Category Archives: Recent Case Law

Implications Of Bill C-46 – Impaired Driving

The landscape around drinking and driving has changed with the coming into force of new impaired driving laws on December 18, 2018. The Bill charges the wording of the offence to prohibiting a blood alcohol concentration of over .80 within 2 hours of the time of driving. The additional of the 2 hours of the time of driving eliminates the defence of ‘bolus drinking’ where an accused person would argue that they drank a large amount of alcohol just before driving and therefore were not impaired at the time of driving. What is possible here is that, based on the rate of absorption of alcohol into a blood, a person’s behaviour could be criminalized for driving while having alcohol in their system, even if their ability to drive was not actually impaired by the alcohol.

Perhaps the biggest change for us as police officers is that we will now be able to ask for an ASD demand of any lawfully stopped driver, regardless whether we have a reasonable suspicion that they have been drinking. Prior to this change, we needed at least a reasonable suspicion that someone had been drinking. This threshold was a relatively low one to meet: the admission of consumption of alcohol, often coupled with any indicia of impairment, such as glossy eyes or an odour of alcohol, etc. would be enough to give us grounds for an ASD demand. The ability to ask for a demand absent any suspicion of impairment has attracted much criticism from lawyers for violating the right to be free from search and seizure, and will very likely be the subject of a constitutional challenge in the courts.

In addition, Parliament created an offence of having too much drug in your blood. The judge doesn’t have to find that it impaired you, only that the concentration of the drug exceeded the legal limit. Here is the link: https://www.canlii.org/en/ca/laws/regu/sor-2018-148/latest/sor-2018-148.html

Marihuana is looked at differently: if the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it’s a criminal offence, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it’s punishable by the same penalty as impaired driving or over 80mg% of alcohol. As well, driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving. Although this table is not exhaustive, I’ve attempted to summarize the important changes for officers (I apologize for the table format – WordPress is not user-friendly for creating tables!):

Offence (CC) Old (CC) New (CC) Changes
Dangerous
Driving
249 320.13(1) No substantive change but simplified as
conveyance (new) rather than separate
paragraph offences for motor vehicle, vessel, aircraft, etc. (old).
 
Impaired
Driving
253(1)(a) 320.14(1)(a) No substantive change but now specifies
impairment to any degree.
       
.08 or Over 253(1)(b) 320.14(1)(b) The offence
changes from
having too
much alcohol
in your blood
while driving to having too
much alcohol
in your blood
in the 2 hours
after driving. 
Also, old was
“exceeds 80mg%” – new is
“equal to or
exceeds
80mg%”. Note – the exceptions are given in
subsection (5).
 
Over Drug
Limit
253(3)(a) 320.14(1)(c) The offence is
committed in
the 2 hours 
after driving.
For THC
(marihuana)
there are two
limits: 2ng/mL and 5ng/mL
Note – the
exceptions are given in
subsection (6).
 
Lower
Marihuana
Limit
253(3)(b) 320.14(4) Lower
penalties for 
2ng/mL of THC (marihuana).
 
Over Limit for Alcohol & Drug Combined 253(3)(c) 320.14(1)(d) 50mg% alcohol + 2.5ng/mL of
THC.
 
Refusal 254(5) 320.15(1) Wording added “knowing that a demand has
been made”
and added
separate
offences of 
liability
regarding 
respecting
injury or death at time demand made.
 
Failure to Stop/Remain 252 320.16(1) Old offence was a specific intent offence – “with intent to escape civil or
criminal
liability”. New
offence is a
general intent
offence – the
Crown need not prove any
purpose for the flight. 
Reputable
presumption – “without
reasonable
excuse”
 
Flight from
Police
249.1 320.17 Simpler
language but
repealed bodily harm and
death offences.  As well, only
mentions
“motor vehicle or vessel”, not
conveyance as
the other new
provisions have
 
Driving While
Prohibited
259(4) 320.18(1) Change of
language from
“disqualified”
to “prohibited” – no substantive change.

 

I expect a lot of constitutional arguments in the months and years to come, especially since the new legislation now allows, where legislation compels drivers to report accidents (e.g. provincial Motor Vehicle / Highway Traffic Acts), police to use that information to form grounds for demands.  I’ve made several posts over the years on courts ruling that “statutory compelled statements/reports” are inadmissible when pursuing a simultaneous criminal investigation, so this one will be interesting. Also, because the drug screening equipment isn’t perfect, and gives false positives, defence will argue it’s unconstitutional to use it for sure.  One final note for this post: because of the changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you’re a breath technician, you’ll have to start using these new ones now.

 

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Are you an officer that is in a category of Prosper warning ignorance?

In R. v. Sivalingam 2018 ONCJ 510, he was stopped by Peel Regional Police for speeding in the early morning hours.  Sivalingam was arrested for driving over 80 after failing an approved screening device (ASD) test. He was taken to the station where Intoxilyzer tests revealed that his blood alcohol content was over 80.

At his trial, he applied to exclude his breath test results under s. 24(2) of the Charter, on the grounds that his right to counsel under s. 10(b) of the Charter had been violated. He argued that when attempts to reach his lawyer were unsuccessful, the officer ought to have made it clear that he could have contacted another lawyer, or spoken to duty counsel, before taking the Intoxilyzer tests.

When the officer informed Sivalingam at the roadside of his right to counsel, Sivalingam said he did not wish to speak with a lawyer. The officer told Sivalingam to tell him at any point if he wanted to speak with counsel. Once they arrived at the police station, the officer asked Sivalingam again if he wanted to speak to a lawyer. This time, Sivalingam said that he wanted to call a specific lawyer. First, the officer called the lawyer’s cell phone number at 1:42 a.m. Because there was no answer, he left a voicemail. The officer then called the lawyer’s office number at 1:44 a.m. Finally, the officer called a 24-hour emergency contact number, where he again left a voicemail after receiving no answer. The officer believed that he made the foregoing calls while Sivalingam was going through the booking process. He said he made the calls on speaker phone while at the booking desk. In cross-examination, the officer acknowledged that he could not be sure that Sivalingam saw him making these calls, but that he would have told him he was getting no answer.

Just before entering the breath room, the officer made a final call to the lawyer’s cell phone number. Again there was no answer. The officer entered the breath room at 1:54 a.m. with Sivalingam entering shortly thereafter. The officer confirmed that he had called the lawyer of choice three times. He also explained that “if and when [the lawyer] does call, we’ll stop what we’re doing and get you on the phone with him okay.” The officer proceeded to read the primary and secondary cautions, which Sivalingam said that he understood.  The officer then read the Intoxilyzer demand to Sivalingam again. After reading the demand, the officer explained to Sivalingam that, if he refused, he could be charged with refusal, and it carried the same consequences as being over the limit. The officer then explained to Sivalingam why there was no downside to him providing breath samples.

The officer explained the breath testing procedure to Sivalingam. Just before administering the first test, at 2:03 a.m., the officer called the lawyer again. After leaving a message, the officer told Sivalingam that if the lawyer called back before the first test, he would stop and allow Sivalingam to speak to him. The officer did not give Sivalingam the option of calling another lawyer, or speaking with duty counsel. During his testimony, the officer explained that they had already been waiting for some time and he had just made the third call, and he said that he normally had luck with 24-hour numbers and he did not have any luck this time. The officer acknowledged that he was not concerned about the two-hour limit within which to perform the first breath test.

The judge ruled that the officer breached Sivalingam’s s. 10(b) Charter rights by not holding off performing the Intoxilyzer tests before Sivalingam had a reasonable opportunity to consult counsel. After the officer was unable to reach the lawyer of choice at 2:03 a.m., he should have given Sivalingam the option of calling another lawyer or duty counsel. The judge said by the officer’s own admission, there was no urgency in conducting the tests. Sivalingam never waived his right to counsel. The officer effectively waived it for him.

The judge went on to say that where circumstances warrant — as they did here — the police should remind a detainee of the availability of duty counsel, or the option of calling a lawyer, where repeated attempts to contact counsel of choice fail, and where the detainee is not insistent on speaking only with a specific lawyer. Especially, said the judge, if the police are in complete control of a detainee’s access to the phone and to the ability to even look up another lawyer’s number. The police should not leave the impression that, if counsel of choice is unavailable, there are no other options. That is what happened here.

The judge said that where a detained person’s initial counsel of choice is unavailable, the police should not simply carry on as if the detainee has exercised his or her right to counsel. In the absence of an explicit waiver, the police must continue to hold off eliciting evidence until the person has exercised the s.10(b) right earlier invoked. Common sense would suggest that the next logical step would be to point out to the detainee that counsel has not called back, and ask detainee whether he or she wishes to try another lawyer or duty counsel. If after being given the option, the detainee insists on speaking with only one specific lawyer, the law does not require the police to wait indefinitely for that lawyer to call back before starting the breath testing process. In this case, the officer may have been diligent in his attempts to get hold of the lawyer of choice; however, he was not diligent in assisting Sivalingam to exercise his right to counsel generally.

As a side note, the judge also found it troubling that the officer had no idea what a Prosper warning is and when it is required. Although the judge found that a Prosper warning was not required here, the judge agreed with defense counsel that it demonstrated an ignorance of Charter requirements. In the judge’s view, this ignorance of Charter standards provided important context to the breach that did occur, and made the breach more serious. Sivalingam should have been given an opportunity to speak with a lawyer before he performed the Intoxilyzer tests. Because he was not given that reasonable opportunity, his s. 10(b) Charter right was infringed. In the circumstances, the Intoxilyzer test results were excluded under s. 24(2) of the Charter.

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Failure to ask accused if he wants to speak to a lawyer.

The case of R. v. Knoblauch 2018 SKCA 15 addressed the question of whether a detained person’s right to legal counsel, as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms [Charter], is breached by a police officer who, after properly informing the detainee of his or her right to counsel, fails to ask whether the detainee wishes to consult with a lawyer.

The arresting officer advised Knoblauch that he was under arrest for impaired driving. The officer then advised Knoblauch of his section 10(b) Charter right to counsel. When asked if he understood his right to counsel, Knoblauch said “Yep, yes”. The officer did not go on to ask Knoblauch if he wanted to speak to a lawyer while he was in the back of the patrol car. The evidence revealed that the officer was distracted by a number of police radio transmissions occurring at this time. Two minutes later, the officer made a breath test demand of Knoblauch and also provided a police caution to him. Knoblauch indicated that he understood the breath demand and the police caution.

The officer’s report indicated that at roadside, “the accused understood all warnings and declined to call a lawyer“. The trial judge found the patrol car video clearly showed that at roadside Knoblauch had not been asked if he wanted to call a lawyer and had not declined to do so.

On cross-examination, the officer admitted his notes read that at another time, he had “again” asked Knoblauch if he wanted to call a lawyer. The trial judge determined that statement was inaccurate as the officer had not made any prior inquiry. The trial judge concluded the two inaccuracies identified by him affected the credibility and reliability of the officer’s evidence and, as such, the trial judge found “that at no time did [the officer] ask Knoblauch if he wanted to call a lawyer”.

So, does a police officer, who has complied with the informational component of s. 10(b) of the Charter (duty to advise), have a duty to ask a detainee whether he or she wants to consult with a lawyer? At para 25:

It is now well settled that s. 10(b) imposes certain duties on police officers when arresting or detaining individuals, namely:

(a) to inform a detainee, without delay, of his or her right to retain and instruct counsel;

(b) if a detainee has indicated a desire for counsel, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(c) to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he or she has had a reasonable opportunity to consult and retain counsel (except in urgent and dangerous circumstances).

The existing jurisprudence states that the first duty identified has been described as an informational one, while the second and third duties are implementational in nature andare not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. In R. v. Brydges [1990], the Supreme Court of Canada provided guidance on what is required by police officers in fulfilling their informational duty. The majority of the Court held that in addition to advising detainees of their right to retain and instruct counsel without delay, police officers must also advise detainees of the existence and availability of Legal Aid and duty counsel.

Police services provide their officers with caution cards, which are used by the officers to inform detainees of their s. 10(b) Charter right. Some such cards include a question as to whether the detainee wishes to consult counsel; others do not.

The SKCA in this case said there is no magic to the incantation of the words on such cards. What is important is not the words used but, rather, whether, in the circumstances as a whole, a detainee has been properly informed of his or her right to counsel. At para. 51:

In summary, both the trial judge and the appeal judge concluded [the officer] had properly fulfilled his informational duty by informing Mr. Knoblauch of his right to counsel as described by the Supreme Court of Canada in Brydges and Bartle. In accordance with judicial authority, no further duties were imposed on [the officer] with respect to Mr. Knoblauch’s s. 10(b) right to counsel, unless and until Mr. Knoblauch invoked that right.

Simply put, the SKCA concluded there is no duty on a police officer, who has complied with the informational component of a detainee’s s. 10(b) right to counsel, to inquire whether a detainee wishes to exercise that right.

Note: please follow the issued cards provided to you by your agency to inform detainees of their s. 10(b) Charter rights. If your card includes a question as to whether the detainee wishes to consult counsel, continue to do so unless or until those changes are made within your jurisdiction by the appropriate authorities.  This decision may be binding in Saskatchewan, but it is not an SCC decision [yet], so adhere to binding decisions and policies in your jurisdiction as the case may be.

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Search warrants and typographical errors

R. v. Campbell 2018 NSCA 42 – police executed a search warrant at a home in Brooklyn, N.S. The respondent was subsequently charged with drug and firearm offences. The respondent challenged the validity of the search warrant. He submitted the warrant was fundamentally flawed on its face and, as such, the search undertaken of his home constituted a breach of his right under s. 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure. He further argued that the evidence collected by virtue of the search ought to be excluded.

In challenging the warrant, the respondent did not suggest that the information contained in the Information to Obtain (ITO) did not give rise to reasonable grounds to believe evidence of an offence would be found at his residence. The sole basis of the respondent’s challenge was in relation to an error on the face of the warrant itself. He submitted this error alone was sufficient to render it invalid.

Police had responded to a call earlier in the day from the general public about a male walking down the road with a shotgun. Arriving on scene, police observed a male entering a mini-home on Gaspereau River Road, Brooklyn, N.S., carrying a firearm. Police followed him to the mini-home and arrested the man for firearm related offences. The first male was taken to the police station for further questioning. A search of the property was subsequently undertaken by three officers for public and officer safety. Cannabis plants were located in the kitchen and in a greenhouse in the backyard. Officers also found an unsecured .22 caliber rifle next to the cannabis plants in the greenhouse. The police officers left the residence and began conducting surveillance while awaiting a search warrant to be approved. During the surveillance period, a second male (the respondent) arrived and advised the officers that he lived at the mini-home. He was arrested and transported to the police station as well. The search warrant was approved by a Justice of the Peace

The error?

This warrant may be executed between the hours of 6:00 p.m. on the 7th day of May, 2016 and 9:00 p.m. on the 7th day of January, 2016.

Maybe a ‘cut and paste’ error, or the wording in a prior template (search warrant) not being corrected (my thoughts, not the court’s).  Of course, the question to address was, “Was this merely a typographical error, or was it a serious fundamental defect that makes the warrant invalid?”  The NSCA discussed that the trial judge was well aware that a warrant could contain a typographical error which would not impact on its presumptive validity. However, some errors went beyond such harmless errors and may be problematic. The trial judge clearly understood that some errors on the face of a warrant could be trivial and did not import into her reasoning a standard of facial perfection.

Where a search warrant appears regular and valid on its face, issued by the proper justice, it represents, until quashed by subsequent proceedings, full authority to the officer in entering, searching and detaining goods according to its terms and directions. The search warrant should, on its face, appear to be issued in the form prescribed by the statute, and issued by the proper court officer, in order to the officer to act upon it. The executing officer will then be justified in carrying out its mandate even though the information may have been legally insufficient to authorize the issuing of the search warrant, and even though the search warrant might be set aside if an application is made (cited from Fontana and Keeshan in The Law of Search & Seizure in Canada, 8th ed. at page 61).

At para. 36 in Campbell:

Implicit …..is the expectation that an executing officer should assure him or herself that they are about to act in accordance with the terms of the warrant. That necessitates that they read it. Here, the warrant was not “regular” on its face — it contained an obvious error with respect to the time frame for execution. It was well within the purview of the trial judge to infer either that the obvious error was not noted by police, or conversely, they acted on it notwithstanding the error. No evidence was offered to explain why or how the police acted in the face of an obvious error on the warrant.

Due to the negligence of the police in obtaining and executing the search warrant, the resulting grow op and firearms evidence was excluded.

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Checking on child welfare does not necessarily permit warrantless police searches

In R. v. McMahan 2018 SKCA 26, police received a call from the local Mobile Crisis Unit regarding an anonymous tip concerning the well-being of the children living in Ms. McMahon’s residence. Specific concerns identified by the tipster were poor living conditions and children not fed properly. Since the tip had been received by Mobile Crisis on a weekend, and because it had no staff in proximity to McMahon’s home, Mobile Crisis asked the police to “go and just take a look, find out what things were like and report back to them”. Two police officers attended the residence and McMahon greeted them outside. After being informed of the reason for the police visit, McMahon requested a few minutes to clean up the home, but was denied. The officer denied her request, stating it would be inconsistent with the purpose of a “spot check”. The discussion that took place outside McMahon’s home lasted no more than five minutes. McMahon then turned, opened the door, and entered her residence.

The officers followed her inside. Upon entering the home, the police smelled burnt marihuana. One of the officers also observed a jar of marihuana bud and the adults in the home were arrested (McMahon and two others). As there were no adults left to supervise the three children, the police determined that they should be taken into care. While assisting the children in preparing to leave the residence, one of the officers entered a room and noticed a number of marihuana plants. A search warrant was later obtained and 191 marihuana plants were seized pursuant to the warrant. McMahon applied to have the marihuana plants that were seized from her residence excluded from evidence at trial on the grounds that the police had entered her home and seized the plants without lawful authority. The trial judge allowed the application and excluded the evidence. He found that the investigating officer exceeded her powers by entering the home without a warrant and that the subsequent search and seizure of the marihuana plants amounted to a violation of McMahon ‘s s. 8 Charter rights.

The Crown appealed, arguing that the trial judge erred in finding the police had entered the home without lawful authority, erred in finding that McMahon’s privacy rights were engaged, erred in applying the standards applicable to gathering evidence in a criminal investigation to a child welfare inquiry, and erred in excluding the evidence.

Since the Crown principally relied upon the Child and Family Services Act (CFSA) as authority for the warrantless search, this legislation was examined.  The legislation’s purpose is to promote the well-being of children “in need of protection” by offering services designed to maintain, support and preserve the family in the least disruptive manner. Children are considered to be “in need of protection” if the child’s situation meets one of the circumstances described (s. 11), including a circumstance where “there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur”. Section 12 of the CFSA legally obliges any person who has reasonable grounds to believe a child is in need of protection to report that information to an officer or a peace officer.

Where a report is made to a child protection worker or peace officer, the recipient of that report must investigate the information set out therein if the child protection worker or peace officer, as the case may be, has reasonable grounds to believe that a child is in need of protection. The CFSA lays out a number of approaches available to child protection workers when a child is considered to be in need of protection. The level of intervention ranges from the least disruptive (support services, mediation, agreements with the parents for residential care), to more interventionist measures (apprehension, protective intervention orders, temporary or permanent guardianship orders).

The CFSA does not expressly authorize a peace officer to enter a private dwelling for the purpose of conducting an investigation; it does set out the authority for and conditions upon which a warrant to enter a private home may be obtained, notably, when an officer has not yet determined if a child is in need of protection and needs access into the home in order to make that determination.

The Crown’s position also, both at trial and on appeal, was that warrantless entry into McMahon’s home was justified under the common law police duty to preserve the peace, prevent crime and protect life and safety. In other words, the police response to the anonymous tip about McMahon’s children engaged a positive obligation on their part to assist McMahon’s children who may have been in distress, even if the extent of their distress was unknown to them at the time they received the tip. The Crown argued the anonymous tip was akin to a 9-1-1 call and therefore constituted sufficient evidence of the reasonableness of the police action. Finally, the Crown suggested that once the common law duty is found to exist, the police are both authorized and duty bound to enter a private dwelling without a warrant in furtherance of their power, without considering whether entry was reasonably necessary in the circumstances.

The SKCA found the warrantless entry was not justified by child welfare concerns in the absence of exigent circumstances. The testimony of the officer at trial did not satisfy the trial judge that she believed the life or safety of the children were in danger; she only had a vague, anonymous tip that the children were not being properly fed and the house was in poor condition.  As such, the officer did not have reasonable grounds to believe that the children were in need of protection. There was no direct evidence that the children were in distress. The anonymous tip, which was received second hand and came from an unknown source, was vague and not compelling or credible. The warrantless entry was without McMahon’s informed consent. McMahon was not advised of her right to refuse police entry or of the ability of the police to get a warrant under the Child and Family Services Act. No matter how well intentioned the officer was, the warrantless, non-consensual, non-urgent search of her home was a serious violation of her s. 8 Charter rights.

Of note, even though the legal basis (principles) discussed in this decision appear sound, your provincial legislation may grant or authorize other powers that the CFSA in Saskatchewan does not, so please refer to the relevant legislation in your territorial jurisdiction for guidance.

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Know the lawful limits of your authority.

R. v. Noftall 2016 NLCA 48 – officers assist other agencies on a regular basis and oftentimes enter private property under the authority of that agencies mandate (legislative authority). If we are assisting animal control officers, social workers, etc. and doing so under their legislation, as officers we are expected to know and abide by our lawful limits within that legislation.

A social worker with the Department of Child, Youth and Family Services in Fortune, NL, received a telephone call reporting that a child about one year of age may be in need of protective intervention. The social worker knew the caller but did not know either Noftall or his partner, the child’s mother. The caller reported that “there was information in the community” that Noftall and his partner had a grow-op in their home from which illegal drugs were being sold. The social worker contacted her supervisor and it was decided that the report should be investigated without delay. Before approaching the Noftall house, the social worker contacted the RCMP and requested that a police officer accompany her and her colleague, also a social worker, for the investigation. The officer testified that he went with the social workers, not because of the allegations, but to ensure their safety as they investigated the referral that there was a child in the house who might be at risk of harm.

Like most provinces, NL has legislation which provides for investigation of a report of a child in need of protective intervention and the agency can request the assistance of a peace officer (in this case, the RCMP legislation provided for preservation of the peace under section 18(a) of the Royal Canadian Mounted Police Act, RSC 1985, c. R-10). Any officer assisting must know their lawful authority and limits under the specific legislation for their territorial jurisdiction.

Both the social workers and the officer smelled a strong odour of marihuana when they entered the house. The social worker, accompanied by the officer, proceeded to search the house after the social worker indicated to Noftall that she did not require a search warrant. Noftall showed the social worker and the police officer to the bedroom where the social worker saw six tubs in a closet in one of the bedrooms containing plants. Noftall was arrested for growing marihuana. Police then obtained a search warrant and seized the marihuana plants and related paraphernalia. The trial judge found that because the officer merely accompanied the social workers for their protection, the officer did not breach s. 8 of the Charter.  The NLCA disagreed.

The officer knew that the social workers were investigating a report that a child may be in need of protective intervention based on the presence of a marihuana grow-op and drug trafficking from the child’s home. Upon entering the house, the officer detected a smell, indicating to him the presence of growing marihuana. The trial judge accepted that this officer was competent, from his experience and training, to distinguish the smell of growing marihuana from that of dry or burnt marihuana.

According to the NLCA, when he smelled the marihuana, the officer had two separate mandates: that is, securing the safety of the social workers, and investigating a possible offence. He could not use the former to clothe the latter with authority that would otherwise result in a breach of Noftall’s rights under section 8 of the Charter. In order to avoid this conundrum, the officer could have taken the following approach, said the court. When he smelled the marihuana which he identified as “growing”, he could, as he did, have given this information to Noftall, the child’s mother, and the social workers. At that point, he could have proceeded in a manner that would have been consistent with both his mandates by asking all present to remain in the kitchen while he took action to obtain a search warrant. A warrant, which may be requested by telephone, would have provided authorization for a search under the Controlled Drugs and Substances Act consistent with Noftall’s rights under section 8 of the Charter (as a side note to junior officers reading this, although many ITOs have to be submitted in writing, 11(2) of the CDSA allows for an application via telephone – oral application).

The appeal court noted in passing that Noftall’s conduct could not be construed as informed consent to the search for purposes of grounding a charge under the Controlled Drugs and Substances Act. He showed a social worker and the officer to the location of the marihuana plants in reliance on the social worker’s representation that a search warrant was not required. The court also noted further that a request by the officer that Noftall remain in the kitchen with him would constitute an investigative detention, engaging the relevant law. It was unnecessary to consider the issue in this case since that was not the approach taken by the officer.

In the circumstances, the police officer’s failure to obtain a warrant prior to a search for the location of the marihuana plants resulted in a breach of Noftall’s rights under section 8 of the Charter for purposes of investigating an offence and laying a charge under the Controlled Drugs and Substances Act. The trial judge erred in concluding that the officer’s involvement in the social worker’s investigation under the Act allowed him to search Noftall’s residence and to lay a charge when he was led to the location of the plants which, together with the firearm, were then in plain view.

Despite the violation, following the Grant analysis, the evidence was admitted and the conviction held by the NLCA.

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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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Filed under Arbitrary Arrest or Detention, Investigative Detention, Recent Case Law, Section 10 Charter

Standard Practice of Conducting a Pat-down Search to Make Sure Individuals Do Not Have a Weapon on Their Person When Being Seated in a Police Vehicle.

Allow me first of all to premise this latest post with a caution that as a police officer, I may not always appreciate or agree with the higher reasoning behind a decision(s) of a court from an officer’s standpoint, like many of you. At the same time, as the instructor of all the law programs of the Atlantic Police Academy, I feel it is my duty to advise all officers of that decision when it effects the way we do our jobs and attempt to leave my personal view out of the mix.

As I begin, the events being discussed are not in the context of someone who is under a lawful arrest because that is a totally different situation. Many of us have been in a position where we are offering a person a ride home to prevent the commission of a future offence, to safeguard a citizen from potential harm, or to fulfill a civic-minded duty and offer a citizen a drive home, whatever the circumstance may be at the time. Then , there are times when we chose to place a driver suspected of driving while his or her ability to do so is impaired by alcohol in the back seat of our police cruiser to conduct the ASD test. In those events, and I’m sure you can think of others, most officers’ standard practice is to conduct a pat-down search to make sure individuals do not have a weapon on their person when seated in a police vehicle. This is a grave officer safety concern, is it not? Anyone being placed in the back of a police vehicle would likely get a pat-down search and may even be handcuffed in some cases. What do we do in a case where evidence of a criminal offence (e.g. possession of a controlled substance) is found during that pat-down search? Do we charge, or not charge?

These questions have been the topic of some debate over the past couple of years. The case R. v. Aucoin 2012 SCC 66 rekindled this debate. As a quick background, Aucoin was a case out of Kentville, Nova Scotia, in which the male driver was pulled over because the licence plate on his vehicle was registered to a different vehicle. As a newly licensed driver, Aucoin was prohibited from having any alcohol in his system while driving. The officer administered a roadside screening test which revealed alcohol in Aucoin’s system and he decided to impound Aucoin’s vehicle and issue him a ticket for contravening the Motor Vehicle Act. There were a lot of people milling around (the annual Apple Blossom Festival) and the officer was concerned that Aucoin might walk away and disappear if he were allowed to remain outside of the police vehicle. Accordingly, he decided to secure Aucoin in the rear of his cruiser while completing the paper work. He then sought and received permission from Aucoin to do a pat-down search for safety reasons. The officer felt something soft in his pocket. He asked what it was and Aucoin replied that it was ecstasy. That response prompted his arrest and a further search of his pocket revealed eight bags containing cocaine. Aucoin submitted that the officer in that case had no right in the circumstances to perform a pat-down search on him. That search, he claimed, was unlawful and in violation of his right to be free from unreasonable search and seizure. He further argued that the breach was serious and that the cocaine found in consequence should have been excluded.

The SCC in Aucoin said that the case did not turn on whether the officer had the authority to detain Aucoin in the rear of his police cruiser having lawfully stopped him for a regulatory infraction. Rather, the question was whether he was justified in exercising it as he did in the circumstances of that case. In order to justify securing the driver in the back seat – knowing that this would also entail a pat-down search – detaining the driver in that manner had to be reasonably necessary. Backup was close at hand, something the officer could readily have ascertained. Had he done so, he could have waited an extra minute or two to do the paper work, without impinging on Aucoin’s right to be released from detention as soon as reasonably practicable. The officer’s actions, though carried out in good faith, were not reasonably necessary. Because detaining Aucoin in the back of the cruiser would have been an unlawful detention – given there were other reasonable means by which the officer could have addressed his concern that Aucoin might flee – it could not constitute the requisite basis in law to support a warrantless search. Therefore, the pat-down search was unreasonable and constituted a breach of his Charter right against unreasonable search and seizure. In cases where the police acted in good faith and without deliberate disregard for or ignorance of Charter rights – as was the case here – the seriousness of a breach could be attenuated. The SCC in that case found that the breach was not sufficiently egregious to warrant the exclusion of the cocaine from evidence in that specific case because of the “very unusual circumstances at play” on the night in question. Had the trial judge found otherwise, the breach would have been much more serious and may well have warranted exclusion under s. 24(2) Charter according to the SCC.

So, what the SCC found was that the actions of the officer in those “very unusual circumstances at play” that night did not warrant the exclusion of evidence. But think about it? The bottom line was that the SCC found the pat-down search was unlawful and if not for the “very unusual circumstances at play” that night, the evidence likely would of have been excluded.  As officers, the lesson here is the court’s finding of the unlawful pat-down search, not that the evidence was admitted, because the admission or exclusion of the evidence is left to the Grant test and the judge’s analysis of that in each case. We seem to forget about the decision on the pat-down search itself, a point that the minority in the Aucoin case ensured was addressed (i.e. 5 justices ruled to admit the evidence found; 2 ruled to exclude it, but all 7 ruled the pat-down search itself was unlawful) because before this case, the SCC said the law surrounding police policies in the detention context was still evolving – that is no longer the case once the judgment was given in the Aucoin decision, moving forward. As highlighted by the minority in the Aucoin case in para. 93:

In direct examination, [the officer] testified that it was his standard practice to conduct a pat-down search whenever someone was going to be placed in the back seat of the police car (A.R., vol. II, at p. 19). In his view:

… it’s an officer-safety issue because I have no idea what an individual could have in his possession that could harm himself or harm me while my back is turned to him and he’s in the rear of the patrol car. [A.R., vol. II, at p. 18]

This is simply not a sufficient basis for authorization of a search. The power to search does not arise as a matter of course from the fact of detention. Nor can it be justified on the basis of a vague concern for safety. Rather, the police are “required to act on reasonable and specific inferences drawn from the known facts of the situation” (Mann, at paras. 40-41). In cross-examination, [the officer] conceded that he had no reason to suspect that Mr. Aucoin had any weapons in his possession (A.R., vol. II, at p. 39). This belies any suggestion that there were reasonable grounds for the search.

Now, we even have a majority decision out of the SCC in R. v. MacDonald 2014 SCC 3, 303 C.C.C. (3d) 113 in which the majority of the court concluded safety searches are authorized by law only if the officer believes on reasonable grounds his or her safety is at stake and that, as a result, it is necessary to conduct a search.  Some courts have been ruling that MacDonald is distinguishable because the safety search with which the court was concerned in MacDonald was not incidental to an investigative detention, but free-standing.  Nevertheless, the standard at this point is a reasonable belief an individual’s safety is at stake.

A recent case out of the Alberta Court of Queen’s Bench (R. v. Wondu [2015] A.J. No. 430) involved an officer conducting an ASD test. Given the location of the traffic stop, the officer felt it was safest to conduct the test into the approved screening device in the rear seat of his police vehicle rather than on the street adjacent to his police vehicle. Before placing Mr. Wondu in the police vehicle, he conducted a pat-down search of Mr. Wondu’s pockets to determine that there was nothing intrusive in his pockets and to ensure that Mr. Wondu did not have any weapons on him. The officer confirmed that it was his standard practice to quickly pat someone down, even if they were not under arrest, before such an individual was placed in his police vehicle. No evidence was found as a result of the pat-down search. The trial judge stated that:

In balancing these factors, however, the concern of the Court goes well beyond the charges against the accused. The evidence before this Court is that there is a standard practice by some members of the Edmonton Police Service, including one individual in training other officers, to conduct unlawful pat-down searches in certain circumstances. This is a practice that has undoubtedly violated the rights of accused persons in the past and, if it continues, will violate the right of accused persons in the future…

While the trial Judge in Wondu found that the pat-down search was not functionally related to obtaining the evidence, she held that requiring the accused to submit to the pat-down search was “sufficiently related” to the authority requiring Mr. Wondu to compel breath samples that it permitted a consideration of the exclusion of the compelled evidence. The trial Judge at a minimum found that there was a contextual connection between the Charter breach and the impugned evidence.  The Alberta Court of Queen’s Bench ruled that the trial Judge committed no errors in coming to the conclusion which she did and accordingly excluded the certificate of analysis.

So, what is the answer to all of these standard practices to quickly pat someone down, even if they were not under arrest, before such an individual is placed in your police vehicle?  As an officer, I can’t answer that for you, but as the law instructor of the Atlantic Police Academy, I can only offer up that the courts do not view things as we do on the streets in most cases.  For the most part, a standard practice to conduct a pat-down search whenever someone is going to be placed in the back seat of the police car is simply not a sufficient basis for authorization of a search. The power to search does not arise as a matter of course from the fact of detention, nor can it be justified on the basis of a vague concern for safety. Rather, the police are “required to act on reasonable and specific inferences drawn from the known facts of the situation” as was the case in Aucoin.

Have we come to a point in time where in cases of no authority to conduct a pat-down search incident to a lawful arrest or investigative detention that we must seek informed consent to search them before offering to give someone a drive home in the event evidence of a criminal offence is found on their person in order to meet our officer safety concerns for it to still be lawful?  Informed consent has also been the debate of such cases as R. v. Wills (1992), 70 C.C.C. (3d) 529, [1992] O.J. No. 294 (Ont. C.A.), R. v. Borden, [1994] 3 S.C.R. 145, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147, [1994] S.C.J. No. 82 (S.C.C.), and so on, in which briefly, we have to:

  • inform the person of the reason for the request (e.g. officer safety before placing them in back of the police car, even though they are not under arrest or investigative detention) and the possible consequences he or she faces for granting permission;
  • ensure that the person understands that the consent is voluntary and that there are no consequences for refusing consent; and
  • make it clear to the person that he or she may revoke consent at any time.

This would fly in the face of informed consent because there is a consequence to refusing consent – the person will be refused a drive if they refuse to allow a pat-down search.  It would seem the duty to serve the community and it’s citizens we are sworn to protect and the duty to protect ourselves and go home to our loved ones after each shift is at great conflict today more than ever.  So much for leaving my personal view out of the mix…..

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Filed under Recent Case Law, Safety Search, Search and Seizure

Right to Counsel of Choice

It seems most case law as of late is in regards to s. 10(b) of the Charter, or the implementational facet of the right. This latest post is out of a Provincial Court, so although it has no binding authority, it discussed an important principle for us to keep in mind.

R. v. Lafrance 2015 SKPC 13 – Lafrance was arrested on a Saturday night, just after 10 PM, for driving while his ability to do so was impaired by alcohol. First, Lafrance contacted a private lawyer, received a recorded message saying the office was closed, so he left a message. Lafrance next asked to call another private lawyer, so an officer called on his behalf, and  received no answer. Next, Lafrance called a law office and received a live operator for an answering service who asked him to hold while she attempted to contact a lawyer; he did so. An officer observed Lafrance through the window and could see that or thought that he was on hold because he was not talking. Eventually, after an undefined length of time, but not more than 23 minutes, the officer entered the room and checked the phone. He thought it was dead and hung it up. The officer believed that Lafrance was not exercising rights and was stalling the investigation and process for obtaining samples within the legislated time frame.

The officer testified that he didn’t know if the answering service had connected Lafrance and he had a brief conversation or not; the officer didn’t see that happen. However, the officer wanted to ensure that Lafrance talked to an open law office and suggested to him it was in his best interest to at least talk to a Legal Aid lawyer to ensure he had that opportunity to exercise his Charter rights. The officer then dialed the number for Legal Aid duty counsel and passed the phone to Lafrance, who spoke to counsel. Following that, he gave two breath samples.

Lafrance testified that he knew other lawyers he would have tried to call, but the officer said they needed to hurry and said words he understood to mean that if he didn’t reach counsel soon, he would be “charged” with refusing the breathalyzer or refusing to exercise his right to counsel. Lafrance said that when the officer dialed Legal Aid, he yelled to him: “Pick up the phone! Pick up the phone!” So he did. He said he felt “pushed and guided” and that he had no choice but to talk to Legal Aid counsel. Provincial Court Judge B.J. Tomkins accepted that evidence.

Judge Tomkins said:

The implementation component requires the police to do two things: first, they must give the accused person a reasonable opportunity to consult counsel and, second, they must defer attempts to gather evidence until the accused has had a reasonable opportunity to exercise his or her right.

The right to counsel of choice is an integral part of the right...

Thus, police are not allowed to choose a lawyer for a person who is detained, nor are police allowed to direct or “stream” someone to Legal Aid in lieu of counsel of choice.”

The Judge said that the implementation component of the right must be meaningful. That is, it cannot be enough to place a call to an office that you are virtually certain will not be open and where the accused is unlikely to reach counsel. According to Judge Tomkins, that would be little better than making no call at all as it does not meaningfully afford an accused person a reasonable opportunity to consult counsel. Calls to Lafrance’s counsel of choice were made to those lawyers’ offices after 10:00 PM on a Saturday night. Not surprisingly, said the Judge, each call resulted in a message informing that the office was closed and invited callers to leave a message. Given the day and time, common sense suggested that the chance of a lawyer from the firm retrieving and returning the message within a reasonable time were negligible.

Judge Tomkins felt that none of the officers involved took any steps to obtain meaningful contact information for the lawyers Lafrance wished to consult and telephone calls to offices which one would expect to be closed cannot meet the officers’ implementation obligation. When the officer checked and thought the phone was dead following the call to the law office, this was because he did not hear music or any other sound suggesting the call was on hold. However, he also did not hear a dial tone. As such, in Judge Tomkins’ view, the officer did not know if the call had been disconnected or not. Given this, it might be expected that the officer would place a second call to the service to confirm that the call had been disconnected or, maybe, to learn that the call had remained alive until he hung it up. This is common practice in most other circumstances where a person believes a telephone call has been disconnected, according to the Judge, so Judge Tomkins could not see any reason why this would not be a reasonable expectation in this case.

The officers actions were seen to go well beyond reminding Lafrance of the availability of Legal Aid. He hung up a call which he believed – but did not know – had been disconnected, dialed Legal Aid and instructed Lafrance to pick up the phone. Judge Tomkins noted that there was no urgency in the situation. The call to Legal Aid was placed at about 11:00 PM, almost an hour before the window of time for taking the breathalyzer tests would close for the presumption. The Judge was also mindful that Lafrance did not directly ask for access to the white pages of the phone book, nor did he ask the officer to consult them. However, once the police officers take responsibility for implementing the accused’s counsel rights, they take on the obligation to take such steps as a reasonably diligent accused person would be expected to take.

Judge Tomkins said the officer did not consult the white pages to learn if either private lawyer had residential numbers listed. He did not consult computer resources to see if either had a reachable number listed. He did not call back to the Merchant Law Group Service to learn whether or not the call had been cut off and if so, to reinstate the request to seek counsel. All of these are reasonable expectations in an attempt to actually connect a person to counsel and neither would have taken very much time. Instead, their efforts were likely doomed even before the counsel calls were made and the officer knew that.

Following the Grant analysis, the Certificate of Qualified Technician was not admitted as evidence in the trial of these charges.

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Filed under Recent Case Law, Section 10 Charter

Police searches of cellphones incident to arrest permitted

R. v. Fearon 2014 SCC 77 – in a 4-3 decision, the Supreme Court of Canada has held that the common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect, although some modification of the existing common law framework is necessary because the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest.

A female merchant was operating a jewellery stall at a flea market in the Downsview area of Toronto. At the end of the day (about 6:15 p.m.) as she was packing her merchandise into her car, she was robbed by two men (Kevin Fearon and Junior Chapman). One of the men pointed a handgun at her and ordered her to open the trunk of her car. The other man stood by. The two men then grabbed the jewellery and other objects and fled to a waiting car. The estimated value of the stolen jewellery was between $10,000 and $40,000.  The merchant described the gun as an inch and a half in diameter, mostly silver, but dark grey toward the handle. She said that the two men drove off in a black two-door automobile, which was located within 25 minutes of the robbery by virtue of a licence plate number given to the police by an eyewitness. The car was left less than a kilometre from the flea market. The car was registered to the co-accused, Chapman. Eyewitnesses at the scene gave descriptions of the robbers, which included that the robber with the gun was wearing an oversized red “hoodie”. When the car was located, the police observed a red sweater on the front passenger seat. The car was sealed in anticipation of obtaining a search warrant. Based on the description provided by the merchant to police, an officer suspected that Fearon, who lived in the area, may have been involved in the robbery. The officer was also advised that the owner of the getaway car had previously been arrested with Fearon.

The officer drove to the apartment building where Fearon lived. When he entered the lobby of the building, he saw Fearon and Chapman leave; the officer then detained Fearon and Chapman. Fearon initially lied about his identity. He was arrested for obstructing justice. When two officers from the holdup squad arrived, both men were arrested for robbery with a firearm, cautioned and advised of their rights to counsel. A pat down search of Fearon followed. This resulted in the discovery of the cell phone containing the photographs of a gun and cash as well as the incriminating text message. The text message read: “We did it were the jewlery at nigga burrrrrrrrr”.

In order to access the photographs and the text message in the cell phone, an officer had to operate the keyboard on the phone. The cell phone was turned “on” and there is no evidence that it was password protected or otherwise “locked” to users other than Fearon. The photographs and the text message were not in plain view and it was necessary to manipulate the key pad in order to move the phone into its different modes. When an officer returned to the police station, he gave the phone to another officer who attempted to determine whether the incriminating text message had been sent to anyone. The officer determined that the message was a draft and therefore had not yet been sent to anyone. He hit the “save” button in order not to lose the text message. After about two minutes, the phone was returned to the original officer who was told to look through it for recent calls or contacts. In the course of the night and next morning, as the investigation progressed, officers made additional checks of the phone. At trial, however, the only data from the phone relied upon by the Crown were the photos and the text message. A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo.  Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8  of the Charter. She admitted the photos and text message and convicted Fearon of robbery with a firearm and related offences. The Ontario Court of Appeal unanimously dismissed Fearon’s appeal. The court affirmed the trial judge’s conclusion that the search incident to arrest had not violated Fearon’s s. 8 Charter rights. The appeal to the SCC raised two main questions: was the search incident to arrest unreasonable and therefore contrary to s. 8 of the Charter, and if so, should the evidence be excluded under s. 24(2) of the Charter?

The analytical framework cited by the SCC included the familiar cases of R. v. Collins, [1987] 1 S.C.R. 265, R. v. Caslake, [1998] 1 S.C.R. 51, Cloutier v. Langlois, [1990] 1 S.C.R. 158, R. v. Debot, [1989] 2 S.C.R. 1140, R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, R. v. Beare, [1988] 2 S.C.R. 387, R. v. Dyment, [1988] 2 S.C.R. 417, R. v. Pohorestsky, [1987] 1 S.C.R. 945, R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, R. v. Morelli, [2010] 1 S.C.R. 253, R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, and a couple of others that every officer in the field should be familiar with by now (if not, I suggest that you do so).

Justice Cromwell, speaking for the majority at para 58, said:

…the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest. In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted. The case law suggests that there are three main approaches to making this sort of modification: a categorical prohibition, the introduction of a reasonable and probable grounds requirement, or a limitation of searches to exigent circumstances…

Consequently, Justice Cromwell said four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8 of the Charter:

  • First, the arrest must be lawful;
  • Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence (to paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why);
  • Third, the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified;
  • Finally, the police must take detailed notes of what they have examined on the device and how they examined it. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. The record‑keeping requirement is important to the effectiveness of after‑the‑fact judicial review. It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

Justice Cromwell, at para 84, said:

In setting out these requirements for the common law police power, I do not suggest that these measures represent the only way to make searches of cell phones incident to arrest constitutionally compliant. This may be an area, as the Court concluded was the case in Golden, in which legislation may well be desirable. The law enforcement and privacy concerns may be balanced in many ways and my reasons are not intended to restrict the acceptable options.

With regards to the password-protection issue, at para 53 Justice Cromwell said:

I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected…I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to passwordprotect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone…Cell phones — locked or unlocked — engage significant privacy interests. But we must also keep this point in perspective.

Applying all these factors to the case at hand, the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, was found to breach Fearon’s s. 8 Charter rights. Although they were truly incidental to Fearon’s arrest for robbery, were for valid law enforcement objectives, and were appropriately linked to the offence for which Fearon had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking (the 4th condition that now has to be met, moving forward). Despite that breach, the majority ruled the evidence should not be excluded.

The minority, dissenting reasons given by Justice Karakatsanis (concurred in by LeBel and Abella JJ.), at paras 105-106 said:

The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. Our common law already provides flexibility where there are exigent circumstances ― when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.

In this case, the appellant was arrested in connection with an armed robbery. Upon arrest, the police searched his cell phone and discovered incriminating evidence. The police had no grounds to suspect there was an imminent threat to safety and no grounds to believe there was an imminent risk of the destruction of evidence. Consequently, I conclude that the search was unreasonable and unconstitutional. The police were required to obtain a warrant before searching the phone, although they were entitled to seize the phone pending an application for a warrant. I would exclude the evidence so obtained.

Luckily for us as police, the majority ruled in such a way to give us clearer guidelines to apply SITA in a time of profound technological change and innovation so as to comply with the requirements of s. 8 of the Charter in these matters.

A couple of final points to be taken from this case: at para 79, Justice Cromwell said:

The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.

And at para 80:

The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. For example, if, as in this case, there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest of the other suspects. As Det. Nicol testified, there were matters that needed to be followed up immediately in this case. If, on the other hand, all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared to explain why it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant.

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