R v. Kennedy, 2023 ABCJ 226

In the Alberta Court of Justice Citation: R v. Kennedy, 2023 ABCJ 226 Date: 20231102 Docket: 191004126P1 Registry: Grande Prairie Between: His Majesty the King Crown - and - Jennifer Kennedy Accused Ruling on Voir Dire by the Honourable Justice J. K. Sihra Introduction [ 1 ] Jennifer Kennedy is facing the following charges in this trial: 1. s. 320.17 CC (Flight from Peace Officer) 2. s. 320.13(1) CC (Dangerous Operation) 3. s. 86(1) CC (Careless Use/Storage) 4. s. 90(1) CC (Carry Concealed Weapon) 5. s. 91(2) CC (Unauthorized Possession of Firearm) 6. s. 94(1) CC (Possess Firearm in Motor Vehicle) 7. s. 95(1) CC (Possess Prohibited/Restricted Weapon) 8. s. 108(1)(

b) CC (Posses Firearm with Defaced Serial Number) 9. s. 117.01(1) CC (Possess Firearm Contrary to Order) 10. s. 54(1)(

a) TSA (Drive MV without Insurance)

11. s. 92(1) CC (Possess of Firearm) Voir Dire [ 2 ] Defence counsel filed a Form 1 alleging a s. 8 breach of the Canadian Charter of Rights and Freedoms (the “ Charter ”) . As such, the trial commenced within a voir dire . The Crown called the following witnesses: Cpl. David Illi, Cst. Jeffrey Field, Cst. Joel Durling, and Cst. Michael Millar. The only defence witness to testify in the voir dire was Ms. Kennedy. [ 3 ] Voir dire exhibits consisted of: a. V1 – Firearms Report b. V2 – Weapons Prohibition c. V3 – Cst. Durling’s police motor vehicle recording d. V4 – Photographs e. V5 - Cst.

Millar’s police motorcycle recording f. V6 – Crown Prosecutor’s notation as to the time ranges of the recordings that constitute the exhibits in Exhibits V3 and V5 Agreement as to Voir Dire Evidence [ 4 ] There was an agreement between counsel on the record that any evidence ruled admissible on the voir dire is to be applied to the trial proper without the need to recall evidence. Position of Parties [ 5 ] Ms. Kennedy argues that the warrantless search of the vehicle she was driving constituted a breach of her s. 8 rights under the Charter . The Crown conceded the breach.

The Court interprets the Crown’s position to mean that the search of Ms. Kennedy’s vehicle was not a valid search incidental to arrest although it purported to be. [ 6 ] The defence submits that the appropriate remedy for the breach is the exclusion of evidence (i.e., the “fruits” of the invalid search) pursuant to s. 24(2) of the Charter . The Crown argues that the items found in the search ought to be admitted into evidence despite the breach. Issue [ 7 ] Should evidence consisting of items (in particular, a loaded handgun and ammunition) found during the search be excluded?

Findings of Fact on Voir Dire Issue [ 8 ] On August 10, 2019, at about 1 AM on the city limits of Grande Prairie, Alberta, a female sole occupant of a passenger car stopped only momentarily at a Checkstop before driving on, almost striking an RCMP member. Despite being pursued by an officer (Cst. Millar) on a police motorcycle and another officer (Cst.

Durling) in a police motor vehicle with emergency equipment activated and reaching speeds in excess of 180 kph, the subject vehicle did not stop. [ 9 ] The police officer on motorcycle was left behind, but the officer in the police motor vehicle kept the subject vehicle in sight. The vehicle eventually slowed and turned into the town of Wembley, being driven at speeds of about 70 to 80 kph. It made a series of turns through main roads and residential areas and “ran” multiple stop signs. [ 10 ] The subject vehicle eventually turned into an alley and stopped. The driver exited the vehicle and fled. Cst.

Durling also stopped his vehicle and pursued the driver on foot. The driver climbed over a fence into a backyard. She dropped her purse then laid down on the ground pursuant to police directions. Cst. Durling arrested the driver for flight from peace officer and escorted her back to the police motor vehicle while advising her of Charter rights from memory. Shortly afterwards, Cst. Durling read Ms. Kennedy her rights from a Charter card. [ 11 ] Other police officers, including Cst. Millar and Cst. Oliver, had arrived where the subject vehicle was stopped. Cst.

Millar has 8 years’ experience with the RCMP. [ 12 ] Cst. Durling retrieved the dropped purse. The driver was identified as “Jennifer Kennedy” from an Alberta driver’s licence in the purse. [ 13 ] After the purse was recovered, Cst. Durling made a Mandatory Alcohol Screening Demand to Ms. Kennedy, and she

complied. The reading result was “zero”. It is unknown whether this result was shared with Cst. Millar or Cst. Oliver. [ 14 ] After conducting a query on the license plate, Cst. Durling determined that the motor vehicle was registered to a male. Cst. Durling concluded that perhaps the subject vehicle was stolen but unreported, and as the female driver had “abandoned” the vehicle and fled, Cst. Durling believed that her rights to privacy on that vehicle were limited. [ 15 ] Cst. Millar and Cst. Oliver searched the vehicle. Cst.

Durling does not recall providing those two officers with any information in regard to registration of the vehicle or any direction in how to conduct the search. At the time that the vehicle was searched, Cst. Millar knew that Ms. Kennedy had been arrested. Cst. Durling did not advise the other officers that Ms. Kennedy was under arrest for flight from police (although that would have been a fair inference on the part of Cst. Millar). [ 16 ] Cst. Millar instructed Cst. Oliver to look for vehicle documents in the vehicle. No evidence was provided as to why such vehicle documents were sought. [ 17 ] Cst.

Millar cannot recall if he or Cst. Oliver searched the motor vehicle first. Cst. Oliver went in the vehicle’s passenger door and Cst. Millar went in through the driver’s door. This search occurred around when Cst. Durling was reading Ms. Kennedy her verbatim Charter rights. [ 18 ] In the vehicle, Cst. Millar located a loaded .22 caliber handgun which had its serial number scratched out. The firearm was located in a duffel bag on the passenger seat behind the driver’s seat.

The bag contained other items, including a bottle of rum, a folding pocketknife, a fixed-blade knife, an extendable baton in a pink sheath, and three containers of medications bearing Ms. Kennedy’s name. [ 19 ] Cst. Millar could not recall if the duffel bag was “open” or “closed” when he found it. The bag did not have a lock or securing mechanism. [ 20 ] In the vehicle’s glovebox, Cst. Oliver, who did not testify, located ammunition, and so advised Cst. Millar. The ammunition found in the glovebox could be used in the handgun that was seized. [ 21 ] There is no evidence that Ms.

Kennedy made the police aware that the registration certificate was not located in the vehicle or of certain alleged circumstances such as that the bag on the back seat did not belong to her. [ 22 ] Vehicle documents were not found in the vehicle, and Ms.

Kennedy was charged with driving without insurance in addition to Criminal Code of Canada charges on the Information which is the subject of this matter. [ 23 ] Items found in the vehicle were photographed as per Exhibit V4 and seized by the police. [ 24 ] An expert examination determined that the seized handgun had its serial number “obliterated” and was a restricted firearm for the purposes of the Criminal Code as per Exhibit V1. [ 25 ] Ms. Kennedy was found to be subject to a Weapons Prohibition as per Exhibit V2.

Summary of Cst. Millar’s Evidence Relating to Search [ 26 ] The search of the motor vehicle was characterized by Cst. Millar in direct examination as being a search incidental to arrest. He also testified that the search was aimed at locating proof of insurance and registration documents for the vehicle. [ 27 ] During cross-examination, Cst.

Millar again characterized the search of the motor vehicle as being one incidental to arrest and aimed at locating motor vehicle documents but also provided other reasons as noted herein. [ 28 ] When asked if it is standard for police to find vehicle documents in bags and in back seats of cars, Cst. Millar answered that based on his experience, such documents can be found in many places. [ 29 ] Cst. Millar agreed that a bag such as that found could contain “fairly personal” items. He further agreed that typically a bag is something that someone would expect to be somewhat private in certain circumstances. Cst.

Millar has in the past found all kinds of items in bags. [ 30 ] In cross-examination, Cst. Millar also stated that when a motor vehicle is to be towed as was the case here, RCMP policy requires searching the vehicle beforehand to ensure there is “nothing of harm” inside such as a body, body parts, or weapon. Cst. Millar could not recall if the policy encompassed searching things such as a bag inside a motor vehicle. [ 31 ] In answer to questions during re-direct, Cst. Millar testified that the policy is always in mind when any vehicle must be towed.

However, he was unable to provide particulars about the policy. [ 32 ] Towing was necessary in this case as Ms. Kennedy was alone and under arrest. Cst. Millar believed that the motor vehicle did not belong to Ms. Kennedy, and no one else was present to take lawful possession of the vehicle. The vehicle could not be left where it was. The officer referred to s. 77 of the Traffic Safety Act , which gives authority to tow vehicles. [ 33 ] During cross-examination, Cst. Millar said that in his experience, vehicles fleeing from police have evidence or weapons inside.

He has located weapons in motor vehicles in such circumstances, which brings up safety concerns for police and the public, especially when the driver of the vehicle has fled and abandoned the motor vehicle. [ 34 ] When Cst. Millar located the bag, Ms. Kennedy was in custody and handcuffed, and therefore could not access the bag.

[ 35 ] Cst. Millar conceded that an application for a search warrant could have been made. He admitted it was possible to have secured the bag in a closed state and transported it to the police detachment. However, Cst. Millar said he would have concerns about taking anything to the detachment that could constitute explosives or drugs as they could harm someone. [ 36 ] At the point of searching the motor vehicle, Cst. Millar says the reasons for arrest were flight from police and possible impaired driving charges. Cst. Millar agreed that neither charge suggests that Ms. Kennedy would have explosives.

However, Cst. Millar testified that one can come across such in all walks of life and it is something of which to be aware and cautious. [ 37 ] However, Cst. Millar agreed that there was no specific concern at the time regarding what might be inside this particular bag. When he observed the bag, there were no indications on the outside as to what might be inside. He cannot “exactly say” if he had any sense at the time of the search that he might find a firearm in the motor vehicle. He cannot recall if Cst. Oliver located the ammunition in the glove box prior to Cst.

Millar locating the bag in which the firearm was found.

Summary of Ms. Kennedy’s Evidence Relating to Search [ 38 ] After Ms. Kennedy attempted suicide at the beginning of the summer in 2019, a social worker, Rudolph (“Rudy”), came to see her at the hospital and the two became friends. At around the end of May 2019, Rudy leant Ms. Kennedy the vehicle she was driving on August 10, 2019. Rudy wanted the vehicle back at the beginning of September. [ 39 ] Rudy retained the registration certificate for the vehicle. [ 40 ] Ms. Kennedy drove the motor vehicle quite frequently, driving to doctor’s appointments and such. When Ms.

Kennedy received the motor vehicle in her care, she did not inspect it. For the time it was in her possession, the only part of it she “used” was the center console, the driver’s door pocket, and trunk. [ 41 ] On August 10, 2019, when she encountered the Checkstop, Ms. Kennedy says she was on the way to Horse Lake to look for Ronalda Horseman. [ 42 ] Ms. Kennedy had met Ronalda three days before through another acquaintance, Curtis. Ronalda had arrived early in the morning and left at 11 PM. [ 43 ] Ms. Kennedy “hung out” with Ronalda and Curtis by driving around that day. [ 44 ] Ms.

Kennedy does not know what Ronalda did for a living or day-to-day. Ms. Kennedy thought Ronalda was using drugs as “she looked the type”. [ 45 ] Ronalda was in the backseat of the vehicle. She owns the duffel bag [found by Cst. Millar] and put it in the backseat. [ 46 ] Ms. Kennedy had asked Ronalda to put Ms. Kennedy’s medications in the bag as Ms. Kennedy did not have her purse with her. Ronalda obliged, and Curtis left about an hour later with the motor vehicle. [ 47 ] The day after meeting Ronalda, Ms. Kennedy made the first of several attempts over two days to return the bag to her.

Curtis would message Ronalda to arrange a meeting with her on behalf of Ms. Kennedy. However, whenever Ms. Kennedy would arrive at the meeting spot, Ronalda would not be there. [ 48 ] Ms. Kennedy says her intention was that if she was unable to find Ronalda at Horse Lake on the date in question, Ms. Kennedy would take her medications out of Ronalda’s bag. [ 49 ] The medications were for inducing sleep, relaxing muscles, and managing anxiety. Ms. Kennedy did not have the need to retrieve her medications earlier from the bag as she was not taking them as prescribed. [ 50 ] Ms.

Kennedy says she did not want to go through someone else’s bag. Ms. Kennedy did not know what else was in the bag, which was “closed”. While the duffel bag was in the motor vehicle, Ms. Kennedy did not access the bag. [ 51 ] Ms. Kennedy did not speak to Ronalda after Ms. Kennedy’s arrest. [ 52 ] When approaching the Checkstop, Ms. Kennedy admits she was driving. She had been blinded by the flashing lights as she is night blind. She put the car in “park”. That is the only thing she remembers about that night before she was standing in someone’s backyard, and someone was yelling at her to “Get Down!”. [ 53 ] Ms.

Kennedy had her purse with her when the officer told her to get down. In the car, the purse would have been by her lap at the side of the console. Ms. Kennedy says she always keeps the purse on her at all times. [ 54 ] Ms. Kennedy says she has experienced a couple of instances of which she is aware when she has had no memory of what happened. [ 55 ] The within voir dire is the first time Ms. Kennedy says she saw the gun and ammunition found in the motor vehicle she was driving. Section 24(2) Analysis [ 56 ]

Section 8 of the Charter protects against unreasonable search and seizure . The

section applies only when there is

the reasonable expectation of privacy: R v. Cole, 2012 SCC 53 (S.C.C.) at paras. 35-36. [57] The general rule is that a warrantless search is presumptively unreasonable and a prima facie breach of s. 8: R v. Nolet, 2010SCC 24 at para. 21; Cole at para. 37. [58] Therefore, the onus is on the Crown to establish the reasonableness of the search: R v. Fearon, 2014 SCC 77 at para. 120. [59] A search to be reasonable under s. 8 of the Charter must be authorized by law; the law itself must be reasonable; and thesearch must be carried out in a reasonable manner: R v.

Collins, (SCC), [1987] 1 S.C.R. 265 (S.C.C.) at p. 278. [60] As noted in R v. Caslake, (SCC), [1998] 1 S.C.R. 51: 30 . . . In order to meet the standards set out by the Charter, all searches must be authorized by law. Warrantless searches are prima facieunreasonable, and the burden shifts to the party who is seeking to uphold the search. This means, inter alia, the party must be able topoint to a law which authorizes the search. [61] The common law power to search incidental to arrest is an exemption to the general rule that a warrantless search ispresumptively unreasonable. In Cloutier c.

Langlois , (SCC), [1990] 1 S.C.R. 158 at pp. 180-81, L'Heureux-Dubé J.declared: . . . it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search alawfully arrested person and to seize anything in his or her possession or immediate surroundings . . .. [62] More recently, the Supreme Court of Canada noted in R v. Saeed, 2016 SCC 24 (S.C.C.): 1 The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluabletool in the hands of the police.

Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, andsolve crimes. . . . By the same token, it is an extraordinary power.

Searches incident to arrest are performed without prior judicialauthorization, and they inevitably intrude on an individual's privacy interests. . . . [63] A legitimate search incidental to arrest is based on achieving three goals: ensuring the safety of the police and the public;protecting evidence from destruction; and discovering evidence “of the offence for which the accused is being arrested”: Caslake atpara. 22 (emphasis in original). [64] “The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which thegrounds to obtain a warrant do not exist.”: Fearon at para. 16. [65] A valid search incident to arrest does not require exigent circumstances: Caslake at para. 20. [66] The legality of a search incidental to arrest depends upon the legality of the arrest itself.

If the arrest is unlawful, so also is thesearch incident to arrest: Fearon at para. 27. [67] The power to search incident to arrest is not limited to a search of the accused's person. So long as the search incident toarrest is temporally and spatially connected to the arrest, the power to conduct such a search extends to anything in the accused'spossession or immediate surroundings: Cloutier at paras. 53, 61. [68] In R v. Belnavis (1996), (ON CA), 29 O.R. (3d) 321, (Ont.

C.A.), aff’d (SCC), [1997] 3S.C.R. 341 (S.C.C.), with respect to the search without warrant of a vehicle’s trunk upon arrest of the driver for unpaid traffic fines,Doherty J.A. held that “[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes whichhave no connection to the reason for arrest.” [69] To be a search "truly incidental to the arrest," the Crown must meet both an objective and a subjective test.

The police musthave had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must beobjectively reasonable, which depends on what the police were looking for and why. An objective cannot be valid if it is not reasonableto pursue in those particular circumstances. The police must objectively have one of the purposes for a valid search incident to arrestwhen the search is being conducted. In addition, the officer's belief in this purpose must be subjectively reasonable: Caslake, at paras.19-21 and 25. [70] In R v.

Mann, 2004 SCC 52 (S.C.C.), the Supreme Court specified that a search flowing from an arrest must be objectivelyjustifiable at para. 40: The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified onthe basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. Relief Under s. 24(2) [71] R v.

Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.) provides a framework of analysis for determining whatrelief if any should be granted under s. 24(2) of the Charter once a breach is established. [72] The Supreme Court of Canada in Grant said that the purpose of s. 24(2) is to maintain the good repute of the administration ofjustice. The inquiry under that

section entails determining whether a reasonable person cognizant of all relevant circumstances andattuned to the Charter’s values would conclude that the admission of the evidence would bring the administration of justice intodisrepute. This assessment engages three lines of inquiry: seriousness of the breach, impact of the breach on the accused, and society's

interest in having the case adjudicated on the merits. [73] Each line of inquiry will be examined in turn for the case at bar.

(1) Seriousness of the Breach Law [74] Grant provides: 108 The first inquiry informing the s. 24(2) analysis — the seriousness of the Charter-infringing conduct — is fact-specific. Admissionof evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to concludethat the court implicitly condones such conduct, undermining respect for the administration of justice.

On the other hand, where thebreach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the court process. [75] As to seriousness of the breach, in R v. Harrison, 2009 SCC 34 , 2009 S.C.C. 34 (S.C.C.), the Supreme Court ofCanada noted: 22 At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.Did it involve misconduct from which the court should be concerned to dissociate itself?

This will be the case where the departure fromCharter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant.On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is muchless of a concern. [76] Justice Arbour in R v. Buhay (2003), 2003 SCC 30 , 174 C.C.C. (3d) 97 (S.C.C.) wrote: 52 The second set of factors relates to the seriousness of the Charter violation.

The seriousness of the police's conduct depends on"whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, willful orflagrant" (Therens, supra, at p. 652). [77] Justice T. Clackson in R v. Booth, 2010 ABQB 797(Alta. Q.B.) addressed the issue of "good faith": 11 In [Grant], the Court outlined a continuum from least egregious defined as "inadvertent or minor violations of the Charter " to themost egregious, defined as "willful or reckless disregard of Charter rights".

However, in an attempt to embrace the many decisionswhich pre-dated Grant, the Court in para. 75 attempts to give meaning to the notions of good faith and bad faith, that attempt is repeatedat para. 108. Plainly, "bad faith" is at the egregious end of the spectrum. Simple enough. But what of "good faith"? Does "good faith"embrace inadvertence, minor violations, or an honest but mistaken belief? If ignorance of Charter standards must not be rewarded andcannot be good faith, does it matter if the ignorance is honest? In my view, the problem with the use of the labels "good and bad faith" isthat they mislead.

The analysis is not defined by faith, or intent, but by the egregiousness of the state conduct. There is no addedrequirement to consider the mental processes of the authorities engaged in the breach, rather, intention is a part of the process ofdetermining how egregious the conduct was. It is a factor, not the answer. Therefore, to argue as the appellant has that the Learned TrialJudge should have found bad faith, misses the point, faith is not the appropriate legal standard. [78] As cited by the Supreme Court of Canada in R v. Tim, 2022 SCC 12 at para. 85: . . .

Good faith cannot be claimed if the Charter breach arises from a police officer's negligence, unreasonable error, ignorance as to thescope of their authority, or ignorance of Charter standards (see Grant, at para. 75; Buhay, at para. 59; Le, at para. 147; Paterson, at para.44). I also accept that "[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse,exclusion has been found to be warranted for clear violations of well-established rules governing state conduct" (Paterson, at para. 44;see also Harrison, at paras. 24-25). . . . [79] In R v.

Cudney, 2020 ABQB 694, the male accused was travelling as a backseat passenger in a motor vehicle driven by afemale. The vehicle was stopped by police and its occupants were ultimately placed under arrest. A subsequent search of the vehiclerevealed drugs, a mask, collapsible batons and three guns, one of which the Crown alleges was used to kill someone. R.J. Hall J. stated: 102 Sgt. Batten testified that he undertook the search of the blue bag out of a safety concern for his fellow officers. The issue is whetherthe purpose identified for the search was objectively reasonable in the circumstances.

I find it was not. 106 . . . while Sgt. Batten may have satisfied himself as to the need for a safety search incident to arrest, the belief so formed is notobjectively reasonable on the evidence. The requirement for a safety search of a vehicle when an individual who is unknown to policehas been arrested for document possession, removed from the vehicle and placed in handcuffs is not, in my view, apparent. [80] In R v.

Strachan, (SCC), [1988] 2 S.C.R. 980 (S.C.C.) at p.1008, the Court noted that the failure of the policeto explore other investigative techniques available (e.g. seeking a search warrant) shows the absence of a sincere effort to comply withthe Charter. In Collins, Justice Lamer at para. 49 noted this failure tends to render a Charter violation more serious. [81] The Court observed in R v.

Bakal, 2021 ONCA 584: 98 Third, . . . it is "the officer conducting the search" who "must reasonably believe that" a valid purpose "may be served by the search".When evaluating the constitutionality of the conduct of the officer conducting the search, it is not enough that others, including otherpolice officers, may have had lawful grounds to act. The issue is whether the state agent exercising the challenged police power had theauthority they purported to be exercising: R v. Gerson–Foster, 2019 ONCA 405, [2019] O.J. No. 2877, at paras. 77–78.

99 Fourth, there is an exception to the third principle just described that permits officers who do not personally have the requisitegrounds, to exercise police powers on the instruction or advice of other officers who do have the requisite grounds. However, an officerwho lacks the requisite grounds cannot confer authority on other officers to act lawfully: R v. Debot, (SCC), [1989] 2S.C.R. 1140, at pp. 1166–1167; Gerson-Foster, at para. 84. As noted by the majority in R v.

Ahmad, 2020 SCC 11, 63 C.R. (7th) 1(S.C.C.), at para. 32, "[T]he hunch or 'mere suspicion' of one police officer cannot become something more simply because it was sharedwith other officers". [82] The Court noted in R v. Yogeswaran, 2021 ONSC 1242: 68 Police entry into a vehicle to look for evidence or contraband exceeds the bounds of what the law permits, and motorists reasonablyexpect as part of routine roadside interactions between drivers and police, which are an inherent part of the highly regulated nature ofmotor vehicle travel.

At the scene of a collision, police entry into a vehicle to attend to the injured and address safety concerns are nodoubt reasonably expected. However, once police shift their focus from health and safety to investigating a potential offence, theminimum s. 8 Charter standards applicable when the state's purpose is law enforcement unquestionably apply: Hunter v. Southam, at pp.167-68; see also R v.

Jarvis 2002 SCC 73, [2002] 3 S.C.R. 757, at paras. 2, 84, 88–89 (explaining how s. 8 of the Charter's"reasonableness" requirements become more exacting when the state's purpose shifts from regulatory to investigatory). [83] Caslake speaks to inventory searches: 30 . . . Suffice to say that an inventory search per se does not serve a “valid objective in pursuit of the ends of criminal justice” (Cloutier,supra, at p. 186) in the context of an arrest such that it can be justifiably carried out under this warrantless common-law power. Itspurposes relate to concerns extraneous to the criminal law.

If the police feel the need to inventory a car in their possession for their ownpurposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the searchmust be conducted under some lawful authority. [84] As was noted in Bakal: 59 The common law makes good, practical sense — sense that can be applied on the ground in real search incident to arrest scenarios.Importantly, the common law does not expect the police to ask themselves pristine questions about the elements of an offence and howwhat they are looking for might tie into those elements.

Nor does the common law expect the police to consider complicated questions ofadmissibility. 60 Rather, the common law requires the police to ask whether the search is "truly incidental to the arrest in question": Caslake, at para.17. Officers must take into account all of the known information when deciding whether what they are looking for is truly incidental tothe arrest. At the end of the day, what is required is that the police are able to clearly explain why they did what they did and how it wasconnected to the arrest.

On that basis, an after-the-fact reviewer will be able to determine whether a "valid purpose connected to thearrest" was being pursued and, if so, whether it was "objectively reasonable" in the circumstances: Caslake, at paras. 19, 25. Analysis [85] There is no issue taken in this case with the fact that there were lawful grounds to arrest Ms. Kennedy. It also was notdisputed that the search was carried out in a reasonable manner. [86] In determining the seriousness of the s. 8 breach, this Court must consider how significant a departure from a valid searchincidental to arrest was the search in question.

The Court begins by noting that the police’s labelling or characterizing a search as asearch incident to arrest does not make it in fact a valid search incident to arrest. A search conducted shortly after arrest also does not bythat fact alone make the search a valid search incident to arrest. [87] As to the goal of safety forming the basis of the purported search incident to arrest, it is true that any vehicle can containitems giving rise to safety concerns, as Cst. Millar testified. Clearly however, only a vague and general safety concern existed on the partof this officer.

No witness articulated a specific safety concern as to the contents of the vehicle driven by Ms. Kennedy. Hence, it was toomuch of a stretch to perform a search purportedly incidental to arrest on safety grounds. [88] Related to the issue of safety, Cst. Millar also referred to s. 77 of the Traffic Safety Act (TSA), which authorizes a peace officerto “remove and take” (i.e., tow) a vehicle under certain circumstances. It is not clear that Ms. Kennedy had abandoned the vehicle per sé.The time frame for a deemed abandonment had certainly not been met under s. 76(2).

Therefore, there was no authority to tow thevehicle on the grounds of abandonment. However, the vehicle could properly have been towed on other grounds under s. 77(1). Cst.Millar did not however articulate how s. 77 could be relied upon to justify a search of Ms. Kennedy’s vehicle. Upon its wording, thatsection does not speak to a search. [89] Cst. Millar testified he was acting pursuant to an RCMP policy. If that policy obliged him to do an inventory search before thevehicle was towed, he did not articulate such.

Instead, he referred to the need to search the vehicle for items that “could cause harm”, butcould not illuminate such policy any further. In any event, there was no evidence that police officers on the occasion in question werecataloguing items seized from the vehicle before towing for administrative, safeguarding and inventory purposes. Even if they had been,an RCMP policy does not constitute either statutory or common-law authority for inventory searches or searching a vehicle for items that“could cause harm”.

Thus, any purported inventory search or other search of this nature was not authorized by law. [90] In Nolet at para. 54, evidence found in an inventory search was not excluded. However, what distinguishes that case from theone at bar is that in Nolet, there was a valid search incident to arrest in addition to an inventory search. [91] As to the goal of preserving evidence forming the basis of the putative search incident to arrest, Ms. Kennedy had beenarrested and handcuffed. There was no imminent danger of her accessing evidence within the vehicle.

[ 92 ] As to the goal of discovering evidence of the offence(

s) for which the accused was being arrested, Cst. Millar, as he was involved in pursuing Ms. Kennedy’s vehicle, would have been aware of imminent charges of flight from police, dangerous driving, and perhaps impaired driving. However, it was not likely that the police would have found evidence regarding such offences per sé in the motor vehicle itself. The only thing potentially in the vehicle would have been evidence explaining why Ms. Kennedy did not stop at the Checkstop and why she fled from police and why she drove as she did.

Strictly speaking, such evidence as to motive and the like does not constitute evidence of the offences themselves for which Ms. Kennedy was being arrested. [ 93 ] As to the search being motivated by a desire to locate vehicle documents (a rationale cited by both Cst. Durling and Cst. Millar), there was no evidence that Ms. Kennedy was being arrested for driving without insurance or with no registration. Nor was there evidence that Ms. Kennedy directly authorized the police to search the vehicle for proof of insurance or registration certification.

Nor was there evidence that she indirectly authorized the officers to look in the vehicle by advising that such documents could be found in the vehicle. Cst. Millar did not specify for what purpose such documents were being sought, be it to establish ownership of the vehicle or something else. Upon the evidence, therefore, a goal of locating insurance or registration documents was not a valid basis for officers to search the motor vehicle. [ 94 ] Another consideration is that alternative measures were available to the police to achieve their desired aims on a timely basis.

Section 489(2) of the Criminal Code would have permitted the police to seize the vehicle driven by Ms. Kennedy. As to next steps, as noted in Yogeswaran : 98 . . .

Should a police officer then wish to search that vehicle for evidence or contraband, absent exigent circumstances, well-established jurisprudence from the Supreme Court of Canada dictates that they can only do so lawfully and constitutionally under the authority of a warrant: Grant 1993, at pp. 241-43; see also Code , s. 487.11 (supplying police with the power to search without a warrant when they have the requisite grounds to obtain a warrant but it would be impractical to do so because of exigent circumstances). [ 95 ] In the case at bar, although the power to search incident to arrest does not require exigent circumstances, there is no evidence of such with respect to the search of the motor vehicle Ms.

Kennedy was driving. There was no imminent danger of the loss, removal, destruction, or disappearance of evidence if judicial authorization had been obtained prior to the search. [ 96 ] As to whether Cst. Millar considered whether Ms. Kennedy had a reasonable expectation of privacy, the evidence suggests that although Cst. Durling addressed his mind to that issue, Cst. Millar, who along with Cst. Oliver, actually searched the vehicle, did not. Yet, as noted in Yogeswaran , the law is not new in this area: 88 To begin, I do not believe that this application raises a novel constitutional question.

Simply put, there is nothing new about the police wanting to look inside a vehicle to locate evidence or contraband. Therefore, there is no need to engage with first principles on whether police intrude upon a reasonable expectation of privacy when they do so. The Supreme Court of Canada decided that threshold question under s. 8 of the Charter long ago. A vehicle owner — or a driver with the owner's permission — enjoys a reasonable expectation of privacy in his or her vehicle : Grant 1993 , at p. 242; Belnavis , at p. 354. [ 97 ] Cst. Durling in this matter was reasonable in concluding that perhaps Ms.

Kennedy’s vehicle was stolen but not yet reported. However, it was unknown at that point as to whether Ms. Kennedy was driving with permission of the registered owner. It appears that Cst. Millar and Cst. Oliver did not make further inquiry of Cst. Durling or anyone else as to this possibility. The Supreme Court of Canada in Fearon warned: 94 Of course, the police cannot choose the least onerous path whenever there is a gray area in the law.

In general, faced with real uncertainty, the police should err on the side of caution by choosing a course of action that is more respectful of the accused's potential privacy rights. . . . [ 98 ] Yet, the unique challenges faced by police officers in enforcing the law do not always afford the luxury of calm, leisurely, and fully informed decision-making. Shortly before the search, Cst Millar had pursued Ms. Kennedy’s vehicle on motorcycle at speeds in the realm of 200 kilometres per hour over a significant distance.

No doubt this officer’s adrenaline would have been running high upon arriving on the scene of the stopped vehicle. The Court recognizes this. All in all, however, although Cst. Millar might have subjectively believed that he was entitled to search the vehicle incident to arrest, such was not objectively reasonable. [ 99 ] In Tim , the Supreme Court of Canada concluded that the arresting officer, who had been on the force for only three years, made an honest mistake about whether gabapentin was one of the hundreds of controlled substances listed under the Controlled Drugs and Substances Act .

As such, the breach was deemed to be less serious. In the case at bar, however, Cst. Millar had eight years’ experience. He directed a second, presumably more junior, officer, to participate in the unlawful search. The grounds for a valid search incidental to arrest are well-established. They ought to be known to police officers and contemplated before such a search is commenced on this putative basis. Another consideration for the Court is that Cst. Millar during cross-examination added to his reasons for searching the vehicle.

The failure to list all reasons at the outset in direct evidence did create some question as to the true basis for the search. [ 100 ] Ultimately, the Court must hold that the invalid search incidental to arrest in this case was based either on unreasonable error, ignorance as to the scope of police authority, or ignorance of Charter standards. Entailing as it did “the basics”, and as the police did not even consider obtaining a search warrant, and in light of Tim , it is concluded that the police conduct in question did not occur in good faith.

Therefore, the search of the vehicle was quite significantly not incidental to arrest. Instead, the search was seemingly undertaken for collateral purposes. [ 101 ] Based on the foregoing, the police conduct of engaging in an invalid search incidental to arrest must be gauged as highly serious, which would call for the Court to dissociate itself from the "fruits of the police conduct" so as not to bring the administration of justice into disrepute. Thus, this line of inquiry favours exclusion of the impugned evidence from consideration at trial.

(2) Impact of the Breach on the Accused Law

[ 102 ] The Supreme Court of Canada stated in Grant : 77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. . . . The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. 78 Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [ 103 ] In general, a motor vehicle engages a lower expectation of privacy than a home: Grant at para. 113 . Yet, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter ”: Cole at para. 9 . [ 104 ]

Section 8 of the Charter is aimed at safeguarding citizens from unjustified intrusions into privacy by the state. To challenge a search pursuant to s. 8, one must establish a reasonable expectation of privacy: Cudney , para. 134. [ 105 ] R.J. Hall J. in Cudney observed: 140 . . . In my view, the case at bar establishes an expectation of privacy which is, at best, comparable to the accused's expectation in Chan . In that case, the accused was found driving a truck which he did not own, and which was registered to a car dealership, when he was stopped for a traffic infraction.

A search of the truck revealed a loaded handgun. In discussing the accused's reasonable expectation of privacy, the Court of Appeal held, at para 40 that: The trial judge should have considered the respondent's reasonable expectation of privacy. This was an important factor to consider under this heading, but the trial judge made no mention of it. We note that this search involved a motor vehicle that did not belong to the respondent. According to him, he drove it only occasionally, perhaps once a month, prior to this incident.

Also, according to the respondent, he did not own any of the items in the vehicle, and was totally unaware of the existence of any of them. That claim applied to the loaded gun. Against that backdrop, the respondent could hardly have enjoyed a high expectation of privacy vis-à-vis the vehicle and its contents. Quite the contrary, if a reasonable expectation of privacy existed at all, it would have been marginal at best. Indeed, the Crown at trial questioned whether the respondent even had standing to make this application.

Viewed in its proper light, this was certainly not a serious violation of a reasonable expectation of privacy: see Grant at para 78 . 141 In my view, the case before me has even less evidence supporting a claim to a reasonable expectation of privacy in the circumstances than in Chan . As such, I mirror the Court's finding that any reasonable expectation of privacy held by Mr. Cudney would be "marginal at best" and that the search was not a serious violation of his privacy interests. [ 106 ] Our Court of Appeal in R v.

Cudney , 2023 ABCA 279 at para. 56 held that the trial judge while considering the impact of the breach on the Charter -protected rights of the accused did not err in comparing Mr. Cudney’s reasonable expectation of privacy with the expectation of the accused in R v Chan , 2013 ABCA 385 . [ 107 ] The more likely it is that the evidence would have been discoverable even without the Charter breach, the lesser the impact of the breach on the accused's rights: Grant at para. 125 . [ 108 ] Whether grounds for a valid search warrant existed are to be considered, but they are not determinative.

The Court in Yogeswaran noted: 159 The fact that the police had the required grounds to obtain a warrant to search Mr. Yogeswaran's car and seize the ACM serves to lessen the impact on his privacy interests somewhat. Nevertheless, by proceeding without judicial authorization when they had grounds to obtain a warrant, the police undermined the very purpose of s. 8 of the Charter . That is, to prevent unreasonable intrusions on privacy before they occur rather than sort them out after the fact: R v. Côté 2011 SCC 46 , [2011] 3 S.C.R. 215, at para. 84 .

Analysis [ 109 ] The search in question surpassed being just a visual inspection of the interior of the vehicle. Instead, the search was fairly invasive as items were opened up, namely the glovebox and a bag on the back seat. However, Ms. Kennedy’s position in this case is similar to the accused’s stance in Chan . Ms. Kennedy claims that she did not own the motor vehicle, the duffel bag and its contents other than the medications, or the ammunition found in the glovebox of the vehicle. She in fact claims ignorance of most of the contents of the duffel bag and the presence of the ammunition in the glovebox.

Thus, following Chan and Cudney , this Court concludes that if Ms. Kennedy even had a reasonable expectation of privacy in the vehicle and its contents, it was at most marginal. Accordingly, the impact of the invalid search incidental to arrest that constituted the breach of s. 8 did not have a serious impact upon Ms. Kennedy: Grant at para 78 . [ 110 ] The breach of s. 8 of the Charter resulted in incriminating evidence being found. Although the search and seizure quite significantly impacted Ms.

Kennedy as she was charged with serious firearm offences as a result, the items found in the vehicle would also have been found had a search warrant been issued. [ 111 ] Ms. Kennedy was subject to a Weapons Prohibition at the time. Thus, although she disputes being in possession due to a lack of knowledge, she was not entitled to be lawfully in possession of the firearm and ammunition found in the unlawful search in any event. If Ms.

Kennedy did have possession, as in Bakkal at para. 131, the invalid search did not touch upon her person or property, “other than to rid [her] of possession of a handgun [she] could not legally possess.” [ 112 ] Considering the totality of circumstances in light of Chan and Cudney , this Court concludes that the impact of the s. 8 breach was minimal. This line of inquiry favors inclusion of the fruits of the search.

(3) Society's Interest in having the Case Adjudicated on the Merits Law [113] As per para 79 of Grant, the third line of inquiry explores three matters: 1. Public interest in the truth and the reliability of impugned evidence. 2. Importance of impugned evidence to prosecution. 3. Seriousness of charges in terms of public confidence in justice system. [114] The Supreme Court of Canada in R v. Le, 2019 SCC 34 wrote at para. 142: . . . we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to theCrown's case at this stage.

The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pulltowards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the thirdinquiry will seldom if ever tip the balance in favour of admissibility (Paterson, at para. 56).

Conversely, if the first two inquiries togetherreveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would notbe brought into disrepute by admitting the evidence. [115] As per Belnavis at pp. 225-226, “[t]he exclusion of reliable evidence essential to the prosecution of a significant criminal chargemust, in the long term, have some adverse effect on the administration of justice.” [116] Although there is an intensified public interest in seeing a trial on the merits when the charge is a serious one, there is acommensurate need for public assurance that the justice system is operating fairly when the penal stakes facing the accused are high:Grant at para 84. [117] As Doherty J.A. observed in R v.

Clayton (2005), (ON CA), 194 C.C.C. (3d) 289 (Ont. C.A.) at para.41, [2005] O.J. No. 1078 (Ont. C.A.), the “criminal conduct involving the use of firearms, especially handguns, is a serious and growingsocietal danger.” [118] In R v. Omar, 2019 SCC 32, the Supreme Court of Canada expressed agreement with the dissenting reasons of Brown J.A in Rv.

Omar, 2018 ONCA 975 when he specifically addressed gun cases: 122 In dealing with the third Grant factor in his s. 24(2) balancing exercise, my colleague states, at para. 56, that “[i]t is also worthrecalling that there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence.” 123 I do not quarrel with that proposition, put that way.

However, I would respectfully submit that to fail to give some recognition to thedistinctive feature of illegal handguns — which are used to kill people or threaten them with physical harm, nothing else — and, instead,to treat them as fungible with any other piece of evidence risks distorting the Charter's s. 24(2) analysis by wrenching it out of the real-world context in which it must operate. [119] Our Court of Appeal in Chan also recognized the special nature of firearms: 47 Although the trial judge acknowledged that the charge was serious when referring to firearms as dangerous, he did not appear toconsider the seriousness of a loaded handgun in the hands of a reputed gang member engaged in a gang war. 48 We are mindful that the focus of s 24(2) of the Charter is the long-term reputation of the administration of justice and that its goals“operate independently the type of crime for which the individual stands accused.” R v.

Burlingham, (SCC), [1995] 2S.C.R. 206 (S.C.C.), cited in Grant at para 84. We also recognize that in any event, the seriousness of the offence should not overwhelmother relevant considerations. 49 However, we consider society's interest in the adjudication of the merits to be greater where the offence is one that so literallyinvolves the safety of the community. As the trial judge noted, a loaded handgun in a vehicle is extremely dangerous. A sad illustrationof this may be found in R v. Wharry, 2008 ABCA 293, 437 A.R. 148 (Alta. C.A.).

Another alarming incident occurred in Calgary a fewyears ago when a man enjoying an early evening walk with a friend was shot in the face when a gun fight broke out across the street. Hewas left permanently blind. Obviously possession of such dangerous weapons by gang members engaged in a prolonged and deadly gangwar represents a serious threat to the safety of the community. 50 Clearly, the proper

interpretation of Charter rights cannot be charge-dependent such that they will be enforced in some cases, but notothers. However, when the offence strikes at the very stability and security of the community, the court must recognize that the publicinterest in an adjudication on the merits is heightened and that the decision to exclude reliable evidence critical to a prosecution is morelikely to have a detrimental impact on the repute of the administration of justice.

As has been noted in another context, the Charter is nota suicide pact.; Application Under s. 83.28 of the Criminal Code, Re, 2004 SCC 42, [2004] 2 S.C.R. 248 (S.C.C.) at para 6. Analysis [120] As to the first sub-inquiry, clearly, admission of the fruits of the search would be consistent with the truth-seeking function ofthe trial process. Also, it is noted that the breach of Ms. Kennedy’s rights under s. 8 of the Charter had no bearing on the reliability ofthe seized items. [121] As to the second sub-inquiry, the Court notes the evidence sought to be excluded is vital to the prosecution of the firearmoffences.

[ 122 ] As to the third sub-inquiry , although it is recognized that there is no evidence of gang involvement here, firearms offences in general cause great concern. They are yet more serious in the circumstances of this case. Not only was the firearm in question a handgun (which, due to its ease of concealment, gives rise to special safety concerns), but it was loaded. As well, additional ammunition was found within the vehicle. Furthermore, the serial number on this handgun was defaced. Moreover, Ms. Kennedy had a firearms prohibition at the time of the events.

While society has a strong interest in the adjudication of firearms offences in general, the foregoing circumstances accentuate this aspect. [ 123 ] Increasingly, firearm offences remain very common despite attempts at curtailment by law enforcement. Effective enforcement includes conviction of those who are clearly guilty on the merits.

It is clear that exclusion of evidence on an apparent if not actual technicality may be perceived negatively by members of the public. [ 124 ] In Grant , the impact of the breach was determined to be significant because the police would not have found the firearm but for the accused’s admissions that were in breach of the Charter .

Notwithstanding this significant impact, the firearm in question was still admitted into evidence due to the balancing of society’s interests in adjudication. [ 125 ] Based on the conclusions of the three sub-inquiries, the third line of inquiry in Grant favours inclusion of the fruits of the search.

(4) Balancing Grant Steps Law [ 126 ] The three steps in the Grant analysis cannot be weighed with mathematical precision: Grant at para 140 . Balancing must be done with a view to whether inclusion or exclusion would foster public confidence in the administration of justice over the long term at para. 68. Section 24(2)'s focus is "societal"; it is aimed not at "punishing the police or providing compensation to the accused", but rather at "systemic concerns" at para. 70.

Analysis [ 127 ] The first stage of the Grant analysis supports strong exclusion of the evidence as the s. 8 breach consisting of an unlawful search incident to arrest was serious. The second and third stages favor admission. Ms. Kennedy’s s. 8 privacy interest was, upon her own evidence, minimal. The evidence of fruits of the search is reliable. Firearms charges are increasingly common and pose a weighty public safety concern. Lastly, the exclusion of this evidence will eviscerate the Crown’s case on the firearm offences.

Balancing the three Grant factors together, this Court finds that admitting the items found in the search into evidence would not undermine the reputation of the criminal justice system in the eyes of a reasonable person aware of all the relevant circumstances. In fact, the converse would be true. Conclusion on s. 24(2) Analysis [ 128 ] The Court concludes that the balance favors the admission of the fruits of the search into evidence on the trial proper.

Excluding same would bring the administration of justice into disrepute given the totality of considerations and considering the grave nature and prevalence of firearms offences. Decision on Voir Dire [ 129 ] In the end result, the Court rules that all the Crown evidence adduced during the voir dire is admitted to the trial proper. The “V” exhibits now will simply consist of their numeric label. As to the evidence of Ms. Kennedy adduced in the voir dire , the Court will hear from defence counsel. Heard on the 19 th day of June, 2023 and the 14 th day of September, 2023.

Dated at the City of Grande Prairie, Alberta on the 2 nd day of November, 2023.

J. K. Sihra A Justice of the Alberta Court of Justice Appearances: D. Pizzey for the Crown A. Morrish for the Accused