R. v. Hickey Date:, 2013 BCPC 328

Citation: R. v. Hickey Date: 20131209 2013 BCPC 0328 File No: 55699-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WADE WALLACE HICKEY REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE CUTLER Counsel for the Crown: F. Jensen, Q.C. Counsel for the Accused: B.T. Juriloff Place of Hearing: Chilliwack , B.C. Date of Hearing: May 7, October 2, 31, 2013 Date of Judgment: December 9, 2013 [ 1 ] THE COURT: The accused is before the court pursuant to a one count information alleging that on March 25, 2012 he

unlawfully possessed a controlled substance, to wit: cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act. [ 2 ] The cocaine the Crown alleges was in the possession of the accused, and seeks to have admitted in evidence, was found in a backpack located in a vehicle driven by the accused and in the console of the same vehicle.

The cocaine was found by a police officer shortly after the accused had been apprehended by the officer pursuant to the Mental Health Act . [ 3 ] The accused’s position is that the evidence of the cocaine is inadmissible pursuant to section 24(2) of the Charter of Rights and Freedoms. The accused contends the discovery of the cocaine occurred only after, and as a result of, violations of the accused’s Charter rights as protected by

section 9 (arbitrary detention) and

section 8 (unreasonable search) of the Charter. The accused maintains that the police had insufficient grounds to apprehend him under the Mental Health Act and that the search of the accused’s vehicle which followed was unlawful. [ 4 ] The court entered into a voir dire to hear the evidence relating to the alleged Charter breaches in order that the court could assess the alleged breaches to determine if the evidence of the cocaine ought to be admitted in the trial. These are my reasons. Evidence in the Voir Dire

i) police information about the accused [ 5 ] The evidence in the voir dire establishes that early on the morning of March 25, 2012 the accused was observed by a commercial transport safety inspector to be parked at a weigh scale station near Hope, British Columbia. The accused, upon observing the inspector, proceeded to back up his vehicle and, without any provocation, stated to the inspector “Fuck you anyways". [ 6 ] The specifics of this incident, including the description of the accused and his vehicle, were passed on to the local RCMP.

The RCMP conducted patrols throughout the day in search of the accused and his vehicle without success. [ 7 ] Later in the afternoon the RCMP received information from both the accused’s mental health nurse and his girlfriend that the accused had been experiencing mental health problems and was not coping well. The information indicated that the accused’s girlfriend had been in contact with the accused earlier that day and the accused had indicated that he was experiencing suicidal ideations.

The information further indicated that the accused had recently been a patient in a mental health hospital and had been apprehended under the Mental Health Act on March 18, 2012, only a week earlier. The information also indicated that the accused may be a danger to himself, the public or police officers. [ 8 ] Sometime after four o'clock in the afternoon the RCMP located the accused in his parked vehicle at a rest area not far from the weigh scale where he had been seen earlier in the day.

Due to the concerns raised by the information provided to the police, it was determined that prior to approaching the accused, the police would ensure the area was properly secured and there was appropriate backup support for officers approaching the accused. One of the first officers on the scene had set up a position whereby he was able to observe the accused and the accused’s vehicle while awaiting the tactical arrangements to be completed. Some minutes later the accused’s vehicle lights were illuminated and the vehicle started to move toward the exit.

At this time, the officer activated his emergency equipment and pulled up in front of the accused’s vehicle. The accused stopped his vehicle and turned the vehicle lights off. ii) apprehension of the accused [ 9 ] The officer exited his vehicle and approached the accused while the latter remained in the driver seat of his vehicle. The officer asked the accused to produce his driver’s license and the keys to the vehicle. The accused complied with the officer’s request. The officer observed that the accused had some growth on his face, looked “rough”, and appeared sweaty.

The officer was of the opinion that the accused was overly quiet given the circumstances of what was occuring. [ 10 ] The officer was aware of all the information that had been provided to the police from the various sources. Although the accused was cooperative with the officer and appeared to be coherent, the officer was of the view that the accused ought to be apprehended under the Mental Health Act based on his observations and the information he had been provided.

The officer advised the accused that he was “under arrest” pursuant to the Mental Health Act and placed the accused in handcuffs. [ 11 ] The officer then placed the accused in the police vehicle of one of his fellow officers. The accused was not searched at this time. The intention was to transport the accused to a mental health facility in Hope which was approximately a 10 to 15 minute drive.

According to the evidence the standard police practice was for medical professionals to assess the accused at the facility to determine whether he should be detained or released. [ 12 ] The officer indicated in his evidence that he had often dealt with troubled persons under the Mental Health Act and these individuals could be unpredictable, explosive, and escape risks.

Other officers had arrived approximately five minutes after the initial interaction with the accused. iii) the search [ 13 ] As the accused was to be transported to a mental health facility, the officer asked the accused if the accused needed anything from the vehicle. The accused replied that he did not need anything from his vehicle. [ 14 ] The inside of the vehicle was cluttered with various items. The officer indicated that he could see items in the accused’s vehicle including a wallet, a cell phone, and a jacket. He thought these items ought to be collected for the accused.

Despite the accused’s wishes, the officer decided that he would collect the wallet, cell phone and jacket and place them in a backpack which the officer observed in the backseat of the accused’s vehicle. [ 15 ] When the officer picked up the backpack he had a quick look inside the backpack to ensure there were no items that could be used as a weapon. Inside the backpack, he observed a shiny small container that read "wax" on the outside. The officer stated in his

evidence that he then became suspicious that there may be drugs in the container so he unscrewed the cap and therein found crack cocaine. [ 16 ] Once the officer had discovered the drugs in the backpack he returned to the accused and arrested the accused under the Mental Health Act and the Controlled Drugs and Substances Act . It was at this time that the accused was provided information with respect to his Charter rights.

The accused declined the right to contact counsel and was then taken away to the mental health facility by another officer. [ 17 ] Officers then searched the accused’s vehicle wherein more cocaine was found in a console between the seats. The evidence indicated that the officers did not obtain a warrant to search the accused’s vehicle as none of the officers thought it was necessary. [ 18 ] The cocaine found in the canister located in the accused’s backpack weighed approximately 25.9 grams.

The cocaine found in the console of the accused’s vehicle weighed .5 grams. [ 19 ] When the accused was assessed at the mental health facility later that day it was determined by medical professionals that he ought not to be released due to his mental state. Issues [ 20 ] The accused raises two Charter violations on this voir dire: 1) whether the officer acted improperly in exercising his authority to apprehend the accused under the Mental Health Act and violated the accused’s right not to be arbitrarily detained under

section 9 of the Charter ; and 2) if the apprehension was lawful and complied with the powers afforded an officer under to the Mental Health Act , whether the officer’s search of the accused’s vehicle and the items found therein was reasonable and consistent with the rights of the accused guaranteed by

section 8 of the Charter . [ 21 ] If I find the accused’s Charter rights were violated, I must then consider section 24(2) of the Charter to determine if the impugned evidence ought to be admitted in the trial of the accused. Lawfulness of the Apprehension [ 22 ] Sadly, the apprehension of persons by the police pursuant to the Mental Health Act has become a necessary and valuable tool commonly employed by the police to protect citizens from causing harm to themselves or others. As with any police authority, it must be exercised lawfully and comply with the Charter .

To this end, police officers must be aware of the extent of their authority and exercise same properly. [ 23 ] Counsel for the accused submits that the accused’s right not to be arbitrarily detained as guaranteed by

section 9 of the Charter was violated by the officer who apprehended the accused.

This submission contends that based on all the information the officer had, particularly his observations of the accused immediately prior to the apprehension, there was insufficient grounds for the officer to exercise his authority to apprehend the accused pursuant to section 28 (1) of the Mental Health Act . [ 24 ] Counsel for the accused submits that the officer's evidence indicated that when the officer confronted the accused in the rest area, there was nothing out of the ordinary with regard to the accused’s behavior and the accused appeared responsive and coherent when interacting with the officer.

There was no aberrant behavior and the accused cooperated throughout with the officer.

It is the position of the accused that the officer’s observations were insufficient to satisfy the officer that the accused was acting in an abnormal manner or appeared to have a mental disorder. [ 25 ] For reasons explained below, I am satisfied that based on the officer's personal observations of the accused and the totality of the information he had received, the officer properly exercised his authority pursuant to the provisions of the Mental Health Act and that the accused’s apprehension was lawful. [ 26 ] The authority of the officer to apprehend the accused in this matter is set out in

section 28 of the Mental Health Act which provides that a peace officer may apprehend a person in the circumstances provided for in that section.

Section 28 is headed “Emergency Procedures” and provides: 28

(1) A police officer or constable may apprehend and immediately take a person to a physician for examination if satisfied from personal observations, or information received, that the person (

a) is acting in a manner likely to endanger that person’s own safety or the safety of others, and (

b) is apparently a person with a mental disorder. [ 27 ] Under s. 1 of the Mental Health Act a person with a “mental disorder” is defined as: ...a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (

a) to react appropriately to the person’s environment, or (

b) to associate with others . [ 28 ] It is important to note that

section 28 only permits an officer to apprehend an individual where the officer is satisfied that the individual is acting in a manner likely to endanger themselves or others, and it is apparent the individual has a mental disorder as defined in

section 1 of the Mental Health Act . The provision provides that the officer may make this determination based on" personal

observations, or information received". The only logical

interpretation of the provision is that the officer when conducting his assessment of the person is to consider both his personal observations and any information he may have received. Interpreting the phrase as disjunctive, requiring the officer to rely on personal observations “or” information received, would result in absurd applications of the police powers. [ 29 ] Counsel for the accused maintains that despite the significant alarming information the officer had been provided, the officer’s observations of the accused ought to have allayed any concerns for safety or of a mental disorder.

Counsel for the accused relies heavily on the case of R. v. Milino , 2009 BCSC 1802 , wherein the court found that officers had improperly exercised their authority under

section 28 of the Mental Health Act and acquitted an accused who had been charged with escaping lawful custody and assaulting a peace officer engaged in the execution of their duty. [ 30 ] It must be emphasized that the assessment in these cases is very much fact specific. The court must assess the officer’s conduct in apprehending the individual by considering all the information and observations available to the officer and determine if the totality of the circumstances, both subjectively and objectively, warranted an apprehension in the particular situation confronting the officer. [ 31 ] The facts in R. v.

Milino differ considerably from the situation in which the accused was apprehended in this matter. In R. v. Milino the police had received information from a concerned citizen indicating that the accused was possibly suicidal. Based on that information the police attended at the accused’s residence. When there was no response to the police repeatedly knocking on various doors to the residence, the police entered the residence through an unlocked patio door. After searching the main floor of the residence the police officers proceeded upstairs and found the accused in her bed, apparently asleep.

The officers noted a heavy odor of liquor on the accused’s breath and she seemed somewhat confused with slurred speech and red eyes. The accused admitted to the officers that she was intoxicated and also admitted that she had been suicidal in the past but indicated that she did not believe herself to be suicidal at that point. The officers then asked the accused if she would like to go to the hospital to which she responded affirmatively but first wished to speak to her sister. The accused was given the opportunity to speak to her sister on the telephone.

After the accused had spoken to her sister the officer also spoke to the sister and was advised by the sister that she was concerned for the accused’s well being and that the accused had been diagnosed as bipolar and was untreated for that condition. The accused’s sister agreed that it would be in the accused’s best interest to go to the hospital. After the telephone conversation was concluded the officer conveyed to the accused the information he received from her sister. At this time the accused became uncooperative and indicated that she no longer was willing to go to the hospital.

The evidence of the officers in that case indicated that they believed the accused was a danger to herself and accordingly they apprehended her as she appeared at that time very emotional and erratic. [ 32 ] It is my view that the facts in the case before me are quite distinct from those set out in the R. v. Milino decision. The context in which the officers engaged the individuals is in no way comparable. In R. v. Milino the officers entered the private dwelling home of the accused.

When the officers found the accused in her bedroom, she was inebriated but conscious “without objective evidence of a risk to her safety or the safety of anyone else". The officers engaged Ms. Milino for almost 30 minutes in her residence, observing nothing dangerous.

Many of the indicia relied upon by the officers for the apprehension were consistent with someone who was impaired by alcohol. [ 33 ] As will be addressed in more detail below, in the case at bar the accused was found in a public place close by to where he had earlier displayed bizarre and hostile behavior to another person and the officer had recent compelling reliable and credible information from numerous sources, including medical professionals, with respect to the accused current precarious mental state.

While the observations of the accused by the officer were not glaringly indicative of a mental disorder, they were sufficient to meet the threshold for a lawful apprehension when coupled with the information the officer had been provided. [ 34 ] In, R. v. Milino , Mr. Justice Chamberlist underlined the necessity for an officer to distinguish between someone who may have a history of mental illness and a person with a mental disorder as that term is defined in the Mental Health Act . In analyzing the case on

summary conviction appeal, Chamberlist J. concluded at paragraph 52 as follows: What is important in coming to my conclusion is that what is relevant to the issue is what the attending officers knew, observed and reasonably ought to have known in the context of the evidence they provided at trial. [ 35 ] The officer had an obligation to take into account his observations and all the information available to him in determining whether he was satisfied the apprehension was necessary. [ 36 ] I accept counsel for the accused’s position that, aside from the accused’s disheveled and sweaty appearance and unusually quiet disposition for the situation he was confronted with, the observations of the accused made by the officer immediately before the accused’s apprehension were not overly alarming.

However these brief observations must be considered in the context of the totality of the information the officer possessed. [ 37 ] The officer had been provided credible and reliable information relating to recent activity of the accused indicating the accused was suffering from a disorder of the mind and required treatment as he represented a danger to himself and others.

This included information which had been provided from the accused’s mental health nurse who had been in contact with the accused that day and was of the opinion that he was in a paranoid state, was a danger to himself and the public, and had days earlier been in a hospital due to a mental disorder. As well, the accused’s girlfriend had been in contact with the accused earlier that day at which time he had indicated to her that he was suicidal. This constituted both credible and reliable information with respect to the accused mental state on the day in which the officer engage the accused.

Moreover, it is important to note that these individuals had contacted the police due to their concern for the accused’s self-admitted current mental state and the need to ensure he received immediate medical attention. [ 38 ] The officer also had independent information of an interaction earlier in the day between the accused and an enforcement officer in which the accused acted in a bizarre and unprovoked hostile manner towards a complete stranger.

This bizarre interaction occurred earlier in the day in the vicinity of the rest area where the accused, oddly, was located by the police at the time of his apprehension. [ 39 ] The information provided the officer with extremely strong grounds to believe the accused met the definition of “person with a

mental disorder" under

section 1 of the Mental Health Act. The information indicated the accused had a disorder of the mind thatrequired treatment, as confirmed by his nurse, which seriously impaired his ability to react appropriately to his environment, or associatewith others, as confirmed by his communications with his girlfriend and his bizarre interaction with the enforcement officer a short timeearlier. [40] The officer’s observations of the accused being disheveled, sweaty, and overly quiet given his interaction with the police, wereperhaps in themselves insufficient to warrant an apprehension.

However the officer’s task and duty was not to consider his observationsin isolation but to assess the situation given all the information he had.

The officer’s observations were, if not confirmatory of theinformation indicating the accused was in a precarious mental state, were of such a nature to justify an apprehension of the accused whencoupled with the information provided. [41] The officer properly assessed the entire constellation of factors he was aware of and determined, properly in my opinion, he wassatisfied from his personal observations and the information he had received that the accused was acting in a manner likely to endangerhis own safety or the safety of others, and was a person with a mental disorder which required treatment and was seriously impairing hisability to react appropriately to his environment and associate with others.

A reasonable person in the position of the officer, with theinformation he had, coupled with the observations he had made, would have reached the same conclusion. [42] The officer is not a medical professional.

He believed that based on his observations and all the information he had beenprovided that it was critical that the accused be apprehended in order that a medical professional, trained in assessing mental disorders,could evaluate the accused and determine if immediate treatment was necessary. [43] I'm satisfied, based on the information the officer had been provided and his observations, that the officer acted properlypursuant to his authority to apprehend the accused, and indeed would have been derelict in his duties had he allowed the accused todepart. [44] I cannot escape the conclusion that the authority bestowed on the police pursuant to

section 28 of the Mental Health Act isprecisely for the purpose of allowing an officer to apprehend an individual in the accused’s situation. Accordingly, I conclude that theaccused’s apprehension was lawful and proper. Lawfulness of the Search [45] Counsel for the accused submits that, regardless of the lawfulness of the apprehension of the accused, the subsequent search ofthe accused’s backpack, the canister found therein, and the console in the vehicle was unlawful and violated the rights guaranteed theaccused pursuant to

section 8 of the Charter. [46] There was no issue taken with the proposition that the accused had a reasonable expectation of privacy in his personalbackpack. The Supreme Court of Canada has found that "backpacks are the repository of much that is personal" (R. v. A.M., 2008 SCC19). While it is acknowledged that the expectation of privacy in a vehicle is diminished, it does not follow that there is necessarily areduced expectation of privacy with respect to items found in the vehicle (R. v. Caron, 2011 BCCA 56).

In the circumstances of thiscase, the accused had a reasonable expectation of privacy in his backpack and the canister located therein. [47] The central issue with respect to the lawfulness of the search is whether the search by the officer of the backpack and thecanister found therein was reasonable in the circumstances. [48] As the search in this case was conducted without a warrant it was prima facie unreasonable and the Crown has the burden ofestablishing on the balance of probabilities that the search was reasonable.

A search is reasonable if it is authorized by law, if the lawitself is reasonable, and if the manner in which the search was carried out was reasonable. [49] The law recognizes a number of circumstances where a search absent a warrant may be justified. Some of these include a searchincidental to arrest, a search upon detention for officer safety, and a search in exigent circumstances. Ultimately, the court's decisionmust find a balance between privacy interests and the state's interest in law enforcement. [50] The authority to apprehend the accused was provided by the Mental Health Act.

The legislation does not explicitly provide anypowers authorizing a police officer to search the belongings of an individual who has been apprehended pursuant to that enactment.Counsel have been unable to find any authority, either codified or in the jurisprudence, which authorizes the search of the accusedbelongings in this case. [51] The Crown in this case urges the court to find that there is authority to search incidental to the apprehension of the accused.

TheCrown submits that similar to the powers of a police officer to search incidental to arrest or a detention, as accepted by the SupremeCourt of Canada in the decisions of R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 and R. v.

Mann, 2004 SCC 52, this courtshould accept the proposition that the officer had certain incidental powers to search consistent with the officer’s ability to properlyperform his duties and the authority provided him under the Mental Health Act. [52] The Crown submits that the officer’s authority and rationale to search in this case was for the purpose to ensure officer safety.The Crown submits it is analogous to the well-accepted police authority to search an individual who has been detained or arrested whenthere are concerns for officer safety.

I pause here only to note that the authority to search an individual is considerably restricted when anindividual is merely detained as opposed to arrested (R. v. Mann, supra). This is very much due to the context in which a detentionoccurs, and its purpose.

A detention is usually as a result of a reasonable suspicion of criminal activity and may only be for a shortduration. [53] It is reasonable that upon apprehension of an individual pursuant to the Mental Health Act, the officer ought to be affordedgreater search powers than those afforded an officer who has merely detained a suspect pursuant to a criminal investigation. The latterallows the officer to perform a quick and relatively nonintrusive ‘pat down’ search to ensure there are no items in the possession of thedetainee which may be employed to injure the officer during their brief interaction.

In such cases there needs to be reasonable grounds,

both subjective and objective, to support the officer's decision to conduct a protection safety search. [54] As it is likely that the individual apprehended pursuant to the Mental Health Act will be in the custody of the officer for aconsiderable period while being transported to a medical facility, and perhaps throughout the admissions procedure, the situation issimilar to an arrest situation where there is expanded search authority permitted for officer safety.

Accordingly, in order to ensure theofficer and others who may come in contact with the apprehended person are not placed at risk, it would seem appropriate and prudentthat the officer be afforded the authority upon apprehension to conduct a search of the apprehended person and any items in hisimmediate possession which he may have access to during the period of the apprehension.

Such an approach would seem to bereasonable and necessary given the context of the lawful apprehension, which is the belief that the apprehended person poses a risk ofharm to himself or others due to a mental illness. [55] However, when one reviews the principles discussed in permitting an officer the authority to search for officer safety anindividual who is detained or arrested, there is little if any support for the proposition that an officer, upon apprehending a personpursuant to the Mental Health Act, should also have authority to search the immediate vicinity; in this case the accused’s vehicle and thebackpack found therein. [56] It must be underlined that the authority to apprehend a person under the Mental Health Act exists for the sole purpose ofauthorizing a peace officer to ensure that a person with an apparent mental disorder, who may be a danger to themselves or others, beimmediately taken to a physician for examination.

The authority is separate and distinct from the traditional and more common authorityexercised by the police when engaged in a criminal investigation.

The purpose of the power to apprehend a person with a mental disorderis not, and should not be permitted to be, authority or a license for the police to engage in investigative activities including searcheswhere there exists a reasonable expectation of privacy on the part of the person being apprehended. [57] I am not aware of any reason that would support a search of the person’s immediate vicinity for evidence similar to the scopeafforded an officer who has arrested an individual on reasonable grounds of committing a criminal offense.

In this case, there wereinsufficient grounds to search for evidence of an offense. There were no grounds to believe an offense had been committed and there wasno reasonable prospect of discovering evidence relating to an offense (R. v. Majedi 2009 BCCA 276). [58] I don't believe the Crown proposes such a wide scope to search be provided to an officer who apprehends a person pursuant theMental Health Act. The position advanced by the Crown is that the officer had authority to search the vehicle and items found therein toensure officer safety, and the safety of others.

I'm unable to accede to such a proposition in this case. [59] The officer's evidence was that despite the accused indicating that he did not want his cell phone or wallet, the officer thought itprudent to retrieve same from the accused’s vehicle in order to have these items at the hospital with the accused. Simply removing theseitems from the accused‘s vehicle may have been a prudent and helpful approach on the part of the officer. The securing of the accused’scell phone and wallet by the officer, if characterized as a search and or seizure, was a minor interference with the accused’s privacyinterests.

Both items were in plain view and the officer was securing the items for the benefit of the accused as the accused may havehad need of these items at the hospital where he was being taken. Obviously, had the officer gone further and searched the contents ofthe cell phone or the wallet the accused’s privacy interests would have been significantly compromised. There is no evidence that theofficer searched through these items.

The focus of the accused’s Charter argument is not directed at the officer's decision to remove thewallet and cell phone from the accused’s vehicle in order that it would be with the accused when he attended at the hospital. [60] The search of the accused backpack however was a significantly bolder intrusion by the officer. The officer provided no reasonfor securing the backpack except for providing a convenient means to transport the items of the accused. The officer had no lawfulauthority to open or search the backpack and in so doing breached the accused’s privacy rights as guaranteed under

section 8 of theCharter. [61] I am troubled by the officer’s decision to look inside the accused backpack, and am particularly concerned with the removal andopening of the canister found therein. It was not for the officer to compromise the accused’s privacy interest in the contents of hisbackpack in an attempt to employ the backpack as a means to carry personal items of the accused, particularly after the accused had saidhe did not want the items.

While the officer may have believed he was looking after the accused’s best interests in securing these items,the officer had to be mindful of the accused’s privacy interests in his backpack and the canister found therein. [62] Even if it was permissible for the officer to search the backpack to ensure no weapons were contained therein and confirm itcould be safely used to transport the accused’s belongings, I am unable determine any possible reason pertaining to safety issues thatwould permit the officer to open the canister in which the cocaine was found.

The officer’s testimony did not indicate the canister hadbeen opened due to safety concerns. Nor does the evidence suggest there were any safety concerns. Moreover, if upon observing thecanister in the backpack, the officer had any safety concerns with respect to its contents, he should have either placed the backpack backin the car, or alternatively, he could have removed the canister from the backpack and placed it in the car and continued to use thebackpack for the purpose initially intended.

Presumably had the officer found an item in the backpack which represented a safety risk,such as a hammer, the officer would've placed the backpack back in the car or removed the hammer and placed it in the car. [63] The officer's evidence was that when he saw the canister at the bottom of the backpack he became "suspicious" that the canistermight contain illicit drugs and he proceeded to open the canister. His actions in searching the canister were not related to any lawfulauthority or purpose under the Mental Health Act.

There was no evidence indicating the canister raised safety concerns for the officer. [64] The law relating to protective searches pursuant to investigative detention provides a power to search limited to what isnecessary to ensure the safety of the police and the public in the immediate area. The officer must have an honest belief, on reasonablegrounds, that his or her safety or the safety of others is at risk (R. v. Crocker (2009), 2009 BCCA 388 , 247 CCC (3d) 193(BCCA)). Applying the same principles, there was no need to open the canister for safety concerns.

The accused was handcuffed in thepolice vehicle and had no access to the canister had it simply been left in the car. I am unable to conclude that the search of the canisterwas necessary in this case to ensure the safety of the officer or others. [65] The officer’s suspicion of illicit drugs in effect triggered a criminal investigation of the accused leading to the search of the

canister. There is nothing improper with the officer commencing such an investigation concurrent with performing his functions under the Mental Health Act . However the criminal investigation must be performed lawfully and according to the proper standards established by the jurisprudence. This obviously includes the officer’s authority to properly conduct the search within the context of a criminal investigation. The officer had insufficient grounds to conduct the search he embarked upon. The officer lacked reasonable grounds to believe an offense had been committed or that the canister contained drugs.

There was no authority to open the canister based on the officer’s mere suspicion. The canister was found in the accused’s backpack in circumstances where the accused was entitled to considerable privacy interests in both the backpack and the canister. The officer had no lawful authority in the circumstance to compromise these privacy interests. [ 66 ] In the result, I am not satisfied the officer’s intrusion into the accused’s backpack and, more troubling, the opening of the canister found therein was reasonable.

The accused clearly had a reasonable expectation of privacy with respect to both the contents of the backpack and the canister found therein. The opening of the canister served no legitimate purpose attributable to the accused’s apprehension, there was no evidence of a safety concern, and the officer lacked the requisite grounds to search the canister pursuant to a criminal investigation. The search of the backpack and the canister discovered therein was unreasonable and a violation of the accused’s right to be secure from unreasonable search and seizure as protected under

section 8 of the Charter . [ 67 ] The search of the console of the accused’s vehicle that followed the arrest of the accused was also unlawful. The evidence was that the police only searched the console as a result of cocaine being found in the canister and the accused being arrested for possession of cocaine. The authority to search the console of the accused’s vehicle was dependent on a lawful arrest of the accused for possession of cocaine. The arrest of the accused was not lawful as it was the result of an unlawful search by the officer of the canister found in the backpack. Accordingly, I find the search of the console by the police was also a violation of the accused’s

section 8 Charter right. Section 24 (2) analysis [ 68 ] Having concluded that the accused’s Charter rights were violated, I must pursuant to section 24(2) of the Charter determine whether the drugs found in the accused’s vehicle as a result of the Charter violations ought to be admitted as evidence at the trial of the accused. [ 69 ] The analysis focuses on three areas of inquiry:

i) the seriousness of the conduct infringing the rights; ii) the impact on the Charter protected interests of the accused; and iii) society’s interest in an adjudication of the charges on the merits. The overarching approach of the section 24(2) analysis requires that the court consider the totality of the circumstances with a view to maintaining the long-term integrity of the justice system and the public's confidence in same.

i) seriousness of the conduct infringing the right [ 70 ] The Supreme Court of Canada in R. v Harrison , 2009 SCC 34 , set out the applicable considerations for the court when assessing the seriousness of the Charter violation: "At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself?

This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern. (para 22) [ 71 ] In assessing the violation of the accused’s Charter rights which I have found to have occurred in this matter, I view the unlawful search of the accused’s backpack to be a significant breach.

The officer’s conduct was contrary to well established law relating to police search powers. Accepting that the officer may have had good intentions when accessing the accused’s backpack, the officer’s search of the canister was divorced from any duties or responsibilities the officer had under the Mental Health Act . The officer had a suspicion the canister might contain drugs constituting a criminal offence. He decided, based on this mere suspicion, he would intrude into an area in which the accused was entitled to privacy.

I view the officer's conduct of searching the backpack and opening of the canister belonging to the accused as serious. As indicated earlier, handbags, purses, backpacks, and similar items possessed by individuals attract a high degree of privacy. Personal property attracting high privacy interest are often carried in these bags by individuals moving from one place to another.

A backpack by its very nature is likely to contain personal items of the accused engaging significant privacy interests. [ 72 ] An officer should know that intrusion into such a personal area is an invasion of the individual’s privacy and ought not to occur without proper justification pursuant to lawful authority.

While the decision to employ the backpack as a convenient means to transport items of the accused may have seemed to the officer to be a common sense approach, intrusion into the backpack and the opening of the canister found therein on the mere suspicion it could contain illicit drugs was a serious violation of the accused privacy interests. ii) impact on the Charter protected interests of the accused [ 73 ] The more serious the impact is on the rights of the accused the more likely it is the impugned evidence will be excluded ( R. v. Harrison , supra).

Citizens expect, and are guaranteed, that their secreted personal items kept in handbags or cases of various varieties while they are in transit will not be subjected to a police search based on a mere suspicion. As indicated, backpacks and similar items carried by individuals attract a high degree of privacy. This is a well accepted principle of our law, and fundamental to daily activities of citizens in a free and democratic society.

I find that the accused had a high expectation of privacy in the contents located in his personal backpack and the canister found therein. [ 74 ] It is of some import that had the officer acted properly and complied with established Charter standards the drugs would not have been discovered. Once the canister had been discovered there was no need, nor grounds, for the officer to explore its contents. As indicated earlier the officer should have left the canister in the backpack and placed the backpack back in the vehicle. Alternatively he could have removed the canister and placed it back in the vehicle.

If not for the Charter violation, the drugs would not have been

discovered. [ 75 ] I view the impact of the accused’s privacy interests as serious. iii) society’s interest in an adjudication on the merits [ 76 ] The third stage of the section 24(2) analysis requires a consideration of whether the truth seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence. The jurisprudence indicates that the court should consider the seriousness of the offense and the public's desire for the matter to be heard on its merits.

As well, the court’s assessment should include factors such as the reliability of the evidence and its importance to the Crown's case. [ 77 ] Cocaine is a very harmful drug to both the user and the community at large. The plague on our communities caused by illicit drugs, including cocaine, is serious, and there is a public interest in pursuing those involved in such illicit activity, and enforcing the laws of Parliament.

Simple possession of cocaine, while not the most grievous of offences coming before the court, is serious. [ 78 ] The evidence discovered in the canister and the console as a result of the Charter breach is highly reliable and critical evidence to the Crown's case which weighs heavily towards admitting the evidence. [ 79 ] On the other hand, the court must consider the public interest in ensuring citizens’ privacy rights are respected, particularly when the police are exercising extraordinary powers in regards to vulnerable people with mental health issues.

In assessing society’s interest in an adjudication of the charge against the accused, the court must consider the context in which the charges arise. The accused came to the attention of the police pursuant to concerns about his mental health. The accused was apprehended pursuant to the Mental Health Act based on a fear that he may hurt himself or others. There was no suggestion he had been involved in any unlawful activity. [ 80 ] The Mental Health Act provides extraordinary powers permitting the police to deprive a person of their liberty.

One’s liberty may be taken away based on a fear of future conduct without the citizen having committed any unlawful acts. The court, and the police, must be vigilant to ensure that the extraordinary powers bestowed on the police by the Mental Health Act are not abused or exercised in a manner which could further compromise a person’s liberty and privacy interests. In my view, society has an extremely high interest in ensuring the powers afforded police officers under the Mental Health Act are restricted to the enactments intended purpose.

Police conduct when engaging those powers must be restrained and not employed in a manner which would further compromise the citizen’s liberties. [ 81 ] As indicated, possession of cocaine is not a trivial offence and the public has an interest in the court conducting a trial and performing its truth seeking function in order that there be a determination of the prosecution on the merits. However in assessing the entire circumstances of this matter and the context in which the investigation unfolded, the section 24(2) analysis does not favour admission of the evidence to permit an adjudication of the allegations.

Police officers must understand that when engaging their powers provided by the Mental Health Act , they must proceed cautiously and with restraint to ensure the deprivation of a person’s lawful rights and liberty interests is no greater than necessary to achieve the objectives of the Mental Health Act .

It is fundamental that well- established Charter standards be observed by police agencies and their members when exercising their authority under the Mental Health Act . [ 82 ] After considering the three areas of inquiry established by the jurisprudence, addressing section 24 (2) and all the circumstances of this case, I must conclude that admitting the evidence in this case would bring the administration of justice into disrepute.

The benefits of admitting the impugned evidence are outweighed considerably by the need for the court and the administration of justice to disassociate itself from excessive police conduct when enforcing the provisions of the Mental Health Act . [ 83 ] Excluding the evidence is not intended as, nor is it, a means to punish the police. The purpose of this exercise is to protect the reputation and integrity of the administration of justice.

The court must focus on the long-term implications for the repute of the administration of justice and, in my view, must dissociate itself from excessive police conduct in this area. I believe informed members of the public would be troubled by the search conducted by the officer. The public's concern would be compounded if the court were to permit the admission of the cocaine into evidence at the trial of this matter.

To allow the admission of evidence obtained by such improper and unlawful police conduct would not only associate the court with such activity but run the real risk of condoning police conduct which reaches beyond the scope of the extraordinary powers provided by the Mental Health Act in situations where vulnerable persons are apprehended. The long-term goal of ensuring police officers understand their limited powers under the Mental Health Act and exercise same properly outweighs society’s interest in the adjudication of this matter on its merits ( R. v. Pilon , 2012 ONSC 1094 ). [ 84 ] To paraphrase in R. v.

Harrison, supra , the price paid by society for an acquittal in these circumstances is outweighed by the importance of ensuring the police approach investigations involving the Mental Health Act with extreme sensitivity, being mindful of the scope of their powers and ensuring their duties and responsibilities are performed in a manner consistent with established Charter standards. [ 85 ] In my view, admission of the evidence obtained pursuant to the unlawful police search in this case would bring the administration of justice into disrepute.

Accordingly the cocaine located by the officers subsequent to the lawful apprehension of the accused will not be admitted at the trial. ________________________ R. Cutler Provincial Court Judge