Category Archives: Arbitrary Arrest or Detention

Feeney Shenanigans

His Majesty the King v. Nicholas John Mitchell 2022 NSCA 77 – this written decision was just released last week and it is worthy of a post to say the least.

At approximately 1 a.m. on March 4, 2020, three members of the Tantallon, Nova Scotia detachment of the RCMP attended the home, intending to arrest Mr. Mitchell on 32 charges related to allegations of domestic violence arising from a relationship that had ended months earlier. The allegations were quite serious: numerous instances of intimate partner violence with allegations of assaultive behaviour with choking, use of a knife, and breaking an ankle on one occasion. The complainant had revealed her allegations a few hours prior to the police visit. At the time, Mr. Mitchell was required to abide by, among other conditions, a court-imposed daily curfew associated with other unrelated charges he was then facing. Thus, the officers expected to find him at home, and he opened the door to their knock. Informed the police wished to arrest him, and confirming they did not have a warrant to do so, Mr. Mitchell closed and locked his front door.

Allowing me to backtrack for a moment, prior to police attending the residence, a plan was devised by the Corporal. The Cpl instructed two Csts to attend Mr. Mitchell’s home under the pretense of performing a compliance check for the curfew. The corporal instructed the constables to get Mr. Mitchell to exit the house. He would be arrestable once he was outside his residence. The corporal told the constables above all else to not let Mr. Mitchell close the door. They were to put their foot in the door to prevent it from closing. There was no discussion about getting a Feeney warrant, but according to the testimonies of all three police officers, all were aware of the requirement to have a Feeney warrant to enter a private residence to effect an arrest in the absence of fresh pursuit, exigent circumstances, or informed consent.

When Mitchell closed and locked his front door, the police response was exceedingly swift. Unaware dashcam video on the police cruiser parked closest to the home was recording the scene, it took the lead officer, who had been positioned farthest away from the home, a mere eight seconds after Mr. Mitchell shut his door to sprint across the yard and kick it open. All three officers entered the home. They later testified they had done so out of concern Mr. Mitchell would arm himself inside the home. In any event, a brief but intense physical struggle ensued. Mr. Mitchell was pulled down a stairwell by the officers and removed from his residence by force. Once outside (as the same dashcam recorded) the officers put a shirtless and barefoot Mr. Mitchell to the ground and placed him under arrest. Unbeknownst to the officers, Mr. Mitchell had previously undergone surgical reconstruction of his right hip joint, which he very soon after reported had been aggravated during the physical contest with the officers.

The NSCA ruled that the officers ignored the law. The corporal deliberately attempted to employ an unlawful strategy and when that did not work, (as he testified to) out of frustration and anger stormed into a private dwelling attempting to justify through his own perspective that there was hot pursuit. He was followed by two officers. Both knew or ought to have known that their entry was unlawful. According to the decision, they should have been hauling their corporal out of the home, not Mr. Mitchell. The court found that the Cpl. instructed the officers to make sure they stuck a foot in Mr. Mitchell’s door, which the judge characterized as “negligent” or “at a minimum willfully blind” toward Charter standards.

The NSCA agreed with defence’s observations that it was the “shocking” police conduct in all its aspects that led to the trial judge’s conclusion to impose a stay, and that the trial judge recognized there were no urgent circumstances that required the police to execute the arrest at the time of day and in the manner they did, all while “heavily armed”.

The appeal court said that “the complainant deserves to have her allegations adjudicated. Society has an expectation that the courts will take seriously all allegations of domestic violence and to have them decided on their merits. But the complainant won’t see her allegations tried in court because of the manner in which Tantallon RCMP sought to arrest him. There are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency.”

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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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Does the common law permit police officers to arrest individuals who have not committed any offence, who are not about to commit any offence, who have not already breached the peace and who are not about to breach the peace themselves?

The short answer is no.  Police can’t arrest someone who isn’t breaking the law to prevent others from breaching the peace, the Supreme Court has ruled. The Supreme Court, in Fleming v. Ontario 2019 SCC 45, unanimously said the officers didn’t have the power to arrest Mr. Fleming. This decision is somewhat timely with the recent arrest of dozens of protesters in Halifax and Toronto, and fist fights reportedly breaking out in Edmonton, as climate change activists blockaded several major commuter bridges in Canadian cities: https://www.cbc.ca/news/canada/nova-scotia/macdonald-bridge-halifax-climate-change-1.5310569

Mr. Fleming was on his way to join a protest in Caledonia, Ontario in 2009. The protest was against the occupation of a piece of land by a First Nations group. The police became aware of the flag rally in the months preceding it and had developed an operational plan, given the contentious atmosphere in the community which had on numerous occasions culminated in violent clashes between the two sides. The plan included keeping protestors and counter‑protestors apart, and flag rally counter‑protestors were informed that they were not allowed on the occupied property. Mr. Fleming was carrying a Canadian flag on a wooden pole and walking down a street beside the occupied land.

Police officers saw him as they drove by. The officers turned their vehicles around and sped toward him. Mr. Fleming got off the road and crossed a low fence. He said he did this to get away from the speeding vehicles and onto level ground. The officers were yelling. Mr. Fleming said he didn’t think they were yelling at him because he hadn’t done anything wrong.

The people occupying the land came toward him. When they were about ten or twenty feet away, the police told Mr. Fleming he was under arrest. They ordered him to drop his flag. He refused. He was forced to the ground, handcuffed, placed in a transport unit van, moved to a jail cell and released two and a half hours later. He was charged with obstructing a police officer. He went to court a dozen times to fight the charge, which was later dropped. Fleming said police injured his arm.

In 2011, Mr. Fleming sued the Province of Ontario and the officers involved in his arrest. He said the officers acted wrongfully. He said they assaulted and battered him, wrongfully arrested him, and falsely imprisoned him. He also said they violated several of his rights under the Canadian Charter of Rights and Freedoms. Fleming was successful at trial, but a majority of the Court of Appeal set aside the award of damages on the basis that the police had the authority at common law to arrest him. The Court of Appeal ordered a new trial solely on the issue of excessive force. Fleming appealed to the SCC on the issue of whether the police acted lawfully in arresting him, and on whether a new trial should have been ordered on the question of excessive force.

The appeal centered around the purported police power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others. It targeted individuals who are not suspected of being about to break any law or to initiate any violence themselves, in situations in which the police nonetheless believe that arresting the individuals in question will prevent a breach of the peace from occurring. To reiterate, the arrest of Fleming did not concern a power to arrest a person for the purpose of preventing that person from breaching the peace, but instead arresting him for lawful conduct which may provoke others to breach the peace.

At common law, arguably, authority exists that a police officer is entitled to make a lawful arrest of someone “who it is anticipated may shortly engage” in a breach of the peace (see, for example, R. v. Khatchadorian (1998) 127 C.C.C. (3d) 565 (B.C.C.A.), R. v. Lefebvre (1984) 15 C.C.C. (3d) 503 (B.C.C.A.), Hayes v. Thompson (1985) 18 C.C.C. (3d) 254 (B.C.C.A.), R. v. Faulkner (1988) 9 M.V.R. (2d) 137 (B.C.C.A.), Brown v. Durham (Regional Municipality) Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.) appeal to S.C.C. granted [1999] S.C.C.A. No. 87), or if a breach of the peace is reasonably expected to occur. This authority is like the warrantless power of arrest under s. 495(1)(a) of the Criminal Code for a person “about to commit an indictable offence”. The arrest for an apprehended breach of the peace is exercised in circumstances where the officer has reasonable grounds for believing the anticipated conduct, which would amount to a breach of the peace, will likely occur if the person is not arrested.  Unlike section 31 of the Code, which requires the existence of an actual breach of the peace before the police may arrest, police officers need not be concerned themselves with what has occurred, but with what is reasonably expected to occur. There are two requirements that the police officer must consider when exercising this power: the apprehended breach must be imminent. The possibility that a breach will occur at some unknown point in time will not be sufficient. The breach must be impending and likely to occur in the immediate future; and, the apprehended breach must be substantial. The possibility of an unspecified breach will also be insufficient. The likelihood of a particularized and identifiable breach must be real and reasonably apprehended. There must be articulable indications that the conduct that forms the nature of the breach will occur (see, for example, the cases of Brown v. Durham (Regional Municipality) Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.) appeal to S.C.C. granted [1999] S.C.C.A. No. 87 and Lynch v. Canada (R.C.M.P.) 2000 BCSC53).  But, again, in this case, the arrest of Fleming did not concern a power to arrest a person for the purpose of preventing that person from breaching the peace, but instead arresting him for lawful conduct which may provoke others to breach the peace.

The SCC ruled that the police can’t arrest someone acting lawfully just because they think it will stop others from breaching the peace. Police already have other powers to deal with these situations under the Criminal Code. Since police had these less drastic options, arresting Mr. Fleming wasn’t really necessary. The Court noted that preserving the peace, preventing crime, and protecting life and property are the main duties of police officers under the common law. Police have the power to take actions to support these duties, even if these actions aren’t specifically set out in the Criminal Code. Preventing breaches of the peace is obviously related to preserving the peace, preventing crime, and protecting life and property. But the Court said it wasn’t reasonably necessary to arrest someone to prevent a breach of the peace, if that person hadn’t done (and wasn’t about to do) anything wrong.

Police are allowed to use as much force as reasonably necessary to carry out their duties. But in this case, they weren’t allowed to arrest Mr. Fleming, so no amount of force was justified. The Court allowed the appeal, set aside the order of the Ontario Court of Appeal and restored the trial judge’s order. Costs were awarded throughout: costs in this Court and the agreed-upon trial and appeal costs of $151,000 and $48,000 respectively.

Of note, in obiter of this decision, Justice Côté for an unanimous court said while it is not necessary to decide whether “a police officer may also arrest or detain a person who is about to commit a breach of the peace” in this case at common law, she seriously questions whether a common law power of this nature would still be necessary in Canada today. The Criminal Code provides explicitly for a number of warrantless arrest powers that obviate the need for such a common law power (e.g. ss. 31(1) and 495(1)(a) CC). Thus, police officers already have extensive powers to arrest, without a warrant, a person they reasonably believe is about to commit an act which would amount to a breach of the peace. She therefore had difficulty seeing any need for the courts to fill a legislative gap by recognizing a common law power of arrest for the purpose of preventing individuals from committing breaches of the peace themselves, and she made no comment about other possible powers short of arrest in such circumstances.

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Can there be any issue that police seeking to obtain information from and about an individual is a “search”?

The Supreme Court of Canada decision in R. v. Le [2019] S.C.J. No. 34 is being lauded as a victory for civil rights and the restraint of police powers regarding informal questioning of civilians, but for reasons I will discuss at the end of this post, it doesn’t appear to be the victory it’s being made out to be.  Or, if so, not for the reasons perceived.

As background, one evening at approximately 10:40 p.m. in May, three police officers noticed four Black men and one Asian man in the backyard of a townhouse at a Toronto housing co-operative. The police were looking for a third party who was wanted by the police for some violent crimes and who, they were told, frequented the area and may have been hanging out in this area of the townhouse complex.  The young men appeared to be doing nothing wrong. They were just talking. The backyard was small and was enclosed by a waist-high fence. Without a warrant, or consent, or any warning to the young men, two officers entered the backyard and immediately questioned the young men about “what was going on, who they were, and whether any of them lived there”. They also required the young men to produce documentary proof of their identities. Meanwhile, the third officer patrolled the perimeter of the property, stepped over the fence and yelled at one young man to keep his hands where the officer could see them. Another officer issued the same command. The officer questioning the male, Tom Le, demanded that he produce identification. Mr. Le responded that he did not have any with him. The officer then asked him what was in the satchel he was carrying. At that point, Mr. Le fled, was pursued and arrested, and found to be in possession of a firearm, drugs, and cash. He was charged with 10 offences, which consisted of seven weapons offences, two drug offences in relation to the 13 grams of crack cocaine, and one charge for possession of crime proceeds.

The trial focused primarily on the police entering the backyard and making inquiries, and the detention of the accused and subsequent search. The trial judge found that the officers attended at the backyard for valid and proper investigative purposes. They were lawfully entitled, pursuant to the implied licence doctrine, to enter this backyard through an open gateway in order to speak to any potential occupier of the townhouse. They were never asked to leave. When Le tried to conceal his bag, the police had reasonable grounds to believe that he was armed and dangerous. Le was effectively detained when he was asked about the contents of the bag. The trial judge found that this detention was not arbitrary because the police had reasonable grounds to believe that he was armed and as such, he was not subjected to any unreasonable search or seizure.

Le appealed to the Court of Appeal for Ontario. Writing for the majority, Doherty J.A. dismissed the appeal and held that the trial judge did not commit any errors in the ss. 9 and 24(2) Charter analyses.

The SCC took a different approach. Some believe that the case was clearly focused on police verbal interaction with civilians, “questioning”, but the case was decided contextually as a s. 9 ‘detention’ case, with only s. 8’s territorial privacy aspect receiving a passing mention in the SCC’s 3:2 decision. The highest court found that the police entered the property as trespassers and that the trial judge and the majority of the Court of Appeal for Ontario erred by concluding that the detention crystallized only when Le was asked what was in his satchel. Rather, the SCC found that he was detained when the police entered the backyard and made contact. Because no statutory or common law power authorized his detention at that point, it constituted an arbitrary detention. No statute authorized these police officers to detain anyone in the backyard. Similarly, the common law power to detain for investigative purposes could not be invoked. Le’s detention was arbitrary because, at the time of detention (when the police entered the backyard), the police had no reasonable suspicion of recent or ongoing criminal activity. Since the detention in this case was not authorized by law, the SCC felt there was no need to analyze whether that law was arbitrary or whether the detention was carried out in a reasonable manner. The court did, however, find that this was serious police misconduct. The court ruled that there simply were no grounds, let alone reasonable grounds, to suspect any criminal wrongdoing was committed or being committed by the young men in the backyard. The discovery of the evidence was only possible because of the serious s. 9 breach in this case. The convictions were set aside and acquittals entered.

Now, why do I say that this case doesn’t appear to be a major victory for civil rights? Well, the SCC could have examined this case in a different light, but it chose not to. Police questioning of citizens to elicit information, explanations and intentions was not considered at all in the context of s. 8’s informational privacy protection. Alan D. Gold and Michael Lacy posit that Le demonstrates problems that are arising because Courts are not dealing with the constitutionality of police questioning directly by recognizing that informational questioning is a search under s.8 of the Charter to which the usual s. 8 standards and principles are applicable. Instead, the constitutionality of police questioning is being evaluated by means of the surrogate issue of “detention”, a far from simple concept that leads to honestly held reasonable opinions that are diametrically opposed and dramatically expressed, such as the majority and minority opinions in Le.

They also suggest that Le highlights the Charter issues engaged by police interacting with and addressing a civilian. A police officer’s speech to a civilian can fall in one or more categories, according to the pair. It can be a command to “not move”, “halt”, “put hands up”, “keep hands where they can be seen”, amongst other possibilities. It can be a social conversation, such as asking for the nearest Tim Horton’s. Most importantly, the officer can be asking for information for an investigative purpose such as requesting a name, address, “what’s in the bag?”, “what are you doing here?” and similar inquiries. They believe that a police officer asking for self-identification or its equivalent physical counterpart of document production, asking for explanations regarding presence and future intentions, however politely is certainly ‘not leaving the civilian alone’ and certainly transgressing the normative social understanding of most persons that they would rather not be asked such questions by a police officer.

The Supreme Court of Canada has previously recognized police questioning can constitute a search and seizure for the purpose of s. 8 of the Charter (R. v. Mellenthin [1992] 3 S.C.R 615, [1992] SCJ No 100). Other courts have found that answers to police questions may or may not give rise to a s. 8 claim (R. v. Harris, 87 O.R. 3d 214). In addition, in R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32, the Supreme Court of Canada had the opportunity to consider whether an interaction between the police and a citizen which included questioning could amount to a search and seizure, but ultimately did not do so. Fast forward to the Le decision, where the opportunity again presented itself for such an examination and recognition of informational privacy issues, and again the opportunity was missed.  Hopefully as officers we will see some clear guidance in this area in a future case…

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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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