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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The importance of doing it right (lawful), because you just never know…….

R. v. Pearson 2017 ONCA 389 – on January 14, 2008, a male was killed after being shot in the back with a shotgun. Pearson later became a suspect in the killing (and another, but not the subject of this post), but prior to this, a day after the killing, while driving his Honda Civic in Peel Region, Pearson was observed by an officer. The Honda passed the officer’s unmarked police vehicle. The officer noted that the windows were tinted so darkly that he could not see any occupant in the vehicle. The Honda passed the officer and then drove to the right into the driving lane. The officer pulled into the passing lane of this multi-lane road and drove beside the Honda, but again could not see into the vehicle. The officer stopped the driver of the Honda after the driver had turned onto another street.

The officer approached the Honda, the driver lowered the window on the driver’s door and spoke with the officer. The first point of interest to the officer was the smell of marihuana coming from the inside of the Honda. The officer also noted that the driver’s eyes had a red color, that the driver was slow in his actions to provide his licence, insurance and ownership, was unusually calm for a person being stopped by the police, and was slow to get out of the vehicle when the officer asked him to do sobriety tests behind the vehicle. When Pearson did the sobriety tests, the officer noticed that he did not turn properly as instructed and that he had a tremor. He concluded that Pearson was impaired by the consumption of marihuana. Pearson had stated that he did not consume any alcoholic beverage that evening and that he had consumed marihuana.

Because the driver was arrested for operating a motor vehicle while his ability to do so was impaired by a drug, the officer told other officers to search the vehicle for drugs. While that search was conducted, another officer located two shotgun shells in the accused’s knapsack in the trunk of the Honda and delivered them to the arresting officer.  Later in the murder investigations when Pearson was a suspect, the investigators knew that Pearson had been found with shotgun shells close in time to the dates of the killings. The Centre of Forensic Sciences said the shotgun shells seized from Pearson were similar to those used in the killings.

As part of their case, defence argued that the shotgun shells found in Pearson’s car during the traffic stop on January 15, 2008, should have been excluded because the search of Pearson’s car was not incidental to his arrest for impaired driving. Defence conceded that the traffic stop of Pearson’s car was lawful, but argued on appeal that the search incident to arrest went too far. Searching the trunk, and the knapsack found in the trunk, for evidence helpful to the impaired driving offence was unreasonable, and the search should have been confined to the area close to the driver’s seat, argued defence.

Both the Ontario Superior Court of Justice (in its 2011 decision) and the ONCA here ruled that the arrest of Pearson for impaired driving was lawful. The search was undertaken to look for marihuana and by a police officer who was not involved at all in the homicide investigations. Citing R. v. Caslake [1998] 1 S.C.R. 51, in which the Supreme Court of Canada made the point at paragraphs 15 and 34 that automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles, the ONCA agreed that with Pearson, the vehicle search was not a fishing expedition. Rather, it was purposeful. That purpose was to locate evidence that would be helpful to the impaired driving offence. The impaired driving accusation was that the impairment was the result of using a drug. Discovery of marihuana in the trunk of Pearson’s car and in his knapsack would have some probative value on the issue of whether his ability to drive was impaired by marihuana. There was a reasonable basis for the officer’s actions and a reasonable prospect of finding evidence of the offence for which the accused had been arrested.

Since the search of the vehicle was lawful and incident to arrest, the seized shotgun shells were lawfully seized and later able to be used in the murder trials.  So, though at the time of the traffic stop on that day in January the officer had no idea what would become of his lawful seizure and how it would assist the Crown’s case, the officer was lawful in his actions and as a result, evidence obtained was admitted at trial for the killings.

I wish this to serve as a reminder to the new recruits of my continual statements throughout your training on one of my many reasons why we must do things lawfully, and not get into a habit of thinking it is okay to walk in that “grey area” of the law or violate an individual’s rights for the sake of getting drugs or weapons off the street, because as in the case here, you just never know….the shotgun shells later became a piece of the larger puzzle and a piece that was admitted at trial because the officer in question at the time did things right (lawful).

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Godoy extended beyond its limited scope when police entered a man’s home to do a “protective sweep” of the home because of “child protection concerns.”

R. v. Davidson 2017 ONCA 257 – to reiterate R. v. Godoy, [1999] 1. S.C.R. 311, the Supreme Court of Canada held that the police can enter a home without a warrant if we have reasonable grounds to believe it is necessary to do so to protect a person’s life or safety. In essence, police have authority to investigate the 911 call, and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required (Godoy, at para. 22). Our authority for being on private property in response to a 911 call ends there; we do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.

In Davidson, one June morning, a four year old boy, clad only in a diaper, was seen standing alone at a busy intersection in Barrie, Ontario. A passing motorist called 911. By the time the police arrived, the boy was safely in his mother’s arms, wrapped in a blanket. Davidson, the boy’s father, arrived soon after. He explained to the police that his son is autistic and has a tendency to wander away from the family home, which was 50 metres away. Davidson said he had installed a special lock high up on the door to the house but that his son had managed to open it and get out. The police insisted on examining the lock, and Davidson agreed they could do so. Although satisfied with the lock, the police then insisted on looking inside the house. They had no warrant but claimed they were entitled to look around the house to check on the boy’s well-being – to ensure he was safe and properly nourished. Three police officers entered the Davidson home. On first entering the house, the lead investigator smelled marihuana. He conducted a brief search of the upstairs of the house, checking the kitchen cupboards and the refrigerator for food. He then went down to the basement, where the smell of marihuana became overwhelming. The smell came from behind a closed and locked door. When the police asked for the key, Davidson kicked the door open, revealing numerous marihuana plants. He was arrested and charged with production of marihuana, possession of marihuana, and possession of marihuana for the purpose of trafficking.

At the beginning of the trial, Davidson brought an application to exclude the evidence of the marihuana because of numerous breaches of the Charter, namely: they failed to advise him of his right to counsel contrary to s. 10(b) of the Charter after they smelled the marihuana, even though by then Davidson was effectively detained; police again failed to advise him of his right to counsel before questioning him about the marihuana; police breached his right to be secure against unreasonable search, contrary to s. 8 of the Charter, by “discovering” the marihuana without a warrant. But the trial judge rejected Davidson’s main claim: that the police breached his s. 8 rights when they initially entered his home. The trial judge ruled that Godoy entitled the police to do a “protective sweep” of the house because of their “child protection concerns”. The trial judge then held that the evidence of the marihuana was admissible under s. 24(2) of the Charter. The Crown withdrew the possession of marihuana charge, and the trial judge convicted Davidson of production of marihuana and possession of marihuana for the purpose of trafficking and sentenced him to 18 months in custody.

One issue that the ONCA was tasked to decide was whether the trial judge misapplied Godoy. The s. 8 right to be secure against unreasonable searches protects a person’s expectation of privacy from state intrusion. Nowhere is that expectation of privacy higher than in one’s home. To enter a home, police ordinarily need previous authorization: a warrant. Warrantless entries of a home are presumed to be unreasonable and in breach of s. 8. But exceptions exist, both by statute (e.g under s. 529.3 of the Criminal Code) and at common law (e.g. duty to protect a person’s life or safety and that duty may, depending on the circumstances, justify a forced, warrantless entry into a home). But Godoy narrowly limits when the police can enter a person’s home without a warrant in response to a 911 call. The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, our authority is limited to ascertaining the reason for the call and providing any needed assistance. We do not have any further authority to search the home or intrude on a resident’s privacy or property.

Here, by the time the police arrived at the intersection, any emergency that had existed had ended since the boy was safely in his mother’s arms. In Godoy, the victim was inside the home; here the boy was outside the home, 50 metres away. By the time the police arrived at the intersection, no exigent circumstances existed. There was no reason to believe the life or safety of any person inside the Davidson home was at risk. They could see for themselves that the boy was safe and not in any immediate danger. Moreover, the police had ascertained the reason for the 911 call. The ONCA said Godoy does not give the police sweeping authority to enter a home without a warrant to investigate whether a child’s mother and father are good parents. In the present case, at most the police were entitled to inspect the lock, which they could do without going inside the home. Godoy did not support their warrantless entry and the trial judge erred in holding that it did.

Another issue was whether Davidson consented to the search. According to the ONCA, at most, the evidence showed Davidson acquiesced to the police’s inevitable intrusion into his home, but not that he consented.  First, an officer never told Davidson of his right to refuse the police’s entry into the home because the officer believed that Davidson did not have the right to do so. Second, during testimony, the officer acknowledged that Davidson did not expressly consent to the search of his home. And third, the officer agreed that his police force has a form they ask a homeowner to sign before doing a consent search of a home and that he never asked Davidson to sign this form. Overall, the ONCA ruled that the evidence showed that the police thought they had the right to enter Davidson’s home without his consent. The warrantless search of his home could not, therefore, be justified on the basis of his consent.

The Child and Family Services Act (the “CFSA”) also came into play, and although specific to Ontario, many provinces have similar legislation, so I believe it holds merit to discuss it in this post as a reference. Section 40(7) authorizes a child protection worker to enter a home without a warrant to bring a child to a place of safety, but only if two conditions are met: the child protection worker must believe on reasonable and probable grounds that – (1) the child is in need of protection; and (2) there would be a substantial risk to the child’s health or safety during the time needed to obtain a warrant or to bring the matter on for a hearing. Sections 40(11) and 40(7) provides that if necessary, the child protection worker can enter a home by force to search for and remove a child; Section 40(13) provides that a police officer has the same powers as does a child protection worker under those provisions. The ONCA ruled that even if Davidson’s son was in need of protection, as the trial judge seemed to suggest, the second condition required for a warrantless entry did not exist. There was no evidence of any risk, let alone a substantial risk, to the boy’s health or safety if the police had taken the time to try and obtain a warrant. Also, at trial, police conceded that no grounds existed to obtain a warrant, so the CFSA did not authorize the police’s warrantless entry into the Davidson home.

In the end, the ONCA allowed the appeal and set aside Davidson’s convictions. It excluded the evidence of the marihuana, so there was no longer any evidence against him to support the charges.

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Requesting the accused to provide the password for his cell phone seized upon arrest is a non-routine procedure requiring that Section 10(b) Charter rights be provided again to the accused.

R. v. Hiscock [2016] N.J. No. 447 – although a decision at the provincial court level, I think this case merits a post: a postal inspector had seized a suspicious package which he had reason to believe contained marihuana. Police went to the post office and seized the package which was addressed to the accused; the package contained 6 1/2 pounds of marihuana. The next day, police sought and obtained a General Warrant, allowing delivery of the package to the accused. The package was prepared for a controlled delivery and was returned to the post office. When the accused picked up the package at the post office, he was arrested.

The arrest was ruled lawful, after some debate. Prior to Hiscock being placed in the police vehicle, he was searched incident to arrest, at which time a cell phone was found and seized. The accused was given his rights and caution, and once back at the station, Hiscock spoke with counsel. Thereafter, an audio recorded statement was given by the accused because the video equipment was not working. The recording lasted for approximately 22 minutes and the equipment was turned off as the accused did not wish to provide any further information. The recording equipment was not turned on again during the interview. During this time, police left the room and returned with the cell phone that had been seized incident to arrest. Neither officer had searched the phone prior to this and the cell phone was password protected.

One officer testified that she asked Hiscock for the password for the phone and when doing so she advised him that if the password was not provided, the phone would have to be sent away for examination and may be returned in an unusable state. Hiscock was also advised that a warrant could be sought in any event. At the time that the discussions were taking place, including the provision of the password by Hiscock, no consent form was utilized; Hiscock was told that if he gave the password, his phone may be returned to him quicker and in a usable condition; there was some assurance by the officers that Hiscock’s level of cooperation could influence whether or not he got home that evening; and the portion of the interview, approximately 30 minutes, which was the lead up to and the actual provision of the password, was not recorded.

The Crown conceded in the case that it could not prove that the accused gave a valid consent for the search of his cell phone. It was contended, however, that proof beyond reasonable doubt was provided, establishing that the accused voluntarily provided the officers with the password for the cell phone. Provincial Court Judge Lois Skanes ruled it was not possible to examine the promises or inducements with any degree of exactitude because the discussions during most of the interview were not recorded, despite the fact that the audio recording equipment was available in the room where the accused ultimately gave up his password; this was clearly part of the interrogation of the accused. There was reason to accept that inducements were made and due to the failure of the officers to turn on the recording equipment, the extent of such inducements could not be determined. Given this, the Judge found that the Crown had not proven voluntariness beyond a reasonable doubt.

Judge Skanes cited R. v. Fearon, [2014] 3 S.C.R. 621 and applied it to the facts of this case.  She ruled that there was no evidence of any threat to public safety or to the loss of evidence requiring the prompt search of Hiscock’s phone and the search was not documented properly. Further to this, there was no evidence that the search, which was conducted after the audio recorded interview, was tailored to be restricted to “recently sent or drafted e-mails, texts, photos and the call log”. Indeed, there was no evidence presented in respect of the extent of the search of the phone. No notes were referenced detailing the portion of the cell phone data that was examined or how it was examined.

So far, it was not looking good for the prosecution. To reiterate, the Judge had concluded that the search of the cell phone which followed upon Hiscock providing the password was not incident to arrest (not per the Fearon standard). Additionally, she found that the provision of the password was not proven to have been voluntary and no valid consent for the search of the cell phone was given by Hiscock. Defence still had one argument left: that the officers ought to have re-read Hiscock his right to counsel when asking him for the password to his cell phone. The failure to do so was alleged to constitute a breach of the accused’s right to counsel under s. 10(b) of the Charter.

For the last argument, we turn to R. v. Sinclair, [2010] S.C.J. No. 35, in which the SCC ruled that for the purpose of providing guidance to investigating police officers, it was helpful to indicate situations in which it appears clear that a second consultation with counsel is so required (the categories are not closed of course): (1) new procedures involving the detainee; (2) change in jeopardy; (3) reason to question the detainee’s understanding of his/her Section 10(b) Charter rights.

Hiscock had contacted counsel after initially being offered the opportunity to do so. Having been advised by counsel not to provide information, there was continued discussion which ultimately led to Hiscock providing the password to his cell phone which facilitated the search of that phone. At para. 59:

Given the privacy issues inherent in the search of a cell phone, the decision to provide information to facilitate such a search, particularly if warrantless, is one for which an accused would require counsel in order to make an informed decision. This is particularly so if there is inculpatory evidence on the phone. The accused could not be compelled to provide the password in any event and much like participating in a line-up or submitting to a polygraph, it is not a routine procedure which would have been within the expectation of the advising lawyer at the time of the initial consultation.

In the end, Judge Skanes found that such a renewed right did arise and the police ought to have again provided the information that the right was available to Hiscock.  Finally, at para. 60:

If the search as conducted was effected under a valid warrant, then the situation in respect of the provision of the password may be different. In that case, the search itself would be lawful and would have been able to be carried out without the cooperation of the accused. Providing the password would then merely be protecting the cell phone as an asset, much like opening a door in the face of a warrant rather than having it broken down.

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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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