Category Archives: Arbitrary Arrest or Detention

Can an officer ask the vehicle passenger for his or her identification to run a CPIC query?

In R. v. Loewen 2018 SKCA 69, in the early morning hours, Loewen was a passenger in a vehicle being driven in Saskatoon. The vehicle was pulled over for speeding in violation of The Traffic Safety Act. The first of two officers spoke to the driver and asked him for his licence and registration. That officer then became aware of Loewen in the passenger seat and requested his identification as well. Both Loewen and the driver gave the officer their Saskatchewan Government Insurance [SGI] photo identification cards. The officer testified at trial that he recognized the driver as a known criminal, but he did not recognize Loewen.

The officer’s request for Loewen’s identification was not made in relation to any offence contrary to The Traffic Safety Act or any criminal offence. Rather, the officer testified that, when he conducts a traffic stop, he always requests identification from the passengers, if any, so it can be checked on the CPIC database. He does this “to find people who are either breaching court ordered conditions, wanted on warrants, outstanding criminals, that type of thing as part of [his] job”.

The officer took both identification cards back to the police vehicle and handed them to the second officer, who then conducted queries on CPIC and on a local police records system. The CPIC search indicated the driver had an outstanding warrant for his arrest in Alberta and a criminal record. Loewen was revealed to be a federal inmate on release, with conditions. The second officer called Corrections Canada’s National Monitoring Centre [NMC] to confirm the nature of those conditions, and learned that one of the conditions of Loewen’s release was that he not be in the presence of known criminals. The officer told the NMC official that Loewen was a passenger in a vehicle driven by such an individual.  The response? The NMC official indicated to the officer that the NMC would be issuing a warrant under the Corrections and Conditional Release Act for Loewen’s apprehension. The NMC official also advised the officer to take Loewen into custody.

The officers then proceeded to issue the driver of the vehicle a summary offence ticket for speeding, and Loewen was removed from the vehicle and arrested for breach of his release conditions; the driver then departed in the vehicle. Immediately upon his arrest and being advised of the reason for it, Loewen told an officer that his “parole” had expired two days prior. He was cooperative while so doing. The officer responded to Loewen by saying the NMC was issuing a warrant and the matter was no longer within his discretion.

An officer performed a roadside search of Loewen and located a number of items, including Loewen’s wallet, two cellphones, and some keys. Inside the wallet, he found a substantial amount of cash, later determined to be $1,615. Loewen was placed in the police vehicle, advised of his right to counsel and transported by the two officers to the police station. He again raised the concern that his “parole” had expired, including once as they approached the police station. The station detention officer searched Loewen and felt a bulge in the groin region of Loewen’s pants. The officer asked Loewen what it was and Loewen responded that it was cocaine and MDMA.

Loewen was then taken to a private interview room. On entering the room, he removed two packages of drugs from his underwear. A more thorough search was then conducted, during which Loewen’s clothing was removed. The packages were later determined to be 28.3 grams of cocaine and 28.1 grams of methylone. Loewen was arrested for possession of a controlled substance for the purpose of trafficking and was re-read the standard police warnings.

At trial, evidence showed that Loewen’s statutory release had, in fact, expired two days before his arrest and, as a result, he had not been in breach of any conditions. This led him to raise a number of Charter challenges in Provincial Court with respect to alleged infringements of his Charter rights to be free from arbitrary detention and unreasonable searches and seizures. The trial judge found there had been some violations of Loewen’s rights but ultimately concluded the evidence obtained through those violations, i.e., the drugs and the cash, should not be excluded pursuant to s. 24(2) of the Charter. Loewen was convicted on one count of possession of methylenedioxymethcathinone (methylone) for the purpose of trafficking and one count of being in possession of cocaine. He was sentenced to a total of 42 months imprisonment.

The appeal court found otherwise. Quoting from R. v. Mooiman 2016 SKCA 43, “[i]n the absence of some other suggestion of significant physical or psychological restraint, a passenger of a vehicle that is subject to a traffic-safety stop is simply a bystander and is not detained for the purposes of s. 9 of the Charter“, but here, the appeal court found that Loewen had been psychologically detained while the officers had his identification in their possession during the course of the CPIC and local records searches and during the course of their dealings with the NMC. Given that the police had no lawful authority to detain Loewen, it follows that this detention was arbitrary and hence a violation of s. 9 of the Charter. The court concluded that Loewen suffered a significant deprivation of his liberty when the officer took his identification back to the police car, for approximately a 30-minute time frame. An SGI identification card is not something that can be easily abandoned. A citizen in Loewen’s circumstances would have reasonably concluded he or she had no meaningful option but remain in the vehicle until the police returned with the identification, said the court (note: similar decisions in R. v. Harris, 2007 ONCA 574; R. v. Dale 2012 ONCJ 692 may assist).  This was not a case where Loewen was simply asked his name, or for his identification, but the officer took Loewen’s identification back to the police car for some time without advising him that he was being detained, nor was he given RTC or a caution, or given the option of declining to provide identification.

With this backdrop, the arrest was also ruled unlawful because no warrant of apprehension had yet been issued per s. 137(2) of the CCRA by the NMC and s. 137.1 did not come into play because the arresting officers had not considered it as a basis for arresting Loewen at the time.  As a result, it follows that a search conducted incidentally to it was a violation of s. 8 of the Charter.

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Profiling or ignorance of the law?

R. v. Gonzales 2017 ONCA 543 – this decision arose out of an investigation into a spate of daytime break-ins into homes in the southern part of York Region. Plainclothes police officers in unmarked vehicles patrolled the area, looking for suspicious activity. One such officer on patrol observed two young Latino men driving a rental van through a neighbourhood. The van pulled into a garage and the men entered the home. The officer made further inquiries and determined the vehicle rental was overdue. Five days later, the same officer saw the accused driving a similar van. The van continued past the home it stopped at during the prior sighting. The officer believed the van was avoiding him and conducted a traffic stop. The officer approached the van. He could see through the side windows that the van was full of large cardboard boxes. Each box was sealed closed. The officer was curious about the contents of the boxes. At the driver’s door of the van, the officer displayed his badge and warrant card. Gonzales, the driver, asked why he had been stopped. The officer told Gonzales that he wanted to ensure that Gonzales was a licensed driver entitled to operate the van. Gonzales handed over the documents the officer requested. The officer returned to his truck to verify the documents provided by Gonzales. He believed the occupants of the van were in possession of marihuana (the officer smelled fresh marihuana). He intended to arrest them for that offence. Although he was armed, the officer was not wearing a protective vest. He called for assistance to make the arrest and waited for other officers to arrive before returning to the van.

When additional officers arrived, the officer told them about his observations and his plan to arrest the occupants of the van for possession of marihuana. He also explained his intention to look in the van. All officers approached the van. The original officer told Gonzales that he was under arrest for possession of marihuana. A uniformed officer advised Gonzales of his right to counsel (although the officer was delayed in giving Gonzales his caution), searched him incident to arrest, handcuffed him, and put him in the rear of a police cruiser for transport to the police station. Back at the station, Gonzales was strip searched.

A subsequent search of one box revealed it contained packaged marihuana. Police then obtained a warrant to search the van, resulting in the seizure of 252 pounds of marihuana and $105,000 in cash. Police obtained a second warrant for the residence and seized a further 185 pounds of marihuana, $27,000 in cash, a firearm and ammunition. The trial judge admitted the evidence seized from the home and the van despite a breach of the accused’s right to counsel. The accused was convicted of three firearm offences and possession of marihuana for the purpose of trafficking. He was sentenced to five years’ imprisonment. The accused appealed the conviction and sentence.

Although the appeal was premised on other grounds, I will focus this post on the ground that Gonzales was arbitrarily detained, thus resulting in a Section 9 Charter violation. As backdrop, in this case, the trial judge concluded that the detention was lawful under s. 216(1) of the HTA, even though the primary motivating factor was the officer’s pursuit of his investigation of the daytime, residential break-ins in the area. Accordingly, it was necessary to consider whether the detention fell within the scope of s. 216(1) of the HTA.

Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.), at para. 21; R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.

In addition to requiring the production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown v. Durham, at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, [1992] 3 S.C.R. 615, at pp. 623-24. However, s. 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns: Brown v. Durham, at para. 24; Mellenthin, at p. 623-24. Sound familiar so far? It should, most jurisdictions have similar legislation.

Sometimes, a traffic stop may have more than one purpose. However, the mere existence of another purpose motivating the stop, beyond highway regulation and safety concerns, does not render the stop unlawful. But the additional purpose must itself not be improper, or proper but pursued through improper means, and must not entail an infringement on the liberty or security of any detained person beyond that contemplated by the purpose that underpins s. 216(1): Brown v. Durham, at paras. 31, 34, 37-39 and 45.

Gathering police intelligence falls within the ongoing police duty to investigate criminal activity. And so it is that it is permissible for police to intend, within the confines of a stop and detention authorized by s. 216(1), to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity: Brown v. Durham, at paras. 31 and 33; R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 254-55. Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor (e.g. articulable cause): Simpson, at pp. 492-493.

The evidence of the officer that conducted the traffic stop was that he was in the area for a single purpose. And that purpose had nothing to do with highway regulation or vehicular safety. As he testified, he was there — in plainclothes driving an unmarked vehicle — to investigate an untoward number of daytime residential break-ins in the area. He drove around and kept his eyes open for any signs that might assist in matching suspects with crimes. So, with his testimony making no reference to a lawful stop under the HTA, the basis for the stop must have been at common law to investigatively detain the occupants of the vehicle.

Turning now to the Waterfield test (I have highlighted this in earlier posts), the first requirement was easily met (common law and statutory duty to investigate crime and apprehend those who may be responsible for it). In the second analysis, was that duty justifiable in this instance? The officer had no information to link the van or its occupants to the daytime residential break-ins he was investigating. The officer knew about the number of break-ins and the time and manner of entry. But neither the police in general, nor this specific officer, had a description of any individuals or vehicles that might have been involved in or associated with these activities. The officer had seen the same van in the same area twice in five days. Each time, there was a driver and a passenger. However, on the first occasion, what happened satisfied the officer that there was no connection between the van and the break-ins; they entered the house. The officer did not see them leave. He thought that one of the men may have lived there. Scarcely the stuff of articulable cause or reasonably grounded suspicion, said the ONCA. Similarly, nothing on the second occasion could ground a reasonable suspicion – the same vehicle, two young men, a look from the driver to the officer as the driver drove through the intersection, nothing more. The ONCA ruled that the stop was an arbitrary detention and that the trial judge erred in holding otherwise.

Since the ONCA ruled that the traffic stop and subsequent detention was arbitrary, it offended s. 9 of the Charter because it was not based on any reasonable suspicion that the occupants of the van were involved in any way in the investigation of the residential break-ins that the officer was then pursuing. And it was that detection that permitted the officer to smell the raw marihuana; to see the sealed boxes; and to observe the accused’s reaction to police questions. It was these circumstances that provided the officer with the grounds necessary to arrest the accused, and it was that arrest that permitted the search incident to arrest that located the packaged marihuana in the sealed packets in the sealed cardboard box in the van, which led to the search warrant for the van, which led to the search warrant for the house. All of which led to the evidence that constituted the case for the Crown.

The ONCA ruled that all of the evidence seized flowed from an arbitrary detention conducted without reasonable suspicion of involvement in crime. The circumstances involved serious police misconduct that was part of a wider pattern of pulling over suspicious individuals without cause (as Justice Watt put it, evidence emerged from the officers at trial that this stop was part of a larger pattern of pulling over “suspicious” persons and asking them what they were doing in the neighbourhood). According to the ONCA, the officer had no grounds to believe that the occupants of the van had anything to do with the daytime residential break-ins he was investigating. He had seen the same van with two occupants enter a garage on the street five days earlier. He concluded then that there was no connection of the van or its occupants to the break-ins. The officer was not there doing traffic enforcement and had no traffic-related reason to pull the vehicle over. The officer knew or should have known that he had no basis to signal the vehicle to stop and to detain its occupants. A proper s. 24(2) Charter analysis required exclusion of the evidence seized from all searches. The convictions were set aside and replaced with acquittals.

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“Overholding” and s. 9 Charter Breaches

The issues surrounding overholding are not new or novel in impaired driving investigations. A recent case out of the Ontario Court of Justice, R. v. Lorenzo 2016 ONCJ 634, examined this issue. Ms. Lorenzo was stopped for a sobriety check as the arresting officer had earlier decided to do so of patrons leaving a certain drinking establishment. While speaking to Lorenzo, the officer noticed an odour of alcoholic beverage on her breath, red and watery eyes, and she admitted to consuming alcohol a few hours prior. He formed the suspicion that, while operating a motor vehicle, she had alcohol in her body so he asked her to step out for a test. She failed the test and then she was arrested and given a s. 254(3) demand for breath sample. The investigation proceeded in the normal fashion, resulting in readings of 145 mg. of alcohol in 100 ml. of blood and 135 mg. of alcohol in 100 ml. of blood. Lorenzo was then held in cells until some 6 hours later “until sober”.

Section 498 of the Code places a duty to release upon the officer-in-charge (or another peace officer e.g. arresting officer) where a person has been arrested and detained without a warrant; the person  “shall”, “as soon as practicable” be released by an officer in charge (or other peace officer) with an exception where an officer has an appropriate belief, based on “reasonable grounds”, for not doing so (i.e. public interest considerations).

Several courts have cited that permitting the blood alcohol level to be the sole determinant results in too narrow a focus when deciding whether or not to hold an arrestee. For example, in R. v. Price 2010 ONSC 1898, the court said the officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. According to cases such as Price, it is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus (see also cases such as R. v. Cheema, [2016] O.J. No. 1787, R. v. Mazzuchin, [2016] O.J. No. 371, and others).

The court in Lorenzo found there was no lawful reason for Ms. Lorenzo’s detention once the investigation was complete and she was served with the appropriate paperwork. Instead of being released, she was held in cells for six plus hours and there were no circumstances that arose that interfered with the police being able to execute her release, nor with Lorenzo’s ability to get home in a cab in the manner she ultimately did, said the court. The officers-in-charge (in this case, more than one was involved) did not take necessary steps to see if there was a real possibility of releasing her to someone as soon as practicable, for example. Lorenzo was acquitted.

 

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Search incident to an investigative detention – do police just get one kick at the can?

In R. v. McGuffie 2016 ONCA 365, the Ottawa Police Service received a telephone call at about 2:00 a.m. from security personnel at a downtown bar advising that a group of five men in the bar had been seen passing a handgun around. Several officers responded to the call. An officer arrived at the bar at about 2:07 a.m. Security staff were ushering the patrons out of the bar. Other officers were already present. The doorman identified two individuals as part of the group that had been passing the handgun around in the bar. McGuffie, one of those two men, walked away quickly from the bar. The officer followed him and caught up to McGuffie a short distance from the bar. He asked McGuffie why he was “running away from his friends?” McGuffie gave conflicting responses. The officer decided to detain him as he suspected McGuffie had the weapon seen earlier in the bar. The officer told McGuffie that he was being detained because he believed he had a handgun. McGuffie denied having a handgun.

The officer handcuffed McGuffie and conducted a “quick search to the vulnerable parts of his body“- a pat down of his waistband and waistline, which the officer described as a “cursory search“. Nothing turned up in the search. McGuffie was standing on the street when he was handcuffed and searched. The detaining officer placed McGuffie in the back of another officer’s police car, and the detaining officer returned to the bar to assist other officers in searching for the handgun. He said he was concerned about officer safety and was of the belief that the gun was in the bar. After what he said was a quick search of the bar, the detaining officer returned to the other officer’s car and said he told McGuffie that he was going to search him for a firearm since he said he found out it was a small gun easily hidden; 31 minutes had passed. He removed him from the cruiser and did a “quadrant search” – to be thorough. During the search, he found “a package of white powder in a rectangular shape” identified as cocaine (118.5 grams), which he said felt like the barrel of a gun; and approximately $600 cash in his pockets. He also found a small bag of marihuana in his pants pocket. He also found and seized a cell phone. The officer arrested McGuffie at 2.55 am for possession for the purpose of trafficking; this was some 30-35 minutes from the initial detention. McGuffie was also strip searched back at the station, which turned up 30.2 grams of crack cocaine. The courts also found issue with the strip search, but I will not be discussing that part of the appeal here. Part of the reason was that the handgun had been located previously by a K9 Unit.

The ONCA ruled that the initial detention of McGuffie on the street was a lawful exercise of the police power, but police infringed his s. 9 right by placing him in the cruiser for 30 minutes. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser and should have been advised that he had a right to speak to his lawyer. If McGuffie wanted to speak to a lawyer, police should have afforded him that opportunity without delay. McGuffie’s rights under s. 10(b) were breached. The initial pat down search of McGuffie on the street was reasonable and justified as an incident of his investigative detention. The second more thorough search of McGuffie was unlawful and unconstitutional. If there was any danger to the officer when he conducted the second search, it flowed directly from the unlawful detention of McGuffie and not from anything the officer was doing in the lawful exercise of his duty. If the arrest was unlawful, the search incidental to the arrest was unlawful and contrary to s. 8.  The ONCA excluded the evidence and acquitted McGuffie. According to the ONCA, the detaining officer seemed wholly unaware of, or worse yet, wholly unconcerned with, the limits of his powers to detain and search individuals. He was equally oblivious to his obligations under s. 10(b).

D.H. Doherty, for an unanimous court, said, in part:

“I would draw an analogy between searches that are said to be lawful as an incident of an arrest and safety searches which are said to be lawful as an incident of a lawful investigative detention. If the arrest is unlawful, the search incidental to the arrest is unlawful and contrary to s. 8 …. Similarly, if an investigative detention is unlawful, a safety search said to be justified on the basis of that detention must be unlawful and contrary to s. 8. …”

The court also recognized the interplay between investigative detention and the right to counsel. D.H. Doherty at para. 47:

“…It does …highlight the tension between the relatively brief duration of investigative detentions and the exercise of the right to counsel by persons being held under investigative detention. The submission assumes that the police can significantly prolong the detention if necessary to afford the detained person an opportunity to speak with counsel. I do not necessarily accept that submission. It may be that, if a police officer can afford a detained person an opportunity to exercise his s. 10(b) rights only by significantly prolonging an investigative detention, the police officer must release the detained person rather than breach s. 9 of the Charter. I leave that question for another case.”

Although not mentioned in the ONCA decision here, it seems to me at least that this issue was discussed in some length in Her Majesty the Queen v. Suberu [Indexed as: R. v. Suberu], 85 O.R. (3d) 127 some time ago. In that decision, it was discussed that a person who is under investigative detention and who after being advised of his or her right to counsel chooses to exercise that right, that person will almost inevitably end up suffering a longer detention and more intrusive state conduct than he or she would otherwise have endured. The court said that there can be a brief time span between an initial detention for investigative purposes and the administration of the s. 10(b) rights to reflect the nature of the vast majority of investigative detentions, in that they must be of a brief duration. The ONCA said that the police activity during the brief interlude contemplated by the words “without delay” must be truly exploratory in that the officer must be trying to decide whether anything beyond a brief detention of the person will be necessary and justified. If the officer has already made up his or her mind that the detained person will be detained for something more than a brief interval, there is no justification for not providing the individual with his or her right to counsel immediately. On appeal to the SCC (2009 SCC 33), the SCC rejected that approach, but the focus of the appeal seemed to be whether or not “advising” the person of his or her rights would cause a prolonged detention. Well, the SCC put that to rest when it ruled that the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. From the moment an individual is detained, s. 10(b) is engaged and the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

So, alas, it seems that the question of whether or not it is a s. 9 Charter violation with regards to “implementing” the duties upon detention if the detainee chooses to exercise it and prolonging the detention to make that happen will have to be answered another day. The implementational obligation imposed on the police under s. 10(b) requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The content of the police duties under s. 10(b) was not at issue in the Suberu appeal, and it was not settled in McGuffie. However, it would be difficult to see it being anything but a s. 9 violation since in R. v. Mann 2004 SCC 52, the SCC said:

“…investigative concerns will usually justify only a brief detention following which the officer will either have to release the individual or, if reasonable and probable grounds exist, arrest the individual.”

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Conversation, Detention, Before an Arrest.

There are numerous websites that provide advice on how to deal with a police officer; many of these are based out of the USA, but the principles can easily be applied in Canada. The USA authority of ‘just cause’, known commonly as ‘articulable cause’ in Canada, probable cause, more commonly known as reasonable grounds (or reasonable and probable grounds) in Canada, can all easily be input into these so-called advice websites geared to teach a citizen about dealing with the police during street encounters and beyond. As officers, the difference between a conversation and a detention may not be all that ‘cut and dry’. It is becoming more and more important that we get it right.

In R. v. Poole 2015 BCCA 464Mr. Poole was walking in downtown Langley at approximately 3 a.m when two police officers in a marked vehicle observed him cross the street. The officers made a U-turn and pulled up alongside him. They rolled the window down and began to speak to Mr. Poole, obtaining his name and identification. When one of the officers ran the information through CPIC, he discovered an outstanding warrant for the arrest of Mr. Poole. The officers proceeded to arrest Mr. Poole and conducted a cursory search which revealed a loaded, fully cocked handgun concealed in his pants.

Poole was convicted on three charges for possession of a firearm dangerous to the public peace, carrying a concealed weapon, and possession of a restricted firearm without a licence or authorization, contrary to ss. 88(1), 90(1) and 95(1) of the Criminal Code, respectively.

The central issue on the voir dire was whether Mr. Poole had been detained when he was initially stopped by the police and prior to the arrest warrant being discovered and executed. Mr. Poole argued that the initial detention was arbitrary, contrary to s. 9 of the Charter. He also argued that he was not immediately informed of the reasons for his detention or of his right to counsel contrary to ss. 10(a) and (b). Mr. Poole’s position was that if the detention was arbitrary, then the search and seizure that followed were a breach of s. 8.

Mr. Poole and the two arresting police officers testified on the voir dire. Oftentimes in cases such as this, there was conflicting evidence given by Mr. Poole and the police officers. Both officers suggested dialogue began spontaneously when the cruiser window was rolled down without any verbal cues from either officer. Neither testified that they told Poole to stop. Poole testified he was told by one of them to stop and feared if he did not they would exit the car and detain him. The officers’ notes describe what followed as a casual chat in which the accused was cooperative and forthcoming to the point where he offered up identification and eventually his criminal past. Mr. Poole denied volunteering anything. Neither officer could recall being asked by Poole whether he could step behind the bushes to urinate, but neither denied he asked. Poole said he was told not to move. That suggestion was not put to either officer. Instead, a more neutral question “You responded no” was put to one of the arresting officers. On the evidence of the officers, the encounter was brief, friendly, and would not lead the casual observer to conclude that Poole was being detained. On Poole’s evidence, he was directed to stop, told not to move when he requested to do so, and asked to explain the contents of his backpack and ultimately produced it to one of the arresting officers when he exited the cruiser.

There were also inconsistencies in the evidence of the two officers, specifically as to the reason that one of the officers exited the cruiser. The notation was made by each material to the investigation in their notes or report to Crown counsel. Specifically, the officer that remained in the cruiser made an entry in his report to Crown counsel that referred to a street check. His notes failed to reference what was said to be the precipitating event leading to the contact with the accused, that is, the jaywalking, and he noted that he told the other officer to leave the car once the warrant was discovered, while the exiting officer noted that he left the car without any instruction on the basis of remarks made by Mr. Poole. The exiting officer’s report to Crown was in conflict with his evidence that Mr. Poole self-reported his armed robbery conviction. In the report to Crown, he noted the information regarding the accused’s records came back after he identified himself, leading to the conclusion that the information regarding the accused’s records was learned from the computer check done once particulars were entered onto CPIC.

The Trial Judge did not believe Poole’s version of events and the appeal court judges said that the trial judge’s assessment of Mr. Poole’s credibility and the resulting findings of fact were entitled to deference.

The issue on appeal that I want to discuss further was whether the trial judge misapplied the law when he determined that a detention did not occur prior to the execution of the outstanding arrest? Mr. Poole submitted that this case raised the same question identified in R. v. H. (C.R.), 2002 MBCA 58 at para. 12:

The question of whether a citizen has the right to walk the streets at any time of day or night without being asked by the police for identification, there being no articulable cause for seeking it, is, in my opinion, an important one which this court should address.

Poole argued that even if the trial judge’s findings on credibility stood on appeal, he erred in concluding that Mr. Poole was not detained before the arrest warrant was executed. Mr. Poole submitted that, unless a crime is occurring or police are conducting an investigation, a pedestrian has an expectation of complete freedom of movement, and if stopped by police as part of general policing duties will therefore always be detained. The appeal court said this proposition is not supported by the case law. A random stop of a pedestrian absent an investigation or crime may more readily lead to an inference of psychological compulsion, but that does not mean that every such stop amounts to a detention. As stated in R. v. H.(C.R.), 2003 MBCA 38:

[49] However, in this case, there was no crime committed and no investigation taking place. In such a situation, a pedestrian has the expectation of complete freedom of movement. To be stopped randomly in those circumstances without explanation by a figure of authority is contrary to one’s expectations and an inference of compulsion may be easier to establish than in other situations. As well, evidence of improper motive might reinforce an atmosphere of harassment or oppression and lead to a conclusion that the accused reasonably believed he had no other choice but to comply. While the police serve the community and perform vital law enforcement and peacekeeping functions, these objectives can be open to abuse in the form of racial profiling, harassment or other improper motives. So, for example, the court in R. v. Peck, [2001] O.J. No. 4581 (QL) (S.C.J.), held that there was a detention when one officer consciously relied on the race of the defendant as an important factor in deciding to question him.

The appeal court went on to examine other notable cases in this area, such as R. v. Mann, 2004 SCC 52, where the majority wrote at para. 19:

the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

In R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), [1987] O.J. No. 796 (QL) at 7, the Court said that, “[t]he Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be.” In R. v. Grant 2009 SCC 32, the Court observed at para. 26 that detention does not occur in “every trivial or insignificant interference” by the police but only where “liberty is meaningfully constrained”. In Grant, a young man was walking on a sidewalk and was approached by a police officer who stepped in front of him, asked him “what was going on” and then asked the accused for his name and address. The accused provided a health card. Subsequently, the officer directed the accused to keep his hands in front of him. Further questioning ensued and other officers approached. The Court concluded that the encounter was not a detention at the stage of the initial general questions; the encounter only became a detention when “[t]he nature of the questioning changed from ascertaining [Grant’s] identity to determining whether he ‘had anything that he should not'” (at para. 49). In R. v. Suberu, [2009] 2 S.C.R. 460, a police officer approached the accused and told him, “[w]ait a minute. I need to talk to you before you go anywhere”, as the accused got into a vehicle. Before the accused could drive away, the officer asked the accused seven quick questions, and then also asked for the accused’s driver’s licence and vehicle registration. The Court considered the officer’s questioning to be general and preliminary in nature, rather than a focused interrogation, and found “the circumstances, as revealed by the evidence, do not suggest detention” (at para. 32).

These cases, said the appeal court, demonstrate that a brief encounter involving police questioning and a request for identification do not necessarily amount to a detention. Based on the trial judge’s findings here, there was no physical restraint or legal obligation on Mr. Poole to comply with the police officer’s request for his name. The officer was making general inquiries, not singling Mr. Poole out for focused interrogation. The officers did not initially get out of their vehicle or impede Mr. Poole’s travel, and the encounter was brief. Mr. Poole was 45 years old at the time, much larger in stature than either police officer, and had considerable past experience with police.

The Court in Grant made clear that not every involvement between police and the public amounts to a detention. This is so even where general enquiries are made by an officer and identification is asked for. There, McLachlin C.J.C. writing for the majority set out the following summary:

[43] Whether the individual has been deprived of the right to choose simply to walk away will depend, to reiterate, on all the circumstances of the case. It will be for the trial judge to determine on all the evidence. Deference is owed to the trial judge’s findings of fact, although application of the law to the facts is a question of law.

[44] In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

  • a. The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
  • b. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
  • c. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

Here, the actions of the police were not in the nature of a focused investigation as the term is understood in Grant, nor was there anything in the actions of the police which can be considered either oppressive, either in language or deed, such as to cause a reasonable person in the situation of the accused to conclude that he had no option but to remain. The encounter was short, approximately five minutes from the initial contact to his arrest. In that brief period, there was no command by the officers which could have reasonably led the accused to conclude he was not able to keep walking or that he was obliged to answer the posed questions. Poole’s appeal was accordingly dismissed.

Remember, take detailed notes of such interactions and any subsequent conversation. Something viewed as trite by us as saying, “Stop, police,” or “Keep your hands in front of you” can make all the difference between a conversation and a detention.

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A police officer’s ability to detect the smell of seven grams of dried marihuana…

R. v. Newell 2015 ONCJ 564 – in early March of 2013, a police officer with approximately two and a half years experience was on patrol when he noticed a brightly coloured car with tinted windows. He decided to effect a traffic stop in order to determine whether the tinted windows complied with the requirements of the Highway Traffic Act. After the vehicle stopped, the officer approached the driver’s side, realized that he could see the driver through the window and concluded that the tinted windows were legal. At that point, the driver, the defendant, Jeffrey Newell, opened the door of his vehicle.

As it was winter, Mr. Newell had a heavy winter coat with him, although there was some dispute as to whether he was wearing it or just had it lying on the back seat. Inside a pocket of this coat was a plastic bag and inside the plastic bag was approximately seven grams of dried marihuana. According to the officer, the odour of this marihuana was strong enough to penetrate both the plastic bag and the pocket of the coat because as soon as Mr. Newell opened the door of his vehicle, the smell was noticeable. During his examination-in-chief, the officer testified that he could “immediately” detect a “strong odour” of marihuana when Mr. Newell opened the door and that it was “getting stronger and stronger” as he spoke to him. He described the odour as “pretty distinctive, like smelling a skunk”. In cross-examination, however, he described the initial odour as “very faint” but that it became stronger when he put his head down nearer to the vehicle. The officer described the smell as “fresh” like the smell of a plant or a flower. The marihuana that was eventually seized was dried.

The officer testified that he was familiar with the smell of marihuana because he had smelled it during his training at police college. Also, he used to work at the front desk of the police station and people sometimes turned marihuana in to him so that it could be destroyed. On one prior occasion, he had arrested somebody for possession of marihuana. Based on the smell, the officer directed Mr. Newell to exit the vehicle and then placed him under arrest for possession of a controlled substance. He then searched Mr. Newell and located the bag of marihuana. No other contraband was found on Mr. Newell’s person or in the vehicle. Another officer was driving by and stopped to offer assistance to the arresting officer, who told him that he had a person in custody for a Controlled Drugs and Substances Act offence. The other officer stood by as the arresting officer searched Mr. Newell’s vehicle. He did not recall smelling anything.

Mr. Newell testified that at the time of his arrest, he was on his way to a friend’s house when he was stopped by the officer. He had just had the windows of his car tinted so he could not roll them down. Because of this, when the officer approached the vehicle, Mr. Newell opened the door. He provided his driver’s licence to the officer and there was a discussion about the fact that the licence, which was temporary, had no photograph. They also discussed the fact that the windows could not be opened and that Mr. Newell had an interlock device in the vehicle. According to Mr. Newell, the officer asked him if he or anybody else had smoked marihuana in the vehicle. Mr. Newell replied that nobody had done so. The officer asked him if he was sure about this and he replied that he was. The officer then said that he was going to search the vehicle and directed Mr. Newell to step out of it. At this point, Mr. Newell picked up his coat, which had been on the seat, put it on, and exited the vehicle. The officer then told him that he was under arrest because of the smell of marihuana. Mr. Newell denied that there was any marihuana smell. The officer handcuffed Mr. Newell and searched him. He located the marihuana that was in the coat pocket and removed it. According to Mr. Newell, it was the other officer, and not the arresting officer, who searched his car.

The sole basis for the arrest was the smell of marihuana the officer testified to noticing. According to the arresting officer, the odour of these seven grams of dried marihuana permeated the plastic bag containing the marihuana as well as the pocket of the winter coat where the bag was located. Not only did this smell permeate the bag and the pocket, it did so to the degree that it was noticeable to a person standing outside of the vehicle. Not only was it noticeable, according to the officer (at least during his examination-in-chief), the smell was “very strong”, like the odour of a skunk. The trial Judge, Honourable Justice P. Andras Schreck:

I do not believe [the officer’s] testimony on this issue. It defies credulity that a relatively small amount of dried plant matter would create such a strong smell that it would permeate both the plastic bag and the coat to the extent that it would be apparent to somebody standing outside of the vehicle. Quite apart from the implausibility of [the officer’s] evidence, I note as well that he was inconsistent in his description of the odour. He initially testified that he could “immediately” detect a “strong odour” of this marihuana when Mr. Newell opened the door and that it was “getting stronger and stronger” as he spoke to him. So strong, in fact, that he likened it to the smell of a skunk. In cross-examination, however, he described the initial odour as “very faint” but that it became stronger when he put his head down nearer to the vehicle.

Even if the trial Judge had believed the officer’s testimony, on the facts of this case, the court would not have concluded that the smell of marihuana constituted reasonable grounds for an arrest. Courts must be cautious about concluding that arrests based on smells are justified, as was made clear by Rosenberg J.A. in R. v. Polashek (1999), 45 O.R. (3d) 434 (C.A.), at para. 13:

The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace.

Crown counsel relied on several cases in support of her submission that the smell alone justified the arrest in this case; however, the trial judge said in each of the cases relied on by the Crown, the arresting officers also relied on other evidence in addition to the smell, such as an admission by the accused that he had recently smoked marihuana or visual observations of other evidence, such as smoke and “roaches” or a large amount of cash. As well, in one of the cases, the arresting officer’s prior experience with marihuana was described as “considerable”. In the present case, the arresting officer’s experience with marihuana was limited to one prior arrest, what he had learned in police college and an unspecified number of instances where people had delivered marihuana to him when he worked at the front desk of the police station. Even if the trial Judge had accepted that the officer smelled marihuana, which was not the case here, the Judge was not satisfied that he could have identified the smell and its source with sufficient certainty to justify an arrest.

The Judge ruled that the officer had no grounds to arrest Mr. Newell and that by doing so, he violated Mr. Newell’s s. 9 Charter rights. The subsequent warrantless search of Mr. Newell’s person was unjustified and therefore unreasonable, in violation of his s. 8 Charter rights. Following the Grant analysis, the Judge concluded that the long-term repute of the administration of justice would be best served by the exclusion of the evidence. The court could not condone the police conducting unjustified searches of individuals and then attempting to justify them after the fact with misleading evidence. As a result, the Crown had failed to prove this charge.

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Where police do not administer the ASD forthwith after the demand (because no ASD available in cruiser) then s. 9 and 10(b) violated by accused’s detention…

R. v. An 2015 SKPC 145 – two officers were working together on patrol duties in a marked police car during the early morning hours of October 4, 2013. There were not enough Approved Screening Devices (ASD) to equip each police vehicle with one; as a result, the officers’ vehicle was not equipped with an ASD. At 3:16 a.m. The officers were dispatched to a pool hall/licenced premises. The initial dispatch reported a domestic disturbance was in progress. A taxi driver lodged a complaint concerning a male and female who had been in his taxi. Both were said to be intoxicated and arguing. The report indicated that the male was attempting to put the female into a vehicle. An update indicated that the male was attempting to pull the female from a vehicle. A further update indicated the male and female got into a white BMW vehicle which was leaving the area. The officers arrived at the area at 3:21 a.m. and stopped the white BMW. The female passenger was either sleeping or passed out in the front passenger seat. The officers first embarked on the domestic disturbance complaint, but at 3:34 a.m., an officer made a formal demand for Mr. An to provide a sample of his breath into the approved screening device (ASD).

At 3:37 a.m., an officer got on the police radio and requested that other nearby police units deliver an ASD to their location. Another officer arrived on scene with an ASD eight minutes later and provided it to the detaining officers at 3:45 a.m. There were no issues with the calibration or workings of the ASD. Mr. An had eight opportunities to blow into the ASD over the course of five minutes between 3:46 a.m. and 3:51 a.m. None of Mr. An’s eight breath attempts produced a sample which was analyzed by the ASD. Subsequently, Mr. An was placed under arrest for refusing to provide a sample of his breath at 3:51 a.m.

There were 4 issues discussed in this trial, but this post will address whether or not the police administered the ASD test to Mr. An forthwith? In this case, the ASD test was administered to Mr. An at 3:46 a.m., twelve minutes after the ASD demand at 3:34 a.m. At 3:37 a.m., one of the officers got on the police radio and requested that other nearby police units deliver an ASD to their location. The ASD arrived on scene eight minutes later and Mr. An’s first sample into the ASD occurred at 3:46 a.m.

The evidence also revealed that despite the fact that the officers: (1) were engaged in early morning general patrol duties which often involve the investigation of drinking and driving offences, (2) were well aware that they were not equipped with an ASD, (3) at 3:15 a.m. they were dispatched to investigate a complaint involving a possible domestic disturbance and an intoxicated driver, and (4) at 3:22 a.m. were actively investigating Mr. An respecting a possible drinking and driving offence and (5) did not look into the availability of an ASD unit prior to 3:37 a.m. It was also of concern to the Court that for no good reason three minutes went by after the officer made the ASD demand of Mr. An (3:34 a.m.) before the officer got on the police radio (3:37 a.m.) and requested that other nearby police units deliver an ASD to their location. The trial judge was left with the impression that the two officers took what was described as a rather casual, laid-back approach to obtaining an ASD unit, as opposed to recognizing the requirement of immediacy.

The trial judge was of the view that the police officers did not heed the constitutionally mandated requirement of near immediacy for the roadside testing. A more casual approach was taken. No thought was given to taking Mr. An to the police station for testing. Moreover, three minutes passed after the ASD demand was made and the radio call went out for an ASD. The officer “hoped” that an ASD would be there within 15 minutes or something like that. Referring to R. v. Hatzel 2011 SKPC 59, the trial judge cited:

Police officers ought to be aware that time is of the essence in obtaining roadside breath samples. In the present case, the bulk of the delay was due to awaiting the arrival of the ASD. Should officers choose not to carry an ASD in their vehicles, they do so at the peril of unlawfully detaining accused people and potentially having critical evidence excluded by the Courts. There is a limit on how long police can wait for the availability of the ASD. Given the reason for the delay, the police conduct showed a reckless disregard for the accused’s Charter rights. This breach is a serious one and not merely a technical one.

The trial judge ruled that given the time of day (after 3:00 a.m.), the fact the patrol officers were not equipped with an ASD, the three minute delay in calling for an ASD, the eight minute delay in an ASD arriving on scene and the one minute delay in starting the ASD, police did not administer the ASD test to Mr. An forthwith. As a result of this determination, the ASD demand was not lawful. There was no obligation on Mr. An to comply with an unlawful ASD demand; the detention of Mr. An was arbitrary and violated section 9 of the Charter.

As the ASD demand was not lawful, Mr. An’s rights under section 10(b) of the Charter were not suspended during the period of his detention. Rather, the trial judge found that Mr. An’s rights pursuant to section 10(b) of the Charter were breached during his detention at roadside. During this critical time, Mr. An should have been advised of his s. 10(b) rights. The trial judge also found that Mr. An’s s. 10(b) rights could have been implemented before his attempts to blow into the ASD starting at 3:46 a.m. The evidence also revealed that during his initial detention from 3:22 to 3:34 a.m., Mr. An used his cell phone and made a call to his workplace. Mr. An indicated that he also wanted to use his cell phone to contact his sister, who is a lawyer. Unfortunately during the 24 minutes he was detained at roadside prior to blowing into the ASD (3:22 to 3:46), Mr. An was not permitted to attempt to contact his sister. Given Mr. An’s predicament, he would have undoubtedly benefitted from legal advice, said the judge.

In short, the trial judge found that the officers did not administer the ASD on the accused “forthwith” as required by s. 254(2)(b) of the Criminal Code. The ASD demand was not lawful. The accused was therefore arbitrarily detained. He was also unlawfully denied his Charter right to counsel. Based on a Grant analysis, the Charter breaches lead to the exclusion of the evidence relating to the failure to provide a breath sample (s. 254(5)). In addition, even if the ASD demand was found lawful or the evidence was not excluded, the Crown failed to prove the mens rea of the s. 254(5) offence (not discussed in this post), i.e. the intention to produce the failure, because it did not prove that the ASD and the mouthpiece were in proper working order. As a result of these determinations, the accused was found not guilty of the offence before the Court.

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A blanket police policy against release on promise to appear of accused residing outside 200 km. radius is a Section 9 Charter violation.

First, let me premise this post with a caveat that this information is to educate officers, and not to make any officer or agency “look bad”. This latest case out of the Alberta Court of Queen’s Bench (R. v. Hotte 2015 ABQB 323) has examined blanket police policy that conflicts with the law, and an officer’s awareness of his duty to release pursuant to s.498(1) of the Code. From a report of a hit-and-run accident, the Edmonton Police Service (“EPS”) responded and subsequently located the driver, administered an ASD test, which registered a “fail” reading. While one officer was arresting the driver for impaired operation of a motor vehicle, another officer searched the vehicle for more evidence of impaired driving. He found a hard black case containing a substance which appeared to be marihuana in a Ziploc baggie, and which he later determined to weigh some 15 grams. Nothing else of note was found in the vehicle.

The driver provided two samples of breath, which both resulted in readings of 120 mg%. The driver was from Beaverlodge, Alberta, a town some 500 kms. northwest of Edmonton. A conference was held between the arresting officers and the officer in charge that night, a Staff Sgt. At that conference, the officer is charge made two decisions: first, he decided not to release the driver on a Promise to Appear (“PTA”) or any other form of release, and instead to have him lodged in cells and transported to police headquarters downtown where he would be taken before a Justice of the Peace for a bail hearing. Second, given that the driver was to be lodged and not released, he ordered that the driver be strip searched.  The officer in charge testified in-chief:

So there was a discussion that occurred around — revolving that and determining whether or not first he would qualify for a PTA or not, and under Edmonton Police Service policy, in order for a person to receive a Promise to Appear, you have to reside (a) in Alberta, (b) within a 200-kilometre radius. I was informed by the investigating members that Mr. Hotte resides in a northwest community in Alberta very close to the British Columbia border called Beaverlodge, and I understand that Beaverlodge is approximately 500 kilometres away from Edmonton. Based on that, I made the decision that Mr. Hotte would have to go for a bail hearing.

The officer in charge then went on to explain the rationale underlying the EPS policy as follows:

Q If you could explain for us a little bit about why that policy exists, why a 200-kilometre radius or within Alberta.

A Well, again, from what I recall speaking to the members, I mean, there’s certain things that we have to ensure that we’re satisfied with: whether or not this offence is going to repeat itself: do we have good identity, is this person going to be compelled to court and that, of course, Your Honour, became one of the concerns with the distance that we had of where Mr. Hotte was residing.

THE COURT: Okay. Can I stop you there and if you go back to the beginning and slowly indicate what these concerns were?

A The concern was for him to appear in court, Your Honour, due to the distance, and I was told that Mr. Hotte did not have any ties to Edmonton, that he comes there often and that, if I recall, he works within the oilfield industry and due to the geographical location, that is why the decision was made — I made the decision for him to go for a bail hearing.

During cross-examination, defence counsel asked the officer in charge whether or not he considered releasing the driver on the basis of a recognizance in the amount of $500 as contemplated by s. 498(1)(d) of the Criminal Code, being the release provision specifically applicable to persons who do not ordinarily reside within 200 km of the place of custody. The court allowed the recognizance language of s. 498(1)(d) to be read aloud to the officer in charge. In response, the officer testified that he had never heard of that method of release, and that it is not contemplated by the EPS policy that he followed.

Having determined that the driver would be lodged rather than released on a PTA or recognizance, the officer in charge then determined that the driver was to be strip searched. In doing so, he again relied upon the applicable EPS policy, which reads in relevant part as follows:

A legal threshold for conducting strip searches. The legal threshold required to strip search an arrested person depends on whether the person will likely be released from custody without being lodged in Detainee Management Unit, DMU, or lodged in DMU.

Persons being lodged in DMU. The strip search of persons who have been lawfully arrested and who are not likely to be lodged in DMU, shall not be strip searched unless there are reasonable and probable grounds to believe the arrested persons have in their possession a weapon, evidence or a device that may be used to facilitate an escape. Police officers must not only have reasonable and probable grounds to make an arrest, but also reasonable and probable grounds to conduct a strip search before a strip search will be permissible.

[…]

Persons being lodged in DMU. When an arrested person is to be in a short-term custodial sentence such as DMU rather than being detained for a brief period of time, the reasonable and probable grounds standard does not apply. A strip search of the accused can take place based on the standard of reasonable suspicion. The distinction between the standard for a strip search is incidental to arrest, i.e., reasonable and probable grounds, and strip searches in a custodial setting is justified because of safety concerns in relation to other detainees who might have contact with a detainee in DMU or en route to or at the bail hearing office or the Edmonton Remand Centre. An arrested person being in DMU cannot automatically be strip searched just because the person is to be lodged in DMU. A strip search of a person being lodged in DMU is only permitted when a reasonable suspicion exists that the arrested person is in possession of weapons, evidence or items to aid an escape.

The officer in charge applied the reasonable suspicion standard directed in the above passage from the EPS’s strip search policy:

A The concern is that if there’s drugs that then end up getting into these areas and that, and depending on what type of a drug it is, the last thing that I want to see happen is for someone to then end up consuming drugs or hiding them and taking them further where they’re into Remand. That’s not a good situation. And again, ma’am, for the health and the welfare of other detainees, we do our best to ensure that their safety is paramount.

Nothing was found from the strip search. The trial judge found that the officer in charge’s decision to further detain the driver was justified by s. 498(1.1)(b) of the Criminal Code, i.e. on the ground “that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.” On this basis, he dismissed the driver’s claim that he had been arbitrarily detained contrary to s. 9 of the Charter. Regarding, the strip search, the trial judge found that by applying the EPS policy in preference to the law established in in R. v. Golden, 2001 SCC No. 83, the officer in charge’s decision to direct that the driver be strip searched constituted a violation of s. 8 of the Charter, there being no reasonable and probable grounds supporting such a search.

The appeal judge said that the blanket EPS police policy stating that every person who resides more than 200 kms (outside of Edmonton) cannot be released on a Promise to Appear, if applied without exception, would effectively have taken away the officer in charge’s discretion to release pursuant to s.498(1) of the Criminal Code (for the purpose of this post, I won’t recite what that section states). It was clear to the appeal judge that the application of a blanket policy regarding the release of an individual can constitute an arbitrary detention (the judge cited some case law to support that conclusion). As such,  the appeal judge found insufficient evidence from the officer in charge to support the trial judge’s finding that the officer considered anything more than just the distance from Edmonton that the accused lived, and accordingly there was palpable and overriding error in the trial judge’s finding of fact in this regard. The appeal judge concluded what happened here was that the officer was unaware of his duty to release pursuant to s.498(1), and was only concerned with applying the EPS policy, which policy the trial judge did not specifically address. Accordingly, in failing to release the accused without considering s.498(1), the officer violated the mandatory requirements of that section.

The appeal judge stated that the discretion conferred upon s. 498 of the Criminal Code is to be exercised by the “officer in charge”. It is not to be exercised months or years later by a reviewing court. Had the officer in charge actually turned his mind to the circumstances of this case — including the driver’s clean record, and the availability of a recognizance under s. 498(1)(d) — he may well have decided to release the driver. His decision to detain the driver may not later be justified ex post facto on the basis of factors which may have supported a similar decision, but which were not actually known to or considered by the officer in charge. The officer in charge’s detention of the driver for an additional 10 hours based upon a blanket EPS policy was contrary to s. 498, otherwise unsupported by lawful authority, and contrary to s. 9 of the Charter.

The accused’s appeal was granted, his conviction under s.253(1)(b) set aside, and a new trial was ordered.

For the cadets of the APA, remember that knowing departmental policy and procedure is very important to an officer. This is important in light of evolving court decisions holding that a breach of an internal policy and procedure may amount to a breach of the standard of care owed to an individual or the public at large. The police policies are carefully and thoughtfully drafted. They are designed to assist officers in the conduct of the activity that put them at more risk of harm or liability than any of our other duties. Although the policy may not, in itself, constitute the standard of care, compliance with the policy is a very important factor to consider in determining whether the standard of care has been met.  At the same time, however, as officers we must not only be alive to applying the policy; we must also be alive to our duties and obligations under s. 495(2), 497, 503, and 498 of the Code, and so on. As the Honourable Justice Leggatt stated in R. v. Pithart (1987), 34 CCC (3d) 150 (BC Co. Ct.) at page 10:

… A decision to arrest and detain an individual should be based on reasons relating specifically to that individual. Section 9 of the Charter is intended to guarantee an individual, not a collective, right. This should be borne in mind when searching for an appropriate meaning to attach to “arbitrarily detained”, for, as the Supreme Court of Canada has said on numerous occasions, a purposive approach should be taken to the interpretation of the Charter. Accordingly, I conclude detention based on a blanket policy rather than on reasons pertaining to the individual detainee violates the right not to be arbitrarily detained, guaranteed by s.9 of the Charter.

 

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The “Reduce Impaired Driving Everywhere” (R.I.D.E.) Program and Police Powers

R. v. Lippett [2014] O.J. No. 5185 – an Ontario Court of Justice, presided over by the Honourable Justice Robert W. Beninger, has examined police powers at a RIDE program, and specifically whether they can open the car door.

The defendant, alone in his car, entered a RIDE stop, which had been set up by police on an afternoon in February. There was nothing notable about the defendant’s driving before he was stopped. An officer approached the defendant’s vehicle and asked him to roll down his window. The window was rolled down two or three inches, so the officer asked him to roll it down further. The defendant then rolled the window down two thirds of the way. It was not established on the evidence whether the window was a power window or opened manually. The officer noted a strange odour in the defendant’s vehicle, which he could not identify. He identified the obvious odour of an air freshener. He noted an air freshener hanging from the rear-view mirror of the vehicle. He spoke to the defendant, and he observed the defendant’s eyes to be shiny or glassy with the white portion of the eye very pink. The officer did not ask the defendant if he wore contact lenses or had allergies (the defendant’s sworn affidavit said he was wearing contact lenses when he was stopped by police). 

The officer observed the defendant’s speech to be what he termed as, “Gummy and laboured.” The officer asked the defendant if he had consumed alcohol, and the defendant denied it. The officer asked the defendant if he had ingested marihuana and the defendant denied that. On request, the defendant produced a valid Ontario Driver’s License without difficulty. The officer walked to the rear of the vehicle to verify the license plate. The evidence was not established as to how long the officer was at the back of the vehicle, but he said it was no more than ten seconds. When the officer returned to the driver’s side window, the window was closed. Upon leaving the driver’s side of the vehicle, the officer had not directed the defendant to keep his driver’s window rolled down, nor did he direct the defendant to either turn off his vehicle or put it in park. The officer had not told the defendant how long he was going to be gone when he walked away.

The officer asked the defendant to roll the window down. The defendant appeared to the officer to be trying to open the window, but seemed to be having difficulty opening the window. It was not established on the evidence as to how long the officer waited for the defendant to open the window. The officer said that, in his view the defendant wanted to appear as if he was rolling down the window, but he wasn’t rolling down the window. The officer said that in his view he gave the defendant “ample” time to open the window. It was unclear to the officer whether the defendant was unable to open the window or was deliberately not complying with his direction. In the end, the officer did not wait for the defendant to open the window. The officer opened the door of the vehicle, and leaned into the defendant’s car for the purpose of furthering his investigation. The officer did not ask for permission to open the door, and he was not invited by the defendant to open the door.

As it was winter, it was cold outside and there was snow on the ground. The officer leaned into the car through the open door, and he could smell the obvious odour of marihuana in the vehicle. The officer formed a belief that the defendant had been smoking marihuana and was in possession of marihuana. There was no smoke in the car, nor any physical signs of marihuana in the car. The officer removed the defendant from the car and arrested him for possession of marihuana (this was about 3 minutes after the initial stop). The defendant told the officer that he had weed in his shirt pocket, and the officer found two rolled joints in the defendant’s shirt pocket. After he removed the defendant from the vehicle, the officer made observations that the defendant was unsteady on his feet, so he arrested the defendant for driving while he was impaired by a drug. After his right to counsel, the officer read the defendant a D.R.E demand and transported the defendant to the police detachment, leaving some 10 minutes after the initial stop.  Once back at the police station, the defendant initially complied with the D.R.E testing, but about 30 minutes later said he would no longer cooperate with the testing. Subsequently, he was charged with refusal under s. 254(5) of the Criminal Code.

Defence argued that there was a section 8 Charter breach when the defendant was subject to an unlawful search and seizure; there was a section 9 Charter breach when the defendant was arrested for a possession of marihuana without the police having reasonable grounds for an arrest, and without the police being in compliance with s. 495(1)(b) of the Criminal Code; and that all the evidence relied upon by the crown to prove the charges against the defendant should be excluded pursuant to s. 24(2) of the Charter.

Justice Beninger first addressed police powers at a R.I.D.E. stop. The scope of police power was described by Justice Doherty in R. v. Smith, [1996] O.J. No. 372, in the Court of Appeal as, in order to be reasonable having to be:

“Performed at the site of the detention with dispatch, with no danger to the safety of the detainee, and with minimal inconvenience to the detainee.”

The crown argument was that the action of opening the car door falls within the parameters of the police powers which are available at the roadside. As stated in R. v. Orbanski, [2005] S.C.J. No. 37 [SCC] at paragraph 45 and following:

“One can think of many examples in which observation of the driver through the open car window will not be sufficient to enable the officer to draw the line between those drivers with a permissible amount of alcohol in their body, and those who have reached the impermissible level.”

The crown cited a number of cases which endorse the power of the police to open the car door as a lawful investigative step, but Justice Beninger found that none of those cases support the proposition that police have the authority at a standard R.I.D.E stop to open the door of a vehicle without the permission of the driver. The crown’s argument, as Justice Beninger understood it, is that he should find that the police have the authority to open car doors at a R.I.D.E. stop pursuant to their ancillary powers. To agree with the crown on that point, the Justice would be endorsing the authority of police to open car doors at R.I.D.E. stops as part of their standard investigative procedure.

Defence argued, as stated in R. v. Ladouceur, [1990] 1 S.C.R. 1257, that R.I.D.E. stops under the Highway Traffic Act are a Section 9 Charter Violation but they are saved by Section 1 of the Charter. The Section 9 violation is a reasonable limit as, to quote from paragraph 59:

“These stops are and must be of relatively short duration, requiring the production of only a few documents. There is a minimal inconvenience caused to the driver, there is seldom a need to bring the driver to the police station, nor is there usually a need for intrusive searches of the driver or the vehicle. If they were intrusive they would probably be subject to challenge as infringing Section 8 of the Charter. The routine check impairs the Section 9 guarantee against arbitrary detention as little as possible.”

The defence further cited R. v. Mellenthin [1992] S.C.J. No. 100, as authority for the scope of R.I.D.E. investigations. In paragraph 15 the Court stated:

“Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the R.I.D.E. program is thus to check for sobriety, licenses, ownership, insurance, and the mechanical fitness of cars. The police use of check stops should not be extended beyond those aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.”

In this case, Justice Beninger found that the action of the police officer in opening the car door, and leaning into the vehicle was an unreasonable search. He found that the police actions at the R.I.D.E. stop were a Section 8 Charter violation.

With regards to defence’s application on the Section 9 Charter breach when the defendant was arrested for a possession of marihuana, Justice Beninger cited R. v. Polashek [1999] O.J. No. 968 [OCA], as the facts on that case are comparable to the facts in this case. As Justice Rosenberg noted in R. v. Polashek, at paragraph 13:

“The sense of smell is highly subjective, and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of an officer.”

Justice Beninger said the officer in question is an experienced police officer with many prior arrests involving marihuana, but he was not convinced that his level of expertise was such that the Justice could rely upon his opinion that there was still marihuana present in the defendant’s vehicle (the Justice noted that the officer did not know how long the odour of marihuana would linger after being smoked). In addition to odour, the officer also cited his physical observations of the defendant’s speech and eyes. Justice Beninger said the officer had no prior experience with the defendant and did not inquire about other explanations for his observations as to speech, and the appearance of the defendant’s eyes. Finally, on his evidence the officer did not believe that there were more than 30 grams of marihuana in the vehicle. The offence in question was a summary conviction offence. The defence cited R. v. Johnson, [2010] O.J. No. 4793 [SCJ], in paragraph 55 of that case:

“Possession of a controlled substance where the quantity is under 30 grams is a summary conviction offence and in such circumstances the power to arrest is limited to the situation where a peace officer finds a person presently committing a criminal offence as provided for in s. 495(1)(b).”

As the officer did not find the defendant “committing an offence,” Justice Beninger ruled the arrest was not authorized in law under s. 495, so there was a breach of the defendant’s Section 9 Charter Rights.

As for the 24(2) Charter analysis, Justice Beninger said there was both an unreasonable search and seizure, and an unlawful arrest. The arrest was facilitated by the unreasonable search of the vehicle, so he found that the Charter infringing state conduct at the R.I.D.E. stop was serious. He also found that the circumstances in a drug investigation are different than in an investigation relating to impairment by alcohol. In a drug impairment investigation, a person in detention is subject to D.R.E testing, which is significantly more intrusive than the process of providing breath samples, said the Justice.

The result: Justice Beninger ruled that the D.R.E. demand made by police was not a lawful demand and dismissed the charges.

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Arrest of accused held unlawful where crucial information that provided reasonable grounds was obtained from an earlier unconstitutional arrest

R. v. Brown 2014 BCSC 1872 – a British Columbia Supreme Court has examined s. 495 CC in the sense of information gathered as a result of one unlawful arrest being used to formulate grounds of a subsequent arrest (the ole adage of the “fruit of the poisonous tree” doctrine).

In short, after a suspicious meeting with the driver of the white Cadillac, who was unknown to the investigation until that time, and one of the two male parties who the Drug Unit had been surveilling and gathering supporting information on for some weeks, the driver of the white Cadillac was arrested. The lead investigator did not believe there were reasonable grounds for arresting the driver of the white Cadillac, but another officer arrested the driver of his own accord and for his own reasons (I will not discuss them here). Suffice to say, the court ruled that one suspicious meeting, without more, did not create a credibly-based probability that an individual was involved in an indictable offence. The fact that the white Cadillac was reported to have been associated with drug activities was not sufficient to further evidence to meet the reasonable grounds threshold. Form that unlawful arrest, cash and heroin were found in the car.

From surveillance and source information, the meeting between the driver of the white Cadillac and one of the two targets, and in part based on the cash and heroin found in the white Cadillac, the two other parties were also arrested that day. Those two parties were the actual targets of the investigation.

The Crown argued that the latter two arrestees did not have standing to challenge the presence of the cash and heroin found in the white Cadillac as a reasonable ground for the respective warrantless arrests of each of them. The Crown said that the respective Charter rights of both men were not engaged by the search of the white Cadillac. A Charter right is a personal right and “can only be made by the person whose Charter rights have been infringed”. In other words, in the case at bar, the search of the white Cadillac engaged only the first arrestee’s Charter rights.

The judge said in the case at bar, the officer relied on the heroin and cash found as part of the first male’s unlawful arrest as the determinative ground to justify the arrest without warrant of the other two males. Unlawfully obtained facts or evidence cannot be used as the determinative basis for establishing reasonable grounds for an arrest:

“If the Court were to rule that the cash and heroin could be considered as giving rise to “reasonable grounds”, then, as an investigative technique, the police would be tempted to conduct unlawful and warrantless arrests in the hope of finding evidence and then using such evidence as reasonable grounds under s. 495 of the Criminal Code to arrest an individual without warrant. The Court cannot signal such techniques as acceptable conduct.”

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