Her Majesty the Queen - v. -, 2014 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 039 Date: February 13, 2014 Information: 24021057 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Adrian Charles Appearing: Bryce Pashovitz For the Crown Brad Mitchell For the Accused DECISION ON VOIR DIRE M.L. GRAY , J BACKGROUND [ 1 ] The accused was charged with three Criminal Code offences: (

i) being an occupant of a motor vehicle in which he knew there was a firearm contrary to s. 94; (ii) possessing a prohibited firearm contrary to s. 95; and

(iii) possessing a firearm knowing that the serial number had been removed contrary to s. 108(1). The accused asserted a violation of his rights pursuant to s. 8 of the Canadian Charter of Rights and Freedoms and by way of remedy, made an application for the exclusion of the evidence seized. As a result of this application, the Crown evidence was called on a voir dire except for that of one witness, Duane Henwood. No defence evidence was called on the voir dire .

EVIDENCE ON THE VOIR DIRE Corporal Kelly West [ 2 ] In October 2008, Corporal Kelly West was a peace officer with the Major Crime Unit of the Royal Canadian Mounted Police in Saskatoon. This unit was asked to provide assistance to police officers from Durham, Ontario by arresting the accused on an outstanding warrant. There was no request to assist with the recovery of evidence.

He and five other Saskatoon officers met with the Ontario police for a one hour briefing. [ 3 ] At this meeting, they were advised that the accused was involved in an incident on May 24, 2008 at a car dealership event in Pickering, Ontario. Allegedly, the accused led two men out the back door of the venue; individuals waiting outside shot at the two repeatedly. Thirteen shots were fired but the two potential victims were unscathed. Further, the Ontario police officers advised that the accused had been found in a vehicle, on at least one occasion, where a firearm was found.

In the briefing, Saskatoon police were not asked to recover any evidence. Corporal West was shown a warrant of arrest for the accused on two counts of attempted murder and one count of conspiracy to commit murder. [ 4 ] On October 9, 2008, at approximately 4:00 p.m., Corporal West and Corporal Nordick arrived at a location where the accused had parked his vehicle on 1 st Avenue in Saskatoon. The officers were in full uniform; Corporal West was operating the police vehicle. As they pulled up behind the accused, the emergency lights on the police car were activated.

Both officers approached the vehicle; the accused was in the driver’s seat. Corporal Nordick placed the accused under arrest and escorted him to the patrol car. The accused asked that his passenger be given an opportunity to take the car so officers were sent to search for him. When he could not be found, it was decided to impound the vehicle. [ 5 ] Given the information that they had from the Durham police, and the fact that other officers had seen a passenger leaving the accused’s vehicle prior to the arrival of Corporals West and Nordick, Corporal West commenced a search of the motor vehicle.

From the driver’s side, he could see that the floor mat on the front passenger side was raised. He started a cursory search at the front driver’s side, moved to the back seat, and ultimately came to the front passenger side where he lifted the floor mat. Beneath the mat was a semi- automatic handgun. He rendered the gun safe, and in the course of doing so found the magazine was in place and loaded but there was no bullet in the chamber. He also noted that the serial number had been ground down. The handgun was seized at 4:22 p.m. and the officer then began a more thorough search of the vehicle.

Finding the firearm elevated the degree of concern because firearms, magazines and bullets are small and can be concealed in many places in a vehicle. He continued to search for other bullets by unlocking the glove box and the trunk. The search did not extend to the removal of any door panels. [ 6 ] Corporal West conducted a search of the vehicle in relation to the arrest, and as a decision had been made to seize the vehicle, Corporal Bennett conducted a simultaneous vehicle inventory search.

The contents and any existing damage to the vehicle was documented; this was for civil liability purposes, not for evidence gathering. [ 7 ] At 4:30 p.m. Corporal Bennett pointed to a cup holder that was not sitting properly in its receptacle and when Corporal West lifted it at 4:35 p.m., he discovered a film cannister beneath. In the film cannister were eight packages of what appeared to be cocaine; tests later verified this suspicion. [ 8 ] Corporal West confirmed that when he looked over to the passenger side from the driver’s side, he could immediately see that the mat was raised.

His concern was for officer safety because of the information that he had received about the charges pending against the accused and because of the allegations that the accused previously had been in a vehicle where a firearm was located. He also

had concerns about the other individual who had been in the car. [ 9 ] The handgun seized was found to be an operational firearm and on June 26, 2009, it was sent to a laboratory to attempt to raise the serial number. On March 5, 2010, the officer was advised that only the first number could be lifted. As a weapon had not been recovered from the incident in Pickering, the firearm was sent to the Durham police in December, 2008. A report indicated that it did not match the shooting at the dealership.

All the items seized, being the gun, the magazine, the bullets, the cocaine packets and vial were tested for fingerprints but none were found. Swabs of the gun did not produce any DNA samples. [ 10 ] There was no search warrant obtained for the vehicle as the Durham police did not want it seized.

Corporal West believed that the vehicle was not lawfully parked and may have been in a bus lane. [ 11 ] In cross-examination, Corporal West acknowledged that he received no information that the accused was in possession of a firearm in the Pickering incident, nor did he have any information that the accused was a member of a gang. Corporal West agreed that a gun had previously been found in a vehicle in which the accused was located after a passenger left; no charges were laid against the accused in that instance.

Corporal West also agreed that he had no information that the accused was involved in any gun or drug related activity and that such details would be very relevant to officer safety. [ 12 ] Corporal West agreed that his instructions were to arrest the accused on warrants outstanding from Ontario and that he had no reason to believe that there was any Traffic Safety Act or Criminal Code offence upon which the accused could be arrested in Saskatoon.

He agreed that the accused was polite and cooperative and that his concerns were based on information that he received from the Durham police that the accused was alleged to have been involved in a violent offence and had previously been involved with firearms. [ 13 ] On arrest, the accused was patted down either by Corporal West or Corporal Nordick and was found to have some money and three cell phones.

The Corporal confirmed that the accused was placed in a standard police vehicle with a silent patrolman and once in the back of the car, he could exit only if someone opened the door or if the windows were kicked out. [ 14 ] He confirmed that the accused’s vehicle was searched for officer safety and said that any time he is aware that an individual has had dealings with a firearm, the risk assessment is elevated. Since he had that kind of information in this case, he felt it appropriate to conduct the search. [ 15 ] He agreed that the gun was not in plain view and that the raised mat aroused suspicion.

The car could have been turned over to the passenger, Mr. Henwood, if he had been located, but the search still would have been conducted. He did not take a warned statement from Mr. Henwood when he was found on October 24, 2008, nor did he do a background check on him. He agreed that he did not press Mr. Henwood with respect to the ownership of the gun and the cocaine when that statement was taken. [ 16 ] Corporal West also confirmed that no check was done as to the ownership of the three cell phones found on the accused. [ 17 ] The Ontario charges on which the accused was arrested were ultimately stayed.

Corporal Douglas Nordick [ 18 ] Corporal Nordick has been a member of the Royal Canadian Mounted Police since December 2001. On October 8, 2008, he attended a meeting with Durham police officers who wanted assistance with the arrest of the accused and his return to their jurisdiction. Corporal Nordick confirmed the evidence of Corporal West regarding the information received at that briefing. As well, he learned that the accused owned a black 2003 BMW with Ontario plates.

He learned that the Durham police had not found the firearm involved in the Pickering shooting, and Saskatoon officers were asked to find any evidence related to that incident. On October 9, 2008, he read the warrant for the arrest of the accused.

[ 19 ] Surveillance on the accused was conducted on October 9, 2008 and information was received that the accused was in his vehicle, with another person, in the downtown area. At 4:00 p.m., he and Corporal West approached the accused’s vehicle and the emergency lights on the police vehicle were activated. They were told that the passenger left the vehicle about five minutes earlier. [ 20 ] It had earlier been decided that Corporal Nordick would be the arresting officer and that Corporal West would provide cover and search the motor vehicle. Corporal Nordick proceeded to the driver’s side of the BMW.

When he was at the back of the accused’s car, he could see the driver, and only occupant, reach toward the passenger side and turn his head to look back. The windows of the subject vehicle were tinted. [ 21 ] Corporal Nordick identified himself to the accused; the accused verbally identified himself and provided a Saskatchewan driver’s licence. His identity thus confirmed, the accused was asked to step out of the vehicle and he complied. At that point, he was arrested and searched. In his possession were three cell phones; he explained that one was his and the other two belonged to his friend, Duane Henwood.

The accused was handcuffed and placed in the back of the police vehicle; Corporal West then commenced a search of the BMW which was parked in front of the windows of the SaskTel business premises on 1 st Avenue. The accused was read his rights to counsel at 4:03. [ 22 ] At 4:16 p.m., Corporal West advised that he had found a loaded handgun, showed the gun to Corporal Nordick, then secured it. The accused then was arrested for the offence of possession of a prohibited weapon and again read his rights to counsel.

Corporal West continued the search and found and seized a film cannister. [ 23 ] In cross-examination, Corporal Nordick could not recall whether the briefing included information as to whether the accused was the driver or the passenger in past events when he was present in a vehicle where a gun was found, nor did he have any information as to the number of times this may have occurred.

This information was presented simply as an officer safety issue. [ 24 ] He agreed that he made no note of the accused twice leaning to the right and looking back at the officers, nor did he tell Corporal West about these movements until after the gun had been found. He agreed that on occasion a driver will lean to the right to obtain their identification but opined that it also could indicate that a driver was hiding something. [ 25 ] He agreed that the accused did not appear nervous and was polite and cooperative.

Further, there were no weapons found on the accused, only the cell phones and cash; there was no reason to conduct a closer search of the accused. POSITIONS OF THE PARTIES [ 26 ] Counsel for the accused argues that the items seized were discovered by virtue of an unlawful search and should be excluded after an analysis in accordance with R. v. Grant . [1] The Crown contends that the evidence was obtained as a result of a lawful search incidental to arrest and is therefore admissible. THE LAW [ 27 ] It is recognized that a warrantless search is prima facie unreasonable.

In order to overcome this presumption, the Crown must demonstrate, on a balance of probabilities, that the search was reasonable by showing that it was authorized by law, that the law itself is reasonable and that the search was conducted in a reasonable manner. [2] [ 28 ] The Supreme Court of Canada in R. v. Caslake [3] enunciated three ways in which a search may fail to meet this standard: First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search.

If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordance with the procedural and substantive requirements that the law provides...Third, in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is not authorized by law. [ 29 ] In the case at hand, the issue is whether the search was authorized by the common law power to search incidental to an arrest.

No challenge was taken with respect to the reasonableness of the law that permits such searches, nor was any issue taken with the manner in which the search was conducted. The appropriateness of the scope of the search will be considered when determining whether the search was authorized by law. [ 30 ] A search is authorized in law if it falls within an exception to the search warrant requirement.

A search incidental to an arrest is one such exception that does not require reasonable and probable grounds but rather, devolves from a lawful arrest. [4] Such a search is justified if the arrest is lawful and the scope of the search is not excessive. As these searches are based on common law, it falls to the courts to set acceptable parameters. [5] [ 31 ] In Cloutier and Langlois [6] , the Supreme Court of Canada imposed three limits that must be met for a search incidental to arrest to be lawful: 1. This power does not impose a duty.

The police have some discretion in conducting the search...They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.

The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. 3.

The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. [ 32 ] As there is no issue with respect to the lawfulness of the arrest or the manner in which the search was conducted, the focus falls on the exercise of police discretion and the objective of the impugned search. [ 33 ] The non-exhaustive list of valid objectives for a search incidental to arrest include: to ensure safety, to recover evidence, or to prevent escape.

However, in Caslake [7] , the Supreme Court ruled that the search objective must bear some relation to the arrest itself and said: ...the restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted.

Further, the officer’s belief that this purpose will be served by the search must be a reasonable one. [ 34 ] Whether a nexus exists between the arrest and search has been the subject of some litigation and in R. v. Belnavis [8] the Ontario Court of Appeal ruled that any search beyond a safety search was excessive where the accused had been arrested for a traffic violation: Belnavis’ arrest on a warrant for the outstanding traffic fines justified her continued detention and may also have justified the towing of the vehicle back to the police station. It could not, however, justify a search of the vehicle.

A search can only be said to be incidental to an arrest if it serves some purpose referable to the arrest...the authority to search as an incident of the arrest does not extend to searches

undertaken for purposes which have no connection to the reason for the arrest: Jeffrey v. Black [1978] 1 Q.B. 490 (Div. Ct.) at p. 496- 497 . [ 35 ] In R.v. Lim (No. 2) [9] , the Ontario Court of Justice considered whether a search was truly incidental to an arrest and said: ...one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search. In this case, the arrest was in no way contrived in time or place to justify the search of the vehicle. The search of the car was clearly incidental, i.e., subordinate to the arrest of Mr.

Lim. It was an accessory event following the arrest. There was no plan to search the vehicle prior to or apart from the arrest of Mr. Lim at his vehicle. The officers arrived at the scene with reasonable and probable grounds to believe Mr. Lim had been involved in a plot to murder and the manufacturing of two homemade bombs...the search was closely connected in time and place to the arrest. [ 36 ] Although reasonable and probable grounds are not necessary to justify a search incidental to arrest, there must be a reasonable basis for the search.

Further, there must exist a relationship between the search and the arrest which is subjectively articulated and objectively verifiable.

As stated by the British Columbia Court of Appeal, “...the law is very clear that the police cannot simply rummage through the personal effects of the arrested persons in the absence of a proper criminal justice purpose”. [10] [ 37 ] The Supreme Court in Caslake [11] , rejected the argument that the power to search incidental to arrest did not extend to vehicles and held that “automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemption”. [12] [ 38 ] In Caslake , [13] para. 23 the Court went on to say: The right to search a car incident to arrest and the scope of the search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.

However, the vehicle search in Caslake was found not to be valid as the only evidence before the court was that the search was conducted for inventory purposes and no other reason. ANALYSIS [ 39 ] In this case, there is no argument, and I find as a fact that the accused was lawfully arrested. [14] Further, the uncontradicted evidence is that Corporal West searched the vehicle as the result of officer safety concerns which arose from the information that had been provided by the Durham police.

In particular, Corporal West received information that the accused was involved in an offence involving firearms, and further, that he had been in a vehicle on at least one prior occasion when a firearm had been located in the vehicle. The question is whether the stated officer safety concern was legitimate and objectively verifiable. [ 40 ] It is well established that the police have the power to search a lawfully arrested person for the purpose of seizing weapons or evidence that might be on his person: see R. v. Golden [15] .

Courts have also dealt with the ability to search vehicles for weapons on arrest, and have supported searches where an accused was found wearing a bullet proof vest [16] ; where a machete was seen in a vehicle [17] and where the officer provided a very generalized concern for her safety. [18] In Majedi , [19] the Court recognized that the vehicle was going to be seized, and found that the officer was entitled to look inside it, incidental to the arrest, to determine if weapons were present. The Court said:

There was no apparent need for an officer safety search as Majedi was handcuffed and placed in the police vehicle. Constable Chan said that her concern was for the safety of the jail staff. However, Constable Chan also said under cross examination that “it’s a practice that we do, again, to ensure everybody’s safety. We don’t know what’s in the vehicle. There could be a gun under the seat. I don’t know, right?

So I’m going to search that vehicle for everybody’s safety, and if something is located-- then again, my investigation’s going to change.” [ 41 ] In the case at hand, this Court finds that two legitimate grounds for the search were articulated in the evidence: officer safety and evidence recovery. After carefully reviewing all of the evidence and the relevant case law, the Court is of the opinion that the search of the car for officer safety was objectively reasonable.

The officers exercised their discretion to search a vehicle that the accused owned, over which he had control and in which he was found at the time of his arrest. As in Lim (No. 2) [20] , there was no plan to search this vehicle apart from the arrest of the accused and the search was conducted at the time and place of the arrest. The officers indicated that the history of the accused vis-a-vis firearms created heightened security concerns around his arrest. The following concerns were articulated and are accepted by this Court: (

i) the accused was being arrested on a warrant related to an attempt to commit murder in which it was alleged that firearms were used; (ii) the officers had information that the accused, on at least one occasion, had been in a vehicle in which a firearm had been located and; (iii) an unusual lump was readily apparent under the floor mat on the passenger side. Given all of these factors, the Court finds that the search of the vehicle was a valid exercise of police discretion to search for officer safety. [ 42 ] The second ground for the search referred to in the evidence was the recovery of evidence.

Although there was some contradiction on whether the officers were requested to search for evidence in relation to the Ontario charges, I accept the evidence of Corporal Nordick that such a request had been made. Since the firearm used in the Pickering incident had not been recovered, it is only logical that the Ontario authorities would want to obtain any possible evidence relating to those charges. [ 43 ] In

summary, the arrest of the accused was a lawful arrest. The officers exercised their discretion appropriately and determined that a search was necessary to ensure officer and public safety and to locate potential evidence relating to the serious charges enunciated in the arrest warrant. That belief needed only to be reasonable under all of the circumstances, a standard lower than reasonable and probable grounds. Their grounds were subjectively articulated in the voir dire and found to be objectively valid by this Court. The search was not conducted in a fashion which could in any way be characterized as abusive.

There is nothing in the evidence to suggest that the officers did not act in good faith; their actions were not capricious or without foundation. [ 44 ] Accordingly, all of the requirements for a search incidental to arrest have been established and consequently, there is no violation of s. 8 of the Canadian Charter of Rights and Freedoms . Therefore, the exhibits seized as a result of the search of Mr. Charles and of his vehicle are admissible. [ 45 ] However, in the event that I am in error in finding that the search of Mr.

Charles and his car were lawful, I will consider s. 24(2) of the Charter in the context of R. v. Grant . [21] Any determination as to whether exclusion is the appropriate remedy in the event of a Charter violation requires an inquiry along three lines: (

i) the seriousness of the state conduct which infringed the Charter ; (ii) the impact on the Charter -protected interests of the accused; and (iii) the interests of society in having the matter adjudicated on its merits. [ 46 ] Clearly, there exists a spectrum of possible Charter violations which range from the minor and inadvertent to the flagrant or reckless. Consequently, the more serious the breach, the greater the negative impact on public confidence in the rule of law and the more inclined the courts should be to disassociate from that conduct by weighing in favour of exclusion.

In this instance, the police were properly executing a warrant for the arrest of the accused and made a relatively cursory search of the vehicle in which he was found. A lower expectation of privacy attaches to a motor vehicle in a public place and it is my view that any violation that may have resulted was minimal; thus the seriousness of the state conduct would fall at the lower end of the spectrum and would weigh in favour of admission of the evidence. [ 47 ] The second line of inquiry concerns the impact on the accused of any breach of a Charter - protected interest.

Here again, courts have recognized that the impact of any breach may have a broad range of effect upon an accused. These may range from fleeting and technical, to profoundly intrusive. Here, the impugned search did not intrude upon an area where the accused would have a high expectation of privacy, nor was it an affront to his personal dignity or integrity. The effect on the accused of any breach would similarly fall at the lower end of the scale.

[48] With respect to the third line of inquiry, the Supreme Court of Canada, in Grant, pointed out that society generally expects thatmatters will be adjudicated on their merits. The question to be answered in the consideration of this aspect of the analysis is whether thetruth seeking function of the criminal process would be better served by the admission of the evidence, or its exclusion.

In this regard, the court should consider not only the negative impact of the admission of the evidence but also the impact of failing to admit it.[22] [49] In this case, the evidence is real, non-conscripted evidence which is highly reliable, and its exclusion would end any ability toadjudicate the matter on the merits. Admission of such evidence would serve to enhance the administration of justice by having theallegations before the Court adjudicated on all of the available evidence.

Accordingly, an assessment on this branch would militate infavour of inclusion. [50] Overall, the nature of any violation would fall at the lower end of the scale and exclusion of the real, non-conscriptedevidence would end the possibility of the Court adjudicating the allegations on all of the evidence. Admission of the evidence underthese circumstances would not bring the administration of justice into disrepute. In conclusion, a Grant analysis favours the admissionof the evidence in these particular circumstances. ___________________________ M. L. Gray, J [1] 2009 SCC 32 , 2009 S.C.J. No. 32 [2] See: R. v.

Golden, 2001 SCC 83 , [2001] 3 S.C.R. 679 at p. 704-705 citing R. v. Collins, (SCC), [1987] 1S.C.R. 265 and R. v. Debot, (SCC), [1989] 2 S.C.R. 1140. [3] [1998] 1. S.C.R. 51 at para. 12. [4] See Caslake (supra) at para. 20. [5] See Caslake (supra) at para. 15. [6] (SCC), [1990] 1 S.C.R. 158 at para. 60-63. [7] (supra) at para. 19. [8] (ON CA), [1996] 107 C.C.C. (3d) 195 at para. 49. [9] [1990] O.J. No. 3261 at para. 50. [10] See R. v. Majedi, 2009 BCCA 276 at para. 45. [11] (supra) at para 15. [12] See also R. v. Stillman, (SCC), [1997] 1 S.C.R. 607 at para. 39. [13] (supra) at para. 23. [14] See R. v.

Charles, 2012 SKCA 34 at para. 25. [15] 2001 SCC 83 , [2001] 3 S.C.R. 679 at para. 49.

[16] See R. v. Shankar , 2007 ONCA 280 paras. 4 and 23 . [17] See R. v. Sing , 2011 ONSC 3124 at para. 62-66 . [18] See Majedi , supra . [19] (supra) at para. 24. [20] (supra) [21] (supra) [22] See Grant , (supra) at para. 79.