R. v. Hall, 2011 ONCJ 480

Citation: R. v. Hall , 2011 ONCJ 480 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SHAUN HALL Before Justice H. Borenstein Heard June 1, 2011, June 16, 2011 Reasons for Judgment released on July 26, 2011 Ms. B. Olesko ............................................................................................................ for the Crown Ms. V. Tucci .............................................................................................................. for Shaun Hall BORENSTEIN J.: [ 1 ] This is an Application by Shaun Hall to exclude evidence.

He alleges that his Charter rights were violated when he was arrested by two police officers, Officers Pargetter and Clark. [ 2 ] An agreed statement of facts was made an exhibit on this Application. In addition, I heard from Mr. Hall and the two arresting officers. OVERVIEW [ 3 ] Mr. Hall is charged with two counts of robbery allegedly occurring on October 14, 2010. [ 4 ] On December 24, 2010, the police received two separate 911 calls alleging that a male was assaulting a female on Kingston Road. Officers Pargetter and Clark attended the scene arriving at approximately 11:50 p.m.

They saw two people who they believed matched the descriptions provided. It was Shaun Hall and Nicole Russell. As they exited their cruiser, Ms. Russell walked away appearing as though she did not want to deal with the police. [ 5 ] Officer Pargetter spoke with Ms. Russell about 100 yards from the scene while Officer Clark detained, and remained with, Mr. Hall. [ 6 ] According to the officers, Hall initially denied knowing the female and said he was just helping her as she seemed drunk, or crazy, or both. [ 7 ] Pargetter spoke with the female.

She told him that the male was her boyfriend, his name was Benjamin Dunkirk and there had been no assault or threats. They were just having an argument. Pargetter did not see any injuries. The female said her name was Nicole Russell. Pargetter asked her for identification and whether she was facing any charges. She did not have any identification but told Pargetter that she had a marijuana charge outstanding. [ 8 ] While this was occurring, Clark asked the male his name. Mr. Hall lied and said his name was Benjamin Dunkirk. He also gave a phony date of birth, address and phone number.

Clark testified that Hall was fidgety so he conducted a pat down search for officer safety reasons. He found a prescription pill bottle in the male’s pocket in the name of Shaun Hall. Clark asked the male if he had any identification and the male replied that he did not. [ 9 ] Pargetter returned to Clark at 12:03 a.m. and told him that no offence had been committed. Pargetter then checked Ms. Russell’s name on the police computer and confirmed her identity. [ 10 ] Clark asked Pargetter to run the name Benjamin Dunkirk on the on-board police computer.

That computer searches various databases to see whether the person has a criminal record or has had any contact with the police, whether as an accused, complainant, witness or any other contact. It also searches the Ministry of Transportation records to determine if the person has a driver’s licence. The name Benjamin Dunkirk produced no hits at all. Both officers found that a little unusual as most males have a driver’s licence. Clark then asked Pargetter to run the name Shaun Hall. That name was common and produced many hits. [ 11 ] Clark then asked Mr. Hall if he had any photo identification.

He said he did not. According to Clark, Hall told him he could check his knapsack and pointed to one of two knapsacks on the ground. Hall denies that this occurred and Pargetter did not hear this

exchange. Inside the knapsack, Clark found a piece of paper in the name of Shaun Hall with a date of birth of 82-03-11. At 12:15 a.m., Clark told Pargetter to run that name and date of birth. It revealed that there was an outstanding arrest warrant in the first for that Shaun Hall in relation to an October 14 th robbery. Pargetter retrieved a photograph of the wanted Shaun Hall and realized it was the same male they were dealing with. At 12:19 a.m., Mr.

Hall was arrested and charged with robbery. [ 12 ] I am advised by counsel that, a week later, the police presented a photo line up to the victim of the robbery and that person identified Mr. Hall. [ 13 ] Mr. Hall concedes that the police had the right to detain him for investigative purposes initially but submits that, once they determined that no offence had been committed, they had no right to continue to detain him to confirm his identity. He alleges that this was a violation of

section 9 of the Charter . He further submits that, at that point, they should have told him that the reason for his continued detention was to confirm his identity. Their failure to do so violated

section 10(

a) of the Charter . He submits that the police never advised him of his right to counsel when they first detained him, or thereafter, violating

section 10(

b) of the Charter . He submits that the police violated

section 8 of the Charter when they unlawfully searched his bag. He did not consent and, even if he did, it was not an informed consent as he had not been advised of his right to counsel. He argues that any evidence obtained during that encounter ought to be excluded including the results of the photo line-up conducted a week later. [ 14 ] The Crown concedes that Mr. Hall was detained as soon as the police exited their cruiser. That detention was lawful and remained lawful. The police are entitled to confirm the identity of those they are lawfully investigating and detaining. While they ought to have advised Mr.

Hall of his right to counsel, there is no basis to exclude any evidence in this case. [ 15 ] Let me turn to the contentious evidence of the three witnesses on the specific interaction which lead to the search of the knapsack and the arrest. SHAUN HALL [ 16 ] Mr. Hall was the first witness to testify on this Application. He and Ms. Russell rented a room at the Lido Motel on Kingston Road. They had gone to the store. She was carrying the knapsack. [ 17 ] As the officers exited their cruiser, Constable Clark approached Hall and Ms.

Russell walked away as if she did not want to talk to the police. [ 18 ] Clark asked Hall if he was involved in a domestic incident. Hall denied it but Clark told him that he fit the description. Clark asked Hall his name. Hall lied and said that his name was Benjamin Dunkirk. He gave a phony address, phone number and date of birth. He testified that he lied because he did not want the outstanding arrest warrant to come to light. [ 19 ] Hall testified that he was not overly nervous and was not fidgeting with his jacket. [ 20 ] Constable Clark told Hall to get against the squad car.

Clark did not tell him why but it was obvious to Hall that he was going to be searched. Clark told him to spread his legs. Hall was then searched from his neck down to his socks. Hall asked Clark why he was being searched. Clark replied that he had a right to search him. Clark would feel Hall’s pockets and, if he felt something, he would remove the item, examine it and return it. In that vein, Clark removed Hall’s cigarettes, possibly his lighter and his money and returned those items.

He also removed a pill bottle in the name of Shaun Hall from Hall’s breast pocket and held onto it. [ 21 ] Clark and Hall waited by the cruiser for somewhere between five and thirteen minutes until Pargetter and Russell returned. Pargetter and Clark then spoke. Hall overheard Pargetter tell Clark that Russell advised that there had been no assault and that the male’s name was Benjamin Dunkirk. [ 22 ] Pargetter checked the name Benjamin Dunkirk on the police computer and told Clark that it produced no hits.

Hall then told the officer that some people do not get into trouble. [ 23 ] Clark then gave Pargetter the pill bottle and told him to search the name Shaun Hall. Pargetter ran the name and told Clark that there were many hits on that name. [ 24 ] Clark asked Hall whether he had any photo identification in order to clear up the discrepancy in the names. Hall said he did not. [ 25 ] Clark then searched the knapsack that was on the ground six feet away. [ 26 ] Clark did not ask Hall for permission to search the knapsack and Hall never pointed it out.

Clark pulled out various items from the knapsack including a health benefits form in Shaun Hall’s name with his date of birth. Clark told Pargetter to run that particular name. He did and then Hall was told that there was a warrant out for his arrest. He was arrested for robbery and wearing a disguise with intent. [ 27 ] Hall testified that he was never advised of his right to counsel prior to or upon his arrest nor at the station.

When he was taken to Court the next day, he asked duty counsel to call a lawyer as he was never given the opportunity. [ 28 ] Hall testified that he did not want to remain at the side of the road with the police. He wanted to walk away but did not think that would be allowed. Once Pargetter told Clark that there had been no assault, he testified that he asked Clark if he could leave and Clark told him he was not finished with him yet. [ 29 ] Hall denied telling Clark that he did not know the female. He testified that he told the officer that he did not know Nicole’s last name.

P.C. CLARK [ 30 ] Constable Clark testified that, as he exited the cruiser at 11:50 p.m., the female walked away. Pargetter spoke to her about 100 yards away. He did not think Pargetter had much if any conversation with Mr. Hall initially. Clark went to the male while Pargetter went to the female. [ 31 ] Clark asked the male about the female.

While Clark did not recall Hall’s exact reply, it left Clark with the impression that Hall claimed not to have known the female but was just helping her as she seemed drunk. [ 32 ] While waiting at the scene, the male told Clark that he knew the female from three years earlier and they had been dating. [ 33 ] Clark demanded Mr. Hall’s name, address and date of birth. Hall told him his name was Benjamin Dunkirk, date of birth May 2, ’87.

He told him he lived at 75 Eastview Boulevard and provided a phone number. [ 34 ] Clark testified that Hall seemed a little nervous or fidgety and patted his left coat pocket a couple of times. Given the area, which was well known to the officers as a high crime area, and given the time of day, Clark decided to conduct a pat down search to ensure the male had no weapons. The male had no weapon but had a pill bottle in his breast pocket in the name of Shaun Thomas Hall. Clark looked at the pill bottle and returned it to the male.

He may have found cigarettes, opened them up and returned them as well. [ 35 ] At 12:03, Pargetter returned to the cruiser with Nicole Russell and told Clark that Nicole had indicated that there had been no assault or threats. No injuries were seen either. [ 36 ] It is the Toronto Police Service (“TPS”) policy, where there is a call that is domestic in nature, to require the police to fill out an incident report even when the police do not have reasonable and probable grounds to believe that an offence has been committed. The rationale for that policy was explored in evidence.

The concern is that victims of domestic abuse are not always forthcoming and violence may escalate over time. As a result, the TPS requires incident reports detailing any such call. To fill out the report, the officers need to confirm the identities of the persons involved. They also want to ensure there are no restrictions on contact between the parties or any outstanding warrants. The officers filled out a domestic incident report in this case. [ 37 ] Clark had Pargetter run Benjamin Dunkirk’s name on the police computer. No hits came back with that name, which Clark considered unusual.

Even if there has been no contact with the police, most young people have a driver’s licence. [ 38 ] Clark then asked Pargetter to check the name on the pill bottle: Shaun Thomas Hall. That produced so many hits that it was not useful unless it was narrowed down. [ 39 ] Clark then asked Hall if he had any photo identification to confirm his identity. Hall replied that he did not but pointed to one of two knapsacks on the ground and told Clark that he could look inside.

Clark testified that he did not know if Pargetter heard that exchange but Pargetter was in the area. [ 40 ] Clark only searched the one knapsack the male pointed to. He found the document in question in the name of Shaun Hall with the date of birth of March 11, 1982. Clark told Pargetter to search that name. Pargetter then told Clark the results of the search and Hall was arrested for robbery and wearing a disguise with intent. [ 41 ] Clark saw Pargetter read Hall his right to counsel.

Clark testified that Hall did not want to speak to counsel. [ 42 ] In cross-examination, Clark denied the suggestion that what Hall told him that he did not know the female’s last name. Hall initially told Clark that he did not know the female. [ 43 ] Clark denied the male ever asked to leave the scene; however, even if he had, he would not have permitted him to leave until his identification was confirmed. [ 44 ] There was much cross-examination about the fact that Clark was suspicious that the male had provided a false name and was therefore investigating the male’s identity based solely on suspicion.

Clark admitted that he did not have reasonable grounds to believe the name was false but was in the process of seeking to confirm the identity.

In the end, his suspicion was aroused due to the following circumstances: • Two separate callers claimed to have seen a domestic assault; • The woman walked away when the police arrived; • The male denied knowing the female and then stated he had known her for three years and had dated her; • His denial was contradicted by the female who claimed they were dating; • The male did not have any identification on him and was in possession of a pill bottle in a name different than he gave the police; • The name he initially provided produced no police or driver’s licence information. P.C.

PARGETTER [ 45 ] Constable Pargetter testified that, when he and Clark exited their cruiser, the female walked away. He followed her catching up to her about 100 metres away. He testified that, as he exited the cruiser, the male, unprompted by any questions, stated that he did not

know the female, he was just concerned for her safety and was trying to help her. [ 46 ] The female was teary eyed. She stated that she and the male, who she identified as Benjamin Dunkirk, had been dating for about two months, and had been arguing about something silly. They had registered at the Lido Motel. There had been no assaults, or threats or injuries. She identified herself as Nicole Russell and advised that she had an outstanding possession of marijuana charge. [ 47 ] At 12:03 a.m., Pargetter walked Russell back to the cruiser near Clark and Hall.

He knew one of the two was lying since the male claimed not to know her. Pargetter told Clark what he learned. [ 48 ] The TPS policy requires officers to file incident reports on any call that is domestic in nature. To do so accurately, they must confirm the identities of the people involved to determine if there has been any prior reports or escalation of incidents. [ 49 ] Nicole Russell did not have any identification. Pargetter ran her name on the police computer and confirmed the outstanding charge.

He then retrieved a RICI photograph of her and confirmed her identity. [ 50 ] Clark asked him to run the name Benjamin Dunkirk. It yielded nothing, which, while possible, was unusual in Pargetter’s opinion. [ 51 ] Clark asked him to run the name Shaun Thomas Hall which he did. That was a common name with many matches. [ 52 ] At 12:15 a.m., Clark told Pargetter to check the name Shaun Hall, with a particular date of birth. That search revealed that Shaun Hall was wanted on an outstanding arrest warrant for robbery and wearing a disguise with intent.

Pargetter pulled up that male’s photograph on the RICI system and it was the male they were dealing with. [ 53 ] At 12:19 a.m., he arrested Shaun Hall for robbery, handcuffed him and read him his right to counsel. Hall replied that he wanted to speak to counsel. He was then taken to the station. [ 54 ] Pargetter did not know where Clark obtained Hall’s date of birth. He did not see the search of the knapsack. [ 55 ] That was the evidence called on this Application. [ 56 ] As noted earlier, the defence concedes that the police had the right to detain Mr.

Hall for investigative purposes at the outset of their investigation. Further, Hall was aware of the reasons for his detention and

section 10(

a) was therefore satisfied. However, the defence submits that, once the officers concluded that they did not have reasonable and probable grounds to believe that an assault had been committed, they had no right to continue to detain Mr. Hall in order to confirm his identity. The detention became unlawful at 12:03 a.m. and violated

section 9 of the Charter . Further, the defence submits that, once the purpose of the detention changed from investigating a potential assault to confirming identity, the officers ought to have told Mr. Hall about the new focus of their investigation. Their failure was a violation of

section 10(a). The defence submits that the police violated Mr. Hall’s right to counsel. The defence submits that the search of the knapsack was unlawful and contrary to

section 8 for two reasons. First, on Hall’s evidence, there was no consent. Second, even if he did consent, it was not an informed consent as any consent given would have been while detained and prior to being advised of his right to counsel. [ 57 ] If any of these breaches are established, the defence seeks to exclude the exchange between the police and Mr. Hall at the side of the road, the pill bottle, the document taken from the knapsack, the confirmation of his identity and the results of the photo line-up conducted the week after his arrest.

The defence submits that a proper analysis under section 24(2) of the Charter lead to the exclusion of this evidence. [ 58 ] The Crown submits that the initial lawful detention remained lawful while the police were confirming Mr. Hall’s identity. Mr. Hall consented to the search of the knapsack. Finally, the Crown concedes the violation of Mr. Hall’s right to counsel but submits that the violation ought not result in the exclusion of evidence. [ 59 ] Let me turn to my findings. [ 60 ] Mr. Hall was detained from the moment the officers approached him. They were investigating a potential domestic assault.

They believed he was their suspect. He was the focus of their attention. He was not free to leave. That detention occurred at approximately 11:50 p.m. [ 61 ] The detention was lawful as everyone concedes. [ 62 ] That said, the police were obliged to advise him of his right to retain and instruct counsel when they initially detained him, which they failed to do. [ 63 ] With respect to whether the police advised Mr. Hall of his right to counsel upon his arrest at 12:19 a.m., Mr. Hall testified that the police did not advise him of his right to counsel.

The two officers both testified that Hall was advised of his right to counsel but both give contradictory evidence as to Hall’s reply. Officer Clark testified that Mr. Hall said he did not want to call counsel, Officer Pargetter said he did. In the face of that conflict, and in light of Mr. Hall’s evidence, I find that he was not advised of his right to counsel upon his arrest either. [ 64 ] I am satisfied that the police did not violate

section 10(

a) of the Charter . He was aware of the reasons for his detention. The police were investigating a potential domestic assault. The police do not have to advise a detainee about each step of their investigation. Confirming the identity of the person they are investigating for assault is part of that investigation. [ 65 ] The pat-down search was also lawful. I accept that it was conducted for the purpose of ensuring officer safety. The police were investigating a potential assault. That is a crime of violence. The female walked away when the police arrived. The area is known to the

police as an area with a considerable amount of crime. It was late at night. They were on the street. The accused was fidgety. They did not know with whom they were dealing. Those factors amply support the police decision to conduct a pat-down search. [ 66 ] Once Clark located the pill bottle, he had a reasonable basis to suspect that he had not been given the suspect’s real name. This is not a case of hindsight.

Officer Clark was suspicious and reasonably so for the reasons he outlined. [ 67 ] In my view, those factors lead to the reasonable suspicion that the male may not have provided his real name and that more would need to be done to confirm his identification. Nonetheless, just because more needs to be done to confirm identity does not necessarily entitle the police to continue to detain someone for that purpose. Police duties and police powers are not necessarily co- extensive. [ 68 ] At this point, it is important to bear in mind the time frame involved. Mr. Hall was lawfully detained at 11:50 p.m.

Between that time and 12:03 a.m., the police concluded that there had been no assault and they received conflicting cues regarding Mr. Hall’s identification and his relationship with or knowledge of Ms. Russell. By 12:15 a.m., 12 minutes later, they confirmed Ms. Russell’s identification and learned Mr. Hall’s true identity and the existence of the outstanding arrest warrant. Before acting on that warrant, they obtained a photograph as further confirmation of his identity and then arrested Mr. Hall.

By 12:19 a.m., he was arrested. [ 69 ] In my view, a lawful investigative detention, as is conceded to have occurred here, includes taking steps to confirm the identities of the persons in detention where there is a reasonable basis to suspect that the identification may not be accurate and the length of time taken to confirm the identity, while not insignificant, is not overly lengthy.

A substantially longer period of time may not be justified but, in my view, twelve minutes was justified. [ 70 ] Turning to the search of the knapsack, the police had no right to search the knapsack or seize its contents when they did. If Mr. Hall consented to the search, and if the consent was informed, there would be no search or seizure within the meaning of the Charter . The defence raises two points in relation to the search. First, that Mr. Hall never pointed out the knapsack to the officer nor consented to the search.

Second, if he did consent it was not informed consent. [ 71 ] There are reasons to support Mr. Hall’s evidence that he did not point out the knapsack nor consent to its search. First, he knew he was wanted on a warrant. That was why he was providing a false name. Why would he point out a knapsack knowing it contained identification which could bring the warrant to light? Pargetter did not hear the consent even though he was nearby, though not necessarily close to Clark. Those factors suggest he did not point out the knapsack or consent to its search.

However, there are factors supporting Clark’s evidence that Hall did point out the knapsack and told him that he could look inside. Hall was acting with bravado that night. For example, when the officers told him that the name Benjamin Dunkirk produced no hits, he told the officers that not everyone gets into trouble with the police. Given that he was lying about his name and that he knew there was a warrant out for his arrest, that took a good deal of confidence in his interaction with the police. He might have been trying to bluff the officer.

Perhaps he did not realize that there was paperwork in his knapsack that contained his identification. Further, there were two knapsacks on the ground and the police searched only one. Clark testified that he only searched the one Hall identified. Why would Clark have searched that knapsack if Hall did not point it out? [ 72 ] In the end, I am unable to say that the accused has established that his version is more likely; however, that does not mean the search and seizure were lawful.

Any consent given was not informed consent given that he was detained at the time and was not advised of his right to counsel at the time he is said to have consented. [ 73 ] In 1992, the Ontario Court of Appeal considered the issue of informed consent in R. v. Wills . At paragraph 92, Doherty J.A. for the Court stated: I stress that Debot does not stand for the proposition that all persons must be advised of their right to seek the assistance of counsel before being asked to consent to what would otherwise be an unauthorized seizure. The right to counsel is triggered by a detention or arrest.

However, in holding that a consent search, where the consenting person was detained, should not proceed until the person had an opportunity to seek legal advice, Lamer J. was, impliedly at least, acknowledging that the decision to consent to a search had to be an informed one. Consequently, the detained person was entitled to the advice of counsel. This requirement is consistent with the application of the waiver standard to cases where the prosecution asserts that a seizure was consented to by an accused. [ 74 ] Accordingly, the consent was not informed and the search of the knapsack was contrary to

section 8 of the Charter . [ 75 ] To conclude, in the interaction that occurred between the police and Shaun Hall, the police violated

section 8 and 10(

b) of the Charter . [ 76 ] Turning to section 24(2), the defence argues that all evidence obtained during and flowing from the interaction between the police and Hall on December 24 ought to be excluded. This includes all conversations, the pill bottle, the document seized from the knapsack, the results of the searches conducted on the police computer and finally, the eye witness identification conducted a week following the arrest.

The defence submits all of that evidence was obtained in a manner that violated the Charter , whether causally or temporally. [ 77 ] In 2009, the Supreme Court of Canada reformulated the approach judges are to take when assessing applications under section 24(2) of the Charter . The Supreme Court emphasized that courts must examine all of the circumstances of what occurred in a particular case and determine whether, having regard to all the circumstances, the admission of the evidence could bring the administration of justice into disrepute.

That requires an assessment of the seriousness of the Charter infringing state conduct, the impact of the breach on Mr. Hall’s Charter protected interests and the value to society of having guilt or innocence decided on the merits. The focus of the inquiry is on the long-term effect on the administration of justice. As the Supreme Court of Canada stated at paragraphs 68-9 in Grant : The phrase “bring the administration of justice into disrepute” must be understood in the long - term sense of maintaining the integrity of, and public confidence in, the justice system.

Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system,

viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. [ 78 ] It must also be remembered that a violation of an accused’s rights under the Charter means there has already been some damage done to the repute of the administration of justice.

Section 24(2) seeks to determine whether admitting the evidence could bring the administration of justice into further disrepute. [ 79 ] In this case, there are different breaches of the Charter and different types of evidence that the accused seeks to exclude.

That must be considered as well. [ 80 ] Let me begin with the first consideration: the seriousness of the Charter infringing conduct. [ 81 ] When assessing the seriousness of the Charter infringing state conduct as it relates to the issue of whether to admit or exclude evidence, the underlying rationale is that Courts should consider whether admitting evidence obtained in breach of the Charter would be seen as the Courts approving of Charter infringing state conduct. The more serious the Charter infringing conduct, the greater the need for the Court to distance itself from that conduct by excluding the evidence.

Conversely, the less serious the misconduct, the less need for a Court to disassociate itself from the conduct by excluding the evidence. The inquiry is not an abstract one but is an assessment of what actually occurred in a given case. [ 82 ] The range of potential conduct which may violate the Charter is wide, from deliberate or egregious at one end to technical and acts committed in good faith at the other. [ 83 ] In this case, the violation of the right to counsel could be described as relatively serious. Not only did the police not advise Mr.

Hall of his right to counsel initially upon detention, I have found that they did not do so upon his arrest some 29 minutes after the initial detention. [ 84 ] With respect to the police conduct in relation to the search of the knapsack, I have found that any consent was invalid as it was not informed consent as a result of the violation of the right counsel. The conduct underlying the

section 8 breach is exactly the same as the reason for the violation of the right to counsel. In fact, it is less serious because the search occurred prior to the arrest whereas the violation of the right to counsel endured beyond the arrest. [ 85 ] Let me now turn to the impact of these breaches on Mr. Hall’s Charter protected interests. It is important to look at what protection the Charter afforded Mr. Hall in this encounter with the police and what impact those violations had upon that protection. When assessing the impact of the breach on Mr.

Hall’s Charter protected interests, the underlying rationale is that courts must demonstrate that it will take violations of the rights of accused seriously. The more significant the impact of the breach on the Charter protected interests of an accused, the greater the need for the Courts to exclude the evidence. [ 86 ] It is important to distinguish the various types of evidence being sought to be introduced. [ 87 ] The impact of the violation of Mr.

Hall’s right to counsel in this case meant that, while he was detained at roadside and interacting with the police, he was denied the benefit of his right to counsel. He consented to the search of the knapsack without being fully informed of his right not to consent. Therefore, as it relates to the search of the knapsack and the questions and answers that occurred, the violations had a significant impact upon his Charter protected interests.

It also enabled the police to learn that he was lying about his identity and the outstanding warrant. [ 88 ] Finally, there is a strong societal interest in ensuring that those charged with criminal offences have their guilt or innocence determined on the merits. Breaches which undermine the reliability of the evidence adduced are more likely to be excluded under this consideration. There is no suggestion that the evidence of Hall’s identity is at all unreliable.

This consideration militates toward admitting the evidence. [ 89 ] The court must balance all of these factors in deciding whether to admit any or all of the evidence obtained. [ 90 ] In my view, all of the questions and answers that occurred between the police, as well as the search of the knapsack and its contents must be excluded. Given the violations of his right to counsel and his right to be secure against unreasonable search and seizure, admitting that conversation and the evidence located in the knapsack would, if admitted, bring the administration of justice into disrepute in the long term.

The Court cannot countenance the search of the bag and the discovery of its contents by admitting the item seized nor can it admit any statement Hall made to the officer while detained and in violation of his right to counsel. The impact of these breaches in relation to those items was direct and significant. [ 91 ] The main evidence in contention in this Application is the application to exclude the photo line-up conducted with the alleged victim of the robbery one week after Mr. Hall’s arrest. I cannot conclude that that evidence should be excluded. The police investigated the robbery when it occurred.

They had a photograph of Mr. Hall. According to the agreed statement of facts, the police had already shown the victim of the robbery one photo line-up prior to Mr. Hall’s arrest and were continuing their investigation. This was obviously an open investigation of the robbery. Mr. Hall could have been arrested any time the police located him. The eye-witness identification is only temporarily connected to the breaches. There is no other connection and no aggravating circumstances from the breach that flow to the eye-witness identification. The breaches had no impact on the eye witness identification.

There are no doubt some cases where a witness’s evidence may be excluded where the breach either leads to the witness or is otherwise closely connected to the evidence but that is not this case. The value of a trial on the merits militates towards admission. [ 92 ] In my view, if I excluded the eye witness identification conducted because of the violation of the right to counsel that occurred here, in the long term, the repute of the administration of justice would suffer. Released: July 26, 2011

Signed: “Justice Borenstein”