Monthly Archives: October 2016

Investigative detention and use of force…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Filed under Investigative Detention, Safety Search, Search and Seizure, Use of Force

Know the lawful limits of your authority.

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

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

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

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

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

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

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

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

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

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Filed under Recent Case Law, Search and Seizure