Prosper “Hold Off” Still Being Violated

Some agency-issued standard Charter/Caution cards or statement forms contain phrases that resemble: “You may be charged with … You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?

R. v. G.T.D. 2018 SCC 7 – as he was sitting in the back of a police car, following his arrest on an offence of sexual assault of a former intimate partner, the police officer read him his rights. When the officer asked if he wanted to speak with a lawyer, he said: “Uh, yes.” The officer then said: “You may be charged with sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?” G.T.D. replied: “Yeah. Like a boss says I’m raping, I didn’t do because I was thinking, like, since we are in a relationship, it’s okay. I didn’t think it would be a raping because we our two boys together” [English was not his first language].

He pleaded not guilty. Defence conceded, at trial, that his statement to the officer was voluntary but argued that it was obtained in a manner that violated his right to counsel. The officer breached the duty to hold off by asking him “Do you wish to say anything?” after he said he wanted to speak to a lawyer. The trial judge ruled that the question did not breach the right to counsel and, if it did, she would not have excluded the statement. The majority in the Court of Appeal dismissed the appeal. It was of the view that the form of caution read by the police officer generated a breach of the appellant’s right to counsel under s. 10(b) of the Charter, but that the breach was of minimal gravity and that admission of the resulting evidence would not bring the administration of justice into disrepute and did not need to be excluded as a remedy under s. 24(2) of the Charter.

The Supreme Court of Canada reversed the ruling (4-1 majority) and ordered a new trial. Justice Russell Brown held in brief reasons, at paras 2-3, that the question “Do you wish to say anything?” violated the duty to hold off “because it elicited a statement” that should have been excluded. The SCC said that the trial judge expressly relied upon G.T.D.’s statement to corroborate the complainant’s evidence; therefore, its admission was not harmless and the statement should have been excluded.

The right to counsel under s. 10(b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel” (R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

Of interest to some, the ABCA was quite vocal on point, at para. 82:

It is not the arresting officer’s behaviour individually that is of greatest concern, however. Instead, any fault lies at the feet of EPS institutionally, because it included the eliciting question at the end of its standard caution, or alternatively, because it failed to train its officers not to read this question when a detainee asked to speak with a lawyer. The arresting officer’s good faith does not significantly mitigate the seriousness of a Charter breach if his good faith misunderstanding of the law was a result of EPS training or policy that did not properly educate the officer about his obligations under the Charter. Instead, such an institutional or systemic Charter breach is more serious than an isolated incident: R. v. Harrison, 2009 SCC 34 at para 25, [2009] 2 SCR 494; R. v. Heng, 2014 ABCA 325 at paras 10-11, 580 AR 397; R. v. McGuffie, 2016 ONCA 365 at para 67, 131 OR (3d) 643.


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Failure to fulfill a duty that is considered best practice should not be taken lightly because it is a statutory and common law duty…

What do many of us do when we execute a search warrant of a residence or place? I suspect that many will say, “Leave a copy of the warrant at the place, or at least show or give the affected party a copy.” If that is your response, you would be correct; and don’t just take my word for it.

R. v. Boekdrukker 2018 ONSC 266 – police executed a search warrant at the accused’s home after she sold cocaine to an undercover officer. Following one buy, and before a second successful buy in which the accused was arrested, police applied for and were granted the search warrant, which they brought to the place to be searched before actually executing it.  One of the officers had the warrant in his car, but didn’t bother to bring the warrant into the residence with him during the search, nor did police leave a copy of the search warrant in the residence after they finished the search and left. To compound this, police did not show Ms. Boekdrukker the search warrant when she asked to see it upon her arrest at the residence. To remind all of us, s. 29(1) of the Criminal Code states:

It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

In the judge’s opinion, the common law mandates that police officers leave a copy of the search warrant in an unoccupied place or premise that they have searched. In addition, s. 29(1) CC was not complied with because it was feasible for the police to show Ms. Boekdrukker the search warrant. She asked to see it. She was under arrest, cooperative, and compliant. There was no urgency in removing her from the scene. In fact, she was not removed immediately. The search warrant was in the officer’s car and could have been readily retrieved, said the judge.

As another note, in this case, there was a violation of s. 10(b) of the Charter due to the unreasonable delay in facilitating the accused’s contact with counsel (it took nearly 4 hours from the time she expressed her desire to speak to a lawyer and almost 3.5 hours from her arrival at the police station to speak to duty counsel). The reasoning relied upon the line of authority that has permitted the police to delay the s. 10(b) implementation duties when the police are in the process of obtaining and executing a search warrant, where there are legitimate concerns for an officer or public safety and/or for the loss or destruction of evidence, which may prove to be exigent circumstances that justify a temporary suspension of Charter rights. These cases often involve the potential for violence or firearms as well.

No such concerns arose in this case. The police already had the search warrant in their possession before they arrested Ms. Boekdrukker. Ms. Boekdrukker was told they were going to search her unit. The police then quickly entered and secured the unit even before Ms. Boekdrukker was taken back to the police station. There was no one in the unit that the police searched. There were no other factual circumstances that raised any safety or investigative concerns once the unit was secured. While some of the officers testified to general concerns in executing search warrants to avoid a loss of evidence, none of the officers acknowledged this was a motivating concern here in terms of the failure to facilitate access to counsel. According to the judge, even if the police properly delayed access to counsel in order not to compromise the search, there was no reason why access to counsel was delayed beyond the time when police gained access to the unit and found it unoccupied.

The evidence seized during the search of the residence was excluded and the accused was acquitted on those charges. Luckily, the charges stemming from the sale to the undercover officer stood and the accused was convicted of trafficking and possession of the proceeds of crime.

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Sue Charlton: Mick, give him your wallet. Michael J. “Crocodile” Dundee: What for? Sue Charlton: He’s got a knife. Michael J. “Crocodile” Dundee: [chuckling] That’s not a knife. [draws a large Bowie knife] That’s a knife.

Is it just a knife, or is it a ‘weapon’ as contemplated in the Criminal Code?

The definition in the Criminal Code is as follows:

weapon means any thing used, designed to be used or intended for use: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, anything used, designed to be used or intended for use in binding or tying up a person against their will;

In R. v. Vader 2018 ABQB 1, the accused was found in the driver’s seat of a beat-up pickup truck, in the middle of nowhere, driving and behaving erratically. When he was arrested, the police noted the handle of what turned out to be an old machete extruding from the under the driver’s side floor mat of the vehicle and a fishing knife, in a leather scabbard, in an open area at the bottom of the driver’s side door. Vader, at the time, was bound by two release documents, each of which provided as follows:

You shall not possess any firearms, ammunition, explosives or any other type of weapon whatsoever and you shall surrender any firearms, ammunition, explosives or any other type of weapon currently within your possession to the St. Albert RCMP Detachment within 24 hours of your release.

He was not charged under s. 88 or s. 90 of the Criminal Code, but with violating the terms of his release. The trial judge concluded that both items were “weapons” within the definition of “weapon” in s. 2 of the Criminal Code and convicted him. Vader appealed his conviction, based on the definition of ‘weapon’ in the Code. The focus at trial was on the middle portion of the definition (designed to be used).

On appeal, the Crown submitted that the inference which could have been drawn on the evidence was that the accused intended to use the items as weapons. The Crown argued that inference was, in all the circumstances of the case, inescapable, and should have been drawn by the learned trial judge. The appeal judge noted that items which have both violent and non-violent uses are not caught by an objective categorization. Context is necessary to determine if the violent aspect of the item is ascendant. Weapons offences are not absolute liability offences. An accused person retains the right to attempt to establish justification for possessing an item which is otherwise, by its nature, a weapon.

So, said the judge, while it may be reasonable to have a machete in the forest or a fishing knife at a lake, it’s not reasonable to have either on a residential bus in February in the City of Edmonton. In that latter context, it is not the manufacturer’s design or the modification of it performed by others which determines the character of the object. It is the accused’s design which is determinative. The accused’s design is determined by context. In those circumstances, the otherwise ambiguous nature of the item is determined by what possibilities the evidence does and does not support. In the absence of some other reasonable possibility, it leads to the inference that the possessor’s design was to use the machete as a weapon. Or, put another way, to have the machete as a weapon.

By way of another example, the judge said that an accused with a freshly sharpened machete in the leg of his pants in February, in Edmonton, at a local bar, in the absence of other reasonable possibilities, could be inferred to have the item which he designed to use as a weapon. He has an item designed to be used as a weapon, whether he intends to use it or not. If the circumstances are the same, but the accused is shown to have gone to the bar to seek retribution for an earlier beating at the hands of a fellow bar patron, one might infer intent to use the weapon, which the machete was found to be by virtue of the context and his design. An item which is both violent and non-violent in potential use will be found to be a weapon where the context supports the inference that it was the accused’s design and the context does not support any other reasonable possibility.

Vader’s appeal was dismissed.


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A Part VI authorization only applies to prospective interception of digital messages and is not required to obtain historical text messages. A production order is sufficient.

R. v. Jones 2017 SCC 60 – Jones was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co-accused, pursuant to a production order obtained under s. 487.012 (at that time, but now s. 487.014) of the Criminal Code. Jones challenged the Production Order under s. 8 of the Canadian Charter of Rights and Freedoms. He argued that law enforcement must obtain a “wiretap” authorization under Part VI of the Code to seize records of historical text messages from a service provider in order for the seizure to comply with s. 8 of the Charter.

Telus complied with a Production Order and provided the requested records to the police. The records revealed a text message exchange concerning the potential transfer of a firearm. The exchange occurred between the co-accused’s phone and a phone used by Jones, but registered in the name of his spouse. Relying in part on the text messages, the investigators obtained a Criminal Code Part VI authorization for a number of phones associated with the suspects. Communications intercepted under it were then used to obtain an additional Part VI authorization. On the basis of those subsequent interceptions, search warrants were granted and executed. The fruits of those searches led to Jones’s prosecution for marihuana trafficking and proceeds of crime charges. The firearm trafficking charges against him, on the other hand, were brought largely on the basis of the text messages obtained under the Production Order.

Not surprisingly, the SCC ruled that it is objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient (in short, there is a reasonable expectation of privacy in texts stored by a service provider). However, historical text messages denote messages that have been sent and received, not those still in the transmission process. In such cases, a Part VI wiretap authorization is unnecessary because the police are not seeking an order authorizing the prospective production of future text messages. Nor is the police seeking evidence in text messages that are still in the transmission process. Therefore, the search and seizure of historical text messages can be properly authorized by the production order provisions of the Criminal Code, and does not breach s. 8 of the Charter.

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Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination?

R. v. Marakah 2017 SCC 59 – Marakah sent text messages regarding illegal transactions in firearms to Winchester, asking him to delete them after reading them. The police obtained warrants to search his home and that of his accomplice, Winchester. They seized Marakah’s BlackBerry and Winchester’s iPhone, searched both devices, and found incriminating text messages. They charged Marakah and sought to use the text messages as evidence against him. At trial, Marakah argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search and seizure. The application judge held that the warrant for Marakah’s residence was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that Marakah had no standing to argue that the text messages recovered from Winchester’s iPhone should not be admitted against him. He admitted the text messages and convicted Marakah of multiple firearms offences. The majority of the Ontario Court of Appeal agreed that Marakah could have no expectation of privacy in the text messages recovered from Winchester’s iPhone, and hence did not have standing to argue against their admissibility. The main question on appeal to the SCC was whether Marakah had a reasonable expectation of privacy in the messages he sent to Winchester and whether he could claim s. 8 Charter protection for the text messages accessed through Winchester’s iphone?

The SCC said text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. To claim s. 8 protection, a claimant was required to first establish a reasonable expectation of privacy in the subject matter of the search. Whether a claimant had a reasonable expectation of privacy had to be assessed with regard to the “totality of the circumstances” (factors discussed in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34). The subject matter of the alleged search was the specific electronic conversation between Marakah and Winchester. According to the SCC, Marakah had a direct interest in that subject matter, he subjectively expected it to remain private, and that expectation was objectively reasonable. He therefore had standing to challenge the search.

If the place of the search was viewed as a private electronic space accessible by only Marakah and Winchester, Marakah’s reasonable expectation of privacy was clear. If the place of the search was viewed as Mr. Winchester’s phone, this would reduce, but not negate, Marakah’s expectation of privacy, said the SCC. The mere fact of the electronic conversation between the two men tended to reveal personal information about Marakah’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, Marakah exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. A person does not lose control of information for the purposes of s. 8 simply because another possessed it or could access it, said the SCC. The risk that Winchester could have disclosed the text messages did not negate Marakah’s control over the information contained therein. It followed that Marakah had standing to challenge the search and the admission of the evidence, even though the state accessed his electronic conversation with Winchester through the latter’s iPhone.

The SCC noted, however, that not every communication occurring through an electronic medium would attract a reasonable expectation of privacy and grant an accused standing to make arguments regarding s. 8 protection. Different facts could lead to different results (e.g. messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards).  Two of the Justices, Moldaver and Rowe, were concerned as to the consequences of this decision on standing. For example, if the sender has a reasonable expectation of privacy in the record of his digital conversation, what happens when the recipient wants to show that record to the police? Is the SCC now opening the door to challenges by senders of text messages to the voluntary disclosure of those messages by recipients? As Justice Moldaver suggested, this would lead to the perverse result where the voluntary disclosure of text messages received by a complainant could be challenged by a sender who is alleged to have abused the complainant.

Would it make a difference if, for example, the complainant or victim volunteered or gave the text messages to the police rather than if the police seized or took them?  In Marakah, police seized the text messages from Winchester’s iPhone; Winchester did not offer or give them to police, nor did the police seek informed consent from Winchester.  Would that have mattered in the end?  I can’t say, but I suspect we will see a lot of litigation around this issue in the months to come.

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General warrant cannot be used for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant.

R. v. Christiansen 2017 ONCA 941Christiansen was convicted after a jury trial of two counts of possessing narcotics for the purpose of trafficking, and one count of possessing proceeds of crime, $21,500; he appealed his convictions. A police investigation suspected that the accused and another individual were selling drugs out of a clothing store. Following further investigation and surveillance, police obtained a general warrant for the store. Upon confirming the presence of drugs (oxycodone and cocaine), police obtained a CDSA warrant to search the remainder of the store and the accused’s home. Police seized drugs from the store and $21,500 in cash from the accused’s residence.

The ONCA ruled that general warrants under s. 487.01 authorize the use of investigative techniques, procedures or devices, or other things to be done, that would otherwise constitute unreasonable searches. Subsection 487.01(c) restricts general warrants to cases where “there is no other [legislation] that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.” The Supreme Court dealt with this legislative restriction in R. v. TELUS Communications Co., [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16. Justice Moldaver explained, at para. 80, that this requirement ensures that general warrants are to be used “sparingly” when the “investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision.” He explained that s. 487.01(c) serves to ensure that “general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions.”

In this case, the general warrant was issued, in substance, for the same investigative technique available under CDSA, s. 11, namely, to search the Unit. The police could not satisfy the requirements for a search under CDSA, s. 11 because they did not have reasonable grounds to believe there was evidence at the Unit. In effect, said the ONCA, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant. The court therefore allowed Christiansen’s appeal, set aside the convictions against him, and ordered a new trial.

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Assistance order pursuant to s. 487.02 of the Criminal Code forcing accused to unlock his cell phone by providing the swipe password violates the Charter.

R.v. Talbot 2017 ONCJ 814 – Talbot was arrested for second degree murder and a cellphone was located on his person. The police obtained a search warrant authorizing them to seize and forensically examine the cellphone. However, the phone was locked using a swipe pattern and the attempts to bypass the security had failed. The only other possible method to enter the phone offered no guarantees and risked causing permanent loss of the data and potential evidence from the cellphone. The Crown sought an order pursuant to section 487.02 of the Criminal Code, requiring Talbot to assist the police in accessing his cellphone by providing the screen lock passcodes or PIN codes.

The Defence took the position that the mere act of compelling an accused to assist the police would be in violation of the accused’s section 7 Charter rights. The Defence submitted that the assistance order would compel Talbot to be used as an instrument of the state in order to obtain potentially incriminating evidence to bolster the case against him. The Defence further submitted that the swipe pattern was a product of Talbot’s thought process and provided the gateway to stored information which was intensely personal and would reveal intimate details about Talbot’s life.

Section 487.02 of the Criminal Code states:

“If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.”

The word “person” is not defined in the Criminal Code. After carefully considering Canadian jurisprudence in this area of law, the ONCJ was not prepared to find that accused persons were specifically excluded from being a “person” in section 487.02 of the Criminal Code. Parliament could have specifically excluded targets of investigations or accused persons, but chose not to do so. Simply because the section had traditionally been used for third parties or non-targets did not automatically exclude an accused person from consideration. However, compelling Talbot to assist the police by providing his swipe password infringed his section 7 Charter rights. An assistance order would breach his right to choose whether to remain silent or communicate with the police. Both the compelled participation and the ramifications for failing to comply would have a significant impact on Talbot’s life, liberty, and security of the person.

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The ASD and ‘Mouth Alcohol’

The concern with the presence of residual mouth alcohol is that it may artificially raise the alcohol level shown by the ASD and thus cause a “false fail.” [R. v. Au-Yeung, 2010 ONSC 2292 at para. 29]

This post is hardly ‘new’ case law. In fact, this issue has been discussed and argued for years.  It is worthy refreshing ourselves on the law in this area from time to time though.  R. v. Roblin 2017 ONCJ 702 discussed two issues that are worthy noting: mouth alcohol and legal articulation.

Section 254(2) of the Code permits an officer — during the investigative stage of an impaired driving inquiry, and upon developing a reasonable suspicion that a motorist has alcohol in his or her body — to require breath samples be provided into an ASD. Because the driver is being detained and denied his section 10 Charter rights, the officer is required to make the demand, and obtain a reliable sample, forthwith. The test’s purpose is to determine, with accuracy, the presence and amount of alcohol in a driver’s bloodstream, and to assist in determining whether a further criminal investigation is warranted (i.e. arrest for driving with excess blood alcohol) or permit the detainee to be swiftly on his or her way. This, of course, requires that the testing process be reliable, otherwise what is the point of the exercise. This reality imports some flexibility into the forthwith requirement, which is otherwise quite rigid — a brief delay is acceptable if it is reasonably necessary to allow for the testing process to be properly conducted (for example, R. v. Bernshaw [1995] 1 S.C.R. 254).

It is widely known that mouth alcohol may artificially raise an ASD test result. This is why police officers need to be alert for “credible evidence” of its presence during sobriety-related traffic stops. An officer is entitled to rely upon the accuracy of an ASD result absent such evidence. As a result, courts have historically permitted a brief delay at the roadside in circumstances where there is credible evidence of recent consumption in order to ensure that the alcohol has dissipated from the detainee’s mouth and is not an impediment to the ASD’s proper functioning.

In this case, the arresting officer, part of a broader deployment of police resources aimed at detecting potential impaired drivers, positioned his cruiser in a parking lot adjacent to a licensed establishment. His intention was to conduct random sobriety checks of motorists leaving the restaurant. He pulled a vehicle over after it was seen exiting the restaurant’s parking lot. The driver was alone in his vehicle. He had no difficulty pulling over at the police direction. Standard requests for documentation were made by the officer and during the interaction, the officer noted an “evident” odour of alcohol relatively quickly; he described it as being more apparent the longer they spoke. He asked how long the driver had been at the bar, and was told about an hour. He then asked if he had consumed alcohol, and received a response that he had drank one beer, five minutes previous. The officer was suspicious of this statement, as it did not accord with his understanding of how people act in bars or restaurants — people generally do not abstain in such locations, only to then consume alcohol in a short period of time before leaving, in the officer’s opinion.

On the basis of the driver’s answers, the officer formed a suspicion that the driver was operating a motor vehicle with alcohol in his body. The officer was in possession of an approved screening device and, after turning it on and conducting various tests, administered the device to the driver. A “fail” result was obtained eight minutes after the initial traffic stop. The officer testified that the device can provide three possible results — pass, alert, or fail — and that a fail indicates an amount in the test subject’s bloodstream in excess of 80 milligrams of alcohol in 100 millilitres of blood. On the basis of the fail result, an arrest occurred and a s. 254(3) breath demand was made.

In cross-examination, however, the officer agreed that it was possible that the driver had consumed alcohol five minutes before the traffic stop. His principal difficulty with the driver’s utterance was not the timing of consumption, but the quantity. He believed the driver would have drank more but, critically for present purposes, he agreed on multiple occasions that the driver could have recently drank alcohol, as stated, five minutes before the traffic stop. While this would mean that he was administering a test thirteen minutes after the subject had potentially consumed alcohol, and was aware that mouth alcohol could generate a false fail, the officer indicated that he was nonetheless confident that the obtained sample was reliable. He indicated that, in his mind, a fifteen minute delay is a recommendation only, a “soft decision”, not a “necessity or a hard and fast rule”.

The court ruled that a reasonable officer would have been aware of the notorious effect of mouth alcohol on ASD test results, and would have known that it was necessary to wait fifteen to twenty minutes after consumption to ensure a reliable sample, one that could either further a criminal investigation or permit a detainee to be swiftly on his way, as envisioned by the section 254(2) Code provision was obtained. While the officer honestly believed he had grounds based on the “fail”, in the circumstances that belief was unreasonable, said the judge. The breath samples obtained at the police station were unreasonably seized and a section 8 Charter violation was established.

A related s. 8 Charter issue arose during the course of the application, with regard to subjective grounds. Upon receiving the “fail” result from the ASD, the officer testified that his “suspicion had been confirmed that the driver was operating a motor vehicle while impaired by alcohol”; i.e. 253(1)(a), not 253(1)(b). The officer further testified, when asked about what information he provided to the breath technician back at the police station, that he explained his “suspicions”. The position of the Crown was that the officer misspoke when he used the term “suspicion”, misspoke again when he identified the impaired driving s. 253(1)(a) offence, and that the surrounding circumstantial evidence should satisfy the court that he subjectively believed that the driver was operating a motor vehicle with excess blood alcohol, contrary to s. 253(1)(b) of the Code.

Luckily, the judge ruled that “a court [can] infer from circumstantial evidence the officer had the requisite belief without having said the “magic words”. In the end, the judge accepted the crown’s submission that the officer’s testimony that his suspicion was “confirmed” meant that he had escalated his suspicion to something more concrete, like a belief. In the circumstances, the judge was satisfied, on a balance of probabilities, that the officer honestly believed that he had evidence capable of justifying an arrest for driving with excess blood alcohol, his choice of language notwithstanding. Of course, for the reasons already indicated, that belief was unreasonable given the clear and present danger mouth alcohol posed to the ASD test procedure. The breath samples were excluded from evidence.

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Investigative detention and searching a vehicle

R. v. Lee 2017 ONCA 654 – officers on general patrol in their scout car. At 8:23:10 p.m. they received a call from dispatch that there was a male of Asian descent possibly armed with a gun in the parking lot near the liquor store. This was the dispatch information (computer):














The officers then received oral information from dispatch that the vehicle was a white four-door 2009 Toyota. They drove to the liquor store, arriving at 8:24:53, but did not see the vehicle. They exited the parking lot and drove along a nearby road where, a few minutes later, they saw a vehicle pulled over with the engine running matching dispatch’s description of the car and the licence plate. The car had a single male occupant — the appellant — who was Asian and wearing a brown hat. The officers stopped behind the vehicle.

The officers approached the appellant, ordered him to show his hands, opened the car door, and removed him from the driver’s seat. One officer told the appellant he was under investigative detention following the 911 gun call. The appellant looked shocked and said, “No! No!”, in response to mention of the word “gun”. The officer did not immediately inform the appellant of his right to counsel. He did a pat-down search for weapons and found none. The appellant was detained but not handcuffed. The second officer performed a search of the passenger cabin of the appellant’s vehicle and did not find a gun.

A sergeant, who had also heard the 911 gun call, arrived shortly after the responding officers, with two other officers. An officer pushed the button releasing the latch to open the trunk of the appellant’s vehicle. A duffle bag came into view once the trunk was open. The sergeant lifted the bag and found it heavy. Thinking there could be guns inside, he unzipped it. The bag contained 23 kilograms of cocaine. No gun was located.

The investigative detention lasted three minutes. By 8:39 p.m., the appellant was arrested for possession of a controlled substance for the purpose of trafficking. At that time, he was informed of his right to counsel. The next day, the police obtained a search warrant to search the appellant’s vehicle and to seize the duffle bag and cocaine.

The trial judge concluded that the search was reasonable and that, in any event, the evidence seized was admissible under s. 24(2).  Two judges of the Ontario Court of Appeal agreed that the police searched the trunk lawfully, while one judge in the Court of Appeal agreed with Lee’s lawyers that this search went too far.

The appellant raised three issues:

  1. Was the search of his trunk authorized by s. 117.02(1) of the Criminal Code?
  2. Was the search of his trunk authorized by the common law?
  3. Should the cocaine be excluded from evidence under s. 24(2) of the Charter?

The ONCA ruled that the police officers all testified that they did not believe they had grounds to obtain a warrant to arrest the appellant at the time of the search, so s. 117.02(1) of the Criminal Code does not apply. Accordingly, s. 117.02(1) did not authorize the search in this case.

Was the search of the trunk authorized at common law? First, a police officer must have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. Second, the police officer is entitled to search the individual detained for a weapon where the officer has a reasonable belief that his safety “or the safety of others…is at risk”. The decision to search cannot be premised on hunches, mere intuition, or a vague or non-existent concern for safety, rather, the officer, “is required to act on reasonable and specific inferences drawn from the known facts of the situation”. The search must also be confined in scope to an intrusion reasonably designed to locate weapons. Third, the search must be conducted in a reasonable manner. Fourth, the investigative detention should be brief and the individual detained is not obliged to answer questions.

How did the ONCA decide? First, the investigative detention was necessary. Based on the 911 call, “[the officers] were discharging their common law duty to preserve the peace, prevent crime, and protect life and property”. As a result of confirmation of the specific information in the call, description of the car, licence plate, and description of the individual driving it, the police had reasonable grounds to suspect that the appellant was connected to a particular crime, possession of an illegal weapon, a gun, and his investigative detention was necessary.

Second, the police had reasonable grounds to believe that their safety and the safety of the public was engaged and they were entitled to conduct a protective pat-down search of the appellant and in the particular circumstances, they were also entitled to search the cabin of the car.

Third, the appellant did not submit that the manner in which the search was conducted was unreasonable.

Fourth, there was also no issue that the investigative detention was brief. Here, after receiving the 911 call from dispatch at 8:23:10 p.m., the police were at the liquor store parking lot by 8:24:53 p.m., and they located the appellant only a few minutes later. The appellant was under arrest within sixteen minutes from the time of the 911 call.

The trial judge found the officers reasonably believed the person driving the car was probably the person who had closed the trunk. At para. 28 of her reasons she held:

I find that the officers reasonably believed that the person driving the car was probably the person who closed the trunk as there was no other individual involved. I find that they reasonably inferred that there could have been one or more guns in the car and that the gun that the caller believed he saw could have been moved to the pocket of the Asian male from the trunk or from the pocket to the trunk.

Although two of the ONCA judges agreed, at para. 65 of the decision:

Importantly, this decision must not be read as condoning an unlimited search of a car for police or public safety purposes whenever there is an investigative detention. The jurisprudence makes it clear that it is the totality of the circumstances that must be considered in every case. It is a very factually-driven analysis.

The third judge ruled that the search in this case was not authorized by law and therefore infringed the appellant’s right to be free from unreasonable search and seizure. However, the judge agreed with the majority that the evidence obtained from the search should be admitted under s. 24(2) of the Charter. The third judge went further to say that once no weapon was found on the appellant’s person or inside the cabin of his vehicle within his accessible reach, no further immediate safety hazard existed; the appellant had no immediate access to his trunk and had no means to immediately retrieve anything from the trunk or from the luggage in the trunk that could pose such as hazard. …

The take home? Don’t go into the trunk UNLESS you have specific reasons pointing at a live risk to police or the public (and you are able to articulate that). In the specific facts of this case, the importance of preventing serious injury or death to members of the public in not allowing the appellant to drive away until that threat was dispelled clearly outweighed the additional interference with the appellant’s liberty and privacy interests.  The same may not be in the result in our situation; we must tread carefully.

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Profiling or ignorance of the law?

R. v. Gonzales 2017 ONCA 543 – this decision arose out of an investigation into a spate of daytime break-ins into homes in the southern part of York Region. Plainclothes police officers in unmarked vehicles patrolled the area, looking for suspicious activity. One such officer on patrol observed two young Latino men driving a rental van through a neighbourhood. The van pulled into a garage and the men entered the home. The officer made further inquiries and determined the vehicle rental was overdue. Five days later, the same officer saw the accused driving a similar van. The van continued past the home it stopped at during the prior sighting. The officer believed the van was avoiding him and conducted a traffic stop. The officer approached the van. He could see through the side windows that the van was full of large cardboard boxes. Each box was sealed closed. The officer was curious about the contents of the boxes. At the driver’s door of the van, the officer displayed his badge and warrant card. Gonzales, the driver, asked why he had been stopped. The officer told Gonzales that he wanted to ensure that Gonzales was a licensed driver entitled to operate the van. Gonzales handed over the documents the officer requested. The officer returned to his truck to verify the documents provided by Gonzales. He believed the occupants of the van were in possession of marihuana (the officer smelled fresh marihuana). He intended to arrest them for that offence. Although he was armed, the officer was not wearing a protective vest. He called for assistance to make the arrest and waited for other officers to arrive before returning to the van.

When additional officers arrived, the officer told them about his observations and his plan to arrest the occupants of the van for possession of marihuana. He also explained his intention to look in the van. All officers approached the van. The original officer told Gonzales that he was under arrest for possession of marihuana. A uniformed officer advised Gonzales of his right to counsel (although the officer was delayed in giving Gonzales his caution), searched him incident to arrest, handcuffed him, and put him in the rear of a police cruiser for transport to the police station. Back at the station, Gonzales was strip searched.

A subsequent search of one box revealed it contained packaged marihuana. Police then obtained a warrant to search the van, resulting in the seizure of 252 pounds of marihuana and $105,000 in cash. Police obtained a second warrant for the residence and seized a further 185 pounds of marihuana, $27,000 in cash, a firearm and ammunition. The trial judge admitted the evidence seized from the home and the van despite a breach of the accused’s right to counsel. The accused was convicted of three firearm offences and possession of marihuana for the purpose of trafficking. He was sentenced to five years’ imprisonment. The accused appealed the conviction and sentence.

Although the appeal was premised on other grounds, I will focus this post on the ground that Gonzales was arbitrarily detained, thus resulting in a Section 9 Charter violation. As backdrop, in this case, the trial judge concluded that the detention was lawful under s. 216(1) of the HTA, even though the primary motivating factor was the officer’s pursuit of his investigation of the daytime, residential break-ins in the area. Accordingly, it was necessary to consider whether the detention fell within the scope of s. 216(1) of the HTA.

Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.), at para. 21; R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.

In addition to requiring the production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown v. Durham, at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, [1992] 3 S.C.R. 615, at pp. 623-24. However, s. 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns: Brown v. Durham, at para. 24; Mellenthin, at p. 623-24. Sound familiar so far? It should, most jurisdictions have similar legislation.

Sometimes, a traffic stop may have more than one purpose. However, the mere existence of another purpose motivating the stop, beyond highway regulation and safety concerns, does not render the stop unlawful. But the additional purpose must itself not be improper, or proper but pursued through improper means, and must not entail an infringement on the liberty or security of any detained person beyond that contemplated by the purpose that underpins s. 216(1): Brown v. Durham, at paras. 31, 34, 37-39 and 45.

Gathering police intelligence falls within the ongoing police duty to investigate criminal activity. And so it is that it is permissible for police to intend, within the confines of a stop and detention authorized by s. 216(1), to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity: Brown v. Durham, at paras. 31 and 33; R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 254-55. Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor (e.g. articulable cause): Simpson, at pp. 492-493.

The evidence of the officer that conducted the traffic stop was that he was in the area for a single purpose. And that purpose had nothing to do with highway regulation or vehicular safety. As he testified, he was there — in plainclothes driving an unmarked vehicle — to investigate an untoward number of daytime residential break-ins in the area. He drove around and kept his eyes open for any signs that might assist in matching suspects with crimes. So, with his testimony making no reference to a lawful stop under the HTA, the basis for the stop must have been at common law to investigatively detain the occupants of the vehicle.

Turning now to the Waterfield test (I have highlighted this in earlier posts), the first requirement was easily met (common law and statutory duty to investigate crime and apprehend those who may be responsible for it). In the second analysis, was that duty justifiable in this instance? The officer had no information to link the van or its occupants to the daytime residential break-ins he was investigating. The officer knew about the number of break-ins and the time and manner of entry. But neither the police in general, nor this specific officer, had a description of any individuals or vehicles that might have been involved in or associated with these activities. The officer had seen the same van in the same area twice in five days. Each time, there was a driver and a passenger. However, on the first occasion, what happened satisfied the officer that there was no connection between the van and the break-ins; they entered the house. The officer did not see them leave. He thought that one of the men may have lived there. Scarcely the stuff of articulable cause or reasonably grounded suspicion, said the ONCA. Similarly, nothing on the second occasion could ground a reasonable suspicion – the same vehicle, two young men, a look from the driver to the officer as the driver drove through the intersection, nothing more. The ONCA ruled that the stop was an arbitrary detention and that the trial judge erred in holding otherwise.

Since the ONCA ruled that the traffic stop and subsequent detention was arbitrary, it offended s. 9 of the Charter because it was not based on any reasonable suspicion that the occupants of the van were involved in any way in the investigation of the residential break-ins that the officer was then pursuing. And it was that detection that permitted the officer to smell the raw marihuana; to see the sealed boxes; and to observe the accused’s reaction to police questions. It was these circumstances that provided the officer with the grounds necessary to arrest the accused, and it was that arrest that permitted the search incident to arrest that located the packaged marihuana in the sealed packets in the sealed cardboard box in the van, which led to the search warrant for the van, which led to the search warrant for the house. All of which led to the evidence that constituted the case for the Crown.

The ONCA ruled that all of the evidence seized flowed from an arbitrary detention conducted without reasonable suspicion of involvement in crime. The circumstances involved serious police misconduct that was part of a wider pattern of pulling over suspicious individuals without cause (as Justice Watt put it, evidence emerged from the officers at trial that this stop was part of a larger pattern of pulling over “suspicious” persons and asking them what they were doing in the neighbourhood). According to the ONCA, the officer had no grounds to believe that the occupants of the van had anything to do with the daytime residential break-ins he was investigating. He had seen the same van with two occupants enter a garage on the street five days earlier. He concluded then that there was no connection of the van or its occupants to the break-ins. The officer was not there doing traffic enforcement and had no traffic-related reason to pull the vehicle over. The officer knew or should have known that he had no basis to signal the vehicle to stop and to detain its occupants. A proper s. 24(2) Charter analysis required exclusion of the evidence seized from all searches. The convictions were set aside and replaced with acquittals.

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Filed under Arbitrary Arrest or Detention, Search and Seizure