



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGuffie, 2016 ONCA 365

DATE: 20160513

DOCKET: C57466

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Philippe Fred McGuffie

Appellant

Howard L. Krongold, for the appellant

James D. Sutton, for the respondent

Heard:  March 18, 2016

On appeal from the convictions entered on April 12, 2013
    by Justice T.D. Ray of the Superior Court of Justice, reported at 2013 ONSC
    2097.

Doherty J.A.:

overview

[1]

The appellant was convicted of two counts of possession of cocaine for
    the purpose of trafficking, three counts of breaching a condition of his
    recognizance and one count of breaching a probation order.  He was also
    acquitted of several gun-related charges.  The acquittals are not in issue on
    the appeal.

[2]

The appellants factual guilt on the charges for which he was convicted
    was never in doubt.  However, he argued that the police obtained the evidence
    relied on to establish his guilt in a manner that breached his rights under the
Canadian
Charter of Rights and Freedoms
.  He sought to exclude
the evidence
    pursuant to s. 24(2) of the
Charter
.  The trial judge found several
    breaches of the appellants
Charter
rights, but declined to exclude
    the evidence.  He convicted the appellant on the relevant counts.

[3]

The appellant appeals, renews his claim and argues that the evidence
    should have been excluded under s. 24(2).

[4]

I would allow the appeal.  The trial judge made three legal errors in
    his s. 24(2) analysis:

·

he treated the absence of evidence of systemic institutional
    non-compliance with the requirements of the
Charter
as mitigating the seriousness of the police
    misconduct;

·

he failed to give any consideration to the impact of the
    several
Charter
breaches on the
    constitutionally protected interests of the appellant; and

·

he
    treated the seriousness of the drug charges as the paramount and overriding
    consideration.

[5]

On a proper s. 24(2) analysis, the evidence should have been excluded. 
    I would quash all of the convictions and enter acquittals.

THE EVIDENCE

[6]

The Ottawa Police Service received a telephone call at about 2:00 a.m. from
    security personnel at a downtown bar advising that a group of five men in the
    bar had been seen passing a handgun around.  Several officers, including
    Constable Greenwood, responded to the call.

[7]

Constable Greenwood arrived at the bar at about 2:07 a.m.  Security
    staff were ushering the patrons out of the bar.  Other officers were already
    present.  The doorman identified two individuals as part of the group that had been
    passing the handgun around in the bar.  The appellant, one of those two men,
    walked away quickly from the bar.  Constable Greenwood followed him.

[8]

Constable Greenwood caught up to the appellant a short distance from the
    bar.  He asked the appellant why he was running away from his friends?  The
    appellant gave conflicting responses.  Constable Greenwood decided to detain
    the appellant as he suspected the appellant had the weapon seen earlier in the
    bar.  Constable Greenwood did not suggest that he had grounds to arrest the
    appellant.  Constable Greenwood told the appellant he was being detained
    because Constable Greenwood believed he had a handgun.  The appellant denied
    having a handgun.

[9]

When asked in examination-in-chief why he detained the appellant,
    Constable Greenwood responded:

I had a belief that he possibly had a firearm on him; for
    public safety; for the continuation of the investigation at the time.

[10]

Constable Greenwood was also asked what he meant by public safety:

If he had a firearm on him, the safety of the public; concerned,
    obviously, firearms in the wrong hands is a very dangerous thing.  I was
    concerned  there was a lot of citizens there, a lot of people, a lot of
    patrons, et cetera.

[11]

Constable Greenwood handcuffed the appellant and conducted a pat down
    search of the appellant for firearms.  He described the search as cursory.  Nothing
    turned up in the search.  The appellant was standing on the street when he was
    handcuffed and searched.

[12]

The appellant gave Constable Greenwood a health card in the name of
    David Piard and provided an address.  Both the name and the address were false. 
    Constable Greenwood did not check the name or address given to him by the
    appellant.  He decided to return to the bar to assist in the search for the handgun
    and to make sure my colleagues [were] safe.

[13]

Constable Greenwood chose not to release the appellant.  Instead, he
    placed him, still handcuffed, into the back of Constable McDonnells cruiser.  Constable
    Greenwood told Constable McDonnell that he was detaining the appellant as he
    suspected that he was one of the group who were passing the handgun around in
    the bar.  He asked Constable McDonnell if he could leave the appellant in his
    cruiser, but did not give Constable McDonnell any further detail or instruction.

[14]

Constable Greenwood returned to the bar leaving the appellant handcuffed
    in the back of Constable McDonnells cruiser.  There is no evidence that
    Constable Greenwood turned his mind to how long the appellant would be held in
    the cruiser.  Constable Greenwood did not have reasonable and probable grounds
    to arrest the appellant.

[15]

Constable McDonnell, who was seated in the drivers seat of the cruiser,
    made attempts to verify the identification that the appellant had given
    Constable Greenwood.  The appellant was not cooperative and Constable McDonnell
    could not verify the appellants identity.

[16]

Constable Greenwood returned to Constable McDonnells cruiser 30 minutes
    later.  The appellant was still handcuffed in the backseat.  According to Constable
    McDonnell, Constable Greenwood told him that he wanted to move the appellant to
    Constable Greenwoods cruiser so he could take the appellant back to the police
    station.  The appellant was not under arrest at this time.  Constable McDonnell
    testified that Constable Greenwood removed the appellant from his cruiser and
    that he assisted Constable Greenwood in conducting a further search of the
    appellant.

[17]

Constable Greenwoods evidence was different.  He testified that when
    he returned to Constable McDonnells cruiser he was still concerned that the
    appellant might be in possession of the handgun that had been seen earlier in
    the bar.  Constable Greenwood testified that he decided to conduct a more
    thorough safety search of the appellant for the handgun.  Constable Greenwood
    acknowledged that when he left the appellant in Constable McDonnells cruiser
    with Constable McDonnell sitting in the front seat, he had not expressed any concerns
    to Constable McDonnell that the appellant might still be armed.

[18]

Constable Greenwood testified that he removed the appellant from the
    cruiser and began a more thorough search of the appellant.  He felt a hard
    rectangular object in the pocket of the appellants shirt.  Concerned that it
    might be the handgun, he removed the object.  It turned out to be a package of
    white powder that later analysis showed to be cocaine.  Constable Greenwood testified
    that he continued to search the appellant and found some money and marihuana in
    the appellants pant pocket.

[19]

Constable Greenwood arrested the appellant on a charge of trafficking in
    cocaine.  He testified that he would have advised the appellant of his right
    to counsel when he arrested him.  There was no evidence of the language used by
    Constable Greenwood when he advised the appellant of his right to counsel. 
    Even on Constable Greenwoods evidence, the appellant had not been advised of
    his right to counsel until almost 40 minutes after he was first detained.

[20]

According to Constable Greenwood, the appellant said he wanted to speak
    to a lawyer.  Constable Greenwood did nothing in response to the appellants
    request.

[21]

Sometime after the appellants arrest on the cocaine charge, Constable
    Greenwood transferred the appellant into his cruiser and drove him to the
    police station a few blocks from the scene of the arrest.  Constable Greenwood
    and the appellant arrived at the station about 30 minutes after the appellants
    arrest.  It had now been over an hour since Constable Greenwood left the
    appellant handcuffed in the back of Constable McDonnells cruiser.

[22]

Constable Greenwood told the officer in charge at the station that he wanted
    to strip search the appellant because he was concerned the appellant might
    still be carrying a handgun, as well as more drugs.  The sergeant approved the
    request.  When Constable Greenwood made the request, he knew that the firearm from
    the bar had been found.  Nothing was said about giving the appellant an
    opportunity to speak to a lawyer before the search was conducted, despite
    Constable Greenwood knowing that the appellant wanted to speak to a lawyer.  Nor
    did any of the officers allude to the possibility that the police should
    refrain from conducting the strip search until the appellant had an opportunity
    to speak with counsel.

[23]

Initially, the appellant vigorously resisted the strip search.  Several
    officers, including Constable Greenwood, assisted in overcoming his
    resistance.  Constable Greenwood testified that he restrained the appellants
    legs because the appellant had attempted to kick other officers.  The trial
    judge described Constable Greenwoods participation in the following terms:

His assistance consisted of standing on Mr. McGuffies ankles
    with what was clearly an intention to cause Mr. McGuffie pain.  It was a purely
    gratuitous act.  While Cst. Greenwood might have gained satisfaction from
    needlessly standing on Mr. McGuffies ankles for over a minute, he further
    breached Mr. McGuffies rights to be free from the intentional infliction of
    pain while being in his custody.

[24]

During the search, the police found a package of cocaine sewn into the
    waist of the appellants underwear.  After this cocaine was located, the
    appellant became more cooperative and produced a package of cocaine that he had
    secreted in his buttocks.  The appellant was taken into another room so that
    the strip search could be completed.  The appellant cooperated during the strip
    search.  While the search was being done, the door to the room was open and
    three police officers were in the room.

[25]

After the strip search was completed at 3:54 a.m., the police gave the
    appellant an opportunity to speak to his lawyer.
[1]
About 90 minutes had passed since the appellant was first detained.  An hour
    had passed since the appellant, in response to being told he had a right to a
    lawyer, had indicated he wanted to speak to a lawyer.  After the appellant spoke
    with his lawyer, he told the police his real name and that there were warrants
    outstanding for his arrest.

the trial judges reasons

[26]

The trial judge accepted that the initial detention of the appellant on
    the street in connection with Constable Greenwoods firearm-related
    investigation was a constitutionally appropriate investigative detention.  He
    also accepted that the pat down search of the appellant was a reasonable
    safety-related search and complied with s. 8 of the
Charter
.  The
    trial judge further held, however, that from the time Constable Greenwood put
    the appellant into Constable McDonnells cruiser until he finally allowed him to
    speak to his lawyer about 90 minutes later, the police repeatedly violated the
    appellants constitutional rights.

[27]

The trial judge held that the detention of the appellant in the police
    cruiser while Constable Greenwood went back to the bar to assist in the
    investigation ignored the obligation to minimize the length of an investigative
    detention and thereby breached the appellants right under s. 9 of the
Charter
to be free from arbitrary detention.  The trial judge contrasted Constable
    Greenwoods approach to that of other officers who briefly detained other individuals
    suspected of having some connection to the firearm and released them when the
    detention provided no grounds for an arrest.

[28]

The trial judge held that Constable Greenwoods failure to tell the
    appellant that he had a right to counsel when he detained him in the police
    cruiser violated the appellants constitutional right under s. 10(b).  A second
    s. 10(b) violation occurred when the appellant was not given an opportunity to
    speak to his lawyer for an hour after he indicated that he wanted to speak to a
    lawyer.

[29]

The trial judge referred to the second search of the appellant after Constable
    Greenwood removed him from Constable McDonnells vehicle as raising some
    serious questions.  The trial judge did not make a specific finding that the
    second search of the appellant breached his s. 8 rights.  For reasons I will
    explain below, there is no doubt that it did.

[30]

The trial judge was also critical of the search conducted at the police
    station.  He described Constable Greenwoods intentional and gratuitous infliction
    of pain by standing on the appellants ankles for about a minute as a breach of
    the appellants rights to be free from intentional infliction of pain while
    being in custody.  He also found that the police failed to adequately respect
    the appellants privacy rights when they conducted the strip search with the
    door open and in the presence of officers who were unnecessary for the proper
    conduct of the strip search.  I read these findings cumulatively as an implicit
    finding that the search of the appellant at the police station was conducted in
    an unreasonable manner and breached the appellants rights under s. 8.

analysis

[31]

This appeal is about the application of the exclusionary
    rule in s. 24(2) of the
Charter
.  The
    Crown does not, and could not, seriously challenge the finding that the
    appellants rights under ss. 9, 10(b) and 8 were infringed by the conduct of
    Constable Greenwood.  Before I turn to the s.
24(2) analysis, it is
    helpful to clearly identify the various constitutional breaches revealed by
    this evidence.  In doing so, I do not intend to depart from the trial judges
    factual findings.  I do, however, attempt to connect those findings more
    specifically to the
Charter
breaches that arise from them.

The Section 9 Breach

[32]

An individuals right to be left alone by the police and the
    police duty to investigate crime and protect the public will inevitably come
    into conflict.  That conflict often plays out in street level encounters like
    the one involving Constable Greenwood and the appellant.  Section 9 provides
    the constitutional imperative against which the competing interests of the
    individual and the state, as represented by the police, must be balanced and
    resolved.  The section reads
:

Everyone has the right not to be arbitrarily detained or
    imprisoned.

[33]

The appellant was detained from the moment Constable Greenwood stopped
    him on the street.  The detention was made all the more obvious when Constable
    Greenwood handcuffed the appellant.  The appellant was entirely under Constable
    Greenwoods control from that point forward:
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353, at para. 44.

[34]

When Constable Greenwood detained the appellant, he had reasonable
    grounds to suspect that the appellant was involved in the illegal possession of
    a handgun.  He had information from the doorman, he had seen the appellant quickly
    leaving the area of the bar and the location of the handgun was unknown as far
    as Constable Greenwood was aware.  Constable Greenwoods investigation raised
    legitimate and immediate public safety concerns.  While Constable Greenwood did
    not have grounds to arrest the appellant, he did have a duty to investigate the
    gun-related incident and the appellants potential connection to it.

[35]

An individual may be detained for investigative purposes if the police
    are acting in the exercise of their duty and the detention is justified as
    reasonably necessary in the totality of the circumstances:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34;
R.
    v. MacKenzie,
2013 SCC 50, [2013] 3 S.C.R.
    250, at para. 35.  As explained in
Mann
:


The detention must be viewed as reasonably necessary on an
    objective view of the totality of the circumstances, informing the officers
    suspicion that there is a clear nexus between the individual to be detained and
    a recent or on-going criminal offence.  Reasonable grounds figures at the
    front-end of such an assessment, underlying the officers reasonable suspicion
    that the particular individual is implicated in the criminal activity under
    investigation.  The overall reasonableness of the decision to detain, however,
    must further be assessed against all of the circumstances, most notably the
    extent to which the interference with individual liberty is necessary to
    perform the officers duty, the liberty interfered with, and the nature and
    extent of that interference.

[36]

In my view, the
    appellants initial detention on the street was a lawful exercise of the police
    power to detain persons in the course of a criminal investigation.
[2]

[37]

In
Mann
, at para. 35, Iacobucci J. stressed that an
    investigative detention was not the same thing as an arrest and could not be allowed
    to become a
de facto
arrest.  The significant interference with individual liberty occasioned by an
    arrest is justified because the police have reasonable and probable grounds to
    believe that the arrested person has committed an offence.  Investigative
    detention does not require the same strong connection between the detained individual
    and the offence being investigated.  The detention contemplated by an
    investigative detention cannot interfere with individual liberty to the extent
    contemplated by a full arrest.

[38]

The duration and nature of a
    detention justified as an investigative detention must be tailored to the
    investigative purpose of the detention and the circumstances in which the
    detention occurs.  A brief detention on the street to question an individual implicated
    in a criminal investigation involving ongoing events may be justifiable under
    the
Mann
criteria, but
    under those same criteria imprisonment in a police cruiser while handcuffed for
    some indefinite period while an officer carries out other aspects of a criminal
    investigation could not be justified.  The police cannot use
investigative
    detention as an excuse for holding suspects while the police search for
    evidence that might justify the arrest of the suspect.  Nor does investigative
    detention mean that the police can detain suspects indefinitely while they carry
    out their investigation.

[39]

Constable Greenwood was justified in briefly detaining the appellant to
    question him about his knowledge of the handgun.  However, after that brief
    detention, he was required to release the appellant unless he had grounds to
    arrest him.  There is no suggestion that he had the grounds to arrest the
    appellant.  Constable Greenwood was therefore required to release the
    appellant.  Instead, he imprisoned the appellant while he pursued his
    investigation elsewhere.  In doing so, he completely disregarded the appellants
    right to liberty and rendered him vulnerable to further police investigation.  The
    appellants right to be free from arbitrary detention was infringed by
    Constable Greenwood when he confined the appellant in the back of Constable
    McDonnells cruiser.

The Section 10(b) Breaches

[40]

Section 10(b) of the
Charter
reads:

Everyone has the right on arrest or detention

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

[41]

Section 10(b) creates the right to retain and instruct counsel without
    delay, and the right to be informed of that right without delay.  If a detained
    person, having been advised of his right to counsel, chooses to exercise that
    right, the police must provide the detained person with a reasonable
    opportunity to exercise that right and must refrain from eliciting
    incriminatory evidence from the detained person until he has had a reasonable
    opportunity to consult with counsel:
R. v. Suberu
, 2009 SCC 33, [2009]
    2 S.C.R. 460, at para. 38;
Grant
, at para. 58;
R. v. Taylor
,
    2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 20-26.

[42]

The rights created by s. 10(b) attach immediately upon detention,
    subject to legitimate concerns for officer or public safety:
Suberu
,
    at para. 42.  On the facts of this case, the appellant should have been told by
    Constable Greenwood that he had a right to speak to his lawyer no later than immediately
    after Constable Greenwood had handcuffed the appellant and conducted the pat
    down search while standing on the street.  The appellant should have been asked
    if he wanted to speak with counsel and, if he did, Constable Greenwood should
    have afforded him that opportunity without delay.

[43]

In
Suberu
, at
    para. 40, the court described the rationale for the rights guaranteed by s.
    10(b):

[T]he purpose of s. 10(b)
    is to ensure that individuals know of their right to counsel, and have access
    to it, in situations where they suffer a significant deprivation of liberty due
    to state coercion which leaves them vulnerable to the exercise of state power
    and in a position of legal jeopardy.  Specifically, the right to counsel is
    meant to assist detainees to regain their liberty, and guard against the risk
    of involuntary self-incrimination.

[44]

The purpose animating s. 10(b) applied with full force in this case. 
    The appellant was under the control of the police.  He was effectively imprisoned
    from the moment he was handcuffed and placed in the cruiser.  Constable
    Greenwood took advantage of that control to subject the appellant to an unconstitutional
    detention and two intrusive unconstitutional searches, both of which yielded
    incriminatory evidence.  The appellant was in serious legal jeopardy.  He needed
    legal advice.  More importantly, he was constitutionally entitled to it.  The
    conduct of the police, and specifically Constable Greenwood, ensured that he
    would not receive that advice until after the police were done with the
    appellant and had the evidence they needed to convict him.  The appellants
    rights under s. 10(b) were breached.

[45]

Crown counsel did not attempt to defend the police failure to comply
    with virtually all of their obligations under s. 10(b) of the
Charter
. 
    He did, however, in an attempt to mitigate those failures, suggest that had Constable
    Greenwood given the appellant his right to counsel when he was initially
    detained, and had the appellant exercised his right to counsel, it would have
    resulted in a lengthier detention of the appellant as Constable Greenwood would
    have been required to take the appellant back to the police station so that he
    could exercise his right to counsel.

[46]

Counsel did not press this submission.  It is clearly based on
    speculation.  There is no way of knowing what Constable Greenwood might have
    done had he complied with s. 10(b) when he first detained the appellant and had
    the appellant demanded the opportunity to consult with counsel.  The evidence
    of Constable McDonnell suggests that Constable Greenwood intended all along to
    hold the appellant while he assisted in the search for the handgun and to take
    the appellant back to the police station unless the handgun had been located.  If
    this was Constable Greenwoods plan, it left no room for a trip back to the
    station to allow the appellant to consult with counsel.

[47]

There is no need to address this hypothetical.  It does, however, highlight
    the tension between the relatively brief duration of investigative detentions
    and the exercise of the right to counsel by persons being held under
    investigative detention.  The submission assumes that the police can
    significantly prolong the detention if necessary to afford the detained person
    an opportunity to speak with counsel.  I do not necessarily accept that
    submission.  It may be that, if a police officer can afford a detained person
    an opportunity to exercise his s. 10(b) rights only by significantly prolonging
    an investigative detention, the police officer must release the detained person
    rather than breach s. 9 of the
Charter
.  I leave that question for
    another case.

The Section 8 Breaches

[48]

Section 8 declares:

Everyone has the right to be secure against unreasonable search
    or seizure.

[49]

Section 8, like s. 9, is reflective of an individuals right to be left
    alone by the state absent justification for state interference with the
    individual.  The constitutional protection in s. 8 rests on the fundamental
    belief that privacy, in its various manifestations, is an essential precondition
    to individual liberty and security of the person.  State intrusion upon privacy
    must be reasonable; that is, any law authorizing an intrusion must be
    reasonable and the manner in which the intrusion is effected must be
    reasonable:
R. v. Fearon,
2014
    SCC 77, [2014] 3 S.C.R. 621, at para. 12;
R. v. Aucoin
, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 30.


[50]

In the modern world, notions of privacy are evolving and becoming more
    nuanced and complex in the face of relentless technological change:  see e.g.
R.
    v. Spencer,
2014 SCC 43, [2014] 2 S.C.R. 212.  The privacy interests
    engaged in this case involve no subtleties or nuances.  The initial pat down
    search of the appellant, the second more intrusive search of his person beside
    the cruiser, and the very intrusive strip search at the police station all struck
    at the core of the appellants most basic right to personal privacy.

[51]

The pat down search of the appellant on the street at the time of his
    initial detention was, in my view, reasonable and justified as an incident of
    his investigative detention.  In
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37
, the
    court recognized that the police could, in some circumstances, conduct safety
    searches as an incident of the exercise of their duty to investigate crime and
    protect the public.  Two passages from
MacDonald
are helpful:

[40] I am
    convinced that the duty of the police officers to protect life and safety may
    justify the power to conduct a safety search in certain circumstances.  At the
    very least where a search is reasonably necessary to eliminate an imminent
    threat to the safety of the public or the police, the police should have the
    power to conduct the search.



[44] This common law power to conduct searches for safety
    purposes is the reasonably lawful authority for the search carried out by Sgt.
    Boyd.  The power was engaged because Sgt. Boyd had reasonable grounds to
    believe that there was an imminent threat to the safety of the public or the
    police and that the search was necessary in order to eliminate that threat.

[52]

As discussed by the dissent in
MacDonald
, the majoritys
reference to reasonable
    grounds could be confusing.  However, in the circumstances of this case, there
    is no doubt that Constable Greenwood had sufficient grounds to believe there
    was an imminent threat to his safety should he confront and detain the appellant
    on the street for investigative purposes.  That reasonable belief of an
    imminent threat could, in my view, be based on the reasonable suspicion that
    the appellant had the handgun.  A cursory pat down search of the appellant was
    justified to eliminate that concern.

[53]

Constable Greenwood also attempted to justify the second more thorough search
    of the appellant as a safety search.  This search occurred when the appellant
    had been unlawfully detained for 30 minutes.  Setting aside the trial judges understandable
    doubts about the veracity of this part of Constable Greenwoods evidence, and
    assuming the second search was a safety search, it was nonetheless unlawful
    and unconstitutional.

[54]

The police power to conduct a safety search as described in
MacDonald
assumes that the officer is engaged in the execution of their lawful duty:
MacDonald
,
    at paras. 33-35.  Constable Greenwood was not engaged in any lawful exercise of
    his duty when he confined the appellant in Constable McDonnells cruiser.  The
    appellant was unlawfully detained and remained so when Constable Greenwood
    returned from the bar and decided to conduct the second search.  The further
    intrusion upon the appellants privacy by way of the second search of his
    person could not be justified by Constable Greenwood on the grounds that he
    reasonably suspected that his safety was in jeopardy.  If there was any danger
    to Constable Greenwood when he conducted the second search, it flowed directly from
    his unlawful detention of the appellant and not from anything Constable
    Greenwood was doing in the lawful exercise of his duty.  In my view, the police
    cannot, through unlawful conduct, create a circumstance said to justify a
    safety search of an individual.

[55]

I would draw an analogy between searches that are said to be lawful as an
    incident of an arrest and safety searches which are said to be lawful as an incident
    of a lawful investigative detention.  If the arrest is unlawful, the search
    incidental to the arrest is unlawful and contrary to s. 8: see
R. v.
    Stillman
, [
1997] 1 S.C.R.
    607, at para. 27;
R. v. Golden
, 2001 SCC 83, [2001] 3 S.C.R. 679, at
    para. 91;
R. v. Loewen
, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3. 
    Similarly, if an investigative detention is unlawful, a safety search said to
    be justified on the basis of that detention must be unlawful and contrary to s.
    8.  The second search of the appellants person infringed his rights under s. 8
    of the
Charter
.

[56]

Aucoin
is also instructive.  In that case, the officer chose to
    place the accused in the rear of his police cruiser and to conduct a pat down
    search as a prelude to doing so.  Moldaver J. explained that in the
    circumstances, detention in the cruiser was unlawful rendering the pat down
    search preliminary to that detention unlawful and contrary to s. 8.  He explained,
    at para. 44:

Because detaining the appellant in the back of the cruiser
    would have been an unlawful detention  given there were other reasonable means
    by which Constable Burke could have addressed his concern that the appellant
    might flee  it cannot constitute the requisite basis to support a warrantless
    search. Therefore the pat-down search was unreasonable within the meaning of s.
    8. [Citations omitted.]

[57]

In the present case, the detention of the appellant in the back of
    Constable McDonnells cruiser was unlawful and on the reasoning in
Aucoin
cannot provide a basis for the warrantless search of the appellants person.

[58]

At trial, it was not argued that the strip search itself was
    unreasonable and contrary to s. 8.  It was argued that the manner in which the
    strip search was conducted violated s. 8.  The trial judge concluded that the
    manner in which the strip search was conducted unreasonably compromised the
    appellants physical integrity and his personal privacy.  The former occurred
    when Constable Greenwood gratuitously assaulted the appellant during the
    efforts to subdue him.  The latter occurred when the police failed to take
    reasonable steps to minimize the inherently humiliating and degrading impact on
    the appellant of the strip search.   On the authority of
Golden
, at
    paras. 99-103, the manner in which the police strip searched the appellant
    violated his rights under s. 8 of the
Charter
.

The Section 24(2) Analysis

[59]

Section 24(2) directs that where evidence is obtained in a manner that
    infringes a right guaranteed by the
Charter
, the evidence shall be
    excluded if it is established that, having regard to all the circumstances, the
    admission of it in the proceedings would bring the administration of justice
    into disrepute.

[60]

Section 24(2) recognizes that the admission of constitutionally
    tainted evidence and the use
of that
    evidence to convict persons may bring the administration of justice into
    disrepute.  As observed in
Grant
, at paras. 67-71, s. 24(2) is premised on the
    assumption that there must be a long-term negative impact on the administration
    of justice if criminal courts routinely accept and use evidence gathered in
    violation of the legal rights enshrined in the
Charter
.  At the same time, however, s. 24(2) accepts that the
    exclusion of evidence can also bring the administration of justice into
    disrepute.  In
Grant
,
    the Supreme Court provided the framework for differentiating between those cases
    in which the exclusion of the evidence would promote the proper administration
    of justice and those cases in which the proper administration of justice would
    be further harmed by the exclusion of otherwise relevant and probative evidence.

[61]

After
Grant
, at paras. 71-86, the admissibility of evidence under
    s. 24(2) is approached by examining:

·

the seriousness of the
Charter
-infringing state conduct;

·

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

·

societys
    interest in an adjudication on the merits.

[62]

The first two inquiries work in tandem in the sense that both pull
    toward exclusion of the evidence.  The more serious the state-infringing
    conduct and the greater the impact on the
Charter
-protected interests, the stronger the pull for
    exclusion.  The strength of the claim for exclusion under s. 24(2) equals the
    sum of the first two inquiries identified in
Grant
.  The third inquiry, societys interests in
an
    adjudication on the merits, pulls in the opposite direction toward the inclusion
    of evidence.  That pull is particularly strong where the evidence is reliable
    and critical to the Crowns case:  see
R. v. Harrison
, 2009 SCC 34, [2009]
    2 S.C.R. 494, at paras. 33-34.

[63]

In practical terms, the third inquiry becomes important when
    one, but not both, of the first two inquiries pushes strongly toward the exclusion
    of the evidence:  see e.g.
Harrison
, at paras. 35-42;
Spencer
,
    at paras. 75-80;
R. v. Jones
, 2011 ONCA 632, 107 O.R. (3d) 241, at paras.
    75-103;
Aucoin
, at paras. 45-55.  If 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: see e.g.
R.
    v. Côté
, 2011 SCC 46, [2011] 3 S.C.R.
    215, at paras. 81-89;
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. 
    Similarly, if both of the first two inquiries provide weaker support for
    exclusion of the evidence, the third inquiry will almost certainly confirm the
    admissibility of the evidence:  see e.g.
Grant
, at para. 140.

[64]

The three inquiries identified in
Grant
require both fact-finding and the weighing of
    various, often competing
interests.  Appellate review of either
    task on a correctness standard is neither practical, nor beneficial to the overall
    administration of justice.  A trial judges decision to admit or exclude
    evidence under s. 24(2) is entitled to deference on appeal, absent an error in
    principle, palpable and overriding factual error, or an unreasonable determination: 
    see
Grant
, at paras.
86, 127;
Côté
, at para.
    44;
R. v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para.
82;
Jones
,
    at para. 79;
R. v. Ansari
, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para.
    72.

The Trial Judges Errors

[65]

As outlined above, at para. 4, I
    think the trial judge made three
errors in law in his s. 24(2) analysis. 
    Those errors require appellate intervention and a re-appraisal of the
    admissibility of the evidence.

[66]

The trial judges first error appears in the course of his brief
    consideration of the seriousness of the police misconduct.  He observed:

I am encouraged by the text book detention and search conducted
    by the other officers.  Cst Greenwoods infringing conduct was not typical of a
    systemic problem in the Ottawa Police Force.

[67]

The trial judges description of the investigative detentions conducted
    by the other officers is accurate.  Their conduct does not, however, mitigate
    the seriousness of the unconstitutional detention and searches of the appellant,
    much less the denial of the appellants right to counsel.  Systemic or
    institutional abuse of constitutional rights may be an aggravating factor
    rendering police misconduct more serious.  The absence of evidence of systemic
    non-compliance with
Charter
requirements by the police is not a
    mitigating factor.  The police are expected to comply with the law, especially
    the
Charter
.  As observed in
Harrison
, at para. 25:

[W]hile evidence of a systemic problem can properly aggravate
    the seriousness of the breach and weigh in favour of exclusion, the absence of such
    a problem is hardly a mitigating factor.

[68]

Apart altogether from the trial judges improper characterization of the
    absence of institutional failings as a mitigating factor in the s. 24(2)
    analysis, I agree with counsel for the appellant that the evidence shows that
    the failings of the Ottawa Police Service went beyond the actions of Constable
    Greenwood.  When Constable Greenwood finally got the appellant to the police
    station, his superiors did not express any concern about the appellants s.
    10(b) rights or, more specifically, any concern about whether the appellant had
    been given the opportunity to speak to his lawyer before undergoing the
    proposed strip search.  Similarly, whoever was in charge of the strip search,
    and it was not Constable Greenwood, seemed unconcerned about the excessive use
    of force by Constable Greenwood and the failure to minimize the intrusiveness
    and humiliation inherent in that kind of search.

[69]

Constable Greenwoods conduct is properly front and centre in the s.
    24(2) analysis.  He was, however, not alone in his disregard for the
    appellants constitutional rights.

[70]

The trial judges second error is found in his failure to consider the
    impact of the
Charter
breaches on the appellants
Charter
-protected
    interests.  Although the trial judge identified the impact of the breaches on
    the appellants interests as a relevant consideration under s. 24(2), he made
    no further mention of that factor in his reasons.  The trial judge proceeded
    directly from a very brief consideration of the seriousness of the police
    misconduct to a somewhat longer, but still brief, consideration of the
    seriousness of the drug crimes with which the appellant was charged.  At no
    point did he address the impact of the breaches on the appellants liberty,
    privacy, or security of the person.

[71]

A trial judges failure to expressly refer to an applicable
    legal principle, or a factor relevant to a decision, does not necessarily mean
    that the judge did not consider that principle or factor.  In this case, however,
    I am satisfied that the trial judges failure to refer to the impact of the
    breaches on the appellants
Charter
-protected
    rights does demonstrate a failure to consider that impact
.  The
    trial judge never identified the
Charter
-protected interests affected by the multiple
Charter
breaches.  He made no assessment of the extent to
    which those interests were compromised by the specific breaches.  In my view, the
    trial judge failed entirely to consider the impact of the breaches on the
    appellant in assessing whether the admission of the evidence would bring the
    administration of justice into disrepute.

[72]

The third error made by
    the trial judge in his s. 24(2) analysis arises from his treatment of the
    seriousness of the drug charges as a factor strongly favouring the
    admissibility of the evidence.  The trial judges description of the
    seriousness of the drug charges dominated his brief s. 24(2) analysis.  I think
    it is fair to say that it was his assessment of the seriousness of the charges,
    and nothing else, that led the trial judge to admit the evidence, despite his
    finding of significant police misconduct.

[73]

The seriousness of the
    charges to which the challenged evidence is relevant, does not speak for or against
    exclusion of the evidence, but rather can cut both ways:
Grant
, at para. 84.  On the one hand, if the evidence at
    stake is reliable and important to the Crowns case, the seriousness of the
    charge can be said to enhance societys interests in an adjudication on the
    merits.  On the other hand, societys concerns that police misconduct not
    appear to be condoned by the courts, and that individual rights be taken
    seriously, come to the forefront when the consequences to those whose rights
    have been infringed are particularly serious:  see
Grant
, at para. 84;
R. v. Dhillon
, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 60.

[74]

The trial judge allowed
    his view of the seriousness of the drug charges to effectively overwhelm the
    other factors relevant to the s. 24(2) inquiry.  As observed in
Harrison
, at para. 40,
Charter
protections apply to everyone, including persons
    charged with serious criminal offences.  I adopt the observation of Frankel
    J.A. in
Ahmed-Kadir
,
    at para. 111:

The importance of maintaining respect for
Charter
rights and ensuring that the justice system remains
    above reproach outweighs the collective cost of his acquittal.
To admit the handgun in the face of the breaches that occurred
    here would send the message that when the charges are serious, individual rights
    count for little.
[Emphasis added.]

Should the Evidence have been Excluded?

[75]

I have no doubt that on a proper s. 24(2) analysis the evidence of the
    drugs seized from the appellant must be excluded.  The seriousness of the police
    misconduct and the strong negative impact of the breaches on the appellants
Charter
-protected
    interests combine to make out an overwhelming case for exclusion.  While
    society no doubt has a significant interest in a trial on the merits and the
    evidence in issue is both reliable and crucial, societys immediate interest in
    an adjudication of the merits of this particular case must yield to the more
    important long-term interests served by excluding the evidence in this case.

[76]

The police misconduct falls at the very serious end of the continuum
    described in
Grant
, at para. 74.  Constable Greenwood and, to a lesser
    extent, other officers, totally disregarded the appellants rights under ss. 8,
    9 and 10(b) of the
Charter
.  Constable Greenwood seemed wholly unaware
    of, or worse yet, wholly unconcerned with, the limits of his powers to detain
    and search individuals.  He was equally oblivious to his obligations under s.
    10(b).  Constable Greenwoods conduct during the search at the police station goes
    beyond a wilful disregard of the appellants rights.  On the trial judges
    findings, he deliberately restrained the appellant in a manner intended to
    gratuitously inflict pain on the appellant.

[77]

I can find little, if anything, that might be said to mitigate the
    police misconduct.  This was not a situation in which the police conduct
    slipped barely over the constitutional line, or in which legal uncertainty could
    reasonably be said to have blurred that line.  Finally, there is nothing by way
    of extenuating circumstances that might offer some excuse for the police
    disregard of the appellants constitutional rights.

[78]

Courts, as representatives of the community, cannot be seen to condone the
    blatant disregard of the appellants rights that occurred in this case.  The only
    way the court can effectively distance itself from that conduct is by excluding
    the evidentiary fruits of that conduct.

[79]

The serious negative impact of the
Charter
breaches
    on the appellants
Charter
-protected
    interests also compels exclusion.  None of the
Charter
breaches could be characterized as technical or
    minor.  The appellants arbitrary detention effectively negated his personal liberty. 
    Not only was he in imprisoned, but he was imprisoned in a manner that left him
    vulnerable to further police misconduct.  The police took advantage of the
    appellants arbitrary detention to unlawfully search the appellant.  That
    conduct led directly to the discovery of incriminating evidence.  The strong
    causal connection between the denial of the appellants liberty, the unconstitutional
    search of his person, and the subsequent obtaining of the incriminating evidence
    speaks to the profound impact of the breaches on the appellants
Charter
-protected interests.

[80]

The appellants interests
    protected by s. 10(b) of the
Charter
were completely compromised by the police conduct. 
    Detained persons are constitutionally entitled to know of their right to that
    advice, and to a reasonable opportunity to access that advice.  Access to legal
    advice while detained is fundamental to individual liberty and personal
    autonomy in a society governed under the rule of law.

[81]

The appellant was not
    made aware of his right to speak to counsel until after Constable Greenwood had
    searched him and found drugs.  Even then, the appellant was not given an opportunity
    to exercise his right to counsel, despite expressing his desire to do so. 
    Instead, he was subjected to a second unconstitutional search which discovered
    yet further evidence.  Had the appellant been afforded an opportunity to speak
    to counsel before the strip search, it may well be that the strip search would
    have been unnecessary.

[82]

The significant negative
    impact of the unconstitutional strip search on the appellants privacy rights
    is obvious.  The police misconduct was highly intrusive and struck at the core
    of even the most restrictive notion of personal privacy.

[83]

In summary, the police
    conduct demonstrates a blatant disregard for the appellants constitutional
    rights.  That conduct all but negated several of the appellants
Charter
-protected interests.  The court can only adequately
    disassociate the justice system from the police misconduct and reinforce the
    communitys commitment to individual rights protected by the
Charter
by excluding the evidence.  In doing so, the court acquits
    a person who is clearly guilty of serious criminal offences.  In my view, the
    long-term interests of the due administration of justice require the exclusion
    of the evidence.  This unpalatable result is a direct product of the manner in
    which the police chose to conduct themselves.

The Appropriate Order

[84]

The exclusion of the
    drugs means that the appellant must be acquitted on the two counts of
    possession of cocaine for the purpose of trafficking (counts 1 and 2).  There
    is an argument that one of the breach of recognizance charges (being in an
    establishment that served alcohol contrary to the appellants bail conditions)
    does not depend on evidence gathered after the various
Charter
violations.  I do not propose to make that
    distinction.  Had Constable Greenwood complied with the
Charter
, the appellant would have been on his way after a
    brief detention.  He would never have been identified to the police and none of
    the charges would have been laid.

[85]

I would enter acquittals on all
    counts.

Released: DD  MAY 13 2016

Doherty J.A.

I agree Janet Simmons J.A.

I agree K. van Rensburg J.A.





[1]
In his reasons, the trial judge inadvertently notes this time as 3:36 a.m. (see
    paras. 34, 45).  It is clear from cell block surveillance footage that the
    appellant is not given an opportunity to consult counsel until 3:54 a.m.  The
    accuracy of the time recorded on the cell block surveillance footage is not in
    dispute.



[2]
Constable Greenwood handcuffed the appellant when he detained him on the
    street.  Counsel did not argue that the handcuffing of the appellant rendered
    his initial detention arbitrary under s. 9 of the
Charter
.  These
    reasons do not address that issue:  see
R. v. Ahmed-Kadir
, 2015 BCCA
    346, 327 C.C.C. (3d) 33.


