Are Text Messages Between Drug Dealers Private, Requiring Prior Judicial Authorization to Access?

In R. v. Campbell 2022 ONCA 666, he was found guilty of trafficking in fentanyl and possession of fentanyl for the purpose of trafficking, as well as trafficking in heroin and possession of heroin for the purpose of trafficking, contrary to ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act (14.33 grams of heroin mixed with fentanyl). He received a global sentence of five years and eight months of imprisonment. He appealed his convictions and sentence.

There were three main players in this scenario: (a) Kyle Gammie, the person whose phone the police took possession of; (b) a person known as “Dew”, another drug dealer who gave the appellant a phone to use to communicate with Gammie; and (c) the appellant, who thought he was communicating with Gammie while using “Dew’s” phone. The events unfolded in the afternoon when five members of the Guelph Police Service Drug Unit executed a search warrant at Gammie’s residence. Gammie was a known drug dealer. The police were acting on a confidential tip. Gammie and a female were arrested as they left the residence and attempted to get into a car. In the course of the arrest, Gammie threw two cellphones onto the passenger seat of the car. Two officers handcuffed and searched Gammie, locating cash and cocaine on his person. One officer searched the car incident to the arrest and seized the two phones. He handed them over to another officer, the exhibits officer, who placed the phones on a table inside Gammie’s apartment. Minutes later, one of the phones lit up with incoming text messages. Four messages from “Dew” were visible on the locked screen.

Officers thought the messages revealed a drug transaction in progress – specifically, a transaction for heroin, which would likely be laced with fentanyl. The phrase “1250 for this half” was consistent with a transaction for “cheap” heroin (i.e., heroin mixed with fentanyl). The officers were concerned that if they did not follow through and gain control of these drugs, fentanyl might find its way onto the street. They considered this a public safety issue. It was decided to respond to the messages with the aim of having “Dew” deliver the drugs to the residence. An officer exchanged 35 messages with “Dew” over the next couple hours. The messages advised “Dew” where to go. “Dew” gave updates as to his location. Sometime later, the appellant arrived at Gammie’s apartment in accordance with the arrangements made with the officer. Upon seeing the police, he took off down the hallway but was shortly taken to the ground by police and placed under arrest. The police found a phone on the appellant – the one used to communicate with the Gammie phone. The screen of this phone was photographed to capture the text messages with the Gammie phone. The police also seized $40 in cash and 14.33 grams of heroin mixed with fentanyl.

At trial, the appellant brought a motion under ss. 8 and 24(2) of the Charter. He claimed that his rights were violated by the actions of the police in: (1) using Gammie’s phone to communicate with him and then seizing the messages sent and received during this exchange; and (2) by seizing and examining the same set of messages on the phone given to him by “Dew”. The ONCA said this case was about the search of a text message conversation. It started as a dialogue between two individuals, but the police decided to continue the exchange by surreptitiously assuming the identity of one of them. Although there are some differences between the facts of this case and the facts in R. v. Marakah 2017 SCC 59 (a previous post of mine, worth a read for its reasoning), they are not legally significant. Based on the holding in Marakah, the ONCA found that the trial judge should have found that the appellant had a reasonable expectation of privacy in his communications, and that a reasonable expectation of privacy does not simply rest on the concept of control – i.e., the risk that, once a text message is sent, the recipient of that message may disclose them to others. In Marakah, McLachlin C.J. recognized that “control, ownership, possession, and historical use are relevant to determining the reasonableness of an expectation of privacy. However, it is just one factor to be considered, and a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it, …he or she may yet reasonably expect that information to remain safe from state scrutiny.”

However, in this particular case, the ONCA found that although the appellant had standing to assert his rights under s. 8 of the Charter, his claim must ultimately fail because the actions of the police were justified by exigent circumstances, focused on public safety: had this drug transaction, already in progress, not been rerouted in the manner they chose, the appellant would have aborted the operation. The drugs would have been outside the reach of the police and sold to someone else at another time, ultimately reaching users on the street. This, combined with the notoriously harmful nature of fentanyl, amounted to exigent circumstances, those circumstances rendered it “impracticable to obtain a warrant” in this case, but police must remember that mere convenience is not sufficient to proceed without a warrant, immediate action must be required.

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Investigative Detention and Safety Searches

R. v. McKenzie 2022 MBCA 3 – the facts are not complicated. On a winter evening, two officers were dealing with a motorist in a back lane of a residential neighbourhood in Winnipeg. The accused was observed to be jogging through nearby back yards. One officer described it as “really weird”; the other officer said it was “a little bit unusual.” The accused was clenching the left side of his body with his elbow. One officer thought he might be injured and called out to him asking if he was okay. When the accused made eye contact, the officer recognized him. From police intelligence reports, the officer knew that the accused was a long-time member of a street gang and was known to carry a weapon. The accused “appeared startled or frightened” at seeing the police and “immediately increased his pace to a full out sprint”. Both officers formed the belief that the manner in which the accused was holding his left side was an effort to conceal something. One officer had extensive training and experience with weapons offences including the manner in which people carry weapons. He believed the accused’s mannerism was an attempt to conceal a weapon between his left arm and his body. At this point, he decided to detain the accused for an investigative purpose related to a weapons offence and yelled at the accused to stop. The accused did not comply and a short foot pursuit ensued. During the chase, the accused’s jacket was open and the officer observed the fanny pack. It occurred to him that the accused “was probably running a load of drugs and the fanny pack likely contained drugs”. He testified that he thought the fanny pack would contain “one of the two” (drugs or a weapon). The officer caught the accused and pinned him against the wall of a house. He observed that the zipper to the fanny pack was about 75% open. He lifted the flap on the fanny pack to fully open it, shined his flashlight and immediately observed the handgun. The accused was arrested and the drug evidence in his jacket was subsequently discovered. Police later located 37 grams of fentanyl, 46 grams of methamphetamine and items indicative of drug trafficking in the jacket, and determined that the handgun was loaded and stolen. At his trial, the accused applied to have the drug and firearms evidence excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter) on the basis of alleged violations of his rights under sections 8 and 9 of the Charter (person and his fanny pack).

The Supreme Court of Canada has recognized several common law police powers that permit interference with an individual’s liberty or property on the basis of the ancillary powers doctrine using the two-stage framework set out in R. v. Waterfield, [1963] 3 All ER 659: the lawfulness of police action turns on whether (a) the action falls within the general scope of a statutory or common law duty, and (b) the action involves a justifiable exercise of police powers associated with the duty. On the second stage of the Waterfield framework, a court assesses whether the interference was “reasonably necessary for the carrying out of the particular duty”: (1) the importance of the performance of the duty to the public good, (2) the necessity of the interference with individual liberty for the performance of the duty, and (3) the extent of the interference with individual liberty.

For precedent purposes, R. v. Mann, 2004 SCC 52) ruled that a police officer may detain an individual for investigative purposes “where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances” (R. v. MacKenzie, 2013 SCC 50 at para 35; see also Mann at para 45). An investigative detention affords police the ability to take reasonable measures to investigate an offence (see R. v. Clayton, 2007 SCC 32 at para 33). As was said in Mann, “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing” (at para 16). The common law power of investigative detention is not limited to “a specific known criminal act” but extends to recent or ongoing criminal activity that is reasonably suspected (R. v. Chehil, 2013 SCC 49 at para 35). An investigative detention is not a “de facto arrest” (Mann at para 35). Police powers governing investigative detentions and arrests are different (see Mann at para 45; and R. v. Suberu, 2007 ONCA 60 at para 40, aff’d 2009 SCC 33). An investigative detention is intended to generally be “a brief and limited suspension of a citizen’s right to go about his or her business freely” (James A Fontana & David Keeshan, The Law of Search and Seizure in Canada, 11th ed (Toronto: LexisNexis, 2019) at 1096).

There are differing schools of thought that have arisen post-MacDonald (R. v. MacDonald, 2014 SCC 3) regarding the impact of the majority decision on warrantless common law police powers to search. One view is the majority’s reasoning in MacDonald applies only to free-standing safety searches and does not apply to other contexts (see R. v. Peterkin 2015 ONCA 8 at para 59; R. v. Smith, 2019 SKCA 126 at paras 13-15; and R. v. Stairs, 2020 ONCA 678 at paras 54-55). Another view is the minority in MacDonald was incorrect; the majority in MacDonald did not “recalibrate the test for lawful police safety searches from the traditional ‘reasonable suspicion’ standard” (R. v. Webber, 2019 BCCA 208 at para 65; and see R. v. McGuffie, 2016 ONCA 365 at para 52); all that happened was the majority in MacDonald used the same unclear language that was used in Mann. However, a different perspective, that the minority in MacDonald was correct as to the test for lawful common law police searches being recalibrated by the majority, was reached in R. v. Del Corro, 2019 ABCA 156 at para 49. What is not controversial is that a protective search incident to a lawful investigative detention that is carried out in conformity with common law police powers and otherwise in a reasonable manner is not an unreasonable search or seizure for the purposes of section 8 of the Charter (see Mann at para 44; and Clayton at para 20).

In the present case, the MBCA found that the the act of detaining the accused for a weapons offence investigation fell within the officer’s common law duties (see Mann at para 26). The detention was otherwise reasonably necessary for the purposes of the second stage of the Waterfield framework and was “conducted in a reasonable manner” (Mann at para 45). Weapons offences are a serious threat to the peace, therefore there was significant importance in the officer taking immediate action in terms of the public good as well as a necessity for him to interfere with the accused’s liberty. With regards to the safety search of the accused and his fanny pack, the MBCA found that the act of conducting a search to protect life and property incidental to a lawful investigative detention fell within the officer’s common law duties (see Mann at paras 38-39). Agreeing with the trial judge’s reasoning, the MBCA found that “if a search meets the requirements of a lawful search the fact that the investigator had another unlawful reason in mind is irrelevant” (at para 50). Here, the officer made clear that, although he thought the fanny pack may contain drugs or weapons, the reason he decided to look inside it was “to ensure [his] safety.” He said he only opened the top of the fanny pack and “did not delve into” it. In the court’s view, the trial judge was correct that the search of the fanny pack was reasonably necessary to eliminate an imminent threat to officer safety (see MacDonald at paras 39-45). MacDonald makes clear that searches to eliminate any imminent threat to the officer or third parties can take many forms depending on the circumstances and are not limited to pat-down searches (see para 39). The accused’s appeal was dismissed.

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Section 10(b) Charter right to counsel violated where police conduct had effect of undermining legal advice received during consultation

Early into any law enforcement training (career), recruits, later officers, are quickly shown the significance of Section 10 of the Charter of Rights and Freedoms. While s. 10(a) requires an officer to inform a detainee of the reasons for the detention (or arrest) “promptly,” which has been held to mean “immediately,” some delay may be justified on the basis of concerns for officer or public safety. Section 10(b) of the Charter has both an informational and an implementational component. The officer must inform detainees of their right to counsel and where the right is invoked, must provide detainees with a reasonable opportunity to exercise the right. We must comply with both duties “without delay”. The latter is the focus of this post, as recently debated in R. v. Dussault 2022 SCC 16.

While generally, an officer could discharge their implementational duty under s. 10(b) by facilitating a single consultation at the time of detention or shortly thereafter, there are exceptions. Recall R. v. Sinclair 2010 SCC 35:

“the right to counsel is essentially a one-time matter with few recognized exceptions” (para. 64); “it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required” (para. 49); (a) a new and non-routine procedure which involves the detainee such as participation in a lineup or submitting to a polygraph (para. 50); (b) a change in jeopardy (para. 51); (c) a reason to question the detainee’s understanding of their Charter s. 10(b) right (para. 52)”

In Dussault, the SCC found that where police conduct has the effect of undermining the legal advice given to a detainee, whether intentional or not, and where it was objectively observable that it had occurred, the right to a second consultation will arise. By way of background, Dussault was arrested on charges of murder and arson. At the police station, he spoke with a lawyer on the phone, who explained the charges and his right to remain silent. The lawyer was left with the impression that the accused was not processing or understanding his advice. He offered to come to the station to meet in person, and Dussault accepted. The lawyer then spoke with a police officer, informed him that he was coming to the police station and asked that the investigation be suspended. The police officer responded that this would be no problem or no trouble. The lawyer spoke again with Dussault. He confirmed that he was coming to the police station to meet with him and he explained that, in the interim, he would be placed in a cell. The lawyer also told him not to speak to anyone. Subsequently, during a conversation between the police officer and the lead investigators on the file, it was decided that the lawyer would not be permitted to meet with Dussault. The police officer phoned the lawyer and informed him of this decision. The lawyer nevertheless came to the police station, but was not permitted to meet with Dussault. The police officer later went to Dussault’s cell and told him that another officer was ready to meet with him. Dussault asked whether his lawyer had arrived, to which the police officer responded that the lawyer was not at the police station. Dussault was then subjected to an interrogation, during which he made an incriminating statement.

The trial judge admitted the incriminating statement into evidence, finding the phone call was a complete consultation for the purposes of s. 10(b) of the Charter. The Court of Appeal concluded Dussault’s phone call with the lawyer did not constitute a complete consultation for the purposes of s. 10(b) of the Charter and that his right to effective assistance of counsel was breached.

The SCC said that undermining is not limited to intentional belittling of defence counsel. Police conduct can unintentionally undermine the legal advice provided to a detainee. Where the police conduct has the effect of undermining the legal advice given to a detainee, and where it is objectively observable that this has occurred, the right to a second consultation arises. There is no need to prove that the police conduct was intended to have this effect. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it.

In the present case, two separate acts of the police officer combined to have the effect of undermining the legal advice provided to the accused. First, when the lawyer said that he was coming to the police station to meet with the accused and asked that the investigation be suspended, the police officer responded that this would be no problem or no trouble. In reasonable reliance on these words, the lawyer advised the accused that he was coming to the police station to meet with him and that, in the interim, he would be placed in a cell. The police officer’s words therefore had the effect, albeit indirect, of causing the accused to believe that an in-person meeting would take place. In refusing to permit the lawyer to meet with the accused, the police effectively falsified an important premise of the lawyer’s advice — i.e., that the accused would be placed in a cell until the lawyer arrived. Second, the police officer misled the accused into believing that his lawyer had failed to come to the station for their in-person consultation. During the interrogation, the accused repeatedly expressed that his lawyer had told him he would be there; he stated his belief that his lawyer had never actually arrived; he openly questioned why his lawyer had given him the advice that he had given; and he implied that his lawyer’s failure to show up had left him feeling alone. When these statements are taken in their totality and in light of all the relevant circumstances, it was clear to the SCC that there were objectively observable indicators that the legal advice given to the accused had been undermined.

Also worthy of a reminder, the majority in Sinclair did not expand on the type of police conduct that could “undermine the legal advice that the detainee has received” and thereby give rise to a renewed right to consult counsel. What Dussault reminded us of is in this context, care must be taken in defining the term “undermine”. It is clear, for instance, that if this term is defined too broadly, it would prevent police from attempting in any way to convince a detainee to act contrary to their lawyer’s advice: see, e.g., R. v. Edmondson, 2005 SKCA 51, 257 Sask. R. 270, at para. 37. If this were so, police would effectively be required to cease questioning any detainee who said “my lawyer told me not to talk”. That is not the law in Canada: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405.

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Driver’s admission of driving inadmissible when made as part of statutory accident report

If you recall, Bill C-46 introduced and amended much of the legislation around impaired driving (operation). One new piece of legislation sought to address the issue around accident reports (e.g. provincial Motor Vehicle / Highway Traffic Acts) that are compelled and to allow police to use that information to form grounds for demands. In short, Section 320.31(9) of the Criminal Code permits the admission of a statement compelled by provincial statute for the purpose of justifying a demand made under either of ss. 320.27 or 320.28. But what of its use to prove identity? One of the core elements of an offence under s. 320 of the Criminal Code is the identity of the driver. For the Crown to obtain a conviction, it must show beyond a reasonable doubt that the person before the Court was the operator of the conveyance in question. An inability to do that will render the rest of the evidence, however strong it might be, moot. This was most recently discussed in R. v. Thorne 2022 ONCJ 193.

Parliament did not carve out an exception for that use in Bill C-46, as it did for the issue of grounds to make a demand. For a confession (which is what this effectively is, at least related to identity) to be admissible, it must be found to be voluntarily given. A driver’s statement, as part of the accident report required by the provincial act, can hardly be said to be voluntary because (s)he is compelled in law to report the collision in certain circumstances. A compelled statement cannot be used against a driver to prove his or her guilt as to do so would infringe on the right against self-incrimination.

So, while the compelled statement may not be admissible to prove the element of identification, it may still be admissible to show the investigating officer’s grounds to make an ASD or breath demand. To provide evidence that the driver was the operator of the conveyance in question at the time of the offence, we will need to obtain evidence (e.g., video captured, independent witnesses at the scene) in the same manner as we were required to do all along before Bill C-46.

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An arrest based upon a mistake of law is unlawful and contrary to Section 9 of the Charter

Firstly, it took me a while to wrap my brain around this one to make sure I had the decision clear before posting. In the same interaction, police conducted both an unlawful search, but later a lawful search of the same individual. Let’s start with the facts in brevity (R. v. Tim 2022 SCC 12):

A member of the public called 9-1-1 to report a single-vehicle collision on Memorial Drive in Calgary. The driver’s car had veered off the road, hit a roadside sign, and continued for about a kilometer before it became disabled. Fire, medical, and police services rushed to the scene. The driver (and lone occupant) was standing at the side of the road talking to a firefighter when a police officer arrived. The officer, suspecting that the driver had fled the scene of the collision, approached him and asked if he had been involved in an accident. The driver acknowledged that he had hit the sign, but he claimed that he could not stop. The officer asked the driver for his driver’s licence, vehicle registration, and proof of insurance. The driver said he would get the documents from his car. The officer followed him as he did so. When the driver opened the driver-side door, the officer saw a small ziplock bag containing a single yellow pill near the window controls in the door area. The driver’s eyes motioned to the pill, and he quickly swiped it to the ground outside of the car, as if he were trying to hide it. The officer recognized the pill as gabapentin, which he had seen trafficked on the street with illegal drugs such as fentanyl and methamphetamine. Because the officer believed that gabapentin was a controlled drug under the CDSA, he immediately arrested the driver for possession of a controlled substance. After the driver was arrested, the police conducted four searches:

  • In the first search, the officer conducted a pat-down search of the driver incident to arrest. This search revealed live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two pills later identified as hydromorphone (an opioid and controlled substance under the CDSA), two pills later identified as alprazolam (a tranquillizer and controlled substance under the CDSA), another gabapentin pill, three cell phones, and $480 in cash.
  • In the second search, another police officer, who arrived moments before the arresting officer placed the driver under arrest, searched the driver’s car incident to arrest. He found a folded serrated knife, a canister of bear spray, four fentanyl pills, and two pills later identified as alprazolam.
  • In the third search, the arresting officer searched the driver again because he became concerned that the first search might have missed some items. His suspicions were aroused because the driver was walking strangely while being taken to the patrol car: he was limping and shaking his leg, as if he had something hidden in his pants or falling down his pant leg. The officer then saw .22 calibre ammunition fall from the leg of the driver’s pants. While searching his person, the officer touched the outside of the driver’s pants in his groin area and felt a metal object. A double-barrelled handgun immediately fell from his pants. The gun was loaded with two live rounds, one in each barrel.
  • In the fourth search, the driver was strip searched at the police station. He was asked to strip down to his underwear and an officer searched around his waistband to see if he had hidden anything else. No more contraband or weapons , etc. were found.

Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary. By way of reminder for this post, Sections 495(1)(a) and (b) of the Criminal Code provide that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” or “a person whom he finds committing a criminal offence”. Unfortunately, the officer arrested the driver for possession of gabapentin specifically. The officer knew the facts — he correctly identified the pill as gabapentin at the time he saw it — but mistakenly concluded that possession of gabapentin was an offence, when, in law, it was not, because that drug is not a controlled substance under the CDSA. Justice Mahmud Jamal, writing for the majority, said the court is not suggesting that the police must see and correctly identify a specific drug from the hundreds of controlled substances under the CDSA before they may lawfully arrest a suspected drug offender. Police routinely arrest suspected drug offenders for potential infractions of the CDSA, even when they do not see or identify specific drugs. Courts routinely uphold the legality of such arrests, if they conclude that there were reasonable grounds to arrest, but in this specific case, “If the offence that the police officer believes has been committed simply does not exist, the officer does not have the power to … arrest the person…”.

Turning now to the four searches, this is where things were muddied, but I believe I have it figured out (here’s hoping):

  • The first two searches — the initial pat-down search of the driver and the search of the driver’s car on discovering the gabapentin — were purportedly conducted incident to arrest, which must meet three conditions: (1) the person searched is lawfully arrested; (2) the search is “truly incidental” to the arrest, i.e., for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably. Here, the initial pat-down search of the driver and the search of his car incident to arrest falter on the first condition: he was not lawfully arrested. Thus, the first two searches necessarily breached s. 8 of the Charter.
  • The third search was purportedly undertaken incident to an investigative detention. How you ask? Well, the police’s interaction with the driver was at first a traffic collision investigation. The arresting officer testified that he came to where the driver’s damaged car had stopped and approached him because he suspected that he had fled the scene of a collision with a roadside sign. In doing so, the officer was properly exercising investigatory powers under Ontario provincial traffic law (I won’t expand on this authority in this post) and the Criminal Code (under s. 320.16(1) of the Criminal Code, it is an offence, in certain circumstances, to fail to stop after a traffic accident). R. v. Mann 2004 SCC 52 recognized that the police have a common law power to search incident to investigative detention under certain circumstances. Speaking for the majority in Mann, Iacobucci J. stated that “police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary” (para. 45). He added that a police officer “may engage in a protective pat-down search of the detained individual” when the officer “has reasonable grounds to believe that his or her safety or that of others is at risk” (para. 45). In addition, both the investigative detention and the pat-down search “must be conducted in a reasonable manner” (para. 45; see also R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20 and 29-31). Speaking for the majority in Tim, Justice Jamal read the officer’s evidence in context as expressing concern for whether he might have “missed some items” that would pose a safety risk to himself or to others. The officer had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. The obvious “something” was a gun, said the court. When there are concealed bullets, there may be a concealed gun. The further pat-down search of the driver, in which the officer dislodged a loaded handgun by merely touching the outside of the his pants, was also conducted reasonably. This search did not breach s. 8 of the Charter.
  • The fourth search, the strip search (although nothing further was found), was also ruled to be lawful: reasonable grounds exist to justify a strip search “where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest” (R. v. Ali 2022 SCC 1, at para. 2; see also R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 94 and 111). The strip search must also be conducted reasonably, in a manner that “interferes with the privacy and dignity of the person being searched as little as possible” (Golden, at para. 104). Here, the driver was lawfully arrested for the weapons offences after the ammunition and the handgun fell from his pants. The officer testified that, following the third search, he “seized the items that fell onto the ground out of [the driver’s] pant leg … and then [he] placed the [driver] in [his] vehicle, where he was chartered and cautioned”. The strip search at the police station was incident to this weapons arrest, because it was for the purpose of discovering concealed weapons or evidence related to the offence for which the driver was lawfully arrested, it was minimally intrusive as it was conducted reasonably, in a manner consistent with the SCC’s guidelines for strip searches (see Golden, at paras. 101-2). It was performed at the police station, it was limited to the driver’s underwear waistband, and the driver wore his underwear throughout the search. It therefore did not infringe s. 8 of the Charter.

So, to sum up, the majority of the SCC found that the initial pat-down search of the driver and the search of his car infringed s. 8 of the Charter (because he was arrested, and his car search, incident to an unlawful arrest for a drug not controlled under the CDSA), but the further pat-down search and the strip search did not as it was incident to an investigative detention (e.g., 320.16(1) CC) for a traffic collision investigation, the officer had concerns for his safety given that he had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. This lead to an arrest for weapons offences and a subsequent strip search.

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Search incident to arrest considered in detail and modified in relation to residential arrests.

It appears this is the first time that the Supreme Court of Canada has pointedly considered the search incident to arrest power applied inside a home. In R. v. Stairs 2022 SCC 11, a call was placed to 9-1-1 to report a man repeatedly hitting a woman in a car. Police officers located the car parked in the driveway of a house. They knocked on the front door and loudly announced their presence, but no one answered. Fearing for the woman’s safety, they entered the house. A woman with fresh injuries to her face came up a flight of stairs leading from the basement. The accused then ran past the bottom of the staircase and barricaded himself in the basement laundry room, where he was arrested a short time later. After the arrest, the police conducted a visual clearing search of the basement living room area, from which the accused and the woman had just emerged. During the search, the police saw a clear container and a plastic bag in plain view containing methamphetamine (over 90 grams). The accused was charged with possession of a controlled substance for the purpose of trafficking, assault, and breach of probation.

The accused brought a pre-trial application alleging, among other things, violations of his right against unreasonable search and seizure protected by s. 8 of the Charter. The trial judge found no breach of s. 8 and no basis to exclude the methamphetamine. She held that it was reasonable for the officers to do a quick scan of the basement living room after the accused was arrested, that the search had a valid objective, and that the search and resulting seizure were lawful. The accused was convicted of all charges. He appealed his conviction for the drug offence on the basis that the drug evidence was improperly admitted. A majority of the Court of Appeal upheld the conviction, holding that the search and subsequent seizure of the methamphetamine did not breach the accused’s s. 8 Charter rights. The majority was of the view that the search was a search incident to a lawful arrest, that the common law standard for search incident to arrest applied, and that the search of the basement living room met this standard. The accused’s appeal was dismissed by a 5-4 SCC majority on the reasonable suspicion standard for searches incident to arrest inside a home.

The SCC discussed that the baseline common law standard for search incident to arrest requires that the individual searched has been lawfully arrested, that the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest, and that the search is conducted reasonably (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 21 and 27). In the past, the SCC has tailored this standard in several contexts to comply with s. 8 of the Charter. The search incident to arrest power has been eliminated for the seizure of bodily samples (R. v. Stillman, [1997] 1 S.C.R. 607), and the standard has been modified in other situations presenting a heightened privacy interest in the subject matter of the search, such as strip searches, penile swabs, and cell phone searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; Fearon).

In the present case, the appeal to the SCC raised two issues: (1) whether the search of the basement living room incident to arrest was unreasonable, contrary to s. 8 of the Charter; and (2) if so, whether the methamphetamine seized by the police should be excluded under s. 24(2) of the Charter. This post will focus on the 1st issue.

In short, the SCC has enunciated a two-part analytical approach for determining whether the common law standard for search incident to arrest should be modified to comply with s. 8 of the Charter …:

(1) Stage One: Determine whether the search satisfies the common law standard for search incident to arrest.
(2) Stage Two: If so, determine whether the standard must be modified to comply with s. 8 of the Charter, given the particular privacy interests and law enforcement objectives at stake.

The SCC said that the common law standard of search incident to arrest should be modified — and made stricter — to reflect an accused’s heightened privacy interest in their home, depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply. However, where the area is outside their physical control, but it is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:

  • the police have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search; and
  • the search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home (as a general rule, the police cannot use the search incident to arrest power to justify searching every nook and cranny of the house. A search incident to arrest remains an exception to the general rule that a warrant is required to justify intrusion into the home. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion. Further, it would be good practice for the police to take detailed notes after searching a home incident to arrest. They should keep track of the places searched, the extent of the search, the time of the search, its purpose, and its duration).

In Stairs, the dynamic before and during the arrest and the nature of the offence for which the accused was arrested were factors that figured prominently in the reason-to-suspect analysis. The situation was volatile and rapidly changing, and the arrest was for domestic assault. In domestic violence cases, the police are not only concerned with the privacy and autonomy of the person arrested; they must also be alert to the safety of all members of the household, including both known and potential victims, said the majority. In addition, the search was conducted reasonably. It took place right after the arrest and the police merely conducted a visual scan of the living room area to ensure that no one else was present and that there were no weapons or hazards. The spatial scope of the search was appropriate: the living room was part of the surrounding area of the arrest, it appeared to be a common living room space, and the police engaged in the most cursory of searches, which was the least invasive possible. The search of the living room incident to arrest did not violate the accused’s s. 8 Charter right, and the evidence from the living room search was therefore properly admitted at trial because.

Given the factual matrix of this case, the SCC mentioned that it was not necessary to decide whether reasonable suspicion also applies to investigation-related purposes, such as evidence preservation and evidence discovery. They left that issue for another day.

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Acquittal in drinking and driving case as ASD demand not made immediately, right to counsel violated and accused subjected to ‘overholding’ after breath tests

The issues discussed in R. v. Kaur 2021 ONCJ 683 are not new by any stretch, but worthy of a review given these types of things are still occurring. The facts of the case are not complex, and I have summarized things from the case:

  • At approximately 3:03 AM, police received a call regarding a possible impaired driver that had jumped a curb
  • The officer located and stopped the vehicle at approximately 3:04 AM
  • He formed a reasonable suspicion at 3:06 or 3:07 AM
  • He called for an ASD at 3:13 AM and another officer was dispatched to bring an ASD to the scene
  • The officer did not read the female driver her rights to counsel during the wait
  • The ASD arrived at 3:17 AM
  • The officer read the ASD demand at 3:26 AM (some 19-20 minutes after he formed his reasonable suspicion)
  • There were no officer safety concerns articulated aside from moving to the side of the road to continue the investigation that may have delayed the demand
  • At 3:29-30 AM, driver registered a “fail”, was arrested, and RTC given
  • At 3:34 AM, the formal breath demand was read
  • Left the scene at 3:41 AM and arrived back at the station at 3:46 AM
  • After speaking with counsel, etc., at 4:43 AM provided her first breath sample which registered 176 mg. of alcohol in 100 ml. of blood. Her second sample was taken at 5:07 AM and registered 174 mg. of alcohol in 100 ml of blood
  • She was held in custody and release at approximately 10:30 AM

Section 320.27 of the Code requires that a person comply with a screening demand “immediately” (the prior provision required compliance “forthwith”). The judge found that the use of “immediately” instead of “forthwith” in the context of s. 320.27 is simply a modernization of the language without any change in meaning, as other courts have found. The section does not explicitly require that the police officer’s demand be immediate, rather, it only specifically requires that the motorist comply immediately. However, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.

The immediacy requirement in s. 320.27 necessitates the courts to consider five things:

  1. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
  2. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
  3. Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2) (now 320.27(1) CC).
  4. Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
  5. Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met.

Applying the law to the facts of this case, the judge found there can be no doubt that the ASD demand was not made forthwith; there were no unusual circumstances which would justify the delay. The demand having not been made immediately, the police were operating outside the parameters of s. 320.27 and there was no suspension of her Charter rights. She was clearly detained from the time that she was asked to exit her vehicle, and by detaining her by the side of the road for 11-13 minutes without making an ASD demand and without telling her why she was being detained and without giving her rights to counsel, there was a violation of ss. 9, 10(a) and 10(b) of the Charter.

With regards to the over-holding, the releasing officer canvassed her health and well-being in the cells by asking her a series of health-related questions such as whether she had injuries, was on medication, or enrolled in any addiction programs, but failed to ask if she had access to another vehicle (if released), or whether anyone could attend and care for her if released (of note, a male friend had attended the station on multiple occasions that morning to pick her up, but no one advised the releasing officer of this). She was finally released from custody at 10:32 AM. During the approximately 5.5 hours that she was in the detention cell, she made repeated efforts to gain the attention of various police officers. She indicated that these efforts were geared at securing her release. She was desperate to inform her workplace that she would not be able to make it in that day. Despite her persistence of managing to engage different officers on at least 12 occasions, she was not released. The releasing officer testified that it was his “standard practice” of holding a detainee until their BAC was below 100 mgs. and that it was his “standard practice” of not releasing anyone over 100 mg unless someone was going to pick up that person.

In the judge’s view, the releasing officer never canvassed with any police officer or the accused to determine if there was someone who could pick her up before 8:00 AM, so the driving force behind her continued detention for approximately 3 hours was her BAC. From 8:00 AM until approximately 10:30 AM, there was no reason for her continued detention except the officer’s rudimentary calculation of her BAC, which would have been between 80-100 mg of alcohol (assuming the depletion rate of 15 mg per hour).

The court ruled that the simple reality was the police were required to turn their minds to all the circumstances that were present, and in appropriate cases, high blood-alcohol readings may be sufficient. However, the important thing was that there must be a thoughtful inquiry made by the police officer into the existing circumstances so that a careful assessment and consideration was made before further detention is decided to be necessary. There was nothing in the evidence before this court that raised the possibility of her driving with an elevated BAC beyond the same level of risk that any intoxicated individual detained or arrested for a drinking and driving offence poses. In the absence of some evidentiary foundation for the existence of such a risk, a police officer cannot simply choose to detain an individual because they “might” choose to drive again. As high as the readings were, they did not amount to a justification for her further detention based on a risk that she might choose to drive another vehicle. There was no exigent, legitimate, or justifiable reason for her to have been detained as long as she was. Therefore, the court found that her s. 9 Charter right not to be arbitrarily detained was breached, and in order to best serve the long-term repute of the administration of justice, the breath test results were excluded.

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Warrantless video surveillance of the accused’s residence even from a public location does violate s. 8 of Charter

During the Project Skylark investigation, the police developed a theory that the accused’s residence was being utilized as a stash house. An officer requested that a public view camera be installed outside of the residence of the accused, and the officer did not believe that prior judicial authorization was required for video surveillance of the accused’s residence because of his belief that the camera was a “public view camera”, it provided a very limited view of the driveway of the residence, and it did not look through the windows and was therefore not intrusive (R. v. Aubrey 2022 ONSC 635)

The camera was installed and used during the months of April 2019 through to July 2019. It substantially replaced physical surveillance of the residence and recorded the area 24 hours a day, 7 days a week. The intention of the camera was to observe the interactions, if any, between targets of the investigation and the accused, as well as the comings and goings of the accused in particular. It was positioned such that it recorded a portion of the accused’s driveway as well as the front of his residence. Ultimately, the images and observations captured from the recordings were included in the Information to Obtain (“ITO”) that granted the police authorization to enter and search the accused’s residence. In addition to the installed video camera surveillance, the police also conducted physical surveillance of the property from the street. Although much of the surveillance was, “eyeball surveillance”, some video recording was undertaken.

In R. v. Wong [1990] 3 S.C.R. 36 at para. 8, the Supreme Court of Canada found that surreptitious video surveillance by agents of the state constituted a search and seizure within the meaning of s. 8 of the Charter. The subject matter of the search in this ONSC case was information about the accused’s comings and goings. The video surveillance provided police with information about the identities of visitors to the accused’s residence, the length of their stays, and the presence of items brought into or out of the residence. The ONSC found that the accused had a privacy interest both in the area which was the subject of the surveillance, and in the information which was captured on the video images. Further, the court found that the expectation of privacy was objectively reasonable, and his reasonable expectation of privacy was breached by the actions of the police in installing video camera surveillance directed at his residence and the surrounding private property, and that the installation and use of a video camera to conduct continuous surveillance of the accused’s residence and its surrounding property was a breach of his rights pursuant to s. 8 of the Charter.

In this case, the camera monitored activity in a defined space, namely the driveway and the front of the accused’s residence. Upon reviewing the video surveillance, the judge said it was apparent that the accused was aware of potential street-level sightlines into his property and that he adopted countermeasures to limit those views. The accused and his visitors entered the house from the rear entrance as opposed to the front entrance. The accused and his visitors also often interacted in the driveway behind the lifted hood of a vehicle. While it is possible that they were plagued by engine troubles, it is more likely that he and his guests were seeking to communicate privately and out of public view, said the judge.

The ONSC said while the camera may have been installed in a public area and have provided incidental views of public areas, its lens was directed to the accused’s private residence and yard, places the public could not enter or view without an invitation from the accused. The fact that some areas of the property were visible to the public was, in the judge’s view, irrelevant. Indeed, it seemed clear to the judge that the very reason that the camera was installed was to provide views of the accused’s property, and by extension to obtain information about the activities being conducted on the property, that were not possible from the street and were not subject to public view. In the court’s ruling, Section 487.01 of the Criminal Code contemplates the very circumstances present in this case. Parliament’s clear intention was to allow the police to use video surveillance, or any other devices needed to conduct a search or seizure in respect of a person or a person’s property, only when certain preconditions have been met. The installation of a video surveillance camera directed towards the otherwise private areas of the accused’s residence and its surrounding property in the absence of prior judicial scrutiny was intrusive and failed to satisfy any objectively reasonable preconditions. In the absence of a warrant, the resulting video surveillance constituted an unreasonable search and seizure.

In debating the physical surveillance activities undertaken, the court said that the police are at liberty to conduct physical surveillance without the necessity of obtaining a warrant. This includes surveillance of an individual or surveillance of places where an individual resides or frequents. Provided that the police do not trespass on private property, they are not constrained in their ability to employ physical surveillance as an investigative technique. However, the question to be answered here, in the court’s view, was whether the police are permitted to memorialize their personal surveillance through the use of photographs and video recordings in the absence of a warrant, or whether they are limited to note-taking and personal recall?

In the present case, the purpose of the physical surveillance and the recorded images captured during that surveillance did not differ from that of the installed video cameras. It was the objective of the police to further their criminal investigation by collecting evidence to support an ITO. Their observations and recordings may also serve as circumstantial evidence of the accused’s knowledge of and control over the items subsequently found during the search of his residence. The key differences between the recordings conducted by officers during their physical surveillance and those conducted by the installed video camera were the manner in which they were obtained and the views that they provided. The video taken during the physical surveillance served as a record of the “eyeball surveillance” which was lawfully undertaken by the police. The surveillance was recorded from an area accessible to the public and provided only those views available to members of the public passing by the property or, in this case, police officers lawfully conducting physical surveillance. While the video images could be “zoomed in”, this could also have been done during lawful physical surveillance using a pair of binoculars.

Conversely, the installed video cameras provided a view of the accused’s property that was not otherwise available to the public or to police conducting lawful physical surveillance. The installed cameras effectively permitted the police to visually trespass onto the accused’s property. In the court’s view, this trespass was fatal to the use of the installed cameras in the absence of a warrant. There was also an argument that video images provide a permanent record that can be reviewed and examined after the fact, thereby making them more intrusive than mere physical surveillance. The judge said that this is where the purpose of the surveillance becomes relevant: had the police been seeking to collect self-incriminating evidence against the accused to prove the commission of a crime, a general warrant would have been advisable and likely necessary. In this case, where the primary purpose was to support an ITO, the recordings were simply another tool in the police investigative arsenal and they did not require a warrant, provided that they were the by-product of lawful physical surveillance.

The ONSC found that the accused’s reasonable expectation of privacy was not infringed by the video recordings undertaken by the police during their physical surveillance. It was objectively reasonable to expect that activities conducted in plain view would be observed by members of the public, including the police. Further, it was objectively reasonable to expect that, in this day and age, when most members of the public carry personal electronic recording devices to document the minutiae of their lives, and many members of the public have recording devices installed on their homes and in their vehicles, at least some of the accused’s activities conducted in plain view would be recorded. Given some of the counter-surveillance tactics observed on the videos, it was the judge’s view that the accused likely also had a subjective expectation of police surveillance. In the circumstances, the video images recorded secondary to physical police surveillance did not breach s. 8 of the Charter.

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Search of the vehicle incident to arrest for reasons unrelated to the arrest violated Section 8 of the Charter

Ali Ismail was charged with seven counts, all related to his alleged possession of a loaded handgun found in the backseat area of the pickup truck he was operating (R. v. Ismail 2021 ONSC 3883). Police were investigating Ismail in relation to outstanding bench warrants for failing to attend court on charges of occupying a motor vehicle knowing there was a prohibited weapon inside, resisting a peace officer, possession of a Schedule I substance, and operating a motor vehicle while impaired. On the latter charges, Ismail had already been arrested, released, and charged sometime prior and those matters were before the court, so the current arrest was for the arrest warrant for failing to appear in court in answer to those charges.

At the time of his arrest on the warrant, Ismail was driving and there was a female passenger in the vehicle. Ismail was arrested and his hands cuffed behind his back. The female passenger was also now away from the vehicle and no longer had immediate access to it. An officer testified that his 26 years of experience convinced him that the entire vehicle could be searched to secure evidence related to the crime for which the accused was being arrested. In this case, for evidence related to the original charges. The officer learned from another officer at the scene that a handgun had been found in the backseat area of the pickup truck before (the original charges). It was the experienced officer’s opinion that there was no need to obtain a warrant to search the vehicle now. During the search of the vehicle on the arrest of Ismail on the warrant, a loaded handgun was found underneath the backseat of the pickup truck, wrapped in brown paper towel. After finding the loaded handgun, the female passenger was also arrested.

Search of vehicles incident to arrest has been the subject of many ligated cases, many of which I have already posted about on this blog (e.g., R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195; R. v. Nolet, [2010] 1 S.C.R. 851; and others). The issue in the present case was whether the search by police was truly incidental to the arrest in the sense that it was necessary to discover or preserve evidence connected to the arrest, protect safety, or protect against escape.

Searches of vehicles by police will generally be lawful where the search is related to evidence of the offences for which the accused is arrested. These are typically active, ongoing investigations. It is important to remember that Ismail was arrested for his failure to attend court. He had been previously arrested and released on the weapons charges related to this vehicle. Here, by the time police conducted the search of the vehicle, Ismail had been arrested, cuffed and removed from the immediate location of the Avalanche pickup truck for transport. The female passenger was away from the vehicle. Ismail had been co-operative and had offered no resistance. In the language of para. 22 of Caslake, there was no “reasonable prospect of securing evidence of the offence for which the accused was being arrested.” The accused was being arrested for his failure to attend court. There were no officer safety issues at that point. There was no evidence related to the failure to attend court that could be gained from the vehicle. There was no chance Ismail would escape. The search of the vehicle amounted to a breach of s. 8 of the Charter. It was warrantless and not authorized by law. In this judge’s ruling, if police felt there were reasonable grounds to believe there was a gun in the vehicle, they had only to secure it and obtain a warrant. They clearly either felt it was unnecessary or were concerned about whether they had the grounds to obtain it.

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Section 320.27(2) of the Criminal Code, which permits a police officer to make a demand of a driver of a motor vehicle to provide a sample of breath into an approved screening device in the absence of any suspicion that the driver has alcohol in their body, is constitutional

Prior to December 18, 2018, an approved screening device demand could be made pursuant to s. 254(2) of the Criminal Code if the officer had a reasonable suspicion that the driver of a motor vehicle had alcohol in their body. The threshold to establish a “reasonable suspicion” was relatively low and could be met in various ways, including but not limited to an admission by the driver that he had consumed alcohol or a constellation of factors including poor driving conduct, glossy/glassy eyes, slurred speech, poor motor coordination or the smell of an odour of alcohol on the driver’s breath.

Bill C-46, which repealed and replaced all sections of the Criminal Code related to driving offences came into effect on December 18, 2018. Included in Bill C-46 was the replacement of what was formerly s. 254(2), with now what is s. 320.27 of the Criminal Code. The section which was at issue in R. v. Blysniuk 2020 ONCJ 603 was s. 320.27(2), which has eliminated the need for the officer to have a reasonable suspicion that the driver has alcohol in his body prior to making a roadside screening demand. It reads:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

The statutory prerequisites that must be met before an officer can make a demand pursuant to s. 320.27(2) is that the officer must be acting in the lawful exercise of his powers at the time of the demand, the subject must be operating a motor vehicle, and the officer must have an approved screening device in his possession at the time of the demand.

The facts of this case were very simple. An officer with the Ontario Provincial Police stopped the Applicant’s vehicle on December 22, 2018 at 7:22 p.m. to check on his peeled rear licence plate. The officer informed the Applicant of the reason for the stop. Subsequently, the officer also advised the Applicant that it was a “Festive Ride and based on it being a Saturday night all drivers he would be stopping were being read a breath demand under s. 320.27(2) of the Criminal Code of Canada.” The Applicant denied consuming any alcohol and the officer made a demand that he provide a sample into an approved screening device (“ASD”) pursuant to s. 320.27(2) at 7:26 p.m., which he had in his police cruiser. The Applicant provided a suitable sample of his breath into the approved screening device resulting in a Fail, thereby giving the officer reasonable grounds to believe that he had committed the offence of operating a conveyance with a blood alcohol concentration of 80 mg of alcohol in 100 ml of blood or more. The Applicant was then arrested at 7:28 p.m., read his rights to counsel and transported to the station, where he provided two samples of his breath into an approved instrument registering readings of 140 mg of alcohol in 100 ml of blood and 130 mg of alcohol in 100 ml of blood.

The judge ruled that the Applicant was initially lawfully stopped by the officer regarding concerns of his peeling licence plate. The stop was justified under the H.T.A. and there was no suggestion by the Applicant that the initial stop was arbitrary or motivated by an improper purpose (Charter, Section 9).

Given that s. 320.27(2) of the Code does not create a new stopping or detention power by the police and does not change the existing stopping power, or lengthen the detention period from that which would otherwise have been lawful for the purposes of investigating a driver’s sobriety compared to that which has already been considered in the context of random stops to check on the sobriety of the driver, the judge was satisfied that it is settled law that while the detention which flowed from the demand made pursuant to s. 320.27(2) of the Criminal Code was arbitrary and therefore a breach of the Applicant’s s. 9 Charter rights, it is saved by s. 1 of the Charter for the reasons espoused in R. v. Hufsky, [1998] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257 (I won’t expand on those two cases because I have made several blog posts already relevant to those cases, and others similar).

For clarification purposes of the case at hand:

Was the Search and Seizure (i.e. taking of the breath sample at roadside) Authorized by Law?

The judge ruled that the officer made the mandatory alcohol screening demand to the Applicant explicitly pursuant to s. 320.27(2) of the Criminal Code, which had been enacted and which had come into force and effect 4 days prior to the date of the stop. The officer had complied with the statutory preconditions, such that the Applicant was operating a motor vehicle at the time, the officer was acting in the lawful exercise of his duties at the time the stop was made and he had an approved screening device in his possession at the time of the demand.

Is s. 320.27(2) of the Criminal Code a Reasonable Law?

Parliament’s intent and objective of enacting mandatory alcohol screening as set out in s. 320.27(2) is to increase the detection of drivers with an elevated blood alcohol concentration of 80 mg of alcohol in 100 ml of blood or more and impaired drivers, by increasing the efficacy of detecting such individuals through the use of a scientifically reliable device, as well as, enhancing the deterrence of people who otherwise may have chosen to take the risk that they would not get caught. Given the risk, danger and social cost caused by drinking and driving, and the inadequacy of the results that have been achieved through the various other methods previously utilized in Canada, the objective of increasing the detection and deterrence of such individuals remains a pressing and substantial objective sought to be achieved through s. 320.27(2) of the Criminal Code.

While drivers who have not consumed any alcohol may now be required to provide a sample of their breath into an ASD, the law already permits the police to stop and detain such drivers and to take steps to investigate their sobriety. Although prior screening measures did not involve a search and seizure unless an officer had a reasonable suspicion that the driver had alcohol in their body, the impact of the search and seizure pursuant to s. 320.27(2) is minimally intrusive on a person’s privacy interests and bodily integrity. The statutory requirements when a demand is made are set out in s. 320.27(2) and are designed to ensure that it results only in a very brief roadside detention of an individual who is voluntarily engaged in the highly regulated and dangerous activity of driving a motor vehicle, which in this case lasted not more than 2 minutes. Section 320.27(2) contains appropriate restrictions on when and in which circumstances the police may conduct this screening (lawful stop, present operation of a motor vehicle, and the approved screening device in the officer’s possession), as well as, the limited use that can be made of the results (only as a screening measure and not to establish guilt). If charges are laid against an individual, there is judicial oversight through a trial where the defence can challenge the lawfulness of the stop, lawfulness of the demand and the search itself. While there is the potential for the disproportionate application of this law against racialized and other marginalized populations, this can also be said of the former s. 254(2). In many ways s. 320.27(2) serves to increase overall fairness by removing the subjectivity involved in the prior suspicion-based testing. Overall, the judge ruled that the law is reasonable having consideration of the totality of the circumstances and the context.

Was the Search Itself Carried out in a Reasonable Manner?

The officer lawfully stopped the Applicant, who was operating a motor vehicle as a result of concerns regarding the Applicant’s licence plate; he had a screening device in his possession at the time and made a demand of the Applicant driver at the scene pursuant to s. 320.27(2); and quickly administered the screening test in short order at the scene. From the time the demand was made until the arrest it was not more than 2 minutes. There was no evidence of any conduct on the part of the officer that he improperly stopped the Applicant, that he was delayed in the making of the demand or in administering the test, that the Applicant’s safety was put at risk as a result of the detention or the administering of the test, that the officer breached his privacy further than was required in order to administer the test, or that the search was carried out in a manner that went beyond that which was necessary in order to obtain a suitable breath sample. For these reasons, the judge concluded that the search and seizure was carried out in a reasonable manner.

In short, the judge was satisfied that s. 320.27(2) of the Code strikes an appropriate balance between the pressing and substantial interest of the state in detecting and deterring persons from drinking and driving against those of the individual driver and does not infringe s. 8 of the Charter.

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