



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2020 ONCA 264

DATE: 20200423

DOCKET: C65748

Strathy C.J.O., Harvison Young and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

ONeil Thompson

Appellant

Marianne Salih, for the appellant

Meaghan Hourigan, for the respondent

Heard: November 25, 2019

On appeal from the conviction entered on
    December 14, 2017 by Justice John R. Sproat of the Superior Court of
    Justice, sitting with a jury.

Jamal J.A.:

A.

overview

[1]

The appellant, a 31-year-old black man, was
    sitting in his parked car at a Brampton shopping plaza at night when he was
    arrested for being in possession of the remains of a partially smoked marijuana
    cigarette or roach. After arresting the appellant, the police searched his
    car incident to arrest and found cocaine, marijuana, a weighing scale, and a
    large amount of cash.

[2]

Two police officers had driven to this shopping plaza
    after receiving an anonymous tip about drug dealing from a car, and found the appellants
    car parked with its engine running. Although the police had no basis to believe
    the cars occupants were engaged in criminal activity, they parked two police
    cruisers directly behind it  boxing in the appellant so he could not drive
    away.

[3]

The police then approached the car, with one
    officer on either side. One officer smelled burnt marijuana from the open
    driver-side window; the other officer directed the passenger to roll down her window,
    smelled burnt marijuana, and then spotted a marijuana roach on the centre
    console. The officers arrested the two occupants for possession of the
    marijuana roach, searched the car incident to arrest, and discovered the cash
    and other drugs. About 21 minutes after having parked behind the appellant, the
    police advised him of his right to counsel.

[4]

The appellant was charged with possession of
    cocaine for the purpose of trafficking, the only count on which the Crown proceeded.
    At trial the appellant moved to exclude the evidence found in the car pursuant
    to s. 24(2) of the
Canadian Charter of Rights and Freedoms
because the
    police had arbitrarily detained him (s. 9), illegally searched his car (s. 8),
    and failed to inform him of his right to counsel immediately (s. 10(b)). The
    trial judge rejected the ss. 8 and 9 arguments, but accepted that there was a fairly
    serious breach of s. 10(b) that reflected a chronic problem with the Peel Regional
    Police in systematically delaying s. 10(b) rights. Even so, the trial judge
    admitted the evidence under s. 24(2), and a jury convicted the appellant. The
    appellant now appeals his conviction, arguing that the trial judge erred in
    finding no breach of ss. 8 or 9 and contending that the evidence should have been
    excluded under s. 24(2).

[5]

For the reasons below, I would allow the appeal.
    Unlike the trial judge, I conclude that the appellant was arbitrarily detained
    contrary to s. 9 of the
Charter
the moment the first police cruiser parked
    directly behind his car, because at that point the appellant could no longer choose
    to leave by driving away unless and until the police decided otherwise. This arbitrary
    detention triggered the appellants right to counsel. Like the trial judge, I conclude
    that because of a systemic problem with Peel Regional Police in delaying the
    right to counsel, this was a serious breach of s. 10(b). I do not find it
    necessary to address the alleged breach of s. 8 of the
Charter
because, based on the combined effect of the ss. 9 and 10(b) breaches, I conclude
    that the admission of this evidence would bring the administration of justice into
    disrepute. I would therefore exclude the evidence and acquit the appellant.

B.

background

[6]

The following background draws on the trial
    judges factual findings and the undisputed evidence of the two arresting officers,
    Officers King and Wong.

[7]

Officer King received an anonymous tip that drug
    dealing was taking place behind a shopping plaza in Brampton. The tip, which was
    vague, alleged that women were going to and from a vehicle.

[8]

On April 19, 2016, at 12:14 a.m., while on
    patrol, Officer King shared the tip with Officer Wong, who was also on patrol
    in a separate car. Both officers were in uniform and in marked police cruisers.

[9]

At 12:23 a.m., both officers arrived at the plaza
    and drove to the back. A Cadillac was parked in a parking spot facing the curb.
    Officer Wong could tell that the car was occupied because he saw movement
    inside. Officer King could not discern this because the cars windows were
    tinted, but she knew that the car was running because she saw exhaust fumes.
    She thought it was unusual for a car to be parked with its engine running at
    this time of night.

[10]

At 12:23 a.m., Officer King parked her police
    cruiser directly behind the Cadillac, which she estimated was about 11
    feet away. She acknowledged that the way she parked led to blocking the
    Cadillac from exiting. Officer Wong then parked his car directly behind Officer
    Kings car. He acknowledged that [b]oth [police] vehicles were essentially
    preventing the Cadillac from reversing should it choose to do so. Both
    officers conceded that at this point they had no basis to believe that anyone
    in the car had committed a criminal offence.

[11]

Officer King got out of her car and approached
    the Cadillac on the passengers side, while Officer Wong got out of his car and
    approached on the drivers side. Officer King tapped on the passenger-side window.
    When the female passenger rolled down the window, Officer King smelled burnt
    marijuana. She shone her flashlight into the car and within a minute saw the stub
    of a smoked marijuana cigarette in the centre console. This was at about 12:26
    a.m.

[12]

Meanwhile, as Officer Wong approached on the
    drivers side, he also smelled burnt marijuana. The driver-side window was already
    down. When he shone his flashlight at the driver, the appellants head popped
    up, possibly because he had been reclining. The trial judge inferred from this
    that the appellant was not even aware of the presence of the police, much less
    the position of the police cruisers, until Officer Wong was very close to the
    driver-side window and had shone his flashlight at him.

[13]

Officer Wong asked both occupants for
    identification and asked the appellant for vehicle ownership documents. The
    appellant gave Officer Wong his Ontario drivers licence. The female
    passenger orally identified herself. Officer King then told the appellant
    and the passenger that they were both under arrest for possession of a
    controlled substance  the marijuana roach.

[14]

At about 12:26 a.m., Officer Wong told the
    appellant to get out of his car and took him to the rear of it. He then spent
    about five minutes doing a pat-down search of the appellant. At about 12:33
    a.m., he put the appellant in Officer Kings car and went to help Officer King by
    taking control of the female passenger.

[15]

Officer King then searched the appellants car. She
    found some loose cash and a scale in the centre console. She also found a
    backpack in the back seat and searched it  finding 29 grams of cocaine, 5 grams
    of marijuana, 8 grams of hash oil, 12 grams of hash, and about $18,000 in cash.

[16]

At 12:41 a.m., Officer King told Officer Wong what
    she had seized. She then went to her car.

[17]

At 12:44 a.m., Officer King told the appellant
    that he was charged with possession for the purpose of trafficking, cautioned him,
    and advised him of his right to counsel.

C.

the
voir dire
ruling

[18]

At trial the appellant applied to exclude the
    evidence from the car under s. 24(2) of the
Charter
based on
    breaches of ss. 8, 9, and 10(b), among other grounds.

[19]

The trial judge rejected the appellants
    argument that he was detained when Officer King parked her police cruiser
    behind his car. He concluded that the appellant was detained only when he was
    arrested because: (1) the appellant was not even aware of the presence of the police
    until Officer Wong shone his flashlight close to the open driver-side window; (2)
    the occupants were sitting in the car with no immediate plan to move; (3) the
    encounter involved general neighbourhood policing, rather than the police effectively
    taking control of the appellant; (4) the encounter was not inherently
    intimidating and was brief, lasting less than a minute from when the appellant
    noticed the flashlight to when he was arrested; and (5) the appellant was not a
    young person. The trial judge also stated that it was safer for the police to
    park directly behind the appellants car to signal that the police were there rather
    than someone who might pose a threat.

[20]

The trial judge, however, found that Officer Wong
    should have advised the appellant of his right to counsel and cautioned him when
    he placed him in Officer Kings car at 12:33 a.m. The failure to do so breached
    the appellants rights under s. 10(b).

[21]

The trial judge also found that the police did
    not breach the appellants s. 8 rights by using a flashlight to identify the
    marijuana roach or in searching his car incident to arrest. They could use flashlights
    for their own and the occupants safety and to warn the occupants that they were
    approaching. And because the appellants arrest was lawful, the police could search
    the appellants car and backpack incident to his arrest.

[22]

Finally, despite finding a breach of s. 10(b),
    the trial judge declined to exclude the evidence under s. 24(2) of the
Charter
.
    He concluded that even if the police had advised the appellant of his right to
    counsel immediately upon arrest, they still would have obtained the evidence. The
    evidence was thus not obtained in a manner that breached the
Charter
,
    and s. 24(2) did not apply.

[23]

Even if s. 24(2) did apply, the trial judge still
    would have admitted the evidence. Although he found that the s. 10(b) breach was
    fairly serious  reflecting a chronic problem with Peel Regional Police
    officers believing that the right to counsel only needs to be provided as soon
    as practicable  he concluded that the impact of the violation on the
    appellants rights was minimal. He was not questioned before he was advised of
    his right to counsel, the evidence was non-bodily physical evidence that did
    not arise from any deliberate or egregious police conduct, and it was reliable
    and essential to the Crowns case.

D.

ANALYSIS

[24]

I will address the following issues:

1.

Was the appellant arbitrarily detained contrary
    to s. 9 of the
Charter
?

2.

When were the appellants rights under s. 10(b)
    of the
Charter
engaged?

3.

Should the evidence have been excluded under s.
    24(2) of the
Charter
?

[25]

Because I conclude that the evidence should have
    been excluded under s. 24(2) based on the combined breaches of ss. 9 and
    10(b), I need not address the alleged breaches of s. 8 of the
Charter
.

Issue 1: Was the appellant arbitrarily detained contrary to s. 9 of
    the
Charter
?

Introduction

[26]

I will begin by reviewing some of the general
    principles that apply to whether an individual is detained under s. 9 of the
Charter
.
    I will then apply those principles to assess whether the appellant was psychologically
    detained, and if so, whether any detention was arbitrary. I conclude that the
    appellant was detained and, because the Crown concedes (as it did at trial) that
    the police lacked reasonable grounds to detain the appellant, the detention was
    arbitrary and breached s. 9.

General principles

[27]

Section 9 of the
Charter
provides that
    [e]veryone has the right not to be arbitrarily detained or imprisoned.

[28]

An inquiry under s. 9 involves two questions. First,
    was the claimant detained? Second, was any detention arbitrary? Both questions are
    reviewed on appeal under a correctness standard:
R. v.

Le
, 2019
    SCC 34, 434 D.L.R. (4th) 631, at para. 29.

[29]

As with other
Charter
rights, the
    Supreme Court has adopted a generous and purposive interpretation of s. 9, one that
    seeks to balance societys interest in effective policing with robust
    protection for constitutional rights: see
R. v.

Suberu
, 2009
    SCC 33, [2009] 2 S.C.R. 460, at para. 24;
R. v.

Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353, at paras. 15-18, 23.

[30]

The purpose of s. 9, broadly stated, is to
    protect individual liberty against unjustified state interference:
Grant
,
    at para. 20. This liberty includes an individuals right to make an informed
    choice about whether to interact with the police or to simply walk away. If the
    police have removed an individuals choice to leave, the individual is detained:
Grant
, at paras. 20-21. As noted by then-Professor David Paciocco: [w]hat
    is given protection, essentially, is the right to choose whether to stay or
    leave when interacting with state agents: David M. Paciocco, What to
    Mention About Detention: How to Use Purpose to Understand and Apply Detention-Based
Charter
Rights (2010) 89 Can. Bar Rev. 65, at p. 71.

[31]

A detention occurs where the individual has been
    taken into the effective control of the state authorities:
Grant
, at
    para. 22. At this point, the individuals liberty has been meaningfully
    constrained, and the individual has a genuine need of the additional rights
    accorded by the
Charter
to people in that situation:
Grant
,
    at para. 26. These rights include the right to be informed of the reasons for the
    detention (s. 10(a)); the right to retain and instruct counsel without delay
    and to be informed of that right (s. 10(b)); and the right to have the validity
    of the detention determined by way of
habeas corpus
and to be released
    if the detention is not lawful (s. 10(c)).

[32]

Yet not every trivial or insignificant
    interference with individual liberty attracts
Charter
scrutiny under
    s. 9. Such a broad interpretation would trivialize the applicable
Charter
rights and overshoot their purpose:
Grant
, at para. 26. The police may,
    as a result, interact with or even delay members of the public, without
    necessarily prompting a detention under ss. 9 or 10(b):
Suberu
, at
    para. 23, citing
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para.
    19;
Le
, at para. 27.

[33]

Instead, a detention arises only where the police
    have suspended an individuals liberty interest through a significant physical
    or psychological restraint:
Grant
, at para. 44.

[34]

Physical restraint has been called the paradigm
    form of detention, with arrest being the paradigm form of physical restraint:
    Paciocco, at p. 75.

[35]

But a detention can also arise from psychological
    restraint. This is because police conduct short of holding an individual
    behind bars or in handcuffs can be coercive enough to engage the rights
    protected by ss. 9 and 10 of the
Charter
:
Suberu
, at para.
    21.

[36]

A psychological detention can arise either if:
    (1) an individual is legally required to comply with a police direction or
    demand (as with a demand for a roadside breath sample); or (2) absent actual legal
    compulsion, the police conduct would cause a reasonable person to conclude
    that he or she was not free to go and had to comply with the police direction
    or demand:
Grant
, at paras. 30-31;
Suberu
, at para. 22; and
Le
,
    at para. 25. This involves an objective determination, made in light of the
    circumstances of an encounter as a whole:
Suberu
, at para. 22.

[37]

The Supreme Court summarized the framework for
    analyzing whether an individual is detained at para. 44 of
Grant
:

1.   Detention under ss. 9 and 10 of
    the
Charter

refers to a suspension of the individuals liberty interest by a
    significant physical or psychological restraint. Psychological detention is
    established either where the individual has a legal obligation to comply with
    the restrictive request or demand, or a reasonable person would conclude by
    reason of the state conduct that he or she had no choice but to comply.

2.   In cases where there is no
    physical restraint or legal obligation, it may not be clear whether a person
    has been detained. To determine whether the reasonable person in the
    individuals circumstances would conclude that he or she had been deprived by
    the state of the liberty of choice, the court may consider,
inter alia
, the following factors:

(a)     The circumstances
    giving rise to the encounter as they would reasonably be perceived by the
    individual: whether the police were providing general assistance; maintaining
    general order; making general inquiries regarding a particular occurrence; or,
    singling out the individual for focussed investigation.

(b)     The nature of the
    police conduct, including the language used; the use of physical contact; the
    place where the interaction occurred; the presence of others; and the duration
    of the encounter.

(c)     The particular
    characteristics or circumstances of the individual where relevant, including
    age; physical stature; minority status; level of sophistication.

[38]

I now turn to consider the appellants claim that he was psychologically
    detained.

Was the appellant psychologically detained?

[39]

The appellant asserts that the trial judge
    erred in concluding that he was detained only when he was arrested. He says he was
    psychologically detained earlier, when the police parked the first police cruiser
    behind his car, because at that point the police had removed his choice to
    drive away. He submits that the trial judge erred in law by applying a
    subjective rather than an objective approach to the encounter. Based on all the
    circumstances, he says it is inconceivable that a reasonable person in his shoes
    would believe that he was free to leave after the police obstructed his car.

[40]

As I will explain, I agree that the trial
    judge erred by failing to apply the objective approach to psychological
    detention mandated by the Supreme Court in
Grant
,
Suberu
, and
    most recently,
Le
.

[41]

Grant
and
Suberu

clarified
    that, when there is no legal compulsion, psychological detention is evaluated
    under an objective test. The operative question is whether the police conduct
    would cause a reasonable person to conclude that he or she was not free to go
    and had to comply with the police direction or demand:
Grant
, at para. 31. An objective test
    allows the police to know when a detention occurs so that they can discharge
    their obligations under s. 10 of the
Charter
. While the test is objective, the individuals particular
    circumstances and perceptions at the time may be relevant in assessing the
    reasonableness of any perception that the individual had no choice but to
    comply with the police directive:
Grant
, at para. 32. The failure of the claimant to testify is not fatal to
    the detention claim:
Suberu
, at para. 28.

[42]

The Supreme Courts recent decision in
Le
,
    which
was released after the trial judges decision here, confirms
    the objective nature of the inquiry. The majority warned that [u]ndue focus on
    subjective perceptions detracts from the underlying rationales for adopting an
    objective test, of which it identified at least three: (1) to allow the police
    to know when a detention occurs so that they can discharge their attendant
Charter
obligations and afford the
    individual its added protections; (2) to maintain the rule of law, as all claims
    will be subjected to the same standard; and (3) to recognize the reality that
    some individuals will be incapable of forming subjective perceptions when
    interacting with the police:
Le
, at para. 115.

[43]

Given these strong reasons for an objective approach, the majority in
Le

warned that the
    focus must not be on what was in the accuseds mind, but on how the police
    behaved and how such behaviour would be reasonably perceived. This avoids
    putting the onus on the claimant to gauge correctly when they are detained and
    when they are not:
Le
,
    at para. 116.

[44]

In
Le
itself, the claimant had testified that he did not believe that he was
    detained by the police at a particular point. The majority placed little stock
    in the claimants belief because it concluded that he was already detained
    based on an objective evaluation of the circumstances: at para. 116.

[45]

This court has similarly highlighted that it
    is an error of law to approach psychological detention largely as a subjective
    inquiry:
R. v. McSweeney
,
    2020 ONCA 2, at para. 35; see also
R. v. Wong
, 2015 ONCA 657, 127 O.R. (3d) 321, at paras. 26-28, 43.

[46]

Here, the trial judge did exactly that. He
    conducted a largely subjective inquiry into the appellants state of mind during
    the encounter, rather than an objective inquiry about whether the police
    conduct would cause a reasonable person in the appellants circumstances to conclude
    that he was free to leave. I say this for two reasons.

[47]

First, in finding that the appellant was not
    detained, the trial judge highlighted that he was not subjectively aware that
    the police had parked behind him until they shone a flashlight into his car:

I do not accept the defence argument that Mr.
    Thompson was detained the moment the police cruiser parked behind his vehicle. Officer
    Wong testified that Mr. Thompsons head popped up when he directed his
    flashlight in the direction of Mr. Thompson.
That evidence suggests, and I
    find, that he was not even aware of the presence of the police, much less the
    position of the police cruisers until Officer Wong shone his flashlight and was
    positioned very close to the drivers side window that was open
. I conclude
    that it was his flashlight that initially attracted Mr. Thompsons attention,
    that Mr. Thompsons attention would immediately be directed to Officer Wong who
    was by then at the drivers side window. [Emphasis added.]

[48]

The trial judge focussed on what the
    appellant subjectively perceived about the police presence, rather than what a
    reasonable person in his circumstances would conclude from the nature of the police
    interaction. Whether the appellant was detained, triggering the polices
Charter
obligations, should not turn on whether the appellant saw the police in his
    rear-view mirror as they boxed him in (a subjective approach), but on whether a
    reasonable person in his circumstances would conclude that this police conduct effected
    a detention (an objective approach).

[49]

Second, the trial judge inferred that the
    appellant had no subjective intention to drive away when the police arrived:

Stepping in the path of someone and forcing a
    person to stop is more confrontational and potentially intimidating than
    parking a vehicle behind another vehicle particularly when on the evidence
    there was no indication that Mr. Thompson had any indication of moving the
    vehicle.
I find that the occupants of the vehicle were simply sitting
    there with no immediate plan to move
. [Emphasis added.]

[50]

The correct question, however, was not whether
    the appellant intended to drive away, but whether objectively the police had taken
    away his choice to do so.

[51]

This case underscores each of the three reasons supporting
    an objective approach: (1) it allows the police to know when the detention
    occurs, based on their own conduct rather than the subjective perceptions of
    the accused; (2) it maintains the rule of law, as all claims are subjected to
    the same standard, avoiding a different result if, for example, one accused saw
    the police in his rear-view mirror as they obstructed his car, but another did
    not; and (3) it recognizes that some individuals are incapable of forming
    subjective perceptions, like the appellant here, who did not appear to immediately
    perceive when the police obstructed his car.

[52]

In view of the error of law in applying a
    largely subjective analysis, this court must apply an objective approach based
    on the factors identified in
Grant
, at para. 44: (i) the
    circumstances giving rise to the encounter; (ii) the nature of the police
    conduct; and (iii) the characteristics and circumstances of the appellant.

(i)

The circumstances giving rise to the
    encounter

[53]

The circumstances giving rise to the encounter
    as they would be perceived by a reasonable person support a finding that the
    appellant was detained when the police obstructed his car. The police were not
    called to provide general assistance, maintain order, or respond to unfolding
    events. No one called the police to attend at the plaza. While the police were there
    at first in response to an anonymous tip, the tip was general, and they
    approached the appellants car because they thought it was suspicious for a car
    to have its engine running late at night. The trial judge fairly characterized
    this police activity as general neighbourhood policing, at least before they
    obstructed the appellants car.

[54]

But after that, a reasonable person would know only
    that the police showed up late at night and for no apparent reason obstructed the
    appellants car. Regardless of the officers intentions as they blocked the
    appellant, a reasonable person would not perceive this action as assisting in
    meeting needs or maintaining basic order:
Grant
, at para. 40;
Le
,
    at para. 42.

(ii)

The nature of the police conduct

[55]

The police conduct was authoritative from the
    outset. By obstructing the movement of the appellants car, the police would
    reasonably be perceived as sending the message that the appellant was not free
    to leave until the police decided otherwise.

[56]

This conclusion that the police conduct was
    authoritative is only reinforced by considering other circumstances of the
    encounter: the police were uniformed and in marked police cars; they placed
    themselves on either side of the car to question the occupants; they looked
    into the car with flashlights and directed the passenger to roll down her window;
    and they directed the occupants to produce identification and vehicle ownership
    documents.

[57]

I therefore disagree with the trial judges view
    that the character of the encounter did not move from general neighbourhood
    policing to a situation where the police had effectively taken control of Mr.
    Thompson. That is exactly what happened. As in
Grant
, the police effectively
    took control of the appellants car and its occupants, first by obstructing the
    appellants car, and then by approaching the car and seeking information from the
    appellant and the passenger: see
Grant
, at para. 49.

[58]

While the police did not engage in physical
    contact with the appellant before his arrest, their physical proximity in blocking
    his car would have created an atmosphere that would lead a reasonable person
    to conclude that the police were taking control of the situation and that it
    was impossible to leave:
Le
, at para. 50.

[59]

I also disagree with the trial judge that it was
    safer for all concerned for the police to park in plain view, directly behind
    the appellants car, or that the encounter was not inherently intimidating
    and only fleeting before the appellant was arrested. The brevity of the
    encounter is simply one consideration among many:
Le
, at para. 65. A
    psychological detention can occur at the start of an interaction or within
    seconds: see
Le
, at para. 66;
Grant
, at para. 42. That
    occurred here, as soon as the police parked behind the appellant. In my view,
    most reasonable people would find it intimidating to have their cars movement obstructed
    by two police cruisers.

[60]

The Crown did not provide any authority for the
    lawfulness of the police detaining the appellant in this case. Nor did the
    Crown rely on any statutory power of the police to obstruct the appellants car,
    such as under the
Highway Traffic Act
, R.S.O. 1990, c. H.8 or the
Criminal
    Code
, R.S.C. 1985, c. C-46. The appellant had a right to be where he was and
    a basic liberty to come and go by car as he pleased without being impeded by
    the police.

[61]

Finally, I reject the Crowns argument that the
    appellant was not detained, even though his car was obstructed, because he
    always remained free to walk away  by literally exiting his car and leaving
    on foot. In my view, a reasonable person in the appellants position, whose car
    was deliberately obstructed by a police cruiser, would conclude that they were not
    free to leave, on foot or otherwise.

[62]

But even if the appellant was free to leave on
    foot, as the Crown asserts, this confirms that his freedom of movement was
    significantly constrained. If the individual is a motorist or a driver, their
    freedom of movement includes the freedom to leave by driving away: see
R.
    v.

Orbanski
, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 30-31
    (referring to the rights of a driver and every motorist);
Suberu
,
    at para. 33 (accused not detained because the police made no move to obstruct [his]
    movement as he sat in his van). Here, the appellants freedom to drive away was
    significantly constrained, which suggests that he was detained.

(iii)

The characteristics and circumstances of the appellant

[63]

The trial judge noted that Mr. Thompson is not
    a young person, but more to the point he was a black man sitting in his car at
    night in Brampton when his car was obstructed without apparent reason by two marked
    police cruisers. I am not suggesting that the police engaged in racial
    profiling  to the contrary, they could not determine the race of the occupants
    because the windows were tinted. But the appellants status as a racialized
    Canadian in Brampton, one of the largest majority-racialized cities in Canada, is
    relevant to the perception of a reasonable person in his shoes. The majority in
Le
, at para. 97, referred to a common and shared experience of racialized
    young men: being frequently targeted, stopped, and subjected to pointed and
    familiar questions. As in
Le
, at para. 97, I conclude that [t]he
    documented history of relations between police and racialized communities would
    have had an impact on the perceptions of a reasonable person in the shoes of
    the [appellant]. Here, the appellants race would contribute to a reasonable
    persons perception in all the circumstances that he was detained.

[64]

I therefore conclude that the appellant was
    detained the moment the first police cruiser boxed in his car, because at that
    point the police had eliminated his choice to drive away unless and until the
    police decided otherwise.

Was the detention arbitrary?

[65]

A detention without at least reasonable
    suspicion is unlawful and therefore arbitrary:
Grant
, at para. 55. The
    trial judge accepted that the generic anonymous tip the police received did
    not provide the police with any right to detain the appellant. Nor did the
    police have any other basis to do so. The Crown does not suggest otherwise.

[66]

The appellant was therefore arbitrarily detained
    contrary to s. 9 of the
Charter
.

Issue 2: When were the appellants rights under s. 10(b) of the
Charter
engaged?

[67]

When an individual is arrested or detained, s.
    10(b) of the
Charter
guarantees the individual the right to retain and
    instruct counsel without delay and to be informed of that right. Subject to
    concerns for officer or public safety, or limitations prescribed by law and
    justified under s. 1 of the
Charter
, without delay means
    immediately:
Suberu
, at para. 42.

[68]

Here, the trial judge found that the police did
    not inform the appellant of his right to counsel immediately. The relevant
    timeline is as follows:

·

12:23 a.m.  The police arrive and park behind
    the appellants car.

·

12:26 a.m.  The police arrest the appellant.

·

12:26 a.m. to 12:33 a.m.  The police conduct a
    pat-down search of the appellant and place him in the back of a police cruiser.

·

12:33 a.m. to 12:41 a.m.  The police search the
    appellants car incident to arrest.

·

12:44 a.m.  The police inform the appellant of
    his right to counsel.

[69]

The trial judge found a delay in informing the
    appellant of his right to counsel, running from 12:33 a.m. to 12:44 a.m.
    Although the appellant was arrested at 12:26 a.m., the trial judge did not
    count the period when the police did a pat-down search because he found this search
    was justified by concerns for officer safety.

[70]

The appellant submits that he was arbitrarily
    detained at 12:23 a.m., not when he was arrested at 12:26 a.m., and that the
    trial judge had no basis to deduct the time for the pat-down search. He submits
    that this delay was unjustified because the police advanced only generalized
    rather than concrete and specific officer-safety concerns.

[71]

I agree that the appellants s. 10(b) rights were
    triggered when he was arbitrarily detained rather than when he was arrested. I
    have concluded, however, that it is unnecessary in this case to decide whether
    the police were justified in conducting a pat-down search before advising the
    appellant of his right to counsel, given the subsequent delay before the
    appellant was advised of his right to counsel and the lack of any reason for
    that delay. There was no reason why the police could not have advised the
    appellant of his right to counsel at the latest at 12:33 a.m., before they
    searched his car. Instead they waited another 11 minutes. As the trial judge
    found, this conduct breached s. 10(b).

Issue 3: Should the evidence have been excluded under s. 24(2) of
    the
Charter
?

[72]

The final issue is whether the evidence should
    have been excluded under s. 24(2) of the
Charter
. The trial judge
    found only a breach of s. 10(b), while I would also find a breach of s. 9.

[73]

Because the trial judge erred in law in
    assessing the nature and extent of the
Charter
breaches, his
    conclusion to admit the evidence does not attract appellate deference. This
    court must consider that issue afresh:
Le
, at para. 138;
Grant
,
    at para. 129;
R. v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at
    para. 42;
R. v. Gonzales
, 2017 ONCA 543, 136 O.R. (3d) 225, at
    paras. 162, 166; and
R. v. Adler
, 2020 ONCA 246, at para. 40.

[74]

Section 24(2) is triggered where evidence is
    obtained in a manner that violates an accuseds
Charter
right. A s.
    24(2) inquiry examines the impact of admitting evidence obtained in breach of
    the
Charter
on public confidence in the justice system over the long
    term, based on: (i) the seriousness of the
Charter
-infringing state conduct;
    (ii) the impact of the breach on the accuseds
Charter
-protected
    interests; and (iii) societys interest in the adjudication of the case on the
    merits. The courts task is to balance the assessments under these three inquiries
    to determine whether, considering all the circumstances, admission of the
    evidence would bring the administration of justice into disrepute:
Grant
,
    at para. 71;
Le
, at paras. 139-141; and
McSweeney
, at para.
    76.

[75]

In
Le
, the Supreme Court recently clarified
    the interaction of the three inquiries under s. 24(2). The majority noted that while
    the first two inquiries typically both pull towards exclusion of the evidence,
    they need not pull with identical degrees of force in order to compel
    exclusion: at para. 141. The evidence can be excluded even if the first two
    inquiries do not both support exclusion, such as in a case of a serious
Charter
breach coupled with a weak impact on a
Charter
-protected interest: at
    para. 141. The third inquiry, while not a rubber stamp deeming all evidence reliable,
    typically points to admission. When, however, the first two inquiries taken
    together make a strong case for exclusion, the third inquiry will seldom if
    ever tip the balance in favour of admissibility:
Le
, at para. 142;
    see also
Paterson
, at para. 56.

[76]

I now turn to apply the s. 24(2) analysis to
    this case.

Obtained in a manner

[77]

Because the trial judge found no
Charter
breach before the discovery of the contents of the backpack and the s. 10(b)
    breach was brief, he concluded that the evidence was not obtained in a manner
    that breached the
Charter
, and thus s. 24(2) was not engaged. He
    still conducted a s. 24(2) analysis for completeness.

[78]

The Crown asserts that the trial judge correctly
    found no causal connection between the breach of s. 10(b) and the discovery of
    the evidence, but concedes that because the breach and discovery were close in
    time and part of the same transaction, there was a temporal connection
    sufficient to trigger s. 24(2).

[79]

I accept the Crowns concession. A temporal connection
    between the breach of a
Charter
right and the discovery of evidence is
    enough to engage s. 24(2): see
R. v. Mian
, 2014 SCC 54, [2014] 2
    S.C.R. 689, at para. 83;
R. v. La
, 2018 ONCA 830, 366 C.C.C. (3d) 351,
    at para. 35; and
R. v. Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at
    para. 35. Here, there was such a connection between the breach of s. 10(b)
    and the discovery of the evidence.

[80]

I would, however, also find a causal connection
    because the evidence was discovered as a result of the arbitrary detention. The
    arbitrary detention had a direct causal connection to the discovery of the
    marijuana roach, and then to the arrest of the appellant, the search of his car,
    and the discovery of the evidence.

[81]

I therefore conclude that s. 24(2) of the
Charter
was engaged.

[82]

I now turn to the three lines of inquiry under
    s. 24(2).

(i)

The seriousness of the Charter-infringing
    state conduct

[83]

The first line of inquiry considers the seriousness
    of the police conduct that infringed the
Charter
and led to the
    discovery of the evidence. It asks whether the police engaged in misconduct
    from which the court should dissociate itself, such as where the departure from
Charter
standards was significant or where the police knew or should
    have known that their conduct breached the
Charter
; or rather whether
    the breach was merely of a technical nature or reflected an understandable
    mistake, in which case dissociation is much less of a concern:
Grant
,
    at paras. 72-74;
R. v.

Harrison
, 2009 SCC 34, [2009] 2 S.C.R.
    494, at para. 22; and
McSweeney
, at para. 78.

[84]

The courts should dissociate themselves from evidence
    obtained through a negligent breach of the
Charter
:
Le
, at
    para. 143; see also
Grant
, at para. 75.

[85]

Moreover, a systemic problem or pattern of
Charter
-infringing
    conduct is an aggravating factor that supports exclusion:
Grant
, at
    para. 75;
Harrison
, at para. 25.

[86]

To recap, I have concluded that there were breaches
    of ss. 9 and 10(b).

[87]

With respect to the breach of s. 9, I conclude that
    the police conduct in arbitrarily detaining the appellant was moderately
    serious in that it reflected negligence rather than wilful or deliberate
    conduct. When Officer King was cross-examined on why she had parked directly
    behind the Cadillac and blocked its exit, she simply said: [i]t was just where
    I chose to stop my vehicle. The police appear to have been unaware that their
    actions constituted or might constitute a detention.

[88]

Even though the police did not deliberately set
    out to violate the appellants rights under s. 9, their failure to appreciate
    their duties led to this result: see
Wong
, at para. 63.

[89]

More than a decade after
Grant
, the
    police must appreciate that, absent exigent circumstances or other appropriate
    justification, they cannot go about their undeniably important duties to
    enforce the law by obstructing ordinary Canadians in their cars until they are
    satisfied that they have answered their questions. To do so without a statutory
    or common law power would undercut the individuals fundamental right to choose
    whether to engage with the police or to leave.

[90]

The breach of s. 10(b) was, however, more
    serious. The police did not advise the appellant of his right to counsel
    immediately, as required by well-established jurisprudence under s. 10(b),
    but waited without justification before doing so:
Suberu,
at paras.
    41-42. As this court recently noted, [t]he law around s. 10(b) is clear and
    long-settled. It is not difficult for the police to understand their
    obligations and carry them out:
R. v. Noel
, 2019 ONCA 860, at para.
    34.

[91]

Both officers here appeared to be confused about
    their obligations under s. 10(b). At trial Officer King testified that she
    understood that, on arrest or detention, the appellant had to be informed of
    his right to counsel immediately, though she also conceded that at the
    preliminary inquiry she had said, as soon as practicable. She said that at
    the preliminary inquiry she may have mixed up the word possible and
    practicable, but she also testified that, to her, as soon as possible means
    if its convenient for [her] to give rights to counsel and practical. Officer
    Wong testified that his understanding was that the appellant had to be informed
    of his right to counsel as soon as practicable. He said that this had been
    his practice for the two years that he had been a police officer and was still
    his practice. He said this is what he was taught at his initial police training
    and what he is taught as part of his ongoing training. But as soon as
    practicable is necessarily a laxer standard than as soon as possible or
    immediately.

[92]

Worse still, the breach of s. 10(b) is rooted in
    a systemic disregard by the Peel Regional Police for their constitutional obligations.
    The trial judge himself found the breach of s. 10(b) to be fairly serious and
    highlighted a chronic problem with the Peel Regional Police and its officers
    believing that the right to counsel need be given only as soon as
    practicable. In support of this observation he referred to the comments of
    Schreck J. in
R. v. Sandhu
, 2017 ONCJ 226, 378 C.R.R. (2d) 306, at
    paras. 8-11. It is worth quoting Schreck J.s comments at length given the
    serious systemic concerns he highlighted, at paras. 9-11:


Suberu
was decided over seven years
    ago. As the Court noted, the concept of immediacy leaves little room for
    misunderstanding. Despite this, the police in Peel Region have repeatedly
    demonstrated what is at best a failure to grasp the dictates of the judgment,
    or, at worst, an unwillingness to follow it. See, for example,
R. v. Athwal
,
    2017 ONSC [9]6 at para. 230;
R. v. Kraus
, 2015 ONSC 2769 at paras.
    36-37;
R. v. Moulton
, 2015 ONSC 1047 at paras. 86-89;
R. v. Grewal
,
    2015 ONCJ 691 at paras. 41-44;
R. v. Medeiros
, 2015 ONCJ 707 at para.
    30;
R. v. Singh
, 2015 ONCJ 643 at para. 39;
R. v. Ahmad
,
    2015, ONCJ 620 at paras. 15-19;
R. v. Lam
, 2014 ONSC 3538 at para.
    230;
R. v. Soomal
, 2014 ONCJ 220 at para. 39;
R. v. Ramocan
,
    2014 ONCJ 692 at para. 66;
R. v. Volkov
, [2014] O.J. No. 5346 (C.J.)
    at para. 25;
R. v. Thomson
, 2013 ONSC 1527 at paras. 137-140;
R.
    v. Godday
, 2013 ONSC 1298 at para. 86;
R. v. Thompson
, [2013]
    O.J. No. 3570 (C.J.) at para. 5;
R. v. Dinh
, 2011 ONSC 5644 at para.
    48;
R. v. Watson
, 2010 ONSC 448 at para. 109.

Cst. Darcy is not the only Peel officer who
    seems to believe that he is obliged to advise people he has arrested of their
    right to counsel as soon as practicable:
Kraus
at para. 36;
Medeiros
at para. 12. The term as soon as practicable is often used in the drinking
    and driving context as it appears in s. 258(1)(c)(ii) of the
Criminal Code
in relation to when breath samples should be taken. In that context, it means
    within a reasonably prompt time in the circumstances and does not mean as
    soon as possible:
R. v. Vanderbruggen
(2006), 2006 CanLII 9039 (ON
    CA), 206 C.C.C. (3d) 489 (Ont. C.A.) at para. 12. It clearly does not mean
    immediately. Rather, it denotes a degree of flexibility that is simply not
    present in the s. 10(b) context.

In
Lam
, which was decided in 2014,
    Hill J. stated (at para. 337):

While the denial of the right to counsel,
    over 10 months after
Suberu
, was deliberate on the part of the
    officers in the sense of intended, it was without individual knowledge of its
    wrongness. However, once again, the PRPS [Peel Regional Police Service] as an
    institution failed to equip its officers with the knowledge required of a
    reasonably trained police officer by unreasonably delaying formal notification
    of its officers of this change in the law until an August 2013 Training
    Bulletin, over four years after the
Suberu
(SCC) decision - a Bulletin
    which still does not make it explicitly clear that both the informational
and
implementational duties of the s.
    10(b)
Charter
right are to be provided immediately upon the imposition
    of investigation detention.

These concerns, expressed by a very
    experienced and well-respected jurist in this jurisdiction, apparently remain
    unheeded as in this case, an officer with almost 10 years of experience still
    does not appreciate that the right to counsel has to be provided immediately.
    This appears to be a systemic problem, which renders the breach more serious:
R.
    v. Harrison
, 2009 SCC 34 at para. 25.

[93]

Since Schreck J. wrote these words, there have
    been even more instances of the Peel Regional Police failing to respect their
    obligation to inform a detainee of the right to counsel immediately,
    underscoring that this is an ongoing systemic problem: see, for example,
R.
    v. Kou,
2019 ONCJ 966, at paras. 26-32;
R. v. Gordon,
2018 ONSC
    1297, at paras 49-54;
R. v. Bullock
, 2018 ONCJ 598, 418 C.R.R. (2d)
    299, at paras. 59-66;
R. v. Lima
, 2017 ONSC 2224, 379 C.R.R. (2d) 1, at
    paras. 34-37;
R. v. Christopoulos
, 2017 ONCJ 845, at paras. 21-24;
R.
    v. Paskaran
, 2017 ONCJ 696, 394 C.R.R. (2d) 340, at paras. 10, 17, 19;
R.
    v. Williams
, [2017] O.J. No. 5787 (C.J.), at paras. 55-60, 67; and
R.
    v. Simpson
, 2017 ONCJ 321, 383 C.R.R. (2d) 134, at paras. 24-26.

[94]

To be clear, I do not wish to single out the
    individual officers here for blame. Neither of them appears to have intentionally
    breached s. 10(b) and both were relatively inexperienced officers who appear to
    have been following their training. The issue, rather, is institutional and
    systemic. It is, as the trial judge noted, a chronic problem with the Peel Regional
    Police force breaching their clear and well-settled constitutional obligations
    under s. 10(b).

[95]

Even without a systemic problem, a clear breach
    of settled rules governing state conduct supports exclusion of evidence under
    s. 24(2). As noted in
Paterson
, at para. 44: [e]ven where the
Charter
infringement is not deliberate or the product of systemic or institutional
    abuse, exclusion has been found to be warranted for clear violations of
    well-established rules governing state conduct (
R. v. Harrison
, 2009
    SCC 34, [2009] 2 S.C.R. 494, at paras. 24-25); see also
Noel
, at
    para. 34.

[96]

Here, the infringement does reflect a systemic breach
    of settled rules under s. 10(b). This serves as an aggravating factor supporting
    exclusion. When coupled with the s. 9 breach, I conclude that this case
    involved serious
Charter
violations.

(ii)

Impact of the breach on the appellants
    Charter-protected

interests

[97]

The second line of inquiry under s. 24(2) asks
    whether the
Charter
breach actually undermined the interests
    protected by the right infringed:
Grant
, at para. 76;
Le
, at
    para. 151. This involves identifying the interests protected by the relevant
Charter
rights and evaluating how seriously the
Charter
infringements impacted
    those interests. The more serious the impact on
Charter
-protected
    interests, the greater the risk that admission of the evidence may signal to
    the public that
Charter
rights, however high-sounding, are of little
    actual avail to the citizen, breeding public cynicism and bringing the
    administration of justice into disrepute:
Grant
, at paras. 76-77;
Harrison
,
    at para. 28; and
Le
, at para. 151.

[98]

Here, the appellants interest protected by s. 9
    of the
Charter
was his liberty from unjustified state interference 
    his right, absent compelling state justification, to live his life free of
    police intrusion, and to make decisions, including decisions of fundamental
    importance, free from state interference:
Le
, at paras. 152-154;
Grant
,
    at paras. 19-20; see also
Harrison
, at para. 31.

[99]

The s. 10(b) right to retain and instruct
    counsel without delay and to be informed of that right allows a detainee to
    obtain advice about how to exercise their rights relevant to their legal
    situation:
R. v. Taylor
, 2014 SCC 50, [2014] 2 S.C.R. 495, at para.
    21;
Wong
, at para. 77. This helps ensure that a detainees choice to
    speak to the police is free and informed and guards against the risk of
    involuntary self-incrimination:
Suberu
, at para. 40;
R. v.
    Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25; and
Wong
,
    at para. 77.

[100]

Here, the trial judge found that the impact of the violation of s.
    10(b) was minimal because the police did not try to question the appellant
    before advising him of his right to counsel and he made no inculpatory
    comments. I agree with that assessment.

[101]

But the impact of the violation of s. 9  which the trial judge did
    not consider because he found no such violation  was far from minimal. Being
    obstructed by a police car without justification curtails a persons rightful
    expectation of liberty and therefore intrinsically injures s. 9 interests. In
    addition, although the detention was brief before the appellant was arrested, the
    detention did not merely restrict but eliminated any realistic choice the
    appellant might have had about whether to leave. This impact on his s. 9 interests
    is heightened by the lack of any reasonable basis for the police conduct in
    detaining him. As the Supreme Court has emphasized, even trivial or fleeting
    detentions must be weighed against the absence of
any
reasonable basis
    for justification:
Mann
, at para. 56 (emphasis in original);
Le
,
    at para. 155.

[102]

As a result, I conclude that the impact on the appellants s. 9
    interests was significant and favours a finding that the admission of the
    evidence would bring the administration of justice into disrepute.

(iii)

Societys interest in the adjudication of the case on the merits

[103]

The last line of inquiry considers factors such as the reliability
    of the evidence and its importance to the Crowns case. It typically supports
    finding that admission of the evidence would not bring the administration of
    justice into disrepute:
Grant
, at paras. 79-84;
Harrison
, at
    para. 33; and
Le
, at para. 142.

[104]

This inquiry asks whether the truth-seeking function of the criminal
    trial process would be better served by the admission of the evidence or by its
    exclusion:
Grant
, at para. 79;
McSweeney
, at para. 81. Reliable
    evidence that is critical to the Crowns case will generally pull towards
    inclusion:
Harrison
, at paras. 33-34;
R. v. McGuffie
, 2016
    ONCA 365, 131 O.R. (3d) 643, at para. 62; and
McSweeney
, at para. 81.

[105]

Here, the appellant concedes that because the evidence is reliable
    and essential to the Crowns case against him, the third inquiry favours
    admission of the evidence. I agree with that concession.

Balancing the factors

[106]

The final step under the s. 24(2) analysis involves balancing the
    factors under the three lines of inquiry to assess the impact of admission or
    exclusion of the evidence on the long-term repute of the administration of
    justice. Such balancing involves a qualitative exercise, one that is not
    capable of mathematical precision:
Harrison
, at para. 36.

[107]

If, however, the first two inquiries together make a strong case for
    exclusion, the third inquiry will seldom if ever tip the balance in favour of
    admissibility:
Le
, at para. 142;
Paterson
, at para. 56; and
McSweeney
,
    at para. 81.

[108]

Here, both the first and second lines of inquiry pull towards
    exclusion, though not with identical force. This case involves serious
Charter
breaches coupled with a somewhat weaker but still significant impact on the
    appellants
Charter
-protected interests. Cumulatively, the first two
    inquiries make a strong case for exclusion, one that in my view outweighs societys
    interest in the adjudication of the case on the merits.

[109]

Despite the reliability of the evidence and its importance to the
    Crowns case, I have therefore concluded that the administration of justice
    would be brought into dispute by its admission. The evidence therefore should
    have been excluded under s. 24(2).

E.

conclusion

[110]

For these reasons, I would allow the appeal, exclude the evidence
    under s. 24(2) of the
Charter
, and set aside the conviction.
    Because the appellant could not be convicted without the evidence obtained as a
    result of the
Charter
breaches, I would direct an acquittal.

Released: April 23, 2020 (G.R.S.)

M.
    Jamal J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. Harvison Young J.A.


