New & Notable: Successful, albeit unconstitutional reliance on a "hunch"

Nicolaas Bruyere was driving in his car with a passenger. They had some cocaine in the car. The police stop him. The police thought that another fella, Hyatt, was in the car. The police believed that Hyatt had just been involved in a drug deal at a nearby hotel. Hyatt was not in the car. The trial judge found that the stop was a section 9 violation but admitted the evidence under section 24(2). Bruyere appealed; the Ontario court of appeal allowed the appeal and ordered a new trial: 2012 ONCA 329.

On appeal the court of appeal revisited the section 9 issue. The court agreed with the trial judge that the officers had nothing more than a hunch that Hyatt was in the car and accordingly, the stop was a violation of section 9 [paras 4-10]. 

It is interesting to note – although there are few details in the court of appeal’s ruling – that the violation seems to be based on the evidence of the police that the justification for the stop was solely reliant upon the grounds to stop and detain Hyatt based on the drug deal they had grounds to believe occurred. Of course, the police could have relied upon their authority under the Highway Traffic Act to stop the vehicle – regardless of whether Hyatt was in it – to check for identification or insurance. It seems they did not rely upon that authority.

Turning to the 24(2) issue, the court of appeal noted that one of the fundamental basis upon which the trial judge admitted the evidence was the finding that there were exigent circumstances. While the court noted that the admissibility findings of a trial judge under R v Grant, 2009 SCC 32 are owed deference (see R v Beaulieu, 2010 SCC 7, the court held it was entitled to “review” the finidngs. Citing R v Kelsy, 2011 ONCA 605, the court of appeal found that the trial judge’s conclusion that there were exigent circumstances was not reasonable. There were no exigent circumstances.

The court held that a reconsideration of the 24(2) issue was not appropriate on appeal and sent the matter back for a new trial. Appeal allowed; new trial ordered.