Monthly Archives: April 2022

An arrest based upon a mistake of law is unlawful and contrary to Section 9 of the Charter

Firstly, it took me a while to wrap my brain around this one to make sure I had the decision clear before posting. In the same interaction, police conducted both an unlawful search, but later a lawful search of the same individual. Let’s start with the facts in brevity (R. v. Tim 2022 SCC 12):

A member of the public called 9-1-1 to report a single-vehicle collision on Memorial Drive in Calgary. The driver’s car had veered off the road, hit a roadside sign, and continued for about a kilometer before it became disabled. Fire, medical, and police services rushed to the scene. The driver (and lone occupant) was standing at the side of the road talking to a firefighter when a police officer arrived. The officer, suspecting that the driver had fled the scene of the collision, approached him and asked if he had been involved in an accident. The driver acknowledged that he had hit the sign, but he claimed that he could not stop. The officer asked the driver for his driver’s licence, vehicle registration, and proof of insurance. The driver said he would get the documents from his car. The officer followed him as he did so. When the driver opened the driver-side door, the officer saw a small ziplock bag containing a single yellow pill near the window controls in the door area. The driver’s eyes motioned to the pill, and he quickly swiped it to the ground outside of the car, as if he were trying to hide it. The officer recognized the pill as gabapentin, which he had seen trafficked on the street with illegal drugs such as fentanyl and methamphetamine. Because the officer believed that gabapentin was a controlled drug under the CDSA, he immediately arrested the driver for possession of a controlled substance. After the driver was arrested, the police conducted four searches:

  • In the first search, the officer conducted a pat-down search of the driver incident to arrest. This search revealed live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two pills later identified as hydromorphone (an opioid and controlled substance under the CDSA), two pills later identified as alprazolam (a tranquillizer and controlled substance under the CDSA), another gabapentin pill, three cell phones, and $480 in cash.
  • In the second search, another police officer, who arrived moments before the arresting officer placed the driver under arrest, searched the driver’s car incident to arrest. He found a folded serrated knife, a canister of bear spray, four fentanyl pills, and two pills later identified as alprazolam.
  • In the third search, the arresting officer searched the driver again because he became concerned that the first search might have missed some items. His suspicions were aroused because the driver was walking strangely while being taken to the patrol car: he was limping and shaking his leg, as if he had something hidden in his pants or falling down his pant leg. The officer then saw .22 calibre ammunition fall from the leg of the driver’s pants. While searching his person, the officer touched the outside of the driver’s pants in his groin area and felt a metal object. A double-barrelled handgun immediately fell from his pants. The gun was loaded with two live rounds, one in each barrel.
  • In the fourth search, the driver was strip searched at the police station. He was asked to strip down to his underwear and an officer searched around his waistband to see if he had hidden anything else. No more contraband or weapons , etc. were found.

Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary. By way of reminder for this post, Sections 495(1)(a) and (b) of the Criminal Code provide that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” or “a person whom he finds committing a criminal offence”. Unfortunately, the officer arrested the driver for possession of gabapentin specifically. The officer knew the facts — he correctly identified the pill as gabapentin at the time he saw it — but mistakenly concluded that possession of gabapentin was an offence, when, in law, it was not, because that drug is not a controlled substance under the CDSA. Justice Mahmud Jamal, writing for the majority, said the court is not suggesting that the police must see and correctly identify a specific drug from the hundreds of controlled substances under the CDSA before they may lawfully arrest a suspected drug offender. Police routinely arrest suspected drug offenders for potential infractions of the CDSA, even when they do not see or identify specific drugs. Courts routinely uphold the legality of such arrests, if they conclude that there were reasonable grounds to arrest, but in this specific case, “If the offence that the police officer believes has been committed simply does not exist, the officer does not have the power to … arrest the person…”.

Turning now to the four searches, this is where things were muddied, but I believe I have it figured out (here’s hoping):

  • The first two searches — the initial pat-down search of the driver and the search of the driver’s car on discovering the gabapentin — were purportedly conducted incident to arrest, which must meet three conditions: (1) the person searched is lawfully arrested; (2) the search is “truly incidental” to the arrest, i.e., for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably. Here, the initial pat-down search of the driver and the search of his car incident to arrest falter on the first condition: he was not lawfully arrested. Thus, the first two searches necessarily breached s. 8 of the Charter.
  • The third search was purportedly undertaken incident to an investigative detention. How you ask? Well, the police’s interaction with the driver was at first a traffic collision investigation. The arresting officer testified that he came to where the driver’s damaged car had stopped and approached him because he suspected that he had fled the scene of a collision with a roadside sign. In doing so, the officer was properly exercising investigatory powers under Ontario provincial traffic law (I won’t expand on this authority in this post) and the Criminal Code (under s. 320.16(1) of the Criminal Code, it is an offence, in certain circumstances, to fail to stop after a traffic accident). R. v. Mann 2004 SCC 52 recognized that the police have a common law power to search incident to investigative detention under certain circumstances. Speaking for the majority in Mann, Iacobucci J. stated that “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” (para. 45). He added that a police officer “may engage in a protective pat-down search of the detained individual” when the officer “has reasonable grounds to believe that his or her safety or that of others is at risk” (para. 45). In addition, both the investigative detention and the pat-down search “must be conducted in a reasonable manner” (para. 45; see also R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20 and 29-31). Speaking for the majority in Tim, Justice Jamal read the officer’s evidence in context as expressing concern for whether he might have “missed some items” that would pose a safety risk to himself or to others. The officer had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. The obvious “something” was a gun, said the court. When there are concealed bullets, there may be a concealed gun. The further pat-down search of the driver, in which the officer dislodged a loaded handgun by merely touching the outside of the his pants, was also conducted reasonably. This search did not breach s. 8 of the Charter.
  • The fourth search, the strip search (although nothing further was found), was also ruled to be lawful: reasonable grounds exist to justify a strip search “where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest” (R. v. Ali 2022 SCC 1, at para. 2; see also R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 94 and 111). The strip search must also be conducted reasonably, in a manner that “interferes with the privacy and dignity of the person being searched as little as possible” (Golden, at para. 104). Here, the driver was lawfully arrested for the weapons offences after the ammunition and the handgun fell from his pants. The officer testified that, following the third search, he “seized the items that fell onto the ground out of [the driver’s] pant leg … and then [he] placed the [driver] in [his] vehicle, where he was chartered and cautioned”. The strip search at the police station was incident to this weapons arrest, because it was for the purpose of discovering concealed weapons or evidence related to the offence for which the driver was lawfully arrested, it was minimally intrusive as it was conducted reasonably, in a manner consistent with the SCC’s guidelines for strip searches (see Golden, at paras. 101-2). It was performed at the police station, it was limited to the driver’s underwear waistband, and the driver wore his underwear throughout the search. It therefore did not infringe s. 8 of the Charter.

So, to sum up, the majority of the SCC found that the initial pat-down search of the driver and the search of his car infringed s. 8 of the Charter (because he was arrested, and his car search, incident to an unlawful arrest for a drug not controlled under the CDSA), but the further pat-down search and the strip search did not as it was incident to an investigative detention (e.g., 320.16(1) CC) for a traffic collision investigation, the officer had concerns for his safety given that he had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. This lead to an arrest for weapons offences and a subsequent strip search.

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Search incident to arrest considered in detail and modified in relation to residential arrests.

It appears this is the first time that the Supreme Court of Canada has pointedly considered the search incident to arrest power applied inside a home. In R. v. Stairs 2022 SCC 11, a call was placed to 9-1-1 to report a man repeatedly hitting a woman in a car. Police officers located the car parked in the driveway of a house. They knocked on the front door and loudly announced their presence, but no one answered. Fearing for the woman’s safety, they entered the house. A woman with fresh injuries to her face came up a flight of stairs leading from the basement. The accused then ran past the bottom of the staircase and barricaded himself in the basement laundry room, where he was arrested a short time later. After the arrest, the police conducted a visual clearing search of the basement living room area, from which the accused and the woman had just emerged. During the search, the police saw a clear container and a plastic bag in plain view containing methamphetamine (over 90 grams). The accused was charged with possession of a controlled substance for the purpose of trafficking, assault, and breach of probation.

The accused brought a pre-trial application alleging, among other things, violations of his right against unreasonable search and seizure protected by s. 8 of the Charter. The trial judge found no breach of s. 8 and no basis to exclude the methamphetamine. She held that it was reasonable for the officers to do a quick scan of the basement living room after the accused was arrested, that the search had a valid objective, and that the search and resulting seizure were lawful. The accused was convicted of all charges. He appealed his conviction for the drug offence on the basis that the drug evidence was improperly admitted. A majority of the Court of Appeal upheld the conviction, holding that the search and subsequent seizure of the methamphetamine did not breach the accused’s s. 8 Charter rights. The majority was of the view that the search was a search incident to a lawful arrest, that the common law standard for search incident to arrest applied, and that the search of the basement living room met this standard. The accused’s appeal was dismissed by a 5-4 SCC majority on the reasonable suspicion standard for searches incident to arrest inside a home.

The SCC discussed that the baseline common law standard for search incident to arrest requires that the individual searched has been lawfully arrested, that the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest, and that the search is conducted reasonably (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 21 and 27). In the past, the SCC has tailored this standard in several contexts to comply with s. 8 of the Charter. The search incident to arrest power has been eliminated for the seizure of bodily samples (R. v. Stillman, [1997] 1 S.C.R. 607), and the standard has been modified in other situations presenting a heightened privacy interest in the subject matter of the search, such as strip searches, penile swabs, and cell phone searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; Fearon).

In the present case, the appeal to the SCC raised two issues: (1) whether the search of the basement living room incident to arrest was unreasonable, contrary to s. 8 of the Charter; and (2) if so, whether the methamphetamine seized by the police should be excluded under s. 24(2) of the Charter. This post will focus on the 1st issue.

In short, the SCC has enunciated a two-part analytical approach for determining whether the common law standard for search incident to arrest should be modified to comply with s. 8 of the Charter …:

(1) Stage One: Determine whether the search satisfies the common law standard for search incident to arrest.
(2) Stage Two: If so, determine whether the standard must be modified to comply with s. 8 of the Charter, given the particular privacy interests and law enforcement objectives at stake.

The SCC said that the common law standard of search incident to arrest should be modified — and made stricter — to reflect an accused’s heightened privacy interest in their home, depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply. However, where the area is outside their physical control, but it is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:

  • the police have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search; and
  • the search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home (as a general rule, the police cannot use the search incident to arrest power to justify searching every nook and cranny of the house. A search incident to arrest remains an exception to the general rule that a warrant is required to justify intrusion into the home. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion. Further, it would be good practice for the police to take detailed notes after searching a home incident to arrest. They should keep track of the places searched, the extent of the search, the time of the search, its purpose, and its duration).

In Stairs, the dynamic before and during the arrest and the nature of the offence for which the accused was arrested were factors that figured prominently in the reason-to-suspect analysis. The situation was volatile and rapidly changing, and the arrest was for domestic assault. In domestic violence cases, the police are not only concerned with the privacy and autonomy of the person arrested; they must also be alert to the safety of all members of the household, including both known and potential victims, said the majority. In addition, the search was conducted reasonably. It took place right after the arrest and the police merely conducted a visual scan of the living room area to ensure that no one else was present and that there were no weapons or hazards. The spatial scope of the search was appropriate: the living room was part of the surrounding area of the arrest, it appeared to be a common living room space, and the police engaged in the most cursory of searches, which was the least invasive possible. The search of the living room incident to arrest did not violate the accused’s s. 8 Charter right, and the evidence from the living room search was therefore properly admitted at trial because.

Given the factual matrix of this case, the SCC mentioned that it was not necessary to decide whether reasonable suspicion also applies to investigation-related purposes, such as evidence preservation and evidence discovery. They left that issue for another day.

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