His Majesty the King - v. -, 2023 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 13 Date: February 10, 2023 Information: 991162026 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Andrew Anderson Appearing: Loren Klein For the Crown Shealagh Mooney For the Accused JUDGMENT J. RYBCHUK , J INTRODUCTION [ 1 ] On May 27, 2021 at 1:49 a.m. the Regina Police Service was dispatched to a report of a suspicious vehicle at a Shell gas station located at 825 Arcola Avenue East in Regina, Saskatchewan.

Someone had called to complain that a car had been parked there for some time with a person inside the vehicle sleeping. [ 2 ] The police located the vehicle in a parking lot behind the gas station. One police cruiser pulled up behind the vehicle.

Another police cruiser stopped beside the vehicle. Four police officers got out of their cruisers and approached the vehicle at the same time. [ 3 ] After a brief conversation with the driver, he was ordered to exit the vehicle. He was handcuffed and placed in the backseat of a police cruiser. Police searched the vehicle and found a half-full mickey bottle of vodka, a bottle of whiskey, three cell phones, an RCA tablet, a box cutter, a folding knife, a knife in a sheath, an axe and a 9mm Browning handgun with a loaded magazine.

The driver is accused of nine criminal charges related to possession of these items. [ 4 ] The defence seeks the exclusion from evidence of the items that were seized pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] as a result of breaches of the accused’s sections 8 and 9 Charter rights. [ 5 ] The defence argued that the police did not have a legal basis to detain the accused, therefore, the police breached his s. 9 Charter right to be free from arbitrary detention. The defence also argued that the contemporaneous search of the accused’s vehicle was illegal and in violation of his s. 8 Charter right to be free from unreasonable search and seizure.

The defence argued that the appropriate remedy for these compounded breaches was exclusion of the seized evidence pursuant to s. 24(2) of the Charter . [ 6 ] The Crown argued that there were grounds to detain the accused, thus the search of the accused’s vehicle that followed was not tainted by an initial s. 9 violation and the seizure of the evidence was authorized by law and reasonable.

The Crown argued that there were no breaches of ss. 8 and 9 and if there was a breach, the evidence should not be excluded pursuant to the analysis set out by the Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] . [ 7 ] This is my decision on the blended voir dire and trial which took place on July 19, 2022 and December 19, 2022 with respect to the admissibility of evidence seized by police after detaining the accused and searching his vehicle. There are three issues: ISSUES 1. Was the accused unlawfully detained contrary to

section 9 of the Charter ? a. Was the accused detained? b. When was the accused detained? c. Was the detention arbitrary? 2. W as the accused’s right to be secure against unreasonable search or seizure infringed contrary to

section 8 of the Charter ? a. Was there a search? i. Did the accused have a subjective expectation of privacy? ii. Was the subjective expectation of privacy objectively reasonable? b. When did the search begin? c. Was the search reasonable? 3. If there is a

section 8 and/or

section 9 Charter breach, what is the appropriate remedy under section 24(2) of the Charter ? a. How serious was the police conduct? b. What was the impact on the accused?

c. Adjudication on the merits? d. Balancing of factors? ANALYSIS [8] The constitutional guarantee against state intrusion is set out in ss. 8 and 9 of the Charter, which should be interpreted in away “aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection” (R v Big MDrug Mart Ltd., (SCC), [1985] 1 SCR 295 at 344; Grant at para 16).

Section 9: Arbitrary Detention [9] This first issue to be decided is whether the accused was unlawfully detained on May 27, 2021 contrary to s. 9 of theCharter. [10]

Section 9 of the Charter states: Arbitrary detention 9. Everyone has the right not to be arbitrarily detained or imprisoned. [11] The purpose of s. 9 is to “protect individual liberty against unjustified state interference” (R v Le, 2019 SCC 34 at para 25,[2019] 2 SCR 692 [Le]). Individual liberty involves physical liberty and mental liberty, including “an individual’s right to make an informed choice about whether to interact with police or to simply walk away” (R v Thompson, 2020 ONCA 264 at para 30, 62 CR (7th)286).

The Supreme Court of Canada originally illustrated these concepts in Grant: [20] Thus, s. 9 guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental libertyby prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification.

Thedetainee’s interest in being able to make an informed choice whether to walk away or speak to the police is unaffected by the manner inwhich the detention is brought about. [12] A detention is not arbitrary if it is lawful, as stated further by the Supreme Court in Grant: [54] The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person’s libertyis not to be curtailed except in accordance with the principles of fundamental justice. As this Court has stated: “This guarantee expressesone of the most fundamental norms of the rule of law.

The state may not detain arbitrarily, but only in accordance with the law”(Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88).

Section 9 serves to protectindividual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20),unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [13] An inquiry under s. 9 involves two questions: (1) was the claimant detained? (2) was the detention arbitrary? (Le at para 29). [14] A detention occurs where the individual has been “taken into effective control of the state authorities” (Grant at para 22).

Butnot every interference with individual rights attracts Charter scrutiny under s. 9. As the Court observed in Grant at para 44, a detentiononly arises where the police suspend an individual’s liberty through “a significant physical or psychological restraint”. Physical detentionis typically clear; being placed in handcuffs or being subject to a body search. Psychological detention is more nuanced. [15] In Grant, the Supreme Court adopted a purposive approach to the definition of ‘detention’ and set out an analytical frameworkfor determining whether an individual was psychologically detained: [44] …

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

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

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

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 16 ] The Supreme Court expounded upon the Grant factors for a psychological detention in Le and R v Lafrance , 2022 SCC 32 , 416 CCC (3d) 183 [ Lafrance ].

When examining the nature of the police conduct an analysis of the entire interaction as it developed is required ( Lafrance at para 36 ): [36] … In Grant , the Court conceived the test for detention so that no single consideration — including a statement from the police that the individual need not speak to them or could leave — would be determinative. Rather, what is required, as the first of these passages also states, is “a realistic appraisal of the entire interaction as it developed” (para. 32 (emphasis added)). [ 17 ] Use of physical contact extends to the physical proximity of police to a subject.

Even where there is no physical contact, deliberate physical proximity within a small space can create an atmosphere that would lead a reasonable person to conclude that leaving is not possible ( Le at para 50; Lafrance at para 41 ). [ 18 ] The continued presence and supervision of others tends to contribute to the perception that a reasonable person is not free to decline to speak or leave. Lafrance at para 44 stated: [44] … The “presence of others” was not a novel consideration in Le . It is one of the factors listed in Grant to evaluate “[t]he nature of police conduct” (para. 44(2)(b) (emphasis added)).

For that reason, the Court, in support of its finding of psychological detention in Grant , pointed to the presence of other police at the time of the encounter (paras. 49-52). [ 19 ] Le and Lafrance also emphasized the importance of considering the particular circumstances of the individual. Grant requires a court to consider the individual’s age, physical stature, minority status and level of sophistication . What a reasonable person may perceive can be influenced by age and the knowledge, life experience and discernment associated with that age group ( Le at para 122).

Youthfulness of early adulthood aggravates the power imbalance between the state and the individual ( Lafrance at para 54 ). [ 20 ] Race and level of sophistication are important aspects of the objective analysis. Intelligence does not connote an understanding of legal rights, which includes the right to refuse to co-operate with the police ( Lafrance at para 61 ).

A lack of experience with police and unfamiliarity with Charter rights can bolster the case for a detention ( Lafrance at para 62 ) while a person who has been stopped by the police on multiple prior occasions would more likely perceive that it is necessary to simply submit to police demands ( Le at paras 109-110). [ 21 ] The factors listed above are to be assessed in light of all the circumstances and are to be considered objectively. The accused bears the burden on a balance of probabilities of demonstrating that they were arbitrarily detained.

The subjective perceptions of the accused about whether or not they were detained may be relevant, but the court should not place undue focus on them in the analysis ( Le at paras 113-116). [ 22 ] I turn now to the accused’s claim that he was arbitrarily detained. a. Was the accused detained?

[ 23 ] The evidence presented in the blended voir dire and trial included video footage from the police in-car cameras filed as Exhibit P-4 which represents the best evidence of the police interaction with the accused that night. The video contains a split screen of the forward-looking camera from the police vehicle that was parked facing the driver’s side of the accused’s vehicle, as well as the camera inside the police vehicle that faced the backseat and captured the police conversations with the accused while he was seated in the back of the police vehicle.

The parties agreed in closing argument that I could consider all of the police video and exercise my discretion to admit evidence from it that contained statements of the accused for the purpose of assessing the constitutionality of the state actions in the Charter application, but not for the purpose of determining the guilt of the accused in the trial proper [1] as a voluntariness voir dire was not held and the Crown was not relying on any of the accused’s statements for the truth of its contents. [ 24 ] The evidence was that when the police arrived at the Shell gas station, they drove past the public gas bays located at the front of the gas station and into the private parking lot that was located behind the gas station.

The police did not have authority from the property owner to be on the private parking lot, nor did they take any steps to obtain permission. [ 25 ] The accused’s vehicle was parked at the back of the parking lot next to a fence separating the gas station from an apartment complex. Cst. Marchiori and Cst. Hungle approached the accused’s vehicle from behind and parked their police vehicle directly facing the front driver’s side of the accused’s vehicle. At the same time, Cst. Doyle and Cst. Martinson parked their police vehicle directly behind the accused’s vehicle.

They ran the plates on the vehicle which returned nothing of concern. [ 26 ] The accused’s vehicle was stationary and idling. The passenger side of the vehicle was up against a concrete parking lot curb and a tall, wood fence. The accused’s vehicle was surrounded on three sides. [ 27 ] The marked police vehicles had their headlights on and one or both of the police vehicles also turned a spotlight on that was shining directly into the accused’s vehicle. Cst. Hungle could see that the accused was sleeping. She testified that as soon as “our lights, kind of, went on him, he lifted his head up”. [ 28 ] Cst.

Hungle and Cst. Marchiori exited their police vehicle and approached on foot to the driver’s side of the vehicle, while Cst. Doyle and Cst. Martinson got out of their vehicle and approached in tandem on the passenger side of the vehicle between the vehicle and the fence. The officers were all dressed in full uniform. They had their flashlights out and turned on. They surrounded the vehicle looking inside the back and front of it with their flashlights as they approached. [ 29 ] The accused yawned and told Cst. Hungle that “he had been sleeping there for quite a while.

He was actually pretty cooperative” and answered all of her questions. At no time did any of the police officers tell the accused that he did not have to co- operate with them and could simply drive or walk away if he wanted. [ 30 ] Cst. Hungle bent over to speak to the accused seated in the driver’s seat, but she did not expressly inform him that he did not have to speak with her and could simply leave if he wanted. She did not even tell him why they were there or that they were responding to a 911 call. The other officers were busy searching the inside of the accused’s vehicle with their flashlights while Cst.

Hungle spoke to him. [ 31 ] It was not until well after Cst. Hungle handcuffed, arrested and placed the accused in the backseat of her police vehicle that she decided at 2:04 a.m. (i.e. 7 minutes after he was placed in the backseat) to provide him with the standard police warning and his right to counsel. Cst. Hungle acknowledged in cross-examination that it was an error not to read him his rights immediately.

The police asked incriminating questions of the accused the entire time he was seated in the backseat of the police vehicle, both before and after he expressly asked to speak to a lawyer twice. [ 32 ] The accused was under no legal obligation to speak to Cst. Hungle.

The issue is whether a reasonable person, in the accused’s circumstances, would have concluded that he had no choice but to speak with police and that he could not simply drive or walk away. [ 33 ] Delving further into the Grant factors and with respect to the circumstances giving rise to the encounter, the police were responding to a call which reported that a car had been parked for some time in the parking lot and the complainant caller could see one

person inside who appeared to be sleeping. There was no report of a crime in progress. There was no report of an impaired driver. There was no known threat to public safety. The police were not investigating a particular crime and they had not been dispatched to a particular offence call. The police were not trying to locate a suspect, and no one was in active danger. [ 34 ] The accused was immediately awakened as a result of the lights from the police vehicles shining directly into his car.

He lifted his head to find two police vehicles strategically parked directly facing his vehicle so that he was nearly boxed in. Four police officers in full uniform got out of their vehicles at the same time. They all descended upon the accused’s vehicle with their flashlights on. Two police officers approached and confronted the accused on the driver’s side of the vehicle, while two other police officers approached and searched along and into the passenger side of his vehicle.

The police were bending over in close proximity to the accused and his vehicle, talking to him and looking into all areas of his vehicle. [ 35 ] These circumstances, taken as a whole, do not suggest the police were providing general assistance; maintaining general order; or making general inquiries regarding a particular occurrence, rather the circumstances considered as a whole are more suggestive of the accused and his vehicle being singled out for an unknown, focused investigation. [ 36 ] The police interaction with the accused on the driver’s side of the vehicle was uneventful. Cst. Hungle and Cst.

Marchiori observed nothing wrong and the conversation with the accused went well. [ 37 ] After approximately 30 seconds into the conversation, Cst. Martinson signaled to Cst. Hungle from the other side of the accused’s vehicle to handcuff the accused. Cst. Hungle advised the accused that he was being detained. As the accused opened the door, Cst. Hungle grabbed his left hand while Cst. Marchiori grabbed his right hand and both officers pulled him out of the vehicle.

They placed him in handcuffs and walked him back to their patrol car. [ 38 ] Only a brief period of time elapsed from when the accused woke up to when he was placed in handcuffs and in the backseat of a police vehicle. [ 39 ] The timing and reasons given by the police officers for the investigation, detainment/arrest of the accused and search of his vehicle were unclear and changing as they gave their evidence. [ 40 ] For example, in direct examination Cst. Martinson provided several reasons for approaching the accused’s vehicle on private property and the events which led to his detainment and arrest.

These reasons included investigating what the occupant of the vehicle was doing; investigating an alleged offence under The Alcohol and Gaming Regulation Act , 1997 , SS 1997, c A-18.011 for open alcohol in the vehicle; officer safety concerns related to the presence of an axe in the vehicle; and a possible impaired driving offence. He did not know when the search started and whether or when the accused had been detained or arrested. [ 41 ] Cst. Hungle, who effected the actual arrest of the accused, was also unclear when the detainment or arrest occurred and her authority for doing so.

She testified that her interaction with the accused was good until Cst. Martinson verbally instructed her to detain him due to the presence of open alcohol in the vehicle. This was consistent with Cst. Doyle’s testimony, but contradicted Cst. Martinson’s own testimony that he did not say anything to her about open alcohol and only motioned to Cst. Hungle to place a handcuff on the wrist of the accused. Cst. Hungle’s testimony was also inconsistent with the police video evidence that shows Cst.

Hungle took the accused to the police vehicle and told him to sit in the back so she “can figure out what’s going on” and closed the door. There was no mention of open alcohol or an axe when he was placed in the backseat. It was only later after Cst. Hungle had spoken with the other officers conducting the search and returned to her vehicle again that she informed the accused that he was under arrest for these developments. [ 42 ] Considering the totality of the evidence, I believe Cst. Martinson that he merely motioned for Cst. Hungle to place the accused in handcuffs. Cst.

Hungle never saw an open bottle of vodka at any time, nor an axe when she ordered the accused out of his vehicle. Up until that time, she had been interacting with a co-operative accused on the driver’s side of his vehicle. Cst. Hungle therefore, had no subjective grounds to detain and/or arrest the accused when she hauled him out of his vehicle and put him in handcuffs and into the backseat of her vehicle. [ 43 ] I find that overall, Cst. Hungle had little knowledge of the circumstances surrounding the detention and arrest of the accused.

She gave evidence on direct examination that she first approached the vehicle to see if the individual was okay and to investigate the situation. She then stated that she detained the accused for open alcohol when she removed him from the vehicle and placed him in the

back of the police vehicle, which I have found to be inaccurate. [ 44 ] On cross-examination, Cst. Hungle stated that she advised the accused he was detained and did so to figure out what was going on, to see if any incident had occurred. When defence counsel then asked if the search of the accused’s vehicle occurred before the accused was arrested, Cst.

Hungle explained that when she placed the accused in the back of the police vehicle, she advised him he was under arrest, even though she did not record this in her police notes or read him his rights and warnings at the time as was her standard practice, because she believed herself and the other officers were just trying to “figure out” “what was going on” at the time. Thus, the accused’s rights were not read to him immediately upon detention or arrest and she acknowledged that this was an error on her part. [ 45 ] I find some of Cst. Hungle’s testimony to be unreliable.

She was unsure of whether and when she detained and formally arrested the accused. Further, she appeared unsure of the grounds for the detainment and arrest as she stated she was just trying to ascertain “what was going on”. [ 46 ] The forward-facing camera in the police vehicle was situated just out of view of the body of the accused’s vehicle so that it was not possible to see the police officers while they conducted their search of his vehicle, except for their silhouettes projected onto the fence beside the vehicle from the police spotlight.

The police search of the vehicle appeared extensive and lasted approximately 25 minutes from 1:56 a.m. until 2:21 a.m. when they decided to take the accused to the police station and lodged him in cells. As the police drove away the camera captures another vehicle, being a truck with a large fifth-wheel camper, parked nearby in the parking lot. [ 47 ] Finally, a court must consider the particular characteristics or circumstances of the accused where relevant, including age; physical stature; minority status; and level of sophistication.

During the police questioning the accused revealed that he was a relatively young single father separated from his 5 year-old daughter. He was homeless and living in his car. He had nowhere to go even if he did want to drive or walk away. When asked why he had an axe in his vehicle, the accused explained that he was living like he is camping right now, and that he had the rest of his camping gear in the backseat of his vehicle. The police found blankets and pillows in the backseat.

Another large camping trailer was parked nearby as noted above. [ 48 ] The accused asked why he was stopped by police if it is not illegal to sleep in a car. Therefore, his subjective perception and belief was that he had been stopped and detained by police that night. The accused also stated that he was getting pulled over every other day by police for nothing.

Multiple recent stops of his vehicle by police only served to reinforce his belief that he had no choice but to submit to their demands. [ 49 ] I will now turn to an analysis of applicable s. 9 case law in Saskatchewan to assist in determining whether and when the accused was detained. [ 50 ] In R v Crowe , 2021 SKCA 66 , 403 CCC (3d) 297 [ Crowe ], the Saskatchewan Court of Appeal addressed the question of whether the trial judge erred in failing to find that Mr. Crowe had been arbitrarily detained contrary to s. 9 of the Charter . Justice Ryan- Froslie stated that the trial judge did not err, and that Mr.

Crowe was not detained prior to his formal arrest at para 54: [54] The police officers did not stop Mr. Crowe’s vehicle; they merely parked behind it. There is no suggestion in the evidence that Mr. Crowe’s vehicle could not be driven away. There was, therefore, no physical detention. The police officers’ purpose in approaching Mr. Crowe’s vehicle was to inquire about the 911 call.

They did not suggest they were aware of any criminal offence having been committed, and they never claimed to have effected an investigative detention as described in R v Mann , 2004 SCC 52 , [2004] 3 SCR 59 ; R v Bramley , 2009 SKCA 49 , [2009] 7 WWR 226 , or Simpson . Further, up until the point when he was arrested, Mr. Crowe had not identified any police conduct, direction or demand that would have caused a reasonable person in his position to conclude he or she was not free to go. Following Mr. Crowe’s arrest, the breathalyzer demand was made. Mr.

Crowe does not suggest the police officers lacked reasonable and probable grounds to make that demand. On the contrary, he freely admits he was intoxicated at the time. In the circumstances, Mr.

Crowe’s s. 9 Charter rights were not breached, and the trial judge did not err in finding that he had not been arbitrarily detained. [ 51 ] In R v Papilion , 2014 SKCA 45 , 438 Sask R 37 [ Papilion ], Justice Herauf commented on the need to determine what a reasonable person would conclude in the state of affairs when he said at paras 31-33: [31] The Supreme Court held that not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter .

In Suberu the Supreme Court held that psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. While Suberu was momentarily "delayed" when the police asked to speak to him, he was not subject to physical or psychological restraint so as to ground the detention within the meaning of the Charter .

[32] Cst. Nordick did not pull over the appellant's vehicle, nor did he engage his police lights. In this case Cst. Nordick pulled in behind a parked car - he did not block the vehicle's exit path. There is no evidence to suggest that a spotlight was placed on the appellant or that Cst. Nordick otherwise indicated that the appellant was specifically under suspicion. [33] In light of the conclusions the Supreme Court reached on the facts in Grant and Suberu , Mr. Papilion was not detained at the point that Cst. Nordick parked his vehicle behind Mr. Papilion's vehicle.

The detention took place no earlier than at the point Cst. Nordick presented himself at the window of the Explorer and began asking questions. A reasonable person at that point would not have felt that they were free to leave. [ 52 ] Crowe and Papilion can be distinguished from this case on its facts. [ 53 ] In Crowe , the nature of the 911 call to police was that the caller requested assistance removing people, who were drinking, from a residence (i.e. trespassing). The police were investigating when they saw the taillights of the accused’s vehicle in a driveway and proceeded to pull up behind it.

The accused immediately got out of his vehicle and walked up towards a house. The accused was staggering and unsteady on his feet. The officer approached the accused to talk to him and detected a strong smell of beverage alcohol. It was during this period of observation that the officer formed the opinion that the accused was impaired by alcohol. The police did not stop the accused’s vehicle and did not detain the accused until they observed indicia of impairment.

Further, there was no spotlight, flashlights or search of the accused’s vehicle. [ 54 ] In Papilion , the officer did not pull over the accused or engage his police lights. There was no spotlight used, no indication by the officer that the accused was specifically under suspicion and all of the interactions took place on public property, on a roadway. [ 55 ] The police conduct in this case was much more aggressive, authoritative and intrusive than the police conduct in Crowe and Papilion .

Here, the accused was not free to leave when multiple police vehicles pulled up and positioned their vehicles tactically, in such a certain way that he was almost boxed in on all sides and unable to leave. Their headlights and spotlight were shining specifically at and into the accused’s vehicle. The accused was awoken and further detained when multiple police officers exited their vehicles, all at the same time, and converged on the accused’s vehicle. The police had their flashlights out and were peering into both sides and all areas of his vehicle, all of which occurred on private property.

The police actions in this case demonstrate that they were exerting dominion over the accused and his vehicle. The police were engaged in an unknown investigation which related to a complaint about a car being parked in a parking lot with an occupant inside, which is not a criminal offence. [ 56 ] In all these circumstances, I am satisfied that a reasonable person imbued with the accused’s personal circumstances and history would have concluded that he had no choice but to speak to Cst. Hungle when she approached his driver’s side door, and that he had no choice to simply walk or drive away.

At no time did the police tell him he could leave or even why they were there in the first place until well after they had already searched his vehicle, seized the items and read him his rights and warning. The evidence suggests that the accused was the subject of an unknown, focused investigation based on the coercive and threatening nature of the police conduct. I am satisfied that there was a psychological detention, absent physical detention. b.

When was the accused detained? [ 57 ] I find that the detention crystalized when the accused became fully conscious after awakening from his sleep, which occurred when the police officers pulled up, got out of their vehicles and approached his vehicle. [ 58 ] I must now determine whether the detention was not arbitrary and therefore lawful. c.

Was the detention arbitrary? [ 59 ] Police are entitled at common law to “detain an individual for investigative purposes if there are reasonable grounds to suspect in all of the circumstances that the individual is connected to a particular crime and that such detention is necessary” ( R v Mann , 2004 SCC 52 at para 45 , [2004] 3 SCR 59 [ Mann ]; R v MacKenzie , 2013 SCC 50 at para 38 , [2013] 3 SCR 250). Thus, a brief investigative detention based on a “reasonable suspicion” is lawful. But, where the police do not have a “reasonable suspicion” that the

person is involved in a recent or ongoing criminal offence, the detention is not lawful and is therefore arbitrary and in breach of s. 9(Grant at para 33). [60] The detention must be reasonably necessary to investigate the crime, but investigative detention cannot be exercised on ahunch or become a de facto arrest (Mann at para 35). In addition, a constellation of factors will not be sufficient to ground suspicionwhere it amounts to only a generalized suspicion (R v Chehil, 2013 SCC 49 at para 30, [2013] 3 SCR 220 [Chehil]). A sufficientlyparticularized constellation of factors is required.

Generally, characteristics that apply broadly to innocent people are insufficient (Chehilat para 31). [61] The Crown did not argue that this was valid traffic stop under The Traffic Safety Act, SS 2004, c T-18.1 for good reason. Theaccused’s vehicle was not parked in a public parking lot or on a public roadway and even if it had been, the manner in which this stopand search proceeded far exceeded any of the lawful purposes for a random stop under s. 209.1 of the Act, being to check for sobriety,licence, ownership, insurance and mechanical fitness of the vehicle (R v Lux, 2012 SKCA 129, 295 CCC (3d) 236 [Lux]).

Further, evenif the accused’s vehicle had recently been on a public roadway or was about to enter a public roadway, there were still no grounds tosuspect that an offence had been or was about to be committed to justify an investigative detention and search on private property (R vMcColman, 2021 ONCA 382, 407 CCC (3d) 341 [McColman]). [62] McColman is a recent decision of the Ontario Court of Appeal that contains a comprehensive review and analysis of thestatutory and common law powers of police to conduct random vehicle stops on private property. [63] In McColman, the police were conducting general patrol in the early morning hours when they noticed a vehicle parkedoutside a gas station and restaurant.

They decided to follow the vehicle when it left the parking lot. The police did not see any signs ofimpairment and there was nothing unusual about the manner of driving on public roads. The driver pulled into the driveway of hisparents’ house where the police stopped the vehicle for the purpose of determining whether he was driving under the influence of drugsor alcohol. Immediately upon approaching the driver, the officer noted that the driver was impaired. [64] The Ontario Court of Appeal determined that neither the Ontario Highway Traffic Act nor the common law authorized thepolice conduct in that case.

The police were not acting pursuant to lawful authority at the moment when they conducted the stop sincethe vehicle was not on a highway at the time and Mr. McColman was, therefore, not a driver under s. 48(1) of the Act. The Crown alsohad not met its onus of demonstrating that detaining an individual on private property without any suspicion of wrongdoing wasreasonable or necessary. [65] There were other options available to the police. They could conduct a random stop under s. 48(1) as soon as the vehicleentered the highway.

They could observe the driver without detaining them, and based on those observations, develop a reasonablesuspicion that would give them a basis to detain. As police did not have the authority to randomly check the sobriety of the driver on hisprivate property, the stop was unlawful. The stop violated s. 9 of the Charter and the evidence was properly excluded.

The intrusivenature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion ofimpairment, overrode the public interest in the admission of evidence. [66] McColman was released two months after Crowe.[2] The Saskatchewan Court of Appeal based its decision in Crowe insteadon obiter from an earlier decision of the Ontario Court of Appeal in R v Lotozky (2006), (ON CA), 210 CCC (3d)509 (Ont CA) [Lotozky] that suggested the police have unrestricted ingress onto private driveways (Crowe at para 45).

Such reasoning inLotozky was distinguished and displaced by McColman at para 41. [67] There are sound public policy reasons behind decisions such as McColman, Lux, Le and R v Evans, (SCC),[1996] 1 SCR 8 [Evans]. Property is a bundle of rights. The property a person makes or possesses can be an extension of one’s self.

Thus, personal property can be a form of expression or physical manifestation of an individual’s liberty, freedom and security.Constraints must be maintained against state incursions into all aspects of these rights without good reason. [68] Some other case law dealing specifically with police stops in private parking lots is as follows: - The Saskatchewan Court of Queen’s Bench found the detention in R v Byrne, 2015 SKQB 111, 471 Sask R 82 was arbitrarybecause the accused was parked in a private parking lot and there was no evidence the accused’s vehicle had either been on a highway orwas going to enter a highway and the accused was not being investigated for a specific traffic safety requirement under The Traffic Safety

Act , SS 2004, c T-18.1 . While a police officer is entitled to enter into an investigation for a specific highway traffic safety violation, there was no such violation in this case. - In R v Phillips , 2021 ONSC 5343 , 74 CR (7 th ) 121 after finding a detention, the court rejected an argument that the accused could have been legally detained in a townhouse parking lot pursuant to the Ontario Trespass to Property Act because there was no reasonable or probable grounds to suspect the accused was trespassing as the police were on proactive patrol and had not been called to the scene of a trespass.

No one spoke to the property owner or advised them that the accused was trespassing. Thus, the detention in this case, which began from the time the police parked their vehicle behind the accused’s car and up until they saw cannabis in the vehicle, was not lawful. The investigative detention which took place after the officer saw cannabis in the vehicle until the accused’s arrest was lawful under s. 9. However, there also were violations of ss. 10(

a) and (

b) as the accused was not advised of the reason, nor given a right to retain and instruct counsel upon detainment. The breaches were serious and brought the administration of justice into disrepute. The evidence was excluded. - In R v Tutu , 2021 ONCA 805 , 75 CR (7 th ) 321 , the Ontario Court of Appeal held that when the officer came to the driver’s side window of a car parked in a hotel parking lot, after blocking the car and preventing it from leaving, he effectively detained the appellant. This situation would lead a reasonable person in the appellant’s position to conclude that he was not free to go.

The detention was arbitrary and therefore a breach of s. 9 of the Charter because at that point, there was no reasonable suspicion of criminal conduct. The court further noted that the police conduct was authoritative from the outset, the police cruiser was marked and the police officer was in uniform. [ 69 ] In this case, there was no clear basis for reasonable grounds to suspect that the accused was connected to any crime or that a crime was going to be committed.

The receipt of general information that someone is sitting in a car in a parking lot does not, without more specificity, give rise to a suspicion or even a hunch in relation to recent or ongoing criminal activity. There was no clear nexus between the accused and an on-going offence. The police were intruders and trespassers on private property. [ 70 ] The implied licence doctrine allows police, or any member of the public, on legitimate business, to proceed from the street to the door of a house so as to permit convenient communication with the occupant of the dwelling.

In this case, the police did not approach a dwelling or the vehicle just to speak with the occupant. If they were only interested in speaking to the driver, their interaction would have concluded quickly when Cst. Hungle spoke to the accused and immediately realized he was fine and nothing was wrong. [ 71 ] Instead, multiple other police officers converged on both sides of the accused’s vehicle peering and prying into it with no regard for communication with the accused or his welfare, except to search his vehicle.

The police had a subsidiary purpose when they stopped and approached the accused’s vehicle - a speculative criminal investigation – the purpose of which was to obtain or secure evidence that exceeded the authorizing limits of the implied licence doctrine to merely communicate with the occupant of the vehicle. [ 72 ] The police could have parked their vehicles in a less alarming manner and approached the vehicle in a less overwhelming and intrusive fashion to speak with the driver to ascertain if he was okay or in need of assistance.

Alternatively, the police could have observed the vehicle and sleeping driver to determine more information regarding the nature of the 911 call and whether there was any distress. [ 73 ] Since there was no statutory or common law power that authorized the accused’s detention when the police surrounded and approached his vehicle late at night in a private parking lot, the detention was arbitrary and unlawful in violation of s. 9 of the Charter .

Section 8: Unreasonable Search or Seizure [ 74 ] The second issue to be decided is whether the accused’s right to be secure against unreasonable search or seizure was infringed contrary to s. 8 of the Charter . [ 75 ]

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

[76] The purpose of s. 8 is to protect the privacy of individuals from state intrusion. A s. 8 analysis has two steps:

(1) Has therebeen a search or a seizure?

(2) If so, was the search or seizure reasonable? [77] I therefore must determine if there has been a search in this case and if so, when the search first began. a. Was there a search? [78] A search is a “state invasion of a reasonable expectation of privacy”. (R v M.(A)., 2008 SCC 19, [2008] 1 SCR 569 cited inR v MacDonald, 2014 SCC 3 at para 25, [2014] 1 SCR 37 [MacDonald]). The common law power of investigative detention authorizes alimited search for safety purposes in a limited circumstance.

That circumstance is that the officer must believe on reasonable grounds thathis or her own safety or the safety of others is imminently at risk (Mann at para 40). [79] Thus, any state activity that interferes with a reasonable expectation of privacy constitutes a search. As stated in R v Turpin,2010 SKQB 444, 365 Sask R 67: [54] The accused’s right to challenge the legality of the search and seizure under s. 8 of the Charter depends upon his ability toestablish that, on an assessment of the totality of the circumstances, he had a reasonable expectation of privacy in the place searched orthe items seized.

If he cannot establish that reasonable expectation of privacy, he cannot obtain a ss. 24(2) remedy (R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341 (S.C.C.) at paras. 19-20). [80] The law for determining the existence of a reasonable expectation of privacy was outlined in my decision of R v Peequaquat, 2018 SKPC 16 at paras 17-20, 410 CRR (2d) 183; affirmed 2020 SKQB 2, 55 MVR (7th) 21 [Peequaquat]: [17] There is no definitive list of factors that must be considered in assessing the “totality of circumstances”.

The relevant case law,however, provides useful guidance in the form of a non-exhaustive list of factors that are potentially relevant (Cole at para 45). [18] No single factor is determinative of the issue whether a reasonable expectation of privacy exists or not. The presence or absenceof any one factor should not be used to quickly undermine the protections afforded by

section 8 to the values of a free and democraticsociety. All the factors must be weighed and balanced together to determine whether a reasonable expectation of privacy exists in thecircumstances of each case. [19] In R v Edwards, (SCC), [1996] 1 SCR 128 [Edwards] the Supreme Court of Canada provided a list of factorsto be considered in assessing the “totality of circumstances” at para 45: 45 … 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v. Gomez, 16 F. 3d 254 (8th Cir. 1994), at p. 256. [20] The first five factors in Edwards concern the place where the state intrusion occurred.

Additional factors to be considered whendealing with a spatial or territorial privacy right of this nature include: 1. whether the subject matter was in public view (R v Tessling, 2006 SCC 67 at para 40; R v Stillman, (SCC),[1997] 1 SCR 607 [Stillman] at paras 62, 226; R v Evans, (SCC), [1996] 1 SCR 8 [Evans] at para 50);

2. obstacles or barriers to entry; 3. invasiveness of the technique (Stillman at paras 45-46, R v Higgins, (SCC), [1988] 2 SCR 387; R v Saeed, 2016SCC 24 , [2016] 1 SCR 518 at para 49); and 4. purpose of the intrusion (R v Patrick, 2009 SCC 17 , [2009] 1 SCR 579 at para 38; R v Colarusso, (SCC), [1994] 1 SCR 20 at 53; Evans at para 11) [81] In Peequaquat, I found that a driver had a reasonable expectation of privacy when seated in his vehicle parked on a privatedriveway and that the police entry onto the driveway without reasonable suspicion constituted a search and violation of s. 8 of theCharter (See: Peequaquat at paras 56-58). [82] I will now address the question of whether the accused in this case had a subjective expectation of privacy when seated in hisvehicle parked in a private parking lot and whether the subjective expectation of privacy was objectively reasonable. i.

Subjective Expectation of Privacy [83] Individuals have a reasonable expectation of privacy in their personal vehicles, but that expectation of privacy is relativelylower than the reasonable expectation of privacy that people have in their homes (R v Mellenthin, (SCC), [1992] 3 SCR615; R v Wise, (SCC), [1992] 1 SCR 527). However, the reasonable expectation of privacy attaches to the person – notto the vehicle itself. Drivers will invariably have such an interest in privacy when they are in their own vehicles. [84] In this case, the driver had no home and was living in his vehicle.

His privacy interest was heightened because he was usinghis vehicle as his home. All he had was his car and he was living like he was camping at the time. The homeless are an historicallyvulnerable and disadvantaged group in society worthy of protection. [85] The accused was not driving or a ‘driver’ of the vehicle on a public roadway or on public property. He was a homeless personresiding in his vehicle on private property. This is a qualitatively different subjective perception. He also told the police that he did notconsent to them searching his vehicle.

One should not have a lesser expectation or right to privacy because of homelessness or theinability to afford housing or own private property. Thus, an unhoused individual who lives in their car and chooses to park their vehicleon private property at night to sleep has a subjective expectation of privacy. ii. Objective Expectation of Privacy [86] Determining whether a subjective expectation of privacy is objectively reasonable is a highly contextual analysis and dependson the nature and circumstances of the state intrusion.

In this case, the state intrusion occurred on private property, behind a commercialbusiness, where the accused had parked his vehicle that he owned and was registered to him, to sleep for the night. [87] The vehicle was not parked on a public roadway or on public property. It was not accessible to the public except for a limitedpurpose other than passage (i.e. private parking) akin to the driveway of a house (see: Lux; McColman at paras. 33-35).

While thesecircumstances are not analogous to the privacy enjoyed sleeping in one’s home, I find that there is still a relatively high expectation ofprivacy when someone parks their vehicle in the back of a private parking lot next to a fence to sleep at night. As mentioned above, it isnoteworthy that there was another truck and fifth wheel camper parked nearby for the night. [88] The initial inspection began when the police officers entered onto private property to observe the accused’s vehicle.

Theintrusion on the accused’s privacy became elevated when the officers parked their vehicles tactically pointing at the accused’s vehicle sothat he was essentially boxed in. They pointed their headlights and spotlight at the accused’s vehicle and woke him up. [89] The police exited their marked vehicles while in uniform with their flashlights out and illuminated. All four officersapproached the car at the same time, two on the driver’s side and two on the passenger side, and looked into all areas of his vehicle andhis personal belongings.

[90] Considering the pronouncements in The Regional Municipality of Waterloo v Persons Unknown and to be Ascertained, 2023ONSC 670 [Waterloo], a recent decision of the Ontario Superior Court of Justice regarding the Charter rights of people experiencinghomelessness and their pursuit of shelter, Justice Valente stated at para 101: “... creating shelter to protect oneself is, in my opinion, amatter critical to any individual’s dignity and independence.” The police detention of the accused arguably interfered with his choice toprotect himself from the elements, his independence and his dignity.

Thus, in these circumstances, the accused’s subjective expectationof privacy was objectively reasonable. [91] The Crown posits that the circumstances leading the police to use their investigative powers must also be examined in thesecircumstances. There was a 911 call made by a complainant, who had no property rights or connection to the gas station, that reported acar being parked for some time with one person inside. The nature of the call was rather vague. No crime was alleged to have beencommitted, nor was there a report that a crime was about to be committed.

No one was in active danger. [92] The leading authority on the common law duty of police to investigate 911 calls is R v Godoy, (SCC),[1999] 1 SCR 311 where Chief Justice Lamer, writing for the Supreme Court, carefully circumscribed the scope of authority granted topolice officers when entering private property to determine whether life or property is in danger, as follows: [22] … However, I emphasize that the intrusion must be limited to the protection of life and safety.

The police have authority toinvestigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide suchassistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not havefurther permission to search premises or otherwise intrude on a resident’s privacy or property. [93] Thus, police must respond to the 911 call accordingly, and follow ordinary police powers of investigation.

The police have theability and authority to investigate the 911 call and their purpose for investigating the 911 call is to protect life and safety, and, ifapplicable, locate the caller and provide aid. However, just because a complaint is generated through 911, the police are not permitted toengage different investigative powers. Rather, it is the nature of the call that allows police to exercise their powers. The court in R v Roy,2019 ABPC 251 addressed the way that complaints come to police attention at para 24: [24] … A call made to the 911 service may, or may not, involve an imminently dangerous situation.

If it does so, then that element ofthe situation provides some relevant context for a determination of whether the arresting officer’s belief was reasonable. However, if acall for service is made to the 911 service, but the report made does not have elements of public or officer safety, then the mere fact thatthe caller accessed the police through the 911 service does not mean that the considerations which are applied in a genuine dynamic anddangerous situation are then invoked.

The facts of the situation as understood by the officer are determinative; not the telephone numberdialed by the person contacting the police. [94] In this case, the facts of the situation indicate that it was neither an emergency nor a distress call and there was no element ofpublic or officer safety. The police had a duty to investigate, but the context was that a person was sleeping in their car.

R v Ahmed-Kadir, 2015 BCCA 346, 327 CCC (3d) 33 addressed the requirement that police evaluate the nature of the complaint: [62] It is clear the police have the power, at common law, to conduct warrantless searches to ensure their own safety and the safety ofothers. It is also clear the exercise of that power within the limits of the common law will not infringe s. 8 of the Charter. However,there is no separate search doctrine applicable to 9-1-1 calls.

Rather, when in the course of responding to a 9-1-1 call the police conducta warrantless search, the nature of the call will be a factor in determining whether that power was validly exercised. [95] In argument, Crown counsel emphasized that police are obligated to respond to 911 calls and that the evidence of the threeofficers was such that they did not know if the accused was in distress when they approached his car. The police did not know what theywere walking into; so, they were going to check on the driver.

The Crown posits that because the police do not know if they areresponding to a possible distress situation, they have unfettered discretion in the manner they approach the vehicle and its occupant.Crown counsel referred to excerpts from the transcript of each officer’s testimony in direct examination as to why they approached theaccused’s vehicle. Their responses to that question, generally, were as follows: • Cst. Hungle: “When we had all four of our officers were there. The male had his head down, so we just decided to approach, toaid, and make sure that he was okay.

And to see if -- what -- why he was there and just, kind of, the situation.” • Cst. Martinson: “We wanted to investigate what the occupant of the vehicle was doing. If they were possibly in distress. There’smany times where we get called that people are passed out or in medical emergency inside their vehicle. We thought that might be thecase with this one.” • Cst. Doyle: “Because the call came in as a suspicious person -- a suspicious vehicle, sorry. When we pulled up, it was -- it was

relayed to us that it was a male in the driver’s seat and he appeared to be asleep. So we approached the vehicle to check on the male and just check -- check on the vehicle in general.” [ 96 ] The Crown’s position cannot be supported in fact or law. I will explain why. Above, we see three officers testify differently as to their reason for approaching the accused’s vehicle. This leads me to conclude that the officers did not know what they were responding to. In cross-examination, the officers confirmed they were not responding to a crime in progress, a threat to public safety, and no one was in active danger.

Yet, the officers approached the accused, and his vehicle, in an intimidating, authoritative and oppressive manner and immediately commenced a search. [ 97 ] The moment the police dash camera footage begins it shows the police already engaged in a physical search of the accused’s vehicle with their flashlights. The police dash camera video commences 30 seconds before the accused was placed in the backseat of the cruiser, which according to Cst. Hungle’s time estimate would have been just after she began interacting with him.

The officers themselves were unclear in their evidence when the search started – whether it was before or after the accused was placed in the police vehicle. [ 98 ] Second, the complainant caller stated a car had been parked in the parking lot and it had been there for quite some time. The vehicle was running and the caller could see one person inside. This information was provided to the officers and there was nothing in the complainant’s call which suggested anyone was in distress or something criminal was occurring.

Sleeping in one’s car is not a criminal offence. [ 99 ] Finally, based on the officers’ evidence, they continued to be uncertain about what they were investigating and what grounds they had to detain and arrest the accused after they approached his vehicle. This is illustrated in the cross-examination of Cst. Hungle, which I have reproduced below from the trial transcript, starting at page 35 line 7: Q: So you were advised by Constable Martinson to detain Mr. Anderson for an open alcohol investigation. And we’ve just watched a video, in which we were able to see you state to Mr.

Anderson, as you put him in the police car, that you were going to be figuring out what’s going on. A: Hmm. Q: What did you need to figure out at that time? A: At that point -- so I would’ve advised him that he was detained once we got him out of the vehicle, walked him back to the patrol car. Just to figure out what’s going on, just to see if there was any sort of incident that occurred. And I know he stated to me that he was camping, so to just kind of figure out if that axe was an issue or not or… Q: What did – A: And I didn’t specifically see the alcohol.

So we would’ve spoken to -- I would have spoken to Constable Martinson. [ 100 ] The officers on the passenger side of the vehicle observed a mickey bottle of vodka laying in or on a backpack inside the vehicle when the decision was made to haul the accused out of his car, handcuff him and put him in the backseat of the police car. The evidence does not support the inference that the police were responding to or investigating someone in medical distress or that someone’s safety was threatened.

In fact, the officer’s interaction with the accused was riddled with uncertainties about what was going on, which must be considered along with the fact that there was no indication of distress or that a crime was being committed or was going to be committed when the complainant caller phoned 911.

These facts alone suggest that it would be inappropriate to approach the accused’s vehicle in such a controlling, threatening and invasive manner, and certainly, the police did not have grounds to begin an immediate search. [ 101 ] I will now situate these facts within the law. [ 102 ] The police responded to the 911 complaint call on private property knowing that no one was in active danger and no crime was

being committed. Nonetheless, the law still permits police an implied licence to approach and/or knock on private property; this licencepermits the police to respond to the 911 complaint call and approach the occupant of the vehicle to communicate with them. Doing sowill not constitute a s. 8 breach as long as the police conduct does not go beyond what is permitted by the implied licence. [103] The limits of the implied licence were stated by the Supreme Court in Evans: [18] … As stated above, the implied licence to knock extends only to activities for the purpose of facilitating communication with theoccupant.

Anything beyond this "licensed purpose" is not authorized by the implied invitation. [104] And in MacDonald at para 26: [26] … But “[w]here the conduct of the police . . . goes beyond that which is permitted by the implied licence to knock, the implied‘conditions’ of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwellingas an intruder” (Evans, at para. 15). In such circumstances, the police action constitutes a “search”. [105] Cst. Hungle testified that she approached the accused at his driver’s side door and spoke to him to see if we was okay.

Theaccused was cooperative and chatted with her. She would have quickly realized that he was fine. Their conversation went well and sheobserved nothing wrong. The most favourable

interpretation of Cst. Hungle’s evidence is that she was engaged in the type of activityEvans contemplates as permissible when police need to facilitate communication with the occupant of a vehicle, which should haveconcluded the police mandate then without any further detention, search or seizure having taken place. [106] However, Cst. Hungle’s conversation with the accused did not occur in a vacuum. Their communication was preceded by twopolice vehicles parking directionally at the accused and shining a spotlight into his vehicle.

It was also accompanied by three other policeofficers surrounding the accused’s vehicle in a coordinated approach with flashlights, two on the driver’s side and two on the passengerside, peering everywhere into the vehicle. The conduct of the police went far beyond what is permitted by the implied licence toapproach and communicate, the purpose of which would have been to ascertain if the driver was okay. The officers on the passenger sideof the vehicle took no interest in the accused or his welfare.

Their purpose should not have been to search the vehicle to obtain or secureevidence of speculative criminal activity, because the 911 complaint was not about a crime or threat to public safety. [107] Considering the nature of the call in these circumstances, I must reject the Crown’s argument that the officers were engaged intheir common law duty to investigate 911 calls when the officers pulled up, surrounded and immediately began searching the vehicle.

Acomplaint about a vehicle parked in a private parking lot does not authorize police to use broad powers to enter onto private property anddisregard common law police investigative powers based on reasonable suspicion and reasonable grounds. b. When did the search begin? [108] In the totality of the circumstances of this case, I find the accused had a reasonable expectation of privacy while sleeping in hisvehicle in the parking lot.

The police interfered with his privacy when they entered onto private property and converged on his vehicle toobtain evidence for an unknown, focused investigation using four uniformed police officers, two police vehicles, a spotlight andflashlights, thereby constituting a search. [109] Because I have determined that a search occurred when police stopped and approached the accused’s vehicle, I must nowdetermine whether the search was reasonable. c. Was the search reasonable? [110] The search here was without a warrant and therefore, it is presumptively unreasonable.

The Crown bears the onus of rebuttingthe presumption, on a balance of probabilities, and establishing that the search was authorized by law, the law itself is reasonable and themanner of the search was reasonable (R v Collins, (SCC), [1987] 1 SCR 265 at para 23). [111] The Crown submits that the search of the accused’s vehicle was authorized by law because it was undertaken incidental toarrest. As explained in the s. 8 analysis above, the accused’s unlawful detention and search were contemporaneous.

The search beganwhen the police officers pulled up to the accused’s vehicle virtually boxing him in with their vehicles, shining their vehicle headlights

and spotlight into his vehicle so they could see inside of it. The search escalated when multiple officers got out of their vehicles and simultaneously approached looking into the vehicle with their flashlights.

This all occurred well before the police spotted the mickey bottle of vodka giving them any grounds for arrest and the search was therefore, not incidental to his arrest. [ 112 ] Any inquiry into whether police actions are authorized at common law and the limits of police authority to interfere with a person’s liberty or property requires an application of the ancillary powers doctrine, also known as the Waterfield test from R v Waterfield , [ 1964] 3 All ER 659 at pgs 660-62. The Supreme Court of Canada revisited the ancillary powers doctrine in Fleming v Ontario , 2019 SCC 45 , [2019] 3 SCR 519.

The principles to apply and the analytical stages of this doctrine are stated at paras 45-48: [45] The basis of the doctrine is that police actions that interfere with individual liberty are permitted at common law if they are ancillary to the fulfillment of recognized police duties.

Intrusions on liberty are accepted if they are reasonably necessary — in accordance with the test set out below — in order for the police to fulfill their duties. [46] At the preliminary step of the analysis, the court must clearly define the police power that is being asserted and the liberty interests that are at stake ( Figueiras v. Toronto Police Services Board , 2015 ONCA 208 , 124 O.R. (3d) 641 , at paras. 55-66 ). The ancillary powers doctrine comes into play where the power in issue involves prima facie interference with liberty.

The term "liberty" here encompasses both constitutional rights and freedoms and traditional common law civil liberties (see Clayton , at para. 59; Figueiras , at para. 49 ). Once the police power and the liberty interests have been defined, the analysis proceeds in two stages:

(1) Does the police action at issue fall within the general scope of a statutory or common law police duty?

(2) Does the action involve a justifiable exercise of police powers associated with that duty? ( R. v. MacDonald , 2014 SCC 3 , [2014] 1 S.C.R. 37 , at paras. 35-36 ; Reeves , at para. 78) [47] At the second stage of the analysis, the court must ask whether the police action is reasonably necessary for the fulfillment of the duty ( MacDonald , at para. 36 ).

As this Court stated in Dedman : The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35] In MacDonald , the majority of the Court set out three factors to be weighed in answering this question: 1. the importance of the performance of the duty to the public good; 2. the necessity of the interference with individual liberty for the performance of the duty; and 3. the extent of the interference with individual liberty. [para. 37; citations omitted.] [48] Throughout the analysis, the onus is always on the state to justify the existence of common law police powers that involve interference with liberty. [ 113 ] Police will have overstepped their common law authority if their acts are not authorized by common law or statute and are neither necessary nor reasonable in the given situation.

I have found that the search of the accused’s vehicle was done without any valid, articulatable cause, thus there was no grounds to arrest the accused and search the accused’s vehicle incident to arrest. Furthermore, having previously found that the detention of the accused was unlawful, the search incidental to his detention is necessarily unlawful, as it would not have occurred at all if he had not been arbitrarily detained. [ 114 ] In

summary, I find the police search was unreasonable and a violation of s. 8 of the Charter . 3. Section 24(2): Remedy [ 115 ] The third issue to be determined is the appropriate remedy for the Charter breaches.

[ 116 ] Section 24(2) of the Charter provides that: Exclusion of evidence bringing administration of justice into disrepute

(2) Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 117 ] The purpose of the

section is to maintain the reputation of the justice system, including the investigation of crime, the rule of law and upholding the Charter . [ 118 ] The Supreme Court of Canada set out a three-part analysis for determining whether evidence should be excluded in Grant . In order to determine whether the alcohol, knives, axe, electronics, firearm and ammunition that were seized ought to be excluded under the section, I must assess and balance the effect of admitting this evidence on society’s confidence in the justice system, having regard to three things: a.

The seriousness of the Charter -infringing conduct by the police; b. The impact of the breach on the Charter -protected interests of the accused; and c. Society’s interest in the adjudication of the case on its merits. [ 119 ] I will now consider each of these factors in turn. a. How serious was the police conduct? [ 120 ] The general inquiry under this heading is whether or not the admission of the evidence would bring the administration of justice into disrepute by sending a message that the court condones such unlawful conduct or behaviour by police.

In general, the more severe or intentional are the state actions that resulted in the Charter breaches, the greater the need for the courts to distance themselves from such actions. [ 121 ] The breaches that occurred in this case are concerning. The officers were of the view that they could immediately detain the accused and search his vehicle parked on private property without grounds, simply because someone had reported that a car had been parked there for some time with a person inside. The police did not receive a report of a crime in progress or that a crime was about to be committed.

While the police have a duty to investigate 911 calls, the nature of the call must be considered in that response. A police badge is not a free pass to enter onto and search private property whenever and however the police want. The homeless accused had a reasonable expectation of privacy in his vehicle parked on private property and the police conduct was too authoritative and domineering in this case. [ 122 ] The police did not advise the accused why they were there, nor why he was detained without delay. The accused was co- operative with Cst.

Hungle, who physically removed him from his vehicle and placed him in handcuffs in the back of her police vehicle, yet she could not clearly or reliably explain her reasons for detaining or arresting the accused. [ 123 ] Cst. Hungle had not seen any open alcohol or weapons when she ordered the accused out of his vehicle.

Further, the police officers did not have reasonable grounds to believe their safety was in danger, especially once the accused was handcuffed and placed in the back of the police vehicle. [ 124 ] The police did not inform the accused of his right to legal counsel or provide him with a police warning for over 7 minutes after he had been detained and during which time he sat in the back of the police car answering all of their incriminating questions. The police also did not hold off on questioning the accused, even after he asked to speak to a lawyer twice.

[125] The police might not have acted in bad faith, but their conduct certainly was brazen. They displayed ignorance or carelessnesstowards basic Charter rights and standards. The breaches were not merely technical or insignificant. This point was similarly illustratedby the British Columbia Court of Appeal in another case involving a seized firearm of R v Dhillon, 2012 BCCA 254, 291 CCC (3d) 93[Dhillon] where Justice D. Smith stated: [76] In my view, the Charter-infringing conduct in this case was serious.

Proceeding with a search in the admitted absence ofreasonable grounds and without a valid consent (the requirements of which had been well established for at least 12 years) does notdemonstrate good faith. Absent exceptional circumstances, deliberate, negligent or willfully blind state conduct does not equate withgood faith (Grant at para. 75) and the impugned conduct cannot be justified. [77] The effect of the state’s non-compliance on Mr. Dhillon’s Charter-protected interests was also, in my view, significant.

Even asearch of a motor vehicle, where there is a reduced expectation of privacy, cannot be justified where there are not reasonable grounds orvalid consent for the use of that police power. As was noted in R v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, one of the threecompanion decisions to Grant: [31] … being stopped and subject to a search by the police without justification impacts on the motorist’s rightful expectation ofliberty and privacy in a way that is more than trivial.

As Iacobucci J. observed in Mann, the relatively non-intrusive nature of detentionand search “must be weighed against the absence of any reasonable basis for justification” (para. 56). [Emphasis in original] [126] An unlawful detention and warrantless search occurred on private property without articulated grounds. The officers ought tohave known they were not entitled to detain or search the accused having not seen him on a public highway and having not received areport of a crime or that someone was in active danger.

The cumulative effect of the state conduct that led to the breaches is on the higherend of the scale of seriousness. I find this factor militates strongly towards exclusion of the seized evidence. b. What was the impact on the accused? [127] The approach to this line of inquiry is found at paras 76-78 of Grant: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. Itcalls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

The impact ofa Charter 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. [77] To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed rightand examine the degree to which the violation impacted on those interests.

For example, the interests engaged in the case of a statementto 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, atpara. 44.

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring theadministration of justice into disrepute. [78] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and morebroadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation ofprivacy, or that demeans his or her dignity, is more serious than one that does not. [128] The purpose of s. 8 is to protect an individual’s privacy from state intrusion by guarding against unreasonable search andseizure, while the purpose of s. 9 is to protect individual liberty against unlawful state interference. [129] Citizens, including those who do not have the good fortune of having a place to call home, have the right to move around freely.The police detention of the accused impacted not only his privacy and dignity but also his personal autonomy and integrity.

As stated byMadam Justice Ross in Victoria (City) v Adams, 2008 BCSC 1363 at para 194, [2009] 4 WWR 303 [Adams]: “…sleep and shelter arenecessary preconditions to any kind of security, liberty or human flourishing.” [130] The ability to provide adequate shelter for oneself is a necessity of life that falls within the right to life protected by s. 7 of theCharter (Waterloo at para 96). Thus, people experiencing homelessness are entitled to some privacy and dignity in places where they

seek sleep and shelter. When they are removed against their will, they experience a level of loss, trauma and hopelessness. The jurisprudence cited above recognizes the mental health impacts and harms associated with the homeless being displaced and othered. [ 131 ] To assess the impact of the breaches on the accused’s Charter -protected interests, Chief Justice McLachlin stated in R v Harrison , 2009 SCC 34 , [2009] 2 SCR 494: [28] This factor looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(

s) infringed? Or was the breach merely transient or trivial in its impact? These are among the questions that fall for consideration in this inquiry. [ 132 ] The breach of the accused’s right to be free from unreasonable search and seizure and to not be arbitrarily detained had a serious impact on his privacy rights. The homeless accused has a relatively high expectation of privacy when sleeping in his vehicle parked on private property. [ 133 ] The police search did not begin only after they woke and physically removed him from the vehicle and entered the vehicle themselves.

It began well before when police entered onto the property, stopped their police vehicles and shined their spotlight into the accused’s vehicle. This coincided with when the detention began. [ 134 ] The detention and search escalated when all four officers got out of their vehicles at the same time and took a coordinated approach on foot towards the accused’s vehicle. They surrounded the vehicle using their flashlights to look into all areas of the vehicle while simultaneously questioning the accused.

This is much more excessive than a plain view search of the accused. [ 135 ] The officers determined that it was appropriate to unlawfully detain the accused and proceed with an invasive search of his vehicle, including into areas deep between the seats and not plainly visible, all while it was unclear to them what grounds they had for originally detaining and/or arresting the accused and whether or when he had been detained and/or arrested.

The police testimony on these points was inconsistent and confusing at best. [ 136 ] The contemporaneous detention and search had a significant impact on the accused’s freedom, privacy and liberty. He was taken into police custody and lodged in cells at the Regina Provincial Correctional Centre for the last 21 months, where he remains until today. The only thing he had was his vehicle and it was towed away and impounded by police. This factor weighs heavily in favour of exclusion of the evidence. c.

Adjudication on the merits? [ 137 ] This stage of the Grant analysis asks whether the truth-seeking function of the criminal courts is better served through admission or exclusion of the evidence. It is in the interests of society to ensure that people who violate the law are dealt with accordingly, however, the seriousness of the offence should not overwhelm the s. 24(2) analysis. A court must focus on the long-term effec

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