R. v. Gauvin, 2014 MBPC 25

CITATION: R. v. Gauvin , 2014 MBPC 25 Date: 20140422 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) P. Miniely, ) for the Crown ) and ) ) ) Daniel Gauvin ) S. Inness, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) April 22, 2014 ) C. Devine, P.J. Charter Section 24(2) Decision on Voir Dire [ 1 ] Two men were walking down the street in North End Winnipeg at 4:20 in the morning and were stopped, detained and searched by police because one of the men was carrying a stick. He was using the stick to poke around in the recycling and garbage bins to collect ‘trinkets’.

After detaining and searching him, the police realized the stick wasn’t a weapon and the man was not committing a crime and they released him. But when the police detained and searched the other man, the Accused Daniel Gauvin, they found a knife and a small amount of drugs in his pockets. He was then charged with criminal offences. [ 2 ] The Charter protects citizens from illegal detentions, arrests and searches and provides that they have legal counsel when they are detained, arrested and searched. Can that protection be extended to Mr.

Gauvin in this case? [ 3 ] This is a decision on a voir dire with respect to the admissibility of evidence seized by police after detaining the Accused. Daniel Gauvin is charged with simple possession of marijuana, simple possession of methamphetamine and carrying a concealed weapon, a knife. Mr. Gauvin’s trial commenced on March 12, 2014. The Crown called her case consisting of the evidence of the two police officers involved. The defence filed a motion seeking exclusion of the seized items pursuant to Charter s. 24(2), as a result of several Charter breaches alleged by the defence.

The defence alleged that the police did not have a legal basis to detain Mr. Gauvin, therefore they breached his Charter s. 9 right to be free from arbitrary detention when they detained him. The defence argued further that flowing from that initial breach, the subsequent searches of Mr. Gauvin were illegal and in breach of his s. 8 Charter right to be free from unreasonable search and seizure. The defence also argued that the search incident to the detention was not authorized by the detention, as it was not a search for officer safety, but rather a search for evidence of an offence.

The defence also alleges that the Accused was not informed of the reason for his detention, in violation of his right to be informed of the reason for detention in s. 10(

a) of the Charter . Nor was he afforded his right to counsel in s. 10(

b) of the Charter . The defence argued that the remedy for these compounded breaches was exclusion of the knife and drugs seized, pursuant to s. 24(2) of the Charter .

[ 4 ] The Crown argued that there were grounds for the detention, thus the searches that followed were not tainted by an initial Charter s. 9 violation. She argued that the initial search on the street was a search for officer safety. The subsequent searches were incident to arrest for the items initially seized. She conceded that the Accused was not afforded his right to counsel immediately upon his detention, but argued that the search would have proceeded prior to the Accused being allowed to call his lawyer anyway, as it was a search for officer safety.

The Crown argued that there were no breaches of ss. 9, 8 and 10(a). The Crown also argued that if I were to find one or more breaches, the evidence should not be excluded pursuant to the analysis set out by the Supreme Court of Canada in Grant . THE FACTS [ 5 ] Constable Recksiedler, a veteran officer of nineteen years with the Winnipeg Police Service, with three years in the drug unit and three years in Street Crimes, was partnered with his junior officer Constable Crowley on the “8 to 2” night shift on May 3, 2013. Constable Crowley had been with the Winnipeg Police Service for two years.

They were patrolling the North End that night. At 4:20 a.m. they spotted two men walking down the sidewalk on Charles Avenue, southbound near Alfred. One of the men was carrying what the officers thought might be a weapon – a two to three-foot long bar or stick, with a diameter of about three-quarters of an inch. The men appeared to be together, as they were walking shoulder to shoulder and the officers saw them for several seconds before stopping and getting out of the police cruiser. [ 6 ] Constable Recksiedler was the jumper that night.

He testified on direct examination that he got out and told the male holding the stick to drop the weapon, that they were investigating a weapons call that night and that he told both men to show their hands and that they complied. The male holding the stick was Mr. Compton and the other male was Mr. Gauvin, the Accused. [ 7 ] To be clear, there was no weapons call through dispatch – Constable Recksiedler testified that it was a weapons call because he and Constable Crowley saw what might be a weapon. Constable Recksiedler insisted in his testimony that it was a weapon.

He rejected that it was a possible weapon that could not be characterized as a weapon until he could determine for what purpose it was being carried. [ 8 ] His reason to detain and search Mr. Gauvin was because Mr. Compton had a stick. [ 9 ] Constable Recksiedler did not have anything in his notes about anything he said to the men when he detained them. His notes on the events from the time of sighting the men to the arrest of Mr. Gauvin are extremely brief. This can be contrasted with his notes after the Notice of Arrest, which are detailed.

He agreed that individuals have a right to move around freely, and detaining them is a significant interference with their freedom of movement and liberty. He agreed that searches have a significant impact on people’s right to privacy. Although he agreed that police decisions to detain and search citizens are significant ones, he did not have any of the pertinent details of this in his notes. [ 10 ] The man holding the stick, Mr.

Compton, said it was a wooden stick to move around stuff in the garbage and recycling bins and that he was collecting ‘trinkets.’ [ 11 ] Constable Crowley testified that they jumped out of the car and Constable Recksiedler engaged, then immediately detained the two men, telling Constable Crowley to search Mr. Gauvin for weapons at the back of the police cruiser. Constable Crowley did not recall anything that Constable Recksiedler had said about weapons or the reason for detention.

He testified that the men were not free to leave at that point, because Constable Recksiedler had detained them both. [ 12 ] There were no dispatch calls of males with weapons or males fighting in the area that night. The basis of the stop was solely the two officers’ observation of the two men walking on the sidewalk, with one of them carrying a pole or stick. Constable Recksiedler testified that when he sees two men, one of whom is carrying a stick that he is assuming is a weapon, he is going to detain and search them both.

He said he would detain and search three or four people if they were walking together and one of them had a stick. [ 13 ] Constable Recksiedler testified that his understanding of the police power to detain is that he can detain if a person is committing an indictable offence, carrying a weapon or if a person is with someone doing those things. He said he detained Mr. Gauvin because he might have had a weapon too. [ 14 ] Constable Crowley could not remember the words that he used to direct Mr. Gauvin to the back of the cruiser car, but testified that he told him to place his hands on the car and spread his legs.

He did not advise Mr. Gauvin as to why he was being detained or provide him his right to counsel. He conducted a pat-down search, starting at the bottom of Mr. Gauvin’s right leg, up to his neck and then down the left side of his body, all the way down to his foot. He found an object in Mr. Gauvin’s right jacket pocket, did not know what it was, retrieved it and it was a Steel brand folding knife. Constable Crowley testified that it felt like a knife and that it was locked in an open position, with the blade out.

When the knife was filed as an exhibit in the voir dire , the knife blade was not out – it was folded. There was no evidence of Constable Crowley or anyone folding the knife. [ 15 ] Constable Crowley also discovered a pill bottle containing .33 grams of methamphetamine in the Accused’s left jacket pocket during the search. He did not know what it was until he retrieved it from the pocket. He said it felt circular, with a round tip on it. He said it could have been a shot gun shell or a pill bottle. He testified that he is an avid hunter.

Once finding the knife and the pill bottle, he continued his search and then advised Constable Recksiedler of his findings. Constable Recksiedler took over the investigation at that point. [ 16 ] Constable Crowley’s notes of the event were sparse: “two males walking, one with a pole/weapon.” Although he testified that Mr. Gauvin had his hands in his pockets, that was not in his police notes.

He admitted on cross-examination that the police would not have grounds to detain a person walking down the street with his hands in his pockets – unless the person was not alone. [ 17 ] Constable Crowley testified that it was important to stop and search the two because the area is known for high crime and violence and prostitution. He testified that they wanted to stop the two men and see why one of them had what appeared to be a weapon. Similarly, Constable Recksiedler testified that it was a high crime area where robberies were committed.

[18] Mr. Compton was the male holding the stick. He told Constable Recksiedler to check his back pack for the ‘trinkets’ he hadalready collected that night. Constable Recksiedler confirmed that the recycling and garbage bins were out on the street and he furtherconfirmed that Mr. Compton had items in his backpack, such as coffee cups and a bell, that he had retrieved from the bins that night –the trinkets as he called them. Mr. Compton was released without charge. [19] Mr. Gauvin was arrested for possession of methamphetamine and carrying a concealed weapon.

He was taken to the policestation where a further pat-down search was conducted by Constable Recksiedler, yielding a small amount of marijuana, .34 grams, inMr. Gauvin’s front pants pocket. [20] Mr. Gauvin was then subjected to a strip-search, which, the officers testified, is consistent with Winnipeg Police Service policyrequiring a strip-search when a person is found with drugs. The reason, according to Constable Recksiedler, is that they do not wantdetainees ingesting drugs while they are in custody. [21] The strip-search was conducted consistent with policy, in front of two officers in the interview room. Mr.

Gauvin was requiredto remove one piece of clothing at a time and hand it to Constable Recksiedler, until he was completely naked. Then he had to turnaround and bend over. [22] All of this occurred between 4:20 a.m., which was the time of the detention, and 4:55 a.m., when Mr. Gauvin was left alone. [23] At 5:15 a.m. Mr. Gauvin was allowed to contact his lawyer. He had told police at the time of arrest on the street, at 4:30 a.m.,that he wanted to talk to his lawyer. [24] Constable Recksiedler testified that Mr.

Gauvin was not provided an opportunity to contact his lawyer before that because helikes to contact his sergeant and discuss the police position on release before contacting defence counsel. This is his regular practise. THE LAW [25] The law with respect to police authority to detain and search individuals and inform them of the reasons for their detention andprovide them with the right to contact and retain legal advice is well-established and is not at issue in this case.

The case law providesseveral guiding principles of law. [26] Generally speaking, the constitutional guarantees against state intrusion set out in ss. 8, 9 and 10 of the Charter should beinterpreted in a generous rather than legalistic way “aimed at fulfilling the purpose of the guarantee and securing for individuals the fullbenefit of the Charter’s protection” (R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 at 344; R. v. Grant, 2009SCC 32, at para. 16)

Section 9 [27] The purpose of s. 9 is to protect individual liberty from unjustified state interference. [28] Individual liberty involves not only physical liberty, but also mental liberty including the interest in being able to make aninformed choice about whether to walk away from or speak to the police. (Grant, at para. 20) [29]

Section 9 prohibits arbitrary, or in other words, unlawful detentions. (R. v.

Mann, 2004 SCC 52) [30] Therefore a detention is not arbitrary if it is lawful. (Mann) [31] There is a common law police power of investigative detention. (Mann) [32] A police search carried out in accordance with that common law power is lawful. (Mann) [33] A brief investigative detention based on ‘reasonable suspicion’ is lawful. [34] Where the police do not have ‘reasonable suspicion’ that the person is involved in a recent or ongoing criminal offence, thedetention is not lawful and is therefore arbitrary and in breach of s. 9. (Mann, and Grant, para. 33) [35] The high crime nature of a neighbourhood is not by itself a basis to detain a person.

It is only relevant insofar as it reflects theperson’s proximity to a criminal offence. (Mann, at para. 47) [36] The detention must also be reasonably necessary to investigate the crime. (Mann) [37] The extent and nature of the detention/interference with the person’s liberty is circumscribed by necessity. (Mann, at para. 34) [38] Investigative detention cannot be exercised on a hunch. (Mann, at para. 35) [39] Investigative detention cannot become a de facto arrest. (Mann, at para. 35)

Section 8, search incidental to a lawful detention [40] The purpose of s. 8 is to protect the privacy of individuals from state intrusion. [41] The expectation of privacy over one’s body is particularly high. [42] A search is a “state invasion of a reasonable expectation of privacy”. (R. v. M.(A)., 2008 SCC 19, cited at R. v. MacDonald,2014 SCC 3, at para. 25)

[43] A warrantless search is prima facie unreasonable, unless the Crown can show that it is reasonable because it is authorized bylaw, the law is reasonable, and the search was conducted in a reasonable manner. (R. v.

Collins, (SCC), [1987] 1 S.C.R.265 at 278) [44] The common law power of investigative detention authorizes a limited search for safety purposes in a limited circumstance. [45] That circumstance is that the officer must believe on reasonable grounds that his or her own safety or the safety of others isimminently at risk. (Mann, at para. 40, Macdonald, at para. 40) [46] Interaction with the person posing a safety risk is necessary. (Macdonald, at para. 39) [47] Generally such a safety search will be conducted by police as a reactionary measure, unplanned, in response to dangeroussituations created by individuals, to which police must react ‘on the sudden’. (Macdonald, at para. 32) [48] There is no general power of search incidental to detention, absent the officer having reasonable grounds to believe that safetyis at risk. “It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunchesor mere intuition.” (Mann, at para. 41) [49] The search must also be confined in scope to a search reasonably designed to locate weapons. (Mann, at para. 41) [50] The law of investigative detention does not authorize a search allowing officers to “reap the seeds of a warrantless searchwithout the need to effect a lawful arrest based on reasonable and probable grounds”. (Mann, at para. 37) [51] “Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual.

The search must be grounded in objectively discernible facts to prevent ‘fishing expeditions’ onthe basis of irrelevant or discriminatory factors.” (Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158 at 185, cited inMann, at para. 43)

Section 10(a) [52]

Section 10(

a) of the Charter requires that the police promptly inform the detainee of the reason(

s) for detention.

Section 10(b) [53]

Section 10(

b) requires that a detained person be informed of his or her right to instruct and retain counsel without delay upontheir detention. (R. v. Suberu, 2009 SCC 33) [54] The immediacy of the police obligation to advise a detainee of the right to counsel is subject to concerns for officer safety.(Suberu) [55]

Section 10(

b) requires that an arrested person be informed of his right to instruct and retain legal counsel and be given anopportunity to exercise that right without delay ANALYSIS

Section 9, Arbitrary Detention [56] The first issue is whether the police had a lawful basis to detain the Accused. [57] Although I can accept that the police might have had a reasonable suspicion that Mr. Compton was engaged in criminal activitybecause he was carrying what at that point appeared to be a weapon, thus authorizing the initial stop by the police, I am not convincedthat the second part of the Waterfield test was met, even for him.

I am not certain as to the extent of the interference with his liberty thatwas necessary to ascertain whether any criminal activity was going on, that is, to ascertain whether he had a weapon. The law authorizesinterference with citizens only as far as it is necessary for the police to perform their duties. The officers could have pulled the cruisercar up to the two men, asked what the stick was and what is was being used for, heard from Mr. Compton and allowed Mr. Compton toshow them what he had in the backpack. Or, they could have exited the vehicle and asked Mr.

Compton what the item was and what itwas being used for. Instead, there was an assumption the stick was a weapon which precipitated a de facto arrest. Constable Recksiedlerhad already decided that the item being held by Mr. Compton was a weapon. He decided that this was now a ‘weapons’ call. Hetestified that the crime being committed was that Mr. Compton was carrying a weapon. Therefore, in his mind, he had full grounds tostop and search Mr. Compton, and of course, Mr. Gauvin. But, in fact, Constable Recksiedler very quickly ascertained that Mr.

Comptonwas using the stick to poke around in recycling and garbage bins to collect items for use or resale. It was being used for commerce notcriminal activity. Mr. Compton was released without charge. [58] Although Constable Recksiedler testified that he believed he had grounds to detain and search the two men for the purpose ofofficer safety, in fact, his actions are more consistent with him treating the two men as being arrested. He predetermined that a crimewas being committed, as he characterized the incident as a ‘weapons call’.

He jumped out of the car and he testified that he told the twomen it was a weapons call and that they were being searched for weapons, and he ordered Constable Crowley to search the Accused forweapons. His belief and his actions are consistent with performing an arrest and search incident to arrest for weapons offences. Thiswas a de facto arrest of both men – without grounds for either detention or arrest. [59] The fact that this was the North End of Winnipeg strongly influenced Constable Recksiedler’s decision to detain the two menwalking down the sidewalk, one of whom had what he thought was a weapon.

It also influenced Constable Crowley’s assurance thatthey had the right to detain the individuals. Both officers stated several times in their testimony that this was the North End and it was ahigh crime area. Constable Recksiedler went so far as to state:

When we work in the North End, we are dealing with a lot of people who are doing crimes, and when you see somebody walking down the street with a stick in their hand, you’ve gotta assume this is a weapon. [ 60 ] The police were not investigating a particular crime and they had not been dispatched to a particular offence call, nor was there any police information that night of any crime being committed in the area. [ 61 ] The admitted assumption on the part of the officers that a person carrying a stick in the North End is carrying it to use as a weapon is troubling. [ 62 ] The leading cases on detention of pedestrians happen to arise from the North End of Winnipeg, both Mann , and R. v.

K.B. , 2004 MBCA 97 , a decision of the Manitoba Court of Appeal.

But that does not mean that this becomes the basis on which a pedestrian can be detained by the police, as is made very clear in those cases. [ 63 ] The Supreme Court found the detention of the accused in Mann to be lawful because the police received a dispatch of a break and enter in progress and as they drove towards the address, they saw a person matching the description of the suspect “to a tee” two or three blocks from the scene of the crime. (paras. 4 – 5) [ 64 ] In K.B. , the police stopped and detained several individuals because they were wearing gang colours in a manner associated with a recently committed or about to be committed crime, and among them was a self-admitted gang member.

The Court did not have to decide whether the grounds for stopping any of the individuals was authorized, as they were deciding only K.B.’s case and they found that the police did not have grounds to detain him, as he was not a gang member, and not wearing the colour red in a manner indicating recent or current criminal gang activity.

Writing for the Court, Justice Freedman stated: To whatever extent the interference with Cornell B’s liberty [the gang member] might have been necessary or reasonable , and thus, regarding him, a justifiable exercise of police power . . . there was no apparent justification for exercising that power and interfering with K.B.’s freedom of movement. [Parentheses and emphasis added.] (at para. 41) [ 65 ] I am not satisfied that the detention of Mr. Compton, who was carrying the stick, was authorized.

On that basis, the detention of Accused could not be authorized, as the only reason that he was detained was that he was walking beside Mr. Compton. [ 66 ] Moreover, even if the detention of Mr. Compton was authorized, the police did not have grounds to detain Mr. Gauvin. [ 67 ] Constable Recksiedler detained Mr. Gauvin and ordered Constable Crowley to search him “for weapons” solely on the basis that he was walking beside Mr. Compton. A person cannot be detained or arrested on that basis. The police did not even question the two men about whether they were together.

I accept that the police thought the two were together and I do not believe it was unreasonable for them to assume that initially, given their evidence that the two men were walking side by side and appeared to be speaking together. But, the decision to detain individuals is a serious one, and therefore it is incumbent upon police where circumstances allow it, to ask such a question. When it is the only reason for a person’s detention, it is incumbent upon police to ask that question. It is ironic indeed that Mr.

Gauvin was detained on the basis that he was walking with a person who police only thought was carrying a weapon, but that Mr. Compton was released without charge even when it was learned he was walking with a person the police knew had a weapon. [ 68 ] Detention based solely on the basis that a person is walking with a person committing a crime is unlawful.

In K.B. , the young person, 16 at the time, was found to be arbitrarily detained: Indeed, the only fact that can be identified to support the action against him, at the relevant point in time, is that he was walking with Cornell B. [Emphasis added.] (at para. 41) [ 69 ] The Court stated that the fact that the young person was walking with a known gang member and three other people in red attire, “amounts to little more than guilt by association, falls very far short of establishing reasonable cause to suspect that K.B. was involved in criminal activity.” (para. 50) [ 70 ] I find that the detention of the Accused was arbitrary and therefore violated s. 9 of the Charter .

The Search,

section 8 [ 71 ] Having found that the detention of Mr. Gauvin was unlawful, the search incidental to his detention is necessarily unlawful, as it would not have occurred at all if he had not been arbitrarily detained. A search is not reasonable unless it is authorized by law. Here, it was not authorized by law. [ 72 ] Moreover, even if I had found that the detention of Mr. Gauvin was lawful, I am not satisfied that the search was authorized. The law of investigative detention authorizes a limited, protective search. [ 73 ] I am not satisfied that the purpose of the search was protective.

There was no evidence from either officer that they had reasonable grounds to believe that their safety was at risk. Constable Recksiedler ordered Constable Crowley to search Mr. Gauvin for weapons as the officers got out of the police car. There was no need to engage Mr.

Gauvin at all, thus obviating any need to ensure the safety of the officers while engaging him. [ 74 ] That the purpose of the search was for weapons as a criminal offence, as opposed to weapons to ensure officer safety, is further evidenced by other aspects of Constable Recksiedler’s evidence: his view that this was a weapons call and they were investigating a weapons call and that therefore both men would be searched for weapons.

Constable Crowley in his evidence also characterized the detention as a ‘weapons investigation.’ This was a situation where the police were ‘reaping the seeds of a warrantless search’ absent having reasonable and probable grounds for an arrest.

[ 75 ] Finally, the search of Mr. Gauvin was not confined in scope to a search reasonably designed to locate weapons. I do not accept that upon feeling the standard shape pill bottle with the child protective lid, that Constable Crowley could have thought it was a weapon. He testified that it could have been a pill bottle or a shotgun cartridge. I find it implausible that an avid hunter, as he testified he was, would not be able to tell the difference. In any event, a shotgun cartridge by itself could not pose a risk of imminent harm to the officers. [ 76 ] The further searches of Mr.

Gauvin – the search of his jeans pocket yielding the marijuana, and the strip-search – were unlawful because they would not have occurred but for the unlawful detention. [ 77 ] I find that none of the three searches of Mr. Gauvin were lawful and his right to be free from unreasonable search and seizure was violated.

Section 10(a) [ 78 ]

Section 10(

a) requires that the police promptly inform the detainees of the reason for their detention. Constable Crowley testified that he did not inform the Accused of the reason for his detention. Nor could he remember what, if anything, Constable Recksiedler said to the Accused and Mr. Compton. He was simply ordered by Constable Recksiedler to search him and he did so – moving the Accused to the rear of the cruiser car, telling him to place his hands on the car and spread his legs.

He could not recall nor had he written the exact words used. [ 79 ] Constable Recksiedler testified that he jumped out of the car and shouted at Mr. Compton to “Drop the weapon,” he asked both men to show their hands, which they did, and then advised the men that they were “investigating a weapons call here.” None of that was in his notes.

There was nothing noted about what was said to the Accused about detaining him. [ 80 ] By way of comparison, Constable Recksiedler’s notes about processing the Accused after his arrest and searches at the police station were very detailed, with times attached to each significant event, such as 6:45 a.m. “went to PSB”; 7:10 a.m. processing for fingerprints and photo in Ident.; 7:35 a.m. placing the exhibits in the Locker, etc. [ 81 ] In the circumstances, the absence of any notes on complying with Mr. Gauvin’s s. 10(

a) rights, leads me to believe on a balance of probabilities that he was not advised of the reason for his detention. [ 82 ] I find that his s. 10(

a) right was violated.

Section 10(

b) right to counsel [ 83 ] Constable Crowley detained and searched Mr. Gauvin at 4:20 a.m. He was not advised of his right to contact legal counsel. Constable Recksiedler arrested him at 4:30 a.m. in the back of the cruiser car. He asked Mr. Gauvin if he wanted to contact a lawyer and Mr. Gauvin told him he wanted to contact Ms Inness, his counsel in this trial. They arrived at District 3 Station at 4:48 a.m. and Mr. Gauvin was placed in an interview room. The items seized from him were processed. Then Mr. Gauvin’s pockets were searched and the marijuana was found and seized from the pocket of his jeans.

Then he was strip-searched by the two officers. At 4:55 a.m. Mr. Gauvin was left alone. Finally, at 5:15 a.m., he was provided the opportunity to contact his lawyer. [ 84 ] Constable Recksiedler testified that he did not advise Mr. Gauvin of his right to counsel upon detention because at that point the police were just checking hands and searching for officer safety. If I had found the detention was a lawful one, I could accept that providing the right to counsel is suspended until the police have ensured their safety.

But I do not accept that the detention was lawful and I do not accept that the purpose of the search was for officer safety. [ 85 ] However, Constable Recksiedler did not advise the Accused of his right to counsel until he arrested the Accused. I do not believe he understood that he had an obligation to advise the Accused of the right to retain counsel upon detention. His evidence overall leads me to make that inference. [ 86 ] It is abundantly clear, however, that he did not provide Mr. Gauvin the opportunity to contact his lawyer until he knew what his sergeant’s position on Mr. Gauvin’s release would be.

He testified that it is his practice to not allow the accused the phone call until he can advise defence counsel of this information. This demonstrates a complete misapprehension of the purpose of the right to counsel and the police obligation to provide it. [ 87 ] Mr. Gauvin was the subject of two searches, one of which resulted in a criminal charge and one of which was a strip-search, without having had the opportunity to consult legal counsel. [ 88 ] Mr. Gauvin’s s. 10(

b) right to retain and instruct counsel was violated. Section 24(2) [ 89 ] Section 24(2) provides that where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 90 ] The purpose of the

section is to maintain the reputation of the justice system, including the investigation of crime, the rule of law and upholding the Charter of Rights and Freedoms . The Court at this stage is focused on systemic concerns. [ 91 ] The Supreme Court of Canada set out the three-part analysis to be followed in Grant . In order to determine whether the knife and the drugs ought to be excluded under the section, I must assess and balance the effect of admitting them on society’s confidence in

the justice system, having regard to three things: 1) The seriousness of the Charter -infringing conduct by the police; 2) The impact of the breach on the Accused’s interests; and 3) Society’s interest on the adjudication of the case on its merits. 1) The seriousness of the Charter -infringing conduct by the police [ 92 ] At this stage of analysis the Court must consider whether the police action in breaching the rights of citizens is such that the Court must disassociate itself from the police conduct. The administration of justice cannot afford to be tainted by wrong action by the police or other state agents.

The more serious the police conduct, the more readily will the Court disassociate itself from that conduct. [ 93 ] The breaches were very concerning in this case, as they were motivated by ignorance of Charter law, and bias. The officers were of the view that they had the authority to detain two men walking down the street, one of whom was carrying a stick to poke around in garbage and recycling. The reason: it was the North End of Winnipeg and they were together. The veteran officer’s view was that if a person is carrying a stick in the North End it is a weapon.

The junior officer’s view was that detention of a person walking in the North End with their hands in their pockets may not be justified - if the person is alone. The officers’ views demonstrate not only their thinking that night, but also strongly suggest a pattern of behaviour on the part of the police patrolling the North End of Winnipeg. Both the Supreme Court and the Court of Appeal have clearly stated that detaining people simply because they are in high crime areas is contrary to the Charter . And, as the Supreme Court has also stated in Grant , police are expected to know the law.

Charter breaches based on ignorance of the law by the police will not be justified. (at para. 133) [ 94 ] I am not suggesting that police be constrained in their duty to detect crime and ensure the safety of the streets in Winnipeg. I suggest, however, that it can be done without infringing the rights of citizens, as suggested by the Court of Appeal in K.B. ten years ago, when Justice Freedman stated: Proactive policing may be carried out in many different ways, and under many different circumstances.

Undoubtedly, many of those ways and circumstances will not infringe the rights of individual citizens. ( K.B. , at para. 51 ) [ 95 ] The Court will distance itself from this pattern of abuse of the right against arbitrary detention of people in the North End of Winnipeg. [ 96 ] Similarly, the law is very clear that ‘guilt by association’ is not a reason for detention. But clearly, that is the only reason that Mr. Gauvin was detained.

Again, ignorance of the law leading to Charter breaches is very serious, because it demonstrates that if the officers detained this time on that basis, they would detain for that reason on other occasions. And walking with someone is a very ordinary activity.

That ‘walking with someone’ who the police reasonably suspect is committing or has recently committed an offence is sufficient grounds to detain and set into motion a serious of state intrusions into one’s life is indeed a frightening prospect. [ 97 ] The requirement that police advise detainees without delay of the reason for their detention was also lost on the officers in this case. It was not in the officers’ notes.

The senior officer was sure that he’d announced “This is a weapons call.” Even if I had accepted that he said that at the time, I am not satisfied it would have met the requirement under s. 9, to advise the Accused of the reason for his detention. Constable Crowley, who actually physically detained the Accused, informed him of nothing. His view was that Constable Recksiedler had detained both the men. Both officers seemed to understand the duty to inform individuals of their reason for arrest , but neither seemed to understand that the obligation arises at the point of detention as well.

Again, this concerning ignorance of the law militates towards the seriousness of the police conduct. [ 98 ] The police then conducted searches of the Accused. I have already found that the police were guilty of reaping the seeds of a warrantless search. Constable Recksiedler’s direction to the junior officer to search the Accused for weapons was to search for weapons as evidence of an offence, not for officer safety. Both officers demonstrated in their evidence a knowledge that they had authority only to conduct a search for officer safety, but their understanding of what that meant was sorely lacking.

They did not demonstrate that they had to have reasonable grounds to believe their safety was in imminent or any danger by Mr. Gauvin, who at that point was walking beside a person carrying a stick to poke around in garbage. Nor did the searching officer seem to understand that his power to search was restricted to that which would ensure his safety.

Notwithstanding that the pill bottle clearly represented no danger to him or his partner, he nonetheless searched inside the pocket and seized it. [ 99 ] The effect of admitting evidence obtained as a result of police ignorance of well-established Charter law and a bias towards detaining people in the ‘high crime area’ of the North End would erode citizens’ confidence in the administration of justice, particularly those citizens who live in such areas. 2) The Impact of the breaches on Mr.

Gauvin’s Charter -protected interests [ 100 ] Citizens have the right to move around the City of Winnipeg freely, even in the North End, and even at 4:20 in the morning. The police detention of Mr. Gauvin impacted on his liberty, his physical integrity and privacy and his human dignity. Even the initial detention, although conducted without violence or aggression and in all respects proper (other than going beyond the scope of what was allowed when Constable Crowley reached into the pocket for the pill bottle), had an impact.

As defence counsel argued, we should not underestimate the impact that even a detention and pat down search can have on an individual. [ 101 ] One must put themselves in the shoes of the detainee. Imagine that you are walking down the street and suddenly stopped by two police officers who stop their cruiser car, jump out, one who shouts to ‘show your hands’.

Then an officer says or does something to order you to the cruiser car, tells you to place your hands on the car and spread your legs while he uses both hands to pat up one of your legs and your entire body and then down the other side of your body and other leg – all the while you are not informed as to why this is taking place, and it is in public, on the street at 4:00 in the morning. I expect this would be a frightening, disconcerting and embarrassing

event for most citizens. Mr. Gauvin’s right to move about freely was significantly impacted. But, that initial detention was only the beginning. Mr. Gauvin was then arrested, taken into custody and strip-searched in a small interview room under the watchful eyes of two police officers, one of whom was the arresting officer. He had to remove every piece of his clothing, one by one, hand it to the officer, and then naked, turn around and bend over.

A strip-search is demeaning and has an enormous impact on an individual’s human dignity. [ 102 ] That all of this was done without the comfort of a single call to legal counsel, even though the Accused had requested the right in the police car, exacerbates the seriousness of the impact on Mr. Gauvin. [ 103 ] I recognize that the intrusive strip-search in violation of s. 8 and the violation of the right to counsel after arrest did not lead to any evidence being obtained in this case.

The knife and the methamphetamine and marijuana were not obtained as a result of those breaches. [ 104 ] But, in considering the impact of the breaches on the individual, the Court would be remiss in not considering the impact of the entirety of the police-citizen interaction that was set in motion by the initial breach. That being said, if the strip-search was the only Charter violation that had a serious impact on the individual, it could not result in having evidence excluded, as no evidence was obtained as a result of the strip-search.

There may be a remedy for a strip-search set into motion from an initial unlawful detention, but it is not pursuant to s. 24(2). [ 105 ] I find that the initial detention and search had a serious impact on Mr. Gauvin’s protected interests of psychological and physical liberty, privacy and human dignity.

Admitting evidence discovered in those circumstances would give citizens much to fear and little to trust in the law and the administration of justice. 3) Society’s interest in an adjudication on the merits [ 106 ] Law-abiding citizens, and perhaps even those who break laws, expect that people who commit criminal offences will be tried for their crimes. If I exclude the knife and the drugs, Mr. Gauvin will not likely be convicted of the offences for which he is charged. I would effectively ‘gut the prosecution’, to use the words of Chief Justice McLachlin and Justice Charron in Grant (at para. 83 ).

What will the public think? The drugs are evidence of a relatively minor offence. The amounts were very small and very likely for personal use only. The knife is more problematic. It was a large, folding-type knife.

Knife crimes are numerous in this city. [ 107 ] Conversely, admitting reliable evidence such as the knife, regardless of how it was obtained, is inconsistent with the Charter ’s affirmation of the right to be free from arbitrary detention and illegal searches by the police. [ 108 ] Would the exclusion of this piece of reliable evidence extract too great a toll on the truth-seeking function of the Court? [ 109 ] The police conduct was very problematic, demonstrating a pattern of illegally detaining and searching individuals in the North End of Winnipeg or individuals on the basis of ‘guilt by association.’ The impact of this type of police behavior breeds distrust, fear and cynicism among a population of the City that have been historically been treated like second-class citizens.

On balance, excluding a small amount of drugs and one knife concealed in a pocket will have a less deleterious effect on the administration of justice than condoning a pattern of biased or ignorant policing in the North End of Winnipeg. [ 110 ] I am excluding the knife, the methamphetamine and the marijuana seized from Mr. Gauvin in this case. Original signed by Judge C. A. Devine P.J.