R. v. Mauro Date:, 2013 BCPC 348

Citation: R. v. Mauro Date: 20131223 2013 BCPC 0348 File No: 90759-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER GAETANO MAURO RULING ON VOIR DIRE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: A. Ip Counsel for the Accused: A.P. Serka, Q.C. Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: December 2 and 9, 2013 Date of Judgment: December 23, 2013

INTRODUCTION, OUTLINE OF FACTS AS FOUND, AND IDENTIFICATION OF ISSUES [ 1 ] The accused, Christopher Gaetano Mauro (“Mr. Mauro”), is charged under Information No. 90759-1 with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. [ 2 ] It is common ground between Crown and defence that on February 3, 2013, shortly after the occurrence of a serious motor vehicle accident at the intersection of Clarke Road and Barnet Highway in Port Moody, Mr.

Mauro removed a grocery bag containing almost 1.3 kilograms of cocaine from his damaged 2009 Audi A4 (the “Audi”) and transferred it at scene to the front passenger footwell of a green, 1991 Volkswagen Jetta, also belonging to him (the “Jetta”). The Jetta had been driven to the accident scene that day, at his request, by his mother, civilian Crown witness Mary Mauro (“Mary”). Mr. Mauro transferred the bag to the Jetta without saying anything to her about it, its contents or what she could or should (or could not or should not) do with it. [ 3 ] I pause here to say that I mean no disrespect to Ms.

Mauro when I refer to her, in this Ruling, as “Mary”. I believe that by doing so, I will make it easier for the reader to distinguish references to her from references to her son, the accused, to whom I have elected to refer as “Mr. Mauro”. [ 4 ] It is formally admitted by Mr. Mauro that he possessed the subject bag and its contents before and at the time of the transfer and that they were his property. [ 5 ] Mr.

Mauro’s actions in transferring the subject bag from the damaged Audi to the Jetta before police arrived at the accident scene were observed by the other driver involved, civilian Crown witness Michael Hodges (“Mr. Hodges”) and one other unidentified civilian. This manoeuvre was thought by Mr. Hodges to be suspicious—sufficiently so that he took time to photograph Mr. Mauro with his smart phone’s onboard camera when the transfer was being made: see Exhibit “B” for identification. (Mr.

Hodges went to that trouble even though his attentions were also claimed by having to see to the needs of his wife who had been injured in the motor vehicle accident.) [ 6 ] Mr. Hodges reported what he had seen to Crown witness Cst. Brent Wantke (“Cst. Wantke”), the first of the Port Moody Police Department officers to attend at the scene of the motor vehicle accident. Mr. Hodges’ account was confirmed to Cst. Wantke by the other civilian witness. Having other duties to perform in relation to the accident, Cst. Wantke in turn advised Cst. Ryan West (“Cst.

West”), another Port Moody Police Department officer in uniform who had arrived on scene, of what he had been told by Mr. Hodges and the other civilian about Mr. Mauro’s transfer of the bag to the Jetta so that Cst. West might investigate. [ 7 ] Cst. West’s first priority was, to that point, management of traffic at the accident scene. In the course of driving his marked police vehicle down Clarke Road, both to secure the motor vehicle accident scene by blocking eastbound traffic on that road with his police vehicle and to investigate the situation with the bag, Cst.

West observed the Jetta (to his surprise) back out of its parking spot in the entrance to an empty lot, drive a short distance west on Clarke Road and then pull over and park again. Cst. West was clear that had the Jetta attempted to continue on its way, he would have pursued and stopped it. As can be seen, that turned out not to be necessary. [ 8 ] Once he had positioned his police vehicle in order to block eastbound (but not westbound) traffic on Clarke and activated his emergency lights for that purpose, Cst. West climbed out of it and approached the Jetta on foot.

Mary had already gotten out of the Jetta and during a brief interaction with her that unfolded close to it, Cst. West raised the issue of the bag with her after being told by her that the Jetta was “her car”. [ 9 ] There is some controversy as to the form taken by the question that Cst. West first put to Mary about the bag. During his direct examination, the first time he described that question he said “... I asked if Chris [Mr. Mauro] gave her anything to put into her car.” Later, however, when describing the information he had had relayed to him by Cst.

Wantke (and which he, in turn, relayed to Mary during their conversation), Cst. West’s descriptions (as they were relayed) repeatedly depicted Mr. Mauro putting the bag into the Jetta himself. This latter depiction accords with the evidence of both Mr. Hodges (who made and photographed his observation) and Cst. Wantke (to whom Mr. Hodges and another civilian witness reported it and who relayed the information to Cst. West). [ 10 ] When pressed on cross-examination about the way that he had formulated his question to Mary, Cst. West maintained that he had asked her, “Did Chris [Mr.

Mauro] put anything in the car” although he acknowledged that he might also have asked her whether Mr. Mauro had given her anything to put into her car. Mary herself, in cross examination, agreed with the proposition put to her by defence counsel that Cst. West had asked her whether Mr. Mauro had given her the bag to put in the Jetta. [ 11 ] At the end of the day, I do not consider that anything really turns on the fine distinction between the two formulations of the question posed to Mary by Cst. West that loomed so large in defence submissions. Even if, as he conceded, Cst.

West may on the first asking have framed his question in terms of whether Mr. Mauro had handed the bag to Mary, he was clear in his evidence that he pressed her more than once on the point and that he also framed his question in terms of Mr. Mauro putting the bag into the Jetta himself —a characterisation that, I will say again, accords both with what Mr. Hodges said he reported to Cst. Wantke and with what Cst. Wantke, in turn, said he relayed to Cst. West. [ 12 ] Cst. West’s questioning about the bag was initially met with an outright denial from Mary.

I do not accept defence counsel’s submission that the denial was a truthful response tailored precisely to the contours of a question that portrayed Mr. Mauro as having given the bag to her to put in the Jetta as opposed to him having put it in the Jetta himself.

There is nothing in the testimony of Mary or of any of the other witnesses to support the defence contention that, in the moment, Mary parsed the language of the officer’s question carefully and crafted an answer that might be said to be narrowly and technically truthful (as President Clinton appeared to do in answer to close questioning during his impeachment hearing about his questionable relations with Monica Lewinsky). I am satisfied on the evidence I heard that Mary knew very well that Cst. West was inquiring about the bag that she was aware Mr.

Mauro had put into the front passenger area of the Jetta that she drove to the scene. I am also satisfied that her denial was disingenuous. [ 13 ] Given what he had been told by Cst. Wantke about the observations of Mr. Hodges, Cst. West neither believed nor

accepted Mary’s denial. He therefore stepped up the pressure, asking her, inter alia , why she was lying about the bag. He reminded her of what the civilian witnesses had said about Mr. Mauro transferring a bag from the damaged Audi to the Jetta. He told her that, as a police officer, he was concerned about its possible contents and that it would be in her best interests to simply give him the bag. [ 14 ] Throughout this questioning, Cst.

West addressed Mary in a serious and forceful way. (In Mary’s words, the request was made in a way that was “abrupt, a little bit harsh”.) She displayed increased nervousness as her interaction with Cst. West progressed, going (in his words) into “full avoidance mode”. She avoided making eye contact with Cst. West and she pleaded with him that she did not want her son, Mr. Mauro, to get into trouble. It is a fair inference that Cst. West’s existing suspicions were increased by this and her denial response to his questioning about the bag. Like Mr. Hodges and the other unidentified civilian witness, Cst.

West considered Mr. Mauro’s action of transferring the bag from the Audi to the Jetta—early on in the chronology of the motor vehicle accident aftermath and not at the end of it when personal effects are commonly retrieved before a damaged vehicle is towed away, he said—to be odd. Drawing upon his experience as a police officer, this behaviour raised, in his mind, the thought that the bag may contain something illicit that Mr. Mauro did not want the police to see, perhaps (he testified) “guns or drugs”. Thus, Cst.

West persisted with his efforts to have Mary hand over the bag so he could determine what it contained. He testified that he also did not want Mary to drive away with a bag possibly containing “guns or drugs”. [ 15 ] After being told by Cst. West (again, forcefully) that she was vulnerable to arrest for obstruction of justice, Mary—feeling “scared,” “threaten[ed]” and “freaked out”—reached down into the passenger foot-well of the Jetta, retrieved the bag of interest from behind a bag positioned in front of it (which she said fell on top of the subject bag when she was parking), and handed it to Cst.

West. [ 16 ] Importantly for the purposes of this voir dire , Cst. West made no effort to deal directly with Mr. Mauro in connection with the bag of interest—an item of property that his testimony shows he believed likely belonged to Mr. Mauro. His search and seizure of the bag were carried out without a warrant and without any interactions on his part of any kind with the person he believed (correctly) to be its owner. Although Mary told him during the course of their interaction that the Jetta was “her car”, Cst. West did not run a search of the plate on the Jetta. Had he done so, he would have learned that Mr.

Mauro was, in fact, the owner and principal operator of that vehicle. [ 17 ] Further, Cst. West was clear in his evidence that, throughout, he did not believe he had grounds to either detain or arrest Mary. [ 18 ] As I have previously noted, the bag of interest was determined in due course to hold (among other things) three smaller bags containing, in the aggregate, 1,268.9 grams of cocaine. The drugs had a street value of $72,508.57 if sold by the ounce or $101,512 if sold by the half or quarter gram. Both Mr. Mauro and Mary were thereupon arrested for possession of cocaine for the purpose of trafficking.

The Crown is pursuing the charge against Mr. Mauro in these proceedings but the charge against Mary has been dropped. [ 19 ] To counsel’s credit, many facts (including many of those referred to in the above

summary) have been formally admitted for the purposes of this voir dire : see Exhibit “A” for identification. The admissibility of the cocaine found in the bag that Mary ultimately handed to Cst. West is however challenged by Mr. Mauro on the ground that it is the product of a warrantless, and thus presumptively unreasonable, search and seizure that was conducted in violation of Mr. Mauro’s rights under s. 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.) , 1982, c.11 (the “Charter ”). [ 20 ] The Crown concedes the breach of s. 8. Thus, the true focus of argument on this voir dire in respect of the search and seizure of Mr. Mauro’s bag falls upon two questions: (

a) Whether Mr. Mauro has standing, in the unique circumstances of this case, to challenge a search and seizure that was conducted in a manner that the Crown admits was not Charter -compliant; and, if so (

b) Whether—having regard to s. 24(2) of the Charter —the Crown evidence obtained from the bag obtained in the course of the admittedly unlawful search should be admitted or excluded. STANDING [ 21 ] The preliminary analysis on this voir dire is mostly concerned with the question of whether Mr. Mauro has standing to invoke s. 8 in his favour in a bid to have the bag of cocaine that belonged to him excluded from evidence pursuant to s. 24(2). However, there is another standing-related aspect to the case at bar—a distraction, to be frank—to which I will turn first.

It can, I believe, be disposed of quickly. [ 22 ] The facts as found and summarised above reveal what may, arguably, constitute breaches of Mary’s Charter rights. It could be contended, for example, that Mary’s right under s. 9 to be safe and secure against arbitrary detention was breached, in part by reason of the fact that Cst. West testified that he did not believe subjectively that he had lawful grounds to detain her. Objection could also possibly be taken to Cst.

West’s failure to advise Mary promptly of the reason for her detention, or of her right to retain and instruct counsel without delay, contrary to ss. 10(

a) and 10(b), respectively, of the Charter . [ 23 ] However—although Mary was arrested—the Crown did not ultimately proceed against her. She is not Mr. Mauro’s co- accused in this proceeding. Indeed, she is not currently an accused in any proceeding based upon the events that unfolded near the intersection of Clarke Road and Barnet Highway on February 3, 2013. This case is about Mr. Mauro, and not about his unfortunate mother. Any breaches of Mary’s rights at the time she was dealt with by police—under ss. 9, 10(

a) and 10(

b) or any other provisions of the Charter —are, even though conceded by the Crown, for Mary and Mary alone to invoke in proceedings against her (should they ever be re-instituted). [ 24 ] Mary’s rights are not before me for vindication in the case at bar where Mr. Mauro is the sole accused. That is to say,

Mr. Mauro cannot invoke alleged breaches of Mary’s Charter rights to aid himself in resisting conviction for the charge he faces: R. v.Campbell, [2002] A.J. No. 734 (Q.B.). In a word, he lacks standing to do so. [25] That brings me back to the central standing issue. The Crown argues that on the unusual facts before me, Mr. Mauro—who bears the onus of establishing it (R. v. Sandhu (1993), (BC CA), 82 C.C.C. (3d) 236 (B.C.C.A.))—lacksstanding to challenge the admittedly unlawful search of his bag containing his cocaine. [26]

Section 8 of the Charter guarantees that “[e]veryone has the right to be secure against unreasonable search or seizure”. That Charter right is predicated upon the notion of a “reasonable expectation of privacy” which is defined in part by context: Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145 and Schreiber v. Canada (Attorney General), (SCC),[1998] 1 S.C.R. 841.

A breach of s. 8 may be made out if that reasonable expectation is violated, but it may only be invoked by personswho, in all the circumstances, can demonstrate a sufficient privacy interest to qualify for standing. [27] The Crown’s standing argument in the case at bar rests principally on its assertion that, in the remarkable circumstances ofthis unusual case, Mr.

Mauro cannot be said to have had a reasonable expectation of privacy in connection with the bag containing hiscocaine that is sufficient to accord him standing to challenge the unlawful search of that bag. [28] In terms of identifying and evaluating the factors that speak to standing, the seminal Supreme Court of Canada authority isR. v. Edwards, (SCC), [1996] 1 S.C.R. 128.

That case confirmed, among other things, that determinations as towhether individuals invoking s. 8 had “reasonable expectations of privacy” at the material times must be made individually in individualcases by recourse to the totality of the circumstances reflected in those individual cases.

Police conduct is irrelevant to this thresholdquestion; police conduct comes in later when, a reasonable expectation of privacy having been recognised, the inquiry shifts to aconsideration of whether it was transgressed unreasonably (which is admitted by the Crown here). [29] Using the non-exhaustive enumeration of factors given in para. 45 of Edwards as a yardstick in assessing the totality ofthe circumstances in the case at bar, I observe that: (

i) Presence: Mr. Mauro was present in the sense that he was relatively nearby at the time of the search of the subject bag; (ii) Possession or Control: Because he had placed the subject bag of cocaine in the Jetta not long before the search, by his actionsMr. Mauro—who undoubtedly was in possession of and had control over the bag at the beginning—surrendered possession of it, at leasttemporarily, to his mother, Mary. In so doing, he also relinquished a measure of control over it; (iii) Ownership: Mr.

Mauro owned the bag and the cocaine it contained; (iv) Historical Use: For the time leading up to a few minutes before the search in question was conducted, Mr. Mauro had thesubject bag in his possession and stored in his Audi. After the accident, but before police came, he relocated it to the Jetta; (

v) Ability to Regulate Access: By his actions in placing the bag containing his cocaine into the front passenger footwell of hisJetta (then occupied by Mary) without giving her any particular instructions about what she could or should (or could not or should not)do with it, Mr. Mauro at the very least curtailed his own ability practically to regulate access to the bag by others, including police; (vi) Subjective Expectation of Privacy: In the absence of any testimony from Mr. Mauro during the course of the voir dire (itbeing his unquestioned right to decline to give such testimony), the issue of whether Mr.

Mauro had a subjective expectation of privacyregarding the subject bag and its contents can only be approached on the plane of inference. The facts that (

a) the subject bag contained asubstantial quantity of cocaine (an illegal substance), (

b) the cocaine was kept in an opaque bag that concealed its contents from view,and (

c) Mr.

Mauro removed the bag from the interior of one of his vehicles and placed it in the interior of another of his vehicles, allsupport the inference that he had some expectation of privacy concerning the bag and its contents; and (vii) Objective Reasonableness of the Expectation: By his conduct of openly and very publicly transferring the bag from hisdamaged Audi to the Jetta at the accident scene in circumstances that disinterested bystanders viewed, reasonably, as suspicious, Mr.Mauro rendered any suggestion that he had a significant expectation of privacy with regard to the subject bag and its contents objectivelyunreasonable.

A layman would put it more simply: “That was bound to attract suspicion. That’s just not how you would expect aperson to handle something that’s very valuable if he was really serious about keeping what he doing a secret.” [30] Viewing the evidence before me through the lens of the Edwards factors, I first note that I agree with Crown counselwhen he argues that it is “trite law” that owners of property kept or stored in motor vehicles cannot claim a reasonable expectation ofprivacy regarding that property that is in any way comparable to that invoked by owners of property kept or stored in their homes: see R.v.

Wise, [1982] 1 S.C.R. 527 and R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341. And, as I have noted above, theexpectation that Mr. Mauro can reasonably claim to have had with regard to his privacy interests in the subject bag and its contents waslessened further here by the very public way he transferred the bag from the Audi to the Jetta and then left it there, without anyinstructions to Mary regarding what she should or should not do with it. In doing so he provoked reasonable suspicion on the part ofbystanders and put regulation of access to it beyond his direct, personal control.

That, as Crown counsel argues, is a situation that can besaid to be somewhat analogous with the one considered by the Ontario Court of Appeal in R. v. Nesbeth, 2008 ONCA 579. There, theaccused tossed a knapsack containing incriminating evidence into some bushes during a police chase. In his written submissions, Crowncounsel contends that “...[Mr. Mauro’s] action in intentionally dispossessing himself of the Bag in the Jetta is tantamount to [him]disclaiming any privacy interest in the Bag ...”.

While not amounting to a complete renunciation of his privacy interests, I agree that Mr.Mauro’s actions in the case at bar operated to significantly diminish the objective reasonableness of his claim of a significant expectationof privacy regarding the subject bag and its contents. [31] Moreover, it ought not to be overlooked that the cocaine at issue here was not concealed in a purse, or a briefcase or abackpack—all objects for storing personal possessions that, by their very nature, suggest a comparatively higher expectation of privacy. Mr.

Mauro kept his cocaine in an ordinary grocery bag which he was content to move from here to there, openly and in view of membersof the public at a time when all reasonably anticipated the imminent arrival of police.

[32] Surveying all of these aspects and factors in the round, as I am obliged to do, I consider that the present case is, as defencecounsel argues, distinguishable from those s. 8 decisions in which standing has been denied. While all that Mr. Mauro can claim, to besure, is a comparatively low expectation of privacy over the subject bag and its contents in the present case, there is still enough of asubsisting expectation, in my judgment, to grant him standing. [33] For example, it can be rightfully contended on behalf of Mr.

Mauro, as its owner, that he retained a degree of dominionover the Jetta—even though he had temporarily surrendered possession and control over it and its contents to Mary. That dominionextends beyond anything that Mr. Edwards could claim he had as a mere “privileged guest” in the apartment of Ms. Evers in R. v.Edwards (see paras. 49-50).

Similarly, while landlords have substantial residual and reversionary rights over the real property they leaseto their tenants, their tenants (by reason of their status as tenants) have, inter alia, qualified rights of exclusive possession and theexpectations of privacy that go with those rights. Mary’s rights as a temporary user of Mr. Mauro’s Jetta cannot be seen as beingcomparable in their breadth and depth to the rights of a tenant in a real property setting. This is sufficient to distinguish the case at barfrom R. v. Pugliese, (ON CA), [1992] O.J. No. 450 (C.A.). [34] Altogether, I conclude that while Mr.

Mauro’s reasonable expectations of privacy regarding the bag containing cocainethat he transferred from the Audi to the Jetta while it was occupied by Mary were significantly truncated expectations, they werenevertheless sufficient to accord him standing to challenge the constitutional validity of Cst. West’s search of the bag under s. 8 of theCharter. Accordingly, I hold that Mr. Mauro has that standing. [35] As I have noted above, insofar as the Crown concedes that the search conducted by Cst. West of the subject bag infringedMr.

Mauro’s rights under s. 8 of the Charter, there is no need for me to proceed with the second of the questions that the court inEdwards held must be answered in the analysis in a case of this kind, namely, whether the search was an unreasonable intrusion into Mr.Mauro’s zone of privacy. That is admitted. [36] The analysis, therefore, must now turn to the question of whether the bag containing cocaine should be excluded oradmitted pursuant to s. 24(2) of the Charter.

DISPOSITION OF EVIDENCE PURSUANT TO S. 24(2) OF THE CHARTER The Test [37] Section 24(1) of the Charter creates a right in those whose constitutionally protected rights and freedoms have beeninfringed or denied to turn to a court of competent jurisdiction to obtain a just and appropriate remedy.

Section 24(2) provides asfollows: “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [38] Exclusion of evidence under s. 24(2) is the constitutional remedy that Mr. Mauro seeks in this voir dire. [39] In 2009, the Supreme Court of Canada had occasion in R. v.

Grant, 2009 SCC 332, to revisit the analytical processaccording to which trial judges' decisions to exclude evidence, or not, under s. 24(2) for Charter breaches ought to be made. That case,and two others that were decided contemporaneously with it—R. v. Suberu, 2009 SCC 33 and R. v.

Harrison, 2009 SCC 34—haverestated the test for exclusion. [40] The test, as reformulated, is succinctly summarised at para. 71 of Grant as follows: ““… [W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disreputeengages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking andsocietal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admittingthe evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct(admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in theadjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines ofinquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice intodisrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant tothe s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.” (

a) The seriousness of the Charter-infringing state conduct [41] In R. v. Reddy, 2010 BCCA 11, Frankel J.A. (for the majority) stated that, for present purposes, “the greater the level ofstate misconduct, the greater will be the need for the courts to dissociate themselves from that conduct” (at para. 92). [42] What is the misconduct that constitutes the breach of Mr. Mauro’s s. 8 Charter rights here and how serious was it? [43] I confess that, even though a breach of Mr. Mauro’s s. 8 rights has been admitted by the Crown, no clear definition hasbeen given in submissions as to what it is that Cst. West did, or culpably failed to do, of which Mauro can complain that constituted thatbreach.

[44] The picture here is complicated by the fact that, as I have noted above, the Charter rights of Mr.

Mauro, who is before thecourt, have frequently been bound up in submissions with those of Mary, who is not before the court, faces no charges, is in no presentlegal jeopardy and hence has no claim for vindication of Charter rights to assert, either directly or by proxy, in this prosecution. [45] It has been argued before me that I can and should take into account alleged breaches of Mary’s Charter rights inassessing police conduct for the purposes of the first part of the test for exclusion flowing out of the Grant trilogy. Reliance is placed inthat regard on an oral decision of Wong J. in the case of R. v.

Vereczki, 2003 BCCA 364 , [2003] B.C.J. No. 1430 (S.C.), inwhich his Lordship—after acknowledging at page 11 that, in R. v. Spinelli, [1995] B.C.J. No. 2123 (C.A.), the B.C.

Court of Appealrejected the proposition that “any evidence obtained by unlawful means should be excluded”—went on to state the following obiterdictum at para. 12: “... [U]nless police misconduct to third parties leading to evidence incriminating the accused is demonstrated to be so oppressive,vexatious or unfair so as to amount to an abuse of the court's process, a doctrine independent of the rights guaranteed by s. 7 of theCharter, similar issues of the accused's rights under s. 7 and s. 11(

d) of the Charter are not triggered.” [46] Counsel for Mr. Mauro argues that this passage leaves the door open to the consideration of police conduct at large forthe purposes of determining whether evidence should be excluded or included under s. 24(2). He cites this reasoning from Vereczki inan attempt to have me consider several matters that, prima facie, Mr.

Mauro has no standing to raise and which are only susceptible ofbeing raised by Mary in connection with alleged breaches of her Charter rights. [47] With respect, I am unable to accept defence counsel’s submissions in this regard. [48] First, as I have noted, the passage cited by Mr. Mauro is obiter and thus not binding upon me. The ratio of the decision inVereczki in fact constitutes a straightforward application of the reasoning in cases like Edwards and Belnavis that is relied upon by theCrown here.

In Vereczki, Wong J. actually denied the accused standing to seek to have evidence obtained through the execution of asearch warrant excluded. The case involved a marijuana grow operation on Mr. Vereczki’s property. He objected that informationcontained in the ITO sworn to obtain the warrant was gathered when police trespassed on the lands of two neighbours whose propertieswere adjacent to his. He was denied a right to raise a s. 8 breach because “no proprietary or possessory rights of the accused wereinfringed by the police presence on the adjoining property” (at para. 9).

That, mutatis mutandis, is what the Crown argues in the case atbar with regard to Mary’s Charter rights. [49] Moreover, if the obiter passage from Vereczki is indeed susceptible of an

interpretation giving rise to an entitlement onthe part of an accused to invoke police conduct at large in supporting exclusion of evidence under s. 24(2)—a contention which I do notaccept—that entitlement could only come into play in circumstances of extreme police misconduct, that is, misconduct that is so“oppressive, vexatious or unfair” that it amounts to an “abuse of process” (in the words of Wong J.). Nothing that Cst.

West either did, orculpably omitted to do, in the course of the investigation leading to this prosecution comes near to fitting that description. [50] The legal reasoning that, historically, has confined an accused to invoking breaches of his or her own Charter rights onlyfor the purposes of seeking Charter relief (and not the rights of others) finds a strong endorsement and affirmation in the very recentdecision of Williams J. in R. v. Nguyen, [2013] B.C.J. No. 1124 (S.C.). In that case, Williams J. was faced with a similar argument tothe one that has been placed before me in the case at bar.

At para. 34 of his reasons, his Lordship stated in this regard: “The position urged by the applicant would constitute a quite dramatic deviation from the standing requirement. To accept his positionwould be to essentially change the focus of the Charter inquiry from the protection of individual rights to a more general and at-largeinquiry into all aspects of a given police investigation. It seems to me that that is quite strikingly at variance with the establishedjurisprudence. There is as well the issue of a proper economy of judicial resources.

Pursuing a larger and wider approach necessarilyrequires a substantially greater expenditure of judicial time and energy and detracts from trial focus.” [51] I respectfully agree with the analysis in the passage quoted above. It follows that I do not believe that it would beconsistent with the general law regarding standing to permit Mr.

Mauro to invoke alleged breaches of Mary’s Charter rights for anypurpose in the present prosecution, including the purpose of seeking to have the evidence obtained in the admittedly unlawful search andseizure of the bag containing cocaine excluded. [52] Returning now to the subject of just what Cst. West did or did not do in the case at bar to breach Mr. Mauro’s s. 8 rights, Iwill say that I believe that the problem that is the main source of his complaint was Cst. West’s warrantless search of the subject bag—apresumptively unreasonable search which was neither conducted pursuant to a lawful detention of Mr.

Mauro nor conducted incidental toa lawful arrest of him. [53] Cst. West knew, because he had had the observations of two civilian witnesses relayed to him by Cst. Wantke, that thesubject bag had been transferred by Mr. Mauro from the damaged Audi to the Jetta. He therefore knew that Mr. Mauro had someinterest in the subject bag and, thus, a presumptive right to be dealt with in a Charter-compliant way before the subject bag was searchedand its contents seized. Cst. West did not give effect to that right. He bypassed Mr. Mauro altogether. [54] Similarly, Cst.

West did not learn, because he did not make independent inquiries, that the Jetta belonged to Mr. Mauroand that Mr. Mauro was its principal operator. Had he made those inquiries, then he would have realised that when Mary told him thatthe Jetta was “her car” that she may have meant “hers to use” only. While, objectively, there was a clear basis upon which one could saythat Mary had ostensible authority to deal with the officer in connection with the bag that Mr. Mauro had placed in the Jetta, it cannot bedenied that the officer could have probed that issue more fully. Plainly, there were reasons why Cst.

West could and should have dealtwith Mr. Mauro before searching the bag and seizing its contents. He did not do so. [55] These, undoubtedly, are some of the facts that lie at the bottom of the Crown’s concession that the search and seizure ofthe subject bag amounted to an infringement of Mr. Mauro’s s. 8 rights. [56] That said, the strange concatenation of events that arises for consideration here unfolded largely because of Mr. Mauro’s

actions in publicly transferring the subject bag from the Audi to the Jetta. Those actions set in motion an investigation of a suspectedcriminal offence. At the material time Cst. West was engaged in that investigation. In particular, he was dealing with someone who wasnot the suspect but, rather, the suspect’s mother. [57] I note again for emphasis that, when questioned about the Jetta where the bag reposed, Mary told him she was driving“her car”. She came across as nervous, evasive and untruthful when being questioned. Cst.

West’s powers to carry out a criminalinvestigation on the night in question were sourced not only in the Criminal Code but in the common law as well. At common law theprincipal duties of police officers are "the preservation of the peace, the prevention of crime, and the protection of life and property"(emphasis added): see, for example, Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Clayton, [2002] 2 S.C.R. 725 and R. v.

Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456. [58] Among the tools police have at their disposal when investigating crime is the common law power of investigativedetention. As Martin J.A. (for the court) stated in R. v. Moran, (ON CA), [1987] O.J. No. 794 (C.A.) in that regard: “ ... a police officer when endeavouring to discover whether or by whom an offence has been committed, is entitled to question anyperson, whether suspected or not, from whom he thinks useful information can be obtained.

Although a police officer is entitled toquestion any person in order to obtain information with respect to a suspected offence, as a general rule, he has no power to compel theperson questioned to answer. Moreover, he has no power to detain a person for questioning and if the person questioned declines toanswer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds.” (at p. 24,Quicklaw pagination) [59] Here, to track the foregoing language, Cst. West was “endeavouring to discover ... whether an offence ha[d] beencommitted [by Mr. Mauro]”.

He believed that Mary was a person “from whom ... useful information [could] be obtained” and so hequestioned her. At no time did she seek to bring their interaction to an end. Undoubtedly, Cst. West was forceful in his questioning ofMary. As he testified, he treated the investigation as a serious manner and he did not disagree that his demeanour conveyed that. WhenMary answered his question about the subject bag with a denial, initially at least—an answer that was contradicted by the accounts ofindependent witnesses which had been relayed to him by Cst. Wantke—Cst.

West was skeptical of the truthfulness of her answer and hetold Mary so in no uncertain terms. He alerted her to the potential legal implications of lying to an investigating police officer in suchcircumstances. Cst. West’s disbelieving and cautionary words were then followed by a complete reversal on Mary’s part. Sheabandoned her untruthful denial and reached into the Jetta and handed Cst. West the bag placed there by Mr.

Mauro, the presence ofwhich she had denied only moments earlier. [60] I cannot find in this interaction, as it was revealed in the evidence on the voir dire, coercion or excessive use ofpsychological force by Cst. West. Instead of declining to answer Cst. West’s questions, Mary chose to engage with the officer inconversation on the subject of his inquiries. She chose to tell the officer something about the subject bag which, given what heunderstood based on civilian reports, appeared to be untrue. Indeed, she chose to tell the officer something which she, herself, knew tobe untrue.

Having received what he reasonably believed to be an untruthful answer to a question posed in the course of a criminalinvestigation, Cst. West pressed Mary again for a truthful answer. He got one. And then she handed the bag to him. [61] Insofar as Mary was psychologically detained during the above-described interaction (and, on the test in R. v. Therens, (SCC), [1985] 1 S.C.R. 613, there can be no doubt in that regard), it is problematical that Cst. West testified that he didnot believe he had reasonable grounds to detain her. But, as I have noted, that is not a matter about which Mr. Mauro can complaindirectly.

I will say however that, when I consider what grounded Cst. West’s suspicions—that is, the reaction of civilian witnesses who,too, thought that Mr. Mauro’s conduct was odd, coupled with Mary’s movement of the Jetta some distance away from the scene and thenher denial, at first, that a bag had been placed by Mr. Mauro in the Jetta—then, with all due respect to Cst. West’s own contrary view, Iconsider that objective grounds for a reasonable suspicion on his part were present in this case. I am left to wonder whether Cst. Westwas simply confused when he said he believed he lacked lawful grounds to detain Mary.

The fact that he testified that, had shecontinued driving and not stopped, he would have pursued her and made a traffic stop tells me that he must have believed he hadreasonable grounds to, at least, effect an investigative detention. This is relevant, I believe, to the suggestion that this officer acted in badfaith and in direct contravention of what he knew to be his obligations—a consideration that is relevant when assessing the seriousness ofany Charter breach. While he undoubtedly failed to do all that was required of him in connection with Mr.

Mauro’s s. 8 rights, I do notbelieve that the evidence as a whole supports the defence contention that Cst. West was recklessly indifferent to his duties or the rights ofthose to whom he owed them. [62] While they were neither trifling or unimportant, neither do I consider Cst. West’s actions or omissions in the course of theinvestigation at issue here, resulting inter alia in a breach of Mr. Mauro’s rights under s. 8 of the Charter, to have been anywhere nearthe egregious end of the continuum of Charter-infringing state conduct referred to in R. v. Kitaichik, (ON CA),[2002] O.J.

No. 2476 (C.A.). [63] Recall again that Mr. Mauro made an obvious, public display (some might say a “spectacle”) of his effort to get thesubject bag out of his Audi and into the Jetta before police arrived—a display that attracted the suspicion of civilian witnessessufficiently to prompt one of them to take a smart phone photo and then report those observations to police. As I have noted, thisbehaviour on Mr. Mauro’s part dilutes the expectation of privacy that he can credibly claim he had with respect to the place where he soobviously and publicly placed the bag under inherently suspicious circumstances.

The corollary to that proposition is that this behaviourcorrespondingly diminishes the seriousness of the breach of that substantially diluted privacy right. [64] It is noteworthy that once he had been handed the bag containing the cocaine by Mary, Cst. West did not press ahead andseek to search for further items or information that might incriminate Mr. Mauro. His inquiries and demands were targeted andaddressed to a person who had ostensible authority to answer and comply with them. Once he had his target in hand, Cst.

West did notembark on a fishing expedition in an effort to find more. [65] Nor is there anything to suggest that Cst. West’s infringements of Mr. Mauro’s s. 8 rights were wilful or intentional; atworst in addressing his inquiries and demands to Mary Cst. West made (as Crown counsel described it) a “reasonable mistake of fact as

to who had authority to give him the bag”. There is no evidence to support any suggestion that he intentionally sought to “end run” Mr. Mauro by dealing with his mother. She had, I am quite satisfied, ostensible authority to deal with the officer in connection with the subject bag—an authority that was seemingly confirmed by her advice that the vehicle into which the bag had been placed by Mr. Mauro was “her car”.

Indeed, by continuing to converse with him about the bag and, ultimately, handing it over to him, she did deal with the officer in connection with the bag, strengthening the outward display of her ostensible authority in that regard. The seriousness of the breach of Mr. Mauro’s s. 8 rights in such circumstances is, necessarily, less than it would have been if Cst. West had forged ahead with no reasonable basis for believing that he could deal with Mary in connection with the subject bag. [ 66 ] There was no lying or use of trickery by Cst.

West (though that is permitted); neither, on my findings of fact, was there any coercion or undue use of pressure by him. His actions and omissions amount to breaches to be sure—police officers are expected to know the law that applies to the situations they encounter and act strictly in accordance with it—but they were non-egregious breaches and, in my judgment, culpable but inadvertent breaches by omission. [ 67 ] Altogether, and for these reasons, I cannot find anything in the evidence led on this voir dire that is capable of elevating the seriousness of Cst.

West’s Charter -infringing actions at the scene of Mr. Mauro’s motor vehicle accident of February 3, 2013, above the level of a comparatively minor infringement. (

b) Impact on the Charter-protected rights of the accused [ 68 ] Undoubtedly, the impact of the search and seizure of the subject bag by Cst. West conducted in breach of Mr. Mauro’s rights under s. 8 of the Charter was real and meaningful. After all, without that Charter -noncompliant search, the Crown may well not have otherwise discovered and seized the cocaine upon which this prosecution is now heavily dependent. [ 69 ] That said, the Charter -protected right of privacy that was breached here was a much-diluted right. By reason of the simple fact that Mr.

Mauro chose his other vehicle (the Jetta) as the place to which to transfer the subject bag after the motor vehicle accident he had with the Audi, his reasonable expectations of privacy are already substantially diminished: Wise and Belnavis . And, as I have mentioned earlier in this ruling, the fact that at the material time he had surrendered control of the Jetta to Mary, coupled with the remarkably public way in which Mr.

Mauro made the transfer of the bag from the Audi to the Jetta—a transfer that a number of witnesses at the voir dire considered to be odd or suspicious and that seems almost to have been guaranteed to draw that reaction— further constrains Mr. Mauro’s ability to argue that he maintaied high expectations of privacy regarding either the bag or the Jetta. [ 70 ] For present purposes, therefore, I consider the impact of the breach of Mr. Mauro’s s. 8 Charter rights that occurred in this case to have been somewhat muted. (

c) Society’s interest in the adjudication of the case [ 71 ] The cocaine seized from the subject bag placed by Mr. Mauro in the Jetta is reliable evidence. Mr. Mauro admitted for present purposes that he possessed it for the purpose of trafficking. Trafficking in hard drugs, like cocaine, is a serious societal problem. It produces many victims. The apprehension and conviction of those who engage in this form of illicit commerce, with its many indirect adverse effects, is an understandable priority for all members of society.

These considerations require that a decision to exclude evidence that is seemingly indispensable to the Crown’s case against a person like Mr. Mauro—an individual accused of a very serious drug offence—ought not to be taken lightly. (

d) Balancing the factors [ 72 ] The s. 24(2) analysis, following the protocol prescribed by the Grant trilogy, is a qualitative exercise. There is no precise formula to apply and different factors will weigh differently in the equation in different cases. At the end of the day, the question of whether the disputed evidence must be admitted or excluded in this and all cases is answered by determining which of those steps— admission or exclusion—will best engender confidence, on the part of informed citizens, in the administration of justice.

If, having regard to all of the necessary considerations, I conclude that the admission of the evidence against Mr. Mauro here will bring the administration of justice into disrepute, I must exclude it. [ 73 ] Any decision I may make to exclude evidence under s. 24(2) will have the effect of vindicating Mr. Mauro’s s. 8 Charter right to be secure against unreasonable search and seizure. However, here (as is often the case) such a decision will also have the effect of preventing the adjudication of the criminal allegation Mr.

Mauro faces on its merits—that is, of preventing that which “society generally expects” ( Grant at para. 79). In balancing such vindication of Charter rights against the inimical effect of the loss of the disputed evidence to the truth-seeking process that would unfold at Mr.

Mauro’s criminal trial if it proceeds here, I must—in the words of Doherty J.A. (for the court)—ask whether “ the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial": Kitaitchik at para. 47 ( cited with approval in Harrison at para. 23 ) . [ 74 ] This analysis leads inevitably to further qualitative assessment of the egregiousness of the police conduct, seen in context, that accounts for the breaches that are cited as a basis for exclusion under s. 24(2).

At para. 41 of his decision in Kitaitchik , Doherty J.A. made this observation: “… Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights: see Hill, "The Role of Fault in Section 24(2) of the Charter", The Charter's Impact on the Criminal Justice System (1996), at p. 57, (Cameron ed.). What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.”

[ 75 ] Starting there, I would repeat that the “state misconduct” in this case—that is, Cst. West’s conduct—was, though not trivial, still (on my assessment) comparatively minor. I will not repeat everything I said above in this ruling that shows the pathway my reasoning has followed in reaching that conclusion. Neither will I repeat here what I have said regarding the limited expectation of privacy Mr.

Mauro had, objectively, concerning the subject bag and its contents, given his own conduct in relation to that bag. [ 76 ] Balanced against that, as I have noted, is the likely loss—if the evidence sought to be excluded is excluded—of the Crown’s ability to proceed further with its prosecution of Mr. Mauro for possession of almost 1.3 kilos of cocaine with a street value in the neighbourhood of $100,000. [ 77 ] I say again that the offence with which Mr. Mauro has been charged is a serious one that society has a particular interest in having adjudicated on its merits.

Trafficking in hard drugs is a form of illicit commerce that spawns much secondary lawbreaking and ancillary human misery. To track the words of Doherty J.A. in Kitaitchik , for the court to exclude the disputed evidence in vindication of the comparatively minor violation of Mr. Mauro’s significantly diluted right to privacy revealed on the unique facts here would exact a high toll on the truth-seeking function of his criminal trial.

Indeed, I have come to the conclusion that the toll that exclusion would exact in the case at bar would be intolerably high. [ 78 ] I consider that if I were to rule in favour of excluding the disputed evidence in the circumstances of this unique case—in effect, putting the Crown’s ability to obtain an adjudication of the serious drug charge that Mr. Mauro faces on the merits in grave peril —the repute of the administration of justice would rightly decline in the estimation of informed, right-thinking members of society upon learning of the exclusion. [ 79 ] It follows that, notwithstanding the breach of Mr.

Mauro’s rights under s. 8 of the Charter , I conclude that the cocaine and all other contents of the subject bag must be admitted into evidence at his trial. DISPOSITION AND ORDER [ 80 ] Pursuant to s. 24(2) of the Charter , I rule all of the evidence contained in the bag transferred by Mr. Mauro from his damaged Audi to the Jetta and subsequently obtained from Mary by Cst. West during his questioning of her is admissible against Mr. Mauro. [ 81 ] Order accordingly. _______________________ Thomas S. Woods, P.C.J.