Exigent circumstances in s. 11(7) CDSA denotes urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety, or public safety, and those circumstances must render it “impracticable” to obtain a warrant.

R. v. Paterson 2017 SCC 15 – three officers responded to a 911 call from a woman, C.W., who was crying and apparently injured. After speaking to the caller’s mother who directed them to Paterson (C.W.’s boyfriend), the officers attended at Paterson’s apartment building. C.W.’s mother also told the officers that Paterson had a shotgun. The building manager gave them Paterson’s apartment number, and told them that C.W. had been taken to the hospital with unknown injuries (C.W. would later tell police that she had accidentally slipped and hit the back of her head, and that Paterson did not cause her injury). After police repeatedly knocked on Paterson’s apartment door and announced their presence, he opened the door. As he did so, one of the officers noticed the odour of raw and smoked marihuana.

After questioning Paterson about the 911 call and satisfying themselves that no one was in need of assistance, the officers asked him about the odour. He first denied its source, then acknowledged possessing some unconsumed portions of marihuana “roaches” in his residence (three roaches). The officers explained that they would have to seize the roaches, but that they would treat this as a “no case” seizure, meaning that they intended to seize the roaches without charging him. One officer testified to considering obtaining a warrant, but decided not to and instead simply seize the roaches so that he and the other officers could be on their way. Paterson agreed to hand over the roaches and attempted to close the door, but an officer blocked the door with his foot and said he would not let Paterson out of his sight. He testified having done so out of concern that Paterson would destroy the roaches, and for “officer safety”. One officer followed Paterson into his residence, and another officer followed out of a concern that it was unsafe for one officer to be alone with Paterson.

Once inside, Paterson grabbed a bag containing the roaches to hand over to the officers. As he did so, an officer observed a bulletproof vest on a couch, a handgun on an end table, and a bag of pills (which he believed to be ecstasy) on a speaker stand. The officers immediately arrested and searched Paterson, finding a cell phone and a large amount of cash. A sweep of the residence revealed two large bags of pills (also believed to be ecstasy) and a bag of what appeared to be crack cocaine on a closet shelf. After securing the residence, telewarrants were obtained under s. 11(1) and (2) of the CDSA and s. 487.1 of the Criminal Code.  From the arrest and search, police found 825 grams of cocaine, 200 grams of methamphetamine, 9,000 ecstasy pills, a small amount of marihuana (simple possession), a small amount of oxycodone (simple possession), a loaded Smith and Wesson 38 special revolver (a prohibited firearm), a loaded Ruger P85 9-millimeter semi-automatic pistol (a restricted firearm), a loaded Ruger P90 45-calibre semi-automatic pistol (a restricted firearm), a loaded 1M1 Desert Eagle 44-calibre Remington Magnum semi-automatic pistol (a restricted firearm), $4,655 in cash on his person, $30,000 in cash was found in a box located underneath a couch in the living room area, and a bulletproof vest on the same couch.

The trial judge convicted Paterson on all counts, and the BCCA upheld the decision. The SCC reviewed existing jurisprudence in this area and said the common theme emerging from these descriptions of “exigent circumstances” in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7), said the SCC. Those circumstances must render it “impracticable” to obtain a warrant. At para. 34:

…exigent circumstances must be shown to make it impracticable to obtain a warrant. In other words, “impracticability”, howsoever understood, cannot justify a warrantless search under s. 11(7) on the basis that it constitutes an exigent circumstance. Rather, exigent circumstances must be shown to cause impracticability.

Defence submitted that the definition of “exigent circumstances” found in s. 529.3(2) of the Criminal Code should be applied to define “exigent circumstances” as it appears in s. 11(7) of the CDSA. This would have the effect of requiring police to demonstrate either that entry was necessary to prevent imminent bodily harm or death, or that entry was necessary to prevent the imminent loss or destruction of evidence relating to the commission of an indictable offence — neither of which could have been established on the facts known to the officers prior to entry in this case. The SCC rejected that submission, ruling instead that in order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.

According to the SCC, the officers could have (1) tried to obtain Paterson’s lawful consent to enter his apartment and seize the roaches; (2) arrested Paterson and obtained a warrant to search his apartment and seize the roaches; or (3) thrown up their hands and walked away, in dereliction of their duty to seize illicit drugs, even if only to catalogue and destroy them. At para. 39:

With respect, the prospect of the appellant destroying roaches which the police officers hoped to seize on a “no case” basis and destroy themselves, with no legal consequences to the appellant whatsoever, did not remotely approach s. 11(7)’s threshold of exigency. No urgency compelled immediate action in order to preserve evidence. Nor, just as importantly, did the circumstances presented by the appellant’s admission to having some partially consumed roaches, coupled with the police officers’ wish to seize them on a no case basis, make it impracticable to obtain a warrant. Inconvenient or impractical, perhaps. But s. 11(7) is not satisfied by mere inconvenience, but impracticability. In this case, the police had a practicable option: to arrest the appellant and obtain a warrant to enter the residence and seize the roaches. If, as the Crown says, the situation was not serious enough to arrest and apply for a warrant, then it cannot have been serious enough to intrude into a private residence without a warrant.

As for the matter of officer safety (one officer following the other officer into the apartment), the SCC said given the report from C.W.’s mother about the possibility of Paterson having a shotgun, this concern was well-founded. It was not, however, that concern which prompted the first officer’s entry itself. At para 40:

…”really related to [the two officers] attempt to carry out the seizure in a less intrusive way”. In other words, concern for officer safety did not drive the decision to proceed with warrantless entry; rather, warrantless entry gave rise to concern for officer safety.

In the end, the SCC ruled that the warrantless entry by the police into Paterson’s residence was not authorized by s. 11(7) of the CDSA, and infringed his right under s. 8 of the Charter to be secure against unreasonable search:

The evidence obtained as a result of the entry and search of P’s residence should be excluded under s. 24(2) of the Charter as its admission would bring the administration of justice into disrepute. The police conduct, while not egregious, represented a serious departure from well-established constitutional norms. These police officers were not operating in unknown legal territory: their intention to effect a seizure on a “no case” basis was legally insignificant, in light of the well-established legal principles governing the authority of police to enter a residence without a warrant.

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Drug recognition experts (DREs) under Section 254(3.1) of the Criminal Code can testify without an expert evidence voir dire

R. v. Bingley 2017 SCC 12 – after Bingley was observed driving erratically, the police were called. One of the officers, a certified drug recognition expert (DRE) under the Criminal Code, conducted a standard field sobriety test. Bingley failed the test and was arrested for driving while impaired by a drug. At trial, the prosecution called the DRE to explain the results of his drug recognition evaluation as evidence of Bingley’s impairment. The prosecution relied on s. 254(3.1) of the Criminal Code as establishing the admissibility of the DRE’s testimony and argued that no voir dire was required. The judge at the first trial allowed the DRE to testify as an expert regarding the results of the drug recognition evaluation without a voir dire, but acquitted Bingley. On appeal, the acquittal was overturned and a new trial ordered. The second trial judge held that the DRE could not be qualified as an expert because he was not trained in the science underlying the drug recognition procedure. He also concluded that the evidence was not admissible lay opinion. He acquitted Bingley. The prosecution successfully appealed the second acquittal. The summary conviction appeal judge held that s. 254(3.1) of the Criminal Code rendered a DRE’s opinion automatically admissible and that in any event, it would be admissible lay opinion. The Court of Appeal held that the DRE’s opinion evidence was admissible without a voir dire. Section 254(3.1) of the Criminal Code allowed a DRE “to determine” whether an individual was impaired due to a drug or a combination of drugs and alcohol. It was implicit that this determination was automatically admissible as opinion evidence, the Court opined. Bingley appealed to the SCC.

The SCC, in a majority decision, ruled that drug recognition experts (DREs) under s. 254(3.1) of the Criminal Code can testify without an expert evidence voir dire as the underlying science has been presumed established by Parliament:

The majority, at para. 12, ruled that:

“The purpose of s. 254(3.1) of the Criminal Code confirmed that a DRE’s opinion was not automatically admissible at trial. Section 254(3.1) gave the police investigative tools to enforce laws against drug-impaired driving. It did not dictate whether evidence obtained through the use of those investigative tools would be admissible at trial. When Parliament intended to make evidence automatically admissible, it said so expressly. As s. 254(3.1) of the Criminal Code did not speak to admissibility, the common law rules of evidence applied.”

At para. 14:

“Expert evidence analysis was divided into two stages. First, the evidence had to meet the four Mohan factors: (1) relevance, (2) necessity, (3) absence of an exclusionary rule, and (4) special expertise. Second, the trial judge was required to weigh potential risks against the benefits of admitting the evidence.”

The SCC said the only issue in this case was whether the DRE had special expertise as required by the fourth Mohan factor. Bingley conceded that the proposed evidence was logically relevant, necessary, and not subject to any other exclusionary rule. Further, Bingley did not argue that the evidence should be excluded because its prejudicial effect outweighed its probative value.

Knowledge of the underlying science was not a precondition to the admissibility of a DRE’s opinion, said the SCC. The basic requirement of expertise for an expert witness was that the witness had expertise outside the experience and knowledge of the trier of fact, which the DRE in this case did. DREs received special training in how to administer the 12-step drug recognition evaluation and in what inferences could be drawn from the factual data they noted. It followed that the DRE’s evidence was admissible in this case.

Where it was clear that all the requirements of a common law rule of admissibility were established, the trial judge was not obliged to hold a voir dire to determine the admissibility of the evidence. The trial judge correctly found that the DRE in this case was an expert for purposes of administering the 12-step evaluation and determining whether Bingley was driving while impaired for the purpose of requiring further testing. He erred, however, said the SCC, in concluding that because the officer was not an expert in the scientific foundation of the various elements of the test, none of his opinion evidence was admissible.

At para. 26:

“…Reliability is not assessed in a vacuum. Parliament has established, through the adoption of the Regulations, that the 12-step drug evaluation is sufficiently reliable for the purpose of a DRE’s determination of impairment under s. 254(3.1). The scope of a DRE’s expertise is limited to that determination, and it is only for the purpose of making that determination that Parliament has established the 12-step drug evaluation’s reliability.”

At para. 27:

“… He is thus an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). His expertise has been conclusively and irrebuttably established by Parliament.”

At para. 30:

“… Limitations, such as the absence of a standardized approach to weighing the various tests in reaching a determination, may affect the probative value of a DRE’s opinion evidence. A DRE may be unable to explain how he or she made the determination based on the application of the 12-step evaluation. If the probative value of an individual DRE’s evidence is so diminished that the benefits in admitting the evidence are outweighed by the potential harm to the trial process, a trial judge retains the discretion to exclude that evidence. I reiterate here that the focus of the analysis must be on the DRE’s administration of the evaluation, not on the reliability of the steps underlying the evaluation, which have been prescribed by Parliament.”

At para. 31:

“It is also important to note that the determination of the DRE is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug. The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge or jury to consider.”

And, finally, at para. 32:

“That Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact’s ability to critically assess a DRE’s conclusion of impairment or an accused person’s right to test that evidence. Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer’s conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE’s assessment, as may evidence of bystanders or other experts. It will always be for the trier of fact to determine what weight to give a DRE’s opinion. Any weight given to a DRE’s evidence will necessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment.”

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Accused referred to duty counsel minutes after call to counsel of choice’s office went to voicemail.

R. v. Losier 2016 NBQB 213 – Losier, a former police officer, had been found guilty of having the care or control of a motor vehicle; he appealed his conviction. The accused had clearly expressed his desire to speak with the lawyer of his choice, so an officer called the lawyer’s office at the number which appeared in the yellow pages of the telephone directory. Not surprisingly, given that it was past midnight, the call went to his voice mailbox. One or two minutes later, the officer called the number for Legal Aid and left a message. Four minutes later, a lawyer from Legal Aid returned her call and Losier was able to speak with a lawyer.

The court said calling a lawyer’s office at night and reaching his voice mailbox is not sufficient to show that a reasonable effort has been made. The police officer could have tried, among other things, to find [the lawyer’s] home phone number or asked Losier if he knew of a way to reach the lawyer of his choice. Between the time the call was placed by the officer to the lawyer of choice’s office and the end of Losier’s conversation with the Legal Aid lawyer, only eight minutes elapsed. This was a short lapse of time for Losier to clearly waive his right under s. 10(b) of the Charter, said the court. Approximately one minute elapsed between the time the call was placed to the lawyer of choice’s office, which went unanswered, and the initial call was placed to Legal Aid. The accused did not have a long time to think about his right and the police officer did not offer him another opportunity to contact him or another lawyer of his choice. She did not even advise him that this was a possibility. Moreover, it was clear from her testimony, in which she stated that she had never called a lawyer in the middle of the night before, that it was not her intention to do so that night either.  The trial judge found:

To simply place a call to a lawyer’s office in the middle of the night, on a weekend no less, a call that went to the voice mailbox, and less than a minute later to offer a lawyer, another lawyer that was not the lawyer of his choice, such a scenario is very far from being reasonable and logical. Nothing constituted compelling or urgent circumstances. Jurisprudence has correctly held that the right to counsel, including the right to consult with the lawyer of one’s choice, takes precedence over the Crown’s right to rely on […] the presumption of identity under s. 258(1)(c) of the Criminal Code of Canada. Moreover, the two-hour limit to take advantage of this presumption had far from expired. […] In this case, therefore, the accused did not have a reasonable opportunity to reach the lawyer of his choice.

Nonetheless, the trial judge did not find that the accused’s right under s. 10(b) of the Charter had been breached:

The issue now is to determine if the accused in this case waived his right to consult with the lawyer of his choice by agreeing to speak with a lawyer from Legal Aid and by informing the officer that he was satisfied with their conversation. Regardless of the fact that the accused had been a police officer, even if he had been a lawyer […] specializing in criminal law, particularly in the area of impaired driving, no one, in these circumstances, can be one’s own best legal advisor, especially given that there was a real possibility that his judgment was impaired as a result of having consumed drugs or alcohol. Everyone has the right to receive the advice of a lawyer, including the lawyer of one’s choice. However, one must take into account the version of the accused, who testified to having been a police officer. As per his experience as a police officer, the accused were given ample time to contact the lawyer of their choice, before it was suggested to them that they contact another lawyer, one from Legal Aid for example. In his own words, the accused testified that they did not ask him, that they politely suggested contacting Legal Aid, and he agreed to it, that he was not there to cause trouble for anyone, that nothing would be gained by insisting or arguing. Then, after speaking with the lawyer from Legal Aid, he frankly admitted that he had been satisfied with the consultation he had had with the lawyer that the officer had suggested to him. Given his experience and knowledge, and that his discussions with the police had been cordial and polite, something he himself admits, one could expect that he would have told them about his concern regarding the fact that he was not afforded a reasonable amount of time to contact [the lawyer of his choice]….

The NBQB disagreed, ruling Losier’s right to retain and instruct counsel without delay and to be informed of that right was breached. The court was also of the view that the judge erred in law when he concluded that the accused had waived his right to counsel. He also committed an error of law when he based his finding on the accused’s experience as a police officer as well as on the discussions between the accused and the police officers, which were cordial.

The qualified technician’s certificate was excluded from evidence and an acquittal entered on appeal.

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Unlawful arrest based on bare tip and neutral observations

R. v. Basanez and Quilop 2017 ABCA 70 – police received an anonymous tip the accused was involved in cocaine trafficking. No further details were provided regarding the accused or the informant’s past involvement with police, if any. There was no indication whether the informant’s information was first-hand or hearsay. Police placed the accused under surveillance and observed interaction with another individual suspected of drug trafficking based on a similarly undetailed, uncorroborated tip. The following day, police observed the accused have brief meetings with two individuals. After the first meeting, the individual exited the accused’s vehicle after two minutes carrying an object the size of a baseball. The second meeting involved the accused enter the apartment of another person whom the police suspected of drug trafficking, having been informed by another anonymous tipster a year prior that this other person was engaged in drug trafficking. However, once again there was no evidence with respect to the reliability of this information or the credibility of the informant. Furthermore, there was no evidence that this other person was ever charged with trafficking in drugs or that he had been convicted in the past of trafficking in drugs.  The accused exited the apartment carrying a small pouch. Police arrested the accused hours later, seizing 30 bags of cocaine and crack cocaine, cash and cell phones in a search incident to arrest of the accused’s vehicle. The trial judge determined police had reasonable grounds to believe the accused had committed an indictable offence. The arrest was ruled lawful and the accused was convicted. The accused appealed.

The appeal court discussed that there are two fundamental requirements for a lawful arrest. The first requirement is fairly straightforward. The peace officer who arrests a person or the peace officer who decides and directs than a person ought to be arrested must subjectively believe that the person to be arrested has committed or is about to commit an indictable offence. The second part of the test is not so straightforward. The grounds upon which the peace officer arrests the person must be objectively justifiable in the sense that a reasonable person in the position of the peace officer, with all of his or her training and experience, must also be able to come to the conclusion that there were reasonable grounds for the arrest or detention.

It was the lead police investigator who decided that the accused should be arrested, notwithstanding that it was the commanding officer (the officer in charge that day) who actually gave the instruction to make the arrest to the arresting officers. The court found that it is the peace officer who decides that an arrest be made who must have reasonable and probable grounds, even if that officer does not perform the actual arrest: R. v. Debot, [1989] 2 SCR 1140 at 1166-1167, [1989] SCJ No 118.  So, the trickier issue on this appeal was whether the lead investigator had reasonable and probable grounds to arrest the accused.

The only evidence which directly supported a credibly-based probability that the accused was committing the offence was the hearsay evidence of the anonymous informant that the accused was dealing in drugs. That evidence, together with the evidence of behaviour which may have indicated some form of in-person transactions, might have formed the basis of credibly-based probability. However, the surveillance information consisted of three observations over two days and only two of the observations were said by police to be consistent with illegal drug activity. The observations were of extremely short duration. They took place in a matter of minutes. Not much was observed. There was no evidence of the accused using a cellphone. There was no observation of a hand-to-hand exchange. There was no evidence that anything transpired in the residence or the vehicles the accused was observed to have entered and exited. Furthermore, there was nothing connecting the persons the accused met or the residence he visited to known drug dealers. And there was no evidence of evasive or counter-surveillance tactics by the accused, for example.

The Crown argued that it would be difficult to imagine an innocent explanation for what the police observed. The court disagreed. People buying and selling items online, from small collectibles to hockey tickets, for example, often conduct transactions in their homes or cars or on the street. And such transactions can be extremely brief where the parties have previously agreed on price or where the transaction is conditional upon a cursory inspection by the buyer. So, although hand-to-hand exchanges which, in the officer’s experience, may be typical of drug transactions, there are also many innocent circumstances one person may hand a small object (such as a key or an earring) to another. Without information about the individuals or the building, for example, the fact of a hand-to-hand exchange does not elevate the circumstances to the objectively reasonable level necessary to justify detention, without more.

The ABCA, therefore, concluded that the trial judge erred in finding that the grounds for the accused’s arrest were objectively justifiable, and hence, the absence of reasonable and probable grounds for the arrest meant the accused’s arrest was arbitrary and therefore unlawful under section 9 of the Charter. There being no basis for the arrest, the search of the vehicle was not a search incidental to a lawful arrest and involved a breach of section 8 of the Charter.

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Police swabbing of the external door handle of the accused’s vehicle constitutes a search within s. 8 of the Charter

R. v. Wong 2017 BCSC 306 – the accused were charged with seven offences arising from the discovery of a methamphetamine lab and a loaded firearm; the two accused were the occupants of the house and had been under investigation by the police for several months before the execution of the search warrant. Police employed various investigative methods, including a tracking warrant, a transmission data recorder warrant and assistance order, a DNA warrant, warrantless video surveillance (more on this later), and warrantless searches and seizures involving seizure of garbage and swabbing of motor vehicles on various occasions.

The accused’s garbage was collected from the garbage bin left by the accused for garbage pickup in the back lane of the residence on two occasions. On another occasion, the accused was observed by the police removing a black garbage bag from the trunk of his vehicle, a white Toyota Echo, and deposit the bag in a dumpster located at the rear of a Fido store. Tests revealed trace particles of cocaine and methamphetamine on the knot of the garbage bag in one case, and trace particles of heroin, cocaine and methamphetamine on the bag and on the flex vent pipe in the other. The court found no Charter breach in relation to the garbage seizures (cited R. v. Patrick, 2009 SCC 17, and R. v. Edwards [1996] 1 S.C.R. 128, etc.).

The police swabbed the driver’s side door handle and trunk latch on Wong’s vehicle and further swabs from the same areas were again obtained some 12 days later. The swabs were tested by an ion scanner and trace particles of cocaine were detected. Neither the defence nor the Crown provided the Court with any case law specifically considering whether swabbing the handles/latches of a motor vehicle amounts to a search or seizure within the meaning of s. 8 of the Charter. The vehicle was parked in a public location, but defence submitted that Wong had a reasonable expectation of privacy in the information that could be extrapolated from this form of testing activity; and, parking a vehicle in a public location did not constitute abandonment of the owner’s privacy interest in such information.

In the court’s view, it would be objectively reasonable for Wong to have privacy expectations in the information that might be obtained through the swabbing of his vehicle. Undoubtedly, the parking of the vehicle in a public place meant it was subject to visual examination by anyone who passed by, including the police. If such visual examination revealed evidence that could be secured without physically touching the vehicle, for example through photography, any expectation of privacy would not be objectively reasonable. If, on the other hand, the evidence was not visible to the naked eye and could not be obtained except through physical contact with the vehicle, such trespass militated in favour of requiring consent or, in the absence of consent, a judicial authorization permitting same. Said the court, this conclusion is perhaps reinforced when one considers that the evidence secured through such swabbing might well include DNA of the vehicle’s owner-operator and the potential to thereby expose biographical information of a potentially intimate and personal nature. The court concluded that the warrantless swabbing by the police of Wong’s vehicle amounted to unreasonable search and seizure within the meaning of s. 8 of the Charter.

Now, returning to issue of the warrantless video surveillance, the ITO reported observations obtained from video camera recordings of activities occurring in the rear driveway and backyard area of the residence. The activities essentially comprised of Wong removing objects from his vehicle and carrying objects into the garage or carrying objects from the garage into the residence through its rear door entry. At various times, the objects included plastic bags, a canvas bag, a sack, plastic buckets, and garbage bags. Within these paragraphs, the affiant also expressed opinions and conclusions that Wong was transporting or transferring chemical precursors and other materials into the house to be used in the making of methamphetamine.

The ITO was silent as to the manner in which the video camera was installed and operated, but viva voce evidence provided that the camera was installed on a power line approximately 2 feet south of a utility pole nearest the corner of a street and the alleyway behind the accused’s residence. The wire on which the camera was installed was approximately 20 feet above street level and installation was done using a bucket truck parked on the alley side of the utility pole. The camera was small and shielded; it had no microphone or audio capability, and it had a fixed focal lens without zoom. The camera was angled so that it would record a view of the backyard, the garage, a tent garage, and the rear of the house, all from the perspective of the rear corner of the yard in the alleyway.  Later, police installed a network video recorder approximately two blocks away on other private property, with the consent of its owners; from that point forward, the video feed from the camera was recorded on the network recorder 24 hours a day until the equipment’s removal. Every 24 hours, the video recording was exported from the network recorder to a hard drive and then provided to the lead investigator on the file appropriately labelled with date, time, and location.

The uncontested evidence from the surveyor was that while the utility pole was not actually located on the property, the westerly face of the pole was leaning in such a way that it crossed over the airspace above the property line at approximately at a height of approximately 9 metres (29 feet). It was clear from the survey, however, that the eastern half of the pole and thus any wires attached to the alley-side of the pole did not cross the property line at any time. The court said that evidence of Wong moving back and forth between vehicle, house and garage, would have been plainly visible to any person observing the scene from the alleyway, but the question in this case was whether the warrantless installation and operation of a camera, recording activities on the property which were otherwise plainly visible from the alleyway, violated any reasonable expectation of privacy of a sort protected by s. 8 of the Charter

In the court’s view, three weeks of covert 24-hour video surveillance by the police, while creating a permanent electronic record of activities in the backyard of a private residence is precisely the type of investigative technique that s. 487.01 of the Criminal Code was designed to address. The failure of the police to obtain a general warrant authorizing such surveillance resulted in a violation of an individual’s rights under s. 8 of the Charter. Other courts have not found Charter violations in similar cases, so it may have been that since any unauthorized surreptitious video surveillance is a “pernicious threat to privacy”, it’s all the more so where the state is creating “a permanent electronic recording of one’s presence in a given location”.

 

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Whether the power to conduct a search incident to an investigative detention is restricted to a physical pat-down of the detainee?

R. v. Patrick 2017 BCCA 57 – someone had attempted to register a SUV in the name of a person whose identity had been stolen. During a patrol, a female officer recognized the SUV’s licence plate number from the complaint and stopped the vehicle. Patrick was driving the vehicle and it contained three passengers, all of whom were large men. The officer asked the driver who owned the vehicle, to which he replied a friend, but provided no other details. She asked for the vehicle registration documents, and the driver passed her a blue plastic sleeve with nothing in it. She noticed that the passenger seated in the front appeared to be sleeping, passed out, or unconscious, was difficult to rouse and no one else in the SUV seemed to know his full name or what was wrong with him. The occupant of the rear seat on the passenger side had two black eyes and a gash on his forehead, and although the officer could not say when the injuries had been inflicted, she thought that this person had been assaulted. She returned to her vehicle to conduct further background checks and request backup.

The officer ascertained the identity of the three passengers. All of them were involved in criminal activity and were known to be violent. The officer was concerned for her safety, considering Patrick could not say who owned the vehicle, one of the passengers looked like he had been assaulted, the front seat passenger appeared to be unconscious and no one was able to say what was wrong with him. The officer noted a bulge under the upper right shoulder area of Patrick’s jacket. The bulge was of concern to her because it seemed unnatural and was oddly shaped. She asked him whether he had something on him (“Do you have something on you?”). Patrick acknowledged that he did and patted the bulge. When the officer asked what he had on him, Patrick said a shotgun. Another officer reached inside Patrick’s jacket and pulled out a loaded shotgun. The barrel and butt stock had been sawed off. Patrick and the vehicle he was driving were searched incidental to his arrest.  This appeal focused on other issues, but I’ll restrict it to the investigative detention at roadside and the subsequent pat-down search.

The trial judge held that the questions asked of Patrick and the responses to those questions elicited violated his s. 8 Charter rights. Patrick conceded at trial the female officer was, on the authority of R. v. Mann, 2004 SCC 52, entitled to detain him at the roadside for investigative purposes. To highlight Mann at para. 40, the SCC also recognized that the general duty of officers to protect life may, in certain situations, give rise to the power to conduct a pat-down search incident to an investigative detention. To lawfully exercise this authority, the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. The decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified upon mere intuition or on the basis of vague or non-existent concerns for safety (see also R. v. MacDonald, 2014 SCC 3). In addition, the search must be conducted in a reasonable manner and the Crown bears the burden of demonstrating this on a balance of probabilities: Mann at paras. 36, 40.

The BCCA appeal said the central questions that arose on this appeal were: (1) whether the female officer had the power at common law to ask the respondent questions tailored to her safety-based concerns before conducting a pat-down search; and (2) if she did, whether the manner in which the search was carried out in this case — asking the respondent whether he “had anything on him” before patting him down — was a reasonable and justifiable use of that power. The first question was one of general application. The second question engaged considerations specific to this case.

The BCCA, at para. 102:

In my view, questioning a detainee about to be frisk searched as to whether they are in possession of anything that might cause the searching officer injury is minimally intrusive search. In some respects, it is less intrusive than a physical pat-down search. I would hold that narrowly tailored questions of this kind motivated solely by safety concerns are permissible. To use the language of Waterfield, asking a detainee whether they are in possession of anything that might cause injury to an officer about to execute a pat-down search constitutes a justifiable exercise of the powers associated with the duty of police officers to preserve the peace, prevent crime and protect life. That the search takes the form of minimally intrusive questioning as opposed to physical contact does not, standing alone, make the manner of the search unreasonable.

Of course, nothing compels a detainee to answer such a question. It stands to reason, however, that the police will be afforded additional latitude in determining the manner in which the search needs to be conducted if the detainee declines to respond, said the BCCA.

As to whether the questions asked by the female officer constituted a justifiable exercise of her common-law powers, the BCCA said the female officer testified that her questions were motivated by concerns about what Patrick was concealing under his jacket. In her mind, the question was the equivalent of asking Patrick what was being concealed under his jacket. The question appeared to have been so understood by Patrick because he responded by touching his right shoulder and advising her that he was in possession of a concealed shotgun. The officer was not permitted by the trial judge to give evidence on what the question “Do you have anything on you?” is understood to convey in the enforcement community. It was never put to the officer on the voir dire that she was motivated by anything other than safety concerns when she asked this question and it was not argued by Patrick that the officer was improperly using her limited common law authority as an evidence-gathering tool (which, as we appreciate – or should by now – would not be acceptable).

As a result, in the view of the BCCA, whether the officer’s inquiries exceeded the scope of her common law power is largely a fact-driven question that must also be resolved in the context of a new trial, and it so directed. Is an appeal to the SCC evident?  Time will tell.

 

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Warrantless examination of cell phone upon arrest – Photographs of visible screen of locked seized cell phone.

The Alberta Court of the Queen’s Bench in R. v. Millett 2017 ABQB 9 has ruled that photographs taken by a police officer of the screen of a locked iPhone are admissible as such only provided the phone seizure and immediate examination was lawful, notwithstanding the screen’s immediate visibility. Of note, this investigation took place approximately six months after the release of the Fearon decision.

Millett was the driver and sole occupant of a rental vehicle which was stopped by the EPS to investigate an impaired driver complaint. The police activated lights and siren and Millett pulled over promptly and safely. The police did not observe any signs of impairment. When the roadside screening device showed that he had ingested no alcohol, the police initially arrested him on a possession of marihuana charge and on a prohibited weapon (brass knuckles — which were in fact wooden) charge.

Before leaving the arrest location, police searched Millett’s vehicle. No search warrant was ever obtained by the police, i.e. no warrant for the vehicle or for cellphones. On the driver’s seat of the rental vehicle, police found four cellphones. Inside the closed center console beside the driver’s seat of that vehicle, police found two cellphones; police found another two cellphones in the vehicle’s glove box. When police eventually examined the phones at the police station, approximately one and one-half hours after the seizure of the phones, police found that, of the 8 cellphones, 3 were on and functional. One of the three cellphones which was on and functional was found in the closed console; that telephone, an iPhone 5, was on, but locked; however, its settings allowed the display on the screen of communications received. In order to read the screen, police had to depress the “open” button and use a thumb to scroll up and down the information displayed.

The officer who took the photographs of the screen of one cellphone accessed the contact list in another of the functioning cellphones and found a phone number linked to the “AJ Stars” who had sent messages to the other phone. That officer did not record all the investigative steps she took with the seized cellphones: for example, she did not record her access of the contact list on one phone, or the removal of batteries to look for a pin number for the phone. She testified that she did not believe that she looked at any of the incoming messages on the telephone where she accessed the contact list, but that it was possible that she looked at incoming text messages and at the telephone call log on that telephone. She did not record who looked at the cellphones, or at their contents, although she believed that a Sgt and a Staff Sgt might have looked at the messages as well. She testified that there was no investigative urgency to the examination of the cellphones and that the police investigation of the situation was not hampered. The officer testified that the only urgency to looking at the screens of the various phones was that they might not have ongoing power, but she acknowledged that it would not have been difficult to obtain chargers for all of the cellphones. The officer did record something about the messages she accessed: she recorded that there were several messages from AJ and quoted “I need to smoke some shit but didn’t want him to go/meet at his home”.

The Crown’s position was that the messages on the telephone screen were “documents in possession”, access to which is lawful and use of which for the truth of their content — despite their hearsay quality — is also lawful. Millett objected to the introduction of the photographs because of the Crown’s failure to meet two of the Fearon requirements: the need for prompt access and documentation of the details of the search.

Justice J.B. Veit said that broad principles were adopted by the SCC in Fearon to clarify the way in which police forces must deal with all cellphone information. That court rejected the American bright line approach of requiring pre-authorization for all but the most exigent searches and, while repeating that warrantless searches are presumptively unconstitutional, imposed, instead, a nuanced, four-point test. That test has already weighed an individual’s right to privacy against important law enforcement objectives; a court applying the Fearon test should not re-weigh its foundations. The court applying the test can, however, take the circumstances of any breach of the test into account in deciding what remedy should flow from the breach. At para. 3:

“Since Fearon‘s careful balancing of an individual’s right to privacy against legitimate law enforcement objectives, no aspect of cellphone searches, including screens displaying incoming messages, can be treated as “documents in possession”. All police access to seized phones must conform to Fearon standards.”

Justice Veit did not accept the Crown’s contention that applying the Fearon test in the circumstances here would require the police to “avert their eyes”. On the contrary, in order to access the information tendered, the police had to depress the “open” button, and scroll up the screen. Here, the Crown had failed to prove that there was any need to promptly access these phones, i.e. to access them without a warrant, and the police officer who accessed the phones for information did not make detailed notes of what she examined and how the devices were searched. Merely providing photographs of the screen of one telephone is not adequate compliance with this requirement. In assessing the privacy issue, there were no detailed notes of who had what access to the telephone in question.

Millett argued that there was no valid law enforcement purpose here to the warrantless search because there was no need to protect the police, the accused or the public, there was no need to preserve evidence, and there was no need to “promptly” search any cellphone. The first two of these positions were not contested. The Crown did, however, take issue with the need for “promptness” in the circumstances here. Indeed, the Crown asserted that, objectively, there is always a need for urgency when dealing with cellphones, and observed that the exception for warrantless searches granted by Fearon is, at least in part, justified by the need for prompt police action. Justice Veit said there were two problems with the Crown’s position. The first is that the only evidence on this issue was given by the patrol officer who dealt with the phones and who testified that there was no need for the police to search the cellphones promptly. As the Crown’s expert testified, the records within the cellphones were preserved. The patrol officer testified that the police investigation “was not hampered” by any lack of prompt access to the cellphones. The second problem with the presumption that “objectively”, there is always urgency in dealing with cellphones is that the presumption would invalidate the balance which the SCC was attempting to strike when approving certain warrantless searches. In the result, it was clear that access to the phones did not meet the Fearon requirement for prompt access.

As Fearon observed, the fact that an individual cellphone owner has locked the device but allowed notification of incoming communications to be displayed on the screen does not mean that the owner has waived his right to privacy.

For these reasons, the information on the cellphone screen did not become part of the evidence on the main voir dire. At para. 5:

“In the circumstances here, i.e. in the absence of evidence that EPS had taken reasonable steps to inform its peace officers of the new law which applied to cellphone searches, and in the absence of an ability to determine the breadth of the invasion of Mr. Millett’s privacy, the introduction into the main voir dire of evidence by a breach of Mr. Millett’s constitutional rights would bring the administration of justice into disrepute.”

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“Overholding” and s. 9 Charter Breaches

The issues surrounding overholding are not new or novel in impaired driving investigations. A recent case out of the Ontario Court of Justice, R. v. Lorenzo 2016 ONCJ 634, examined this issue. Ms. Lorenzo was stopped for a sobriety check as the arresting officer had earlier decided to do so of patrons leaving a certain drinking establishment. While speaking to Lorenzo, the officer noticed an odour of alcoholic beverage on her breath, red and watery eyes, and she admitted to consuming alcohol a few hours prior. He formed the suspicion that, while operating a motor vehicle, she had alcohol in her body so he asked her to step out for a test. She failed the test and then she was arrested and given a s. 254(3) demand for breath sample. The investigation proceeded in the normal fashion, resulting in readings of 145 mg. of alcohol in 100 ml. of blood and 135 mg. of alcohol in 100 ml. of blood. Lorenzo was then held in cells until some 6 hours later “until sober”.

Section 498 of the Code places a duty to release upon the officer-in-charge (or another peace officer e.g. arresting officer) where a person has been arrested and detained without a warrant; the person  “shall”, “as soon as practicable” be released by an officer in charge (or other peace officer) with an exception where an officer has an appropriate belief, based on “reasonable grounds”, for not doing so (i.e. public interest considerations).

Several courts have cited that permitting the blood alcohol level to be the sole determinant results in too narrow a focus when deciding whether or not to hold an arrestee. For example, in R. v. Price 2010 ONSC 1898, the court said the officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. According to cases such as Price, it is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus (see also cases such as R. v. Cheema, [2016] O.J. No. 1787, R. v. Mazzuchin, [2016] O.J. No. 371, and others).

The court in Lorenzo found there was no lawful reason for Ms. Lorenzo’s detention once the investigation was complete and she was served with the appropriate paperwork. Instead of being released, she was held in cells for six plus hours and there were no circumstances that arose that interfered with the police being able to execute her release, nor with Lorenzo’s ability to get home in a cab in the manner she ultimately did, said the court. The officers-in-charge (in this case, more than one was involved) did not take necessary steps to see if there was a real possibility of releasing her to someone as soon as practicable, for example. Lorenzo was acquitted.

 

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Investigative detention and use of force…

There are limits to the degree of interference with a citizen’s liberty that the police can employ when interacting with a citizen short of arrest. Nevertheless, the law recognizes that, especially in situations potentially dangerous to the public or to the police, a degree of intrusion may be justified. A recent case out of the NLCA, R. v. Squires 2016 NLCA 54, examined balancing the importance of protecting citizens from the illegitimate use of force by police, while at the same time trying to ensure that the police are not unduly hampered in the way they carry out their important public duties and responsibilities, especially when safety issues relating to firearms are potentially involved.

Moldaver and Wagner JJ. explained the balance that must be struck in terms of a “fundamental bargain” in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 as follows:

[64] Every day, throughout this country, police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others. In return, they are entitled to know that when potentially dangerous situations arise, the law permits them to conduct minimally intrusive safety searches to alleviate the risks they face. That is the fundamental bargain we, as a society, have struck with the police — and it is a fundamental commitment upon which the police are entitled to rely.

In Squires, police received an anonymous phone tip, in the early hours of the morning, that a male in a “black jeep” near a community centre in St. John’s had a firearm, possibly a shotgun or rifle. The first officer on the scene saw a lone black sport utility vehicle with a male occupant in the parking lot. A second officer arrived in another car a few minutes later. The first officer activated his vehicle’s emergency lights, exited the vehicle, drew his firearm and told the male, whom he recognized as Squires from a previous occasion, to put his hands out the window. Squires fully cooperated. Upon the second officer’s arrival, she also drew her gun. Squires was told to exit his vehicle and lie face down on the ground, whereupon the second officer handcuffed him and brought him to her police vehicle. He was read his rights and caution and was told the police were investigating a weapons complaint. Squires admitted there was a shotgun in his vehicle. Not knowing of Squires’ statement that there was a gun in the vehicle, the first officer, using a flashlight, looked through the tinted glass in Squires’ vehicle to determine if there was anyone else there and to ensure the officers’ safety. Not seeing any other occupant, he looked again and saw the partially covered barrel of a shotgun on the back seat. He opened the door, seized the gun and shotgun shells and told the other officer to arrest Squires for unsafe handling of a firearm. Squires was re-advised of his rights and cautioned and then arrested for careless use of a firearm and breach of a weapons prohibition. The second officer claimed reasonable grounds for the arrest based on the original complaint that had been phoned in, Squires’ admission that there was a shotgun in the vehicle, and the fact that the first officer had seen the firearm in the vehicle. The first officer confirmed in evidence that he did not have grounds to arrest Squires prior to observing the firearm, but he asserted that he searched the vehicle incident to the arrest. It was clear, however, that the formal arrest performed by the second officer back in the vehicle had not occurred before the gun and shells were actually seized.

On these facts, the trial judge concluded that Squires’ rights under sections 9 and 8 of the Charter were infringed, and excluded the evidence of the shotgun and shells. As a result, Squires was acquitted for lack of admissible evidence.

The NLCA noted that a minimally intrusive safety search must still generally be based upon lawful actions of the police such as a lawful arrest or a lawful investigative detention. Thus, if a safety search is conducted incident to a detention that is arbitrary under section 9, the search will be regarded as an unreasonable search in violation of section 8. While MacDonald recognized that, in exigent circumstances or circumstances of an imminent threat, a search for weapons based on safety concerns does not necessarily have to be incident to either a lawful arrest or lawful detention, it presupposes that the actions of the police prior to the search are otherwise lawful. On its facts, MacDonald does not extend to permitting a safety search as incident to an arbitrary (i.e. otherwise unlawful) detention. Exigent circumstances do not in themselves provide a justification for a search; rather, they provide a justification for proceeding to search without a warrant which would have been available had there been time to apply for it, i.e. the circumstances provide an otherwise lawful basis for the search. The police must be doing some lawful thing when the need for a “shortcut” in doing it arises through exigent circumstances (R. v. Fountain 2015 ONCA 354).

That said, it must be recognized that there may be good practical reasons to allow police, where safety issues are at play, to carry out investigative detentions (tailored in their nature to the factual circumstances) and searches incidental to such detentions. The police officers had testified that they did not have grounds to arrest, and did not arrest, Squires until the firearm was observed in the backseat of the vehicle. The question upon appeal therefore became whether the actions of the police in interfering with Squires’ liberty could be characterized as a legitimate investigative detention short of arrest.

As noted in Squires, the standard to be applied to justify investigative detention is considerably lower than that required to arrest. Here, the officers acted on a tip that a man was in a black utility vehicle at the community centre with a shotgun or rifle. That was sufficient to justify investigating. In the absence of anything indicating worthlessness or substantial unreliability of the information received, the police are entitled to rely on such information for the purpose of investigating further (R. v. Clayton 2007 SCC 32).

It is the duty of a police officer to investigate potential crimes and to ask questions of citizens in relation to that investigation. It is not necessary that the police must have a subjective belief in the accuracy of the information at the time of commencing an investigation or that, at these early stages, there need be any objective corroboration of the information suggesting the need for investigation. That said, the right and duty to investigate does not automatically imply a right to detain or use force short of arrest. The degree of detention that is justifiable in pursuance of the investigation will depend, on a view of the totality of circumstances, on what is reasonably necessary to facilitate that investigation. At that point, the officer must have reasonable grounds to suspect that in all the circumstances the targeted person “is connected to a particular crime and that such detention is necessary” (R. v. Mann 2004 SCC 52).

Upon arrival at the scene, the first officer observed a man in a vehicle that roughly fit the description given in the tip. No one else fitting the description was present. Given the possible presence of a firearm, it was perfectly reasonable for the officer to suspect that Squires was connected with the alleged crime and to seek to detain him to investigate further, said the court. The safety of the public and the investigating officers was potentially engaged. The more difficult question, however, was whether the police acted appropriately in the manner in which they purported to effect the detention.

The trial judge concluded that “ordering the accused out onto the ground and searching him … exceeded what would be warranted in encompassing an investigative detention.” The use of force is usually associated with arrest rather than investigative detention. Here, said the court, it can not be said that the police had more than a reasonable suspicion, upon entering the parking lot and seeing a vehicle that generally matched the description in the tip, that the suspect in the vehicle had any weapon in his possession or under his control. There was no evidence led at trial of any reputation of Squires, who was known to the officer, for violence (although he was subject to a firearms prohibition). Further, the suspect was not behaving in a manner that in itself would have invoked suspicion. He was cooperative throughout and complied with all directions from the officer.

The degree of force used and the intrusion into Squires’ liberty was not, at that time, necessary to protect officer or public safety or to further the investigation which had been activated by the tip that had been received or the initial observations in the parking lot. Once the police went beyond a scenario requiring Squires to keep his hands visible, exit the vehicle and put his hands on the roof of the vehicle preparatory to, perhaps, a pat down search, and instead used physical restraint, and threats of physical force, they exceeded the bounds of permissible detention and, given the conceded absence of grounds for an actual arrest, caused the resulting detention to become arbitrary.

The NLCA said that an investigative detention should not be allowed to become a de facto arrest and stated that the duration and nature of the detention must be tailored to the investigative purpose of the detention. Generally, subduing and immobilizing by threatening force, handcuffing and placement in a police vehicle will not be necessary to carry out an offence investigation. In most cases, a direction to cease movement, exit a vehicle, keep one’s hands visible and respond to questioning will be sufficient. Obviously, handcuffing and other forms of physical restraint and confinement may be necessary in an investigative detention, but generally that should be the exception rather than the rule (see, for example, Clayton, R. v. Gnanachandran, 2005 CarswellOnt 3065 (S.C.) at para. 30; R. v. Cunanan (2008), 170 C.R.R. (2d) 69 (Ont. S.C.) at paras. 42, 44; R. v. Agengo, 2011 ABQB 171, 506 A.R. 344, at paras. 14-17)). The use of force, such as pointing a weapon, ordering the suspect to the ground, handcuffing and confining in a police vehicle will usually be regarded as a de facto arrest (see, e.g., R. v. Strilec 2010 BCCA 198, 256 C.C.C. (3d) 403; R. v. Orr, 2010 BCCA 513 at paras. 10-11).

The appeal court concluded, as did the trial judge, that it was reasonably necessary in the totality of the circumstances of the case, (given the report of a firearm and the general description given by the tipster, suggesting that the person could be regarded as a suspect), to detain and question Squires when he was observed in his vehicle on the community centre parking lot. However, in the absence of any indication of attempted flight, uncooperativeness or threatening behavior, that could have been accomplished by requiring Squires to exit the vehicle and to place his hands in plain sight on the top of the vehicle, preparatory to a pat down search. It did not in the circumstances require ordering him to the ground at gunpoint, handcuffing him and placing him in the police cruiser before continuing to look for any weapons. What began as a lawful detention became unlawful when excessive force and unnecessary detention methods were employed. The detention became arbitrary and was therefore a breach of section 9 of the Charter.

As for the search of the jeep, the police officer was lawfully in the place outside the vehicle from which the interior could be viewed. As well, once the firearm was observed, it would have been apparent to the officer that it may be evidence of a crime. It was the very type of item which was reported to them as being in the possession of someone in a black vehicle in the parking lot and which prompted the investigation in the first place. On the evidence, the arrest of Squires back in the second officer’s police car took place after the first officer saw the gun in the backseat of the vehicle, opened the door and seized it and the accompanying shells. How then can it be said that the search and seizure was incidental to arrest? The NLCA said that although the search preceded the actual words of arrest, it can still be characterized as being incidental to the arrest because the officer in fact had reasonable and probable grounds to arrest Squires as soon as he observed the firearm on the seat of the vehicle even though the actual words of arrest were not uttered until after the seizure. That brought it within the scope of a search incident to an arrest (see, for example, R. v. Debot [1989] 2 S.C.R. 1140). Accordingly, the appeal court concluded that the seizure of the gun was lawful and that the items and evidence in relation to it were admissible at Squires’ trial. The trial judge erred in concluding otherwise, ruled the appeal court.

In the end, the appeal court by a 4:1 ruling said that the evidence obtained in the course of the lawful search should not have been excluded at Squires’ trial. The arbitrary detention and excessive use of force did not justify the exclusion of the evidence, as the shotgun would have been observed had a reasonable level of force been used. The crown’s appeal was allowed and a new trial ordered. As the newly appointed justice to the SCC (M. Rowe, concurring) stated in Squires:

Regarding the seriousness of the conduct that infringed Mr. Squires’ rights under section 9, while the police used excessive force in their detention of Mr. Squires, their conduct was grounded in a sense of caution related to officer safety. The officers were not cavalier or egregious in their conduct; they simply went too far in the circumstances.

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Know the lawful limits of your authority.

R. v. Noftall 2016 NLCA 48 – officers assist other agencies on a regular basis and oftentimes enter private property under the authority of that agencies mandate (legislative authority). If we are assisting animal control officers, social workers, etc. and doing so under their legislation, as officers we are expected to know and abide by our lawful limits within that legislation.

A social worker with the Department of Child, Youth and Family Services in Fortune, NL, received a telephone call reporting that a child about one year of age may be in need of protective intervention. The social worker knew the caller but did not know either Noftall or his partner, the child’s mother. The caller reported that “there was information in the community” that Noftall and his partner had a grow-op in their home from which illegal drugs were being sold. The social worker contacted her supervisor and it was decided that the report should be investigated without delay. Before approaching the Noftall house, the social worker contacted the RCMP and requested that a police officer accompany her and her colleague, also a social worker, for the investigation. The officer testified that he went with the social workers, not because of the allegations, but to ensure their safety as they investigated the referral that there was a child in the house who might be at risk of harm.

Like most provinces, NL has legislation which provides for investigation of a report of a child in need of protective intervention and the agency can request the assistance of a peace officer (in this case, the RCMP legislation provided for preservation of the peace under section 18(a) of the Royal Canadian Mounted Police Act, RSC 1985, c. R-10). Any officer assisting must know their lawful authority and limits under the specific legislation for their territorial jurisdiction.

Both the social workers and the officer smelled a strong odour of marihuana when they entered the house. The social worker, accompanied by the officer, proceeded to search the house after the social worker indicated to Noftall that she did not require a search warrant. Noftall showed the social worker and the police officer to the bedroom where the social worker saw six tubs in a closet in one of the bedrooms containing plants. Noftall was arrested for growing marihuana. Police then obtained a search warrant and seized the marihuana plants and related paraphernalia. The trial judge found that because the officer merely accompanied the social workers for their protection, the officer did not breach s. 8 of the Charter.  The NLCA disagreed.

The officer knew that the social workers were investigating a report that a child may be in need of protective intervention based on the presence of a marihuana grow-op and drug trafficking from the child’s home. Upon entering the house, the officer detected a smell, indicating to him the presence of growing marihuana. The trial judge accepted that this officer was competent, from his experience and training, to distinguish the smell of growing marihuana from that of dry or burnt marihuana.

According to the NLCA, when he smelled the marihuana, the officer had two separate mandates: that is, securing the safety of the social workers, and investigating a possible offence. He could not use the former to clothe the latter with authority that would otherwise result in a breach of Noftall’s rights under section 8 of the Charter. In order to avoid this conundrum, the officer could have taken the following approach, said the court. When he smelled the marihuana which he identified as “growing”, he could, as he did, have given this information to Noftall, the child’s mother, and the social workers. At that point, he could have proceeded in a manner that would have been consistent with both his mandates by asking all present to remain in the kitchen while he took action to obtain a search warrant. A warrant, which may be requested by telephone, would have provided authorization for a search under the Controlled Drugs and Substances Act consistent with Noftall’s rights under section 8 of the Charter (as a side note to junior officers reading this, although many ITOs have to be submitted in writing, 11(2) of the CDSA allows for an application via telephone – oral application).

The appeal court noted in passing that Noftall’s conduct could not be construed as informed consent to the search for purposes of grounding a charge under the Controlled Drugs and Substances Act. He showed a social worker and the officer to the location of the marihuana plants in reliance on the social worker’s representation that a search warrant was not required. The court also noted further that a request by the officer that Noftall remain in the kitchen with him would constitute an investigative detention, engaging the relevant law. It was unnecessary to consider the issue in this case since that was not the approach taken by the officer.

In the circumstances, the police officer’s failure to obtain a warrant prior to a search for the location of the marihuana plants resulted in a breach of Noftall’s rights under section 8 of the Charter for purposes of investigating an offence and laying a charge under the Controlled Drugs and Substances Act. The trial judge erred in concluding that the officer’s involvement in the social worker’s investigation under the Act allowed him to search Noftall’s residence and to lay a charge when he was led to the location of the plants which, together with the firearm, were then in plain view.

Despite the violation, following the Grant analysis, the evidence was admitted and the conviction held by the NLCA.

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