



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Santana, 2020 ONCA 365

DATE: 20200611

DOCKET: C65685

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abel Solano Santana

Appellant

Michael A. Moon and Nadia Klein, for
    the appellant

Jeannine Plamondon, for the respondent

Heard: In writing

On appeal from the conviction entered by
    Justice W.D. Newton of the Superior Court of Justice, dated January 10, 2018
    and an appeal from the sentence imposed on May 31, 2018.

Doherty J.A.:


I



Overview

[1]

The appellant was convicted, after a trial in
    Superior Court by a judge alone, of possession of Fentanyl for the purposes of
    trafficking. The trial judge imposed a sentence of eight years, which upon
    reduction of a credit for presentence custody, resulted in a net sentence of 4
    years, 320 days.

[2]

The appellant appeals conviction and sentence.

[3]

At trial, the appellant alleged various
Charter
violations and argued virtually all of the evidence produced by the Crown
    should be excluded under s. 24(2) of the
Charter
. The trial judge
    found there were no
Charter
violations and, in any event, he would not
    have excluded the evidence. The defence offered no evidence and no argument on
    the merits. The trial judge convicted the appellant on one charge of
    trafficking in Fentanyl. The other charges against the appellant and all of the
    charges against his co-accused were stayed at the request of the Crown.

[4]

On appeal, the appellant focuses on a single
    alleged
Charter
violation. He submits the warrantless search of the
    vehicle in which the appellant was a passenger when arrested, the seizure of
    his jacket found in the vehicle, and the search of the jacket, constituted an
    unreasonable search and seizure under s. 8 of the
Charter
.  He further
    submits, if this argument is accepted, the court should not make its own s.
    24(2) analysis, but should direct a new trial.

[5]

The Crown makes two submissions in response.
    First, the Crown argues there was no s. 8 violation. Second, the Crown submits,
    if there was a s. 8 violation, this court should perform its own s. 24(2)
    analysis. The Crown contends all of the factors relevant to that analysis
    favour admission of all of the evidence. The Crown submits the appeal should be
    dismissed.

[6]

For the reasons that follow, I would allow the
    appeal and direct a new trial.


II



the evidence

[7]

The appellant was under investigation by a
    police task force headed by the OPP. The task force was investigating large
    scale drug trafficking in northeast Ontario. Officers assigned to the task
    force learned the appellant was in Thunder Bay. He was required to remain in
    Ottawa under the terms of his bail. The officers commenced surveillance. They
    saw the appellant with a woman in a Jeep Cherokee. The vehicle made several
    brief stops.

[8]

The officers conducting the surveillance contacted
    the local Thunder Bay police and provided a description of the appellant and
    the vehicle. They asked the Thunder Bay police to stop the vehicle. The
    officers indicated the appellant was wanted on two outstanding warrants, one a province-wide
    warrant, and was in breach of the terms of his bail order. The officers also
    advised the Thunder Bay police the taillights of the appellants vehicle were
    not operating.

[9]

Thunder Bay police officers, Milionis and Bliss,
    were on patrol. They saw the Jeep Cherokee. A woman was driving and a person
    they believed to be the appellant was sitting in the front passenger seat. The
    officers confirmed through CPIC, the existence of the outstanding warrants.
    They also noted the rear lights were not functioning. They decided to stop the
    vehicle for the taillight infraction and arrest the appellant on the province-wide
    warrant.

[10]

The officers stopped the vehicle. Officer Milionis
    spoke with the driver. He told her the rear lights were off and asked her to
    produce the relevant
Highway Traffic Act
documents.

[11]

Officer Bliss stood by the passenger door. After
    the appellant falsely identified himself as Dave, Officer Milionis told Officer
    Bliss to arrest the appellant on the province-wide warrant.

[12]

Officer Bliss removed the appellant from the
    vehicle and handcuffed him. He told the appellant he was under arrest on the
    outstanding warrant and advised him of his right to counsel. Officer Bliss conducted
    a pat down search and located the appellants wallet. The wallet contained the
    appellants identification. Officer Bliss took the appellant to a second
    Thunder Bay police cruiser that had arrived on the scene and placed him in the
    back seat.

[13]

Officer Bliss testified his arrest of the
    appellant had nothing to do with any suspected drug activity by the appellant.
    He agreed he had no reason connected to suspected drug trafficking to either
    stop the Jeep Cherokee, or arrest the appellant.

[14]

While Officer Bliss was occupied with the arrest
    of the appellant, Officer Milionis continued to speak with the driver. She was becoming
    quite upset. Apart from addressing the potential
Highway Traffic Act
violation, Officer Milionis had no reason to detain the driver or the vehicle.
At this stage of the interaction between
    the Thunder Bay police and the occupants of the vehicle, there was no
    suggestion the driver would not be free to go with the vehicle once the
Highway Traffic Act
matter had been adequately addressed by Officer Milionis.

[15]

After Officer Bliss had placed the appellant in
    the back of the police cruiser, he returned to the Jeep Cherokee to get the
    rest of his [appellants] belongings from the vehicle. According to Officer
    Bliss, he took it upon himself to look for and gather the appellants
    belongings from the Jeep Cherokee because he anticipated the appellant would be
    held in custody overnight. It is implicit in Officer Blisss testimony he chose
    to gather the appellants belongings from the Jeep Cherokee, anticipating the
    woman would drive the vehicle away after the
Highway and Traffic Act
matter was adequately addressed. The police had no grounds to hold the driver
    or the vehicle. Officer Bliss did not ask the appellant if he wanted the police
    to gather his belongings from the Jeep Cherokee and take them back to the
    station.

[16]

In cross-examination, Officer Bliss gave an
    additional reason for the search of the vehicle which led to the discovery of
    the jacket. He testified that he understood he was entitled to search the
    immediate area around where the appellant had been sitting in the Jeep Cherokee
    at the time of his arrest for officer safety. He understood his right to
    search that part of the vehicle continued, even though by the time he conducted
    the search, the appellant had been removed from the vehicle, handcuffed and
    placed in the back of the cruiser with the intention of driving the appellant
    to the police station.

[17]

Officer Bliss testified when he looked into the passenger
    side of the Jeep Cherokee, he saw a jacket lying on the back floor between the
    two front seats. He assumed the jacket belonged to the appellant because it was
    a cold night, and the driver had her jacket on.

[18]

Officer Bliss removed the jacket from the Jeep
    Cherokee, intending to put the jacket into the police cruiser to take it back
    to the station with the appellant. Before putting the jacket in the cruiser, he
    searched the pockets, checking for weapons or other objects relevant to police
    safety.

[19]

The officer found a Ziplock bag containing 495
    pills, which appeared to be Percocet. They were later identified as Fentanyl. The
    appellant and the driver were arrested on a charge of trafficking in narcotics
    and advised of their right to counsel.

[20]

Officers Bliss and Milionis conducted a further
    search of the vehicle as an incident to the arrest on the charge of trafficking
    in narcotics. They also searched the driver. The police found two cellphones,
    one in the vehicle, and one in the drivers purse. A subsequent review of the
    text messages visible on one of the cellphones revealed communications consistent
    with language used in drug trafficking.

[21]

Officers with the task force later obtained a
    warrant to search the hotel room where the appellant and the driver had been
    staying. The affidavit sworn in support of the search warrant summarized the
    evidence accumulated in the course of the drug investigation. The discovery of
    the pills in the jacket seized from the Jeep Cherokee played a central role in
    the grounds relied on to obtain the warrant. The warrant issued and the subsequent
    search of the hotel room produced thousands of Fentanyl pills.


III



Was the seizure and search of the jacket lawful?

[22]

Officer Blisss decision to look inside of the vehicle
    for things belonging to the appellant and his decision to take possession of
    the jacket, both decisions made without the consent of the appellant or the
    driver, constituted a search and seizure for the purposes of s. 8 of the
Charter
:
    see
R. v. Reeves
, 2018 SCC 56. I do not understand the Crown to suggest
    otherwise. The subsequent search of the pockets of the jacket was also a search
    for s. 8 purposes.

[23]

The search of the vehicle, the seizure of the
    jacket, and the subsequent search of the jacket were not authorized by a warrant.
    The onus fell on the Crown to demonstrate the searches and seizure were
    nonetheless reasonable within the meaning of s. 8 of the
Charter
: see
R.
v.
Caslake
, [1998] 1 S.C.R. 51, at para. 11;
R. v. Valentine
,
    2014 ONCA 147, at para. 43;
R. v. Aviles
, 2017 ONCA 629, at paras. 13-15.
    In this case, the Crown argues the warrantless search and seizure were lawful
    as incidental to the appellants lawful arrest on the outstanding warrant. A warrantless
    search and seizure will be lawful if truly incidental to the arrest, and conducted
    in a reasonable manner:
R. v. Fearon
, [2014] 3 S.C.R. 621, at para.
    20.

[24]

The trial judge accepted that the visual
    examination of the interior of the Jeep, the seizure of the jacket from the
    vehicle, and the search of the jacket before it was placed in the police
    cruiser were all justified as a search and seizure incident to the appellants
    arrest on the outstanding warrant: see
R. v. Solano-Santana
, 2018 ONSC
    2609, at paras. 52-56. He focused primarily on the search of the pockets of the
    jacket. He said, at para. 56:

As the applicant was taken into custody on an
    April night in Thunder Bay, it is understandable that the police did not opt to
    leave his jacket behind. I find that Constable Bliss subjectively had valid
    purposes in mind when he searched the jacket. Furthermore, those purposes were
    objectively reasonable. A jacket could contain a weapon, or potential evidence
    related to the charges, and thus it was objectively reasonable to search the
    jacket for the purposes of officer safety and the discovery of evidence.

[25]

A search is properly characterized as an
    incident to arrest only if the search is conducted for a valid purpose
    connected to the arrest:
R. v. Nolet
, [2010] 1 S.C.R. 851, at paras.
    51-52;
R. v. Balendra
, 2019 ONCA 68, at paras. 44-47. In
R. v.
    Caslake
, at para. 25, Lamer C.J.C. said:

If the law on which the Crown is relying for
    authorization is the common law doctrine of search incident to arrest, then the
    limits of this doctrine must be respected. The most important of these limits is
    that the search must be truly incidental to the arrest. This means that the
    police must be able to explain, within the purposes articulated in
Cloutier
,
supra
, (protecting the police, protecting the evidence, discovering
    evidence) or by reference to some other valid purpose, why they searched. They
    do not need reasonable and probable grounds. However, they must have some
    reason related to the arrest for conducting the search at the time the search
    was carried out, and that reason must be objectively reasonable.

[26]

As
Caslake
,
and the many cases that have applied
Caslake
instruct, a court, in deciding whether a particular search was a lawful
    incident to an arrest, must determine:

·

the purpose for which the officer conducted the
    search;

·

whether that purpose was a valid law enforcement
    purpose connected to the arrest; and

·

whether the purpose identified for the search
    was objectively reasonable in the circumstances.

[27]

In applying those criteria to this case, I
    distinguish between Officer Blisss examination of the inside of the vehicle in
    search of the appellants belongings, and his removal of the appellants jacket
    from the vehicle on one hand, and his subsequent search of the pockets of the
    seized jacket on the other hand. I think the appellants constitutional argument
    stands or falls on the lawfulness of Officer Blisss examination of the contents
    of the vehicle and his seizure of the jacket. If those acts were lawfully
    incidental to the appellants arrest, I would have no difficulty in holding a
    search of the pockets of the jacket before it was placed in the police cruiser
    was justified for police safety purposes as a lawful incident of the appellants
    arrest. If, however, the visual inspection of the inside of the Jeep and the
    seizure of the jacket were not incidental to the arrest, and were therefore unreasonable
    within the meaning of s. 8, it cannot assist the Crown that the police had
    legitimate safety concerns associated with the possession and control of the
    unlawfully seized jacket. If the visual search of the interior of the vehicle
    and the seizure of the jacket from the vehicle were not incidental to the
    appellants arrest, the subsequent search of the pockets of the jacket could
    not be incidental to that arrest.

[28]

The scope of the power to search as an incident
    to an arrest is fact-specific:
R. v. Fearon
, at para. 13. Valid police
    purposes associated with searches incidental to arrest include police safety,
    public safety, securing evidence, and discovering evidence. Two points should
    be stressed. First, the purpose relied on to justify the search at trial must have
    been the actual reason the police conducted the search. After-the-fact justifications
    that did not actually cause the police to conduct the search or seizure will
    not do. Second, the police purpose must be related to the specific reason for
    the arrest. Here, the appellant was arrested because there was a province-wide
    warrant for his arrest for driving while under suspension. Any search said to
    be justified as a search for evidence had to be evidence in respect of his
    arrest on the outstanding warrant, and not evidence connecting him to other
    possible offences such as drug trafficking: see
Caslake
, at paras.
    22-25.

[29]

Although the trial judge made some reference to
    the discovery of evidence as a justification for Officer Blisss actions,
    Officer Bliss never suggested he was searching for evidence that would confirm
    either the existence of the outstanding warrant, or the identification of the
    appellant as the person named in the warrant. In the circumstances of this
    case, evidence gathering provided no justification for the visual search of the
    vehicle, the seizure of the jacket, or the search of the jacket.

[30]

The reasonableness, and hence the lawfulness, of
    Officer Blisss actions turns on whether he had any authority to visually inspect
    the inside of the vehicle for property belonging to the appellant and, if he
    located any property, to seize that property and take it to the police station.
    Counsel did not refer to any statutory authority for Officer Blisss actions. I
    am not aware of any.

[31]

I see no connection between legitimate law
    enforcement interests engaged upon the appellants arrest and Officer Blisss
    search for, and seizure of, property from the Jeep, which Officer Bliss
    believed belonged to the appellant. Officer Bliss was not looking for evidence
    relating to the reason for the arrest. He had no reason to believe any officer
    or member of the public was in danger from anything in the vehicle. Clearly,
    the appellant posed no danger as he was in handcuffs in the back of the police
    cruiser. Officer Bliss wrongly believed he was entitled to seize the
    appellants property because the appellant was under arrest and was being taken
    back to the police station. By unlawfully searching the vehicle and taking
    possession of the jacket, Officer Bliss created a justification for the search
    of the pockets of the jacket before it was placed in the police cruiser.

[32]

There are circumstances when the police arrest a
    person in a vehicle in which the police are authorized, indeed required, to
    take control of, and responsibility for the vehicle and its contents. In those
    circumstances, the police are also sometimes authorized to itemize and secure the
    contents of the vehicle: e.g. see
R. v. Russell
, 2018 BCCA 330;
R.
    v. Cuff
, 2018 ONCA 276. Those circumstances did not exist here.

[33]

The Thunder Bay police had no intention of
    taking control of the vehicle when Officer Bliss went looking for the
    appellants belongings and seized the jacket. To the knowledge of Officer Bliss
    and Officer Milionis, the woman driving the vehicle would be on her way,
    wherever she was going, once the
Highway Traffic Act
matter had been
    addressed. The police had no authority to prevent the driver from leaving with
    the vehicle after the
Highway Traffic Act
matter was completed.
    Equally, the police had no power to itemize the contents of the Jeep or, more
    specifically, to look for, and take possession of, the appellants personal
    property in the Jeep. If Officer Bliss was concerned about the appellant losing
    track of his property, or being cold while in custody, Officer Bliss could have
    offered to collect the appellants belongings from the Jeep for him.

[34]

At trial, and again on appeal, the Crown relies
    on two cases from this court,
R. v. Aviles
, [2017] O.J. No. 3968 and
R.
    v. Valentine
, 2014 ONCA 147. Both cases are factually different from the
    present case, and make the point that the scope of the power to search
    incidental to arrest is necessarily fact-specific.

[35]

In
Aviles
, the accused was arrested for
    an assault which had occurred shortly before the arrest. As he was being arrested,
    a shoulder bag fell from the accuseds shoulder on to the ground. After the police
    had secured the accused, a police officer picked the bag up and searched it
    quickly for a weapon before taking the bag into custody. The bag was searched
    more thoroughly, subsequently. Narcotics and a knife were found in the bag.

[36]

On appeal, the court focused on the lawfulness
    of the initial search. The accused argued there was no objectively reasonable
    basis to search the bag for officer safety purposes. The trial judge found, in
    all the circumstances, there were legitimate officer safety concerns.

[37]

Aviles
involved
    the application of well-settled legal principles to a specific set of facts.
    The argument in this court focused on the reasonableness of the trial judges
    finding the police had grounds to search the bag for officer safety reasons.
    The authority of the police, as an incident of an arrest, to take possession of
    a bag dropped on the ground by an accused during his arrest is beyond question.
    The authority to look into the bag for officer safety purposes, or some other
    legitimate arrest-related purpose, depends on the facts. In
Aviles
,
    the trial judge found there was a basis for officer safety concerns. This court
    held the trial judges finding was not unreasonable.

[38]

R. v. Valentine
is relied on by the Crown to support the contention that a police officer may
    search an area of a vehicle in which an arrested person was sitting, for
    officer safety reasons, even after the person has been arrested, handcuffed and
    placed in police custody. Before considering
Valentine
, I observe the
    trial judge, to the extent he considered police safety concerns, focused on
    those concerns as a justification for the search of the pockets of the jacket
    before it was placed into the police cruiser. I do not read the trial judge as
    finding the visual search of the interior of the vehicle and the seizure of the
    jacket from the vehicle were justified on police safety grounds:
R. v.
    Solano-Santana
, at paras. 55-56. It is unclear from Officer Blisss
    evidence whether he relied on officer safety concerns when examining the interior
    of the vehicle and seizing the jacket. If he did, those concerns were not objectively
    justifiable in the circumstances and could not provide a legitimate purpose for
    either the visual search of the inside of the vehicle, or the seizure of the
    jacket.

[39]

Returning to
Valentine
, a  police
    officer stopped a vehicle for a traffic infraction. A CPIC search indicated a
    potential breach of an outstanding bail order. The officer took the accused from
    his vehicle to the police cruiser and arrested him on that charge.

[40]

The arresting officer testified he was trying to
    decide whether to release the driver at the scene on some form of promise to
    appear, or take him back to the police station. If the officer chose to release
    the arrested person, he would be free to return to his automobile. The officer
    had concerns, for reasons which need not be detailed here, about his safety if
    the appellant was allowed to return to his vehicle. The officer decided to
    perform a brief safety search of the vicinity around the drivers seat in the
    vehicle. He discovered drugs.

[41]

In upholding the trial judges ruling the
    officers search was a lawful incident of arrest, this court said, at para. 47:

The route leading to the trial judges
    conclusion that the search was for a valid objective of officer safety was as
    follows. The trial judge accepted Constable Dowlings testimony that he was
    concerned about releasing the appellant  The trial judge then held that the
    prospect of allowing the appellant back into his car gave rise to a concern
    over officer safety based on the possibility there may be weapons in the car
    proximate to the drivers seat. The concern was valid in the light of the
    appellants criminal antecedents and the disturbing behaviour he had exhibited
    in the course of the stop.

On this record, I see no reason to interfere
    with the trial judges finding that the search of the front of the car was
    reasonable based on a valid objective  officer safety.

[42]

In this case, unlike
Valentine
, there was no possibility the appellant would be
    released and allowed to return to his vehicle. He was in the police cruiser and
    was going to be taken to the police station and held in custody.
Valentine
does not assist the Crown.

[43]

For the reasons set out above, Officer Bliss did
    not act lawfully when he visually examined the interior of the Jeep, seized the
    jacket, and searched the jacket. His actions constituted an unreasonable search
    and seizure in violation of s. 8 of the
Charter
.


IV



section 24(2) of the
charter

[44]

When this court finds a
Charter
violation not found at trial, this court will, if the trial record permits a
    full and fair assessment, engage in its own s. 24(2) analysis: e.g. see
R.
    v. Balendra
, at para. 62. The appellant submits the assessment cannot be
    done on this record. The Crown says it can be.

[45]

The trial judge addressed s. 24(2), even though
    he found no
Charter
breach. His consideration of s. 24(2) is, however,
    brief, no doubt because it was hypothetical. The trial judge does not make
    findings of fact that would assist this court in a s. 24(2) analysis. His
    description of the
Charter
-
infringing
    conduct as not very serious and the impact of any
Charter
violations
    on the appellants rights as minimal are not helpful. The trial judge does
    not identify the breaches he is assuming for the purpose of his
    characterization of those breaches:
R. v. Solano-Santana
, at paras.
    75-76. The trial judges reasons do not assist this court in considering the
    application of s. 24(2).

[46]

The Crown, in submitting this court can do the
    necessary s. 24(2) analysis, focuses exclusively on the s. 8 breach, which
    occurred in respect of the visual search of the car, the seizure of the jacket,
    and the search of the jacket. Were the s. 24(2) focus that narrow, the Crown
    would have a good argument for this court making the s. 24(2) analysis.
    However, the impact of a
Charter
breach on the administration of
    justice, for the purposes of s. 24(2), must look to the overall conduct of the
    police investigation and the impact of any
Charter
breach on the
    investigation as a whole: see
R. v. Gonzales
, 2017 ONCA 543, at paras.
    163-66.

[47]

In this case, the breach of the appellants s. 8
    rights led directly to the discovery of the pills in the jacket pocket. That discovery
    led immediately to the arrest of the appellant and the driver on drug
    trafficking charges. Without the pills, that arrest would not have occurred.
    The arrest, in turn, led to further searches which yielded cellphones that
    ultimately led to evidence consistent with drug trafficking. Without the illegal
    seizure of the pills, there would have been no arrest on drug trafficking
    charges, and no search of the cellphones. Lastly, the discovery of the pills in
    the jacket played a prominent role in the police obtaining a search warrant for
    the appellants hotel room. That search yielded thousands of pills.

[48]

It is arguable all of the evidence seized from
    the Jeep Cherokee was tainted by the s. 8 violation and obtained in a manner
    that infringed the appellants s. 8 rights. On this view, the privacy
    infringement went well beyond the seizure of a jacket from the back of the
    vehicle: see
R. v. Whittwer
, [2008] 1 S.C.R. 235, at para. 21;
R.
    v. Kokesch
, [1990] 3 S.C.R. 3.

[49]

It is also arguable, if the information that the
    police discovered pills in the appellants jacket were to be removed from the
    affidavit relied on to obtain the search warrant, the remaining information
    would not justify the issuance of the warrant. The warrant would fall,
    rendering the search of the hotel room warrantless and unconstitutional: e.g.
    see
R. v. Evans
, [1996] 1 S.C.R. 8, at para. 19. An unlawful search of
    the appellants hotel room raises significantly different privacy concerns than
    does the visual search of the vehicle and the seizure of a jacket from the
    vehicle.

[50]

There was some argument at trial about the
    effect of the unconstitutional seizure of the appellants jacket and the pills
    in that jacket on the constitutionality of subsequent police conduct. The trial
    judge did not address those submissions in his reasons. The arguments advanced
    on appeal also did not address the impact of the s. 8 breach on the
    constitutionality of other aspects of the police investigation.

[51]

The determination of whether the evidence seized
    from the Jeep, the jacket, and the hotel room, should be excluded under s.
    24(2) cannot be done on appeal. On this record, the court cannot, with any
    confidence, make the findings necessary to put sufficient meat on the
    evidentiary bones so as to properly perform a s. 24(2) analysis. I cannot say what
    part, if any, of the evidence should be excluded under s. 24(2) as a consequence
    of the s. 8 breach I have identified. There must be a new trial.

Released:

DD
JUN 11 2020

Doherty J.A.

I agree David Watt J.A.

I agree B.W. Miller J.A.


