Category Archives: Recent Case Law

Section 10(b) Charter right to counsel violated where police conduct had effect of undermining legal advice received during consultation

Early into any law enforcement training (career), recruits, later officers, are quickly shown the significance of Section 10 of the Charter of Rights and Freedoms. While s. 10(a) requires an officer to inform a detainee of the reasons for the detention (or arrest) “promptly,” which has been held to mean “immediately,” some delay may be justified on the basis of concerns for officer or public safety. Section 10(b) of the Charter has both an informational and an implementational component. The officer must inform detainees of their right to counsel and where the right is invoked, must provide detainees with a reasonable opportunity to exercise the right. We must comply with both duties “without delay”. The latter is the focus of this post, as recently debated in R. v. Dussault 2022 SCC 16.

While generally, an officer could discharge their implementational duty under s. 10(b) by facilitating a single consultation at the time of detention or shortly thereafter, there are exceptions. Recall R. v. Sinclair 2010 SCC 35:

“the right to counsel is essentially a one-time matter with few recognized exceptions” (para. 64); “it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required” (para. 49); (a) a new and non-routine procedure which involves the detainee such as participation in a lineup or submitting to a polygraph (para. 50); (b) a change in jeopardy (para. 51); (c) a reason to question the detainee’s understanding of their Charter s. 10(b) right (para. 52)”

In Dussault, the SCC found that where police conduct has the effect of undermining the legal advice given to a detainee, whether intentional or not, and where it was objectively observable that it had occurred, the right to a second consultation will arise. By way of background, Dussault was arrested on charges of murder and arson. At the police station, he spoke with a lawyer on the phone, who explained the charges and his right to remain silent. The lawyer was left with the impression that the accused was not processing or understanding his advice. He offered to come to the station to meet in person, and Dussault accepted. The lawyer then spoke with a police officer, informed him that he was coming to the police station and asked that the investigation be suspended. The police officer responded that this would be no problem or no trouble. The lawyer spoke again with Dussault. He confirmed that he was coming to the police station to meet with him and he explained that, in the interim, he would be placed in a cell. The lawyer also told him not to speak to anyone. Subsequently, during a conversation between the police officer and the lead investigators on the file, it was decided that the lawyer would not be permitted to meet with Dussault. The police officer phoned the lawyer and informed him of this decision. The lawyer nevertheless came to the police station, but was not permitted to meet with Dussault. The police officer later went to Dussault’s cell and told him that another officer was ready to meet with him. Dussault asked whether his lawyer had arrived, to which the police officer responded that the lawyer was not at the police station. Dussault was then subjected to an interrogation, during which he made an incriminating statement.

The trial judge admitted the incriminating statement into evidence, finding the phone call was a complete consultation for the purposes of s. 10(b) of the Charter. The Court of Appeal concluded Dussault’s phone call with the lawyer did not constitute a complete consultation for the purposes of s. 10(b) of the Charter and that his right to effective assistance of counsel was breached.

The SCC said that undermining is not limited to intentional belittling of defence counsel. Police conduct can unintentionally undermine the legal advice provided to a detainee. Where the police conduct has the effect of undermining the legal advice given to a detainee, and where it is objectively observable that this has occurred, the right to a second consultation arises. There is no need to prove that the police conduct was intended to have this effect. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it.

In the present case, two separate acts of the police officer combined to have the effect of undermining the legal advice provided to the accused. First, when the lawyer said that he was coming to the police station to meet with the accused and asked that the investigation be suspended, the police officer responded that this would be no problem or no trouble. In reasonable reliance on these words, the lawyer advised the accused that he was coming to the police station to meet with him and that, in the interim, he would be placed in a cell. The police officer’s words therefore had the effect, albeit indirect, of causing the accused to believe that an in-person meeting would take place. In refusing to permit the lawyer to meet with the accused, the police effectively falsified an important premise of the lawyer’s advice — i.e., that the accused would be placed in a cell until the lawyer arrived. Second, the police officer misled the accused into believing that his lawyer had failed to come to the station for their in-person consultation. During the interrogation, the accused repeatedly expressed that his lawyer had told him he would be there; he stated his belief that his lawyer had never actually arrived; he openly questioned why his lawyer had given him the advice that he had given; and he implied that his lawyer’s failure to show up had left him feeling alone. When these statements are taken in their totality and in light of all the relevant circumstances, it was clear to the SCC that there were objectively observable indicators that the legal advice given to the accused had been undermined.

Also worthy of a reminder, the majority in Sinclair did not expand on the type of police conduct that could “undermine the legal advice that the detainee has received” and thereby give rise to a renewed right to consult counsel. What Dussault reminded us of is in this context, care must be taken in defining the term “undermine”. It is clear, for instance, that if this term is defined too broadly, it would prevent police from attempting in any way to convince a detainee to act contrary to their lawyer’s advice: see, e.g., R. v. Edmondson, 2005 SKCA 51, 257 Sask. R. 270, at para. 37. If this were so, police would effectively be required to cease questioning any detainee who said “my lawyer told me not to talk”. That is not the law in Canada: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405.

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

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

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

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

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

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

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

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

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

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

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

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Acquittal in drinking and driving case as ASD demand not made immediately, right to counsel violated and accused subjected to ‘overholding’ after breath tests

The issues discussed in R. v. Kaur 2021 ONCJ 683 are not new by any stretch, but worthy of a review given these types of things are still occurring. The facts of the case are not complex, and I have summarized things from the case:

  • At approximately 3:03 AM, police received a call regarding a possible impaired driver that had jumped a curb
  • The officer located and stopped the vehicle at approximately 3:04 AM
  • He formed a reasonable suspicion at 3:06 or 3:07 AM
  • He called for an ASD at 3:13 AM and another officer was dispatched to bring an ASD to the scene
  • The officer did not read the female driver her rights to counsel during the wait
  • The ASD arrived at 3:17 AM
  • The officer read the ASD demand at 3:26 AM (some 19-20 minutes after he formed his reasonable suspicion)
  • There were no officer safety concerns articulated aside from moving to the side of the road to continue the investigation that may have delayed the demand
  • At 3:29-30 AM, driver registered a “fail”, was arrested, and RTC given
  • At 3:34 AM, the formal breath demand was read
  • Left the scene at 3:41 AM and arrived back at the station at 3:46 AM
  • After speaking with counsel, etc., at 4:43 AM provided her first breath sample which registered 176 mg. of alcohol in 100 ml. of blood. Her second sample was taken at 5:07 AM and registered 174 mg. of alcohol in 100 ml of blood
  • She was held in custody and release at approximately 10:30 AM

Section 320.27 of the Code requires that a person comply with a screening demand “immediately” (the prior provision required compliance “forthwith”). The judge found that the use of “immediately” instead of “forthwith” in the context of s. 320.27 is simply a modernization of the language without any change in meaning, as other courts have found. The section does not explicitly require that the police officer’s demand be immediate, rather, it only specifically requires that the motorist comply immediately. However, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.

The immediacy requirement in s. 320.27 necessitates the courts to consider five things:

  1. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
  2. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
  3. Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2) (now 320.27(1) CC).
  4. Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
  5. Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met.

Applying the law to the facts of this case, the judge found there can be no doubt that the ASD demand was not made forthwith; there were no unusual circumstances which would justify the delay. The demand having not been made immediately, the police were operating outside the parameters of s. 320.27 and there was no suspension of her Charter rights. She was clearly detained from the time that she was asked to exit her vehicle, and by detaining her by the side of the road for 11-13 minutes without making an ASD demand and without telling her why she was being detained and without giving her rights to counsel, there was a violation of ss. 9, 10(a) and 10(b) of the Charter.

With regards to the over-holding, the releasing officer canvassed her health and well-being in the cells by asking her a series of health-related questions such as whether she had injuries, was on medication, or enrolled in any addiction programs, but failed to ask if she had access to another vehicle (if released), or whether anyone could attend and care for her if released (of note, a male friend had attended the station on multiple occasions that morning to pick her up, but no one advised the releasing officer of this). She was finally released from custody at 10:32 AM. During the approximately 5.5 hours that she was in the detention cell, she made repeated efforts to gain the attention of various police officers. She indicated that these efforts were geared at securing her release. She was desperate to inform her workplace that she would not be able to make it in that day. Despite her persistence of managing to engage different officers on at least 12 occasions, she was not released. The releasing officer testified that it was his “standard practice” of holding a detainee until their BAC was below 100 mgs. and that it was his “standard practice” of not releasing anyone over 100 mg unless someone was going to pick up that person.

In the judge’s view, the releasing officer never canvassed with any police officer or the accused to determine if there was someone who could pick her up before 8:00 AM, so the driving force behind her continued detention for approximately 3 hours was her BAC. From 8:00 AM until approximately 10:30 AM, there was no reason for her continued detention except the officer’s rudimentary calculation of her BAC, which would have been between 80-100 mg of alcohol (assuming the depletion rate of 15 mg per hour).

The court ruled that the simple reality was the police were required to turn their minds to all the circumstances that were present, and in appropriate cases, high blood-alcohol readings may be sufficient. However, the important thing was that there must be a thoughtful inquiry made by the police officer into the existing circumstances so that a careful assessment and consideration was made before further detention is decided to be necessary. There was nothing in the evidence before this court that raised the possibility of her driving with an elevated BAC beyond the same level of risk that any intoxicated individual detained or arrested for a drinking and driving offence poses. In the absence of some evidentiary foundation for the existence of such a risk, a police officer cannot simply choose to detain an individual because they “might” choose to drive again. As high as the readings were, they did not amount to a justification for her further detention based on a risk that she might choose to drive another vehicle. There was no exigent, legitimate, or justifiable reason for her to have been detained as long as she was. Therefore, the court found that her s. 9 Charter right not to be arbitrarily detained was breached, and in order to best serve the long-term repute of the administration of justice, the breath test results were excluded.

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Warrantless video surveillance of the accused’s residence even from a public location does violate s. 8 of Charter

During the Project Skylark investigation, the police developed a theory that the accused’s residence was being utilized as a stash house. An officer requested that a public view camera be installed outside of the residence of the accused, and the officer did not believe that prior judicial authorization was required for video surveillance of the accused’s residence because of his belief that the camera was a “public view camera”, it provided a very limited view of the driveway of the residence, and it did not look through the windows and was therefore not intrusive (R. v. Aubrey 2022 ONSC 635)

The camera was installed and used during the months of April 2019 through to July 2019. It substantially replaced physical surveillance of the residence and recorded the area 24 hours a day, 7 days a week. The intention of the camera was to observe the interactions, if any, between targets of the investigation and the accused, as well as the comings and goings of the accused in particular. It was positioned such that it recorded a portion of the accused’s driveway as well as the front of his residence. Ultimately, the images and observations captured from the recordings were included in the Information to Obtain (“ITO”) that granted the police authorization to enter and search the accused’s residence. In addition to the installed video camera surveillance, the police also conducted physical surveillance of the property from the street. Although much of the surveillance was, “eyeball surveillance”, some video recording was undertaken.

In R. v. Wong [1990] 3 S.C.R. 36 at para. 8, the Supreme Court of Canada found that surreptitious video surveillance by agents of the state constituted a search and seizure within the meaning of s. 8 of the Charter. The subject matter of the search in this ONSC case was information about the accused’s comings and goings. The video surveillance provided police with information about the identities of visitors to the accused’s residence, the length of their stays, and the presence of items brought into or out of the residence. The ONSC found that the accused had a privacy interest both in the area which was the subject of the surveillance, and in the information which was captured on the video images. Further, the court found that the expectation of privacy was objectively reasonable, and his reasonable expectation of privacy was breached by the actions of the police in installing video camera surveillance directed at his residence and the surrounding private property, and that the installation and use of a video camera to conduct continuous surveillance of the accused’s residence and its surrounding property was a breach of his rights pursuant to s. 8 of the Charter.

In this case, the camera monitored activity in a defined space, namely the driveway and the front of the accused’s residence. Upon reviewing the video surveillance, the judge said it was apparent that the accused was aware of potential street-level sightlines into his property and that he adopted countermeasures to limit those views. The accused and his visitors entered the house from the rear entrance as opposed to the front entrance. The accused and his visitors also often interacted in the driveway behind the lifted hood of a vehicle. While it is possible that they were plagued by engine troubles, it is more likely that he and his guests were seeking to communicate privately and out of public view, said the judge.

The ONSC said while the camera may have been installed in a public area and have provided incidental views of public areas, its lens was directed to the accused’s private residence and yard, places the public could not enter or view without an invitation from the accused. The fact that some areas of the property were visible to the public was, in the judge’s view, irrelevant. Indeed, it seemed clear to the judge that the very reason that the camera was installed was to provide views of the accused’s property, and by extension to obtain information about the activities being conducted on the property, that were not possible from the street and were not subject to public view. In the court’s ruling, Section 487.01 of the Criminal Code contemplates the very circumstances present in this case. Parliament’s clear intention was to allow the police to use video surveillance, or any other devices needed to conduct a search or seizure in respect of a person or a person’s property, only when certain preconditions have been met. The installation of a video surveillance camera directed towards the otherwise private areas of the accused’s residence and its surrounding property in the absence of prior judicial scrutiny was intrusive and failed to satisfy any objectively reasonable preconditions. In the absence of a warrant, the resulting video surveillance constituted an unreasonable search and seizure.

In debating the physical surveillance activities undertaken, the court said that the police are at liberty to conduct physical surveillance without the necessity of obtaining a warrant. This includes surveillance of an individual or surveillance of places where an individual resides or frequents. Provided that the police do not trespass on private property, they are not constrained in their ability to employ physical surveillance as an investigative technique. However, the question to be answered here, in the court’s view, was whether the police are permitted to memorialize their personal surveillance through the use of photographs and video recordings in the absence of a warrant, or whether they are limited to note-taking and personal recall?

In the present case, the purpose of the physical surveillance and the recorded images captured during that surveillance did not differ from that of the installed video cameras. It was the objective of the police to further their criminal investigation by collecting evidence to support an ITO. Their observations and recordings may also serve as circumstantial evidence of the accused’s knowledge of and control over the items subsequently found during the search of his residence. The key differences between the recordings conducted by officers during their physical surveillance and those conducted by the installed video camera were the manner in which they were obtained and the views that they provided. The video taken during the physical surveillance served as a record of the “eyeball surveillance” which was lawfully undertaken by the police. The surveillance was recorded from an area accessible to the public and provided only those views available to members of the public passing by the property or, in this case, police officers lawfully conducting physical surveillance. While the video images could be “zoomed in”, this could also have been done during lawful physical surveillance using a pair of binoculars.

Conversely, the installed video cameras provided a view of the accused’s property that was not otherwise available to the public or to police conducting lawful physical surveillance. The installed cameras effectively permitted the police to visually trespass onto the accused’s property. In the court’s view, this trespass was fatal to the use of the installed cameras in the absence of a warrant. There was also an argument that video images provide a permanent record that can be reviewed and examined after the fact, thereby making them more intrusive than mere physical surveillance. The judge said that this is where the purpose of the surveillance becomes relevant: had the police been seeking to collect self-incriminating evidence against the accused to prove the commission of a crime, a general warrant would have been advisable and likely necessary. In this case, where the primary purpose was to support an ITO, the recordings were simply another tool in the police investigative arsenal and they did not require a warrant, provided that they were the by-product of lawful physical surveillance.

The ONSC found that the accused’s reasonable expectation of privacy was not infringed by the video recordings undertaken by the police during their physical surveillance. It was objectively reasonable to expect that activities conducted in plain view would be observed by members of the public, including the police. Further, it was objectively reasonable to expect that, in this day and age, when most members of the public carry personal electronic recording devices to document the minutiae of their lives, and many members of the public have recording devices installed on their homes and in their vehicles, at least some of the accused’s activities conducted in plain view would be recorded. Given some of the counter-surveillance tactics observed on the videos, it was the judge’s view that the accused likely also had a subjective expectation of police surveillance. In the circumstances, the video images recorded secondary to physical police surveillance did not breach s. 8 of the Charter.

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Search of the vehicle incident to arrest for reasons unrelated to the arrest violated Section 8 of the Charter

Ali Ismail was charged with seven counts, all related to his alleged possession of a loaded handgun found in the backseat area of the pickup truck he was operating (R. v. Ismail 2021 ONSC 3883). Police were investigating Ismail in relation to outstanding bench warrants for failing to attend court on charges of occupying a motor vehicle knowing there was a prohibited weapon inside, resisting a peace officer, possession of a Schedule I substance, and operating a motor vehicle while impaired. On the latter charges, Ismail had already been arrested, released, and charged sometime prior and those matters were before the court, so the current arrest was for the arrest warrant for failing to appear in court in answer to those charges.

At the time of his arrest on the warrant, Ismail was driving and there was a female passenger in the vehicle. Ismail was arrested and his hands cuffed behind his back. The female passenger was also now away from the vehicle and no longer had immediate access to it. An officer testified that his 26 years of experience convinced him that the entire vehicle could be searched to secure evidence related to the crime for which the accused was being arrested. In this case, for evidence related to the original charges. The officer learned from another officer at the scene that a handgun had been found in the backseat area of the pickup truck before (the original charges). It was the experienced officer’s opinion that there was no need to obtain a warrant to search the vehicle now. During the search of the vehicle on the arrest of Ismail on the warrant, a loaded handgun was found underneath the backseat of the pickup truck, wrapped in brown paper towel. After finding the loaded handgun, the female passenger was also arrested.

Search of vehicles incident to arrest has been the subject of many ligated cases, many of which I have already posted about on this blog (e.g., R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195; R. v. Nolet, [2010] 1 S.C.R. 851; and others). The issue in the present case was whether the search by police was truly incidental to the arrest in the sense that it was necessary to discover or preserve evidence connected to the arrest, protect safety, or protect against escape.

Searches of vehicles by police will generally be lawful where the search is related to evidence of the offences for which the accused is arrested. These are typically active, ongoing investigations. It is important to remember that Ismail was arrested for his failure to attend court. He had been previously arrested and released on the weapons charges related to this vehicle. Here, by the time police conducted the search of the vehicle, Ismail had been arrested, cuffed and removed from the immediate location of the Avalanche pickup truck for transport. The female passenger was away from the vehicle. Ismail had been co-operative and had offered no resistance. In the language of para. 22 of Caslake, there was no “reasonable prospect of securing evidence of the offence for which the accused was being arrested.” The accused was being arrested for his failure to attend court. There were no officer safety issues at that point. There was no evidence related to the failure to attend court that could be gained from the vehicle. There was no chance Ismail would escape. The search of the vehicle amounted to a breach of s. 8 of the Charter. It was warrantless and not authorized by law. In this judge’s ruling, if police felt there were reasonable grounds to believe there was a gun in the vehicle, they had only to secure it and obtain a warrant. They clearly either felt it was unnecessary or were concerned about whether they had the grounds to obtain it.

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Section 320.27(2) of the Criminal Code, which permits a police officer to make a demand of a driver of a motor vehicle to provide a sample of breath into an approved screening device in the absence of any suspicion that the driver has alcohol in their body, is constitutional

Prior to December 18, 2018, an approved screening device demand could be made pursuant to s. 254(2) of the Criminal Code if the officer had a reasonable suspicion that the driver of a motor vehicle had alcohol in their body. The threshold to establish a “reasonable suspicion” was relatively low and could be met in various ways, including but not limited to an admission by the driver that he had consumed alcohol or a constellation of factors including poor driving conduct, glossy/glassy eyes, slurred speech, poor motor coordination or the smell of an odour of alcohol on the driver’s breath.

Bill C-46, which repealed and replaced all sections of the Criminal Code related to driving offences came into effect on December 18, 2018. Included in Bill C-46 was the replacement of what was formerly s. 254(2), with now what is s. 320.27 of the Criminal Code. The section which was at issue in R. v. Blysniuk 2020 ONCJ 603 was s. 320.27(2), which has eliminated the need for the officer to have a reasonable suspicion that the driver has alcohol in his body prior to making a roadside screening demand. It reads:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

The statutory prerequisites that must be met before an officer can make a demand pursuant to s. 320.27(2) is that the officer must be acting in the lawful exercise of his powers at the time of the demand, the subject must be operating a motor vehicle, and the officer must have an approved screening device in his possession at the time of the demand.

The facts of this case were very simple. An officer with the Ontario Provincial Police stopped the Applicant’s vehicle on December 22, 2018 at 7:22 p.m. to check on his peeled rear licence plate. The officer informed the Applicant of the reason for the stop. Subsequently, the officer also advised the Applicant that it was a “Festive Ride and based on it being a Saturday night all drivers he would be stopping were being read a breath demand under s. 320.27(2) of the Criminal Code of Canada.” The Applicant denied consuming any alcohol and the officer made a demand that he provide a sample into an approved screening device (“ASD”) pursuant to s. 320.27(2) at 7:26 p.m., which he had in his police cruiser. The Applicant provided a suitable sample of his breath into the approved screening device resulting in a Fail, thereby giving the officer reasonable grounds to believe that he had committed the offence of operating a conveyance with a blood alcohol concentration of 80 mg of alcohol in 100 ml of blood or more. The Applicant was then arrested at 7:28 p.m., read his rights to counsel and transported to the station, where he provided two samples of his breath into an approved instrument registering readings of 140 mg of alcohol in 100 ml of blood and 130 mg of alcohol in 100 ml of blood.

The judge ruled that the Applicant was initially lawfully stopped by the officer regarding concerns of his peeling licence plate. The stop was justified under the H.T.A. and there was no suggestion by the Applicant that the initial stop was arbitrary or motivated by an improper purpose (Charter, Section 9).

Given that s. 320.27(2) of the Code does not create a new stopping or detention power by the police and does not change the existing stopping power, or lengthen the detention period from that which would otherwise have been lawful for the purposes of investigating a driver’s sobriety compared to that which has already been considered in the context of random stops to check on the sobriety of the driver, the judge was satisfied that it is settled law that while the detention which flowed from the demand made pursuant to s. 320.27(2) of the Criminal Code was arbitrary and therefore a breach of the Applicant’s s. 9 Charter rights, it is saved by s. 1 of the Charter for the reasons espoused in R. v. Hufsky, [1998] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257 (I won’t expand on those two cases because I have made several blog posts already relevant to those cases, and others similar).

For clarification purposes of the case at hand:

Was the Search and Seizure (i.e. taking of the breath sample at roadside) Authorized by Law?

The judge ruled that the officer made the mandatory alcohol screening demand to the Applicant explicitly pursuant to s. 320.27(2) of the Criminal Code, which had been enacted and which had come into force and effect 4 days prior to the date of the stop. The officer had complied with the statutory preconditions, such that the Applicant was operating a motor vehicle at the time, the officer was acting in the lawful exercise of his duties at the time the stop was made and he had an approved screening device in his possession at the time of the demand.

Is s. 320.27(2) of the Criminal Code a Reasonable Law?

Parliament’s intent and objective of enacting mandatory alcohol screening as set out in s. 320.27(2) is to increase the detection of drivers with an elevated blood alcohol concentration of 80 mg of alcohol in 100 ml of blood or more and impaired drivers, by increasing the efficacy of detecting such individuals through the use of a scientifically reliable device, as well as, enhancing the deterrence of people who otherwise may have chosen to take the risk that they would not get caught. Given the risk, danger and social cost caused by drinking and driving, and the inadequacy of the results that have been achieved through the various other methods previously utilized in Canada, the objective of increasing the detection and deterrence of such individuals remains a pressing and substantial objective sought to be achieved through s. 320.27(2) of the Criminal Code.

While drivers who have not consumed any alcohol may now be required to provide a sample of their breath into an ASD, the law already permits the police to stop and detain such drivers and to take steps to investigate their sobriety. Although prior screening measures did not involve a search and seizure unless an officer had a reasonable suspicion that the driver had alcohol in their body, the impact of the search and seizure pursuant to s. 320.27(2) is minimally intrusive on a person’s privacy interests and bodily integrity. The statutory requirements when a demand is made are set out in s. 320.27(2) and are designed to ensure that it results only in a very brief roadside detention of an individual who is voluntarily engaged in the highly regulated and dangerous activity of driving a motor vehicle, which in this case lasted not more than 2 minutes. Section 320.27(2) contains appropriate restrictions on when and in which circumstances the police may conduct this screening (lawful stop, present operation of a motor vehicle, and the approved screening device in the officer’s possession), as well as, the limited use that can be made of the results (only as a screening measure and not to establish guilt). If charges are laid against an individual, there is judicial oversight through a trial where the defence can challenge the lawfulness of the stop, lawfulness of the demand and the search itself. While there is the potential for the disproportionate application of this law against racialized and other marginalized populations, this can also be said of the former s. 254(2). In many ways s. 320.27(2) serves to increase overall fairness by removing the subjectivity involved in the prior suspicion-based testing. Overall, the judge ruled that the law is reasonable having consideration of the totality of the circumstances and the context.

Was the Search Itself Carried out in a Reasonable Manner?

The officer lawfully stopped the Applicant, who was operating a motor vehicle as a result of concerns regarding the Applicant’s licence plate; he had a screening device in his possession at the time and made a demand of the Applicant driver at the scene pursuant to s. 320.27(2); and quickly administered the screening test in short order at the scene. From the time the demand was made until the arrest it was not more than 2 minutes. There was no evidence of any conduct on the part of the officer that he improperly stopped the Applicant, that he was delayed in the making of the demand or in administering the test, that the Applicant’s safety was put at risk as a result of the detention or the administering of the test, that the officer breached his privacy further than was required in order to administer the test, or that the search was carried out in a manner that went beyond that which was necessary in order to obtain a suitable breath sample. For these reasons, the judge concluded that the search and seizure was carried out in a reasonable manner.

In short, the judge was satisfied that s. 320.27(2) of the Code strikes an appropriate balance between the pressing and substantial interest of the state in detecting and deterring persons from drinking and driving against those of the individual driver and does not infringe s. 8 of the Charter.

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Arbitrary Detention and Pre-Arrest Use of Handcuffs

In the past 5 years, there have been a number of informative and unequivocal decisions that have specifically addressed the issue of handcuffing detainees during the course of a roadside investigation for the purpose of administering roadside screening tests. To cite a few of the more recent decisions, I have read: R. v. Orde, [2017] O.J. No. 6317 (Ont.C.J.), R. v. Romaniuk, [2017] O.J. No. 1735 (Ont.C.J.) and R. v. Mahipaul, [2018] O.J. No. 2688 (Ont.C.J.). I have also written posts on the issue in other contexts from other provinces prior to this one.

These cases have provided us with significant guidance and have repeatedly emphasized the unique consideration with this type of investigation that these motorists are being detained by police even though they are not suspected of committing a crime. Rather, the police need only suspect the person of having alcohol in their system while operating a motor vehicle which, in itself, is not a crime unless a person is impaired or has more than the legal limit in their system. As a result, courts are increasingly becoming very sensitive to the manner in which police interact with detainees during roadside breath testing. Most decisions have narrowly constrained the authority of the police to use handcuffs before a person has been arrested for drinking and driving.

For example, in R. v. Virk, [2018] O.J. No. 5651, at paras. 53 to 57 (Ont.C.J.):

Although a motorist subject to an approved screening device breath demand validly made (i.e. a demand prefaced on the required grounds) is subject to lawful detention, such a motorist is not under arrest. Therefore, unless a motorist’s conduct gives rise to objectively grounded safety concerns, for example, where the person’s behaviour causes a police officer to reasonably believe they pose a threat to the police, the public, or themselves, it is not reasonably necessary to use handcuffs. Without reasonable justification, restraining a motorist in handcuffs during roadside breath testing is unlawful.

Even though a motorist subject to a valid approved screening device breath demand is lawfully detained, the use of handcuffs escalates the incursion on that person’s liberty. Handcuffs represent a far more coercive form of state compulsion. If handcuffs are applied, they transform a detention that its inception takes the form of psychological restraint (with legal compulsion) into an encounter marked by physical restraint. If the police unjustifiably handcuff a motorist subject to an approved screening device demand, the result is an unlawful interference with that person’s liberty. In such circumstances, a detention that begins lawfully becomes unlawful.

The Supreme Court of Canada has made clear that a detention not authorized by law is arbitrary and violates section 9 of the Charter. Given this, courts in other cases have found that the unjustified handcuffing by police during efforts to obtain an approved screening device breath sample violates a motorist’s section 9 Charter not to be arbitrarily detained. If police also secure a breath sample while a motorist is unjustifiably handcuffed, these same cases also hold that the manner of the resulting seizure (or search), due to the unlawful use of handcuffs, is unreasonable and violates section 8 of the Charter.

Given my finding regarding the use of handcuffs, in light of the governing legal principles, I conclude that Mr. Virk’s right not to be arbitrarily detained, as guaranteed by section 9 of the Charter, was violated.

The latest decision out of Ontario, R. v. Horvath, [2020] O.J. No. 4297, again addressed this issue. In Horvath, he was operating a Mazda mini-van, travelling eastbound and attempted to change lanes, from the passing lane to the curb lane, and in doing so sideswiped another car being driven by Ms. Vieira. Mr. Horvath passed Ms. Vieira’s automobile, then turned. Ms. Vieira followed Mr. Horvath for some distance before coming to a stop behind him at a dead end, where Mr. Horvath twice reversed his vehicle into the front bumper of Ms. Viera’s automobile. Mr. Horvath exited his vehicle and was in roadway with Ms. Viera and her husband, when two officers arrived on scene some 30-minutes later.

Ms. Vieira explained the situation to one officer, while the other officer engaged Mr. Horvath, taking physical control over him and directing him to place his hands on the hood of the scout car. Communication proved difficult as Mr. Horvath is a native of Hungary with little facility with the English language. Some two minutes after arriving at the scene, the officer informed Mr. Horvath that he was under “investigative detention” until police could find out what was going on. Four minutes later, Mr. Horvath was placed on the telephone with a Hungarian speaking officer and, in response to questions, admitted that he had been driving and had consumed alcohol. That officer did not inform Mr. Horvath that he was subject to investigative detention or advise him of his rights to counsel. An officer on scene contacted dispatch and requested that a screening device be delivered to the location.

An officer cuffed Mr. Horvath’s hands behind his back and placed him in the rear of the scout car, telling him it “makes it easier like this.” In examination in chief, the officer was confident in his legal authority to handcuff someone who is subject to investigative detention. He explained that a detainee can be handcuffed where “it it is better to control the situation, or not, depending on how I feel.” In response to questions, the officer indicated that this power is recognized by police rules and procedures and was something that he received instruction on while attending police college.

Leaving aside the constitutionality of 10(a) and (b) of the Charter in this case as it is not the focus of my post, although the judge appreciated that police were faced with a confusing situation, the court found there was no basis to detain Mr. Horvath almost immediately upon arriving on scene. Police had limited information as to the reason for the call. It is reasonable to conclude that at the time of Mr. Horvath’s initial detention, officers were uncertain if a crime had been committed or if Mr. Horvath was involved. Moreover, Mr. Horvath never presented as a safety or flight risk. The judge found that Mr. Horvath was initially detained for convenience, as the officer was uncomfortable in dealing with someone with whom he could not communicate.

As for the use of handcuffs, the scout car recording demonstrated that at the time the handcuffs were applied, police were investigating Mr. Horvath for impaired driving and had requested that a screening device be brought to the scene. Again, it was apparent to the judge that the use of handcuffs and confinement of Mr. Horvath in the rear of the scout car was for reasons of convenience. As stated by one of the officer’s as he handcuffed Mr. Horvath, “Makes it easier like this sir.” The judge asked rhetorically — easier for whom?

The judge ruled that the use of handcuffs in these circumstances, for purposes of convenience, was clearly unnecessary and therefore unconstitutional.

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The Mandatory Approved Screening (MAS) Demand in s. 320.27(2) of the Criminal Code is Constitutional

Although R. v. Morrison 2020 SKPC 28 is a Provincial Court decision, it raises and discusses some relevant issues and debate.

Shortly after midnight in January, 2019, officers stopped a vehicle operated by Mr. Morrison on the outskirts of the City of Martensville. Officers observed the vehicle for some ten minutes before effecting the stop and did not observe anything unusual or suspicious about Mr. Morrison’s driving.  On the voir dire, when asked why the traffic stop was conducted, one officer replied: the traffic stop was being conducted to check for driver’s licence, registration, driver fitness, vehicle fitness.  Subsequently, a mandatory approved screening device demand was read and a sample taken from Morrison, who registered a “fail”.  Morrison was arrested for impaired operation and later charged with two counts: 320.14(1)(a) and 320.14(1)(b) of the Criminal Code.

As you would suspect, one of the issues the judge was asked to consider was whether the mandatory alcohol screening as permitted by s. 320.27(2) of the Criminal Code violates a person’s right under ss. 8 and 9 of the Charter, and, if so, is MAS saved by s. 1 of the Charter?  For the benefit of new recruits/officers, to reiterate:

Section 320.27(2) of the Criminal Code reads as follows:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search and seizure.

Section 9 of the Charter states:

Everyone has the right not to be arbitrarily detained or imprisoned.

Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The officer who initiated the stop did not observe any unusual driving by Mr. Morrison.  There were no traffic violations; the vehicle looked sound mechanically and there was no information from any source that the driver may have consumed alcohol or be impaired.  As the police officer testified, he believed he had the authority to stop Mr. Morrison pursuant to s. 209.1(1) of the STSA to check for driver’s licence, registration, vehicle fitness and driver sobriety.  I won’t get into that here, but similar legislation exists in other provincial legislation (e.g.  Section 83(1) of the MVA – Nova Scotia; Section 15(1)(d) of the MVA – New Brunswick; Section 253 of the Highway Traffic Act – Prince Edward Island). What is relevant across all jurisdictions is that police also possess the power to randomly stop vehicles to check for driver’s licence, insurance and driver sobriety, at common law. During the last thirty-five years, superior courts, including the Supreme Court of Canada, have periodically addressed this issue (i.e. R. v. Dedman, [1985] 2 SCR 2; R. v. Ladouceur, [1990] 1 SCR 1257;  R. v. Wilson, [1990] 1 SCR 1291, 107 AR 321; R. v. Hufsky, [1988] 1 SCR 621; R. v. Orbanski [2005] 2 SCR 3; R. v. Mellenthin, [1992] 3 SCR 615).  I think you get my point.  Very recently, the Alberta Court of Queen’s Bench, dealt with a motorist’s rights under s. 9 of the Charter, when the motorist was randomly stopped by a police officer who demanded that he provide a breath sample pursuant to the new s. 320.27(2) of the Criminal Code – R. v. Labillois, 2020 ABQB 200. The Provincial Court Judge in that case did not find a s. 9 Charter breach.

Essentially, what the SCC ruled in 1990 in the Ladouceur decision, and since then has on numerous occasions reaffirmed its earlier stated position, is that officers can stop persons only for legal reasons — in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle –, but once stopped the only questions that may justifiably be asked are those related to driving offences.

Considering this, the judge in Morrison found that Mr. Morrison’s s. 9 Charter rights were not breached.  Moving on, the next issue was were Mr. Morrison’s s. 8 Charter rights violated? Mandatory Alcohol Screening is explicitly authorized by s. 320.27(2) of the Criminal Code. The related traffic stop is an existing police power emanating from common law and statute, as I mentioned. Section 320.27(2) differs from its predecessor in two ways: first, it has the requirement of immediacy, whereas the previous provision, as it related to screening demands used the word “forthwith”. Courts generally interpreted “forthwith” to mean “immediately or without delay”. Whether Parliament’s attempt to provide clarity on this point is successful remains to be seen, as the word “immediately” may be scrutinized as much as “forthwith” was. Secondly, s. 320.27(2) requires that an ASD be in the possession of the officer(s) at the time they make the demand. This does represent a change in that it means that police can no longer detain a person until an ASD becomes available or is brought from another location. There is an increased sense of urgency as it relates to timing. The test may take place either in the driver’s vehicle or in the patrol car (I’ve made other posts regarding searches of the driver in this context). It seems the police officer administering the test has the discretion to determine where the test will be administered.

What the judge decided, essentially, was circumstances in which an accused is being asked to incriminate himself, such as providing a breath sample, where there are no apparent or any grounds present, and in the absence of any suspicion as it relates to his demeanour, or driving ability, or alcohol consumption and which is grounded entirely in legislative fiat, ought to be subject to constitutional protection enshrined in our Charter of Rights and Freedoms. Accordingly, the judge found that s. 320.27(2) of the Criminal Code does infringe on s. 8 of the Charter. But that did not end the debate there: the issue then becomes whether s. 320.27(2) of the Criminal Code is saved by s. 1 as a reasonable limit that is demonstrably justified in a free and democratic society? (a.k.a. the Oakes Test, named after the R. v. Oakes [1986] 1 SCR 103 decision). The test focuses on two main considerations: 1) the legislative objective must be sufficiently important to warrant restricting or overriding the Charter right; and 2) the means employed to achieve the legislative objective must be proportional to the objective.

The jurisprudence on roadside screening, while recognizing that it often violated the driver’s section 8, 9 and 10(b) Charter rights has for the most part upheld these violations as a reasonable limit under s. 1 of the Charter. The underlying rationale, it seems, was the recognition that impaired drivers are a scourge and danger to society and any reasonable restriction or limit on their freedoms was justified on the basis that it benefited the greater society. Consequently, even though the judge in Morrison found that s. 320.27(2) infringes s. 8 of the Charter, the violation is saved by s. 1. The salutary effects of the challenged legislation may become more apparent with the passage of time.

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Detention of Passengers in Vehicles

With the force of the winter season behind us (hope I didn’t just jinx it), more people will be out-and-about, traveling the roadways, which will likely result in increased police-citizen interactions on those roadways.  I thought it fitting to post something on that topic, but not in terms of the driver, but in terms of passengers in those vehicles.

Remember, driving is a highly regulated activity, so although drivers are statutorily compelled to produce identification (i.e. valid driver’s licence) and vehicle documents (i.e. registration and proof of liability-insurance) upon request/demand of a peace officer or face charges under the various Motor Vehicle (Highway Traffic) Acts, the same cannot be said of a vehicle passenger where that passenger is not committing an offence (e.g. wearing a seatbelt, does not have open liquor in the vehicle, is not consuming cannabis, etc.).  In such cases, whether an officer’s request of the passenger’s identification (name, date-of-birth, address) will amount to a detention or unreasonable “search”, or further still whether querying this information on CPIC for outstanding warrants, BOLOs, current court orders or charges, will be reasonable will all turn on the facts of each case, as I will highlight.

First, let me premise this by saying that the law on this issue is still open. The SCC has not yet expressed its view, so decisions of the various appellant courts (and lower courts) across this country are mixed, at best:

As Doherty JA stated in Brown v. Durham (Regional Municipality) Police Force (1998), 43 OR(3d) 223 at para 31 (CA), leave to appeal to the SCC granted, but appeal discontinued, [1999] SCCA No 87:

“The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating section 216(1) of the [Highway Traffic Act], I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention.”

Likewise, in R. v. Harris 2007 ONCA 574, the Ontario Court of Appeal stated the following on this issue (at para 26):

“I cannot agree that the request of Harris for identification for purposes unrelated to the Highway Traffic Act altered the constitutionality of his detention. Harris was detained by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Actviolation, and Lipkus’s [the police officer’s] lawful assuming of control over the movements of the passengers in the vehicle. On the trial judge’s factual findings, Lipkus’s request for identification did not prolong or alter the nature of Harris’s detention. He remained in exactly the same position he would have been in had Lipkus questioned only the driver.”

In R. v. Coady, 2012 ABPC 194, after a vehicle had been stopped for legitimate reasons, an officer prevented a passenger who had exited the vehicle from leaving the scene and made persistent efforts to have him identify himself. In that case, there was no connection between the detention of the vehicle for traffic safety reasons and the subsequent detention of the passenger who tried to leave the scene; the court concluded that the detention was arbitrary and the arrest and search occasioned by the improperly compelled identification, unreasonable.

The officer’s request for R. v. Loewen’s (2018 SKCA 69) 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” (an earlier post of mine on this issue). 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.

I could go on to highlight other cases, but hopefully these will address the issue.  What is interesting is that many courts do not seem overly critical of officers running this information on databases (e.g. CPIC), but they are with the act of detaining the person to do so:

[an individual] does not have a reasonable expectation of privacy with respect to information in CPIC, at least insofar as police officers are concerned. A reasonable and prudent individual would assume that information about him or her emanating from a public court process will be available to police officers through an information data system such as CPIC.

…Absent a ‘detention’, merely asking for identification does not constitute a s. 8 ‘search or seizure’.

In R. v. Mooiman and Zahar, 2016 SKCA 43, 476 Sask R 216 the Court stated at paragraph 22:

True, the effect of stopping a vehicle and detaining the driver may impair the passenger’s ability to proceed further, but – all other things being neutral– nothing about a routine traffic-safety stop prevents a passenger of the vehicle from simply walking away. Similarly, absent a legal requirement under The Traffic Safety Act, the fact a passenger in a vehicle is necessarily caught up by a traffic-safety stop does not thereby legally compel or obligate the passenger to comply with the investigating police officer’s requests for information or assistance…

So, the takeway: Section 10 of the Charter provides that individuals who are arrested or detained have the right (a) to be promptly informed of the reasons for the arrest or detention, and (b) to retain and instruct counsel without delay and to be informed of that right. The duty of the police to inform a detained person of his or her s. 10 rights “is triggered at the outset of an investigative detention”: R. v. Suberu [2009] 2 SCR 460 at para 2. A police request for identification does not necessarily amount to detention, but “delays that involve significant physical or psychological restraint” will necessarily trigger ss. 9 and 10 of the Charter.

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