R. v. Sauve, 2019 BCPC 24

Citation: R. v. Sauve 2019 BCPC 24 Date: 20190207 File No: 40170-2-C Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEREMY JASON SAUVE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: B. Lansdowne Counsel for the Defendant: D. McKay Places of Hearing: Courtenay and Nanaimo , B.C. Dates of Hearing: December 3, 5, 14 and 24, 2018 Date of Judgment: February 7, 2019 INTRODUCTION

[ 1 ] Jeremy Jason Sauve is charged on information 40170-2-C with one count of possessing a controlled substance for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act and one count of resisting or wilfully obstructing Constable Coulter, a peace officer in the execution of his duty contrary to

section 129 (

a) of the Criminal Code . [ 2 ] Both offences are alleged to have occurred on July 8, 2018 at the City of Courtenay. [ 3 ] The accused, Mr. Sauve, asserts that in the course of the investigation his

section 8,

section 9 and

section 10(

b) Charter rights were violated and asks that the evidence obtained be excluded pursuant to section 24(2) of the Charter. [ 4 ] A Charter voir dire was held during which Constable Coulter and Constable Palmer testified. [ 5 ] I then heard submissions from counsel on the question of whether one or more Charter breaches occurred. I address that question in this decision. In the event that I find any violations of Mr. Sauve’s Charter rights, counsel may make further submissions following which I will decide whether the evidence obtained will or will not be excluded pursuant to section 24(2) of the Charter.

EVIDENCE [ 6 ] I will start by summarizing the material evidence given in the voir dire . [ 7 ] Constable Coulter, who has just over 10 years’ experience as an RCMP Officer, was on duty in Courtenay during the evening of July 8, 2018 when he received and responded to a request to assist British Columbia ambulance attendants. [ 8 ] The initial information he received was that there was a vehicle that was impeding the treating of a patient. [ 9 ] While on route, Constable Coulter received an updated request for a priority police response because the patient was becoming agitated.

He then engaged the emergency lights and siren on his police vehicle and proceeded quickly to a parking lot on Anderton Avenue in Courtenay where the ambulance was located. [ 10 ] When he arrived he observed a person, later determined to be Mr. Sauve, sitting on a stretcher beside the ambulance. He also saw a car high-centred over a cement barrier in the parking lot. [ 11 ] On the opposite side of the ambulance he observed a woman talking with a paramedic. [ 12 ] Constable Coulter spoke briefly with the woman.

She told him that she had seen a male who was obviously injured and limping and asked him if he needed some help. She said that he was acting in a paranoid fashion and told her that he was being chased by the Hells Angels. [ 13 ] The female told him that she believed the man was drunk and that he smelled like beer. She said that she stood behind his vehicle to stop him from pulling out of a parking spot; however, the man then drove the vehicle forward on top of a cement barrier. [ 14 ] She did not identify or describe the man. In particular, she did not refer to Mr.

Sauve. [ 15 ] Constable Coulter did not ask many questions of the woman and, apart from learning her first name was Joella, did not obtain her particulars. He did not ask her to remain at the scene and she walked away after speaking with him. [ 16 ] After receiving information from the woman, Constable Coulter went to the other side of the ambulance to speak with the other paramedics and Mr Sauve. He understood from the paramedics that Mr. Sauve had not identified himself to them. [ 17 ] Mr. Sauve was sitting on the stretcher engaged in a telephone conversation using a cell phone.

In the words of the Constable “he was just seemingly unaware that the police and ambulance were there to sort of figure things out.” [ 18 ] At that time, one of the paramedics told Constable Coulter that there was a large knife inside the immobilized vehicle. The Constable then radioed for police backup to come to the scene. [ 19 ] In his testimony, Constable Coulter spoke of his “spidey senses”.

He said “there was a lot of things that just weren’t adding up to me and, … I had this feeling that we had missed some big event that had happened and that we are just kind of towards the tail end of that event.” [ 20 ] He said further, “I had some other members coming and I knew I did not feel incredibly safe under the circumstances. I believed that Mr. Sauve was - though the witness had described him as smelling like beer and being intoxicated – I smelled no alcohol on him at all during my contact with him but he definitely had what I would consider to be that dazed look.

His eyes appeared glassy and I thought that he was likely high on some type of narcotic. [ 21 ] Constable Coulter then said: In addition to the paramedics telling me about weapons, the paranoia, the statement about being chased by Hells Angels, the strange driving behaviour or driving evidence with the vehicle trying to leave the scene despite a witness standing behind the car, and Mr.

Sauve’s strange behaviour in terms of not answering police or paramedic questions or not wanting - or not sort of acknowledging police presence, all those factors made me feel like something just was not - wasn’t right, and at that time I felt my best course of action was to detain him for an impaired driving investigation. So I approached Mr. Sauve and I handcuffed him. [ 22 ] Constable Palmer arrived on the scene just as Constable Coulter was placing Mr. Sauve in handcuffs. [ 23 ] Constable Coulter testified that he wanted Mr. Sauve to be under control and to make himself safe.

[ 24 ] Immediately after handcuffing Mr. Sauve, Constable Coulter started to search him incidental to detention. [ 25 ] In accordance with his training, he started by searching around Mr. Sauve’s waistline. He does not recall whether he searched between Mr. Sauve’s skin and underwear or between his underwear and short pants. [ 26 ] Almost immediately, Constable Coulter found an empty knife scabbard in Mr. Sauve’s waist area. His concern then became to look for a knife. [ 27 ] After searching around Mr. Sauve’s waist, Constable Coulter then began to search his groin area.

He felt something tucked into the fold between Mr. Sauve’s leg and groin. At this time Mr. Sauve was still sitting on the stretcher. [ 28 ] He testified “I remember squeezing it and it felt hard yet it would move or conform when I squished it”. Cst. Coulter pulled the item out from Mr. Sauve’s groin area. He doesn’t remember whether he took it from between his skin and underwear or from between his underwear and short pants. He immediately identified the item as an ounce of methamphetamine. [ 29 ] Constable Coulter promptly arrested Mr.

Sauve for possession of a controlled substance for the purpose of trafficking. He then read him his Charter rights and police warning from a standard printed card. [ 30 ] When asked whether he would like to call a lawyer, Mr. Sauve stated that he did. [ 31 ] The Constable testified that he found about $ 260 or $ 270 in cash in the front right pocket of Mr. Sauve’s shorts. When asked whether he retrieved the money before or after he arrested Mr. Sauve, he said that he thought that it was before he arrested him. [ 32 ] After remaining at the scene for some time, Constable Coulter travelled in the ambulance with Mr.

Sauve to the hospital. After arriving at the hospital, Mr. Sauve was taken to an examination room. He remained in handcuffs. While with him in the room, Constable Coulter used a cell phone to call legal aid duty counsel. After reaching a lawyer on the phone, he put the phone on the speaker setting and left the examination room to give Mr. Sauve some privacy to speak to counsel. [ 33 ] In terms of times, Constable Coulter testified that he received the initial ambulance assist call at approximately 8:55 PM, detained Mr. Sauve for investigation for impaired driving at about 9:05 PM, arrested Mr.

Sauve for possession of a drug for the purpose of trafficking and advised him of his Charter rights at about 9:14 PM, left the scene in the ambulance at about 9:38 PM and arrived at the hospital at approximately 9:45 PM. [ 34 ] He testified that he first reached legal aid duty counsel at 10:12 PM and that Mr. Sauve spoke with duty counsel for just over four minutes. [ 35 ] Crown counsel asked Constable Coulter to describe why he detained Mr. Sauve for an impaired driving investigation. In response, he stated: Sure.

Your Honour, not to sound like a broken record but there was undoubtedly things going on at the scene with this investigation and my interaction with Mr. Sauve and observations that led me to desire to have him in handcuffs, based on some of the stuff that I was seeing, hearing, feeling and I remember distinctly having sort of a moment there thinking, as a police officer, what do I have, and what I had was I had a witness who believed that he was injured, but also that he was impaired. I had a driver that he tried to leave the scene even though a witness had stood in front of his car.

The driving evidence was such that he had actually driven his car over a cement barrier and permanently disabled the car. There was radiator fluid on the ground and the car was stuck. And I had a belief, in my short interaction with Mr. Sauve, that he was under the influence of narcotics. The glassy eyes without being disrespectful I describe it as kind of that goofy or dazed look. And Your Honour ,at the time, given those factors, I thought my best course of action was to detain Mr.

Sauve, and that also provided me opportunity to handcuff him, to take away some of those other risk factors or strange feelings I was asking about our interaction. [ 36 ] In cross-examination Constable Coulter stated, among other things, that: • When he arrived at the scene there were no struggles going on and there was no indication of an altercation taking place; • Mr. Sauve seemed focused on his telephone call and was talking on the phone calmly; • The female did not identify Mr. Sauve as being the male she spoke about; • He did not observe Mr.

Sauve in the vehicle; • He did not ask if the paramedics extracted Mr. Sauve from the vehicle or saw him in the vehicle; • He did not ask the female or the paramedics if anyone had left the scene before he arrived; • Mr. Sauve’s dazed and glassy eyed appearance is consistent with the appearance of someone who has been seriously injured and is in pain; • He did not ask the paramedics about any injuries Mr. Sauve may have sustained or if they had given him any pain medication; • It was clear to Constable Coulter when he and Constable Palmer tried to stand Mr. Sauve up (likely after he was arrested) that Mr.

Sauve was in tremendous pain;

• When he touched the item in Mr. Sauve’s groin area which was firm and squishy it was clear to him that it was not a knife; • He wanted Mr. Sauve in handcuffs to ensure that everyone was safe and reviewed what he knew to try and determine how he could get him in handcuffs; • He understands that a search pursuant to an investigative detention is different than a search incidental to arrest. He said that he understood that incidental to an investigative detention he had the authority to pat Mr.

Sauve down for weapons for the purpose of officer safety but could not search beyond that; • He made no note in his notebook of advising Mr. Sauve that he was being detained for an impaired driving investigation; • Other than that Mr. Sauve received some care from the paramedics, there is nothing specific that he can recall that caused him not to allow Mr.

Sauve access to counsel using a cell phone at the scene during the approximately 24 minutes between his arrest and leaving for the hospital; • He tries to give a person their right to counsel with privacy, and as soon as practicable, which means when it is a good time to do that. In this case that was when Mr. Sauve was triaged and in the hospital room. [ 37 ] On all of the evidence, it is clear that once Constable Coulter arrested Mr.

Sauve for possession of a controlled substance for the purpose of trafficking, he took no steps to investigate him for the offence of impaired driving. [ 38 ] Following Constable Coulter’s direct examination and cross-examination, I asked him what his plan was at the time he first detained Mr. Sauve. [ 39 ] I asked whether, for example, he had intended to ask for a drug recognition expert to assist in the impaired driving investigation. He said that that is certainly something that is possible. I then stated that I did not want to know what is possible but rather, what was in his mind at the time he detained Mr.

Sauve. [ 40 ] Constable Coulter’s response included the following: I wanted to handcuff him. There was a lot of stuff going on. At that point, there were a lot of unknowns. I certainly wanted another member there. I certainly wanted to know more about the history of the car, his identity. Sometimes that stuff comes afterwards. There was a lot of stuff; I’m happy to say or fair to say that if someone is not cooperating or someone has not identified them to the --- identifying themselves to the police, given the circumstances, something’s not right there, in my mind. It’s just not right.

Who are we dealing with here? Is he a prohibited driver? You know does he have warrants? The fact that someone is not telling me who they are, and that there is weapons involved and all of a sudden there is this notion that they are somehow being chased you know running from the Hells Angels, I have said it a couple times, Your Honour, and the best way I can describe is that I felt like we missed something bigger that was unfolding, and sometimes in my job when other members arrive and the information starting flowing, the pieces come together.

Sometimes someone else phones the police five minutes later to say, “Hey, I’ve just been part of a home invasion” or “I’ve been searched”; My mindset at the time that I testified to was that I knew something wasn’t right, I tried to determine what I had at that time, what were my best grounds to make an arrest or detainment, and good decision or bad decision, the best evidence and grounds that I had were for impaired driving investigation, and that’s why I detained him; [ 41 ] I then asked “But my understanding is you didn’t really do anything to follow up on an impaired driving investigation?” [ 42 ] Constable Coulter replied: That’s correct … once I find the suspected methamphetamine, I feel like, you know, okay, were there --- we’ve kind of trumped the impaired driving, I mean, if that makes any sense.

ISSUES, ANALYSIS AND FINDINGS Did the detention of Mr. Sauve breach his

section 9 Charter right not to be arbitrarily detained? [ 43 ] Mr. Sauve submits that his detention was not lawful and contravened

section 9 of the Charter . [ 44 ] The Crown disagrees and says that in all of the circumstances Constable Coulter’s detention of Mr. Sauve for investigation was justified in law. [ 45 ]

Section 9 of the Charter provides: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 46 ] Constable Coulter testified that he conducted an investigative detention. He said that he detained Mr. Sauve for the purpose of investigating him for the offence of impaired driving. [ 47 ] The Supreme Court of Canada considered the matter of an investigative detention in its decision in R. v.

Mann [2004] 3 S.C.R. and found that a detention for investigative purposes is, like any other detention, subject to Charter scrutiny. [ 48 ] The majority in Mann held that although there is no general power of detention for investigative purposes, police officers may detain a person if there are reasonable grounds to suspect in all the circumstances that the person is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances.

[49] The Supreme Court in Mann quotes and adopts statements by the Ontario Court of Appeal in R. v. Simpson (1993), 12 O.R. (3d)making clear that while a reasonable suspicion is not sustained merely by an officer’s hunch based on intuition gained by experience, it isclearly a threshold somewhat lower than the reasonable and probable grounds required for a lawful arrest. [50] Mann has been considered and applied by courts in British Columbia. The principles set out in R. v. Mann are clearly andconcisely summarized by the British Columbia Court of Appeal in R. v. Greaves 2004 BCCA 484 , [2004] B.C.J. 1953.

Atparagraph 33 Mr. Justice Lowry, writing for the Court, states as follows: The Supreme Court held in Mann that common law investigative detention power does exist. This flows from the ancillary powersdoctrine and the duties of police to preserve the peace, prevent crime and protect life and property: see R. v. Waterfield [1963] 3 All E.R.659 and R. v. Dedman (SCC), [1985] 2 S.C.R 2. The power is not, however, a general power to detain whenever such adetention will assist the police in the execution of their duties: Mann paragraph 17.

In order that an investigative detention not bearbitrary and thereby offend s. 9 of the Charter, it must fulfil two conditions. First, the police must have “reasonable grounds to detain”in the sense that they reasonably suspect that the individual detained was involved in a crime under investigation. There must be both asubjective and objective basis for that belief.

Second, the detention must be “reasonably necessary” in all the circumstances, includingthe nature of the liberty interfered with and the public purpose the interference serves. [51] At paragraph 42 in Greaves the Court states: The primary purpose of the requirement that police have reasonable grounds to detain is to ensure that they do not have carte blanche tointerfere with individual liberty and do not detain persons based on mere “hunches”. [52] I must consider whether, at the time that he detained Mr. Sauve, Constable Coulter had reasonable grounds to suspect in all thecircumstances, that Mr.

Sauve had committed the crime of impaired driving. There must be both a subjective and objective basis forsuch belief. [53] I will then consider whether Mr. Sauve’s detention was reasonably necessary in all the circumstances. [54] First, I must ask whether I’m satisfied that, subjectively, Constable Coulter had a reasonable suspicion that Mr. Sauve hadcommitted the offence of impaired driving. If I conclude that he did, I must ask whether his reasonable suspicion is supported on anobjective basis. [55] On his evidence, it is apparent that in detaining Mr.

Sauve for investigation of the offence of driving while his ability to do sowas impaired by a drug, Constable Coulter took into account the following: • The female’s statement that she had seen a male who was obviously injured and limping, was acting in a paranoid fashion,told her that he was being chased by Hells Angels, smelled like beer, seemed to her to be drunk and drove a vehicle forward onto acement traffic barrier when she was standing behind the vehicle to prevent the driver from driving away. • That Mr.

Sauve, who was sitting on a stretcher beside the ambulance and was talking on a cell phone, seemed oblivious tothe presence of the paramedics and the police officer and would not tell them his name. • That he could smell no alcohol on Mr. Sauve. • That Mr. Sauve’s eyes appeared glassy and he had a dazed look causing him to think that Mr. Sauve was likely high onsome type of narcotic. • That there was a car high-centred on a cement barrier in the parking lot. [56] In addition to these considerations, it is clear from his testimony that at the time he decided to detain Mr.

Sauve, ConstableCoulter had concerns and other things on his mind which caused him to want to take control of the situation by getting Mr. Sauve intohandcuffs. [57] It is clear that Constable Coulter was concerned and did not feel safe because a paramedic told him that there was a large knifein the vehicle and because the female told him that a male said that he was being chased by Hells Angels. [58] As I stated earlier, because Constable Coulter did nothing to pursue an impaired driving investigation after finding themethamphetamine, I asked him what his intentions were at the time that he initially detained Mr.

Sauve. I find, based upon his responsethat at the time of the investigative detention, and even before locating the drugs, he had no clear intention of taking further steps toinvestigate Mr. Sauve for the offence of impaired driving. [59] I find that what Constable Coulter really wanted was to get Mr. Sauve into handcuffs for safety reasons and that he correctlyunderstood he could not lawfully do so unless he had the grounds to detain him for investigation of a particular offence. [60] In assessing the subjective and objective basis for the investigative detention of Mr.

Sauve, I consider all of the evidence aswell as what is not in evidence. [61] The offence of impaired driving as set out in section 253(1)(

a) of the Criminal Code requires that a person operate a motorvehicle or have care and control of a motor vehicle while the person’s ability to do so is impaired by alcohol or a drug.

In order for apolice officer to make a valid demand that the person submit to an evaluation conducted by an evaluation officer to determine whetherthe person’s ability to operate a motor vehicle is impaired by a drug, the police officer must have reasonable grounds to believe that theperson is committing, or at any time in the preceding three hours, has committed an offence under section 253(1) (a). [62] Thus, it is essential in any impaired driving case for the investigating officer to attempt to ascertain whether the suspect was in

care and control of a motor vehicle and, if so, when. It is also critical that the officer try to ascertain whether the suspect was under the influence of alcohol and/or drugs at the time of care and control. [ 63 ] Constable Coulter did not see Mr. Sauve driving or otherwise in care and control of the vehicle. Furthermore, he did not ask the female or the paramedics if they had seen Mr. Sauve in care and control of the vehicle. [ 64 ] He did not attempt to ascertain when the vehicle came to rest on the cement barrier in the parking lot.

He did not inquire as to whether anyone had left the scene before he arrived. [ 65 ] Constable Coulter agreed that Mr. Sauve’s dazed and glassy eyed appearance is consistent with the appearance of someone who has been injured and is in pain; however, he did not ask the paramedics about the severity of Mr. Sauve’s injuries. [ 66 ] The female told the Constable that the man she observed smelled like beer and she believed he was drunk. Constable Coulter found that Mr. Sauve did not smell at all of liquor. The logical inference from this is that either the female was speaking of someone other than Mr.

Sauve or that her evidence was not reliable. [ 67 ] Constable Coulter testified that, based upon Mr. Sauve’s appearance, he believed that he was likely high on some type of narcotic. He may have been correct in his opinion; however, even if so, he had no evidence as to when Mr. Sauve became high.

He did not ask the paramedics if they had administered him any narcotics for pain relief. [ 68 ] It is clear that if Constable Coulter was conducting an impaired driving investigation, there are several questions that he could have and should have asked. [ 69 ] I question whether an investigative detention can be lawful when the detaining police officer has no plan or intention to follow up on the investigation of the suspected offence for which the accused is detained. [ 70 ] I recognize that as soon as Constable Coulter found the methamphetamine he focused on and pursued an investigation of possession of a controlled substance for the purpose of trafficking.

There is nothing improper about a police officer commencing one investigation and then switching to another. [ 71 ] I find that the fact that, on his own evidence, Constable Coulter never had an intention to take steps to investigate Mr. Sauve for the offence of impaired driving relevant to the question of whether he had a subjective belief that there were grounds to detain him for an impaired driving investigation. [ 72 ] In all of the circumstances, I have concluded that Constable Coulter did not have the necessary subjective basis to detain Mr.

Sauve for investigation of the offence of impaired driving. [ 73 ] Given my conclusion, it is not strictly necessary for me to consider whether there was an objective basis to do so. However, in case I am not correct in my assessment of Constable Coulter’s subjective belief, I will do so. [ 74 ] In all of the circumstances, I am not satisfied that the investigative detention of Mr. Sauve is justifiable from an objective point of view. In my view, a reasonable person placed in the position of Constable Coulter would not conclude that there was a reasonable suspicion that Mr.

Sauve had committed the offence of impaired driving. A hunch, yes. A reasonable suspicion, no. [ 75 ] My reasons for reaching this conclusion include those I have set out for my finding that the investigative detention of Mr. Sauve is not justified on a subjective basis. In my view, given the limited evidence known to Constable Coulter, a reasonable person in his shoes would not have had a reasonable suspicion that Mr. Sauve has been in care and control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug.

In my view such a person would have believed that he or she needed additional evidence to have a reasonable suspicion, as opposed to a hunch, that Mr. Sauve had committed the offence of impaired driving. [ 76 ] The law is clear from cases such as R. v. Cornwell 2017 BCSC 1340 , that when assessing the objective basis I may consider Constable Coulter’s personal experience. However, doing so in this case is of limited utility.

While Constable Coulter testified that he had conducted both drug investigations and impaired driving investigations, he did not say whether he had any experience investigating the offence of driving while impaired by a drug. Moreover, he said nothing about any experience or expertise he may have in assessing whether a person’s ability to drive is impaired by a drug.

Furthermore, he did not give any evidence as to what symptoms he knows to be consistent with impairment by any kind of drug. [ 77 ] In the event that I am not correct that there was neither the subjective nor objective basis to justify the investigative detention of Mr. Sauve, I will now consider whether Mr. Sauve’s detention was reasonably necessary in all the circumstances. [ 78 ] In accordance with Mann , I must assess Constable Coulter’s decision to detain Mr. Sauve against all of the circumstances, most notably the extent to which the interference with Mr.

Sauve’s individual liberty was necessary for the Constable to perform his duty. [ 79 ] Constable Coulter attended the scene in response to an updated request for a priority police response because a patient was becoming agitated. At the time that he arrived, Mr. Sauve was sitting on a stretcher in the presence of paramedics. The first thing Constable Coulter did was to talk to the female on the other side of the ambulance. Amongst other things she said a man who drove the car onto the cement barrier told her he was being chased by Hells Angels. When he finished speaking with her, Mr.

Sauve was still sitting on the stretcher. He was talking calmly on the phone and paying no attention to the Constable or the paramedics. A paramedic told Constable Coulter that he had seen a large knife in the vehicle. Constable Coulter then radioed for police back up. At that time Mr. Sauve was not acting in an aggressive or threatening way and gave no indication that he would try to get off the stretcher and attempt to go anywhere. Constable Coulter decided to detain and handcuff Mr. Sauve.

Constable Palmer arrived just as Constable Coulter was doing so. [ 80 ] In all of the circumstances, I find that it was not reasonably necessary for Constable Coulter to detain Mr. Sauve in order to

pursue an impaired driving investigation. In a very short time he could have asked some important questions before he detained Mr. Sauve. At the very least he could have quickly asked the female whether the man she was speaking about was the man on the stretcher and asked the paramedics whether they had seen the man on the stretcher in the car. If he had done so, he would have been able to better assess whether there existed the necessary grounds to detain Mr. Sauve for further investigation. [ 81 ] To summarize, I have decided that Mr.

Sauve’s detention was not justified on a subjective or objective basis and that it was not reasonably necessary in all of the circumstances. Accordingly, I find that Mr. Sauve’s

section 9 Charter right not to be arbitrarily detained was breached. Did Constable Coulter breach Mr. Sauve’s

section 8 Charter right not to be subjected to unreasonable search or seizure? [ 82 ] Mr. Sauve submits that if the Court finds that his detention was a lawful investigative detention the search incidental to his detention for investigation exceeded what is permitted. [ 83 ] The Crown disagrees and submits that the search fell within what was permissible pursuant to an investigative detention. [ 84 ] Mann confirms that there is a common law power to search incidental to an investigative detention where the officer has reasonable grounds to believe that his or her safety or that of others is at risk.

In such case, the officer may engage in a protective pat down search of the detained individual. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest. [ 85 ] If the search incidental to an investigative detention goes beyond the purpose of officer safety and becomes investigative in nature then a lawful search can become unlawful. [ 86 ] It follows from my finding that Mr. Sauve was unlawfully detained contrary to

section 9 of the Charter that any search of him which followed cannot be lawful. [ 87 ] However, if I am wrong in finding that the investigative detention of Mr. Sauve was not lawfully justified, I must ask whether the search fell within the scope of that permitted incidental to a lawful investigative detention. [ 88 ] At paragraph 54 in R. v. Duong 2006 BCCA 325 the British Columbia Court of Appeal states: There is no dispute that police officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties.

Where a police officer has reason to believe that his or her safety is at risk in the course of an investigative detention, the officer is authorized to conduct a protective pat-down search. [ 89 ] In the circumstances of the case before me, and in particular, given that the female told Constable Coulter that the man said he was being chased by Hells Angels and one of the paramedics advised him, Coulter, that there was a large knife in the vehicle, I am of the view that, if the detention of Mr.

Sauve was lawful, Constable Coulter was permitted to conduct a pat down search for safety purposes. [ 90 ] Upon finding the knife scabbard, it was reasonable for the Constable to continue a pat down search for a knife or other weapon. [ 91 ] The question is, if the investigative detention and incidental search for safety purposes was lawful, did the search go too far by becoming investigative in nature? [ 92 ] To answer this question, it is instructive to consider the facts in Mann . [ 93 ] In Mann, two police officers approached the scene of a reported break and enter. They observed Mr.

Mann, who matched the description of the suspect, walking along the sidewalk. They stopped him. He identified himself and complied with the pat down search of his person for concealed weapons. During the search, one officer felt a soft object in Mr. Mann’s pocket. He reached in the pocket and found a small plastic bag containing marijuana. Mr. Mann was then arrested for possession of marijuana for the purpose of trafficking. The trial judge found that the search of Mr. Mann’s pocket contravened

section 8 of the Charter . He held that the police officer was justified in his search of Mr. Mann for security reasons, but there was no basis to infer that it was reasonable to look inside to Mann’s pocket for security reasons. As a result, the trial judge acquitted him. [ 94 ] The Court of Appeal set aside the acquittal and ordered a new trial finding that the search was authorized by law and was reasonable in the circumstances.

The majority of the Supreme Court of Canada disagreed and restored the acquittal. [ 95 ] The majority of the Supreme Court found that while there were reasonable grounds for a protective search of the appellant, the officer’s decision to go beyond his initial pat down search after feeling an admittedly soft object therein was problematic and not authorized by law. [ 96 ] The Court of Appeal in Duong distinguished its facts from those in Mann . At paragraph 56 of Duong the Court states: The scope of the search must also be justifiable on an objective basis.

In this case, the search progressed beyond a basic “pat-down” search only when the officer felt a “hard” object that could be a weapon. This case is unlike Mann , where the investigating officer reached into the accused’s pants pocket to exam a “soft object” on the basis of “mere curiosity”. In Mann, the officer did not subjectively believe the object was a weapon, nor would any such belief have been objectively justified. [ 97 ] Constable Coulter acknowledged in cross examination that when he felt the “firm but squishy” baggy of methamphetamine he located in Mr. Sauve’s groin he knew it was not a knife.

Nevertheless, he pulled it out from under Mr. Sauve’s shorts. [ 98 ] Constable Coulter also reached into one of the front pockets of Mr. Sauve’s shorts and pulled out paper money. He said that he believes he did that before he arrested him.

[99] The Crown submits that the facts in our case are distinguishable from those in Mann in that the trial judge in Mann noted thatthe officer stated he wondered what the item was which lead the trial judge to think that the officer may have reached into Mr. Mann’spocket out of curiosity. [100] In my view, the present case is not distinguishable from Mann.

Constable Coulter described what turned out to be a baggie ofmethamphetamine as being firm but squishy and acknowledged in cross examination that when he touched it he knew it was not a knife. [101] The Crown notes that he did not say he knew it was not any kind of weapon. I believe that if Constable Coulter believed theitem may have been a weapon other than a knife he would have said so.

While he didn’t say so, it is quite likely that, like the policeofficer in Mann, Constable Coulter wondered what was the item that turned out to be a baggie containing methamphetamine. [102] I find that when Constable Coulter pulled out the baggie, he went beyond a protective search which was justified incidental to alawful investigative detention. I find that when he withdrew the baggie from under Mr. Sauve’s shorts he engaged in an investigativesearch. Accordingly, I find that the search and seizure of the baggie of methamphetamine was unlawful and violated Mr.

Sauve’ssection 8 Charter rights. [103] Similarly, I find that when Constable Coulter reached into the pocket of Mr. Sauve’s shorts and pulled out paper money, hewent beyond a protective pat down search. Whether this also breached Mr. Sauve’s

section 8 Charter rights depends on whether itpreceded his arrest. Constable Coulter’s evidence is that he believes he retrieved the money before he arrested Mr. Sauve. Did the detention of Mr. Sauve amount to a de facto arrest? [104] Mr. Sauve submits that his detention, including being handcuffed, went beyond an investigative detention and amounted to a defacto arrest. [105] The Crown disagrees and points out that there are cases in which courts have found that a detention does not become an arrestjust because the suspect is handcuffed.

In R. v Chaif-Gust 2011 BCCA 528 at paragraph [48] then Chief Justice Finch writing for theCourt states: “The use of handcuffs or a police wagon do not, in and of themselves, render an otherwise reasonable detention a de factoarrest.” [106] Whether a detention amounts to a de facto arrest depends upon the facts of each particular case. If handcuffing a suspect isreasonably necessary to allow the police to conduct an investigation of the offence for which the suspect is detained it may not amount toa de facto arrest. [107] In Chaif-Gust, the police detained Mr.

Chaif-Gust and another suspect after they found them leaving the site of a suspectedmarijuana grow operation during the execution of a search warrant. Mr. Chaif-Gust spent 42 minutes locked in the back of a police vanwhile officers searched the premises. The trial judge found that Constable Wong placed both suspects into the wagon because he couldnot have safely controlled both suspects at the same time he was performing his containment duties at the front of the residence beingsearched.

The trial judge concluded that handcuffing the suspects and locking them in the police wagon was a necessary and reasonablestep in the circumstances. The Court of Appeal saw no basis to interfere with the trial judge’s conclusion and found that the detentiondid not constitute a de facto arrest and did not violate s. 9 of the Charter. [108] On all of Constable Coulter’s evidence, I find that his primary purpose in handcuffing Mr.

Sauve was to help ensure safety andnot to permit him to do an impaired driving investigation. [109] In cross examination, defence counsel put it to Constable Coulter that he wanted to have Mr. Sauve in handcuffs to ensure thateveryone was safe and reviewed what he knew to try and determine how he could get him in handcuffs. Constable Coulter replied“That’s correct”. [110] I believe that even if Constable Coulter had not found and seized the methamphetamine, he would have likely continued to holdMr. Sauve in handcuffs for some time and for reasons unrelated to an impaired driving investigation.

This is because I have found thatConstable Coulter’s primary purpose for handcuffing Mr. Sauve was to address his safety concerns. [111] Assessing whether the detention of Mr. Sauve amounted to a de facto arrest is complicated by the fact that he was formallyarrested as soon as the methamphetamine was found. It is not possible to say for certain what would have occurred had Mr. Sauve notpossessed the methamphetamine which Constable Coulter found. [112] In all of the circumstances, I find that Mr.

Sauve’s detention in handcuffs may well have amounted to a de facto arrest but that itis not necessary to definitively decide the question because of my finding with respect to an investigative detention. Was Mr. Sauve’s

section 10(

b) Charter right to counsel infringed? [113] Mr. Sauve submits that, although after arriving at the hospital he was able to speak to a lawyer by telephone, he should havebeen afforded the opportunity earlier and the delay amounted to a breach of his

section 10(

b) Charter right. [114] The Crown says that, in all of the circumstances, any delay was justified. [115]

Section 10(

b) of the Charter is as follows: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [116] The Supreme Court of Canada considered s. 10(

b) and the meaning of the words “without delay” in R. v. Suberu 2009 SCC 33, [2009] 2 S.C.R. 460. After noting that s. 10(

b) is intended to protect detainees against the risk of self-incrimination and to

assist them in regaining their liberty, at paragraph [42] the majority states, in part, as follows: In our view, the words “without delay” mean immediately for the purposes of s.10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s.1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [ 117 ] In R. v. Fan 2017 BCCA 99 the B.C.

Court of Appeal considers Suberu and at paragraph [53] writes: However, “immediate” is not necessarily synonymous with “instantaneous”. Sometimes practical considerations play a role in what is immediate for purposes of s.10(b), particularly with respect to the implementational duty. For example, in some cases a police officer’s implementational duty may be limited by urgency or legitimate concerns for safety. [ 118 ] At paragraph [55] the Court states: Where a telephone is available and a detainee asks to speak with counsel, the police must grant the request if it would be reasonable to do so.

A lack of privacy for the call will not necessarily justify refusal of such a request: R. v. Luu , 2006 BCCA 73 at para.30. On the contrary, failure to give a detainee the option of contacting counsel without privacy may amount to an infringement of s.10 (b), as occurred in R. v. Bui, 2005 BCCA 482 . The touchstone is reasonableness, given all the circumstances of the case. [ 119 ] The Court in Fan notes that the Supreme Court of Canada affirmed in R. v.

Taylor , 2014 SCC 50 that onus is on the Crown to prove any delay was reasonable and quotes the following statement found in paragraph [33] of Taylor : Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right into access to counsel. [ 120 ] Clearly, whether a delay in accessing right to counsel amounts to an infringement of s. 10(

b) turns on the facts in each case. [ 121 ] In the present case, Mr. Sauve was permitted to speak to someone on the cell phone of one of the paramedics and was doing so calmly when Constable Coulter arrived. Therefore, it is clear that a cell phone was available at the scene and that Mr. Sauve was capable of using it. [ 122 ] I find that the case before me is distinguishable from that of R. v. Ashby 2013 BCCA 334 where the officer was not aware at the scene that there was a cell phone available and there was no evidence that it was in good working order. [ 123 ] When advised of his right to counsel, Mr.

Sauve told Constable Coulter that he wanted to call a lawyer. [ 124 ] The evidence is that approximately 24 minutes elapsed from the time that Mr. Sauve was arrested and given his Charter rights until he left the scene in the ambulance and that the trip to the hospital took a further seven minutes. [ 125 ] When asked, Constable Coulter said that other than Mr. Sauve receiving some care from the paramedics there was nothing specific that he can recall that caused him not to allow Mr.

Sauve access to counsel at the scene. [ 126 ] He indicated that he tries to give a person their right to counsel in privacy as soon as practicable and for Mr. Sauve, that came after he was triaged at the hospital. [ 127 ] In my view, the Crown has not met the onus of proving that the delay in allowing Mr. Sauve access to counsel was reasonable. It is likely that Mr. Sauve could not be afforded complete privacy until he was in a room at the hospital; however, that did not justify the delay. I find that there is reason shown as to why Constable Coulter couldn’t have informed Mr.

Sauve that he had the option of contacting counsel at the scene without privacy. If he was given the option, he could have decided if he wanted to speak to counsel at the scene without privacy or wait until he was at the hospital. [ 128 ] There is no evidence to show that the delay in implementing Mr. Sauve’s right to counsel was necessary because of urgency or legitimate safety concerns once he was handcuffed.

Constable Coulter would have been able to facilitate access to counsel because Constable Palmer was on the scene and took over the possession for the purpose of trafficking investigation. [ 129 ] In all of the circumstances, I find that Mr. Sauve’s s.10(

b) right to access counsel without delay was infringed. I note that while this breach will not impact on the admissibility of any evidence obtained, it will be a consideration if I am to conduct a s. 24(2) Charter analysis. CONCLUSION [ 130 ] On all of the evidence I have found that Constable Coulter did not have the necessary subjective basis to lawfully detain Mr. Sauve for investigation of the offence of impaired driving. I have also found that, an investigative detention was not justified on an objective basis. I have found further that the detention of Mr.

Sauve was not reasonably necessary in all of the circumstances. If the detention of Mr. Sauve was unlawful any search of his person was also unlawful. [ 131 ] I have decided that if I am incorrect in deciding that Mr. Sauve’s detention for investigation was unlawful, the search incident to an investigative detention exceeded what is permitted in that it went beyond a protective pat down search and became investigative in nature. [ 132 ] Accordingly, I have decided that Mr. Sauve’s

section 8 and 9 Charter rights were infringed. [ 133 ] Finally, I have found that the delay in facilitating Mr. Sauve’s access to counsel was not proven to be reasonable and that, as a result, his s.10(

b) right to access counsel without delay was also infringed.

[ 134 ] If the Crown wishes to argue that, notwithstanding the Charter violations which I have found, the evidence obtained is admissible under section 24(2) of the Charter , I will hear further submissions from counsel. ______________________________ The Honourable Judge R. Lamperson Provincial Court of British Columbia