



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bruyere, 2012
    ONCA 329

DATE:  20120517

DOCKET: C49833

Doherty, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicolaas Bruyere

Appellant

Jonathan Dawe, for the appellant

Lucas Price, for the respondent

Heard and released orally:  May 10, 2012

On appeal from the conviction entered on June 25, 2008
    and the sentence imposed on November 21, 2008 by Justice J.F. McCartney of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The trial judge found that the appellant was arbitrarily detained at the
    roadside and that the search of his vehicle which led to the discovery of the
    cocaine was unreasonable.  The trial judge, however, declined to exclude the
    evidence under s. 24(2).  The appellant was convicted of three drug related
    offences.  He appeals.

[2]

The appellant argues that while the trial judge correctly found that his
    constitutional rights were violated, he erred in not excluding the evidence. 
    The appellant also makes a separate argument in respect of one of the
    convictions.  We see no merit to that ground and do not propose to address it.

[3]

In response, the Crown argues that the trial judge erred in holding that
    the appellants rights were violated, but that in any event, he correctly
    refused to exclude the evidence.


I



the alleged
Charter
breaches

[4]

The trial judge found that Officer Cowles did not have sufficient
    grounds to justify the investigative detention of the appellant and his
    passenger at the roadside.  Cowles had followed a vehicle that was driven by
    the appellant from a hotel.  There were two persons in the vehicle.  Cowles
    could not identify either man.  He instructed another officer to pull the
    appellants vehicle over as it headed toward Fort Frances on the TransCanada
    Highway.  Cowles suspected that one of the occupants in the vehicle was a man named
    Hyatt.  Cowles had received information from Sergeant Hill to the effect that
    Hyatt had just completed a drug transaction at the hotel and was couriering the
    drugs back to Fort Frances.  The appellant had not been identified as having
    any involvement in this transaction.

[5]

The evidence on the
voir dire
into the constitutionality of the
    stop came primarily from Officer Cowles and Detective Hill.  Their evidence
    conflicted on several points and was unclear on others.

[6]

The trial judge ultimately approached the constitutionality of the
    search as depending on whether Cowles had reasonable grounds to suspect that
    Hyatt was in the vehicle when he ordered it stopped.  The trial judge referred
    to the parts of Cowles evidence which could support the existence of that
    suspicion.  He ultimately concluded, however, that Cowles evidence, considered
    in its totality, did not provide a basis for a reasonable suspicion.  The trial
    judge described Cowles as not having anything more than a hunch.

[7]

The trial judge did not misapprehend the evidence and on this record we
    see no basis upon which we can reverse the trial judges finding of fact.

[8]

The Crown argued that Sergeant Hill, the officer in charge of the investigation,
    who was not actually at the scene of the detention, but who was providing
    information to Cowles, did have sufficient grounds to justify the detention of
    the appellant.  Crown counsel argues that Hills reasonable suspicion rendered
    the detention constitutional under s. 9, even if Cowles did not have reasonable
    grounds to suspect that Hyatt was in the car.

[9]

We need not decide whether Hills beliefs and the grounds for those
    beliefs were relevant to the constitutionality of the detention of the appellant
    at the roadside.  Assuming that his belief and the grounds for that belief were
    relevant, on the evidence, Hill was in no better position than Cowles to come
    to any conclusion as to whether Hyatt was in the vehicle.  Ultimately, the reasonableness
    of the detention and the constitutionality of the stop turned on whether there
    were reasonable grounds to suspect that Hyatt was in the vehicle.

[10]

Consequently,
    whether one looks at Cowles grounds for detaining the vehicle, Hills grounds
    for detaining the vehicle, or combines the two, the result is the same.  The
    stop was arbitrary in that there were no reasonable grounds to suspect that
    Hyatt was in the vehicle before the officers stopped the vehicle.  The evidence
    discovered in the search of the vehicle which followed immediately after the
    identification and arrest of Hyatt constituted evidence obtained in a manner
    that infringed the appellants rights under s. 9 of the
Charter
.


II



the admissibility of the evidence under section 24(2)

[11]

The trial judge applied the
Collins
test to the admissibility
    of the evidence having found a breach of the
Charter
:

R. v. Collins
,
[1987] 1 S.C.R. 265.  We are invited to
    re-examine the admissibility of the evidence under s. 24(2) using the formula
    set out in
R. v. Grant
, [2009] S.C.J. No. 32.

[12]

In
    assessing the admissibility under the approach outlined in
Grant
, we
    are instructed to defer to the trial judges findings of fact:  see
R. v.
    Beaulieu
, [2010] S.C.J. No. 7.  Deference does not, however, mean that the
    findings of fact are unreviewable.

[13]

Counsel
    for the appellant argues that the finding of exigent circumstances made by the
    trial judge is unsupportable on the law of exigent circumstances as most
    recently described in
R. v. Kelsy
,
2011 ONCA 605.  We agree with this submission.  The police had no safety
    concerns and they had no reasonable grounds upon which to believe that there
    were drugs in the car before they stopped the car and identified Hyatt as one
    of the occupants.

[14]

The
    trial judges finding of exigent circumstances was an important consideration
    in his ultimate determination that the evidence discovered as a result of the
    unlawful detention was admissible.  That finding must be set aside.

[15]

Counsel
    for the appellant also challenges a second finding of fact made by the trial
    judge in his s. 24(2) analysis.  The trial judge found that although Cowles did
    not have reasonable grounds to detain the appellant, Sergeant Hill, who was
    effectively in charge of the investigation, likely had enough information to
    detain the vehicle in question on an investigative detention basis.  As
    indicated above, we see no basis upon which to conclude that Detective Hill had
    better grounds to stop the vehicle than did Officer Cowles.  The trial judge
    used his finding of Sergeant Hills grounds to detain the vehicle to mitigate
    the unconstitutional stop.  That finding, with respect, is unsupported by the
    evidence and should not have figured in the s. 24(2) analysis.

[16]

This
    court will not defer to the trial judges analysis given the two errors
    described above.  The question becomes  what should this court do?

[17]

The
    court can either redo the s. 24(2) analysis using
Grant
and relying on
    the trial judges findings save those that are not supported by the evidence,
    or the court, having found error, can remit the matter for a new trial.  In
    many ways, the former is the preferable approach.  However, we are satisfied
    that on this record that approach is not available.

[18]

On
    the trial judges approach, which turned exclusively on Officer Cowles beliefs,
    he did not have to address and resolve much of the conflicting evidence given
    by Officer Cowles and Sergeant Hill.  This court does not have the benefit of
    any findings of fact in respect of that evidence.  On the state of this record,
    we do not think the appellate forum is the appropriate one in which to make
    those findings. We are satisfied that the admissibility of the evidence must be
    determined in a trial forum in which the conflicting evidence can be properly
    assessed.

[19]

The
    appeal is allowed, the convictions are quashed and a new trial is ordered on
    all counts.

Doherty
    J.A.

Janet
    Simmons J.A.

H.S.
    LaForme J.A.


