Arbitrary Detention and Pre-Arrest Use of Handcuffs

In the past 5 years, there have been a number of informative and unequivocal decisions that have specifically addressed the issue of handcuffing detainees during the course of a roadside investigation for the purpose of administering roadside screening tests. To cite a few of the more recent decisions, I have read: R. v. Orde, [2017] O.J. No. 6317 (Ont.C.J.), R. v. Romaniuk, [2017] O.J. No. 1735 (Ont.C.J.) and R. v. Mahipaul, [2018] O.J. No. 2688 (Ont.C.J.). I have also written posts on the issue in other contexts from other provinces prior to this one.

These cases have provided us with significant guidance and have repeatedly emphasized the unique consideration with this type of investigation that these motorists are being detained by police even though they are not suspected of committing a crime. Rather, the police need only suspect the person of having alcohol in their system while operating a motor vehicle which, in itself, is not a crime unless a person is impaired or has more than the legal limit in their system. As a result, courts are increasingly becoming very sensitive to the manner in which police interact with detainees during roadside breath testing. Most decisions have narrowly constrained the authority of the police to use handcuffs before a person has been arrested for drinking and driving.

For example, in R. v. Virk, [2018] O.J. No. 5651, at paras. 53 to 57 (Ont.C.J.):

Although a motorist subject to an approved screening device breath demand validly made (i.e. a demand prefaced on the required grounds) is subject to lawful detention, such a motorist is not under arrest. Therefore, unless a motorist’s conduct gives rise to objectively grounded safety concerns, for example, where the person’s behaviour causes a police officer to reasonably believe they pose a threat to the police, the public, or themselves, it is not reasonably necessary to use handcuffs. Without reasonable justification, restraining a motorist in handcuffs during roadside breath testing is unlawful.

Even though a motorist subject to a valid approved screening device breath demand is lawfully detained, the use of handcuffs escalates the incursion on that person’s liberty. Handcuffs represent a far more coercive form of state compulsion. If handcuffs are applied, they transform a detention that its inception takes the form of psychological restraint (with legal compulsion) into an encounter marked by physical restraint. If the police unjustifiably handcuff a motorist subject to an approved screening device demand, the result is an unlawful interference with that person’s liberty. In such circumstances, a detention that begins lawfully becomes unlawful.

The Supreme Court of Canada has made clear that a detention not authorized by law is arbitrary and violates section 9 of the Charter. Given this, courts in other cases have found that the unjustified handcuffing by police during efforts to obtain an approved screening device breath sample violates a motorist’s section 9 Charter not to be arbitrarily detained. If police also secure a breath sample while a motorist is unjustifiably handcuffed, these same cases also hold that the manner of the resulting seizure (or search), due to the unlawful use of handcuffs, is unreasonable and violates section 8 of the Charter.

Given my finding regarding the use of handcuffs, in light of the governing legal principles, I conclude that Mr. Virk’s right not to be arbitrarily detained, as guaranteed by section 9 of the Charter, was violated.

The latest decision out of Ontario, R. v. Horvath, [2020] O.J. No. 4297, again addressed this issue. In Horvath, he was operating a Mazda mini-van, travelling eastbound and attempted to change lanes, from the passing lane to the curb lane, and in doing so sideswiped another car being driven by Ms. Vieira. Mr. Horvath passed Ms. Vieira’s automobile, then turned. Ms. Vieira followed Mr. Horvath for some distance before coming to a stop behind him at a dead end, where Mr. Horvath twice reversed his vehicle into the front bumper of Ms. Viera’s automobile. Mr. Horvath exited his vehicle and was in roadway with Ms. Viera and her husband, when two officers arrived on scene some 30-minutes later.

Ms. Vieira explained the situation to one officer, while the other officer engaged Mr. Horvath, taking physical control over him and directing him to place his hands on the hood of the scout car. Communication proved difficult as Mr. Horvath is a native of Hungary with little facility with the English language. Some two minutes after arriving at the scene, the officer informed Mr. Horvath that he was under “investigative detention” until police could find out what was going on. Four minutes later, Mr. Horvath was placed on the telephone with a Hungarian speaking officer and, in response to questions, admitted that he had been driving and had consumed alcohol. That officer did not inform Mr. Horvath that he was subject to investigative detention or advise him of his rights to counsel. An officer on scene contacted dispatch and requested that a screening device be delivered to the location.

An officer cuffed Mr. Horvath’s hands behind his back and placed him in the rear of the scout car, telling him it “makes it easier like this.” In examination in chief, the officer was confident in his legal authority to handcuff someone who is subject to investigative detention. He explained that a detainee can be handcuffed where “it it is better to control the situation, or not, depending on how I feel.” In response to questions, the officer indicated that this power is recognized by police rules and procedures and was something that he received instruction on while attending police college.

Leaving aside the constitutionality of 10(a) and (b) of the Charter in this case as it is not the focus of my post, although the judge appreciated that police were faced with a confusing situation, the court found there was no basis to detain Mr. Horvath almost immediately upon arriving on scene. Police had limited information as to the reason for the call. It is reasonable to conclude that at the time of Mr. Horvath’s initial detention, officers were uncertain if a crime had been committed or if Mr. Horvath was involved. Moreover, Mr. Horvath never presented as a safety or flight risk. The judge found that Mr. Horvath was initially detained for convenience, as the officer was uncomfortable in dealing with someone with whom he could not communicate.

As for the use of handcuffs, the scout car recording demonstrated that at the time the handcuffs were applied, police were investigating Mr. Horvath for impaired driving and had requested that a screening device be brought to the scene. Again, it was apparent to the judge that the use of handcuffs and confinement of Mr. Horvath in the rear of the scout car was for reasons of convenience. As stated by one of the officer’s as he handcuffed Mr. Horvath, “Makes it easier like this sir.” The judge asked rhetorically — easier for whom?

The judge ruled that the use of handcuffs in these circumstances, for purposes of convenience, was clearly unnecessary and therefore unconstitutional.

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The Mandatory Approved Screening (MAS) Demand in s. 320.27(2) of the Criminal Code is Constitutional

Although R. v. Morrison 2020 SKPC 28 is a Provincial Court decision, it raises and discusses some relevant issues and debate.

Shortly after midnight in January, 2019, officers stopped a vehicle operated by Mr. Morrison on the outskirts of the City of Martensville. Officers observed the vehicle for some ten minutes before effecting the stop and did not observe anything unusual or suspicious about Mr. Morrison’s driving.  On the voir dire, when asked why the traffic stop was conducted, one officer replied: the traffic stop was being conducted to check for driver’s licence, registration, driver fitness, vehicle fitness.  Subsequently, a mandatory approved screening device demand was read and a sample taken from Morrison, who registered a “fail”.  Morrison was arrested for impaired operation and later charged with two counts: 320.14(1)(a) and 320.14(1)(b) of the Criminal Code.

As you would suspect, one of the issues the judge was asked to consider was whether the mandatory alcohol screening as permitted by s. 320.27(2) of the Criminal Code violates a person’s right under ss. 8 and 9 of the Charter, and, if so, is MAS saved by s. 1 of the Charter?  For the benefit of new recruits/officers, to reiterate:

Section 320.27(2) of the Criminal Code reads as follows:

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

Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search and seizure.

Section 9 of the Charter states:

Everyone has the right not to be arbitrarily detained or imprisoned.

Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The officer who initiated the stop did not observe any unusual driving by Mr. Morrison.  There were no traffic violations; the vehicle looked sound mechanically and there was no information from any source that the driver may have consumed alcohol or be impaired.  As the police officer testified, he believed he had the authority to stop Mr. Morrison pursuant to s. 209.1(1) of the STSA to check for driver’s licence, registration, vehicle fitness and driver sobriety.  I won’t get into that here, but similar legislation exists in other provincial legislation (e.g.  Section 83(1) of the MVA – Nova Scotia; Section 15(1)(d) of the MVA – New Brunswick; Section 253 of the Highway Traffic Act – Prince Edward Island). What is relevant across all jurisdictions is that police also possess the power to randomly stop vehicles to check for driver’s licence, insurance and driver sobriety, at common law. During the last thirty-five years, superior courts, including the Supreme Court of Canada, have periodically addressed this issue (i.e. R. v. Dedman, [1985] 2 SCR 2; R. v. Ladouceur, [1990] 1 SCR 1257;  R. v. Wilson, [1990] 1 SCR 1291, 107 AR 321; R. v. Hufsky, [1988] 1 SCR 621; R. v. Orbanski [2005] 2 SCR 3; R. v. Mellenthin, [1992] 3 SCR 615).  I think you get my point.  Very recently, the Alberta Court of Queen’s Bench, dealt with a motorist’s rights under s. 9 of the Charter, when the motorist was randomly stopped by a police officer who demanded that he provide a breath sample pursuant to the new s. 320.27(2) of the Criminal Code – R. v. Labillois, 2020 ABQB 200. The Provincial Court Judge in that case did not find a s. 9 Charter breach.

Essentially, what the SCC ruled in 1990 in the Ladouceur decision, and since then has on numerous occasions reaffirmed its earlier stated position, is that officers can stop persons only for legal reasons — in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle –, but once stopped the only questions that may justifiably be asked are those related to driving offences.

Considering this, the judge in Morrison found that Mr. Morrison’s s. 9 Charter rights were not breached.  Moving on, the next issue was were Mr. Morrison’s s. 8 Charter rights violated? Mandatory Alcohol Screening is explicitly authorized by s. 320.27(2) of the Criminal Code. The related traffic stop is an existing police power emanating from common law and statute, as I mentioned. Section 320.27(2) differs from its predecessor in two ways: first, it has the requirement of immediacy, whereas the previous provision, as it related to screening demands used the word “forthwith”. Courts generally interpreted “forthwith” to mean “immediately or without delay”. Whether Parliament’s attempt to provide clarity on this point is successful remains to be seen, as the word “immediately” may be scrutinized as much as “forthwith” was. Secondly, s. 320.27(2) requires that an ASD be in the possession of the officer(s) at the time they make the demand. This does represent a change in that it means that police can no longer detain a person until an ASD becomes available or is brought from another location. There is an increased sense of urgency as it relates to timing. The test may take place either in the driver’s vehicle or in the patrol car (I’ve made other posts regarding searches of the driver in this context). It seems the police officer administering the test has the discretion to determine where the test will be administered.

What the judge decided, essentially, was circumstances in which an accused is being asked to incriminate himself, such as providing a breath sample, where there are no apparent or any grounds present, and in the absence of any suspicion as it relates to his demeanour, or driving ability, or alcohol consumption and which is grounded entirely in legislative fiat, ought to be subject to constitutional protection enshrined in our Charter of Rights and Freedoms. Accordingly, the judge found that s. 320.27(2) of the Criminal Code does infringe on s. 8 of the Charter. But that did not end the debate there: the issue then becomes whether s. 320.27(2) of the Criminal Code is saved by s. 1 as a reasonable limit that is demonstrably justified in a free and democratic society? (a.k.a. the Oakes Test, named after the R. v. Oakes [1986] 1 SCR 103 decision). The test focuses on two main considerations: 1) the legislative objective must be sufficiently important to warrant restricting or overriding the Charter right; and 2) the means employed to achieve the legislative objective must be proportional to the objective.

The jurisprudence on roadside screening, while recognizing that it often violated the driver’s section 8, 9 and 10(b) Charter rights has for the most part upheld these violations as a reasonable limit under s. 1 of the Charter. The underlying rationale, it seems, was the recognition that impaired drivers are a scourge and danger to society and any reasonable restriction or limit on their freedoms was justified on the basis that it benefited the greater society. Consequently, even though the judge in Morrison found that s. 320.27(2) infringes s. 8 of the Charter, the violation is saved by s. 1. The salutary effects of the challenged legislation may become more apparent with the passage of time.

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An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament)

Bill C-75 came into force, or will come into force, on three different dates: July 21st, 2019, September 19th, 2019, and December 18th, 2019. In December, the latest “coming into force” will become law and this part of the Bill contains some changes for police procedures and authorities.  Others will indirectly affect law enforcement. For example, as a result of amendments to the Criminal Code in force as of September 19th, 2019, the procedure known as a ”preliminary inquiry” with respect to indictable offences, will only take place if the accused is charged with an indictable offence that is punishable by 14 years or more of imprisonment, and has requested such an inquiry (s. 535 CC). But the next amendments will directly affect the way law enforcement does business, and not surprisingly, many officers have not been fully made aware by agencies and organizations.  Probably the biggest of those changes come in the way of release for police, but before I can into that, let’s discuss something else.

In addition to the peace officers’ general powers of arrest without warrant under s. 495(1) of the Criminal Code, on December 18th, there is a further power of arrest under s. 495.1 of the Code (those versed in law may recognize it as closely resembling the old 524(2) of the Code. This new provision allows the peace officer to arrest without a warrant a person for the contravention or reasonably apprehended contravention of any one of the following peace officer issued documents – summons, appearance notice, undertaking – and a justice/judge issued release order. In addition, a peace officer may arrest without warrant a person who has committed an indictable (or dual procedure) offence after any one of the above-mentioned documents have been issued. This section does not create an offence but does create an arrest authority independent of s. 495(1) of the Criminal Code.  A person who is arrested under this section must be taken before a justice, for a hearing, who will decide whether the accused has contravened or is about to contravene the specified form of release, or whether there are reasonable grounds to believe the person committed an indictable offence while on release. If a justice so finds, the person’s release on the initial charge shall be cancelled and the person shall be detained in custody on the original charge for which the person was released unless the person can show cause why their detention in custody is not justified. This is a reverse onus provision, opposite the initial detention burden, which is on the Crown to show cause why the person should be detained.

Administration of justice offences (AOJOs) are offences committed against the integrity of the criminal justice system. The most common AOJOs include failing to comply with bail conditions (i.e., disobeying a curfew, drinking alcohol), failing to appear in court, and breaches of probation (e.g., failing to report to a probation officer).  When the failure has not caused harm to a victim, including physical, psychological or financial harm (e.g., property damage or economic loss), the police (and Crown Attorneys) could direct AOJOs to a judicial referral hearing as an alternative to charging the accused with an AOJO.  At the judicial referral hearing, the judge or justice will review any existing conditions of release and could decide to take no action, release the accused on new conditions, or detain the accused, depending on the particular circumstances of the accused (e.g., mental health issues, existence of neurocognitive disorders such as FASD, addictions, homelessness) and of the offence. Under s. 496 CC, an appearance notice can be issued to the offender to appear at the hearing. This new procedure does not impact current police powers relating to deciding whether or not to lay charges.  It instead enhances police (and prosecutorial) discretion by allowing us to compel an accused to appear at a judicial referral hearing as an alternative to laying charges, when it is considered appropriate under the circumstances and when it is believed that the alleged breach should still be brought to the attention of a judge or justice. It provides another tool for police, prosecutors, and courts to deal more effectively with these AOJOs (i.e., failures to comply with conditions of release, and failures to appear in court or as required) that do not involve harm to victims (including physical, emotional and financial harm).

Since a judicial referral hearing involves the review of the conditions imposed after an accused was charged with an earlier offence, as opposed to considering the guilt or innocence of the accused in relation to an alleged AOJO, the AOJO itself does not appear on a criminal record following such a hearing.  No finding of guilt or innocence is made at the judicial referral hearing and any charges that may have been laid regarding that specific AOJO are dismissed by the judge or the justice once a decision is made with respect to the release status of the accused.  In the case where no charges have been laid against the person and (s)he fails to appear at a judicial referral hearing under section 523.‍1 CC, as required in the appearance notice, charges may be laid against the person for the alleged offence.  An important thing to note is that if the person does not attend their judicial referral hearing, they are not be charged with the offence of failure to appear for the hearing, but instead may be charged for the breach that was to be addressed through the judicial hearing in the first place.  In the alternative, the officer also has the choice of dropping the matter or offering the accused another hearing.

I will caution you that s. 496 CC in its wording is silent on whether an arrest can or cannot be effected in such a case, so until our courts interpret this wording, we can only presume that the appearance notice could be issued for the judicial referral hearing without or following an arrest for the violation of the administration of justice offence where no harm has been caused to the victim.  Since offences against the administration of justice are criminal offences, it stands to reason that an arrest is authorized under our general arrest provision in any regard, and all s. 496 attempts to do is to provide us with another avenue and discretion to allow us to compel an accused to appear at a judicial referral hearing as an alternative to laying charges and not to override our decision to lay charges, whether an arrest has occurred or not.

Okay, now on to the biggest change that will affect our work.  Come December 18th, say goodbye to promise to appear, recognizance (both officer and judge issued), and undertaking documents as we now know them.  Police release options will now be two only: via an appearance notice, or with the issuance of an undertaking (summons still available, but technically person is not ‘released’ on a summons since they are either released unconditionally with intention to be served later to appear in court, or served without an arrest having been effected) .  A judge’s will be via a release order – no longer undertakings or recognizances (peace bond recognizances are not affected).  With that, the charge sections are also affected: violation of appearance notice or summons, 145(3) CC, and violation of undertaking is 145(4) CC.  Violation of the judge’s release order conditions will be 145(5) CC and failure to appear in court is 145(2) CC.

Think of the new Undertaking as a combination of the old PTA, Recog, and Undertaking.  Let me explain: under the old system, we could place conditions or ‘promises’ upon the person as part of release to address the P.R.I.C.E. concerns we had, but a PTA or Recog had to be issued as well because the Undertaking did not compel them to court or ICA processes.  Further, a Recog could be issued where we had court attendance issues, or person resided in a province outside the province of arrest, etc. because it allowed us the either request a deposit (up to and including $500) or have them acknowledge they would owe Her Majesty the Queen that amount should they not show up for court. These latest changes are intended to streamline our release provisions and streamline the process by increasing the types of conditions police can impose on accused, so as to divert unnecessary matters from the courts and reduce the need for a bail hearing when one is not warranted.  So, the new Undertaking compels the person to court and ICA processes, lists conditions/promises that we can require of the arrestee, and it also allows the officer to require the arrested person to either enter into an acknowledgement (i.e. deposit is not taken from the person at time of release), in order to secure release, that they owe Her Majesty the Queen an amount of money not exceeding $500 if the person fails to attend court as required, fails to appear later for photographing and fingerprinting under the Identification of Criminals Act, if required, or if they fail to comply with any condition of the undertaking (i.e., s. 501(3)(i) CC), or deposit a sum of money (not to exceed $500) with the officer before release (only authorized for a non-resident of the province of the arresting agency, or for those residing more than 200 kilometres of the place of custody).

Some other changes:

  • Any peace officer has the discretion to release a person arrested on an endorsed warrant (i.e. 507(6) CC endorsement) – now longer sole discretion of officer-in-charge, and where release is favoured, the person can be issued an appearance notice or undertaking.
  • Of note, Bill C-75 legislated a “principle of restraint” for police and courts to ensure that release at the earliest opportunity is favoured over detention, that bail conditions are reasonable and relevant to the offence and necessary to ensure public safety, that sureties are imposed only when less onerous forms of release are inadequate, and requires that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions.
  • Bill C-75 also provides that certain warrants and orders no longer require an out-of-province-endorsement to be executed.  So, warrants such as wiretap authorizations, search warrants, general warrants, DNA, tracking, CDSA, and others can be executed anywhere in Canada.  However, the officer executing the warrant must be empowered to act (i.e. is a peace officer in the executing province) in the province where the warrant is executed.
  • The Bill has hybridized a lot of offences and has increased the default penalty for summary conviction offences from 6 months, $5000, or both, to two years less a day, $5000, or both.
  • The statute of limitations for summary conviction offences has also been increased from 6 months to 12 months.
  • The Identification of Criminals Act now includes an amendment to paragraph 2(1)(a) of the ICA to allow for fingerprints to be taken for hybrid offences, regardless of whether the Crown proceeds by indictment or summarily.

That’s the changes in a nutshell.  I may have missed some, and I’m still trying to get my head wrapped around these changes myself in preparation for the police recruits in January, 2020, and updating all my training material.  No one has explained the changes to me unfortunetly, so I have done my best to get this out to you and explain it to you as I’ve interpreted the changes, so please take some steps to ensure my interpretation is correct before you act. The new release forms should be made available to you soon (hopefully before December 18 in any regard).  I have a copy of the ones for Nova Scotia as we speak, but not for the other provinces yet.

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Does the common law permit police officers to arrest individuals who have not committed any offence, who are not about to commit any offence, who have not already breached the peace and who are not about to breach the peace themselves?

The short answer is no.  Police can’t arrest someone who isn’t breaking the law to prevent others from breaching the peace, the Supreme Court has ruled. The Supreme Court, in Fleming v. Ontario 2019 SCC 45, unanimously said the officers didn’t have the power to arrest Mr. Fleming. This decision is somewhat timely with the recent arrest of dozens of protesters in Halifax and Toronto, and fist fights reportedly breaking out in Edmonton, as climate change activists blockaded several major commuter bridges in Canadian cities: https://www.cbc.ca/news/canada/nova-scotia/macdonald-bridge-halifax-climate-change-1.5310569

Mr. Fleming was on his way to join a protest in Caledonia, Ontario in 2009. The protest was against the occupation of a piece of land by a First Nations group. The police became aware of the flag rally in the months preceding it and had developed an operational plan, given the contentious atmosphere in the community which had on numerous occasions culminated in violent clashes between the two sides. The plan included keeping protestors and counter‑protestors apart, and flag rally counter‑protestors were informed that they were not allowed on the occupied property. Mr. Fleming was carrying a Canadian flag on a wooden pole and walking down a street beside the occupied land.

Police officers saw him as they drove by. The officers turned their vehicles around and sped toward him. Mr. Fleming got off the road and crossed a low fence. He said he did this to get away from the speeding vehicles and onto level ground. The officers were yelling. Mr. Fleming said he didn’t think they were yelling at him because he hadn’t done anything wrong.

The people occupying the land came toward him. When they were about ten or twenty feet away, the police told Mr. Fleming he was under arrest. They ordered him to drop his flag. He refused. He was forced to the ground, handcuffed, placed in a transport unit van, moved to a jail cell and released two and a half hours later. He was charged with obstructing a police officer. He went to court a dozen times to fight the charge, which was later dropped. Fleming said police injured his arm.

In 2011, Mr. Fleming sued the Province of Ontario and the officers involved in his arrest. He said the officers acted wrongfully. He said they assaulted and battered him, wrongfully arrested him, and falsely imprisoned him. He also said they violated several of his rights under the Canadian Charter of Rights and Freedoms. Fleming was successful at trial, but a majority of the Court of Appeal set aside the award of damages on the basis that the police had the authority at common law to arrest him. The Court of Appeal ordered a new trial solely on the issue of excessive force. Fleming appealed to the SCC on the issue of whether the police acted lawfully in arresting him, and on whether a new trial should have been ordered on the question of excessive force.

The appeal centered around the purported police power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others. It targeted individuals who are not suspected of being about to break any law or to initiate any violence themselves, in situations in which the police nonetheless believe that arresting the individuals in question will prevent a breach of the peace from occurring. To reiterate, the arrest of Fleming did not concern a power to arrest a person for the purpose of preventing that person from breaching the peace, but instead arresting him for lawful conduct which may provoke others to breach the peace.

At common law, arguably, authority exists that a police officer is entitled to make a lawful arrest of someone “who it is anticipated may shortly engage” in a breach of the peace (see, for example, R. v. Khatchadorian (1998) 127 C.C.C. (3d) 565 (B.C.C.A.), R. v. Lefebvre (1984) 15 C.C.C. (3d) 503 (B.C.C.A.), Hayes v. Thompson (1985) 18 C.C.C. (3d) 254 (B.C.C.A.), R. v. Faulkner (1988) 9 M.V.R. (2d) 137 (B.C.C.A.), Brown v. Durham (Regional Municipality) Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.) appeal to S.C.C. granted [1999] S.C.C.A. No. 87), or if a breach of the peace is reasonably expected to occur. This authority is like the warrantless power of arrest under s. 495(1)(a) of the Criminal Code for a person “about to commit an indictable offence”. The arrest for an apprehended breach of the peace is exercised in circumstances where the officer has reasonable grounds for believing the anticipated conduct, which would amount to a breach of the peace, will likely occur if the person is not arrested.  Unlike section 31 of the Code, which requires the existence of an actual breach of the peace before the police may arrest, police officers need not be concerned themselves with what has occurred, but with what is reasonably expected to occur. There are two requirements that the police officer must consider when exercising this power: the apprehended breach must be imminent. The possibility that a breach will occur at some unknown point in time will not be sufficient. The breach must be impending and likely to occur in the immediate future; and, the apprehended breach must be substantial. The possibility of an unspecified breach will also be insufficient. The likelihood of a particularized and identifiable breach must be real and reasonably apprehended. There must be articulable indications that the conduct that forms the nature of the breach will occur (see, for example, the cases of Brown v. Durham (Regional Municipality) Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.) appeal to S.C.C. granted [1999] S.C.C.A. No. 87 and Lynch v. Canada (R.C.M.P.) 2000 BCSC53).  But, again, in this case, the arrest of Fleming did not concern a power to arrest a person for the purpose of preventing that person from breaching the peace, but instead arresting him for lawful conduct which may provoke others to breach the peace.

The SCC ruled that the police can’t arrest someone acting lawfully just because they think it will stop others from breaching the peace. Police already have other powers to deal with these situations under the Criminal Code. Since police had these less drastic options, arresting Mr. Fleming wasn’t really necessary. The Court noted that preserving the peace, preventing crime, and protecting life and property are the main duties of police officers under the common law. Police have the power to take actions to support these duties, even if these actions aren’t specifically set out in the Criminal Code. Preventing breaches of the peace is obviously related to preserving the peace, preventing crime, and protecting life and property. But the Court said it wasn’t reasonably necessary to arrest someone to prevent a breach of the peace, if that person hadn’t done (and wasn’t about to do) anything wrong.

Police are allowed to use as much force as reasonably necessary to carry out their duties. But in this case, they weren’t allowed to arrest Mr. Fleming, so no amount of force was justified. The Court allowed the appeal, set aside the order of the Ontario Court of Appeal and restored the trial judge’s order. Costs were awarded throughout: costs in this Court and the agreed-upon trial and appeal costs of $151,000 and $48,000 respectively.

Of note, in obiter of this decision, Justice Côté for an unanimous court said while it is not necessary to decide whether “a police officer may also arrest or detain a person who is about to commit a breach of the peace” in this case at common law, she seriously questions whether a common law power of this nature would still be necessary in Canada today. The Criminal Code provides explicitly for a number of warrantless arrest powers that obviate the need for such a common law power (e.g. ss. 31(1) and 495(1)(a) CC). Thus, police officers already have extensive powers to arrest, without a warrant, a person they reasonably believe is about to commit an act which would amount to a breach of the peace. She therefore had difficulty seeing any need for the courts to fill a legislative gap by recognizing a common law power of arrest for the purpose of preventing individuals from committing breaches of the peace themselves, and she made no comment about other possible powers short of arrest in such circumstances.

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Can there be any issue that police seeking to obtain information from and about an individual is a “search”?

The Supreme Court of Canada decision in R. v. Le [2019] S.C.J. No. 34 is being lauded as a victory for civil rights and the restraint of police powers regarding informal questioning of civilians, but for reasons I will discuss at the end of this post, it doesn’t appear to be the victory it’s being made out to be.  Or, if so, not for the reasons perceived.

As background, one evening at approximately 10:40 p.m. in May, three police officers noticed four Black men and one Asian man in the backyard of a townhouse at a Toronto housing co-operative. The police were looking for a third party who was wanted by the police for some violent crimes and who, they were told, frequented the area and may have been hanging out in this area of the townhouse complex.  The young men appeared to be doing nothing wrong. They were just talking. The backyard was small and was enclosed by a waist-high fence. Without a warrant, or consent, or any warning to the young men, two officers entered the backyard and immediately questioned the young men about “what was going on, who they were, and whether any of them lived there”. They also required the young men to produce documentary proof of their identities. Meanwhile, the third officer patrolled the perimeter of the property, stepped over the fence and yelled at one young man to keep his hands where the officer could see them. Another officer issued the same command. The officer questioning the male, Tom Le, demanded that he produce identification. Mr. Le responded that he did not have any with him. The officer then asked him what was in the satchel he was carrying. At that point, Mr. Le fled, was pursued and arrested, and found to be in possession of a firearm, drugs, and cash. He was charged with 10 offences, which consisted of seven weapons offences, two drug offences in relation to the 13 grams of crack cocaine, and one charge for possession of crime proceeds.

The trial focused primarily on the police entering the backyard and making inquiries, and the detention of the accused and subsequent search. The trial judge found that the officers attended at the backyard for valid and proper investigative purposes. They were lawfully entitled, pursuant to the implied licence doctrine, to enter this backyard through an open gateway in order to speak to any potential occupier of the townhouse. They were never asked to leave. When Le tried to conceal his bag, the police had reasonable grounds to believe that he was armed and dangerous. Le was effectively detained when he was asked about the contents of the bag. The trial judge found that this detention was not arbitrary because the police had reasonable grounds to believe that he was armed and as such, he was not subjected to any unreasonable search or seizure.

Le appealed to the Court of Appeal for Ontario. Writing for the majority, Doherty J.A. dismissed the appeal and held that the trial judge did not commit any errors in the ss. 9 and 24(2) Charter analyses.

The SCC took a different approach. Some believe that the case was clearly focused on police verbal interaction with civilians, “questioning”, but the case was decided contextually as a s. 9 ‘detention’ case, with only s. 8’s territorial privacy aspect receiving a passing mention in the SCC’s 3:2 decision. The highest court found that the police entered the property as trespassers and that the trial judge and the majority of the Court of Appeal for Ontario erred by concluding that the detention crystallized only when Le was asked what was in his satchel. Rather, the SCC found that he was detained when the police entered the backyard and made contact. Because no statutory or common law power authorized his detention at that point, it constituted an arbitrary detention. No statute authorized these police officers to detain anyone in the backyard. Similarly, the common law power to detain for investigative purposes could not be invoked. Le’s detention was arbitrary because, at the time of detention (when the police entered the backyard), the police had no reasonable suspicion of recent or ongoing criminal activity. Since the detention in this case was not authorized by law, the SCC felt there was no need to analyze whether that law was arbitrary or whether the detention was carried out in a reasonable manner. The court did, however, find that this was serious police misconduct. The court ruled that there simply were no grounds, let alone reasonable grounds, to suspect any criminal wrongdoing was committed or being committed by the young men in the backyard. The discovery of the evidence was only possible because of the serious s. 9 breach in this case. The convictions were set aside and acquittals entered.

Now, why do I say that this case doesn’t appear to be a major victory for civil rights? Well, the SCC could have examined this case in a different light, but it chose not to. Police questioning of citizens to elicit information, explanations and intentions was not considered at all in the context of s. 8’s informational privacy protection. Alan D. Gold and Michael Lacy posit that Le demonstrates problems that are arising because Courts are not dealing with the constitutionality of police questioning directly by recognizing that informational questioning is a search under s.8 of the Charter to which the usual s. 8 standards and principles are applicable. Instead, the constitutionality of police questioning is being evaluated by means of the surrogate issue of “detention”, a far from simple concept that leads to honestly held reasonable opinions that are diametrically opposed and dramatically expressed, such as the majority and minority opinions in Le.

They also suggest that Le highlights the Charter issues engaged by police interacting with and addressing a civilian. A police officer’s speech to a civilian can fall in one or more categories, according to the pair. It can be a command to “not move”, “halt”, “put hands up”, “keep hands where they can be seen”, amongst other possibilities. It can be a social conversation, such as asking for the nearest Tim Horton’s. Most importantly, the officer can be asking for information for an investigative purpose such as requesting a name, address, “what’s in the bag?”, “what are you doing here?” and similar inquiries. They believe that a police officer asking for self-identification or its equivalent physical counterpart of document production, asking for explanations regarding presence and future intentions, however politely is certainly ‘not leaving the civilian alone’ and certainly transgressing the normative social understanding of most persons that they would rather not be asked such questions by a police officer.

The Supreme Court of Canada has previously recognized police questioning can constitute a search and seizure for the purpose of s. 8 of the Charter (R. v. Mellenthin [1992] 3 S.C.R 615, [1992] SCJ No 100). Other courts have found that answers to police questions may or may not give rise to a s. 8 claim (R. v. Harris, 87 O.R. 3d 214). In addition, in R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32, the Supreme Court of Canada had the opportunity to consider whether an interaction between the police and a citizen which included questioning could amount to a search and seizure, but ultimately did not do so. Fast forward to the Le decision, where the opportunity again presented itself for such an examination and recognition of informational privacy issues, and again the opportunity was missed.  Hopefully as officers we will see some clear guidance in this area in a future case…

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Vehicle Stops – Law and Analysis

This post is not conclusive but meant to provide some guidance to officers conducting vehicle stops.

A motorist in Canada is legally obligated to stop their vehicle when directed to do so by a police officer: see, for example, Highway Traffic Act s. 253(2) PE; Motor Vehicle Act s. 83(1) NS; Motor Vehicle Act s. 105 NB,  Highway Traffic Act s. 201.1(1) NL; Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 216(1)-(2), etc.

A driver has no choice but to comply with such a direction. When a motorist does so, they are “detained” from a Charter standpoint: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 30; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31; R. v. Hufsky, [1988] 1 S.C.R. 621, at pp. 631-632; R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-644, but that detention is justifiable under s. 1 of the Charter provided that the stopping of the motorist is for reasons related to traffic safety, this includes things, “such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”: R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1287. See also, Hufsky. It also includes the authority to detain a motorist whom a police officer observes or reasonably suspects of committing an offence: R. v. Wilson, [1990] 1 S.C.R. 1291, at p. 1297 (a.k.a. articulable cause).

The Supreme Court of Canada has held that a police officer who lawfully detains a motorist for traffic safety reasons may also harbour ulterior criminal investigative purposes for the detention. Provided that traffic safety remains a motivation for the detention, the fact that the officer is also interested in discovering evidence of another offence does not in itself invalidate the detention. That said, in such cases, a police officer must be careful not to exceed the limits of his or her traffic-safety powers. If they do so, they violate the Charter: see R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 4, 23, 32-41.

A police officer’s authority, “must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised.” R. v. Stevenson, 2014 ONCA 842, at para. 56, leave to appeal refused [2015] S.C.C.A. No. 37.

A police officer is empowered to briefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a recently committed or still-unfolding criminal offence and the detention is reasonably necessary in all of the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. The power to detain is not confined to crimes known to the police but includes crimes that are reasonably suspected: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35; R. v. Nesbeth, 2008 ONCA 579, at para. 18, leave to appeal refused [2009] S.C.C.A. No. 10.

Section 10(a) of the Charter guarantees everyone the right “on arrest or detention” to be “informed promptly of the reasons therefor”. This constitutional right imposes an informational duty on police that they can discharge with relative ease. It merely requires a police officer on detaining a person to tell them in “clear and simple language” the reason(s) why: Mann, at para. 21; R. v. Evans, [1991] 1 S.C.R. 869, at p. 888.

This obligation applies whether a police officer is detaining a pedestrian or a motorist: Orbanski & Elias, at para. 31. Compliance with s. 10(a) assumes added significance when police detain a motorist because the right to counsel does not apply during motor vehicle stops motivated by traffic safety concerns: Orbanski & Elias, at para. 60. As a result, a detained motorist is often, “wholly reliant on the police to provide him with the information he requires to be able to make informed choices.”: R. v. Mueller, 2018 ONSC 2734, at para. 29. Given this, the obligation on police to inform a motorist of the reason for their detention is especially important during traffic safety stops.

In terms of when the person detained must be told of the reason(s) for their detention, the text of s. 10(a) instructs that this take place “promptly.” The case law makes clear that this means immediately: R. v. Nguyen, 2008 ONCA 49, at paras. 16-22. The only justification for delay is where the police must first gain control over a detainee whose actions are creating a dangerous situation: R. v. Boliver, 2014 NSCA 99, at paras. 15-20.

Driving is a licensed activity that is subject to regulation and control in the interests of public safety. The Supreme Court of Canada has upheld a variety of police powers meant to combat the threat posed by impaired, unlicensed and uninsured drivers, as reasonable limits on the constitutional rights of motorists under s. 1 of the CharterOrbanski & Elias, at paras. 54-60; Hufsky, at pp. 636-637; Ladouceur, at pp. 1279-1288; R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 653-656.

Nevertheless, a person who is lawfully entitled to operate a motor vehicle has a reasonable expectation of privacy in their vehicle, albeit of a diminished nature as compared to a dwelling or a private office. Given this, under s. 8 of the Charter, they enjoy the right to be secure against unreasonable search or seizure in their vehicle: see R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19; R. v. Grant, [1993] 3 S.C.R. 223, at p. 242; R. v. Mooiman and Zahar, 2016 SKCA 43, at para. 39. In assessing what is constitutionality permissible during the detention of a motorist, much depends on a police officer’s purpose and actions.

If traffic safety is amongst a police officer’s purposes for detaining a motorist, the officer can take a variety of steps without engaging the driver’s s. 8 Charter right. For example, a police officer may visually inspect the passenger compartment of the vehicle, including with the aid of a flashlight, require the driver to produce their license, car registration and proof of insurance, and also inspect the vehicle to assess its mechanical fitness. Such measures do not encroach upon a motorist’s reasonable expectation of privacy during a lawful traffic stop: Hufsky, at p. 638; Belnavis, at para. 28; R. v. Mellenthin, [1992] 3 S.C.R. 615 at pp. 623-625. These steps do not engage s. 8 even when a police officer also harbours an ulterior criminal investigative purpose for the detention, provided the officer’s traffic safety motivation for the detention persists, and they do not act in excess of the limits on their associated powers: Nolet, at paras. 32-41.

If during the lawful detention of a motorist for traffic safety purposes a police officer happens to observe an item that is immediately recognizable as evidence of a crime or illicit contraband, the plain view doctrine provides the officer with authority to seize the item: Criminal CodeR.S.C., 1985, c. C-46, s. 489(1)Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(8); R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 37; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 27. Alternatively, if while operating within the parameters of their traffic safety powers, a police officer acquires the grounds necessary to undertake more invasive investigative steps, then they are entitled to act on such grounds: Nolet, at para. 28.

Once a police officer’s interest in traffic safety ends, however, any intrusion on a motorist’s reasonable expectations of privacy must comply with s. 8 of the Charter. Ordinarily, this means that the police officer will require reasonable grounds to search the vehicle for evidence of a crime: Mellenthin, at pp. 624-625; Nolet, at paras. 28, 39, 43. Alternatively, if the motorist is lawfully arrested, the vehicle may be searched for evidence or weapons incidental to that arrest, provided the vehicle is connected to the reason for arrest and there is a reasonable prospect that evidence will be located in the vehicle: see, generally, R. v. Caslake, [1998] 1 S.C.R. 51. Short of this, a protective weapons search could potentially be justified, but only if the police officer believes on reasonable grounds that his or her safety is at stake and that such a search is necessary: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41. Depending on the circumstances, this may justify searching a motorist’s vehicle for weapons: see, e.g.R. v. Plummer, 2011 ONCA 350, at para. 65; R. v. Lee 2017 ONCA 654 at para. 43.

Entirely different considerations apply if traffic safety does not truly factor into the officer’s decision to detain and is merely offered as a pretext (a false justification) to detain a motorist and look for evidence of a crime. Without any traffic safety justification, not only will the pretextual detention result in a violation of the motorist’s s. 9 Charter right from the outset, any resulting intrusion on the motorist’s reasonable privacy expectations will also be unlawful and violate s. 8 of the Charter: see, e.g.R. v. Ladouceur, 2002 SKCA 73, described as “fatally flawed from the outset” in Nolet, at para. 25. Where traffic safety is not the reason to conduct the stop, the officer must have at least articulable cause to stop the vehicle, meaning… “A constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”: Simpson. The threshold is lower than the threshold for an arrest, which is reasonable grounds, but it is something more than an officer’s hunch based on intuition gained by experience.

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Detention of Passengers in Vehicles

With the force of the winter season behind us (hope I didn’t just jinx it), more people will be out-and-about, traveling the roadways, which will likely result in increased police-citizen interactions on those roadways.  I thought it fitting to post something on that topic, but not in terms of the driver, but in terms of passengers in those vehicles.

Remember, driving is a highly regulated activity, so although drivers are statutorily compelled to produce identification (i.e. valid driver’s licence) and vehicle documents (i.e. registration and proof of liability-insurance) upon request/demand of a peace officer or face charges under the various Motor Vehicle (Highway Traffic) Acts, the same cannot be said of a vehicle passenger where that passenger is not committing an offence (e.g. wearing a seatbelt, does not have open liquor in the vehicle, is not consuming cannabis, etc.).  In such cases, whether an officer’s request of the passenger’s identification (name, date-of-birth, address) will amount to a detention or unreasonable “search”, or further still whether querying this information on CPIC for outstanding warrants, BOLOs, current court orders or charges, will be reasonable will all turn on the facts of each case, as I will highlight.

First, let me premise this by saying that the law on this issue is still open. The SCC has not yet expressed its view, so decisions of the various appellant courts (and lower courts) across this country are mixed, at best:

As Doherty JA stated in Brown v. Durham (Regional Municipality) Police Force (1998), 43 OR(3d) 223 at para 31 (CA), leave to appeal to the SCC granted, but appeal discontinued, [1999] SCCA No 87:

“The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating section 216(1) of the [Highway Traffic Act], I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention.”

Likewise, in R. v. Harris 2007 ONCA 574, the Ontario Court of Appeal stated the following on this issue (at para 26):

“I cannot agree that the request of Harris for identification for purposes unrelated to the Highway Traffic Act altered the constitutionality of his detention. Harris was detained by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Actviolation, and Lipkus’s [the police officer’s] lawful assuming of control over the movements of the passengers in the vehicle. On the trial judge’s factual findings, Lipkus’s request for identification did not prolong or alter the nature of Harris’s detention. He remained in exactly the same position he would have been in had Lipkus questioned only the driver.”

In R. v. Coady, 2012 ABPC 194, after a vehicle had been stopped for legitimate reasons, an officer prevented a passenger who had exited the vehicle from leaving the scene and made persistent efforts to have him identify himself. In that case, there was no connection between the detention of the vehicle for traffic safety reasons and the subsequent detention of the passenger who tried to leave the scene; the court concluded that the detention was arbitrary and the arrest and search occasioned by the improperly compelled identification, unreasonable.

The officer’s request for R. v. Loewen’s (2018 SKCA 69) identification was not made in relation to any offence contrary to The Traffic Safety Act or any criminal offence. Rather, the officer testified that, when he conducts a traffic stop, he always requests identification from the passengers, if any, so it can be checked on the CPIC database. He does this “to find people who are either breaching court ordered conditions, wanted on warrants, outstanding criminals, that type of thing as part of [his] job” (an earlier post of mine on this issue). This was not a case where Loewen was simply asked his name, or for his identification, but the officer took Loewen’s identification back to the police car for some time without advising him that he was being detained, nor was he given RTC or a caution, or given the option of declining to provide identification.

I could go on to highlight other cases, but hopefully these will address the issue.  What is interesting is that many courts do not seem overly critical of officers running this information on databases (e.g. CPIC), but they are with the act of detaining the person to do so:

[an individual] does not have a reasonable expectation of privacy with respect to information in CPIC, at least insofar as police officers are concerned. A reasonable and prudent individual would assume that information about him or her emanating from a public court process will be available to police officers through an information data system such as CPIC.

…Absent a ‘detention’, merely asking for identification does not constitute a s. 8 ‘search or seizure’.

In R. v. Mooiman and Zahar, 2016 SKCA 43, 476 Sask R 216 the Court stated at paragraph 22:

True, the effect of stopping a vehicle and detaining the driver may impair the passenger’s ability to proceed further, but – all other things being neutral– nothing about a routine traffic-safety stop prevents a passenger of the vehicle from simply walking away. Similarly, absent a legal requirement under The Traffic Safety Act, the fact a passenger in a vehicle is necessarily caught up by a traffic-safety stop does not thereby legally compel or obligate the passenger to comply with the investigating police officer’s requests for information or assistance…

So, the takeway: Section 10 of the Charter provides that individuals who are arrested or detained have the right (a) to be promptly informed of the reasons for the arrest or detention, and (b) to retain and instruct counsel without delay and to be informed of that right. The duty of the police to inform a detained person of his or her s. 10 rights “is triggered at the outset of an investigative detention”: R. v. Suberu [2009] 2 SCR 460 at para 2. A police request for identification does not necessarily amount to detention, but “delays that involve significant physical or psychological restraint” will necessarily trigger ss. 9 and 10 of the Charter.

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Enter into the unknown [at least for now] – driving while impaired, etc…..

My emails and texts have been buzzing since late last year – present. As always, this is not legal advice (I am no lawyer by any stretch), but information from a fellow officer that attempts to educate law enforcement and interpret the muddled law as it is. I suspect this will not be my last post on this topic, but for now, let’s get to it….

As background, in 1921, Parliament made it an offence to drive while intoxicated. In 1925, it criminalized driving while intoxicated by narcotics. Dangerous driving has also been an offence since 1938. In 1951, Parliament responded to the concern that some courts were only convicting if the driver was “falling down drunk” by adding the offence of driving while impaired by alcohol. Major changes were made to the impaired driving laws in 1969. Parliament repealed the offence of driving while intoxicated, while keeping the offence of driving while impaired. At the same time, it made it an offence to drive with a Blood Alcohol Concentration (BAC) over 80 mg of alcohol per 100 ml of blood (over 80) and created an offence of refusing to provide a breath sample. Parliament provided for the BAC to be determined by an “approved instrument” (AI). In 1979, Parliament also authorized the use of an “approved screening device” (ASD) at the roadside to facilitate the detection of impaired drivers. It is a criminal offence to refuse to provide an ASD or AI sample. Parliament has also amended the Criminal Code over the years to respond to certain court decisions. It has also passed legislation to deter the dangers caused by street racing, fleeing the police and leaving the scene of an accident. It is also a criminal offence to drive while prohibited from doing so as a result of a Criminal Code conviction. In 2008, Parliament made more major changes to address drug-impaired driving, creating the legal framework for the Drug Recognition and Evaluation (DRE) Program. There is more, but you get the point….

Fast forward, 2018-19: Mandatory alcohol screening – under the old regime, officers could not require a driver to comply with any roadside test unless we had reasonable grounds to suspect the driver has alcohol or drugs in their body. With reasonable suspicion, we could demand that the driver either provide a breath sample on an approved screening device (ASD) (for alcohol) or perform standard field sobriety tests (for drugs or alcohol). Now, section 320.27(2)) CC allows an officer to require a driver to provide a breath sample on an ASD if the officer has an ASD close at hand. Unlike the old framework, this provision does not require that the officer form a reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion will still be required where the ASD is not at hand, or the driver is no longer operating or has care or control of the motor vehicle (the words… “require the person who is operating a motor vehicle”…was purposeful). Mandatory alcohol screening will likely occur mainly, but not exclusively, at organized sobriety checkpoints. Quite simply, a police officer who has stopped a driver lawfully, for example to investigate a speeding violation, would be able to demand that the driver provide an ASD sample without needing to have reasonable suspicion that the driver has alcohol in the body. The term “conveyance” is now used to refer to any motor vehicle, vessel, aircraft or railway equipment, so it is important to note that mandatory alcohol screening only applies to motor vehicles. As well, the definition of “operate” has also been amended to incorporate the concept of “care or control”. A “fail” does not constitute an offence, but is simply a step that could lead to further testing on an Approved Instrument (AI, or “breathalyzer”), typically at a police station.

Some commentators and members of the public mistakenly consider this to be a new power to stop vehicles at random. In fact, random stopping has been considered on three occasions by the Supreme Court of Canada. The first case was R. v. Dedman [1985] 2 S.C.R. 2 where the Court found that random stops were justified at common law because of the importance of deterring impaired driving, the necessity of random stops to effective detection, and the fact that driving is already subject to regulation and control in the interests of safety. The second case was R. v. Hufsky [1988] 1 S.C.R. 621. It dealt with a random stop at a checkpoint pursuant to the Ontario Highway Traffic Act. The Supreme Court found that, in view of the importance of highway safety and the role to be played in relation to it by a random stop, the limit on the right not to be arbitrarily detained is a reasonable one that is demonstrably justified in a free and democratic society. The third case was R. v. Ladouceur [1990] 1 S.C.R. 1257. In that case, the stop was by a roving patrol car and not at an organized checkstop. The Supreme Court held that reducing the carnage on the highways caused by impaired drivers was a pressing and substantial concern which the government was properly addressing through random stops. As the Court noted, “stopping vehicles is the only way of checking a driver’s licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.”

Another change in this area is operating with a BAC equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of driving. The change in the law isn’t that we can demand breath samples from drivers at home or in bars because we could do that under the old regime. The change is that now those breath samples can now afford evidence of an offence, where before they could not. The intent here, I believe, is to eliminate the bolus drinking defence, by changing the timeframe within which the offence can be committed. Also, it significantly limits the intervening drink defence. The bolus drinking defence arises when the driver claims to have consumed a large amount of alcohol just before or while driving. Although they admit that their BAC was “over 80” at the time of testing, they claim that the alcohol was still being absorbed and, at the time of driving, they were not “over 80”. The formulation also limits the intervening drink defence which arises when a driver drinks after driving but before they provide a breath sample. This defence often arises where there has been a serious collision and the driver claims to have been settling their nerves. This undermines the integrity of the justice system as it rewards conduct specifically aimed at frustrating the breath testing process. The only situation in which a driver could rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5). The offence is not made out if all of the following conditions are met:

  • The person consumed alcohol after ceasing to operate the conveyance;
  • The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and,
  • Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation.

Situations in which a person would have “a reasonable expectation” that they would be required to provide a sample would be decided on a case-by-case basis by the courts. However, a person involved in a serious collision causing death, bodily harm, or major damage should reasonably expect to be required to provide a sample. I believe we will see alot of “unconstitutional” arguments in this area because, for example, if a driver could convince a court that they drove home, or to a bar, sober and then drank, never expecting to be subjected to a breath demand, and that after getting home he/she consumed a quantity of alcohol that they were not carefully tracking, the court may still find them guilty because without knowing how much alcohol they consumed, the person may be unable to show that the consumption matched up with their breath readings.

Further still, the new section 320.31(9)) CC provides that a statement made by a person to a police officer that is compelled under a provincial Act (e.g. file an accident report, admission of driving, etc.) is admissible for the purpose of justifying a roadside screening demand authorized by the Criminal Code. This has the potential to engage the protection under section 7 of the Charter against self-incrimination.

The new section 320.29 CC provides that a justice may issue a warrant to obtain a blood sample from a person where the justice is satisfied that:
– There are reasonable grounds to believe that the person was involved in an accident causing bodily harm or death within the previous 8 hours;
– There are reasonable grounds to suspect that there is alcohol or a drug in the person’s body; and
– A medical practitioner is of the opinion that the person is incapable of consent and that the taking of the sample would not endanger the person’s health.

As well, new subsection 320.31(4) CC provides that, where testing on an AI is performed more than two hours after driving, BAC at the time of the offence (i.e. within the two-hour window) is conclusively deemed to be equal to the BAC at the time of testing plus 5 mg/100 ml for every complete 30 minutes between the expiry of the two hour period and the time of testing. The onus remains on the Crown to prove the offence beyond a reasonable doubt, by combining the scientifically valid AI test with well-established scientific knowledge on the metabolism of alcohol.

There are many other changes, but I think this post went on long enough. This area of law is new: to us, the lawyers, and the courts, so time will tell once the litigations begin where we will end up. The letter of the law versus the spirit of the law will come to bear. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not necessarily the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording…. interesting times indeed for us officers that love to delve into the abyss that is law!

Let’s not become ‘lazy’ or let our investigative skills suffer in the meantime…. we can be wrong in our beliefs and that is a cold comfort to a morally innocent person left without a defence under these new laws… the courts will hopefully work it out sooner than later to give us some guidance and certainty in this new area of law.

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Filed under Impaired Driving, Recent Case Law

Sidebar from the Reeves decision…worthy of a post

I didn’t want to take away from the “consent” issue/debate in the Reeves decision by cluttering it with a couple of other issues that require their own post.  Of note in Reeves was whether the police infringed Reeves’s Charter rights by entering the shared home without a warrant. This issue was not fully canvassed by the majority since it was not the main issue on appeal (Reeves conceded during oral submissions before the Court that he was not challenging the police entry into the Reeves-Gravelle residence). That being said, Justice M.J. Moldover, concurring with the majority, took some time to address the issue and I believe it’s something worthy for officers to appreciate. Justice Moldover wanted to express some tentative views on the issue of police entry into a shared residence, a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.  Justice Moldover felt that this is an important issue for debate since the police entry into the Reeves-Gravelle residence on the strength of Gravelle’s consent was the catalyst giving rise to a chain of events that culminated in the discovery of child pornography on the shared computer. If the entry contravened s. 8, it follows that the evidence discovered during the search of the computer was “obtained in a manner that infringed or denied” Reeves’s rights, bringing it within s. 24(2)’s exclusionary reach.

Further, Justice Moldover wrote that the legality of the police entry has implications beyond the four corners of this case. Police frequently attend residences to investigate suspected or ongoing criminal activity. Many of those residences are inhabited by more than one person with authority to permit third parties to enter the home. Counsel’s concession that police entry into a shared residence is not a “search” therefore has the potential to affect a large swath of Canadian society by shifting our understanding of the right to be free from unreasonable search or seizure. Do police have the authority to enter the shared residence at common law under the ancillary powers doctrine, to take a statement, for example?

Consider a situation where a complainant calls the police and informs us that her partner has physically abused her but has left the house. There is no emergency that would allow the police to enter the home under the emergency search power articulated in Godoy. Without each occupant’s consent, the police would be unable to enter the home. At present, the police would appear to have two options. They could ask the complainant, who has just been assaulted, to suffer the embarrassment of speaking to the police outside of her home — a request that could understandably be met with a refusal. Or, we could try to obtain the consent from the co-resident who allegedly perpetrated the abuse — an exercise almost guaranteed to prove futile. Or a situation after being called by a resident who reports a theft of property from a home she shares with six roommates, are we required to (1) determine how many people live in the home, and (2) seek out and obtain the consent of each before entering the home to take a statement? In each of the foregoing examples, short of intruding on the co-resident’s expectation of privacy, we would effectively be powerless to investigate the reported criminal offences.

Our homes have the potential to reveal the most intimate details about our personal lives. Individuals therefore typically have a heightened expectation of privacy within their homes. That said, five constraints on the police entry power that Justice Moldover articulated to minimize the extent of the interference with that expectation, inlcude:

  1. First, the police must query whether conducting the interview in the person’s home is necessary. If, after being presented with the option of having the interview at home or elsewhere, the person is ambivalent as to where it takes place, then the interview should be conducted outside the home. On the other hand, if the person indicates a preference to speak with the police at home, the police may act upon that preference. They need not attempt to weigh the strength of the person’s conviction not to be interviewed outside the home. Nor ought the police to cross-examine the person about his or her underlying fears and motivations, in an effort to determine whether the person will leave the home if pressed or cajoled.
  2. Second, the scope of the entry power would be narrowly tailored to its purpose. Courts regularly focus on the purpose of a particular police action to evaluate its legality. For example, in Evans, this Court held that residents are deemed to grant the public, including police, an implied licence to approach their home and knock. However, the police may only approach a residence under the implied licence to knock doctrine if their purpose in approaching is to communicate with an occupant: Evans, at paras. 13-16. Similarly, a search incident to arrest is only lawful if the purpose of the search relates to the purpose of the arrest: R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 19-25. The purpose of the entry power that I am articulating is to take one or more statements in connection with a criminal investigation, whether from the authorizing resident, or from other willing occupants, as the authorizing resident may permit. Absent further lawful authority, the legality of the entry ends when the police exceed that purpose. To be precise, the police may not go further and lawfully search the residence or seize evidence from it unless they obtain the necessary grounds in the course of taking the statement or statements.
  3. Third, the police would only be permitted to enter the common areas of the home. This too flows from the purpose of the entry. Because the police are only in the residence to take a statement, there is no need to enter any private areas, such as bedrooms, where a resident’s expectation of privacy is generally at its highest. In contrast, each co-resident has a reduced expectation of privacy in common areas of their home.
  4. Fourth, the police can only enter if invited in by an occupant with the authority to consent. Unlike many of the other statutory and common law police entry powers, forced entry would be strictly prohibited. Furthermore, the consent must be voluntary and informed, and the resident’s consent must be continuous and may therefore be revoked. The police must respect the resident’s wishes if he or she revokes the consent.
  5. Fifth, the entry would only be for a limited duration. If, after taking the statement, or statements, the police do not obtain the requisite grounds to undertake any further investigative action, they must immediately leave the residence.

To summarize, the common law police power that Justice Moldover tentatively described to allow a narrow entry power to take a statement from an individual with the authority to grant police entry, or from other willing occupants, as the authorizing resident may permit, has five criteria:

(1) The police must offer the authorizing resident, and any other cooperating occupants, a suitable alternative interview location — if one is available — that does not potentially intrude upon the reasonable expectations of privacy of co-residents in their home. (2) The purpose of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants, in connection with a criminal investigation. The police may not go further and search for or seize evidence unless they obtain the necessary grounds to do so in the course of taking the statement or statements. (3) The police are only permitted to enter the home’s common areas into which they have been invited. (4) The police can only enter if invited in by a resident with the authority to consent and that consent must be voluntary, informed and continuous. (5) Unless the police obtain the necessary grounds to take further investigative action, the duration of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants.

Another interesting tidbit from the Reeves decision was from Justice Cote, concurring with the majority:

“Nevertheless, even though I am of the view that the entry into the home and the seizure of the computer were both lawful, I would still exclude the evidence under s. 24(2) of the Charter based on the other violations of law in this case — specifically, the fact that the police failed to comply with ss. 489.1 and 490 of the Criminal Code, R.S.C. 1985, c. C-46, by improperly detaining the computer and the fact that the search warrant was ultimately found to be invalid.”

Don’t forget or neglect to file the Report to Justice and Detention Order!

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Filed under Worthy of a Review

Consent – not as clear-cut as it was in the yesteryears…

Reeves (R. v. Reeves 2018 SCC 56) shared a home with Gravelle, his common-law spouse. They were joint titleholders and had lived with their two daughters in this home for ten years. In 2011, Reeves was charged with domestic assault following an altercation with Gravelle and her sister. After this incident, a no-contact order was issued which prohibited Reeves from visiting the family home without Gravelle’s prior, written, and revocable consent. In October 2012, Gravelle contacted Reeves’ probation officer to withdraw her consent. She also reported that she and her sister had found what they believed to be child pornography on the home computer. They had found it in 2011.

Later that day, a police officer arrived at the family home without a warrant. Gravelle allowed the officer to enter. Gravelle signed a consent form authorizing the officer to take the home computer, which was located in the basement, a shared space in the home. The officer testified that he sought Gravelle’s consent because he did not believe he had reasonable grounds to obtain a warrant to search the home and seize the computer. The computer was owned and used by both spouses. Reeves was in custody on unrelated charges when the computer was taken by the police.

The police detained the computer without a warrant for more than four months, but did not search it during this time. They failed to report the seizure of the computer to a justice, as required by s. 489.1 of the Criminal Code, during this period. In February 2013, the police finally obtained a warrant to search the computer and executed it two days later. The police found 140 images and 22 videos of child pornography on the computer. Reeves was charged with possessing and accessing child pornography.

Reeves succeeded on a pre-trial application to exclude evidence based on a breach of his s. 8 Charter rights. The application judge found that Reeves had a reasonable expectation of privacy both in his home and its contents, including the computer. He found that Reeves’s rights were violated through the warrantless search and seizure of the computer from the home because he did not consent, by retaining the computer for four months without reporting the seizure to a justice and that the ITO relied upon to secure the warrant to search the computer was insufficient, so the warrant should have been denied. The judge found that the Charter-infringing conduct was serious as was the impact on Reeves’s Charter-protected interests and ordered that the evidence be excluded. As a result of the exclusion of evidence, the Crown’s case was gutted and an acquittal was entered. The ONCA found that while Reeves was a joint owner of the home, he had a minimal reasonable expectation of privacy in it as he could not access the home without his partner’s consent, she had revoked her consent, and he was in custody at the time. Seizing the computer did not interfere with Reeves’s heightened expectation of privacy in it or imperil any of his legitimate interests. Reeves’s partner could consent and her consent was valid as it was voluntary and informed. As a result, the evidence was admissible and a new trial was ordered.

Before I get into the SCC’s decision here, recall for a moment the R. v. Vu 2013 SCC 60 decision, which essentially ruled that:

[i]f, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched (para. 3; see also para. 49).

So, part of the issue here was no statutory or common law authority could have justified the computer seizure in this case. If the police had had a warrant to search the home, Vu would have justified the seizure — but not the search — of the computer. The key issue in this case, then, was whether the police officer could rely on the consent of Reeves’s spouse to take the shared computer from their home?  To a lesser degree, whether the police infringed Reeves’s Charter rights by (1) entering the shared home without a warrant; and (2) taking the shared computer without a warrant.

The SCC said that, in short, the issue of whether police entry into a shared home with the consent of one resident violates the Charter raises complex questions that require a considered response, and they would be best answered in a case that directly turns on this issue, with the benefit of full submissions. Therefore, in this case, the legality of the police entry did not affect the legality of the taking of the computer.

At para. 47:

“…in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’s subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. Indeed, both the Crown and the Court of Appeal appear to have recognized that Reeves had a reasonable (although diminished) expectation of privacy. While Reeves’s reasonable expectation of privacy in the computer was limited, given that he shared control over the computer with his spouse, it still suffices to trigger the protection of s. 8 of the Charter …. Indeed, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter” ….

The SCC then turned to the alternative proposition that underlied the Crown’s argument — that Reeves’ Charter rights were waived by Gravelle’s consent. The presumptive warrant requirement for seizures captured by s. 8 of the Charter is not triggered if Reeves’s Charter rights were waived. The Crown’s argument that there was no seizure within the meaning of the Charter when a party with an equal and overlapping privacy interest provides consent would effectively permit the consenting party to waive the privacy rights of the other parties. This would be inconsistent with the Court’s decision in R. v. Cole 2012 SCC 53, said the SCC (the third-party consent doctrine – although a person may not have exclusive control over the home and computer, control does not need to be exclusive to support a reasonable expectation of privacy. By assuming the reasonable risks of shared living, a person does not assume the risk that the police can enter a shared home and seize its contents at the sole discretion of a co-resident).

According to the SCC, Reeves had a reasonable expectation of privacy in the shared computer, and his rights had not been waived. Accordingly, the taking of the computer by the police constituted a seizure within the meaning of s. 8 of the Charter. This warrantless seizure was not reasonable because it was not authorized by any law. The seizure therefore violated Reeves’s rights under s. 8 of the Charter. Given the seriousness of the state conduct and of its impact on Reeves’s Charter-protected interests, the application judge was correct in concluding that the admission of the evidence would bring the administration of justice into disrepute. The evidence was excluded and the acquittal restored.

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Filed under Search and Seizure