WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.M., 2020 ONCA 427

DATE: 20200626

DOCKET: M51598 (C67806)

Paciocco J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Applicant/Appellant

Anthony Moustacalis and Christen Cole,
    for the applicant

Molly Flanagan, for the respondent

Heard: June 25, 2020 by video
    conference

REASONS FOR DECISION

OVERVIEW

[1]

October 11, 2019, S.M. was convicted of seven human
    trafficking related offences, including assault causing bodily harm, alleged to
    have been committed against a single complainant. He was also convicted of an
    eighth offence, obstruction of justice, for attempting to discourage the
    complainant from co-operating with the police by yelling at her when he was
    being arrested for assaulting her and she was in the process of giving a police
    statement.

[2]

On November 28, 2019, S.M. was sentenced for
    these offences to a global sentence of 66 months imprisonment, minus 27 months
    of credit for pre-sentence custody. He is now applying before me pursuant to s.
    679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46

for judicial
    interim release pending appeal.

[3]

The Crown contests S.M.s judicial interim
    release application only on the tertiary ground. It contends that, given the
    seriousness of the crimes including the length of the sentence imposed; the low
    plausibility of S.M.s proposed grounds of appeal; the inadequacy of his
    release plan; and the absence of any case specific COVID-19 concerns, S.M. has
    not met his onus of establishing that his detention is not necessary in the
    public interest. More specifically, he has not demonstrated on the balance of
    probabilities that his release would not harm public confidence in the administration
    of justice.

[4]

I agree with the Crown. S.M. has not met the
    burden he bears. His application for interim judicial release is denied.

ANALSIS

[5]

The Crown accepts that S.M.s grounds of appeal
    clear the very low not frivolous hurdle found in s. 679(3)(a) of the
Criminal

Code
.

[6]

The Crown also concedes that S.M. has
    established that he would surrender himself into custody in accordance with the
    terms of a release order. This concession is well-taken. S.M. has important
    ties to the community, as well as gainful self-employment in the entertainment
    industry in his community, and he has surrendered himself for bail release
    hearings on two occasions in connection with the current matters.

[7]

The Crown contends that S.M. has not satisfied
    this third precondition to judicial interim release pending appeal, provided
    for in s. 679(3)(c) of the
Criminal

Code
. It takes issue
    with S.M.s submission that he has established on a balance of probabilities
    that his detention is not necessary in the public interest.

[8]

I do not understand the Crown to be submitting
    that SM.s detention pending appeal is in the public interest because he has
    not disproved that he poses a substantial likelihood of reoffending, thereby
    warranting his detention on the secondary ground: see
R. v. Stojanovski
,
    2020 ONCA 285, at para. 18. That submission could not be accepted on this
    record. Instead, the Crown relies on the tertiary ground. The Crowns position
    is that in the circumstances, including the residual risk S.M. poses to public
    safety, S.M. has failed to show that his release would not diminish public
    confidence in the administration of justice in the eyes of reasonable members
    of the public:
Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 47.

[9]

The public confidence determination requires a
    balancing to be undertaken between the public interest (including his own
    interest) in having a meaningful review of his convictions before he is made to
    begin serving his sentence pending appeal, and the public enforceability
    interest:
R. v. Oland
, [2017] 1 S.C.R. 250 at paras. 23-26.

[10]

Of significance, S.M. no longer benefits from
    the presumption of innocence. To reflect the absence of the presumption of
    innocence, the general rule in judicial interim release applications pending
    appeal is that there should be immediate enforceability of judgments:
Oland
,
    at para. 25. The burden is therefore on the applicant, in this case S.M., to
    demonstrate on a balance of probabilities that the reviewability interest outweighs
    the enforceability interest. Several factors inform this determination,
    including the seriousness of the crimes S.M. was convicted of; the strength of
    his proposed grounds of appeal, and the residual risk he presents, bearing in
    mind the proposed plan of release.

A.

THE SERIOUSNESS OF THE CRIMES

[11]

The seriousness of the crimes S.M. was convicted
    of may be determined by the gravity of the offences he was charged with, the
    circumstances surrounding their commission, and the potential length of imprisonment.
    This ultimate determination will be informed by the trial judges reasons for
    sentence:
Oland
, at para. 38.

[12]

S.M. acknowledges that, by their nature, the
    offences he was convicted of are serious or grave. That concession is
    appropriate. The seven human trafficking charges S.M. was found to have
    committed criminalize the exploitation and domination of a victim so that the
    victim will provide sexual services for the financial benefit of the offender.

[13]

Even bearing in mind S.M.s observation that the
    offences he was convicted of involved only a single complainant, the
    circumstances surrounding the commission of these offences underscore the
    seriousness of the crimes S.M. has been convicted of committing. The trial
    judge found that S.M. persuaded the complainant, who he had been in a personal relationship
    with and who was attempting to overcome substance abuse issues, to re-enter the
    sex trade. She found that S.M. directed this vulnerable womans activity in the
    sex trade during an ongoing period, used violence against her that broke her
    ribs, and controlled the proceeds of her sex work. The mid-range penitentiary
    sentence S.M. received  66 months, or five and one-half years  underscores
    the seriousness of the offences.
[1]

[14]

In my view, the seriousness of the crimes S.M.
    was convicted of committing pulls in favour of the enforcement interest. The
    more serious an offence is, the more urgent the enforcement interest becomes.
    The seriousness of the crimes may also enhance concern about the residual
    public safety risks an applicant poses, and it does so here. A person who would
    commit the offences S.M. has been convicted of will have demonstrated their
    readiness to exploit, diminish and harm a vulnerable human being in their own
    self-interest on an ongoing basis, and then attempt to interfere in the
    administration of justice to frustrate their own prosecution.

B.

The STRENGTH OF THE GROUNDS OF APPEAL

[15]

Grounds of appeal may be strong enough to
    mitigate the residual risk to public safety suggested by the seriousness of the
    offences the applicant is appealing. Grounds of appeal that clearly surpass the
    not frivolous threshold set in s. 679(3)(a) of the
Criminal

Code
can also play a central role in enhancing that public interest in reviewability:
Oland

at paras. 40, 44. However, based on the record before me,
    I am not persuaded that the general legal plausibility of S.M.s grounds of
    appeal promotes his application for release.

[16]

I can give no weight to the suggestion that
    there could be a supplemental ground of appeal relating to the prior sexual
    history evidence. S.M.s judicial interim release application lacks entirely the
    details necessary to evaluate whether such a ground of appeal would have any
    merit.

[17]

The one legal error that is alleged relates to a
    paraphrase by the trial judge of the first two legs of the
R. v. W.D.
,
    [1991] 1 S.C.R. 742,

self-direction. In describing the first branch of
    the
W.D.
test the trial judge replaced the familiar reference to believing
    exculpatory evidence with accept[ing] as accurate evidence that is
    inconsistent with a finding that the accused is guilty. In the second branch,
    she substituted the familiar reference to not believing the exculpatory
    evidence but being left in reasonable doubt by it, with being unsure whether
    the evidence that is inconsistent with guilt is accurate. Although I remain
    open minded and will refrain from engaging the issue more extensively in an
    interim judicial release application, it is not immediately evident to me that this
    ground of appeal clearly surpasses the not frivolous standard. Put otherwise,
    I cannot conclude on the record before me the apparent strength of this ground
    of appeal leans in favour of reviewability before enforcement.

[18]

The remaining proposed grounds of appeal relate
    to the trial judges credibility evaluation, with claims made of an
    unreasonable verdict, misapprehension of evidence including the failure to give
    effect to evidence, and uneven scrutiny. Although the objections made by S.M. to
    the trial judges reasoning could, with the benefit of a full record, prove to
    be of great substance, these grounds of appeal venture into areas where
    significant deference is afforded to trial judges. This is so in a case where
    the trial judge found confirming evidence for the complainants account, and where
    the trial judge gave reasons for finding the accuseds version of events to be
    implausible and incredible. The strength of these remaining grounds of appeal
    do not support reviewability before enforcement, either.

C.

PUBLIC Risk and the release plan

[19]

S.M. had no prior criminal record when charged with
    the offences now under appeal. This is an important indication when taken in
    isolation that S.M. would probably keep the peace and comply with conditions of
    release, were I to grant his current application.

[20]

However, the impact of S.M.s prior clean record
    is diminished by the ongoing, exploitive and violent crimes he is now appealing.
    More significantly, the impact of his clean record is materially weakened by
    the fact that S.M. breached bail release conditions put in place relating to
    the charges he is now appealing, despite having a surety in place who had
    pledged $2,000 in support of his application. In doing so he has undermined the
    confidence that can be had that the risk of his behaviour to a surety would
    inspire his compliance.

[21]

Specifically, on April 1, 2019, S.M. pleaded
    guilty to two counts of failing to comply with conditions of his release that
    were put in place to reduce the risk of reoffence, a curfew condition and a
    condition that he not attend hotels. He was charged with these offences within
    six months of having been placed on judicial interim release. As the result of
    this event, S.M. was detained pending his trial. Consequently, he is not able
    to demonstrate through his prior experience that he would comply with his
    conditions of release. Moreover, one of the offences now under appeal
    obstruction of justice  is an offence against the administration of justice
    found to have been committed in effort to impede the prosecution of one of the
    offences now under appeal.

[22]

In these circumstances a member of the public
    would reasonably apprehend that there is a material residual risk that if S.M. were
    to be released, he may well reoffend or commit offences against the
    administration of justice, notwithstanding his once clean record. Given this reasonable
    apprehension, his release could harm public confidence in the administration of
    justice.

[23]

Can this reasonable apprehension be sufficiently
    ameliorated by the proposed judicial interim release plan? I am not satisfied
    that it can be.

[24]

S.M. proposes a judicial interim release plan
    that would involve 24-hour house arrest when not in the presence of one of two identified,
    suitable sureties who are prepared to pledge a combined total of $20,000. Electronic-monitoring
    is also proposed, if required.

[25]

Notwithstanding the generosity and good standing
    of S.M.s proposed sureties, I share the Crowns concerns about the residency part
    of this plan. It is proposed that S.M. be released immediately to live with one
    of his sureties, in the suretys mothers home, until the surety finds and
    leases his own residence. Notably, there is no indication in the supporting
    materials that the suretys mother has consented to have S.M. move into her
    home pending the anticipated move. Moreover, the proposed residential surety
    works 11-hour days away from the home, 6 days a week. He will not be present to
    supervise S.M. for long tracts of time. Although this concern can be partially
    addressed with electronic monitoring, it is notable that the crimes S.M. has
    been convicted of were committed, in part, using electronic communication.

D.

COVID-19

[26]

The risk that institutional incarceration can
    increase exposure to COVID- 19 infection is a relevant and important
    consideration. However, S.M. has presented no case-specific foundation raising concern
    based on his health or demographic profile. Moreover, the Crown has provided
    evidence that at Joyceville Institution, where S.M. is currently residing, there
    have been no positive tests for COVID-19 among inmates. Without case-specific
    evidence of particular risk, COVID-19 considerations are of reduced weight:
R.
    v. Kazman
, 2020 ONCA 251, at para. 20 (Harvison Young J.A., in Chambers);
R.
    v. Jesso
, 2020 ONCA 280, at paras. 36-38 (Brown J.A., in Chambers). Appropriately,
    S.M. has not stressed his personal safety as a central consideration in his
    judicial interim release application.

E.

CONCLUSION

[27]

S.M. has failed to discharge his burden
    of satisfying me that
his detention is not necessary
    in the public interest.  I am fully aware that it should not be common to deny
    judicial interim release based on the tertiary ground:
Oland
, at para. 29. However, S.M., who was detained while he was
    presumed to be innocent of these serious charges, now seeks to be released
    pending appeal after having been convicted of the bulk of the charges against
    him. Moreover, he does so in reliance on grounds of appeal that do not appear
    on the record to be strong, after having breached interim judicial release
    conditions imposed on the same charges, and when one of the convictions being
    appealed is for obstruction of justice. In these unique circumstances I am not
    persuaded that he has met his burden. His compliance with non-communication
    orders relating to the complainant since being detained does not overcome these
    concerns.

[28]

The application
    for judicial interim release is denied.

David M. Paciocco J.A.

[1]
As an aside, the length of S.M.s sentence also reduces the urgency
    in releasing him pending appeal. Confidence in the administration of justice may
    be harmed where release is denied, and the sentence would be substantially
    served by the time his appeal is heard. That is not this case.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Santana, 2020 ONCA 365

DATE: 20200611

DOCKET: C65685

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abel Solano Santana

Appellant

Michael A. Moon and Nadia Klein, for
    the appellant

Jeannine Plamondon, for the respondent

Heard: In writing

On appeal from the conviction entered by
    Justice W.D. Newton of the Superior Court of Justice, dated January 10, 2018
    and an appeal from the sentence imposed on May 31, 2018.

Doherty J.A.:

I

Overview

[1]

The appellant was convicted, after a trial in
    Superior Court by a judge alone, of possession of Fentanyl for the purposes of
    trafficking. The trial judge imposed a sentence of eight years, which upon
    reduction of a credit for presentence custody, resulted in a net sentence of 4
    years, 320 days.

[2]

The appellant appeals conviction and sentence.

[3]

At trial, the appellant alleged various
Charter
violations and argued virtually all of the evidence produced by the Crown
    should be excluded under s. 24(2) of the
Charter
. The trial judge
    found there were no
Charter
violations and, in any event, he would not
    have excluded the evidence. The defence offered no evidence and no argument on
    the merits. The trial judge convicted the appellant on one charge of
    trafficking in Fentanyl. The other charges against the appellant and all of the
    charges against his co-accused were stayed at the request of the Crown.

[4]

On appeal, the appellant focuses on a single
    alleged
Charter
violation. He submits the warrantless search of the
    vehicle in which the appellant was a passenger when arrested, the seizure of
    his jacket found in the vehicle, and the search of the jacket, constituted an
    unreasonable search and seizure under s. 8 of the
Charter
.  He further
    submits, if this argument is accepted, the court should not make its own s.
    24(2) analysis, but should direct a new trial.

[5]

The Crown makes two submissions in response.
    First, the Crown argues there was no s. 8 violation. Second, the Crown submits,
    if there was a s. 8 violation, this court should perform its own s. 24(2)
    analysis. The Crown contends all of the factors relevant to that analysis
    favour admission of all of the evidence. The Crown submits the appeal should be
    dismissed.

[6]

For the reasons that follow, I would allow the
    appeal and direct a new trial.

II

the evidence

[7]

The appellant was under investigation by a
    police task force headed by the OPP. The task force was investigating large
    scale drug trafficking in northeast Ontario. Officers assigned to the task
    force learned the appellant was in Thunder Bay. He was required to remain in
    Ottawa under the terms of his bail. The officers commenced surveillance. They
    saw the appellant with a woman in a Jeep Cherokee. The vehicle made several
    brief stops.

[8]

The officers conducting the surveillance contacted
    the local Thunder Bay police and provided a description of the appellant and
    the vehicle. They asked the Thunder Bay police to stop the vehicle. The
    officers indicated the appellant was wanted on two outstanding warrants, one a province-wide
    warrant, and was in breach of the terms of his bail order. The officers also
    advised the Thunder Bay police the taillights of the appellants vehicle were
    not operating.

[9]

Thunder Bay police officers, Milionis and Bliss,
    were on patrol. They saw the Jeep Cherokee. A woman was driving and a person
    they believed to be the appellant was sitting in the front passenger seat. The
    officers confirmed through CPIC, the existence of the outstanding warrants.
    They also noted the rear lights were not functioning. They decided to stop the
    vehicle for the taillight infraction and arrest the appellant on the province-wide
    warrant.

[10]

The officers stopped the vehicle. Officer Milionis
    spoke with the driver. He told her the rear lights were off and asked her to
    produce the relevant
Highway Traffic Act
documents.

[11]

Officer Bliss stood by the passenger door. After
    the appellant falsely identified himself as Dave, Officer Milionis told Officer
    Bliss to arrest the appellant on the province-wide warrant.

[12]

Officer Bliss removed the appellant from the
    vehicle and handcuffed him. He told the appellant he was under arrest on the
    outstanding warrant and advised him of his right to counsel. Officer Bliss conducted
    a pat down search and located the appellants wallet. The wallet contained the
    appellants identification. Officer Bliss took the appellant to a second
    Thunder Bay police cruiser that had arrived on the scene and placed him in the
    back seat.

[13]

Officer Bliss testified his arrest of the
    appellant had nothing to do with any suspected drug activity by the appellant.
    He agreed he had no reason connected to suspected drug trafficking to either
    stop the Jeep Cherokee, or arrest the appellant.

[14]

While Officer Bliss was occupied with the arrest
    of the appellant, Officer Milionis continued to speak with the driver. She was becoming
    quite upset. Apart from addressing the potential
Highway Traffic Act
violation, Officer Milionis had no reason to detain the driver or the vehicle.
At this stage of the interaction between
    the Thunder Bay police and the occupants of the vehicle, there was no
    suggestion the driver would not be free to go with the vehicle once the
Highway Traffic Act
matter had been adequately addressed by Officer Milionis.

[15]

After Officer Bliss had placed the appellant in
    the back of the police cruiser, he returned to the Jeep Cherokee to get the
    rest of his [appellants] belongings from the vehicle. According to Officer
    Bliss, he took it upon himself to look for and gather the appellants
    belongings from the Jeep Cherokee because he anticipated the appellant would be
    held in custody overnight. It is implicit in Officer Blisss testimony he chose
    to gather the appellants belongings from the Jeep Cherokee, anticipating the
    woman would drive the vehicle away after the
Highway and Traffic Act
matter was adequately addressed. The police had no grounds to hold the driver
    or the vehicle. Officer Bliss did not ask the appellant if he wanted the police
    to gather his belongings from the Jeep Cherokee and take them back to the
    station.

[16]

In cross-examination, Officer Bliss gave an
    additional reason for the search of the vehicle which led to the discovery of
    the jacket. He testified that he understood he was entitled to search the
    immediate area around where the appellant had been sitting in the Jeep Cherokee
    at the time of his arrest for officer safety. He understood his right to
    search that part of the vehicle continued, even though by the time he conducted
    the search, the appellant had been removed from the vehicle, handcuffed and
    placed in the back of the cruiser with the intention of driving the appellant
    to the police station.

[17]

Officer Bliss testified when he looked into the passenger
    side of the Jeep Cherokee, he saw a jacket lying on the back floor between the
    two front seats. He assumed the jacket belonged to the appellant because it was
    a cold night, and the driver had her jacket on.

[18]

Officer Bliss removed the jacket from the Jeep
    Cherokee, intending to put the jacket into the police cruiser to take it back
    to the station with the appellant. Before putting the jacket in the cruiser, he
    searched the pockets, checking for weapons or other objects relevant to police
    safety.

[19]

The officer found a Ziplock bag containing 495
    pills, which appeared to be Percocet. They were later identified as Fentanyl. The
    appellant and the driver were arrested on a charge of trafficking in narcotics
    and advised of their right to counsel.

[20]

Officers Bliss and Milionis conducted a further
    search of the vehicle as an incident to the arrest on the charge of trafficking
    in narcotics. They also searched the driver. The police found two cellphones,
    one in the vehicle, and one in the drivers purse. A subsequent review of the
    text messages visible on one of the cellphones revealed communications consistent
    with language used in drug trafficking.

[21]

Officers with the task force later obtained a
    warrant to search the hotel room where the appellant and the driver had been
    staying. The affidavit sworn in support of the search warrant summarized the
    evidence accumulated in the course of the drug investigation. The discovery of
    the pills in the jacket seized from the Jeep Cherokee played a central role in
    the grounds relied on to obtain the warrant. The warrant issued and the subsequent
    search of the hotel room produced thousands of Fentanyl pills.

III

Was the seizure and search of the jacket lawful?

[22]

Officer Blisss decision to look inside of the vehicle
    for things belonging to the appellant and his decision to take possession of
    the jacket, both decisions made without the consent of the appellant or the
    driver, constituted a search and seizure for the purposes of s. 8 of the
Charter
:
    see
R. v. Reeves
, 2018 SCC 56. I do not understand the Crown to suggest
    otherwise. The subsequent search of the pockets of the jacket was also a search
    for s. 8 purposes.

[23]

The search of the vehicle, the seizure of the
    jacket, and the subsequent search of the jacket were not authorized by a warrant.
    The onus fell on the Crown to demonstrate the searches and seizure were
    nonetheless reasonable within the meaning of s. 8 of the
Charter
: see
R.
v.
Caslake
, [1998] 1 S.C.R. 51, at para. 11;
R. v. Valentine
,
    2014 ONCA 147, at para. 43;
R. v. Aviles
, 2017 ONCA 629, at paras. 13-15.
    In this case, the Crown argues the warrantless search and seizure were lawful
    as incidental to the appellants lawful arrest on the outstanding warrant. A warrantless
    search and seizure will be lawful if truly incidental to the arrest, and conducted
    in a reasonable manner:
R. v. Fearon
, [2014] 3 S.C.R. 621, at para.
    20.

[24]

The trial judge accepted that the visual
    examination of the interior of the Jeep, the seizure of the jacket from the
    vehicle, and the search of the jacket before it was placed in the police
    cruiser were all justified as a search and seizure incident to the appellants
    arrest on the outstanding warrant: see
R. v. Solano-Santana
, 2018 ONSC
    2609, at paras. 52-56. He focused primarily on the search of the pockets of the
    jacket. He said, at para. 56:

As the applicant was taken into custody on an
    April night in Thunder Bay, it is understandable that the police did not opt to
    leave his jacket behind. I find that Constable Bliss subjectively had valid
    purposes in mind when he searched the jacket. Furthermore, those purposes were
    objectively reasonable. A jacket could contain a weapon, or potential evidence
    related to the charges, and thus it was objectively reasonable to search the
    jacket for the purposes of officer safety and the discovery of evidence.

[25]

A search is properly characterized as an
    incident to arrest only if the search is conducted for a valid purpose
    connected to the arrest:
R. v. Nolet
, [2010] 1 S.C.R. 851, at paras.
    51-52;
R. v. Balendra
, 2019 ONCA 68, at paras. 44-47. In
R. v.
    Caslake
, at para. 25, Lamer C.J.C. said:

If the law on which the Crown is relying for
    authorization is the common law doctrine of search incident to arrest, then the
    limits of this doctrine must be respected. The most important of these limits is
    that the search must be truly incidental to the arrest. This means that the
    police must be able to explain, within the purposes articulated in
Cloutier
,
supra
, (protecting the police, protecting the evidence, discovering
    evidence) or by reference to some other valid purpose, why they searched. They
    do not need reasonable and probable grounds. However, they must have some
    reason related to the arrest for conducting the search at the time the search
    was carried out, and that reason must be objectively reasonable.

[26]

As
Caslake
,
and the many cases that have applied
Caslake
instruct, a court, in deciding whether a particular search was a lawful
    incident to an arrest, must determine:

·

the purpose for which the officer conducted the
    search;

·

whether that purpose was a valid law enforcement
    purpose connected to the arrest; and

·

whether the purpose identified for the search
    was objectively reasonable in the circumstances.

[27]

In applying those criteria to this case, I
    distinguish between Officer Blisss examination of the inside of the vehicle in
    search of the appellants belongings, and his removal of the appellants jacket
    from the vehicle on one hand, and his subsequent search of the pockets of the
    seized jacket on the other hand. I think the appellants constitutional argument
    stands or falls on the lawfulness of Officer Blisss examination of the contents
    of the vehicle and his seizure of the jacket. If those acts were lawfully
    incidental to the appellants arrest, I would have no difficulty in holding a
    search of the pockets of the jacket before it was placed in the police cruiser
    was justified for police safety purposes as a lawful incident of the appellants
    arrest. If, however, the visual inspection of the inside of the Jeep and the
    seizure of the jacket were not incidental to the arrest, and were therefore unreasonable
    within the meaning of s. 8, it cannot assist the Crown that the police had
    legitimate safety concerns associated with the possession and control of the
    unlawfully seized jacket. If the visual search of the interior of the vehicle
    and the seizure of the jacket from the vehicle were not incidental to the
    appellants arrest, the subsequent search of the pockets of the jacket could
    not be incidental to that arrest.

[28]

The scope of the power to search as an incident
    to an arrest is fact-specific:
R. v. Fearon
, at para. 13. Valid police
    purposes associated with searches incidental to arrest include police safety,
    public safety, securing evidence, and discovering evidence. Two points should
    be stressed. First, the purpose relied on to justify the search at trial must have
    been the actual reason the police conducted the search. After-the-fact justifications
    that did not actually cause the police to conduct the search or seizure will
    not do. Second, the police purpose must be related to the specific reason for
    the arrest. Here, the appellant was arrested because there was a province-wide
    warrant for his arrest for driving while under suspension. Any search said to
    be justified as a search for evidence had to be evidence in respect of his
    arrest on the outstanding warrant, and not evidence connecting him to other
    possible offences such as drug trafficking: see
Caslake
, at paras.
    22-25.

[29]

Although the trial judge made some reference to
    the discovery of evidence as a justification for Officer Blisss actions,
    Officer Bliss never suggested he was searching for evidence that would confirm
    either the existence of the outstanding warrant, or the identification of the
    appellant as the person named in the warrant. In the circumstances of this
    case, evidence gathering provided no justification for the visual search of the
    vehicle, the seizure of the jacket, or the search of the jacket.

[30]

The reasonableness, and hence the lawfulness, of
    Officer Blisss actions turns on whether he had any authority to visually inspect
    the inside of the vehicle for property belonging to the appellant and, if he
    located any property, to seize that property and take it to the police station.
    Counsel did not refer to any statutory authority for Officer Blisss actions. I
    am not aware of any.

[31]

I see no connection between legitimate law
    enforcement interests engaged upon the appellants arrest and Officer Blisss
    search for, and seizure of, property from the Jeep, which Officer Bliss
    believed belonged to the appellant. Officer Bliss was not looking for evidence
    relating to the reason for the arrest. He had no reason to believe any officer
    or member of the public was in danger from anything in the vehicle. Clearly,
    the appellant posed no danger as he was in handcuffs in the back of the police
    cruiser. Officer Bliss wrongly believed he was entitled to seize the
    appellants property because the appellant was under arrest and was being taken
    back to the police station. By unlawfully searching the vehicle and taking
    possession of the jacket, Officer Bliss created a justification for the search
    of the pockets of the jacket before it was placed in the police cruiser.

[32]

There are circumstances when the police arrest a
    person in a vehicle in which the police are authorized, indeed required, to
    take control of, and responsibility for the vehicle and its contents. In those
    circumstances, the police are also sometimes authorized to itemize and secure the
    contents of the vehicle: e.g. see
R. v. Russell
, 2018 BCCA 330;
R.
    v. Cuff
, 2018 ONCA 276. Those circumstances did not exist here.

[33]

The Thunder Bay police had no intention of
    taking control of the vehicle when Officer Bliss went looking for the
    appellants belongings and seized the jacket. To the knowledge of Officer Bliss
    and Officer Milionis, the woman driving the vehicle would be on her way,
    wherever she was going, once the
Highway Traffic Act
matter had been
    addressed. The police had no authority to prevent the driver from leaving with
    the vehicle after the
Highway Traffic Act
matter was completed.
    Equally, the police had no power to itemize the contents of the Jeep or, more
    specifically, to look for, and take possession of, the appellants personal
    property in the Jeep. If Officer Bliss was concerned about the appellant losing
    track of his property, or being cold while in custody, Officer Bliss could have
    offered to collect the appellants belongings from the Jeep for him.

[34]

At trial, and again on appeal, the Crown relies
    on two cases from this court,
R. v. Aviles
, [2017] O.J. No. 3968 and
R.
    v. Valentine
, 2014 ONCA 147. Both cases are factually different from the
    present case, and make the point that the scope of the power to search
    incidental to arrest is necessarily fact-specific.

[35]

In
Aviles
, the accused was arrested for
    an assault which had occurred shortly before the arrest. As he was being arrested,
    a shoulder bag fell from the accuseds shoulder on to the ground. After the police
    had secured the accused, a police officer picked the bag up and searched it
    quickly for a weapon before taking the bag into custody. The bag was searched
    more thoroughly, subsequently. Narcotics and a knife were found in the bag.

[36]

On appeal, the court focused on the lawfulness
    of the initial search. The accused argued there was no objectively reasonable
    basis to search the bag for officer safety purposes. The trial judge found, in
    all the circumstances, there were legitimate officer safety concerns.

[37]

Aviles
involved
    the application of well-settled legal principles to a specific set of facts.
    The argument in this court focused on the reasonableness of the trial judges
    finding the police had grounds to search the bag for officer safety reasons.
    The authority of the police, as an incident of an arrest, to take possession of
    a bag dropped on the ground by an accused during his arrest is beyond question.
    The authority to look into the bag for officer safety purposes, or some other
    legitimate arrest-related purpose, depends on the facts. In
Aviles
,
    the trial judge found there was a basis for officer safety concerns. This court
    held the trial judges finding was not unreasonable.

[38]

R. v. Valentine
is relied on by the Crown to support the contention that a police officer may
    search an area of a vehicle in which an arrested person was sitting, for
    officer safety reasons, even after the person has been arrested, handcuffed and
    placed in police custody. Before considering
Valentine
, I observe the
    trial judge, to the extent he considered police safety concerns, focused on
    those concerns as a justification for the search of the pockets of the jacket
    before it was placed into the police cruiser. I do not read the trial judge as
    finding the visual search of the interior of the vehicle and the seizure of the
    jacket from the vehicle were justified on police safety grounds:
R. v.
    Solano-Santana
, at paras. 55-56. It is unclear from Officer Blisss
    evidence whether he relied on officer safety concerns when examining the interior
    of the vehicle and seizing the jacket. If he did, those concerns were not objectively
    justifiable in the circumstances and could not provide a legitimate purpose for
    either the visual search of the inside of the vehicle, or the seizure of the
    jacket.

[39]

Returning to
Valentine
, a  police
    officer stopped a vehicle for a traffic infraction. A CPIC search indicated a
    potential breach of an outstanding bail order. The officer took the accused from
    his vehicle to the police cruiser and arrested him on that charge.

[40]

The arresting officer testified he was trying to
    decide whether to release the driver at the scene on some form of promise to
    appear, or take him back to the police station. If the officer chose to release
    the arrested person, he would be free to return to his automobile. The officer
    had concerns, for reasons which need not be detailed here, about his safety if
    the appellant was allowed to return to his vehicle. The officer decided to
    perform a brief safety search of the vicinity around the drivers seat in the
    vehicle. He discovered drugs.

[41]

In upholding the trial judges ruling the
    officers search was a lawful incident of arrest, this court said, at para. 47:

The route leading to the trial judges
    conclusion that the search was for a valid objective of officer safety was as
    follows. The trial judge accepted Constable Dowlings testimony that he was
    concerned about releasing the appellant  The trial judge then held that the
    prospect of allowing the appellant back into his car gave rise to a concern
    over officer safety based on the possibility there may be weapons in the car
    proximate to the drivers seat. The concern was valid in the light of the
    appellants criminal antecedents and the disturbing behaviour he had exhibited
    in the course of the stop.

On this record, I see no reason to interfere
    with the trial judges finding that the search of the front of the car was
    reasonable based on a valid objective  officer safety.

[42]

In this case, unlike
Valentine
, there was no possibility the appellant would be
    released and allowed to return to his vehicle. He was in the police cruiser and
    was going to be taken to the police station and held in custody.
Valentine
does not assist the Crown.

[43]

For the reasons set out above, Officer Bliss did
    not act lawfully when he visually examined the interior of the Jeep, seized the
    jacket, and searched the jacket. His actions constituted an unreasonable search
    and seizure in violation of s. 8 of the
Charter
.

IV

section 24(2) of the
charter

[44]

When this court finds a
Charter
violation not found at trial, this court will, if the trial record permits a
    full and fair assessment, engage in its own s. 24(2) analysis: e.g. see
R.
    v. Balendra
, at para. 62. The appellant submits the assessment cannot be
    done on this record. The Crown says it can be.

[45]

The trial judge addressed s. 24(2), even though
    he found no
Charter
breach. His consideration of s. 24(2) is, however,
    brief, no doubt because it was hypothetical. The trial judge does not make
    findings of fact that would assist this court in a s. 24(2) analysis. His
    description of the
Charter
-
infringing
    conduct as not very serious and the impact of any
Charter
violations
    on the appellants rights as minimal are not helpful. The trial judge does
    not identify the breaches he is assuming for the purpose of his
    characterization of those breaches:
R. v. Solano-Santana
, at paras.
    75-76. The trial judges reasons do not assist this court in considering the
    application of s. 24(2).

[46]

The Crown, in submitting this court can do the
    necessary s. 24(2) analysis, focuses exclusively on the s. 8 breach, which
    occurred in respect of the visual search of the car, the seizure of the jacket,
    and the search of the jacket. Were the s. 24(2) focus that narrow, the Crown
    would have a good argument for this court making the s. 24(2) analysis.
    However, the impact of a
Charter
breach on the administration of
    justice, for the purposes of s. 24(2), must look to the overall conduct of the
    police investigation and the impact of any
Charter
breach on the
    investigation as a whole: see
R. v. Gonzales
, 2017 ONCA 543, at paras.
    163-66.

[47]

In this case, the breach of the appellants s. 8
    rights led directly to the discovery of the pills in the jacket pocket. That discovery
    led immediately to the arrest of the appellant and the driver on drug
    trafficking charges. Without the pills, that arrest would not have occurred.
    The arrest, in turn, led to further searches which yielded cellphones that
    ultimately led to evidence consistent with drug trafficking. Without the illegal
    seizure of the pills, there would have been no arrest on drug trafficking
    charges, and no search of the cellphones. Lastly, the discovery of the pills in
    the jacket played a prominent role in the police obtaining a search warrant for
    the appellants hotel room. That search yielded thousands of pills.

[48]

It is arguable all of the evidence seized from
    the Jeep Cherokee was tainted by the s. 8 violation and obtained in a manner
    that infringed the appellants s. 8 rights. On this view, the privacy
    infringement went well beyond the seizure of a jacket from the back of the
    vehicle: see
R. v. Whittwer
, [2008] 1 S.C.R. 235, at para. 21;
R.
    v. Kokesch
, [1990] 3 S.C.R. 3.

[49]

It is also arguable, if the information that the
    police discovered pills in the appellants jacket were to be removed from the
    affidavit relied on to obtain the search warrant, the remaining information
    would not justify the issuance of the warrant. The warrant would fall,
    rendering the search of the hotel room warrantless and unconstitutional: e.g.
    see
R. v. Evans
, [1996] 1 S.C.R. 8, at para. 19. An unlawful search of
    the appellants hotel room raises significantly different privacy concerns than
    does the visual search of the vehicle and the seizure of a jacket from the
    vehicle.

[50]

There was some argument at trial about the
    effect of the unconstitutional seizure of the appellants jacket and the pills
    in that jacket on the constitutionality of subsequent police conduct. The trial
    judge did not address those submissions in his reasons. The arguments advanced
    on appeal also did not address the impact of the s. 8 breach on the
    constitutionality of other aspects of the police investigation.

[51]

The determination of whether the evidence seized
    from the Jeep, the jacket, and the hotel room, should be excluded under s.
    24(2) cannot be done on appeal. On this record, the court cannot, with any
    confidence, make the findings necessary to put sufficient meat on the
    evidentiary bones so as to properly perform a s. 24(2) analysis. I cannot say what
    part, if any, of the evidence should be excluded under s. 24(2) as a consequence
    of the s. 8 breach I have identified. There must be a new trial.

Released:

DD
JUN 11 2020

Doherty J.A.

I agree David Watt J.A.

I agree B.W. Miller J.A.