2015 QCCQ 9113, 2015 QCCQ 9113

Unofficial English Translation R. c. Lafortune JB 0733 Allegation by the defense of an unreasonable search

section 282.0.6 Courts of Justice Act (security checkpoint at Montreal courthouse) 2015 QCCQ 9113 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Criminal and Penal Division” N° : 500-01-089112-137 DATE: September 25, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE DOMINIQUE B. JOLY ______________________________________________________________________ The Queen Respondent-Prosecutrix v.

Louis-Pierre LAFORTUNE Petitioner-defendant ______________________________________________________________________ JUDGMENT ON A MOTION TO EXCLUDE EVIDENCE ______________________________________________________________________ INFORMATION [ 1 ] Lafortune is charged with possession of a methamphetamine pill.

CONTEXT [ 2 ] The pill in question was found in a pocket of Lafortune’s briefcase when he was going through the security checkpoint at the Montreal Courthouse. [ 3 ] He seeks to have this evidence excluded. [ 4 ] He admits that the search is authorized under the Courts of Justice Act (chapter T-16) and that the statute itself is reasonable. He alleges, however, that the search was carried out in an unreasonable manner. [1] SUBMISSIONS OF THE PARTIES [ 5 ] Lafortune argues that the drafting of

section 282.0.6 of the Courts of Justice Act allows only a visual inspection of the briefcase, which implies that the effects therein cannot be moved about. [ 6 ] He likens the expression “visual inspection” to the plain view doctrine and submits case law concerning

section 636 H.S.C. to convince the Court to see things as he does.

[ 7 ] He adds that in the Ontario statute, the legislator specifically allows the right to search, whereas the Quebec statute circumscribes the powers of peace officers at security checkpoints. It shows a greater respect for the right to privacy. [ 8 ] The Tribunal de la jeunesse in Montreal uses a fluoroscopic machine to examine the personal effects of individuals. At the Montreal courthouse, persons are instead asked to empty their effects into a bin and open their briefcases. Accordingly, the only way to verify the contents of the bins or briefcases in question is to perform a visual inspection.

The “or” found in 282.0.6 explains this limitation. [ 9 ] The prosecution responds that the parallel drawn between the plain view doctrine and the visual inspection cannot be accepted. The purpose of

section 636 H.S.C. is very different from that of

section 282.0.6 of the Courts of Justice Act . [ 10 ] Where police officers have the power to stop a vehicle (s. 636 H.S.C .) but not to search that vehicle, case law has recognized that they may nevertheless perform a visual inspection by using their flashlight to see what is in plain sight in the vehicle. [ 11 ] The Courts of Justice Act has a completely different purpose – the protection of the public moving about the courthouse.

To accomplish this aim, it is necessary to prevent any weapons from being brought in. [ 12 ] If we accept the defence’s argument, as soon as individuals place an object such as a newspaper on top of their briefcases or on top of the bins containing their effects, the peace officers would be prevented from checking what was beneath, and the purpose of the statute would be defeated. In fact, the statute would have no effect. Obviously, the legislator did not intend the result of Lafortune’s

interpretation. ISSUES IN DISPUTE [ 13 ] Was the search performed by the peace officer so that Lafortune could access a

section of the Montreal Courthouse unreasonable and therefore contrary to

section 8 of the Canadian Charter of Rights and Freedoms ? [ 14 ] If so, must the evidence obtained be excluded under subsection 24(2) of the Charter ? THE FACTS [ 15 ] From Lafortune’s testimony, I accept the following. [ 16 ] By February 6, 2013, he had gone through the Montreal courthouse security checkpoint at least 300 to 400 times. [ 17 ] Each time he went through, he removed his watch and emptied his pockets of any change, pens, cigarette packs, and packs of gum, and placed them in a separate bin. He uses the word [ translation ] “we”.

From this, the Court understands that the process is the same for all those who wish to go through the checkpoint. [ 18 ] Lafortune would also hand over his coat and scarf. Finally, he would place the briefcase he often had with him in a bin. On February 6, it contained a computer and charger. [ 19 ] It is noteworthy that his briefcase is always [ translation ] “overflowing”. There are often one or two newspapers and all kinds of notes and files.

The various documents, when stacked, are eight to ten inches high. [ 20 ] As described by Lafortune, the usual way in which effects are inspected is as follows: the peace officers always move the content of the briefcase around but do not check all the pockets. They lift sections of files, newspapers, books, but no more. It is a

summary search. In any event, the bin then goes through the metal detector. [ 21 ] By force of habit, Lafortune knows what is metallic or electronic and always takes them out. The computer is always removed from his briefcase. [ 22 ] As for belts, if they have a metal buckle, they are placed in the bin. There is always some change at the bottom of his briefcase, and the peace officers have never asked him to fish it out. He is always asked to place his coat in a bin. [ 23 ] On February 6, 2013, the peace officer took all the files out of the briefcase. She looked for the change at the bottom of the briefcase.

Every nook and cranny was searched. She patted down the seams and handle of the briefcase. Although he cannot recall all of the steps, Lafortune states that the peace office took out the effects (such as the change) and placed them in the bin. She also checked the coat seams. [ 24 ] The peace office found the methamphetamine pill in a small pocket inside the briefcase. The drug was found before he went through the checkpoint. [ 25 ] Ms.

Cécilia Moréno, a peace officer on duty on February 6, 2013, testified that she was on search duty while her colleague asked persons to go through the checkpoint. [ 26 ] Usually, Moréno explains to persons arriving at the checkpoint that the search is free and voluntary. Persons place their effects before Moréno, who searches through the effects for weapons. [ 27 ] Persons then go through security and their personal effects are returned to them.

The procedure is more or less the same as that in airports. [ 28 ] Those who refuse to hand over their effects are told by the peace officer that they cannot access the other side and must leave the premises. It does in fact happen that individuals prefer to leave.

[ 29 ] The officers search for the following objects: firearms, pepper spray, forks, fire extinguisher pins, metal nail files, small nail clippers, rings with spikes, small blades hidden in credit cards. Credit cards open on the diagonal and a very thin blade, like a utility blade, slips out. In short, Moréno looks for anything that might be used as a weapon. Depending on the effect found, she simply seizes it or arrests the person in whose possession it was. [ 30 ] Normally, if there is an attaché case, she always feels the contours.

There have been instances where weapons such as razor blades were hidden inside the lining. She does the same with coat seams. She moves around the effects inside the attaché case, including the pockets, always for the same purpose. [ 31 ] In Montreal, unlike the Tribunal de la jeunesse or the airport, there is no equipment to detect metal inside briefcases with a fluoroscopic image of the inside of the briefcase. Only individuals go through the metal detector. [ 32 ] On February 6, 2013, Lafortune was one of the first to approach the security desk in the afternoon. He joked around with her a bit.

She told him that the search was free and voluntary. [ 33 ] The briefcase was in front of her. She opened it away from her. There was a large pocket with several smaller pockets inside. This pocket was visible from the beginning of the search, as soon as documents were moved aside. [ 34 ] She acknowledges that she moved documents and that she felt them. There were, in fact, several documents in the main pocket. She cannot remember, however, whether she actually took those documents out of the briefcase, [ translation ] “but it’s possible.

I can’t remember that far back.” [ 35 ] The pocket in which she found the pill was between ten and fifteen centimeters long and between five and ten centimeters deep. [ 36 ] THE LAW AND ANALYSIS [ 37 ] Lafortune has committed an error of fact that is all the more perplexing as he was frequently at the courthouse at the time and often went through the security checkpoint. [ 38 ] Among other things, it is odd that he asserts twice that the effects go through the metal detector after the peace officers have performed their search, when there is no such detector at the Montreal courthouse.

The peace officer testified to this, and her duties include working at the security checkpoint. There can be no ambiguity on this point. [ 39 ] I accept that the briefcase was searched. The effects were moved aside, the seams patted down, and the pockets searched. Indeed, the pill was found in one of these pockets. [ 40 ]

Section 282.0.6 of the Courts of Justice Act states: As appropriate in the circumstances, security screening may include one or more of the following measures: (1) requiring passage through an upright metal detector; (2) submitting briefcases, handbags and personal effects to fluoroscopic or visual inspection; (3) conducting a pat-down frisk search or a search with a hand-held metal detector; (4) any other screening measure prescribed by joint ministerial regulation.

Once inside the building or part of the building, persons may be re-screened if a peace officer has reasonable grounds to suspect that the safety of users or the public is at risk or that a person is in possession of an object prohibited under

section 282.0.2. A pat-down frisk search may be conducted only if there are reasonable grounds to suspect that the person concerned is in possession of an object prohibited under

section 282.0.2. A pat-down frisk search must be conducted by a person of the same sex as the person being searched, except in cases of necessity. [ 41 ]

Section 286.0.6 came into effect on November 19, 2009, when the Act to Amend the Courts of Justice Act and the Act respecting Municipal Courts was assented to (Bill 15; S.Q., c. 44, s. 1) [ 42 ] Upon the adoption in principle, the Journal des débats states, among other things: [2] [ translation ] - These threats against the justice system are clearly very serious and cannot be underestimated; - To maintain the public trust and better ensure the safety of those who frequent courthouses, security measures in addition to those currently in place should be established; - In 1999, in R. v.

Lindsay , the Manitoba Court of Appeal ruled in favour of the validity of security measures similar to those that, for example, airport travellers must go through. Recently, in 2005, the Court of Appeal for Ontario reasserted these principles in Campanella by upholding that province’s statute allowing for such controls in courthouses; - Like other provinces, caution would suggest that Quebec also adopt a legislative framework to set up security measures required for the proper functioning of the courts.

Indeed, the assurance that courthouses are safe places is an absolutely essential characteristic of societies based on the rule of law. It therefore appears preferable for the statute to authorize the Minister of Justice and the Minister of Public Safety to implement the security measures required for the proper functioning of judicial courts, including personal searches and

the use of metal detectors.

That is why the bill authorizes and lists the controls that may be used to ensure the safety of courthouses and determines how they will be used. [ 43 ] From this simple exercise, it seems clear to me that the legislator did not wish to differentiate itself from Ontario as the petitioner suggests; quite the opposite. [ 44 ] The objective of Bill 15 is also stated therein. [3] It states, inter alia : [ translation ] The intended purpose of Bill 15 is therefore to allow the application of security screening in courthouses so that the activities that take place there unfold safely, peacefully and calmly, without violence, as the Court of Appeal of Quebec affirmed in 2000.

On that occasion, the Court of Appeal emphasized the unique mission of a courthouse, and I quote: [ translation ] “Every day, thousands of citizens go in and out of courthouses, free to move about, trusting that they will find safety, peace, and justice therein.

Security in courthouses is usually discreet, to emphasize the air of serenity and promote attendance by a public curious to verify how, day after day, justice is done. ... violent behaviours are never appropriate but even less so in a courthouse ”, end of quote. (Emphasis added) [ 45 ] This objective is in fact defined as part of the introduction of the Act to amend the Courts of Justice Act and the Act respecting municipal courts with regard to court security , in the explanatory notes. [ 46 ] As stated in Campanella , [4] it seems obvious to me that when someone enters a courthouse, their expectation of privacy is considerably diminished. [ 47 ] As for the

interpretation of “visual inspection” offered by the petitioner, the undersigned does not accept his submission and agrees with the respondent’s argument. [ 48 ] In the excerpts of specific consultations from the Barreau du Québec [5] and the Commission des droits de la personne et des droits de la jeunesse, it is stated: [ translation ] “In fact, in every circumstance, the bill and the law should provide that the visual inspection or security screening method will not violate professional secrecy”. [ 49 ] It therefore appears to me that the Barreau saw in the use of the expression “visual inspection” more than the mere act of looking at files without any possible handling. [ 50 ] The Commission des droits de la personne, following the judgments of the Court of Appeal for Ontario and the Manitoba Court of Appeal, asserted: [ translation ] These judgments highlight the importance of considering the context in which searches are performed when they are warrantless as well as the objective sought by the government when the statute authorizing searches was enacted.

There is a consensus as to the purpose of security screening in courthouses – to protect the members of the public, including the parties to a dispute, witnesses, lawyers, representatives of the courts, and judges.

Generally, the members of the public expect the government to take appropriate measures to ensure their safety when they must or wish to attend court. [ 51 ] It is noteworthy that Lafortune, who went through the security checkpoint between 300 and 400 items prior to February of 2013, is very familiar with the process. [ 52 ] He expected his effects to be moved about to allow the peace officers to verify the contents of his briefcase, and he consented thereto. [ 53 ] Finally, the ordinary meaning of a word or expression must first be interpreted in the context of the law and in compliance with its objectives. [ 54 ]

Section 41.1 of the Quebec

Interpretation Act ( CQLR, c. I-16 ) states: The provisions of

an Act are construed by one another, ascribing to each provision the meaning which results from the whole Act and which gives effect to the provision. [6] [ 55 ]

Section 282.0.6 (1) lists the various screening measures. The provision is clear on one point, namely, that the method or methods chosen may vary according to the circumstances of each courthouse. It is foreseeable that methods will vary according to the needs and resources of each courthouse. [ 56 ] The provision sets out that the screening may “include one or more of the following measures”. Thus, an individual and/or object may be the subject of multiple screening measures listed.

This drafting also appears to reveal the meaning to be given to the “or” between the words “fluoroscopic” and “visual inspection” in subsection 2: it is inclusive (and/or).

In short, a fluoroscopic examination does not prevent the authorities from also proceeding with a visual inspection. [ 57 ] Whatever the methods chosen by the authorities, they must basically allow the authorities to exercise control over security, for the ultimate purpose of ensuring the safety of the premises and the people. [ 58 ] A fluoroscopic inspection involves a relatively complete examination of an object, both the container and the contents.

To obtain a similar result with a visual inspection, it becomes necessary to manipulate the object and its contents. [ 59 ] The Court does not accept the petitioner’s

interpretation.

[ 60 ] The search was not unreasonable. [ 61 ] FOR THESE REASONS: [ 62 ] DISMISSES the application. __________________________________ Dominique B. Joly, j.c.q Mtre Jasmine Guillaume For the Respondent Mtre Jonathan Boivin For the Petitioner Date of hearing: September 4, 2015