Police Powers · he does this in all cases where vehicles are to be towed. ... Where the power to...

Police Powers—, Police Powers Newsletter 2016-4

POLICEPWRSNWS 2016-4 Police Powers Newsletter

April, 2016

— Police Powers—

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

Table of Contents

1. Unlawful Inventory Search Leads to Exclusion of Evidence

2. Passenger in Motor Vehicle Stop Not Detained

3. Data on Another’s Server is Not in “Possession and Control” for Purposes of a Production Order

4. Search of Car under the Ontario Liquor Licence Act Unlawful and Evidence Excluded

5. Strip Search of Accused Following Arrest for Impaired Driving Results in Stay of Proceedings

6. Awareness of Separate Investigation does Not Undermine Reliance on Implied Invitation to Knock

7. Officer’s Belief that he “Knew” Drugs were in Vehicle does Not Amount to Objectively Reasonable and Probable Grounds to Arrest

8. Failure to Obtain Warrant to Search Blackberry does Not Amount to Reviewable Error where Warrant Authorizes Seizure of Communication Devices and Data “Stored in the Form of Magnetic or Electronic Coding”

9. Statements Obtained in Breach of Charter Admissible on s. 8 Voir Dire

10. Standing to Bring Charter Challenge Made Out Based on Evidence in ITO

11. Incomplete Recording of Accused’s Statements a Matter of Weight, Not Admissibility

12. No Exclusionary Remedy where Lack of Nexus between Charter Breach and Obtaining of Evidence

1. Unlawful Inventory Search Leads to Exclusion of Evidence

Facts: Mr. Harflett was travelling on the 401 in Ontario. He stopped at a service centre. A police officer noticed his car had Quebec plates. As the officer was training a colleague from the Canadian Border Services Agency, he showed him how to run Quebec plates.


He discovered that the appellant’s Ontario driver’s licence was suspended. By that time the appellant had left the rest stop and was travelling on the 401. The officer pulled him over 6 km away. Mr. Harflett was arrested for driving with a suspended Ontario licence.

The arresting officer decided to have the car towed to a hotel for the night. He testified that Mr. Harflett could travel with the tow truck driver. In the morning he could pay his fines and then he would be on his way. Before towing the vehicle, the officer testified that he decided to conduct an inventory search of the vehicle. He said that he does this in all cases where vehicles are to be towed. He smelled marihuana when he opened the trunk. He then found marihuana and arrested the appellant with possession for the purpose of trafficking.

The appellant argued that his s. 8 rights had been breached when the officer conducted the initial inventory search of his vehicle before it was towed to the hotel. He said that the officer had no authority to conduct the search. The trial judge concluded that the inventory search was reasonable and, even if it was not, the evidence should not be excluded. A conviction was entered.

Mr. Harflett appealed his conviction.

Held: The appeal was allowed and an acquittal was entered.

Mr. Justice Lauwers reinforced the long-standing rule that a police officer, or any state authority, conducting a search must be able to point to the specific statute or common law rule that authorizes the search: R. v. Caslake, [1998] 1 S.C.R. 51 at para. 12. All roadside stops of a vehicle involve the detention of the driver: R. v. Hufsky, [1988] 1 S.C.R. 621. While the initial detention of the driver was lawful, based on the authority of the Highway Traffic Act (HTA), the power to detain a person under the HTA does not include an inevitable power to impound a vehicle or conduct an inventory search.

This was not a criminal investigation. There was no hint of criminality. The officer testified that he searches every vehicle for which he calls a tow truck to protect himself, the driver and the tow truck operator. He searches for weapons, other dangerous items and valuables.

The officer could not identify any statutory or common law authority to support his impounding of the vehicle or searching it prior to doing so. While the common law allows for the impounding of vehicles in some situations, such as where a vehicle may be uninsured and the police suspect the driver will continue to drive it, this was not one of those cases: R. v. Waugh, 2010 ONCA 100 at paras. 25-26. Justice Lauwers observed that the police decision to have a vehicle towed does not justify an inventory search in every case: R. v. Martin, 2012 ONSC 2298 at para. 36.

Upon finding a s. 8 Charter breach, the Court conducted a s. 24(2) analysis. Under the first prong of R. v. Grant, 2009 SCC 32, considering the seriousness of the Charter breach, Lauwers J.A. rejected the suggestion that the officer was acting in bad faith. Nonetheless, he found a serious breach that rested on the basis of a “pattern of abuse”.

The searching officer had what the Court considered to be an established pattern of abuse of s. 8 Charter rights in this context. Two reported decisions, setting out s. 8 violations in the motor vehicle context, were considered by the Court. The same officer was involved. In addition, the officer agreed that he was “really good at finding ways to search motor vehicles”, but that he does so “lawfully”. His conduct was placed at the more serious end of the s. 24(2) spectrum. Being a completely unjustified search, the impact on the accused was considered serious. While the truth-seeking function of the trial would be adversely impacted, the administration of justice would not be undermined by excluding the evidence.

http://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=1998452302&originationContext=document&transitionType=Document&vr=3.0&rs=cblt1.0&contextData=(sc.AlertsClip)










Commentary: This case reminds us that while in some situations an inventory search will be justified before a vehicle is impounded, it is not a foregone conclusion. In R. v. Nicolosi, [1998] O.J. No. 2554 (C.A.) at para. 36, Doherty J.A. observed that it will sometimes be necessary for an officer, statutorily assuming control of a vehicle, to take steps to safeguard its contents. For instance, a vehicle being operated without proper plates may be taken into the “custody of the law” and stored in a “suitable place”: s. 221(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. According to Doherty J.A., where the police intend to store a vehicle pursuant to this provision, it would be unreasonable to expect that the police would not enter the vehicle so that, among other things, its contents can be safeguarded.

Based on a combination of the Nicolosi judgment and Lauwers J.A.’s reasoning, it appears that before the police warrantlessly enter a vehicle about to be towed, they should be clear on the statutory or common law power allowing for this process. Where the power to tow the vehicle rests in statute, particularly a provision that requires a vehicle to be removed from the road, Nicolosi remains good law and, depending on the reason, entry into the vehicle will often be reasonable within the meaning of s. 8. Where the power to tow the vehicle rests in the common law, the basis upon which to enter the vehicle may be more questionable. One thing is for sure — if the police have no basis to tow the vehicle, the likelihood of entering to search before it is towed will likely be found unreasonable.

On a s. 24(2) note, the case contains a very interesting approach. The Court’s reliance on two previous decisions where the same officer had engaged in s. 8 breaches to establish a “pattern of abuse” leading to a finding of seriousness is critical. In this day when many trial judgments are posted on line, it will become much easier to look to officers’ track records as it relates to Charter breaches. One wonders how this will all resolve and how the balance should be approached. After all, if an officer has been Charter compliant on two occasions in the past, but breached the Charter this one time, should that be a show of good faith? What about where an officer has a split record, showing some breaches and some Charter compliant searches? Should there be concern over the fact that Charter compliant searches may not be challenged and so an officer’s actual track record in terms of Charter compliance cannot be ascertained from a decision database?

These are questions that will no doubt have to be answered on a going-forward basis.

R. v. Harflett (2016), 2016 CarswellOnt 5379, 2016 ONCA 248 (Ont. C.A.)

2. Passenger in Motor Vehicle Stop Not Detained

Facts: The police were patrolling a highway in rural Saskatchewan. As a car was driving toward them, they saw the front end dip quickly. This suggested a fast braking motion. An officer testified that he believed the car had been speeding before the brakes were applied. The vehicle was pulled over.

The officer noticed what he considered were a few suspicious things when he approached the vehicle. For instance, the passenger had a freshly lit cigarette. The officer testified that it is more common for a person to discard a cigarette, than light one, when a police officer approaches. The men told him that they were travelling from Saskatoon, Saskatchewan to Richmond, British Columbia. There were fast food containers on the floor boards of the vehicle and both men appeared nervous. While it is common for drivers to be nervous during a traffic stop, the officer testified that it is uncommon for passengers to display signs of nervousness.

Both individuals were asked to identify themselves, which they did. Police databases were checked and the officer learned that both had been previously involved with drugs. Based on what the officer had seen, combined with what was contained in the records, he formed reasonable grounds to suspect that the men had drugs. The officer testified that they were then detained for investigation.




He placed the driver in the police vehicle and questioned him. The officer then returned to the vehicle where the passenger had been left. The officer told the passenger that he had a sniffer dog and intended to deploy him. He asked whether the dog would indicate the presence of narcotics. The passenger, Mr. Mooiman, then gave the officer a plastic bag containing marihuana. He said that the driver knew about it. They were both arrested for possession of a controlled substance, after which the vehicle was searched and 1.9 lbs of marihuana was located.

The trial judge found no Charter breaches and convicted the men. They appealed, suggesting that the trial judge erred in his ss. 8 and 9 conclusions. They also appealed from a finding that there had been no unreasonable delay in bringing them to trial.

Held: The appeal was dismissed.

Speaking for the Court, Caldwell J.A. found that when the vehicle was first pulled over, only the driver had been detained within the meaning of s. 9 of the Charter. As for the passenger, he was not detained until after the police databases had been checked. A detention requires a “significant physical or psychological restraint”, at para. 21. While the stopping and detaining of a driver may impair a passenger’s ability to proceed, nothing about a routine traffic stop prevents a passenger from walking away. While from a practical perspective a passenger may not walk away, the fact he is caught up in a stop does not obligate him or her to comply with an officer’s request for assistance. Mr. Mooiman was not the subject of a significant deprivation of liberty. While he was questioned, it was nothing more than preliminary questioning that did not trigger a detention.

Justice Caldwell also found that accessing of police databases to check identification does not trigger a search because there is no reasonable expectation of privacy in police databases: at para. 26. There was no s. 9 breach for either the driver or passenger.

Once the drugs were handed over by the passenger, both men were lawfully arrested. While Mr. Mooiman seemed to have them on his person, the driver was in constructive and joint possession of the marihuana. Based on the arrest that flowed from the drugs being handed over, a lawful search incident to arrest was executed and the larger amount of drugs was lawfully found.

The ss. 8 and 9 aspects of the appeal were dismissed.

Commentary: This is an interesting judgment that raises an issue that seems to be re-appearing in the jurisprudence as to whether passengers in motor vehicles that are stopped under highway traffic legislation are detained for purposes of s. 9 of the Charter: R. v. Harris, 2007 ONCA 574; R. v. Thomas, 2015 ONSC 7299; R. v. Frank, 2012 ONSC 6274; R. v. Graham, 2011 ONSC 906.

Justice Caldwell’s reasons adhere closely to what Iacobucci J. said about detention in R. v. Mann, [2004] 3 S.C.R. 59. At para. 19 of Mann, Iacobucci J. reinforced the idea that the police do not detain, within the meaning of ss. 9 or 10 of the Charter, everyone they stop for “purposes of identification, or even interview”. While a person may be detained, meaning “delayed” or “kept waiting”, only “significant physical or psychological restraint” will trigger Charter protection. Of course, the point when a detention kicks in is absolutely critical to when the right to counsel must be afforded under s. 10(b) of the Charter. Because of the symbiotic relationship between these two Charter rights, it is important for the police to understand the point at which a police-citizen encounter turns into a detention.

R. v. Mooiman (2016), 2016 SKCA 43, 2016 CarswellSask 192 (Sask. C.A.)

3. Data on Another’s Server is Not in “Possession and Control” for Purposes of a Production Order







Facts: The police obtained a production order under s. 487.014 of the Criminal Code. The order required the Charles H. Best Diabetes Centre to produce a patient’s medical chart and to obtain his blood sugar data from the website of another entity.

Desmond Morse used the Diabetes Centre to obtain medical treatment. He would check his blood sugar levels when not at the Centre. The levels were uploaded to a website administered by “Diasend”. It is a Swedish company with a website that can be accessed from anywhere. The website was used to track Mr. Morse’s blood sugar levels. When he would attend at the Diabetes Centre, they had his permission to access the website and check his blood sugar. Sometimes the Diabetes Centre would download the information and print it out, but not always. They never accessed the Diasend website for purposes of obtaining Mr. Morse’s blood sugar statistics without him present.

The police obtained a production order requiring that the Diabetes Centre produce Mr. Morse’s medication chart and “all data or reports generated by the Animas pump worn by Desmond Morse that is in the possession of or are accessible by the staff [at the Diabetes Centre]”. Depsite Mr. Morse taking no position on the application, the Diabetes Centre brought an application to vary the production order. While the applicant took no issue with producing the patient’s chart, they took the position that they were not in possession or control of the Diasend information and should not be required to access that website to produce the information.

Held: The application judge agreed with the applicant’s position. Section 487.014 of the Criminal Code only allows production orders to issue for documents in the third party’s “possession or control” or to “prepare and produce a document containing data that is in their possession or control at that time”.

Justice Salmers determined that the plain and ordinary meaning of the words “possession” and “control” requires a common sense reading. Diasend is a Swedish company independent from the Diabetes Centre. The applicant only had permission to access the data for a very specific purpose and nothing else. Even when downloading data from the website, the Diabetes Centre neither possessed nor controlled the website. As such, they could not be required under s. 487.014 to produce the data. The production order was varied accordingly.

Commentary: This is an interesting case that simply highlights, yet again, the new challenges created for law enforcement in our increasingly technological world. The reality is that not too many years ago, a clinic like the applicant’s, would keep all blood sugar information on site. The world of technology has allowed them and others to move to a system that centralizes this critical data in cyberspace, making it more difficult for law enforcement to access.

Here, though, one is left to wonder whether a general warrant, under s. 487.01 of the Criminal Code would not have had the desired effect. While the applicant may not have been in possession or control of the data held by Diasend, precluding use of a production order to obtain the data, perhaps they could be required to obtain it under a general warrant which does not impose such limitations on entities such as the applicant.

R. v. Charles H. Best Diabetes Centre (2016), 2016 CarswellOnt 3827, 2016 ONSC 1761 (Ont. S.C.J.)

4. Search of Car under the Ontario Liquor Licence Act Unlawful and Evidence Excluded

Facts: Mr. Benimadhu came to the attention of the police for an “aggressive lane-change”, but was pulled over when he threw a cigarette from his window. He was stopped for littering. The officer could smell burnt marihuana and alcohol. The driver told him that he had just smoked and that the liquid in a cup holder was his passenger’s. The officer told the driver and passengers that the car would be searched.

While nothing was found in the front or back of the car, the trunk contained a bag from Bed Bath & Beyond store.



It had marihuana inside. Everyone was arrested for possession of drugs. The driver volunteered that it was his. He was then placed in the police car. He was released on a promise to appear.

The accused maintained that his s. 8 rights had been infringed. The Crown argued that the search had been s. 8 compliant and relied upon s. 32 of the Liquor Licence Act (LLA).

Held: The trial judge found a s. 8 breach and excluded the evidence.

Pursuant to s. 32(5) of the LLA, a police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle may, without warrant, enter and search the vehicle or any person in it. Under s. 32(1) and (2) of the LLA, a person may not drive a vehicle with liquor in it unless they have a licence or permit to do so, or if the liquor is unopened or is packed in baggage that is fastened closed “and is not otherwise readily available to any person in the vehicle”.

The parties agreed that the officer could lawfully search the front and back areas of the car. Where they parted company was whether the officer had the ability, pursuant to s. 32 of the LLA, to search the trunk. The trial judge concluded that the search of the Bed Bath & Beyond bag was not authorized. While the officer testified that the back seats folded down and he thought that one of the back passengers may have secreted alcohol in the trunk by lowering the back seat rest, the trial judge was “skeptical” of this evidence. The trial judge touched and held the bag and found that there was no reason someone may have thought there was alcohol contained within it. It was light and clearly contained a leafy substance.

Justice Botham concluded that while the officer was acting within his lawful authority when he searched the interior of the car, he exceeded that authority once he looked into the bag in the trunk of the car. He had no reason to believe that the bag contained alcohol when he opened it.

As for s. 24(2), this was considered a serious breach. The officer’s evidence was found to have aggravated the seriousness of the breach because it was “self-serving and unlikely to be true”. The trial judge concluded that there is a heightened privacy interest in the trunk of a vehicle because it is hidden from view. This meant that the impact of the breach on the Charter interests of the individual was increased. The long-term repute of the administration of justice would be better served by excluding the evidence.

Commentary: This judgment shows the power of s. 32 the Liquor Licence Act in Ontario and equivalent provisions beyond Ontario. The LLA justified the warrantless search of the motor vehicle. Had the marihuana been located in the body of the vehicle, it would have been a constitutionally compliant search. The officer simply went too far by searching the trunk of the vehicle. Had the trial judge not made adverse credibility findings against the officer, even the trunk search may have been found to comply with the powers provided under the LLA.

The s. 24(2) judgment reinforces the principle that was set out in R. v. Harrison, 2009 SCC 34. Where state actors are found to have testified in a manner that was intentionally misleading, this fact can add to the seriousness of the Charter breach and point heavily toward exclusion of evidence.

R. v. Benimadhu (2016), 2016 CarswellOnt 3904, 2016 ONCJ 142 (Ont. C.J.)

5. Strip Search of Accused Following Arrest for Impaired Driving Results in Stay of Proceedings

Facts: A civilian called police to report a vehicle stopped in the right lane of traffic with the right turn signal on. An officer attended and observed the female driver alone in the vehicle, slumped over the steering wheel. The driver eventually awoke and unlocked the driver’s side door. The officer opened it, and immediately detected the odour of alcohol and vomit. He asked for the driver to step out of the vehicle and placed her under arrest for impaired driving. At trial, the accused acknowledged that she was in care and control of a motor vehicle, was impaired, and




had a blood alcohol reading of 160 milligrams of alcohol in 100 milligrams of blood. However, the accused alleged that, following her arrest, she was strip searched at the detachment and that this constituted a serious breach of her rights under s. 8 of the Charter. The accused applied for a stay of proceedings under s. 24(1).

The detachment video showed the accused wearing a blue one-piece garment and a white coat. Two female officers began to search the accused by removing her coat. The accused was eventually led to a room off camera. At one point, one of the officers left the room carrying a blue piece of cloth. Later, the accused was led from the room wearing white coveralls, or “bunny suit”.

The accused testified that, on the night in question, she was wearing a one-piece blue jumpsuit with a white jacket and several items of jewelry, including a belly button ring. She testified that, when placed in the cell, she was told to remove her jumpsuit, and did so. She was not wearing a bra. She was wearing thong-style underwear. She removed her bellybutton ring and was then given the white coveralls to wear before the investigation continued. She testified that she woke in the morning wearing the white coveralls and nothing else.

Both officers testified on the voir dire. Both officers testified that the accused’s jumpsuit was not removed entirely, but their evidence was quite vague on details. Neither officer had taken notes of the search. One officer recalled that it was only necessary for the accused to pull her top down in order to remove her bellybutton ring, but that the accused was facing the wall when she did so, and as such, the officer did not observe her breasts. Both officers testified that the white coveralls were provided out of respect for the accused’s dignity. Both officers testified that in their opinion, the activities in the room did not constitute a “strip search”.

The Crown suggested that the video revealed that a portion of the leg of the blue pantsuit could be observed at the bottom of the white overalls, and as such, contradicted the accused’s assertion that her jumpsuit was removed.

Held: Application allowed.

The application judge reviewed the video and could not conclude that any blue clothing could be observed at the bottom of the coverall pants leg. The application judge found that, regardless of whether the jumpsuit was entirely removed, or merely pulled down to allow the accused to remove her bellybutton ring, such acts constituted a strip search as defined in R. v. Golden, 2001 SCC 83: the removal or rearrangement of some or all clothing of a person to permit a visual inspection of a person’s private areas, namely, genitals, buttocks, breasts or undergarments.

The trial judge found that neither officer provided compelling evidence as to why it was necessary to either remove the accused’s blue pantsuit or pull down its upper section, in order to remove the accused’s bellybutton ring. While conceding that, in some circumstances, it may be necessary to remove a ring for security reasons, in that a bellybutton ring might be considered a weapon, there was no evidence that removing the ring was necessary in the particular circumstances of this case. In doing so the application judge took into account the following factors: the accused was arrested for impaired driving (not an offence of violence); she would only be in police custody for a few hours and not held for a bail hearing; she would be housed in a cell by herself; she was severely impaired; she was cooperative and compliant at all times; she had not made any threats to the officers, or exhibited any signs of aggression; she was 26 years old and did not have a criminal record, and; she exhibited no signs of mental illness.

The application judge found that the strip search in this case did not meet the reasonable grounds test described in Golden. Indeed, there were no grounds whatsoever to conduct either a limited or full strip search. Turning to remedy, the trial judge held that the appropriate remedy was a stay of proceedings. In doing so, the application judge cited concerns that “vague concepts of police safety” were being cavalierly put before concerns for the



dignity of the accused, and noted that alternatives to the strip search conducted were available, including allowing the accused to keep her coat and remove the bellybutton ring without exposing her breasts, and allowing the accused to remove the ring in the privacy of a washroom. In support of these conclusions, the trial judge cited R. v. Lee, 2013 ONSC 1000; R. v. Samuels, 2008 ONCJ 85; and R. v. D’Andrade, 2016 ONCJ 12.

Commentary: This case represents another in the growing list of cases where police failure to respect the dignity of a detainee held in custody as a result of an arrest for impaired driving results in a stay of proceedings or the exclusion of evidence, albeit with courts coming to conflicting results as to the appropriate remedy. See also, R. v. Mok, 2015 ONCA 608; R. v. Griffin, 2015 ONSC 927; and R. v. Clucas, 2015 ONCJ 227. A central concern for the courts, as exhibited here, is whether the affront to human dignity is a result of arbitrary police policy.

R. v. Dunwell (2016), 2016 CarswellOnt 3807, 2016 ONCJ 133 (Ont. C.J.)

6. Awareness of Separate Investigation does Not Undermine Reliance on Implied Invitation to Knock

Facts: In the early morning hours of February 21, 2010, a constable working in the Bella Coola detachment of the RCMP received a call for assistance from a fellow officer of the RCMP stationed in Alexis Creek requesting assistance in notifying the next of kin of the appellant who the latter officer had arrested at the roadside under the provisions of the Mental Health Act, R.S.B.C. 1996, c. 288. The constable was advised that the appellant was speaking incoherently about his fiancée, was being transported to hospital for care and that the officer was in possession of the appellant’s dog.

The Bella Coola constable advised his Alexis Creek counterpart that the appellant was the subject of an on-going marihuana grow-op investigation and asked if anything of potential significance had been found when the appellant’s vehicle was searched. The Alexis Creek officer advised that the vehicle had not been searched (nor was it subsequently searched).

The Bella Coola constable drove to the appellant’s residence at 12:52 a.m. On arrival, the constable did not observe any vehicles on the property. However, lights were on in the main building, and in a secondary residence. The constable knocked on the door of residence. While waiting for an answer, the constable heard what he believed to be the sound of a radio, or television, inside. At the same time, the constable detected the odour of vegetative marihuana. There being no response to the knock, the constable attended at another door to the residence, where he again detected the odour of vegetative marihuana. He also observed a PVC pipe at the side of the house that appeared to be venting air from the basement. Again, there was no response to his knock. The constable then proceeded to the secondary residence on the property and knocked on the sliding door. He noted that plastic sheeting and blinds covered some of the windows, and that the building did not appear to be occupied. When no one responded, the constable returned to his vehicle and left the property. He did not conduct a perimeter search. He stopped on the highway to see if he could smell marihuana upwind of the property, as this might suggest the marihuana smell was coming from somewhere other than the appellant’s residence. He was unable to do so.

On his return to the detachment, the constable prepared notes summarizing the information he gathered that evening and left it for the lead investigator in the grow-op investigation in a form that could be appended to an ITO. He took no further steps that evening, or subsequently, to try to locate the appellant’s next of kin by telephone or by any other means. The officer’s olfactory observations were subsequently included in an ITO to search the appellant’s property the next day, which yielded evidence of marihuana production and resulted in the seizure of marihuana and firearms. The appellant was charged and eventually convicted of producing marihuana, and possession for the purpose of trafficking and appealed on the basis that the trial judge erred in failing to find that the warrantless entry onto the appellant’s property constituted an unreasonable search for the purposes of s. 8 of the Charter.









Held: Appeal dismissed.

The central issue on appeal concerned the application of the “implied invitation to knock” principle addressed in R. v. Evans, [1996] 1 S.C.R. 8. Where police approach and knock on the front door of a residence for the sole purpose of facilitating communication with an occupant, they act within the scope of the implied invitation. No constitutionally recognized search occurs because the entry does not intrude on the occupant’s reasonable expectation of privacy. Where the police attend at a residence in order to further a criminal investigative purpose, e.g., to look inside windows or doors or in order to detect smells or sounds emanating from within the residence, they are conducting a warrantless search in violation of the occupants’ s. 8 rights under the Charter. A critical component of the application of the implied invitation rule is ascertaining the true purpose of the police in entering onto a person’s property. If the approach is motivated by an investigative purpose designed to gather evidence, the conduct exceeds the implied invitation, and s. 8 of the Charter is engaged.

It is important to distinguish between the purpose for the entry and mere knowledge on the part of police of the potential that evidence of a criminal offence might be acquired in the course of approaching the house to speak to the occupants. Provided police act for a purpose falling within the scope of the implied invitation to knock and for no other purpose, the fact that they are aware that evidence might be acquired does not make them “intruders” for the purpose of s. 8. The existence of an on-going criminal investigation at the time of entry, and the advertence by the police to the prospect of gathering evidence in the course of that entry are relevant considerations to be taken into account when determining the purpose for which the entry and knock were undertaken.

Here, the trial judge made clear factual findings regarding the purpose of the constable’s attendance at the property. These findings were open to him on the evidence at trial. The appellant correctly submitted that the dual purpose authorities relied on by the Crown at trial were not relevant to the narrow issue in this case: the purpose of the entry onto the property, and a reading of the trial judge’s reasons, as a whole, did not reveal any reliance on this line of authority.

Commentary: Respectfully, the trial judge and the Court of Appeal took a very benign view of the officer’s stated purpose in approaching the residence. It strikes at credulity that the officer wasn’t really attending the premises to gather evidence for a search warrant (which is what he did) rather than take all reasonable steps to contact the occupants. If the officer really was attending to contact the occupant regarding the appellant’s apprehension in Alexis Creek, why did he not make any attempt to telephone the residence either before or after attending in person. If he really intended to contact the occupants of the residence, he could have phoned first, and attended after, if he was unable to make telephone contact. Rather, it appears that the officer chose not to call in advance because if the occupants did answer the phone the officer could no longer rely on the “implied invitation” rule to attend in person at the residence. The test advanced by the Court is too easily manipulated by officers wishing to avoid the warrant requirement by concocting a bogus collateral purpose for attending the residence to “speak to the occupants”.

R. v. Parr (2016), 2016 BCCA 99, 2016 CarswellBC 546 (B.C. C.A.)

7. Officer’s Belief that he “Knew” Drugs were in Vehicle does Not Amount to Objectively Reasonable and Probable Grounds to Arrest

Facts: At approximately 7:05 a.m., on July 31, 2013 a constable of the RCMP stopped an eastbound vehicle in Jasper National Park. The vehicle was travelling 99 km/hr in a posted 90 km/hr zone, and crossed the “white fog line” on the right side of the travelling land on several occasions. The constable suspected that the driver of the vehicle was using a cell phone and was distracted.

After the vehicle was stopped, the constable made a number of observations about the vehicle and its driver,




including: the vehicle was a rental car; the driver intently watched the officer approach the vehicle and appeared to be “very nervous” throughout the interaction; the driver provided an “Indian Status Card” and indicated he had forgotten his driver’s licence; there were two cans of Red Bull energy drink and a can of Mountain Dew in the vehicle; the vehicle itself was “a little bit messy” and there were two cell phones visible in the console area. In response to a question as to where he was travelling from, the driver advised that he had been in Langley, BC, visiting a girl, and that he had been there for three days.

The constable returned to his police car and conducted inquires on the police database. He discovered that the licence plate had been “queried” by members of the RCMP once on July 29 in Boyle, Alberta, and again on July 30 near Fort McMurray. On the basis of this information, the constable testified that he “concluded” that the driver lied about his three-day visit to BC. On the basis of this deception and the other observations, and drawing on his experience, including his attendance at the two-day Operation Pipeline/Convoy training course, the constable concluded that the driver was in possession of a controlled substance and placed him under arrest. After securing the driver in the squad car, the constable proceeded to search the vehicle pursuant to the arrest and discovered a quantity of cocaine. He later testified that, while a trained drug sniffer dog was available nearby to assist in a vehicle search, he did not call for the dog, because he believed he had reasonable and probable grounds to arrest.

At trial, the accused alleged that the officer did not have reasonable and probable grounds to effect an arrest and as such, the warrantless search of the vehicle violated his rights under s. 8 of the Charter, and sought the exclusion of the evidence under s. 24(2).

Held: Application allowed.

In R. v. Storrey, [1990] 1 S.C.R. 241 at para. 17, the Court held that, in order for an arrest under s. 495(1)(a) of the Criminal Code to be lawful, the arresting officer must have, subjectively and objectively, reasonable grounds to believe that the person has committed (or is committing or about to commit) an offence. See also, R. v. Harding, 2010 ABCA 180 at para. 16; R. v. Loewen, 2010 ABCA 255; R. v. Whyte, 2011 ONCA 24; and R. v. Wu, 2015 ONCA 667. If an arrest is in lawful compliance with the two-part test in Storrey, then the arresting police officer has authority to conduct searches of the arrestee incident to arrest: R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Phung, 2013 ABCA 63. Because the law is well-established that a warrantless search is prima facie unreasonable, the Crown bears the burden of proving that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 265 at p. 278.

While the Court on the facts of this case held there was no doubt that the constable subjectively believed that he had reasonable grounds to arrest the accused, on review, those grounds were not objectively reasonable. The rather “pat” nature of the officer’s testimony raised real concerns as to his account of his interaction with the driver. The trial judge held that the factors relied on by the officer amounted to little more than a “bunch of suspicion”. They did not even rise to the level of “reasonable suspicion”. Thus, the arrest of the driver was unlawful, and amounted to a breach of s. 9 of the Charter. Accordingly, the subsequent warrantless search of the driver and the vehicle was a violation of s. 8.

Turning to s. 24(2) of the Charter and the leading authorities of R. v. Grant, 2009 SCC 32 and R. v. Harrison, 2009 SCC 34, the Court held that the seriousness of the Charter-infringing conduct was at the more serious end of the spectrum and favoured exclusion. While the good faith of the officer was but one factor to take into account, the Court held that it was troubling that the constable testified he did not feel the need to apply for a telewarrant to search, or ask for the attendance of the sniffer dog, because he “knew” there were drugs in the vehicle. Also troubling was his testimony that on a prior occasion where he was “100 percent sure” that marihuana was present in a vehicle, a sniffer dog had failed to find any. While the impact on the Charter-protected interests of the accused was attenuated because the initial traffic stop was lawful, the invasion of privacy was still serious.















Balancing the public’s interest in a trial of the charges, the Court held that it was necessary, in all the circumstances, to exclude the evidence.

Commentary: Since the Supreme Court of Canada’s decision in R. v. Harrison, 2009 SCC 34, the law has been well-settled that reliance on an officer’s suspicions aroused as a result of Operation Pipeline/Convoy training, without more, will not amount to objectively reasonable grounds to arrest. The difficulty for the courts is in assessing how a collection of routine observations (”messy car”, “nervous”, “two phones”, etc.) which could apply equally to ordinary law-abiding travelers, can translate into grounds to arrest and/or search in the total absence of any indicia actually suggesting an offence is being committed.

R. v. MacDonald (2016), 2016 CarswellAlta 390, 2016 ABQB 98 (Alta. Q.B.)

8. Failure to Obtain Warrant to Search Blackberry does Not Amount to Reviewable Error where Warrant Authorizes Seizure of Communication Devices and Data “Stored in the Form of Magnetic or Electronic Coding”

Facts: In the spring of 2011, the Niagara Regional Police Service began an investigation into a suspected large-scale cocaine trafficking ring in the Niagara Region. Over the ensuing months the investigation would expand, eventually involving activities in the York Region, and the York Regional Police. Numerous production orders, search warrants, general warrants, number recorder warrants and authorizations to intercept private communications would be granted. The appellants would eventually concede that there was sufficient evidence to support findings of guilt for a variety of offences related to the trafficking of cocaine and plead guilty on an Agreed Statement of Facts. On appeal, the appellants challenged a number of pre-trial rulings relating to the issuance of various search warrants and production orders.

On April 29, 2011, a justice of the peace granted a production order requiring two service providers to furnish records for four cell phones allegedly used by one of the appellants, but registered to other subscribers. The ITO relied, in part, on information obtained from five confidential informants. The affiant had direct contact with only one of the five informants. Three of the informants reported information they had come to possess second-hand. A second production order granted on August 29, 2011, included a number recorder warrant under what was then s. 429.2(1) of the Criminal Code. The affiant of the second ITO referred to several aspects of the investigation including the results of surveillance and information obtained under the prior production order.

During the execution of a search warrant issued in May, 2012, police seized several cell phones, including a Blackberry. Over several weeks, each individual message on the Blackberry was photographed by police to preserve the message for further analysis. The police did not apply for a separate warrant for the search the Blackberry. The Crown argued that the search of the Blackberry was contemplated by a term of the warrant which authorized police to search mobile communication devices including “those known as a Blackberry, pager or text messaging device” for “any and all information and/or data, stored in the form of magnetic or electronic coding in computer media or media capable of being read by a computer or with the aid of computer-related equipment”. The warrant indicated that “media” included “floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes, CD-ROMS, laser disks and any other media which is capable of storing data”.

On appeal, the appellant alleged that the motion judge erred in upholding the issuance of the production orders, on the basis that some of the information provided by the confidential informants was obtained second-hand and that the affiant failed in his duty to make full, fair and frank disclosure. The appellant also argued that the search warrant did not authorize the search of the Blackberry.

Held: Appeal dismissed.




Production orders and number recorder warrants authorized by the Criminal Code authorize conduct that amounts to a search or seizure and are subject to the reasonableness requirement imposed by s. 8 of the Charter. Where the accused objects to the tendering of the evidence so obtained, the trial judge is required to decide whether the statutory preconditions have been met, in accordance with the general principles relating to the law of search and seizure. See R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 8; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280 at para. 84. Like any pre-authorized search, the trial judge begins their review from a rebuttable presumption of the validity of the enabling warrant or production order. The review requires a contextual analysis of the record, not a “piecemeal dissection” of individual items, shorn of their context in a vain search for alternative exculpatory inferences”. See Beauchamp, at para. 85 and R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421 at para. 87.

The Court of Appeal held that the motion judge took into account that the information obtained from three of the confidential informants was obtained second-hand, and noted that non-disclosure in the ITO. Non-disclosure, without more, is not fatal to the validity of the order. When viewed as a whole, the ITO contained an abundance of sufficiently reliable evidence that might reasonably be believed and on the basis of which the order could have issued. Absent an error of law, a misapprehension of relevant evidence or a misapplication of principle, an appellate court is not entitled to intervene with the decision of a reviewing justice. See R. v. Araujo, 2000 SCC 65; R. v. Morelli, 2010 SCC 8at para. 40; Sadikov, at para. 84; and Beauchamp, at para. 87.

In R. v. Vu, 2013 SCC 60, the Court held that a search warrant was required to permit a search of the contents of the Blackberry. In this case, the Court of Appeal held that the ITO contained sufficient information to establish a reasonably grounded belief that a search of any cell phone, Blackberry or similar device would contain evidence relevant to the commission of a listed offence. Second, the Court noted that the terms of the search warrant specifically authorized a search for mobile communication devices (including Blackberries) and information stored in the form of magnetic or electronic coding. Finally, the search conducted after the seizure did not exceed in nature or scope what was authorized under the warrant.

Commentary: This case provides an excellent summary of the legal principles for challenging search warrants, production orders, the search of electronic devices (including cell phones) and the interception of private communications under Part VI of the Criminal Code, and the standard of review.

R. v. Nero (2016), 2016 ONCA 160, 2016 CarswellOnt 2699 (Ont. C.A.)

9. Statements Obtained in Breach of Charter Admissible on s. 8 Voir Dire

Facts: Police went to an industrial unit one evening after a 911 caller reported that a loud bang had been heard by persons who were in the premises next door, and that they had found a “pellet hole” in the wall and blood outside the locked door of the unit.

The accused was the lessee of the unit. Police obtained the accused’s cell phone number and called him. He said that he was being treated at hospital for an accidental wound to his hand from a nail gun. He said that his girlfriend, who had been present when he was injured, had driven him to the hospital, and that she had the nail gun.

The police went to the hospital, where they found that the accused was being treated for a gunshot wound to the hand. They learned that the accused told hospital personnel that he was the victim of a robbery on a street corner and that he did not want the police involved. They contacted his girlfriend, who said that she was not present when the accused was injured and that she knew nothing about the incident.

The police began speaking to the accused. They told him that they did not believe him about the nail gun. After a










few minutes of questioning, at 10:20 p.m. one of the officers told the accused that he believed the injury was from a firearm, not a nail gun. The accused said that he had purchased two guns a couple of days earlier, and that he had accidentally shot himself in the hand. He made reference to another male being with him.

This information was passed on to an officer who was at the industrial unit. That officer became concerned about the possibility somebody inside the unit may have been injured from a gunshot wound and could be bleeding out. The officer shared his concern with his supervising officer, who agreed. The supervising officer authorized a warrantless entry of the unit.

Police officers went into the unit without a warrant. They made observations but did not seize anything. They did not find any injured person inside the unit. They left the unit and waited for a search warrant to be granted. Once a warrant was obtained, they re-entered the unit and seized two guns, two loaded magazines, cash, and a quantity of marihuana.

At his trial on drug and firearms charges, the accused sought the exclusion of his statements and the seized items, on the basis that the police breached ss. 10(b) and 8 of the Charter.

Held: Application granted in part.

The trial judge found that the accused was not detained when the officers first spoke to him, and so there was no s. 10(b) breach initially. At that stage, the officers were simply investigating. Although their questioning was confrontational, they did not initially consider the accused to be a suspect. The trial judge also found that the accused lied to the officers about the nail gun and his girlfriend’s presence, because he did not want the police to enter the industrial unit and find the contraband. The lies were voluntary statements.

However, the accused was under detention as of 10:20 p.m., when one of the officers told him that he believed the injury was from a firearm. The police were obliged to comply with s. 10(b) of the Charter at that point, and failed to do so. The statements from that time on were inadmissible. But, they could be considered on the s. 8 aspect of the voir dire, in assessing the state of mind of the officers who made the decision to enter the industrial unit without a warrant.

The trial judge accepted the officers’ testimony that they were concerned an injured person was in the unit. Given the information they had at the time, including the information from their colleagues at the hospital, their concern was reasonable. A reasonable belief that a person’s safety could be at risk meets the exigent circumstances test, and justified the warrantless search.

Commentary: This case is an interesting example of the use by the Crown of evidence that was otherwise inadmissible against the accused because of a Charter breach, on a voir dire to establish grounds for a warrantless search. The trial judge acknowledged that the statements were incriminatory in and of themselves, but ruled that they formed part of the context in which the reasonableness of the decision to conduct a warrantless search of the industrial unit had to be evaluated.

R. v. Shomonov (2016), 2016 CarswellOnt 4902, 2016 ONSC 1553 (Ont. S.C.J.)

10. Standing to Bring Charter Challenge Made Out Based on Evidence in ITO

Facts: The police intercepted a shipment of sandals en route to Canada from Tanzania. They found 1.9 kilograms of heroin concealed in the heels of the sandals. The shipment was consigned to W. A police officer posing as a courier company employee effected a controlled delivery to W’s home. The male accused answered the door, accepted the delivery on behalf of W, and signed for it.



When the accused and W left the home a short time later, they both were arrested. A cell phone was seized from W.

The accused gave the police a videotaped statement. W gave a KGB statement, in the course of which she disclosed to the interviewing officer two text messages from the cell phone. The messages were from the accused to a third party, and referred to “it” having just “come through”. Subsequently, another officer obtained the two messages.

Several months later, the police obtained a warrant to search the phone and executed it.

At his trial on charges including importing heroin, the accused argued that his s. 8 right had been breached by the execution on his phone of an invalid search warrant. He sought the exclusion of the material seized from the cell phone.

Held: Application dismissed.

The trial judge ruled that on the preliminary issue of whether the accused had standing to challenge the search of the cell phone, he could consider the evidence in the Information to Obtain the warrant. The ITO recited information from W’s KGB statement, that the cell phone belonged to the accused and was shared between them. The KGB statement and the accused’s statement taken together tended to show that the accused’s telephone number was that of the cell phone. On the issue of standing, the trial judge also considered text messages to and from the accused and a photograph of the accused, all of which were seized from the cell phone itself. He found that these items were circumstantially probative of the accused’s repeated use of the cell phone. He referenced R. v. Buhay, [2003] 1 S.C.R. 631as authority for the proposition that exclusive use of the cell phone was not required to establish a reasonable expectation of privacy in it. He found that there was strong evidence of historical use of the phone by the accused, and evidence that the accused owned it. He concluded that the accused had standing to bring the s. 8 challenge.

On the s. 8 application, the trial judge applied the principles set out in R. v. Fearon, [2014] 3 S.C.R. 621. He found that the interviewing officer’s review of the text messages was a search incident to arrest. There was a need to locate evidence before it could be destroyed on the phone, and the police understood the search had to be within the timeframe of the offence. However, the officer deviated from the requirements of Fearon in that she did not take detailed notes of her search, as required by Fearon.

The ITO did not indicate that the cell phone had been searched incident to arrest, nor did it mention that another officer subsequently acquired the two text messages. The trial judge found that these were minor errors by the police, and did not result in a material misleading of the justice who issued the search warrant for the phone. There was no s. 8 breach.

Commentary: This decision is of interest because the trial judge reasoned that the accused had standing to challenge the search based on evidence in the Information to Obtain. In other words, he based his decision on the same evidence on which the Crown relied to link the accused to the thing to be searched, without requiring the accused to admit or adduce evidence that he had an interest in that thing.

R. v. Artis (2016), 2016 ONSC 2050, 2016 CarswellOnt 4604 (Ont. S.C.J.)

11. Incomplete Recording of Accused’s Statements a Matter of Weight, Not Admissibility

Facts: The accused called 911. She reported that she was the victim of a home invasion, and that her daughter was not breathing. When emergency personnel and police officers arrived at the accused’s home, they found her daughter on a couch with a pillow over her forehead and vital signs absent. The accused was lying on the floor.





The accused made various utterances to the police at her home, en route to hospital, and at the hospital, in which she described a home invasion by unknown men. Subsequently, she gave the police a videotaped statement at a police station.

At her trial on a charge of first degree murder, the accused sought the exclusion of her statements made at her home, in the ambulance, and at the hospital. She argued that because they had not been recorded verbatim and had not been reviewed by the accused, they could not be proven voluntary beyond a reasonable doubt.


The trial judge noted that there is no absolute rule that statements made to a person in authority must be recorded, nor are all unrecorded statements inherently suspect. At the time these utterances were made, the police were trying to determine what had happened to the accused’s daughter. They did not consider the accused to be a suspect. The interviews were not conducted in a situation where recording facilities were readily available but the police chose not to use them. This was not a case where the meaning of the statements could not be determined due to incompleteness of the record. Further, the statements could be compared to the videotaped statement to be understood in a fuller context, and for corroboration in terms of their “threshold reliability.”

Commentary: The trial judge distinguished between admissibility of the statements and the weight to be attached to them, finding that the fact they were not completely recorded was a matter of weight. Query whether he would have reached the same conclusion had the statements been taken from the accused as a suspect rather than as a witness at the time.

R. v. Ali (2016), 2016 ONSC 2100, 2016 CarswellOnt 4923 (Ont. S.C.J.)

12. No Exclusionary Remedy where Lack of Nexus between Charter Breach and Obtaining of Evidence

Facts: The police had information that the accused was a supplier of drugs. They followed him as he was driven from his home to a parking lot, where he got into another vehicle briefly. He then returned to the one in which he had been a passenger. Both vehicles left the parking lot. The police intercepted the second vehicle and found a quantity of cocaine. Other officers stopped the vehicle in which the accused was a passenger, and arrested him for possession of drugs for the purpose of trafficking. He was given his Charter s. 10(b) rights. He said that he wanted to contact counsel.

The accused was taken to a police station and put in a holding room. A second officer took custody of him at 4:20 p.m. That officer again gave him his s. 10(b) rights, about ten minutes later. The accused again said that he wanted to contact counsel. The officer told him that he could contact counsel once the police entered his home pursuant to a search warrant they were seeking.

The accused was not permitted to contact counsel until 9:00 p.m. By that time, the police had sent their first telewarrant application but had not received a response, and the accused’s roommate had been arrested outside the house.

The first telewarrant application was rejected. A second application was made, and granted. The warrant was executed at the house shortly before midnight.

At trial, the accused sought to exclude the evidence seized during the search of his home, including drugs and drug paraphernalia.




The trial judge noted that suspension of the right to counsel may be justified in special circumstances, including if the security of the police or the public is threatened, if there is an imminent risk that evidence would be destroyed or lost, or if another ongoing police operation could be jeopardized. General concerns not based on specific evidence are not sufficient.

In this case, the officer who dealt with the accused at the station testified that she was concerned the accused could make a call to someone other than counsel and there would be a risk of destruction of evidence. In addition, she was concerned that if someone was in the residence, officer safety could be affected. Once a public arrest was made of a second person, she felt that the risk of the accused making a call to anybody to create a safety risk or destroy evidence was diminished, so she gave the accused the opportunity to contact counsel at that time.

The trial judge found that the officer’s explanation for delaying the exercise of the right to counsel did not constitute reasonable circumstances to justify the delay. The officer did not articulate specific concerns based on actual events surrounding the investigation. There was a breach of s. 10(b) that began when the accused went into the officer’s custody at the station.

On the application of s. 24(2), the trial judge concluded that the evidence the defence sought to exclude had not been “obtained in a manner” that infringed the accused’s Charter rights. She noted that the connection between a breach and the collection of evidence can be causal, temporal, contextual, or a combination of all three.

With respect to a causal connection, the accused was not questioned by the police before he was allowed to call counsel. There was no information elicited from him about the location of evidence, or any other aspect of the investigation. There was no direct causal link between the evidence found during the search of the residence and the s. 10(b) breach. There was insufficient temporal nexus between the breach and the discovery of the evidence. Although the search occurred after the Charter breach, the accused was able to call counsel around the time the second telewarrant application was being made, and some three hours before the warrant was executed. A contextual nexus requires that the breach and the evidence be part of the same chain of events. Here the officer made no inquiries about the status of the search warrant, and was not aware of details of the ongoing investigation. There was no contextual connection.

The trial judge concluded that taking all of this together, there was no way to connect the s. 10(b) breach to the evidence the police eventually seized from the accused’s home. The evidence was not “obtained in a manner” that infringed the Charter, and so was not eligible for exclusion under s. 24(2).

Commentary: This decision contains a useful review of the jurisprudence relevant to the question of whether evidence was “obtained in a manner” that infringed the Charter. The trial judge correctly pointed out that the s. 24(2) analysis requires consideration of this question, and its answer in the affirmative, before the court can move on to balance the Grant factors.

It will not always be the case that this first prong of the two prong analysis is truly an issue, but in this case it proved to be a hurdle that the defence was unable to clear.

R. v. Richards (2016), 2016 ABQB 176, 2016 CarswellAlta 538 (Alta. Q.B.)

End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.


Police Powers · he does this in all cases where vehicles are to be towed. ... Where the power to...

Documents

Transcript of Police Powers · he does this in all cases where vehicles are to be towed. ... Where the power to...