Spring 2022 Highlights In This Issue Legal Issues In Policing Podcast 3 What’s New For Police In The Library 33 Graduate Certificates In: Cybercrime Analysis, Intelligence Analysis, or Tactical Criminal Analysis. 35 Canada’s Highest Court More Divided Than Previous Year 41 Mistake Of Law Renders Arrest Unlawful 46 s. 487/487.1 Search Warrants Executed By Day, Exceptionally By Night 50 Common Law Permits Modified Search of Home Incidental To Arrest 53 Evidence Admitted Despite Illegal Drug Dog Sniff 61 Undermining Legal Advice Breached s. 10(b) Charter: Statement Excluded 65 Plain View Drugs Justifies Arrest 69 Force Justified During Investigative Detention: Handgun Admitted 70 2022 BC Illicit Toxicity Deaths 85 National Library of Canada Cataloguing in Publication Data Main entry under title: In service: 10-8. -- Vol. 1, no. 1 (June 2001) Monthly Title from caption. “A newsletter devoted to operational police officers across British Columbia.” ISSN 1705-5717 = In service, 10-8 1. Police - British Columbia - Periodicals. 2. Police - Legal status, laws, etc. - Canada - Cases Periodicals. I. Justice Institute of British Columbia. Police Academy. II. Title: In service, 10-8. III. Title: In service, ten-eight. Unless otherwise noted all articles are authored by Mike Novakowski, MA, LLM. The articles contained herein are provided for information purposes only and are not to be construed as legal or other professional advice. The opinions expressed herein are not necessarily the opinions of the Justice Institute of British Columbia. “In Service: 10-8” welcomes your comments or contributions to this newsletter. Law Enforcement Studies Diploma Be the one making a difference and keeping communities safe. If you want to gain the applied skills to be a sought-after graduate pursuing a rewarding career in law enforcement and public safety, then this program is for you. Click Here Law Enforcement Studies Degree If you have a relevant diploma, and are interested in obtaining an applied degree to pursue a law enforcement or public safety career, then this program is for you. This program builds on previous relevant studies with an applied degree, and is designed to increase your chances of success. Click Here Post-Baccalaureate Diploma in Disaster Management Be the one in a dynamic and growing field keeping communities safe. If you have a bachelor's degree and are interested in pursuing and advancing your career in the fields of disaster and emergency management, this program is for you. Click Here Certificate in Emergency Management Be the one advancing your career. If you are interested in a career in emergency management, currently work as an emergency manager, or are a first responder or public safety professional looking to move into an emergency management role, this program is for you. Click Here PAGE 2 Spring 2022 In 2019, the Honourable Michael H. Tulloch, in his Report of the Independent Street Checks Review noted: Through a number of meetings with both frontline and more senior officers, it became apparent to me that many police officers are not confident in their knowledge and understanding of the lawful authorities granted to them or the proper scope of their police powers. [p. 161] something the officer always did, whether or not an arrestee waived their right to counsel. In evaluating the admissibility of evidence under s. 24(2), the Court of Appeal had this to say about the officer’s conduct: [T]he police officer testified he acted in accordance with his usual practice, but there is no evidence he engaged in conduct he believed was required by law. I cannot conceive that the RCMP, with all its resources and means of communicating with its members, would not have alerted its members about how they should conduct themselves, especially in light of the fact that the expected conduct was established by Canada’s highest court more than thirty years ago. [para. 56] In assessing police training, he had this to say: From my perspective, training needs to be reinforced to be effective. There should be more refresher training generally on topics such as arrests, search and seizure, lawful authorities and community interactions. Police training in general must happen on a regular, periodic basis. … [p. 171] In 2019, the Halifax, Nova Scotia: Street Checks Report, written for the Nova Scotia Human Rights Commission, recommended that police “develop additional training modules that will improve officer adherence to the principles of procedural justice and ensure respect for civil rights during all civilian encounters.” In 2019, the results of a public hearing (OPCC File PH18-02) under BC’s Police Act into the conduct of police officers engaged in an investigative detention was released. The adjudicator (retired Supreme Court Judge) wrote, “some members have, as a matter of routine, ignored the need to have a reasonable belief that upon detention there is an actual concern for officer safety before conducting any search.” The adjudicator recommended that the Chief of Police remind his members “of the state of the law in respect to ‘pat-down’ searches for officer safety.” In R. v. Landry, 2020 NBCA 72 — a s. 10(b) Charter case — the New Brunswick Court of Appeal found the police breached Mr. Landry’s right to counsel on two occasions: (1) preventing him from accessing counsel at the scene of the arrest as a matter of usual practice “despite the Supreme Court of Canada’s explicit and well-known instructions … dating back more than thirty-three years”; and (2) reading him a Prosper warning, In 2020, the CCRC for the RCMP concluded in its final report — Review of the RCMP’s Policies and Procedures Regarding Strip Searches: It has been nearly two decades since the Supreme Court of Canada outlawed the routine use of strip searches by police and provided a roadmap on how to conduct a lawful search. Despite the highly prescriptive ruling that has been incorporated into the RCMP's operational policy, the Commission's review revealed widespread non-compliance with policy and relevant jurisprudence. Just last month (April 2022), a Special Committee on Reforming the Police Act released a report — Transforming Policing and Community Safety in British Columbia. Committee members “noted that there is not much ongoing police training, except for tactical training, and suggested that there should be training when new laws are introduced or updated to ensure officers are aware of the changes and understand why they are being made. They noted that ongoing professional development and training would help to increase trust in policing.” Effective July 30, 2023, BC Provincial Policing Standard 6.1.1 — Promoting Unbiased Policing will come into effect. Part of this standard will require a Chief Constable, Chief Officer or Commissioner to ensure that: PAGE 9 Spring 2022 Written procedures are examined annually to ensure consistency with legislative amendments and applicable case law related to right to equal treatment, protection and benefit under the law, including the Canadian Charter of Rights and Freedoms and the obligations of police, related to: (a) informing persons of the reason for their arrest or detention; (b) informing a detained or arrested person of their right to counsel and providing that person with access to the same; (c) detaining a person; (d) obtaining confessions and admissions from a person; and (e) gathering of evidence, including search and seizure. The Court went on to uphold a $5,000 damage award for an unreasonable strip search, which was found to be serious police misconduct. In doing so, it commented on the expectation of the police in understanding the law: [W]ithout asking officers to be conversant with the details of court rulings, it is not too much to expect that police would be familiar with the settled law that routine strip searches are inappropriate where the individual is being held for a short time in police cells, is not mingling with the general prison population, and where the police have no legitimate concerns that the individual is concealing weapons that could be used to harm themselves or others. [emphasis added, para. 65] It will take some energy on police agencies to stay case law current. This might seem like an easy task but its not. Ensuring consistency with legislative amendments and applicable case law will take a determined effort. The Jeopardy As noted, failing to appreciate and correctly apply the law can lead to serious consequences, including discipline, criminal charges and lawsuits, let alone public condemnation for police decisions. For example, in Vancouver (City) v. Ward, 2010 SCC 27 the Supreme Court of Canada recognized that s. 24(1) of the Charter included a remedy of constitutional damages for a breach of a person’s Charter rights, distinct from an action in tort law. In holding that awarding damages for Charter violations may serve to deter future breaches by the police, a unanimous Supreme Court (9:0) stated: In a 2021 Notice of Discipline Authority’s Decision under BC’s Police Act (OPCC File 2020-18195), a Discipline Authority (retired Provincial Court Judge) commented that several police officers had “a common belief that a ‘search incidental to arrest’ was authorized as a matter of course anytime there had been a lawful arrest.” After reviewing the facts of the internal investigation, the Discipline Authority concluded,“the search exceeded the limits the courts have imposed on the common law right to conduct a search incidental to arrest and that there were no valid grounds for the search of this vehicle.” Earlier this year (2022), the Reasons for a Discipline Proceeding Decision (OPCC File 2020-17317) was released. It examined the conduct of police officers involved in the arrest of an Indigenous man and his granddaughter. In finding the officers simply decided, on insufficient grounds, to hastily arrest as the next step in their investigation, the Discipline Authority (retired Provincial Court Judge) noted: An arrest … is not, and should never be, a perfunctory action taken by police. The essence of an arrest is the deprivation of a citizen’s freedom by force. Clearly it is easier for police to deal with anyone suspected of a crime if under arrest and handcuffed. However, it is not the law that any suspicion of criminal activity provides officers with the authority to summarily end a person’s freedom through an arrest. Deterrence seeks to regulate government behaviour, generally, in order to achieve compliance with the Constitution. … [D]eterrence as an object of Charter damages is not aimed at deterring the s p e c i f i c w r o n g d o e r, b u t r a t h e r a t influencing government behaviour in order to secure state compliance with the Charter in the future. [para. 29] PAGE 10 Spring 2022 The arrest process should never be routine or take place by rote to accommodate an evolving investigation. … [O]fficers are required to assess the totality of the circumstances that they encounter, assess those circumstances having regard to their training, and only move to an arrest if articulable reasonable and probable grounds for arrest have been established. claim, the judge awarded the plaintiff general damages of $9,000 — $5,000 for battery and $4,000 for s. 8, 9 and 10 Charter breaches — and punitive damages of $18,000. Costs for the action were also awarded to the plaintiff in the amount of $60,000. [para. 183] In R. v. Doucette, 2012 PESC 26 a police officer detained a man for investigation by pushing him against a police car and forcing him into its back seat where he was held for eight to ten minutes. A PEI Provincial Court judge convicted the officer of assault and unlawful confinement. The judge found the officer lacked the lawful authority to detain the man and confine him in the back seat of the police car. Therefore, s. 25(1) of the Criminal Code provided no protection. This guilty finding was upheld by PEI’s Supreme Court. The superior court judge agreed the detention was not only unlawful, but any officer safety concern was a ruse. “The police have a duty to investigate, but that does not empower them to trample on the individual liberties in so doing,” said the superior court judge. “Police do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity. Police must not conduct an investigative detention in order to determine whether a person is up to no good." In Elmardy v. Toronto Police Services Board et al., 2015 ONSC 2952, the plaintiff — a black man — sued the Police Services Board and a named individual o f f i c e r f o r b a t t e r y, unlawful arrest, and various Charter violations — ss. 8, 9, 10(a) and 10(b). The trial judge found the officer "took the law into his own hands and administered some street justice” when he unlawfully detained the plaintiff, punched him twice in the face, emptied his pockets and left him lying in the cold for 20 to 25 minutes while handcuffed. Section 25(1) of the Criminal Code did not apply because the officer was acting unlawfully and outside the proper scope of executing his duties. Although the trial judge dismissed a racial profiling On appeal by the plaintiff, an Ontario Divisional Court comprised of three judges concluded the police were involved in racial profiling, thus also breaching s. 15 of the Charter (2017 ONCA 2074). “The only reasonable inference to be drawn from the fact that both officers, without any reasonable basis, suspected the [plaintiff] of criminal behaviour is that their views of the [plaintiff] were coloured by the fact that he was black and by their unconscious or conscious beliefs that black men have a propensity for criminal behaviour,” said the Divisional Court. “This is the essence of racial profiling.” Although the award of $5,000 for battery remained unchanged, the Divisional Court increased the damages arising from the constitutional violations from $4,000 to $50,000 and punitive damages from $18,000 to $25,000. An additional $20,141 in appeal costs was awarded. These are but a few examples of the types of sanctions officers and police departments or police boards might face. The Expectation It is axiomatic to say that police training is important. The Supreme Court of Canada has commented on the importance of police knowing the law: PAGE 11 In Canada, every person has the right to expect that the authorities will comply with the Charter. [R. v. Harrer, [1995] 3 SCR 562 at para. 50] The Charter requires that agents of the state act in accordance with the rule of law. [R. v. Caslake, [1998] 1 SCR 51 at para. 27] While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is. [R. v. Grant, 2009 SCC 32 at para. 133] Spring 2022 for time outs (adjournments), reflection, and oral and written argument, luxuries an officer cannot afford. One only need to look at the Supreme Court of Canada itself. According to its most recent statistics for 2021, the court could not agree in their judgments in more than 50% of the cases, a trend that has been consistent over the last four years. In fact, the Court rendered a split decision in 54% of its 2021 cases. When I stop and think of these statistics I cannot overlook the fact that the justices take, on average, 4.2 months to render an opinion from the time they hear the matter. Moreover, they have up to nine people to draft a decision and a host of law clerks to help them craft it. [The officers] had to know that they were treading on dangerous ground by deciding to wander through another portion of the residence to look around, and yet that is what the one officer chose to do, and for no legally permissible reason. In my view, that is serious misconduct by the officer. It is difficult to accept that the officer acted in good faith when he proceeded to conduct a search, within a private residence, in violation of the well-established principles regarding such searches and the equally well-established high degree of privacy that exists in any person’s private residence. [R. v. Stairs, 2020 ONCA 678, emphasis You, on the other hand, may only have a moments notice to make a decision by yourself. Yet you will be held to a very high standard. Although the courts, they claim, will not hold you to perfection, it does seem, at times, that the standard to which you will be held is impossibly high. For example, in this issue, the case of R. v. Stairs, 2022 SCC 12 is highlighted. Briefly, the police conducted a warrantless entry of a home following a 9-1-1 report of a male striking a female. When the officers located the suspect in a basement laundry room and arrested him for assault, they conducted a visual clearing search — a protective sweep — of an adjacent living room area. They noticed methamphetamine in plain view and Mr. Stairs was charged accordingly. At trial, the judge found the police acted properly, having searched the living room as an incident to arrest under the common law. There were no Charter violations. Mr. Stairs was sentenced to 26 months in jail following convictions for PPT methamphetamine, assault and breach of probation. On appeal to Ontario’s top court, a two judge majority agreed with the trial judge, but a dissenting judge found the police committed a serious Charter breach. The dissenting judge said “the officers knew, or ought to have known, that they were not entitled to conduct a search without judicial authorization, especially within the private residence of an individual.” He continued: added, at para. 99] How is it even possible the police knew, or ought to have known, they were acting unlawfully, when they were in fact acting lawfully — at least according to the majority, the opinion that actually matters? Canadians courts do not require unanimity for a decision to be considered binding. At best, the majority’s decision should have been acknowledged by the dissent in assessing good faith. After all, up until this point three judges found police action lawful. Then, on appeal to the Supreme Court of Canada, a five judge majority agreed the police acted lawfully even after the Court itself modified the law on search incident to arrest inside a home. That’s good (or lucky) police work when an officer fortuitously complied with a legal framework that didn’t even exist at the time they acted! Ironically, a three member dissent, like the lone dissenting judge at the Ontario Court of Appeal, concluded the police breached the Charter. They too would have placed the police misconduct at the higher end of the seriousness spectrum, excluded the methamphetamine evidence, and entered an acquittal on the PPT charge. PAGE 14 Spring 2022 Other cases involving drug sniffing police dogs, like R. v. Chehill, 2013 SCC 49 and R. v. MacKenzie, 2013 SCC 50, underscore the challenge in applying legal standards to the facts on the ground. Chehill — the sniff of a passenger’s luggage at an airport — and MacKenzie — the sniff of a vehicle stopped by police for a traffic infraction — also tackled the reasonable suspicion standard used to justify the deployment of a drug sniffing dog. A full Supreme Court — all nine justices — sat on these companion cases. And, although the Supreme Court had, half a decade earlier, made the rules in Kang-Brown, it unanimously (9:0) concluded reasonable suspicion had been met in one case yet was divided (5:4) in the other. In Chehill, all nine judges concluded the totality of the circumstances known to police — including the specific characteristics of the accused, the contextual factors, and the offence suspected — were sufficient to reach the threshold of reasonable suspicion. Mr. Chehill was travelling alone, on an overnight one-way flight from Vancouver to Halifax on a less expensive airline, which drug couriers apparently prefer. He was also the last passenger to purchase a ticket for this flight, paid for his ticket with cash, and only checked one piece of luggage. Officers testified that this constellation of factors had been noted in their training, seen by them before in other investigations, and knew it was common to drug couriers. The positive indication by the dog, in combination with the reasonable suspicion that led to its use, then raised the reasonable suspicion standard to the level of reasonable grounds for arrest. The police were then entitled to physically search Mr. Chehill’s luggage incident to the arrest. The search was reasonable. In MacKenzie, the Supreme Court was split by a 5:4 margin on the application of the reasonable suspicion standard to the facts of the case, even though they heard the same oral arguments, and had access to the same factums and lower court decisions. Five judges found the combination of factors cited by the investigating officer — erratic driving, extreme nervousness, physical signs consistent with marihuana use, and travel on a known drug pipeline — along with his training and experience provided reasonable suspicion that Mr. MacKenzie was involved in a drug-related offence. This justified the detention and the deployment of a drug sniffing dog. After the dog’s hit, in combination with the totality of the circumstances proceeding it, the police had reasonable grounds to arrest and search Mr. MacKenzie’s vehicle incidental to it. Four judges, disagreed with this analysis. They concluded, “when viewed collectively, the factors do not support a finding that the police had objective grounds for reasonable suspicion when they conducted the warrantless dog-sniff search of the [accused’s] vehicle.” In their view, the search violated Mr. MacKenzie’s s. 8 Charter rights and the officer’s Charter-infringing conduct was categorized as serious and deliberate, even though they recognized that the law on dog sniffs was in “a state of flux” at the time of the traffic stop (2006). They would have excluded the evidence. One thing is clear, reasonableness is in the eye of the beholder. What may be reasonable to one judge may not be reasonable to another. The same applies to cops. Many examples of split decisions found at the appellate court level show that even judges, steeped in the law and acting, presumably, with the utmost of good faith, can have differing opinions on the legal issues. How is it that a body such as the Supreme Court can make the rules but so often disagree on their application to a particular set of facts? If even the “experts” can’t agree, for example, on whether the reasonable grounds standard had been met to conduct an investigative detention or arrest, or to deploy a drug sniffing dog, how easy can it be for a police officer to get it right all of the time? And when a court is split on whether the police acted lawfully, how is it that a dissenting judge can say the police knew or ought to have known the law when the majority of their colleagues did not? How can some judges hearing a case find no misconduct by police yet other judges hearing the same case find misconduct, and serious misconduct at that? Of course, foundational to examining police decision making is the concept that an officer’s actions must be viewed from the officer’s point of view without the benefit of hindsight. It is far too PAGE 18 Spring 2022 preserves the public respect for the administration of justice.” In Reilly, the police, while investigating two armed robberies, committed three s. 8 Charter breaches by unlawfully: (1) entering Mr. Reilly’s home through an insecure patio door, (2) entering his bedroom to arrest him, and (3) conducting a clearing search of the home following the arrest. All of these searches were done without a warrant. The majority excluded the evidence, quashed six robbery and firearm related convictions, and ordered a new trial. In finding the police misconduct fell at the very serious end of the culpability scale, the majority found the seriousness of the Charter-infringing conduct was aggravated by the failure of the police to turn their minds to obtaining a Feeney warrant: The violations were flagrant. Since 1997 when the Supreme Court of Canada released its decision in Feeney, police officers have required what has come to be known as a “Feeney warrant” in order to enter a dwelling house to make an arrest. the evidence obtained from the breach. Courts are more willing to find that police officers acted reasonably and in good faith where there was some legal basis for them to believe their conduct did not violate the law. For example, sometimes the police will act in accord with the state of the law at the time evidence was obtained, but the purported authority for police action may subsequently be declared constitutionally invalid. When a police officer has acted in accord with legal authority not yet found unconstitutional, the officer’s reasonably held belief will not be retroactively undermined. Other times, the state of the law may be uncertain at the time of the breach and it would be unreasonable to demand prescience on the part of the police as to how the law will be settled. Yet still, in other cases, the police will turn their mind to settled law and do their best to apply it. But they make a mistake. So, for a Charter breach to have been committed in good faith, a police officer must, at the time the breach occurred, have honestly and reasonably believed they were acting lawfully. On the other hand, bad faith entails the police action to be knowingly or intentionally wrong. The absence of bad faith, however, does not equate to good faith, nor does the absence of good faith equate to bad faith. Rather, good and bad faith are polar opposites and fall at either end of a spectrum. Depending on the particular mental state of the officer, their actions will fall somewhere along this spectrum with good and bad faith forming its endpoints. [para. 126] In summary, the relevant law regarding warrantless entries into a residence has been clear for over 20 years. The police knew, or ought to have known, that they could not enter a residence without a warrant to effect an arrest (absent exigent circumstances, which did not exist here). To do so constituted a serious violation of the [accused’s] s. 8 Charter rights … . It is disturbing the police did not discuss the well known requirement of a Feeney warrant at their pre arrest meeting. It is obviously more disturbing that they entered the [accused’s] residence to effect a warrantless arrest in violation of Feeney as codified in the Criminal Code. Nor is it reassuring that as the judge noted, [the officer] testified, “he would not do anything differently under similar circumstances” … The nature and circumstances of the Charter violations place them at the serious end of the spectrum and pull towards exclusion of the evidence. [paras. 133-134] The Supreme Court noted in R. v. Tim, 2022 SCC 12, “good faith cannot be claimed if the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards.” And, as stated in R. v. Washington, 2007 BCCA 540, “an inquiry into good faith examines not only the police officer’s subjective belief that they were acting with the scope of their authority, but it also questions whether this belief was objectively reasonable.” Good faith can attenuate the serious of a Charter violation and reduce the need for the court to dissociate itself from police conduct by excluding In R. v. Harflett, 2016 ONCA 248 a police officer conducted an inventory search of a vehicle and found a large quantity of drugs in the trunk. But the Ontario Court of Appeal concluded the search was unreasonable. The vehicle was to be released at the scene and towed to a hotel with Mr. Hartflett ‑ ‑ ‑ PAGE 20 Spring 2022 These two opinions are mutually exclusive. On one view, the police misconduct was described as technical or inadvertent, and an understandable mistake while in the other view it was “manifestly indefensible” to describe it as such. One thing is clear, ignorance of the law is hardly consistent with good faith. And an honest and sincere belief that is not reasonably held, perhaps not bad faith, will not constitute good faith. As an example, in R. v. Roberts, 2012 ONCA 225, a police officer, believing he had reasonable grounds to do so, arrested Mr. Roberts and searched him incidental to arrest, finding cocaine, marihuana and cash. Mr. Roberts was convicted at trial for possessing cocaine, PPT cocaine, and possessing marihuana. On appeal, Ontario’s top court found the officer, despite having an honest belief that he had reasonable grounds, objectively did not. This resulted in Mr. Robert’s rights being infringed under s. 9 of the Charter — arbitrary detention. The Ontario Court of Appeal then had to decide whether to nevertheless admit the evidence. The Court did not agree with the Crown’s good faith assessment of the officer’s conduct. Even accepting that the officer honestly believed he had grounds to arrest, the officer “did not turn his mind to the possibility of exercising police powers short of actual arrest.” In this case, the Court of Appeal concluded that the officer routinely saw arrest as the best tool to investigate crime because if, after further investigation, it turned out there were no grounds to arrest, the person would be released. In the officer’s view, there was no harm in a brief arrest. The officer’s cavalier attitude towards arrest and his failure to consider a less intrusive means of investigation rendered the Charter-infringing conduct serious. Court of Appeal, in part, found the officer was not looking for evidence on the USB related to the stolen van charge or careless driving, but rather for evidence of impersonation or fraud. This took the search outside the framework for a lawful search incident to arrest and breached s. 8 of the Charter. Although the officer testified that he genuinely believed he could search the USB key to find evidence of impersonation, impersonation was not the reason for arrest. “The search thus infringed the clear legal rule established [by the Supreme Court of Canada] in Caslake, which holds that where a search incident to arrest is conducted to find evidence, it must be for evidence of the offence for which the person was arrested,” said the unanimous Court of Appeal. “The fact that the search infringed a clear legal standard renders the breach more serious than it might otherwise have been. … Even where a breach is not deliberate, it may still be reckless, and therefore serious, if the police show insufficient regard for Charter rights. … [The officer] searched the USB key to find evidence of impersonation, 15 years after Caslake made it clear that he could not have done so without a warrant. The search thus fell squarely outside the scope of a valid search incident to arrest. In these circumstances, [the officer’s] belief that the search was Charte compliant was unreasonable. It follows that the breach was serious.” This again leads me to training. An officer’s understanding of the law and the training they have received is often considered by a judge assessing where to place the seriousness of the Charter breach on the good faith and bad faith continuum. As the Ontario Court of Appeal in R. v. Adler, 2020 ONCA 246 put it: In R. v. Balendra, 2019 ONCA 68, a police officer searched a USB key found in Mr. Balendra’s pocket following his arrest for possessing a stolen van and careless driving. The USB was searched without a warrant, purportedly as an incident to arrest. Multiple credit card numbers and a driver’s licence template were found on the USB. This evidence led to convictions for possessing fraudulent and forged credit cards, and possessing identity information with intent to commit fraud. He was sentenced to four years in prison. When Mr. Balendra challenged his convictions, the Ontario r­ PAGE 22 The state of the police officer’s knowledge of the right breached is relevant to the seriousness of a violation. An officer, who violates a Charter right while knowing better, commits a flagrant breach. For those officers who do not know of the relevant right, the reason they do not know can properly influence where on the good faith/ bad faith continuum the Charter breach might fall. Ignorance may result, for example, from disinterest or an absence of care on the part of the individual officer, or Spring 2022 The fact that this search was not, in the mind of the searching party, consistent with the proper purposes of search incident to arrest means that it falls outside the scope of this power. As a result, the search cannot be said to have been authorized by the common law rule permitting search incident to arrest. [emphasis added, para. 29] The officer’s purported policy search could not be justified based on the fact that he would have had objective grounds if he had conducted a search incident to arrest. Despite finding a Charter breach, the Caslake court admitted the evidence and upheld the convictions because, in part, the officer had the necessary objective grounds for the search but just didn’t know it. Interestingly, a dozen years later in R. v. Nolet, 2010 SCC 24, an officer used the same rationale — creating an inventory pursuant to RCMP policy — for searching the cab of a semi-truck following the arrest of its occupants for possessing proceeds of crime. The Supreme Court (9:0) found the search unreasonable and therefore a s. 8 Charter breach because it was conducted incidental to RCMP administrative procedures rather than to the arrest of the two accused, as had been previously discussed in Caslake. But the Court again acknowledged that the police would have been “within their rights” to have conducted the search incident to arrest although that was not the reason offered. In R. v. Dhillon, 2012 BCCA 254 a police officer testified he was relying on consent to search the trunk of a car where he found an AK-47 rifle. He said he did not have grounds to detain, arrest or get a search warrant. The trial judge ruled the legal requirements for consent had not been met. However, the judge found Mr. Dhillon had been lawfully detained for an investigation and the search of the trunk was lawfully conducted for officer safety reasons. The AK-47 was admitted as evidence and Mr. Dhillon was convicted of four firearm offences. In effect, the trial judge disregarded the basis offered by the officer for the search (consent) and substituted a lawful basis for the officer’s actions (search incident to investigative detention). Same outcome — searching the trunk and finding a gun — but for a different reason. But when Mr. Dhillon challenged the trial judge’s ruling, the BC Court of Appeal tossed the firearm as evidence, overturned the convictions, and entered acquittals on all charges. As the Appeal Court noted, “it is not sufficient that the police may have had a legal basis to exercise certain powers if they did not in fact exercise those powers … The question for the court is the lawfulness of the actual police conduct, not the potential basis for the exercise of police power.” It begs the question, had the officer claimed to detain for investigation and searched for safety, would the trial judge’s ruling have been upheld? In R. v. Peekeekoot, 2017 SKQB 27, the police detained the accused after responding to a knifepoint robbery of a cellphone. Mr. Peekeekoot was handcuffed and patted down. A two foot long machete was found inside his pants. He was subsequently ruled out of the robbery, but charged with carrying a concealed weapon. At trial the officer testified he frisked for officer safety — to ensure there were no weapons, knives or needles on Mr. Peekeekoot. The officer also, on crossexamination, said that he searches anyone he is going to place in a police vehicle or anyone put in handcuffs on the basis of officer safety. The judge concluded the investigative detention was not arbitrary but the pat down was an unreasonable search because “the officer did not testify as to any grounds he had for concerns for his safety. Rather, this is something he effects every time he engages in an investigatory detention.” The Crown tried to save the officer’s actions by stating the obvious — robbery with knife equals a safety concern — but the judge rejected this because the officer did not say it himself: PAGE 25 In argument, the Crown sought to connect the report of a robbery at knife point with a concern over officer safety. That, of course, makes sense. But, despite having the opportunity to make that connection, that does not accord with the officer’s testimony. Rather, he completes a search every time he is involved in an investigatory detention. On the facts of the case before me, there was no reasonable basis given for suspecting officer safety was in issue in this particular case. The officer did not testify as to this. [paras. 33-34] Spring 2022 mind to the power you are exercising and the legitimate purposes or objectives that animate the power, you could be found to be acting unlawfully even though “objectively” your action could otherwise be justified. It is not enough to later justify your action on some other basis you had not considered at the time and argue the evidence you found would ineluctably have been discovered. Although “objectively”, a reasonable officer may have acted lawfully had they been thinking a certain way, if you weren’t thinking that same way at the time you acted your conduct may be found to be unlawful. I cannot fathom how you would properly turn your mind to something which you do not know or understand. Yet another reason to understand and know the law. All of this emphasis on training and education reminds me of a keynote address made by the Honourable Associate Justice William W. Bedsworth, a judge of the California Fourth District Court of Appeal, at the grand opening of the Golden West College’s Criminal Justice Training Centre. Here is an excerpt: Law enforcement changes hourly, folks. It is no easier to keep up with the changes in law enforcement than it is to keep up with changes in medicine or physics or biology or ballistics or pharmacology. All of which, by the way, are things the modern police officer must know a lot about — must learn and relearn constantly. … Every day, every time a cop picks up a paper or watches the news, she learns about something else she will have to know about probably before her next shift. The amount of education and reeducation our police must assimilate every day is staggering. It requires literally, and I emphasize, I mean this literally, not figuratively, it requires literally more daily re-education than a doctor or lawyer ever needs to do his or her job, and when a peace officer applies that reeducation, he or she has to be a psychologist, a pharmacologist, a teacher, a counselor, a lawyer, an EMT, and a bad-ass superhero, probably all during one shift. Categories of Cops At risk of oversimplification, and perhaps stereotyping, I have come to categorize cops into four categories. As you read this, ask yourself, “In which category do I belong?”: 1. Cops who FOLLOW THE RULES. In order to follow the rules, an officer will need to know and understand them. As demonstrated, this is no easy task at all. It requires persistent study and learning. This is not to say that a police officer cannot unknowingly follow the law, as the officer did in R. v. Stairs. Remember, the officer complied with rules that had not yet been articulated by the Supreme Court. Sometimes police get lucky and unwittingly get it right. But that’s a chance best avoided through education and training. At the end of the day, an officer who follows the rules commits no Charter breach. Without a Charter infringement, there is no need to evaluate the seriousness of police misconduct under s. 24(2). 2. Cops who MISAPPLY THE RULES. Sometimes police officers will know the rules, but inadvertently misapply them to the facts of a case. They make a mistake. As judges have demonstrated, even those of the Supreme Court of Canada (who ultimately have the final say on what the rules are), it can be challenging to apply them to the particular facts of a case. Often, officers who do their best to properly apply the law will be found to be acting in good faith (or at least not in bad faith). They make an understandable mistake. Or perhaps they are operating in unknown legal territory or a constitutional grey area and make a reasoned decision, which a court may later determine to be unconstitutional. Misapplication of the rules by police will undoubtedly occur just as judges err in law, even those of appellate courts. “Not every Charter breach should be characterized as ignorance of the law,” said Justice Fairburn in PAGE 27 Spring 2022 protecting the rights and freedoms of all persons as guaranteed in our Charter of Rights and Freedoms.” As Supreme Court Chief Justice McLachlin said in R. v. Harrison, 2009 SCC 34, “we expect police to adhere to higher standards than alleged criminals.” In that case, the police misconduct was found to be serious. The officer stopped and searched Mr. Harrison’s vehicle without any reasonable grounds. It was concluded that the officer’s determination to turn up incriminating evidence blinded him to the constitutional requirements for searching. Moreover, the officer provided misleading testimony in court. The trial judge held the officer knowingly violated Mr. Harrison’s Charter rights and then offered explanations in court that appeared to be “contrived”, “def[ied] credibility” and were “extremely difficult to accept as valid.” Despite a conviction at trial (the drugs were admitted under s. 24(2)), which was upheld by the Ontario Court of Appeal, the Supreme Court excluded the 77 lbs. of cocaine found by police, overturned Mr. Harrison’s conviction for cocaine trafficking, and acquitted him. Moving Forward Police training does not, of course, establish the constitutional standards by which you may act. The law does. As explained, police officers are expected to know the law and to abide by Charter standards. Responsible police officers will take care to learn what is required of them under Charter jurisprudence and will diligently act to conform their conduct to the rules. Sometimes, however, there will be no legal precedent to guide the police as to whether a particular investigative technique or act will infringe the Charter. Just because there is no legal rule or authority that prohibits your action doesn’t mean you can’t, or won’t, be sanctioned for it. Remember, you may act only to the extent that you are empowered to do so by law. Furthermore, it is not uncommon for an appeal court, including the Supreme Court, to assume, without deciding, that the police infringed a Charter right and then move directly to a s. 24(2) enquiry. Under this framework, the evidence will be admissible since exclusion requires a finding of an actual breach, not an assumed one. This approach, however, does little to guide officers in applying the law because the legitimacy of the underlying police conduct that led to the assumed violation remains unknown. It’s as if the adjudication process is short circuited and an important step in addressing the means to the end is sidestepped. It may be appropriate for the courts to let the evidence in at the end of the day, but the police want to know (at least I did) whether the impugned conduct was permissible or not. Without clear guidance and a declaration that a particular investigative technique is constitutional, police have no way of knowing for future cases whether or not their conduct will be Charter compliant. Despite these shortcomings, police officers must make reasoned decisions by turning their mind to the action they are about to take rather than running roughshod or demonstrating a cavalier attitude towards Charter rights. This won’t be easy. Your job involves assessing competing and conflicting interests — individual rights and liberties against society’s interest in effective law enforcement. Your challenge will be to enforce the laws within the area where the boundaries on personal freedoms and the public interest intersect. You must weigh your two obligations to the public — to protect and to respect. Protecting the public by investigating crime, enforcing the law, and apprehending offenders while at the same time respecting individual rights. Your duty to protect may oblige you to take coercive action (such as detention, arrest, search, force) while your duty to respect obliges your action to not be arbitrary, unreasonable or without justification. If you do not act with a justifiable legal basis, or a legitimate purpose or aim, interference with a person’s liberty, security or privacy will result in a Charter violation with its attendant consequences. Although you are not expected to be a lawyer, you should have a good understanding of the legal frameworks related to your police powers. Remember too, just because you have a duty to do something — like investigate crime — doesn’t PAGE 29 Spring 2022 mean you are empowered to take any and all action to perform the duty. Your powers are not unbridled or unlimited. By understanding the framework related to a power, you can “turn your mind” to the legal requirements and do your best to apply the rules to the facts as you find them. Not only will a working knowledge of the law provide confidence, increasing your legal acumen and understanding with proper training can lead to your performance meeting the level of what the courts expect of you. This can result in you following the rules or, if you misapply the rules, may demonstrate to a court that you were acting in good faith. You tried to get it right. Although your good faith will not cleanse a Charter breach, it could rescue evidence obtained in a manner that breached a right from exclusion. This will then further society’s interest in a case being decided on its merits. I once heard a podcaster — a criminal defence lawyer — say the following: “You can get a warrant really quickly. You can get a warrant over the phone, a telewarrant. This isn’t the sort of process that takes a long time. It can be done rather quickly.” Obviously, this lawyer had never obtained a warrant before. He was an armchair quarterback. In my world, drafting an ITO for a telewarrant or an in-person appearance takes the same amount of time if the officer wants to take care to conform with the requirements of the law. Any time savings comes in not having to drive (or walk) to the justice for signature. The driving (or walking), however, is often not which takes the most time. It is the ITO preparation. Being careful to make full, fair, and frank disclosure of the material facts without overwhelming the justice with irrelevant details. And, of course, the justice themselves still needs to read the ITO. This takes the same amount of time whether the ITO arrives via fax or via physical transport. Reading and evaluating the written word takes the same care. Recently, an Ontario Court of Appeal judge in R. v. B a k a l , 2 0 2 1 O N C A 5 8 4 n o t e d t h e ridiculousness of this podcaster's notion. [A] telewarrant is not free for the asking. To be sure, a telewarrant application carries the same degree of solemnity as an application that would be determined after being dropped at a courthouse in the light of day. While s. 487.1 provides for more flexibility in terms of how an application for a warrant is placed before a justice, it does not alleviate the normal demands placed upon an affiant in relation to preparing that application. Nor does it relieve the application justice from taking the time necessary to properly consider the application to determine whether the requested authorization should be granted. [emphasis added, para. 31] This example highlights the incongruence with what some critics say (in theory) and what officer’s know and understand (in reality). Police officers also need to prepare themselves for defence arguments. Read case law! Seek out training! Discuss the issues with your peers! If you have time to think before acting, then think. Not every decision you make will require exigent or instantaneous action. By understanding the requirements of the law, officers can often discharge the Crown’s onus (e.g. presumptive warrant requirement), defend their actions from allegations of illegality, and/or counter claims of male fide intent. For example, the police in R. v. Morris, 2013 ONCA 223 stopped a Honda Civic for two reasons: (1) to verify the driver’s documentation and (2) a CPIC check of the licence produced cautions, related to the registered owner, of “armed and dangerous”, “violent” and “domestic violence”. An officer had run the licence plate because Honda Civics were a commonly stolen car and it was late at night. When the officers approached the vehicle, they smelled a strong marihuana odour and arrested Mr. Morris for possessing it — an offence at the time. In the course of a field search incident to arrest, police found a hidden compartment containing marihuana, crack cocaine, and a loaded handgun. Police said they would not have stopped the car but for the “caution”. They also testified that they understood the constraints placed upon them when conducting a “dual purpose” stop. If the driver’s documents were in order they would have let him go on his way; the officers did not PAGE 30 Spring 2022 Designing and delivering effective online instruction: how to engage adult learners. Linda Dale Bloomberg. New York, NY: Teachers College Press, 2021. LB 1044.87 B56 2021 Also available in eBook format. WHAT’S NEW FOR POLICE IN THE LIBRARY The Justice Institute of British Columbia Library is an excellent resource for learning. Here is a list of its recent acquisitions which may be of interest to police. 5 types of people who can ruin your life: identifying and dealing with narcissists, sociopaths, and other high-conflict personalities. Bill Eddy. New York, NY: TarcherPerigee, 2018. BF 637 I48 E328 2018 Alcohol and drugs in the Canadian workplace: an employer's guide to the law, prevention and management of substance abuse. Norm Keith. Toronto, ON: LexisNexis Canada Inc., 2020. HF 5549.5 A4 K43 2020 Appreciative inquiry in higher education: a transformative force. Jeanie Cockell & Joan McArthur-Blair. Victoria, BC: FriesenPress, 2020 LC 1100 C63 2020 Beyond collaboration overload: how to work smarter, get ahead, and restore your well-being. Rob Cross. Boston, MA: Harvard Business Review Press, 2021. HF 5548.85 C76 2021 Cities and homelessness: essays and case studies on practices, innovations and challenges. edited by Joaquin Jay Gonzalez III & Mickey P. McGee. Jefferson, NC: McFarland & Company, 2021. Available in eBook format only. Discussions in dispute resolution: the foundational articles. edited by Art Hinshaw, Andrea Kupfer Schneider, & Sarah Rudolph Cole. New York, NY: Oxford University Press, 2021. KF 9084 H56 2021 Dying and death in Canada. Herbert C. Northcott & Donna M. Wilson. Toronto; Buffalo; London: University of Toronto Press, 2022. BF 789 D4 N67 2022 Also available in eBook format. Essent ials for blended learning: a standards-based guide. Jared Stein & Charles R. Graham. New York, NY Routledge, Taylor & Francis Group, 2020. LB 1028.5 S715 2020 Essentials of managing stress during times of pandemic: a primer. Brian Luke Seaward. Burlington, MA: Jones & Bartlett Learning, 2022. Available in eBook format only. Experiential education and training for employment in justice occupations. Peter Charles Kratcoski, Peter Christopher Kratcoski. Cham, CH : Springer Nature, 2021. Available in eBook format only. Facilitating group learning: strategies for success with diverse learners. George Lakey; foreword by Mark Leier. Oakland : PM Press, 2020. LC 5225 L42 L35 2020 Also available in eBook format (JIBC login required) PAGE 33 Spring 2022 CANADA’s HIGHEST COURT MORE DIVIDED THAN PREVIOUS YEAR In its report, “2021 Year in Review”, last years’ workload of Canada’s top Court was highlighted. In 2021 the Supreme Court heard 58 appeals. This was up 41% from the 41 appeals it heard in 2020 which were the lowest number of appeals heard in a single year during the last decade. The most appeals heard annually in the last 10 years was in 2014 when 80 cases were brought before the Court. Case Life Span The time it took for the Court to render a judgment from the date it heard a case in 2021 was 4.2 months, down from 5.4 months in 2020 and 5.3 months in 2019. The shortest time within the last 10 years for the Court to announce its decision after hearing argument was 4.1 months (2014) while the longest time was 6.3 months (2012). Overall it took 15.2 months in 2021, on average, for the Court to render an opinion from the time an application for leave to hear a case was filed. This is down from the previous year (2020) when it took 17.4 months. Applications for Leave In 2021 there were 473 applications for leave submitted to the court, meaning a party sought permission to appeal the decision of a lower court. There were 430 applications for leave that were referred for decision. Quebec was the source of most applications for leave referred for decision at 117 cases. This was followed by Ontario (107), B.C. (52), Alberta (51), the Federal Court of Appeal (45), Saskatchewan (28), Manitoba (7), Nova Scotia (7), New Brunswick (7), Newfoundland and Labrador (5), the Yukon (2), Prince Edward Island (1), and Nunavut (1). No applications for leave came from the Northwest Territories. Of the known outcomes for leave applications, only 34 or 8% were granted. Of all applications for leave, 32% were criminal law while 22% were private law and 46% public law. PAGE 41 Spring 2022 SUCCESS RATE OF APPEALS DROPS IN BC’s HIGHEST COURT According to the BC Court of Appeal’s 2021 Annual Report, the dismissal rate for challenges to a lower court ruling dropped from the previous year. Of the 108 criminal appeal dispositions in 2021, 70 were dismissed. This represented a 65% dismissal rate. That means 35% of the time a lower court judge got it wrong or, in the language of the courts, erred. Remember, an appellant, whether Crown or the accused, must prove that the decision made by the lower court was incorrect because the judge made a mistake in understanding the facts (error of fact) or in applying the law (error in law). An appeal is not a new trial. Criminal Court Dispositions Year Appeals Allowed 2017 2018 2019 2020 2021 42 30 50 49 Percent (%) Allowed 34% 27% 32% 45% 35% Appeals Dismissed 82 83 104 61 38 70 Percent (%) 66% Dismissed 73% 68% 55% 65% Total 113 124 154 110 108 There are no witnesses testifying during an appeal nor is there a jury. In addition, even if the judge erred, it must also be proven that the mistake significantly affected the outcome of the case. • In 2021 there were a total of 171 criminal appeals filed. This was up 33% from 2020. • Usually an appeal is heard by a panel of three (3) judges, but sometimes more will sit. Criminal Appeals Filed Year 2017 2018 2019 2020 2021 Appeals Filed 246 258 219 129 171 Sentence 97 107 90 49 69 Conviction 95 118 92 56 71 Summary Conviction 11 10 11 12 7 Acquittal & Other 43 23 26 12 24 Reasons an accused may appeal a sentence include (1) it is excessive (too harsh), (2) it is illegal (not authorized by statute), or (3) the sentencing judge erred in applying one of more principles of sentencing (ignored or overemphasized them) and this error impacted the sentence. Reasons an accused may appeal a conviction include (1) the verdict was unreasonable or couldn’t be supported by the evidence, (2) the judge made an error of law, or (3) there was a miscarriage of justice. The success rate for civil appeals was higher than that of criminal appeals. A higher percentage (44%) were successful in 2021. Civil Court Dispositions Year 2017 2018 2019 2020 2021 Appeals Allowed 112 104 97 87 114 Percent (%) Allowed 40% 40% 42% 46% 44% Appeals Dismissed 168 155 134 102 147 Percent (%) 60% 60% 58% Dismissed 54% 56% Total 189 PAGE 45 280 259 231 261 Spring 2022 MISTAKE OF LAW RENDERS ARREST UNLAWFUL and fell from the accused’s pants. It was a doublebarrelled firearm loaded with a live round in each barrel. R. v. Tim, 2022 SCC 12 he car the accused was operating collided with a road sign but he kept driving. A passerby called 9-1-1 to report the hit-and-run collision. Fire, medical and police services responded to the call. A police officer found the accused standing on the roadside about a kilometre from the collision speaking with a firefighter. The vehicle had become disabled and stopped. The accused confirmed he was the driver and was cooperative with police. The officer asked the accused for his driver’s licence, vehicle registration and proof of insurance. When the accused returned to his vehicle and opened the driver-side door to retrieve his documents, the police officer saw him try to hide a small zip-lock bag containing a single yellow pill by swiping it to the ground. The officer identified the pill as gabapentin, which he had seen trafficked before with other street drugs such as fentanyl and methamphetamine. The officer immediately arrested the accused for possessing a controlled substance, handcuffed him and searched his person. During the pat-down, police found live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two hydromorphone pills, two alprazolam pills, another gabapentin pill, three cell phones, and $480 cash. While the accused was patted-down, another officer searched his car finding a folded serrated knife, a canister of bear spray, four fentanyl pills and two alprazolam pills. As the accused was escorted to a police vehicle, the arresting officer noticed the accused walking strangely. He was limping and shaking his leg as if he had something down his pants. The officer then saw .22 calibre ammunition fall from accused’s pant leg. The officer patted the accused down again by touching the outside of his pants in the groin area. The officer felt a metal object that became dislodged The accused was then arrested for possessing the prohibited firearm and was taken to the police station where he was strip searched down to his underwear. His waistband was searched to see if anything else was hidden, but no further contraband or weapons were found. At the time of his arrest the accused was under a firearms prohibition and an undertaking not to be in possession of drugs. The accused was charged with several Criminal Code and Controlled Drugs and Substances Act (CDSA) offences including possessing a loaded firearm, carrying a concealed weapon, possessing a weapon while prohibited, breach of undertaking, and possessing fentanyl. Alberta Court of Queen’s Bench The evidence established that the arresting officer was mistaken. While f e n t a ny l , hy d r o m o r p h o n e a n d alprazolam are all CDSA controlled substances, gabapentin is not. It is a prescription painkiller and anti-seizure medication. Although the officer correctly identified the yellow pill as gabapentin, the officer erroneously believed it was a controlled substance under the CDSA. The accused argued that his Charter rights under s. 8 — search or seizure — and s. 9 — arbitrary detention — were breached and the evidence, including the pistol, ammunition and fentanyl, ought to be excluded under s. 24(2). The trial judge found the warrantless arrest to be lawful. Not only did the officer have a subjective belief that gabapentin was a controlled substance, this belief was objectively reasonable because the officer had seen gabapentin trafficked with other street drugs before and had seen the accused try to hide the pill. Since the arrest was lawful, the searches incidental to it — the two pat-downs, the vehicle search and the strip search were PAGE 46 Spring 2022 possessing stolen property and taken to a police car. His girlfriend was also present in the room. The motel room, consisting of a main living area with a bed and a separate bathroom, was then searched for the (1) gold chain, (2) identification papers and documents bearing the unit and motel address, and (3) electronic devices, including computers or smartphones used to place advertisements on Facebook and Kijiji. The police located a wallet containing a bank card in the accused’s name, a laptop with the login screen on and in the name of “Matt”, income tax and employment insurance forms in the accused’s name, an air gun that resembled a semi-automatic firearm and $950 Canadian currency. Several baggies of drugs, including fentanyl, methamphetamine and cocaine were found in a small silver safe. Other drugs and drug related evidence, along with a stolen drone, was also found in the motel room. The accused was charged with possessing fentanyl and methamphetamine for the purpose of trafficking, possessing cocaine, and possessing stolen property. been tried and failed, or otherwise to establish the investigative necessity element required of an affiant in a wiretap application.” Since the search warrant was properly granted, there was no s. 8 Charter breach resulting from its nighttime execution. The evidence was admitted and the accused was convicted on two counts of possessing a controlled substances for the purposes of trafficking, possessing a controlled substance and possessing stolen property. British Columbia Court of Appeal The accused argued the trial judge erred by finding the nighttime search was justified. In his view, the evidence ought to have been excluded under s. 24(2) Nighttime Searches Section 488 of the Criminal Code states: “A warrant issued under section 487 or 487.1 shall be executed by day, unless (a) the justice is satisfied that there are reasonable grounds for it to be executed by night; (b) the reasonable grounds are included in the information; and (c) the warrant authorizes that it be executed by night.” British Columbia Provincial Court The judge found the judicial justice authorizing the search warrant was entitled to find there were reasonable grounds for its nighttime execution in compliance with s. 488 of the Criminal Code. “The necklace had in recent days been put up for sale on two websites and was apparently still listed for sale,” said the judge. “It was an easily moveable piece and indeed had been worn by the accused during the early morning curfew check … Given the circumstances as set out in the Information, the Judicial Justice was entitled to find reasonable grounds to authorise the warrant and to provide for execution of the warrant by night. … Once reasonable grounds for authorising a night warrant are established and those reasonable grounds are included in the Information, the test is met. All that remains is to ensure that the warrant authorizes execution by night. Unlike s. 185 of the Code, s. 488 does not require the Informant to establish that other investigative procedures have “Day” is defined in the Criminal Code as “the period between six o’clock in the forenoon and nine o’clock in the afternoon of the same day” — (6 a.m. to 9 p.m.). Justice Willcock, speaking for the unanimous Court of Appeal, examined other cases involving nighttime searches and concluded that a request for a nighttime search requires the authorizing justice to engage in a balancing process and consider several factors, including the gravity of the substance of the investigation, the likely occupancy of the residence and degree of disruption to privacy the search may cause, the nature of the items that may be found in a search, and the needs of the PAGE 51 Spring 2022 The Appeal Court suggested the “obvious and only reasonable approach was for the officer to obtain the warrant and greet the [accused] at his [motel] door in the morning”. Admissibility? The accused’s appeal was dismissed. The Court of Appeal applied the three s. 24(2) Charter factors — seriousness of the Charter‑infringing state conduct, the impact of the breach on the Charter‑protected interests of the accused and society’s interest in adjudication of the case on its merits — in assessing the admissibility of the evidence: • The first two factors did not strongly favour the exclusion of the evidence, while the third factor favoured admission. On balance, the exclusion of the evidence, rather than its admission, would bring the administration of justice into disrepute. Seriousness of the Charter‑Infringing State Conduct: This was not a serious breach. There was no clear violation of well‑established rules governing police conduct. There was some evidence the search was time-sensitive. Nor was there any material inaccuracy or omission in the ITO. The officers were expressly permitted by the warrant to execute the search at night and believed they were acting on legal authority. • Impact of the Breach on the Charter‑Protected Interests of the Accused: Other than the breach flowing directly from the nighttime search, there was no evidence the search was aggravated by police conduct during the search. For example, there was no evidentiary foundation for the argument that the treatment of the accused’s girlfriend, present in the motel room at the time of the search, exacerbated the impact of the Charter breach. • Society’s Interest in Adjudication of the Case on its Merits: The evidence was reliable and critical to the Crown’s case. The crimes included three drug offences, one of which was for possessing fentanyl for the purposes of trafficking. Trafficking of fentanyl is a serious offence that puts the public at risk. This factor weighed in favour of admitting the evidence. Complete case available at www.courts.gov.bc.ca Editor’s Note: Additional details taken from R. v. Carstairs, 2020 BCPC 300. COMMON LAW PERMITS MODIFIED SEARCH OF HOME INCIDENTAL TO ARREST R. v. Stairs, 2022 SCC 11 citizen called 9-1-1 about 15 minutes after he claimed he saw the male driver of another vehicle hitting a “turtling” female passenger in a “flurry of strikes”. The caller described the make, model and colour of the car, and provided a licence plate number of either “BEWN 480” or “BEWN 483”. He also described the driver as a white male, between the ages of 25 to 35, with a buzz cut or shaved head. Police located a suspect vehicle parked in the driveway of a residential home, close to where the 9-1-1 caller had made his observations. The vehicle provided matched the make and model but bore licence plate “BEWN 840”. The attending officers believed this was the correct vehicle. The vehicle was registered to the accused’s father but a plate query indicated the accused was known to drive it. The accused had cautions for escape risk, violence, family violence and he was listed as a high-risk offender. The police repeatedly knocked at the front door of the residence and announced their presence, but no one answered. Concerned for the safety of the female passenger, three officers entered the home without a warrant through an unlocked side door while loudly announcing “police”. On the main level, no lights were on, but the officers could see light and heard music coming from the basement. PAGE 53 Spring 2022 One of the officers looked down the basement steps and saw a man run by, from the right to the left side of the basement. Police continued to announce their presence and instructed all those present in the basement to come upstairs with their “hands up”. Eventually, a woman came up the steps from the right side of the basement with her hands up. She had fresh injuries to her face including marks and swelling to her forehead and eyes, cuts on her cheek, and scratches. One of the officers remained with the woman while two officers descended into the basement. At the bottom of the stairs a living room was to the right and a laundry room was to the left. The accused came out of laundry room, complied with police commands and was arrested. One of the officers then conducted a visual clearing search — a protective sweep — of the living room area which contained a coffee table, couch, TV and cabinets. The officer was not looking for evidence, but rather was clearing the room for safety reasons. During his visual sweep of the living room, the officer walked behind the couch and saw a transparent plastic container sitting out in the open on the floor. He saw what looked like glass shards inside the container, which he believed to be methamphetamine. He also saw a plastic Ziploc bag next to the coffee table containing what he believed was more methamphetamine. Police secured the residence and prepared a warrant to conduct a more thorough search for evidence related to the drug offence. The accused was ultimately charged with possessing methamphetamine for the purpose of trafficking, assault and failing to comply with a probation order. were no other hazards.” The woman and the accused had both come from the living room and the officers could not fully see into this area. The methamphetamine was sitting out in the open (plain view) when the officer did a brief sweep of the room for safety purposes and could be seized. The accused was convicted of assault, breach of probation, and possessing methamphetamine for the purpose of trafficking. He was sentenced to 26 months in jail (less 20 months pre-trial custody). Ontario Court of Appeal The accused appealed his conviction for possessing methamphetamine for the purpose of trafficking. He argued, among other things, that the police conducted an unlawful search of the basement living room after his arrest. In his view, the drugs ought to have been excluded under s. 24(2) of the Charter. A majority of the Appeal Court rejected the accused’s suggestion that the police needed reasonable grounds to believe that officer safety was at stake and that a search was necessary to address this specific concern before searching the basement living area. The search of the living room area was incident to lawful arrest. The purpose of the search was based on legitimate safety concerns. The police searched the living room to ensure no one else was present and there were no other hazards: Ontario Superior Court of Justice The judge concluded that the police entered the home because they were legitimately concerned with the safety of the female. Police entry was justified under the common law ancillary powers doctrine. The accused’s arrest in the home was lawful. The safety sweep was also lawful as a search incident to arrest. The police had a “valid objective,” to make sure that “no one else was there and that there PAGE 54 [T]the police were able to articulate why they had safety concerns. That articulation made sense. They had descended into a basement where they had never been before, in a house they had never been in before. While the 9-1-1 caller said that there were two people in the car that he observed, that did not mean there were only two people in the home. Nor did it mean that there were no other safety concerns hiding around corners. In particular, the police could not see behind the sofa from the doorway to the living room. It was not unreasonable to take a quick visual scan of the room in the circumstances. They Spring 2022 The modifications to the law my colleagues outline will require police to respect individual privacy rights within a home, by refraining from warrantless searches unless they reasonably suspect a search is necessary to address a safety risk. Where no such risk exists which meets the requisite threshold, the arrestee’s s. 8 privacy interests should generally prevail. In other words, police should secure the home and obtain a search warrant, which is not a particularly onerous task. [para. 173] highways, including being a certified National Pipeline instructor who had taught over 15 courses. He based his suspicion of illegal drug activity on the following: • • Justice Côté, like the majority, would dismiss the appeal and affirm the conviction but for different reasons. • Complete case available at www.scc-csc.ca Editor’s Note: Additional details taken from R. v. Stairs, 2020 ONCA 678 and associated appeal documents. • • EVIDENCE ADMITTED DESPITE ILLEGAL DRUG DOG SNIFF R. v. Zacharias, 2022 ABCA he accused was pulled over on Highway 1 in Banff by an officer for having illegally tinted windows and a burnt-out fog light on his truck contrary to Alberta’s Traffic Safety Act. The officer saw a large suitcase in the cab of the truck and a tonneau cover on the box. Over the course of their interaction, the accused told the officer he was heading to Calgary from Kelowna to visit his sister for a couple of days. The officer asked the accused if he was a member of law enforcement because the truck had a “back the blue” decal on one of its windows. The accused said the decal was on the truck when he bought it. The accused said his wallet had been stolen and he provided his passport for identification. After searching the accused’s name in police databases, the officer believed he developed a reasonable suspicion that the accused may be in possession of controlled substances. The officer was a 14-year member with significant experience, training and education in the interception and detection of travelling criminals on The accused was stopped on Highway 1, a known corridor for transporting drugs. The accused was travelling to visit his sister for a couple of days but he had a large suitcase in the cab of the truck which seemed inconsistent with a short visit. The suitcase was in the cab of the truck, not in the box behind the truck, which suggested that the back was full. The accused seemed extremely nervous when he handed over his passport. People who are pulled over for a traffic stop are nervous but their nervousness diminishes over time. The “back the blue” decal sticker was suspicious because such messages of support for police were commonly used by drug traffickers. The police databases query contained an entry revealing that three years earlier the accused was the subject of a complaint that he was involved in the distribution of large amounts of cannabis and cocaine. The identity and reliability of this complainant were unknown. The officer called for back-up and a sniffer dog. The accused was detained for investigation, patted down for officer safety, and placed in the back of a police vehicle. The sniffer dog was brought to the scene, deployed on the exterior of the truck and confirmed the presence of controlled substances. The accused was arrested for possessing a controlled substance and his truck was manually searched incident to arrest. Numerous large bags full of marijuana, edibles (126 THC-infused pastries), cannabis resin (700 grams of cannabis oil in a jar), cell phones, a score sheet and $12,600 in cash (under the rear bench seat) were found. In total, 101.5 lbs. of cannabis was located. The accused was re-arrested for trafficking, handcuffed and transported to the police station where he was stripped to one layer of clothing and placed in a telephone room to speak with a lawyer. He was subsequently released about six hours after being detained. Charges included possessing marihuana for the purpose of trafficking, possessing cannabis resin and possessing proceeds of crime. PAGE 61 Spring 2022 Alberta Court of Queen’s Bench The accused challenged the officer’s reasonable suspicion to detain him for a drug investigation and for calling the drug sniffing dog. As a result, he argued that his ss. 8 and 9 Charter rights were breached. The judge agreed that the officer’s suspicion was unreasonable. The officer lacked the necessary reasonable grounds to suspect illegal drug activity and therefore the accused had been arbitrarily detained. As for the search using the drug sniffing dog, it was unreasonable for lack of the requisite suspicion. The judge accepted that the officer sincerely believed he had reasonable grounds to suspect that the accused was involved in illegal drug activity but the officer’s observations and the information available to him did not constitute objectively reasonable grounds for suspicion. Although the totality of information and observations were assessed as a whole, the judge found most of them were weak indicators of drug activity and applied broadly to innocent people: • • • • • The accused’s nervousness was a common reaction to being pulled over. Although it was described as extreme, it might have been because the accused did not have his driver’s licence with him. In any event, it diminished over time. There was an innocent explanation for the accused keeping his luggage in the cab, not the box in the back; it was cold and he did not want it to freeze. The officer had no information about where the pro-police decal came from or whether it was on the vehicle when the accused acquired it. The route on which the accused was stopped was also used by law abiding citizens; this was not a significant indicator of unlawful activity. The information acquired from the police database search was a very weak indicator of unlawful drug activity because it was dated and its source and reliability were unknown. The judge, however, admitted the evidence under s. 24(2). In the judge’s view the breach was not serious, the accused had a lower expectation of privacy in the vehicle, and the evidence was highly reliable and important to the Crown’s case. The administration of justice would be brought into disrepute by the exclusion of such a significant quantity of controlled substances. The accused was convicted of possessing cannabis for the purpose of t ra f f i ck i n g a n d s e n t e n c e d t o 1 4 m o n t h s incarceration. Alberta Court of Appeal The accused alleged the trial judge erred in her s. 24(2) analysis by, in part, failing to consider all of the circumstances relevant in assessing the seriousness of the Charterinfringing conduct. He suggested the trial judge failed to consider all of the s. 8 Charter breaches committed by the police, such as the roadside patdown, the search of the truck, and the strip search at the police station, and their effects on his Charter-protected interests. Although she found a s. 9 breach regarding the initial investigative detention, the judge did not refer to it in her s. 24(2) analysis. Nor did she consider that the accused was placed in the back of a police vehicle, arrested on the basis of the unlawful sniffer dog search, re-arrested on the results of an unlawful search incident to arrest, handcuffed, and detained for six hours at the police station. The majority, Justices Wakeling and Crighton, first noted that the accused had only initially claimed Charter breaches related to his investigative detention and the sniffer dog search because the necessary reasonable suspicion was lacking. The Appeal Court could not now consider other conduct that might be contrary to the Charter when it was not argued at trial and where no findings were made. “The [accused] decided what police conduct he would challenge and the Crown, and indeed the trial judge, responded to the evidence led in relation thereto,” said the majority. “It would be unfair for an appellate court to make findings of fact on new breach arguments that were never argued or admitted at trial to undermine the trial judge’s section 24(2) analysis.” And further: We decline to consider [the accused’s] arguments regarding the additional breaches PAGE 62 Spring 2022 that were neither included in his Charter notice nor argued at trial. The onus is his to identify the breaches the trial judge is required to adjudicate. To ask this Court to assess different and additional arguments now is to change the entirety of the trial and the case the Crown was asked to meet. [para. 10] A Second Opinion Nevertheless, the majority did not agree that the accused was subjected to a strip search at the police station when he was asked to remove a layer of clothing. He was not required to strip naked. A strip search is a visual inspection of a person’s undergarments or genitals, which did not occur in this case. The majority did agree, however, that the trial judge did not expressly include the s. 9 Charter breach relative to the accused’s investigative detention in the second stage of her s. 24(2) admissibility analysis — the impact of the Charter breaches. But her failure to do so did not affect the result: The Charter protected interests relative to section 8 and section 9 of the Charter are the right not to be unreasonably detained, the expectation of privacy and the right to be free from an unreasonable search and seizure by the state. The trial judge found there was nothing untoward about [the officer’s] decision to stop [the accused], to engage him in discussion, or to take any steps necessary to assess the driver and to assure traffic safety. The impugned detention was required to facilitate deployment of the sniffer dog. … Here, the investigative d e t e n t i o n wa s n e c e s s a r y t o f a c i l i t a t e deployment of the sniffer dog relative to a vehicle in which [the accused’s] expectation of privacy is low. The impugned investigative detention was also brief and accompanied by the right to counsel which [the accused] refused. All of this, along with the factors identified by the trial judge, support her conclusion that the section 8 and 9 Charter breaches she found had only minimal impact on [the accused’s] Charter protected rights. [para. 7] Justice Khullar, in dissent, disagreed with the majority that the evidence should have been admitted. She was willing to entertain the additional ss. 8 and 9 Charter breaches not considered by the trial judge. In her view, in addition to the sniffer dog search of the vehicle, the pat down search of the accused’s person, and the search of the interior of the truck, including the duffel bags, were also s. 8 breaches. Moreover, s. 9 breaches included the initial detention without reasonable grounds, the arrests, and the continuation of the s. 9 breaches by placing the accused in the police vehicle, handcuffing him, and transporting him to the police station where he was detained for several hours. In her final analysis, Justice Khullar would have excluded the evidence. Although the breaches were not very serious (not made in bad faith, deliberate, systemic or negligent) and the evidence seized was reliable and integral to the Crown’s case which favoured inclusion of the evidence, the s. 8 breaches had more than a trivial impact on the accused’s Charter-protected interests while the s. 9 breaches had a significant impact. On balance, Justice Khullar held, “admitting the drug evidence in these circumstances would undermine the reputation of the criminal justice system in the eyes of a reasonable person informed of all the relevant circumstances.” She would have set aside the accused’s conviction and entered an acquittal. Complete case available at www.canlii.org That which you permit, you promote. The trial judge did not err in admitting the evidence, the accused’s appeal was dismissed, and his conviction was upheld. PAGE 63 Spring 2022 UNDERMINING LEGAL ADVICE BREACHED s. 10(b) CHARTER: STATEMENT EXCLUDED R. v. Dussault, 2022 SCC 16 fter arresting the accused for murder and arson, the police informed him of his s. 10(b) Charter rights. The accused indicated that he wished to speak to a lawyer and he was transported to the police station, arriving at 2:36 p.m. He was presented with a list of local defence lawyers and chose one at random. He was placed in a telephone room and told to wait for a call. The phone rang and the accused spoke to his chosen lawyer for about nine minutes. The lawyer explained the charges and the accused’s right to remain silent. The lawyer believed the accused was not processing or understanding his advice and offered to come to the station to meet in person. The accused agreed. The lawyer asked the accused to pass the phone to an officer, which he did. The lawyer spoke to a detective for about three minutes, telling him that he was coming to the police station and asking that the investigation be suspended. The detective replied, “[n]o problem” or “no trouble”. The lawyer then spoke to the accused, confirming he would be coming to the station to meet with him. The lawyer told the accused he would be placed in a cell and told him not to speak with anyone. The accused believed his lawyer would be coming to the police station to meet him. At 3:20 p.m., officers involved in the investigation decided that the lawyer would not be permitted to meet with the accused. The detective called the lawyer and told him there was no point in coming to the police station. The detective explained that the accused had exercised his right to counsel during the telephone conversation and the accused himself had not expressed a desire to meet with his lawyer. A Crown prosecutor was contacted and confirmed that the accused was not entitled to meet with his lawyer at the police station. At 4:15 p.m. the lawyer arrived at the police station but was not permitted to meet with the accused. At 6:30 p.m., the lawyer departed the station but left a handwritten note for the detective indicating he had only partially instructed the accused on his rights during the earlier phone call and wanted to meet with the accused to complete the advice before he was interrogated. He said he would be available after 7:45 p.m. and asked the detective to contact him as soon as possible. The investigators decided not to permit further consultation between the accused and his lawyer before proceeding with questioning. Meanwhile, when he asked three times whether his lawyer had arrived at the station, the police declined to tell the accused that his lawyer was at the station or that his lawyer had asked to speak with him. At 8:52 p.m. the accused was taken for an interview. He continued to express his expectation that his lawyer would come to the station and he was reluctant to proceed with the interview. The interviewer persisted despite the accused’s repeated assertions that he did not wish to say anything further and that he wanted the interview to stop. The accused subsequently provided an incriminating statement. Superior Court of Quebec The accused argued that there had been objectively observable circumstances indicating that the accused had not understood his lawyer’s initial legal advice. These objectively observable circumstances were: (1) the lawyer’s handwritten note; and (2) the accused’s assertion that his lawyer had said he was coming to meet with him. In his view, these circumstances obliged the police to provide him with a second opportunity to consult his lawyer. The judge concluded that the accused had exercised his right to counsel by the end of the telephone call with his lawyer. In the judge’s opinion, the lawyer had adequately explained the PAGE 65 Spring 2022 and toward the fault of the police. … The duty to facilitate reconsultation is not imposed on police as a punishment for ill-intentioned conduct.” Again, undermining police conduct is not limited to the “belittling” of defence counsel. Conduct other than the express belittlement of defence counsel may have the effect of distorting or nullifying the legal advice received. “The focus remains on the objectively observable effects of the police conduct, rather than on the conduct itself,” said Justice Moldaver. He continued: The police led the accused to believe that an inperson consultation with his lawyer would occur. But the detective's conduct was misleading. When the lawyer said he was coming to the police station to meet the accused and asked that the investigation be suspended, the detective said it would be no problem or no trouble. Relying on these words, the lawyer told the accused he was coming to meet him. This had the effect of causing the accused to believe an in-person meeting would be taking place. The police led the accused to believe that his lawyer had failed to come to the police station for their in-person consultation. When the accused asked whether his lawyer had arrived, the officer said he wasn’t at the front of the station. This response suggested that the lawyer had not arrived at all. Simply put, the purpose of s. 10(b) is to provide the detainee with an opportunity to obtain legal advice relevant to their legal situation. … [T]he legal advice is intended to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”. The legal advice received by a detainee can fulfill this function only if the detainee regards it as legally correct and trustworthy. 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. Police conduct of this sort is properly said to “undermine” the legal advice that the detainee has received. If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises. By contrast, the right to reconsult will not be triggered by legitimate police tactics that persuade a detainee to cooperate without undermining the advice that they have received. … [P]olice tactics such as “revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” do not trigger the right to a second consultation with counsel. [references omitted, para. 45] These two separate objectively observable acts undermined the legal advice provided. First, the content of the lawyer’s advice was undermined. “[The lawyer] advised [the accused] that he was coming to the police station to meet with him in person; that, in the interim, [the accused] would be placed in his cell; and that he — [the accused] — should not speak to anyone,” said Justice Moldaver. “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, during the interrogation, the accused repeatedly expressed his expectation that his lawyer would attend and his concern that he had not shown up. These statements were “objectively observable indicators that the legal advice given to [the accused] had been undermined.” In this case, the police undermined the legal advice that the accused’s lawyer had provided him during their telephone conversation and triggered the police duty to provide the accused with a second opportunity to consult counsel, which they failed to do. The Supreme Court also agreed that the right to counsel is “a ‘lifeline’ through which detained persons obtain legal advice and ‘the sense that they are not entirely at the mercy of the police while detained’.” “In this case, the conduct of the police had the effect of undermining and distorting the advice that [the accused] had received.” Justice PAGE 68 Spring 2022 Moldaver said, “the police ought to have offered him a second opportunity to re-establish his ‘lifeline’, but they did not. In failing to do so, they breached his s. 10(b) rights.” The accused’s incriminating statements were excluded under s. 24(2) and the Crown’s appeal was dismissed. Complete case available at www.scc-csc.ca PLAIN VIEW DRUGS JUSTIFIES ARREST R. v. Morin, 2022 SKCA 46 olice conducted a traffic stop of an unregistered vehicle. When officers approached the vehicle, the driver exited it and was followed on foot. Two other individuals were still inside the vehicle. The accused, the front seat passenger, exited the vehicle and identified himself without being asked to do so. The backseat passenger did the same. The vehicles windows had been rolled down and its doors left open. While standing beside the vehicle, an officer observed a clear plastic bag in the open centre console between the front seats. The bag contained what he believed was methamphetamine. The accused and the backseat passenger were arrested for possessing a controlled substance for the purpose of trafficking. In searches incidental to their arrests, the police discovered about $2,000 in bundles of cash and a cellphone on the accused, as well as a scale and three bags of cocaine, on the backseat passenger. The accused’s cellphone was later searched and found to contain messages indicative of drug trafficking. The police seized 10.7 grams of cocaine and 3.7 grams of methamphetamine from the centre console of the vehicle. No drugs were found on the accused and he claimed he had recently visited a casino where he had won the cash. The accused was charged with possessing methamphetamine and cocaine, each for the purpose of trafficking. Saskatchewan Provincial Court The accused alleged, among other things, that the police breached his ss. 8 and 9 Charter rights and he wanted the evidence discovered in the searches excluded under s. 24(2). The judge found the passenger side front and rear doors were both open, the front passenger window was down. The officer could see into the centre console, which was ajar about six inches. The officer saw a clear baggie tied in a knot sticking out from the centre console and a small Ziploc clear baggie next to it with what appeared to be methamphetamine. On this basis, all of the occupants were then arrested for drug possession. The judge found the accused’s arrest and searches were lawful. The accused’s Charter application was dismissed and he was convicted of possessing methamphetamine and cocaine, each for the purpose of trafficking. He was sentenced to 22 months incarceration followed by three years of probation. Saskatchewan Court of Appeal The accused asserted, in part, that the trial judge erred by failing to find violations of ss. 8 and 9 of the Charter in the circumstances of his arrest. But the Court of Appeal concluded the trial judge did not err in finding that the arrest and searches were lawful. Plain View Since the methamphetamine and cocaine were in plain view in the vehicle, the police had reasonable grounds to arrest the accused. The search for and seizure of the evidence did not violate s. 8. The console was open, the drugs were in clear plastic bags and the trial judge found they were in plain view. “The judge’s plain-view finding is thoroughly supported by the testimony of the officer who saw the baggie of methamphetamine in the centre console of the vehicle as well as by the dashboardcamera footage from the police cruiser, which is the only evidence relevant to the finding,” said Justice Caldwell, speaking for the unanimous Court PAGE 69 Spring 2022 of Appeal. “Although [the accused] attempted to establish through the dash-cam video that the officer had entered the vehicle before he saw the drugs, the officer maintained that the drugs had been in plain view and that he had directed other officers to arrest [the accused] after seeing the drugs from the exterior of the vehicle, not after leaning into the vehicle and finding them.” The trial judge did not misapprehend the evidence nor was his finding that the drugs were in plain view clearly wrong. The trial judge’s conclusion that the police had reasonable grounds to arrest the accused was not an error and the search incidental thereto was lawful. There were no ss. 8 or 9 of the Charter breaches and, therefore, no reason to conduct a s. 24(2) analysis. The accused’s appeal was dismissed. Complete case available at www.canlii.org FORCE JUSTIFIED DURING INVESTIGATIVE DETENTION: HANDGUN ADMITTED R. v. Noor, 2022 ONCA 338 he police received a 9-1-1 call about a man with a gun at a gas station. The caller said he was approached by the man (a stranger), who asked for a cigarette. After the caller gave the man a cigarette, the man “flashed” a gun that was in his waistband under his jacket and said “peace”. While driving away, the caller saw the man knocking on the window of the gas station. The caller provided a description of the man: male, black, about six feet tall, slim build, in his late 20s, wearing light blue pants and a hoodie that was yellow, blue, and had a little bit of red with the hood down (described as “more like a sweater type”). Two officers attended the gas station and were told by its attendant that the man came to the window and asked him to call a taxi. When the attendant refused, the man walked east, away from the gas station. The attendant described the suspect as male, black, with a gold earring in each ear, possibly having a gold tooth or teeth, wearing an orange hoodie. The two officers began a search for the suspect by driving in the area. At a plaza located about 350 metres from the gas station, the officers noticed the accused. He appeared similar in description to the suspect and was standing among a group of six to eight men outside of a restaurant. The accused was a young, black man, about six feet tall, with a slim build, short hair, a goatee and facial hair along his jawline. He did not have gold teeth but had gold hoop earrings in his ears. He was wearing light coloured pants, an orange sweatshirt, and a red, orange and black jacket. The jacket had no hood but had large and distinctive white number 8s on the sleeves and back. As the officers approached the group on foot, the accused appeared startled and quickly moved away from the other men and tried to evade the officers. One of the officers told the accused, “hold on, man”, and he reached for the accused’s arm to restrain and detain him for investigation. The accused tried to leave and a violent struggle ensued. He was taken to the ground but resisted. He had his arms under his body and appeared to be trying to reach into his jacket with his right arm. The officer was concerned that the accused was reaching for a firearm. With the assistance of other officers, the accused was controlled and handcuffed. When he was rolled onto his side, his jacket fell open revealing the grip of a handgun in an inside jacket pocket. It was a restricted firearm — a Para USA 1911 Elite Commander 45 caliber semi-automatic handgun with an obliterated serial number. There were six rounds in the magazine and another round in the chamber. The accused was not the holder of a firearms acquisition certificate, license, or firearms registration certificate. He was charged with several firearms offences. Ontario Court of Justice PAGE 70 The detaining officer conceded that there were no grounds to arrest the accused until after he was subdued and the gun was discovered. The accused Spring 2022 In Service: 10-8 Back Issue Archive. PAGE 88