Court rules police violated Charter rights, throws out evidence in OPP-Tyendinaga Police joint operation

Equal Before the Law, a sculpture by Eldon Garnet, which stands in the McMurtry Gardens of Justice outside the Ontario Superior Court of Justice in Toronto. Photo by Design Wallah in 2015.

The passenger in a vehicle stopped by Tyendinaga Police who was found to be concealing a handgun and ammunition has had a judge rule to have the evidence against him thrown out after police violated his rights under the Charter of Rights and Freedoms.

According to court documents, the man was a passenger in a vehicle that was “travelling at a high speed in a dangerous manner” when it came to the attention of an Ontario Provincial Police (OPP) sergeant on April 26, 2022. The vehicle was then stopped by officers from another police force, the Tyendinaga Police Service, who had been “enlisted to assist in its stop,” as the vehicle was “travelling through areas that fell under the jurisdiction of multiple police forces.”

It is what happened next that caused the defendant, Tahvonne Dante Hall, to bring a Charter motion before the Ontario Superior Court of Justice, seeking to exclude evidence found by police following their interactions with him on April 26. Adjudicated by Justice Laurie Lacelle, the case saw Crown attorney Tim Kavanagh representing the state, with criminal defence lawyer Carlos Rippell representing Hall. The matter was heard over the course of two days, July 5 and 6 of this year, with the decision published on Monday, Sept. 25, 2023.

It should be noted that no first names of the involved police officers were published in the court documents. While Kingstonist has confirmed the names of some of the involved officers through their respective police detachments, the first names of those officers are not being disclosed out of fairness (since the others cannot be). Kingstonist was able to ascertain that the three involved police detachments were the Tyendinaga Police Service, the Lennox and Addington County OPP, and the Prince Edward County OPP.

The evidence

“There is no issue that the police had grounds to detain the driver of the vehicle. What is at issue is what occurred with Mr. Hall, who was a passenger, and who was not under any criminal investigation,” Justice Lacelle wrote in laying out an overview of the evidence before her.

According to that evidence, two officers with Tyendinaga Police, officers Maracle and Worley, were the officers on scene at the time the vehicle Hall was travelling in was stopped in a parking lot. Sgt. Henry “arrived afterward.” Documents note that there is “no dispute” that Sgt. Henry determined there were grounds to arrest that driver, a woman named Keisha White. Henry and Provincial Constable (PC) Maracle attended to that arrest, while PC Worley stood by the vehicle.

“By all accounts, there were no grounds to detain Mr. Hall at that point, and he was free to walk away,” Lacelle stated.

But that is not what happened.

After apprehending the driver, Sgt. Henry approached the passenger’s side of the vehicle where Hall remained seated, according to Lacelle’s overview of the evidence. There, Henry says, he “saw a marijuana cigarette in the door on the passenger side of the vehicle.” Court documents note that there was “no odour of marijuana or other indication that substance had been used.”

Henry himself stated that he conducted no further examination of the suspect cannabis cigarette. Instead, he directed Worley to detain Hall under the Cannabis Control Act (referred to as “the CCA” henceforth). According to Lacelle’s overview, Henry says he instructed Worley to “give him his rights to counsel,” and that Worley “seemed to understand that.”

According to Henry, he then continued the search of the vehicle where, on the driver’s side, he says he found a plastic bag containing “what he believed to be psilocybin,” the active stimulant in the drug more commonly referred to as “magic mushrooms.”

“He then announced to the other officers that Mr. Hall was arrestable for the joint possession of a controlled substance. He says he again asked PC Worley to read Mr. Hall his rights to counsel,” court documents read.

“Sgt. Henry testified that the discovery of the psilocybin gave him a basis to search the vehicle further under the CDSA (Controlled Drugs and Substances Act), and he eventually located a pill bottle containing Percocet pills. The bottle was in a bag in the rear of the vehicle.”

Worley testified that Henry instructed him to arrest Hall under the Controlled Drugs and Substances Act (referred to as “the CDSA” henceforth). Worley did not confirm the presence of the cannabis cigarette, nor the psilocybin.

According to Worley’s testimony, before he arrested Hall, he and Maracle asked Hall to identify himself, “which he did after persistent questioning.”

“It seems that Mr. Hall gave a false name at this point, which the officers discovered upon finding his wallet on a pat-down search done incident to his arrest,” Lacelle wrote.

“PC Worley testified that he did not provide Mr. Hall with his rights to counsel at any point. PC Worley could not account for anything that required him to delay the giving of rights to counsel immediately upon arrest. He acknowledged that the scene was under control, and ultimately, there were five officers present.”

After the arrival of two more OPP officers (both from the Lennox and Addington County Detachment), the police on scene decided that one of the most recently arrived officers, PC Grant, would take the lead on the investigation of Hall and transport him to an OPP detachment with the other most recently arrived officer, PC Cagley. Prior to putting Hall in a cruiser, Cagley performed another pat-down search that located a magazine containing ammunition on one of Hall’s legs and “what appeared to be a loaded handgun” on the other. After asking Hall if he was licensed to carry the firearm, Cagley arrested him for firearms- and ammunition-related offences, according to court documents, which do not specify how Hall responded to the initial question.

“[Cagley] provided Mr. Hall with his rights to counsel. This was at 8:21 a.m., and somewhere in the vicinity of 21 minutes after his initial arrest by PC Worley, and possibly longer,” Lacelle’s overview stated.

But the odd nature of Hall’s triple arrest was far from over. While Sgt. Henry testified he’d told other officers about the drugs he’d found in the vehicle — noting he “believed he pointed out the psilocybin to PC Cagley,” and “told PC Worley” about it, and that he “told someone about the marijuana he’d seen, but he was not sure who” — Cagley testified that Henry had indicated at the scene that he’d found pills, but that he “could not recall” Henry referencing any other substance.

“Nor could any other officer,” the court documents note.

Henry testified he had left the cannabis cigarette and the bag of psilocybin “in the vehicle where he found them.”

“The evidence of all other officers on scene was to the effect that no one else went into the vehicle before it was towed to the police detachment,” Lacelle wrote, noting that, ultimately, police obtained a search warrant to conduct a further search of the vehicle.

That search, however, did not occur until the vehicle had been towed back to the detachment.

“No marijuana cigarette was found in the vehicle, nor any psilocybin,” Lacelle wrote of the two alleged items in the vehicle that led to Hall’s first and second arrests. Further, “No report to a justice was done subsequent to the searches of the vehicle.”

The position of the parties

The defence submitted that Hall’s rights were breached a number of ways under Sections 8, 9, and 10 of the Charter of Rights and Freedoms (the “Charter” henceforth). Lacelle stated she “generally agreed with the defence” regarding those Charter breaches. The defence also submitted that, with respect to Section 24(2) of the Charter, “the combination of Charter violations seriously exacerbates the seriousness of the Charter-offending conduct and the evidence should be excluded,” citing Supreme Court case law R v. Le.

The Crown conceded that Hall’s Section 8 rights were breached “when he was subjected to persistent questioning by the officers who did not accept his refusal to answer prior to arrest.” The Crown also conceded that Worley breached Hall’s Section 10(b) rights by failing to provide Hall with his rights to counsel upon his initial arrest, noting that “the evidence discloses no basis to have delayed giving the accused this information.” The Crown further conceded a breach of Hall’s Section 8 rights due to the failure of police to file a report to the justice.

There was some back and forth between the Crown and the defence on whether Hall’s application to exclude evidence — namely the firearm and ammunition — under Section 24(2) of the Charter should be allowed. Citing case law, the Crown argued that “the long-term impact on the administration of justice from exclusion of the evidence is such that the court should deny Mr. Hall’s application,” noting this argument was “based on the pressing societal concerns about firearms offences, and the nature of the weapon and ammunition found here.”

“In any case, the Crown argues that there is no evidence of a systemic problem here and suggests this was a unique situation where three different police services were involved and there was insufficient coordination of the investigation such that certain key investigative steps were not taken,” Lacelle wrote.

Lacelle’s analysis

Lacelle began her analysis by noting that the Crown agreed that, if there were insufficient grounds for the initial search under the CCA, the the remaining searches were also without grounds and constituted breaches of Hall’s Section 8 Charter rights.

“I am not satisfied that the search under the CCA was conducted with either subjective or objective grounds. This is because I cannot reconcile the marked disparity in the evidence between Sgt. Henry and the other officers on the scene, nor with the fact that no marijuana cigarette or Ziploc bag with psilocybin were subsequently located in the search of the vehicle at the detachment,” Lacelle stated.

“There is no circumstance disclosed by the evidence that can account for why those items were not found if they had been in the vehicle as described by Sgt. Henry.”

Lacelle said she had “real concerns” about whether there was a cannabis cigarette or a bag of psilocybin present. Therefore, she said, she was not satisfied that there were grounds for any search of the vehicle, nor the subsequent arrests, and Hall’s Section 9 Charter rights had also been breached.

The Justice went on to list precisely how Hall’s Charter rights had been breached repeatedly under Sections 8, 9, and 10 — a list of no less than six breaches.

Lacelle then focused on “whether the administration of justice would be brought into disrepute by the admission of the evidence at issue” as she analyzed the Section 24(2) application.

“Section 24(2) is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence,” Lacelle explained, citing multiple examples of case law and a test set out in the case of R v Grant.

Lacelle repeatedly noted the seriousness of the weapons charges against Hall and the public interest in the admission of the evidence that led to those charges. She also acknowledged several times the seriousness and impact of the breaches of Hall’s Charter rights.

Conclusion

After thoroughly explaining how she had arrived at it, Lacelle disclosed her conclusion.

“I find that this was serious Charter-infringing police conduct that constituted a major departure from Charter standards. The impact on Mr. Hall’s protected interests has been very significant,” she said.

“Upon balancing the relevant factors, I conclude that the admission of the evidence obtained during the search would bring the administration of justice into disrepute. The court must distance itself from the police conduct in this case. The long-term risk to the administration of justice of admitting the evidence compels this result.”

Therefore, “The application is allowed and the impugned evidence is excluded,” Lacelle determined.

The full 11 pages further detailing this decision can be read here.

Editorial note: The term Provincial Constable is a unique rank to the OPP. While Tyendinaga Police have uniforms, vehicles, letterhead, etc. which differentiate their police service from the OPP, “The Ontario Provincial Police provides police services in Tyendinaga,” according to Tyendinaga Township. Tyendinaga Police Chief Jason Brant is a member of the OPP.

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