R v Ethier, 2023 ABCJ 159

In the Alberta Court of Justice Citation: R v Ethier, 2023 ABCJ 159 Date: 20230704 Docket: 220731574P1 Registry: Red Deer Between: His Majesty the King Crown - and - Tyson Ethier Accused Decision of the Honourable Justice M.G. Allen Introduction [ 1 ] According to an old saw “many hands make light work.” While the presence of many police officers involved in an investigation can assist at the time of investigation, their presence tends to complicate the prosecution. Nevertheless, some investigations, especially ones involving dynamic events, require that many officers assist in the investigation.

This is such a case. [ 2 ] The applicant, Tyson Ethier, alleges that the police breached two of his Charter protected rights. First, they allegedly breached s. 9 Charter rights by arbitrarily arresting him. Secondly, he alleged that the police search of his motor vehicle was unreasonable and breached his s. 8 Charter rights. Facts [ 3 ] In this case, the parties agreed that the evidence related to the alleged Charter breaches would be presented in Charter voir dire and the admissible evidence would be applied from the Charter voir dire to the trial proper.

This is often called a blended voir dire . [ 4 ] The evidence was of two types: an agreed statement of facts, and the oral testimony of 6 police officers. The facts are not in serious dispute. [ 5 ] I have considered the credibility of the testimony of each police officer. Credibility has two aspects: honesty and reliability. Each officer, in my view, was forthright in their testimony so they testified honestly. When they were on the stand they had an independent memory of the events they were describing. Moreover, each had notes and referred to their notes so that they could be accurate.

Their testimony with one exception was consistent with their notes. I conclude that their evidence was reliable. That exception

concerned related to a memory of the events related by Cst. Fortin as to one aspect of his testimony. As I will explain that was not of consequence relating in this case. [ 6 ] For the purposes of these Charter applications, the most important witness was Cst. Alex Fortin. Cst. Fortin was at the command post at the RCMP detachment in Red Deer during the majority of the investigation. [ 7 ] On June 21, 2020, Cst. Fortin was at home when he received a telephone call from Cpl. Dan Earl. Cpl.

Earl was a colleague who had been previously stationed in Red Deer and in Saskatchewan, but was then in the North West Territories. Cpl. Earl told him that six motor vehicles had been stolen from a car dealership in Rosetown, Saskatchewan in the early morning hours of June 21, 2002. He also said that a Black Ford 350 “may be involved” in the theft of the stolen motor vehicles. Cst. Fortin went to the police detachment. While there he continued to receive other information. He also sought and received assistance from other police officers. He received many sources of information while there.

The detachment became a command post and he became the commander or directing mind of the investigation that followed. [ 8 ] One of those sources was an information obtained from a judicially authorized tracking warrant related to the cellular telephone of Zacharias Paradoski (Paradoski). [ 9 ] Another source was information from a female employee of Rosetown dealership. This lady was able to access information from the Global Positioning System (GPS) of one of the stolen vehicles, a Jeep Wagoneer (the Jeep) so that she was able to follow the progress of the stolen vehicle.

The female employee repeatedly telephoned Cst. Douglas, a colleague of Cst. Fortin, who was sitting near him at the police detachment. Cst. Douglas in turn conveyed this information. Cst. Fortin believed that the stolen vehicle might have been worth $100,000. [ 10 ] By piecing together these two sources information, Cst. Fortin believed that Paradoski was in the stolen vehicle, and was heading toward Red Deer where Paradoski resided. [ 11 ] At some point in the investigation, Cst. Fortin learned that two individuals had been arrested for the thefts of other vehicles from Rosetown.

One of those individuals arrested was Samantha Riggins (Riggins). Her cellular telephone was repeatedly called by a person identified on the telephone as “Tyson.” Neither she nor the police answered the call. The first name of the applicant is Tyson. [ 12 ] Cst. Fortin then sought assistance to apprehend Paradoski and the stolen vehicle. The plan involved the use of multiple police officers for surveillance, a police dog, and a helicopter. These officers were dispatched to various locations in and around Red Deer in an attempt to intercept the motor vehicle and arrest its occupants. Cst.

Fortin was able to follow the surveillance observations because he was listening to radio transmissions. He also gave directions by radio to the officers. [ 13 ] Police officers first spotted the stolen Jeep as it was travelling through Joffre, a town near Red Deer. No interception of the vehicle was possible because it was travelling at 160 kph. [ 14 ] The Jeep then entered the City of Red Deer. Cst. Fortin was receiving information as to travels of the motor vehicle from the surveillance members, the tracking device, the GPS information, and the helicopter. Cst.

Fortin described the situation as being both chaotic and dynamic during his testimony. In any event, the vehicle drove for approximately thirty to forty-five minutes through various areas of Red Deer frequently with the helicopter overhead. [ 15 ] Cst. Fortin learned that the occupants of the vehicle had been identified. Paradoski was the driver while a female, Tavia Robidoux, was in at the front passenger seat. He also learned that a Black Ford F 150 bearing licence number CCF2788 (the Ford) was seen “hanging out” in the area of the stolen Jeep. He explained that meant within 1 kilometre of the stolen Jeep.

The applicant was the registered owner of the Ford. He also learned that one officer observed the vehicle was driving suspiciously through a parking lot and thereafter driving circuitously. This behaviour was consistent with a heat check performed by those wishing to avoid police following them. [ 16 ] Cst. Fortin learned that the stolen Jeep was “ditched” at 3610 57th Ave where the two occupants alighted and entered the Ford.

During his testimony the officer did not remember if the occupants went directly to the vehicle or walked down an alley, waited under a tree for a while and shortly thereafter entered the vehicle. His notes supported this latter view. As well this is the version set out in the agreed statement of facts. I do not believe that the officer was being deceptive on this point; rather, he simply did not recall. His memory on this point are not as reliable as his notes so I find that he was told that the latter version is the reliable version and that is what should be applied in measuring his grounds. [ 17 ] Cst.

Fortin believed that the stolen Jeep was worth $100,000. [ 18 ] Cst. Fortin learned that the Ford was driven to 4346 44 Street where it was parked. He learned that Paradoski and Robidoux walked away from the vehicle. [ 19 ] Cst. Fortin then provided directions by radio to the officers at 44 Street. He directed the officers to arrest Paradoski, Robidoux, and the applicant for possession of the stolen Jeep. The applicant was to be arrested because he was a party to the possession of the stolen Jeep. [ 20 ] Cst.

Fortin also directed that the officers at the apprehension scene to seize the Ford, and arrange to have it towed to the secure identification garage in order for the police to do a “Burla” dump or search. A Burla search would allow the police to access information from a vehicle diagnostic system. This would include telephone calls made from the vehicle and the location of the vehicle from its internal GPS system. He acknowledged this type of search would require subsequent judicial authorization as well as possible damage to the vehicle. He intended to obtain a warrant to do this.

The GPS information would tend to prove or disprove whether the Ford at the car lot where the vehicles were stolen. [ 21 ] Cst. Fortin was aware that there was a policy in effect whereby seized vehicles were subject to an inventory search before they

were towed. The inventory search was to inspect for damage to the vehicle, and to do quick inventory the items found inside. He did anticipate that drugs would be discovered during the search. [ 22 ] Cst. Fortin explained that was “very suspicious” the applicant was involved in the possession of the stolen Jeep prior to point where the applicant picked up the occupants of the stolen Jeep.

He believed that when the applicant provided a ride to the occupants of the Jeep that he had sufficient information to believe that the applicant was a “party” to the offence of possession of that stolen Jeep. [ 23 ] The Burla dump was not attempted because after interviewing the applicant and Robidoux the police were satisfied that the applicant was not in Rosetown at the time of the thefts. [ 24 ] I will now briefly deal with the evidence of the other officers who testified. [ 25 ] Sgt.Olson was the leader of the take down team.

The team included multiple surveillance officers, the helicopter, and the police dog trainers. He first saw the stolen Jeep as it was speeding past in Joffre. It was going too fast to be stopped. The stolen Jeep was not always in view to the surveillance team. The team was able to follow the progress of the vehicle through as to its whereabouts from the GPS device. He went to the area where the Jeep was ditched on 57 Avenue. When he first passed the area, the Jeep was in a driveway, but he later saw it parked on the street.

He did not see Paradoski and Robidoux in the Jeep but saw them walking to an area under a tree. It took him 5-10 minutes to get to the address and another 5 to 10 minutes for the Ford to arrive and pick them up. The stolen Jeep was not visible from the area where the applicant picked up the two passengers. Sgt. Olson followed the Ford from the 57 Avenue location to where it stopped at 44 Street. The Ford drove without stopping in a “pretty much direct” route. At the 44 Street location he saw Paradoski get out of the Ford, and he did not notice Robidoux get out. Paradoski was carrying a black object in his hands.

The officer felt that Paradoski might have been concealing a firearm. They were apprehended nearby. At the time of his apprehension Paradoski had taken off his outer clothing and was dressed only in his underwear. [ 26 ] According to the agreed statement of facts Ethier was also arrested as well as three civilians on the lawn were detained for a short time in order to obtain information as to their identification. [ 27 ] Cst. Robert Leduc was involved in the surveillance but never saw the Jeep. During his surveillance he saw a Black Ford 350 bearing licence plate CCF2788.

He knew that a black F350 Ford may have been involved in the Rosetown auto thefts. The Ford had a slip tank on its side and its wheels were jacked up. The vehicle was driving in a suspicious manner. It drove through a strip mall parking lot without stopping. It also drove through Red Deer in a circuitous manner. He was able to see the driver. Later, he saw the Ford at the 44 Street address, and the driver outside. He recognized the applicant as the driver he had seen earlier.

He placed the applicant under arrest for possession of the stolen property exceeding $5000 because he believed that the applicant was involved in aiding the occupants of the stolen Jeep to escape. [ 28 ] Cst. Lynn Jones was working with Sgt. Olson and others in this investigation. She saw the Jeep drive past her location in Joffre at a high rate of speed. She did not see that vehicle again. Later, she was at the 44 Street location. Cpl. Von Crogh informed that someone at the office told him the Ford was to be towed to a secure location in preparation for a Burla dump.

Cpl Von Crogh directed her to do an inventory search of the Ford. She was assisted by Cst. Parenteau. At first Cst. Parenteau filled out the inventory form but later he searched the back seat of the Ford. She searched the front seat area and opened the centre console. Inside, she found a wallet containing cash and the applicant’s identification, 2 one hundred dollar bills found beside the wallet, more cash inside the wallet and 20 oxycodone pills in a bag. The total amount of cash found was $3,050. All of these were inside the centre console when she opened it. She then informed the Cpl.

Matthies, the exhibit officer, of what she found. In her view, the items found were sufficient to change the jeopardy of the applicant from possession of a stolen vehicle to possession for the purpose of trafficking. She testified that inventory searches are done mostly for safekeeping of the items found within the vehicle. [ 29 ] Cst. David Parenteau was involved with the surveillance team but made no personal surveillance observations. He was listening to radio transmissions and learned that the Ford vehicle was at the 44 Street location. He arrived there at 14.30 hours.

At first he assisted in the search for the two persons who fled the scene. This included a search of the residence of the homeowner to make certain the fleeing suspects were not inside. He attended to assist Cst. Jones with the inventory search. He recalled that she had already found the oxycodone by the time he arrived. Cst. Parenteau searched the back seat. He found several two backpacks and a large duffel bag. He unzipped the larger of the two backpacks and found items inside.

He saw a black case which he believed to contain digital scales, a green plastic bottle containing a liquid, and a container with what he believed to be methamphetamine. He also opened the other two bags. No further drugs were located. The large duffel bag contained clothing. Cst. Parenteau arrived at the 44 Street location at 14.30. By 15.12 the search was complete. It was a quick search of ten minutes. [ 30 ] The agreed statement of facts contains the items later found and seized by other officers in the backpack: (

i) a container labelled Winz with 26.8 g of methamphetamine (being slang for methamphetamine). (ii) a container labelled girlz containing 5 Nike bags of 1 g of cocaine (girlz is slang for powder cocaine). (iii) a container labelled Boyz containing 2 bags of crack cocaine (Boyz is slang for crack cocaine). (iv) a container of 30 g of cocaine. (

v) an Apple Air Tag (a tracking device) was located amongst 7 bags of methamphetamine each weighing 30 g each plus two additional bags weighing 15.9 g and 23.4 g. (vi) a green bottle containing 500 ml of liquid GBH. (vii) a measuring cup labeled “soda” with fine white powder believed to be baking soda or buff (viii) packaging tools and materials

(ix) a glass pipe The Position of the Parties [31] I will now set out the position of the parties as I discerned them from their written material and their oral presentation. [32] The applicant submitted that his s. 9 Charter rights were breached because the police did not have reasonable and probablegrounds to arrest him as a party to the offence of possession of a stolen motor vehicle. The search of his vehicle could only be justified ifthe search was incidental to a valid arrest. The search of his vehicle was not logically connected to the possession of a vehicle in anotherlocation.

The applicant had a reasonable expectation of privacy in his vehicle and its contents. The search of the motor vehicle was donewithout a warrant and the Crown had the onus of demonstrating that search was reasonable. Searches incidental to a valid arrest are notunlimited. They are limited to three main purposes: ensuring police or public safety, protecting the evidence from destruction, ordiscovering of evidence to be used at trial. The police were not searching for any of these purposes. They were doing an inventory searchin preparation for the vehicle to be towed.

In all of the circumstances the search was unreasonable and infringed the applicant’s s. 9Charter rights. The applicant submitted that the proper application of s 24(2) of the Charter should lead to the exclusion of the evidencefound in the warrantless search. [33] The Crown responded that the applicant was properly arrested. The applicant assisted someone who was in possession of astolen vehicle by helping that person flee from the police.

In such circumstances the police had reasonable and probable grounds tobelieve that he was a party to the possession because he aided or abetted the person who possessed the stolen vehicle. Therefore, thearrest was lawful and there was no s. 9 Charter breach. [34] The police seizure of the applicant’s vehicle and the subsequent inventory search of the applicant’s vehicle was related tovalid objectives related to the proper administration of justice. The vehicle was being towed to for further investigation and the inventorysearch was related done in furtherance of that further investigation.

The search was carried out in a circumscribed fashion only to achievethat goal. An inventory search of a vehicle is permitted where the vehicle was the probable instrument of the perpetration of the crime.Here, the vehicle was a probable instrument of crime related to the Rosetown thefts. As such there was no s. 8 Charter breach. [35] If there were breaches, then a proper application of s. 24(2) lines of inquiry should admit the evidence found through thesearch. [36] The position taken by the parties requires an exploration of many legal principles and the jurisprudence related thereto.

Ifound the decision of the Supreme Court in R. v. Tim 2022 SCC 12 (Tim) extremely useful. So, I have quoted extensively from Tim in myanalysis that is to follow. I will now set out that analysis under various headings below.

Section 9 of the Charter [37] Many of principles related to s. 9 of the Charter were succinctly reviewed by Jamal J. in Tim. At paras. 21-24 he observed: “Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” This Court has adopted agenerous and purposive approach to the

interpretation of s.9, one that seeks to balance society’s interest in effective policing with robustprotection for constitutional rights (see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 24; R. v. Grant, 2009 SCC 32, [2009] 2S.C.R. 353, at paras. 15-18 and 23). The purpose of s.9, broadly stated, “is to protect individual liberty from unjustified stateinterference” (Grant, at para. 20; see also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25).

Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s.9 of the Charter, unless the lawauthorizing the arrest or detention is itself arbitrary (see Grant, at para. 54; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20).Conversely, an unlawful arrest or detention is necessarily arbitrary and infringes s.9 of the Charter (see Grant, para. 54; R. v. Loewen,2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3). (

b) The Power of a Peace Officer to Arrest Without a Warrant Sections 495(1)(

a) and (

b) of the Criminal Code provide that a peace officer may arrest without warrant “a person who has committed anindictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” or “a personwhom he finds committing a criminal offence”. The applicable framework for a warrantless arrest was set out in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 250-51. A warrantless arrest requires both subjective and objective grounds.

The arresting officer must subjectively have reasonable andprobable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The objective assessment is based onthe totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from theperspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. The police are notrequired to have a prima facie case for conviction before making the arrest (see also R. v. Feeney, (SCC), [1997] 2S.C.R. 13, at para. 24; R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 28; R. v. Chehil, 2013 SCC 49, [2013] 3S.C.R. 220, at paras. 45-47; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73).” [38] Tim is not the only relevant jurisprudence concerning reasonable and probable grounds to arrest without warrant. I will visitsome of that relevant jurisprudence below. Which Officer’s Grounds Are to be Examined? [39] An issue can arise as to which officer’s grounds can be examined. It arises in this case. [40] In many circumstances, only one officer is involved in the arrest.

In such circumstances that officer’s grounds will need to beexamined to determine if the arrest is lawful. That is not necessarily the case where multiple officers are involved. In R. v. Debot (1989),

(SCC), 2 SCR 1140 (SCC)(Debot) the court held that the grounds of the officer who directed the arrest of the accusedby an officer who was simply following orders needed to be examined. Where multiple officers are working as a team the grounds of anumber of officers may be examined to determine if the arrest standard has been met. In R. v. Ha 2018 ABCA 233 (Alta. C.A.)(Ha),Justice Slatter explained at para. 77: “Policing is a team sport.

When a squad of police officers engage in any activity, such as an arrest or search, the knowledge of the entiregroup is relevant: R. v Cornell, 2010 SCC 31 at paras. 37, 42-3, [2010] 2 SCR 142, affirming R. v Cornell, 2009 ABCA 147 at paras. 36-8, 6 Alta LR (5th) 203, 454 AR 362; R. v Abdul-Hamid, 2015 ONCA 179 at paras. 6-7; R. v Labelle, 2016 ONCA 110 at para. 11. Inmany investigations there will be no one officer who knew all of the relevant information about the situation.” [41] In this case, the directing mind of the investigation was Cst. Fortin.

He was receiving information from various sources and ithis understanding of that information that must be examined to determine whether reasonable and probable grounds to allow for a lawfularrest. What Type of Information Can be Used? [42] The information used by officers in forming their grounds can come from various sources. Clearly, they can rely upon theirpersonal observations, but they are not limited to only those observations by McClung J.A. In R. v. Masurichan (1990), 1990 ABCA 170, 56 C.C.C. (3d) 570 (Alta.

C.A.) McClung J.A. explained at p. 574: “The important fact is not whether the peace officer's belief, as a predicate of the demand, was accurate or not, it is whether it wasreasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions will not result in its legal rejection byresort to facts which emerged later. What must be measured are the facts as understood by the peace officer when the belief was formed“ [43] In this case, the officer testified that the applicant had a criminal record including a record for auto theft.

The applicant’scounsel objected to the admission of this evidence. I allowed this evidence to be admitted as part of the background known to the officerbut indicated not much could be made of the evidence in deciding whether the officer had reasonable and probable grounds. I believe myview is consistent with the reasoning of Wilson J. in Debot where she observed: “I am sensitive to the argument advanced by counsel for the appellant that the reputation of a suspect should not be used to buttress anotherwise insubstantial case for searching a suspect.

At the same time I find it difficult to accept the proposition that the past activitiesof a suspect are irrelevant. Indeed, as Martin J.A. points out at pp. 220-21 of his judgment: Evidence of bad character or prior criminal misconduct by an accused is excluded at his or her trial on a criminal charge, not on theground that the evidence has no probative value, but on policy grounds, because the prejudicial effect of such evidence outweighs itsprobative value. These policy reasons are obviously not as cogent at the investigatory stage where the liberty of the subject is not directly at stake.

Moreover, I think it is somewhat artificial to assume that any one factor, be it reputation or something else, is responsible for turning apreviously "insubstantial" case into a sufficient one. Having said that, I add the following caveats to the use of reputation as germane tothe issue of a reasonable search. First, the reputation of the suspect must be related to the ostensible reasons for the search. Abackground of driving offences, for example, has little relevance to drug trafficking.

Second, if the reputation of the suspect is based onhearsay rather than police familiarity with the suspect, its veracity cannot be assumed. In the present case, it appears that the policerelied on both direct experience and hearsay.” At What Time is the Officer’s Knowledge Assessed? [44] In R v. Clayton 2007 SCC 32(SCC)(Clayton) the court explained that the reasonable and probable grounds are to be examinedat the time of the commencement of the Charter-infringing conduct. At para. 48 the Court wrote: “The officers’ safety concerns also justified the searches incidental to the detention.

The trial judge based his finding that Farmer’s andClayton’s s. 8 rights were violated on his conclusion that the decision to search them was made before the officer had the objectivegrounds to do so. This, it seems to me, ignores the fact that the relevant time is the time of the actual search and seizure. By that time,the officers had the requisite subjective and objective grounds. Intention alone does not attract a finding of unconstitutionality. It is notuntil that subjective intent is accompanied by actual conduct that it becomes relevant.

We would otherwise have the Orwellian result thatCharter breaches are determined on the basis of what police officers intend to do, or think they can do, not on what they actually do.

The Charter protects us from conduct, not imagination, and even a benign motive may not justify objectively unreasonable policeconduct. [45] Where the police have reasonable grounds at an earlier stage they cannot proceed to arrest if they subsequently obtainedinformation show that the grounds do not exist: Ha at para 73. [46] In these circumstances the conduct that allegedly breached the applicant’s Charter rights began at the time he was arrested.The subsequent seizure and search of the applicant’s vehicle occurred shortly thereafter. So, the appropriate time to examine theinformation known to Cst.

Fortin was at the time he directed the arrest. [47] Cst. Fortin was correct in not continuing to seek judicial authorization for the Burla search because the information hereceived from the applicant satisfied him that the applicant was not in Rosetown. So, his grounds to obtain the judicial authorization nolonger existed at that time. The Grounds Should be Examined as a Whole [48] It is important to understand when examining the grounds of the officers that the information should be examined as a wholecollectively rather than examining each piece of information piecemeal: R. v.

Jacques (SCC), [1996] 3 SCR 312 (SCC)

at para. 25; R. v. Nolet 2010 SCC 24 (SCC)(Nolet) at para. 48. [49] In Ha, Shutz J.A. explained that innocent explanations for some of the police observed behaviour will not legally orautomatically negative the officer’s objectively reasonable grounds: see para. 34. This observation is consistent with the analysis of theSupreme Court in R. v. Shepherd 2009 SCC 35(Shepherd). The issue there was whether the demanding officer had reasonable andprobable grounds to support a breath demand. Part of the reasoning of the demanding officer was based upon the observed the accused’svehicle being driven erratically.

The accused explained to the officer that he was driving in that manner because he believed the vehiclein which the officer was following him was an ambulance. Because of that explanation the trial judge found that the officer lacked anobjectively reasonable basis for the demand, held that the accused’s s. 8 Charter rights had been infringed, and excluded the breathsample results. The Supreme Court held that there was ample evidence to support the belief.

The Supreme Court explanation of the Reasonable Grounds Standard [50] The Supreme Court from time to time has attempted to explain the reasonable and probable grounds standard. In doing so theCourt has tried to make a distinction between that standard and suspicion. [51] In the landmark decision of Hunter v. Southam Inc. (SCC), [1984] 2 SCR 145 Dickson C.J. observed at p167: “The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the pointwhere credibly-based probability replaces suspicion.” [52] In Debot, Wilson J.

Held that the phrase “reasonable belief approximates the requisite standard.” [53] Another standard that was explored by the Supreme Court is that of “reasonable suspicion”. The Court explained that thislatter standard differed from “mere suspicion.” [54] In R v. Kang-Brown 2008 SCC 18 (SCC)(Kang-Brown) at para. 75 the Court commented: “The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is anexpectation that the targeted individual is possibly engaged in some criminal activity.

A “reasonable” suspicion means something morethan a mere suspicion and something less than a belief based upon reasonable and probable grounds.” [55] Subsequently, in R. v. Chehil 2013 SCC 49 Karakakatsanis J. adopted Kang-Brown approach and added at paras. .27 and 28: “Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must begrounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, ofcrime.

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the moredemanding reasonable and probable grounds standard The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police willreasonably suspect that innocent people are involved in crime.

In spite of this reality, properly conducted sniff searches that are based onreasonable suspicion are Charter-compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown, at para. 60, per Binnie J., and A.M., at paras. 81-84, per Binnie J. However, the suspicion held by the police cannot be so broadthat it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion “thatattaches to a particular activity or location rather than to a specific person”. [56] In R. v.

MacKenzie 2013 SCC 5)(SCC) the court observed at para. 73: ‘Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not — indeed must not — devolve into ascientific or metaphysical exercise.

Common sense, flexibility, and practical everyday experience are the bywords, and they are to beapplied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.’ [57] The comment was made in relation to the reasonable suspicion standard, but it seems to me that the same bywords that shouldequally apply to reasonable and probable grounds standard.

Possession of Stolen Property and Parties [58] The officer in this instance arrested the applicant as being a party to possession of the stolen jeep of a value exceeding $5000.As such, some brief exploration of possession and parties is useful. [59] A number of Criminal Code (the Code) sections are applicable to the offence of possession of stolen property. Section354(1)(

b) make it an offence to be in possession of property knowing that it is obtained by the commission in Canada of an offencepunishable by indictment. Section 355(1)(

a) provides that the possession of stolen property is an indictable offence punishable by a tenyear maximum where the Crown proceeds by indictment or a

summary conviction maximum where the Crown proceeds summarily. [60]

Section 3.1 (3) of the Code provides several

definitions of “possession.” According to subsection (a)(

i) a person is inpossession when a person is in personal possession. [61] Personal possession requires proof that the possessor had actual possession of the contraband and knowledge of the nature ofthe thing possessed: R. v. Beaver (1957), (SCC), 118 C.C.C. 129 (SCC). In the case of stolen property, the possessormust have control of the property as well as knowledge that the property was stolen. Where there is proof of possession of recently stolenproperty, the trier of fact can draw an inference that the accused had the guilty knowledge: R v. Kowlyk (1988), (SCC),43 C.C.C. (3d) 1 (SCC). This presumption does not offend s. 11(

d) of the Charter: R. v. Russell (1983), (NS CA), 4

C.C.C.(3d) 460 (N.S.C.A.). Clearly, here Paradoski who was driving the stolen Jeep was in personal possession of it. [62] The belief of Cst. Fortin was that the applicant was a party to Paradoski’s possession of that Jeep. The applicant did provideassistance to Paradoski when he drove him from the location nearby where the stolen Jeep was abandoned. [63] There are relevant Code sections relating to parties that will need to be examined in these circumstances. [64] Section 21(1)(

b) of the Code makes every one “does or omits to do anything for the purpose of aiding any person to commitit” [the offence]. commit it “[the offence]. It is this

section that the Crown relies upon. [65] In R . v. Briscoe 2010 SCC 13 , 2010 1 SCR 411(Briscoe) Charron J. explored party liability based upon s. 21(1)(b).She explained that the

section requires proof of an actus reus and a mens rea. The actus reus consists of “doing something (or in somecases omitting to do something) that assists the perpetrator to commit the offence (para.14). Proof of aid is not enough since the sectionrequires that the act been with a specific purpose or mens rea. The mens rea has two components: knowledge and intention. The Crownmust prove that the accused intended to assist the principal in the commission of the offence but does not require proof that the accuseddesired a successful completion of the offence (para. 16).

The knowledge component is found “where the aider knows that perpetratorintends to commit the crime, although he or she need not know how it will be committed” (para. 17). Recklessness is not sufficient toprovide the knowledge component. The knowledge component requires proof of actual knowledge or wilful blindness or wilfulignorance of the crime (see paras 20-26). [66] What will need to be explored here is did the information known to Cst. Fortin provide him with an objectively reasonablebasis to believe that the applicant intended to provide assistance to Paradoski in his possession of the stolen Jeep.

Also, did theinformation he possessed provide him with reasonable and probable grounds to believe that the applicant knew that Paradoski was inpossession of the the stolen Jeep or was wilfully blind to that fact. [67] Cst. Fortin believed that the applicant provided a means of escape to Paradoski when he drove him away from the scenewhere the stolen Jeep was ditched. As a result s. 23(1) of the Code is relevant.

It provides: “An accessory after the fact to an offence in one who, knowing that a person is a party to the offence, receives, comforts or assists thatperson for the purpose of enabling that person to escape.” [68] The

section itself makes it clear that the person who assists in the escape must know that the person they are assisting was aparty to a particular offence and provided that assistance “for the purpose of enabling the person to escape.” [69] In R. v. McVay (1982), (ON CA), 66 C.C.C. (2d) 512 (Ont. C.A.) the Court of Appeal upheld the accused’sconviction for murder. One of the issues was whether a certain witness was an accomplice so that an accomplice warning needed to beprovided to the jury.

The Crown argued that there was no evidence that supported that the witness was an accessory after the fact so thatan accomplice warning was necessary. The Crown argued that it was not sufficient that the accessory after the fact do the act thatassisted the person to escape but that the accessory must do those acts with the purpose of enabling the principal to escape. Martin J.A.accepted the Crown’s argument on these points. He held there was sufficient evidence, albeit tenuous, for the jury to consider. [70] In R. v.

Duong (1998), (ON CA), 124 CCC (3d) 392 (Ont.C.A.) (SCC) Doherty J.A. held that the s. 23(1)contemplates aid given to someone who has committed an offence (the principal) by a person who knew that principal had committedthat offence when the assistance was provided. So, the knowledge must be that the person committed a specific offence not somegeneralized offence. He also held that “wilful blindness” or “deliberate ignorance” could provide the knowledge required. Was the Applicant’s Arrest Lawful? [71] A lawful arrest is not arbitrary whereas a unlawful arrest is arbitrary.

Was the arrest here lawful? [72] Having set out the relevant jurisprudence, it now time to apply it to the circumstances here to determine whether theapplicant’s arrest was lawful. [73] Although Cst. Leduke arrested the applicant, the directing mind of the investigation was Cst. Fortin. He directed the officersto arrest the applicant of the arrest. He directed the arrest because he believed that he had reasonable and probable grounds to support alawful arrest of the applicant as being a party to the possession of recently stolen Jeep from Rosetown.

He used all of the informationcollectively to come to that decision. The last part of the information he received was the trigger that caused him to conclude that thecollective information he had gave him the basis to arrest the applicant. That information was that the applicant had picked up Paradoskia person who was in unlawful possession of the stolen Jeep and drove him to another location.

In the circumstances it is necessary toexamine whether the officer had reasonable and probable grounds to believe that the applicant was a party by aiding the principalParadoski in the latter’s possession of the stolen vehicle. Also, because the officer relied on the applicant transporting Paradoski whetherthere were reasonable and probable grounds to believe the applicant was an accessory after the fact pursuant to s. 23(1) of the Code. [74] An alternate innocent explanation arises in relation to the car ride that the applicant provided to Paradoski and his femalecompanion.

The applicant could have responded to a cell phone call from Paradoski asking for a ride without knowing that Paradoskiwas in possession of a stolen motor vehicle. However, as earlier noted an innocent explanation will not legally or automatically negativethe officer’s objectively reasonable grounds. As long as the officer’s grounds provide a reasonably probability then they will suffice. [75] So, the issue then is whether the information Cst. Fortin had provided him with a reasonable probability that the applicant wasparty to possession of the stolen vehicle.

Alternatively, did the information provide him with a reasonable probability that the applicantwas an accessory after the fact to Paradoski’s possession of the vehicle. [76] This was a warrantless arrest that requires the subjective and objective grounds. Officers must subjectively believe that theyhave reasonable and probable grounds to arrest, and those grounds must be justifiable from an objective point of view.

[ 77 ] Cst. Fortin explained the information he relied upon and the assumptions he made. He subjectively believed that the applicant was a party to the offence of possession of the stolen Jeep. This was because he believed that the applicant was in Rosetown assisting Paradoski and others in obtaining possession of the stolen Jeep. [ 78 ] The issue here is whether the information he had and the assumptions he made were justifiable from an objective viewpoint of a reasonable person with comparable knowledge and experience. The standard is one of reasonable probability and not possibility or reasonable possibility.

The reasonable person is expected to use common sense and practicality in making that assessment. The information known to the officers given rise to the grounds must be examined in their totality or collectively. [ 79 ] Cst. Fortin received information from various sources throughout the day. Let me reiterate in a

summary manner the information he received. [ 80 ] Cst Fortin first received information from a colleague who informed him of the theft of six motor vehicles from a Rosetown car dealership. This colleague told him that a Black Ford 150 might be involved in the thefts. Since six vehicles were stolen, it was reasonable for him to assume that more than one person was involved. Later he learned that a female had been arrested and she received phone calls from someone named Tyson. He received ongoing information as to the location of one of the vehicles stolen, the Jeep from an employee of the car dealership.

As well, because he had a tracking warrant relating to Paradoski he knew that Paradoski was in the stolen vehicle. Armed with that information he believed that the vehicle was headed to Red Deer so sought help from a team of officers to intercept the stolen motor vehicle. A helicopter was also used to track the progress of the stolen vehicle. The vehicle was not intercepted because it was going at a high rate of speed. He was able to overhear the transmissions of the surveillance team members as to the stolen Jeep’s progress in Red Deer.

He learned that Paradoski was driving the vehicle with a female, the stolen Jeep was driven in circuitous manner. At times the helicopter was hovering above. The helicopter made noise as it hovered. Under all of the circumstances it was logical to assume that the stolen vehicle was being driven in a manner to escape apprehension. In the meantime, the police spotted a Black Ford 150 owned and driven by the applicant driving within one kilometre of the stolen Jeep.

The driven in a somewhat suspicion manner as it drove without stopping through a strip mall, and seemed to be driving circuitously consistent with the driver wishing to avoid being followed. The Jeep vehicle was ditched and within a short period of time the occupants of that stolen Jeep entered the applicant’s Ford. The vehicle then drove to another location in Red Deer. The Ford was parked in a driveway and then on the street. Cst. Fortin gave directions that three parties were to be arrested Paradoski, Robidoux and the applicant. Cst.

Fortin arrested the applicant because he was a party to the offence of the possession of stolen Jeep. He also gave directions to seize the applicant’s motor vehicle. [ 81 ] The information known to the police officer must be examined collectively and not piecemeal. The whole may be greater than the individual parts. However, that does not mean that the nature of information provided cannot be considered to determine what inferences that can flow from that information in the constellation of the known information. [ 82 ] No one saw the applicant or his vehicle in Rosetown.

Nor did anyone see the applicant’s vehicle accompanying the stolen Jeep as the Jeep sped into Red Deer. Nor did anyone see the applicant or his Ford in the vicinity of the stolen Jeep while it was in Red Deer until the applicant arrived with his Ford to ferry Paradoski and his female passenger to another location. [ 83 ] Cst. Fortin based his belief that the applicant was in Rosetown largely upon three pieces of information. [ 84 ] Cst. Fortin received information that “a Black Ford 150 may be involved” in the thefts.

This was a conclusory statement with no details provided as to the manner that the truck was employed in the thefts. In addition, the informant did not positively say that the truck was involved rather it “may be involved.” Cst. Fortin acknowledged that there were “lots” of those trucks in Western Canada, and in Alberta. The applicant’s vehicle had some specific modifications: the wheels were jacked up and it had a tidy tank. No specifics as to that truck of a truck such as this were conveyed.

This was a vague piece of information at best. [ 85 ] Another part of the information provided was that repeated calls were being received on the cell phone a female arrested for theft in Rosetown from someone named Tyson. The phone was never answered to determine why this individual was calling. Certainly, the applicant’s first name is Tyson. The name Tyson is somewhat unique but a reasonable person would know that the applicant is not the only person with that name. [ 86 ] The last piece of information received by Cst. Fortin was extremely important to his thinking process.

That was the applicant arrived shortly after the stolen Ford was abandoned and that drove the occupants of the stolen vehicle to another location. This evidence was information that could be used as a basis to believe that the applicant was continuing to assist Paradoski with his possession of the stolen motor vehicle. [ 87 ] The evidence relating to the applicant’s alleged assistance to Paradoski by driving him away are important.

However, the information known to the officer concerning that alleged flight must be examined in detail to know what inferences can flow from it in the context of the totality of the evidence. I now turn to those circumstances. [ 88 ] By driving Paradoski away the applicant did assist Paradoki in an escape from police. It is reasonable to infer that Paradoski would want to avoid being stopped by the police while in possession of a stolen motor vehicle. He drove at an excessive speed while approaching Red Deer and drove circuitously while in the city.

At times a helicopter was overhead and Paradoski likely heard it from time to time. However, the police that were following were not in marked police vehicles nor did they want to be noticed. No one attempted to apprehend him when he ditched the stolen Jeep so it is unlikely that he realized that the police were nearby. If so, he would likely have attempted to flee as he did later when the police attempted to apprehend him. Paradoski or his passenger must have contacted the applicant to pick them up and drive them to the second location. [ 89 ] I turn now to s. 23(1) of the Code . Cst.

Fortin did subjectively believe that the applicant provided assistance to Paradoski by assisting him to escape. I am not certain that Cst. Fortin actually considered the accessory after the fact provision at the time of the arrest. However, even if he had done so it is my view that the information he provided would not have been sufficient to meet the reasonable and probable standard. [ 90 ] An accessory after the fact, must be someone who assists someone knowing the other had committed a particular offence and

assists the other for the purpose of enabling the other to escape. [91] In the circumstances the officer knew that the applicant did not see Paradoski and his passenger leave the vehicle but foundthem under a tree waiting for a ride with no one attempting to apprehend them. [92] I believe that a reasonable person armed with that information that Cst. Fortin would not agree that he had reasonable andprobable grounds to arrest the applicant as an accessory after the fact in these circumstances. [93] The applicant’s counsel submitted that finding as Cst. Fortin’s reasonable and probable grounds was not a close call.

I do notagree. I believe it to a close call which the officer made in a very dynamic situation. [94] When the evidence in totality is examined, I find that a reasonable person armed with the Cst. Fortin’s knowledge would notagree with Cst. Fortin that he had reasonable and probable grounds to believe that the applicant was a party to offence of possession ofthe stolen Jeep.

In other words, I am not satisfied that the collective information known to the officer provided him with a reasonableprobability that the applicant was a party to the possession of the stolen Jeep. [95] Although the arrest did not meet the standard of reasonable probability, it was sufficient to provide the officer with areasonable possibility that the applicant was a party to the possession of the stolen vehicle in Rosetown as well as a reasonable possibilitythat the applicant was an accessory after the fact to the possession of the stolen Jeep.

This standard is the standard that allows an officerto detain the applicant for investigative purposes. [96] I conclude that the applicant was subjected to an unlawful arrest thereby contravening his s. 9 Charter rights.

Section 8 of the Charter [97] In Tim Jahal J. summarized the jurisprudence relating to some of the principles concerning s. 8 of the Charter. The

summaryis found at paras. 45-47: “A warrantless search is prima facie unreasonable, and thus contrary to s. 8 of the Charter. The Crown bears the ons of demonstrating ona balance of probabilities that a warrantless search was reasonable (see R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, atpara. 11; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 32).

A search is reasonable, and thus complies with s. 8 of the Charter, if: (1) the search is authorized by law; (2) the law authorizing thesearch is reasonable; and (3) the search is conducted in a reasonable manner (see R. v. Collins, [1987] 1. S.C.R. 265, at p. 278; Caslake,at para. 10; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 36).” A search can be authorized by statute or by common law. The Limitations of Search Incidental to Arrest [98] The parties spent much of their submissions discussing the limitations of a search incidental to arrest.

Jurisprudence relatingto police searches other than Tim were referenced by their oral argument and written material. I will briefly deal with that jurisprudence. [99] Searches can be authorized by statue or common law. Crown counsel provided an example of the former, R. v. Wint (2009),2009 ONCA 52 , 93 O.R. (3d) 514 (Ont. C.A.). There the seizure of the vehicle was authorized because of a provincial statuethat allowed the vehicle of a stunt driver to be impounded. The court held the provincial statute allowed for an inventory search in thecircumstances which would not infringe s. 8 of the Charter.

Crown counsel seemed to believe that this was a precedent supporting theright of police to do inventory searches generally. I do not agree. The case is simply an illustration that the terminology in a statute canallow for such searches. [100] A search incidental to an arrest is subject to limitation. Most of the written submissions and some of oral submissions weredevoted to discussing those limitations. I will briefly deal with some of the relevant jurisprudence below. [101] In Clouthier v.

Langois (SCC), [1990] 1 SCR 158 (SCC)(Clouthier) L’Heureux-Dube J. set out the limits ofsearch incidental to a valid arrest. At p. 186 she explained those limits: “A "frisk" search incidental to a lawful arrest reconciles the public's interest in the effective and safe enforcement of the law on the onehand, and on the other its interest in ensuring the freedom and dignity of individuals. The minimal intrusion involved in the search isnecessary to ensure that criminal justice is properly administered.

I agree with the opinion of the Ontario Court of Appeal as stated inBrezack, Morrison and Miller, supra, that the existence of reasonable and probable grounds is not a prerequisite to the existence of apolice power to search. The exercise of this power is not however unlimited. Three propositions can be derived from the authorities anda consideration of the underlying interests. 1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the lawcan be effectively and safely applied without a search, the police may see fit not to conduct a search.

They must be in a position to assessthe circumstances of each case so as to determine whether a search meets the underlying objectives. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be athreat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.

Thepurpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for exampleif the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. 3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should beproportionate to the objectives sought and the other circumstances of the situation.”

[102] In R. v. Caslake (SCC), [1998] 1 SCR 51 (SCC)(Caslake) a police officer saw a vehicle parked on the side ofthe road. He saw the accused nearby in high bushes. The accused informed him he was relieving himself. They both returned to theirvehicles. The accused drove away. The officer returned to the area where he saw the accused in the bushes and found a garbage bag with9 pounds of marijuana. The officer pursued the accused and arrested him. Another officer arrived and took the accused to the policedetachment and arranged for the accused’s vehicle to be towed.

Six hours later the second officer did an inventory search of theaccused’s vehicle and found $1,400 in cash and two packages of cocaine. [103] The majority decision in Caslake was that of the Chief Justice. The minority decision was authored by Justice Bastarache. [104] The Chief Justice quoted and applied the Cloutier standard although he appeared to restrict those to three main purposesdiscussed by Justice Wilson: see para. 19.” [105] The Chief Justice held in these circumstances that the police officer testified that he searched the vehicle to comply with thepolicy.

The Chief Justice held that a search fell outside the proper purposes of the search incident to arrest. The proper purposes includean objective and subjective basis. The police must objectively search with the proper purposes of the search and subjectively have avalid purpose for the search incident to arrests Since the officer’s subjective purpose to follow the policy, the search was not for a properpurpose incidental to an arrest. see paras. 26-29. [106] At para. 30 he added: ‘If the police feel the need to inventory a car in their possession for their own purposes, that is one thing.

However, if they wish totender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority.” [107] Nonetheless, the Chief Justice found that the evidence should not be excluded pursuant to s. 24(2) of the Charter. [108] Bastarache J. wrote the minority decision. [109] Bastarache J. held that the Cloutier standard did not require the illustration of reasonable and probable grounds so that there wasno need to be concerned with the officer’s subjective basis for the search.

In his view the Chief Justice misapplied the Cloutier standardby unduly restricting the valid purposes of the search to only three main powers: see paras. 43-46. At para. 47 he wrote: “ While an inventory search may be conducted for the purposes of securing the vehicle and protecting its contents, it may, in fact,provide evidence against the accused if such evidence can be found or is found. Since the test is not a subjective one, the intention of theofficer is irrelevant and without any consequence, unless it is evidence of bad faith.

In the case at bar, the search can then be justifiedbecause it is in fact related to the proper administration of justice. The arrest was legal, as was the impounding of the vehicle. Thevehicle was a probable instrument in the perpetration of the crime. An inventory search was justified because its purpose was related tothe arrest and consequential impounding of the vehicle.” [110] Crown counsel emphasized this paragraph in her written submissions for the proposition that items seized from inventorysearches were in fact searches related to the proper administration of justice.

In her oral submissions she pointed out that this paragraphhad been used by other jurists to justify the admission of items seized pursuant to inventory searches. [111] While others may find solace using this paragraph to justify items seized in inventory searches I do not. This is found in thereasons of the minority and the Supreme Court has not adopted this paragraph in subsequent decisions. [112] Rather, the Supreme Court has adopted the approach taken by the majority in Caslake relating to inventory searches.

In Noletthe Court wrote at para. 53: ‘The following day an RCMP officer from the Integrated Proceeds of Crime Unit searched the tractor-trailer rig for the purpose ofcreating an inventory. Caslake ruled that “an inventory search per se does not serve a ‘valid objective in pursuit of the ends of criminaljustice’” because its purposes “relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in theirpossession for their own purposes, that is one thing.

However, if they wish to tender the fruits of that inventory search into evidence at acriminal trial, the search must be conducted under some lawful authority” (para. 30). Corporal Houston’s work was incidental to RCMPadministrative procedures rather than to the arrest of the appellants. As a result, it did not meet the requirements of a warrantless search,and the fruits of the “inventory” search were thus harvested in breach of s. 8.” [113] In his oral argument and written submissions counsel, Mr.

Lebessis, contended that the inventory search was not truly incidentalto the arrest because it did not occur in a timely manner. Moreover, he submitted that the search was not justified because it did notaccord with any of the main purposes of a search incidental to an arrest. I will deal with each of these submissions in order. [114] There was a delay of approximately 30 to 45 minutes after the arrest of the applicant until the search of the applicant’s vehicle.Certainly, delay is a factor that can be taken into account in determining whether the search is truly incidental to an arrest.

In Caslake theChief Justice explained how delay is taken into account at para. 24: “The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline onthe amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that aretruly incidental to arrest will usually occur within a reasonable period of time after the arrest.

A substantial delay does not mean that thesearch is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to thearrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanationfor the delay.” [115] In my view, there was the delay was not substantial. Moreover, the scene of the arrest was both dynamic and chaotic. Otherindividuals had been detained and were being processed. The officers were searching for two suspects who had fled.

[ 116 ] Mr. Lebessis also contended that the power to search incidental to an arrest was restricted to three purposes: (1) the discovery of an object that may be a threat to the safety of the police, the accused or the public, or (2) an object that may facilitate escape or (3) act as evidence against the accused. He submitted the search of the vehicle was not for safety reasons because the applicant had already been arrested. The evidence was not in jeopardy because the police had control over the vehicle and its content.

Finally, the vehicle need not be searched because there was no logical or relevant basis to establish possession of the stolen Jeep. I agree that police could not search the vehicle for any of the main purposes set out in Clouthier . [ 117 ] Where I digress is that I do not read the Clouthier purposes as being restricted to the three outlined. Wilson J. provided those as examples of valid objectives in pursuit of the ends of criminal justice.

She used the “such as” preceding setting out those objectives. [ 118 ] In this instance, the police were seizing the vehicle in preparation of obtaining a judicial authorization enabling them to do a Burla search or a diagnostic search of the vehicle’s onboard computer. It would seem to me that seizing the vehicle for that purpose is a valid objective in pursuit of the ends of criminal justice. The inventory search was done in preparation of that plan so it was closely connected to the valid objective. The inventory search was still a breach of s. 8 .

But the close connection of the inventory search to the valid objective is a matter that can be taken into account in applying the lines of inquiry pursuant to s. 24(2) of the Charter . Did the Police Breach the Applicant’s s.8 Charter Rights? [ 119 ] The police breached the s. 8 Charter right to free from unreasonable search or seizure. The justification for the seizure of the vehicle and the subsequent search thereafter was based upon the common law power of the police to search pursuant to lawful arrest.

Because I have ruled that the police did not lawfully arrest the applicant, the police cannot claim the search and seizure was incidental to a valid arrest. [ 120 ] Had the arrest been legal the police could have properly seized the applicant’s vehicle in pursuance of the valid objective in preparation for a judicial authorization of a Burla search. The inventory search prior to towing the applicant’s vehicle was a logical measure to maintain continuity of the vehicle and its contents as well as to return items to the applicant.

The police cannot expect that the fruits of such a search will necessarily be presented in evidence. Hence, the inventory search represented a breach of the applicant’s s. 8 Charter rights.

Section 24(2) of the Charter [ 121 ] Section 24(2) of the Charter provides that “when a court concludes that the evidence was obtained in a manner” that infringed a Charter right, “the evidence shall be excluded if it is established having regard to all the circumstances, the admission of it in the proceedings would bring the admission of justice into disrepute”. [ 122 ] I have ruled that the police did not have the basis to legally arrest the applicant and by so doing infringed his s.9 Charter rights.

In addition, I held that the search of the applicant’s vehicle could not be justified as being truly incidental to an arrest, so his s. 8 Charter rights were infringed. [ 123 ] In these circumstances there was clearly a causal and temporal connection between the Charter breaches and the discovery of the items within the applicant’s vehicle. So, the items were obtained in a manner that infringed a Charter right. [ 124 ] In R. v. Grant 2009 SCC 32 (SCC)( Grant ) the Court set out the lines of inquiry that must be balanced in addressing s. 24(2) of the Charter .

At para.71 the Court summarized the lines of inquiry: “When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.” [ 125 ] These lines of inquiry have been applied in subsequent Supreme Court cases. [ 126 ] I will address these lines of inquiry under separate headings below.

Seriousness of Charter Infringing Conduct [ 127 ] At para. 82 of Tim the Supreme Court summarized nature of the first line of inquiry as set out in the Grant analysis as well as the subsequent Supreme Court decisions: “The first line of inquiry under s. 24(2) considers the seriousness of the Charter-infringing state conduct. It asks whether the police engaged in misconduct from which the court should dissociate itself (see Grant, at para. 72 ). The concern of this inquiry is “not to punish the police”, but rather to “preserve public confidence in the rule of law and its processes” (Grant, at para. 73 ).

The court must situate the Charter-infringing conduct on a “spectrum” or a “scale of culpability” (Grant, at para. 74 ; Paterson, at para. 43; Le, at para. 143). At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute.

At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern (see Grant, at para. 74 ; Le, at para. 143; R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 22 ).” [ 128 ] To address the seriousness of the Charter infringing conduct of the police the circumstances of the applicant’s arrest and the

impugned search must be considered. The arrest was made in a very dynamic situation where action was required to deal with the individuals at the scene where the applicant stopped his vehicle. The police detained six people at the scene. Cst Fortin and the other officers were concerned as to the validity of the detention of the individuals they detained. The police quickly satisfied themselves that three of the individuals they detained were not involved at all and they were quickly released. Cst Fortin subjectively believed that he had reasonable and probable grounds that the applicant could be arrested. Cst.

Fortin subjectively believed that he could seize the applicant’s vehicle in preparation for a Burla search. Had he been right then this would have been a valid objective to seize the vehicle. The police who performed the inventory search did so in a quick and relatively unobtrusive manner.

They opened bags found on the back seat inside the vehicle and searched a centre console; they did not try to dismantle any portion of the vehicle as they might have done if searching for drugs. [ 129 ] Although the grounds of the officer were inadequate to meet the arrest standard, the grounds were sufficient to detain the applicant reasonable suspicion standard as he was lawfully detained for investigative purposes. A search pursuant to an investigative detention can be undertaken but it is extremely limited.

This search is limited to a pat down search where the officer has reasonable grounds to believe his safety and the safety of others is at risk: see Mann at para. 45 . [ 130 ] Good faith is a factor to considered relating to the police Charter infringing conduct because good faith will reduce the need for the court to dissociate itself from the police conduct. But good faith cannot be based on ignorance of Charter standards: Grant at para. 75 .

Nor can good faith be claimed where the Charter breach arises through the police officer’s negligence, unreasonable error, ignorance of Charter standards or ignorance as to the scope of police authority: see Tim at para. 85 . [ 131 ] In this situation, Cst. Fortin made a honest inadvertent error that the applicant could be legally arrested. In my view the error represented an overreach on his behalf. He and the other police officers were concerned about Charter rights and values and attempted to deal with those they had detained, including the applicant, consistent with those standards. Cst.

Fortin believed that the applicant’s vehicle could be seized in preparation for a diagnostic search of the vehicle for which he intended to obtain a judicial order allowing for the search. The officers who conducted the search believed that Burla search might be authorized but that they were required to do an inventory search before the vehicle could be towed. This policy was due largely for concerns about civil law suits. Part of the reason for their search was to return property such as identification documents to the applicant.

The police who conducted the search within the applicant’s vehicle in a cursory, unobtrusive manner. They honestly believed that a Burla search of the diagnostics of the vehicle was a valid objective. In my view had the arrest been legal the Burla search was a valid objective. The inventory search was a logical step for the police to take prior to the vehicle being towed to the secure lockup. An inventory search in pursuance of a police policy may allow the police to seize items it does not necessarily allow the fruits of the inventory search to be used in criminal prosecutions.

However, the inventory search was closely tied to the valid objective of Burla search. In my view, this reduces the seriousness of the invalid inventory search. The fruits of inventory searches have been admitted in other instances pursuant to s.24(2) . In Caslake the Court ruled that the officer did not realize that he had the right to search when he conducted the inventory search. In Nolet the court came to the same conclusion.

While this situation here is different from those cases, they are indicative that the fruits of an inventory search may be admissible in some circumstances pursuant to s. 24(2). [ 132 ] In addressing this line of inquiry it is necessary to situate the seriousness of the police conduct on a culpability scale. At the serious end conduct that is shows wilful, deliberate, or reckless disregard for Charter rights. At the less serious end are inadvertent, technical, minor or those reflecting an understandable mistake.

The police conduct in arresting the applicant and searching his vehicle was not in the flagrant wilful or deliberate disregard for the applicant’s Charter rights. The police were trying to comply with their responsibility relating to applicant’s rights. In my view, the conduct of the officer in arresting the applicant is at the very near the lower end. The seizure of the vehicle was also in the same vein because the police did this in preparation for a diagnostic search of the vehicle that in view was a valid purpose of the search incidental to the arrest.

The inventory search is more troubling because the police cannot expect that the fruits of this type of search could be introduced in a criminal prosecution. Nevetheless, they believed that an inventory search was a necessary step in order ensure that the vehicle would be properly secured. They carried out that search in an unobtrusive and relatively cursory manner.

When all the circumstances of this inventory search are considered the police conduct is still I believe that this is still close the lower end of the culpability scale. [ 133 ] An exploration of this line of inquiry somewhat supports exclusion to a small degree. The Impact on the Applicant’s Charter- Protected Rights [ 134 ] The second line of inquiry asks for a consideration of the impact of the breaches on the applicant’s Charter-protected interests.

I have found two Charter breaches: the first was a breach of s. 9 Charter guarantee because of the applicant’s unlawful arrest; the second, an unreasonable search and seizure of the applicant’s motor vehicle contrary to s. 8 of the Charter .

Section 9 protects the individual’s liberty from unjustified state interference: Grant at para. 20 ; Tim at para. 91 ). An unreasonable search contrary to s. 8 may impact the protected interests of privacy and more broadly human dignity: Grant at para.

Section 8: Grant para. 78 . [ 135 ] In Tim , the Court summarized the considerations related to the second line of inquiry: “The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter-protected interests. It asks whether the breach “actually undermined the interests protected by the right infringed” (Grant, at para. 76 ; Le, at para. 151). This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the breaches affected those interests (see Grant, at para. 77 ).

As with the first Grant line of inquiry, the court must situate the impact on the accused’s Charter- protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed. The greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (Grant, at para. 76 ; see also Le, at para. 151; Harrison, at para. 28 ).” [ 136 ] The applicant was arrested as he stood outside his motor vehicle. Neither the agreed statement of facts nor the arresting officer provided any detail as to the nature o of the restraint employed in arresting the applicant. Since he was represented by highly competent

counsel who posed no questions I will assume that there was nothing extraordinary about the degree of restraint used. No doubt the applicant was handcuffed, detained, and eventually transported to a police station. [ 137 ] Being subjected to an arrest and detention in a public where the police were not justified in making that arrest is troubling for anyone. However, he was not the only person who was so detained. Others who were merely present at the time were also detained as well. He, unlike them, suffered the indignity of being brought to a police station for questioning.

The detention relating to the arrest was not fleeting in nature. But this is not a case where the police were alleged to have used unsanctioned violence. [ 138 ] The applicant did have a right of privacy relative to his motor vehicle and contents found therein. However, that level of privacy was at a lesser level as searches of a residence or bodily cavity searches. In addition, the applicant would have an expectation that the state would not seize his personal motor vehicle that provided him with transportation.

The police seized the vehicle for the purpose in preparation for a judicial application to search his on board computer. His expectation of privacy relating to the digital information to be found in the onboard vehicle computer system was greater than that of the other items located within the vehicle. The search of a computer requires a judicially authorized warrant: R. v. Vu 2013 SCC 60 (SCC); R. v. Reeves 2018 SCC 56 (SCC).

Although the information contained on the onboard computer in the vehicle was likely not as private as that on a personal home computer, the applicant had a reasonable expectation of privacy in this information. To obtain this information the police were expected to obtain judicial authorization. This is exactly what Cst. Fortin proposed to obtain. [ 139 ] The unlawful arrest and the unreasonable search and seizure did have an impact on the applicant. So too did the seizure and subsequent search of the applicant’s vehicle.

The impact was not profoundly intrusive or did the impact seriously compromise the underlying rights infringed. The arrest was conducted in a routine manner. The seizure of the vehicle did affect the applicant’s right to move freely with his own transportation. The subsequent search did impact his right to the privacy in the possessions within the vehicle. None of these impacts meet the description as being fleeting, trivial, technical or transient. The impacts of the applicant’s Charter rights are moderate. [ 140 ] Consideration of this line of inquiry leads to moderately favour the exclusion.

Society’s Interest in an Adjudication of Case on Its Merits [ 141 ] In Grant the Court elaborated upon the factors related to the third level of inquiry at paras. 79-84. [ 142 ] I will summarize those factors set out in those paragraphs. [ 143 ] Society expects a criminal allegation to be adjudicated on its merits. The third line of inquiry asks whether the criminal trial process is better served by the admission of evidence or its exclusion. Society’s concern for this truth seeking function does not mean that reliable evidence should be admitted regardless of how it was obtained.

The reliability of the evidence is an important consideration as is the importance of the evidence to the Crown’s case. The admission of unreliable evidence does not serve accused’s interest in a fair trial nor society’s interest nor the truth seeking function. Conversely, the exclusion of such reliable and relevant evidence may undermine the truth seeking function and render the trial unfair from the perspective of the public thereby bringing the administration of justice into disrepute.

The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”. [ 144 ] Drugs, money, and drug paraphernalia were located within the applicant’s vehicle. This is highly relevant and reliable evidence and is of great importance to the prosecution. The truth seeking function of the trial strongly supports its admission.

Balancing the Lines of Inquiry [ 145 ] For guidance on balancing process, I return to the analysis in Tim at para. 98 : “The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140 ; Harrison, at para. 36 ).

Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68 ). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to th

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