2022 QCCQ 5447, 2022 QCCQ 5447

Tsontakis c. R. 2022 QCCQ 5447 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” N° : 500-01-194204-191 DATE : July 22, 2022 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. GEORGES TSONTAKIS Applicant / Accused v. HER MAJESTY THE QUEEN Respondent/ Prosecutor JUDGMENT ON AN APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8, 9 AND 24 (2) of the Canadian Charter of Rights and Freedoms [1] I. CONTEXT [ 1 ] On April 7, 2019, Mr.

Tsontakis was arrested by two officers who mistakenly believed he was in breach of a court-imposed condition of his release from custody in another matter. Immediately following this arrest for breach, further investigation revealed that he was wanted on an outstanding warrant. He was brought to the police station and searched before being placed in a cell. That search led to the seizure of 2.06 g. of crack cocaine, the possession of which forms the basis of the present charges, pursuant to section 4(1)

(3) a) of the Controlled Drugs and Substances Act . [ 2 ] Mr. Tsontakis does not deny that he had the crack cocaine on him for his personal use. However, he submits that it was found by the police pursuant to an unlawful search in breach of his constitutional rights protected under sections 8 and 9 of the Charter . He argues that the conduct of the police warrants the exclusion of the drugs seized, pursuant to section 24 (2) of the Charter . [2] II. EVIDENCE [ 3 ] Four police officers testified on the “voir-dire”. Despite some contradictions in their testimony, the following factual

summary emerges from the evidence heard. [ 4 ] Officers Hansen and Chassé were patrolling in Park Extension on bicycles on the afternoon of April 17, 2019, when they spotted Mr. Tsontakis at approximately 15:47. He was well known to both officers as they had been patrolling this sector, part of Station 33 (“PDQ 33”), for several years and had dealt with him on many occasions. More importantly, roughly two months earlier, on February 6, 2019, Mr. Tsontakis was arrested for uttering threats and harassment against Officers Hansen and Chartrand. In that file, following his arrest and detention, Mr.

Tsontakis was released by a judge on an undertaking to respect conditions, namely to keep the peace and be of good behaviour, to be in Court as required, to reside at the address he provided, to notify the Court before changing his address and to refrain from possessing any type of weapons, except a pocket knife for work purposes. [3] [ 5 ] On April 10, 2019, Officers Hansen and Chartrand (as well as a larger group of recipients from PDQ 33) received an email [4] from their lieutenant.

At the top of the email, the subject heading reads: “Suivi conditions sujet Tsontakis, Georges 1968-06-27”. [ 6 ] The full text of the email is reproduced below: Pour votre information, la Commandante Matte a fait vérifier les conditions du sujet en question suite à l’événement de menaces/intimidation envers les agents Hansen et Chartrand, car il n’y avait aucune condition spécifique de ne pas se trouver dans l’arrondissement Park-Extension, ni d’entrer en contact avec les agents en question. Voici la réponse qu’elle a eue provenant de la

section du renseignement : Étant donné qu’il est encore en détention, donc sous la responsabilité des services correctionnels, il n’a pas encore de conditions. Si jamais il se sauve de Portage où il est présentement détenu et en cure de désintox, il sera sous le coup d’un mandat d’arrestation et le SD Sylvie Lévesque du renseignement sera informée.

Sa sentence est prévue se terminer en avril 2020. Si après sa cure le service correctionnel décide de le libérer (donc avant avril 2020), il sera dans un CCC avec des conditions et nous serons informés à ce moment-là et un suivi nous sera fait. [ 7 ] Thus, the email indicated that Mr. Tsontakis had been sent to Portage for residential drug therapy and it referred to the earlier file of threats and harassment against Officers Hansen and Chartrand. According to the email, Commandante Matte had been informed that Mr.

Tsontakis was “still detained” and had “not yet received any [release] conditions”, and that if ever he fled Portage , where he was “currently detained” on a drug treatment program, there would be a warrant issued for his arrest. [ 8 ] The email added that Mr.

Tsontakis was serving a sentence until April 2020 and that if, after his drug treatment program, the correctional services decided to release him before April 2020, he would be in a CCC (Community Correctional Center) with conditions, a situation that the police would be informed of, to allow for a follow-up. [ 9 ] The prosecution does not deny that the information contained in this email is erroneous. [5] In fact, Mr. Tsontakis was never in Portage. Moreover, he was never subjected to court-imposed conditions to reside there. [ 10 ] Nevertheless, on April 17, 2019, when Officers Hansen and Chassé noticed Mr.

Tsontakis on the street, one week after having seen the email referred to above, they arrested him for breach of conditions for having left Portage . Officer Chassé testified that upon arrest, Mr. Tsontakis protested and told the officers “it was bullshit” but according to Officer Chassé, 90% of the people he arrests contest the police’s authority to do so. [ 11 ] The officers handcuffed Mr.

Tsontakis and proceeded to carry out a pat-down search, incidental to the arrest, during which two knives were seized. [ 12 ] At 15:49, the arresting officers called for assistance from officers in a patrol car, because, being on bicycles, they did not have access to the central information system (Centre de renseignements policiers du Québec (CRPQ)). At 15:57 Officers Provençal-Gonthier and Chartrand arrived and Mr. Tsontakis was placed in the rear of the police car. Meanwhile, Officer Provençal-Gonthier verified the CRPQ which did not indicate that Mr. Tsontakis was under conditions to reside at Portage.

However, it did show an outstanding, unendorsed warrant for theft against him. [ 13 ] Mr. Tsontakis was then driven to the police station at 16:08. Before placing him in a cell, Officer Chartrand proceeded to conduct a more thorough search and discovered a zip-lock bag containing 10 small rocks of crack cocaine in one of Mr. Tsontakis’s socks. He was arrested for drug possession at 16:38. III. QUESTIONS AT ISSUE 1) Was the initial arrest of Mr. Tsontakis unlawful? 2) If so: (

i) did the police breach his

section 8 and 9 Charter rights, and (ii) should the drugs seized be excluded pursuant to section 24 (2) of the Charter ? IV. POSITION OF THE PARTIES The Defence [ 14 ] Mr. Tsontakis argues that there were no reasonable grounds to arrest him in the first place. He claims that he was targeted by the officers who had issues with him since the time that the harassment charges were laid.

He points to the many contradictions in the police testimony, as well as what he describes as a fanciful explanation for the erroneous information in the email sent on April 10. [6] He suggests that the information in the email was vague and no more reliable than information provided by an anonymous source, and thus required verification by the officers before relying on it. [ 15 ] Mr.

Tsontakis submits that the police were acting in bad faith, as they knowingly arrested him without cause, unlawfully seized his knives, and then retained them without authority to do so, first claiming this was done pursuant to a municipal by-law but then later claiming that it was because his possession breached court-imposed conditions. According to Mr. Tsontakis, the combination of these improper actions by the police and their attempts to justify them after the fact, must lead the Court to exclude the drugs seized following an analysis under section 24(2) of the Charter .

The Prosecution [ 16 ] The prosecution submits that the officers had reasonable and probable grounds to arrest Mr. Tsontakis when they first intercepted him on the street. At the time, they properly relied on information received by one of their supervisors which they had no reason to doubt. According to the prosecution, the fact that this information was subsequently found to be erroneous does not affect the subjective and objective reasonable grounds they had to arrest Mr. Tsontakis for breach of conditions.

Should the Court conclude that the arrest was unlawful, the prosecution submits that the police officers were nonetheless acting in good faith, and because they eventually arrested Mr. Tsontakis on a valid warrant, the incriminating and reliable evidence found pursuant to a valid search in execution of that warrant must not be excluded. V. THE LAW REGARDING POLICE POWERS TO ARREST, DETAIN AND SEARCH

[17]

Section 9 of the Charter provides that “Everyone has the right not to be arbitrarily detained or imprisoned.” [18]

Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure.” [19]

Section 495.1 of the Criminal Code provides: Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about tocontravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by theaccused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, thepeace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with undersection 524. [20] Recently, in R. v.

Tim,[7] the Supreme Court of Canada reviewed the framework for the analysis of a warrantless arrest[8] andreiterated that in order to be valid, it requires both subjective and objective grounds.

The arresting officer must “subjectively havereasonable and probable grounds for the arrest and those grounds must be justifiable from an objective viewpoint”.[9] [21] The existence of objective grounds must be determined “on the totality of the circumstances known to the officer at the time ofthe arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge,training, and experience as the arresting officer”.[10] [22] In the matter of Leventis c.

R.,[11] Justice Vauclair, writing for the Quebec Court of Appeal, underscored the importance of“objectively reasonable grounds” in the context of a warrantless arrest: [24] Puisqu’il s’agit en définitive d’une arrestation sans autorisation judiciaire préalable, « [d]ans le cas d'une arrestation sans mandat, ilimporte encore davantage que la police établisse l'existence de [...] motifs raisonnables » : R. c.

Storrey, (SCC), [1990]1 R.C.S. 241, 249. [25] Tout en se gardant d’appliquer une norme qui paralyserait les actions policières lors d’une arrestation sans mandat, le droit exigedonc des policiers une plus grande rigueur ainsi qu’une plus grande vigilance de la part des tribunaux lorsqu'ils sont appelés à statuer surla légalité de l'arrestation : R. c. Perreault, (QC CA), [1992] R.J.Q. 1848, 1851 (C.A.); R. c.

Lévesque Mandanici,2014 QCCA 1517, par. 52. [26] On ne peut pas tolérer des arrestations fondées sur des soupçons puisque « les citoyens ont le droit de déambuler sur la rue sans êtrearrêtés par des policiers qui n'ont aucun motif raisonnable de ce faire »: R. c.

Lévesque Mandanici, 2014 QCCA 1517, par. 67-71. [emphasis added] [23] The assessment of “the totality of the circumstances known to the officer at the time of arrest” must include not only potentiallyincriminating information, but all of the readily available facts, without disregarding reliable information that could exonerate thesuspect.[12] However, officers are not required to undertake further investigation to seek out exculpatory factors or rule out possibleinnocent explanations.[13] [24] As underscored in R. v.

Shinkewski:[14] [19] […] An otherwise lawful arrest is not invalidated by the ex post facto discovery of deficiencies or defects in the information uponwhich the police have relied to effect the arrest unless, in the circumstances at play in the arrest situation, the police could reasonablyhave made inquiries which would have led to the discovery of the deficiencies or defects. […] [25] Thus, where it is later discovered that the police proceeded to an arrest based on erroneous information, this, in itself, will notrender the grounds for arrest objectively unreasonable.

The Ontario Court of Appeal explained this in R. v. Gerson-Foster:[15] [79] To be clear, the “facts” relied upon by the officer need not be true. “Reasonable grounds can be based on [an officer’s] reasonablebelief that certain facts exist even if it turns out that the belief is mistaken”: R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, atpara. 40. This includes an honest but reasonably mistaken subjective belief that an arrest warrant relied upon to make an arrest is valid:R. v.

Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186, at para. 26. [26] Nevertheless, in certain circumstances, officers will be expected to verify information before blindly relying on it. Thus, inKossick,[16] the Saskatchewan Court of Appeal held that reliance by an arresting officer on erroneous information will not beobjectively reasonable if, in the circumstances, “the police could reasonably have made inquiries which would have led to the discoveryof the deficiencies or defects”. In that case, a police officer received an email from a colleague involved in an investigation about a stolenbicycle. Mr.

Kossick was a suspect and his photo was attached. Some nine days later, an officer on patrol spotted Mr. Kossick andarrested him based on that information. The arresting officer was unaware that the accused had since been arrested and released onconditions, information he would have obtained through a proper verification in the CPIC system.

The arrest and search of the accusedled to the seizure of drugs and related drug-trafficking items. [27] The Saskatchewan Court of Appeal confirmed the trial judge’s ruling excluding the evidence, finding that the arresting officer’ssubjective belief was not objectively reasonable in the circumstances[17] since, on the facts of that case, and in a situation without anyreal urgency,[18] it was incumbent on the officer to make further inquiries before arresting the suspect. [28] The Ontario Court of Appeal agreed with the reasoning in Kossick in R. v. Gerson-Foster,[19] adding that, “this principle applies

not simply to the initial arrest, but to the continued detention where reasonably, the officers ought to make further inquiry into the basis for the arrest that supports the continued detention”. [20] [ 29 ] R. v. Burke [21] also illustrates that before arresting a suspect, the police are required to proceed with some basic verifications when these can be done fairly easily.

In that case, the Supreme Court of Canada confirmed that the arrest of the accused was unlawful in circumstances where the police mistakenly identified him and ignored his protests and his request that they verify their information on the computer in order to see that he was the brother of the person sought by the arrest warrant. [ 30 ] In essence, where police officers make an arrest based on erroneous information they believed to be true at the time, the ease with which basic verifications could have been made, in non-urgent circumstances, may render their subjective belief objectively unreasonable, and thus the arrest unlawful.

VI. ANALYSIS 1) Was the initial arrest of Mr. Tsontakis unlawful? [ 31 ] The Court finds that Officers Hansen and Chassé subjectively believed that Mr. Tsontakis was breaching court-imposed conditions. This was their understanding of the email they received from their supervisor, one week prior. In light of the principles set out above, the question remains whether this belief was objectively reasonable, allowing them to proceed with a warrantless arrest.

In these circumstances, it was not. [ 32 ] Following the reasoning in Kossick , the nature of the information provided by their supervisor required the officers to make further inquiries as to the existence of court-imposed conditions before arresting Mr. Tsontakis. [ 33 ] First, the email itself is unclear and ambiguous. It does not inform the officers that Mr. Tsontakis was under court conditions to reside at Portage . On the contrary, the email states that “ il n’a pas encore de conditions ” i.e., that he was not yet under court-imposed conditions, even if it also refers, somewhat contradictorily to Mr.

Tsontakis being “detained” for drug therapy. [ 34 ] Although the officers were entitled to rely on information provided from a superior officer, [22] they could not extrapolate from this information more than what the email specified. At the very least, further inquiry was warranted. [ 35 ] Furthermore, even if this email could be said to provide sufficient indication of a specific condition that Mr. Tsontakis was breaching by not being at Portage , it was incumbent on the officers to verify if one week later, that was still the case.

As demonstrated by the facts here, such a verification in the CRPQ could be done quickly and easily. [ 36 ] Thus, despite the officers’ subjective belief that Mr. Tsontakis was breaching his court-imposed conditions, this belief was not reasonable in the circumstances. In this case, the need for some further inquiry was triggered by (

i) incomplete and contradictory information in the supervisor’s email, (ii) the fact that a week had passed since the officers received that email, and (iii) the protests by Mr. Tsontakis himself. As in the case of Kossick , the ease with which this information could have been obtained through verification in the police information system, the absence of any threat posed by Mr. Tsontakis, and the absence of urgency to proceed with an arrest, combined to render Mr. Tsontakis’ arrest unlawful. 2) (

i) Did the police breach Mr. Tsontakis’

section 8 and 9 Charter rights? [ 37 ] Because Mr. Tsontakis was initially detained pursuant to an unlawful arrest, his detention was not authorized by law. As the Supreme Court of Canada states in R. v. Grant : “[t]he state may not detain arbitrarily, but only in accordance with the law”, and “a detention not authorized by law is arbitrary and violates s. 9”. [23] [ 38 ] Similarly, where an arrest is found to be unlawful, a search incident to that arrest is a violation of

section 8 of the Charter . [24] The Quebec Court of Appeal expresses this quite simply: “[l]’illégalité de l’arrestation emporte l’illégalité de la fouille”. [25] [ 39 ] Thus, the conclusion that the arrest of Mr. Tsontakis was unlawful leads to the conclusion that his

section 8 and 9 Charter rights were breached. 2 (ii) Should the drugs seized be excluded pursuant to section 24 (2) of the Charter ? [ 40 ] Section 24 (2) of the Charter provides that “where a court concludes that evidence was obtained in a manner that infringed or denied any rights or 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”. [ 41 ] The issue of whether evidence was “obtained in a manner” that breached a Charter right does not require a causal connection: a temporal or contextual connection will suffice to engage the inquiry under this section. [26] [ 42 ] The burden rests on the applicant to establish , on a balance of probabilities, that evidence obtained pursuant to a Charter breach should be excluded. [27] The three-pronged test that applies on an application for the exclusion of evidence pursuant to section 24(2) of the Charter is set out by the Supreme Court of Canada in R. v.

Grant , [28] requiring the Court to balance (

i) the seriousness of the Charter -infringing state conduct; (ii) the impact on the accused’s Charter -protected Interests; and (iii) society’s interest in the

adjudication of the case on the merits. [ 43 ] For the purposes of this analysis, it is useful to summarize the facts accepted by the Court which led to the discovery of the evidence sought to be excluded. [ 44 ] The police unlawfully arrested Mr. Tsontakis on the basis of incomplete information obtained from a superior officer which they failed to verify. Incidental to this arrest, the police carried out a

summary search and seized two knives. [ 45 ] Mr. Tsontakis was detained and handcuffed while the officers waited for a patrol car to arrive. He was then placed in the patrol car where he waited for another ten minutes while police officers checked the CRPQ. This verification disclosed that Mr. Tsontakis was the subject of an unendorsed warrant. [29] [ 46 ] Mr. Tsontakis was taken to the police station where he was subjected to a further search which revealed crack cocaine found in his sock. 1) The seriousness of the Charter -infringing state conduct The law [ 47 ] The Supreme Court of Canada in R. v.

Tim , [30] summarized this line of inquiry as follows: [82] The first line of inquiry under s. 24(2) considers the seriousness of the Charter -infringing state conduct. It asks whether the police engaged in misconduct from which the court should dissociate itself (see Grant , at para. 72). The concern of this inquiry is “not to punish the police”, but rather to “preserve public confidence in the rule of law and its processes ” ( Grant , at para. 73). The court must situate the Charter-infringing conduct on a “spectrum” or a “scale of culpability” ( Grant , at para. 74; Paterson , at para. 43; Le , at para. 143).

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

Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern (see Grant , at para. 74; Le , at para. 143; R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 22 ). [emphasis added] [ 48 ] Also relevant to this first line of inquiry is evidence of good faith or bad faith of the police officers. Whereas bad faith or conscious disregard for Charter rights are at the more serious end of the spectrum, errors made in good faith may not be so egregious.

Nevertheless, ignorance of the law or negligence should not be equated with good faith [31] and good faith of the officers is not to be presumed. [32] [ 49 ] Recently, in Leventis c. R ., [33] where officers arrested the accused on the basis of unconfirmed information obtained by an anonymous informant and on their observations which were insufficient to objectively establish grounds for the arrest, the Quebec Court of Appeal held that the Charter breach was serious.

The Court in Leventis [34] cites its earlier decision in Lévesque Mandanici , highlighting the gravity of officers’ ignorance of the scope of their powers under

section 495 the Criminal Code . [35] [ 50 ] The Quebec Court of Appeal also held in Leventis that in the absence of urgency or public safety concerns, a rush to proceed with an arrest absent sufficient grounds is a serious violation. [36] [ 51 ] In Kossick , where a police officer made a warrantless arrest based on information obtained from another officer that turned out to be false, without conducting further checks, the Saskatchewan Court of Appeal confirmed the trial judge’s decision to exclude the evidence finding that the officer was negligent in choosing expediency over diligence, and that the violation was serious. [37] Application to these facts [ 52 ] The unlawful arrest subjected Mr.

Tsontakis to intrusive conduct by the police. The two arresting officers proceeded hastily without even considering the appropriateness of confirming the existence of the condition they assumed Mr. Tsontakis was breaching. Although the email they relied on was provided by a superior officer, the information it contained was unclear and contradictory and was easily verifiable. [ 53 ] The backdrop of this incident is also troubling. Clearly, there was a history of some acrimony between Mr. Tsontakis and these specific officers. Mr. Hansen (one of the officers who proceeded with the initial arrest) and Mr.

Chartrand (who arrived in a patrol car to assist) had recently pressed charges against Mr. Tsontakis for having threatened and intimidated them. It is not difficult in the circumstances to understand, from Mr. Tsontakis’ viewpoint, that he was being targeted by these officers. [ 54 ] In the case of Officer Chartrand, his denial of any recollection of having been named a victim in a harassment file leaves the Court to question whether he felt that he had something to hide. Even though this incident occurred three years ago and even if Mr.

Chartrand has since retired from the police force, it is curious, at the very least, if not unbelievable, that he would not remember anything about being named as a victim on charges of threats and harassment. Nevertheless, it should be recalled that Officer Chartrand did not proceed with this arrest, but only arrived to provide assistance after the initial unlawful arrest. [ 55 ] As for the issue of the knives seized, the present application concerns only the exclusion of the drugs that were seized at the police station.

The defence refers to the seizure of the knives as providing context for their allegations of the officers’ ignorance and disrespect of Mr. Tsontakis' rights and suggests it increases the seriousness of the breach. For example, the officers gave contradictory testimony regarding the authority to seize the knives pursuant to a municipal by-law. In addition, in charging Mr. Tsontakis (in another file) for breach of his condition not to possess knives, the officers seemed unconcerned or uninformed about the exception in those

conditions, which allowed him to possess pocket knives for work purposes. It must be remembered that the Court is not presently seized with that file nor with an application to exclude the knives from evidence. The Court does not consider these elements to provide evidence of additional breaches nor of disrespect for Mr. Tsontakis’ Charter -protected rights. The Court does not find fault with officers removing knives from a suspect before placing him in a patrol car. The question of whether these fell within the exception of his court conditions, while relevant in the other file, is not relevant here.

In sum, the seizure of the knives and testimony relating to it does not affect the analysis here. [ 56 ] The Court does not find that the officers were motivated by bad faith, but underscores that they should have acted more diligently, despite their subjective belief about the existence of a Court condition.

Particularly in circumstances where there is a history between a suspect and the police, introducing an acrimonious setting to their encounters, it is incumbent on the police to ensure that they are operating in accordance with their duties and their authority, untainted by any bias. [ 57 ] Overall, the Court finds the breach to be serious, pulling strongly toward exclusion of the evidence. 2) The impact on the accused’s Charter -protected Interests The law [ 58 ] In Tim , [38] the Supreme Court summarizes the second line of inquiry as follows: [90] The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter -protected interests.

It asks whether the breach “actually undermined the interests protected by the right infringed” ( Grant , at para. 76; Le , at para. 151). This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the breaches affected those interests (see Grant , at para. 77).

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

This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” ( Grant , at para. 76; see also Le , at para. 151; Harrison , at para. 28 ). [emphasis added] [ 59 ] In Tim , the arrest was held to be unlawful, as it was based on a mistake of law about the legal status of the drugs in the accused’s car.

The Court held that the pat-down search and search of his car were “minimally intrusive”, but not “fleeting, technical, transient, or trivial”. This line of inquiry pulled moderately toward exclusion. [39] [ 60 ] Another relevant consideration at this stage of inquiry is the discoverability of the evidence in question. Dealing with a statement obtained unlawfully, the Supreme Court in Grant stated: “[t]he more likely it is that the evidence would have been obtained even without the breach, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. ” [40] [ 61 ] In R. c.

Hurtubise , [41] two police officers proceeded with a search of the accused’s vehicle without waiting for the warrant which was eventually issued. The Quebec Court of Appeal held that the impact of the breach on Charter protected rights of the accused was slight given that the evidence was not conscripted and that it would have been discovered absent the breach. [ 62 ] Similar reasoning was applied in Jodoin c.

R. [42] where the Quebec Court of Appeal noted that the items found in the accused’s bag would have been discovered, absent the breach, since the accused was subsequently lawfully arrested and detained, which would, in any event, have led to a valid search of his backpack. Application to these facts [ 63 ] The violation interfered with Mr. Tsontakis’ basic right to freely circulate on the street. Because of his unlawful arrest, Mr. Tsontakis was detained, handcuffed and placed in the backseat of a patrol car. The initial arrest occurred at 15:49, [43] Mr.

Tsontakis was placed in the patrol car at 15:57, and the warrant against him was discovered just before they left for the police station, at 16:08. [44] [ 64 ] Borrowing the words used by the Supreme Court in Tim to qualify the interference here, the arbitrary detention of Mr.

Tsontakis for some twenty minutes, ten of which were spent in the back seat of the patrol car, was not “profoundly intrusive” but nor was it “fleeting, technical, transient, or trivial.” [45] [ 65 ] As to the issue of discoverability, even if the police on patrol had not acted hastily but simply asked for assistance in order to verify the court conditions in the CRPQ, the drugs would still have been discovered. As soon as the police officers found the outstanding warrant in their system, they were entitled and obligated to proceed with Mr. Tsontakis’ arrest. From that moment on, the detention of Mr.

Tsontakis, his transportation to the police station, and further search were lawful. Not only were the drugs seized discoverable without the Charter -infringing conduct, the search which led to finding them had nothing to do with the unlawful arrest. [ 66 ] The situation would be different if the initial unlawful arrest and search incident to arrest had led to the discovery of the drugs, in which case the direct causal connection between the breach and the evidence obtained would strongly favour exclusion on the second line of inquiry.

Similarly, had the unlawful arrest sparked a chain of events that ultimately lead to finding the drugs, this too would favour exclusion on this line of inquiry. [ 67 ] Such was the analysis in the recent Court of Appeal case of Martinbeault c . R. [46] where a driver was intercepted and then arrested on a warrant for an unpaid fine ("mandat percepteur"). Because this took place on a Saturday, the police did not have access to the information regarding the amount owing, nor the equipment required to collect the fine or to have the applicant sign a promise to appear.

These were the reasons that led the police officers to take the accused to the Detention Centre. The ensuing pat-down search before his transport uncovered illegal drugs and drug paraphernalia.

[68] The Court of Appeal found that the detention was not authorized by law (referring to

section 324 Code of Penal Procedure) andconstituted a violation of

section 9 of the Charter. [69] In assessing the impact of the breach, the Court stated: [37] L'intimée suggère dans son mémoire que la courte durée de la détention milite en faveur de l'admission de la preuve et que lafouille par palpation était peu intrusive. [38] Ces arguments ne peuvent être retenus. Si la détention du requérant sur le bord de la route en attendant la signature d'unengagement de comparaître aurait pu être considérée comme étant de courte durée, il en va autrement à partir du moment où sontransport au Centre de détention est requis en raison de contraintes administratives.

Tel que le rappelle la Cour suprême dans Harrison,le fait pour un automobiliste d'être arrêté et fouillé par un policier a « une incidence plus qu'anodine sur ses attentes légitimes en matièrede liberté et de vie privée ». [39] La fouille par palpation, malgré son caractère peu intrusif, a également une incidence sur les droits du requérant.

Celle-ci est uneconséquence directe et automatique, selon le témoignage du policier, du transport vers le Centre de détention. [40] L’incidence de la violation peut donc être considérée comme étant modérée et ce second critère milite donc également en faveurde l'exclusion de la preuve. [emphasis added; reference omitted] [70] This analysis illustrates the relevance of the chain of events and of the causal link between the breach and the discovery ofevidence when analyzing the impact of the Charter infringing conduct.

As highlighted above, the argument suggesting that a briefdetention on the roadside and a pat-down search did not seriously impact the accused’s Charter protected rights, loses ground whenconsidered in light of all the circumstances in Martinbeault.

Had the police officers complied with the Code of Penal Procedure, andreleased the defendant from custody with an undertaking to appear, he would not have been transported to the detention center, and hewould not have been subjected to a pat-down search. [71] Unlike the facts in Martinbeault, the unlawful arrest in this case did not lead to the discovery of the evidence sought to beexcluded nor did it set in motion a chain of events which eventually led to its discovery. Here, unrelated to the initial arrest, the executionof a valid warrant is what led Mr.

Tsontakis to be taken to the police station and eventually searched. [72] The lack of a causal connection between the breach and the evidence obtained mitigates its impact.[47] [73] Nevertheless, the unlawful arrest did have an impact on Mr. Tsontakis’ Charter-protected rights, since he was unlawfullyarrested and arbitrarily detained until the CRPQ was verified. [74] To summarize, a proper verification made before hastily arresting Mr. Tsontakis would still have led to his being detained,handcuffed, brought to the police station and searched upon arrival.

This Charter-compliant process would have led to the discovery ofthe crack cocaine, but it would have spared Mr. Tsontakis twenty minutes of an arbitrary detention.[48] [75] The analysis of this second line of inquiry on the impact of the unlawful arrest on Mr. Tsontakis’ Charter rights pulls moderatelytoward exclusion. 3) Society’s interest in the adjudication of the case on the merits The law [76] In Tim, the third line of inquiry is summarized as follows: [96] The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown’s case.

Itasks “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by itsexclusion” (Grant, at para. 79). Reliable evidence critical to the Crown’s case will generally pull toward inclusion (see Grant, atparas. 80-81; Harrison, at paras. 33-34). [77] Generally, the reliability of the evidence obtained and its relevance to the Crown’s prosecution of serious offences will favouradmission.[49] In Leventis c.

R.,[50] where the discovery of evidence following the unlawful arrest led to charges of possession ofcocaine and crack cocaine for the purpose of trafficking, the Court of Appeal noted the seriousness of the charges and considered thatsociety's interest in having the case tried on its merits favours the admission of the evidence. However, the Court added: [54] Sur l’intérêt de la société à ce que l'affaire soit jugée au fond, je dois constater que le crime de Leventis n'est pas un crime sansgravité.

Le caractère hautement nuisible du trafic des drogues saisies a souvent été souligné par les tribunaux et il s’agit d’une preuvematérielle sans laquelle un acquittement résultera. Toutefois, la découverte d’une preuve matérielle à la suite d’une arrestation sur la basede soupçons est souvent un facteur présent dans ce type de fouille et cet aspect ne peut pas devenir dans tous les cas un obstacle àl'exclusion de la preuve. La protection de l'intégrité du système judiciaire est au coeur de l’analyse et il faut considérer le discrédit à longterme qu'entraînerait la tolérance des violations : R. c.

Grant, 2009 SCC 32 , [2009] 2 R.C.S. 353, par. 82-84. Application to these facts [78] Regarding society's interest in the merits of the case, it is significant that the evidence is reliable and essential to the prosecutionof the offence charged. Although the charge is not trivial, given the dangers of crack cocaine, it must be noted that Mr. Tsontakis is notcharged with possession for the purpose of trafficking but with possession for his personal use, thus an offense on the lower end of thescale, attenuating society’s pressing need to see the charge prosecuted to its conclusion.

[ 79 ] The third line of inquiry pulls moderately toward inclusion. 4) Overall balancing [ 80 ] As to the final balancing, the Supreme Court in Tim explains: [98] The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant , at paras. 86 and 140 ; Harrison , at para. 36 ).

Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant , at para. 68 ). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” ( Grant , at para. 69 ).

The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” ( Grant , at para. 70 ; see also Le , at para. 139). [ 81 ] In weighing these three factors, the Court is reminded that the exclusion of evidence under section 24(2) of the Charter is to maintain confidence in our system of justice. [51] This was recently underscored by the Court of Appeal of in Cyr-Desbois c.

R. : [52] [46] Considérant la violation, l’objet du paragraphe 24(2) vise à faire en sorte que les éléments de preuve ne déconsidèrent pas davantage le système de justice. Cette disposition ne vise pas à sanctionner la conduite des policiers ni à dédommager l’accusé qui a vu son droit à l’avocat violé, mais plutôt à évaluer les répercussions à long terme de l’utilisation des éléments de preuve [ 82 ] In conclusion, the first line of inquiry under Grant pulls strongly toward exclusion, as the unlawful arrest for breach of conditions was easy to avoid and nothing in the behaviour of Mr.

Tsontakis suggested any reason to act quickly. The second line of inquiry pulls moderately toward exclusion, because, despite the break in the chain of causation and the discoverability of the drugs seized, Mr. Tsontakis was arbitrarily detained for twenty minutes. The third line of inquiry pulls moderately toward admission, since, despite the reliability of the evidence, the crime charged does not imperil the security or the safety of the public. [ 83 ] The overall final balancing calls for the exclusion of the evidence, in order to avoid bringing the administration of justice into disrepute.

FOR THESE REASONS, THE COURT: GRANTS the application, EXCLUDES the evidence, ACQUITS Mr. Tsontakis of the crime charged. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me Marie-Josée Thériault Attorney for the Prosecution Me Audrey Cazes-Hardy Attorney for the Accused Hearing Dates: March 23 and May 30, 2022