention changed from lawful to
    arbitrary.  Writing for the majority,
[2]
Doherty J.A. rejected the latter conclusion and held that the continued
    detention of Mr. Harris during the period of time it took to complete the CPIC checks
    was not rendered unconstitutional simply because of the unlawful request for
    Mr. Harriss identification.  Central to that determination was the continuing
    nature of the
HTA
investigation and the fact that the passenger check
    was enmeshed in that exercise.

[35]

The following passages, from paras. 24-27 and 46 of this Courts
    decision in
Harris
, illustrate this:

The trial judge also rejected the defence submission that when
    Constable Lipkus returned to his vehicle to run Harris's identification through
    CPIC, he had already finished his investigation of the driver and could not
    rely on the
Highway Traffic Act
investigation to justify the
    continued detention of Harris.
The trial judge held, at para. 48 that
    "the CPIC check of the driver was enmeshed in the check of the passenger
    [Harris]
."

The trial judge went on to hold that when Lipkus asked Harris
    for identification for purposes that had nothing to do with the enforcement of
    the
Highway Traffic Act
, Harris's detention changed from lawful
    to arbitrary. She said, at para. 41:

... I find, however, that the characterization of
    the detention changed as matters unfolded. Once the officer moved beyond
    detaining Mr. Harris for the purposes of investigating issues relating to
    driving offences, Mr. Harris' detention became arbitrary.

I cannot agree that the request of Harris for identification
    for purposes unrelated to the
Highway Traffic Act
altered
    the constitutionality of his detention.
Harris was detained by virtue of the
    lawful stopping of the vehicle, the ongoing investigation of the
Highway Traffic Act
violation, and
    Lipkus's lawful assuming of control over the movements of the passengers in the
    vehicle. On the trial judge's factual findings, Lipkus's request for
    identification did not prolong or alter the nature of Harris's detention. He
    remained in exactly the same position he would have been in had Lipkus
    questioned only the driver.

Harris's detention, that is the limitation on his personal
    physical freedom imposed by Lipkus's actions, was not arbitrary in the sense
    that it was random or without individualized cause. The detention flowed from
    the officer's observations of the vehicle, his decision to pursue the
Highway
    Traffic Act
investigation, and the reasonable steps he took to assume
    control of the occupants of the vehicle. As the trial judge observed, these
    observations gave Lipkus proper grounds to detain the passengers in the vehicle
    during the
Highway Traffic Act
investigation. In my view,
    the request that Harris identify himself, even though improper for the reasons
    set out below, did not render Harris's detention arbitrary.

[]

For the reasons set out above, I
    do not agree that the improper questioning of Harris rendered his detention
    arbitrary or unlawful. Harris was lawfully detained as an incident of the

Highway
    Traffic Act

stop and
    investigation.
The justification for that detention operated when Harris was
    asked for identification and continued to operate when Lipkus checked that
    identification through CPIC
. As I do not find that Harris was arbitrarily
    detained when asked for identification, I do not reach the question of whether
    the arbitrariness of a detention automatically triggers the rights guaranteed
    by s. 10(b) of the

Charter
.

[36]

In short, the request for Mr. Harriss identification (even though
    itself unlawful as a breach of s. 8) did not render his continued detention
    during the CPIC check unlawful under s. 9 because:

(i) the HTA investigation was still ongoing;

(ii) the identification request did not prolong or alter the
    nature of the passengers detention; the passenger remained in exactly the same
    position he would have been in had the police questioned only the driver.

[37]

This case is quite different.

[38]

Here, the
HTA
investigation with respect to the unauthorized
    plates  the basis for the traffic stop  was completed, at least from the
    perspective of the appellants involvement, once Mr. Booth was arrested.  The
    trial judge accepted that P.C. Richardson pulled the vehicle over to
    investigate the unauthorized plates and that he did not ask the appellant for
    identification on account of the seat belt issue. P.C. Richardson acknowledged
    that he was satisfied as to the appellants identification by the time of the
    drivers arrest, having looked at his photo on the produced health card.  A
    police database check was not needed for that purpose.

[39]

On P.C. Richardsons own evidence he returned to the cruiser to conduct
    the data system checks on the appellant and Mr. Thomas
after
the Booth
    arrest.    He conceded that he was conducting a criminal investigation of the
    appellant at that time, and a groundless one at that.  The following exchange
    from his cross-examination makes this clear:

Q. So, you were satisfied as to his identity right when you
    looked at the photo card, right?

A. I was satisfied with his identity. Yes, sir.

Q. All right.  So, when you started running him, and thats the
    expression that you use when youre putting someones name in the computer,
    right.
So, when you were running him through these police databases, you
    are conducting a criminal investigation into Mr. Mhlongo, right?

A. Yes.

Q. You had no basis whatsoever to conduct a criminal
    investigation into Mr. Mhlongo, right?

A.
I have no specific crime
, if thats what youre
    asking?

Q. Yes.

A. At that point, no, I didnt have a specific crime.

Q. We all understand that, you know, you may have sniffed that
    something was going on here, and that your officers spidey sense, for lack
    of a better expression, I think you know what I mean, was maybe tingling a
    little bit.
But you will agree that you had no real reason, no articulable
    basis to believe that Mr. Mhlongo was implicated in any sort of criminal
    activity, right?

A. At that time, no.

[Emphasis
    added.]

[40]

In the face of that evidence, it is palpable and overriding error, in my
    view, to find  as the trial judge appears to have found  that the appellant
    was not detained for criminal investigative purposes prior to his physical
    detention and subsequent arrest by P.C. Stone at or around 7:58 p.m.

[41]

In
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45, the
    Supreme Court of Canada clarified that a police officer may detain an
    individual to investigate a criminal offence 
if
there are
reasonable
    grounds to suspect
in all the circumstances that the individual is
    connected to
a particular crime
and that such detention is necessary
    [emphasis added].  No such grounds existed here, either at the time of the
HTA
stop or at the time the police checks of the appellant were conducted following
    the arrest of Mr. Booth and termination of the
HTA
investigation.

[42]

Nor can it be said  as was the case in
Harris
 that P.C.
    Richardsons request for identification did not prolong or alter the nature of
    [the appellants] detention or that [h]e remained in exactly the same
    position he would have been in had [P.C. Richardson] questioned only the
    driver.

[43]

Had it not been for the request for identification, neither the
    appellant nor Mr. Thomas would have remained in detention following Mr. Booths
    arrest and the termination of the
HTA
investigation; there would have
    been no CPIC or Niche search of their names; it would not have been discovered
    that the appellant had a criminal record, that the back-seat passenger was Mr.
    Thomas, and that Mr. Thomas was in breach of a recognizance by being in the
    company of the appellant.  The entire scenario evolving from the knowledge the
    police obtained through the flight and arrest of Mr. Thomas to the discarding
    of the drugs by, and the arrest of, the appellant, would not have occurred.

[44]

I am satisfied in the circumstances of this case, therefore, that the
    appellants detention turned from lawful to arbitrary (and therefore unlawful)
    once Mr. Booth was arrested, the
HTA
investigation was completed from
    the appellants perspective, and the subsequent investigation of the appellant
    for criminal act purposes commenced.  His right not to be detained unlawfully,
    pursuant to s. 9 of the
Charter
,
was violated. This would have
    been at, or very shortly after, 7:25 p.m.

[45]

The unlawful detention continued until the appellant was subsequently
    detained after P.C. Stone witnessed him throw what turned out to be cocaine
    under the white vehicle  very shortly before his arrest at 7:58 p.m.

Section
    10(b) (the Right to Counsel)

[46]

While the Crown conceded at trial, and the trial judge found, that P.C.
    Stone should have provided the appellant with his right to counsel when he was
    detained and handcuffed at 7:57 p.m., rather than three minutes later, and
    following his arrest, at 8:00 p.m., the trial judge treated this violation as a
    brief, justifiable, and relatively inconsequential one.  However, once it is determined
    that the appellant was detained for criminal investigative purposes when he
    was, as described above, the s. 10(b) analysis takes on a different complexion.

[47]

Section 10(b) states that:

Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be
    informed of that right.

[48]

In
R. v. Suberu
, 2009 SCC 33, 245 C.C.C. (3d) 112 the Supreme
    Court of Canada established that the police duty to inform a detained person of
    his or her s. 10(b) rights is triggered at the outset of an investigative
    detention (para. 2), and (at para. 41) that:

In order to protect against the risk of self-incrimination that
    results from the individuals being deprived of their liberty by the state, and
    in order to assist them in regaining their liberty, it is only logical that the
    phrase without delay must be interpreted as immediately.

[49]

A brief stop of a vehicle for purposes of a valid
HTA
investigation does not trigger s. 10(b) rights:
Harris
, at para. 47.  That
    is not this case, however.  Given my conclusion that the nature of the
    appellants detention was transformed from a detention for valid HTA-investigation
    purposes to a detention for criminal investigative purposes at the time of, or
    very shortly after, Mr. Booths arrest at 7:25 p.m., it follows that the police
    were obliged to advise the appellant of his right to retain and instruct
    counsel immediately thereafter.  They did not do so.  The appellant was not
    advised of his right to counsel until 8:00 p.m., over 30 minutes later.

[50]

In these circumstances, it is not particularly significant whether the
    police violated the appellants s. 10(b) rights by not providing him with his
    right to counsel at 7:57 p.m., as opposed to 8:00 p.m.  He was entitled to be
    advised of those rights at or about 7:25 p.m.  That is what constitutes the s.
    10(b) violation in the circumstances of this case.

Section
    8 (Protection from Unreasonable Search and Seizure)

[51]

Relying on
Harris
and on this Courts decision in
R. v.
    Johnson
, 2013 ONCA 177, 297 C.C.C. (3d) 87, the trial judge concluded that
    P.C. Richardsons request for the appellants identification for purposes of a
    general criminal investigation, rather than simply for valid
HTA
-investigation
    purposes, constituted a breach of the appellants right to be protected from
    unreasonable search and seizure.  The request for identification in
    circumstances of the appellants detention pursuant to the traffic stop
    amounted to a warrantless seizure without reasonable cause.

[52]

As Doherty J.A. explained in
Harris
, at paras. 40-41 and 44:

In the circumstances, Harriss identification in response to
    the officers question constitutes a seizure and attracts s. 8 protection.

The seizure was unreasonable.  As in
Mellenthin
[3]
,
    [the police officer] had no reason to suspect Harris [the passenger] of
    anything when he questioned him and requested his identification.  The purpose
    for the stop and the consequential detention of Harris and the other occupants
    of the vehicle had nothing to do with the request for Harriss identification. 
    The purpose of the stop did not justify an at large inquiry into Harriss
    background or his status in the criminal justice system.  That was the effect
    of the request for identification.  Just as in
Mellenthin
, [the police
    officer] expanded a
Highway Traffic Act
stop into a broader and
    unrelated inquiry.  Harriss identification of himself provided the entré
e into that broader and unrelated inquiry.

I conclude that Harris was subject to a
    seizure when he gave [the police officer] his identification.  The seizure was
    warrantless and without reasonable cause.

[53]

The Crown does not contest the trial judges finding of a s. 8 breach.

Section
    24(2)

[54]

The trial judges errors in failing to find a s. 9 breach and in failing
    to recognize the nature and duration of the s. 10(b) breach undermine his s.
    24(2) analysis in which he concluded that the evidence of the cocaine and cash
    should be admitted at trial, and deprive it of the deference to which it would
    otherwise be entitled.  In the circumstances, it falls to us to revisit the
    analysis.  In doing so, however, I will have regard to the factual findings of
    the trial judge.

[55]

Section 24(1) of the
Charter
permits a person whose
Charter

rights have been infringed or denied to apply to the court for a remedy.  Section
    24(2) provides a particular remedy: the exclusion of evidence obtained in a
    manner that infringed or denied a persons
Charter

rights,
    where the admission of that evidence would bring the administration of justice
    into disrepute.

[56]

In
Grant
, the Supreme Court of Canada crafted the balancing analysis
    to be undertaken by a court in determining whether such evidence should be
    excluded in such circumstances.  Noting, at para. 67, that the purpose of s.
    24(2) is to maintain the good repute of the administration of justice, McLachlin
    C.J. and Charron J., writing for the majority, summarized the appropriate
    approach, at para. 71, as follows:

When faced with an application for exclusion under s. 24(2), a
    court must assess and balance the effect of admitting the evidence on societys
    confidence in the justice system having regard to: (1) the seriousness of the
Charter
-infringing
    state conduct (admission may send the message the justice system condones
    serious state misconduct), (2) the impact of the breach on the
Charter
-protected
    interests of the accused (admission may send the message that individual rights
    count for little), and (3) societys interest in the adjudication of the case
    on its merits.  The courts role on a s. 24(2) application is to balance the
    assessments under each of these lines of inquiry to determine whether,
    considering all the circumstances, admission of the evidence would bring the
    administration of justice into disrepute.

[57]

For the reasons outlined above, when balancing what have come to be
    known as the
Grant
factors, I do so against a different
Charter
-violation
    backdrop than that considered by the trial judge.  The results of the analysis
    differ accordingly.


Seriousness of
    the Charter Breach

[58]

The trial judge conducted his analysis on the basis of their having been
    a relatively low-threshold s. 8
Charter
breach and a relatively brief
    s. 10(b) violation. He made a finding that the police officers had not acted in
    bad faith or in wilful and deliberate breach of the appellants rights, and had
    not attempted to mislead the court in their testimony.  Given his view that
    detention concerns did not arise until after the appellant was seen to throw
    the object under the white vehicle, he was able to conclude that the
    seriousness of the s. 10(b) violation was diminished because the police were
    justified in acting as they did by the urgency and necessity of the situation
    surrounding the drug find and arrest.

[59]

He therefore determined that the first
Grant
factor weighed in
    favour of inclusion of the impugned evidence.

[60]

Once it is accepted, however  as I conclude  that the appellant was
    held, unlawfully, in investigative detention for more than half an hour,
    without being provided with his right to counsel during that period, and that
    there were therefore
three
consecutive
Charter

breaches
    committed  two, at least (s. 9 and s. 10(b)), quite serious in nature  the
    analysis points in the opposite direction, in my view.

[61]

On the trial judges analysis, the s. 8 violation was less serious than
    might otherwise have been the case.  He concluded that P.C. Richardson
    reasonably believed (although perhaps mistakenly) that the appellant had not
    been wearing a seat belt when the Honda passed his cruiser in the alley, that
    he could have ticketed the appellant for that infraction (although he did not),
    and in those circumstances would have had a lawful means to ask the appellant
    for identification (although, as noted above, on the trial judges findings,
    P.C. Richardson did not in fact ask the appellant for his identification on
    account of the seat belt issue).

[62]

Looked at in isolation, this view of the s. 8 violation, on a spectrum
    of less serious to more serious s. 8 violations, may be less serious.  However,
    the s. 8 violation provided the entrée to the two serious ss. 9 and 10(b)
    violations that followed.  Once the latter violations are in the mix, the s. 8
    violation cannot be viewed in isolation for purposes of the seriousness of the
    breach analysis.

[63]

Two other considerations played into the trial judges approach to that
    analysis.  The first was his finding that the police officers had not acted in
    bad faith, or in deliberate or wilful breach of the appellants
Charter
rights, or in an attempt to mislead the court in their testimony.  The second
    was his view that the appellant was not detained for criminal investigative
    purposes until P.C. Stone physically detained and handcuffed him at 7:57 p.m.

[64]

In spite of the appellants vigorous attack on the trial judges
    findings with respect to bad faith generally, the finding was open to him on
    the record, and I see no basis for interfering with it.  I accept those
    findings for purposes of the s. 24(2) analysis.  That said, given my conclusion
    that there were three consecutive
Charter

breaches  two of
    which are serious  it is also open for me to observe that the police conduct
    in these circumstances can fairly be described as demonstrating at least a
    sustained indifference to the appellants
Charter

rights.  I do
    not accept the finding of no-bad-faith as enough to tip the first
Grant
factor analysis in favour of admitting the evidence.

[65]

It was the trial judges failure to appreciate the presence of a s. 9
    breach, and his consequent view that the appellants s. 10(b) rights were only
    triggered upon his physical detention by P.C. Stone at 7:57 p.m. that were
    central to the trial judges conclusions respecting the seriousness of the
    breaches.  This is apparent from his comments at paras. 52-54 of his reasons:

In this case, there was no warrantless search of anything for
    the purpose of finding drugs. In fact, there was no search or unreasonable
    search of Mhlongo or even an attempt made to question Mhlongo or obtain
    incriminating evidence or statements from him. The cocaine was found only after
    Mhlongo himself in sight of Stone threw it away under the white car. The
    officers evidence is clear that although he intended to detain Mhlongo as he
    approached him, he never did so until after Mhlongo himself had thrown the
    object under the car which turned out to be cocaine when the police officer
    retrieved it.

In addition, Stone obviously knew he had to act quickly to
    retrieve what Mhlongo had thrown under the car as the driver of that car was in
    it. He had just assisted when one of the passengers who ran away had to be
    caught and restrained and it was not unreasonable for him in all the
    circumstances that evening to detain Mhlongo briefly while he searched for what
    he had just discarded. He admits he should have given him his right to counsel
    when he detained him in the back of his cruiser. However, he obviously believed
    in the urgency of immediately retrieving what was discarded and avoid[ing] the
    potential of Mhlongo also leaving the scene as the rear passenger had done shortly
    before. There was the potential and real risk of destruction of evidence if the
    vehicle started to move before the police officer checked underneath it. The
    urgency and necessity of this police action diminishes the seriousness of the
Charter
violations as upon retrieving the evidence, Stone immediately placed
    Mhlongo under arrest and read him his rights to counsel.

There was no expectation of privacy that Mhlongo had in the
    discarded cocaine thrown under the car which also diminishes the seriousness of
    the violations.

[66]

While acceptable in the context of the trial judges approach, this
    analysis is of little assistance in the context of the s. 9 and much more
    prolonged s. 10(b) breaches.  I view the unlawful detention of the appellant
    for purposes of a criminal investigation - in circumstances where P.C.
    Richardson concedes he had no basis at all for such a detention - as well
    toward the serious end of the breach spectrum, and the failure to provide the
    appellant with his right to counsel for more than half an hour after the
    commencement of that unlawful detention as even further along that spectrum.

[67]

The first
Grant
factor points strongly towards exclusion of the
    impugned evidence, in my view.

Impact
    of the Breach on the Charter-Protected Interests of the Appellant

[68]

Similar considerations lead me to hold that the second
Grant
factor also points strongly towards exclusion.

[69]

The trial judge was entitled to conclude, as he did, that the appellant
    was not humiliated or treated in a poor fashion by the police, even though
    the events took place in a public parking lot.  Prior to his arrest, he was not
    subjected to a search of his person, publicly.  The trial judge again observed that
    [a]lthough running a CPIC search on Mhlongo may have been an invasive and
    unwarranted search into his private personal information, there was no
    questioning, physical detention or search of him that lead to any incriminating
    evidence.

[70]

The balance of the trial judges analysis regarding the impact of the
    breach hinged again on his view of the relevant timing of the s. 10(b)
    violation and his determination that the appellant was in effect the author of
    his own misfortune by discarding the cocaine in sight of P.C. Stone, thereby
    giving up any right to privacy in it and triggering the events that logically
    followed its discovery.

[71]

Again, I take a different view.

[72]

The unlawful detention was what gave rise to the appellants immediate
    right to counsel.  By failing to inform him of his s. 10(b) rights, the police
    deprived the appellant of any meaningful opportunity to assert his legal rights
    during the investigative detention and, ultimately, he incriminated himself by
    throwing the drugs in his possession under the white vehicle.  Protection
    against self-incrimination is an important concern underlying the s. 10(b)
    right: see
Suberu
, at paras. 40-41. Had the appellant been informed of
    his rights  as he should have been, at or around 7:25 p.m.  events might well
    have unfolded differently.

[73]

It is not enough to say, as the Crown asserts, that the computer
    searches of the appellants name (flowing from the s. 8 breach) were
    inconsequential because they yielded no incriminating evidence with respect to
    the drug charge or, as the trial judge found, that the appellant created his
    own difficulties by intentionally discarding the drugs and giving up any
    privacy rights in them.  The right to counsel is designed to guard against the
    very eventuality of self-incrimination.

[74]

The second
Grant
factor strongly favours exclusion of the
    evidence.

Societys
    Interest in Adjudication of the Case on the Merits

[75]

I agree with the trial judge and Crown counsel that the third
Grant
factor
    favours admission of the evidence.  The seized drugs provided real and reliable
    evidence and were essential to the proof of a serious crime.  Society has an
    important interest in the adjudication of such cases on the merits.

Balancing
    the Grant Factors

[76]

It does not necessarily follow from the foregoing that exclusion wins
    over admissibility by a 2:1 score, however.  As
Grant

stipulates,
    [t]he courts role on a s. 24(2) application is to balance the assessments
    under each of these lines of inquiry to determine whether, considering all the
    circumstances, admission of the evidence would bring the administration of
    justice into disrepute (para. 71).  See also
R. v. Harrison
, 2009 SCC
    34, 245 C.C.C. (3d) 86, at para. 36.

[77]

I am satisfied, though  after considering all the circumstances and, in
    particular the serious s. 9 breach and the lengthy s. 10(b) breach  that the admission
    of the impugned evidence here would bring the administration of justice into
    disrepute and that, in balancing all the factors, the evidence should therefore
    be excluded.  As Doherty J.A. said in
R. v. McGuffie
, 2016 ONCA 365, 131
    O.R. (3d) 643, at para. 63: [i]f the first and second inquiries make a strong
    case for exclusion, the third inquiry will seldom, if ever, tip the balance in
    favour of admissibility.  This is consistent with the jurisprudence generally,
    which cautions against resorting to the third
Grant
factor in a
    systematic fashion to require the admission of reliable evidence obtained in
    plain disregard of an accuseds
Charter

rights: see, for
    example,
R. v. Dunkley
, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 63;
Harrison
, at paras. 36 and 40.

Disposition

[78]

For the foregoing reasons, I would allow the appeal and set aside the
    appellants conviction.  Since the excluded evidence was essential to the proof
    of the Crowns case, I would enter an acquittal.

Released:

JCM                                                            R.A.
    Blair J.A.

JUN 30 2017                                     I agree
    J.C. MacPherson J.A.

I
    agree Gloria Epstein J.A.





[1]
The Canadian Police Information Centre (CPIC) and Niche RMS databases are
    available only to police. They contain not only records of criminal convictions,
    but can also include information about outstanding warrants, court orders,
    charges, police contacts and investigations relating to individuals and
    locations.



[2]

McMurtry C.J.O. agreed with Doherty J.A.  OConnor A.C.J.O.
    concurred in the result, and with the s. 9 analysis, but differed from the
    majority on the s. 8 analysis.



[3]

R. v. Mellenthin
, [1992] 3 S.C.R. 615.


