R. v. SURESKUMAR, 2023 ONCA 705, OCTOBER 23, 2023. 

FACTS: The accused was convicted of the offence of fraud. The fraud involved the accused, a bank teller, transferring a customer’s money to another account. At the trial, the Crown presented evidence obtained after the accused was arrested and searched (at paragraphs 3 to 5): 

During his arrest, the appellant identified himself to the arresting officer, and she requested proof of identification. The appellant told the arresting officer that his wallet was in his car, and the arresting officer demanded his car keys and retrieved the wallet. She confirmed his identification, and the wallet was then placed in the pocket of the appellant’s coat.

Later, at the police station, the police seized the appellant’s wallet and cell phone. A search of the wallet revealed a sticky note with credit card data for three accounts written on it. A subsequent investigation determined that the credit cards listed on the sticky note had been used for unauthorized transactions.

The police obtained a search warrant for the cell phone. A search of the cell phone revealed an image of the sticky note. The credit card data on the sticky note forms the basis of the last count on the four-count Information.

The accused appealed from conviction, arguing that the seizure of the wallet infringed section 8 of the Charter and that the sticky note the photograph of it should have been excluded.

HELD: The appeal was dismissed. The Ontario Court of Appeal concluded that the search infringed section 8 of the Charter, but that the evidence was properly admitted. The Court of Appeal indicated that “[t]his appeal raises the issue of whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. There is no binding authority on this point” (at paragraph 13).

The Court of Appeal held that “it is unnecessary to rule whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. That is because this case can be determined on the issue of reasonableness. As noted above, the jurisprudence is clear that a valid search incident to arrest must be carried out reasonably” (at paragraph 14).

The Court of Appeal concluded that the search was unreasonable because it was not “necessary” (at paragraphs 18 and 19):

With respect, the trial judge erred in failing to analyze why a search that she found was one of many avenues to confirm identity was reasonable in the circumstances. Had she done so, it would have been clear that there were multiple equally convenient and expeditious means to obtain confirmation of identity. For example, the arresting officer could have confirmed the appellant’s identity by speaking with bank employees, including the bank investigator who was in the branch at the time of the arrest. I am also comfortable taking judicial notice of the fact that the arresting officer had an onboard computer in her police vehicle that would have provided her access to the driver’s licence database.

The trial judge was required to consider why a search that was unnecessary for the arresting officer to carry out her stated police purpose of confirming the identity of the appellant was reasonably conducted. Had the trial judge done so, it would have been evident that it was not reasonable for the arresting officer to search the appellant’s vehicle and seize the wallet. Therefore, the search of the appellant’s vehicle to locate the wallet constituted a breach of his s. 8 Charter rights.

Section 24(2):

However, the Court of Appeal also concluded that the evidence should be admitted. In reaching this conclusion, the Court placed great emphasis on Grant’s third line of inquiry (at paragraphs 30 to 33):

The third line of the Grant inquiry asks the court to consider society’s interest in an adjudication of a criminal allegation on the merits. The crux of the analysis is whether the truth-seeking function of the criminal trial process is better served by admission or exclusion of the impugned evidence, recognizing that those who transgress the law have a right to be prosecuted according to the law: Grant, at para. 79.

The significance of this line of inquiry should not be underestimated. It is the only part of the Grant analysis that explicitly calls for a consideration of society’s legitimate interests. Given that the whole point of the s. 24(2) analysis is to determine whether a reasonable member of the public, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of impugned evidence would bring the administration of justice into disrepute, a proper understanding of society’s interest in an adjudication on the merits is of vital importance.

The sticky note is reliable evidence on count four. The credit card data correlates to accounts in which unauthorized transactions occurred. Thus, this factor also supports the admission of the evidence.

In balancing the three lines of inquiry, all three favour the admission of the evidence. The sticky note is reliable evidence obtained in good faith after a very brief search of the car with minimal impact on the rights of the appellant. I would not exclude the sticky note from the evidence.