This week’s top three summaries: R v Mayor, 2019 ONCA 578, R v Mohamed, 2019 ABQB 499, and R v Young, 2019 ONSC 3563.

R v Mayor (ONCA)

[June 8/19] Charter s.8 - Traffic Safety Used as Ruse to Engage in a Detention & Search - 2019 ONCA 578 [M. Tulloch J.A., K. van Rensburg J.A., and Harvison Young J.A.]

AUTHOR’S NOTE: The idea of "lawful placement" in policing circles sometimes insidiously finds its way into courtrooms.  In law, the idea that an officer is "lawfully placed" to do a thing does not determine that they "if fact" did the thing they were lawfully placed to do.  Judges must determine the actual mental intent of the officer in the act.  Road safety legislation gives police officers many powers to stop and briefly detain motorists, but where this legislation is used as a ruse for other investigative purposes, it results in a Charter violation.  Here, the Court of Appeal finds the trial judge did not resolve the issue of the actual intent of the officer irrespective of his/her ability in law to do what they did.  A new trial is the result.

Pertinent Facts

"After the Hamilton Police Service received an anonymous tip that the appellant was dealing drugs from his car, their High Enforcement Action Team (HEAT) began an investigation of the appellant in December 2015. An officer with the team conducted surveillance on the appellant on four occasions without observing any signs of drug trafficking. In the course of the investigation, the officer learned that the appellant's driver's licence was suspended." (Para 1)

"On January 17, 2016, the appellant's vehicle was stopped by that officer and another HEAT member. They arrested him for driving with a suspended licence. The officer who had previously investigated the appellant rearrested him for impaired driving after observing signs of impairment. Another officer arrived to provide backup and searched the vehicle. The search revealed cocaine, cell phones, and drug-related paraphernalia. The appellant was then charged with possession of a controlled substance for the purpose of trafficking." (Para 2)

Traffic Safety Legislation and the Power of Police to Stop Motorists

"The Ontario Legislature has given the police broad powers to stop motor vehicles for highway regulation and safety purposes, and, in some circumstances, to arrest drivers of motor vehicles. Section 216(1) of the Highway Traffic Act gives an officer the power to stop a vehicle, even if the stop is random and the officer lacks reasonable and probable grounds or even reasonable suspicion: R. v. Gonzales, 2017 ONCA 543 (CanLII), 136 O.R. (3d) 255, at para. 55. The Supreme Court upheld this power as constitutional in R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257. Likewise, s. 217(2) of the Highway Traffic Act authorizes an officer to make a warrantless arrest of a person who the officer believes on reasonable and probable grounds to be driving while suspended. If the officer is satisfied that a person is driving while suspended, the officer also has the duty to detain and impound the vehicle: Highway Traffic Act, s. 55.2(1)." (Para 6)

"However, the existence of these powers does not automatically make motor vehicle stops lawful because the police are not free to use these powers for some other purpose, including to further a criminal investigation. The Legislature granted the police these powers for the purpose of ensuring road safety: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.), at pp. 242-243. The court must ensure that the police use these powers in a manner consistent with this purpose. As a result, if the police do not have road safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the stop: Gonzales, at para. 60. If the police cannot point to any other legal authority for the stop, the stop will not be authorized by law and so will violate s. 9 of the Charter: R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353, at para. 54. The court must thus determine whether the officer actually formed a “legitimate intention” to make the detention or arrest for road safety purposes: R. v. Sandhu, 2011 ONCA 124 (CanLII), 268 C.C.C. (3d) 524, at para. 62."" (Para 7)

"in Brown, Doherty J.A. found that motor vehicle stops which were partially motivated by a desire to investigate crime were lawful because the police also had road safety purposes in mind: at pp. 239-240. Doherty J.A. noted that a Highway Traffic Act stop where the police are furthering some other legitimate interest is lawful provided that the additional police purpose is not improper or pursued through improper means, and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the Highway Traffic Act: at p. 236. See also Gonzales, at para. 58." (Para 8)

"However, if the officer does not have a legitimate road safety purpose in mind and is using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful. As Doherty J.A. held in Brown, the Highway Traffic Actpowers will not authorize police stops if the police use these powers as a “ruse” to justify a stop for another purpose: at p. 234. Likewise, in R. v. Nolet, 2010 SCC 24 (CanLII), [2010] 1 S.C.R. 851, at para. 36 (citations omitted), the Supreme Court emphasized that courts should not permit the police to invoke road safety detention powers as “a plausible façade for an unlawful aim.” Accordingly, in R. v. Humphrey, 2011 ONSC 3024 (CanLII), 237 C.R.R. (2d) 109, at para. 88, Code J. held that using Highway Traffic Act powers “as a mere ‘ruse’ or ‘pretext’ for a broad and unfounded criminal investigation” would violate s. 9 of the Charter." (Para 9)

"Consequently, the court must make a factual determination as to whether the officer had a road safety purpose in mind or whether the officer was using the Highway Traffic Act power as a ruse to conduct a criminal investigation." (Para 10)

Application of the Law

"In our view, the trial judge did not resolve the central issue on the application, which was whether the police used powers that the Legislature granted for a road safety purpose as a ruse to search the appellant's vehicle as part of a drug investigation. Instead, he appears to have treated the existence of the power to arrest the appellant for suspended driving in s. 217(2) of the Highway Traffic Act as dispositive. He erred in law in so doing." (Para 13)

"The conclusion that the trial judge did not make the necessary findings and apply the proper test in considering whether the appellant's arrest was lawful, is sufficient for the determination of the appeal. We therefore allow the appeal, set aside the appellant's conviction, and direct a new trial before a different judge." (Para 16)

R v Mohamed (ABQB) 

[July 4/19] Charter s.9 - Police Ruse Stop - Charter s24(2) - Low Public Interest in Trial on the Merits Where Punishment Low - 2019 ABQB 499 [Mr. Justice V.O. Ouellette]

AUTHOR’S NOTE: In the above decision, the ONCA provides the roadmap for what should be considered to determine if a traffic stop is actually a ruse by the police.  Herein, Justice Ouellette, sitting as a Summary Conviction Appeal Court, provides a example of how that finding should be made.  This case is useful to convince other jurists that this has happened in your matter.

Pertinent Facts

"At 1:30 a.m. on January 16, 2018, the police were on proactive patrol in southeast Edmonton, a high property crime area. Part of the proactive patrol was the detection of stolen vehicles and in particular, Ford trucks were targeted. Further, the proactive stops were done in order to ensure that the vehicles were not in fact stolen without the owner's knowledge. If the police officer saw such a truck, his policy was to query the license plate. If the query revealed that the registered owner was of a different gender than the driver, he would stop the truck to see if the driver had the consent of the registered owner to drive the vehicle. Mr. Mohamed was stopped while driving a Ford F150 truck, which was registered to a female. He was detained, arrested and eventually charged with driving while disqualified and a breach of probation, both offences under the Criminal Code of Canada. He was convicted of those offences at trial and this is his appeal of those convictions." (Para 1)

"On January 16, 2018, the police officer was conducting proactive patrol at approximately 1:30 a.m. (Trial Transcript [TT], July 26, 2018, at 2/36). The purpose of the proactive patrol was to ensure that vehicles were not stolen without the owner's knowledge (TT at 17/30-31). The police officer observed a Ford F150 truck, which is commonly on their list for stolen vehicles (TT at 3/13). The police officer then queried the license plate on this vehicle and found that the registered owner was listed as a female — and he observed that a male driver was operating the truck (TT at 2/39-40). He went on to state that it is his particular practice to query license plates, and if there is a mismatch — that is, a male driver is operating the vehicle and the truck is registered to a female, he will conduct a traffic stop in order to ensure that the male driver has all of his documents in proper order and whether he is wanted on any outstanding warrants, or that the driver is abiding by any release conditions (TT at 2/41; 3/1, 30-39; 8/7-8)." (Para 9)

"He went on to state that he has a standard policy that in any case where the gender of the driver does not match the gender of the registered owner, he will conduct a vehicle stop (TT at 10/8-11). His standard policy also is applied if there is a significant age differential between the driver and registered owner (TT at 10/11-14)." (Para 11)

"When questioned on whether there was any requirement that the registered owner be the one operating the motor vehicle, he agreed there was no such requirement; however, the officer added that he has the authority to conduct a traffic stop for a variety of reasons (TT at 10/24-27; 11/24-31). The stop was to determine whether or not the vehicle may have been stolen without the registered owner's knowledge at the time (TT at 11/26-31). Additionally, that the policy of conducting such a vehicle stop is to then check the documents of the driver and also determine if there is a revelation that the driver has warrants or is bound by conditions. That is, the reason why he conducted this stop was "in order to possibly gain that information" (TT at 10/35-40)." (Para 13)

"As a result of the police officer's policy, he stopped Mr. Mohamed and upon conducting a search of information that was provided, including a Canadian Police Information Centre system (CPIC) query, he determined that Mr. Mohamed was a criminally prohibited driver and on probation, and charged him accordingly." (Para 14)

Charter s.9 Law and Application

"Based on the facts of this case, one of the reasons provided by the police officer to stop this vehicle was to check for proper driving documentation. That reason is for the purposes of administering and enforcing the Traffic Safety Act and the police officer was authorized by law to detain the driver for that purpose." (Para 33)

"However, the facts of this case also disclose that this was not truly a random stop and as confirmed by the police officer, was in fact a targeted stop. The police officer further confirmed that the targeted stop was to determine if the driver of the vehicle was operating it with the registered owner's consent, whether or not the motor vehicle was stolen, and whether or not the driver may have outstanding warrants or be bound by court conditions." (Para 34)

"The facts of this case further lead to the conclusion that one of the purposes or aim of this traffic stop was the investigation of possible criminal activity. The evidence is that the stop was targeted and not random. In this case on appeal, the sequence of events prior to the officer’s stopping of the Appellant are inconsistent with a truly random stop, which the Supreme Court of Canada confirmed in R v Nolet at para 22 is “is, by definition, an arbitrary detention,” albeit justifiable. Further, as testified to by the police officer, the purpose of doing a query on the license plate was to determine the identity of the registered owner, which would then lead to whether or not the driver appeared to match the registered owner. The officer further testified that in the event of a mismatch between the registered owner and the driver, that the purpose of the stop was to determine if the driver had the consent of the registered owner to operate the vehicle and in essence, to determine whether or not the vehicle was yet an unreported stolen vehicle. Lastly and in addition, the officer testified that he was trying to gain information as to whether or not the driver had any outstanding warrants or release conditions that he may be breaching. None of these purposes or aims have anything to do with the administration and enforcement of the Traffic Safety Act." (Para 36)

"Effectively, the “proactive patrol” which was presumably designed to address crime and disorder – and in this case, involved a preliminary query of the subject vehicle’s licence plate on CPIC – is distinctive from a random stop program with a direct and legitimate traffic safety purpose." (Para 37)

"Based on the record before me in this appeal, the subject “proactive” patrol under appeal had a combination of two aims or objectives: (i) “to determine [who] is in possession of the motor vehicle [because] sometimes vehicles are stolen without the registered owner’s knowledge” or “whether or not they are wanted on any outstanding warrants” (criminal investigation related objectives - (TT at 10/19-20; 11/26-31)); and (ii) “the need to identify the driver in order to ensure that they have proper documentation” (traffic safety related objective - (TT at 10/19-20))." (Para 38)

"As stated in Ladouceur Sask, although this targeted stop had a nominally lawful aim (i.e. Traffic Safety Act), it effectively was a plausible façade for an unlawful aim (investigating speculative criminal activity). Further, as stated in Ladouceur Sask, the two aims cannot coexist and the lawful traffic safety aim cannot cleanse a general detection of crime aim, which is unlawful, to make a check stop lawful." (Para 39)

"I adopt the concurring reasons of Bayda CJS (as he then was) of the Saskatchewan Court of Appeal in Ladouceur Sask at paras 64-66, as enunciated earlier in the section dealing with the applicable laws in this judgment. The s 1 of the Charter cleansing of a s 9 Charter breach does not go so far as to encompass the detection of criminal activity or the indiscriminate identification of criminals." (Para 40)

"Apart from the unlawfulness of a dual purpose check-stop, a “subsidiary purpose,” which amounts to “a speculative criminal investigation, or a ‘fishing expedition’” would vitiate the lawfulness of an authorized traffic safety enforcement and administration check-stop: R v Le at para 127." (Para 41)

"Ironically, if the proper, limited purpose for the stop was the enforcement of the Traffic Safety Act, and more particularly the check for documentation of a valid driver’s license, it in itself would have revealed that Mr. Mohamed was disqualified from operating a motor vehicle, and in that situation, there would not have been any s 9 Charterbreach: R v Zolmer, 2019 ABCA 93 (CanLII) at paras 6-9, 83 Alta LR (6th) 1; R v Dhuna at paras 22-25." (Para 43)

"As a result of this unlawful subsidiary purpose, the lawfulness of an authorized traffic safety enforcement and administration stop is vitiated." (Para 44)

"The lawfulness generated by the Traffic Safety Act is exceeded where the aim of the stop is combined with a purpose that encapsulates general detection of criminal activity or speculative criminal investigation, or a “fishing expedition.”" (Para 45)

"As a result, the detention of the Appellant was arbitrary and constituted a breach of s 9 of the Charter. Consequently, in the total circumstances of this case, Mr. Mohamed’s detention was unlawful and was arbitrary." (Para 46)

Charter s.24(2) - Interest in Prosecution on the Merits

After finding the breach was serious (Para 57), the Justice went on to consider the 3rd factor in Grant:

"The charges against Mr. Mohamed are relatively minor when compared to the serious offences that Mr. Le faced. This is further confirmed by the sentence that was imposed upon Mr. Mohamed being 30 days' jail and that the Crown proceeded by summary conviction. As a result, this question does not provide support for admitting the evidence for the purposes of having adjudication of the case on its merits." (Para 61)

"The appropriate remedy, accordingly, is the exclusion of all the evidence flowing from the check stop." (Para 63)

R v Young (ONSC)

[July 10/19] – Charter s.8 - The Plain View Doctrine – 2019 ONSC 3563 [P.J. Monahan J.]

AUTHOR’S NOTE: Herein, Justice Monahan provides a thorough review of the plain view doctrine in determining that police actually violated the provisions of this during an emergency (R v Godoy) entry.  Importantly, when the police officers have to go places and moving things that are unnecessary to their emergency duties, they go beyond what is lawful and risk exclusion of everything they find.

Pertinent Facts

The Entry

"On July 9, 2017, Brodie Young was charged with possession of crystal methamphetamine for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act. The crystal meth was seized as the result of a police search of a condominium apartment that had been rented by Mr. Young through the web service Airbnb.” (Para 1)

"At approximately 12:30 PM on July 9, 2017, the father of Sonia Baldi contacted police to assist with removing his daughter from a condominium located at 20 Blue Jays Way, Suite 311, in the City of Toronto. Mr. Baldi advised that earlier that day he had received text messages from his daughter Sonia, indicating that she was in a possibly dangerous situation and asking him to come and get her out. Mr. Baldi further indicated that his daughter was addicted to drugs and that she was fearful of the male individual with whom she was staying in the condo at Blue Jays Way." (Para 6)

"Shortly after receiving this call, two police officers, including Officer Min Kim, 2 attended at the condominium on Blue Jays Way, where they met Mr. Baldi. With the assistance of the concierge they went up to unit 311. When they knocked on the door, a female matching the description of Sonia Baldi answered the door. Officer Kim called out to see if anyone else was present and observed a male coming out from the bedroom area. This individual identified himself to the officers as Brodie Young." (Para 7)

"Officer Kim moved Mr. Young out into the hallway and placed him under investigative detention. He also decided to place him in handcuffs at this point in order to ensure officer safety, as well as the safety of Ms. Baldi, while he undertook various computer checks and inquiries." (Para 8)

"Two more police officers arrived at the condominium apartment at approximately 1:13 PM. One of these officers, officer Scharnil Pais, 3 observed that when he arrived, Mr. Young had already been detained and was in handcuffs. Officer Pais did a pat-down search of Mr. Young for drugs or weapons. Mr. Young stated that there might be drugs on the kitchen counter in the apartment. Officer Pais went back into the apartment but did not see any drugs on the kitchen counter. He searched in four kitchen drawers for drugs, but did not find anything of interest." (Para 9)

"As a result of his inquiries, Officer Kim learned that Mr. Young had rented the condominium under the name "Cody Johnson", using a Québec driver's license with that name but bearing Mr. Young's image. At approximately 2:19 PM, Officer Kim arrested Mr. Young for fraud, and he was transported to the police station by additional officers who arrived on the scene." (Para 10)

The Search

"Prior to allowing Ms. Baldi to leave, Officer Pais went into the bedroom of the condominium. He testified that he had a number of reasons for doing so. First, he did not know whether any of the other officers had checked the bedroom, and he wanted to ensure that there was no one else there. He also wanted to check if there were any drugs or weapons in the bedroom, since he did not want Ms. Baldi to leave with any such illicit items. He was also concerned that no drugs or weapons be left behind in the bedroom to be later discovered by the owner of the condominium. Further, he stated that he wanted to assist Ms. Baldi in retrieving her belongings from the bedroom." (Para 12)

"Officer Pais looked around the bedroom but did not see anything of interest. As he was walking back toward the door of the bedroom, he observed that the sliding glass doors on the bedroom closet were pushed into the centre of the closet. He testified that this enabled him to look into both ends of the closet as he was walking back toward the bedroom door." (Para 13)

"Officer Pais noticed a shelving unit on the left-hand side of the closet. On one of the shelves he observed a scale and a plastic baggie containing what appeared to be crystal methamphetamine. Beside the baggie was a sunglasses case with some plastic sticking out of it. He opened the sunglasses case and found a plastic baggie with what appeared to be a larger quantity of crystal methamphetamine. He also picked up a water bottle containing a clear liquid. He shook the bottle and noticed that the liquid had a thicker consistency than water, and appeared to him to be GHB. On the floor of the closet he saw a black backpack. He reached into the pouch of the backpack and pulled out a pipe. He put the pipe back in the backpack." (Para 14)

"A search warrant was applied for and obtained at approximately 7:30 PM that evening. Shortly after 8 PM, members of the Toronto Police Service Drug Squad (the "Drug Squad") conducted another search on the basis of this warrant and discovered a total of 71.06 grams of crystal methamphetamine and 172.1 grams of GHB in the condominium." (Para 16)

The Plain View Doctrine

"In this case, it is conceded that the police had the lawful authority to enter the condominium apartment at Blue Jays Way and undertake sufficient inquiries to ensure the well-being of Sonia Baldi. As the Supreme Court of Canada established in R. v. Godoy,[10] when police are dispatched in response to a distress call, they are carrying out their duty to protect life and prevent serious injury. I find that the police entry into the condominium, followed by their decision to place Mr. Young in investigative detention in order to ensure Ms. Baldi’s safety, was fully in accordance with their common-law powers as articulated by Godoy." (Para 25)

"However, Godoy also makes it clear that where police enter a dwelling in order to check on the well-being of an individual, that intrusion must be limited to the protection of life and safety. They do have sufficient authority to investigate and provide such assistance as may be required. But their authority ends there. In particular, a call for police assistance at a private residence does not open the door for a police search of the residence in an effort to discover evidence of criminal activity.[11]" (Para 26)

"In short, although the police were justified in entering the condominium apartment at Blue Jays Way to check on the health and well-being of Ms. Baldi, they had no authority to conduct a warrantless search of the premises." (Para 28)

"The Crown did not take issue with the proposition that police answering a call for assistance at a private residence do not thereby have authority to conduct a search of the premises. However, the Crown argues that the discovery of drugs in the bedroom by Officer Pais was legally justified by the so-called "plain view" doctrine." (Para 29)

"The scope of the plain view doctrine was clarified by the Court of Appeal in R. v. Jones,[13] where Blair J.A. set out the following four conditions that must be satisfied before the doctrine applies:

i. the police officer must be lawfully in the place where the search is being conducted;

ii. the nature of the evidence must be immediately apparent as constituting a criminal offence;

iii. the evidence must have been discovered inadvertently; and

iv. the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes." (Para 31)

"First, I find that Officer Pais had no authority to enter the bedroom to conduct a search." (Para 34)

"Officer Pais claimed that one of the reasons he went into the bedroom was to ensure that there was no one else there, out of a concern for officer safety. I have serious concerns about the plausibility of this explanation." (Para 35)

"When Officer Pais decided to go into the bedroom, he and his colleagues had been in control of the premises for well over an hour. If Officer Pais had a genuine concern about the possibility of another person hiding in the bedroom, why would he have waited over an hour to check the room?" (Para 36)

"I need not determine whether Officer Pais subjectively believed that there was any concern for officer safety when he decided to go into the bedroom. In order for a warrantless search to be justified, a police officer must not only subjectively believe the search to be necessary, there must be objectively reasonable grounds for the search.[15]In this case, no such reasonable grounds existed by the time Officer Pais decided to search the bedroom. Numerous police officers had been on-site for well over an hour. They had completed their investigations and were about to leave. I find that any concerns about officer safety at this point were minimal to nonexistent, and certainly did not justify a warrantless search of the bedroom." (Para 37)

"In any event, Officer Pais acknowledged that another reason he went into the bedroom was to search for weapons or drugs. Given Ms. Baldi’s frequent drug use, he wanted to make sure that she would not take drugs out of the apartment with her. He also wanted to find and remove any drugs from the premises so that the owner of the condominium would not have to deal with them." (Para 38)

"As is explained in more detail in the next section, I also do not accept Officer Pais' evidence that he inadvertently observed drugs in the bedroom closet in plain view. Rather, I find that his view into the left-hand side of the bedroom closet would have been obscured by the open bedroom door. The only way he could observe the drugs was if he first closed or moved the bedroom door out of the way. In other words, the only reason he found the drugs was because he was searching for them." (Para 40)

"In short, I find that a primary motivation for Officer Pais' entry into the bedroom was to look for drugs and weapons. The difficulty is that police were present in the apartment only to ensure the well-being of Ms. Baldi, and they did not have authority to conduct a search. As such, when Officer Pais decided to enter the bedroom to search for weapons or drugs, he exceeded the scope of his authority. The consequence is that he failed to satisfy the first condition associated with the plain view doctrine, namely, that he have lawful authority to be in the place where the search is being conducted." (Para 42)

"Officer Pais altered his position on this point in cross-examination. He acknowledged that the bedroom door was left open while he was in the bedroom. However he claimed not to remember whether the open bedroom door had blocked his view into the left-hand side of the closet. He also claimed not to remember whether he had closed or otherwise moved the bedroom door in order to look into the closet. This was inconsistent with his evidence in chief, in which he claimed to have been able to see directly into the left-hand side of the closet as he was walking back toward the bedroom door." (Para 47)

"I find, consistent with the video evidence, that the open bedroom door obscured the left-hand side of the closet. I further find, therefore, that Officer Pais could not have seen the drugs in plain view as he was walking back towards the bedroom door. Rather, he had to have first closed or moved the bedroom door out of the way in order to observe the drugs in the closet. I do not accept his evidence to the contrary." (Para 48)

"The consequence of these findings is twofold in terms of the application of the plain view doctrine. First, the drugs were not in plain view in the bedroom. Second, Officer Pais' discovery of the drugs was not inadvertent but, rather, resulted from his deliberate closing or moving the bedroom door so as to see into the closet." (Para 49)

"The final Jones condition is that the plain view doctrine confers a seizure power and not a search power. Even where an officer sees evidence in plain view that does not, on its own, justify a search to find evidence of other crimes." (Para 53)

"Officer Pais' testimony discloses that he acted without regard to this limitation. Having noticed a plastic baggie containing what appeared to be crystal methamphetamine, along with a set of scales, he did not seize that evidence and leave the bedroom. Instead, he proceeded to open a sunglasses case where he found more drugs, reach inside a backpack where he discovered a pipe, and shake a water bottle to see if it contained GHB. These actions clearly took his conduct outside of the scope of the plain view doctrine." (Para 54)

"I therefore find that the plain view doctrine has no application in the circumstances of this case." (Para 55)

Charter s.24(2) Analysis

Seriousness of Charter-infringing State Conduct

"I consider the Charter-infringing police conduct in this case to be very serious."(Para 63)

"This was not an instance where the governing constitutional principles were unclear or uncertain. Godoy had made it quite plain that when police are called upon to check the well-being of a person in a private residence, they are not thereby entitled to conduct a warrantless search for evidence of criminal activity. Similarly, the principles governing the application of the plain view doctrine had been clarified in Jones, which specified that this doctrine confers a seizure power not a search power, and is limited to seizing items that are immediately apparent and discovered inadvertently." (Para 64)

"The finding of a Charter violation in this case did not require a close call. None of the four limiting conditions specified in Jones was satisfied. Indeed, Officer Pais appeared to proceed in a manner without any meaningful regard to clearly established constitutional principles and limitations." (Para 65)

Impact on the Charter-protected Interests of the Accused

"The Crown suggested that the privacy interest at stake in this case was somewhat diminished because the condominium was being occupied as an Airbnb rental as opposed to being leased on a long-term basis. I see no reason in principle why the privacy interests of persons renting premises through Internet services such as Airbnb should be diminished or uncertain. As noted earlier, persons have a constitutionally protected privacy interest in a hotel room, which can be rented on a daily basis.[21] An Airbnb rental, which is analogous to the rental of a hotel room, is entitled to no lesser constitutional protection." (Para 69)

"I conclude that the Charter violation had a very significant impact on Mr. Young’s protected constitutional rights, and this factor tends to support the exclusion of the evidence." (Para 70)


"I therefore find that the admission of the drug evidence discovered by Officer Pais through his unlawful search of the bedroom closet would tend to bring the administration of justice into disrepute, and that the evidence should be excluded." (Para 75)