2018 QCCQ 11867, 2018 QCCQ 11867

Cookish c. Cree Nation of Chisasibi 2018 QCCQ 11867 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF CHISASIBI Criminal and Penal Division No.: 640-72-007761-143; 640-72-007759-147; 640-72-007758-149 DATE: November 29, 2018 ______________________________________________________________________ BY THE HONOURABLE MARIE-CLAUDE BÉLANGER, J.C.Q. ______________________________________________________________________ SHANNON COOKISH, NATHAN LOUTTIT AND SHELDON LOUTTIT Accused - Applicants v.

CREE NATION OF CHISASIBI Prosecutor - Respondent ______________________________________________________________________ JUDGMENT ON AN APPLICATION TO EXCLUDE EVIDENCE ( Sections 7 , 8 , 9 , 10 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] The applicants seek to exclude all evidence collected by the Chisasibi Department of the Eeyou Eenou Police Force following the interception and search of the vehicle driven by Mrs.

Shannon Cookish pursuant to a police checkpoint erected on the Chisasibi access road. [ 2 ] Alcohol was seized from the interior of the cabin and the truck bed of the Ford F-150 owned and driven by the applicant, Shannon Cookish. The three applicants are charged under sections 5 and 7 of the Cree Nation of Chisasibi By-law No. 2008-007 entitled “ Respecting Prohibitions Against Alcohol ” (the “ Alcohol By-law ”): On or about 11 July 2014, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near Km 32 of the Chisasibi Highway, did possess or consume alcoholic beverages contrary to

section 5 of By-law No. 2008-007, and did thereby commit an offence pursuant to

section 11 of the said By-law. On or about 11 July 2014, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near Km 32 of the Chisasibi Highway, did engage in the sale, transfer, exchange or manufacture of alcoholic beverages contrary to

section 7 of By-law No. 2008-007, and did thereby commit an offence pursuant to

section 12 of the said By-law. [ 3 ] Was the checkpoint erected that day lawful? To answer this question, the Court first needs to establish the applicable statutory regulation on the Cree lands of Chisasibi at the time. It will then have to determine the factual basis for the erection of the checkpoint on the day of the event, by assessing the evidence provided by Officer Bellemare. [ 4 ] Was the search of the pickup vehicle following the interception and the subsequent seizure of the alcohol bottles lawful?

If there was a violation of the applicants’ Charter protected rights, should the evidence obtained in a manner that infringed those rights be excluded? FACTUAL CONTEXT [ 5 ] On the verge of an activity-filled weekend in the community of Chisasibi, the Eeyou Eenou Police Force decided to erect a vehicle checkpoint on the Chisasibi Highway. A softball tournament was held that weekend, and a special event was planned for that evening, hosted by DJ MC Mario.

Teams from other communities and visitors were expected in Chisasibi. [ 6 ] As mentioned in Officer Bellemare’s initial occurrence report, the checkpoint was set up at the request of Lieutenant Samuel House to make sure “that people were not bringing alcohol to the community as it is a Dry Town.

The police officers were making verifications for Driver’s Licence, Registrations and Insurance.” [1] (sic) Lieutenant House asked his officers to keep an eye out for bootleggers, to look actively for alcohol being brought in the community and seize it. [ 7 ] In his second report [2] and in his in-court testimony, Officer Bellemare added that the purpose for the road block was to verify the sobriety of the drivers in addition to the possession of alcohol and the verification of their documents. [ 8 ] The checkpoint was erected at around 7 pm.

They parked the patrol car, turned on the police lights and installed a sign indicating that alcohol was prohibited in Chisasibi. A couple of vehicles were intercepted before Mrs. Cookish’s pickup truck. Between 9:30 and 10 pm, the vehicle driven by the applicant Shannon Cookish slowly showed up at the checkpoint. Officer Bellemare noticed

that there seemed to be a party in the car: loud music was playing, the occupants of the vehicle were yelling, and the windows were rolled down. [ 9 ] The specific details of what occurred over the course of the next minutes will be dealt with when assessing Officer Bellemare’s credibility, or other specific submissions advanced by the parties. Suffice to say for now that during the 20 to 25 minutes of this interception, the officers proceeded to the seizure of the alcohol, viewed in the backseat of the vehicle.

They searched the truck bed of the pickup where they found and seized an important quantity of beer and alcohol. [ 10 ] When he started to search the vehicle, Officer Bellemare informed the four occupants that the motive for the search and seizure of the alcohol was the “Chisasibi prohibition to possess alcohol.” In his understanding, he did not need any judicial authorization to proceed as the alcohol he first found in the cabin was in plain view, and because the owner and driver of the vehicle gave her consent to the search of the truck bed.

He never informed the occupants of the truck of their right to consult a lawyer, nor of their right to refuse the additional search of the truck bed. [ 11 ] Never in his reports [3] or in-court testimony did he mention any belief that the offence committed by the occupants had anything to do with the sale, transfer, exchange or manufacture of alcoholic beverages.

In his view, the offence he was investigating was the possession of alcoholic beverages, considering that its possession was prohibited on the Chisasibi lands by the community’s Alcohol By-law . [4] [ 12 ] Officer Bellemare was the only witness produced during the audition on the Charter motion. His evidence is unchallenged. CONCERNING THE ALCOHOL BY-LAW OF THE CREE NATION OF CHISASIBI [ 13 ] At the time of the event, sections 2, 3, 5, 7 and 8 of the Cree Nation of Chisasibi’s No. 2008-007 (the Alcohol By-law ) were written as follows:

INTERPRETATION 2. (1) […] […]

(2) The following words and expressions shall mean: […] “sale, transfer and exchange” […] c. to deliver, distribute, administer, give, transfer, transport or send, for value or otherwise ; […] e. to procure for, or allow to be procured by, another person, for any or no consideration; […] GENERAL 3. This by-law shall apply to all Category IA land of the CNC, to Category III land situated within the perimeter of such Category IA land and to all persons on such Category IA and III lands. […] Prohibitions against alcohol 5. Subject to

section 8, no person, including any minor, shall possess or consume alcoholic beverages in any place within the boundaries of the area contemplated in

section 3. […] 7. Subject to

section 8, no person shall engage in the sale, transfer, exchange or manufacture of alcoholic beverages within the boundaries of the area contemplated in

section 3. Exception 8. Sections 5 through 7 shall not prohibit the sale, transfer, exchange, possession or consumption of a product that contains alcohol but its principal use is as a cosmetic product, a food product other than an alcoholic beverage normally destined for human consumption, or a pharmaceutical or medical preparation. However, it is a violation of this by-law to possess or consume such products for the purpose of consuming the alcohol contained in them. [...]

[ 14 ] A seven-year judicial saga concerning the constitutional challenge of this by-law came to an agreed outcome in 2016. [ 15 ] In 2014, a preliminary decision by Justice Jean-Pierre Gervais [5] confirmed that the Canadian Charter of Rights and Freedoms (the Charter ) protections applied to the Chisasibi Band and reserved for the parties the right to submit any relevant evidence aimed at establishing or denying the existence of an Aboriginal right regarding the right to govern and regulate the possession and consumption of alcohol on its lands. As judge Gervais mentioned in his paragraphs 177 to 179: [177] Although it was decided in an initial stage that

section 32, which defines the scope of the Charter , encompassed an Aboriginal government, that does not mean the by-law made by that government would fail to enjoy protection by the interplay of sections 25 and 35 of the Charter. [178] However, although the Court has an opinion on the issue, it cannot be decided without the parties having an opportunity to defend their points of view and, if necessary, adduce evidence to establish or refute whether an Aboriginal right is involved. [179] The opportunity must therefore be offered both the prosecutor and the accused to demonstrate that the claim as formulated, namely, the right to regulate the consumption and possession of alcohol, stems or does not stem from a custom, practice or tradition that can claim the status of an Aboriginal right for the Cree Nation of Chisasibi. [ 16 ] The Band council did not initiate the claim of its Aboriginal right following that decision.

The constitutional challenge of the by-law continued, and was resolved with an agreement endorsed by the court in its 2016 decision. [6] Justice Gervais declared that the By-law No. 2008-007 violated certain constitutional rights protected by the Charter , and declared unconstitutional, inapplicable, inoperative or invalid many dispositions or part of certain dispositions of the by-law, including sections 2, 5 and 7. [ 17 ] Following that decision, these sections read as follows:

INTERPRETATION 2. (1) […] […]

(2) The following words and expressions shall mean: “sale, transfer and exchange” […] c. to deliver, distribute, administer, give, transfer, transport or send, for value (“or otherwise” was crossed out) ; […] e. to procure for, or allow to be procured by, another person, for any (“or no” was crossed out) consideration; […] Prohibitions against alcohol 5. Subject to

section 8, no person, including any minor, shall possess or consume alcoholic beverages in any public place . […] 7. Subject to

section 8, no person shall engage in the sale, transfer, exchange (“or manufacture” was crossed out) of alcoholic beverages within the boundaries of the area contemplated in

section 3. [...] [ 18 ] In the context of the present motion, the prohibition to possess alcohol “ in any place , ” modified to a prohibition to possess alcohol “ in any public place , ” is important. Officer Bellemare believed that the possession of the alcohol in the vehicle was, in itself, an offence. Whether the cabin of the vehicle was a public place or not was never a question in his mind.

It is on that belief that he felt authorized to seize the plain view bottles of alcoholic beverages sighted in the cabin of the pickup. [ 19 ] Is the possession of alcohol in the vehicle an offence under the by-law as amended by the 2016 decision? If so, the belief of the officer that an offence was committed is still valid. [ 20 ] If not, the officer acted upon an unconstitutional disposition that was violating the applicants’ Charter protected rights.

It will have consequences on the determination of violations of their rights under the present motion, and on the analysis under section 24(2) of the Charter, if relevant. [ 21 ] To resolve that question, the Court must determine if the inside of a vehicle is a public place. Definition of “public place” [ 22 ] The definition found in

section 2 of the Alcohol By-law stipulates:

“public place”: any place within or on the lands described in

section 3 to which persons lawfully residing in Chisasibi have access as of right or by invitation, expressed or implied, whether on payment of a sum of money or not, including any land not specifically granted in writing by the CNC for the exclusive use or occupation of a designated person pursuant to

Part VIII of the Act; [ 23 ] The “Act” refers to the Cree-Naskapi (of Quebec) Act . [7] This

section was not modified by the 2016 decision of Justice Gervais. [ 24 ] Interestingly enough, Justice Gervais interpreted

section 2 of the previous version of the Alcohol By-law (No. 88-006 ) of the Cree Nation of Chisasibi in R. v. Sam [8] in 2010. The defendant was charged with possessing or consuming alcohol in a public place in contravention of

section 5. We learn in this decision that this version of the Alcohol By-law of Chisasibi, enacted in 1988, penalized the possession or consumption of alcohol in a public place, rather than “ in any place ” in the latter version of 2008 (No. 2008-007), that was declared unconstitutional. [ 25 ] The definition of “public place” in this previous version of the by-law was the exact replica of the above-mentioned one (No. 2008-007). [ 26 ] Mr. Sam was sitting in the stairs leading to the balcony of his residence when he was seen by the police consuming an alcoholic beverage.

Justice Gervais concluded that although in public view, the defendant was by no means in a public place. It cannot be concluded, on the basis that the defendant was visible from where he was, that he was in a public place. The stairs and the balcony are solely intended for access to the place of residence of the defendant, and are, to Justice Gervais, an integral part of his private residence. [ 27 ] In the present case, the alcohol was inside the cabin and in the closed and covered truck bed of the applicant Cookish’s pickup truck.

There is no doubt in my mind that the interior of a vehicle is not a public place, even while circulating on a public road. [ 28 ] The definition of “public place” in the Alcohol By-law is very similar to the

definitions of the same concept in many sections of the Criminal Code : [9] public place includes any place to which the public have access as of right or by invitation, express or implied; [ 29 ] Section 213(2) of the Criminal Code gives a slightly different version which specifically includes vehicles located in a public place: Definition of public place

(2) In this section, public place includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view. [ 30 ] It is clear the legislator meant to add, in this additional version of “public place,” vehicles situated in a public place or in places open to the public in offences related to offering, providing or obtaining sexual services for consideration, which are not included in the general version. [ 31 ] In the circumstances of the application of the Alcohol By-law , a vehicle is not a public place.

It is a private place, where the public has no access without an express invitation by the owner or the occupants, similar to what is expected to be granted entry in a dwelling house. People cannot go inside a car as they wish, like they could for any public area.

It is confirmed by the fact that although a person’s expectancy of privacy in a vehicle is reduced, it still remains. [ 32 ] The fact that the applicants approached an announced police checkpoint, that the windows were rolled down, giving visual access to the interior of the vehicle or that by their behaviour, they were attracting greater attention has no relevance. The interior of the vehicle remained a private place by its nature, where alcohol can be possessed.

ANALYSIS Credibility and reliability of Officer Dan Bellemare’s testimony [ 33 ] Officer Bellemare submitted two occurrence reports, the first one dated July 13, 2014, [10] and the second dated April 23, 2017, [11] and he testified in court on October 17, 2017 (examination) and on March 6, 2018 (cross-examination). [ 34 ] It is acknowledged by the respondent that there are differences in the details reported in the occurrence reports and in Officer Bellemare’s in-court testimony. However, in his view, these differences consist of additional information, not contradictions, which is correct.

That being said, the important number of additions on very relevant issues is unsettling. [ 35 ] First, it must be underlined that relevant information was added in the second occurrence report some two and a half years after the event, following a discussion between Officer Bellemare and the Band lawyer five days prior to the production of the motion, for a trial already scheduled on May 30, 2017. The information had been issued on November 24, 2014, four months after the event. The passage of time alone affects the reliability of his second occurrence report and its additional information.

The fact that it was requested for the purpose of the upcoming motion is also, to some extent, relevant. [ 36 ] Police officers are taught the importance of writing all relevant details in their reports. The purpose for the erection of a checkpoint is the basis for its lawfulness, and thus it is highly important. How, when, and where they noticed the presence of the alleged illegal goods is also very relevant. Every ground forming the basis or their reasonable belief in the commission of an offence should be documented in their reports.

[ 37 ] In his first report, [12] which he started to write on the day of the event and completed two days after, Officer Bellemare writes: On July 11th 2014, at approximately 21h45, Cst. Emmanuel Vignola mat. # 818 and Cst. Dan Bellemare mat. # 836 were doing a Road Block at KM 32 on chisasibi highway since 19h00 at the request of the Lieutenant Samuel House as it was a Special Event in Chisasibi for a Gala, Special Host DJ MC Mario coming to Chisasibi and a SoftBall Tournament. The police officers were making sure that people were not bringing alcohol to the community as it is a Dry Town.

The police officers were also making verifications for Driver’s Licence, Registrations and Insurance. On July 11th 2014, at approximately 21h45, the police officers saw a black pick-up coming west on the Chisasibi Highway, the vehicle was driving slow and the police officers could see the people in the back seat moving like they were trying to hide things. Cst. Vignola advised Cst. Bellemare who confirmed he noticed the same thing. On July 11th 2014, Cst Bellemare talked to the driver. Cst Vignola said to Cst Bellemare that he saw alcohol inside of the vehicle.

We opened the backdoor and smell alcohol from the vehicle. We seized alcohol who were hide under the seats. We seized a lot of beers can too who were in the trunk. The driver Shannon Cookish didnt want to cooperate with us. Because Shannon Cookish is known to be bootleager and for the important quantity of alcohol in the vehicle, Cst Bellemare recommanded to proceed with by Laws Alcohol : Sec. 11 (

c) a person who contravenes this by-law for a third or subsequent time is guilty of an offence and is liable on

summary conviction to a fine of 2 000$ [...] (sic) [ 38 ] In his 2017 report, [13] Officer Bellemare starts by mentioning that he is filing additional information based on: “the best of my knowledges regarding the event.” This statement is offered in the context of an event that occurred two years and nine months prior to the redaction of the additional report. It is safe to submit that his memory is not as keen as it would have been in the days following the event. [ 39 ] He starts his additional report as follows: On the date of July 7th, 2014, Cst Vignola and me Cst Bellemare were doing a road block.

The purposes were against the impaired driving and the possession of alcohol in the dry town of Chisasibi. It was also to verify driver license, registration and insurance card. There was a clear and visible sign showing alcohol was prohibited in the town, and against drunk driver.

The sign was on the middle of the road, right beside our police truck with lights on. (sic) [ 40 ] The first thing that stands out is the fact that in this latter version of the event, there is a third reason invoked for the erection of the checkpoint: “the verification of the sobriety of the drivers.” It is a very relevant information that should have been written when he first mentioned the reasons for the roadblock. For him, to remember this detail nearly three years later is difficult to understand, given that he did not recollect it when he wrote his first report no later than two days after the event.

He might be under the impression that it is what he always does, therefore he must have had this objective at the time, but I do not believe he remembered it specifically. [ 41 ] He mentions that there was a clear and visible sign showing that: “alcohol was prohibited in the town, and against drunk driver.” When questioned in March 2018 about that sign, Bellemare states that there was a bottle of alcohol inside a circle with a diagonal line on it, similar to a non-smoking sign, and on it was written: “zero tolerance” as well as the police station’s emergency phone number.

I see how this sign could mean that alcohol is prohibited in Chisasibi, but fail to understand how it could mean that drunk driving is prohibited. [ 42 ] He continues his 2017 report by saying: The vehicle arrived at the road block. There was a party in the vehicle. Loud music, people yelling for no reason, windows rolled down already. Cst Vignola recognized the driver as Shannon Cookish. He told me she was known to be a bootlegger in Chisasibi. I didn’t know at that time. But couples of weeks later, I did. Cst Vignola went on the passenger side and I went on the driver side.

Right there he told me there was alcohol in the vehicle. I smelled the odor of alcohol while approaching the vehicle. I went to the driver to verify the documents and the sobriety. Shannon Cookish was identified with her driver licence. She was looking nervous, not looking at me at all and anxious. She kept looking the steering wheel. She said she was coming from Radisson.

The bootleggers sellers in Chisasibi used to get the alcohol from Radisson at the Depanneur and then come in town to sell it. (sic) [ 43 ] This recollection of events is very different from his 2014 report, which mentions that the vehicle arrived slowly at the checkpoint when the officers noticed the people in the back moving as if they were trying to hide things. Bellemare says that Vignola confirmed that he noticed that. Bellemare went to meet with the driver, and Vignola then told him that he saw alcohol in the vehicle.

After receiving this information, Bellemare opened the rear door, and then smelled alcohol coming from the vehicle. The only mention in this report of Mrs. Cookish being a bootlegger is at the end, when he recommends certain offences under the Alcohol By-law and says: “Because Shannon Cookish is known to be bootleager and for the important quantity of alcohol in the vehicle, Cst Bellemare recommanded to proceed with by Laws Alcohol: [...]” (sic) [ 44 ] In his 2017 version, there is a party in the car.

Immediately, Vignola recognizes the driver as being Shannon Cookish and tells his partner that she is a known bootlegger. He does not mention noticing the passengers trying to hide things, nor Vignola’s confirmation of it. He now smells the odour of alcohol while approaching the vehicle, as opposed to when the rear door of the vehicle was opened. It

is only after noticing the odour of alcohol that he goes to the driver to verify her documents and her sobriety. She looked anxious and nervous, kept staring at her steering wheel, refusing eye contact with him, and she mentioned that they were returning from Radisson. [ 45 ] In his in-court testimony, Officer Bellemare again adds many details. He asked her where she came from, to which she responded that they were returning from Radisson. Bellemare then asked her if she was aware that alcohol was not allowed in Chisasibi, and if she had any alcoholic beverages in the vehicle.

She did not respond. [ 46 ] In his 2014 and 2017 reports, he never mentions seeing the passengers drinking alcohol in the car, nor did he see the alcoholic beverages before opening the rear door to seize them.

During his October 2017 examination in chief, he recalls that while approaching the vehicle, he saw the three passengers drinking alcoholic beverages: “they were drinking REV, a mix of vodka and beers.” [14] In March 2018, during his cross-examination, he confirms seeing them consume alcohol, [15] and even adds that one of the passengers had a glass containing an alcohol mix while the two others had alcohol in their hands, but he did not see what kind of alcohol it was exactly. [16] [ 47 ] In March 2018, he mentions for the first time that Vignola told him that he saw a passenger with alcohol in his hands. [17] [ 48 ] He also adds that before he arrived at the driver’s window, he noticed, through the back window on the driver’s side, a four pack of REV on the floor, between the feet of the back passengers. [18] It is only after noticing all those details that he went to talk to the driver, Shannon Cookish. [ 49 ] Considering the nature of the event, these three details (the fact that he saw the passengers drinking, the fact that Vignola mentioned also seeing it, and the fact that he saw alcohol on the floor, at the feet of the back passengers before opening the rear door) are major “additions” to his reports. [ 50 ] The 2017 report continues with this: After we seized the plain view alcohol / opened the back door passenger to seized the hidden alcohol under the seats.

I asked Shannon if I could open the trunk door of the truck to see if there was any alcohol in there. She did not answer, but she shaked her head a bit saying Yes. At that moment, she was looking like she didn’t mind about she had alcohol in her vehicle, like it was juste normal and OK for her. I opened the drunk (tailgate) who was unlocked. The alcohol hidden in the trunk was mostly the cases within many cans beers (brand new). The hard liquors bottles and the short cases cans were hidden under the back seats.

Some were opened and some cans empty. (sic) [ 51 ] The applicant Cookish’s agreement by nodding “a bit” was never mentioned in the 2014 report. It was then reported that: [19] “We seized alcohol who were hide under the seats. We seized a lot of beers can too who were in the trunk. The driver Shannon Cookish didnt want to cooperate with us.” (sic) The applicant’s consent to the search was never addressed in any way.

That again is a major “addition,” since the only justification upheld by Officer Bellemare for the truck bed search is that “consent by nodding her head.” [ 52 ] In his in-court testimony, he mentions that considering the quantity of alcohol found in the cabin, the fact that the passengers were drunk and partying, and the fact that they were returning from Radisson where alcoholic beverages can be purchased, he suspected that there could be more alcohol in the truck bed. He went back to the driver and asked her if there was any alcohol in the bed of the pickup. Mrs.

Cookish kept looking at the wheel and did not answer. He asked her if he could go check if there was any alcohol there, and she nods in approval. [20] He then adds that she responded: “Yes, I don’t mind.” [21] He also confirms that had she not consented to the search, he would not have proceeded to it, letting her go instead.

He would not have applied for a search warrant. [22] [ 53 ] At the beginning of his cross-examination held in March 2018, when asked if he would say that he has a very good memory of the event of July 2014, Officer Bellemare answered that he would rather say that he remembers what is written in the reports.

He nevertheless added crucial and relevant details concerning what he saw exactly that day before he proceeded to the seizure of the alcohol in the cabin of the truck. [ 54 ] The addition of those discrepancies takes a toll on both his reliability, the quality of his recollection and its accuracy, and his credibility and sincerity. There are so many inconsistencies on such crucial subjects that it is impossible to allot him any credibility. His testimony seems to evolve from version to version, filling in the blanks, adding information as he goes and consolidating weak issues.

The three versions of the event are different in so many ways that they are irreconcilable. [ 55 ] I do not believe that Officer Bellemare saw the passengers holding alcoholic beverages in their hands, nor he noticed the alcohol before opening the rear passenger door, nor do I believe that Mrs. Cookish agreed to the truck bed search. The Browne v. Dunn rule [ 56 ] The respondent criticizes the fact that the alleged inconsistencies were not put directly to Officer Bellemare in cross- examination, thus giving him the opportunity to explain them in accordance with the rule set forth in Browne v.

Dunn . [23] Procedural fairness would require that the witness’s credibility not be impeached by these discrepancies if not properly given that opportunity. [ 57 ] In short, the rule states that if counsel intends to impeach an opposing witness on a matter, then, in fairness, counsel ought to put the contradictory version to the witness in cross-examination so that the witness has an opportunity to explain the discrepancies. [24] In my view, this rule does not apply in our specific circumstances: it is based on the principle of fairness, with the objective to allow the witness the opportunity to give his version of the contradictory fact put forward by opposing counsel.

Here it is the witness’s own versions of the event, provided by him to both parties that were used to attack his credibility. Throughout the proceeding, it was clear that Officer Bellemare’s credibility was a live issue. He was well aware, as was the respondent’s lawyer, of the existence of these different versions of the event, and had ample possibility to address these issues if he wished to. No fair play rule was breached by

opposing counsel. The Law on Police checkpoints [ 58 ]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. To decide if the applicants were arbitrarily detained, the Court must determine whether the police officers had the legal authority to erect the checkpoint on the Chisasibi Highway on July 11, 2014, and detain them as part of it. [ 59 ] In 1985, the Supreme Court of Canada in Dedman v.

R. , [25] held that a police officer may randomly and arbitrarily stop vehicles at established checkpoints in accordance with an organized program aimed at detecting, deterring and reducing impaired driving. [ 60 ] At the time, no statutory authority, particularly under the Ontario Highway Traffic Act was enacted (section 189(a)(1) of the Act was enacted one year later). Le Dain J., writing for the majority, held, however, that common law authority for the random stops conducted under the R.I.D.E. program could be derived from the general duties of police officers on the basis of the test laid down in R. v.

Waterfield . [26] At paragraph 69, applying the second question of the Waterfield test, he states: [...] Because of the seriousness of the problem of impaired driving, there can be no doubt about the importance and necessity of a program to improve the deterrence of it. The right to circulate on the highway free from unreasonable interference is an important one, but it is, as I have said, a licensed activity subject to regulation and control in the interest of safety.

The objectionable nature of a random stop is chiefly that it is made on a purely arbitrary basis, without any grounds for suspicion or belief that the particular driver has committed or is committing an offence. It is this aspect of the random stop that makes it capable of producing unpleasant psychological effects for the innocent driver. These effects, however, would tend to be minimized by the well - publicized nature of the program, which is a necessary feature of its deterrent purpose. Moreover, the stop would be of relatively short duration and of slight inconvenience.

Weighing these factors, I am of the opinion that having regard to the importance of the public purpose served, the random stop, as a police action necessary to the carrying out of that purpose, was not an unreasonable interference with the right to circulate on the public highway. It was not, therefore, an unjustifiable use of a power associated with the police duty, within the Waterfield test. I would accordingly hold that there was common law authority for the random vehicle stop for the purpose contemplated by the R.I.D.E. program. [ 61 ] In 1988, in R. v.

Hufsky , [27] the Supreme Court was again confronted with the lawfulness of organized random stops, this time for the purposes of checking licences, insurance, mechanical fitness of cars and sobriety of the drivers, in accordance with

section 189(a) (1) of the Ontario Highway Traffic Act. The only guideline offered was that at least one marked police vehicle be engaged in spot check duty. There were no criteria, standards, guidelines or procedures to determine which vehicles should be stopped. It was entirely at the discretion of the police officer. [ 62 ] The court decided that, although the stop was executed under statutory authority and lawful purposes, there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure. The appellant was therefore arbitrarily detained within the meaning of

section 9 of the Charter . In view of the importance of highway safety and the role to be played in relation to it by a random stop authority, with the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by the mere observation of driving, the limit imposed on the right not to be arbitrarily detained by the Ontario Highway Traffic Act and comparable provincial legislation elsewhere was determined to be a reasonable one that is demonstrably justified in a free and democratic society, within the meaning of

section 1 of the Charter . [ 63 ] In 1990, the Supreme Court again decided, in a similar situation in R. v. Ladouceur, [28] that even if the random stop was not part of a stationary, organized check stop program, but rather a completely random stop conducted by police as part of a routine check, the power to effect such a stop, authorized by

section 189(a)(1) of the Ontario Highway Traffic Act, was nonetheless saved by

section 1. [ 64 ] The Supreme Court in Mellenthin [29] once again recognized that arbitrary detention of motor vehicles on the nation’s highways can be and have been recognized as being demonstrably justified in a free and democratic society. However, the court ruled that such detentions can only escape judicial disapprobation when the purpose for stopping the vehicles pertains to public safety concerns that arise from the regulated activity of driving motor vehicles. [ 65 ] At page 624, Cory J. said: [...] Check stop programs result in the arbitrary detention of motorists.

The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims.

Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [ 66 ] And further at page 629: The unreasonable search carried out in this case is the very kind which the Court wished to make clear is unacceptable. A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over.

Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted. [ 67 ] In Brown v. Regional Municipality of Durham Police Service Board , [30] a series of checkpoints were set up by the police during a large biker gang gathering in the area.

The trial judge determined that there were multiple purposes justifying the road checks erected by the police, which included intelligence gathering targeting gang members and their associates, the establishment of police presence to reassure residents and ensure the peace, and road safety matters in application of the Highway Traffic Act and the Compulsory Automobile Insurance Act, including the verification of the sobriety of the drivers. The trial judge found that the evidence

did not show a primary or dominant purpose, affirming it was not possible to determine the importance the police placed on the various purposes. [ 68 ] The Ontario Court of Appeal confirms the trial judge’s conclusion that multi-purposed stops that include road safety matters are lawful. Justice Doherty, writing for the court, adds that roadside stops cannot be turned into unfounded general inquisitions, and that the Ontar io Highway Traffic Act does not grant a general search warrant.

At paragraphs 38 and 39, his reasons read as follows: While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper.

For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216 (1) of the H.T.A. does not, in my view, authorize discriminatory stops even where there is a highway safety purpose behind those stops. When I refer to improper police purposes, I include purposes which are illegal, purposes which involve the infringement of a person's constitutional rights and purposes which have nothing to do with the execution of a police officer's public duty.

Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose.

They cannot rely on s. 216 (1) of the H.T.A. even if they also have highway safety concerns when making the stop. [ 69 ] Also relevant to the case at hand, as it was presented as an alternative argument by the respondent, is Justice Doherty’s analysis of the scope of the common law police powers when acting without statutory authority in furtherance of their duty to maintain the public peace and prevent crime. The police force contended that their common law ancillary power empowered them to interfere with individual rights and liberties as the interference was justified in the circumstances.

At paragraphs 77 to 79, Justice Doherty responds: Applying the totality of the circumstances approach to the situation which led to the roadside detentions, I am not satisfied that the detentions were a justifiable intrusion on the appellants' rights and, therefore, a proper exercise of their ancillary powers. In arriving at the conclusion, I have in mind the following: — Any apprehended harm was not imminent. — There was no specific identifiable harm which the detentions sought to prevent.

The police had a general concern that the situation could get out of hand unless it was made clear to the appellants, their friends and associates that the police were in control. — The police concern that some harm could occur rested not on what those detained had done, but rather on what others who shared a similar lifestyle with those who were detained had done at other places and at other times. — The liberty interfered with was not a qualified liberty like the right to drive, but rather the fundamental right to move about in the community; — The interference with individual liberty resulting from the police conduct was substantial in terms of the number of persons detained, the number of times individuals were detained and the length of the detentions; and — the detentions could not be said to be necessary to the maintenance of the public peace.

A large police presence without detention would have served that purpose. In fact, it is arguable that the confrontational nature of the detentions served to put the public peace at risk. In this case, the police chose to detain the appellants and their friends and associates in the belief that the detentions would diminish the risk that a situation would develop in which there would be an imminent risk of harm.

In effect, the respondent would extend the common law power to arrest or detain to prevent an imminent breach of the peace to a power to detain whenever the detention would assist in keeping the public peace. The respondent would equate the police duty to keep the peace and the police power to take steps to keep the peace. This equation ignores the importance attached to individual liberties in our society. The common law ancillary power doctrine has never equated the scope of the police duties with the breach of the police powers to interfere with individual liberty in the performance of those duties: R. v.

Simpson, supra, at p. 194 O.R., p. 493 C.C.C. Any interference with individual liberty must be justified as necessary: R. v. Dedman , supra. When taking proactive measures to maintain the public peace, the requisite necessity arises only when there is a real risk of imminent harm. Before that point is reached, proactive policing must be limited to steps which do not interfere with individual freedoms. The balance struck between common law police powers and individual liberties puts a premium on individual freedom and makes crime prevention and peacekeeping more difficult for the police.

In some situations, the requirement that there must be a real risk of imminent harm before the police can interfere with individual rights will leave the police powerless to prevent crime. The efficacy of laws controlling the relationship between the police and the individual is not, however, measured only from the perspective of crime control and public safety. We want to be safe, but we need to be free. [ 70 ] The Saskatchewan Court of Appeal came to the same conclusion as the Ontario Court of Appeal in Brown v. Durham [31] in its 2002 decision R. v.

Ladouceur : [32] “[…] the law does not authorize the police to conduct a random check-stop operation which has as one of its purpose an investigation or search for possible illegal contraband.” In this case, “Operation Recovery” was a roadblock enacted to combat and detect vehicle infractions, driver infractions, and the transportation of illegal contraband. The key issue was whether the police could combine checking for illegal contraband with a random check stop for motor vehicle violations. Justices Jackson and Bayda conclude that if one of many aims is unlawful, it produces an unlawful check stop.

Justice Bayda at paragraph 65 reasoned as follows: The question then arises: If both of these aims are combined in one check-stop, does the “highway safety” aim (lawful) cleanse the “general detection” aim (unlawful) to make the check-stop lawful or does the latter contaminate the former to make the check-stop

unlawful? Or can both aims operate and co-exist independently, rendering that part of the check-stop with the lawful aim as lawful andthat part with the unlawful aim as unlawful? In my respectful view, the combination of the two aims I have described produces anunlawful check-stop. The two aims cannot co-exist in a lawful check-stop. My reasons for reaching those conclusions are these: Asnoted, the lawfulness of a check-stop whose aim is highway safety stems not from the non-breach of an individual right but from a s.1cleansing of a s. 9 breach. That cleansing effect goes only so far.

It is rooted in the need for “reducing the terrible toll of death andinjury so often occasioned by impaired drivers and dangerous vehicles” to use Cory J.’s words in Mellenthin (p. 624). The cleansingeffect does not go so far as to encompass a general detection of crime and indiscriminate identification of criminals.

Our society is notthe kind where in the interests of reducing criminal activity generally or a particular genus of criminal activity, we authorize our police todetain citizens arbitrarily or indiscriminately on the highway or the street or wherever with a view to identifying former or potentialcriminals in the hope of detecting some criminal activity on their part should it happen to be then taking place. While it is true that themembers of our society desire security they also desire freedom. (See: Brown v.

Durham Regional Police Force (1998), (ON CA), 131 C.C.C. (3d) 1 (para 79).) The force of this societal value is so great that it outweighs the lawfulnessgenerated by a highway safety aim. To put it in other words, the arbitrary detention that creates a s. 9 breach in these cases persists.

Lawfulness of the checkpoint erected on July 11, 2014 1) Was it authorized by law? [71] One of the focal issues in the present case is the purpose of the checkpoint erected by Officers Bellemare and Vignola on July11, 2014. [72] When he testified in October 2017, Officer Bellemare was adamant that the checkpoints were erected because of the specialevent in town. [33] The officer had heightened concerns that criminal activity caused by alcohol consumption would occur during theevening and night (fights, use of weapons, drunk and dangerous driving).

He was also concerned about the possibility of bootleggingduring the evening, fuelling the consumption of alcohol by partiers. They were to verify the conformity of documents, the sobriety of thedrivers and seize any alcohol coming into town. [73] In his March 2018 testimony, [34] the following exchange ensues: […] Me MASSÉ : […] Q. Okay. So when Samuel House told you about the objectives that you have… that you had at that time, he told you that you wereto look and to keep an eye out for bootleggers; am I correct? A. Yes. THE COURT : To keep an eye on what? Me MASSÉ : Q.

An eye out for bootleggers, for people… basically just to make it clear, for people that are actually selling alcohol; is thatcorrect? A. Yes, yes. Q. He was… and he also told you to keep an eye out for any alcohol that you might see in (inaudible) ; am I correct? A. Yes. Q. He also told that you were to be active in this, in the sense that when cars drove in, your purpose was to try to detect if peoplewere bringing alcohol; am I correct? A. No, he did not say about people drinking alcohol in the vehicle. Q. No, no, that’s not what I’m saying. That’s not what I’m asking.

What I’m asking is, when lieutenant Sam House gave you anorder concerning the special events of the weekend, did he tell you that you needed to look actively for possible alcohol coming in and ofcourse seize that alcohol? A. Yes. Q. Okay. So, your purpose in doing that roadblock was to do that, to look for alcohol and seize it and also to look for possibleinfractions under the Highway Safety Code; am I correct? A. No. Q. No?

A. No. Q. You were not even supposed to look for Highway Safety Code’s issues? A. Well, it was but you said the main, but it wasn’t the main. You know, when we make a roadblock, it’s to check the sobriety of the driver… Q. Okay. A. … and then the insurance and the registration. [35] [ 74 ] From that excerpt, it seems that Officer Bellemare’s main purpose in erecting the checkpoint was to verify the sobriety of drivers, and the conformity of documents in addition to keeping an eye out for bootleggers and looking out for alcohol being introduced in the community.

But his late addition of this important or “main” goal in setting up the checkpoint is not credible to the Court. Considering my conclusions as to the credibility of Officer Bellemare’s testimony, I do not believe that this “main” goal was a goal at all. He never even mentioned it in his first report. [ 75 ] The circumstances surrounding the decision of erecting such a roadblock confirms that its only real purpose was to detect alcohol destined to enter the community and seize it before it did.

It was erected before the entrance of the community, in the evening preceding an important and active weekend of activities, where it was anticipated that parties and important consumption of alcohol would occur. The preoccupation of the validity of the documents under the Highway Safety Code was an attempt to justify the checkpoint, not the real goal of the checkpoint. [ 76 ] The only reason why this checkpoint was erected was to reduce the quantity of alcohol coming into the community or to prevent it altogether. It had nothing to do with the purposes that the courts have accepted as being in violation of

section 9 of the Charter (compliance with Highway Safety Acts , sobriety of drivers, the general fitness of vehicles and the validity of documents), but nonetheless justifiable in a free and democratic society within the meaning of

section 1 of the Charter . [ 77 ] The checkpoint erected for the purpose of searching vehicles for alcoholic beverages was unlawful, and the detention that resulted from that checkpoint was in violation of the protected right not to be arbitrarily detained within the meaning of

section 9 of the Charter . [ 78 ] Had I considered the three purposes alleged by Officer Bellemare, (the verification of the sobriety of drivers, the validity of documents, and the detection and seizure of the alcohol present in plain view in vehicles), I would have nonetheless concluded that this checkpoint was unlawful. [ 79 ] As mentioned in Brown v.

Durham , [36] multiple lawful purposes for erecting a checkpoint are permitted, but not if one of those purpose is improper, and not if it entails an infringement on the liberty or security, detaining a person beyond what is contemplated by the Highway Safety Act . [ 80 ] In the present case, the plain view alcohol observed in the cabin of the vehicle was seized under the authority of

section 5 of the Alcohol By-law , an unconstitutional disposition that was, with the acquiescence of the Cree Nation of Chisasibi, later declared inapplicable, inoperative and invalid. That section, as it was then drafted, enacted the offence of possession of alcohol in any place on the lands of the community, and allowed its seizure in public and private places . The police officer felt authorized to seize the alcohol from the inside of the vehicle under the power of the flawed disposition, which was in violation of the applicants protected Charter rights.

As above-mentioned, the interior of a vehicle is a private place where the possession of alcohol is not prohibited. Acting based on an unconstitutional disposition, even if it was declared so ex post facto , cannot be considered a proper purpose. 2) Was is permitted under common law police powers? [ 81 ] The respondent, by way of an alternative argument, contends that the checkpoint and the following detention of the applicants were authorized by common law.

According to him, the totality of the circumstances militates in favour of the justifiable use of police powers arising from the duty to “maintain the peace, order, and public security, to prevent and repress crime.” [37] Firstly, the checkpoint sought to address harms relates to road safety and public safety. Officer Bellemare gave evidence about his experience with alcohol-related crimes, including fighting, impaired driving and other dangerous behaviour. He also testified that special events often brought in a lot of people from out of town who were usually not known to the Chisasibi police.

It therefore made sense to conduct HSC verifications and sobriety verifications. Secondly, the police response was sufficiently tailored to address the targeted harms or concerns arising from special events in the community, including the influx of people from other communities and a greater that usual influx of alcohol. It was limited in time to the period during which two events were being held contemporaneously in Chisasibi.

The checkpoint was set up on the usual road giving access to Chisasibi so that only those entering Chisasibi from out of town, including any non-residents not know to the Chisasibi EEPF detachment, were stopped. [38] [ 82 ] I see no merit to this submission. Applying the principles set forth in R. v. Waterfield [39] as outlined by Justice Doherty in Brown v. Durham , [40] I am not satisfied that the detention was a justifiable intrusion on the applicants’ rights, and therefore, a proper exercise of the police’s ancillary powers. [ 83 ] There was no imminent apprehended harm.

The harm sought to be prevented was possible fighting and the possible use, in a drunken state, of weapons. It is not a specific identifiable harm that could justify violating their right not to be unlawfully detained. [ 84 ] The police concern that some harm could occur rested on the experience with alcohol-related crimes of a police officer that had been assigned in the community three or four weeks prior to the events with hearsay from his fellow officers and because of the

criminality that occurs generally in similar situations. [ 85 ] The liberty interfered with, as stated in Brown v. Durham , [41] “was not a qualified liberty like the right to drive, but rather the fundamental right to move about in the community.” [ 86 ] The officers chose to detain the applicants in order to look in the vehicle and seize any alcohol they would notice in order to lower the risk of alcohol being brought in the community, thus decreasing the possibility of drunken criminal activity in the community. That is not what should constitute the exercise of their duty to maintain the peace.

When taking proactive measures to maintain the public peace, the requisite necessity arises only when there is a real risk of imminent harm. Before that point is reached, proactive policing must be limited to steps which do not interfere with individual freedoms. Violations under

section 8 and 10(

b) of the Charter [ 87 ] It was alleged by the applicants that in addition to the violation of their right not to be arbitrarily detained, their right to be secure against unreasonable search or seizure, and to be informed of their right to retain and instruct counsel were also breached. [ 88 ] The search was executed following an unlawful interception and detention; that fact alone affects its validity. [ 89 ] In addition, it was a warrantless search, which is prima facie unreasonable. The prosecution bears the onus to prove otherwise.

Reasonable and probable grounds, sworn on oath, to believe that an offence has been committed and that there is evidence to be found, coupled with a prior authorization by a neutral arbiter, are prerequisites for a valid search and seizure. [42] [ 90 ] The exception to the general rule which proscribes warrantless searches is satisfied when there exists an imminent danger of loss or removal, destruction or disappearance of the evidence sought to be seized, should it be delayed awaiting the issuance of a warrant. [43] [ 91 ] In Grant, [44] the Supreme Court specifies that while the fact that the evidence sought is believed to be present in a motor vehicle or other fast-moving vehicle might create exigent circumstances, no blanket exception exists for such conveyances. [ 92 ] In the present file, the seizure of alcohol occurred after the officers noticed the presence of liquor and beer bottles in the backseat of the vehicle in plain view .

Considering that the challenge of the Alcohol By-law was not yet settled, the officers were acting upon its initial version which prohibited the possession of alcohol in any place . Based on that belief, they could reasonably come to the conclusion that the possession of alcohol in the vehicle was in contravention of the by-law, as it was written in 2014. Had the interception been legal, the seizure of the plain view alcohol would have been lawful. The situation is very different for the alcohol seized in the truck bed of the pickup. [ 93 ] The officers had knowledge that the driver, Mrs.

Cookish, was a known “bootlegger,” that the applicants were coming back from Radisson, where alcohol is often purchased, and that there was consumption of alcohol and partying in the vehicle. Counsel contends that, because of this, the officers would have reasonable grounds to suspect that there was or would be a contravention to the prohibition against the sale of alcohol, such that a search of the vehicle truck bed, after obtaining the permission of the defendant, Shannon Cookish, was lawful.

I disagree with that submission. [ 94 ] Firstly, never in his in-court testimony did Officer Bellemare consider or mention the offence of illegally selling alcohol pursuant to

section 7 of the by-law to justify the truck bed search or the seizure of alcohol. The only offence he was investigating was the illegal possession of alcoholic beverages. [45] [ 95 ] Secondly, the information given by Officer Vignola to his partner Bellemare that Mrs. Cookish “was a known bootlegger,” if it was mentioned at the beginning of the intervention, has very low, if any probative value. The evidence does not show where Vignola would have gotten this information or on what it was founded.

The weight of this statement, without further explanation on its origin or foundation, is tantamount to the weight given to the tip of an anonymous caller: close to none. [ 96 ] The fact that they were coming back from Radisson does not mean much. The officers already found alcohol in the cabin of the truck, possibly purchased in Radisson, but it says nothing towards the possibility of them having more alcohol in the truck bed.

Again, stating that “alcohol is often purchased” in Radisson is an affirmation that is not supported by any substantial evidence. [ 97 ] Lastly, I fail to understand how consuming alcohol and partying in the vehicle would bring the officers to suspect the applicants of illegally selling alcohol in the community, or to suspect that they could have more alcohol in the truck bed. [ 98 ] The police officers had no reasonable or probable grounds to believe that alcohol was present in the back of the truck.

They never entertained the possibility of obtaining a search warrant, but considering my previous conclusion, they would not have succeeded in obtaining one. [ 99 ] Officer Bellemare justifies the search of the truck bed by the consent of the driver, Mrs. Cookish.

He asked her if he could open the tailgate to see if there was any alcohol in the truck bed, to which she responded by nodding “a bit.” So he proceeded to the search on that ground. [ 100 ] For the police to be entitled to proceed to a lawful search following a detained person’s consent, there must be a clear, unequivocal and informed waiver of his or her Charter protected rights. [46] [ 101 ] An individual who makes a valid waiver loses standing to make an allegation of a breach of any rights that would otherwise have been protected by the Charter .

However, a waiver will only be valid if the person is fully informed of the nature of the right he or she is surrendering and of the consequences of doing so.

[ 102 ] In Borden , the Supreme Court explained that for a waiver to be considered valid, “ the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right.” [47] More specifically, the informational prerequisites of a valid consent mandate that the detained person be apprised of his or her jeopardy and of the consequences of a waiver. [ 103 ] A detainee's “ awareness ” of his or her rights upon detention is inextricably linked to the exercise of his right to counsel provided for at 10 (

b) of the Charter . Thus, before a detained person's consents to a search , the police must inform him of his right to counsel. As Chief Justice Lamer explained in Bartle , [48] a person who waives a right must know what he or she is giving up if the waiver is to be valid. [ 104 ] The standard for the valid waiver of a constitutional right is high, especially in circumstances where the waiver is implicit.

The burden is on the prosecution to prove, with a balance of probabilities that the applicant Cookish validly consented to the search. [ 105 ] In the present case, the evidence does not establish a clear and informed waiver from Mrs. Cookish. The police officer relinquished his duty to inform her of the nature of her right, of the fact that she was entitled to refuse the search, and of the possible consequences of her waiver. He basically accepted a nod as consent, while he was fully aware that she did not wish to collaborate with them. Mrs. Cookish’s waiver is not valid.

Therefore, her right to be protected against unreasonable search and seizure was breached: the search of the truck bed and the seizure of the alcohol it contained is unlawful. [ 106 ] In addition, the right of the appellants to be informed without delay of their right to retain and instruct counsel was violated. As soon as they were intercepted and detained, the police officer had the constitutional obligation to inform them of their right and to refrain from additional questioning.

It never occurred to Officer Bellemare to give the applicants their right in that regard, not even when he was considering asking Mrs. Cookish for her consent to search her truck bed.

Exclusion of the evidence under section 24(2) of the Charter [ 107 ] Section 24(2) directs that, where evidence is obtained in a manner that infringes a right guaranteed by the 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.” [ 108 ] It recognizes that the admission of constitutionally tainted evidence and the use of that evidence to seek out guilt may bring harm to the administration of justice.

There is an assumption that there must be a long-term negative effect on the administration of justice if criminal courts consistently accept evidence gathered in violation of the Charter protected rights. At the same time, section 24(2) accepts that the exclusion of evidence can also bring the administration of justice into disrepute. [ 109 ] In Grant [49] the Supreme Court provided the framework for differentiating the cases where accepting or excluding the evidence would cause harm and distrust to the administration of justice.

The courts must examine: (1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; (3) society’s interest in the adjudication of the case on its merits.

The seriousness of state conduct [ 110 ] The first part of the inquiry proposed by the Supreme Court invites the judge to determine whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts: […] effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct. […] [50] […] 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. [51] [ 111 ] Officers Bellemare and Vignola were given a task to seize the alcohol coming into the community.

They had an objective and would meet their goal regardless of the detained person’s rights. The addition of the motive under the Highway Safety Act was designated to validate and justify an unlawful checkpoint put up with the sole intent to prevent alcohol from entering the community. [ 112 ] The officers did not acknowledge the applicants’ rights and did not question their actions. They acted in blatant disregard for the applicants’ Charter protected rights. Was it based on their ignorance of the law or their recklessness in applying it? The evidence tends to show that it was a combination of both.

Officer Bellemare was a newly appointed officer (less than a month prior) at the Chisasibi Police Department. His knowledge of the applicable principles might not have been sufficient to comply with his constitutional duties. His incompetence cannot be construed as good faith. Furthermore, he was accompanied by another officer who, according to the evidence, shared the same view of the situation and of the actions to be taken. [ 113 ] While not part of a breach in itself, I found that the officer’s in-court testimony was misleading and not credible. As mentioned in the Supreme Court’s decision R. v.

Harrison , [52] it is a factor to consider as part of the first inquiry under section 24(2) analysis.

[ 114 ] The repute of the administration of justice would be significantly eroded, particularly in the long-term, if such unacceptable police conduct was permitted to form the basis of the seizure of evidentiary material. This factor of the 24(2) analysis favours the exclusion of the alcohol beverages seized.

The impact of the violations on the applicants protected rights [ 115 ] In the second part of the inquiry under 24(2), the impact of the breaches on the Charter protected rights of the applicants also militates in favour of the exclusion of the evidence. [ 116 ] This inquiry focusses on the seriousness of the impact of the breach on the Charter protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermines the interests protected by the right infringed. It assesses the severity of the violation from the point of view of the applicants.

The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. [53] [ 117 ] The infringed rights are numerous. Considering that the initial interception was at the outset unlawful, the applicants’ vehicle should never have been stopped, nor searched. They were illegally detained for a little more than half an hour, and suffered additional breaches of their rights ( sections 8 and 10 (

b) of the Charter ) throughout their detention. In the course of the unlawful detention one of the passengers, Mr. Etapp, got into a physical altercation with Officer Vignola that warranted Bellemare’s assistance.

The accumulation of violations of many Charter protected rights increases the impact of the violation. [54] [ 118 ] While I do consider that the expectancy of privacy is lessened in a motor vehicle, [55] it does not mean an unjustified search is permissible. [56] As mentioned in Harrison, [57] “being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial.” [ 119 ] I conclude that the impact of the violations on the applicant’s rights was significant.

The Court needs to condone such conduct which could, if accepted, breed public cynicism and bring the administration of justice into disrepute.

Society’s interest that the case be decided on its merits [ 120 ] As for the last part of the analysis, the Court must inquire whether the truth-seeking function of the trial is better served by the admission or exclusion of the evidence. “This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.” [58] [ 121 ] The evidence of the alcohol obtained as a consequence of the Charter breaches is reliable and essential to the prosecution’s case. [ 122 ] The seriousness of the offence is often considered by the case law as heightening the interest in seeing a determination on the merits.

Considering the nature of the offences dealt with in the present case, this consideration will be treated as neutral. Balancing the factors [ 123 ] The final task in the section 24(2) analysis is to balance the three factors to determine whether the evidence should be admitted or excluded. [ 124 ] Despite the fact that the evidence is reliable and necessary to the prosecution’s case, the violations are numerous and serious, and the impact on the Charter protected interests that were affected is significant.

Viewed reasonably, and from a long-term perspective, the admission of the evidence would have a negative effect on the repute of the administration of justice. [ 125 ] I conclude that the evidence seized must be excluded. [ 126 ] Finally, I must underline that the Court cannot endorse the application of a constitutionally challenged by-law that the Band council of Chisasibi eventually conceded was flawed. For many years, including on July 11, 2014, the community members and their visitors were repetitively subjected to the very broad and unconstitutional

section 5. The checkpoint in the present file was erected in light of the powers of that general prohibition to possess alcohol in any place on Chisasibi lands. The Court needs to distance itself from this recurrent violation of the community member’s Charter protected rights. FOR THESE MOTIVES, THE COURT: [ 127 ] GRANTS the application; [ 128 ] EXCLUDES the evidence. __________________________________ MARIE-CLAUDE BÉLANGER, J.C.Q.

M e Michel Nolet Nelligan O’Brien Payne Lawyer for the plaintiff M e Yan Massé Legal Aid Lawyer for the accused - applicants Shannon Cookish and Sheldon Louttit M e Claude Beaudet Lawyer for the accused - applicant Nathan Louttit Date of hearing: October 17, 2017 March 6, 2018