Expecting Privacy?

Frederic Dwayne Wilson was convicted of five drug related offences. The offences arose out of police surveillance of a rented suite in Vancouver. The police believed it to be a stash house. The trial judge ultimately agreed. After five months of investigation the police arrested Nguyen, co-accused to Wilson, as he left the suite.

A search incident to arrest of Nguyen revealed four kilograms of cocaine and a loaded handgun. This information was used to obtain a warrant to search the suite and Wilson’s home in Surrey. The fruits of those searches provided the evidence that supported the conviction of Wilson. Wilson appealed. The British Columbia Court of Appeal dismissed the appeal: 2017 BCCA 327.

On appeal Wilson argued, inter alia, that:

…the trial judge erred in ruling that Mr. Wilson did not have a reasonable expectation of privacy in the common areas of the condominium complex in which the suite was located or in the video surveillance footage of those common areas. He submits the judge therefore erred in concluding the warrant and the seizure of the video surveillance footage by the police was not a search or seizure within the meaning of s. 8 of the Charter. [@3].

The trial judge dismissed this ground (and the other ones raised). The Court of Appeal agreed with the trial judge that Wilson did not have a reasonable expectation of privacy that was infringed by the police in the common areas. Further, access to the video surveillance footage of these areas did not infringe s8.

In coming to this conclusion the Court of Appeal noted that the trial judge permitted Wilson to argue, in another ground of appeal, that the arrest of Nguyen was unlawful. Citing conflicting authorities in BC on the issue of standing (R v Brown, 2014 BCSC 1872 and R v Todd, 2015 BCSC 680) the trial judge chose the path of “least mischief” and permitted the argument. The Court of Appeal chose not to resolve this issue.

Wilson has filed an application for leave to the Supreme Court: 2018 CanLII 30063. If granted, this case presents two important opportunities for the SCC. First, it presents the Court an opportunity to address the standing issue – an issue which, since R v Marakah, 2017 SCC 59 has left many uncertain about the issue and the scope of standing in Charter litigation.

Second, it presents the Court with an opportunity to add some clarity and certainty to the law in relation to reasonable expectation of privacy in common areas. Since the Ontario Court of Appeal in R v White, 2015 ONCA 508 this issue has been debated and dissected. The law in this area is somewhat fractured. There is undoubtedly well reasoned and principle rulings that support the conclusion that reasonable expectation in common areas is far from certain and in many situations, there is no such expectation – the route to this conclusion, however, remains fluid (see for example R v Wawrykiewicz, 2017 ONSC 569; R v Barton, 2016 ONSC 8003; and R v Douale, 2016 ONSC 3912; R v Dhaliwal, 2017 BCSC 2510 – see also Mack’s Criminal Law Bulletin, issue 2017.08) and the SCC will hopefully take the opportunity to add some concrete footings to the issue.

DM

Milling around in the World of Internet Privacy

Sean Mills was chatting online. He thought he was chatting to a young girl. He was, in fact, chatting with a police officer. The officer had created an online profile portraying himself as a 14 year old girl. Mills contacted him and then began to chat. Eventually a meeting was set up. Mills was arrested at the meeting. The police had captured the chats between Mills and the officer. The trial judge explained this process.

[6]        …  In order to ensure that he had captured all the information on the screen, Constable Hobbs employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen.  Snagit is a screen shot program that captures video display and audio output.  Constable Hobbs employed the Snagit program on each of his communications with Mr. Mills. 
[7]        The “Snagit” program is a program that is available to the public and commonly used.

Mills was convicted after trial and appealed: 2017 NLCA 12. On appeal to the Newfoundland Court of Appeal the court considered (i) whether Mills had a reasonable expectation of privacy [REP] and (ii) whether there was an "interception" within the meaning of Part VI of the Criminal Code.

With respect to the REP issue, the court rejected the notion that Mills had an objectively reasonable expectation of privacy:

In this case, the analysis focuses on the third and fourth headings identified in Spencer; that is, Mr. Mills’ subjective expectation of privacy in his communications with “Leann” and whether that subjective expectation was objectively reasonable in the circumstances.  Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm.  On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages.  He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust.  Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable.  In the absence of a reasonable expectation of privacy, section 8 of the Charter was not engaged. [@23].

With respect to whether there was an intercept, the court held that an "intercept" requires the participation of a third party - the after-the-fact capture of the communication between two parties did not amount to an "intercept".

That language does not alter the ordinary meaning of an interception which requires the involvement of a third party.  Where there is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” a communication meant for that person. 

Further, the fact, unknown to the sender, that the recipient is a police officer cannot change the nature of the communication or transform a receipt by the intended recipient into an interception.  Viewed from another perspective, if “Leann” had, in fact, been a fourteen year old girl, it could not be said that her receipt of the communications from Mr. Mills constituted an interception. [@13-14].

Mills is one in a series of recent decisions on these issues. The REP ruling is particularly helpful and an important one that helps the continuing body of law considering REP in an internet world post-Spencer. The "intercept" ruling is interesting. It is arguably a narrower interpretation of "intercept" than that advanced in Telus as it requires the direct involvement of a "third party" to constitute an intercept. 

DM

Common Privacy?

Matthew Wawrykiewicz was in a hotel room. There was a complaint. The police were called. They entered the hotel room. Found drugs. Wawrykiewicz was arrested. Later the police were able to identify another address connected to the accused – 105 The Queensway. The police began surveillance at that address. They later obtained and executed a warrant. They located more drugs.

At trial Wawrykiewicz sought to exclude the evidence found at 105 The Queensway – in part he argued that the initial entry into the hotel room was unlawful and thus the subsequent search at 105 was unlawful. The trial judge agreed, but admitted the evidence under s24(2): 2017 ONSC 569.

As part of the defence Charter motion, Wawrykiewicz argued that the police surveillance at 105 The Queensawy – which included surveilling him and Poulter (who was also found in the hotel) in common areas of that building – violated s8: see R v White, 2015 ONCA 508. The trial judge disagreed.    

Prior to White was authority for the proposition that there is little or no expectation of privacy in the common areas of an apartment building: R. v. Piasentini, [2000] O.J. No. 3319 (Sup.Ct.); R. v. Thomsen, [2005] O.J. No. 6303 (Sup.Ct.).  As Wein J. pointed out in Piasentini, a contextual analysis is required that requires applying the factors set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128.

The court then reviewed rulings in R v Barton, 2016 ONSC 8003 and R v Brewster, 2016 ONSC 4133 noting and adopting, inter alia, the following factors set out in that latter ruling:

  • The police must be engaged in activity that constitutes a search: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145;
  • There must be a reasonable expectation of privacy in the place to be searched, which is determined from a contextual analysis: R. v. Edwards, supra; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. d281;
  • There is no reasonable expectation of privacy in observations of a underground parking garages in order to determine an association between an accused person and a building: R. v. Drakes and Brewster, 2009 ONCA 560 (CanLII);
  • There is no reasonable expectation of privacy from non-obtrusive observations made in the elevators and hallways of multi-unit buildings.  That includes observations of odours emanating into the common areas or the number of a unit where the suspect enters and exits: R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.C.A.); R. v. Thomsen, supra;
  • Section 8 of the Charter is only engaged where the police “go beyond making observations that are externally visible or externally emanating into the common areas”: R. v. Laurin, supra; R. v. White, supra.

Turning to the facts the court noted:

  1. The police conducted surveillance in the elevator, the lobby and on one of the floors
  2. Wawrykiewicz was observed exiting 1905 and using a key to lock the door
  3. Wawrykiewicz was observed using a key fob to gain entry into the building
  4. There was no evidence regarding the actual connection he had to this residence
  5. Wawrykiewicz had bail conditions that required him to reside at a different address

Based on these facts the judge concluded:

I accept that a person may have more than one residence, but in the absence of any further evidence I cannot conclude that Mr. Wawrykiewicz’s expectation of privacy at 105 The Queensway was high.  I therefore find that he had even less of an expectation of privacy in the common areas.
I also cannot conclude that the police engaged in the type of intrusive behaviour that they did White.  They did not cock an ear to a door in order to eavesdrop on a private conversation.  They did not try to determine what Mr. Wawrykiewicz and Ms. Poulter were up to in Unit 1905.  Their sole purpose was to determine whether there was a connection between Mr. Wawrykiewicz and that unit.  As noted by Code J., there is no expectation of privacy in the unit number in a multi-unit building.  I therefore find that there was no stand-alone violation of s. 8 of the Charter in respect of Unit 1905 of The Queensway. @55-56

The Ontario Court of Appeal’s ruling in White has been the subject of much discussion since its release. Putting aside the conduct of the police in that case, the concept of creating an expectation of privacy in common areas is somewhat controversial, or at least subject to much discussion regarding its scope. Wawrykiewicz is a helpful ruling clarify this issue.

DM

Privacy limitations defined

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Nour Marakah sent some text messages to Andrew Winchester. They were discussing the purchase and sale of illegal firearms. The police had begun an investigation into several persons who had legally purchased 45 firearms over a six month period. Ultimately that investigation led to Winchester. Eventually grounds were formed, Winchester was arrested and two phones were seized from him. Both were later searched. Text messages from Marakah were found on Winchester’s phone which demonstrated that he was involved in firearm trafficking.

At trial Marakah sought to challenge the search of Winchester’s phone. The trial judge found that Marakah had no standing:

[102] … Once the message reaches its intended recipient … it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

Marakah was convicted. He appealed: 2016 ONCA 542. The appeal was heard together with R v Jones, 2016 ONCA 543 and R v Smith, 2016 ONCA 544. 

In addressing the appeal, the court began with basic principles. First, s8 protects people, not places. Second, the right to challenge a search depends upon the accused “establishing that his personal privacy interests are engaged” – standing @27; R v Edwards, [1996] 1 SCR 128 @34-35. Third, not all privacy interests are protected, only a reasonable expectation of privacy is @28.

With respect to standing, the court considered the impact of R v Telus Communication Co, 2013 SCC 16. The court rejected Marakah’s position that Telus supported was determinative of the standing issue. First, in Telus the Abella J (for the majority) expressly declined to decide whether seizure of historical text messages could be done by way of warrant. Second, Telus did not address standing. In short, the assessment of standing must be determined by the “totality of the circumstances” test, Telus is not determinative @39-43.

Next the court rejected the notion that the Edwards framework was insufficient in the circumstances.

In my view, the appellant’s submission that utilizing the Edwards framework does not adequately engage normative considerations relevant to informational privacy claims is not borne out in the jurisprudence. In particular, the submission misses a fundamental point articulated in virtually all of the cases. The particular facts of each case, and not necessarily the category of privacy right claimed (as they can often overlap), will dictate which contextual factors are most and least relevant to the “totality of the circumstances” analysis. @55

Finally, the court considered whether the trial judge erred in finding that the lack of control and access were significant factors weighing against a finding of a reasonable expectation of privacy. The majority of the Court of Appeal agreed with the trial judge:

The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.
This is far from being a question of whether the appellant had “exclusive control” over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.
It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. In my view, the manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.
In this case, the application judge properly focused on the factors of control, access and lack of confidentiality. @63-66.

In the end the majority agreed with the trial judge, Marakah had no standing to raise any constitutional complaint about the search of Winchester’s cellphone. Once sent, there was no objectively reasonable expectation of privacy in text messages received by Winchester.

Marakah, along with Jones, has been appealed to the Supreme Court and is on reserve. Soon we will learn if the Supreme Court has a different view of what is objectively reasonable!

DM

ASAP: Constitutional or Evidentiary Requirement, it depends

Shady Mawad was convicted of over 80. Mawad had argued that the police, in making a demand for his breath and taking the samples violated section 8. The trial judge found that there was a section 8 violation in relation to the making of the demand but admitted the evidence under section 24(2) and convicted Mawad who appealed. That appeal was dismissed: R v Mawad, 2016 ONSC 7589.

Shady Mawad was driving his car. Someone thought he was impaired. They called the police. Officer Guthrie received a radio call at 4:34 am. Guthrie located Mawad at 4:41. After speaking with Mawad and forming a reasonable suspicion, Guthrie made a ASD demand at 4:47 am Mawad produced a fail at 4:53 am. At 4:57 Guthrie arrested Mawad and read his rights to counsel (a minute later) – leaving the scene at 5:29. The arresting officer failed to make a breath demand. At 6:20 the breath technician took custody of Mawad and made the breath demand at 6:26.

Given that the first sample was obtained beyond two hours of the time of driving, at trial the Crown called a forensic toxicologist to “read back” the samples and provide direct evidence regarding Mawad’s BAC at the time of the offence.

Mawad argued that his s8 rights were violated – by the failure to make the demand as soon as practicable and by the failure to take the samples as soon as practicable. The trial judge concluded that the breath demand was not made by the officer as soon as practicable but admitted the evidence under s24(2). The trial judge did not find that the failure to obtain the samples as soon as practicable violated s8. Mawad was convicted. He appealed.

On appeal Mawad argued, inter alia, that the trial judge erred in not finding that the delay in taking the samples violated s8.

With respect to the taking of the samples, Mawad asserted that the failure to take the samples as soon as practicable amounted to a violation of s8. The summary conviction appeal court rejected that notion. The requirement that samples be taken as soon as practicable in section 258(1)(c) is an evidentiary requirement that permits the Crown to take advantage of the presumption of identity. Where the samples are not taken as soon as practicable the Crown loses that presumption. The results are still admissible however. The summary conviction appeal court, citing R v Deruelle, [1992] 2 SCR 663 and R v Newton, 2013 ONSC 644 in support, held:

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights. [@26]

Mawad is a helpful decision that clarifies the impact and scope of provisions that are sometimes misconstrued. In short, three points summarize the principles elucidated by this decision. First, s254(3) requires that an officer makes a breath demand as soon as practicable upon forming grounds. This provision is the statutory authority that permits the obtainment of breath samples. Failure to comply with that requirement undermines that authority and thus has constitutional implications – a section 8 violation.

Second, s258(1)(c) requires that samples be taken as soon as practicable. This provision is merely an evidentiary assist, however. Failure to comply with this requirement has no constitutional implications – merely evidentiary ones (the loss of the presumption of identity).

Third, the requirement that samples be “provide[d]” as soon as practicable in s254(3) is not one that is imposed on the state. It follows that the failure to obtain samples as soon as practicable has no constitutional implications.

DM

Cataloging the basis for an Inventory Search

Winston Ellis was driving an Acura. He fled from it. The police searched it - they searched him too. They found a firearm in the car - the keys were in his possession. He sought to exclude the firearm. The trial judge admitted it - having found no violation of s8 but a violation of s10. Ellis appealed. His appeal was dismissed: 2016 ONCA 598.

Ellis was seen street racing in an Acura. The officer who spotted him followed the Acura into a neighbourhood where he briefly lost sight of it. He then spotted the vehicle parked in a shared driveway between two residences – neither of which matched the address for the registered owner of the Acura (who was not Ellis). The officer then noticed Ellis walking away from the Acura. He radioed for back-up. Ellis was stopped by responding officers who placed him under “investigative detention” and advised him of such – they did not however advise him of his right to counsel. During the detention Ellis advised the officers that there was an outstanding warrant for his arrest. The officers also learned that (i) his address matched that of the registered owner of the Acura; (ii) that he was a gang member; and (iii) that he was potentially armed and dangerous and had a previous firearms conviction.

The officers conducted a pat down search for safety during which he asked Ellis to empty his pockets. Keys, two cell phones and cash were discovered. The items were immediately returned to Ellis. With respect to the vehicle Ellis denied driving it, but said his girlfriend had earlier in the night (although he later admitted he had left it in the driveway where police had recovered it).

Ellis was eventually arrested for careless driving. The police decided to impound the vehicle, pursuant to section 221 of the Highway Traffic Act, as it was apparently abandoned. Following from that decision, the police chose to do an inventory search. Sgt Martin also testified that the search was incident to the arrest in order to find proof of ownership and to see if the ignition had been damaged. During the search the police discovered a handgun hidden behind a console panel.

At trial Ellis sought to exclude the handgun arguing, inter alia, that the pat down search and the search of his car violated section 8. The trial judge dismissed both arguments (although the trial judge did find a breach of section 10(b) but admitted the evidence under 24(2)). Ellis was convicted. He appealed.

With respect to the pat down search, contrary to Ellis’ submission, R v Mann, 2004 SCC 52 did not pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets” @28. Where the initial pat down search supports an initial belief that the detainee may be armed a further search is warranted. The further search is logical and constitutionally valid in such situations: R v Plummer, 2011 ONCA 350.

Here the initial pat down revealed objects that could have been weapons, the Court or Appeal concluded:

The officer had a reasonable belief that the appellant might be armed. In these circumstances, it is not the function of this court, many years after the incident and with knowledge of what was actually in the pockets, to criticize the officer for searching the pockets to ensure that the hard objects were not weapons. A police officer in such circumstances is in a dynamic and potentially life-threatening situation and he or she must be able to undertake a protective search in a reasonable manner to preserve his or her safety. [@30]

With respect to the vehicle search, the Court of Appeal agreed with the trial judge and rejected that a search incident to arrest could justify the search.

The police knew that the appellant and the owner of the Acura lived at the same address so it was unlikely to be stolen, and it was not otherwise necessary to seize any ownership or registration documents.  It is also not clear to me what documentation relevant to the outstanding warrants could be discovered in the vehicle. [@42]

However, the police were entitled to rely upon the statutory authority provided in section 221 HTA to conduct an inventory search. In so concluding the court noted the following principles related to “inventory searches”:

  1. Impounding vehicles under section 221(1) imposes on the police the responsibility to keep property safe. In order to fulfil that responsibility the police must have the corresponding authority to search and inventory the vehicle: R v Nicolosi, 1998 CarswellOnt 2476 (CA) @29-30
  2. The fact the police may have ulterior interests, such as their belief a firearm may be discovered, does not render the search unlawful: R v Wint, 2009 ONCA 52 @11; leave ref’d 2009 CarswellOnt 3494 (SCC)
  3. Inventory searches are not limited to itemizing visible property – the police are entitled to open bags and other containers: R v Wint, 2009 ONCA 52 @14-15; leave ref’d 2009 CarswellOnt 3494 (SCC)
  4. Such inventory searches, however, rely on statutory authority, in the absence of such authority, where searches are conducted for policy reasons they will be unconstitutional: R v Nolet, 2010 SCC 24 @53; R v Nicolosi, 1998 CarswellOnt 2476 (CA) @34; R v Caslake, 1998 CarswellMan 1 (SCC) @30

In the present case the car was apparently abandoned – unlike R v Dunkley, 2016 ONCA 597 – the vehicle was left by the accused at a location and in a manner that supported the conclusion it was “abandoned”.

The appellant fled from the police and admitted to trying to avoid arrest on his outstanding warrants. He then parked and locked the car in a mutual driveway to which he had no right or association, and then walked away. His actions up to that point were consistent with those of someone who wished to dissociate himself from the vehicle. [@61]

In the circumstances, the vehicle was properly subject to impound and thus inventory search.

DM

Objective validity: is that sufficient?

Jerzy Czerniawski was pulled over by the police. The stop was lawfully made to check on the sobriety of Czerniawski. The officer asked if he had any alcoholic beverages. Czerniawski said he had drunk four hours ago. The officer noted glossy and watery eyes, Czerniawski’s face was flush and there was a strong odour of an alcoholic beverage on his breath. The officer then said to Czerniawski that “he would be doing a roadside breath test”. The officer then read his demand from his notebook. Czerniawski was then escorted to the officer’s cruiser. The officer demonstrated the functioning of the approved screening device [ASD] and explained that Czerniawski had to provide a suitable sample of his breath. Czerniawski did so. He failed. He was arrested. It was later determined that his blood alcohol content was over the legal limit. He was charged.

At trial Czerniawski sought to exclude those results arguing that the officer violated his rights under section 8: 2016 ONCJ 505. The trial judge set out the officer’s evidence on this point as follows:

I approached him and asked if he had consumed any alcoholic beverages and at that point he admitted to me he was drinking four hours ago. I observed his eyes to be glossy and watery and his face to be flushed…I detected a strong odour of an alcoholic beverage on his breath. At that point I advised him he would be doing a roadside breath test. I subsequently read him and showed him the approved screening device demand from the front page of my notebook. [para 106]

The trial judge found that there was a breach of section 8. He did so on the basis that there was no evidence that the officer formed a “reasonable suspicion” to make the ASD demand as required by section 254(2).

In the case at bar, there is no evidence that Officer Bell formed a reasonable suspicion that Mr. Czerniawski had alcohol in his body while driving a motor vehicle. Therefore, based on the wording of s. 254 (2) of the Criminal Code and on the jurisprudence cited above, I find that Officer Bell failed to follow the required “statutory pathway” in order to make a legal demand to Mr. Czerniawski that he provide a sample of his breath into the approved screening device. Consequently, the obtaining of Mr. Czerniawski’s breath sample into the ASD was illegal. [Para 119].

The trial judge went on to exclude the results under section 24(2) finding there was a serious breach as the accused was “forced” to provide the roadside sample without the proper legal foundation for doing so.

With respect, this ruling is difficult to accept. First, while the officer did not say the “magic words” – that he formed a reasonable suspicion, it seems apparent that not only did he do so, but that he had more than adequate grounds to do so. Indeed, even if he had not subjectively formed the suspicion that the accused had alcohol in his body, objectively the grounds were more than sufficient. In other words, there was a legal basis upon which to make the demand.

Second, there is no need to say the “magic words”: Deitz, 1993 ABCA 24; Nesbeth, 2008 ONCA 579 @19-20; Harrison, 2012 BCCA 339 @13-14.

Third, even if there was a breach the evidence should not have been excluded. The indicia noted were undoubtedly sufficient to support a suspicion. Therefore, even if the officer did not subjectively understand he had the basis to make the ASD demand, objectively he did. In other words, the demand was objectively lawful. The samples could have been lawfully obtained. In this way the breach is a mere technical failure of the officer to properly articulate (or understand) that he had the legal basis to do what he did – something he was lawfully entitled to do.

DM

Invitation to knock? Depends if you are investigating or searching...

John Rogers backed into another vehicle. He was intoxicated when he did so. Someone noticed. Rogers left the scene but the police were called. The police obtained the licence plate of the vehicle Rogers was driving and went to the address of the registered owner. The officer entered the apartment complex at that address and knocked on the door. Rogers answered. As the officer spoke to Rogers standing at the door he formed grounds to arrest Rogers for impaired driving.

At trial Rogers argued that the officer violated his section 8 rights by approaching his door. The trial judge agreed and excluded the evidence obtained therefrom. The Crown successfully appealed to the summary conviction appeal court; a new trial was ordered. Rogers appealed from that ruling: 2016 SKCA 105.

The Saskatchewan Court of Appeal allowed the appeal and restored the trial judge's conclusion. The court accepted the Crown’s position on the law as follows:

Crown counsel on appeal submits that it is settled law that the police do not exceed the implied licence to knock simply because they are intent on investigating a potential criminal offence. He submits further that a police officer who is looking for information or evidence about a suspected offence, or even about an actual offence, which the police officer has reasonable grounds to believe has been committed, is not conducting a “search” for s. 8 purposes for that reason alone. In support of this proposition, he relies upon Laurin; R v Vu, 1999 BCCA 182 (CanLII), 133 CCC (3d) 481, leave to appeal to SCC refused [1999] SCCA No 330 (QL) [Vu]; R v Grotheim, 2001 SKCA 116 (CanLII), 161 CCC (3d) 49 [Grotheim]; R v Petri, 2003 MBCA 1 (CanLII), 171 CCC (3d) 553 [Petri]; and Van Wyk. He states that all of the officers in these cases were looking for information and evidence about possible or actual crimes but none of them violated s. 8 simply because they approached a residence and knocked on the door in an effort to further their investigation. [Para 27].

The court rejected the notion, however, that the implied invitation to knock included situations where the police approach “with the intention of gathering evidence about the state of an occupant’s sobriety” [para 28]. The court acknowledged that the line between “investigation” and “searching” is a difficult one to draw but insisted it must be drawn:

There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive; but, in my view, none of the appellate authorities stand for the proposition urged upon us by the Crown in this appeal that the Court can ignore the express purpose of the police in approaching a dwelling house.  [Para 46].

In the end the court noted that the trial judge made the “critical finding” that the officer attended the Rogers’ residence “for the purpose of…obtaining evidence against” him. In such a case the officers exceeded the implied invitation to knock: see Evans, 1996 CanLII 248 (SCC).

This is indeed the critical finding. In Fowler, 2006 NBCA 90 the Court of Appeal noted that the trial judge, in that case, made the critical finding that the officers attended Fowler’s residence for the purpose of communicating with him. That finding resulted in no breach.

Notably, the Ontario Court of Appeal in Lotozky, 2006 CanLII 21041 (ONCA) recognized that the “fact that the police officer intends to pursue an investigation” of impaired driving “does not in my view exceed the bounds of the implied invitation” [Lotozky at para 35]. While the “entry” in that case was onto the driveway, the principles surrounding the implied invitation to knock remain the same. Where the officer had “a legitimate basis” for the entry – the investigation of a criminal offence – the entry was permissible.

The law surrounding this issue is nuanced. The distinctions are fine.  Attending one’s dwelling for the purpose of “investigating” an impaired driving offence is permissible conduct under the implied invitation. Attending for the purpose of “searching” is not.

DM

Don't take your guns to town son, leave them at home

Darteh was hanging out in front of his residence. Police had received a complaint from the property manager that there had been a lot of trespassers especially after 8pm. Police spotted Darteh; it was after 8pm. Darteh spotted the police and quickly walked away; he stopped at the first apartment, knocked on the door and tried the handle to get in.

Police found this all to be quite suspicious and approached Darteh.  Darteh was carrying a partially consumed bottle of liquor and he reeked of booze. He had blood shot eyes- the officers felt this was a strong indication that Darteh had been drinking in the courtyard where they had first spotted him.

The officers asked Darteh for ID and he handed it over with a trembling hand; this officers found his level of nervousness suspicious. As Darteh was speaking with the officer he stood with his knapsack, which he wore on his back, pressed firmly against the wall; the officers suspected there was something in the bag that Darteh didn’t want them to see.

When the officers inquired about the backpack, Darteh shoved and kicked one of the officers and ducked into his apartment. The officers entered the apartment the scuffle continued as they tried to arrest Darteh. Police then searched the backpack and discovered a handgun. Darteh was charged with numerous firearms related offences and assaulting a police officer.

At his trial Darteh argued that his section 8 and 9 Charter rights had been violated and as such the firearm should be excluded and that the assault against the police officer was lawful. Justice Code dismissed the Charter motion and convicted Darteh of the offences: 2014 ONSC 895.

Darteh appealed. He argued that the police arbitrarily detained him and that the trial judge erred in finding otherwise.

The Ontario Court of Appeal dismissed the appeal: 2016 ONCA 141. The Court held that when considered cumulatively the following set of factors provided the officers with the requisite subjective suspicion grounded in objectively discernible facts:

  • The manner in which the appellant had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.
  • The appellant did not have a key to the unit that he was trying to enter.
  • The appellant was carrying a partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in the courtyard.
  • The appellant’s very nervous demeanour, including a trembling hand when he produced his health card and his manner of standing with his backpack up against the wall.
  • The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8:00 p.m., and that someone appeared to be letting them in. [para 6]

Of note is that the constellation of factors related to a lawful detention under the Trespass to Property Act and the Liquor License Act, and not in relation to the officers believing that Darteh was committing any Criminal Code offence. This is so notwithstanding the fact that the officers were suspicious of how Darteh was angling his backpack away from the officers.  In contrast in R v Grant, 2009 SCC 32 and R v Le, 2014 ONSC 4288 the accused’s body language (fidgeting and blading) led the officers to believe that they might be concealing a weapon.

The distinction about the basis for the detention, that is the Criminal Code or a provincial act, matters little. What does matter however is how the officers articulate the basis for the detention and the “constellation of discernible facts” that lead them to detaining someone.

Although Darteh was not licensed to possess that firearm under any circumstances, he should have heeded Johnny Cash and left his gun at home, where the test for a lawful search requires far more than what the officers had in this case. 

LT