R. v. Harry Date:, 2017 BCPC 106

Citation: R. v. Harry Date: 20170315 2017 BCPC 106 File No: 34106-01 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLE HARRY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: C. Los Counsel for the Defendant: R. Kaiser Place of Hearing: Williams Lake , B.C. Date of Hearing: November 29, 2016, January 10, 2017 Date of Judgment: March 15, 2017 INTRODUCTION

[ 1 ] Under Information 34106-1 Cole Harry is charged with the following six offences: Count 1: theft of a motor vehicle of a value less than $5000, contrary to ss. 334 (

b) and 453 (

d) of the Criminal Code ; Count 2: attempt to commit theft of a motor vehicle, contrary to ss. 333.1 (109b) and 463 of the Criminal Code ; Count 3: theft of binoculars, of a value less than $5000, contrary to s. 334 (

b) of the Criminal Code ; Count 4: possession of stolen property, namely keys belonging to Brian James Fuller, of a value less than $5000, contrary to s. 355 (

b) of the Criminal Code ; Count 5: possession of a weapon (noxious spray) for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code ; and Count 6: carrying a concealed weapon (noxious spray) contrary to s. 90(1) of the Criminal Code . All offences are alleged to have occurred on October 20, 2015, at or near Williams Lake, B.C. The Crown is not calling evidence on Counts 1 and 2. [ 2 ] The trial of this matter came for hearing before me on November 29, 2016 and January 10, 2017 in Williams Lake Provincial Court. Mr. Harry asserts the police infringed his rights guaranteed by ss. 8, 9, 10(

a) and 10(

b) of the Charter of Rights and Freedoms and seeks the exclusion of all evidence which flowed directly or indirectly from his arrest or detention and the search of his person. The defence also seeks to exclude a statement Mr. Harry made to Constable Cropley upon his arrest. With the consent of counsel all the Crown’s evidence at trial was received within an overarching blended Charter voir dire which included the following two nested voir dires : a. a voluntariness voir dire with respect to a statement Cole Harry made to Constable Cropley while the officer was conducting a pat down search incidental to arrest.

Upon Constable Cropley locating and extracting a set of motor vehicle keys in Mr. Harry’s left front pocket, Mr. Harry said, “those are my grandfather’s keys.” This utterance was made spontaneously and not the result of questioning. It was made immediately following Mr. Harry’s arrest and Constable Cropley advising him of his Charter rights. Constable Cropley was the only Crown witness on the voluntariness voir dire and the defence called no evidence. I ruled the utterance voluntary.

With the consent of counsel the evidence in the voluntariness voir dire became admissible in the Charter voir dire ; and b. a recognition voir dire with respect to a video surveillance recording recovered from a bait vehicle on October 20, 2015. Constable Cropley testified that as a result of his dealings with Mr. Harry in summer of 2015, he recognized him in the bait vehicle video recording. I determined Constable Cropley was a helpful witness to the court in the sense that he had more familiarity with the person he identified on the video recording than I did.

I ruled Constable Cropley’s recognition evidence met the threshold for admissibility. With consent of counsel, the evidence on the recognition voir dire became evidence in the Charter voir dire . [ 3 ] The Crown’s evidence on the Charter voir dire consisted of the evidence of RCMP Constables Charna, Cropley and Leforte, civilian witness, Brian Fuller, and five exhibits. The defence did not call evidence on the Charter voir dire . This is my decision on the Charter voir dire.

Issues: [ 4 ] The Crown concedes that Harry Cole was under investigative detention immediately upon Constable Cropley’s dealing with him on the scene. The salient issue before me in the Charter voir dire are as follows: a. Was Mr. Harry detained when first investigated by Constable Leforte? b. If not, when did Cole Harry’s detention arise? c. Was Mr. Harry’s detention arbitrary? d. Did the police infringe Mr. Harry’s Charter rights? e. If the police did infringe Mr. Harry’s Charter rights, what is the appropriate remedy?

Background Facts [ 5 ] In October 2015, the Williams Lake detachment of the Royal Canadian Mounted Police were carrying out an operation to reduce theft of and from motor vehicles in Williams Lake. On October 14, 2015, Constable Brendon Charna parked an unlocked bait vehicle in a public area in the 200 block of Fourth Avenue between Comer and Cameron Streets in Williams Lake, B.C. A pickup truck was equipped with video surveillance technology and remotely monitored. Inside, Constable Charna placed three serialized props: a pair of Bushnell binoculars, a black lap top computer and a pink digital camera.

None of these props were of significant value. Constable Brendon Charna’s evidence [ 6 ] In October 2015 Constable Charna was a local RCMP officer designated as the bait vehicle coordinator. His duties included responding to an alarm activated by anyone entering the bait vehicle. Sometime between October 14, 2015 and October 20, 2015, Constable Charna emailed the general duty officers informing them of the location and description of the bait vehicle.

At the time, this was the only bait vehicle the RCMP had staged in Williams Lake, B.C. [ 7 ] On October 20, 2015, at 12:45 a.m., Constable Charna received a dispatch alerting him the bait vehicle alarm had been activated. This was the first instance of activation since the bait vehicle was staged on October 14, 2015. Constable Charna went to the

staging location and inspected the vehicle. He found it undamaged and in similar condition as it had been when left at that location except the driver’s side door was not fully closed. The windows and locks were intact. Apparently, the intruder gained entry to the bait vehicle by an unlocked door. [ 8 ] Constable Charna removed the bait vehicle from the staging area and retrieved the compact flash card containing the video surveillance recording. [ 9 ] Constable Charna took the surveillance video and the bait vehicle to the RCMP detachment.

He noted the first 30 seconds of the video shows someone wearing a hoody and glasses reaching inside the bait vehicle and removing something with a lanyard attached. The intruder appeared to be using a cell phone as a flash light. This was the only recorded entry. Constable Charna did not recognize the person captured on the video. The video was entered into evidence in the Charter voir dire as Exhibit V 1.2. [ 10 ] Upon completing his inspection, the only item Constable Charna noted missing from the bait vehicle was the set of Bushnell binoculars, worth approximately $25.

The set of binoculars was the only prop with a lanyard. Only Constable Charna had permission to access or remove items from the bait vehicle. A photocopy of the Bushnell binoculars was entered into evidence in the Charter voir dire as Exhibit V 1.1. Evidence of Constable Bradley Leforte [ 11 ] Constable Bradley Leforte was the investigating officer in this matter. At the time of the offence he had been with the Williams Lake RCMP Detachment for approximately six years. He says that on October 20, 2015, at around 12:30 a.m., he was on duty when he received a dispatch of the activation of the bait truck.

His supervising corporal directed him to position himself around the hospital area, which he did for a while. He was looking for a lone suspect wearing a green coat. Having observed no one from his stationary surveillance position, Constable Leforte resumed making patrols. As he left he noticed a group of three people, two in dark clothing walking beside a kid riding a bike which was too big for him. They were headed east on Gibbon Street. At around 1:30 a.m., Constable Leforte was driving in his police vehicle northeast on Western Avenue in Williams Lake.

He was still on the lookout for an individual in a green coat. He encountered the same group of three he first saw on Gibbon Street. They were proceeding nonchalantly north on Western. At that time, he was unable to discern their gender. As they did not match the bait vehicle suspect, Constable Leforte continued on his patrol. [ 12 ] As he was driving down Western Avenue, Constable Leforte noticed an unoccupied truck with its interior dome light illuminated. It was parked in a residential driveway at 853 Western Avenue. Constable Leforte stopped to investigate.

The vehicle’s passenger door was unlocked and undamaged. Constable Leforte did not say whether all the doors were securely closed, he simply said he opened the passenger door and looked inside. It appeared someone had rummaged through the glove box. By “rummaged” Constable Leforte meant the glove box contents appeared to have been moved around. There were no papers on the passenger seat or strewn about the cab. At this time the group he saw earlier was 20 to 30 feet away.

Constable Leforte made no attempt to speak to any resident of 853 Western Avenue; instead, he decided to go and chat with the group of three people he saw walking north on Western Avenue. Constable Leforte returned to his police vehicle and updated the members of his activity on the police radio.

He does not recall what he said specifically, but believes he would have told the members he located a vehicle with its dome light on and he saw three individuals heading north. [ 13 ] Constable Leforte drove down Western Avenue, turned north on Pigeon and eventually located the group near the corner of Boundary and Dodwell Street. He stopped and got out of his police vehicle and went to speak to them.

They did not react to his presence by trying to flee or cross the street. [ 14 ] The group consisted of three young males who Constable Leforte later identified as Cole Harry, Durwain Haines and Durwain Haines’ younger brother, Colton Meyers. He told the group he was investigating reports of people looking through vehicles and stealing things. Constable Leforte admits this was untrue because the police had received no such report. Constable Leforte deliberately refrained from mentioning the bait car. He did not know if the group had any involvement in the bait car activation.

Constable Leforte understood the bait car suspect was a lone individual wearing a green coat. None of Cole Harry, Durwain Haines or Colton Meyers was wearing a green coat. [ 15 ] Although suspicious, Constable Leforte did not believe he had sufficient evidence to detain the group for anything relating to the truck on Western Avenue with the illuminated dome light. Constable Leforte said: I did have a suspicion, but in the back of my mind I knew there was no way I would prove these people were involved or associated with this.

My objective at the time was to identify the group, find out where they were going and if they had seen or knew anything. I didn’t believe I had the grounds to detain them right there. If they had looked at me at that point and said, “We’re not talking to you and leaving”, I would not have arrested them, I would have let them walk. [ 16 ] Constable Leforte acknowledges that when he stopped the group, he had no reasonable grounds to suspect any of the three males had any connection to a particular crime.

Nevertheless, Constable Leforte says that but for the fact he was outnumbered, he still would have patted them down for weapons. Because in Williams Lake people are known to carry knives and bear spray, had it been only one person, he would have patted him down. Because there were three males, Constable Leforte waited for backup to arrive.

When asked in cross examination if he believed he could pat down for weapons any individual he stopped, Constable Leforte replied: If I am out at 2 o’clock in the morning and I stop somebody and it is 1 or 2 o’clock in the morning and they are out roaming around, yeah, I am probably going to ask them if they have weapons on them or potentially pat them down for officer safety. [ 17 ] Constable Leforte asked the group if they had seen anyone else out and about. Although Constable Leforte addressed the group, only Durwain Haines answered. Initially, Mr.

Haines said no, but later said they did see some females earlier. Constable Leforte did not think that was true, because he had been driving around for about an hour and never saw anyone other than the group to whom he was then speaking. Nevertheless, he did not reasonably believe they were involved in the bait car activation or the vehicle with the

illuminated dome light. [ 18 ] While Constable Leforte was speaking to the group, Constable Cropley arrived at the scene. He came over and immediately took Colton Meyers aside and began speaking to him. Colton Meyers was the “kid” on the bike who Constable Leforte thought was only 12 or 13 years old. [ 19 ] While Constable Cropley was speaking to Mr. Meyers, Constable Leforte took out his note book and asked Mr. Harry and Mr. Haines their names, ages and date of birth which they provided and Constable Leforte recorded.

It was now about 1:39 a.m. [ 20 ] While Constable Leforte was speaking with Durwain Haines, Constable Cropley took Cole Harry to speak to him. Constable Leforte heard a noise emanating from Mr. Haines’ pocket even though Mr. Haines did not have his hand in his pocket. Constable Leforte asked him, “What’s in the pocket.” Mr. Haines pulled a tool from his pocket he identified as vice grips he used for his BMX. [ 21 ] It was during this conversation with Mr. Haines that Constable Leforte heard Constable Cropley tell Mr. Harry he was under arrest and say something about a weapon.

Constable Leforte had not yet patted down Mr. Haines. From the time Constable Cropley showed up until he heard him mention a weapon, Constable Leforte did not feel a need to pat down the three young males. They had been polite, cooperative, unaggressive and he was not investigating any offence involving the use of a weapon. When Constable Leforte heard Constable Cropley tell Mr. Harry he was under arrest and mentioned a weapon, Constable Leforte asked Mr. Haines if he had a weapon on him. Mr. Haines said no, lifted his shirt and spun around. Mr. Haines returned his vice grips to his pocket.

Although Constable Leforte asked Mr. Haines if he had any weapons, he did not consider this encounter an investigative detention. [ 22 ] Constable Cropley asked Constable Leforte to come over to where he was dealing with Colton Meyers. Constable Cropley told Constable Leforte he believed the bicycle may have been stolen because the “kid did not know who owned the bike.” Constable Leforte said he knew he was not going to arrest a 12 year old for possession of stolen property just because he did not know who owned the bike. Constable Leforte looked at Mr. Haines and asked him why Colton Meyers was saying this.

Durwain Haines responded, “Heh, you should just arrest me.” Constable Leforte asked “what for?” Mr. Haines said, “Well, you are asking me questions.” Constable Leforte replied, “Yeah, it is odd that one of you had vice grips on you and your brother doesn’t know who owns the bike.” Durwain Haines replied, “yeah okay, I get that, no, it’s my brother’s bike, I don’t know why he is saying that.” Constable Leforte said, “okay” and walked over to Colton Meyers and said “I am going to run this serial number to make sure the bike wasn’t stolen.” Constable Leforte recorded the name of the bicycle and its serial number.

He then “ran the serial number” and told Colton Meyers his bike was not stolen and not to worry about it. [ 23 ] Constable Leforte explained to Constable Cropley what he had been doing with respect to the bicycle. Constable Cropley then provided Constable Leforte a set of keys. Constable Cropley explained to Constable Leforte that he knew Mr. Harry did not drive. Mr. Harry tried to claim the keys belonged to a relative who Constable Cropley also knew didn’t drive. Constable Cropley suggested to Constable Leforte the keys might have been taken from the vehicle with the dome light on.

Constable Leforte didn’t know how Constable Cropley came by the keys. He did not ask Constable Cropley to search any of the group and he did not see him conduct the searches. All Constable Leforte heard while he was talking to Mr. Haines was Constable Cropley say something about a weapon. [ 24 ] Constable Leforte took the keys from Constable Cropley and then drove to 853 Western Avenue. He knocked on the door. Mr. Brian Fuller answered. Constable Leforte told him he saw the dome light on in his vehicle and it appeared that someone had gone through it. Mr.

Fuller recognized and claimed ownership of the keys. [ 25 ] Constable Leforte estimated the total time Mr. Harry was detained ranged between 10 and 20 minutes. Evidence of Constable Josh Cropley [ 26 ] On October 20, 2015, Constable Josh Cropley was a member of the RCMP and stationed at the Williams Lake detachment. He had been a member of the RCMP since September 17, 2012. On October 19 and 20, 2015, Constable Cropley was on duty, wearing a RCMP general duty uniform and driving a marked police vehicle.

At 12:38 a.m. on October 20, 2015, Constable Cropley received a dispatch over the police radio of an unauthorized entry into the bait vehicle. Constable Cropley drove his police vehicle to an area near the location where the bait vehicle had been staged. He wanted to be close enough to respond if someone drove away in the bait vehicle.

Shortly after positioning his police vehicle near, but not at, the staging area, Constable Cropley received an update from dispatch that someone had entered the bait vehicle and left. [ 27 ] Upon learning the intruder had left the bait vehicle, Constable Cropley patrolled the streets from approximately 12:38 a.m. to 1:46 a.m. or so looking for potential suspects. In that 1:08 hour period, Constable Cropley did not find or check anyone out and about in the community he thought suspicious. Constable Cropley then heard Constable Leforte radio transmission updating the members on his activity.

Constable Cropley could not recall what Constable Leforte actually said but understood he was going to check three people he had seen in the area of a vehicle which had its interior light on and had been entered. [ 28 ] Constable Cropley went to the intersection of Boundary and Smith intending to back up and assist Constable Leforte. Constable Cropley arrived at 1:46 a.m. He observed Constable Leforte outside his police vehicle talking to three young males. Constable Cropley recognized two of the males from his previous dealings with them: Cole Harry and Colton Meyers.

Constable Cropley did not know whether Constable Leforte had detained these three males. He understood from the radio transmissions the three males with whom Constable Leforte was speaking were suspected of entering a parked vehicle on Western Avenue. [ 29 ] Immediately upon his arrival, Constable Cropley began speaking to Colton Myers. Constable Cropley testified: Immediately, right off the bat, the first concern for me was checking to make sure [none] of these people had weapons on them, which is our standard practice when conducting checks of suspects in an offence.

Normally what we would do is an actual physical pat down search. I just asked Mr. Meyers to lift up his shirt to expose his waist line so I could see if [there were] any weapons exposed there. In my experience it is typical that weapons are carried around the waist line and

in the pockets. [ 30 ] Constable Cropley said after he spoke with Colton Meyers he had a quick conversation with Constable Leforte who at the time was searching Durwain Haines. While Constable Leforte was engaged in that process, Constable Cropley turned his attention to Cole Harry, who was standing on the sidewalk six to eight feet away. Constable Cropley said: I moved to Mr. Harry, who hadn’t been searched yet or contacted or spoken to. I walked to where he was standing, leaving Mr. Meyers behind him and asked him if he had any weapons on him. When I asked if he had any weapons, on him, he responded no.

I did the same thing as I did with Mr. Myers, I asked Mr. Harry to lift up his shirt and expose his waist line so I could see if there was any weapon on his person or waistline. [ 31 ] The Defence admitted the voluntariness of Mr. Harry’s statement to Constable Cropley that he had no weapons. [ 32 ] At the time he conducted this search, Constable Cropley had no information to suggest the break-in to the bait vehicle involved any weapons. He justified searching Mr. Harry for weapons on his belief that Mr. Harry was one of three persons suspected of entering a vehicle.

His role was to backup Constable Leforte and that involved keeping himself safe. Constable Cropley said: I conduct pat down searches for weapons. I do this in the regular course of duty of almost everyone I come in contact with in an investigation. Just because someone doesn’t exhibit signs of impairment, drugs or alcohol, or is cooperative, doesn’t mean they don’t have a weapon. If someone is a suspect in an investigation, that person gets a pat down search. [ 33 ] Constable Cropley described Mr. Harry as wearing hooded sweater, jeans, red hat, glasses and some type of skate shoe or sneakers. Mr.

Harry’s sweater covered the front pockets of his jeans. [ 34 ] Mr. Harry complied with Constable Cropley directive and lifted his sweater to expose his waistline and front pockets. With the aid of a flashlight, Constable Cropley could see the distinctive nozzle handle and the top portion of a can of bear spray in Mr. Harry’s right front pocket. Constable Cropley immediately arrested Mr. Harry for possession of a weapon dangerous to the public peace. Constable Cropley ordered Mr. Harry to turn around and placed him in handcuffs. He recited Mr. Harry his Charter rights from memory. He told Mr.

Harry the reason for his arrest, his right to speak to a lawyer, his right to silence. Constable Cropley also warned Mr. Harry that if he chose to speak, what he said could be used in evidence. [ 35 ] After placing Mr. Harry in handcuffs, Constable Cropley seized the bear spray from his right front pocket. He removed Mr. Harry’s red hat and glasses. While standing behind Mr. Harry, Constable Cropley commenced a pat down search. In his left front pocket of his jeans, Mr.

Harry had the following items: cell phone, ear buds, rubber cement, a receipt from Canadian Tire, a set of house keys and a set of motor vehicle keys. Constable Cropley concluded the second set were motor vehicle keys because one of the keys bore a “GM” symbol. Another key was in the shape of a guitar. Photographs of all items removed from Mr. Harry were made exhibits on the Charter voir dire. (See Exhibits V 1.3, V 1.4, V 1.5) [ 36 ] Constable Cropley’s interaction with Mr. Harry was very quick. During this time, Mr. Harry was sober, alert, quiet, cooperative and calm.

When Constable Cropley extracted the motor vehicle keys from his left front pocket, Mr. Harry said, unprompted, “those belong to my grandfather.” In a voluntariness voir dire, I ruled this utterance voluntary. [ 37 ] Constable Cropley seized the motor vehicle keys and handed them to Constable Leforte who was 12 to 15 feet away dealing with Durwain Haines. [ 38 ] At approximately 2:02 a.m., Constable Cropley placed Mr. Harry in his police vehicle and read him his Charter rights verbatim from an issued card. [ 39 ] Constable Cropley transported Mr. Harry back to the RCMP Detachment and lodged him into the cells.

In addition to those items he had removed from Mr. Harry’s person at the scene, Constable Cropley also seized Mr. Harry’s sweatshirt. [ 40 ] Photographs of the items Constable Cropley had seized from Mr. Harry were entered into evidence by consent rather than the actual items. He also entered a photograph of the glasses Mr. Harry was wearing at the time of his arrest. (See Exhibits: V 1.3, 1.4, 1.5) [ 41 ] Constable Cropley tested the contents of the canister he seized from Mr. Harry. He did this by discharging its spray in the police station parking lot.

He confirmed the canister contained a noxious substance comparable to pepper spray. He began coughing, his skin burned and nose began to run, even though he was six feet away from the discharge. Evidence of Brian James Fuller [ 42 ] Brian James Fuller resides at 853 Western Avenue, Williams Lake B.C. At 5:00 p.m. on Friday, October 19, 2015, Mr. Fuller parked his 2012 F350 flatbed truck in his driveway. He went to bed that evening and at approximately 2:00 a.m. he awoke to a knock on his door. He opened the door to Constable Leforte, who showed him a set of keys. Mr.

Fuller identified the keys as those belonging to his 1996 Chevrolet pickup which was in the shop for repairs. He had purchased the Chevy pickup four years earlier for $6,000. He had placed its keys in the centre console of his F350. Because the key set included a keyless entry fob and remote starter, he estimated their value at $600. He did not recall the last time he had seen the keys before they were returned to him by Constable Leforte. [ 43 ] Mr.

Fuller also confirmed the interior dome light in his F350 illuminated when the door opened and remained illuminated for approximately five minutes after the door closed. He also confirmed Harry Cole is not his grandson. CHARTER APPLICATION

[44] Mr. Harry seeks a remedy pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms for the exclusion of evidence. He says the police infringed his rights guaranteed under ss. 8, 9, 10(

a) and (

b) of the Charter which state:

Section 8: Everyone has the right to be secure against unreasonable search or seizure.

Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.

Section 10: Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right;

Section 9: Was Mr. Harry detained when first investigated by Constable Leforte? [45] At the time he approached Mr. Harry and his two companions on October 20, 2015, Constable Leforte was engaged in theinvestigation of what he considered to be suspicious circumstances. He suspected someone had entered Mr. Fuller’s F350 flatbed truckwithout authorization. His suspicions were based on the fact the vehicle’s interior dome light was illuminated and the contents of itsglove box in disarray.

He went to speak to the only persons he observed in the vicinity of that vehicle, namely the group of three youngmales which included Mr. Harry. The defence argues Constable Leforte’s act in stopping and speaking to the group immediately gaverise to an investigative detention. [46] In the companion cases of R. v. Grant, 2009 SCC 32 and R. v. Suberu, 2009 SCC 33 , the Supreme Courtprovided a framework for analysing investigation detention and unreasonable searches under ss. 8, 9 and 10 of the Charter. In Grant, theSupreme Court summarized the law at para. 44: 44.

In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. Todetermine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the stateof the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providinggeneral assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individualfor focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred;the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; levelof sophistication. [47] In Suberu, the Supreme Court clarified that not every interaction with the police will amount to a detention for the purposes ofthe Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact withthe police. Society’s interest in effective policing must be balanced with a detainee’s rights under the Charter.

The Court stated at paras.3 and 24: [3] However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigativepurposes, constitutes a detention within the meaning of the Charter.

Section 9 of the Charter does not dictate that police abstain frominteracting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10(b). As Iacobucci J.aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’.

But theconstitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical orpsychological restraint” (para. 19). . . . [24] As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither overshootsnor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest ineffective policing and the detainee’s interest in robust Charter rights.

To simply assume that a detention occurs every time a person isdelayed from going on his or her way because of the police accosting him or her during the course of an investigation, withoutconsidering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter. [48] Constable Leforte did not believe he had any evidentiary basis to detain Mr. Cole and his companions for any of the crimes orpossible crimes he was investigating early in the morning of October 20, 2015.

He says it was not his intention to detain the three youngmales for investigative purposes. If they had refused to speak to him, Constable Leforte would not have placed them under arrest. Noneof the three matched the description of the bait car suspect and Constable Leforte had not yet confirmed with Mr. Fuller that any crimehad been committed in relation to his vehicle. [49] Using the analytical tools provided by the Supreme Court of Canada in Grant and Suberu, I must ask whether a reasonableperson in Mr.

Harry’s circumstances viewed from his perspective would conclude he had no choice but to comply with the officer’s

demand or directions. The following factors are relevant: a. Circumstances giving rise to the encounter. In my view Constable LeForte was engaged in something more than general policing and less than a focused investigation. He suspected Mr. Fuller’s vehicle had recently been rummaged because of the illuminated dome light and the state of its glove box, but no more. b. Nature of the police conduct. Constable Leforte commenced his interactions with the group in a relatively unobtrusive manner.

This interaction intensified when Constable Leforte requested their names and birthdates followed by a demand to know what was in Durwain Haines’ pocket. About this time, Constable Cropley had arrived on the scene and immediately engaged in searching and questioning Colton Meyers then Cole Harry. c. Circumstances of the accused. Harry Cole and his companions were all young males. Mr. Harry is a slightly built First Nations man from Alexis Creek, a small reserve community near Williams Lake. As Mr. Harry did not testify on the voir dire , I have only the evidence of Constables Leforte and Cropley to ascertain Mr.

Harry’s reasonable perception of his encounter with Constable Leforte that evening. [ 50 ] Constable Leforte’s conduct was fairly innocuous at the outset. He asked the group generally if they had seen anyone out and about. At some point Constable Leforte’s investigation intensified. He asked Mr. Haines and Mr. Harry for their names and birthdates and recorded their answers. Constable Leforte said he made this inquiry at 1:39 a.m.; Constable Cropley said he arrived at the scene at 1:46 a.m.

Although Constable Leforte and Constable Cropley’s chronology of events do not synchronize, I do not consider this discrepancy significant in this Charter analysis. [ 51 ] In my view Constable Leforte’s stopping to speak to the group was more in the nature of a police officer making general inquiries than investigating a specific crime. If the group was “singled out” for attention, it was because the three young males were the only people out and about on the streets of Williams Lake early in the morning of October 20, 2015.

Constable Leforte’s questions were not aggressive or accusatory and he did not engage in any searches. I find that Cole Harry was not detained immediately upon Constable Leforte stopping to speak to the group or recording their names and birthdates. An officer would most likely ask those questions of any witness. At this point Mr. Harry was only delayed by Constable Leforte’s investigative questioning and his Charter rights were not engaged. When did Harry Cole’s detention arise? [ 52 ] Mr. Harry bears the onus of showing he was detained, meaning he was deprived of his freedom of choice.

Because this test is objective, his failure to testify is not fatal to his application. The court can conclude an accused was detained from his circumstances. [ 53 ] The Crown concedes Mr. Harry was detained from the moment Constable Cropley began dealing with him. I understand this to be from the moment Constable Cropley took Mr. Harry aside to ask him if he had any weapons. I find the detention occurred immediately upon Constable Cropley’s arrival at the scene. The following evidence indicates from that moment, the environment became coercive: a.

When Constable Cropley arrived on the scene he considered the young males as suspects and treated them as such. Although Constable Cropley initially dealt with Colton Meyers, Cole Harry was a member of the group who were collectively subjected to an increasingly intensified police focus; b. The three young males were now questioned and searched by two officers; c. Constable Leforte moved from more generalized inquiries to demanding specific and personal information as to the males’ names and birthdates and the contents of Mr. Haines’ pocket; d.

Constable Cropley behaved aggressively towards Colton Meyers, the youngest member of the group. He demanded Mr. Meyers lift his shirt so he could examine his waistline; he questioned Colton Meyers about the ownership of the bicycle he was riding and concluded it was stolen. It is a safe inference if a police officer was searching Colton Meyers, he was going to search Cole Harry and Durwain Haines as well; and e. I understand that when Durwain Haines told the officers, “You should just arrest me. You are asking me questions”, he did so in Cole Harry’s presence. This comment indicates Mr.

Haines was feeling the group was being interrogated or investigated for some crime. In fact, Constable Leforte went so far as to check the serial number of Colton Meyers bicycle to determine if it had in fact been stolen. [ 54 ] I do not believe it appropriate to consider Constable Cropley’s conduct in isolation of Constable Leforte’s and vice versa. To Mr. Cole, they would have been the police. He and his companions were being questioned and searched by the police.

I find that the police encounter with the group, initially casual, morphed into an investigation for a hodge podge of reasons which included the activation of the bait car alarm, the truck with its illuminated dome light and disorderly glove box, and a bicycle whose owner Colton Meyers could not identify. I accept a reasonable person in Cole Harry’s circumstances would feel psychologically detained. His voluntary compliance with Constable Cropley’s directive to lift his sweater after having just told the officer he had no weapons supports this conclusion. Mr.

Harry was carrying a canister of bear spray which was clearly visible once he lifted his sweater. If Mr. Harry believed he had the liberty of choice, I doubt he would have exposed himself to the jeopardy he now faces. Was Mr. Harry’s detention arbitrary? [ 55 ] The fact Mr. Harry was detained immediately upon Constable Cropley’s arrival, does not mean he was arbitrarily detained. In Mann , at paras. 23-24, the Supreme Court affirmed the common law power of the police to detain a person for investigative purposes; however, this power must be exercised in accordance with s. 9 of the Charter .

Iacobucci J., for the majority, summarized the limits of the police powers in an investigative detention as follows:

a. the police may detain a person for investigative purposes if there are reasonable grounds to suspect that person is connected to aparticular crime and that such a detention is necessary (para. 45); b. a hunch is not reasonable grounds to suspect and cannot ground an investigative detention (para. 35); c. the reasonableness of the detention must be assessed against all the circumstances, notably: i. the extent to which the interference with individual liberty is necessary to perform the officer’s duty; ii. the liberty that is the subject of the interference; and iii. the nature and extent of the interference. d. the person detained must be informed of the reason for the detention; e. the person detained must be advised of his or her rights under the Charter; f. if the officer has reasonable grounds to believe that his safety is at risk, the officer may perform a protective pat down search, but aninvestigative detention does not give the police the power or authority to search for evidence (paras. 40, 45); g. the person detained is under no obligation to answer questions (para. 45); and h. the detention cannot become a de facto arrest.

There is a significant difference between the limited power of investigative detentionand the power of arrest (para. 35). Did the Police Officer have a Reasonable Suspicion? [56] The Supreme Court considered the threshold standard of “reasonable suspicion” in R. v. Chehil, 2013 SCC 49 .

Karakatsanis J., for the majority stated at para. 6: [6] … The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed todetermine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. and at paras. 26 to 47, Karakatsanis J. goes on to state, in part: [26] Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then besubjected to independent judicial scrutiny. . . [27] 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. . . [28] . . . the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion . . . “that attaches to aparticular activity or location rather than to a specific person.” [29] Reasonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation ofobjectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in thetype of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical,everyday experience . . .

A police officer’s grounds for reasonable suspicion cannot be assessed in isolation . . . [30] A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicionbecause it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for asearch: . . .

Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches. . . . [32] Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. . . thereasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. . . . [34] . . . the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek outexculpatory factors or rule out possible innocent explanations . . . [35] . . . the objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant’s submission thatpolice must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I donot accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act. . . . [36] A nexus must exist between the criminal conduct that is suspected and the investigative technique employed. . . [46] . . . The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference ofcriminal behaviour.

If the link between the constellation and criminality cannot be established by way of a logical inference, the Crownmust lead evidence to connect the circumstances to criminality. . .

[47] An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field . . . [ 57 ] At the point Mr.

Harry was detained, Constable Leforte had the following information: a. the RCMP bait vehicle had been activated in downtown Williams Lake approximately an hour earlier; b. the bait vehicle intruder was a single individual wearing a green coat; c. the bait vehicle intruder entered but did not steal the bait vehicle; d. In his efforts to locate the bait vehicle intruder, Constable Leforte went to the hospital, then drove east on Gibbon Street, south on Pigeon Avenue and Western Avenue. The only persons he saw out and about on his patrol were the group of three young males with whom he later interacted; e.

Constable Leforte believed a pickup in the drive way at 835 Western Avenue had been illegally entered because its dome light was illuminated and the glove box was in disarray; f. the group of young males were 20 to 30 feet away when Constable Leforte observed the vehicle at 835 Western Avenue with its illuminated dome light; g. None of the group he observed on the street attempted to flee from or evade the police; h. The young males were polite and cooperative with the police; i. Nothing in any of the young males’ behaviour gave rise to a reasonable safety-based concern; and j.

None of the offences under investigation involved violence or weapons. [ 58 ] At the time Mr. Harry was detained, Constable Cropley had the following information: a. the RCMP bait vehicle had been activated approximately an hour earlier; b. Constable Leforte said he was going to check three people he had seen in the area of a vehicle which had been entered on Western Avenue; c. When he arrived at the scene Constable Cropley observed Constable Leforte outside his police vehicle talking to three young males, two of whom he knew. [ 59 ] The threshold issue in Mr.

Harry’s application under s. 9 of the Charter is whether the police had a reasonable suspicion he was involved in criminal activity. [ 60 ] Constable Leforte testified that he did not believe he had sufficient evidence to detain Mr. Harry and his companions in relation to the vehicle with the illuminated dome light because he did not have all the information.

He did not elaborate on what information he required to raise his suspicion of criminal activity to a “reasonable suspicion.” [ 61 ] Constable Cropley’s suspicion arose from whatever Constable Leforte broadcast to the members over his police radio about checking out three people he had seen in the area of a vehicle which had been entered. Although Constable Cropley may have subjectively believed Mr. Harry and his companions were involved in unlawful activity, this belief had to be objectively reasonable: Mann at para. 2.

In my view, when Constable Cropley arrived on the scene and saw Constable Leforte peacefully chatting with the group of three young males, he ought to have consulted with Constable Leforte prior to questioning and searching them. In reaching this conclusion, I note the following: a. none of the group fit the description of the bait vehicle intruder; b. the police had no third party complaint of a crime having been committed in relation to the vehicle with the illuminated dome light; c.

Constable Cropley’s first act upon arriving the scene was to question Colton Meyers as to who owned the bicycle he was riding; and d. there was no evidence or report of a stolen bicycle. [ 62 ] Constable Leforte concedes his suspicions did not rise to the level necessary to justify an investigative detention. Constable Cropley had even less information than Constable Leforte. Had he spoken to Constable Leforte when he first arrived at the scene, he could have relied on his own knowledge as well that of Constable Leforte’s.

He may well have reached a different conclusion than Constable Leforte as to whether there was a reasonable basis to place Mr. Harry under an investigative detention. He made no such inquiries and instead launched into investigating a possible stolen bicycle. [ 63 ] Constable Cropley escalated what began as an investigative delay into an investigative detention. In doing so he engaged Mr. Harry’s rights under s.9 of the Charter . I cannot find in the constellation of objectively discernible facts of this case that Constable Cropley had a reasonable suspicion Mr.

Harry had been or was involved in a known or suspected offence. Accordingly, I conclude Mr. Harry’s detention was not a lawful exercise of the police power to detain persons in the course of a criminal investigation. I find the defence has established the police infringed Mr. Harry’s right to be free from arbitrary detention as guaranteed by s. 9 of the Charter .

Section 8 of the Charter : Unreasonable Search and Seizure

[64]

Section 8 protects people from unreasonable intrusions on privacy by the state. In R. v. McGuffie, 2016 ONCA 365 ,Doherty, J.A. of the Ontario Court of Appeal states in part: The constitutional protection in s. 8 rests on the fundamental belief that privacy, in its various manifestations, is an essential preconditionto individual liberty and security of the person . . . [65] The defence argues Constable Cropley interfered with Mr. Harry’s reasonable expectation of privacy when he ordered him to lifthis sweater so he could see his waist line. It is uncontested that Mr.

Harry has a privacy interest in his own person, therefore a searchintruding upon that interest will engage s. 8 of the Charter. It is also uncontested Constable Cropley had no warrant authorizing thesearch. [66] Because the Charter protects only against unreasonable searches, the focus of this inquiry is on whether the search wasreasonable.

A search involving a Charter-protected privacy interest will be reasonable if the police are authorized by law to conduct thesearch, if the law authorizing the search is reasonable, and if the search is conducted in a reasonable manner. (Mann, para. 36) [67] A warrantless search is presumptively unreasonable and the Crown bears the burden of proving on a balance of probabilitiesConstable Cropley’s search of Mr. Harry was authorized by a reasonable law and carried out in a reasonable manner.

Search Incidental to Investigative Detention [68] A safety search incidental to investigative detention is justified where the police officer believes a search is reasonably necessaryto eliminate an imminent threat to the safety of the public or the police: R. v. MacDonald, 2014 SCC 3 , at para. 40. In Mann,Mr. Justice Iacobucci states at para. 40: The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.

It cannot be justified onthe basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. and 43: Police officers face any number of risks everyday in the carrying out of their policing function, and are entitled to go about their worksecure in the knowledge that risks are minimized to the greatest extent possible. As noted by L’Heureux-Dubé J. in Cloutier, supra, at p.185, a frisk search is a “relatively non-intrusive procedure”, the duration of which is “only a few seconds”.

Where an officer hasreasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detainedindividual. The search must be grounded in objectively discernible facts to prevent “fishing expeditions” on the basis of irrelevant ordiscriminatory factors. [69] In this case, the Defence argues neither Constable Leforte nor Constable Cropley believed on reasonable grounds his safety orthat of others was at risk.

The young males had been polite, cooperative, non-aggressive and there was no suggestion that any of theoffences under investigation involved weapons. Nevertheless, Constables Leforte and Cropley shared the view they were entitled tosearch Mr. Harry and his companions for weapons. [70] Constable Leforte justified the safety search on the basis that it was: (

a) early in the morning; (

b) the group were “roamingabout” the streets; (

c) he was outnumbered; and (

d) in Williams Lake, people are known to carry knives and bear spray. ConstableLeforte also said that upon Constable Cropley’s arrival at the scene, he did not feel a need to pat down the three young males. [71] Constable Cropley says that safety searches of detainees are “standard practice.” At the time he searched him, ConstableCropley did not even know if Mr. Harry was under investigative detention. Constable Cropley simply assumed he was a suspect inConstable Leforte’s investigation of a vehicle that had been entered on Western Avenue.

Constable Cropley did not articulate a beliefthat his safety, or the safety of Constable Leforte, was at risk. [72] I have already found the police had no reasonable grounds to detain Mr. Harry. In McGuffie, at para. 55, the Ontario Court ofAppeal held a search incidental to an illegal detention is also illegal: [55] I would draw an analogy between searches that are said to be lawful as an incident of an arrest and safety searches which are said tobe lawful as an incident of a lawful investigative detention. If the arrest is unlawful, the search incidental to the arrest is unlawful andcontrary to s. 8: . . .

Similarly, if an investigative detention is unlawful, a safety search said to be justified on the basis of that detentionmust be unlawful and contrary to s. 8 . . . [Citations omitted] [73] Because the detention was unlawful, the safety search incidental to the investigative detention was unauthorized by law andtherefore a breach of Mr. Harry’s s. 8 Charter rights.

Section 10 (a): informed of the reason for his detention [74]

Section 10(

a) of the Charter requires the police to “promptly” advise a person who is detained the reasons for the detention. “Detention” includes investigative detention and individuals who are detained for investigative purposes must be advised of the reasonsfor their detention in clear and simple language: Mann, at para. 21. In R. v. Evans, (SCC), [1991] 1 S.C.R. 869 at 886-887, McLachlin J. (as she then was) observed: The right to be promptly advised of the reason for one’s detention embodied in s. 10(

a) of the Charter is founded most fundamentally onthe notion that one is not obliged to submit to an arrest if one does not know the reason for it . . . A second aspect of the right lies in itsrole as an adjunct to the right to counsel conferred by s. 10(

b) of the Charter . . . an individual can only exercise his s. 10(

b) right in ameaningful way if he knows the extent of his jeopardy”. [citations omitted] [75] For the purposes of s. 10(

a) of the Charter, “promptly” means immediately: R. v. Boden, 2014 BCSC 66 , at para. 49,

citing R. v. Kelly (1985), (ON CA), 17 C.C.C. (3d) 419 at p. 424 (ONCA). [76] When he first interacted with Mr. Harry and his companions, Constable Leforte advised them he was investigating reports ofpeople looking through vehicles and stealing things. Even though Mr. Harry was not under investigative detention at the time I amsatisfied that up to the point Constable Cropley placed him under arrest for possessing the canister or bear spray, Mr. Harry understoodhe was been investigated for thefts from motor vehicles.

In Chehil, the Supreme Court of Canada made it clear that police officers arenot required to articulate a particular criminal offence for which a detainee is being investigated. [77] Upon Constable Cropley seeing the canister in Mr. Harry’s pocket, the focus of the investigation changed as did the purpose forMr. Harry’s detention. Constable Cropley immediately told Mr. Harry he was under arrest for possessing a weapon dangerous to thepublic peace and advised him of his right to Counsel and his right to silence. [78] In conclusion, the defence has failed to prove the police infringed Mr.

Harry’s rights under s. 10(

a) of the Charter.

Section 10(

b) of the Charter: right to counsel without delay [79] I do not find Mr. Harry’s rights under s. 10(

b) of the Charter were breached. Unlike s. 10(

a) Mr. Harry’s rights under s. 10(

b) donot attach immediately, but rather, without delay: Boden, citing Evans. Upon, Mr. Harry lifting his sweater as directed, ConstableCropley immediately placed him under arrest for possession of a weapon for a dangerous purpose and read him his Charter rights withrespect to that charge. Constable Cropley Chartered and cautioned Mr. Harry initially by memory and then formally by reading himthose rights from an issued card in his police cruiser. I find Mr. Harry has not proven the police breached his rights under s. 10(

b) of theCharter. Did the police infringe Mr. Harry’s Charter rights? [80] In

summary, Mr. Harry has established the police breached his rights under ss. 8 and 9 of the Charter and has failed to establish abreach of his rights under ss. 10(

a) and 10(

b) of the Charter. If the police did infringe Mr. Harry’s Charter rights, what is the appropriate remedy? [81] Section 24(2) of the Charter sets out the jurisdiction of the court to exclude evidence. It provides: Where, in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances,the admission of it in the proceedings would bring the administration of justice into disrepute. [82] In Grant, the court considered the meaning of s. 24(2). It held that the focus of the

section is not only long-term, but prospective,preserving the long-term reputation of the justice system: Grant, paras. 69 – 70. [83] At para. 68 of Grant, the court stated: The phrase “bring the administration of justice into disrepute”¸ must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonableperson, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidencewould bring the administration of justice into disrepute. [84] At para. 71 of Grant, the court set out three factors for trial judges to consider when balancing how to give effect to the long-term objectives: a. the seriousness of the Charter infringing conduct; b. the impact of the breach on the accused’s Charter-protected interests; and c. society’s interest in the adjudication of the case on the merits. [85] The first branch of the test requires the court to evaluate the seriousness of police conduct leading to the breach: Grant, para 73.

At para. 72, the court observed: The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring theadministration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for theadministration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits ofthat unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for thecourts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence inand ensure state adherence to the rule of law. [86] In assessing the seriousness of the breach it is significant that in asking Mr. Harry if he had any weapons and directing him to lifthis sweater, Constable Cropley’s interference with his liberty was brief and minimally invasive. [87] Constable Cropley had no reasonable grounds to suspect that Mr.

Harry was involved in any criminal activity or potentialcriminal offences. He did not take the time to have Constable Leforte brief him on the status of the investigation. In my view it isserious constitutional breach to detain and search individuals without considering whether there is legal authority to do so. His actionsdemonstrated a reckless disregard of Mr. Harry’s ss. 8 and 9 Charter rights.

[ 88 ] The troubling aspect of the ss. 8 and 9 Charter breaches in this case is that the investigating officers did not seem to understand the parameters of their right to search a person for officer safety. They seemed to believe the police are entitled to conduct safety searches with or without grounds for an investigative detention and with or without reasonable concerns for their own safety or the safety of others.

The fact that both officers shared this unrestrained view suggests a systemic misunderstanding of the police power to stop, detain and search people milling about late at night. [ 89 ] Although I do not find the police acted in bad faith, their lack of knowledge or understanding of the limits of police powers to search persons detracts from a finding of good faith: Grant , at paras. 72-75 . [ 90 ] The second branch of the test requires a consideration of the impact of the breach on the accused’s Charter - protected i nterests. [ 91 ] The police conduct with respect to Mr.

Harry led to breaches of his right not to be arbitrarily detained and subjected him to unreasonable search and seizure. These breaches were not minor, fleeting or technical, nor were they profoundly intrusive. Nevertheless, the search of a person is usually regarded as the most intrusive type of search. In sum, the infringements were serious and led to Mr. Harry being arrested and taken into custody. [ 92 ] The evidence on the voir dire established that Mr. Harry was in possession of a canister of noxious substance, likely bear spray, and a set of keys belonging to Brian Fuller.

These are offences which the Crown charged summarily and attract a maximum term of imprisonment upon conviction of six months.

Summary conviction offences are generally recognized to be less serious offences . [ 93 ] Of significance is the fact the items seized from Mr. Harry constituted real, not derivative evidence. As the Crown points out, Mr. Harry’s apparel, that is, his hat, glasses and sweatshirt, were visible to the naked eye.

It may be the items of apparel would have been discoverable later if and after Constable Cropley reviewed the bait vehicle surveillance video. [ 94 ] At para. 122 of Grant , the Court stated: Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter -infringing self-incrimination and the resultant evidence.

The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true.

On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry. [ 95 ] I agree that discoverability is relevant to the Grant analysis; however, on the evidence before me in this case, I cannot say that but for the unlawful search and seizure any of these items would likely have been discovered in any event. [ 96 ] Finally, the court must consider society’s interests in adjudicating the case on the merits. [ 97 ] There is a pressing public interest in small town, such as Williams Lake, to discourage people from carrying bear spray on its streets and rifling through unlocked cars without the owner’s permission.

Thefts of and from motor vehicles were so ubiquitous the Williams Lake RCMP detachment staged a bait vehicle in the downtown area. [ 98 ] I acknowledge the evidence which the defence seeks to have excluded is reliable and critical to the Crown’s case with respect to some of the offences. Still, i n my view, given the seriousness of the breach in this case, the court must disassociate itself from police conduct which shows a reckless disregard to Mr. Harry’s personal integrity.

I conclude a reasonable person, informed of these circumstances and the values underlying the Charter , would conclude that the admission of the items seized from the illegal detention and search and Mr. Harry’s utterances would bring the administration of justice into disrepute. I therefore grant the defence’s application under s. 24(2). I find the police officers’ detention and search of Mr.

Harry on October 20, 2015, violated his right not to be arbitrarily detained or imprisoned under s. 9 of the Charter and his right not to be subjected to unreasonable search and seizure under s. 8 of the Charter . [ 99 ] On the basis of the whole analysis, I conclude the statements made by the Mr. Harry “the keys belonged to his grandfather” and the items depicted in Exhibits V 1.3, V 1.4 and V 1.5 are inadmissible as evidence in the trial pursuant to s. 24(2) of the Charter . ______________________ J. T. Doulis Provincial Court Judge