) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2663

CITATION : R. v. Leduc, 2013 ONSC 2663 COURT FILE NO.: 12-63 DATE: 2013/05/21 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – SHAWN MALLORY LEDUC Accused ) ) ) ) ) ) ) ) Andre White, counsel for the Crown Michael Spratt, counsel for the Accused ) ) HEARD: March 21 st , 2013 reasons for judgment on a charter application to exclude evidence seized from the applicant pelletier, j. [ 1 ] The Applicant, Shawn Leduc, is charged with break enter and theft, contrary to section 348 (1) (

b) of the Criminal Code in relation to the events of January 12 th , 2012. He brings the present application for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms excluding property seized from him including a wallet, a duffel bag and its contents. In his view, he was arbitrarily detained and further subjected to an unreasonable search and seizure. [ 2 ] The issues that arise in the present Application can be stated as follows: 1. Was Shawn Leduc arbitrarily detained? 2. Was he subjected to the unreasonable search and seizure of his person and items in his possession? 3.

Should the evidence seized be excluded from the present proceeding inasmuch as its admission would bring the administration of justice into disrepute? [ 3 ] The facts of this case can be summarized as follows: At 10:32 a.m. on January 12 th , 2012, Constable Mark Anderson, a member of the Cornwall Community Police Service, received information concerning suspicious persons, one male and one female, carrying duffel bags, in the Riverdale residential subdivision of Cornwall.

He received the information as coming from an anonymous source though it was later discovered that the call originated from an off-duty sergeant with the Cornwall Community Police Service. He attended in an unmarked vehicle and observed, at 10:57 a.m., two pedestrians on Queen Street between Susan and Shirley Streets, a short distance from the location he had been alerted to. He recognized the Applicant as a person with whom he had had previous dealings for property related offenses. The officer also recognized the young woman in Mr. Leduc’s presence as Nathalie Chartrand.

The officer testified that he was further aware, from prior police activities, that Mr. Leduc and Ms. Chartrand were bound by probation orders not to associate with one another. [ 4 ] Constable Anderson attempted to speak with Mr. Leduc. Mr. Leduc was confrontational from the outset, using profanity and expressing his view that he did not have to speak with the officer as the officer did not have a warrant. The officer attempted nonetheless to determine the circumstances behind Mr. Leduc and Ms. Chartrand being in the particular area as he was aware that Mr.

Leduc lived some distance away, closer to the downtown area of Cornwall. Constable Anderson was met at the scene by Constable Travis Bergeron who arrived within minutes of Constable Anderson’s arrival. [ 5 ] Constable Anderson then spoke with Ms. Chartrand who confirmed that she was under a court order not to associate with Mr. Leduc. During this time, Constable Bergeron was preventing Mr. Leduc from leaving the scene by placing himself in front of Mr. Leduc and directing him to remain. Constable Anderson then arrested Ms. Chartrand and directed Constable Bergeron to place Mr. Leduc under arrest.

Both subjects were informed of their rights to counsel. The duffel bag in Mr. Leduc’s possession was seized. The officers examined the contents at the scene and described items, including a Sony play station video console, placed haphazardly inside

the bag. [6] Though Constable Anderson did not formulate the grounds for an arrest in relation to theft or some other property offense, henotes in his duty book, “property appears to be stolen”. He states that his impression stems from his knowledge of Mr. Leduc’s criminalrecord described as extensive, his limited financial means, and the commission of property offenses previously, including fraud, in orderto support a drug addiction. [7] Constable Anderson testified that he does not recall having told Mr. Leduc to stop or remain at the scene initially and that hehad no grounds to detain Mr. Leduc prior to Ms.

Chartrand’s admission at the scene concerning the non-association order. [8] Once at the police station, a wallet was removed from Mr. Leduc, as he was searched by Constable Bergeron. The walletwas turned over to Constable Anderson who examined it and discovered the birth certificate of Richard Blanchard. Constable Andersonbelieved that the wallet was stolen and arrested Mr. Leduc for possession of stolen property. [9] Also at the police station, the duffel bag seized from Mr. Leduc was taken to the property room to be examined.

This isdescribed as a matter of protocol whereby items seized have to be identified and listed. This inventory was carried out by another officer,Constable Robert Archambault. Constable Anderson testified that this search of the duffel bag was not conducted as a search incidentalto arrest and that he did not direct Constable Archambault to examine the contents of the bag at the police station. [10] Following the inventory of items, Constable Anderson examined them and observed a camera which he was able to activate.

Upon examining certain photographs from the photo list, Constable Anderson was able to identify a person whom he believed to be anemployee at a local car dealership. Constable Anderson testified that he did not consider the possibility of obtaining a search warrant toexamine the bag and its contents. In the officers’ view, there were no grounds to believe that the property was offense related up to thatpoint and that the examination of the contents was a matter of policy and to a certain extent, a matter of safety.

The officer’s evidence isthat the duffel bag could not simply be left unexamined at the police station. Later that afternoon, the person depicted in the photographfrom the camera’s photo list confirmed that the camera was hers and upon attending her residence confirmed that there had been a breakand enter at her home a few blocks from the location of Mr. Leduc’s arrest. In a subsequent interview that afternoon, Mr. Leduc’scompanion, Ms. Chartrand, confirmed that she and Mr. Leduc committed the break and enter. Mr.

Leduc was then further arrested forthat offense as well. [11] The first question to be answered is whether Mr. Leduc was arbitrarily detained at the scene, prior to his arrest for breachingthe non-association conditions that bound him and Ms. Chartrand. The initial contact with Mr. Leduc was at 10:51 a.m. His arrest wasat 11:00 a.m. During those 9 minutes he interacted with both Constables Anderson and Bergeron. He was, based primarily on theevidence of Constable Bergeron, told to stop walking away from the scene and had his passage blocked by the officer as he stood beforehim. [12] Although Mr.

Leduc was antagonistic, vulgar and asserting his right to leave unless the officers had an arrest warrant, anddespite the fact that Mr. Leduc did not testify in this proceeding as to his state of mind at the time, it is difficult to conclude that Mr.Leduc was not detained, in the very strict sense of limits being placed on his mobility. On the facts of this case however, this does notequate to arbitrary detention. Constable Anderson was aware of Mr. Leduc’s prior dealings with the law, including what he believed tobe a current court order preventing Mr. Leduc from associating with Ms. Chartrand.

The momentary interruption in Mr. Leduc’s passagewas therefore authorized by the principle or investigative detention. R. v. Mann 2004 SCC 52 , [2004] 3 SCR 59, R. v. Suberu2009 SCC 33 , [2009] 2 SCR 460. [13] Within a few brief moments, Constable Anderson’s beliefs were confirmed by Ms. Chartrand and a valid arrest ensued,together with the usual right to silence cautions and rights to counsel recital. I would accordingly conclude that there has been noviolation of the Applicant’s right, under

section 9 of the Charter, against arbitrary detention. [14] Following his arrest, two items are seized from Mr. Leduc and searched without warrant. Firstly, the duffel bag in hispossession and later at the police station, a wallet. Both are examined in what is described as an inventory process. With regards to thewallet, Mr. Leduc’s identity is established as early as Constable Anderson’s first arrival at the scene. In any event, the search of thewallet is not alleged to have been conducted to determine or confirm Mr. Leduc’s identity.

Nor is it the evidence of the officers involvedthat the search was incidental to arrest. [15] As a warrantless search, not otherwise authorized by law, the seizure and examination of the wallet runs afoul of

section 8Charter protection against unreasonable search and seizure. I am not persuaded by the argument that as stolen property, determined afterthe fact, the wallet does not generate any reasonable expectation of privacy. (Case reference R. v. Edwards (SCC), [1996] 1 SCR 128, R. v. Cole 2012 SCC 53 , [2012] 3 SCR 34. ) [16] Similarly, the search of the duffel bag, warrantless and not incidental to arrest for investigative or safety reasons, constitutedan unreasonable violation of Mr. Leduc’s privacy rights.

The policy that was relied upon by the Cornwall Community Police Servicesofficers in conducting an inventory of seized property does not supersede the constitutional right against unreasonable search and seizure,nor does it constitute legal authorization as in the cases of consent searches, searches incidental to arrest or statutorily authorizedsearches. R. v. Caslake (SCC), [1998] 1 SCR 51. [17] I would accordingly conclude that the Applicant’s

section 8 Charter rights were violated inasmuch as the seizure andexamination of both the wallet and the duffel bag were warrantless and not otherwise authorized by law. [18] That said, the admission of this evidence in this proceeding would not tend to bring the administration of justice into disreputefor the following reasons. [19] Firstly, the evidence, though obtained in violation of the Applicant’s

section 8 Charter rights, is real evidence, in existenceprior to any offending police conduct and independent of it.

[ 20 ] Secondly, the conduct of the police was far from capricious and oppressive. Neither the police officers’ credibility nor motives are challenged. The officers testified that their decision to seize and examine the wallet and the duffel bag was based on a force policy that required a careful cataloguing of items brought into their possession as a result of an arrested person’s detention in their holding facility. The evidence taken at this hearing is devoid of any attempt by the officers to conceal their purpose.

The break and enter where the property was obtained had in fact not yet been discovered when the contents of the duffel bag were examined. [ 21 ] Thirdly, it is difficult to situate the impact upon the Applicant of the

section 8 breach on the spectrum of consequences flowing from Charter violations. [ 22 ] The searches conducted were of a wallet and a duffel bag. They consisted of examining the contents of each. Neither item in fact belonged to the Applicant. It is likely that once discovered, the break and enter would have compelled the officers to examine more closely any possible connection between Mr. Leduc, Ms. Chartrand and the offense, bearing in mind their proximity and the prior knowledge which the police had concerning Mr. Leduc’s activities.

They would have been entitled to do so. [ 23 ] The impact of the breach is accordingly to be placed at the lower end of the spectrum. [ 24 ] Finally, the evidence in question is central to the Crown’s case, as supplemented in part by the evidence available from Ms. Chartrand, and concerns an offense that, though seldom, if ever imposed, carries a maximum term of imprisonment for life. [ 25 ] In these circumstances, the exclusion rather than the admission of the evidence would adversely harm the perception of how the criminal justice is administered. [ 26 ] For the foregoing reasons, the Application is dismissed.

Justice Robert Pelletier Released: May 21 st , 2013 CITATION : R. v. Leduc, 2013 ONSC 2663 COURT FILE NO.: 12-63 DATE: 2013/05/21

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SHAWN MALlORY LEDUC reasons for judgment on a charter application to exclude evidence seized from the applicant Justice Robert Pelletier Released: May 21 st , 2013