What's that bulge in your pocket?

Investigative detention is undoubtedly one of the most complex and troubling area of the law for police officers.  The ever changing face of the law in this area and the infinite number of scenarios that exist make it difficult for officer's to understand and properly apply the law.  Likely this is one of the reasons by these detentions are usually one of the top generators of complaints by the public.

Fortunately - or perhaps not - the Supreme Court is set to reconsider investigative detention in R v Aucoin, 2011 NSCA 64. 

Brendan Aucoin was stopped by the police because the plate on his car was registered to a different kind of car.  After speaking with Aucoin during the stop the officer noted an odour of alcohol.  As a result he made a roadside demand.  Aucoin sat in the backseat of the officer's cruiser with his feet outside the car to provide the demand.  He passed, but did have alcohol in his system.  Given he as a newly licenced driver he was in violation of the Motor Vehicle Act which required newly licenced drivers to have zero BAC.  As a result the officer decided to give him a ticket.  The officer decided it would be safest to put Aucoin in the backseat of the cruiser to issue the ticket as the vehicle was being towed and there was a lot of traffic. 

Before placing him in the cruiser the officer did a pat down for safety reasons.  During the pat down search the officer felt something in Aucoin's pocket.  Aucoin said it was Ecstasy.  He was arrested.  A subsequent search revealed cocaine.

At trial Aucoin sought to exclude that evidence arguing that the officer was not entitled to do the search.  The trial judge dismissed the motion citing the seminal decision of R v Mann, 2004 SCC 52.

Aucoin appealed.  The appeal was dismissed.  The Court of Appeal held:

The issuance of the motor vehicle ticket to Mr. Aucoin was the final step of Cst. Burke’s investigation into Mr. Aucoin’s breach of the MVA. He had a duty to complete this stage of the process. He had to do this in a situation where he had essentially no back-up, it was late at night, he needed the light in the front seat of the police car to write the ticket, he could not place the appellant in the car he had been driving because it was being removed, and because it may be a continuing offence given the alcohol in the appellant’s blood, and he was concerned the appellant may take off if left on his own outside the police car. In such circumstances, the brief detention of the appellant in the back seat of the police car is within the scope of the doctrine of investigative detention and is reasonable.

Having decided to place Mr. Aucoin in the back seat of the police car, it was also reasonable for the officer to do a pat-down search to ensure that the appellant had no weapons that he could use to harm the officer or himself [paras 26-27]; [emphasis added].

Importantly the court noted that this practice would not necessary be permitted in every circumstance.  But, in the present case, where the officer articulated the basis for the search - that he had safety concerns and was effectively on his own late at night, the search was justified.

This case seems to be largely a reply of Mann and if so, Aucoin's appeal should be dismissed. 

DGM

New & Notable: There's Nothing Comical about Officer Safety

On January 14, 2010 members of the Fredericton Police Force, with warrant in hand, used a battering to conduct a "hard entry" into an apartment where Kevin Sexton was located and arrested.  The evidence gathered by the police once inside that residence became the subject of a Charter motion brought by Sexton and ultimately granted by the trial judge.  The judge found that the execution of the warrant, including the hard entry, was unreasonable.  The Crown appealed: R v Sexton, 2011 NBCA 97

Kevin Sexton was apparently trafficking in cocaine.  In the month leading up to January 14, 2010 (following the police attendance at Sexton's apartment for a domestic involving Sexton's brother) the police obtained information about Sexton and his trafficking business.  This led to a plan to execute the warrant at Sexton's apartment without notice - a "hard entry".  The reason for this type of entry was noted as follows: (i) concerns about office safety; (ii) concerns about the safety of neighbours; (iii) and preservation of evidence [para 12]. 

During the Charter motion the Crown led evidence about Sexton's criminal record which included weapons offences, drug offences and an outstanding charge for assault police; the Crown also led information from CPIC that he was believed to be "armed and dangerous". 

In rejecting this as a basis for conducting the hard entry the trial judge held:

The police also state they were somewhat at risk. They rely on Exhibit P3 [the CPIC report containing the cautions for violence and armed and dangerous] to justify their basis for that risk. Quite frankly, and with all due respect to the police, that suggestion is absolutely comical when one reviews in detail Exhibit P3. It is ripe with numerous errors. And states “Caution – this is not a criminal record”.Furthermore, when you review the alleged crimes previously committed by Mr. Sexton, and in particular, the various sentences handed down for those crimes, it is obvious that Mr. Sexton could not be considered a risk of violence under Exhibit P3. [Underlining in Court of Appeal ruling]. 

In addition the trial judge objected to the use of balaclavas by the entry officers. 

On appeal Bell JA, for the court, considered the trial judge's finding that reliance on CPIC was "comical".  Bell JA offered the following in rejecting this finding:

In deconstructing the Provincial Court judge’s reasoning, I would first consider his observation that police reliance upon CPIC cautions that Mr. Sexton was violent and armed and dangerous was“absolutely comical”. In addition to judicial and legislative dictates, there are two very practical reasons why police must take very seriously the search of someone else’s residence. First, it is highly likely that suspects will know the layout of the place being searched much better than the authorities. They will know potential means of escape and potential sources of weapons. Second, the person whose residence is being searched will, in most cases, have a better knowledge of who is present in the premises. The two unknowns of layout and occupancy provide a practical advantage to the person whose residence is being searched in the event that person wishes to destroy evidence or obstruct, evade or cause injury to police.   Those two very practical observations were at play on the day Mr. Sexton’s residence was to be searched. In addition to those factors, police knew Mr. Sexton possessed a criminal record for weapons and drug offences and was awaiting trial on a charge of assaulting a peace officer. Information appearing in CPIC, a national database, maintained by the Royal Canadian Mounted Police, constitutes a source of information which is used by virtually every police officer in Canada and whose information is communicated to, and relied upon, by courts throughout the country on a daily basis. Not only should police rely upon CPIC, they would no doubt be negligent and subject to disciplinary action if they choose to disregard it. While the Provincial Court judge was correct to state that the CPIC report does not constitute a criminal record, that fact does not render the cautions contained therein unreliable. Furthermore, even if Mr. Sexton had established that the CPIC cautions were unreliable, that fact would have had no impact upon the right of police officers to use the information unless they had doubts about its reliability. There is no evidence of any such doubts.

...As noted by Justice Cromwell in Cornell, after the fact assessments are unfair and inappropriate when applied to situations like this where officers must exercise discretion and judgment in difficult and fluid situations [paras 26-27]; [emphasis added]. 

Turning to the trial judge's criticism of the police use of balaclavas, Bell JA again disagreed with the trial judge and concluded as follows:

 

In assessing the reasonableness of the search, the Provincial Court judge expresses particular disdain because the police officers were dressed in full emergency response gear, including tactical weapons, goggles, helmets and balaclavas. 

With respect to the use of masks, Constable Haines testified their purpose was to protect police officers "if there happens to be any glass, shattering of glass for whatever reason, or flame, it's flame retardant.  It's basically to protect, give our faces some protection if was happen to encounter anything".  As Justice Cromwell observed, courts should not be micro-managing the police force's choice of equipment.  To the extent the Provincial Court judge relied upon the presence of balaclavas to conclude the search was conducted in an unreasonable fashion, he erred [paras 29 and 30]; [emphasis added].

DG Mack

Quotable Quotes: Investigative Detention

Investigative detention seems to be one of the hottest topics of litigation lately.  In the recent case Ontario Court of Appeal decision, R v Amofa, 2011 ONCA 368, 2011 CarswellOnt 3037, [2011] OJ No 2095, the court offers some helpful insight into this policing power and in doing so provides a Quotable Quote.  

In Amofa the police were involved in an initiative called the "Robbery Reduction Program" which was aimed at providing police presence in high crime areas including subway stops in Scarborough.  While working in this capacity the police identified two individuals who were behaving suspiciously and who the police ultimately believed were about to become involved in a robbery or mugging.  After approaching one of the suspects the police advised him that there was going to be a search of his person during an investigative detention.  The suspect resisted this notion indicating that he would "search himself".  This notion did not go over well and a "violent struggle ensued".  Ultimately a firearm was located on the suspect.

In rejecting the ground of appeal relating to the failed section 8 motion, Blair JA notes that the consideration and analysis of section 8 issues is not a static point-in-time one and offers the following helpful comment:

The flow of the investigative detention, the arrest and the search was a dynamic process.  Section 8 analyses ought not be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture [para 19].

DG Mack

New & Notable: Investigative Detention; Search and Abandonment

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

New & Notable: RPG

R v Loewen, 2011 SCC 21, [2011] SCJ No 100

The recent decision by the Supreme Court is perhaps not the most ground breaking one of late, although it does offer insight into how relevant an odour of fresh burnt marijuana can be in formulating grounds, nonetheless, it does present an interesting fact scenario that is worth consideration.

The appellant was stopped for speeding.  When the officer approached the appellant he noted an odour that he believed to be "fresh burnt marijuana" that led him to believe that marijuana had been smoked in the car in the last couple of hours.  The appellant was unable to produce a driver's licence and the vehicle was not registered in his name.  The officer asked the appellant to step out of his vehicle and come to the cruiser so he could confirm the appellant's identity.  When the appellant stepped out of the vehicle the officer noted a bulge in his pants pocket.  The officer did a pat down search, for safety, and then asked the appellant to take out what was in his pocket - the appellant produced a large bundle of cash, mostly $20s. 

The appellant was then taken to the cruiser where the officer ultimately ticketed him for speeding.  Interestingly, it appears that the officer had, on the basis of the odour and bundle of cash, formulated grounds for an arrest for possession over 30 grams (relying on the powers of arrest in section 495(1)(a)).  After processing the appellant for the speeding ticket - and, as the officer later testified, refraining from asking the appellant questions about anything other than the traffic offence - the officer arrested the appellant for possession.  The officer then conducted a search of the appellant's car and located 100 grams of crack cocaine.

At trial the appellant sought the exclusion of the evidence based on an alleged violation of section 8 in the context of RPG for the arrest.  The trial judge found there were RPG - notably distinguishing R v Janvier, 2007 SKCA 147 [para 21] - and admitted the evidence: R v Loewen, 2008 ABQB 660, 2008 CarswellAlta 1637, [2008] AJ No 1187.  A majority of the Court of Appeal dismissed the appeal: R v Loewen, 2010 ABCA 255, 2010 CarswellAlta 1721, [2010] AJ No 980.

On appeal to the Supreme Court the Court unanimously dismissed the appeal: 2011 SCC 21, [2011] SCJ No 100.  The ruling on the central issue is quite succinct and simple: "We see no error in the conclusion of the trial judge...[t]he evidence was sufficient to support her inference that the necessary grounds for arrest existed" [para 7].  In so concluding, McLachlin CJ, on behalf of the Court, found that an odour of fresh burnt marijuana, together with the bundle of cash, provided objectively reasonable grounds for the arrest. 

The two issues that aren't discussed in any detail, interestingly, related to the issue of the "pat down" search and the investigative detention. 

 

 

First, on the issue of the pat down search, at trial the trial judge noted, in her reasons on the voir dire, that "[n]o issue was taken with the legitimacy of the search for officer safety of the large bulge in the accused's pants pocket..." [para 18].  Since no issue was taken, the court obviously would not have considered it and accordingly neither would either of the appellate courts, however, it is interesting to note that this very type of search - investigating a soft bulge - was disapproved of by the Supreme Court in Mann [2004 SCC 52, 2004 CarswellMan 303, [2004] SCJ No 49] as a legitimate investigative detention pat down search.  The following excerpt from Mann is illustrative: 

The officer's decision to go beyond this initial pat-down and reach into the appellant's pocket after feeling an admittedly soft object therein is problematic. The trial judge found that the officer had no reasonable basis for reaching into the pocket. This more intrusive part of the search was an unreasonable violation of the appellant's reasonable expectation of privacy in the contents of his pockets

On this basis, it seems that the defence may have had a good argument to exclude evidence which was an essential part of the officer's RPG.  Although, perhaps there is a distinction.  In Mann the officer reached in the pocket, whereas here the officer simply asked the appellant to remove that which was in his pocket.  Is it a violation of section 8 to reach in one's pocket, but not if one removes it, while being detained, at an officer's request?  There is no doubt that questions can amount to a search within the meaning of section 8, although it may have required the appellant to testify to establish that in this case.   

Yet, if this distinction is relied upon, it raises the second point noted above: investigative detention.  If the odour of burnt marijuana and the bundle of cash amounts to RPG for an arrest - as the Supreme Court has accepted - then surely the odour alone amounts to reasonable suspicion.  If so, then there is at least a good argument that the appellant was under investigative when asked to remove the items.  Indeed, there seems to be some appreciation of this fact in the trial decision where Ross J notes as follows:

The sergeant said he knew he could not and did not question the accused about drugs until after he had arrested him for possession of drugs, read the Charter rights and caution, and the accused had said he did not wish to contact a lawyer [para 10].

If the appellant was under investigative detention, was there a violation of section 10(b)?  This issue was not canvassed in the courts.  If it had been, perhaps the answer is that although there was a basis for an investigative detention - for the possession charge - the appellant was otherwise lawfully detained for the speeding offence and, so long as the officer held off obtaining evidence from the appellant on the possession charge, he could further that investigation and not provide the right to counsel.  While this situation will frequently arise in motor vehicle stop situations - and perhaps that is the reason why the issue of investigative detention did not arise - the question will undoubtedly arise in the future in the context of a non motor vehicle situation.  

DG Mack