Sokha Tim Appellant v. Her Majesty The Queen, 2022 SCC 12

SUPREME COURT OF CANADA Citation: R. v. Tim, 2022 SCC 12 Appeal Heard: October 7, 2021 Judgment Rendered: April 14, 2022 Docket: 39525 Between: Sokha Tim Appellant and Her Majesty The Queen Respondent Coram: Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ. Reasons for Judgment: (paras. 1 to 101) Jamal J. (Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ. concurring) Dissenting R easons: (paras. 102 to 104) Brown J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . Sokha Tim Appellant v. Her Majesty The Queen Respondent

Indexed as: R. v. Tim 2022 SCC 12 File No.: 39525. 2021: October 7; 2022: April 14.

Present: Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ. on appeal from the court of appeal of alberta Constitutional law — Charter of Rights — Arbitrary detention — Search and seizure — Remedy — Exclusion of evidence —Police arresting accused for possession of controlled substance based on mistake of law about pill in accused’s possession beingcontrolled substance — Police subsequently conducting searches of accused and his car and finding drugs, ammunition and handgun —Whether arrest and subsequent searches infringed accused’s rights against arbitrary detention and unreasonable search and seizure —If so, whether admission of evidence would bring administration of justice into disrepute warranting its exclusion — Canadian Charterof Rights and Freedoms, ss. 8, 9, 24(2).

The accused hit a roadside sign on a busy road and kept driving until his car stopped about a kilometre away. When a policeofficer arrived at the scene, he asked the accused for his driver’s licence, vehicle registration, and proof of insurance. When the accusedopened his car’s door to get the documents, the officer saw him try to hide a small ziplock bag containing a single yellow pill. Theofficer correctly recognized the pill as gabapentin, which he mistakenly believed was a controlled substance under the Controlled Drugsand Substances Act (“CDSA”).

The officer immediately arrested the accused for possession of a controlled substance. After the accused was arrested, the police conducted four searches. Initially, they conducted both a pat-down search of theaccused and a search of his car incident to arrest, through which they found fentanyl, other illegal drugs, and ammunition. Then, whenthe accused was being taken to the patrol car, the officer saw bullets falling from his pants. A second pat-down search was thenconducted, during which a loaded handgun fell from the accused’s pants.

Finally, the accused was strip searched at the police station butno more contraband was found. At trial, the accused applied to exclude the evidence obtained during the searches on the basis that the police had breachedhis rights against arbitrary detention and unreasonable search and seizure respectively guaranteed under ss. 9 and 8 of the Charter. Thetrial judge dismissed the application, holding that the warrantless arrest did not violate s. 9 of the Charter, as the officer had reasonableand probable grounds to believe that an offence had been committed.

He admitted the evidence and convicted the accused of several drugand firearm offences. A majority of the Court of Appeal found no breach of s. 8 or s. 9 of the Charter and dismissed the accused’sappeal. The dissenting judge concluded that the police breached ss. 8 and 9 of the Charter and would have excluded all the evidenceunder s. 24(2) of the Charter and acquitted the accused. Held (Brown J. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ.: The police breached s. 9 of the Charter by arresting theaccused based on a mistake of law about the legal status of gabapentin. In addition, they breached s. 8 of the Charter by searching hisperson and car incident to the unlawful arrest. All of the impugned evidence was obtained in a manner that breached the Charter so as totrigger s. 24(2). However, the evidence should not be excluded under s. 24(2) because its admission would not bring the administrationof justice into disrepute.

The right against arbitrary detention under s. 9 of the Charter is infringed when an arrest is based on a mistake of law. It isunlawful for the police to arrest someone based on a mistake of law and an unlawful arrest is necessarily arbitrary. A warrantless arrestis permitted pursuant to ss. 495(1)(

a) and (

b) of the Criminal Code when the arresting officer subjectively has reasonable and probablegrounds for the arrest, and those grounds are justifiable from an objective viewpoint. The reasonable grounds concept relates to the facts,not the existence of an offence in law. A warrantless arrest is lawful only if the arresting officer’s reasonable belief in the facts, if true,traces a pathway to a criminal offence known to the law.

If there is a mistake of law, it makes no difference whether the mistake involvesa non-existent offence, or an existing offence that could not be engaged on the facts, even if true, relied on by the officer. The Court’sconclusion in the civil cases of Frey v. Fedoruk, (SCC), [1950] S.C.R. 517, and Kosoian v. Société de transport deMontréal, 2019 SCC 59, [2019] 4 S.C.R. 335, that a lawful arrest cannot be based on a mistake of law, applies equally in the criminalcontext. There are compelling considerations of principle and legal policy confirming this.

Allowing the police to arrest someone basedon what they believe the law is — rather than based on what the law actually is — would dramatically expand police powers at theexpense of civil liberties. In the instant case, the arrest of the accused was unlawful and arbitrary, contrary to s. 9 of the Charter.

While the arrestingofficer subjectively believed that he had reasonable and probable grounds to arrest the accused for possession of a controlled substanceunder the CDSA, his subjective belief was based on a mistake of law, given that, even though he correctly identified the pill asgabapentin, he was mistaken about its legal status. His subjective belief thus was not — and could not be — objectively reasonable. A warrantless search is prima facie unreasonable, and thus contrary to the s. 8 Charter right to be secure againstunreasonable search or seizure.

A search is reasonable, and thus complies with s. 8 of the Charter, if: (1) the search is authorized by law;(2) the law authorizing the search is reasonable; and (3) the search is conducted in a reasonable manner. The police have a common lawpower to search incident to investigative detention under certain circumstances. In the present case, the initial pat-down search of theaccused’s person and the search of his car, which were purportedly conducted incident to arrest, infringed his s. 8 Charter right becausethe accused’s arrest was unlawful.

However, the second pat-down search and the strip search did not infringe s. 8. The second pat-downsearch of the accused’s person was a lawful search incident to investigative detention relating to the traffic collision investigation. Thearresting officer had reasonable grounds to believe that his safety or the safety of others was at risk. He expressed subjective concernsabout safety, even if only implicitly, and those concerns were objectively reasonable in the circumstances. Moreover, the search was

conducted reasonably. As for the strip search at the police station, given that the accused was lawfully arrested for the weapons offencesafter the ammunition and handgun fell from his pants, it was incident to this arrest and it was conducted reasonably. Section 24(2) of the Charter is triggered where evidence is obtained in a manner that violates an accused’s Charter rights.To determine whether evidence is so obtained, the courts take a purposive and generous approach.

The entire chain of events should beexamined, and evidence will be tainted if the breach and the discovery are part of the same transaction or course of conduct. Theconnection between the Charter breach and the impugned evidence can be temporal, contextual, causal, or a combination of the three. Aremote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2).

When evidenceis obtained in breach of the Charter, the s. 24(2) inquiry then examines the impact of admitting this evidence on public confidence in thejustice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) theimpact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on the merits.The final step of the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission orexclusion of the evidence on the long-term repute of the administration of justice.

In the instant case, all the evidence seized was obtained in a manner that breached the accused’s Charter rights. With respectto the ammunition and illegal drugs seized during the first and second searches, this was the case because the accused’s arrest forpossession of a controlled substance and the searches of his person and car incident to arrest infringed ss. 8 and 9. As for the evidencefound during the second pat-down search, there were temporal and contextual connections between the Charter breaches and thediscovery of the evidence.

The discovery of this evidence was very close in time to the Charter breaches and it flowed directly out of thesame encounter with the police and was part of the same transaction or course of conduct as the first and second searches. Under the first line of inquiry, the seriousness of the Charter-infringing state conduct is situated at the less serious end ofthe scale of culpability and weakly favours exclusion.

The conduct underlying the accused’s arrest and the searches incident to arrest wasinadvertent, not deliberate, and reflected an honest mistake about whether gabapentin was listed under the CDSA; the arresting officertried to respect the accused’s Charter rights throughout and at no time did the police conduct display wilful blindness or a flagrantdisregard for those rights; and the facts disclose human error by a single, relatively inexperienced police officer with no evidence of asystemic problem or lack of training in the police force that contributed to the mistake.

As to the second line of inquiry, the Charterbreaches arising from the unlawful arrest and the first two searches had a moderate impact on the accused’s Charter-protected interests,such that this line of inquiry pulls moderately toward exclusion. When the accused was unlawfully arrested, his liberty interests werelawfully restricted for the traffic collision investigation, which mitigates the impact of his arbitrary arrest to some extent. With regard tothe impact of the s. 8 Charter breaches, the searches were minimally intrusive.

Finally, as to the third line of inquiry — society’s interestin the adjudication of the case on the merits — the evidence seized was reliable and relevant to the Crown’s prosecution of seriousoffences and its admission would better serve the truth-seeking function of the criminal trial process than its exclusion. This line ofinquiry pulls strongly toward admission. The final balancing does not call for exclusion of the evidence to protect the long-term repute ofthe justice system. Excluding the evidence would damage, rather than vindicate, the long-term repute of the criminal justice system.

Per Brown J. (dissenting): The appeal should be allowed. The evidence should be excluded, and verdicts of acquittal on allcharges should be substituted. There is agreement with the majority that (1) an arrest based on a mistake of law is unlawful, (2) in this case, it resulted in abreach of the accused’s rights under s. 8 and s. 9 of the Charter, and (3) no deference is owed to the trial judge’s findings on s. 24(2)given his legal errors. There is also agreement with the majority’s account of the law and principles governing s. 24(2).

There isdisagreement on the application of the law and principles to the facts, as they relate to the seriousness of the Charter-infringing conduct.On that point, there is agreement with the dissenting judge at the Court of Appeal. Taking that into account, and accepting the majority’sdiscussion of the other lines of inquiry, admitting the evidence would bring the administration of justice into disrepute. Cases Cited By Jamal J. Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; Freyv. Fedoruk, (SCC), [1950] S.C.R. 517; Kosoian v.

Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335;referred to: R. v. Blaney, 2018 BCSC 2211; R. v. Jongbloets, 2017 BCSC 2329; R. v. J.G.B., 2020 YKTC 14; Pearce v. Canada(Attorney General), 2016 FC 1409; R. v. Johnson, 2018 SKQB 322, aff’d 2021 SKCA 63; R. v. Qaqasiq, 2020 NUCJ 36, aff’d 2021NUCA 16; R. v. Bourdon, 2016 ONSC 5707; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R.692; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R.220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. D.L.W., 2016 SCC22, [2016] 1 S.C.R. 402; R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948; United Nurses of Alberta v. Alberta (AttorneyGeneral), (SCC), [1992] 1 S.C.R. 901; Hudson v. Brantford Police Services Board (2001), (ON CA),158 C.C.C. (3d) 390; R. v. Douglas, 2021 ONCJ 562; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007]3 S.C.R. 129; Heien v. North Carolina, 574 U.S. 54 (2014); Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145;Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425; R. v. Orr, 2021 BCCA 42, 399 C.C.C. (3d) 441; R. v. Griffith, 2021 ONCA 302, 71 C.R. (7th) 239; R.v. Todd, 2019 SKCA 36, [2019] 9 W.W.R. 207; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63; R. v. Messina, 2013 BCCA 499,346 B.C.A.C. 179; R. v. Wilson, 2012 BCCA 517, 331 B.C.A.C. 195, leave to appeal refused, [2013] 3 S.C.R. xii; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v.

Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631;R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; R. v. Fearon, 2014 SCC 77,[2014] 3 S.C.R. 621; R. v. Stairs, 2022 SCC 11; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; R. v. Rowson, 2015 ABCA 354, 332C.C.C. (3d) 165, aff’d 2016 SCC 40, [2016] 2 S.C.R. 158; R. v. Thibodeau, 2007 BCCA 489, 247 B.C.A.C. 103, leave to appeal refused,[2008] 1 S.C.R. xiii; R. v. Ali, 2022 SCC 1; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Latimer, (SCC),[1997] 1 S.C.R. 217; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v.

Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Mack,2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Strachan, (SCC), [1988] 2 S.C.R. 980; R. v. Plaha (2004),

(ON CA), 189 O.A.C. 376; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463;R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561; R. v. Lichtenwald, 2020 SKCA 70, 388 C.C.C. (3d) 377; R. v. Reilly, 2020 BCCA 369,397 C.C.C. (3d) 219, aff’d 2021 SCC 38; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R.34; Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158; R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341; R.v. Wise, (SCC), [1992] 1 S.C.R. 527; R. v. Keller, 2019 ABCA 38, 372 C.C.C. (3d) 502; R. v. Côté, 2011 SCC 46,[2011] 3 S.C.R. 215; R. v.

Parranto, 2021 SCC 46. By Brown J. (dissenting) R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2). Controlled Drugs and Substances Act, S.C. 1996, c. 19. Criminal Code, R.S.C. 1985, c. C-46, ss. 320.16(1), 495(1). Traffic Safety Act, R.S.A. 2000, c. T-6, s. 69(1)(a), (c). Authors Cited Cournoyer, Guy. Code criminel annoté 2021. Montréal: Yvon Blais, 2020. Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 2nd ed. Toronto: Thomson Reuters, 1987 (loose-leaf updated February2022, release 1). Manning, Morris, and Peter Sankoff.

Manning, Mewett & Sankoff: Criminal Law, 5th ed. Markham, Ont.: LexisNexis, 2015. Marin, René J. Admissibility of Statements, 9th ed. Toronto: Thomson Reuters, 1995 (loose-leaf updated February 2022, release 1). McWilliams’ Canadian Criminal Evidence, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: ThomsonReuters, 2013 (loose-leaf updated February 2022, release 1). Stuart, Don. Canadian Criminal Law: A Treatise, 8th ed. Toronto: Thomson Reuters, 2020. APPEAL from a judgment of the Alberta Court of Appeal (McDonald, Veldhuis and Wakeling JJ.A.), 2020 ABCA 469, 21Alta.

L.R. (7th) 95, 397 C.C.C. (3d) 163, 477 C.R.R. (2d) 11, [2021] 6 W.W.R. 55, [2020] A.J. No. 1426 (QL), 2020 CarswellAlta 2496(WL Can.), affirming the convictions of the accused for weapons and drug offences. Appeal dismissed, Brown J. dissenting. Daniel J. Song and Curtis Steeves, for the appellant. Elisa Frank, for the respondent. The judgment of Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ. was delivered by Jamal J. — I.

Introduction [1] At issue on this appeal is whether the arrest of an individual based on a mistake of law and subsequent searchesinfringed the individual’s rights against arbitrary detention (s. 9) and unreasonable search and seizure (s. 8) guaranteed under theCanadian Charter of Rights and Freedoms, and if so, whether the evidence obtained should be excluded under s. 24(2). [2] The police investigated the appellant, Mr. Sokha Tim, for a traffic collision after he hit a roadside sign on a busyroad in Calgary and kept driving until his car stopped.

An officer found the appellant standing on the roadside by his damaged car andasked him for his driver’s licence, vehicle registration, and proof of insurance. When the appellant returned to his car to get thesedocuments, the officer saw him try to hide a yellow pill that the officer correctly identified as gabapentin, a prescription drug that theofficer mistakenly believed was a controlled substance under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). Theofficer then arrested him for possession of a controlled substance.

The police conducted a pat-down search of the appellant and searchedhis car incident to arrest, finding fentanyl, other illegal drugs, and ammunition. Because the police saw bullets falling from theappellant’s pants and believed that he was hiding something, they conducted a second pat-down search, this time finding a loadedhandgun. A strip search at the police station found no further contraband. [3] At trial, the appellant applied to exclude the evidence of the gun, ammunition, and drugs on the basis that the policehad breached his rights under ss. 8 and 9 of the Charter.

The trial judge dismissed the application, admitted the evidence, and convictedthe appellant of several drug and firearm offences, including possession of fentanyl and a loaded prohibited firearm. A majority of theCourt of Appeal of Alberta dismissed his appeal. The appellant now appeals to this Court as of right. [4] For the reasons that follow, I would dismiss the appeal. The police breached s. 9 of the Charter by arresting the

appellant based on a mistake of law about the legal status of gabapentin. They then breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. However, the subsequent pat-down search of the appellant was a lawful search incident to a parallel investigative detention for the traffic collision investigation. In addition, the strip search at the police station was a lawful search incident to arrest for possession of a prohibited firearm. Although all the impugned evidence was “obtained in a manner” that breached the Charter , I would not exclude it under s. 24(2) .

The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter -protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. In my view, weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute. II. Facts [ 5 ] On the afternoon of October 8, 2016, a member of the public called 9-1-1 to report a single-vehicle collision on Memorial Drive in Calgary.

The appellant’s car had veered off the road, hit a roadside sign, and continued for about a kilometre before it became disabled. Fire, medical, and police services rushed to the scene. The appellant was standing at the side of the road talking to a firefighter when a police officer arrived. [ 6 ] The officer, suspecting that the appellant had fled the scene of the collision, approached the appellant and asked if he had been involved in an accident. The appellant acknowledged that he had hit the sign, but he claimed that he could not stop.

The officer asked the appellant for his driver’s licence, vehicle registration, and proof of insurance. The appellant said he would get the documents from his car. The officer followed him as he did so. [ 7 ] When the appellant opened the driver-side door, the officer saw a small ziplock bag containing a single yellow pill near the window controls in the door area. The appellant’s eyes motioned to the pill, and he quickly swiped it to the ground outside of the car, as if he were trying to hide it.

The officer recognized the pill as gabapentin, which he had seen trafficked on the street with illegal drugs such as fentanyl and methamphetamine. Because the officer believed that gabapentin was a controlled drug under the CDSA , he immediately arrested the appellant for possession of a controlled substance. He did not ask the appellant about the drug because he wanted to arrest and caution him without delay. However, as the officer later learned, gabapentin — which goes by the street name “gabby” or “gabbies” — is not a controlled substance but rather a prescription painkiller and anti-seizure medication.

It is also trafficked and used as a recreational drug for the high it creates. [1] [ 8 ] After the appellant was arrested, the police conducted four searches. The legality of those searches was challenged in the courts below and before this Court. [ 9 ] In the first search, the officer conducted a pat-down search of the appellant’s person incident to arrest.

This search revealed live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two pills later identified as hydromorphone (an opioid and controlled substance under the CDSA ), two pills later identified as alprazolam (a tranquillizer and controlled substance under the CDSA ), another gabapentin pill, three cell phones, and $480 in cash. [ 10 ] In the second search, another police officer, who arrived moments before the arresting officer placed the appellant under arrest, searched the appellant’s car incident to arrest.

He found a folded serrated knife, a canister of bear spray, four fentanyl pills, and two pills later identified as alprazolam. [ 11 ] In the third search, the arresting officer searched the appellant’s person again because he became concerned that the first search might have missed some items. His suspicions were aroused because the appellant was walking strangely while being taken to the patrol car: he was limping and shaking his leg, as if he had something hidden in his pants or falling down his pant leg. The officer then saw .22 calibre ammunition fall from the leg of the appellant’s pants.

While searching his person, the officer touched the outside of the appellant’s pants in his groin area and felt a metal object. A double-barrelled handgun immediately fell from his pants. The gun was loaded with two live rounds, one in each barrel. [ 12 ] In the fourth search, the appellant was strip searched at the police station. The appellant was asked to strip down to his underwear and an officer searched around his waistband to see if he had hidden anything else. No more contraband was found. III. Judgments Below A.

Court of Queen’s Bench of Alberta (Sullivan J.) [ 13 ] On a voir dire , the appellant asserted that the police had infringed his rights under ss. 8 and 9 of the Charter , and he sought to exclude the evidence of the fentanyl, ammunition, and handgun under s. 24(2) . The trial judge held that the warrantless arrest did not violate s. 9 of the Charter , as the officer had reasonable and probable grounds to believe that an offence had been committed, even though possession of gabapentin was not an offence.

The officer had a subjective belief that gabapentin was a controlled substance, and his belief was objectively reasonable given his experience seeing it trafficked with other street drugs and his observation of the appellant trying to hide the pill. The trial judge held that the searches at the scene were incident to a lawful arrest, and they therefore did not infringe s. 8 of the Charter . Although the trial judge found no breach of s. 8 or s. 9 of the Charter , he said that he had considered all the factors under s. 24(2) and admitted the evidence.

The appellant then pleaded guilty to possession of fentanyl and to several firearms offences. B. Court of Appeal of Alberta, 2020 ABCA 469 , 397 C.C.C. (3d) 163 (McDonald and Wakeling JJ.A., Veldhuis J.A. (Dissenting)) [ 14 ] The Court of Appeal of Alberta divided on whether ss. 8 and 9 of the Charter were infringed and whether the evidence should be excluded under s. 24(2) . [ 15 ] The majority found no breach of s. 8 or s. 9 of the Charter and dismissed the appeal.

The officer had reasonable and probable grounds to believe that the appellant had committed an indictable offence, and the officer could thus arrest him without a

warrant under s. 495(1) of the Criminal Code, R.S.C. 1985, c. C-46. The arresting officer’s mistake of law — in believing thatgabapentin was a controlled substance under the CDSA — did not invalidate the arrest. The officer was not enforcing a “non-existentlaw”; “[h]e was enforcing the CDSA pertaining to the possession of a controlled substance” (para. 36). Although the officer made amistake of law, he believed on reasonable and probable grounds in a state of facts and law that, had they existed, would have resulted inthe offence of possession of a controlled substance.

The officer was not expected to be perfect in hindsight. He acted in good faith andhis actions were reasonable in the circumstances. There was thus no breach of s. 9 of the Charter. Since the arrest was lawful, thesearches did not infringe s. 8 of the Charter. There was no need to consider s. 24(2). [16] The dissenting judge concluded that the police breached ss. 8 and 9 of the Charter. The appellant’s arrest wasarbitrary and breached s. 9. Although the officer had a subjective belief that the appellant was in possession of a controlled substance,that belief was not objectively reasonable.

The police must be familiar with and consult the legislation that they are enforcing. Here, thearresting officer made a mistake of law about the legal status of gabapentin. There were no safety concerns, urgency, or othercircumstances requiring an immediate arrest, and the appellant was cooperating with the police at the time of his arrest. All four searchesbreached s. 8 of the Charter. The Crown conceded that the first and second searches breached s. 8 if the arrest was arbitrary. Thedissenting judge ruled that the Crown did not prove independent grounds justifying the third and fourth searches.

The officer’s evidencedid not establish grounds for a safety search incident to an investigative detention. [17] The dissenting judge would have excluded all the evidence under s. 24(2) of the Charter and acquitted the appellant.The Charter-infringing state conduct was serious: the arresting officer was not acting in good faith, since his belief that the appellant hadcommitted an offence was not reasonable in the circumstances; he did not make use of the investigative detention powers available tohim; and he took no reasonable steps to investigate whether the appellant possessed a controlled substance.

The impact on the appellant’sCharter-protected interests was serious, since he was subject to searches of varying degrees of intrusion, culminating in a highly invasivestrip search. The final balancing led to excluding the evidence, as admitting it would bring the administration of justice into disrepute.Although society’s interest in adjudicating this case on the merits supported admission of the evidence, the seriousness of the breachesand the impact on the appellant’s Charter-protected interests supported exclusion. IV. Issues [18] The appellant raises three issues: A.

Did the police infringe s. 9 of the Charter by arresting the appellant based on a mistake of law? B. Did the four searches infringe s. 8 of the Charter? C. Should the evidence be excluded under s. 24(2) of the Charter? V. Analysis A. Did the Police Infringe

Section 9 of the Charter by Arresting the Appellant Based on a Mistake of Law?

(1) Introduction [19] The first issue is whether the police infringed the appellant’s right against arbitrary detention under s. 9 of the Charterby arresting him based on a mistake of law. The Crown concedes that the appellant’s arrest involved a mistake of law as to whethergabapentin was a controlled substance under the CDSA. However, the Crown claims that the majority of the Court of Appeal correctlyheld that an arrest based on a reasonable mistake of law is nevertheless lawful. [20] I disagree. As I will explain, an arrest based on a mistake of law is unlawful and infringes s. 9 of the Charter.

(2) Applicable Legal Principles (

a) Section 9 of the Charter [21]

Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” ThisCourt has adopted a generous and purposive approach to the

interpretation of s. 9, one that seeks to balance society’s interest in effectivepolicing with robust protection for constitutional rights (see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 24; R. v. Grant,2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 15-18 and 23). The purpose of s. 9, broadly stated, “is to protect individual liberty fromunjustified state interference” (Grant, at para. 20; see also R. v.

Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25). [22] Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter,unless the law authorizing the arrest or detention is itself arbitrary (see Grant, at para. 54; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59,at para. 20). Conversely, an unlawful arrest or detention is necessarily arbitrary and infringes s. 9 of the Charter (see Grant, para. 54; R.v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3). (

b) The Power of a Peace Officer to Arrest Without a Warrant [23] Sections 495(1)(

a) and (

b) of the Criminal Code provide that a peace officer may arrest without warrant “a personwho has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictableoffence” or “a person whom he finds committing a criminal offence”. [24] The applicable framework for a warrantless arrest was set out in R. v. Storrey, (SCC), [1990] 1S.C.R. 241, at pp. 250-51. A warrantless arrest requires both subjective and objective grounds.

The arresting officer must subjectivelyhave reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The objectiveassessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the

situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arrestingofficer. The police are not required to have a prima facie case for conviction before making the arrest (see also R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, at para. 24; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 28; R. v.Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73). [25] The existence of reasonable and probable grounds is founded on the trial judge’s factual findings.

Although suchfactual findings attract appellate deference and are reviewable only for palpable and overriding error, whether the facts as found by thetrial judge amount to reasonable and probable grounds is a question of law reviewable for correctness (see R. v. Shepherd, 2009 SCC 35,[2009] 2 S.C.R. 527, at para. 20). [26] The specific s. 9 Charter issue raised here is whether an arrest based on a mistake of law is unlawful. Can a policeofficer arrest someone whom they believe has committed an offence, even if the facts relied on by the arresting officer, if true, do notinvolve unlawful conduct?

In my view, the answer is no. As I will elaborate, precedent, principle, and legal policy preclude a lawfularrest based on a mistake of law. (

c) Precedent [27] This Court first ruled that a lawful arrest cannot be based on a mistake of law in Frey v. Fedoruk, (SCC), [1950] S.C.R. 517. Frey involved a civil action for false imprisonment brought by a “peeping tom” against a police officer andanother person after the officer arrested the voyeur for breach of the peace. The Court held that the conduct for which the plaintiff wasarrested was not a criminal offence and should not be recognized as a new offence at common law (voyeurism is now contrary tos. 162(1) of the Criminal Code).

Frey is usually cited for the proposition that it is for Parliament and not the courts to create newoffences or to expand the basis of criminal liability (see R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 57; R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33; United Nurses of Alberta v. Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901, at p. 930; D. Stuart, Canadian Criminal Law: A Treatise (8th ed. 2020), at pp. 21-22; M. Manning and P.Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at pp. 6-7).

But the Court in Frey also held that an officer’s mistakeof law in believing that certain conduct was a criminal offence could not provide “reasonable and probable grounds” for a warrantlessarrest under what was then s. 30 of the Criminal Code (p. 531). A warrantless arrest is lawful only if the arresting officer’s reasonablebelief in the facts, if true, traces a pathway to a criminal offence known to the law.

As Cartwright J. (as he then was) explained in Frey, atp. 531: I think that [s. 30 of the Criminal Code] contemplates the situation where a Peace Officer, on reasonable and probable grounds, believesin the existence of a state of facts which, if it did exist would have the legal result that the person whom he was arresting hadcommit[t]ed an offence for which such person could be arrested without a warrant.

It cannot, I think, mean that a Peace Officer isjustified in arresting a person when the true facts are known to the Officer and he erroneously concludes that they amount to an offence,when, as a matter of law, they do not amount to an offence at all. “Ignorantia legis non excusat”. [Emphasis added.] [28] Frey was recently affirmed on this point in Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4S.C.R. 335. In Kosoian, a subway passenger sued the police when she was arrested and searched for refusing to comply with a subwaypictogram warning passengers to hold an escalator handrail.

The Court ruled that the pictogram was simply a warning and did not createan offence, and the police officer’s error of law in believing otherwise did not provide reasonable and probable grounds to arrest thepassenger without a warrant under Quebec’s Code of Penal Procedure, CQLR, c. C-25.1 (“C.P.P.”).

In Kosoian, at para. 78, citing Frey,Côté J. stated that the reasonable grounds concept relates to the facts, not the existence of an offence in law — and thus an arrest basedon a mistake of law is unlawful, even if the arresting officer believes in good faith that the offence exists: The exercise of these powers presupposes that there are reasonable grounds to believe an offence has been committed. The “reasonablegrounds” concept relates to the facts, not to the existence in law of the offence in question (Frey v. Fedoruk, (SCC),[1950] S.C.R. 517, at p. 531).

If the offence that the police officer believes has been committed simply does not exist, neither the C.P.P.nor, for that matter, any other statute or common law rule gives the officer the power to require a person to identify himself or herselfand to arrest the person if he or she refuses to comply (see Moore v. The Queen, (SCC), [1979] 1 S.C.R. 195, atpp. 205-6, per Dickson J., dissenting; R. v. Guthrie (1982), 1982 ABCA 201 , 21 Alta. L.R. (2d) 1, at p. 8; R. v. Coles, 2003PESCAD 3, 221 Nfld. & P.E.I.R. 98, at para. 14).

An officer who makes an arrest on this basis is acting unlawfully, even if he or shebelieves in good faith that the offence exists (R. v. Houle (1985), 1985 ABCA 275 , 41 Alta. L.R. (2d) 295, at pp. 297-99;Crépeau v. Yannonie, [1988] R.R.A. 265 (Que. Sup. Ct.), at p. 269; see also P. Ceyssens, Legal Aspects of Policing (loose-leaf), vol. 1, atp. 2-3). It was therefore incumbent upon Constable Camacho to verify the existence of the offence alleged against Ms. Kosoian beforeusing the powers conferred on him by the C.P.P. [Underlining added.] See, to similar effect, Hudson v.

Brantford Police Services Board (2001), (ON CA), 158 C.C.C. (3d) 390 (Ont. C.A.),at para. 24, per Rosenberg J.A. (s. 25(1) of the Criminal Code, which protects a peace officer from civil liability when acting on“reasonable grounds”, encompasses mistakes of fact, but “[i]t does not protect against reasonable mistakes of law”); R. v. Douglas, 2021ONCJ 562, at paras. 47-48 , per Rose J. (“A lawful arrest must have lawful grounds, which excludes the possibility of a mistakeof law.”). See also R. J.

Marin, Admissibility of Statements (9th ed. (loose-leaf)), at § 9:51 (“[B]ecause the risk of abuse is undeniable, itis important there must be a legal basis for police actions. In the absence of justification their actions and conduct cannot be tolerated”.);E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. (loose-leaf)), at § 5:59 (“[A]n officer who arrests someone on thebasis of a ‘non-existent offence’ may be civilly liable”.). [29] Although Frey and Kosoian were civil cases, this Court’s conclusion that a lawful arrest cannot be based on a mistakeof law applies equally in the criminal context.

In both cases, this Court analyzed the lawfulness of a warrantless arrest based on a mistakeof law as part of a chain of reasoning to find civil liability. That reasoning concerns the scope of police powers and applies equally to thecriminal context. See Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 68, perMcLachlin C.J. (The reasonable officer standard in civil cases “entails no conflict between criminal standards” but rather “incorporatesthem”.); G.

Cournoyer, Code criminel annoté 2021 (2020), s. 129 ([translation] “If the offence that the police officer believes has beencommitted simply does not exist, the officer does not have the power to require a person to identify himself or herself or the power to

arrest the person if he or she refuses to comply.”). (

d) Principle and Legal Policy [30] Compelling considerations of principle and legal policy confirm that a lawful arrest cannot be based on a mistake oflaw — that is, when the officer knows the facts and erroneously concludes that they amount to an offence, when, as a matter of law, theydo not. Allowing the police to arrest someone based on what they believe the law is — rather than based on what the law actually is —would dramatically expand police powers at the expense of civil liberties.

This would leave people at the mercy of what particular policeofficers happen to understand the law to be and would create disincentives for the police to know the law. Canadians rightly expect thepolice to follow the law, which requires the police to know the law. This Court has affirmed that “[w]hile police are not expected toengage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is” (Grant, at para. 133; Le, atpara. 149).

Côté J. helpfully encapsulated the relevant considerations of principle and legal policy in Kosoian, at para. 6: In a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for bylaw. Every person can therefore legitimately expect that police officers who deal with him or her will comply with the law in force,which necessarily requires them to know the statutes, regulations and by-laws they are called upon to enforce.

Police officers are thusobliged to have an adequate knowledge and understanding of the statutes, regulations and by-laws they have to enforce. [31] It is thus unlawful for the police to arrest someone based on a mistake of law. (

e) American Jurisprudence [32] Given the Canadian precedents on point, I see no pressing need to turn to American jurisprudence. The majority of theCourt of Appeal of Alberta, however, found persuasive the reasoning of the majority of the Supreme Court of the United States in Heienv.

North Carolina, 574 U.S. 54 (2014), which held that a traffic stop based on a reasonable mistake of law does not infringe the right tobe secure against unreasonable search and seizure protected by the Fourth Amendment to the United States Constitution. [33] In Heien, the police stopped a car because one of its two brake lights was out, even though the state law, whileambiguous, was later held to require only one working light. The police became suspicious during the stop, secured consent to search thecar, and found cocaine.

Under the Fourth Amendment, a traffic stop for a suspected offence is considered “a ‘seizure’ of the occupants ofthe vehicle” (p. 60). [34] Writing for the majority, Chief Justice Roberts ruled that the traffic stop did not infringe the Fourth Amendment, asthe officer made a reasonable mistake of law (pp. 66-68).

Justice Sotomayor, dissenting, concluded that “an officer’s mistake of law, nomatter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment” (p. 80). [35] With respect, I do not find Heien to be helpful in deciding on the legality of an arrest based on a mistake of law underCanadian law. This Court has noted that the greatest caution must be exercised before transplanting American decisions under the FourthAmendment to the Canadian context under s. 8 of the Charter (see Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145,at p. 161).

This is in part because “the Charter regime mandates a more flexible and contextual approach to the admissibility of evidencethan the United States Constitution; thus there is no counterpart to s. 24(2) of the Charter in that country” (Thomson Newspapers Ltd. v.Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R.425, at pp. 546-47, per La Forest J.). This note of caution, coupled with this Court’s own precedents on point, provide good reasons notto import American precedent in this case. (

f) Conclusion [36] Canadian law has long held that an arrest based on a mistake of law is unlawful, even if the mistake is made in goodfaith. The concept of “reasonable and probable grounds” for arrest relates to the facts, not the existence of an offence in law. A policeofficer makes a mistake of law when the officer knows the facts and erroneously concludes that they amount to an offence, when, as amatter of law, they do not.

(3) Application [37] I will now apply the Storrey framework to the subjective and objective grounds for the warrantless arrest in this case. [38] The arresting officer subjectively believed that he had reasonable and probable grounds to arrest the appellant forpossession of a controlled substance under the CDSA. The arresting officer testified that he arrested the appellant because he saw him“swipe” a pill “to the ground”, and he believed that the appellant was “trying to hide it” from his view (A.R., at p. 141).

The arrestingofficer immediately identified the pill as gabapentin, which he had seen “traded amongst people on the street” and “for some reason”believed was a controlled substance (A.R., at p. 145). He thus “arrested [the appellant] for possession of a controlled substance” (A.R., atp. 141). The question is then whether the arresting officer’s subjective belief was objectively reasonable. [39] The arresting officer’s subjective belief that he had reasonable and probable grounds to arrest the appellant was basedon a mistake of law, and thus was not — and could not be — objectively reasonable.

The arrest was consequently unlawful and arbitrary,contrary to s. 9 of the Charter. As noted by the dissenting judge in the Court of Appeal of Alberta, at para. 66, the officer was notmistaken about any facts, because he correctly identified the pill as gabapentin.

Instead, as the Crown conceded on appeal, the officerwas mistaken as to the law on those facts — about the legal status of gabapentin, which was not a controlled substance under the CDSA. [40] Before this Court, the Crown again concedes that the officer’s mistake “can be classified as a legal error” (transcript,at p. 25; see also R.F., at para. 43), but submits that the arrest was unlike the arrests in Frey and Kosoian. The Crown says that theofficer arrested the appellant for possession of a controlled substance under the CDSA — an existing offence at law. [41] I do not accept this submission.

The officer arrested the appellant for possession of gabapentin specifically. The

officer knew the facts — he correctly identified the pill as gabapentin — but mistakenly concluded that possession of gabapentin was anoffence, when, in law, it was not. That brings this case squarely within Frey and Kosoian. It makes no difference whether the mistake oflaw involves a non-existent offence, or an existing offence that could not be engaged on the facts, even if true, relied on by the officer. Inboth instances, the mistake of law precludes a lawful arrest.

The courts below erred in concluding otherwise. [42] To be clear, I am not suggesting that the police must see and correctly identify a specific drug from the hundreds ofcontrolled substances under the CDSA before they may lawfully arrest a suspected drug offender. Police routinely arrest suspected drugoffenders for potential infractions of the CDSA, even when they do not see or identify specific drugs. Courts routinely uphold the legalityof such arrests, if they conclude that there were reasonable and probable grounds to arrest (see, e.g., Loewen, at paras. 7-8; R. v.

Orr,2021 BCCA 42, 399 C.C.C. (3d) 441, at para. 78; R. v. Griffith, 2021 ONCA 302, 71 C.R. (7th) 239, at paras. 29-33; R. v. Todd, 2019SKCA 36, [2019] 9 W.W.R. 207, at paras. 6-11 and 44; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 25-31; R. v.Messina, 2013 BCCA 499, 346 B.C.A.C. 179, at paras. 26-29; R. v. Wilson, 2012 BCCA 517, 331 B.C.A.C. 195, at paras. 14 and 52,leave to appeal refused, [2013] 3 S.C.R. xii). [43] I conclude that the arrest was unlawful and infringed s. 9 of the Charter. B. Did the Four Searches Infringe

Section 8 of the Charter?

(1) Introduction [44] I now turn to consider whether the four searches infringed the appellant’s s. 8 Charter right “to be secure againstunreasonable search or seizure”. Recall that the four warrantless searches were: (1) an initial pat-down search of the appellant’s personincident to arrest; (2) a search of his car incident to arrest; (3) a second pat-down search of his person; and (4) a strip search at the policestation. As I will explain, I conclude that the first two searches breached s. 8 of the Charter, but the third and fourth searches did not.

(2) General Principles [45] A warrantless search is prima facie unreasonable, and thus contrary to s. 8 of the Charter. The Crown bears the onusof demonstrating on a balance of probabilities that a warrantless search was reasonable (see R. v. Caslake, (SCC),[1998] 1 S.C.R. 51, at para. 11; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v.

Buhay, 2003 SCC 30, [2003] 1 S.C.R.631, at para. 32). [46] A search is reasonable, and thus complies with s. 8 of the Charter, if: (1) the search is authorized by law; (2) the lawauthorizing the search is reasonable; and (3) the search is conducted in a reasonable manner (see R. v. Collins, [1987] 1. S.C.R. 265, at p.278; Caslake, at para. 10; R. v.

Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 36). [47] Here, the laws potentially authorizing the searches are the common law powers to search incident to arrest (the firstand second searches), to search incident to investigative detention (the third search), and to strip search (the fourth search). I will addresseach potential power below.

(3) The First and Second Searches: Unlawful Searches Incident to Arrest [48] The Crown concedes that the first two searches — the initial pat-down search of the appellant’s person and the searchof the appellant’s car on discovering the gabapentin — were purportedly conducted incident to arrest, and that if the appellant’s arrestwas unlawful, then these searches were also unlawful and breached s. 8 of the Charter.

I agree with this concession. [49] To be valid, a search incident to arrest must meet three conditions: (1) the person searched is lawfully arrested; (2) thesearch is “truly incidental” to the arrest, i.e., for a valid law enforcement purpose related to the reasons for the arrest; and (3) the searchis conducted reasonably (see Saeed, at para. 37; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 21 and 27; R. v.

Stairs, 2022SCC 11, at paras. 6 and 35). [50] Here, the initial pat-down search of the appellant’s person and the search of his car incident to arrest falter on the firstcondition: the appellant was not lawfully arrested. Thus, the first two searches necessarily breached s. 8 of the Charter.

(4) The Third Search: A Lawful Search Incident to Investigative Detention [51] The dissenting judge concluded that the third search — the further pat-down search of the appellant’s person —could not be justified as a search incident to investigative detention because the arresting officer did not have a subjective belief that hissafety was at risk. [52] I respectfully disagree.

The third search was a lawful search incident to investigative detention relating to the trafficcollision investigation. [53] This Court in Mann recognized that the police have a common law power to search incident to investigative detentionunder certain circumstances. Speaking for the majority, Iacobucci J. stated that “police officers may detain an individual for investigativepurposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and thatsuch a detention is necessary” (para. 45).

He added that a police officer “may engage in a protective pat-down search of the detainedindividual” when the officer “has reasonable grounds to believe that his or her safety or that of others is at risk” (para. 45). In addition,both the investigative detention and the pat-down search “must be conducted in a reasonable manner” (para. 45; see also R. v.

Clayton,2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20 and 29-31). [54] Here, the dissenting judge of the Court of Appeal appeared to accept that there was a lawful investigative detention,both for the drug investigation and for the traffic collision investigation. She said that she “agree[d] with the Crown that the objectivefactual matrix met the test for an investigative detention related to controlled substances” (para. 77). She also noted that, “[a]t trial, the

appellant conceded [that] he was detained for the purposes of investigating the motor-vehicle accident in any event” (para. 77). [ 55 ] The appellant, however, argues that the dissenting judge erred in finding grounds to detain him for the drug investigation.

He submits that if the officer’s “mistake of law about [g]abapentin could not justify a warrantless arrest on reasonable and probable grounds, then it should similarly be incapable of supporting an investigative detention on reasonable suspicion that [the appellant] was connected ‘to a particular crime’” (A.F., at para. 94). [ 56 ] I agree with the appellant.

Just as a warrantless arrest based on a mistake of law infringes s. 9 of the Charter , so too does an investigative detention based on a mistake of law. [ 57 ] However, the dissenting judge was correct that the police could detain the appellant for the traffic collision investigation, as the appellant conceded. The police’s interaction with the appellant was at first a traffic collision investigation.

The arresting officer testified that he came to where the appellant’s damaged car had stopped and approached him because he suspected that he had fled the scene of a collision with a roadside sign. [ 58 ] In doing so, the officer was properly exercising investigatory powers under provincial traffic law and the Criminal Code . Section 69(1) (

a) of Alberta’s Traffic Safety Act , R.S.A. 2000, c. T-6 , requires a driver or any other person in charge of a vehicle involved in a motor-vehicle accident on a road to “ remain at the scene of the accident or, if the person has left the scene of the accident, [to] immediately return to the scene of the accident unless otherwise directed by a peace officer”. The driver or any other person in charge of the vehicle must also provide the peace officer with requested information as provided by law (see Traffic Safety Act , s. 69(1) (c)).

Thus, a driver involved in a car accident “ha[s] a duty, separate and apart from the criminal law, to remain at the scene of the accident” ( R. v. Rowson , 2015 ABCA 354 , 332 C.C.C. (3d) 165 (“ Rowson (ABCA) ”), at para. 44, aff’d 2016 SCC 40 , [2016] 2 S.C.R. 158). There is “no ability to choose not to cooperate with the police if one is the driver of a car involved in an automobile accident” — such a driver is “not free to go” ( Rowson (ABCA) , at para. 44).

Furthermore, under s. 320.16(1) of the Criminal Code , it is an offence, in certain circumstances, to fail to stop after a traffic accident. [ 59 ] As a result, the appellant had no right to refuse to cooperate with the police, nor was he free to go. He was lawfully detained as part of a traffic collision investigation, even if he could not be lawfully detained as part of a drug investigation. [ 60 ] This takes me to whether the arresting officer had reasonable grounds to believe that his safety or the safety of others was at risk (see Mann , at paras. 40 and 45 ; see also R. v.

Thibodeau , 2007 BCCA 489 , 247 B.C.A.C. 103, at para. 10 , leave to appeal refused, [2008] 1 S.C.R. xiii). The dissenting judge concluded that the officer had no such grounds. She cited the officer’s testimony to the effect that he conducted another pat-down search because he was concerned that he may have “missed some items” after he saw bullets falling out of the appellant’s pant leg, which she concluded showed that he did not believe that “his safety was at stake”, but rather that he was “concerned about collecting evidence” (para. 80).

The officer’s testimony was as follows: Q. [Crown counsel]: After you found these items [i.e., the drugs and ammunition found on the appellant], what did you do? A.: So once I had found all these items on the accused, I started walking him towards my police vehicle. At that time, he started limping and shaking his leg, which seemed strange to me at the time. It’s almost as though he had something falling down his pant leg or something concealed in his pants.

So when I got him to my vehicle, before I placed him in the vehicle, more ammunition, like, .22 calibre ammunition, fell from inside of his pant leg, which was suspicious to me. So I conducted another search, thinking that I’ve missed some items. [Emphasis added.] (A.R., at p. 150) [ 61 ] On this basis, the dissenting judge inferred that “[t]he officer did not turn his mind to or have any concerns about conducting a safety search” (para. 81). [ 62 ] I disagree. While the dissenting judge’s inference is a possible reading of the transcript, it is not the only possible reading, nor even the most plausible reading.

I read the officer’s evidence in context as expressing concern for whether he might have “missed some items” that would pose a safety risk to himself or to others. The officer had just found bullets on the appellant during a pat-down search, and then he saw more bullets falling from his pants. The appellant was “limping and shaking his leg”, as if he had “something concealed in his pants”. The obvious “something” was a gun. [ 63 ] This reading of the arresting officer’s evidence as expressing safety concerns is confirmed by the evidence of the other officer who was at the scene.

He testified that he got out of his police cruiser “due to the fact that it was ammunition that was located”, and he therefore “stayed with them for a moment while [the arresting officer] continued to search” (A.R., at p. 163). This evidence also suggests that the officers suspected that the appellant might have been armed, thereby posing a clear risk to the police and the public. [ 64 ] I therefore conclude that the arresting officer did express subjective concerns about safety, even if only implicitly, and that those concerns were objectively reasonable in the circumstances.

When there are concealed bullets, there may be a concealed gun. The further pat-down search of the appellant’s person, in which the officer dislodged a loaded handgun by merely touching the outside of the appellant’s pants, was also conducted reasonably. This search did not breach s. 8 of the Charter .

(5) The Fourth Search: A Lawful Strip Search [ 65 ] Although the dissenting judge did not separately address the strip search of the appellant at the police station, she seemed to conclude that it was unlawful on the same basis as the third search. No further evidence was found during the strip search.

[66] A strip search can be justified at common law as incident to a lawful arrest where there are “reasonable and probablegrounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest” (R. v. Ali, 2022 SCC 1, at para. 2;R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 99). Reasonable and probable grounds exist to justify a strip search “wherethere is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest” (Ali,at para. 2; see also Golden, at paras. 94 and 111).

The strip search must also be conducted reasonably, in a manner that “interferes withthe privacy and dignity of the person being searched as little as possible” (Golden, at para. 104). [67] Here, the appellant was lawfully arrested for the weapons offences after the ammunition and the handgun fell fromhis pants. The officer testified that, following the third search, he “seized the items that fell onto the ground out of [the appellant’s] pantleg . . . and then [he] placed the [appellant] in [his] vehicle, where he was chartered and cautioned” (A.R., at p. 152).

The officer’slanguage and conduct conveyed clearly that the appellant was under arrest (see R. v. Latimer, (SCC), [1997] 1 S.C.R.217, at para. 25). His conduct had the effect of placing the appellant under arrest for possession of a prohibited firearm (Latimer, atpara. 24).

I thus infer from the record that the appellant was placed under arrest for possession of a prohibited firearm following the thirdsearch. [68] The strip search at the police station was incident to this weapons arrest, because it was for the purpose ofdiscovering concealed weapons or evidence related to the offence for which the appellant was lawfully arrested (see Golden, at para. 94).Strip searches unquestionably “represent a significant invasion of privacy and are often a humiliating, degrading and traumaticexperience for individuals subject to them” (Golden, at para. 83).

However, the strip search here was minimally intrusive, as it wasconducted reasonably, in a manner consistent with this Court’s guidelines for strip searches (see Golden, at paras. 101-2). It wasperformed at the police station, it was limited to the appellant’s underwear waistband, and the appellant wore his underwear throughoutthe search. [69] I therefore conclude that the strip search did not infringe s. 8 of the Charter.

(6) Conclusion [70] The initial pat-down search of the appellant’s person and the search of his car infringed s. 8 of the Charter, but thefurther pat-down search and the strip search did not. C. Should the Evidence Be Excluded Under Section 24(2) of the Charter?

(1) Introduction [71] Given the breaches of ss. 8 and 9 of the Charter, the final issue to consider is whether the evidence should have beenexcluded under s. 24(2).

Section 24(2) provides that when “a court concludes that evidence was obtained in a manner” that infringed aCharter right, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute”. [72] Because the trial judge erred in law in assessing the nature and extent of the Charter breaches, no appellate deferenceis owed to his “alternative” conclusion to admit the evidence. This Court must therefore consider that issue afresh (see Grant, atpara. 129; Le, at para. 138; R. v.

Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 42). [73] As I explain below, although all the impugned evidence was “obtained in a manner” that infringed the appellant’sCharter rights, the evidence should not be excluded under s. 24(2).

(2) Applicable Legal Principles [74] Section 24(2) of the Charter is triggered where evidence is “obtained in a manner” that violates anaccused’s Charter rights. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on publicconfidence in the justice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter-infringing stateconduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of thecase on the merits.

A court’s task is to balance the assessments under these three lines of inquiry “to determine whether, considering allthe circumstances, admission of the evidence would bring the administration of justice into disrepute” (Grant, at para. 71; see also Le, atparas. 139-42). [75] Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in breach of a Charter right.The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring theadministration of justice into disrepute (see Collins, at p. 280; Fearon, at para. 89; see also S.

C. Hill, D. M. Tanovich and L. P. Strezos,McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 19:12).

(3) All the Evidence Seized Was “Obtained in a Manner” That Breached the Appellant’s Charter Rights [76] Because I have concluded that the appellant’s arrest for possession of a controlled substance and the searches of hisperson and car incident to arrest infringed ss. 8 and 9 of the Charter, the ammunition and illegal drugs seized during the first and secondsearches were “obtained in a manner” that breached his Charter rights.

This triggers consideration of whether to exclude this evidenceunder s. 24(2) of the Charter. [77] The key disputed point concerns whether the loaded handgun and ammunition found during the third search were“obtained in a manner” that breached the appellant’s Charter rights. The Crown submits that because the appellant was lawfully detainedfor the traffic collision investigation when the police saw bullets falling from his pants, the nexus between the unlawful drug arrest andthe discovery of the gun and ammunition is tenuous.

The Crown also says that the bullets falling from the appellant’s pants was “asignificant intervening factor”, effectively breaking the chain of causation between the unlawful arrest and first two searches, on the onehand, and the evidence obtained during the third search, on the other hand (R.F., at para. 81). As a result, the Crown submits that the

evidence found during the third search was not “obtained in a manner” that breached the appellant’s Charter rights. By contrast, theappellant submits that his unlawful arrest for possession of a controlled substance triggered all four searches, thus providing a temporal,causal, or contextual connection between the Charter breaches and the discovery of the gun and ammunition on his person. According tothe appellant, all the evidence was “obtained in a manner” that breached his Charter rights.

As I will explain, I agree with the appellant. [78] This Court has provided guidance as to when evidence is “obtained in a manner” that breached an accused’s Charterrights so as to trigger s. 24(2): 1. The courts take “a purposive and generous approach” to whether evidence was “obtained in a manner” that breached an accused’sCharter rights (R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38). 2. The “entire chain of events” involving the Charter breach and the impugned evidence should be examined (R. v.

Strachan, (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6). 3. “Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course ofconduct” (Mack, at para. 38; see also Wittwer, at para. 21). 4. The connection between the Charter breach and the impugned evidence can be “temporal, contextual, causal or a combination ofthe three” (Wittwer, at para. 21, quoting R. v. Plaha (2004), (ON CA), 189 O.A.C. 376, at para. 45). A causalconnection is not required (Wittwer, at para. 21; R. v.

Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; Strachan, at pp. 1000-1002). 5. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2)(Mack, at para. 38; Wittwer, at para. 21; R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Strachan, at pp. 1005-6). Such situations should be dealt with on a case by case basis. There is “no hard and fast rule for determining when evidence obtainedfollowing the infringement of a Charter right becomes too remote” (Strachan, at p. 1006). See also R. v.

Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Lichtenwald, 2020 SKCA 70, 388 C.C.C. (3d) 377, atpara. 57; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at paras. 75-76, aff’d 2021 SCC 38; and Hill, Tanovich and Strezos, at §19:22. [79] Here, I need not decide whether, as urged by the Crown, the bullets falling from the appellant’s pants broke the chainof causation between the appellant’s unlawful arrest and the unlawful first two searches, on the one hand, and the lawful third search, onthe other hand.

Even if it could be said that there was no causal connection between the Charter breaches and the discovery of theevidence during the third search, there were undoubtedly temporal and contextual connections that were neither tenuous nor remote. Theconnection between the Charter breaches and the impugned evidence from the third search was temporal, because the discovery of thisevidence was very close in time to the Charter breaches.

The connection was also contextual, because the discovery of this evidenceflowed directly out of the same encounter with the police: the third search arose because the officer was concerned that he had “missedsome items” during the first search.

The third search was also part of the same transaction or course of conduct as the first and secondsearches: the encounter began as a traffic collision investigation that quickly led to an unlawful arrest for possession of what wasbelieved to be a controlled substance, which then immediately gave rise to safety concerns justifying the third search. [80] Under this Court’s generous approach to the “obtained in a manner” threshold requirement, these temporal andcontextual connections are sufficient to require consideration of whether the evidence obtained from the third search should be excludedunder s. 24(2) of the Charter, in addition to the evidence from the first two searches. [81] I now turn to the three lines of inquiry under s. 24(2) of the Charter.

(4) The Evidence Should Not Be Excluded Under Section 24(2) of the Charter (

a) The Seriousness of the Charter-Infringing State Conduct [82] The first line of inquiry under s. 24(2) considers the seriousness of the Charter-infringing state conduct. It askswhether the police engaged in misconduct from which the court should dissociate itself (see Grant, at para. 72). The concern of thisinquiry is “not to punish the police”, but rather to “preserve public confidence in the rule of law and its processes” (Grant, at para. 73).The court must situate the Charter-infringing conduct on a “spectrum” or a “scale of culpability” (Grant, at para. 74; Paterson, atpara. 43; Le, at para. 143).

At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemicpattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from suchconduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charterbreaches that are inadvertent, technical, or minor, or which reflect an understandable mistake.

Such circumstances minimally underminepublic confidence in the rule of law, and thus dissociation is much less of a concern (see Grant, at para. 74; Le, at para. 143; R. v.Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22). [83] I would situate this case at the less serious end of the scale of culpability.

I say this for three reasons. [84] First, the Charter-infringing state conduct underlying the appellant’s arrest and the searches incident to arrest wasinadvertent, not deliberate, and reflected an honest mistake about whether gabapentin was one of the hundreds of controlled substanceslisted under the CDSA. While police officers are expected to know the law that they are enforcing, the arresting officer here had been onthe force for only three years. In that brief time, he had seen gabapentin, which he knew by the street name “gabby”, trafficked withcontrolled substances such as fentanyl and methamphetamine.

His experience was consistent with the jurisprudence that often mentionsgabapentin alongside other controlled substances, even though it is a prescription drug (see above, at para. 7). In short, a relativelyinexperienced officer arrested the appellant based on an honest mistake (see Fearon, at para. 95). [85] Nevertheless, I agree with the appellant, and with the conclusion of the dissenting judge (at para. 84), that eventhough the officer’s mistake was not made in bad faith, this alone does not make the Charter breach in “good faith” (see Le, at

para. 147). Good faith on the part of the police, if present, would reduce the need for the court to dissociate itself from the police conduct(see Grant, at para. 75; Paterson, at para. 44). Good faith cannot be claimed if the Charter breach arises from a police officer’snegligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards (see Grant, at para. 75;Buhay, at para. 59; Le, at para. 147; Paterson, at para. 44).

I also accept that “[e]ven where the Charter infringement is not deliberate orthe product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rulesgoverning state conduct” (Paterson, at para. 44; see also Harrison, at paras. 24-25). Even so, in my view, the officer’s mistake and theensuing Charter breaches remain honest and inadvertent, rather than wilful or reckless. [86] Second, at no time did the police conduct display wilful blindness or a flagrant disregard for the appellant’s Charterrights (see Grant, at para. 75).

To the contrary, the arresting officer tried to respect the appellant’s Charter rights throughout.

Hisunchallenged evidence was that he arrested the appellant immediately, before asking him about the drug, because he wanted to advisehim of his Charter rights without delay. [87] I therefore disagree with the assertion of the appellant, and of the dissenting judge (at paras. 85-87 and 89), that theseriousness of the Charter breaches is aggravated by the officer’s failure to deploy non-Charter infringing investigatory techniques, suchas using a brief investigative detention to confirm his suspicion about the legal status of gabapentin (see Collins, at p. 285).

In my view,that assertion is based on a false premise. The trial judge found as fact that the officer believed rather than merely suspected thatgabapentin was a controlled substance. Although the officer should have had an adequate understanding of the law that he was enforcing,he did not arrest the appellant based on a mere suspicion. [88] Third, there is no evidence before the Court of a systemic problem or lack of training in the Calgary police force thatcontributed to the officer’s honest mistake.

This Court has noted that “while evidence of a systemic problem can properly aggravate theseriousness of the breach and weigh in favour of exclusion, the absence of such a problem is hardly a mitigating factor” (Harrison, atpara. 25). While not a mitigating factor, the absence of a systemic problem informs the court’s task of situating the officer’s mistake on ascale of culpability. As stated above, dissociation is less of a concern for an inadvertent or technical error (see Grant, at para. 74; Le, atpara. 143; Harrison, at para. 22).

In this case, the facts disclose human error, plain and simple, by a single, relatively inexperiencedpolice officer. [89] Given the officer’s honest mistake, the lack of a flagrant disregard for Charter rights, and the lack of a systemicproblem, I would situate the Charter-infringing state conduct at the less serious end of the scale of culpability. This factor favoursexclusion, but only weakly. (

b) The Impact on the Appellant’s Charter-Protected Interests [90] The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter-protectedinterests. It asks whether the breach “actually undermined the interests protected by the right infringed” (Grant, at para. 76; Le, atpara. 151). This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the breachesaffected those interests (see Grant, at para. 77).

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

This isbecause “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to thecitizen, breeding public cynicism and bringing the administration of justice into disrepute” (Grant, at para. 76; see also Le, at para. 151;Harrison, at para. 28). [91] In this case, I have found three Charter breaches: a breach of s. 9 in the appellant’s unlawful arrest; and two breachesof s. 8 in the unreasonable search of the appellant’s person and car incident to arrest.

The interests protected by s. 9 of the Charterinclude the protection of “individual liberty from unjustified state interference” (Grant, at para. 20; Le, at para. 152), while the interestsprotected by s. 8 of the Charter include individual privacy and human dignity (see Grant, at para. 78; R. v. Cole, 2012 SCC 53, [2012] 3S.C.R. 34, at para. 91).

I would characterize the breaches here as having had a moderate impact on the appellant’s Charter-protectedinterests: while the impact was not fleeting, technical, transient, or trivial, it was not profoundly intrusive either. [92] With regard to the impact of the s. 9 Charter breach, the appellant submits that his arbitrary arrest involved“unsanctioned state violence” on his liberty interest (A.F., at para. 122). He says that his arrest on a busy road was not brief or fleeting,and that handcuffs restricted his liberty and movement.

Yet, as the Crown rightly notes, and as the appellant appropriately concedes, hewas lawfully detained for the traffic collision investigation. He had to remain at the scene and cooperate with the police regarding thecollision — he was not free to go (see Rowson (ABCA), at para. 44; see also Hill, Tanovich and Strezos, at § 19:36).

Because theappellant’s liberty interests were lawfully restricted for the traffic collision investigation, this mitigates the impact of his arbitrary arrestto some extent. [93] With regard to the impact of the s. 8 Charter breaches, the first search, a pat-down search, is a “relatively non-intrusive procedure” (Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158, at p. 185), one that is “minimally intrusive”(Mann, at para. 56). The search here fit that description.

The same can be said of the second search, a search of the appellant’s carincident to arrest, given the reduced expectation of privacy in a car (see MacKenzie, at para. 31; R. v. Belnavis, (SCC),[1997] 3 S.C.R. 341, at para. 38; R. v. Wise, (SCC), [1992] 1 S.C.R. 527, at p. 534). [94] On the other side of the ledger, I am not prepared to speculate as to whether the evidence would have been discoveredabsent the Charter breaches.

It is true that if the evidence were only discoverable through the Charter breach, then there would be agreater impact on the accused’s Charter-protected interests (see Grant, at paras. 122 and 137; R. v. Keller, 2019 ABCA 38, 372 C.C.C.(3d) 502, at para. 64). However, “in cases where it cannot be determined with any confidence whether evidence would have beendiscovered” absent a Charter breach, “discoverability will have no impact on the s. 24(2) inquiry” (Grant, at para. 122; see also Hill,Tanovich and Strezos, at § 19:49). Courts should not engage in speculation about discoverability (see R. v.

Côté, 2011 SCC 46, [2011] 3S.C.R. 215, at para. 70).

[ 95 ] Collecting these factors under the second line of inquiry, in my view, the Charter breaches arising from the unlawful arrest and the first two searches ha

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