Monthly Archives: February 2014

Drug charges dismissed where after a traffic stop, officer detained accused in handcuffs and searched backpack without legal authority

R. v. Christie 2013 NBCA 64 – the New Brunswick Court of Appeal has overturned the NBPC conviction of the accused for simple possession of marihuana and possessing cocaine for the purpose of trafficking; evidence excluded and acquittals entered. The accused was stopped after an officer observed that the registration sticker on his vehicle had expired. The accused identified himself, but was unable to produce a driver’s license, proof of insurance or registration. While speaking with the accused, the officer observed a large hunting knife in a case in the pocket of the driver’s door and an open wine bottle on the floor behind the driver’s seat. He handcuffed the accused and placed him in the police cruiser so that he could search the accused’s vehicle. Upon searching the accused’s vehicle, the officer found a backpack on the front passenger seat, which contained various quantities of cocaine (28 grams), marihuana, a scale and some baggies. He found two cell phones and additional quantities of marihuana in other areas of the car. After completing his search, the officer arrested the accused. He was subsequently transported to the police station where he was searched again and a small additional amount of cocaine was located on his person.

At both the trial and the appeal, the accused did not challenge the lawfulness of his original detention when he was pulled over and investigated for the MVA offence. Rather, the appeal was concerned with the nature of a lawful investigative detention and the extent of police search powers incident to an investigative detention, as per R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 and R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851. In addition, and perhaps more important, this case underscored the notion that authorized roadside stops must be limited to their intended purposes and do not “constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over” (see R. v. Mellenthin, [1992] 3 S.C.R. 615, [1992] 3 S.C.J. No. 100 (QL), para. 27).

The NBCA said that the trial judge failed to determine “whether there were other reasonable means available to the officer to alleviate his safety concerns about the presence of the knife, short of what he did.”  The NBCA said the following circumstances taken from the testimony of the arresting officer and not necessarily mentioned or emphasized by the trial judge ought to be recited in this case:

  • The accused readily identified himself in response to a request from the officer and produced an expired vehicle registration card bearing his name.
  • The accused was being investigated for summary offences under the Motor Vehicle Act, R.S.N.B. 1973, c. M-17, and the Liquor Control Act, R.S.N.B. 1973, c. L-10.
  • The hunting knife was properly in its case and stored in a space designated for storage in the driver’s door.
  • There was nothing in the accused’s conduct which would raise any safety concerns for the officer, nor did the officer have any reason to suspect that the accused might be a danger to anyone.
  • The accused was not asked to hand over the knife or the car keys before he was instructed to step out of the vehicle to be handcuffed and placed in the police cruiser.
  • The officer had made contact with another unit on patrol very early on after the accused’s vehicle was pulled over and he knew help would arrive within a few minutes. Although the circumstances recited by the trial judge could lead one to conclude that the call for a second unit took place after the accused had been secured in the police cruiser, the evidence is that the call was made before the accused was placed in the police vehicle.
  • As soon as the officer realized the accused was unable to produce any relevant documents under the Motor Vehicle Act, there was no question in his mind that the accused’s vehicle was going to be impounded.
  • The quick pat-down search of the accused as he stepped out of his vehicle did not raise any safety concerns.

Justice Deschênes of the NBCA stated:

Under such circumstances, obvious questions come to mind. Why, for example, was it important to rush into this detention when, to the officer’s knowledge, a second unit was a few minutes away? A short wait with the appellant being detained in his own vehicle under the officer’s watchful eye until arrival of a second unit would not have impinged on the appellant’s right to be released from detention as soon as reasonably possible. Nor would a wait of a few minutes necessarily put the safety of the officer in jeopardy. What prevented the officer from asking the appellant to hand over the keys to the vehicle? After all, the appellant could not produce the required documents and would certainly not be allowed to drive away. Would it be unreasonably unsafe to ask the appellant to carefully hand over the sheathed hunting knife? Finally, is it unrealistic to think that the arrival of other officers on the scene would have eliminated the necessity of the detention in the police vehicle and would not have jeopardized the investigation being carried on for infractions under the relevant provincial statutes?

In my respectful view, the obvious answers to these questions reveal that the officer could have addressed his safety concerns in a way that would have fallen well short of the drastic detention imposed upon the appellant [accused].

The officer’s action in detaining the appellant in handcuffs in the rear of the police vehicle was not reasonably necessary, and the trial judge did not properly apply the “necessity” test in concluding otherwise.

The NBCA examined the common law power to search incident to a lawful
investigatory detention.  The court cited R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59:

To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [para. 45]

These limited searching powers incident to a lawful investigatory detention are to be contrasted with the searching powers incident to an arrest, where the three main purposes of a search are to ensure the safety of the police and the public, the protection of evidence from destruction, and the discovery of evidence that can be used against the accused. The end result is that the common law powers to search incident to a lawful detention, being limited as they are to safety concerns, do not allow a search for evidence connected to the reasons for the detention.

The NBCA also examined R. v. Plummer, 2011 ONCA 350, [2011] O.J. No. 2034 (QL):

A search incidental to an investigative detention is defined and limited by the immediate concerns of officer safety. This reflects an important difference between the narrowly focussed and strictly limited protective search that may accompany an investigative detention, and the broader power to search consequent to a lawful arrest. It is necessary to maintain that distinction and to confine the scope of a search incidental to an investigative detention within strict limits. Here, the police did not arrest the appellant, presumably because they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon or some other valuable evidence. This is a tendency that the courts should resist.

However, on the facts as found by the trial judge, I agree that a modest extension of the Mann pat-down search was justified in this case. Although the officers had the appellant under their temporary control, the situation was fluid. The appellant’s earlier actions, when he appeared to conceal something in the vehicle, combined with the Officer Safety Alert indicating that he might be carrying a gun, gave rise to a legitimate serious concern that he had immediate access to a weapon that he could use if the officers were to simply release him and return to their own vehicle.

On those specific facts, I agree that the officers were entitled to search the bag in the car as an incident of the investigative detention to ensure their own immediate safety. While this does represent a modest extension of the protective pat-down search in R. v. Mann, it is limited by the concern for immediate officer safety that underpins Mann.

However, I would emphasize that this should not be read as giving the police carte blanche power to permit searches of bags or vehicles incident to investigative detention. Such a search demands satisfactory proof of a serious concern for officer safety that requires something more than the initial pat-down. [paras. 76-79]

The NBCA said in this case, it is clear the officer did not have, at common law, the power to search the vehicle or the duffle bag for evidence related to infractions under the Liquor Control Act.  Next, the NBCA examined whether there was a statutory power to search incident to an investigative detention under Section 135 of POPA:

135(1) A peace officer may search, without warrant, any vehicle or container if the peace officer believes, on reasonable and probable grounds, that there is in or upon the vehicle or container an item of evidence and that it is impracticable in the circumstances to obtain a search warrant.

136(1) A peace officer may seize

(a) any item of evidence the peace officer finds during a lawful search,

(b) any item of evidence found in plain view in a place where the peace officer lawfully is, and

(c) any weapon or any implement that could be used to effect an escape that the peace officer finds during a search under subsection 133(2).

137 A peace officer has no power to search any person, place, vehicle or container for an item of evidence except

(a) the powers given under this Act

(b) the powers given by any other Act which authorizes a search to be carried out in accordance with this Act, and


(d) any powers given by common law or statute in relation to persons lawfully detained or held in lawful custody.

138(1) A peace officer who has reasonable and probable grounds to believe that there is an item of evidence in or upon any place, container or vehicle may apply to a judge for a search warrant.

The NBCA said section 135 of POPA does not differentiate between a detention or an arrest in defining the powers to search a vehicle or a container. Nor does it limit the search for safety concerns that applies under the common law in cases of investigative detention. In that sense, the statutory power to search is broader that the common law power. The court said because the search was a warrantless search, the Crown must show that “the officer had reasonable and probable grounds to believe that there [was] in or upon the vehicle or container an item of evidence and that it was impracticable in the circumstances to obtain a search warrant.”  The Crown argued the evidence established the officer had reasonable and probable grounds to believe evidence of other open bottles of liquor would be found in the duffle bag on the basis of an open bottle of wine behind the
driver’s seat.  The NBCA, on the other hand, said the officer’s responses to questions indicated he felt he had a right to search the vehicle without a warrant because the search could “possibly” lead him to other open bottles of liquor or other weapons:

Q.  Okay. Did you expect to find any liquor in that black bag?

A.  Yeah, there could have been. We find alcohol in bags all the time.

Q.  Did you expect to find any though?

A.  Yeah.

Q.  You expected to find liquor in that black bag?

A.  Did I not just say yes two times to the exact same question.

Q.  Did you ever ask him for his consent to search the vehicle?

A.  No, I didn’t need it.

Q.  Did you ever consider getting a warrant to search the vehicle?

A.  I didn’t need it.

Q.  You didn’t need it?

A.  No.

Q.  Why?

A.  Because I had the right to search the vehicle under the Liquor Control Act for the open alcohol and I had the right to search the vehicle for weapons at this point.

“If I believe there is alcohol possibly in that bag then yes I do.”

Justice Deschênes said the evidence recited did not establish the officer believed, on reasonable and probable grounds, that evidence of an offence under the Liquor Control Act would be found in the vehicle or a container. According to the NBCA, the Crown did not satisfy the onus of establishing the officer had reasonable and probable grounds to believe that evidence of “open liquor” would be found in the duffle bag. Even accepting, for the purposes of argument, that the officer, in his experience, had found open liquor in similar bags in the past, his failure to take any steps to determine whether the search of the bag had any connection or relevance to the immediate regulatory purpose tainted the search as unreasonable, considering the expectation of privacy, albeit limited, of the
accused. All of this assuming, in addition, that having “open liquor” in a
duffle bag located on the floor, in front of the passenger seat constituted an
offence under the Liquor Control Act because s. 41(4) of the Liquor Control Act states that possession of “open liquor” in a vehicle is prohibited unless
“carried or transported in the traveller’s luggage with his clothing and other
necessities of travel”.

The NBCA ruled that the search and seizure of the cocaine and drug trafficking accessories in the duffle bag, including the marihuana found in the vehicle following the search of the duffel bag, were unlawful and in violation of the accused’s rights under s. 8 of the Charter. The eventual arrest of the
accused was consequently unlawful, as was the seizure of evidence found in the
search incident to such arrest.

Following the Grant analysis, the NBCA ruled the conduct at issue here was serious. The officer knew or ought to have known that he had options other than the type of detention he decided to impose. The detention of Mr. Christie in the back of the police vehicle in handcuffs was uncalled for under the circumstances and was a serious infringement of the accused’s s. 9 Charter right not to be detained arbitrarily. But what was perhaps more serious, said the court, was the unlawful search of the vehicle, more particularly the duffle bag under the purported authority of the Liquor Control Act, or the pretense of a safety concern, a concern that simply defied common sense. Again, the officer knew or ought to have known of the requirements of reasonable and probable grounds needed to open the duffle bag and that some thought had to be given to obtaining a search warrant. The officer acted with disregard for the accused’s rights not to be subjected to an unreasonable search and seizure under s. 8 of the
Charter. The seriousness was aggravated when one considered the officer’s testimony that he believed he could open the duffle bag based upon only the “possibility” of finding “open liquor”. The NBCA saw this as evidence of
an abusive practice – one that must be soundly denounced. To admit the evidence, said the court, would be to encourage situations where police officers could insist, when it is not reasonably necessary, on using handcuffs to confine a person in the rear seat of police vehicles and to search persons or vehicles without the grounds required by law. This could have a chilling effect on the public’s confidence in the rule of law and admitting the evidence would bring the administration of justice into disrepute; this type of detention was clearly “over-kill” in the circumstances and the search of the duffle bag was neither based upon reasonable grounds to allow it in the context of an infraction under the Liquor Control Act, nor for any genuine safety concerns, said the NBCA.

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Police failure to wait a reasonable time for counsel to call back breached s. 10(b) of the Charter.

R. v. Alfardo-Delgardo 2014 ONCJ 33 – this case is yet another example of the dilemma faced by police in determining “how long is long enough” to wait for counsel of choice to call back versus the investigative necessity to obtain evidence for the offence.  This case involved the arrest of the accused for impaired operation and a subsequent demand pursuant to s. 254(3)(a) of the Code.

I will fast forward to the issue of concern as the judge found no breaches of the accused’s rights under either ss. 8 and 9 of the Charter in that the detention at the roadside and his arrest was lawful. The accused was arrested at 1:16 a.m. At 2:02 a.m., the accused, in response to his rights to counsel given earlier, had asked to speak to counsel of choice. At 2:08 a.m., the breath technician placed a call to the lawyer’s office and left a voice mail message on behalf of the accused. The arresting officer testified that shortly after the message was left, he advised the accused that he could contact duty counsel or any other lawyer for the accused, but the accused declined this offer. By approximately 2:17 a.m. when no phone call had been returned by the lawyer of choice, the arresting officer took the accused to the breath room so that samples could be obtained from him. At 2:19 a.m., the breath technician advised the accused of the earlier attempt he had made to contact his lawyer of choice.  The breath technician asked the accused if he was satisfied with efforts made and the accused responded “yes”. The arresting officer then reiterated that he had asked the accused if he wished to speak with duty counsel or any other lawyer and the accused declined. The accused responded with words to the effect that he knew that particular lawyer and that lawyer always dealt with his cases, which was why he was asking for him for anything that had to do with this matter. Neither officer acknowledged, questioned, or responded to the applicant’s statement.

The breath technician then asked the accused some health-related questions and provided the accused with instructions on how to provide a breath sample. At 2:29 a.m., the accused  provided his first breath sample. After cautioning the accused, the breath technician questioned the accused about his alcohol consumption. The accused admitted that he had consumed 5 beers and 6 shots of Sambuca starting at about 7 p.m. At 2:52 a.m., the accused  provided the second sample of his breath into the approved device. Readings were obtained of 160 miligrams of alcohol in 100 millilitres of blood in respect of both samples taken from the accused. By the time the samples were obtained, the lawyer of choice had not called back, nor did he call at any time while the accused was in police custody.

In this case, the arresting officer waited approximately 9 minutes for the accused’s counsel of choice to call back before requiring the accused to attend the breath room to provide samples of his breath. There was no evidence that counsel’s messaging centre or voice mail was not receiving calls or that counsel was not available or out of town. The extent of the implementation efforts on the part of the police in this case in addition to the 9 minute wait was an offer to contact duty counsel or another lawyer for the applicant.

The judge relied upon several cases in reaching the courts decision. R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.):

Section 10(b) of the Charter provides that everyone has the right upon detention or arrest to retain and instruct counsel without delay and to be informed of that right. The duties imposed on the State include both an information component to inform the detainee of the existence of the right, and an implementation component, to provide the detainee with a reasonable opportunity to exercise the right, and to refrain from eliciting evidence from the detainee until he or she had had that reasonable opportunity except in exigent circumstances. What constitutes a reasonable opportunity will depend on the surrounding circumstances.

In R. v. Willier, [2010] S.C.J. No. 37, the Supreme Court of Canada considered the issue of whether the police had violated the defendant’s reasonable opportunity to consult his counsel of choice. The Supreme Court held that the police did not in any way interfere with Mr. Willier’s right to a reasonable opportunity to consult counsel of choice by reminding him of the immediate availability of free Legal Aid and advising him that his counsel of choice would not likely return his call quickly given that it was Sunday. The police held off commencing their investigative interview for approximately 50 minutes and began their interview with an open-ended invitation to Mr. Willier to contact counsel at any point. The police made this offer even though the accused had spoken with duty counsel twice while he waited for his counsel of choice to call back.

In R. v. Anderson, [2010] O.J. No. 6186, although just 22 minutes had passed between the officer’s first phone call to the defendant’s counsel and the defendant’s attendance at the breath room, the officer made multiple phone calls to the mobile cell number provided by the accused. In addition, the officer did the following: asked the accused if he had any other way of getting hold of his lawyer; conducted all sorts of computer checks to locate the accused’s counsel; and initiated the process to call duty counsel without foreclosing this as the accused’s only option. It was clear given the officer’s efforts that there was no reliable contact information for the person the defendant wished to contact. The court in Anderson, at para.115, in finding no breach of the defendant’s s.10(b) rights, held that the officer’s efforts to reach the accused’s counsel of choice was a textbook example of how things should be done.

In R. v. Wilding, [2007] O.J. No. 4776, the court found that even though the defendant did not speak to counsel of choice before providing a breath sample, the police did all they could to facilitate contacting counsel including calling a friend of the accused, looking up the lawyers name in a lawyer’s directory, and contacting the number of someone with the same name as counsel, only to find the number to be out of service.

Here, in this case although the accused did not complain at the time, the minimal steps taken to contact his counsel were insufficient according to the judge to satisfy the implementation component of the accused’s s. 10(b) right. The judge said the police should have held off requiring that the accused provide samples of his breath for a reasonable length of time given the time of day counsel was being contacted. Expecting a return call in that brief time frame at that time in the morning was patently unreasonable said the judge. In addition, following the accused ‘s comments to the officers that the particular lawyer did all his work which is why he wanted to speak with him, either the arresting officer or the breath technician should have asked the accused if he wanted them to place a second call to the lawyer or wait a little longer to see if the message was returned. Although, said the judge, not much was required of the police to meet the implementation component of the applicant’s s. 10(b) right, the judge found that the failure to take these steps had resulted in a breach.

The judge found that as the accused’s attendance to give breath samples was well within the legislated two hour requirement which would allow the State to rely on the certificates of analysis, there was simply no urgency which would justify the limited amount of time the police waited for a call back in this case. The rushed nature of the implementation component of the accused’s s. 10(b) right was a significant violation and as such, the breath tests and the statements made by the accused were excluded.

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The SCC has ruled that a computer search requires a specific pre-authorization in a search warrant before it can be searched

R. v. Vu 2013 SCC 60 – back in September of 2007, police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation identifying the owners or occupants of the residence. In the course of their search of the residence, police found marihuana and they also discovered two computers and a cellular telephone. A search of these devices led to evidence that Vu was the occupant of the residence. Vu was charged with production of marihuana, possession of marihuana for the purpose of trafficking, and theft of electricity.

As some background, a Justice of the Peace in British Columbia issued a search warrant authorizing seizure of “[a]ll equipment and parts utilized to divert electricity, including meter bases, electrical meters, electrical wires, hydro bypass connections [as well as] [d]ocumentation identifying ownership and/or occupancy of the property …” relevant to an investigation of the offence. A cursory search led to the discovery of marihuana growing in the basement. The officers also found two computers and a cellular telephone in the living room. An officer searched the first computer, which was connected to a security system that monitored the front of the residence by means of a video camera. Examining the footage stored in the computer, he located images of a black Honda CRV in the driveway of the residence. The police database confirmed that the accused was the registered owner of a 2007 black Honda CRV, that he had a B.C. driver’s licence, and that he had a registered address in B.C.. The officer then searched the second computer which was running an online chat program called MSN. The last user was still signed in and by activating the MSN icon and bringing up the open file, the officer was able to see that the user was signed in with the email address A Facebook account in the name of Raymond Vu was also open. The officer searched the computer’s database for photographs by using the “Start” menu and the “Search” function which permits a search for any photographs or video files. He also searched for any relevant documents on MS Dos or WordPerfect. The search turned up the resume of Raymond Vu, of which a second officer took a photograph. The first officer did not take many notes during his search and could not recall the steps he took in the process.  The officer also searched the Sony Ericsson model cellular telephone found in the living room. Stored in the phone’s database, he discovered a photo of an Asian male, whom the officer identified as the accused.

The SCC made an interesting connection in this decision. Although historically cellular phones were far more restricted than computers in terms of the amount and kind of information that they could store, present day phones have capacities that are, for our purposes, equivalent to those of computers. The trial judge found that the cell phone in this case, for example, had a “memory capacity akin to a computer”. In these reasons, then, when the SCC referred to “computers”, the SCC included within that term the cellular telephone.

The ITO, according to the SCC, set out facts sufficient to allow the authorizing justice to reasonably draw the inference that there were reasonable grounds to believe that documents evidencing ownership or occupation would be found in the residence and thereby concluded that the authorizing justice could lawfully issue the warrant to search for documents evidencing ownership or occupation of the property. The search for such material did not breach the accused’s rights under s. 8 of the Charter.

The SCC said the traditional legal framework holds that once police obtain a warrant to search a place for certain things, they can look for those things anywhere in the place where they might reasonably be; the police do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets. The numerous and striking differences between computers and traditional “receptacles” called for distinctive treatment under s. 8 of the Charter. Computers differed in important ways from the receptacles governed by the traditional framework and computer searches gave rise to particular privacy concerns that were not sufficiently addressed by that approach. One could not assume, said the SCC, that a justice who authorized the search of a place had taken into account the privacy interests that might be compromised by the search of any computers found within that place. This could only be assured if the computer search required specific pre-authorization. In practical terms, the requirement of specific, prior authorization meant that if police intended to search computers found within a place with respect to which they sought a warrant, they had to satisfy the authorizing justice that they had reasonable grounds to believe that any computers they discovered would contain the things they were looking for.  In the case at hand, the SCC found the searches of those devices were not authorized by law and violated Vu’s right to be free of unreasonable search and seizure under s. 8 of the Charter, but given the uncertainty in the law at the time and the otherwise reasonable manner in which the search was carried out, the violation was not serious. Further, there was a clear societal interest in adjudicating on their merits charges of production and possession of marihuana for the purpose of trafficking. Balancing those factors, the evidence was not excluded in this case.

Of course with this decision, the SCC has made it clear that moving forward, if police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant. According to the SCC, this case should serve to clarify the law on this point and prevent this kind of confusion in the future.

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Is There a General Power to Search Incident to Valid Arrest Pursuant to the Mental Health Act?

Before I discuss this case, I will caution you that it is out of the British Columbia Provincial Court, so it is not binding in our area, nor does it relate to our Mental Health Act or Involuntary Psychiatric Treatment Act.  I found the case interesting due to the “principles” discussed throughout the case, which may have some implications overall in matters such as these.

R. v. Hickey 2013 BCPC 328 – early on the morning of March 25, 2012, the accused was observed by a commercial transport safety inspector to be parked at a weigh scale station near Hope, British Columbia. The accused, upon observing the inspector, proceeded to back up his vehicle and, without any provocation, stated to the inspector “Fuck you anyways”.  The specifics of this incident, including the description of the accused and his vehicle, were passed on to the local RCMP. The RCMP conducted patrols throughout the day in search of the accused and his vehicle without success. Later in the afternoon, the RCMP received information from both the accused’s mental health nurse and his girlfriend that the accused had been experiencing mental health problems and was not coping well. The information indicated that the accused’s girlfriend had been in contact with the accused earlier that day and the accused had indicated that he was experiencing suicidal ideations. The information further indicated that the accused had recently been a patient in a mental health hospital and had been apprehended under the Mental Health Act on March 18, 2012, only a week earlier. The information also indicated that the accused may be a danger to himself, the public, or police officers.

Sometime after four o’clock in the afternoon, the RCMP located the accused in his parked vehicle at a rest area not far from the weigh scale where he had been
seen earlier in the day. Due to the concerns raised by the information provided
to the police, it was determined that prior to approaching the accused, the
police would ensure the area was properly secured and there was appropriate
backup support for officers approaching the accused. One of the first officers
on the scene had set up a position whereby he was able to observe the accused
and the accused’s vehicle while awaiting the tactical arrangements to be
completed. Some minutes later, the accused’s vehicle lights were illuminated and
the vehicle started to move toward the exit. At this time, the officer activated
his emergency equipment and pulled up in front of the accused’s vehicle. The
accused stopped his vehicle and turned the vehicle lights off.  The officer exited his vehicle and approached the accused, who remained in the driver seat of his vehicle. The officer asked the accused to produce his driver’s license and the keys to the vehicle. The accused complied with the officer’s request. The officer observed that the accused had some growth on his face, looked “rough”, and appeared sweaty. The officer was of the opinion that the accused was overly quiet given the circumstances of what was occuring.  The officer was aware of all the information that had been provided to the police from the various sources. Although the accused was cooperative with the officer and appeared to be coherent, the officer was of the view that the accused ought to be apprehended under the Mental Health Act based on his observations and the information he had been provided. The officer advised the accused that he was “under arrest” pursuant to the Mental Health Act and placed the accused in handcuffs.

The officer then placed the accused in the police vehicle of one of his fellow
officers. The accused was not searched at this time. The intention was to
transport the accused to a mental health facility, which was approximately a 10 to 15 minute drive. According to the evidence, the standard police practice was for medical professionals to assess the accused at the facility to determine whether he should be detained or released (a familiar practice to us as well). The officer indicated in his evidence that he had often dealt with troubled persons under the Mental Health Act and these individuals could be unpredictable, explosive, and escape risks. Other officers had arrived approximately five minutes after the initial interaction with the accused.

As the accused was to be transported to a mental health facility, the officer
asked the accused if the accused needed anything from the vehicle. The accused
replied that he did not need anything from his vehicle. The inside of the vehicle was cluttered with various items. The officer indicated that he could see items in the accused’s vehicle including a wallet, a cell phone, and a jacket. He thought these items ought to be collected for the accused. Despite the accused’s wishes, the officer decided that he would collect the wallet, cell phone, and jacket and place them in a backpack which the officer observed in the backseat of the accused’s vehicle.  When the officer picked up the backpack, he had a quick look inside the backpack to ensure there were no items that could be used as a weapon. Inside the backpack, he observed a shiny small container that read “wax” on the outside. The officer stated in his evidence that he then became suspicious that there may be drugs in the container so he unscrewed the cap and inside he found crack cocaine. Once the officer had discovered the drugs in the backpack, he returned to the accused and arrested the accused under the Mental Health Act and the Controlled Drugs and Substances Act. It was at this time that the accused was provided information with respect to his Charter rights. The accused declined the right to contact counsel and was then taken away to the mental health facility by another officer. Officers then searched the accused’s vehicle and more cocaine was found in a console between the seats. The evidence indicated that the officers did not obtain a warrant to search the accused’s vehicle as none of the officers thought it was necessary. The cocaine found in the canister located in the accused’s backpack weighed approximately 25.9 grams. The cocaine found in the console of the accused’s vehicle weighed .5 grams. When the accused was assessed at the mental health facility later that day, it was determined by medical professionals that he ought not to be released due to his mental state.

The accused raised two Charter violations on the voir dire: whether the officer acted improperly in exercising his authority to apprehend the accused under the Mental Health Act and violated the accused’s right not to be arbitrarily detained under section 9 of the Charter; and if the apprehension was lawful and complied with the powers afforded an officer under to the Mental Health Act, whether the officer’s search of the accused’s vehicle and the items found therein was reasonable and consistent with the rights of the accused guaranteed by section 8 of the Charter.

I won’t go into the relevant mental health legislation because it relates specifically to British Columbia in this case and other legislation will vary somewhat.  In the case at hand, based on the information the officer had been provided and his observations, the court found that the officer acted properly pursuant to his authority to apprehend the accused, and indeed would have been derelict in his duties had he allowed the accused to depart.  The court said that the legislation is precisely for the purpose of allowing an officer to apprehend an individual in the accused’s situation. Accordingly, the judge concluded that the accused’s apprehension was lawful and proper.

The court said there was no issue taken with the proposition that the accused had a reasonable expectation of privacy in his personal backpack. The Supreme Court of Canada has found that “backpacks are the repository of much that is personal” (R. v. A.M., 2008 SCC 19). While it was acknowledged that the expectation of privacy in a vehicle is diminished, it does not follow that there is
necessarily a reduced expectation of privacy with respect to items found in the
vehicle (R. v. Caron, 2011 BCCA 56). In the circumstances of this case, the accused had a reasonable expectation of privacy in his backpack and the canister located therein. The central issue with respect to the lawfulness of the search was whether the search by the officer of the backpack and the canister found therein was reasonable in the circumstances.

The judge said that the law recognizes a number of circumstances where a search absent a warrant may be justified. Some of these include a search incidental to arrest, a search upon detention for officer safety, and a search in exigent circumstances. Ultimately, the court’s decision must find a balance between privacy interests and the state’s interest in law enforcement.  The authority to apprehend the accused was provided by the Mental Health Act. The legislation does not explicitly provide any powers authorizing a police officer to search the belongings of an individual who has been apprehended pursuant to that enactment (much like other provincial mental health legislation).

The Crown argued that similar to the powers of a police officer to search incidental to arrest or a detention, as accepted by the Supreme Court of Canada
in the decisions of R. v. Caslake, [1998] 1 S.C.R. 51 and R. v. Mann, 2004 SCC 52, this court should accept the proposition that the officer had certain incidental powers to search consistent with the officer’s ability to properly perform his duties and the authority provided him under the Mental Health Act. The Crown argued that the officer’s authority and rationale to search in this case was for the purpose to ensure officer safety. The Crown went on to say that it is analogous to the well-accepted police authority to search an individual who has been detained or arrested when there are concerns for officer safety. The judge said it is reasonable that upon apprehension of an individual pursuant to the Mental Health Act, the officer ought to be afforded greater search powers than those afforded an officer who has merely detained a suspect pursuant to a criminal investigation. The latter allows the officer to perform a quick and relatively nonintrusive ‘pat down’ search to ensure there are no items in the possession of the detainee which may be employed to injure the officer during their brief interaction. In such cases, there needs to be reasonable grounds, both subjective and objective, to support the officer’s decision to conduct a protection safety search.

The judge said that as it is likely that the individual apprehended pursuant to the Mental Health Act will be in the custody of the officer for a considerable period while being transported to a medical facility, and perhaps throughout the admissions procedure, the situation is similar to an arrest situation where there is expanded search authority permitted for officer safety. Accordingly, in order to ensure the officer and others who may come in contact with the apprehended person are not placed at risk, it would seem appropriate and prudent that the officer be afforded the authority upon apprehension to conduct a search of the apprehended person and any items in his immediate possession which he may have access to during the period of the apprehension. Such an approach would seem to be reasonable and necessary given the context of the lawful apprehension, which is the belief that the apprehended person poses a risk of harm to himself or others due to a mental illness.

However, the judge said that when one reviews the principles discussed in permitting an officer the authority to search for officer safety an individual who is detained or arrested, there is little if any support for the proposition that an officer, upon apprehending a person pursuant to the Mental Health Act, should also have authority to search the immediate vicinity; in this case the accused’s vehicle and the backpack found therein.  The judge said further, it must be underlined that the authority to apprehend a person under the Mental Health Act exists for the sole purpose of authorizing a peace officer to ensure that a person with an apparent mental disorder, who may be a danger to themselves or others, be immediately taken to a physician for examination. The authority is separate and distinct from the traditional and more common authority exercised by the police when engaged in a criminal investigation. The purpose of the power to apprehend a person with a mental disorder is not, and should not be permitted to be, authority or a license for the police to engage in investigative activities including searches where there exists a reasonable expectation of privacy on the part of the person being apprehended.

The judge ruled that he is not aware of any reason that would support a search of the person’s immediate vicinity for evidence similar to the scope afforded an officer who has arrested an individual on reasonable grounds of committing a criminal offence. In this case, there were insufficient grounds to search for evidence of an offence. There were no grounds to believe an offence had been committed and there was no reasonable prospect of discovering evidence relating to an offence. Despite the accused indicating that he did not want his cell phone or wallet, the officer thought it prudent to retrieve same from the accused’s vehicle in order to have these items at the hospital with the accused. Simply removing these items from the accused’s vehicle may have been a prudent and helpful approach on the part of the officer. The securing of the accused’s cell phone and wallet by the officer, if characterized as a search and or seizure, was a minor interference with the accused’s privacy interests. Both items were in plain view and the officer was securing the items for the benefit of the accused as the accused may have had need of these items at the hospital where he was being taken. Obviously, had the officer gone further and searched the contents of the cell phone or the wallet, the accused’s privacy interests would have been significantly compromised. There was no evidence that the officer searched through these items.

The judge said the search of the accused backpack, however, was a significantly bolder intrusion by the officer. The officer provided no reason for securing the backpack except for providing a convenient means to transport the items of the accused. The officer had no lawful authority to open or search the backpack and in so doing breached the accused’s privacy rights as guaranteed under section 8 of the Charter. The judge was troubled by the officer’s decision to look inside the accused backpack, and he was particularly concerned with the removal and opening of the canister found therein. According to the judge, it was not for the officer to compromise the accused’s privacy interest in the contents of his backpack in an attempt to employ the backpack as a means to carry personal items of the accused, particularly after the accused had said he did not want the items. While the officer may have believed he was looking after the accused’s best interests in securing these items, the officer had to be mindful of the accused’s privacy interests in his backpack and the canister found therein.  Moreover, even if it was permissible for the officer to search the backpack to ensure no weapons were contained therein and confirm it could be safely used to transport the accused’s belongings, the judge was unable to determine any possible reason pertaining to safety issues that would permit the officer to open the canister in which the cocaine was found.  If upon observing the canister in the backpack, the officer had any safety concerns with respect to its contents, he should have either placed the backpack back in the car, or alternatively, he could have removed the canister from the backpack and placed it in the car and continued to use the backpack for the purpose initially intended.

The judge was of the opinion that the law relating to protective searches pursuant to investigative detention provides a power to search limited to what is necessary to ensure the safety of the police and the public in the immediate area. The officer must have an honest belief, on reasonable grounds, that his or her safety or the safety of others is at risk. Applying the same principles, the judge said there was no need to open the canister for safety concerns. The accused was handcuffed in the police vehicle and had no access to the canister had it simply been left in the car. He was unable to conclude that the search of the canister was necessary in this case to ensure the safety of the officer or others. In his view, admission of the evidence obtained pursuant to the unlawful police search in this case would bring the administration of justice into disrepute. Accordingly the cocaine located by the officers subsequent to the lawful apprehension of the accused was not admitted at the trial.

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Section 8 Charter Violation Where Police Seized and Searched Cameras Located in the Bedroom Following an Arrest for Sexual Assault

R. v. Sloat 2013 ABQB 476 – police responded to a 911 call originating from the residence. According to the arresting officer, he received a complaint about a “sexual assault in progress” and attended at the residence. When he got there, a female told him she could hear noises coming from her male roommate’s bedroom and she went down, opened the bedroom door, and saw her roommate laying on the bed naked. There was a female with the male roomate, so she asked this female if she needed help, and the victim said “yes”.   The arresting officer entered the bedroom and found the accused and the female sitting on the bed. He arrested the accused and removed him from the bedroom. Other officers attended to the female sitting on the bed who was having a “difficult time talking, let alone answering any direct questions” (intoxicated).  Following the arrest, police searched the accused’s bedroom and his personal electronics for at least 2 hours. Back at the police station, officers continued to show the contents of the camera to at least three other officers.  The information found on the cameras was then used to obtain search warrants to “get data from cameras” so that the police would have a “copy for court purposes as evidence”.

The accused argued that he had a high expectation of privacy in his home, his bedroom, and the personal electronic devices contained therein. The accused argued that the police were not entitled to use any evidence obtained during these illegal searches in support of judicial authorization for further searches.  The Crown argued that it is black letter law that police have the power to search a person and their surroundings after arrest for evidence of the crime. The Crown submitted that the search conducted here was clearly within the scope of that power.

The ABQB ruled that the scope of the police’s common law authority to investigate a 911 call was articulated by the Supreme Court in R. v. Godoy, [1999] 1 S.C.R. 311, and in this case the arresting officer was authorized to enter the residence and the accused’s bedroom for the limited purpose of determining whether anyone inside required assistance and to provide that assistance, and he was entitled to perform the actions required to preserve life and ensure safety. The arresting officer and the officers who followed him into the residence were not entitled to conduct any searches or investigations ancillary to that purpose at the point of their entry.

Applying R. v. Golub  (1997), 117 C.C.C. (3d) 193 (Ont. C.A.); leave to appeal refused (1998), 55 C.R.R. (2d) 188 n (S.C.C), the court ruled that the search of a dwelling house as an incident of an arrest is generally prohibited subject to exceptional circumstances. In this case, the court concluded that there were no exceptional circumstances, as the complainant had been located and given assistance and the accused had been taken into police custody. There were no safety concerns that necessitated a search and indeed officer safety was not mentioned in any of the evidence. There was no risk of the loss, destruction or disappearance of evidence – the police could have easily secured the bedroom
and sought judicial authorization to search.

Side note for those that haven’t read Golub.  In part, the court in Golub ruled:

In my opinion, searches of a home as an incident of an arrest, like entries of a home to effect an arrest, are now generally prohibited subject to exceptional circumstances where the law enforcement interest is so compelling that it overrides the individual’s right to privacy within the home. After Feeney, the general principles governing the scope of searches as an incident of arrest set down in Cloutier do not control where the place to be searched is a residence. Those principles are still helpful in that they identify relevant considerations. However, those considerations must be looked to, not to balance competing interests, but to determine whether the circumstances are sufficiently exceptional to justify overriding the general prohibition against warrantless searches of the home.

In addition to having no lawful authority to search the bedroom, the ABQB said the police had no grounds to search the accused’s cameras. Initially, an officer claimed she ordered the search of the camera because she had noticed it sitting at a suspicious angle. However, when she was further examined and shown the contradictory photos she took at the scene, she changed her testimony and acknowledged she may have been “mistaken” about her recollection on that point. The Information to Obtain (“ITO’s”) in this case stated that both cameras were found on the bedroom floor. In any event, the officer acknowledged she had no reasonable grounds when in her evidence she admitted that when she saw the first camera, she did not know what she would find on it, and had no information to suggest that anyone had filmed any sexual activity. The second camera was searched because of the contents of the first camera.

In her evidence, the officer also testified that she was not in possession of a search warrant when she seized the cameras and did not consider getting one because the cameras were “in plain view”. The ABQB concluded that the plain view doctrine had no applicability in these circumstances, and could not be used to justify the search and seizure of the cameras.   In order for the plain view doctrine to apply, the court said an officer must come across a piece of evidence “in circumstances where it is at once obvious and visible without positive action on the officer’s part to make it observable, he has the right to seize it.” The constable had no idea what, if any, data might be stored on the camera when she ordered it searched. She instructed an officer to pick the camera up and turn it on for the specific purpose of determining its contents. The images or data contained on the camera were not in plain view; and the police purposefully searched the devices in order to view the impugned data. Recourse to the plain view doctrine in the particular facts of this case is without lawful justification.

The ABQB concluded that the Crown had failed to establish that the warrantless searches of the accused’s bedroom and cameras were lawful. As such, the illegally-obtained information collected during the course of these searches must be excised from the ITOs and the video evidence in this case must be excluded under section 24(2) of the Charter.

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