R. v. Moonie, 2013 BCSC 1866

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Moonie, 2013 BCSC 1866 Date: 20130426 Docket: 57231-2 Registry: Chilliwack Regina v. Ryan Austin Moonie Before: The Honourable Madam Justice Ker Oral Reasons for Judgment Counsel for Crown: J.M. Whiting Counsel for Defence: J.P.R. Desbarats Place and Date of Trial/Hearing: New Westminster, B.C. January 30 – 31, 2012 February 1 – 3, 2012 April 11 and 12, 2012 February 25, 2013 Place and Date of Judgment: Chilliwack, B.C. April 26, 2013 I.

Introduction [ 1 ] THE COURT: Ryan Austin Moonie is before the Court on a 10-count indictment charged with offences related to the production of cannabis marihuana, possession for the purpose of trafficking, as well as eight firearms offences pertaining to the possession and storage of a .22 calibre handgun, a 9 millimetre handgun, and a rifle, all found in his residence on November 27, 2007. [ 2 ] Mr.

Moonie's residence, a property located at 29038 Marsh McCormick Road in Abbotsford, BC (the "Premises"), became the target of an investigation by Constable Allan Young of the Abbotsford Police Department (the "APD") in December 2006. Constable Young had received information from an anonymous source that caused him to believe there might be a marihuana grow operation located at the Premises: a semi-rural property with a residence, two outbuildings, and fields. [ 3 ] On May 14, 2012, I delivered an oral ruling following a blended Charter voir dire that addressed the circumstances of Mr.

Moonie's arrest and detention by members of the APD on or about November 27, 2007. [ 4 ] On the first phase of the blended Charter voir dire , Mr. Moonie sought declarations that his rights under ss. 7, 8, 9, and 10(

b) 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 ], were breached by the APD when they arrested him, searched his vehicle, unreasonably delayed his access to counsel, and searched the premises where he lived, as well as in the manner in which they conducted themselves in dealing with Mr. Moonie at the arrest scene, while detained, and in how they left his residence after the search. [ 5 ] In my oral ruling of May 14, 2012, I found limited breaches of Mr. Moonie's ss. 8 and 10(

b) Charter rights and a fairly significant breach of his rights under s. 7 of the Charter relating to how Mr. Moonie was treated both at his arrest roadside and through his detention until his court appearance on November 28, 2007. My earlier oral reasons fully set out the details of the investigation, arrest, and detention of Mr.

Moonie on November 27, 2007, until his release on bail the next day on unrelated charges from Vancouver, as well as the search of his premises. [ 6 ] I do not propose to repeat my findings from that ruling but incorporate them into this ruling for the purposes of informing the analysis for determining what, if any, remedy is appropriate to redress the breaches of Mr. Moonie's Charter rights. [ 7 ] At this stage of the proceedings, Mr.

Moonie seeks to have the evidence that was obtained following the search of his residence and the outbuildings excluded pursuant to s. 24(2) of the Charter and the jurisprudence that guides that analysis. In the alternative, he seeks a stay of proceedings pursuant to s. 24(1) of the Charter . [ 8 ] The parties do not dispute the legal principles that apply to the issue of remedy for exclusion of evidence under s. 24(2) of the

Charter or a stay of proceedings under s. 24(1) of the Charter . Rather, they differ on the application of the law to the particular facts of this case and therefore differ significantly on the proposed outcome. [ 9 ] I propose to briefly outline the facts that govern my findings of the three Charter breaches. I will then outline the positions of the parties on this remedy application before turning to the required analysis of the principles as they apply to the facts in this case. II. Background Facts [ 10 ] As I noted in the introduction, I have addressed at length the circumstances surrounding Mr.

Moonie's arrest, detention, and the search of his Premises in an oral ruling from May 14, 2012. I do not propose to repeat all my findings from that ruling, and so the reader is referred to that ruling. However, I incorporate my findings from that ruling into this ruling without the necessity of repeating them for the purposes of informing the analysis for determining what, if any, remedy is appropriate to redress the breaches of Mr. Moonie's Charter rights. A. Mr. Moonie's Arrest [ 11 ] On November 27, 2007, at about 17:55 hours, Mr.

Moonie was detained and then arrested shortly after he left the Premises which he was renting.

Officers from the APD were conducting surveillance of the Premises awaiting the arrival of members of the Municipal Integrated Emergency Response Team ("MIERT") who were mustering to execute a search warrant at the premises that Constable Allan Young of the APD had obtained earlier that day under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [ CDSA ], in relation to a suspected marihuana grow operation. [ 12 ] In a briefing prior to the attendance at the Premises, the officers were advised by Constable Young that: the accused, Ryan Austin Moonie, was the target of the investigation, he was arrestable, he could be armed and dangerous, and that one of the vehicles associated with the Premises was a particular black Ford Thunderbird. [ 13 ] It is important to note here that as a result of a serious motor vehicle accident in September 2004, Mr.

Moonie was thrown from his motorcycle and rendered a paraplegic, paralyzed up to the T3 vertebrae in his chest. He uses a wheelchair for mobility. As a result of his paraplegia, he relies upon a number of medications to deal with his ongoing pain, including medical marihuana for overall pain alleviation. [ 14 ] As a result of his injuries, Mr. Moonie is very susceptible to the cold, he needs to urinate frequently, and when he does need to do so, he must do so very quickly, otherwise he experiences a significant degree of discomfort. Mr.

Moonie also needs a catheter to urinate and a number of medical or bathroom supplies and aids when he has to have a bowel movement. [ 15 ] From the outset of the investigation, and in preparation for the execution of the search warrant, the officers were aware that Mr. Moonie was a paraplegic who relied upon a wheelchair for mobility. Despite this knowledge, it appears that no one involved in this investigation in the APD turned their mind to how they would deal with this circumstance for the purposes of effecting a roadside arrest on a wintery November day and further holding Mr.

Moonie in the APD cells. [ 16 ] At 17:45 hours, the surveillance officers observed the Thunderbird leave the Premises but were unable to ascertain who was driving. Constable Moore, Constable Scott, and Constable Young, all driving separate unmarked police vehicles, started to follow the Thunderbird. [ 17 ] At 17:55 hours, Constable Scott activated the emergency lights in his unmarked police vehicle, and Constable Moore and Constable Scott effected a "Code 5 Take Down," which is an arrest at gunpoint. Mr. Moonie was arrested and taken into custody.

He was difficult, rude, demanding, and belligerent with the officers who arrested him. He was eventually transported to the APD detachment and booked into cells at about 19:25 hours but only after he spent at least 40 minutes outside exposed to the elements of the cold weather. [ 18 ] Mr. Moonie complained about being cold at roadside, but the arresting officers did nothing to try to accommodate his needs, such as putting him in one of their unmarked vehicles or permitting him to remain in the back of his own vehicle. Mr.

Moonie may have been wearing a jacket and pants and in possession of a toque, but there was snow on the ground and the weather was sufficiently cold to cause the officers to seek refuge in their vehicles from time to time while they awaited the arrival of a patrol vehicle to transport Mr. Moonie back to the detachment. Furthermore, although Mr. Moonie was exceedingly difficult, demanding and rude in terms of his need to urinate while at roadside, the officers failed to make any sort of accommodation at roadside to respond to Mr. Moonie's needs. B. The s. 10(

b) Breach [ 19 ] Mr. Moonie was formally advised of his right to counsel by Constable Young at 18:04 hours while at roadside. He indicated he wished to call a lawyer but was told by Constable Young that it was not practical for him to do so at roadside and that he would have to wait until he arrived at the detachment. Mr. Moonie was able to contact counsel at 19:12 hours once he arrived at the APD detachment. I found that the delay in facilitating Mr. Moonie's contact with counsel in the circumstances of this case constituted a breach of his s. 10(

b) rights: see paras. 224-237 of my May 14, 2012, ruling. [ 20 ] Significantly, however, no effort was made to elicit any sort of statement from Mr. Moonie during his roadside detention and so no evidence was obtained as a result of that breach. C. The Search of the Premises

[ 21 ] Before turning to the conditions of Mr. Moonie's detention at the APD detachment cells, I will briefly summarize the results of the search of the Premises so that there is a complete understanding as to what was seized and the extent of the s. 8 Charter breach that I found in respect of how the search was conducted. [ 22 ] Constable Young obtained a CDSA search warrant to search the Premises. I found no breach of s. 8 of the Charter insofar as the validity of the search warrant was concerned.

Consequently, the search of the Premises was conducted pursuant to a valid warrant. [ 23 ] Initial entry to the property occurred at 19:20 hours by the MIERT team charged with securing the Premises. A MIERT team entered the residence at 19:40 hours. By 20:39 hours, MIERT had secured the premises in its entirety, and it was handed over to the APD investigators at that time.

The search of the Premises started thereafter and concluded in the early morning hours of November 28, 2007. [ 24 ] As a result of the execution of the valid search warrant, the officers located a marihuana grow operation in the large barn on the Premises and a number of other items, including firearms and harvested marihuana, inside the residence that Mr. Moonie occupied. Included in the items seized that Mr. Moonie seeks to have excluded are the following: Seized from a large barn at the Premises: • 850 healthy marihuana plants; and • lights, ballasts, relays, CO 2 generator.

Seized from the residence: • a loaded 9mm semiautomatic pistol; • a loaded .22 calibre handgun; • a loaded rifle; • financial documents associating a certain name to the address of 29038 Marsh McCormick Road; • credit cards; • prescription medications with labels; • photos; • a garbage can containing 14 kilograms of marihuana bud; • a bag containing 126 grams of marihuana; • a bag containing 361 grams of marihuana; • 15 healthy marihuana plants; and • lights, ballasts, timer boards, and a CO 2 generator. [ 25 ] As I noted at para. 223 of the earlier ruling, counsel for Mr.

Moonie conceded at the voir dire that if the arrest of Mr. Moonie was found to be lawful, then the search of his person and vehicle incident to that arrest was lawful. This further search produced a set of keys and 235 grams of marihuana. [ 26 ] I found a limited breach of Mr. Moonie's s. 8 Charter rights in the manner of how the search was conducted as it related to the state in which the officers left Mr. Moonie's residence at the conclusion of the search of the Premises. The residence was left in a state of considerable disarray.

At the time of the execution of the search warrant, it was not in a pristine and tidy condition, a fact acknowledged by Mr. Moonie. Indeed, I found the residence to be messy, dirty, and in disarray when the officers arrived to execute the warrant: see para. 277 of my May 14 ruling.

However, I found that the manner in which the officers left the living room, with materials from the bookshelf dumped on the floor, speakers pulled out from the television, and a painting off the wall, as well as the manner in which the mattress in the spare bedroom was left dumped on the floor, amounted, in the particular circumstances of Mr. Moonie's physical disability, to excessive and unreasonable conduct in the manner of the search and thus a violation of Mr.

Moonie's s. 8 Charter rights. [ 27 ] The evidence of the various illicit items were found and seized pursuant to a valid search warrant and thus the evidence, some of which was secreted in closets and drawers, was non-conscriptive evidence that was discoverable in any event and properly seized pursuant to the warrant. The s. 8 violation in respect of the manner of the search did not result in the obtaining of any otherwise undiscoverable evidence; in other words, the evidence is not characterized as derivative evidence. D. The Conditions of Mr. Moonie's Overall Detention by the APD [ 28 ] Following Mr.

Moonie's arrest, he was left to sit outside exposed to sub-zero temperatures for at least 40 minutes. He was wearing a jacket and pants and had a toque with him, although the evidence is silent as to whether he was wearing it. Mr. Moonie complained to Constable Young about being cold and that he was susceptible to the cold given his physical condition. Nothing was done to shelter Mr. Moonie from the cold; he was simply left at roadside to await the police vehicle to transport him. While at the roadside, Mr. Moonie told the officers he needed to urinate, but the officers would not let him. Mr.

Moonie's demands that the officers assist him with the use of his catheter were unreasonable, but the officers' failure to permit Mr. Moonie to use his catheter was equally unreasonable in the circumstances.

[ 29 ] Once transported to the APD detachment lockup and booked into cells, Mr. Moonie's wheelchair and transfer board were confiscated. Despite asking to contact his father to obtain his bathroom supplies, Mr. Moonie was not allowed to do so. He never received his bathroom supplies, despite warning a jail guard, Don Scott, at 21:35 hours on November 27, that he needed to have a bowel movement. Mr. Scott acknowledged in his prisoner log notes, "We have nothing for this". [ 30 ] Between approximately 01:55 hours and 02:30 hours on November 28, 2007, Constable Young attended in cells and released Mr.

Moonie on a promise to appear on the charges before the Court. At that time, Mr. Moonie complained to Constable Young about a variety of things, including a need to use the toilet. Nothing was done. [ 31 ] Despite being released on a promise to appear for the charges before the Court, Mr. Moonie remained in custody in the cells of the APD on an outstanding warrant from Vancouver.

He was to appear in court on those charges later in the morning of November 28, 2007. [ 32 ] Sometime after being issued a promise to appear on the charges before the court and receiving some medication from a guard at 04:30 hours, but before the guard's attendance at the cell to prepare him for transport to court at 8:55 hours on November 28, Mr. Moonie soiled himself as he was unable to access the toilet in his cell. Understandably, he was deeply frustrated and humiliated by that experience.

The frustration and humiliation no doubt deepened when the APD was unable to provide him with any clean clothes or to allow him to access the same before his appearance in court. As well, the APD had no wheelchair to assist in the movement of Mr. Moonie, nor did they provide him with his own wheelchair to try and move him to the vehicle loading bay for transport to court. Instead, he had to suffer the further indignity of being placed in a regular office chair with rolling casters or wheels to move him from the cells to the vehicle loading bay. [ 33 ] Mr.

Moonie was detained in the APD cells from shortly after 19:00 hours on November 27, when he arrived at the detachment with Constable Maniwa, until he was finally transported to court on the outstanding Vancouver warrant at about 10:50 hours on November 28. His overall time of detention would actually have commenced when he was arrested at roadside at 17:55 hours on November 27.

Although he was released on a promise to appear for the charges before the court by Constable Young sometime between 1:55 hours and 2:30 hours on November 28, he remained in the care and custody of the APD until he was transported to court later in the morning of November 28. In total, Mr. Moonie was in the care and custody of the APD for approximately 17 hours. [ 34 ] When Mr. Moonie arrived at the detachment, he was permitted to speak to his lawyer and did so between 19:12 and 19:16 hours. Thereafter, he went through the booking in process and was placed in a cell at about 19:25 hours.

His jacket, toque, and shoes were placed with his personal effects and so he was clothed in a t-shirt and track pants. I accepted Mr. Moonie's evidence that he was very cold from his prolonged exposure to the sub-zero temperatures while he remained outdoors at the side of 272nd Street waiting to be transported by Constable Maniwa. I further accepted that despite his request for more blankets because he was cold, Mr. Moonie was only provided the one blanket while in cells. [ 35 ] Mr.

Moonie's wheelchair and transfer board were taken away from him when he was placed in the cell, and he was simply left on the bed in the cell to fend for himself. He could not access the toilet on his own and was never given an opportunity to contact his father, despite a request to Constable Young at roadside and another request when he was booked into cells, so that he could obtain the various bathroom supplies, such as a raised toilet seat, gloves, and other items needed to facilitate his having a bowel movement. [ 36 ] Mr. Moonie did receive the catheter from his effects and repeatedly used the same catheter.

I concluded it was reasonable to infer in the circumstances that Mr. Moonie only had the one catheter in the cell with him that he used repeatedly through his detention. [ 37 ] I also accepted Mr. Moonie's evidence that when he was in cells he only had a Styrofoam cup to empty his catheter into, and that because he could not access the toilet he was left, while confined to his cell bed, with having to throw his urine from the cup towards the toilet area in an effort to empty it. I did not find this to be

an act of defiance or anger. Rather, it was the only thing he could do given the fact his wheelchair had been taken away from him, thus leaving him with no way to toilet himself and no other accommodations having been made for his physical disabilities and unique needs. [ 38 ] Significantly, and troubling to the court, was a guard's notation in the prisoner log at 21:35 hours that Mr. Moonie advised that “he needed to have a bowel movement”. The jail guard consulted with another jail guard and then noted, "We have nothing for this". Surprisingly, nothing was done to accommodate Mr.

Moonie's request and he was not permitted to contact his father to obtain the bathroom supplies he needed. [ 39 ] When Constable Young finished his involvement in the search of the premises he returned to the detachment and, sometime between 01:55 and 02:30 hours on November 28, released Mr. Moonie on the Abbotsford charges on a promise to appear. He was aware Mr. Moonie was still being held in custody on an outstanding warrant from Vancouver but he did not serve that arrest warrant on him. [ 40 ] Constable Young recalled that during his meeting with Mr. Moonie in cells, Mr.

Moonie complained about a number of things, including that he was still upset about the catheter issue and still needing medication as he was in pain. He did not recall anything more specific such as Mr. Moonie complaining he was cold, that he needed his bathroom supplies, or that he had nothing to empty his catheter into. Constable Young made no notes of this conversation with Mr. Moonie in cells, and his memory was not of much assistance on this aspect of his involvement with Mr. Moonie.

I found that Constable Young's inability to recall the specifics of the conversation did not mean the conversation did not occur. [ 41 ] Constable Young recalled that Mr. Moonie told him that he needed to go to the toilet while he was with him in cells but had no recollection of the details of the conversation. It is apparent that Constable Young did nothing about this request or any of the other complaints made by Mr. Moonie and did not attempt to facilitate an accommodation of Mr. Moonie's needs and circumstances. [ 42 ] Sometime after Mr.

Moonie was provided his second set of medication at 04:30 hours, but before Sergeant Michael Bond attended in cells to prepare Mr. Moonie for transport to court at 08:55 hours on November 28, Mr. Moonie soiled himself. Mr. Moonie's recollection of the time was that it was about 05:00 hours, although his memory for the detailed specifics of the time was far from clear. I found that Mr. Moonie's bathroom accident occurred sometime after 04:30 hours and before 08:55 hours.

[43] Sergeant Bond recalled that when he went in to prepare Mr. Moonie for transport to court at 08:55 hours, Mr. Moonie advisedhim that he had had a bathroom accident during the night and that he had soiled the mattress on the cell bed. Although Mr. Moonierequested some clean clothes, Sergeant Bond was unable to provide him with any as the jail did not keep spare clothing. Sergeant Bondrecalled Mr. Moonie being very upset and embarrassed about the situation. I fully accepted that evidence and Mr. Moonie's ownevidence on this point. [44] I was not prepared to find that Mr.

Moonie sustained a bladder infection as a result of having to reuse the same catheter whiledetained at APD, but I accept that a fresh, unused catheter is the preferred sanitary and healthy approach to be practiced. [45] I also found that the indignity that Mr. Moonie suffered in terms of his detention and denial of access to proper toilet facilitiesand the necessary bathroom supplies while in the APD cells was further compounded by the insensitive manner of attempting to movehim from cells to the Sheriff's van for transport to court at 08:55 hours on November 28. Mr.

Moonie, still dressed in his soiled clothing,was not given access to his wheelchair and instead, as Sergeant Bond testified, was placed in a regular office chair with wheels on it androlled to the loading bay where a sheriff's van awaited to transport him to court. As there was no ramp available, the officers had to try tolift Mr. Moonie into the back of the van but were unable to do so. Consequently, Mr.

Moonie was wheeled back to cells at 09:10 hours.His wheelchair was returned to him later in the morning, and he was transported to court at 10:50 hours in an APD patrol vehicle. [46] The most significant breach of Mr. Moonie's Charter rights was the continuing breach of his s. 7 right to liberty and security ofthe person by the APD in their failure to keep Mr.

Moonie detained in a secure, safe, and sanitary condition by ignoring his complaints ofbeing cold and his requests for his medical and bathroom supplies. [47] The breach started at roadside following his arrest at 17:55 hours with his unnecessary exposure to the sub-zero temperatureswhile he was left to wait at least 40 minutes outdoors to be transported to the APD detachment.

The breach continued through until Mr.Moonie was transported to the courthouse for a bail hearing at 10:55 hours the next morning. [48] Indeed, it would not be incorrect to note that the actual genesis of the s. 7 breach started earlier than Mr. Moonie's arrest withthe absolute failure of the APD officers involved in the obtaining and planning for the execution of the search warrant to even turn theirminds to how they would deal with a physically disabled man if he were arrested. Moreover, the overall s. 7 breach continued for the 17hours Mr.

Moonie remained in the care and control of the APD through their continuing failure to accommodate a physically disabledman in light of his repeated warnings of being cold and needing to go to the bathroom. [49] I found the circumstances of the s. 7 breach to be inexcusable as the continuing breach deprived Mr. Moonie, a vulnerableprisoner dependent upon the APD officers, of the most basic of human needs: shelter from the elements when initially arrested and theability to properly toilet himself while in cells. The treatment Mr.

Moonie experienced while in the custody of the APD fell not onlybelow general community standards of decency, but it also reflects treatment that denied Mr. Moonie any modicum of respect for hisinherent dignity and value as a human being. III. Issues and positions of the parties [50] Mr. Moonie contends that the evidence seized pursuant to the execution of the search warrant ought to be excluded under s.24(2) of the Charter, arguing that the evidence was obtained in a manner that infringed or denied his Charter rights.

The defenceconcedes there is no causal connection between the evidence obtained in the various breaches of Mr. Moonie's Charter rights. However,citing R. v. Wittwer, 2008 SCC 33 at para. 21, Mr. Moonie argues that the temporal connection and the contextual connection betweenthe breaches, particularly the ss. 7 and 8 breaches which have a discriminatory overtone, are sufficient to mandate the exclusion of theevidence under s. 24(2) of the Charter. [51] In the alternative, if no remedy is to be granted under s. 24(2) of the Charter, Mr.

Moonie argues that a judicial stay ofproceedings ought to be entered on all charges on the Indictment as the breaches, particularly the ss. 7 and 8 breaches, would causeirreparable prejudice to the integrity of the judicial system if the prosecution were continued. The defence relies upon the residualcategory of s. 7 breaches referred to in R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411, while at the same time concedingthat the trial fairness branch of the abuse of process doctrine subsumed in s. 7 is not engaged in this case. [52] In response, the Crown argues there is no causal connection between any of the breaches and any of the evidence obtained inthis case.

The temporal relationship between the breaches and the obtaining of the evidence is not as strong as the defence argues it is.Moreover, because the APD has made changes to the cells area in the detachment with the introduction of a wheelchair and ramp topermit prisoners with disabilities to be treated in a more dignified manner, it is not necessary for the court to distance itself from thetotality of the breaches by excluding the evidence.

The Crown argues that because the evidence seized is real evidence, was obtained asa result of the execution of the valid search warrant, and was discoverable notwithstanding the breaches, these factors militate in favourof admitting the evidence, thus promoting the interests of society in an adjudication of the charges on their merits.

The Crown'ssubmission would have the court dismiss the application for remedial exclusion under s. 24(2) of the Charter. [53] The Crown agrees with the defence that the s. 24(1) analysis in this case must proceed under the residual category of s. 7,assessing the impact of the breaches on the integrity of the administration of justice. The Crown acknowledges that Mr. Moonie wastreated in an entirely unsatisfactory manner while detained at the APD detachment cells. The Crown argues that although Mr. Mooniemay have been treated "shabbily", he was not physically harmed or in medical distress.

The Crown submits that the abuse is not likely tocontinue or be carried forward and that proceeding with the trial will not "undermine the integrity of the judicial process". Accordingly,the Crown submits that the threshold for a judicial stay of proceedings has not been met by the defence and that the application for suchrelief pursuant to s. 24(1) of the Charter should also be dismissed. IV. Relevant statutory provisions

[54] The relevant legislative provisions engaged on this aspect of the voir dire are ss. 24(1) and (2) of the Charter. For ease ofreference, these provisions are as follows: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) 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. V.

Analysis [55] Where an accused seeks both exclusion of evidence under s. 24(2) of the Charter and alternative relief in the form of a judicialstay of proceedings pursuant to s. 24(1) of the Charter, the preferred approach is for the court to consider the "lesser remedy" under s.24(2) first: R. v. Basi, 2009 BCSC 1685 at paragraph 36. A. Should the Evidence Seized in this Case be excluded under s. 24(2) of theCharter? [56] Mr. Moonie argues that the temporal and contextual connection between the breaches of his ss. 7, 8, and 10(

b) Charter rightsmilitate in favour of exclusion of the evidence. The most serious aspect of the Charter breaches, he argues, is the humiliating anddegrading treatment he experienced at the hands of the APD while in their care and control and which led to a continuing breach of his s.7 rights. Weighing the three factors as mandated by the Supreme Court of Canada in R. v.

Grant, 2009 SCC 32, and conducting theappropriate balancing of the factors should, in his submission, cause the court to conclude that the evidence ought to be excluded. [57] The Crown argues that the evidence should be admitted and notes that there is no causal connection between the breaches andthe evidence seized; that the evidence was obtained pursuant to a valid search warrant; that the evidence would have been discovered andseized even if no one was present at the Premises; and that when all the various factors are properly balanced, the admission of theevidence will not bring the administration of justice into disrepute. [58] The onus is on Mr.

Moonie to establish on a balance of probabilities that the evidence ought to be excluded under s. 24(2) of theCharter: R. v. Feldman (1994), (BC CA), 42 B.C.A.C. 31 at para. 21; R. v. Lauriente, 2010 BCCA 72 at para. 6. [59] The legal principles that govern whether evidence should be excluded under s. 24(2) of the Charter were reformulated from theCollins/Stillman factors by the Supreme Court of Canada in Grant and in R. v.

Harrison, 2009 SCC 34. [60] Chief Justice McLachlin and Madam Justice Charron J. for the majority in Grant stated at paras. 60 and 67 that although thetest under s. 24(2) of the Charter is "broad and imprecise", the "words of s. 24(2) capture its purpose: to maintain the good repute of theadministration of justice." Section 24(2), the majority explained, "is not aimed at punishing the police or providing compensation to theaccused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term reputeof the justice system": see para. 70. In R. v.

Morelli, 2010 SCC 8 at para. 102, Fish J. for the majority stressed that "[t]he repute of theadministration of justice is jeopardized by judicial indifference to unacceptable police conduct." [61] The court in Grant said that fundamentally, s. 24(2) protects the justice system's overall and long-term repute.

The s. 24(2)inquiry is an objective one and it asks whether a reasonable person informed of all the relevant circumstances and informed of the valuesunderlying the Charter would conclude that the admission of the evidence in issue would bring the administration of justice intodisrepute. [62] As the majority wrote in Grant at para. 71: [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute.

These concerns, while not precisely tracking the categories of considerations setout in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [63] The revised analytical framework for the application of s. 24(2) thus rests on the assessment of the public interests that areengaged by s. 24(2) as those interests are viewed in a long-term perspective.

It engages three avenues of inquiry concerning: i. the seriousness of the Charter-infringing state conduct; ii. the impact of the breach on the Charter-protected interests of the accused; and iii. society's interest in an adjudication of the case on its merits. [64] A court applying s. 24(2) will balance the assessments in relation to each of these lines of inquiry in order to determine whether

evidence obtained in a manner that infringes Charter rights will nonetheless be admitted. [65] Two of the inquires focus squarely on the seriousness of the violation or violations. The first line of inquiry looks at theseriousness of the violations from the perspective of endeavouring to measure the seriousness of the state misconduct and the impactupon public confidence in the justice system. The second line of inquiry looks at the violations from the point of view of the accused andthe impact of them on the protected interests of the accused.

The third and final line of inquiry focuses on societal interests where anassessment of the reliability of the evidence will weigh heavily. [66] The jurisprudence since Grant has largely applied those principles. A succinct framework for the s. 24(2) analysis is containedin our Court of Appeal's decision in R. v. Reddy, 2010 BCCA 11, where Frankel, J.A. writing for the court, held: [91] The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, acourt must now assess and balance the effect of admitting the 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 seriousstate misconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individualrights count for little); and (3) society’s interest in the adjudication of the case on its merits.

See also: Harrison at para. 2 [92] With respect to the first factor—seriousness of the breach—the greater the level of state misconduct, the greater will be the needof the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to supportexclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75): “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However,ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with goodfaith: [citations omitted]. [93] As for the second factor—impact of the breach on the accused—it was observed that “[t]he impact of a Charter breach mayrange from fleeting and technical to profoundly intrusive”.

The more serious the impact is on the rights of the accused, the more likely itwill be that exclusion is warranted: paras. 76, 77. [94] The last factor—society’s interest in a decision on the merits—involves the question of “whether the truth seeking function of thecriminal trial process would be better served by admission of the evidence, or by its exclusion”: para. 79. The reliability of the evidenceis an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although “seriousness of theoffence” remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on thelong-term implication for the repute of the administration of justice, and not the public’s short-term desire for a conviction: para. 84. [67] Where there are multiple Charter breaches, the cumulative effect of the breaches may or may not warrant the exclusion of theevidence under s. 24(2).

It is all a question of balancing the inquiries in light of the circumstances of the case and determining whetherthe admission of the evidence in the face of multiple breaches would bring the administration of justice into disrepute: R. v. Trieu, 2010BCCA 540 at paras. 90-98. [68] With those principles and observations in mind, I turn to the s. 24(2) analysis mandated by Grant and a consideration of theeffect on the administration of justice.

However, before addressing the three inquiries under Grant and the final balancing of theinquiries, a threshold question arises: whether there is a nexus between the evidence seized and the Charter breaches in this case. 1. Was the Evidence “Obtained in a Manner” that Infringed the Accused's Charter Rights? [69] Since the Supreme Court of Canada decision in R. v. Strachan, (SCC), [1988] 2 S.C.R. 980, the jurisprudencehas rejected a "causation" requirement between the breach of Charter rights and the discovery and seizure of evidence.

Instead, the firststep or threshold question in the s. 24(2) analysis is to determine whether a Charter violation occurred in the course of obtaining theevidence. The connection between the breach and the evidence may be "temporal, contextual, causal or a combination of the three":Wittwer at para. 21, citing R. v. Plaha (2004), (ON CA), 189 O.A.C. 376 at para. 45.

So long as there is a temporallink between the infringement of the Charter and the discovery of the evidence that is not too remote but occurred in the course of asingle transaction, that will be sufficient to clear the threshold test of the s. 24(2) inquiry. On the other hand, a tenuous or remoteconnection will not suffice: Strachan at paras. 46-48; R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463 at para. 40; andWittwer at para. 21. [70] In the case at bar, the breach of the s. 10(

b) right to counsel did not result in the obtaining of evidence from Mr. Moonie and sothis breach on its own would likely be considered remote and tenuous. However, it is not the only breach of Mr. Moonie's Charter rights.Moreover, it occurred in the context of one single transaction that started with Mr. Moonie's arrest and continued through the search ofthe premises and his 17 hour detention in less than desirable conditions. [71] The s. 8 breach was also a limited violation of his Charter rights and did not result in the obtaining of otherwise undiscoverableevidence.

However, the manner of the search and the state in which the residence was left is integrally linked to the execution of thesearch warrant which yielded the evidence in question. The contextual link is therefore very significant. The temporal connection isobvious and irrefutably strong. While this breach might be characterized as relatively minor, it was not the only breach and, moreover,the significance or seriousness of the impact of the breach is properly analyzed at the second stage of the s. 24(2) analysis.

[ 72 ] The s. 7 breach and the treatment afforded Mr. Moonie during the entirety of his detention is another matter altogether; the absence of any consideration of his needs over the 17 hour period is shocking and, as I noted before, inexcusable. There does not need to be a causal connection. The temporal connection between the breach of Mr.

Moonie's s. 7 rights, starting as it did at roadside with the arrest and unnecessary exposure to the elements, continued through the duration of the search and, as such, is all part of the same single, ongoing transaction and an overall course of conduct engaged in by the APD. [ 73 ] Contemporaneous with the search of the Premises, which started sometime after the APD were handed control of it at 20:39 hours, Mr. Moonie warned one of the jail guards at about 21:35 hours that he needed to have a bowel movement. Earlier, he had asked to have his bathroom supplies brought to him. Nothing was done to help Mr.

Moonie address this most basic of human needs. The search continued. Mr. Moonie's request to Constable Young that he needed to use the toilet between 01:55 and 02:30 hours appears to have fallen on deaf ears. [ 74 ] Adopting the approach suggested in Strachan of focusing on the entire chain of events during which the Charter violations occurred and the evidence was obtained, there is a strong temporal and contextual connection between the events.

Prior to even moving to execute the search warrant, the police failed to turn their minds to how they would deal with a wheelchair-bound suspect if they encountered him while executing the search warrant. In my view, the s. 8 breach is sufficient to clear the threshold requirement that the evidence was "obtained in a manner" that infringed Mr. Moonie's Charter rights.

However, when viewed in light of the entire chain of events, I have no trouble concluding that the breaches in this case satisfy the threshold test. [ 75 ] I therefore turn to consider the three inquiries and the balancing exercise mandated by the jurisprudence. 2.

Seriousness of the Charter -Infringing State Conduct [ 76 ] This inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message to the public that the courts "effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct": Grant at para. 72. [ 77 ] It follows that the more severe or deliberate the state conduct that led to the breach, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in, and ensure state adherence to, the rule of law: Grant at paras. 72- 74.

This inquiry is not concerned with the impact of the state conduct on a particular accused whose rights were infringed. Instead, it focuses on the damage to the repute of the administration of justice if the state is not held to account for unlawful conduct. [ 78 ] The first inquiry's dual focus on condemnation and upholding the rule of law requires the court to distinguish between conduct that is inadvertent or represents a trivial departure from the requirements of the law, and conduct that is a deliberate flouting of the law - conduct at opposite ends of the seriousness spectrum.

The court is required to assess the seriousness of the conduct at issue to determine where it falls on the continuum. [ 79 ] The Crown acknowledges that the ss. 7 and 10(

b) breaches were serious and that the s. 8 breach was of a low degree of seriousness. I do not disagree. However, the s. 8 breach, when considered in light of the overall s. 7 breach that continued for 17 hours, takes on a greater element of seriousness when viewed in light of the vulnerabilities that Mr. Moonie possesses. They are vulnerabilities that the police were aware of before they even moved to execute the search warrant, and vulnerabilities that the police failed to even consider and plan for in their execution of the search warrant and likely arrest of Mr.

Moonie. [ 80 ] The s. 7 breach, while not deliberate, can be characterized as a demonstration of significant negligence bordering on recklessness in a context that required a much higher standard of care on the part of the APD. There is a complete absence of good faith in how Mr. Moonie was treated over a number of hours. [ 81 ] The s. 7 breach is very serious, indeed egregious. The conduct underlying the breach began shortly after the time of his arrest at 17:55 hours and continued through his entire detention within the APD cells.

I find it is not a countervailing factor that takes away from the seriousness of the breach of Mr. Moonie's s. 7 rights that he had been released on the Abbotsford charges. He was in the custody of the APD on their charges when he raised the issue of needing to have a bowel movement at 21:35 hours. The guards did nothing to attempt to remedy the situation or accommodate Mr. Moonie. More significantly, Mr. Moonie raised the issue again with Constable Young at 01:55 hours when he was released on a promise to appear on those charges but remained in the custody of the APD on the Vancouver charges. The fact that Mr.

Moonie soiled himself while detained on the Vancouver charges is irrelevant. He brought the issue to the attention of APD personnel, the guards and the lead investigating officer while he was detained on the charges he currently faces. The APD completely failed to do anything or make any sort of accommodation. [ 82 ] Insofar as the s. 7 breach is concerned, the conduct of the APD officers and guards collectively included the following:

a) the failure of the police to let Mr. Moonie warm up at the roadside in cold temperatures despite his alerting Constable Young to his being cold and being susceptible to the cold;

b) the failure of the police to allow Mr. Moonie to urinate while he was at the side of the road waiting for police transport given the unlikelihood of flight in light of two armed officers being with him;

c) the failure of the police to take steps both at the roadside and at the detachment to assist Mr. Moonie in obtaining medical and bathroom supplies from his father for his use while in custody;

d) the removal by the police at the APD detachment of Mr. Moonie's wheelchair and transfer board so that he was unable to toilet himself in cells and while providing no alternative equipment to accommodate his needs;

e) the provision of a used catheter to Mr. Moonie rather than a clean unit which could have been obtained had the police made efforts to contact Mr. Moonie's father or to obtain the medical supplies from his home;

f) the failure of the police to provide Mr. Moonie with an extra blanket despite his complaint of being cold and in light of his susceptibility to the cold because of his medical condition;

g) the failure of the police to provide Mr. Moonie with clean clothing or to obtain clean clothing once he had soiled himself; and

h) the movement of Mr. Moonie around the detachment in an office chair rather than a wheelchair. [ 83 ] The circumstances of Mr. Moonie's arrest and detention and the search of his home did not present extenuating circumstances such as urgency or the need to preserve evidence. Nor did the circumstances arise in a context of legal uncertainty or where the law was in a state of flux. Although the arrest started out as a Code 5 Take Down, once Mr.

Moonie was handcuffed, it became a routine roadside arrest, and had the officers of the APD turned their minds to the complications that a wheelchair-bound accused might present or have been at all sensitive to Mr. Moonie's warnings and requests, they could have completely avoided the breaches that occurred in this case. A lack of legal uncertainty and the absence of any extenuating circumstances, causes the violations, particularly when considered collectively, to be placed at the more serious end of the spectrum. [ 84 ] When the ss. 8, 7, and 10(

b) breaches are considered cumulatively and within the context of an obviously physically disabled accused, the overall cavalier disregard of Mr. Moonie's rights by the APD in this case establishes a persistent pattern of inattention that rises to the level of negligence bordering on recklessness. While I accept that the treatment afforded Mr. Moonie while in the custody and control of the APD was not deliberate or based on any malicious intent, the s. 7 breach on its own is very serious in this context. It lasted for hours and was not remedied when Mr.

Moonie brought the issues to the attention of the authorities on repeated occasions. [ 85 ] Considered in this context and coupled with what can be described as a collective disregard of Mr. Moonie's rights, this factor militates in favour of exclusion. 3. Impact of the Breaches on the Charter -Protected Interests of the Accused [ 86 ] This avenue of inquiry, the impact of the breaches on the Charter -protected interests of the accused, examines the impact of the Charter violations from the perspective of the accused. It also focuses on the important societal goal of taking Charter rights seriously.

As the majority in Grant noted: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [Emphasis added.] [ 87 ] The s. 8 right to be secure against unreasonable search and seizure, including the manner in which the search is conducted, is designed to protect privacy interests and human dignity. [ 88 ] The search in this case was pursuant to a valid search warrant.

Accordingly, the evidence would have been discovered in any event. Moreover, many of the items found were secreted in closets and drawers, and so it is not inconceivable that items might also have been hidden behind the books and DVDs on the shelving in the living room or under the mattress in the spare bedroom. [ 89 ] Nevertheless, the manner in which the search was conducted within Mr. Moonie's home was found to be unreasonable in relation to how the living room and spare bedroom were left for a wheelchair-bound individual.

To that end, although limited in duration and severity, the unreasonable aspect of the manner of the search nevertheless demeaned Mr. Moonie's dignity which elevates the seriousness of the impact of the breach beyond trivial and fleeting. This inquiry, focusing as it does on the actual impact of the violation on the accused's Charter -protected interests, must take account of the fact that where the manner of the search is unreasonable it may have a greater impact on a physically disabled person than an able-bodied person. While the limited breach of Mr.

Moonie's s. 8 Charter rights likely resulted in some inconvenience and difficulty to re-assemble his home, it also likely has a more significant psychological impact that demeans his human dignity. The police ought to be attuned to the fact that leaving a searched premises in a turned-over state will differentially impact on a wheelchair-bound inhabitant. The impact of the breach in this case is elevated in light of Mr. Moonie's circumstances. [ 90 ] The purpose of s. 10(

b) of the Charter , as noted in numerous authorities from all levels of court throughout this country, is to provide detainees with an opportunity to contact counsel to obtain legal advice on their rights and obligations when they find themselves in circumstances deprived of their liberty, in the control of the state, vulnerable to the exercise of the state's power, and in a position of potential legal jeopardy. The right to counsel as enshrined in s. 10(

b) of the Charter is the means by which detainees are provided an opportunity to mitigate their legal disadvantage: R. v. Willier , 2010 SCC 37 at para. 28 . [ 91 ] The s. 10(

b) breach of Mr. Moonie's right to counsel did not result in any evidence being obtained from him. The officers did not attempt to elicit any information from him during the roadside detention. The evidence seized from the Premises would have been seized in any event and was done so pursuant to a valid search warrant. As such, it can be said that the impact of the s. 10(

b) breach on the Charter protected interests of Mr. Moonie was at the lower end of the scale: R. v. Volk , 2010 SKCA 3 . [ 92 ] The overall purpose of s. 7 is to protect an individual's right to life, liberty, and security of the person and to ensure that an individual is not deprived thereof except in accordance with the principles of fundamental justice.

There is no constitutional challenge to legislation in this case, so the concepts of arbitrariness, overbreadth, or vagueness are not necessarily engaged. [ 93 ] However, this case raises the issue of how a physically disabled man was treated while in the custody and control of the state. The treatment afforded to Mr. Moonie, an obviously physically disabled man, who warned the authorities that he was susceptible to the cold, that he needed to urinate, that he needed his bathroom supplies, and that he actually had to have a bowel movement, can be

characterized as continuing neglect of gross proportions that negatively impacted both on his bodily integrity and human dignity. [94] Basic needs, such as shelter and the ability to have some measure of autonomy in fulfilling bodily functions, like being able totoilet oneself, fall within the parameters of the right to security of the person, which encompasses the notion of human dignity: R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30 at paragraph 229. [95] As defence counsel notes in his written argument at para. 48: The applicant was unreasonably denied control over his own bodily functions.

As a result, he suffered the indignity of soiling himself.He then was subjected to the further humiliation of being wheeled around the police detachment in an office chair. He was not providedwith clean clothing and was further humiliated by being taken to court in a filthy, unsanitary state. It is hard to imagine a moredemeaning experience at the hands of the police. [96] I agree. I found that as a result of the treatment afforded Mr. Moonie, he experienced both embarrassment and humiliation. [97] The Crown endeavours to diminish the seriousness of the impact of this breach by arguing two points: (

i) the impacts Mr.Moonie suffered were only physical discomfort and emotional distress, not physical injury or medical distress; and (ii) that by the timeMr. Moonie had soiled himself, he was released on the present charges, albeit he remained in the custody of the APD. While both thesepoints may be true, with respect, they do not diminish the severe impact of this aspect of the breach of Mr.

Moonie's s. 7 right to securityof the person. [98] It cannot be forgotten that the perspective of this line of inquiry encompasses not only the impact of the breach on the accusedbut also focuses on society's interest in respect for Charter rights. For many years, society and the courts, as the representative of societalinterests, have always considered the vulnerable, be it through age, physical or mental disability, to be deserving of special protection andaccommodations. The actual conditions experienced by Mr.

Moonie insofar as his treatment and the s. 7 breaches are concerned becomesintolerable in circumstances where the police were aware that he was physically disabled and did nothing to accommodate his needs. [99] Considered in this context, and coupled with what can be described as a collective disregard of Mr. Moonie's rights, the impactof the breaches on Mr. Moonie's Charter-protected interests was very significant and militates in favour of exclusion of the evidence. 4.

Society's Interest in an Adjudication on the Merits [100] The third line of inquiry under the Grant analysis focuses on the reliability of the evidence. The inquiry mandates that the courtmust determine whether the truth-seeking function of the criminal trial process is better served by the admission of the evidence or by itsexclusion: see Grant at para. 79. [101] It is important to bear in mind that the evidence sought to be excluded is reliable evidence seized pursuant to a valid searchwarrant and would have been discovered even if Mr. Moonie had not been arrested or detained in the APD cells.

This militates in favourof admission of the evidence: R. v. Whitaker, 2008 BCCA 174 at para. 73; R. v. Perjalian, 2011 BCCA 323 at para. 66. [102] The defence concedes that the evidence seized is reliable evidence and that its exclusion would eviscerate the Crown's case.Moreover, the charges Mr. Moonie faces are very serious and include firearms offences which society has a significant interest in seeingdetermined on their merits. This, however, as the majority in Grant at paragraph 84 notes, has the "potential to cut both ways”.

AsMcLachlin C.J. and Charron J. noted in Grant: [84] … The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-termrepute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits wherethe offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penalstakes for the accused are high. [103] In R. v.

Phengchanh, 2011 BCSC 484, Romilly J. addressed the tension between the seriousness of the offence, particularlywhere firearms are involved, and the exclusion of reliable evidence, stating: [55] The British Columbia Court of Appeal, in R. v. Wong, 2010 BCCA 160 at para. 18, indicated that the “[s]eriousness of the crime,while still a relevant consideration, is perhaps of a lesser weight in the analytical exercise now to be performed under s. 24(2).” In somecases, the seriousness of the offence is found to be a “neutral” factor. See, for example: R. v.

Martin, 2010 NBCA 41 at para. 96, leaveto appeal ref’d [2010] S.C.C.A. No. 302. [56] In numerous recent decisions, the courts have stated that criminal conduct involving the use of firearms, especially handguns(like the one seized here), is a serious and growing societal danger and, absent a flagrant Charter breach, the exclusion of firearms has agreater negative impact on the administration of justice than admitting them. See: R. v. Grant (2006), (ON CA), 81O.R. (3d) 1, 209 C.C.C. (3d) 250 (C.A.) at para. 66, varied 2009 SCC 32, but not on this point; R. v. (Wendell) Grant, 2007 ONCA 26 atpara. 8; R. v.

L.B. (2007), 2007 ONCA 596 , 86 O.R. (3d) 730, 227 C.C.C. (3d) 70 (C.A.) at paras. 80-82; R. v. Mohamed,[2008] O.J. No. 3145 (S.C.J.) at para. 130; and R. v. Bellamy, [2008] O.J. No. 2138 (S.C.J.) at para. 91. However, also see: R. v. Peters,2006 BCSC 1560; Reddy; and Caron.

However, notwithstanding the fact that the items seized here included a gun and ammunition, thepossession of which are serious offences, the public also expects those engaged in law enforcement to respect the rights and freedoms weall enjoy by acting within the limits of their lawful authority. [104] While the case before me does not involve circumstances like those in Phengchanh where officers acted outside the parametersof lawful authority by embarking upon an unauthorized search of a vehicle, the case at bar does involve the APD failing to protect thehuman dignity and personal security of a vulnerable detainee in circumstances where the totality of the conduct amounts to a flagrantbreach of Mr.

Moonie's s. 7 rights. [105] In R. v. Thompson, 2013 ONSC 1527, Hill J. addressed the societal interest factor in the context of firearms-related offences in

the following manner: 196 While undoubtedly "society has a strong interest in an adjudication on the merits of ... serious offences involving a loadedhandgun" (R. v. Bashir, 2012 ONCA 793, at para. 7; R. v. Campbell, 2012 ONCA 394, at para. 18; R. v. L.B. (2007), 2007 ONCA 596, 227 C.C.C. (3d) 70 (Ont. C.A.), at paras. 79-82), "[n]ot unlike the considerations under the first and second [Grant ] inquiries,the considerations under this third inquiry must not be permitted to overwhelm the section 24(2) analysis": R. v. Cole (2012), 2012 SCC53 , 290 C.C.C. (3d) 247 (S.C.C.), at para. 95.

Accordingly, while "trends" may emerge over time respecting the admission ofunconstitutionally seized firearms, there is no interpretive presumption, divorced from the facts of a particular case, mandatingadmission. Indeed, our history of case-by-case balancing reflects instances of exclusion of firearms: see, for example, Dhillon, at para.75; R. v. Caron (2011), 2011 BCCA 56 , 269 C.C.C. (3d) 15 (B.C.C.A.), at paras. 66-8; R. v. Reddy (2010), 2010 BCCA 11, 251 C.C.C. (3d) 151 (B.C.C.A.), at para. 107; R. v.

Batzer (2005), (ON CA), 200 C.C.C. (3d) 330 (Ont.C.A.), at paras. 22-4. [106] In the end, the highly reliable nature of the evidence that is essential to the Crown's case and would have been validly seizednotwithstanding the numerous breaches, weighs strongly in favour of admission of the evidence on this third line of the Grant inquiry. 5. Balancing the Three Lines of Inquiry from Grant [107] The final stage of the s. 24(2) analysis involves a balancing of the various factors as analyzed under the three inquiries.

As theSupreme Court of Canada noted in Harrison at para. 36: [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply aquestion of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry mustbe weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring theadministration of justice into disrepute.

Dissociation of the justice system from police misconduct does not always trump thetruth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administrationof justice that must be assessed. [108] I begin by summarizing my findings on the three factors in Grant. The most egregious facet of the police conduct in this casewas the overall s. 7 breach of Mr. Moonie's right to security of the person.

It was not fleeting, it was not transitory, and it was not trivial.It was insensitive, indeed inhumane, conduct borne out of negligence and the complete failure to respond to Mr. Moonie's requests foritems that he required to maintain control over his bodily functions. The Charter infringements had a very significant impact on theCharter-protected interests of Mr. Moonie. Both these factors strongly favour exclusion. [109] On the other hand, the search produced a vast body of non-conscriptive evidence.

The drugs and weapons seized constitutehighly reliable evidence tendered on very serious charges, albeit not one of the most serious known to our criminal law. This factorweighs in favour of admission. [110] In my view, when examined through the lens of the s. 24(2) analysis mandated by Grant and the final balancing exercisesexplained in Harrison, the police misconduct in this case was serious. Indeed, I found that, cumulatively, it represents a pattern ofpersistent inattention and a cavalier disregard of Charter rights. The s. 7 breach was a flagrant disregard of Mr. Moonie's security andhuman dignity.

To appear to have condoned such serious Charter breaches that constituted a significant and prolonged incursion on Mr.Moonie's s. 7 right to security of the person does not enhance the long-term repute of the administration of justice; on the contrary, itundermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factorspointing to exclusion.

While there is an immediate interest in having this case proceed to be determined on its merits, the balancingexercise leads me to conclude that the priority, having in view the long-term effects on the administration of justice, is for the justicesystem to dissociate itself from the unacceptable state conduct in this case. [111] Balancing the relevant considerations and findings, and having regard to the long-term interests of the administration of criminaljustice as opposed to exclusive focus on a single case, admission of the evidence seized pursuant to the search warrant would bring theadministration of justice into disrepute.

In other words, the price paid by society for an acquittal in the circumstances here is outweighedby the importance of maintaining Charter standards. Accordingly, the evidence seized will be excluded under s. 24(2). B. Should there be a Judicial Stay of Proceedings Pursuant to s. 24(1) of theCharter? [112] With the s. 24(2) finding excluding the evidence, it is not strictly necessary to decide the s. 24(1) Charter remedy raised on thisvoir dire. Nevertheless, for completeness, I will address the alternative application for a judicial stay of proceedings under s. 24(1) of theCharter.

My analysis here, of necessity, proceeds on the assumption that if I am incorrect in my conclusion on s. 24(2), then s. 24(1)may be engaged as a remedy of last resort. [113] In O'Connor, the Supreme Court of Canada accepted that resort to a judicial stay of proceedings was an appropriate remedyunder s. 24(1) of the Charter provided certain criteria were satisfied. [114] A judicial stay of proceedings is a drastic remedy reserved only for the clearest of cases. It is a remedy of last resort and thethreshold for entering a stay is very high: R. v. Hooites-Meursing, 2008 BCCA 264 at para. 18; R. v.

Basi, 2009 BCSC 1685 at paras. 31-38. Indeed, as MacKenzie J. (as she then was) noted in Basi: [30] The seminal authority with respect to abuse of process is R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411.L’Heureux-Dubé J., on behalf of a unanimous Court on this point, held that the common law doctrine of abuse of process was subsumedunder the principles of fundamental justice guaranteed by s. 7 of the Charter, except in rare cases where the Charter did not apply. Thus,in considering whether the judicial process has been abused, the analysis under the common law and the Charter now dovetail.

[31] The most drastic and “ultimate” remedy for an abuse of process is a stay of proceedings. It is appropriate only in the “clearest ofcases” where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudicewould be caused to the integrity of the judicial system if the prosecution were continued: O’Connor, at para. 82; R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128, at para. 25.

Whether the abuse of process occasions prejudice to the accused or to the integrity ofthe justice system, a stay of proceedings will only be appropriate when the following two criteria are met: a. The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, orby its outcome; and b. No other remedy is reasonably capable of removing that prejudice.

O’Connor, at para. 75. [32] Where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay, it will be appropriate forthe trial judge to consider a third criterion by balancing the interests that would be served by the granting of a stay against the interestthat society has in having a final decision on the merits: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 57. [115] In O'Connor, the Court recognized two different types of s. 7 breaches within the context of the abuse of process stay ofproceedings analysis: (

i) proceedings where s. 7 breaches affect the fairness of the trial; and (ii) the residual category, unrelated to trialfairness, which addresses state misconduct that contravenes fundamental notions of justice which undermines the integrity of the judicialprocess: O'Connor at paragraph 73; R. v. Zarinchang, 2010 ONCA 286 at para. 57; R. v. Fortune, 2012 BCSC 2031 at para. 117; andU.S.A. v.

Ranga, 2012 BCCA 81 at paras. 28-30. [116] Resort to the residual category of the abuse of process doctrine is designed to protect the integrity of the judicial process fromstate conduct that amounts to an affront to the community's basic sense of decency and fair play: R. v. Bains, 2010 BCCA 178 at paras.70-71. [117] The Ontario Court of Appeal decision in Zarinchang provides a succinct

summary of the traditional balancing of interests thatmust take place when a court is called upon to ascertain whether the abuse in issue is sufficient to warrant a stay of proceedings.Zarinchang was a Crown appeal of the decision of a trial judge to stay proceedings against an accused on the ground that the judicialsystem failed to provide the accused with a bail hearing for 24 days after his arrest on charges that stemmed from a dispute between theaccused and his girlfriend.

The Crown appeal was allowed, the Court of Appeal finding the trial judge failed to balance the interestsserved by granting a stay against the public interest in a trial on the merits. [118] In allowing the appeal, the Court wrote as follows: [57] From the above cases in the Supreme Court, the following principles emerge:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of anindividual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, butinvolves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must besatisfied: (

i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, orby its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious tocreate the prejudice to warrant a stay, there is a third criterion that the court may consider – the balancing of the interests in granting astay against society’s interest in having a trial on the merits. [58] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to inthe third criterion.

When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuingprejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system. [59] When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudiceto the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused wassubjected, continues.

In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays toprotect its integrity. [60] However, the “residual category” is not an opened-ended means for courts to address ongoing systemic problems. In some sense,an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stayof a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh theinterest in having the case decided on the merits?

In answering that question, a court will almost inevitably have to engage in the type ofbalancing exercise that is referred to in the third criterion.

It seems to us that a court will be required to look at the particulars of the case,the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of thecommunity in having the particular charges disposed of on the merits. [61] Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion inmost cases coming within the residual category.

[119] In the case at bar, the parties agree that the Charter violations that have been found do not fall within the trial fairness category,and that accordingly, the analysis of the issue occurs under the residual category of prejudice to the integrity of the judicial system. [120] With those principles in mind, I turn to their application to the factual matrix of this case. 1. Will the Prejudice Caused by the Abuse be Manifested, Perpetuated, or Aggravated through to theConduct of the Trial? [121] Mr.

Moonie has been released from the custody of the APD and therefore it is unlikely that he himself will continue toexperience the humiliation, embarrassment, and degrading and insensitive treatment that he experienced as a result of the APD's abusivetreatment of him while in their cells and in being transported to court in soiled clothing. It remains speculative as to whether Mr.

Mooniewould experience that type of treatment again if convicted and re-incarcerated. [122] However, in "exceptional" or "relatively very rare" cases, the past misconduct may be "so egregious that the mere fact of goingforward in light of it will be offensive": Ranga at para. 29, quoting from Canada v. Tobiass, (SCC), [1997] 3 S.C.R.391 at para. 91. [123] In this case, the Crown acknowledges that the treatment that Mr. Moonie experienced was unsatisfactory but says the breacheswill not be carried forward by continuing with the prosecution.

Although community expectations may not have been met in thetreatment afforded Mr. Moonie, argues the Crown, proceeding will not undermine the integrity of the judicial process. I must respectfullydisagree. [124] This is one of those exceptional cases where the past misconduct is so egregious that going forward in light of it would beoffensive. [125] I fully conveyed the extent and impact of the misconduct in my earlier discussion of the s. 7 breach. The affront to Mr. Moonie'shuman dignity was only compounded by the other breaches.

Rather than repeating my findings, I will simply adopt that discussion intothis analysis. [126] Needless to say, the course of conduct that developed over the 17 hours of detention is far more egregious than the meredescriptor of being "simply shabbily treated by the state". It is appalling conduct that is an affront to human decency and falls far belowany tolerable community standard. [127] In R. v. Mok, 2012 ONCJ 291, Justice West entered a stay of proceedings on charges related to impaired driving where anarrested and very intoxicated female accused was held in York Regional Police cells.

The policy of the police involved videotaping andmonitoring all detainees using the toilet regardless of lack of suicide risk. Justice West found, in the circumstances of that particularaccused, that it was a highly intrusive invasion of privacy and a violation of her s. 8 Charter rights. In that case, the police indicated inevidence at the trial that their videotaping and live-monitoring policy of bathroom use would continue for every detainee in their custody.Justice West found that the circumstances for Ms.

Mok, and the likelihood of every detainee for the foreseeable future being subjected tothe same degrading, humiliating, abhorrent, and demeaning invasion of privacy, had to be remedied so that no further breaches ofdetainees' s. 8 Charter rights continued to occur. A judicial stay of proceedings was entered in Mok largely because there was evidencethat the violation would continue in the future for other detainees. This certainly is a distinguishing feature when contrasted with thecircumstances of the case at bar.

Nevertheless, I find Mok to be of assistance in addressing the s. 24(1) analysis. [128] In this case, the APD has, since Mr. Moonie’s detention at least had a wheelchair ramp installed for its loading bay and hasacquired a wheelchair for the cells area. That is a start, but the fact of the matter remains that even carrying forward with this prosecutionin the face of such appalling and insensitive conduct may leave a stain on the integrity of the judicial process. Again, the question iswhether continuing the prosecution against Mr.

Moonie in this circumstance would create prejudice to the system of justice that warrantsthe use of a stay: Zarinchang at para. 63. In the circumstances of this case, I find that it would. Any uncertainty on this question will beconsidered below in an assessment of the third criterion. 2. Is a Stay of Proceedings the Only Remedy Capable of Removing the Prejudice? [129] As I mentioned at the outset of this portion of the analysis addressing s. 24(1), I am proceeding on the basis that if myconclusion on s. 24(2) is found to be in error, then the exclusionary remedy would not be available to Mr. Moonie.

No other potentialremedies were advanced by either of the parties. The egregious nature of the s. 7 breach circumstances does not seem to be somethingthat could necessarily be compensated through an award of damages as was done in Vancouver (City) v.

Ward, 2010 SCC 27. [130] Mok appears to be the only case of any sort of factual similarity, and as counsel have noted, cases where a stay of proceedings isconsidered under the residual category of the abuse of process doctrine are rare. [131] But, in other circumstances where courts have entered stays under the residual category, the focus has been on the psychologicalimpact on the accused of the treatment, such as in delay cases or the casual attitude of the police in failing to adhere to the need to have adetainee brought before a justice of the peace within 24 hours of arrest. [132] Mr.

Moonie did experience an element of psychological harm through the 17-hour ordeal he experienced that resulted insignificant embarrassment and humiliation, both in having no method by which to empty his catheter in a sanitary and clean manner, andat losing control over his bodily functions and then being required to remain in a soiled and unsanitary state while being transported tocourt for his bail hearing. Mr.

Moonie would have had the indignity he suffered compounded by the fact that no doubt other detainees,sheriffs, court staff, and police officers would have seen him in his compromised state as he was shuttled between cells, the sheriff's va

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