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,  3 S.C.R. 408 and R. v. Nolet, 2010 SCC 24,  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,  3 S.C.R. 615,  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,  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,  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?
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. 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.