R. v. Selvanayagampillai, 2011 ONCJ 873

Citation: R. v. Selvanayagampillai , 2011 ONCJ 873 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Kirubakaran Selvanayagampillai, Sethukavalar Saravanabavan, Lojanand Srianandan and Pratheepan Thambu Before Justice M.H. Bloomenfeld Heard on October 6, 7, 8 2009; March 18, 19, June 9, 10, 11, 14, 17, 18, 22, August 14, September 30, November 1, 2010, June 6, 2011 Reasons for Judgment released on November 8, 2011 M. Sokolski ................................................................................................................ for the Crown B.

Fox ................................................................... for the accused Kirubakaran Selvanayagampillai P. Connolly………………………………………………. for the accused Sethukavalar Saravanabavan L. Cohen ………………………………………………………….for the accused Lojanand Srianandan G. Zoppi ……………………………………………………………for the accused Pratheepan Thambu Bloomenfeld J.: INTRODUCTION [ 1 ] The accused were charged with over 300 offences arising from the police discovery of allegedly fraudulent debit, credit and gift cards in a van and a motel room.

The original cache of cards was found pursuant to a police Liquor Licence Act [1] vehicle search after the van in which the accused were driving was stopped for a Highway Traffic Act [2] offence. The cards found in the vehicle formed the basis of a search warrant request for a motel room and a private residence. The searches revealed more cards and other items associated with a broad, sophisticated, international scheme for the manufacture and use of fraudulent cards and theft of data.

Accordingly, the four individuals in the car were all charged with numerous offences ranging from fraudulent possession of credit card data to participating in the activities of a criminal organization (i.e., a data theft ring). [ 2 ] The trial evidence was combined with a Charter voir dire arising from a defence application to exclude the evidence of the cards in the car pursuant to s. 8, s. 9, s. 10 and s. 24(2).

The accused submitted that there was no basis for the original traffic stop, that the van’s occupants were improperly questioned, that the Liquor Licence Act search was conducted without reasonable grounds, that the accused were illegally and arbitrarily detained in the van and on the side of the road and that information provided by the accused subsequent to their arrest was obtained in violation of their s. 10(

b) rights. All parties agreed that if the evidence of the cards found in the van was excluded, the further items seized pursuant to the other searches were not otherwise discoverable and must necessarily be excluded as well. [ 3 ] The hearing of this matter was lengthy and strung out over several dates and many months. This was due partly to the need to accommodate the schedules of five counsel and partly to the fact that two of the accused live in England and there was an effort made to harmonize hearing dates with reasonable trial itineraries.

In May 2011 I advised counsel by letter that it would be my intention on the next return date of June 6, 2011 to exclude the items seized in the search of the vehicle. On that date, I formally excluded the evidence and indicated that written reasons for the decision would follow. Crown counsel advised that he would call no further evidence and requested that the charges be dismissed since without the cards there was no prima facie prosecution case. Accordingly acquittals were entered on all charges.

These are the reasons for my exclusion of the cards in the vehicle. [3] FACTUAL OVERVIEW [ 4 ] The primary officer responsible for stopping the van, initiating the search and directing the arrest of the four accused was P.C. Scott Aichman. He was assisted by his escort, P.C. Patrick Pelow. P.C. Aichman had been a police officer for 18 years. He was partnered with P.C. Patrick Pelow, who had only been with the Toronto Police Force for 16 weeks. This was part of P.C. Pelow’s training period and P.C. Aichman was his coach officer for the day. P.C. Aichman testified that he saw the van go through a stop sign.

Both he and P.C. Pelow also testified that they observed suspicious behaviour by the van’s occupants, a flurry of activity as they appeared to be bending down and removing clothing. After doing some checks and calling for back-up, the van was stopped and the two officers investigated. They both thought that they smelled alcohol and P.C. Aichman observed a Gatorade bottle in one of the seat pouches that he said he believed contained alcohol. On that basis, P.C.

Aichman initiated a Liquor Licence Act search of the van, ordering its occupants out and searching the vehicle thoroughly. [ 5 ] Other officers arrived on scene to stand by the accused while the vehicle was searched. P.C. Pelow looked inside the van’s “stow and go” compartment and discovered a white plastic bag containing several fraudulent cards. The accused were arrested for possessing stolen or fraudulent cards, taken to the police station, strip searched, questioned and held for several hours.

The cards combined with identification and residence information taken from the accused enabled the police to obtain and execute a search warrant on a hotel room and a private residence. Those searches revealed evidence that ultimately led to hundreds of criminal charges relating to an alleged sophisticated and far-reaching data theft ring. CHARTER BREACHES – FACTUAL AND LEGAL ANALYSIS The Initial Vehicle Stop [ 6 ] In my view, the original vehicle stop and detention were legitimately conducted as part of an investigation of the Highway Traffic Act offence.

As the investigation continued, however, the detention devolved from lawful to arbitrary and the investigation evolved into an unreasonable search and seizure. [ 7 ] On January 28, 2008 at approximately 2:31 p.m., P.C. Aichman and P.C. Pelow were on general patrol with P.C. Aichman driving when they saw a van driving out of a plaza. P.C. Aichman testified that he observed the van drive through a stop sign coming towards him and past the police car. As the van passed the police car, the driver looked down at P.C. Aichman. P.C.

Aichman made a U-turn, intending to stop the van in order to investigate it for driving through the stop sign. [ 8 ] As he followed the van, P.C. Aichman noticed the occupants in the rear seats moving around quickly. In his notes, he described their movements as “frantic.” He observed them removing clothing, specifically jackets and hats, which he thought was odd, particularly since it was cool out. In P.C. Aichman’s experience he did not often see people taking off clothes in a vehicle unless they were being investigated for criminal offences. As a result, his level of concern started to rise. P.C.

Aichman also noted the person in the rear right passenger seat leaning forward to be close to the front passenger and the driver. Then the occupants of the back seat bent toward the centre floor area and P.C. Aichman’s concern escalated more. He associated this conduct with an effort to hide things or conceal items. [ 9 ] As a result, P.C. Aichman notified his dispatcher and described what he had seen, i.e., the driving through the stop sign, the removal of clothes and the moving around, and asked for additional police cars to come and stand by during the investigation.

He did not stop the van immediately because of safety concerns and his heightened interest due to seeing the passengers’ suspicious movements. He wanted to ensure that he obtained all the information about the car itself before stopping it. As P.C. Aichman followed the vehicle, P.C. Pelow checked the licence plate on the scout car computer and learned that it was a rented Dodge minivan. There was nothing in the database to suggest criminal activity. When the vehicle made a right hand turn, P.C. Aichman activated his safety lights and pulled it over for the Highway Traffic Act offence. [ 10 ] P.C.

Pelow testified that P.C. Aichman pointed out that there was a van leaving the mall that had run through the stop sign at the intersection. P.C. Pelow did not see this himself because he was looking the other way. P.C. Aichman told P.C. Pelow to keep an eye on the van and made a U-turn to follow it. As the van approached and passed them, P.C. Pelow noticed the driver following the police car with his eyes. P.C. Pelow and the front passenger in the van made eye contact and P.C. Pelow observed that his mouth was slightly open and his eyes were a little wider than normal. P.C.

Pelow interpreted his expression as a look of shock or surprise which he attributed to the fact that the van had just run the stop sign. [ 11 ] P.C. Pelow also testified that he noticed a lot of movement going on inside the van. The windows of the van were slightly tinted so P.C. Pelow saw more silhouette than detail. It appeared to him that jackets were being removed, things were being passed to the back and the rear right passenger disappeared from view as if he had bent forward or down. He suspected that the occupants may be trying to hide something but he did not know what. During the commotion, he and P.C.

Aichman decided to investigate for the Highway Traffic Act offence. They activated their emergency lights and siren in order to pull the van over. The van kept going a little but then turned on to another street where it stopped. As it stopped, P.C. Aichman called for other officers to assist for officer safety purposes. [ 12 ] I accept P.C. Aichman’s evidence that he initially stopped the vehicle to investigate the Highway Traffic Act offence of driving through a stop sign. That evidence is uncontroverted and also not brought into question or clouded by suspicion as a result of other evidence.

In addition, it is consistent with the observations of P.C. Pelow that the passenger appeared surprised by seeing the police. I also accept the evidence of P.C. Aichman and P.C. Pelow that the occupants of the van were taking off their jackets in a way that may have appeared frenetic and understandably aroused the officers’ concern or suspicion.

In all the circumstances it was logical and reasonable for the officers to wait until they had some further information and call for back up before stopping the van to investigate the Highway Traffic Act offence. [ 13 ] In analyzing what happened next, I am guided by the principle confirmed by the Supreme Court of Canada in R. v. Nolet , [4] that the mere fact that P.C.

Aichman may have had or developed additional, potentially illegitimate reasons for investigating the accused or searching the car would not necessarily invalidate the lawfulness or Charter viability of the original stop and a proper search pursuant to s. 32 of the Liquor Licence Act .

The corollary is equally apposite, i.e., “[p]olice power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused… A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.” [5] [ 14 ] As submitted by Crown counsel, the Charter analysis in this case must take into account the reality that roadside stops

can develop in unpredictable ways and that such encounters are dynamic, fluid situations. Accordingly, I am required to scrutinize the police actions step by step, beginning with the initial, lawful stop to determine whether the police stayed within their lawful authority. In doing so, I have to consider the information that the police lawfully obtained at each stage of the inquiry that could enhance or detract from the reasonableness and lawfulness of their next steps. [6] Grounds for the Liquor Licence Act Search [ 15 ] P.C. Aichman and P.C. Pelow approached the van. P.C.

Aichman testified that he walked up to the driver’s side and decided to open up the sliding passenger side door. Although he would not normally do that for a Highway Traffic Act stop, he was suspicious at the actions of the two people in the back seat. P.C. Aichman spoke generally into the vehicle and asked if everything was ok. The passenger behind the driver’s seat said “everything’s ok.” [ 16 ] P.C. Pelow testified that he walked up to the passenger side and P.C. Aichman approached the driver’s side. P.C. Pelow noted that the side windows fanned open, which seemed odd to him since it was a very cold day.

As he walked by he smelled to see if there might be an odour of marijuana but he did not notice anything. The front passenger rolled his window down and P.C. Pelow asked “How you doing? Is everything okay?” He and the front passenger chatted and P.C. Pelow observed that the driver appeared nervous. His leg was shaking and he was cleaning his nails. Then the sliding middle doors opened up so P.C. Pelow turned his attention to the passenger behind the driver’s seat. P.C. Pelow testified that he was surprised when the middle door slid open.

He would not typically have asked a passenger for identification in a Highway Traffic Act investigation but the middle passenger startled him and also had his identification in his hand and P.C. Pelow just wanted to know who he was speaking with so he asked if he had any identification on him. [ 17 ] I find that P.C. Pelow’s request for identification from the passenger represented a minor s. 8 Charter breach.

Once the van was pulled over, the accused were lawfully detained pursuant to a legitimate driving infraction investigation. [7] The confusion about who was driving and who had rented the car, combined with the smell of alcohol, justified some further inquiry, but P.C. Pelow had no legitimate investigatory reason for seeking the passenger’s name and identification. The passenger was not the target of the Highway Traffic Act stop and there was no basis to investigate his identity. On the other hand, there is no evidence from which I would infer that P.C. Pelow had an ulterior investigative motive.

I accept his testimony that he was taken by surprise by the door suddenly sliding open and seeing the passenger with his identification in his hand. I accept that P.C. Pelow just wanted to know whom he was speaking with and that his request reflected his inexperience rather than a more complex investigative purpose. [8] Accordingly, while this request may have technically represented a s. 8 breach, in view of the other findings I have made concerning the Liquor Licence Act search, I find that it added little or nothing to the Charter ramifications of this investigation. [ 18 ] P.C.

Aichman’s evidence was that his concern level de-escalated when he found the occupants of the van to be neither combative nor agitated. Noticing no immediate danger, P.C. Aichman moved up to the driver’s side door. The driver’s window was down. P.C. Aichman investigated the stop sign infraction by asking to see the driver’s licence, ownership and insurance. The driver was Mr. Thambu, but he indicated that it was the front right passenger, not himself, who had rented the car. P.C. Aichman asked why he was driving the car when he had not rented it and also asked the front right passenger why he was not driving.

The passenger did not respond and Mr. Thambu explained that the renter was from England and so Mr. Thambu drove because he knew the Toronto streets. [ 19 ] At this point, P.C. Aichman began to smell alcohol. He asked if there was alcohol in the vehicle and the unanimous reply was “no.” P.C. Aichman testified that, while he did not smell alcohol coming from the driver’s mouth when he spoke, he did think he smelled booze. He himself drinks alcohol so he knew what it smelled like. As well, he had investigated countless vehicle occupants that had been drinking. It seemed to P.C.

Aichman that someone in the car had been drinking and the smell of alcohol on a person’s breath had been trapped inside the van and began to come out when the window or door was opened. P.C. Aichman leaned his face a little closer to the opening of the sliding door and took a big whiff. He looked around and saw a plastic Gatorade bottle in the pouch on the back of the driver’s seat. The bottle had orange liquid in it. The colour was not bright orange; it seemed a little weak and diluted. To P.C. Aichman, it appeared that the Gatorade was mixed with something. [ 20 ] P.C.

Pelow testified that, when the middle door opened, he noticed a sweet, alcohol kind of smell coming from the van. In his notes P.C. Pelow described it as a “faint odour” of alcohol. He took a quick look around but did not see any open beer or liquor. Relying on his prior bartending experience, P.C. Pelow thought that the smell was like a mixed cocktail of alcohol in juice. The smell piqued his interest. He testified that he caught P.C. Aichman’s eye and said “Do you smell that?” Then the other officers arrived and P.C.

Pelow began speaking to them to give them an update on what had happened. [ 21 ] I am not satisfied that the applicants have proven that P.C. Aichman breached any Charter rights until this juncture. His inquiries of the driver were reasonably connected to the stop sign investigation. Once he smelled alcohol in the van it was not inappropriate for him to frame a question about it in a general way, especially since he did not directly smell it coming from the driver’s mouth. It was also reasonable for him to lean in to smell the air in the car.

These actions did not constitute an illegal seizure contrary to s. 8 of the Charter . In reaching this conclusion I implicitly accept P.C. Aichman’s testimony on this aspect of the events as credible. That credibility finding rests in part on the confirmation of P.C. Aichman’s testimony by compatible observations and evidence from P.C. Pelow. [ 22 ] From this point onward, however, I find that P.C. Aichman’s evidence is not credible or reliable and that the search of the van violated the s. 8 rights of the accused [9] and their detention at the side of the road violated their s. 9 rights.

I will explain my reasons for reaching this conclusion after summarizing the sequence of events as narrated by P.C. Aichman and the officers who subsequently joined him in the search and the investigation. [ 23 ] P.C. Aichman testified that when he first saw the bottle it had a cap on it and contained more liquid than at the time of trial. It was closed but not sealed. He also saw a wet mark on the floorboards of the van between the right and left middle passenger’s seats. The spill was about ten inches in diameter and neither round nor neat but rather a little messy like an unintentional spill.

Looking at the partially filled bottle right where people had easy access to it and the fresh spill on the floor, P.C. Aichman wondered if the

occupants had been consuming the contents of the bottle, spilled it and then leaned over when he followed them. He asked “what’s in the bottle?” and the rear left passenger behind the driver’s seat (who turned out to be Mr. Saravanabavan) stated that it was vodka but that it was from the other day. [ 24 ] Due to the passenger’s statement about vodka and the smell of alcohol, P.C. Aichman concluded that there was probably alcohol in the bottle.

He therefore decided to search the van to see if there was any other alcohol because drinking or having open alcohol in a vehicle is an offence under the Liquor Licence Act . The Liquor Licence Act gave P.C. Aichman the authority to seize the Gatorade bottle and search the vehicle for further evidence and liquor. The decision to search was discretionary. If one of the occupants had advised him that the alcohol was his then P.C. Aichman may have charged just that one individual. [ 25 ] P.C.

Aichman testified in cross-examination that the smell from the Gatorade bottle when he opened the cap was part of what gave him grounds to search the vehicle further. He also relied on the statement from the passenger that there had been booze in the bottle. There was no reason to doubt that assertion or to think that the person was lying about the bottle having had alcohol in it. If P.C. Aichman had opened the Gatorade bottle and not smelled alcohol then he would have asked again whether there was liquor in there and governed himself as to how to proceed depending on the answer.

In this case, once he had confirmed that there was alcohol in the Gatorade bottle, P.C. Aichman initiated a global search of the vehicle to find out if there was more alcohol. [ 26 ] P.C. Aichman seized the Gatorade bottle by reaching into the van and picking it out of the pouch. He opened it and smelled it. To him it smelled like a mix of orange juice and vodka, consistent with what the passenger had said. P.C. Aichman told P.C. Pelow that they would search the vehicle for more alcohol so they began searching. [ 27 ] P.C.

Pelow testified that he updated the additional officers who arrived on the scene and then was advised by P.C. Aichman that all of the males were going to leave the vehicle because, based on information he had gathered, he had suspicions that there was a violation of the Liquor Licence Act . P.C. Pelow said that P.C. Aichman asked him to assist in searching the van for any Liquor Licence Act violations. The only ground that P.C. Pelow personally had for the search was the smell of alcohol. Beyond that, he relied on P.C. Aichman and his knowledge. [ 28 ] The accused were ordered out of the van. As P.C.

Aichman described it, that was when another scout car arrived. The accused stood on the boulevard a few feet to the right of the van and the other officers came and stood around them. P.C. Pelow testified that the other officers were on scene when the accused left the van. [ 29 ] The first two other officers to arrive on scene were P.C. Peter Kruczek and P.C. Lupson. P.C. Kruczek testified that when he arrived he observed the accused standing on the boulevard with P.C. Aichman close by. He had no notes or recollection of what P.C. Pelow was doing or if he was there. P.C.

Kruczek stood by the accused for officer safety purposes while P.C. Aichman searched the van. His understanding was that the accused had to stay there while P.C. Aichman completed his search of the vehicle and the investigation. P.C. Kruczek was then told that the males were “arrestable” for fraudulent credit cards but he never saw what had been discovered in the van. [ 30 ] It was clear from P.C. Kruczek’s evidence that the accused were detained when they were standing by the side of the road. He testified that if they had tried to leave then he would have advised them why they could not leave.

He did not, however, have any specific information that he could recall from P.C. Aichman or P.C. Pelow as to why they were being held at the side of the road. P.C. Kruczek believed that P.C. Aichman had grounds to search the vehicle simply because he saw P.C. Aichman searching the vehicle. P.C. Kruczek testified that, even if P.C. Aichman had informed him of the reason for the search, he would not have put that in his notebook because that was not relevant to him. He did not recall whether anybody ever told him the reason for the search. [ 31 ] P.C. Lupson arrived to see P.C.

Aichman speaking to the accused near the sidewalk. He stood by the accused on the boulevard but did not hear the specifics of the conversation. He watched while P.C. Aichman and P.C. Pelow began a search of the van. P.C. Lupson was aware that the search related to some sort of Liquor Licence Act offence from overhearing P.C. Aichman talking about it but did not know the details. There was nothing in P.C. Lupson’s notes about a Liquor Licence Act investigation or search. His testimony was based only on his independent recollection. P.C. Lupson had no conversation with the accused.

He simply watched them while the van was searched. [ 32 ] At one point, P.C. Lupson noticed that nobody was checking the stow-and-go compartment of the van so he went over and saw both sliding doors open. He approached the car and lifted the floor mat, showing P.C. Pelow the stow-and-go and how to open the latch. P.C. Lupson was on the driver’s side and P.C. Pelow was on the passenger side. P.C. Lupson saw P.C. Pelow reach into the stow-and-go and pull out a plastic bag and went back to the accused. Shortly thereafter P.C.

Aichman advised that the accused were to be arrested for possession of fraudulent credit cards. Like P.C. Kruczek, P.C. Lupson insisted in his testimony that he was not there to detain the accused but rather to ensure officer safety during the vehicle search. [ 33 ] P.C. Aichman had no recollection or notes of telling the other officers about what he was doing but testified that it was possible that he could have advised them that there may be booze in the car. As he searched the back seat and trunk area, P.C. Aichman found the discarded jackets and hats of the two rear occupants but no alcohol. P.C.

Pelow also found no alcohol, but testified (and recorded in his notes) that he continued to smell the alcohol odour he had first detected throughout the van, although it was not overpowering. The odour made P.C. Pelow suspicious that there might be some alcohol in the van. When he checked the middle seat there was a stronger alcohol smell than in the front or the back. Finding the Cards [ 34 ] P.C. Pelow testified that he entered the van through the driver’s seat side and searched underneath the seat and the compartment under that seat as well as the glove compartment. P.C.

Pelow found nothing there, nor in the drawer under the passenger seat. He then moved to the back of the vehicle to check on what had been thrown back there during the commotion he had observed when they first started to follow the van. In the back storage area, P.C. Pelow found a blue jacket. He thought it was odd that the coat

had been thrown in the back when it was so cold outside. P.C. Lupson directed P.C. Pelow to lift up the mat in the middle of the van to check the “stow-and-go” seating underneath. P.C. Pelow lifted the mat and saw the latch for the stow-and-go compartment. He checked inside the compartment and saw what appeared to be a white plastic garbage bag. The bag was not crumpled but it did not look as though it had been placed there with care. It was just laying there, kind of messed up, and about the size of a football.

It was big enough that it could potentially have held a “mickey” – not a large bottle of alcohol but possibly a “smaller” one. [ 35 ] Because of the bag’s opaque white colour and location inside the stow-and-go seating without much lighting, P.C. Pelow could not see what was inside it. As well, the opening of the bag was closed and the bag contained air so that P.C. Pelow would not have been able to discern its contents without touching it. P.C. Pelow picked up the bag with his thumb and index finger in order to move it out of the compartment.

He must have been holding it near the bottom because as he picked it up and moved it over two packages of gift cards tied up in elastics fell out of it and landed in the aisle of the minivan. On the top card of one of the packages there was a piece of tape with some handwritten numbers. P.C. Pelow thought that seemed rather odd so he called P.C. Aichman over and informed him of what he had found. P.C. Aichman seized the cards and advised that all of the males would be arrested for possession of property obtained by crime. [ 36 ] The applicants challenged the credibility of P.C.

Pelow’s testimony that he thought the bag might contain alcohol and that the contents of the bag serendipitously fell out rather as opposed to being purposely removed. If I were to reject P.C. Pelow’s evidence on this point it would further undermine the legitimacy of the seizure under the Liquor Licence Act . Despite the many frailties in his evidence, I am not prepared to reject P.C. Pelow’s testimony on this point as disingenuous. His inexperience may have coloured his judgment and he was not as precise in his analysis and observations as the circumstances would ordinarily mandate.

The warrantless search powers under the Liquor Licence Act are extensive and should only be executed with careful adherence to their limits and rationale. If P.C. Pelow were a more experienced or canny officer, I might have viewed this aspect of his evidence with more scepticism. Having closely observed him as he gave his evidence and evaluated his testimony as a whole, however, I have concluded that P.C. Pelow may have lacked the requisite care and caution but that he did reasonably believe that there could be alcohol in that bag. [10] [ 37 ] P.C.

Aichman testified that, while he was searching the back of the van, P.C. Pelow called out that he had found something. P.C. Pelow had been searching the centre area of the vehicle so P.C. Aichman went around and P.C. Pelow showed him a white plastic bag. He held the bag up and P.C. Aichman could see a whole bunch of plastic cards inside. To P.C. Aichman, the bag appeared to be a white plastic grocery bag with nothing on it. Looking more closely, P.C. Aichman could see stacks of cards bound together by elastics. Picking up the cards and looking at them, P.C.

Aichman could tell that they had sticky tabs like little Post It notes stuck to them. The tabs had numbers on them. Because of past dealings with fraudulent credit cards and having seized cards similar to these, P.C. Aichman believed that these were credit cards with data strips and information encrypted on the data. [ 38 ] P.C. Pelow had told P.C. Aichman that he had found the cards in the stow-and-go compartment in the centre of the van. P.C. Aichman suspected that when the occupants of the van had leaned over that way when he initially followed them they were hiding the cards.

Believing that all of the van’s occupants had been in possession of the cards, P.C. Aichman turned to other police officers present and said words to the effect of “all these people are to be arrested for possession of stolen property and possession of stolen credit cards.” Then P.C. Aichman personally arrested the driver, Mr. Thambu, for those offences. P.C. Aichman seized various items from Mr. Thambu incident to arrest including a cell phone and a wallet with Canadian cash in it. He cautioned Mr. Thambu and advised him of his right to counsel. Mr. Thambu said he did not want to call a lawyer.

Throughout the process, Mr. Thambu was polite and compliant. The other accused were also arrested without difficulty by the other officers. Continued Search of the Van [ 39 ] P.C. Aichman returned to the van to continue the search. What had began as a Highway Traffic Act investigation and evolved into a Liquor Licence Act search had now become a Criminal Code investigation and search. P.C. Aichman seized a car rental agreement from the glove compartment but did not find anything else. The coats and jackets in the car were seized and identified as belonging to two of the accused. [ 40 ] P.C.

Pelow testified that once he told P.C. Aichman that he had found the cards, P.C. Aichman advised the other officers that the males were “arrestable,” arrested Mr. Thambu and placed him in the scout car and then told P.C. Pelow to search the van to see if there was anything else involved in the criminal activity. At this stage P.C. Pelow had been surprised to find the cards and had not ruled out finding more liquor. After the Vehicle Search and the Arrests [ 41 ] P.C. Aichman stayed at the scene while the van was towed away and then he went to 42 Divison and paraded Mr. Thambu in front of Staff Sergeant Dollamore.

P.C. Aichman then participated in a debrief with Detective Whittamore, Detective Dunstan, Sergeant Bishop, and Constables Perry, Kruczek and Lupson. At the debrief, all of the officers, including P.C. Aichman, explained their involvement in what had happened. [ 42 ] Detective Whittamore confirmed that P.C. Aichman did most of the talking at the debriefing and advised that he had noticed wetness on the carpeted floor and a plastic Gatorade bottle in the pouch. P.C. Aichman also said that he had had conversation with Mr.

Saravanabavan who advised that they had been drinking in the car but quite some time ago and that there had been vodka in the bottle. [ 43 ] Detective Whittamore instructed P.C. Aichman to be the exhibits officer. His job was therefore to have all of the property seized turned over to him in order to maintain continuity.

Why the Search of the Van Violated s. 8 of the Charter Legal Framework [ 44 ] As is well established, a warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter unless the Crown establishes on a balance of probabilities that the search was authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable. [11] A preliminary question that was not addressed in any extensive way in argument was whether the accused had a reasonable expectation of privacy in the car that triggered their s. 8 rights.

The van was rented by one of the passengers and driven by Mr. Thambu. It must be acknowledged that any expectation of privacy that the occupants had was not equivalent to a private home or personal possessions. The van was also being operated on a public street. Nevertheless, I agree with the implicit premise of the application, not contested by the Crown, that there was a sufficient expectation of privacy to require the Crown to demonstrate the reasonableness of the search. The passenger who rented the van, Mr. Selvanayagampillai, was a visitor to Canada and unacquainted with the streets and therefore Mr.

Thambu was driving. All of the evidence suggested that the van was being used for personal transportation. Even so, the reduced expectation of privacy is relevant and I have taken it into account in assessing the seriousness of the breach under s. 24(2) of the Charter . [ 45 ] If P.C. Aichman did not have valid grounds to search the vehicle pursuant to s. 32(5) of the Liquor Licence Act then the search was unreasonable.

As agreed by all counsel, all evidence flowing from that search, including the discovery of the cards in the van and the subsequent discovery of the additional cards and evidence in the motel room would therefore have been obtained in violation of s. 8 of the Charter . The question would then become whether that evidence should be excluded pursuant to s. 24(2). [ 46 ] Section 32(5) of the Liquor Licence Act permits a police officer to enter and search a vehicle and any person in that vehicle without a warrant where he or she has “reasonable grounds” to believe that liquor is being kept unlawfully in the vehicle.

Section 32(1) provides that nobody shall drive or have the care or control of a motor vehicle that contains any liquor except under the authority of a licence or permit. There are also exceptions where the liquor in the vehicle is in an unopened container with an unopened seal or packed in baggage that is fastened closed or otherwise not readily available to any person in the vehicle. “Reasonable grounds” in this context has both a subjective and an objective component.

The legal analysis must therefore examine whether the officer had a subjective belief that there was liquor kept unlawfully in the vehicle and whether that belief would be objectively reasonable viewed from the perspective of a reasonable person in all the circumstances. Findings Regarding P.C. Aichman’s Testimony About His Grounds for the Liquor Licence Act Search [ 47 ] In this case, I found that the Crown has not shown that P.C. Aichman subjectively believed that there was open alcohol in the van. Even if he did possess such a subjective belief, it was not objectively reasonable.

The Crown argued that all that was needed to justify the search was the statement that there had been vodka in the Gatorade bottle and/or P.C. Aichman’s picking up the bottle, smelling it and discerning an odour of alcohol. I am not persuaded on a balance of probabilities that either of those events occurred. Absent those two factors, the only evidence relating to alcohol was a smell noted by P.C. Pelow and P.C. Aichman and a denial of alcohol in the van by the occupants. The wet spot on the floor was never alleged to have given off any alcohol smell.

If police were entitled to search vehicles for open alcohol every time they smelled it then almost every drinking and driving investigation could include a warrantless vehicle search. Suspicious Circumstances Surrounding the Gatorade Bottle [ 48 ] The only direct evidence that the passenger stated that there had been vodka in the Gatorade bottle or that the bottle itself smelled of alcohol came from P.C. Aichman. Unfortunately, I found his testimony on this topic to be completely unreliable.

His evidence concerning the alleged discovery of the bottle and what happened to its contents was thoroughly infused with suspicious circumstances and inconsistencies. [ 49 ] The Gatorade bottle was ultimately seized and entered into evidence. P.C. Aichman was the exhibits officer and he was the one who submitted the bag into the property system on the evening of the investigation. At the time of trial, the bottle only had a sticky orange residue in it, no liquid. When the trial commenced it was assumed that the contents had simply evaporated over time. During his testimony, however, P.C.

Aichman made the surprising revelation that he had put the bottle on the ground while he continued the search and investigation of the van and then realized when he retrieved it that it was empty. When he saw that the bottle was empty he picked it up and said “oh crap it’s gone and tipped over” but he did not place it in an evidence bag at that point. He thought the cap was on the bottle but not tightly. [ 50 ] P.C. Aichman agreed in cross-examination that the Gatorade bottle was the essential exhibit with respect to the Liquor Licence Act investigation.

He also agreed that he could have easily told Detectives Dunstan and Whittamore at the debriefing about the spilled contents of the bottle but he did not do so. He did, however, assert that he definitely told the detectives that somebody had knocked over the bottle. When he was asked what he would do in a hypothetical drug investigation if he had knocked over a bottle of hash oil found at the scene, P.C.

Aichman agreed that he would tell the officers in charge that the bottle had been knocked over. [ 51 ] The fact that the Gatorade bottle’s contents were spilled at the scene was never disclosed to anybody until the middle of P.C. Aichman’s cross-examination at trial. He collected the bottle from the scene right after everybody had been arrested and put into cars. He noticed that it had been spilled before he finished searching the van. He made no effort to try and salvage any of the bottle’s contents because he did not think he could have saved anything.

He believed that the bottle had a little bit of liquid in it when he returned to the car after the accused were arrested but thought it had evaporated since then.

[ 52 ] P.C. Aichman testified that it would not have been his responsibility to request that the Gatorade bottle be tested for alcohol. That would have been up to either Detective Dunstan or Detective Whittamore to do it themselves or delegate it to a detective constable in their office. He did advise them that part of his grounds for searching the car was the smell of alcohol in the bottle but he did not recall if he suggested that it be tested for alcohol. When the bottle was finally tested it was almost a year later.

The position of the officer in charge, Detective Whittamore, was that since he was investigating a major fraud, he was not overly concerned about the contents of the bottle. By the time that the Centre for Forensic Sciences received it, the residue in the bottle was not testable. [ 53 ] Detective Whittamore gave evidence that he was present at some of the judicial pre-trials for this matter and recalled defence counsel asking whether the contents of the Gatorade bottle had been or would be analyzed and an agreement that it would be sent for analysis.

At the time, Detective Whittamore was confident that there was liquid in the bottle and that the analysis could be done. He agreed that he had no reason to think that the liquid had disappeared other than through evaporation. [ 54 ] Although it was not in his notes, Detective Whittamore testified that he believed there was some mention that the bottle had tipped over but had assumed that some, though not all, of the liquid had run out. He thought he had received that information from P.C. Aichman or one of the other officers.

Further on in his cross-examination, Detective Whittamore indicated that he remembered P.C. Aichman saying something at the station about the contents or the bottle being knocked over and reassuring him that it was secure. While I do not doubt Detective Whittamore’s truthfulness, I am not prepared to rely on this detail in his independent recollection as confirmation of P.C. Aichman’s claim that he reported the “mishap” with the bottle at the de-briefing. These incidents occurred a substantial period of time before the evidence was given. Detective Whittamore’s recollection of this passing reference by P.C.

Aichman was vague and not documented in his notes. He also testified that “it is fairly busy at that point” and he “didn’t really pay much attention to it, unfortunately.” If P.C. Aichman did say anything, according to Detective Whittamore he did so while the detective was typing, or in passing. If P.C. Aichman had told Detective Whittamore anything significant about the bottle spilling on the date of the investigation and arrest, it would or should have been more comprehensively recollected and documented. [ 55 ] Detective Dunstan testified that P.C.

Aichman provided information at the briefing about the events that led to the arrest of the four accused. His account was very similar to the evidence that P.C. Aichman gave at trial and the notations that were canvassed in P.C. Aichman’s cross-examination. He had no notes about the contents of the bottle being spilled. Any information that he had about the bottle being empty would have come from another officer, D.C. Kissi. During the debriefing, P.C.

Aichman told Detective Dunstan that the passengers had at first said there was no alcohol in the vehicle and then he saw the wetness in the rear centre and the plastic Gatorade bottle in the rear pouch of the front passenger seat. He asked if there was alcohol in the bottle and the passenger said there had been vodka in it but it was from a while ago. That is all that Detective Dunstan knew about the bottle. He had no notation of the bottle being placed on the ground and the contents tipping out. [ 56 ] Detective Dunstan first learned that there was no liquid in the bottle when he asked D.C.

Kissi to send it for testing. D.C. Kissi advised him that it was empty and they could not figure out why except to speculate that it had dried up. They did not talk to P.C. Aichman about it so he just assumed that the seal had not been tight so it had evaporated. [ 57 ] Detective Dunstan’s explanation for why it took so long to have the bottle tested was that he did not believe they needed to test the bottle, given what P.C. Aichman had told him about finding the alcohol and asking about it and receiving the response with respect to vodka.

He did not consider and reject the notion of sending the bottle for testing. It simply was not a factor. The decision to test the bottle ultimately resulted from a request by the Crown either after the judicial pre-trials or at the beginning of the trial. Additional Difficulties With P.C. Aichman’s Testimony [ 58 ] P.C. Aichman’s testimony also contained the following additional inconsistencies and improbabilities: • P.C. Aichman admitted that his notes were inconsistent with respect to how the driver’s side sliding door was opened. In his notes he said he knocked on the window and the sliding door opened.

In testimony in chief he said that he himself opened that door. He attributed the inconsistency to the passage of time and his independent recollection not conforming with his notes. • In cross-examination by Mr. Connolly, P.C. Aichman agreed that, while the initial basis for the stop was important and he was not permitted to stop the vehicle at random, he said nothing to the dispatcher about the fact that the vehicle had gone through a stop sign. He also conceded that he may have been mistaken about whether he told the dispatcher about the initial reason for the stop.

He thought that he did but it turned out that he was incorrect. [12] • P.C. Aichman conceded an inconsistency between his notes and testimony regarding the location of the Gatorade bottle. In his notes he wrote that he could see a juice bottle in the pouch behind the right front passenger seat but in evidence he said it was on the driver’s side. P.C. Aichman acknowledged that the location of the bottle was significant and apologized for the inconsistency and asserted that he was not trying to mislead the court.

He confirmed that he saw the bottle on the driver’s side and reached in to get it after the males were already standing outside the car. He had first noticed it when they were still in the car. • P.C. Aichman did not disclose the fact that the bottle’s contents had spilled out to anyone, nor did he include it in his notes. He conceded at trial that failing to document this in his notes was an error. • P.C. Aichman agreed with Mr. Connolly that there was nothing in his notes about telling P.C. Pelow that the passenger had said there had been vodka in the bottle but from another day. P.C.

Aichman testified that he “knew” that he told P.C. Pelow that they would search for booze in the car but does not think he said anything about vodka from another day. Although he and P.C. Pelow made eye contact they did not have a conversation before P.C. Aichman said he was going to search the van. • In cross-examination by Mr. Connolly, P.C. Aichman agreed that his grounds for believing that there was liquor in the car were significant and that he was concerned about the fact that the bottle had tipped over and the liquid had disappeared.

He further agreed that one of the most important things that should have gone into his notes was the fact that the liquor had spilled out but that he

had not included that detail. • P.C. Aichman said that in writing his notes he totally missed everything about the bottle and he regretted it. • There was no forensic investigation at the scene. Neither P.C. Aichman nor any other officer to his knowledge took photographs of the inside of the van including the wet spot. The wet spot was also not confirmed by any other officers. Why P.C. Pelow’s Evidence Does Not Sufficiently Support P.C. Aichman’s Testimony [ 59 ] The extent to which P.C. Pelow could confirm or support P.C.

Aichman’s testimony must be measured according to how reliable his own recollection of the investigation was. While I found P.C. Pelow to be an honest witness, at the time he was a very junior officer and simply did not attend to or remember or note a number of details. He was relying on P.C. Aichman’s experience as the senior officer. For example: • P.C. Pelow was looking elsewhere when the van was alleged to have run through the stop sign and then, since his attention was focused on the van, could not say what other traffic may have been on the road.

He had no personal knowledge of whether the van actually did run the stop sign. He was not sure of what P.C. Aichman actually said when he drew his attention to the fact that the van had gone through the stop sign. • P.C. Pelow did not hear any exchange between P.C. Aichman and the accused about whether there was any alcohol in the van because that is when the other officers arrived. He heard the question being asked but not the response. • P.C. Pelow saw no evidence of beer or alcohol bottles when he quickly looked in the car after smelling alcohol. P.C.

Pelow was aware that there was a Gatorade bottle that had been removed from the van but he himself did not see it. As well, P.C. Pelow’s notes contained no mention of P.C. Aichman saying he had seen a Gatorade bottle or any alcohol in the van, even though P.C. Pelow agreed that this was important information in providing a basis for the Liquor Licence Act search. • P.C.

Pelow could not say what the accused were told about the reason for being ordered out of the car. • He was not certain exactly when the other officers arrived on scene. • He did not know how many officers were there when the accused were waiting on the sidewalk and he was assisting with the Liquor Licence Act search. • P.C. Pelow did not recall if anybody but the passenger in the middle seat had handed him his identification or if he passed that passenger’s identification to somebody else.

He could not recall what he did with the middle passenger’s identification once it was handed to him. • He could not remember whether it was himself or the P.C. Aichman who asked the other officers to get identification from the accused. • While he testified that there was almost continuous if intermittent conversation between himself and P.C. Aichman during the investigation, very little of that was recorded in his notes. He agreed that these conversations were an important feature of his notes but could give no reason why they were not recorded. • There was an apparent inconsistency between P.C.

Pelow’s notes and testimony on the crucial issue of how and why he emptied the contents of the white plastic bag. In his notes, P.C. Pelow wrote “I picked up the bag and placed it on the floor. I grabbed the bag by the bottom and lifted it to get whatever in the bag out on the floor.” His testimony described one “fluid” motion of picking up the bag and having its contents spill out.

He attributed the potential misinterpretation of his notes as suggesting two separate actions to an “error of punctuation.” He testified in cross-examination that when he wrote placed “it” on the floor he was referring to the contents of the bag not the bag itself. Notably, the contents of the bag was two packages of cards, plural. Factual Findings and Conclusion Regarding the

Section 8 Violation [ 60 ] I reject P.C. Aichman’s evidence that the Gatorade bottle accidentally spilled. I also reject his testimony that Mr. Saravanabavan stated that the bottle had at one time contained vodka. As an experienced officer and as reflected by his testimony, P.C. Aichman was or should have been well aware that the presence or absence of alcohol in the Gatorade bottle was linchpin evidence in supporting the viability of the vehicle search. As well, it was P.C.

Aichman who was responsible for maintaining the continuity and the integrity of the Gatorade bottle as an exhibit since he was the exhibits officer and he himself submitted it into property. The fact that the bottle was somehow left unattended, tipped over and spilled with the cap still on defies belief. Even more astonishing is the lack of any mention of the loss of this critical evidence by P.C.

Aichman in any express or specific way or any documentation of it whatsoever. [ 61 ] The only objective, forensic evidence of the existence of alcohol disappeared in a purported mishap at the side of the road, yet nobody was made aware of this critical accident until P.C. Aichman revealed it during cross-examination at trial. Defence counsel repeatedly requested that the bottle be tested to determine if it did indeed contain alcohol. The testing was not done until near the time of trial, in part because the bottle was empty and there was some doubt as to whether it could be usefully analyzed.

The revelation that the lack of any liquid in the bottle was due to an accident at the roadside on the date of the investigation took everybody by surprise and led to a defence mistrial application, which was dismissed. This purported series of unfortunate accidents and oversights cannot be categorized as mere misfortune or poor luck.

[ 62 ] P.C. Aichman understood that a Liquor Licence Act search required articulable, reasonable grounds that there was, in this case, open alcohol in the car. Yet the only evidence that might credibly support such a belief, i.e., the statement that there had been vodka in the Gatorade bottle, the wet spot on the floor and the alcohol-smell of the contents of the bottle itself, was not witnessed or confirmed by anybody else. Even P.C. Pelow, who was right there with P.C. Aichman during the initial investigation, never heard the statement or saw the bottle in the car. P.C.

Pelow provided a hypothesis for why he never heard the mention of vodka, i.e., his attention was diverted by the arrival of the other officers. In my view, however, this was just one coincidence too many. I find that P.C. Aichman never heard that statement and never believed that the Gatorade bottle contained alcohol.

These claims were after-the-fact efforts to justify a vehicle search that lacked the reasonable grounds required by the Liquor Licence Act. [13] Accordingly, the search of the van violated s. 8 of the Charter and the seized bag of fraudulent credit cards was evidence obtained pursuant to that violation. Why the Detention at the Roadside Violated s. 9 and s. 10(

a) of the Charter [ 63 ] Four officers, i.e. P.C. Kruczek, P.C. Lupson, P.C. Jaswal and P.C. Akunyili, responded to P.C. Aichman’s call for assistance and stood by the four accused for “officer safety” while the van was searched. None of these officers had a clear idea of the grounds for the search or the reason why the accused needed to stay there. The officers simply acted according to their understanding that P.C. Aichman required their assistance and was searching the van. They guarded the accused until P.C. Aichman advised that the accused were “arrestable” and then participated in the arrest. [ 64 ] P.C.

Kruczek initially maintained that the four accused were not detained as they stood outside the van. They would only have been “detained” if they had tried to leave, in which case he would have advised them why they could not leave. In fact, as P.C. Kruczek acknowledged during his cross-examination, they were not free to leave at all. P.C. Kruczek also testified that the reason that he was detaining the accused was not “relevant” to him because assumed that P.C. Aichman had the requisite grounds to search the vehicle. He did not personally need to know the grounds for the vehicle search or the detention.

Similarly, P.C. Lupson testified that he was only there to ensure officer safety rather than to detain the four accused. He understood that the investigation related to a Liquor Licence Act offence but made no note of that. He did not personally convey any information to the accused, nor did P.C. Jaswal or P.C. Akunyili. P.C. Pelow agreed in cross-examination that there was nothing in his notes or his evidence indicating that he told anybody in the van why they were being stopped and detained.

He never informed the accused that they were free to leave the scene. [ 65 ] Unlike the s. 8 analysis, the onus of proof is on the applicants to demonstrate a violation of their rights under s. 9 and s. 10 of the Charter . In my view they have satisfied that onus. Their detention was unlawful and arbitrary and flowed exclusively from an unjustified, warrantless search of the van they had been occupying.

Although the initial detention of the applicants was lawfully incident to the Highway Traffic Act investigation, it became arbitrary once the Highway Traffic Act investigation ended and the detention continued in furtherance of the illegal and unreasonable search of the van under the auspices of the Liquor Licence Act . [14] The applicants were ordered to get out of the van and stand at the side of the road under the guard of several other officers while the van was searched. There is no evidence that the applicants were explicitly advised of the reason for their detention.

WHETHER THE EVIDENCE SHOULD BE EXCLUDED PURSUANT TO S. 24(2) OF THE CHARTER [ 66 ] Evidence obtained in violation of the Charter will be excluded pursuant to s. 24(2) where its admission would bring the administration of justice into disrepute. As established in R. v.

Grant , [15] the determinative question is ultimately whether the “overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence.” [16] To answer this question, the court must address three lines of inquiry: (1) the seriousness of the state’s Charter -infringing conduct; (2) the seriousness of the impact of the breach (or breaches) on the Charter -protected interests of the accused and (3) whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence.

These considerations must be balanced in order to determine whether, in all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The calibration of the right balance will always depend on the individual features of the case but ultimately the decision must serve the long-term repute of the administration of justice. [17] First Inquiry: Seriousness of the Charter -Infringing State Conduct [ 67 ] The rubric for evaluating the seriousness of the Charter -infringing state conduct was set out in R. v.

Grant , as follows: “State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute.” [18] [ 68 ] In assessing the seriousness of the state-infringing conduct in this case I have taken into account the reduced expectation of privacy that the four accused had in the van. As noted above, this was a rented van being driven on a public roadway.

Two of the occupants were merely passengers and the driver was not the individual with the rental contract. If the search had penetrated a zone where the expectation of privacy was higher, then the breach would have been towards the most extreme end of gravity. Even so, the state-infringing conduct in this case was very serious. [ 69 ] P.C. Aichman knew or ought to have known that he did not have the requisite grounds to detain the accused and search the van and either fabricated or concealed evidence in order to justify the search after the fact.

In doing so, he wilfully and / or recklessly disregarded the rights of the accused under s. 8 and s. 9 of the Charter. Further, P.C. Aichman exploited the Liquor Licence Act ’s statutory exception to the prima facie unreasonableness of warrantless searches. Deploying the broad search powers conferred by s. 32 of the Liquor Licence Act requires diligence by the officer in ensuring that he or she has the requisite reasonable grounds. Here, P.C.

Aichman not only lacked diligence, he sidestepped the reasonable grounds requirement altogether and attempted to gloss over that lackof care with the after the fact justification of a statement attributed to one of the accused and a bottle allegedly containing alcohol whosecontents suspiciously and too conveniently disappeared. This was a grave Charter breach and admitting the evidence obtained as a resultwould have a concordantly negative effect on the public confidence in the rule of law. [70] The ramifications of P.C.

Aichman’s handling or mis-handling of the Gatorade bottle and lack of reporting the purportedspilling of the liquid extended well into the trial process. Time and resources were spent on requesting that the bottle be tested andsending it for testing, all on the potentially false premise that it had originally contained some alcohol. The impact on the administrationof justice did not stop there, but affected the trial itself when P.C. Aichman finally testified in cross-examination that the bottle hadspilled.

That revelation resulted in a mis-trial application and a re-calibration of the defence cross-examination of one of the Crown’sprimary witnesses. The ripple effect of P.C. Aichman’s disregard for the accused’s Charter rights demonstrates how the actions of onestate actor can denigrate the integrity of a prosecution. It is precisely the type of state conduct from which the court must dissociate itselfif the administration of justice is not to be brought into disrepute. [71] It is also important to note that there were multiple Charter breaches in this case, all stemming from the initial groundlessvehicle search.

The four accused were arbitrarily detained contrary to s. 9 and never informed of the reasons for that detention pursuantto s. 10(a). P.C. Aichman’s peremptory and groundless decision to search the van led to several officers participating in the s. 8 breachand also in detaining the four accused without any real understanding of the reasons why they were doing so or the ability to articulate orconvey those reasons.

Second Inquiry: Impact of the Breach on the Charter-Protected Interests of the Accused [72] Grant explained this second line of inquiry as follows: This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls foran evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of aCharter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right andexamine the degree to which the violation impacted on those interests.

For example, the interests engaged in the case of a statement towhich the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities(Hebert) – all stemming from the principle against self-incrimination: R. v. White, (SCC), [1999] 2 S.C.R. 417 at para.44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administrationof justice into disrepute.

Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly,human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy,or that demeans his or her dignity, is more serious than one that does not.[19] [73] As I have already noted, the impact on the Charter-protected interests in this case was tempered by the accusedindividuals’ lessened expectation of privacy in the van.

Moreover, this was not a search of any of the accused’s persons or a search orseizure of bodily substances. Because I do not accept that anybody admitted that there had been alcohol in the Gatorade bottle, I have notconsidered whether the Charter violation included incriminating statements or information. I also have taken into account that theduration of the search and the Charter violation was relatively brief. The entire process from the first sight of the van going through thestop sign to the arrest was less than 15 minutes.

Nevertheless, during that process, the accused were ordered out of the van and requiredto stand by the roadside, in January, without jackets, without being told why.

The van was searched thoroughly even to the point wherethe stow-and-go compartment was opened up. [74] Further, while I have not analyzed the ensuing investigation, detention and further evidentiary seizures in this case due tothe concession of Crown counsel that all additional evidence was so entirely dependent on this initial seizure that it would alsonecessarily be excluded, it must also be noted that the illegal search led to: o the arrest of the four accused; o the search of a private residence and a hotel room; and o the strip search and detention of the accused for hours and the prevention of the accused from contacting counsel while the searchwarrants were being executed on the hotel and the residence.

Without these further ramifications, it may be that the second branch of the Grant inquiry would not militate in favour of the exclusion ofthe evidence. If they are taken into account, then the impact on the four accused persons’ Charter-protected interests was profound andweighs towards exclusion. Third Inquiry: Society’s Interest in the Adjudication of the Case on its Merits [75] This branch of the inquiry mandates acknowledgment that these are serious allegations.

The applicants faced 321[20]charges reflecting data theft and fraudulent use of credit, debit and gift card offences on an international scale and involving significantamounts of money and multiple victims and financial institutions. The scope and complexity of the scheme was sufficiently extensive

that the charges included participation in a criminal organization, specifically a credit card data theft ring. The effect of the seriousness of the charges on the third line of inquiry under s. 24(2) was described as follows in Grant as cutting both ways: Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet … it is the long-term repute of the justice system that is s. 24(2)’s focus.

As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” … And as Lamer J. observed in Collins , “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority.” The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [21] Accordingly, in this particular case, this aspect of the third branch of inquiry weighs equally in favour of admission and exclusion. On the one hand I have adverted to the concern for public perception where numerous and serious charges are dismissed solely because of the Charter exclusion of reliable evidence.

On the other hand, the breadth and gravity of these charges warrants a penetrating examination of the integrity of the investigation and the effect on the repute of the long-term administration of justice where the foundation of that investigation is a serious, flagrant Charter breach. [ 76 ] I must also consider the reliability of the evidence and its centrality to the prosecution.

As confirmed in Grant , the more reliable the evidence and the greater its significance to the prosecution’s case, the more likely that the truth-seeking function of the criminal trial process would be better served by its admission than by its exclusion. [22] The evidence found in the van was crucial to the prosecution. Without the fraudulent cards from the stow-and-go, the police would not have had the grounds for the search warrant for the hotel room and residence that led to the discovery of the additional items (cards, computer equipment, etc.) that delineated the full extent of the criminal activity.

Indeed, upon learning that the Charter motion would be granted and the fruits of the vehicle search excluded, the Crown called no further evidence and submitted that the charges must be dismissed. Not only was the evidence critical to the prosecution case but it was also reliable. The Crown relied on real evidence of fraudulent cards coded with stolen data along with computer and other equipment that was highly suggestive of significant and extensive criminal activity. Ultimately, therefore, society’s interest in an adjudication on the merits in this case favours admission rather than exclusion.

Striking the Balance [ 77 ] Taking all of the factors involved in the above three considerations into account, I am persuaded that the overall repute of the justice system, viewed in the long term, would be adversely affected by the admission of the evidence. Although the reliability of the evidence and the relatively moderate impact of the violations on the accused’s Charter- protected interests favour admission, [23] the seriousness of the breach mandates exclusion.

Members of the public must have confidence that when they are stopped by police for driving offences their Charter rights will be respected. [24] Moreover, when the police invoke the broad, warrantless search powers granted by the Liquor Licence Act , the narrow parameters upon which such searches may be conducted must be rigorously observed. Persons are entitled to expect that police will have reasonable grounds before they are ordered to stand by the roadside while their vehicles and the contents of their vehicles are searched.

Even more importantly, the public is entitled to confidence that, where no such grounds exist, or where their basis is precarious, they will not be fabricated, contrived or manipulated as an after-the-fact justification for police conduct. To admit the evidence in this case would sanction an unreasonable, groundless, thorough search of a vehicle. It would further sanction concealment of the lack of grounds or carelessness with purported evidence of those grounds over a lengthy period of time. To do so would, in my view, bring the administration of justice into disrepute.

For these reasons, the evidence of the fraudulent cards discovered in the van along with all of the evidence obtained as a result of that discovery was excluded. Released: November 8, 2011 Signed: “Justice M.H. Bloomenfeld” [12] P.C. Pelow was unable to recall what P.C. Aichman said to the dispatcher with respect to why they were following the van or pulling it over.