R. v. Hynes

2019 BCSC 890 R. v. Hynes

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hynes, 2019 BCSC 890 Date: 20190516 Docket: 40629-2 Registry: Port Alberni Regina v. Scott Albert Anthony Hynes Before: The Honourable Madam Justice Marzari Oral Reasons for Judgment on Voir Dire Counsel for the Crown: C.J. Gibson Counsel for the Accused, Scott Hynes: C.L. Hodson Place and Date of Hearing: Port Alberni, B.C. May 13-15, 2019 Place and Date of Judgment: Port Alberni, B.C. May 16, 2019

INTRODUCTION [1] Mr. Hynes is charged with possession for the purpose of trafficking in controlled substances under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.

19. These offences are alleged to have occurred in and around the noon hour of October 27, 2017, at 5433 River Road in Port Alberni, B.C. (the "Property"). [2] In brief, Mr. Hynes was discovered in the vicinity of an open box containing approximately 75 grams of cocaine and 20 grams of methamphetamine (among other things) in a derelict building located adjacent to and on the same Property as the RV where he lived. The RCMP seized that box, and shortly thereafter arrested Mr. Hynes. In a search incident to his arrest a cell phone was also seized from Mr. Hynes. [3] Mr. Hynes challenges the constitutionality of the seizure of the box containing the cocaine and methamphetamine on the basis of his rights under sections 8, 9, and 10(b) to be free of arbitrary search and seizure, arbitrary detention, and his right to counsel. He seeks the exclusion of the box and its contents pursuant to s. 24(2) of the Charter. [4] He also challenges the constitutionality of the search of a phone that was found on his person in the search incident to his arrest as contrary to s. 8 of the Charter. He specifically challenges the search of the phone without a warrant, and challenges the admissibility of the photographic evidence and the constable's description of that evidence taken from the phone. I should note that he does not challenge the reasonableness of the arrest itself, or the admissibility of

the phone and a quantity of cash that was found on his person. [5] In his application, Mr. Hynes originally also challenged the admissibility of a recorded exchange at the police detachment upon his release later that day pursuant to s. 10(b). The Crown is not seeking to adduce that statement. Mr. Hynes amended his application by consent to reflect that the alleged s. 10(b) breach goes to a pattern of abuse relevant to the exclusion of the specifically challenged evidence: the black box and its contents, and the results of the search of the cell phone. [6] I declared a voir dire at the outset of the trial and the evidence of the investigating officer and a second officer was led by the Crown in the voir dire. The officers were cross-examined, but no further evidence was led on behalf of the defence for the purposes of the voir dire. These are my reasons on the voir dire.

THE EVIDENCE AT ISSUE [7] The evidence at issue in this voir dire, the admissibility of which is challenged by Mr. Hynes, consists of the following: a) Evidence regarding a black plastic box containing the following items: a. 1 package of methamphetamine weighing approximately 20 grams; b. Various packages of powder cocaine weighing approximately 75 grams in total; c. A scale with apparent traces of cocaine; d. A package of over 20 small unused baggies; e. Mr. Hyne's SIN card; and b) Images and oral evidence with respect to Constable Dupuis' search of a phone in Mr. Hyne's possession when he was arrested.

FINDINGS OF FACT [8] Constable Dupuis gave evidence with respect to the events leading up to the arrest of Mr. Hynes. I will summarize here my findings of fact based on the constable's evidence in direct and cross-examination: [9] Shortly before noon on October 27, 2019, Constable Dupuis attended at the Property located at 5433 River Road in Port Alberni. He was alone and in plain clothes, but he had his police vest on clearly identifying himself as a police officer. He did not have his full police tool belt, but he did have a pair of handcuffs and a sidearm. [10] I accept Constable Dupuis' evidence that when he attended this Property he was anticipating a generally friendly encounter with Mr. Hynes, as a follow up to a conversation he had had with him in the early evening the previous day. His investigation was directed toward a Mr. Laderoute, whom he believed to be involved in property crimes and stolen goods, and whom he had seen enter the driveway to the Property the previous evening. Mr. Hynes had told Constable Dupuis that Mr. Laderoute was squatting in the derelict house on the Property. [11] In his direct evidence Constable Dupuis testified that Mr. Laderoute had not been located the previous evening, and that around 11:00 a.m. on October 27 he was searching various parks and green areas for Mr. Laderoute's campsite in an effort to locate him. He testified that when

those searches had been unsuccessful, he decided to go back to the Property to speak with Mr. Hynes to see if he could get any further information that might assist him. [12] In cross-examination, Constable Dupuis was shown a court record showing that Mr. Laderoute was in custody as of 2:45 p.m. on October 27, 2017. Based on that information, Constable Dupuis reviewed his notes and concluded that he had been mistaken in his memory of whether Mr. Laderoute had been apprehended. On a closer review and after further reflection he recalled that Mr. Laderoute had been apprehended, that he must have seen him in cell blocks on the morning of October 27, and that his investigation of the parks and green areas that morning was for Mr. Laderoute's campsite, but not for Mr. Laderoute himself. His notes refreshed his memory that he specifically went to see Mr. Hynes on October 27 because he wanted to ask Mr. Hynes questions about Mr. Laderoute's appearance that had arisen from seeing Mr. Laderoute that morning in cells, and in reviewing some CCTV footage he believed to be of Mr. Laderoute. [13] Although Constable Dupuis' evidence changed as to the specific reason for going to see Mr. Hynes the morning of October 27, 2017, I accept on all the evidence that Constable Dupuis did accurately describe his broader motive, and specifically that his motive in attending at the Property that date was

not to investigate Mr. Hynes, but to gather more information about Mr. Laderoute. Despite this discrepancy in his memory, Constable Dupuis was forthcoming in his evidence and in cross-examination about the limits of his memory. He was not defensive, and overall his evidence was balanced and fair, easily conceding where he may have been mistaken or points on which he was uncertain. [14] Constable Dupuis has a significant amount of experience in the area of policing, community policing, drug investigations, and major crimes. He had been an officer at that time for approximately 14 years, the last 7 of which had been in Port Alberni. He is now an RCMP instructor in Regina. [15] I accept Constable Dupuis' evidence that when he walked up the approximately 100 feet of driveway of the Property he was not anticipating any difficulties, but was rather expecting a relatively cordial encounter with a man whom he knew fairly well in his dealings as an officer in the community, and whom he fully expected would be helpful to his investigation as he had been the previous day. [16] Constable Dupuis first saw a Mr. Norris in the driveway between Mr. Hyne's trailer, and the derelict house where he had been told that Mr. Laderoute had been squatting. Mr. Norris was also well known to Constable Dupuis as a person involved in the methamphetamine drug subculture of Port Alberni. Mr. Norris was known

to Constable Dupuis as both an addict and a "taxi", receiving money and drugs in exchange for driving other persons also involved in Port Alberni's drug subculture. [17] Mr. Norris had also been at the Property the previous evening when Constable Dupuis attended looking for Mr. Laderoute. Constable Dupuis was on a first name basis with Mr. Norris, as well as Mr. Hynes. Constable Dupuis waived and told Mr. Norris he was looking for Mr. Hynes. Mr. Norris indicated that Mr. Hynes was up a short flight of stairs in the derelict house on the Property. Mr. Norris called out some words to the effect that "Scott, the police are here." Scott is Mr. Hynes' first name. Constable Dupuis says that nothing about this raised a concern in his mind that anything was out of the ordinary, or that this was meant to be a warning to Mr. Hynes, though he recognizes in hindsight that it may well have been. [18] Constable Dupuis took the stairs up to the landing of the derelict home, calling out a similar greeting or warning, to the effect of "Scott, it's Steve from the police station". It was not until he reached the top of the stairs and saw Mr. Hynes that he understood that his conversation with Mr. Hynes was not going to be the cordial and helpful discussion he was anticipating. [19] I find on the evidence that when Constable Dupuis reached the top of the stairs he had a clear view through the open

door of Mr. Hynes and a woman, Ms. Chase, with their backs to him and leaning over what turned out to be a non-functioning washing machine lying on its side. [20] As Constable Dupuis arrived and announced his presence, Mr. Hynes and Ms. Chase turned around quickly and Mr. Hynes quickly put his hands behind his back. Constable Dupuis saw a brown bill that looked like a $100 bill in Mr. Hynes hands before his hands disappeared behind his back. [21] From their behaviours, it was apparent to Constable Dupuis that he had just interrupted something that Mr. Hynes and Ms. Chase wanted to conceal, and that they specifically were attempting to obstruct Constable Dupuis' view of the thing that they had just been looking at and which was now situated behind them. [22] I am satisfied on Constable Dupuis evidence, including his knowledge of Mr. Hynes in different various conditions and circumstances, that he had a reasonable grounds to believe and suspect that he had just interrupted some sort of illicit activity, and that Mr. Hynes was attempting to conceal the object of that activity. Constable Dupuis's evidence was that his initial thought was that they were attempting to conceal some sort of stolen property. This was a reasonable and evidence based assumption given that he was looking at a derelict home where Constable Dupuis understood Mr. Laderoute had been recently squatting and Mr.

Laderoute had been involved in dealings with stolen property. [23] I am also satisfied, and it is not challenged, that Constable Dupuis had a reasonable safety concern regarding Mr. Hynes so quickly placing his hands behind his back. [24] Constable Dupuis then gave a direction that forms the crux of Mr. Hynes ss. 8, 9 and 10 Charter arguments: He directed Mr. Hynes and Ms. Chase to show him their hands and to step to the side. He cannot recall his precise words, but he concedes that he would likely have used an authoritative voice in stating this direction, and would also have likely gestured to where he wanted them to go so as to reveal whatever it was they were apparently attempting to conceal. [25] Both Mr. Hynes and Ms. Chase complied with this direction. [26] When they moved aside, Constable Dupuis had a clear view of what was on the overturned washing machine: a black box with its lid off containing what he considered to be an alarming amount of drugs. [27] Constable Dupuis testified that he was alarmed for a number of reasons: he knew Mr. Hynes to be in a relationship with someone he associated with the Port Alberni "drug subculture", and Mr. Norris was also involved in that subculture. He did not understand Mr. Hynes to have drug addiction issues; he associated him with alcohol and poverty related issues, but not with trafficking. He did not anticipate or expect that

Mr. Hynes would be involved with the amount of drugs he saw in that room and it took him by surprise. [28] In addition, Constable Dupuis had arrived alone in anticipation of a helpful discussion. He did not have his full police belt, and he had only one set of handcuffs. He believed he had just interrupted something far more serious than he anticipated, and that he was outnumbered 3:1 on the Property. [29] Constable Dupuis quickly determined he would not be able to safely detain any of the persons present. Although he believed, upon seeing the suspected drugs, that he had reasonable and probable grounds to arrest both Mr. Hynes and Ms. Chase, he did not consider it was safe for him to do so. Instead, his immediate concern was to secure his own safety, and to preserve the evidence in front of him. [30] There was a brief moment where Constable Dupuis says that all three of them in the room were startled and unsure how to respond. [31] Then Constable Dupuis moved into the room to secure the black box, and Mr. Hynes and Ms. Chase moved aside closer to the open door stating that the drugs were not theirs. As Constable Dupuis seized the black box, Mr. Hynes was very agitated. Near the box there was a black cell phone. Mr. Hynes told Constable Dupuis he could not take the phone because it was his. Constable Dupuis chose to leave the phone so as not to agitate Mr. Hynes further. [32]

At this point, Mr. Hynes and Ms. Chase were between him and the door. Constable Dupuis described Mr. Hynes as very agitated, "frantic" even. Constable Dupuis was familiar with situations in the past where Mr. Hynes had become similarly agitated, and one in particular where Mr. Hynes had become physically violent with a police officer. He was concerned to de-escalate the situation and remove himself and the evidence he had just seized without risk of violence. [33] At some point Constable Dupuis recalls Ms. Chase showing him her driver's license, stating her name, and asking if she could go. Constable Dupuis says he was preoccupied at that time with Mr. Hynes's behaviours and cannot recall how or even if he responded to Ms. Chase. Ultimately, Ms. Chase left the Property without any further interaction with Constable Dupuis. [34] Mr. Hynes did not ask if he could leave at that point or show any desire to do so. Instead he followed Constable Dupuis out the open door of the derelict house, down the stairs and partway down the driveway. Constable Dupuis describes Mr. Hynes as essentially arguing and pleading with him not to remove the box, and stating that they would get in trouble if it was removed. No challenge to this evidence was made by Mr. Hynes, and the Crown says it is admissible as spontaneous utterances. [35] Constable Dupuis says he then began walking backward down the

driveway of the Property so as not to put his back to Mr. Hynes, and that he kept trying to calm Mr. Hynes, asking him to stay back, not to interfere, and ultimately directing Mr. Hynes to go back to his trailer and wait for him. [36] At some point, Mr. Hynes did stop following Constable Dupuis and went back up the driveway. Constable Dupuis walked the rest of the way down the driveway with the black box, called for backup, and secured the black box in his police van, which was parked across the street from the driveway entrance to the Property. [37] After securing the black box in the van, Constable Dupuis waited at the van in a location where he could see the entrance to the driveway. He then saw Mr. Hynes walking down the driveway with a phone in his hand, apparently talking to someone. Mr. Norris was following behind him in his car, and Mr. Hynes called to Constable Dupuis asking if he could leave with Mr. Norris. [38] At that point, Constable Dupuis was aware that additional assistance was on its way, and he decided to arrest Mr. Hynes. He told Mr. Hynes that no, he could not leave. Mr. Norris left in his car, and Ms. Chase also emerged and walked away, without further incident. [39] Constable Dupuis walked back towards Mr. Hynes and told him he was under arrest for possession of drugs for the purposes of trafficking. He read Mr. Hynes his rights from a standard card that

he carries. Those rights included that Mr. Hynes had the right to contact counsel. In response to the question of whether he wanted to speak with counsel, Mr. Hynes' response was "probably". [40] Constable Dupuis searched Mr. Hynes incident to arrest and located a large quantity of loose cash, additional cash in his wallet, and an LG cell phone, which he seized on the basis that they were relevant to the offence. This arrest, search and seizure is not the subject of Mr. Hynes' challenge, and I am satisfied that the arrest was made on reasonable and probable grounds. [41] The entire interaction from Constable Dupuis' arrival at the Property to Mr. Hynes' arrest and search lasted approximately 10 minutes. [42] There is no issue taken with the lawfulness of the arrest, the adequacy of the charge, Mr. Hynes subsequent transport to the detachment, the leaving of a message with the counsel of his choice, and his subsequent release by Constable Dupuis at approximately 6:00 p.m. later that day. [43] After Mr. Hynes was taken away by another officer, Constable Dupuis remained in his police van recording his notes of the incident. [44] During this time the LG phone he had seized from Mr. Hynes rang repeatedly with the same caller. The call display showed the caller as "Big Guy", a nick name that Constable Dupuis associated with a person known to him as a "high-level" drug trafficker in

Port Alberni. [45] Constable Dupuis took photographs of the call display as he made his notes and these calls came in. The first call came in at 12:13 p.m. Another at 12:14 p.m., another at 12:29 p.m., and another at 12:34 p.m. When the 12:34 p.m. call from Big Guy came in, Constable Dupuis answered it. Constable Dupuis did not immediately identify himself, but the caller did not reveal any information and wanted to know who he was. Constable Dupuis then identified himself as a police officer and advised the caller that the phone had been seized and he need not call anymore. [46] Constable Dupuis then decided to search for any text messages from this same caller. He identified in the phone's message stream a short series of texts between October 20 and 22 and photographed them. [47] Constable Dupuis states that he then looked further into the message stream to see if there were texts from Ms. Chase. He stated he wanted to determine the extent she may have been involved and that the message stream might indicate that. However, he found no message stream from anyone with Ms. Chase's first or last name, or any likely nicknames. [48] Constable Dupuis testified that he was aware that within the drug subculture, it was common for users to share phones and that there might be messages that would indicate some communication from Ms. Chase or some other person involved in the possession

for the purposes of trafficking he had charged Mr. Hynes with. Although he was aware that there were legal limitations on what a cell phone seized incident to arrest might be searched for, he believed that searches related to potential further accomplices, scheduled meets, or tending to identify the owner of the phone were all permissible. He admitted that at this point there was nothing "exigent" about his search, and that he had obtained warrants for this purpose in the past but that they usually involved a 4-5 hour process from preparing the warrant application to waiting for it to be issued. Ultimately, because he felt his search was within his investigatory limits as a search incident to arrest he decided to proceed to review as many recent text streams as he could before the phone battery died. [49] He began with the most recent streams and if he saw anything potentially relevant to the charges he photographed the entire stream screen by screen. He testified that he considered every stream he reviewed to have relevant evidence to the investigation. He did this for approximately 25 minutes before the phone died, at which point he noted that there were still more than 10 message streams he had not got to. Constable Dupuis' last recorded stream shows a last date received of October 24, but many other streams were active the day of the arrest. After the phone died, no further attempt was made to retrieve these additional streams or other information from the phone through a warrant. [50] Constable Dupuis also took a picture of a screen of thumbnail sized photos from the phone and the phone number and serial number.

ISSUES [51] Mr. Hynes challenges the constitutionality of three aspects of his dealings with the police on October 27: a) He says first that he was detained arbitrarily when Constable Dupuis told him to move aside within the derelict house, and that he should have been provided with his rights to counsel as soon as practicable after that moment; b) He says that this arbitrary detention of being told to move aside also amounted to a warrantless and unreasonable search of a space where he had a reasonable expectation of privacy; and c) Finally, he says that the warrantless search of his cell phone was unreasonable and contrary to s. 8 of the Charter. [52] Mr. Hynes argues that the fruits of those unlawful searches, the black box and its contents, and the contents of the cell phone, should be excluded from the evidence at trial pursuant to s. 24(2) of the Charter. [53] The Crown disagrees that Mr. Hynes was detained at all prior to his actual arrest. If he was detained, the Crown says the detention was momentary and reasonable as an investigatory detention, and it was not safe or practicable to Charter warn or explain Mr. Hynes' rights to counsel at that point. [54] The Crown also says that there was no search, let alone a warrantless search. The Crown's position is that Mr. Hynes had no expectation of privacy over the area where the black box of drugs was found, and Mr. Hynes'

privacy rights were therefore not engaged at all. The Crown says that the drugs that were seized were in plain sight and the seizure was therefore lawful. [55] If Mr. Hynes did have a reasonable expectation of privacy, and asking Mr. Hynes to move aside was a search, the Crown says that the search was authorized under the common law as a safety search incidental to investigative detention. [56] Finally, the Crown says that Constable Dupuis' search of the cell phone was within the scope of a search incidental to arrest. [57] The issues I must determine in this voir dire are therefore: a) Were the accused's ss. 8, 9 and 10 Charter rights infringed when Constable Dupuis told him to move aside so he could see what was behind him? And more specifically: i. Did Constable Dupuis detain Mr. Hynes when he asked him to "move aside" and if so, was that detention arbitrary or unreasonable, contrary to Mr. Hynes s. 9 Charter rights? ii. If Constable Dupuis detained Mr. Hynes prior to his arrest, was Mr. Hynes denied his right to counsel contrary to s. 10(b) of the Charter? iii. Did Mr. Hynes have a reasonable expectation of privacy over the area where the black box was found, such that Constable Dupuis' direction that he stand aside engaged s. 8 of the Charter and Mr. Hynes right to be free from unreasonable search? iv. Was the seizure of the black box without a warrant contrary Mr. Hyne's

s. 8 right to be free from unreasonable seizure? b) Was Constable Dupuis' search of Mr. Hynes cell phone a breach of Mr. Hynes reasonable expectations of privacy and to be free from unreasonable search contrary to s. 8 of the Charter? c) If Mr. Hynes rights pursuant to any or all of section 8, 9 or 10(b) were breached, has the Crown established that the challenged evidence should nevertheless be admitted pursuant to s. 24(2) of the Charter?

DISCUSSION Detention Legal Principles and Case Law [58] I will first set out the legal principles dealing with detention that will guide my discussion. [59] In R. v. Grant, 2009 SCC 32 [Grant], the Supreme Court of Canada set out the analytical framework for determining whether a person has been detained for Charter purposes. In Grant's companion decision, R. v. Suberu, 2009 SCC 33 [Suberu], the Supreme Court of Canada applied that framework in finding that Mr. Suberu had not been detained. I will briefly review the facts in Grant and Suberu and summarize the principles that must govern my analysis. [60] Grant involved three police officers patrolling a school area around the lunch hour when they saw a young man they deemed suspicious. One officer stood in front of the man blocking his path and asked the man his name and address. The man appeared nervous and adjusted his jacket prompting the officer to tell him to keep his hands visible. The two other officers approached and stood behind the man. In Grant, the Court held that Mr. Grant was not detained when the uniformed police officer stepped into his path and asked him "what was going on" and for his name and address: para.

47. However, the nature of the encounter changed when Mr. Grant was told to keep his hands in front of him, and the two other officers took up a position behind him. At that point the "encounter took on the character of an interrogation" paras. 48, 49 and the detention of Mr. Grant crystallized. [61] In Suberu, the police were responding to a report of two men trying to use a stolen credit card. When one of the police officers who responded to the call entered the store, Mr. Suberu walked passed him saying, "He did this not me, so I guess I can go". The officer followed Mr. Suberu out of the store saying, "Wait a minute, I need to talk to you before you go anywhere". The police officer followed Mr. Suberu to his car and engaged Mr. Suberu in conversation about any connection he might have to events in the store. The officer then learned that the vehicle Mr. Suberu was in matched the description of the vehicle associated with the use of a stolen credit card earlier that day and he noticed a number of shopping bags in the vehicle. At that point, the police officer decided he had reasonable grounds to arrest Mr. Suberu for fraud. [62] In Suberu, the Court found the initial encounter between Mr. Suberu and the officer was "preliminary investigative questioning falling short of detention": para.

29. The Court found that the trial judge had not erred in finding Mr. Suberu was not detained prior to his arrest. The encounter arose in the context of an officer orienting himself to the situation, the officer made no move to obstruct or impede Mr. Suberu, the conversation was brief and not strained and Mr. Suberu never told the officer he did not want to speak to him. Considering all these factors, a reasonable person would not have concluded that they had no choice but to cooperate. [63] In Grant, the Court held at paras. 28-30 that the fundamental general principle that determines detention for Charter purposes is that a person is detained when he or she submits to a deprivation of liberty and reasonably believes that there is no choice but to comply with that deprivation. The Court summarized the test for determining whether there has been a detention for the purposes of ss. 9 and 10 of the Charter at para. 44: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [64] According to Suberu at para. 28: The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant's contention that the police by their

conduct effected a significant deprivation of his or her liberty must find support in the evidence. [65] The "liberty of choice" on which the analysis centers is broad, although it generally refers to the freedom to choose whether to comply with a request or demand to physically do something, such as remain in a certain place, and/or answer questions or engage in a conversation with the police. Although the test is objective (whether a reasonable person in the individual's circumstances would conclude that he or she had no choice but to comply with the alleged deprivation of his or her liberty of choice), the court may consider the particular circumstances of the individual bringing the application: Grant at para. 32. [66] The police may effectively interfere with an individual's freedom of movement without detaining that individual where they take control of a situation in order to help people or gather information, such as when responding to a medical emergency, because it is commonly understood that such interference carries no legal consequence: Grant at para.

36. Further, general inquiries precipitated by community-oriented concerns usually do not threaten individuals' liberty of choice: Grant at para.

41. However, when the basis for an inquiry shifts towards focused suspicion of a particular individual, the courts must scrutinize whether the police's words or actions would cause a reasonable person in the suspected individual's position to conclude that "he or she [was] not free to choose to walk away or decline to answer questions": Grant at para.

41. In this regard, it is important to recall that the police's subjective intentions are not determinative; rather, the question is whether the police have done anything to provide an objective basis on which the individual could conclude that he or she was deprived of the ability to choose whether to cooperate: Grant at para. 32. [32] The first factor directs us to the circumstances giving rise to the encounter, as reasonably perceived by an individual in Mr. Suberu's position. The evidence indicates that Constable Roughley engaged Mr. Suberu in an attempt to orient himself to the situation as it was unfolding in front of him. A possible crime had just occurred, and the police had arrived to investigate the matter. However, as Binnie J. aptly observes (at para. 62), it would be absurd to suggest that Constable Roughley should give everyone present their right to counsel before proceeding to sort out the situation. In our view, it would also be unreasonable to require that the right to counsel be given the moment the police approach any suspect in the process of sorting out the situation. As a whole, the [page 479] circumstances of the encounter support a reasonable perception that Constable Roughley was orienting himself to the situation rather than intending to deprive Mr. Suberu of his liberty. Further, as noted, Mr. Suberu did not testify or call evidence on that matter.

In summary, the circumstances, as revealed by the evidence, do not suggest detention. [34] The third factor to consider is the individual's personal circumstances as they bear on the [page480] dynamics of the encounter. As already indicated, the test is objective, incorporating the perspectives of the person spoken to in the dynamic context of the evolving situation. The question is whether a reasonable person in the circumstances thus viewed would have concluded by reason of the state conduct that he or she had no choice but to comply. As discussed above, the fact that a person is delayed by the police is insufficient to ground a reasonable conclusion that he or she was not free to go, or that he or she was bound to comply with the officer's request for information. [Emphasis added.] [67] Ultimately, the test involves a "realistic appraisal of the entire interaction, as it developed, not a minute parsing of words and movements": Grant at para. 32. [68] With these principles in mind, I turn to my analysis. Was Mr. Hynes Detained? [69] As I stated above, Mr. Hynes says he was detained the moment he was told to stand aside so Constable Dupuis could see what was behind him. He says that detention continued up to the point where he was formally arrested approximately 10 minutes later, that the detention was arbitrary contrary to s. 9 of the Charter, and that throughout this time he

was deprived of being charter warned of his rights to counsel contrary to s. 10(b) of the Charter. [70] I have concluded that Mr. Hynes was not detained, but even if he was, it was not an arbitrary detention. [71] Certainly Mr. Hynes was not physically detained. At no point was Mr. Hynes at a physical disadvantage. In Grant, the detention was found to occur when a single officer was joined by two more with Mr. Grant between them. Here, it was Constable Dupuis that was outnumbered at the relevant time. [72] In addition, I accept Constable Dupuis evidence that he had no intention to detain either Mr. Hynes or Ms. Chase. He did not consider he was in any position to manage such a detention safely and at no point up until the point where he decided to tell Mr. Hynes not to go and to arrest him, did he intend to impede Mr. Hynes from leaving. Indeed, for most of the interaction, he was attempting to dis-engage with Mr. Hynes. [73] Mr. Hynes' main basis for arguing that he was detained is that he was authoritatively told to show his hands and step away from what was behind him. Furthermore, Mr. Hynes complied with this direction. He also eventually complied with Constable Dupuis' direction to him to stay back and not follow him. [74] There is also some evidence that both Ms. Chase and Mr. Hynes may have believed they were detained--specifically the fact that each of them asked

Constable Dupuis at some point whether they could leave suggests they were at least uncertain as to whether there was some restraint on their ability to do so, and possibly of the belief that they could not leave without that permission. [75] Ultimately, however, on all of the evidence, including Mr. Hynes' physical situation, his interactions and pursuit of Constable Dupuis down the driveway, his initial compliance and Constable Dupuis' direction, and his request to leave, I find that the evidence does not establish that Mr. Hynes considered himself to be in state of psychological detention. [76] I find that Constable Dupuis' direction to Mr. Hynes to stand aside bears more resemblance to the police direction in Suberu to "wait a minute" for the purposes of allowing the officer to orient themselves to the investigatory landscape, than it does to the situation in Grant where Mr. Grant found himself surrounded by officers. Both Suberu and the situation in this case involved a physical direction, and the compliance with that direction by the accused was revelatory or allowed further information to be gathered. As in Suberu, I find that Constable Dupuis' direction was in the nature of a spontaneous and preliminary orientation, here in an unexpected situation. [77] Nor do I accept that a line of questioning on Constable Dupuis' part as to what was behind Mr. Hynes in place of the

direction to move aside would have been substantively different in nature or outcome. [78] In any event, even if I had found that Constable Dupuis direction to Mr. Hynes to step aside was a detention, I would have found it to be a valid investigatory detention. [79] In R. v. Batista, 2015 BCSC 244, Justice Brown helpfully reviews the case law with respect to investigative detention, and the requirement that all such detentions be consistent with s. 9 of the Charter at paras. 58-63. I note in particular the following summary of the law: [61] For an investigative detention to avoid being arbitrary, the police must have reasonable grounds to detain, "in the sense that they reasonably suspect that the individual detained was involved in a crime under investigation" and that such detention is reasonably necessary: R. v. Greaves, 2004 BCCA 484 at para. 33, leave to appeal ref'd [2004] S.C.C.A. No. 522. [62] While the Court in Mann speaks of reasonable grounds to suspect that the individual is connected to a "particular crime", the investigating officer is not required to pinpoint a particular crime with absolute precision: R. v. Nesbeth, 2008 ONCA 579 at para. 18, leave to appeal ref'd [2009] S.C.C.A. No.

10. In Nesbeth, the constellation of factors was held to have been sufficient to give the officers reasonable grounds to suspect that the accused was involved in criminal conduct. [63] In R. v. Williams, 2013 ONCA 772, the Ontario Court of Appeal made the following helpful remarks about the meaning of reasonable suspicion: [23] A reasonable suspicion entails more than a sincerely held subjective belief, for that is mere suspicion: MacKenzie, [2013] 3 S.C.R. 250 at para. 41; Kang-Brown, [2008] 1 S.C.R. 456 at para.

75. A reasonable suspicion is a suspicion grounded in "objectively discernible facts, which could then be subjected to independent judicial scrutiny": Chehil, [2013] 3 S.C.R. 220 at para. 26; MacKenzie, at para. 41. [24] To determine whether the reasonable suspicion standard has been met, a reviewing court must examine the totality of the relevant circumstances. This examination is not some scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are to be applied through the eyes of a reasonable person equipped with the knowledge, training, and experience of the investigating officer: MacKenzie, at para.

73. The standard of reasonable suspicion is not frustrated simply because the factors urged in support may also give rise to an innocent explanation. In the end, if the facts objectively indicate the possibility of criminal behaviour in light of the totality of the circumstances, the objective component of the reasonable suspicion standard has been satisfied: MacKenzie, at para. 72; Chehil, at para. 31. [Underline emphasis added.] [80] I find that, if Constable Dupuis' direction to Mr. Hynes to move to the side did amount to a detention, that it was not an arbitrary detention and that Constable Dupuis had both reasonable grounds and a reasonable suspicion grounded in his immediate observations of Mr. Hynes, and his general knowledge of Mr. Hynes' various behaviours. I find that it was objectively reasonable for Constable Dupuis to conclude that Mr. Hynes was involved with something illicit and trying to hide the object of that activity behind him. In that context, requiring Mr. Hynes to move aside, even if it was a detention it would not have been an arbitrary detention, and therefore not unlawful or contrary to Mr. Hynes' s. 9 rights. Right to Counsel [81] If I am wrong and Mr. Hynes was detained, I will briefly address the alleged s. 10(b) breach. If Mr. Hynes was detained, even if the detention was lawful, then pursuant to s. 10(b) he was entitled to his rights to retain and

instruct counsel "without delay." [82] Section 10 of the Charter provides rights on arrest or detention including the right to "retain and instruct counsel without delay". In Suberu, the Court considered the effect of the words "without delay" in the section and interpreted it as immediately, saying at para. 41: If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [83] The Court applied this standard in Grant, finding that Mr. Grant was entitled to be informed of his s. 10(b) rights immediately upon detention and that by failing to provide this information the officers had breached his rights notwithstanding the failure was due to the fact the officers did not believe they had detained Mr. Grant: para. 58. [84] The point at which s. 10(b) rights arise is detention, regardless of whether that detention is lawful. As a result in cases like Grant, a s. 9 breach where officers did not believe the individual was detained will usually result in a s. 10 breach as well. [85] However, the Court also recognized an exception to the without delay requirement. This exception was the basis, in part, of a successful appeal in R v Patrick, 2017 BCCA 57, and was

discussed there at paras. 14, 49, 51, and 109-118. [86] As in that case, the alleged breach of s. 10(b) in this case is not argued by Mr. Hynes to have resulted in specific evidence relied upon by the Crown the exclusion of which is sought, but is asserted to be a part of a pattern of Charter breaches by the police that would go to the exclusion of evidence more generally pursuant to the s. 24(2) analysis. [87] Our Court of Appeal ruled as follows in that case: [111] In my view, the trial judge erred in law by concluding that the respondent's right to be afforded counsel "without delay" admitted of no exceptions grounded in the exigencies of the circumstances of the arrest and that, as a consequence, the police were obliged to facilitate contact with counsel at the roadside. I agree with the Crown that the essence of the trial judge's error on this point is that she treated the duty to facilitate access to counsel as near-immediate and near-absolute. [112] In R. v. Suberu, 2009 SCC 33 at paras. 2, 42, the court held that the police have a duty to inform a detainee of his right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. The immediacy of this obligation is, however, subject to concerns for officer or public safety. A police officer's implementation duties are "necessarily limited in urgent or dangerous circumstances": Taylor at para. 31, citing R. v. Bartle, [1994] 3 S.C.R.

173. In Ashby, this Court noted that, "the exigencies of the arrest situation can excuse immediate compliance with s. 10(b)". The burden rests with the Crown to show that delay in facilitating a request to obtain legal advice on detention was reasonable in the circumstances. Whether the delay was reasonable is a factual inquiry: Taylor at para. 24. [88] Mr. Hynes concedes that in the first moments of the encounter with Constable Dupuis, Constable Dupuis was facing what he considered an escalating situation and that he had reasonable concerns regarding his own safety. However, he says that the failure to warn Mr. Hynes of his rights to counsel may well have contributed to his then saying and doing a number of things that were contrary to his interests, including claiming that the phone adjacent to the black box was his, and engaging in an ongoing confrontation with Constable Dupuis regarding the seizure of the drugs. [89] He says that even if Constable Dupuis could not have informed him of his right to counsel immediately, he could and should have done so before he ultimately did, and that the Crown has not discharged its obligation to justify the delay as reasonable. [90] I find on the evidence that throughout the time that Constable Dupuis saw and seized the drugs to the moment he secured them, his main goal was to preserve the drugs, and to de-escalate and calm Mr. Hynes. I

find he had valid reasons to be concerned for his own safety, including his knowledge that Mr. Hynes, when agitated, had been involved in a physical altercation with a member of the police in the past, and that he was essentially outnumbered on the Property and not in a position to deal with all three persons present on his own. I accept his evidence that engaging in the steps of formally detaining or arresting Mr. Hynes would have escalated a situation and heightened the threats to his safety that he reasonably perceived to be present. [91] I find that this remained true throughout the time that Constable Dupuis was attempting to exit the Property and until he had secured the drugs in the police van and had called for backup. [92] If there was any detention at all, and I have found that there was not, I also note that it was not one that prevented Mr. Hynes from appreciating his jeopardy or from calling counsel. Mr. Hynes, through his actions and words, appeared to appreciate the potential jeopardy he was in. He also retained a phone from the derelict house that he claimed as his own, and indeed was observed to be talking on a phone by Constable Dupuis prior to his formal arrest and detention. [93] Therefore, had I found that Constable Dupuis had detained Mr. Hynes in this case prior to his formal detention and arrest, that the Crown has discharged its burden to show that a

delay in facilitating Mr. Hynes access to legal advice on detention was reasonable in the circumstances for reasons legitimately related to Constable Dupuis' safety. There is therefore no breach of s. 10(b) in this case. Search and Seizure of the Black Box: Section 8 [94] Regardless of whether the command to move aside was a detention, Mr. Hynes also asserts that it was a search, and an unlawful one. [95] The Crown says that this direction cannot properly be characterized as a search, and that it is more properly characterized as part of a valid investigatory step prior to detention. [96] The Crown first suggested that this case was similar to R v. MacDonald, 2014 SCC 3. In MacDonald, the police attended at the accused's apartment in response to a noise complaint. The police knocked on the door, which the accused partially opened so that the police could see half of his body. An officer noticed that the accused was holding a black and shiny object behind his leg. The officer twice asked the accused what he had behind his leg, and the accused did not respond. The officer pushed the door open further, at which point he noticed that the accused was holding a handgun. The police forcibly entered the suite and arrested the accused at that point. Justice LeBel writing for a 4-3 majority, held that the officer's actions in opening the door to see what the accused had behind his leg

constituted a "search" for the purposes of s. 8 as it was an intrusion upon the accused's reasonable expectation of privacy that went beyond the police's implied licence to approach the door of a residence and knock (para. 27). [97] The majority went on to find that the search, although warrantless, was authorized under the common law police power to conduct what LeBel J. called a "safety search" - that is, a search that is reasonably necessary to eliminate threats to the safety of the public or the police - and that this common law power was reasonable. At para. 32, LeBel J. defined a "safety search" as follows: A search that is reasonably necessary to eliminate threats to the safety of the public or the police - which I will term a "safety search" - will generally be conducted by the police as a reactionary measure. In other words, although such searches may arise in a wide variety of contexts, they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which police must react "on the sudden". [98] While finding that the police have the power to conduct safety searches, LeBel J. emphasized at para. 41 that such power is not unlimited: [41] But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in [R. v.

Mann, 2004 SCC 52, [2004] 3 S.C.R. 59] and reaffirmed in [R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725] require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41). [99] Mann makes it clear that these safety searches are valid in limited circumstances as part of a non-arbitrary investigative detention. The Crown also relies on our Court of Appeal's decision in Patrick where it was determined that in BC safety searches incident to a valid investigative detention may consist of more than a pat down, and

may include questions directed toward immediate safety concerns and a vehicle search related to immediate safety concerns. [100] Here I have found that if Constable Dupuis direction to Mr. Hynes and Ms. Chase to show their hands and step aside amounted to a detention, it was not arbitrary, and there were exigent circumstances in that moment that limited Constable Dupuis ability to immediately provide Mr. Hynes with his s. 10 rights. I have also found that while Constable Dupuis' direction to Mr. Hynes and Ms. Chase to show their hands was clearly safety related, Constable Dupuis' evidence indicates a more investigative and less safety directed purpose for the direction to stand aside. Perhaps this may be too close a parsing of a surprising, evolving and spontaneous direction, but it is not clear to me that the Crown has met its burden to establish that the direction to move aside was for safety purposes on this evidence. I prefer not to resolve this issue on this basis, which the Crown says is its alternative in any event. [101] The Crown's main contention was that there was no search because Mr. Hynes had no privacy interest in the derelict building where the black box was located. [102] Mr. Hynes concedes that whether Constable Dupuis' direction to Mr. Hynes to stand aside is capable of being a search that engages Mr. Hynes' privacy rights under s. 8 of the Charter depends on

whether Mr. Hynes had a reasonable expectation of privacy in the mudroom of the derelict house on the Property. Mr. Hynes says he did, and the Crown says he did not. [103] Section 8 of the Charter provides that "everyone has the right to be secure against unreasonable search and seizure." Government action constitutes a "search" within the meaning of s. 8 where it intrudes upon some reasonable privacy interest: R. v. Evans, [1996] 1 S.C.R. 8 at para.

11. Section 8 is a personal right--it applies to a person and not to a place. Therefore the right to bring a challenge under s. 8 depends first on the establishment of a personal expectation of privacy in the location searched. [104] Therefore, the first inquiry in relation to an alleged s. 8 violation is whether the applicant had a reasonable expectation of privacy in respect of the subject matter of the search: R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45. [105] The onus is on the applicant to prove on balance that he or she had such an expectation: R. v. Nolet, 2010 SCC 24 at para. 30. [106] As in Edwards, Mr. Hynes advances a territorial privacy claim over the derelict house on the Property. In Edwards, the Supreme Court of Canada outlined a non-exhaustive list of factors to be considered in determining whether an accused has a reasonable expectation of privacy in a specific location. The assessment is largely fact-driven and must be determined on the basis of the totality of circumstances, including the following factors: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [107] Edwards establishes that the control and access factors are key considerations in the assessment of a territorial privacy claim although they are not determinative of the issue: Edwards at para.

47. In Edwards, the apartment which was the subject of the search was rented by the accused's girlfriend. Although they had been in a relationship for three years and the accused stayed at the apartment from time to time, possessed a key and kept some personal items there, the Court found he did not have a reasonable expectation of privacy. Justice Cory described the accused as "no more than an especially privileged guest" who had no authority to regulate access to the apartment. [108] The cases establish that there are varying degrees of expectation of privacy and a liberal approach must be taken. [109] With these legal principles in mind I will now turn to a review of the seven Edwards factors as they relate to evidence adduced on this voir dire. Was Mr. Hynes present at the time of the search? [110] Yes. Mr. Hynes was present in the derelict house at the time he was asked to move aside to allow Constable Dupuis to allow him to see what was behind him. Was Mr. Hynes in possession or control of the property or place searched? [111] Mr. Hynes says that he had possession or control of the derelict home by virtue of his acknowledged role as caretaker of the Property. [112] The Crown says he had no possession or control of the derelict house, and that the evidence in that regard is limited to Mr. Hynes' own trailer. [113] While Mr. Hynes clearly had access to the derelict house on

the Property, I have no evidence that would amount to possession or control of that space. [114] Indeed, the evidence I have in this regard originates from Mr. Hynes himself. The previous day he had spoken to Constable Dupuis and had informed Constable Dupuis that Mr. Laderoute had been squatting in the derelict house, and that Mr. Hynes did want that situation to continue. This suggests that far from having possession and control of the derelict house, Mr. Hynes acknowledged the occupancy and possession of this building by another person, and that he did not appear to have the level of control over that building to require that person to leave. [115] On all the evidence I find that Mr. Hynes has not established possession or control of the derelict house on the Property. Did Mr. Hynes have ownership of the place or property? [116] No. The evidence established the Property was owned by a local First Nation. It was not owned by Mr. Hynes. Is there evidence that Mr. Hynes had historical use of the property or item? [117] No. There is no evidence that Mr. Hynes had any use of the derelict home on the Property. That house was known to Constable Dupuis to have been abandoned and derelict for some years, and the only evidence of a person using it was Mr. Hynes' indication of Mr. Laderoute's recent use of it. [118] With respect to the Property itself, Mr. Hynes' presence on the

Property was of unknown duration on the evidence before me. During Mr. Hynes' release from custody he was advised that he would likely to be asked to move along by the Property owners and he indicated that he was anticipating making such a move. Did Mr. Hynes have an ability to regulate access including the right to admit or exclude others from the place? [119] There is no evidence that Mr. Hynes had the ability to regulate access to the derelict home. The home itself had no apparent working door knob or latching mechanism. [120] The only evidence I have of any person occupying the derelict home is Mr. Hynes' admission of Mr. Laderoute squatting there. This was apparently contrary to Mr. Hynes' wishes, indicating the absence of Mr. Hynes' control in this regard. [121] Overall, the evidence suggests that the Property, and the derelict home itself, had no apparent restrictions on who could be present there, or live there. Presumably the First Nation owners were able to ask persons to leave, but overall the evidence suggests that they were highly tolerant of not only Mr. Hynes, but also Mr. Laderoute, and others, freely coming and going from the Property. [122] I conclude that Mr. Hynes has not established an ability or authority to regulate who could access the derelict home on the Property. Did Mr. Hynes have a subjective expectation of privacy? [123] No. I have no direct

evidence on this point from Mr. Hynes or anyone else. While it is conceded (properly) that Mr. Hynes would have a strong privacy interest in his own camper on the Property, I have no evidence to suggest that he would have a similar or any subjective privacy interests in the derelict home also on the Property. [124] To the contrary, I have Mr. Hynes express and repeated denials that the black box and drugs found on the Property were his. [125] The derelict house itself was bare to the studs. It was not habitable. [126] I find that Mr. Hynes has not established on a balance of probabilities that he had a subjective privacy interest in the derelict house on the Property or its contents. Did Mr. Hynes have an objective expectation of privacy in the derelict home? [127] Having conducted a detailed review of all of the Edwards factors and considering the totality of circumstances I find that the evidence does not establish that Mr. Hynes had an expectation of privacy in the derelict home, or that if he did, that such an expectation was reasonable. [128] I find that Mr. Hynes has not established an objective expectation of privacy over the derelict house on the Property. Conclusion on Standing [129] Unlike R v. Gibson, 2003 BCSC 1572, and other cases that were referenced, Mr. Hynes has not expressed any possessory right to the derelict house or the black box that was seized. Indeed he

expressly disclaimed that the black box was his. [130] Therefore the only factor that might tend to support the existence of a reasonable expectation of privacy in the derelict home was Mr. Hynes' presence in that home when Constable Dupuis arrived on October 27. [131] Given all the other factors, and in particular a clear lack of control over the presence of others or any established pattern of use of the derelict home, I find Mr. Hynes has not established on a balance of probabilities that he had a reasonable expectation of privacy in the house. Therefore, Mr. Hynes has not met the threshold to establish standing to challenge Constable Dupuis' direction to step aside as a search of the derelict home. Seizure of the black box [132] Mr. Hynes does not claim any possessory or privacy rights in the box itself as I understand his position, and he certainly did not make those claims at the time of seizure. Mr. Hynes standing to challenge the seizure of the black box is also dependent on him having some privacy interest so as to give rise to standing to raise a s. 8 challenge. [133] However, this issue was not argued on that basis, but on whether the black box was in plain view. [134] Mr. Hynes says it was not in plain view, because Constable Hynes first required him to move or stand aside so that he could see it. [135] The Crown says that the direction to Mr. Hynes to stand aside

was valid as a non-Charter engaging encounter, or that if it did engage Mr. Hynes s 8 or 9 Charter rights, was valid as a non-arbitrary investigative detention, and that the box lawfully came to be in plain view of Constable Dupuis. [136] Based on my conclusions above, I agree with the Crown that the black box came to be lawfully in plain view of Constable Dupuis. [137] To be clear, in making this finding, I find that: a) The black box was in plain view of Constable Dupuis from his position at the entrance of the derelict home and through the open door once Mr. Hynes and Ms. Chase moved aside pursuant to a lawfully given direction; b) Constable Dupuis had the right to be in the position he was in to have that plain view. The house was known to Constable Dupuis to be derelict and abandoned. He was at the door of the derelict house looking through an open door. This is similar to the situation in R. v. J.K., 2002 BCPC 0160, with the additional factor that the house was not known to be occupied, and Mr. Hynes was not its occupier; c) The black box was discovered inadvertently--I have found that Constable Dupuis did not know in advance that there would be this or any incriminating evidence at this location and he had not come with any intention of seizing such evidence; d) It was immediately and objectively apparent to Constable Dupuis that the black box contained what appeared to

be a very significant amount of illicit drugs, and was therefore evidence of a crime. [138] I therefore find that the seizure of the black box by Constable Dupuis was lawful and was not contrary to Mr. Hynes' s. 8 Charter rights. [139] I pause here to state that, even if I had found breaches of ss. 8, 9 or 10(b) in relation to the seizure of the black box, I would have allowed that evidence to be admitted in any event pursuant to s. 24(2). If any breach existed as alleged, I would have characterized it as fleeting, inadvertent and in good faith in a fluid and dynamic policing situation. In particular, even if Mr. Hynes had established a privacy interest in the derelict house, I would have found that privacy interest to be low, and the request that he step to the side in the circumstances to have been minimally intrusive. The black box itself is highly reliable as evidence, and I consider that it would not bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter to admit it. To the contrary, I would have found that it should be admitted under the Grant criteria. Was Constable Dupuis' search of Mr. Hynes' cell phone a breach of Mr. Hynes' reasonable expectations of privacy and to be free from unreasonable search contrary to s. 8 of the Charter? [140] There is no issue that the search of the cell phone Mr. Hynes was carrying when arrested

engaged Mr. Hynes' privacy rights, and therefore his rights to be free from unreasonable search under s. 8 of the Charter. Legal Principles [141] The parties both point to R. v. Fearon, 2014 SCC 77 as the leading and guiding case to determine this issue. In that case, the officer conducted a pat-down search incident to an arrest of Fearon in relation to a theft of jewelry. He found a cell phone containing a draft text message referring to jewellery and opening with the words "We did it." The cell phone was not password-protected or otherwise locked. A photo of a handgun and photos of males were also discovered. The photo found on Fearon's cell phone depicted the handgun used in the robbery. [142] The Supreme Court took the opportunity to review the significant privacy interests that are engaged by a search of a person's phone beyond the privacy issues that might ordinarily be engaged in a search incident to arrest. The Court found that the search of information in cell phones had the potential to be a much more significant invasion of privacy than the typical search incident to arrest, and that the absence of a password protection did not indicate abandonment of the significant privacy interests a person generally had in the contents of their phone. [143] On this basis, the Court articulated a more restrictive test for the search of cell phones seized incident to a lawful

arrest as follows: (1) The arrest was lawful; (2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are: (a) Protecting the police, the accused, or the public; (b) Preserving evidence; or (c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest; (3) The nature and the extent of the search are tailored to the purpose of the search; and (4) The police take detailed notes of what they have examined on the device and how it was searched. [144] There is no issue in this case with the first and last criteria--Mr. Hynes concedes that the arrest was lawful and that Constable Dupuis recorded everything that he examined on the phone through photographs that are in evidence on the voir dire. [145] The Crown also concedes that the purpose of the search did not engage the purposes at 2(a) of the test--the protection of the police, the accused or the public. [146] The Crown asserts that the search in this case served the valid law enforcement purposes of preserving evidence and discovering further evidence, and that the search was properly tailored

to these purposes. [147] What is meant by these two purposes can be better understood through the discussion of these aspects of the test in Fearon, and the Crown referenced paras. 46-48 and 79-80. It is clear that the Court recognized that drug trafficking cases may well be the type of cases where the valid law enforcement purposes of a cell phone search may be engaged. However, with respect to the third purpose, the discovery of further evidence, the Court explained the significant limitations of this purpose at para 80: 80 A further modification is that the third purpose for which searches incident to arrest are permitted -- the discovery of evidence -- must be treated restrictively in this context. The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Application to case [148] Constable Dupuis articulated his objectives in searching the phone candidly on the basis of his understanding of the law at the time. I find based on his evidence, that he was not concerned about the preservation of evidence or safety. Therefore we are left with the grounds for search with respect to discovery of evidence. [149] I find that the first part of his search, the recording of

calls from Big Guy and eventually answering that call, was directed toward the purpose of identifying further players in what he suspected was a significant drug trafficking operation in Port Alberni. He had reason to believe that the caller identified as Big Guy might be involved, that the urgency with which he seemed to be calling might indicate that something immediate and time sensitive might occur that the call would provide him information about. Similarly, his review of the text messages from Big Guy served this purpose, as did his review of the phone to see if Ms. Chase, another potential suspect in the vicinity, had any interactions on the phone. [150] The defence concedes, and I find, that this aspect of Constable Dupuis' search fell within a valid law enforcement purpose under the Fearon test, of "Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest." [151] However, I find that on Constable Dupuis' evidence, there is no basis to find that his investigation would have been stymied or significantly hampered if he hadn't then continued to review and document the message streams on the phone. [152] Constable Dupuis admits that this search was not due to exigent circumstances, but his belief that this was also

authorized by law in non-exigent circumstances. He acknowledged he could have obtained a warrant in 4-5 hours to review this further evidence, but he considered his immediate review may actually have been less intrusive. Ultimately, he did not obtain a warrant, even though there were further message streams that he had not reviewed, which tends to put in doubt the significance or value of a review of these streams more broadly. [153] In these circumstances, I find that the Crown has not established that the search and record of the message streams in the phone and the phone seized from Mr. Hynes was reasonable, and I find that it breached Mr. Hynes' s. 8 rights. [154] I must therefore go on to consider s. 24(2) of the Charter and whether this evidence may nevertheless be admitted at trial. Section 24(2) [155] The Crown argues that any breach of Mr. Hynes' s. 8 right was minor and the evidence should be admitted pursuant to s. 24(2) of the Charter. Mr. Hynes argues the breach was significant and the evidence of the text message streams other than those related to "Big Guy" should be excluded from the evidence at trial. [156] This is not a case where a cumulative series of breaches might lead to exclusion of more than the evidence arising from the breach. Only the one breach has been found. The Legal Framework [157] Section 24(2) of the Charter provides: 24(2) Where, in

proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [158] Both Crown and defence counsel agree on the general legal principles governing the exclusion of evidence. There are two stages in a s. 24(2) analysis, the threshold analysis, which determines whether there is a nexus between the breach of the Charter right and the evidence sought to be excluded, and the second analysis utilizing the framework established in Grant. [159] There is no issue that there is a nexus between the breach of Mr. Hynes s. 8 Charter rights with respect to the search of the cell phone and the record of that search that is sought to be excluded. Therefore, the focus of my analysis will be on the application of the Grant framework for determining whether evidence obtained in breach of the Charter must be excluded under s. 24(2). The Grant Analysis [160] In Grant the Supreme Court of Canada articulated three lines of inquiry for determining whether evidence obtained in a Charter-infringing manner should be excluded under s. 24(2) of the Charter. The factors to consider and weigh are (at para.

71): (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. [161] These factors do not operate as a three-part test. There are no particular findings under the three lines of inquiry that mandate particular results, and it "is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case": R. v. Harrison, 2009 SCC 34 at para. 36 [Harrison]. The balancing mandated by s. 24(2) is "qualitative in nature and therefore not capable of mathematical precision": Grant at para.

140. Rather, the court must weigh its considerations under all three factors to determine whether, on balance and having regard to all the circumstances, admitting the impugned evidence would bring the administration of justice into disrepute in the long-term, from the perspective of a reasonable person: Grant at paras. 68 and 85-86. [162] The Grant factors look to the public's overall, long-term faith in the justice system: Grant at para. 68; Harrison at para.

36. Section 24(2) starts from the proposition that damage has already been done to the public's confidence in the administration of justice by the Charter violation or violations that gave rise to the s. 24(2) analysis. The Grant analysis concerns itself with whether further damage will be done by admitting the impugned evidence: Grant at para. 69. [163] Having set out the analytical framework established in Grant, I will proceed to consider those factors. (i) Seriousness of the Charter-infringing state conduct [164] This first factor requires the court to consider the gravity of the state's offending conduct and whether the court should dissociate itself from that conduct by excluding the evidence: Grant at paras. 72-73. [165] Under this factor, the court must examine both the qualitative seriousness of the state conduct as well as the level of knowledge on the part of the offending state actors. At one end of the spectrum are those breaches that are "technical or trivial": Harrison at para. 3, "inadvertent or minor": Grant at para. 74 or result from "an understandable mistake": Harrison at para.

22. At the other end of the spectrum are those that can be characterized as "brazen" or "flagrant" as described in Harrison at para. 23, or as "abusive", "deliberate" or "egregious" as described in Grant at para.

133. Although wilful violations are undoubtedly more serious than unintentional ones, reckless or careless violations that demonstrate insufficient regard for Charter rights also inevitably undermine the public's confidence in the rule of law: Harrison at para. 24; Grant at paras. 74-75. [166] The Crown argues that the breach of Mr. Hynes' s. 8 Charter right through the search of the phone in his possession were minor. Crown says that if Constable Dupuis erred in his appreciation of the extent of the search that was authorized that this was in good faith based on the changing nature of the law, and he restricted himself to review of text streams only, and those were generally recent, most having sent a text that day. [167] While I accept that Constable Dupuis was mindful of Mr. Hynes' rights, and conducted himself in accordance with what he believed those rights to be, I have found that he was incorrect as to the scope of his authority. He did not consider the requirement that for evidence discovery purposes there must be some time sensitivity to the search, which I find was not established. Therefore while the breach was not intentional, the conduct was. As stated in Grant, at para. 133 "while police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is". [168] The police conduct was not malicious,

flagrant, egregious, or in bad faith. Nevertheless it reflects a failure to respect Mr. Hynes' rights which had been established for a number of years in the case law at the time of the search. At this point, Constable Dupuis was not in a rushed or dynamically evolving situation as he had been during the initial interactions with Mr. Hynes. Overall, I cannot accept the Crown's characterization of these breaches as minor. In my view, this breach was serious and militates in favour of exclusion. (ii) Impact of the breach on the Charter-protected interests of the accused [169] The second line of inquiry focuses on the seriousness of the state's Charter-infringing conduct from the accused's perspective. Under this head of analysis, the court must examine the interests engaged by the infringed right (here the search of the text streams on the phone) and the degree to which the Charter infringement impacts or intrudes upon those interests. [170] The Crown says that if the impact of the breach is closer to the technical end, simply being overbroad. Mr. Hynes says that there are well established limits on the breadth of such searches and that in this case the impact is significant on him. [171] Our Courts have recognized that a person's interest in the contents of their phone are significant. Without determining on the criminal standard whether this was Mr. Hynes' phone, I find that

the evidence is sufficient for Charter purposes to establish his interest in it. [172] I therefore find that the over breadth of the search had a significant impact on Mr. Hynes' privacy rights. In all of the circumstances, I find that the impact of the breaches on the Charter-protected interests of the accused militates in favour of exclusion. (iii) Society's interest in the adjudication of the case on its merits [173] This factor requires the court to consider "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion": Grant at para.

79. This involves assessing the reliability of the evidence and its importance to the Crown's case. The exclusion of reliable and relevant evidence may render the trial unfair from the public's perspective, thus bringing the administration of justice into disrepute: Grant at para. 81. [174] However, a court analyzing this factor must be careful not to allow the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis because this would afford lesser Charter protection to those charged with more serious crimes: Harrison at paras. 34, 40. While the public has a heightened interest in seeing a case adjudicated on its merits where the offence charged is serious, the public "also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high": Grant at para.

84. Sometimes, the importance of maintaining Charter standards outweighs the "price paid by society for an acquittal": Harrison at para.

42. Society has an interest in ensuring state actors consistently respect Charter rights, regardless of the context. [175] The Crown says here that the text messages are reliable evidence and assist with the Court's truth seeking function. This is not conscripted information the reliability of which is affected by the nature of the Charter breach. [176] The Crown intended to rely on this evidence as circumstantial evidence of the offense, but it is not necessary to its case. [177] I conclude that society's interest in the adjudication of this case on its merits does not require or depend upon the admission of this evidence, and to the contrary, the evidence would tend to diminish public confidence in the justice system and the fairness of the trial. Conclusion on s. 24(2) Analysis [178] Balancing all the factors, I conclude that the repute of the administration of justice is best served by excluding the challenged cell phone evidence in this case.

DISPOSITION [179] For the reasons provided, I have concluded that admitting the photos at Tab 2 starting at photo 9 and continuing to end of Tab 2 would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter. As such, this evidence is excluded from evidence at trial. [180] In addition, I would exclude the oral evidence of Constable Dupuis relating to this search beyond his evidence with respect to the calls from the caller identified as Big Guy and the related message stream, and the absence of any message stream relating to Ms. Chase. [181] That is my ruling on the voir dire. "Marzari J."