2013 NBCA 64, 2013 NBCA 64

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 49-13-CA JUSTIN MANSOUR CHRISTIE APPELLANT JUSTIN MANSOUR CHRISTIE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Christie v. R., 2013 NBCA 64 Christie c.

R., 2013 NBCA 64 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : l’honorable juge Deschênes l’honorable juge Richard l’honorable juge Bell Appeal from a decision of the Provincial Court: March 19, 2013 Appel d’une décision de la Cour provinciale : le 19 mars 2013 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 15, 2013 Appel entendu : le 15 octobre 2013 Judgment rendered: November 13, 2013 Jugement rendu : le 13 novembre 2013

Counsel at hearing: For the appellant: Peter A. Corey For the respondent: Christopher R. Lavigne Avocats à l’audience : Pour l’appelant : Peter A. Corey Pour l’intimée : Christopher R. Lavigne THE COURT The appeal is allowed, the conviction is quashed and the Court directs a verdict of acquittal. LA COUR Accueille l’appel, annule la déclaration de culpabilité et ordonne l’acquittement. The following is the judgment delivered by THE COURT [ 1 ] Mr. Christie’s appeal against conviction is allowed. The conviction is quashed and we direct a verdict of acquittal.

Reasons for our decision will follow. _______________________________________ ALEXANDRE DESCHÊNES, J.A. ________________________________________ J.C. MARC RICHARD, J.A. _________________________________________ B. RICHARD BELL, J.A.

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 49-13-CA JUSTIN MANSOUR CHRISTIE APPELLANT JUSTIN MANSOUR CHRISTIE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Christie v. R., 2013 NBCA 64 Christie c.

R., 2013 NBCA 64 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : l’honorable juge Deschênes l’honorable juge Richard l’honorable juge Bell Appeal from a decision of the Provincial Court: February 7, 2013 (Conviction) March 19, 2013 (Sentence) Appel d’une décision de la Cour provinciale : Le 7 février 2013 (déclaration de culpabilité) le 19 mars 2013 (prononcé de la sentence) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite

Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: October 15 and 16, 2013 Appel entendu : le 15 et 16 octobre 2013 Judgment rendered: November 13, 2013 Jugement rendu : le 13 novembre 2013 Reasons delivered: January 30, 2014 Motifs déposés : le 30 janvier 2014 Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : l’honorable juge Deschênes Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Bell Counsel at hearing: For the appellant: Peter A.

Corey For the respondent: Christopher R. Lavigne Avocats à l’audience : Pour l’appelant : Peter A. Corey Pour l’intimée : Christopher R. Lavigne THE COURT The appeal is allowed, the contested evidence excluded, and a verdict of acquittal is entered. LA COUR Accueille l’appel, écarte les éléments de preuve contestés et inscrit un verdict d’acquittement. The judgment of the Court was delivered by DESCHÊNES, J.A. I. Introduction [1] The appellant appeals his conviction for simple possession of cannabis and possession of an ounce of cocaine

for the purpose of trafficking, for which he was sentenced to a 17-month prison term. As was the case in R. v. Aucoin, 2012 SCC 66,[2012] 3 S.C.R. 408, the appeal is concerned with the nature of a lawful investigative detention and the extent of police search powersincident to an investigative detention, as in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851.

In general terms, as the trial judge put it, thequestion will be “whether he (the arresting officer) stayed [within] or strayed from the boundaries of the Charter”, so as to engage ananalysis under s. 24(2) of the Charter to determine the admissibility of evidence of drugs found in the appellant’s vehicle. The appealalso highlights how a lawful investigatory detention can turn into an unlawful detention.

In addition, and perhaps more importantly, itunderscores the notion that authorized roadside stops must be limited to their intended purposes and do not “constitute a general searchwarrant for searching every vehicle, driver and passenger that is pulled over” (see R. v. Mellenthin, (SCC), [1992] 3S.C.R. 615, [1992] S.C.J. No. 100 (QL), para. 27). II. The Circumstances Surrounding the Detention and Search [2] The trial judge recited what he considered to be the most important circumstances surrounding the detentionand search: On Saturday, September 15, 2012 at 12:05 a.m.

Constable Smiley was patrolling alone in the area of Brookside Drive and Route 105 onthe north side of Fredericton in a marked police cruiser. He is a five year veteran of the Fredericton Police Force. He observed a vehicletravelling in front of him with an expired registration sticker. The two vehicles were stopped at a red light. When the traffic signalchanged the two vehicles moved forward and Constable Smiley conducted a traffic stop. At this point he was unaware of the identity ofthe driver who was the lone occupant of that vehicle.

Upon approaching the vehicle Constable Smiley made the usual request to see the operator’s driver’s license, registration and proof ofinsurance. The driver was unable to produce a driver’s license and had no current proof of insurance or registration. While speaking to the driver through the open window on the driver’s door Constable Smiley observed an open bottle of wine on thefloor behind the driver’s seat as well as a large buck hunting knife in the pocket of the driver’s door.

Constable Smiley testified that hethen placed the accused under investigative detention in his police cruiser in order to search the vehicle for liquor and weapons. He alsotestified that he intended to release the accused after the search; however, for his own safety Constable Smiley did not feel he couldrelease the accused with a buck knife or any other weapons on the roadside. Constable Smiley called for a second unit. The accused had been handcuffed and placed in the rear seat of the police vehicle.

Constable Smiley returned to the accused’s vehicle atwhich point he saw a bookbag or backpack on the front passenger seat. He proceeded to search it and located various quantities ofcocaine including a rock of some 28 grams, as well as marihuana, baggies and weigh scales. He also found two cellular telephones in thecenter console and an additional quantity of marihuana under the driver’s seat. When he completed the search Constable Smiley returnedto the police cruiser, identified the accused, arrested him for the various offences before the Court.

At this point he read to the accusedhis right to counsel and asked the accused what he wished to do with respect to it. The accused responded that he wished to speakimmediately to a lawyer but was informed by Constable Smiley that he would have to wait until he was at the station in order to ensurehis privacy.

The accused was later transferred to the – transported to the police station and searched again during the parading processand a small additional amount of cocaine was located on his person. [Transcript, February 7, 2013, p. 2-4] [3] For the sake of convenience, and for reasons that will become obvious later, the following circumstancestaken from the testimony of the arresting officer and not necessarily mentioned or emphasized by the trial judge ought to be recited here:

a) The appellant readily identified himself in response to a request from the officer and produced an expired vehicleregistration card bearing his name.

b) The appellant was being investigated for

summary offences under the Motor Vehicle Act, R.S.N.B. 1973, c. M-17, and theLiquor Control Act, R.S.N.B. 1973, c. L-10.

c) The hunting knife was properly in its case and stored in a space designated for storage in the driver’s door.

d) There was nothing in the appellant’s conduct which would raise any safety concerns for the officer, nor did the officer haveany reason to suspect that the appellant might be a danger to anyone.

e) The appellant was not asked to hand over the knife or the car keys before he was instructed to step out of the vehicle to be

handcuffed and placed in the police cruiser.

f) The officer had made contact with another unit on patrol very early on after the appellant’s vehicle was pulled over and he knew help would arrive within a few minutes. Although the circumstances recited by the trial judge could lead one to conclude that the call for a second unit took place after the appellant had been secured in the police cruiser, the evidence is that the call was made before the appellant was placed in the police vehicle.

g) As soon as the officer realized the appellant was unable to produce any relevant documents under the Motor Vehicle Act , there was no question in his mind that the appellant’s vehicle was going to be impounded.

h) The quick pat-down search of the appellant as he stepped out of his vehicle did not raise any safety concerns. III. The Decision Below A. The lawfulness of the detention [ 4 ] The appellant did not challenge the lawfulness of the original detention when his vehicle was pulled over for an investigation related to motor vehicle infractions. The appellant was ordered to pull over when the officer observed what appeared to be an expired license plate.

Section 15 of the Motor Vehicle Act would clearly permit the officer to detain for an investigation relating to infractions under the relevant legislation. However, the nature of the appellant’s detention changed when he was asked to step out of the vehicle, handcuffed with his hands behind his back and confined in the rear seat of the police vehicle. With respect to the lawfulness of that somewhat drastic detention, the trial judge stated as follows: Now then, I turn to the issue of the detention under

section 9 of the Charter . Counsel for the accused relies upon the decision in Aucoin v. R. , 2012 SCC 66 where it is stated at paragraph 43: In the context of a straightforward motor vehicle infraction, [which indeed this case was] I recognize that it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. But where reasonable necessity exists, no further balancing is required. So we have a situation where Constable Smiley suspected a Motor Vehicle infraction. He then saw the open wine and he saw a weapon in the vehicle.

He took the accused and placed him in handcuffs in the back of the police vehicle. At paragraph 35 in the Aucoin decision the court states: To be clear, I do not see this case as turning on whether [the police officer] had the authority to detain the appellant in the rear of his police cruiser having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case. The existence of a general common law power to detain where it is reasonably necessary in the totality of the circumstances was settled in R. v.

Clayton , 2007 SCC 32 , [2007] 2 S.C.R. 725 . That case moved our jurisprudence from debating the existence of such a power to considering whether its exercise was reasonably necessary in the circumstances of a particular case. As Abella J., for the majority, observed: The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope.

This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk. In the particular circumstances of this case I find that Constable Smiley’s actions were reasonably necessary to address the risk. He stopped the vehicle. He noticed the wine. No risk there.

But the minute he saw the knife in the pocket of the driver’s door it was reasonably necessary to remove or ask the accused to get out of his vehicle, place him in handcuffs and place him in the back of the police vehicle. In other words, as stated, where reasonable necessity exists no further balancing is required, and I find that reasonable necessity existed in the case at bar. [Transcript, February 7, 2013, p. 8-10]

B. The lawfulness of the search of the vehicle and the duffle bag [ 5 ] With respect to this issue, the trial judge relied on R. v. Nolet . He reasoned as follows: First of all, the Court must look at whether the search of the vehicle was legally authorized. The Crown submits, and I agree with the argument, that in determining the validity of the vehicle search the Court must conduct a step-by-step analysis of how the matter evolved from a Motor Vehicle Act stop into a search.

It is only by analyzing each of Constable Smiley’s actions that the Court can determine whether he stayed or strayed from the boundaries of the Charter . I refer to the decision of R. v. Nolet where the Supreme Court of Canada stated: … roadside stops sometimes develop in unpredictable ways.

It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. … Now, the Nolet decision dealt with the random stop of a tractor-trailer by the Royal Canadian Mounted Police in rural Saskatchewan. The fact situation is substantially different.

But in delivering the decision the Supreme Court of Canada states at paragraph 21: At the heart of this appeal lies the thorny issue of warrantless searches conducted in conjunction with random roadside stops. A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter , which guarantees to everyone “the right to be secure against unreasonable search or seizure”.

In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable: … As well, the court went on to warn against placing an exclusive focus on police powers under Motor Vehicle legislation to justify a search. Despite the apparent legislative authority under provincial legislation the court went on to stress the importance of considering Charter interests such as the accused’s right to privacy to determine the lawfulness of the search.

In that particular decision the court acknowledged that while the driver of a highway tractor had an expectation of privacy in the living area of the living quarters of the truck, that expectation would be tempered by the commercial nature of the vehicle.

Ultimately the court held as follows: A search is properly incidental where the police attempt to “achieve some valid purpose connected to the arrest” including “ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial ”: … In this particular case Constable Smiley testified that he conducted the search for his own safety as well as to attempt to locate other evidence. I find that the search was valid and justified.

I am reaffirmed to this decision by noting at paragraph 52 the court states: … the basis of the warrantless search was not “exigent circumstances” but connection or relatedness, i.e. to trigger the common law authority to search for evidence of the crime to which the arrest related: … [Transcript, February 7, 2013, p. 5-8] C.

The analysis under s. 24(2). [ 6 ] The trial judge found that there were no violations of any of the appellant’s rights under the Charter but then proceeded to a s. 24(2) analysis on the assumption that there were violations “in order to consider the applicability of a remedy under section 24(2) of the Charter ”. [ 7 ] After referring to R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 , and the general principles articulated therein, he referred to the three-part inquiry of which more will be said later. He continued:

Since I have found there is no Charter breach in the case at bar, I cannot embark on an inquiry with respect to (a) [seriousness of violation] or (b) [impact of the violation on accused]. As a result, I will limit my comments to the third branch of the test, “society’s interest in the adjudication of the case on its merits”. The accused is charged with possession of cocaine for the purposes of trafficking. Cocaine is a vile substance. Its effect on Canadian society today is insidious.

It ruins lives, it ruins families, it contributes to the breakdown of society in that those addicted to it often commit criminal offences. Considering this third branch of the test, I believe that any reasonable person well informed of the Charter rights would demand that a trial proceed to have a genuine adjudication on the merits based primarily on the very serious nature of the substance involved. As a result, I am holding that the charges can proceed.” [Transcript, February 7, 2013, p. 12] IV.

Analysis [ 8 ] Because issues related to the lawfulness of a detention and those related to the lawfulness of a warrantless search usually involve different police powers and address different protected constitutional rights, such as s. 8 (e veryone has the right to be secure against unreasonable search or seizure) and s. 9 (everyone has the right not to be arbitrarily detained or imprisoned) of the Charter, I intend to proceed with a distinct analysis for each issue. A.

The lawfulness of the detention [ 9 ] The appellant does not take issue with the proposition that he was being lawfully detained when he was pulled over and was being investigated for a

summary offence under the Motor Vehicle Act . As such, it was common ground this initial detention was statute-based, authorized and did not violate s. 9 of the Charter. [ 10 ] Notwithstanding the lawfulness of the original detention, the nature of the detention changed drastically when the appellant could not produce any of the required documents under the Motor vehicle Act and the officer observed an open wine bottle behind the driver’s seat and the handle of a hunting knife in a compartment within reach of the appellant.

The officer, having called for a second unit to join him, then asked the appellant to step out of the vehicle, did a quick pat-down search of the appellant, handcuffed him with hands behind his back and placed him in the rear seat of the police cruiser. The Court in Aucoin described a similar type of detention in this way: “ That decision carried with it increased restrictions on the appellant's liberty interests, and the added feature of an intrusion into his privacy interests.

Those factors, in my view, altered the nature and extent of the appellant's detention in a fairly dramatic way” (para. 34). [ 11 ] Although I hesitate to characterize that “detention” as an “investigative” detention, the officer did testify that he chose not to arrest the appellant, but rather to detain him in that manner to allow him to safely search for evidence of more “open liquor” and other weapons.

As far as he was concerned, the circumstances were such that it was necessary to secure the appellant in the police cruiser in handcuffs. [ 12 ] The following excerpt from his testimony encapsulates his views as to why he felt the detention of the appellant in the police cruiser constituted a lawful exercise of his detention powers: He had no insurance, he had no driver’s license, he had no registration. I was towing this vehicle. I had open alcohol; I was looking for more. I had this weapon; I was looking for more.

Before I gave him back any of his property and sent him on his way and towed that vehicle I’m certainly looking for weapons at this point. If that knife wasn’t there then it wouldn’t have been an issue. [Transcript, January 4, 2013, p. 83] [ 13 ] The finding by the trial judge that the “handcuffed detention” in the police cruiser was “reasonably necessary” was based entirely on the presence of a hunting knife in the vehicle, taking into account the time and place of the vehicle stop.

The trial judge found that “the minute he saw the knife in the pocket of the driver’s door it was reasonably necessary to remove or ask the accused to get out of his vehicle, place him in handcuffs and place him in the back of the police vehicle” (Transcript, February 1, 2013, p. 9). I disagree. With respect, although the trial judge was keenly aware of the principles underlying the concept of “reasonable necessity” discussed in Aucoin , he clearly failed to apply them in this case.

[ 14 ] For our purposes, it should be noted that Aucoin involved a young driver pulled over by a police officer because the license plate on the vehicle he was driving was registered to a different vehicle. He failed a roadside screening test and the officer decided to impound his vehicle and issue him a ticket pursuant to the Motor Vehicle Act . Fearing that Mr. Aucoin might disappear into the nearby crowd, the officer decided to secure Mr. Aucoin in the rear of his police cruiser while completing the paper work. The officer first conducted a pat-down search, after asking for and receiving Mr.

Aucoin’s permission. The officer felt something soft in his pocket and, when asked what it was, Mr. Aucoin said that it was ecstasy. He was arrested and searched further. The officer found cocaine and pills in his pocket.

It is common ground that one of the main issues revolved around the lawfulness of the driver’s detention in the rear seat of the police vehicle for safety reasons while the officer was writing the ticket under the Motor Vehicle Act (paras. 80- 87). [ 15 ] The Court made it clear that in order to be lawful, a detention must firstly be ‘‘reasonably necessary” in the totality of the circumstances and referred to the factors that must be considered, as stated by Abella J. in R. v.

Clayton , 2007 SCC 32 , [2007] 2 S.C.R. 725 . [ 16 ] The trial judge in this case recited paragraph 35 of Aucoin , where those principles are discussed. He failed, however, to ask the most relevant questions on the issue of “reasonable necessity” as discussed in the paragraphs following paragraph 35: Constable Burke knew that as a prelude to securing the appellant in the rear of his cruiser, he was going to do a pat-down search on him for reasons of officer safety and the appellant’s safety.

His reason for wanting to secure the appellant was to prevent the appellant from walking away and disappearing into the crowd. The trial judge accepted the officer’s evidence in that regard. It was late at night, the street was crowded with people, and the appellant’s vehicle was off-limits to him.

Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat -- knowing that this would also entail a pat-down search -- detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did.

If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter : Clayton , at para. 20 . Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke’s actions, though carried out in good faith, were not reasonably necessary.

In fairness to the trial judge, she was not asked to consider the matter from that perspective. I believe however, that had the trial judge applied the proper test, she would have found that the “necessity” component of it had not been met in the circumstances. In this regard, while there may be other examples, I note that two police officers arrived at the scene while the appellant was being searched by Constable Burke. That leads me to conclude that backup was close at hand, something Constable Burke could readily have ascertained.

Had he done so, he could have waited an extra minute or two to do the paper work, without impinging on the appellant’s right to be released from detention as soon as reasonably practicable. I caution, however, that a different factual matrix may well have supported a finding of reasonable necessity. And where such a finding is made, I respectfully disagree with the minority view that “the balance will generally not favour” securing a detainee in the back of a police cruiser (para. 86).

In the context of a straightforward motor vehicle infraction, I recognize that it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. But where reasonable necessity exists, no further balancing is required. As it is, Constable Burke chose to secure the appellant in the rear of the cruiser and pat him down as a prelude to doing so. But for that decision, there would have been no pat-down search.

Because detaining the appellant in the back of the cruiser would have been an unlawful detention -- given there were other reasonable means by which Constable Burke could have addressed his concern that the appellant might flee -- it cannot constitute the requisite basis in law to support a warrantless search: Collins , at p. 278. Therefore, the pat- down search was unreasonable within the meaning of s. 8 and constituted a breach of the appellant’s Charter right against unreasonable search and seizure.

With respect, the trial judge and the majority of the Court of Appeal erred in concluding otherwise. [paras. 38-44] [Emphasis added.]

[17] In fairness to the trial judge, he was never asked (as was the case for the trial judge in Aucoin) to consider thequestion of “reasonable necessity” from the perspective of whether there were other reasonable means available to the officer to alleviatehis safety concerns about the presence of the knife, short of what he did.

I am satisfied that had the trial judge been asked, and had heanswered, the proper question, he would have found that the “necessity” component of the test had not been met. [18] In that regard, I have recited many of the relevant circumstances (other than those recited by the trial judge)from the testimony of the arresting officer in paragraph 4 of this decision. The appellant was detained initially for infractions under theMotor Vehicle Act and the Liquor Control Act. His conduct was non-threatening.

After it became obvious the appellant could notproduce relevant documentary evidence the officer knew, then and there, that the vehicle would be impounded. The officer called foranother unit to join him and was informed this would occur in a few minutes. [19] Under such circumstances, obvious questions come to mind. Why, for example, was it important to rush intothis detention when, to the officer’s knowledge, a second unit was a few minutes away?

A short wait with the appellant being detained inhis own vehicle under the officer’s watchful eye until arrival of a second unit would not have impinged on the appellant’s right to bereleased from detention as soon as reasonably possible. Nor would a wait of a few minutes necessarily put the safety of the officer injeopardy. What prevented the officer from asking the appellant to hand over the keys to the vehicle? After all, the appellant could notproduce the required documents and would certainly not be allowed to drive away.

Would it be unreasonably unsafe to ask the appellantto carefully hand over the sheathed hunting knife?

Finally, is it unrealistic to think that the arrival of other officers on the scene wouldhave eliminated the necessity of the detention in the police vehicle and would not have jeopardized the investigation being carried on forinfractions under the relevant provincial statutes? [20] In my respectful view, the obvious answers to these questions reveal that the officer could have addressed hissafety concerns in a way that would have fallen well short of the drastic detention imposed upon the appellant. [21] The officer’s action in detaining the appellant in handcuffs in the rear of the police vehicle was not reasonablynecessary, and the trial judge did not properly apply the “necessity” test in concluding otherwise.

In my view, the erroneous applicationof the “necessity” test involves a question of law for which this Court does not owe deference. [22] Alternatively, even if the issue at hand involves a question of mixed law and fact, such that deference is owed,interference would still be justified on the basis that the trial judge materially misapprehended the evidence on the issues (see Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). [23] The appellant had the onus of establishing on a preponderance of evidence that the detention in the policevehicle was arbitrary. In my view, the onus has been discharged.

The detention in the police vehicle was unlawful and violative of theappellant’s s. 9 rights not to be detained arbitrarily. B. The lawfulness or reasonableness of the search of the vehicle, including the duffle bag [24] This issue was the main focus on appeal. [25] It is common ground the appellant had a privacy interest in the vehicle and the duffle bag, and that the searchwas conducted without prior authorization in the form of a warrant. As to the nature of the privacy interest in the vehicle, see R. v. Wise, (SCC), [1992] 1 S.C.R. 527, [1992] S.C.J.

No. 16 (QL), para. 6. [26] It is also common ground that once it has been determined the appellant had a reasonable expectation ofprivacy (albeit a “markedly decreased” one compared to one’s home or office), s. 8 of the Charter is engaged and the next step is todetermine whether the search or seizure was reasonable. On this point, the trial judge referred to R. v. Collins, (SCC),[1987] 1 S.C.R. 265, [1987] S.C.J.

No. 15 (QL), at p. 278, where the Supreme Court held that “[a] search will be reasonable if it isauthorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”. [27] The first question to be answered is whether the search of the vehicle and the duffle bag was “authorized” by

common law or by statute. [ 28 ] The appellant argued the trial judge “appears to have equated the authority under the investigative detention being limited to searches for personal safety only, to that of a search pursuant to ‘arrest’ which includes the power to search for evidence as well […] None of the cases involving ‘investigative detention’ appear to support a search for evidence”. [ 29 ] The respondent relied upon Nolet and the relevant statutory provisions found in our own Provincial Offences Procedure Act, S.N.B. 1987, c.

P-22.1 (“ POPA” ) and more particularly the Search and Seizure provisions in s. 135 and others. I find it helpful to set out the provisions that relate to warrantless searches: 135

(1) A peace officer may search, without warrant, any vehicle or container if the peace officer believes, on reasonable and probable grounds, that there is in or upon the vehicle or container an item of evidence and that it is impracticable in the circumstances to obtain a search warrant. […] 136

(1) A peace officer may seize (

a) any item of evidence the peace officer finds during a lawful search, (

b) any item of evidence found in plain view in a place where the peace officer lawfully is, and (

c) any weapon or any implement that could be used to effect an escape that the peace officer finds during a search under subsection 133(2). […] 137 A peace officer has no power to search any person, place, vehicle or container for an item of evidence except (

a) the powers given under this Act, 135(1) Un agent de la paix peut perquisitionner sans mandat un véhicule ou un contenant si l’agent de la paix a des motifs raisonnables et probables de croire qu’il existe à l’intérieur du véhicule ou du contenant ou sur le véhicule ou sur le contenant un élément de preuve et qu’il est impraticable dans les circonstances d’obtenir un mandat de perquisition. […] 136(1) Un agent de la paix peut saisir

a) un élément de preuve qu’il trouve au cours d’une perquisition légale,

b) un élément de preuve trouvé bien en vue dans un endroit où l’agent de la paix se trouve légalement, et

c) toute arme ou instrument au moyen duquel une personne peut s’échapper que l’agent de la paix trouve au cours d’une perquisition en vertu du paragraphe 133(2). […] 137 Un agent de la paix n’a pas de pouvoir de fouille sur une personne, de perquisition à l’égard d’un endroit, d’un véhicule ou d’un contenant, pour un élément de preuve sauf

a) les pouvoirs accordés en vertu de la présente loi,

b) les pouvoirs accordés par toute autre Loi qui autorise qu’une saisie soit effectuée conformément à la présente loi, et

(

b) the powers given by any other Act which authorizes a search to be carried out in accordance with this Act, and […] (

d) any powers given by common law or statute in relation to persons lawfully detained or held in lawful custody. 138

(1) A peace officer who has reasonable and probable grounds to believe that there is an item of evidence in or upon any place, container or vehicle may apply to a judge for a search warrant. 138

(2) An application for a search warrant shall be made, on oath or solemn affirmation, (

a) in person, or (

b) by telephone or other means of telecommunication, to a judge designated by the chief judge, where the application is made in relation to a prescribed offence and it is impracticable for the peace officer to appear before a judge in person. [Note: offences under the Liquor Control Act , such as unlawful possession of liquor, are prescribed offences: N.B. Reg. 91-50 , s. 12( c )] 138

(3) Where an application is made under paragraph (2)(b), the judge may administer the oath or solemn affirmation by telephone or other means of telecommunication. [DEFINITIONS] “item of evidence” means anything that a peace officer believes, on reasonable and probable grounds, may provide evidence of the commission of an offence; “offence” means an offence created by

an Act or by any regulation or by-law made under an Act; “weapon” includes any thing by which a […]

d) les pouvoirs accordés par la common law ou statutaires relativement aux personnes légalement détenues ou détenues sous garde légale. 138(1) Un agent de la paix qui a des motifs raisonnables et probables de croire qu’il existe un élément de preuve dans un endroit, dans ou sur un contenant ou dans ou sur un véhicule peut faire une demande à un juge pour l’obtention d’un mandat de perquisition. 138(2) Une demande pour obtenir un mandat de perquisition doit être faite sous serment ou par affirmation solennelle

a) en personne, ou

b) lorsqu’il est impraticable pour l’agent de la paix de se présenter en personne devant un juge, et lorsque la demande est faite relativement à une infraction prescrite, par téléphone ou par un autre moyen de télécommunication, à un juge désigné par le juge en chef. [Remarque : Les infractions à la

Loi sur la réglementation des alcools, comme la possession illégale de boissons alcooliques, sont des infractions prescrites, voir al. 12

c) du Règlement du N.-B. 91-50.] 138(3) Lorsqu’une demande est faite en vertu de l’alinéa (2)b), le juge peut recevoir le serment ou l’affirmation solennelle par téléphone ou par un autre moyen de communication. [DÉFINITIONS] « arme » s’entend également d’une chose par laquelle une personne peut se blesser ou blesser une autre personne; « élément de preuve » désigne toute chose pour laquelle un agent de la paix a des motifs raisonnables et probables de croire qu’elle peut fournir une preuve de la perpétration d’une infraction; « infraction » désigne une infraction créée par une Loi de la Législature ou par tout règlement ou arrêté établi en vertu d’une Loi[.]

person may cause harm to himself or herselfor to another person[.] C. The common law power to search incident to a lawful investigatory detention [30] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Court described the common law power to searchincidental to an investigative detention: To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds tosuspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

In addition,where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in aprotective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonablemanner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on thedetained individual to answer questions posed by the police.

The investigative detention and protective search power are to bedistinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [para. 45] [31] These limited searching powers are to be contrasted with the searching powers incident to an arrest, where thethree main purposes of a search are to ensure the safety of the police and the public, the protection of evidence from destruction, andthe discovery of evidence that can be used against the accused (see Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158,[1990] S.C.J. No. 10 (QL), at p. 186; R. v.

Mitchell, 2005 NBCA 104, 295 N.B.R. (2d) 251, at para. 12 and R. v. Tontarelli, 2009 NBCA52, 348 N.B.R. (2d) 41). [32] The end result is that the common law powers to search incident to a lawful detention, being limited as they areto safety concerns, do not allow a search for evidence connected to the reasons for the detention. [33] On this point, Sharpe, J.A.’s words of caution in R. v. Plummer, 2011 ONCA 350, [2011] O.J. No. 2034 (QL)are apposite. In that case, a pat-down search revealed that the person being searched was wearing a bullet proof vest.

The investigatingofficer also had information that he may have been in possession of a weapon: A search incidental to an investigative detention is defined and limited by the immediate concerns of officer safety. This reflects animportant difference between the narrowly focussed and strictly limited protective search that may accompany an investigativedetention, and the broader power to search consequent to a lawful arrest. It is necessary to maintain that distinction and to confine thescope of a search incidental to an investigative detention within strict limits.

Here, the police did not arrest the appellant, presumablybecause they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand anarrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actuallyyielded a weapon or some other valuable evidence. This is a tendency that the courts should resist.

However, on the facts as found by the trial judge, I agree that a modest extension of the Mann pat-down search was justified in this case.Although the officers had the appellant under their temporary control, the situation was fluid. The appellant’s earlier actions, when heappeared to conceal something in the vehicle, combined with the Officer Safety Alert indicating that he might be carrying a gun, gaverise to a legitimate serious concern that he had immediate access to a weapon that he could use if the officers were to simply release himand return to their own vehicle.

On those specific facts, I agree that the officers were entitled to search the bag in the car as an incident of the investigative detention toensure their own immediate safety. While this does represent a modest extension of the protective pat-down search in R. v. Mann, it islimited by the concern for immediate officer safety that underpins Mann. However, I would emphasize that this should not be read as giving the police carte blanche power to permit searches of bags or vehiclesincident to investigative detention.

Such a search demands satisfactory proof of a serious concern for officer safety that requiressomething more than the initial pat-down. [paras. 76-79] [34] In the case before us, it is clear the officer did not have, at common law, the power to search the vehicle or theduffle bag for evidence related to infractions under the Liquor Control Act.

[ 35 ] The officer’s other professed reason to search the duffle bag was to look for other weapons in order to alleviate his safety concerns. The safety reasons invoked are difficult to understand. After all, the officer had no information relating to the appellant that would cause him to have safety concerns. The knife was properly confined in a legitimate location and a second police vehicle was a few minutes away.

Of more significance is the fact that when the officer decided to open the duffle bag to look for evidence of open liquor or other weapons, the appellant was sitting, handcuffed, in the police cruiser and his vehicle was going to be impounded.

Under such circumstances, it offends common sense to say that the officer had a legitimate concern for his or the public’s safety. [ 36 ] In my view, the common law power to search incident to an investigative detention, clearly did not allow the officer to search the duffle bag and to seize the contents thereof. [ 37 ] Nothing need be said about the marijuana found under the driver’s seat as that search and seizure followed and was prompted by the drugs found in the duffle bag. As will be explained next, the search of the duffle bag on the basis of a statutory power was not a lawful exercise of such power. D.

The statutory power to search incident to an investigative detention [ 38 ]

Section 135 of POPA does not differentiate between a detention or an arrest in defining the powers to search a vehicle or a container. Nor does it limit the search for safety concerns that applies under the common law in cases of investigative detention. In that sense, the statutory power to search is broader that the common law power. [ 39 ] Although s. 135 does not contain the limitations related to safety concerns addressed in Mann , it nevertheless features two important limitations on the power to search for evidence of an offence under a provincial statute.

Because the search is a warrantless search, it is presumed to be unreasonable and it is incumbent upon the Crown to rebut that presumption by establishing by a preponderance of evidence: (

a) the officer had reasonable and probable grounds to believe that “there [was] in or upon the vehicle or container an item of evidence”; and (

b) that it was “impracticable in the circumstances to obtain a search warrant”. [ 40 ] The Crown argues the evidence establishes the officer had reasonable and probable grounds to believe evidence of other open bottles of liquor would be found in the duffle bag on the basis of an open bottle of wine behind the driver’s seat. But the officer’s own statements on this issue simply do not support the Crown’s position.

On the contrary, the officer’s responses to questions indicate he felt he had a right to search the vehicle without a warrant because the search could “possibly” lead him to other open bottles of liquor or other weapons: Q. Okay. Did you expect to find any liquor in that black bag? A. Yeah, there could have been. We find alcohol in bags all the time. Q. Did you expect to find any though? A. Yeah. Q. You expected to find liquor in that black bag? A. Did I not just say yes two times to the exact same question. Q. Did you ever ask him for his consent to search the vehicle?

A. No, I didn’t need it. Q. Did you ever consider getting a warrant to search the vehicle? A. I didn’t need it. Q. You didn’t need it? A. No. Q. Why? A. Because I had the right to search the vehicle under the Liquor Control Act for the open alcohol and I had the right to search the vehicle for weapons at this point.

If I believe there is alcohol possibly in that bag then yes I do. [Transcript, January 4, 2013, p. 76-77] [ 41 ] In my view, the evidence recited in the previous paragraph does not establish the officer believed, on reasonable and probable grounds, that evidence of an offence under the Liquor Control Act would be found in the vehicle or a container. [ 42 ] The trial judge did not address the implications of s. 135 as such but did rely on Nolet .

In my view, however, the statement of principles upon which the judge relied to conclude the search of the duffle bag was “valid and justified” does not apply to searches incident to an investigative detention but rather to a search incident to an arrest where an officer can look for evidence connected to the reasons for the lawful arrest (see para. 5 of this decision where the trial judge’s comments are reproduced). [ 43 ] It is important to clarify what took place in Nolet in order to understand the underlying reasons respecting the unlawfulness of the search of the vehicle, including the duffle bag in this case. [ 44 ] In Nolet , the two accused were travelling in a tractor-trailer on a highway in Saskatchewan.

They were ordered to pull over by an RCMP officer engaged in a random check under the province’s Highway and Transportation Act, R.S.N.B. 1973, c. H- 5 . The regulatory statute allows an officer to search, under certain conditions, a commercial vehicle and trailer for evidence of infractions under the regulatory statute. The officer noticed irregularities and obvious infractions under the relevant statute in the documents and continued his investigation to find further evidence related to infractions under the Act . The accused were being detained during the investigation for more evidence of infractions.

The officer came upon a duffle bag behind a seat in the truck. As he was looking for documents in connection with infractions under the regulatory statute, he felt the duffle bag before opening it and, as it made a sound like crackled paper, he opened it, assuming it contained old log books or travel documents. The bag contained $115,000 bundled in small denominations typical of drug transactions. The accused, who had been held under investigative detention until then, were arrested for possession of proceeds of crime.

A search incident to the arrest was conducted and it revealed a hidden compartment in the trailer containing a large quantity of drugs worth in excess of one million dollars. [ 45 ] The search that led to the discovery of the money in the duffle bag in Nolet was conducted while the accused were being held lawfully during an investigative detention, while the discovery of the drugs found later in the secret compartment of the trailer took place as a result of a search incident to a lawful arrest. [ 46 ] The provisions of the The Highways and Transportation Act, 1997 , S.S. 1997, c.

H-3.01 that allowed the officer in Nolet to open the duffle bag are comparable to, but somewhat broader than, the provisions of ss. 135 and 136 under POPA . They read as follows:

63 ...

(5) Where the peace officer or the person appointed by the minister has reasonable grounds to believe that a vehicle is being operated in contravention of ... a regulation made pursuant to clauses 69(1)(

v) to (oo), the peace officer or person appointed by the minister may: (

a) request or signal to the person in charge of or operating the vehicle to stop the vehicle ; (

b) search the vehicle for evidence of an offence ; and (

c) seize anything that may be evidence of an offence. [Emphasis added.] [ 47 ] The investigating officer in Nolet found evidence of several infractions under the Highway and Transportation Act very shortly into his investigation. The Court described the situation as follows: Section 32(1) of The Motor Carrier Act authorizes a peace officer to “order the driver or owner of a vehicle to submit the vehicle ... or the cargo being carried on such a vehicle to any examination and tests that the peace officer considers necessary”.

In the same vein, s. 63(5) of the H&TA provides that if a police officer “has reasonable grounds to believe that a vehicle is being operated in contravention” of regulatory requirements, he may conduct a warrantless search of “the vehicle for evidence of an offence” and “seize anything that may be evidence of an offence”.

In such cases, of course, “an offence” refers to H&TA provisions that include regulation of the manner in which any part of a vehicle or its load is to be marked or labelled; the contents of a driver’s log and the manner in which a driver’s log is to be kept and maintained; the number of hours a driver can be on duty or drive; and, the classes or types of vehicles for which a trip inspection report is to be completed (s. 69(1)).

The Highways and Transportation Act Power of Search and Seizure was Properly Invoked There is no doubt that, after the initial stop, the officer quickly obtained reasonable grounds to believe that the appellants were operating the truck in violation of the H&TA , having regard to the lack of a truck licence valid in Saskatchewan, the display of an expired fuel sticker and inconsistent entries in the driver’s log-book. At the time the officer began to investigate the cab of the tractor unit, it was quite within his statutory authority to search for further evidence related to H&TA offences.

In these circumstances, the continued detention of the appellants was not arbitrary and the search of the tractor-trailer rig for relevant papers was authorized by s. 63(5)(b). At least initially, they were not unreasonable. [paras. 27-29] [ 48 ] Later on, the Court explained the importance of the distinction between the statutory power to search for evidence upon “reasonable belief” that regulatory infractions were taking place (as required by the relevant statutory provision) and the manner in which the power is exercised.

The Court goes on to explain how the lawful power to search may be offensive to s. 8 of the Charter if exercised unreasonably, bearing in mind the principles of Collins : The first question is whether the police officer, in continuing the search, exceeded his s. 63(5) authority when he reached the point of suspicion. The second question is whether what he did, despite the authority of s. 63(5) to pursue regulatory offences, was unreasonable in relation to the protected Charter privacy interests of the accused in the sleeping area of the cab.

The statutory authority for the search and the reasonableness of its exercise are two distinct issues. […]

I agree with Wilkinson J.A. that the question is not “determining which purpose is predominate or subordinate” (para. 85). As long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power , the issue is whether the officer’s search of the duffle bag infringed the reasonable expectations of privacy of the appellants.

I do not think that it did, having regard to the totality of the circumstances as they had progressed to the time of that search. (emphasis is mine) […] The trial judge did not express any doubt about the officer’s evidence that relevant papers were frequently dispersed around a cab, often collected in a bag similar to the one at issue here, and that when he “pushed down on the duffel bag, [he] felt and heard paper products inside” (A.R., vol. 2, at p. 181). In other words, the officer did not proceed immediately to open the bag without some preliminary evaluation of its likely relevance to the regulatory search.

The paper contents felt more like items connected to the H&TA inquiry than if the contents had felt solid in a way that might have indicated personal clothing (or drugs). In the circumstances, it was not unreasonable, given the appellants’ very limited privacy interest, for the officer to open the bag. At that point, the cash was in plain view. (emphasis is mine) […] In

summary, the Crown established on a balance of probabilities that the warrantless search was authorized by s. 63(5) of the H&TA , the reasonableness of the law itself is not challenged, and the manner in which the search was carried out was reasonable. The Collins test is therefore satisfied. [paras. 34, 41, 44 and 46] [ 49 ] In Nolet , the officer had the power to look for additional evidence of infractions under the relevant statute because he had reasonable grounds to believe that the vehicle was being operated in contravention of the regulations under the regulatory statute.

When he found the duffle bag, his experience informed him that relevant papers were often confined in similar bags, but he did not open it immediately. Before doing so, he felt it and as it crackled like paper, he reasonably assumed it might contain evidence of regulatory infractions. It turned out to be a lot of money bundled up in a way consistent with possession of the proceeds of crime. The opening of the bag was for a relevant and continuing regulatory purpose.

Considering the limited expectation of privacy at play, the search was reasonable as required by Collins . [ 50 ] In the case at hand, I have already found the Crown did not satisfy the onus of establishing the officer had reasonable and probable grounds to believe that evidence of “open liquor” would be found in the duffle bag.

Even accepting, for the purposes of argument, that the officer, in his experience, had found open liquor in similar bags in the past, his failure to take any steps to determine whether the search of the bag had any connection or relevance to the immediate regulatory purpose taints the search as unreasonable, considering the expectation of privacy, albeit limited, of the appellant. All of this assuming, in addition, that having “open liquor” in a duffle bag located on the floor, in front of the passenger seat constitutes an offence under the Liquor Control Act .

This is an assumption that could be the subject of healthy debate (see s. 41(4) of the Liquor Control Act where it appears that possession of “open liquor” in a vehicle is prohibited unless “ carried or transported in the traveller’s luggage with his clothing and other necessities of travel”). [ 51 ] Finally, unlike the provisions at play in Nolet , the Crown in this case had another evidentiary hurdle.

In addition to the task of proving that the officer had reasonable grounds to believe that evidence of regulatory infractions would be found, it also had to establish that it would have been impracticable to apply for a warrant, including a telephone warrant envisaged by s. 138(2) (

b) of POPA . There was no evidence that such a system is operative in the Province, a system which must exist to give any significance to the search and seizure provisions under POPA . It is only upon proof of these two requirements (i.e. reasonable belief and impracticability) that the right to search for further evidence of regulatory offences under a provincial statute is triggered. [ 52 ] In my view, the Crown did not satisfy the onus of establishing the requirements of s. 135 of POPA and the search of the duffle bag was unreasonable.

The search and seizure of the cocaine and drug trafficking accessories in the duffle bag, including the marijuana found in the vehicle following the search of the duffel bag, were unlawful and in violation of the appellant’s rights under s. 8 of the Charter. The eventual arrest of the appellant is consequently unlawful, as is the seizure of evidence found in the search incident to such arrest. E. The s. 24(2) analysis

[53] Under the revised approach adopted in R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-70, thepurpose of s. 24(2) is not to punish police misconduct or compensate an accused. Its purpose is to maintain the rule of law and the valuesof the Charter. Its focus is long-term, prospective and societal. The concern is more on the impact over time of admitting evidenceobtained in violation of protected rights and less with the particular case.

That is the approach which must inform the court whenCharter-protected rights are violated, and it considers whether evidence should be excluded because its admission would bring theadministration of justice into disrepute. [54] To determine whether the evidence should be excluded, a court must assess and balance the effect of admittingthe evidence with society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct;(2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case onits merits (Grant, at para. 71). [55] With respect to the seriousness of the Charter-infringing conduct, the more serious the conduct, “the greaterthe need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preservepublic confidence in and ensure state adherence to the rule of law” (Grant, para. 72).The conduct at issue here was serious.

The officerknew or ought to have known that he had options other than the type of detention he decided to impose. The detention of Mr.

Christie inthe back of the police vehicle in handcuffs was uncalled for under the circumstances and was a serious infringement of the appellant’s s.9 Charter right not to be detained arbitrarily. [56] But what is perhaps more serious is the unlawful search of the vehicle, more particularly the duffle bag underthe purported authority of the Liquor Control Act, or the pretense of a safety concern, a concern that simply defies common sense.Again, the officer knew or ought to have known of the requirements of reasonable and probable grounds needed to open the duffle bagand that some thought had to be given to obtaining a search warrant.

In my view, the officer acted with disregard for the appellant’srights not to be subjected to an unreasonable search and seizure under s. 8 of the Charter. The seriousness is aggravated when oneconsiders the officer’s testimony that he believed he could open the duffle bag based upon only the “possibility” of finding “open liquor”.This is evidence of an abusive practice – one that must be soundly denounced.

To admit the evidence would be to encourage situationswhere police officers could insist, when it is not reasonably necessary, on using handcuffs to confine a person in the rear seat of policevehicles and to search persons or vehicles without the grounds required by law. This could have a chilling effect on the public’sconfidence in the rule of law. Needless to say, this line of inquiry favors exclusion (Grant, para. 75). [57] The focus of the second line of inquiry is the impact of the violations on the Charter-protected interests of theappellant.

Although the appellant’s privacy interests are reduced because they involve a search of his vehicle, the Supreme Court hasconsistently held that motor vehicles are emphatically not “Charter-free zones” (see R. v. Belnavis, (SCC), [1997] 3S.C.R. 341, [1997] S.C.J. No. 81 (QL), at para. 38; R. v. Wise, (SCC), [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16 (QL),at p. 534. See also R. v. MacKenzie, 2013 SCC 50, [2013] S.C.J. No. 50 (QL), at para. 31). The detention in the police vehicle inhandcuffs was arbitrary and impacted upon the appellant’s liberty interests to a considerable extent.

The search of his vehicle, andparticularly the duffle bag, without the required reasonable grounds impacts upon the appellant’s privacy interest. The search of theduffle bag expanded way beyond the scope of one allowed to alleviate safety concerns. Considering the number of Charter interestsengaged, and despite the appellant’s reduced expectation of privacy, I find the Charter-infringing conduct was significant.

This line ofinquiry also favors exclusion. [58] Finally, the court must ask “whether the truth-seeking function of the criminal trial process would be betterserved by admission of the evidence, or by its exclusion” (Grant, at para. 79). No doubt, the evidence collected in violation of theappellant’s Charter-protected rights is both relevant and reliable. Truth seeking, in this case, would be better served by the admission ofthe evidence. In addition, the exclusion of the evidence spells the collapse of the prosecution’s case.

This line of inquiry clearly favorsthe admission of the evidence. [59] A consideration of all the circumstances leads me to conclude that admitting the evidence would bring theadministration of justice into disrepute. The main reason relates to the seriousness of the conduct of the officer in clear violation of theappellant’s ss. 8 and 9 rights. He employed a type of detention that was clearly “over-kill” in the circumstances when he had many otheroptions at his disposal.

He also conducted a search of the duffle bag when there were neither reasonable grounds to allow it in thecontext of an infraction under the Liquor Control Act, nor any genuine safety concerns. The search also appeared to be part of a standardpractice followed by the officer, a practice based upon the possibility of finding evidence of an infraction without consideration of therequirements of reasonable grounds or the practicality of trying to obtain a warrant. In my view, the Court must dissociate itself from thisconduct.

As the Court noted in Grant, the concern is more on the impact over time of admitting evidence obtained in violation ofprotected rights and less with the particular case. V. Disposition

[ 60 ] I would allow the appeal, exclude the contested evidence, and enter a verdict of acquittal. ____________________________________ ALEXANDRE DESCHÊNES, J.A. WE CONCUR: ___________________________________ J.C. MARC RICHARD, J.A. ____________________________________ B. RICHARD BELL, J.A.