Her Majesty the Queen - v. -, 2019 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 56 Date: September 6, 2019 Information: 991087791 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Daniel Matthew McAdam Appearing: Ms. Linh N. Le For the Crown Ms. Estelle Hjertaas For the Accused JUDGMENT S.D. SCHIEFNER, J INTRODUCTION [ 1 ] Mr. Daniel McAdam stands charged with two counts of unauthorized possession of ammunition. The ammunition was found following a warrantless search of the motor vehicle he was operating on April 17, 2019. Mr.

McAdam was arrested for dangerous operation when he was discovered crouched down and hiding in the area of the driver’s seat of a motor vehicle of interest to the police. The vehicle was of interest because the operator had just previously driven off at a high rate of speed when police turned to following it. The operator weaved through traffic, drove through a stop sign and turned down a side street. Police broke off their pursuit for reasons of public safety but later discovered and approached the vehicle. Mr. McAdam was arrested and the vehicle was searched.

The ammunition was found in a paper bag sitting on the back seat.

[ 2 ] Mr. McAdam argues that he had a reasonable expectation of privacy in the vehicle and that the search conducted by police offended

section 8 of the Canadian Charter of Rights and Freedoms [ Charter ] because it either was not incidental to arrest or exceed the bounds of any reasonable search that might have been incidental to arrest. Concomitant therewith, Mr. McAdam seeks exclusion of evidence obtained by police. [ 3 ] A vo ir dire was conducted during which all evidence of the Crown was tendered. During those proceedings, there was no dispute that police had reasonable grounds to arrest Mr. McAdam on April 17, 2019.

He was found in care and control of a motor vehicle with a clear nexus to recent criminal activity, namely dangerous operation of a motor vehicle. The issue in dispute in these proceedings is whether or not the warrantless search of the subject vehicle offended Mr. McAdam’s Charter- protected right to be secure against unreasonable search and seizure. [ 4 ] On August 28, 2019 I rendered my decision on Mr. McAdam’s Charter application and his trial. I gave brief oral reasons at that time. In doing so, I declined to find that there was any violation of Mr. McAdam’s Charter- protected rights.

While I accepted that Mr. McAdam had a privacy interest in the motor vehicle he was operating, I indicated my conclusion that the search that was conducted by police was incidental to his arrest, as well as for a valid safety reason. I also indicated that I was satisfied that the officers’ actions fell within the lawful confines of such searches. Accordingly, I dismissed Mr. McAdam’s Charter application. [ 5 ] I went on to indicate that I was satisfied beyond a reasonable doubt that Mr.

McAdam was in possession of both .22 caliber ammunition and .410 caliber ammunition without being the holder of a licence authorizing such possession on April 17, 2019. Therefore, I found him guilty of counts 7 and 8 of Information 9991087791. [ 6 ] The following are my reasons for these various decisions. FACTS [ 7 ] On April 17, 2019, Officers Mostowich and Parenteau were on patrol together in a marked police cruiser in Prince Albert, Saskatchewan. At approximately 10:35 p.m., they observed a black Toyota Celica (“Toyota”) driving toward them with a burnt-out head light.

As the vehicle passed, Officer Mostowich began turning his vehicle around to conduct a traffic stop. Immediately, the Toyota sped off at a high rate of speed. The vehicle exceeded the posted speed limit, weaved through traffic, drove through a stop sign and made a series of rapid turns. At least one of the streets the vehicle drove on was busy with traffic. Police broke off their pursuit for reasons of public safety. The officers believed the operator was seeking to avoid being stopped by police.

This fact raised a concern for the officers that the vehicle may be involved in some kind of criminal activity or that it may contain something illegal. [ 8 ] The officers began searching streets and alleys in the area looking for the Toyota. Within five minutes, they discovered the Toyota in a back alley near where they had last seen it. When officers initially viewed the vehicle, it appeared to be empty. The officers exited the police cruiser and approached the Toyota on foot. For safety reasons, they had their firearms at the low ready. [ 9 ] As the officers approached the vehicle, two heads popped up – Mr.

McAdam was in the driver’s seat and a woman was in the passenger seat. Lights came on in the vehicle and it began moving forward. Officer Mostowich yelled a command for Mr. McAdam to show his hands and exit the vehicle. Mr. McAdam did not comply. As a result, Officer Mostowich holstered his side arm and removed his baton preparing, if necessary, to use force. Officer Mostowich repeated his earlier command and struck the driver’s side window with his baton. Ultimately, Mr. McAdam and the passenger were removed from the vehicle. [ 10 ] Mr. McAdam was arrested for dangerous operation of a motor vehicle. a.

The Search of the Toyota : [ 11 ] Officer Mostowich testified that he believed Mr. McAdam was trying to evade police contact and therefore he was suspicious that the vehicle was stolen or that Mr. McAdam was hiding something. Officer Mostowich stated that his primary concern in searching the vehicle was public safety. It was the officer’s intention to seize the Toyota and he did not want to turn it over to the tow truck operator if there was anything dangerous or illegal in it.

While the officer testified that it was his practice to conduct an inventory search of any vehicle he seized, in this case, the officer’s desire to do so was amplified by the fact that Mr. McAdam had attempted to evade their investigation, he had driven dangerously and he had been uncooperative during his arrest. Officer Mostowich’s search of the

vehicle largely consisted of him sticking his head through the driver’s door of the vehicle and looking around for items of interest. Hedid not discover anything relevant to these proceedings. [12] Officer Parenteau testified that he had three reasons for searching the vehicle. First, at the time the officers initiallyapproached the Toyota, they did not know who owned it. As a result, Officer Parenteau was looking for anything in the vehicle thatmight indicate its ownership. Second, because Mr.

McAdam had attempted to evade police, Officer Parenteau assumed that Mr.McAdam was doing something illegal at the time and that evidence of such activity could be found in the Toyota. Finally, the officerintended to seize the vehicle and he also wanted to ensure the vehicle was searched prior to it being turned over to the tow company toensure there was nothing dangerous or illegal in the vehicle. Officer Parenteau opened and looked inside both the glove box and centreconsole of the vehicle. Officer Parenteau also searched the back seat.

In doing so, he observed a paper bag from a local pizza restaurant.The bag was closed and the Officer could not see its contents. When Officer Parenteau moved the bag, its weight and feel indicated tohim that it contained something other than food. Upon searching the bag, he found, among other things, a large quantity of .22 caliberammunition, as well as seven .410 shotgun shells, pieces of what appears to be a firearm, and a modified hacksaw blade. [13] At the outset of the trial, Mr.

McAdam acknowledged that he had given a lawful undertaking not to operate a motor vehicleand that on April 17, 2019, he breached that condition by operating the Toyota. Mr. McAdam also acknowledged that he was operatingthat vehicle in a manner that was dangerous to the public and pled guilty to that charge as well. In addition, Mr. McAdam did not disputethat he had possession and control of the items in the vehicle, including the items found by police. Finally, Mr. McAdam acknowledgedthat the items found by the police included ammunition. ANALYSIS AND CONCLUSIONS

i) Was Mr. McAdam lawfully arrested by Constables Mostowich and Parenteau? [14] Mr. McAdam did not dispute the lawfulness of his arrest. [15] However, I am satisfied that Officers Mostowich and Parenteau had reasonable grounds to suspect that Mr. McAdam was theoperator of the vehicle they had earlier attempted to stop. The vehicle that he was located in matched the description of the vehicle theofficers were pursuing. It was found in the area where the officers had last seen that vehicle and it was found within minutes of their lastobservation of it. Mr.

McAdam and the other occupants were crouched down so as not to be observed. As the officers approached thevehicle, Mr. McAdam restarted the vehicle and began moving it forward. Finally, he did not initially comply with the officers commandsto exit the vehicle. Only in the face of the application of force, did he do so. The totality of these circumstances would have reasonablyled the officers to believe that Mr. McAdam was the operator of the vehicle they had just being pursuing. Furthermore, Mr.

McAdam’sconduct in attempting to put the vehicle in motion and his initial unwillingness to comply with the officer’s commands would havecorroborated their belief that Mr. McAdam was attempting to evade police. [16] I make these observations because the authority, if any, of Officers Mostowich and Parenteau to search the Toyota is derivedfrom the lawfulness of Mr. McAdam’s arrest. See: R v Caslake, (SCC), [1998] 1 SCR 51 [Caslake]. ii) Were Mr. McAdam’s privacy interests affected by the search of the Toyota? [17] There is no dispute that Mr.

McAdam had a privacy interest in the motor vehicle he was operating on April 17, 2019,irrespective of whether or not he owned that vehicle. See: R v Belnavis (1996), (ON CA), 29 OR (3d) 321 (Ont. CA)[Belnavis]. See also R v Ahmed, 2019 SKCA 47. [18]

Section 8 of the Charter guarantees Mr. McAdam’s right to be secure against unreasonable search and seizure. Ordinarily, theonus would be on Mr. McAdam to prove a violation of a Charter-protected right. However, because the search of the Toyota wasconducted without a warrant, the search is prima facie unreasonable.

Hence, the Crown has the burden of showing that the search, on thebalance of probabilities, was reasonable - in this case that includes establishing that the search of the Toyota was incidental to Mr.McAdam’s arrest and that the scope of the search conducted by the officers did not exceed the limits of such search. iii) Was the search of the Toyota incidental to Mr. McAdam’s arrest?

[19] A search incidental to arrest can include a vehicle that the arrestee occupied shortly before or at the time of his/her arrest. See:Caslake at para. 15. On the other hand, there is no blanket right for police officers to search a vehicle incidental to the arrest of itsoccupants. See: Cloutier v Langlois, (SCC), [1990] 1 SCR 158 [Cloutier]. See also: Caslake at para 14.

Whether such asearch is valid will depend on three factors: (1) whether there is a valid purpose for the search. (2) whether the officer turned his/her mind to the question of whether the law could effectively and safely be enforced withoutconducting a search. (3) whether the search is reasonably conducted (for example, the absence of abuse, malice or coercion). [20] In numerous cases, the courts have confirmed that there are three general reasons for a search incidental to arrest that areconsidered valid. First, to ensure the safety of the police and the public.

Second, to protect evidence from destruction at the hands of thearrestee or others. Third, to discover evidence for use in prosecution of the arrestee. See: Cloutier and Caslake [21] As noted by our Court in Caslake at para 19, a search incidental to arrest must be “truly” incidental to that arrest. In otherwords, the search must be in furtherance of some valid purpose connected to that arrest and not some other unrelated purpose. Forexample, as noted by the Ontario Court of Appeal in Belnavis, an arrest for outstanding traffic fines does not authorize the search of atrunk of the arrestee’s vehicle.

Similarly, our Court of Appeal in R v Bulmer, 2005 SKCA 90, 198 CCC (3d) 363 [Bulmer], concludedthat the arresting officer did not have a valid purpose in searching Mr. Bulmer’s vehicle when that individual had only been arrested onan outstanding warrant for failing to attend court on a charge of an unpaid seat belt ticket. [22] I would like to begin by noting that I found the evidence of both Officers Mostowich and Parenteau to be clear, cogent andcredible. It was apparent to me that the officers were attempting to accurately recall the events of April 17, 2019. Their encounter withMr.

McAdam was dynamic and potentially dangerous. Under the circumstances, their evidence was as consistent and as precise as couldreasonably be expected. [23] In the present case, the officers searched the Toyota for three reasons. First, to determine ownership of the vehicle infurtherance of their investigation. Second, to ensure that the Toyota was not turned over to a civilian if it contained weapons or any otherdangerous items. Third, to find evidence as to why Mr.

McAdam drove the Toyota in a dangerous manner or why was he attempting toevade police (namely, evidence as to a motive). [24] In my opinion, the first two reasons are valid and justified the search that was conducted by the officers. While it is possiblethat the third reason would also have justified the search of the Toyota under the circumstances, in light of my findings on the other twogrounds, I need not decide on this likely more controversial point. [25] To begin with, it should be noted that the search that resulted in the discovery of the ammunition was a superficial search ofthe cab area of the vehicle.

While these items were not in plain sight, they were easily discovered. They were in a pizza bag sitting on theback seat. Ground #1 – Investigation of another potential offence: [26] Officer Parenteau testified that, at the time they approached the Toyota in the back alley, they did not know who owned it.Under the circumstances, the officers had reasonable grounds to suspect that a crime was in progress involving Mr. McAdam and theToyota – namely, possession of stolen property.

In my opinion, the officer had the authority to investigate that offence by havingdispatch search the plates on SGI’s data base and by conducting a superficial search of the interior of the Toyota to look for evidence ofownership. I am satisfied that the officer had the authority to look in the glove box, the centre console and around the seats, including theback seat. While it may not have been reasonable to expect to find evidence of ownership in a pizza bag, it was not unreasonable for theofficer to move that bag in his search of the back seat.

Once moved, the weight and feel of the bag would have provided additionalgrounds – namely, officer and public safety. [27] Defence counsel argued that the Court of Appeal’s decision in Bulmer stands for the proposition that the officers could onlysearch for evidence relevant to the offence for which Mr. McAdam was arrest – namely dangerous driving. Counsel further argues that,once the officers had Mr. McAdam in custody, no further safety risk existed and no further evidence was required from the vehicle

related to his prosecution for that offence. With respect, I disagree. Both Belnavis and Bulmer dealt with different fact situations. More importantly, the Court in Caslake did not place such a narrow restriction on the scope of a search incidental to arrest. Rather, the Court noted that the police have considerable leeway in conducting a search incidental to arrest provided there is a valid objective served by the search – an objection that need only be “connected to the arrest”. [ 28 ] In essence, defence counsel is suggesting that the arrest of Mr.

McAdam collapsed the investigative power of the officers around the singular offence for which he was arrested. I disagree. The officers also had the authority to investigate other potential offences connected to his arrest and arising out of the facts associated with that arrest. In this case, the officers suspected the Toyota may have been stolen and, under the circumstances, that suspicion was reasonable, particularly in light of the fashion in which Mr. McAdam was operating it. It should be noted that the officer did not need to have reasonable and probably grounds to “believe” that the Toyota was stolen.

See: Caslake at para 20 . Rather, a lower standard is applied – namely, only that it was reasonable under the circumstances for the officer to suspect the vehicle may have been stolen and that evidence of ownership might reasonably be expected to be found in the cab of the vehicle. In my opinion, the search of the cab of the Toyota served a valid objective incidental to Mr. McAdam’s arrest – namely, to determine, if possible, the ownership of that vehicle. In my opinion, there was a clear connection between the facts giving rise to Mr. McAdam’s arrest and the subsequent search of the Toyota.

Ground #2 – Public Safety : [ 29 ] I am also satisfied that, for reasons of public safety, the officers had the authority to conduct a superficial search of the cab of the Toyota to ensure that it did not contain anything dangerous before turning it over to the towing company. Mr.

McAdam and his passenger were located in the cab of the vehicle before they were arrested and their dangerous conduct in attempting to evade police would have reasonable lead to the suspicion and concern that something dangerous might have been left behind in the vehicle, such as ammunition, firearms or weapons. [ 30 ] I am also satisfied that both officers held a genuine concern for the safety of persons who may subsequently come in contact with the vehicle, including the tow truck operator. This conclusion is corroborated by the limited nature of the search they conducted.

It consisted of little more than a visual inspection and the vehicular equivalent of a “pat down” search.

In all the circumstances, I am satisfied that valid concern for public safety existed and that the search conducted by the officers was in furtherance of guarding against that risk. [ 31 ] For the foregoing reasons, I am satisfied that the search that was conducted by the officers was also in furtherance of a valid safety objective. iv) Was the search reasonable and justified under the circumstances? [ 32 ] The authority of a peace officer to search incidental to arrest, and the limits placed on that officer in doing so, comes from the common law.

Common law powers are more malleable than those granted by legislation. Simply put, it is up to the Court to define the outer limits of these powers on a case by case basis. [ 33 ] In the present case and for the reasons indicated, I am satisfied that the officers turned their mind to the need to search the Toyota following Mr. McAdam’s arrest and they both felt it was necessary to do so under the circumstances. I am also satisfied the search they conducted was truly incidental to Mr. McAdam’s arrest. I am also satisfied that both officers conducted themselves reasonably and appropriately under the circumstances.

I observed no evidence from which I could infer malice, coercion or abuse on their part. In my opinion, the search represented a reasonable and proportionate use of the police authority to investigate a potential offence, as well as a reasonable and necessary response to a potential threat to public safety.

v) Disposition of Mr. McAdam’s Charter Application [ 34 ] I find no reason to conduct a Grant analysis. [ 35 ] For the foregoing reasons, Mr. McAdam’s Charter application is dismissed. All evidence tendered during the voir dire is admissible at trial.

vi) Was Mr. McAdam in possession of prohibited ammunition? [ 36 ] Mr. McAdam did not dispute and I am satisfied beyond a reasonable doubt that he had possession and control of both the .22 caliber ammunition and the .410 caliber ammunition on April 17, 2019. DISPOSITION [ 37 ] As a consequence, I find Mr. McAdam guilty of two counts of possession of prohibited ammunition (without authorization) contrary to section 91(2) of the Criminal Code – being counts 7 and 8 of Information 991087791. Dated this 6 th day of September, A.D. 2019, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J