R v Plummer, 2011 ONCA 350, [2011] OJ No 2034 - In the recent decision of Plummer the Court of Appeal offers helpful guidance on the ever challenging issue of investigative detention and search; of particular note, in my opinion, is the court's consideration of abandonment.
The appellant was seated in his girlfriend’s car in a lane way – which prohibited parking – outside her residence. As he waited there officers drove past the lane way and as they looked at the appellant they noted he appeared shocked or surprised. The officers testified that they were familiar with the door way near where the car was parked as being one where drug transactions would occur. As they passed by the officers also noted the appellant appear to bend forward in his seat in a motion the officers believed was consistent with concealing drugs.
The officers made a u-turn and returned to the vehicle. After approaching and obtaining the appellant’s name one of the officer’s recognized the appellant’s name as being associated to an internal bulletin indicating that he may be armed and in possession of a bullet proof vest [paras 6-8].
The officer then returned to the vehicle, believing he had grounds to do a pat-down search for safety, and asked the appellant to exit the vehicle for that purpose [paras 9-10]. As the officer conducted the pat-down search he noted a bullet proof vest and thereafter decided to search the car to look for a gun [paras 10-11]. Once inside the car the officer located a gun in a bag; the appellant fled while the officer was searching the car [para 12].
At trial the appellant sought to exclude the incriminating evidence based on alleged violations of sections 8 and 9. With respect to the detention, Durno J held that the “constellation” of factors justified an investigative detention [para 14]. With respect to the search, Durno J further held that the initial pat-down search was justified based on officer safety concerns and that the further search of the motor vehicle was a logical and permissible extension of the initial pat-down search and discovery of the vest [paras 15-17].
On appeal the court first considered the issue of investigative detention in the context of section 9. In doing so, the court rejected the argument that the trial judge improperly relied upon the “suspicious” conduct of the accused, as noted by the officers, citing in support R v Clayton, 2007 SCC 32, 2007 CarswellOnt 4268, [2007] SCJ No 32; R v Nesbeth, 2008 ONCA 579, 2008 CarswellOnt 4697, [2008] OJ No 3086; and R v Dene, 2010 ONCA 796, 2010 CarswellOnt 8800, [2010] OJ No 5012 at para 4. The court further rejected the argument that the reliance upon the officer alert by the trial judge was misplaced. In the circumstances, considered in context, the court held there was a basis for investigative detention.
Turning to the search conducted incident thereto, the court first considered the issue of standing. The Court of Appeal agreed with the Crown that the accused did not have standing as there had been abandonment. Citing the very informative decisions of R v LB, 2007 ONCA 596, 2007 CarswellOnt 5472, [2007] OJ No 3290 and R v Nesbeth, 2008 ONCA 579, 2008 CarswellOnt 4697, [2008] OJ No 3086 the court found there had been a “double abandonment”. First the appellant removed the firearm from his pants and placed it in his girlfriend’s bag; second, he fled the scene leaving the firearm behind. Despite the appellant’s testimony that had the police left he would have taken the firearm with him, the court held that his actions in fact constituted abandonment [paras 30-42].
Despite finding there had been abandonment the court went on to consider the search. In doing so, the court rejected the argument that R v Mann, 2004 SCC 52, 2004 CarswellMan 303, [2004] SCJ No 49 was limited to a pat down search of the person:
However, there is nothing in Mann confining a search incidental to an investigative detention to only the person detained [para 53].
The court ultimately concluded that the search was a logical extension justified on the basis of the information the police had at the time, citing, in conclusion, the following finding by the trial judge:
[W]here the police see conduct consistent with concealing something in the area of the front passenger seat, have information the person may be carrying a gun and wearing a bullet proof vest, and confirm he is wearing a bullet proof vest, to find that the police had to stop their search once they found he was not carrying a gun on him, flies in the face of concerns for officer safety [para 66].
DG Mack