Monthly Archives: March 2017

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

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

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

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

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

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

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

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

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

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

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

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

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Exigent circumstances in s. 11(7) CDSA denotes urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety, or public safety, and those circumstances must render it “impracticable” to obtain a warrant.

R. v. Paterson 2017 SCC 15 – three officers responded to a 911 call from a woman, C.W., who was crying and apparently injured. After speaking to the caller’s mother who directed them to Paterson (C.W.’s boyfriend), the officers attended at Paterson’s apartment building. C.W.’s mother also told the officers that Paterson had a shotgun. The building manager gave them Paterson’s apartment number, and told them that C.W. had been taken to the hospital with unknown injuries (C.W. would later tell police that she had accidentally slipped and hit the back of her head, and that Paterson did not cause her injury). After police repeatedly knocked on Paterson’s apartment door and announced their presence, he opened the door. As he did so, one of the officers noticed the odour of raw and smoked marihuana.

After questioning Paterson about the 911 call and satisfying themselves that no one was in need of assistance, the officers asked him about the odour. He first denied its source, then acknowledged possessing some unconsumed portions of marihuana “roaches” in his residence (three roaches). The officers explained that they would have to seize the roaches, but that they would treat this as a “no case” seizure, meaning that they intended to seize the roaches without charging him. One officer testified to considering obtaining a warrant, but decided not to and instead simply seize the roaches so that he and the other officers could be on their way. Paterson agreed to hand over the roaches and attempted to close the door, but an officer blocked the door with his foot and said he would not let Paterson out of his sight. He testified having done so out of concern that Paterson would destroy the roaches, and for “officer safety”. One officer followed Paterson into his residence, and another officer followed out of a concern that it was unsafe for one officer to be alone with Paterson.

Once inside, Paterson grabbed a bag containing the roaches to hand over to the officers. As he did so, an officer observed a bulletproof vest on a couch, a handgun on an end table, and a bag of pills (which he believed to be ecstasy) on a speaker stand. The officers immediately arrested and searched Paterson, finding a cell phone and a large amount of cash. A sweep of the residence revealed two large bags of pills (also believed to be ecstasy) and a bag of what appeared to be crack cocaine on a closet shelf. After securing the residence, telewarrants were obtained under s. 11(1) and (2) of the CDSA and s. 487.1 of the Criminal Code.  From the arrest and search, police found 825 grams of cocaine, 200 grams of methamphetamine, 9,000 ecstasy pills, a small amount of marihuana (simple possession), a small amount of oxycodone (simple possession), a loaded Smith and Wesson 38 special revolver (a prohibited firearm), a loaded Ruger P85 9-millimeter semi-automatic pistol (a restricted firearm), a loaded Ruger P90 45-calibre semi-automatic pistol (a restricted firearm), a loaded 1M1 Desert Eagle 44-calibre Remington Magnum semi-automatic pistol (a restricted firearm), $4,655 in cash on his person, $30,000 in cash was found in a box located underneath a couch in the living room area, and a bulletproof vest on the same couch.

The trial judge convicted Paterson on all counts, and the BCCA upheld the decision. The SCC reviewed existing jurisprudence in this area and said the common theme emerging from these descriptions of “exigent circumstances” in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7), said the SCC. Those circumstances must render it “impracticable” to obtain a warrant. At para. 34:

…exigent circumstances must be shown to make it impracticable to obtain a warrant. In other words, “impracticability”, howsoever understood, cannot justify a warrantless search under s. 11(7) on the basis that it constitutes an exigent circumstance. Rather, exigent circumstances must be shown to cause impracticability.

Defence submitted that the definition of “exigent circumstances” found in s. 529.3(2) of the Criminal Code should be applied to define “exigent circumstances” as it appears in s. 11(7) of the CDSA. This would have the effect of requiring police to demonstrate either that entry was necessary to prevent imminent bodily harm or death, or that entry was necessary to prevent the imminent loss or destruction of evidence relating to the commission of an indictable offence — neither of which could have been established on the facts known to the officers prior to entry in this case. The SCC rejected that submission, ruling instead that in order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.

According to the SCC, the officers could have (1) tried to obtain Paterson’s lawful consent to enter his apartment and seize the roaches; (2) arrested Paterson and obtained a warrant to search his apartment and seize the roaches; or (3) thrown up their hands and walked away, in dereliction of their duty to seize illicit drugs, even if only to catalogue and destroy them. At para. 39:

With respect, the prospect of the appellant destroying roaches which the police officers hoped to seize on a “no case” basis and destroy themselves, with no legal consequences to the appellant whatsoever, did not remotely approach s. 11(7)’s threshold of exigency. No urgency compelled immediate action in order to preserve evidence. Nor, just as importantly, did the circumstances presented by the appellant’s admission to having some partially consumed roaches, coupled with the police officers’ wish to seize them on a no case basis, make it impracticable to obtain a warrant. Inconvenient or impractical, perhaps. But s. 11(7) is not satisfied by mere inconvenience, but impracticability. In this case, the police had a practicable option: to arrest the appellant and obtain a warrant to enter the residence and seize the roaches. If, as the Crown says, the situation was not serious enough to arrest and apply for a warrant, then it cannot have been serious enough to intrude into a private residence without a warrant.

As for the matter of officer safety (one officer following the other officer into the apartment), the SCC said given the report from C.W.’s mother about the possibility of Paterson having a shotgun, this concern was well-founded. It was not, however, that concern which prompted the first officer’s entry itself. At para 40:

…”really related to [the two officers] attempt to carry out the seizure in a less intrusive way”. In other words, concern for officer safety did not drive the decision to proceed with warrantless entry; rather, warrantless entry gave rise to concern for officer safety.

In the end, the SCC ruled that the warrantless entry by the police into Paterson’s residence was not authorized by s. 11(7) of the CDSA, and infringed his right under s. 8 of the Charter to be secure against unreasonable search:

The evidence obtained as a result of the entry and search of P’s residence should be excluded under s. 24(2) of the Charter as its admission would bring the administration of justice into disrepute. The police conduct, while not egregious, represented a serious departure from well-established constitutional norms. These police officers were not operating in unknown legal territory: their intention to effect a seizure on a “no case” basis was legally insignificant, in light of the well-established legal principles governing the authority of police to enter a residence without a warrant.

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Drug recognition experts (DREs) under Section 254(3.1) of the Criminal Code can testify without an expert evidence voir dire

R. v. Bingley 2017 SCC 12 – after Bingley was observed driving erratically, the police were called. One of the officers, a certified drug recognition expert (DRE) under the Criminal Code, conducted a standard field sobriety test. Bingley failed the test and was arrested for driving while impaired by a drug. At trial, the prosecution called the DRE to explain the results of his drug recognition evaluation as evidence of Bingley’s impairment. The prosecution relied on s. 254(3.1) of the Criminal Code as establishing the admissibility of the DRE’s testimony and argued that no voir dire was required. The judge at the first trial allowed the DRE to testify as an expert regarding the results of the drug recognition evaluation without a voir dire, but acquitted Bingley. On appeal, the acquittal was overturned and a new trial ordered. The second trial judge held that the DRE could not be qualified as an expert because he was not trained in the science underlying the drug recognition procedure. He also concluded that the evidence was not admissible lay opinion. He acquitted Bingley. The prosecution successfully appealed the second acquittal. The summary conviction appeal judge held that s. 254(3.1) of the Criminal Code rendered a DRE’s opinion automatically admissible and that in any event, it would be admissible lay opinion. The Court of Appeal held that the DRE’s opinion evidence was admissible without a voir dire. Section 254(3.1) of the Criminal Code allowed a DRE “to determine” whether an individual was impaired due to a drug or a combination of drugs and alcohol. It was implicit that this determination was automatically admissible as opinion evidence, the Court opined. Bingley appealed to the SCC.

The SCC, in a majority decision, ruled that drug recognition experts (DREs) under s. 254(3.1) of the Criminal Code can testify without an expert evidence voir dire as the underlying science has been presumed established by Parliament:

The majority, at para. 12, ruled that:

“The purpose of s. 254(3.1) of the Criminal Code confirmed that a DRE’s opinion was not automatically admissible at trial. Section 254(3.1) gave the police investigative tools to enforce laws against drug-impaired driving. It did not dictate whether evidence obtained through the use of those investigative tools would be admissible at trial. When Parliament intended to make evidence automatically admissible, it said so expressly. As s. 254(3.1) of the Criminal Code did not speak to admissibility, the common law rules of evidence applied.”

At para. 14:

“Expert evidence analysis was divided into two stages. First, the evidence had to meet the four Mohan factors: (1) relevance, (2) necessity, (3) absence of an exclusionary rule, and (4) special expertise. Second, the trial judge was required to weigh potential risks against the benefits of admitting the evidence.”

The SCC said the only issue in this case was whether the DRE had special expertise as required by the fourth Mohan factor. Bingley conceded that the proposed evidence was logically relevant, necessary, and not subject to any other exclusionary rule. Further, Bingley did not argue that the evidence should be excluded because its prejudicial effect outweighed its probative value.

Knowledge of the underlying science was not a precondition to the admissibility of a DRE’s opinion, said the SCC. The basic requirement of expertise for an expert witness was that the witness had expertise outside the experience and knowledge of the trier of fact, which the DRE in this case did. DREs received special training in how to administer the 12-step drug recognition evaluation and in what inferences could be drawn from the factual data they noted. It followed that the DRE’s evidence was admissible in this case.

Where it was clear that all the requirements of a common law rule of admissibility were established, the trial judge was not obliged to hold a voir dire to determine the admissibility of the evidence. The trial judge correctly found that the DRE in this case was an expert for purposes of administering the 12-step evaluation and determining whether Bingley was driving while impaired for the purpose of requiring further testing. He erred, however, said the SCC, in concluding that because the officer was not an expert in the scientific foundation of the various elements of the test, none of his opinion evidence was admissible.

At para. 26:

“…Reliability is not assessed in a vacuum. Parliament has established, through the adoption of the Regulations, that the 12-step drug evaluation is sufficiently reliable for the purpose of a DRE’s determination of impairment under s. 254(3.1). The scope of a DRE’s expertise is limited to that determination, and it is only for the purpose of making that determination that Parliament has established the 12-step drug evaluation’s reliability.”

At para. 27:

“… He is thus an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). His expertise has been conclusively and irrebuttably established by Parliament.”

At para. 30:

“… Limitations, such as the absence of a standardized approach to weighing the various tests in reaching a determination, may affect the probative value of a DRE’s opinion evidence. A DRE may be unable to explain how he or she made the determination based on the application of the 12-step evaluation. If the probative value of an individual DRE’s evidence is so diminished that the benefits in admitting the evidence are outweighed by the potential harm to the trial process, a trial judge retains the discretion to exclude that evidence. I reiterate here that the focus of the analysis must be on the DRE’s administration of the evaluation, not on the reliability of the steps underlying the evaluation, which have been prescribed by Parliament.”

At para. 31:

“It is also important to note that the determination of the DRE is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug. The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge or jury to consider.”

And, finally, at para. 32:

“That Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact’s ability to critically assess a DRE’s conclusion of impairment or an accused person’s right to test that evidence. Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer’s conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE’s assessment, as may evidence of bystanders or other experts. It will always be for the trier of fact to determine what weight to give a DRE’s opinion. Any weight given to a DRE’s evidence will necessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment.”

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Accused referred to duty counsel minutes after call to counsel of choice’s office went to voicemail.

R. v. Losier 2016 NBQB 213 – Losier, a former police officer, had been found guilty of having the care or control of a motor vehicle; he appealed his conviction. The accused had clearly expressed his desire to speak with the lawyer of his choice, so an officer called the lawyer’s office at the number which appeared in the yellow pages of the telephone directory. Not surprisingly, given that it was past midnight, the call went to his voice mailbox. One or two minutes later, the officer called the number for Legal Aid and left a message. Four minutes later, a lawyer from Legal Aid returned her call and Losier was able to speak with a lawyer.

The court said calling a lawyer’s office at night and reaching his voice mailbox is not sufficient to show that a reasonable effort has been made. The police officer could have tried, among other things, to find [the lawyer’s] home phone number or asked Losier if he knew of a way to reach the lawyer of his choice. Between the time the call was placed by the officer to the lawyer of choice’s office and the end of Losier’s conversation with the Legal Aid lawyer, only eight minutes elapsed. This was a short lapse of time for Losier to clearly waive his right under s. 10(b) of the Charter, said the court. Approximately one minute elapsed between the time the call was placed to the lawyer of choice’s office, which went unanswered, and the initial call was placed to Legal Aid. The accused did not have a long time to think about his right and the police officer did not offer him another opportunity to contact him or another lawyer of his choice. She did not even advise him that this was a possibility. Moreover, it was clear from her testimony, in which she stated that she had never called a lawyer in the middle of the night before, that it was not her intention to do so that night either.  The trial judge found:

To simply place a call to a lawyer’s office in the middle of the night, on a weekend no less, a call that went to the voice mailbox, and less than a minute later to offer a lawyer, another lawyer that was not the lawyer of his choice, such a scenario is very far from being reasonable and logical. Nothing constituted compelling or urgent circumstances. Jurisprudence has correctly held that the right to counsel, including the right to consult with the lawyer of one’s choice, takes precedence over the Crown’s right to rely on […] the presumption of identity under s. 258(1)(c) of the Criminal Code of Canada. Moreover, the two-hour limit to take advantage of this presumption had far from expired. […] In this case, therefore, the accused did not have a reasonable opportunity to reach the lawyer of his choice.

Nonetheless, the trial judge did not find that the accused’s right under s. 10(b) of the Charter had been breached:

The issue now is to determine if the accused in this case waived his right to consult with the lawyer of his choice by agreeing to speak with a lawyer from Legal Aid and by informing the officer that he was satisfied with their conversation. Regardless of the fact that the accused had been a police officer, even if he had been a lawyer […] specializing in criminal law, particularly in the area of impaired driving, no one, in these circumstances, can be one’s own best legal advisor, especially given that there was a real possibility that his judgment was impaired as a result of having consumed drugs or alcohol. Everyone has the right to receive the advice of a lawyer, including the lawyer of one’s choice. However, one must take into account the version of the accused, who testified to having been a police officer. As per his experience as a police officer, the accused were given ample time to contact the lawyer of their choice, before it was suggested to them that they contact another lawyer, one from Legal Aid for example. In his own words, the accused testified that they did not ask him, that they politely suggested contacting Legal Aid, and he agreed to it, that he was not there to cause trouble for anyone, that nothing would be gained by insisting or arguing. Then, after speaking with the lawyer from Legal Aid, he frankly admitted that he had been satisfied with the consultation he had had with the lawyer that the officer had suggested to him. Given his experience and knowledge, and that his discussions with the police had been cordial and polite, something he himself admits, one could expect that he would have told them about his concern regarding the fact that he was not afforded a reasonable amount of time to contact [the lawyer of his choice]….

The NBQB disagreed, ruling Losier’s right to retain and instruct counsel without delay and to be informed of that right was breached. The court was also of the view that the judge erred in law when he concluded that the accused had waived his right to counsel. He also committed an error of law when he based his finding on the accused’s experience as a police officer as well as on the discussions between the accused and the police officers, which were cordial.

The qualified technician’s certificate was excluded from evidence and an acquittal entered on appeal.

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Unlawful arrest based on bare tip and neutral observations

R. v. Basanez and Quilop 2017 ABCA 70 – police received an anonymous tip the accused was involved in cocaine trafficking. No further details were provided regarding the accused or the informant’s past involvement with police, if any. There was no indication whether the informant’s information was first-hand or hearsay. Police placed the accused under surveillance and observed interaction with another individual suspected of drug trafficking based on a similarly undetailed, uncorroborated tip. The following day, police observed the accused have brief meetings with two individuals. After the first meeting, the individual exited the accused’s vehicle after two minutes carrying an object the size of a baseball. The second meeting involved the accused enter the apartment of another person whom the police suspected of drug trafficking, having been informed by another anonymous tipster a year prior that this other person was engaged in drug trafficking. However, once again there was no evidence with respect to the reliability of this information or the credibility of the informant. Furthermore, there was no evidence that this other person was ever charged with trafficking in drugs or that he had been convicted in the past of trafficking in drugs.  The accused exited the apartment carrying a small pouch. Police arrested the accused hours later, seizing 30 bags of cocaine and crack cocaine, cash and cell phones in a search incident to arrest of the accused’s vehicle. The trial judge determined police had reasonable grounds to believe the accused had committed an indictable offence. The arrest was ruled lawful and the accused was convicted. The accused appealed.

The appeal court discussed that there are two fundamental requirements for a lawful arrest. The first requirement is fairly straightforward. The peace officer who arrests a person or the peace officer who decides and directs than a person ought to be arrested must subjectively believe that the person to be arrested has committed or is about to commit an indictable offence. The second part of the test is not so straightforward. The grounds upon which the peace officer arrests the person must be objectively justifiable in the sense that a reasonable person in the position of the peace officer, with all of his or her training and experience, must also be able to come to the conclusion that there were reasonable grounds for the arrest or detention.

It was the lead police investigator who decided that the accused should be arrested, notwithstanding that it was the commanding officer (the officer in charge that day) who actually gave the instruction to make the arrest to the arresting officers. The court found that it is the peace officer who decides that an arrest be made who must have reasonable and probable grounds, even if that officer does not perform the actual arrest: R. v. Debot, [1989] 2 SCR 1140 at 1166-1167, [1989] SCJ No 118.  So, the trickier issue on this appeal was whether the lead investigator had reasonable and probable grounds to arrest the accused.

The only evidence which directly supported a credibly-based probability that the accused was committing the offence was the hearsay evidence of the anonymous informant that the accused was dealing in drugs. That evidence, together with the evidence of behaviour which may have indicated some form of in-person transactions, might have formed the basis of credibly-based probability. However, the surveillance information consisted of three observations over two days and only two of the observations were said by police to be consistent with illegal drug activity. The observations were of extremely short duration. They took place in a matter of minutes. Not much was observed. There was no evidence of the accused using a cellphone. There was no observation of a hand-to-hand exchange. There was no evidence that anything transpired in the residence or the vehicles the accused was observed to have entered and exited. Furthermore, there was nothing connecting the persons the accused met or the residence he visited to known drug dealers. And there was no evidence of evasive or counter-surveillance tactics by the accused, for example.

The Crown argued that it would be difficult to imagine an innocent explanation for what the police observed. The court disagreed. People buying and selling items online, from small collectibles to hockey tickets, for example, often conduct transactions in their homes or cars or on the street. And such transactions can be extremely brief where the parties have previously agreed on price or where the transaction is conditional upon a cursory inspection by the buyer. So, although hand-to-hand exchanges which, in the officer’s experience, may be typical of drug transactions, there are also many innocent circumstances one person may hand a small object (such as a key or an earring) to another. Without information about the individuals or the building, for example, the fact of a hand-to-hand exchange does not elevate the circumstances to the objectively reasonable level necessary to justify detention, without more.

The ABCA, therefore, concluded that the trial judge erred in finding that the grounds for the accused’s arrest were objectively justifiable, and hence, the absence of reasonable and probable grounds for the arrest meant the accused’s arrest was arbitrary and therefore unlawful under section 9 of the Charter. There being no basis for the arrest, the search of the vehicle was not a search incidental to a lawful arrest and involved a breach of section 8 of the Charter.

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Police swabbing of the external door handle of the accused’s vehicle constitutes a search within s. 8 of the Charter

R. v. Wong 2017 BCSC 306 – the accused were charged with seven offences arising from the discovery of a methamphetamine lab and a loaded firearm; the two accused were the occupants of the house and had been under investigation by the police for several months before the execution of the search warrant. Police employed various investigative methods, including a tracking warrant, a transmission data recorder warrant and assistance order, a DNA warrant, warrantless video surveillance (more on this later), and warrantless searches and seizures involving seizure of garbage and swabbing of motor vehicles on various occasions.

The accused’s garbage was collected from the garbage bin left by the accused for garbage pickup in the back lane of the residence on two occasions. On another occasion, the accused was observed by the police removing a black garbage bag from the trunk of his vehicle, a white Toyota Echo, and deposit the bag in a dumpster located at the rear of a Fido store. Tests revealed trace particles of cocaine and methamphetamine on the knot of the garbage bag in one case, and trace particles of heroin, cocaine and methamphetamine on the bag and on the flex vent pipe in the other. The court found no Charter breach in relation to the garbage seizures (cited R. v. Patrick, 2009 SCC 17, and R. v. Edwards [1996] 1 S.C.R. 128, etc.).

The police swabbed the driver’s side door handle and trunk latch on Wong’s vehicle and further swabs from the same areas were again obtained some 12 days later. The swabs were tested by an ion scanner and trace particles of cocaine were detected. Neither the defence nor the Crown provided the Court with any case law specifically considering whether swabbing the handles/latches of a motor vehicle amounts to a search or seizure within the meaning of s. 8 of the Charter. The vehicle was parked in a public location, but defence submitted that Wong had a reasonable expectation of privacy in the information that could be extrapolated from this form of testing activity; and, parking a vehicle in a public location did not constitute abandonment of the owner’s privacy interest in such information.

In the court’s view, it would be objectively reasonable for Wong to have privacy expectations in the information that might be obtained through the swabbing of his vehicle. Undoubtedly, the parking of the vehicle in a public place meant it was subject to visual examination by anyone who passed by, including the police. If such visual examination revealed evidence that could be secured without physically touching the vehicle, for example through photography, any expectation of privacy would not be objectively reasonable. If, on the other hand, the evidence was not visible to the naked eye and could not be obtained except through physical contact with the vehicle, such trespass militated in favour of requiring consent or, in the absence of consent, a judicial authorization permitting same. Said the court, this conclusion is perhaps reinforced when one considers that the evidence secured through such swabbing might well include DNA of the vehicle’s owner-operator and the potential to thereby expose biographical information of a potentially intimate and personal nature. The court concluded that the warrantless swabbing by the police of Wong’s vehicle amounted to unreasonable search and seizure within the meaning of s. 8 of the Charter.

Now, returning to issue of the warrantless video surveillance, the ITO reported observations obtained from video camera recordings of activities occurring in the rear driveway and backyard area of the residence. The activities essentially comprised of Wong removing objects from his vehicle and carrying objects into the garage or carrying objects from the garage into the residence through its rear door entry. At various times, the objects included plastic bags, a canvas bag, a sack, plastic buckets, and garbage bags. Within these paragraphs, the affiant also expressed opinions and conclusions that Wong was transporting or transferring chemical precursors and other materials into the house to be used in the making of methamphetamine.

The ITO was silent as to the manner in which the video camera was installed and operated, but viva voce evidence provided that the camera was installed on a power line approximately 2 feet south of a utility pole nearest the corner of a street and the alleyway behind the accused’s residence. The wire on which the camera was installed was approximately 20 feet above street level and installation was done using a bucket truck parked on the alley side of the utility pole. The camera was small and shielded; it had no microphone or audio capability, and it had a fixed focal lens without zoom. The camera was angled so that it would record a view of the backyard, the garage, a tent garage, and the rear of the house, all from the perspective of the rear corner of the yard in the alleyway.  Later, police installed a network video recorder approximately two blocks away on other private property, with the consent of its owners; from that point forward, the video feed from the camera was recorded on the network recorder 24 hours a day until the equipment’s removal. Every 24 hours, the video recording was exported from the network recorder to a hard drive and then provided to the lead investigator on the file appropriately labelled with date, time, and location.

The uncontested evidence from the surveyor was that while the utility pole was not actually located on the property, the westerly face of the pole was leaning in such a way that it crossed over the airspace above the property line at approximately at a height of approximately 9 metres (29 feet). It was clear from the survey, however, that the eastern half of the pole and thus any wires attached to the alley-side of the pole did not cross the property line at any time. The court said that evidence of Wong moving back and forth between vehicle, house and garage, would have been plainly visible to any person observing the scene from the alleyway, but the question in this case was whether the warrantless installation and operation of a camera, recording activities on the property which were otherwise plainly visible from the alleyway, violated any reasonable expectation of privacy of a sort protected by s. 8 of the Charter

In the court’s view, three weeks of covert 24-hour video surveillance by the police, while creating a permanent electronic record of activities in the backyard of a private residence is precisely the type of investigative technique that s. 487.01 of the Criminal Code was designed to address. The failure of the police to obtain a general warrant authorizing such surveillance resulted in a violation of an individual’s rights under s. 8 of the Charter. Other courts have not found Charter violations in similar cases, so it may have been that since any unauthorized surreptitious video surveillance is a “pernicious threat to privacy”, it’s all the more so where the state is creating “a permanent electronic recording of one’s presence in a given location”.

 

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Whether the power to conduct a search incident to an investigative detention is restricted to a physical pat-down of the detainee?

R. v. Patrick 2017 BCCA 57 – someone had attempted to register a SUV in the name of a person whose identity had been stolen. During a patrol, a female officer recognized the SUV’s licence plate number from the complaint and stopped the vehicle. Patrick was driving the vehicle and it contained three passengers, all of whom were large men. The officer asked the driver who owned the vehicle, to which he replied a friend, but provided no other details. She asked for the vehicle registration documents, and the driver passed her a blue plastic sleeve with nothing in it. She noticed that the passenger seated in the front appeared to be sleeping, passed out, or unconscious, was difficult to rouse and no one else in the SUV seemed to know his full name or what was wrong with him. The occupant of the rear seat on the passenger side had two black eyes and a gash on his forehead, and although the officer could not say when the injuries had been inflicted, she thought that this person had been assaulted. She returned to her vehicle to conduct further background checks and request backup.

The officer ascertained the identity of the three passengers. All of them were involved in criminal activity and were known to be violent. The officer was concerned for her safety, considering Patrick could not say who owned the vehicle, one of the passengers looked like he had been assaulted, the front seat passenger appeared to be unconscious and no one was able to say what was wrong with him. The officer noted a bulge under the upper right shoulder area of Patrick’s jacket. The bulge was of concern to her because it seemed unnatural and was oddly shaped. She asked him whether he had something on him (“Do you have something on you?”). Patrick acknowledged that he did and patted the bulge. When the officer asked what he had on him, Patrick said a shotgun. Another officer reached inside Patrick’s jacket and pulled out a loaded shotgun. The barrel and butt stock had been sawed off. Patrick and the vehicle he was driving were searched incidental to his arrest.  This appeal focused on other issues, but I’ll restrict it to the investigative detention at roadside and the subsequent pat-down search.

The trial judge held that the questions asked of Patrick and the responses to those questions elicited violated his s. 8 Charter rights. Patrick conceded at trial the female officer was, on the authority of R. v. Mann, 2004 SCC 52, entitled to detain him at the roadside for investigative purposes. To highlight Mann at para. 40, the SCC also recognized that the general duty of officers to protect life may, in certain situations, give rise to the power to conduct a pat-down search incident to an investigative detention. To lawfully exercise this authority, the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. The decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified upon mere intuition or on the basis of vague or non-existent concerns for safety (see also R. v. MacDonald, 2014 SCC 3). In addition, the search must be conducted in a reasonable manner and the Crown bears the burden of demonstrating this on a balance of probabilities: Mann at paras. 36, 40.

The BCCA appeal said the central questions that arose on this appeal were: (1) whether the female officer had the power at common law to ask the respondent questions tailored to her safety-based concerns before conducting a pat-down search; and (2) if she did, whether the manner in which the search was carried out in this case — asking the respondent whether he “had anything on him” before patting him down — was a reasonable and justifiable use of that power. The first question was one of general application. The second question engaged considerations specific to this case.

The BCCA, at para. 102:

In my view, questioning a detainee about to be frisk searched as to whether they are in possession of anything that might cause the searching officer injury is minimally intrusive search. In some respects, it is less intrusive than a physical pat-down search. I would hold that narrowly tailored questions of this kind motivated solely by safety concerns are permissible. To use the language of Waterfield, asking a detainee whether they are in possession of anything that might cause injury to an officer about to execute a pat-down search constitutes a justifiable exercise of the powers associated with the duty of police officers to preserve the peace, prevent crime and protect life. That the search takes the form of minimally intrusive questioning as opposed to physical contact does not, standing alone, make the manner of the search unreasonable.

Of course, nothing compels a detainee to answer such a question. It stands to reason, however, that the police will be afforded additional latitude in determining the manner in which the search needs to be conducted if the detainee declines to respond, said the BCCA.

As to whether the questions asked by the female officer constituted a justifiable exercise of her common-law powers, the BCCA said the female officer testified that her questions were motivated by concerns about what Patrick was concealing under his jacket. In her mind, the question was the equivalent of asking Patrick what was being concealed under his jacket. The question appeared to have been so understood by Patrick because he responded by touching his right shoulder and advising her that he was in possession of a concealed shotgun. The officer was not permitted by the trial judge to give evidence on what the question “Do you have anything on you?” is understood to convey in the enforcement community. It was never put to the officer on the voir dire that she was motivated by anything other than safety concerns when she asked this question and it was not argued by Patrick that the officer was improperly using her limited common law authority as an evidence-gathering tool (which, as we appreciate – or should by now – would not be acceptable).

As a result, in the view of the BCCA, whether the officer’s inquiries exceeded the scope of her common law power is largely a fact-driven question that must also be resolved in the context of a new trial, and it so directed. Is an appeal to the SCC evident?  Time will tell.

 

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