Her Majesty the Queen - v. -, 2021 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 54 Date: October 29, 2021 Information: 991111551 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Joseph Vasile Appearing: T. O'Hara For the Crown B. Degenstien For the Accused DECISION ON VOIR DIRE M.F. MARTINEZ , J 1.

Introduction [ 1 ] The accused, Jonathon Vasile, is charged with numerous criminal offences arising from his arrest on November 12, 2019. [ 2 ] His charges include several weapons offences stemming from the post-arrest discovery by police of a concealed knife he was carrying, a pistol magazine loaded with .22 calibre ammunition found in the pocket of a jacket he had been wearing shortly before his arrest, and a corresponding .22 calibre semi-automatic pistol – sans magazine – found behind the back seat of his pickup truck. [ 3 ] Relying on alleged police breaches of his rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms [ Charter ] to be free from unreasonable search or seizure and from arbitrary detention, the accused asks me to exclude from his trial, the evidence discovered by the police after his arrest.

[ 4 ] This is my decision on the voir dire in which I heard the evidence relevant to the accused’s application. 2. Background Facts [ 5 ] At least a half dozen members of the Saskatoon Police Service were involved in discovering the post-arrest evidence the accused seeks to exclude from his trial proper. As only four of those police officers testified in the voir dire , there are some gaps in the background facts I describe below. [ 6 ] On November 12, 2019, Cst. Dennis Baron, a member of the Saskatoon Police Service’s Canine Unit, was on patrol in the City of Saskatoon.

He was driving an unmarked Canine Unit police vehicle; however, he testified that it would be obvious to most people that it was a police vehicle as its front grill area sported a “bull bar” and he was in full police uniform. [ 7 ] About 8:30 in the evening, Cst. Baron turned left from 22 nd Street onto Avenue I. As he made his turn, he noted a silver-grey Nissan pickup truck stopped at the intersection of Avenue I and 22 nd Street waiting for traffic to clear in order to enter or cross 22 nd Street. [ 8 ] As Cst.

Baron drove past the Nissan, he and the male driver of the pickup truck looked directly at each other. [ 9 ] What caught Cst. Baron’s attention was that the driver of the Nissan pickup truck was wearing a black full ski mask. Cst. Baron testified that the masked driver appeared to be yelling at him while gesturing wildly with both hands and pointing at him. [ 10 ] Unsurprisingly, Cst. Baron found all of this to be unusual and he decided to investigate further. Consequently, he continued up Avenue I until he could safely make a U-turn in order to check the Nissan’s license plate. [ 11 ] Cst.

Baron testified that he intended to question the occupant, or occupants of the Nissan, because he suspected that they might have committed, or might be about to commit, a criminal offence. Specifically, he was concerned about the crimes of vehicle theft, robbery, or home invasion, as in his experience, the perpetrators of such crimes often wear masks. [ 12 ] When Cst. Baron turned his vehicle around he saw the Nissan cross 22 nd Street and then it appeared to brake heavily for a vehicle in front of it on Avenue I. Because of these observations, Cst.

Baron testified that although his primary concern was a criminal investigation, if that was “satisfied” – which I understood to mean that he found no evidence of a criminal offence – there was “the potential afterwards … of a Traffic Safety Act offence for driving – speeding, driving without due care and attention, or driving without reasonable consideration for others …”: Trial Transcript , p. T7, A23. [ 13 ] The Nissan pickup truck turned West when it reached 23 rd Street. Moments later, Cst. Baron located the truck on Avenue J. It was legally parked. Cst.

Baron stopped his police vehicle behind the truck and activated his vehicle’s emergency lights. When he did this, a small group of people, who were further up the street, scattered and ran. [ 14 ] Across the street from him, Cst. Baron saw a man walking toward the corner of Avenue J and 23 rd Street. Thinking that this man might be “related” to the Nissan pickup truck, the officer exited his vehicle, identified himself as a police officer, and told the man to stop and tell him his name. [ 15 ] Instead of doing as he had been asked, the man kept on walking towards the corner. Cst. Baron followed him.

He repeated his demands that the man stop and identify himself. At the corner, the man sat down on the curb. Instead of telling the officer his name, he asked why the officer was hassling him. [ 16 ] Cst. Baron testified that he “informed him of what I was dealing with” – unfortunately, this is the extent of the officer’s evidence as to what he said to the man.

The officer testified that he also told the man of his belief that the man was involved with the pickup truck, and that he wanted the man to identify himself so that he could confirm the man’s identity and continue his investigation. [ 17 ] When the man again refused to identify himself, Cst. Baron told him that he was placing him under arrest for obstructing his investigation of “the criminal offence, and potentially a Traffic Act offence”. As the officer moved towards him, the man stood up and backed away. He backpedaled across 23 rd Avenue refusing to stop and put his hands behind his back as Cst.

Baron ordered him to do. [ 18 ] When Cst. Baron grabbed at the man’s left hand, he pulled it away. He told the officer that he had just had surgery on that hand. He removed and dropped his jacket to show the officer his bandages. However, because the man kept backing away, Cst. Baron tackled him to the ground. With the help of a passerby, he was able to gain control of the man’s right hand and handcuffed it to the man’s belt. It is about this time that other police officers began arriving on scene. [ 19 ] Constables Sedgewick and Reddekop arrived first, at what they believed was a high risk traffic stop.

They parked their police vehicle so as to box in the Nissan pickup truck. Cst. Reddekop went to help Cst. Baron with the unknown man while Cst. Sedgewick made sure no one was in the truck. [ 20 ] Cst. Morton arrived shortly after Sedgewick and Reddekop. While assisting Constables Baron and Reddekop, he found a folding pocketknife clipped on the front of the unknown man’s waistband under whatever he was wearing on his upper body. [ 21 ] After making sure that no one was in the truck, Cst.

Sedgewick went to help the other officers. [ 22 ] Constables Graver and Walker arrived on scene at about this time. [ 23 ] Only Cst. Graver testified in the voir dire . [ 24 ] He said that the unidentified man was about a half block from the truck in the custody of Constables Baron and Reddekop.

[25] Constables Graver and Walker doublechecked the parked Nissan pickup truck. They confirmed that no one was inside andthat the truck was locked. [26] Someone gave Cst. Graver a key for the truck. He could not remember who gave him the key but believes it may have beenCst. Sedgewick. [27] Cst. Graver unlocked the truck. He and Cst. Walker searched the front driver and passenger area for anything that mightidentify the arrested man or anyone else who might have been in the truck. [28] Cst.

Sedgewick testified that, on his way to help his colleagues with the unidentified man, he picked up two jackets that werediscarded on a nearby lawn. As he was being taken to Cst. Sedgewick and Cst. Reddekop’s police vehicle, the as yet unidentified mantold him that the jackets were his. [29] Cst. Sedgewick searched both jackets. In the pocket of one of the jackets he found a magazine for a .22 calibre pistol. Themagazine was loaded with eight bullets. [30] When Constables Graver and Walker learned that Cst. Sedgewick had discovered the loaded pistol magazine, they begansearching the truck for a pistol. Cst.

Graver flipped down the backrest of a rear passenger seat. There, resting on top of other items, hefound a nylon holster containing an unloaded Ruger .22 calibre pistol. The loaded magazine fit the Ruger handgun. [31] Cst. Graver testified that he believed his initial search of the truck’s cab for identifying documents was justified as a searchincident to the unknown man’s arrest for refusing to identify himself. [32] When the truck search turned into a search for a firearm, the unknown man was locked in the Sedgewick/Redekopp policevehicle. Despite this fact, Cst.

Graver believed that the possible presence of a firearm in the truck was an emergent situation justifying themore thorough search that followed. [33] None of the officers testified about how the police eventually learned the identity of the man Cst. Baron had arrested. What isevident is that the police learned his identity at the scene, and not from anything that Constables Graver and Walker found in the Nissantruck’s cab. [34] Cst. Baron testified that he confirmed that the man he had arrested was Mr.

Vasile when one of the officers showed him aphotograph of the accused on the screen of his police vehicle’s onboard computer. Cst. Baron could not remember whether thephotograph was an SGI photograph or a police mugshot. [35] In addition to the officers’ testimony, the Crown tendered the following evidence as exhibits in the voir dire: 1) a registration search of the Nissan’s license plate confirming that Mr. Vasile was the last registered owner of the truck and theregistration had expired a couple of days earlier, and 2) a black ski mask which, according to Cst.

Baron, resembled the one worn by the driver of the Nissan – notably there was no evidenceas to who found the ski mask or where they found it. 3. Argument [36] The accused submits that his arrest amounted to an arbitrary detention as it exceeded Cst. Baron’s authority to arrest himwithout a warrant. Consequently, the subsequent searches of his person and of his truck were unreasonable.

His alternative argument isthat, even if I find that his arrest was lawful, the search of his truck still was not lawful because none of the circumstances surroundinghis arrest justified a warrantless search of his locked truck. [37] It is because of these infringements of his Charter-protected freedoms that the accused asks me to exclude the evidence thatpolice found after his arrest. 4.

Arbitrary Detention: Charter, s. 9 Overview [38] Police officers may arrest a person, without a warrant, when they have reasonable grounds to believe that the person hascommitted, or is about to commit, an indictable offence: Criminal Code, RSC 1985, c C-46, s 495(1)(a) [Criminal Code]. [39] In order for an officer’s grounds for arresting someone to be reasonable, the grounds must, when viewed objectively, besufficient to support the officer’s subjective belief that the person probably had committed, or probably was about to commit, a crime: Rv Storrey, (SCC), [1990] 1 SCR 241 at p 250; R v Mouland, 2007 SKCA 105 at para 22, 304 Sask R 129; R v Gunn,2012 SKCA 80 at paras 7 and 8, 399 Sask R 170. [40] Initially, Cst.

Baron, did not intend to arrest Mr. Vasile. What he wanted to do is to stop him and question him, along withanyone else who may have been in the Nissan pickup truck. Ultimately, he arrested Mr. Vasile because he believed that, by refusing toidentify himself, Mr. Vasile had committed the criminal offence commonly known as obstruction. More precisely, Cst Baron believedthat Mr. Vasile had committed the criminal offence of wilfully obstructing a peace officer in the execution of his or her duty: CriminalCode, s. 129(a).

[ 41 ] For Cst. Baron’s belief to be objectively reasonable, two things must be true. First, that he possessed the lawful authority to detain Mr. Vasile for investigation. Second, that once lawfully detained, Mr. Vasile was legally obligated to identify himself to Cst. Baron. These issues are independent of each other and I deal with them separately below.

Police Power to Detain a Person for Investigative Purposes The Law [ 42 ] A police officer who does not have reasonable grounds for arrest may detain a person for investigative purposes in circumstances where the officer reasonably suspects that the individual is connected to a specific criminal activity. [ 43 ] In R v Mann , 2004 SCC 52 , [2004] 3 SCR 59 [ Mann ], the Supreme Court of Canada described this common law police power as follows: 34 … The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. … 45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. … [ 44 ] While Mann appears to limit investigative detentions to situations where police officers reasonably suspect that the detainee is connected to a known recent or on-going criminal offence, the Saskatchewan Court of Appeal interpreted Mann to include reasonable suspicion that the individual is connected to a suspected criminal offence: R v Yeh , 2009 SKCA 112 at para 94 , 337 Sask R 1 [ Yeh ]. [ 45 ] Speaking on behalf of the majority of the Court of Appeal, Chief Justice Richards made it clear that a police officer’s suspicion must be that the person is involved in a specific suspected criminal offence, as opposed to a general suspicion that the person is involved in some, undefined, criminal activity: Yeh at para 91 One critical factor to note in relation to the reasonableness or justification issue is that an investigative detention is lawful only when a police officer has a reasonable suspicion of specific criminal activity based on objectively verifiable grounds and only when, in all of the relevant circumstances, the detention is reasonable.

As noted, a generalized feeling on the part of the police that an individual is doing something wrong can not serve as the basis for a lawful detention .

Thus, in this way, the prerequisites for investigative detentions help to ensure they will not be based on the sorts of hunches and intuitions which can serve as cover for arbitrary conduct and either deliberate or unconscious profiling based on factors such as race, ethnic origin or socioeconomic status. [underlining added, italics in original] [ 46 ] To illustrate the limited scope of the common law police power to detain someone based on the belief that the person is connected to a specific suspected crime, Chief Justice Richards offered the following example: Yeh at para 77 The question of whether the police may detain an individual in connection with a suspected offence is a different matter than the idea that suspicion must be particularized.

Once again, an example might serve to illustrate the point. Suppose a police officer is patrolling a residential neighborhood in the early morning hours in circumstances where there has been no report of any theft or other criminal activity and where he or she has not seen any evidence of such activity.

If the officer comes upon a man loading a television set into the trunk of a car parked in a dark alley, he or she might suspect the man is involved in a theft. (I assume, for purposes of this discussion, that these facts would not afford reasonable grounds to make an arrest pursuant to s. 495(1) of the Criminal Code but would justify a detention.) In this situation, the officer’s suspicions would be very specific and he or she might well be able, on the spot, to relate them to the governing

section of the Criminal Code . Nonetheless, by affecting an investigative detention of the man with the television set, the officer would be acting only on a reasonable suspicion that a crime had been committed. The officer would not be proceeding in relation to an offence which had been reported or which he or she otherwise knew had taken place. The Law Applied to the Facts [ 47 ] Cst. Baron saw the male driver of a pickup truck wearing a ski mask and gesturing at him. I agree with Cst. Baron that the truck driver’s conduct was unusual, but nothing about it was illegal. [ 48 ] Cst.

Baron’s suspicion that, because the driver was wearing a ski mask, some crime may have been committed, or might be about to be committed, was nothing more than a general suspicion that the driver might be up to no good. In other words, it was a hunch. An investigative detention based on a hunch is unlawful: Yeh at para 75 ; Mann at para 35 . [ 49 ] Because Cst.

Baron testified that if his criminal investigation did not turn up anything, he might have charged the driver with an offence under The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ] the Crown argued that his detention of the accused was lawful under s. 209.1 of the TSA . [ 50 ] That is an accurate statement of the law, if , Cst. Baron had stopped the Nissan truck pursuant to any lawful authority he had under the TSA , and , if , he knew that the man he detained was the driver of the truck at that time: Traffic Safety Act

Authority of peace officer to stop and request information 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; [51] Cst. Baron did not stop the truck. He found it legally parked and locked. Cst. Baron detained the accused, not because heknew that the accused was the driver of the truck, but because he suspected that Mr. Vasile was somehow connected to the truck. [52] For these reasons, Cst. Baron’s detention of the accused at the corner of 23rd Street and Avenue J was arbitrary.

Grounds for Arrest: Failing to Answer Officer’s Questions [53] A person who is arrested by police, must identify themselves: R v Pauli, 2014 SKQB 246 at para 41, 452 Sask R 304 [Pauli]. [54] A person who police see committing a regulatory offence – a municipal bylaw, for example – must identify themselves: R vMoore, (SCC), [1979] 1 SCR 195. [55] The person in charge of or operating a motor vehicle that has been stopped by police under the TSA, must identify themselvesto the police when asked to do so: TSA, s. 209.1(4). [56] In any other situation, absent a statutory obligation to do so, a person who is detained, but not arrested, by police is notrequired to identify themselves: Pauli at para 22; R v Greaves, 2004 BCCA 484 at paras 48 and 49, 189 CCC (3d) 305; R v Guthrie,1982 ABCA 201, 39 AR 435. [57] For these reasons, whether his detention was lawful or not, Mr.

Vasile did not have to identify himself to Cst. Baron.Consequently, Cst. Baron’s subjective belief that Mr. Vasile’s refusal to tell him his name amounted to the criminal offence ofobstruction was not objectively reasonable. As such, he did not have the authority to arrest the accused even if he had possessed thelawful authority to detain him. Conclusion [58] Cst. Baron twice infringed Mr. Vasile’s Charter​-protected right to be free from arbitrary detention: first, when he unlawfullydetained the accused for investigative purposes, and, second, when he unlawfully arrested him for “obstruction”. 5.

Searches Subsequent to Arrest [59] As I noted at the outset, the majority of the charges Mr.

Vasile faces relate to weapons the police found after his arrest. [60] Warrantless searches are presumptively unreasonable unless they are authorized by law, the law itself is reasonable, and themanner in which the search was carried was reasonable: Mann at para 36. [61] Certain searches – for example: pat down searches for weapons – have been found to be within police officers’ common lawauthority to search a person who has been lawfully detained or arrested: Mann at para 45; R v Golden, 2001 SCC 83 at para 95, [2001] 3SCR 679. [62] As Mr.

Vasile was unlawfully arrested, the police searches of his person and of his truck were unreasonable. 6. Exclusion of Evidence The Law [63]

Section 24 of the Charter reads as follows: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[64] Section 24(2) of the Charter recognizes that evidence obtained by infringing an individual’s Charter​-protected rights shouldnot be allowed into a criminal trial when doing so would undermine the public’s confidence that state authorities respect the rule of lawand an individual’s rights protected by the Charter: R v Grant, 2009 SCC 32 at paras 67-70, [2009] 2 SCR 353 [Grant]; see also R vTsekouras, 2017 ONCA 290, per Watt JA [Tsekouras]: [75] Section 24(2) of the Charter is an admissibility rule. It determines whether evidence obtained in a constitutionally impermissiblemanner will make its way into a criminal trial for the use of the trier of fact or be denied entry. The

section not only recognizes that theadmission of constitutionally tainted evidence and its use to demonstrate guilt may bring the administration of justice into disrepute, butalso that exclusion of the evidence can equally bring the administration of justice into disrepute: R. v.

McGuffie, 2016 ONCA 365, 336C.C.C. (3d) 486, at para. 60. [65] The accused bears the burden of persuading the court, on a balance of probabilities, that state authorities obtained evidenceagainst him by infringing his Charter-protected rights, and that allowing the evidence into trial would bring the administration of justiceinto disrepute: R v Collins, (SCC), [1987] 1 SCR 265. [66] If the accused establishes that evidence was obtained through infringing or denying one or more of his Charter-protectedrights, the judge must decide whether to allow the tainted evidence into trial.

In order to do so, the judge must assess and balance thefollowing three factors: 1) the seriousness of the Charter-infringing conduct, 2) the impact that the infringement had on the accused’s Charter-protected interests, and 3) society’s interest in the case being decided on its merits. [Grant at para 71] [67] The first and second factors tend to favour excluding the evidence from trial, while the third tends to point towards includingthe evidence – especially when the charge is serious and the evidence sought to be excluded from trial is crucial to the Crown’s case. [68] The seriousness of the Charter-infringing conduct refers to the gravity of what state authorities did, or failed to do, in order toinfringe or deny the accused’s protected interests.

Such inappropriate conduct varies from inadvertent and minor infringements tointentional or reckless disregard of the individual’s protected rights: Grant, at paras 72-74. The more serious the state conduct, the morethe improper conduct weighs in favour of excluding the evidence: Grant [127] … As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faithinfringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admittedunder s. 24(2).

On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests mayresult in exclusion, notwithstanding that the evidence may be reliable. Tsekouras [109] Various factors may attenuate or exacerbate the seriousness of the Charter-infringing state conduct. Extenuating factors, such asthe need to prevent the disappearance of evidence, or good faith on the part of investigators, may attenuate the seriousness of policeconduct that results in a Charter breach. On the other hand, no rewards are given for ignorance of Charter standards.

Negligence orwilful blindness is not the equivalent of good faith: Grant, at para. 75. Nor can good faith be based on an unreasonable error or ignoranceabout the officer’s scope of authority: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59; R. v. Mann, 2004 SCC 52, [2004] 3S.C.R. 59, at para. 55. The more deliberate the conduct of the police in breach of the Charter, the more likely this line of inquiry willfavour exclusion: Grant, at para. 75. [69] The essence of this branch of the court’s inquiry is determining whether admitting the evidence into trial would send the

message that the justice system condones serious state misconduct: R v Quilop , 2017 ABCA 70 at para 37 , 353 CCC (3d) 525 [ Quilop ]. [ 70 ] The focus of the second branch of the court’s section 24(2) inquiry is directed at the impact that the Charter -infringing conduct had on the Charter -protected interest itself: Quilop [43] … The seriousness of the infringement must be looked at from the perspective of the importance of the interest impacted by the infringement.

Not just the accused’s interest, but the interests of all citizens. … [ 71 ] The impact of Charter -infringing conduct can range from the minor and the fleeting to the profoundly intrusive.

Once again, the more egregious the state conduct the more excluding the evidence is favoured because admitting evidence obtained through serious state misconduct risks signalling “to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant , at para 76 . [ 72 ] The question whether the state authorities could have discovered the evidence without infringing the accused’s rights is relevant to this second line of inquiry.

The reason for this is that the impact of the Charter -infringing conduct on the accused’s protected interests may be lessened if the evidence would have been obtained without state misconduct.

On the other hand, if it is unlikely that the state authorities would have discovered the evidence without infringing the accused’s Charter -protected rights, the impact of that infringement is significant: Grant , at para 122 . [ 73 ] While the fact that the evidence could have been found without infringing the accused’s rights may lessen the impact of the state’s Charter -infringing conduct, depending on the circumstances, the discoverability of the evidence through alternative, and legally appropriate, means may serve to increase the seriousness of the Charter -infringing conduct: Tsekouras , at para 112 . [ 74 ] The final and most consequential question is whether the evidence discovered through the means of Charter -infringing conduct on the part of state authorities should be admitted into evidence at trial.

Here the section 24(2) judge must take the long view: R v Le , 2019 SCC 34 , [2019] 2 SCR 692 [ Le ] [139] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute . While the judicial inquiry under s. 24(2) is often rhetorically cast as asking whether evidence should be excluded, that is not the question to be decided.

Rather, it is whether the administration of justice would be brought into disrepute by its admission ( R. v. Taylor , 2014 SCC 50 , [2014] 2 S.C.R. 495 , at para. 42 ).

If so, there is nothing left to decide about exclusion: our Charter directs that such evidence must be excluded, not to punish police or compensate for a rights infringement, but because it is necessary to do so to maintain the “integrity of, and public confidence in, the justice system” ( Grant , at paras. 68-70 ). [140] Where the state seeks to benefit from the evidentiary fruits of Charter -offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial , but upon the administration of justice .

Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice — such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously.

We endorse this Court’s caution in Grant , at para. 68 , that, while the exclusion of evidence “may provoke immediate criticism”, our focus is on “the overall repute of the justice system, viewed in the long term” by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights. 158 … An “adjudication on the merits”, in a rule of law state, presupposes an adjudication grounded in legality and longstanding constitutional norms. [italics in original] Analysis Seriousness of the Charter-infringing Conduct [ 75 ] Cst. Baron detained Mr. Vasile on two hunches.

First, that he was connected to the Nissan pickup truck in some way. Second, that he might be involved in some unreported and non-specific criminal activity. He then arrested Mr. Vasile for what was, in the circumstances, the non-existent crime of refusing to identify himself.

[ 76 ] Cst. Baron is an experienced police officer. He should know the extent of his authority to detain or arrest someone. His infringements of the accused’s Charter -protected right not to be arbitrarily detained by an agent of the state were serious. [ 77 ] As I noted earlier, the searches of the accused’s person and of his vehicle were unreasonable as they were predicated on his unlawful arrest. This, in and of itself, makes the infringement of the accused’s right to be free from unreasonable search and seizure serious. [ 78 ] Cst. Morton acted in good faith. He had no reason to believe that Mr.

Vasile’s arrest was anything other than lawful. However, this factor does not diminish the seriousness of this particular infringement of the accused’s Charter -protected rights. Having said this, in my opinion, the search of the accused’s truck undertaken by Constables Greber and Walker was a more serious infringement of his rights. [ 79 ] The constables began their search of the accused’s truck when he was in police custody and nowhere near his locked truck. Because they were aware that Mr.

Vasile was arrested for refusing to identify himself, their initial reason for searching the truck was to check for anything that might identify the truck’s occupants. As such, Cst. Greber believed the initial search was lawfully incident to arrest. [ 80 ] Cst. Greber justified the more thorough search that turned up the unloaded pistol because exigent circumstances existed. [ 81 ] In the circumstances, neither of Cst.

Greber’s reasons for searching the accused’s locked truck were justified. [ 82 ] At the very least, a warrantless search of a legally parked and locked vehicle to look for identity documents is an unreasonable search unless it can be justified as a necessary last resort. Although I did not hear any evidence as to how and when the police learned Mr. Vasile’s identity, it was not through Cst. Greber and Cst. Walker’s search of his truck. [ 83 ] In my opinion, there were no exigent circumstances justifying the more intrusive search for the pistol. Mr.

Vasile could not get to his truck as he was in police custody, handcuffed, and locked in a police vehicle. As such he did not pose a threat to the police or to the public. The police had the key to the truck. Presumably, neither the accused nor anyone else could destroy any evidence that might be found in the truck before the police obtained a warrant to search the truck. Impact on the Accused’s Charter-protected Rights [ 84 ] While Mr. Vasile may have been the masked driver of the Nissan pickup truck who foolishly, and intentionally, drew the attention of Cst. Baron, nothing he was doing was remotely illegal.

Further, when Cst. Baron first encountered him, the accused was walking down the street minding his own business.

For these reasons, the impact on his Charter -protected right to be free from arbitrary detention was profound. [ 85 ] If not for his unlawful arrest, the impact that the searches of his person and of his vehicle had on his Charter -protected freedoms would have been considerably less significant. [ 86 ] If his arrest had been lawful, the search of his person incident to arrest would have been reasonable. [ 87 ] Although the warrantless search of the accused’s truck was unreasonable, the evidence of the unloaded pistol would have been discovered in any event after the police obtained a warrant to search the truck.

Society’s Interest in the Case Being Decided on its Merits [ 88 ] The offences Mr. Vasile faces are serious. They involve weapons. One of the weapons is a handgun. [ 89 ] It goes without saying that Canadians have an abiding interest in seeing firearms offences prosecuted. For this reason, it is in society’s interest that Mr. Vasile’s case be decided on its merits. [ 90 ] The evidence of the weapons found by the police is the basis of the Crown’s case against Mr. Vasile. Excluding the evidence of the weapons from his trial will gut the Crown’s case. Conclusion [ 91 ] The seriousness of the infringements of Mr.

Vasile’s rights protected under sections 8 and 9 of the Charter weigh heavily in favour of excluding the post-arrest evidence. The impact of those infringements on his Charter -protected rights, especially on his right to be free from arbitrary detention, also weighs heavily in favour of exclusion.

Conversely, society’s interest in seeing cases involving firearms decided on their merits favours inclusion. [ 92 ] In my opinion, although the importance of successfully prosecuting firearms crimes cannot be overstated, the Court cannot be seen to countenance the blatant disregard of the accused’s Charter -protected freedoms that occurred in this case. To do so would bring the administration of justice into disrepute as it would undermine the public’s confidence that the courts will protect the rule of law by enforcing their Charter -protected rights. _____________________________ M.F. Martinez, J