R. v. Squires, 2016 NLCA 54

Her Majesty the Queen (appellant) v. John Peter Richard Squires (respondent) (15/27) Indexed As: R. v. Squires 2016 NLCA 54 1 C.A.N.L.R. 101 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Welsh, Rowe, Barry and Hoegg JJ.A. October 17, 2016

Summary: The respondent, Mr. Squires, was acquitted of a number of firearms offences after the Provincial Court Judge allowed his application to exclude evidence under section 24(2) of the Charter , including a gun and ammunition seized from Mr. Squires’ vehicle, following a finding that Mr. Squires’

section 8 and 9 Charter rights were breached when the police located the gun and ammunition in his vehicle following an interaction, during which police instructed him to lay on the ground at gunpoint and subsequently handcuffed him. The Crown appealed. Held: Appeal allowed, new trial ordered (Rowe J.A. concurring, Welsh J.A. dissenting). Green C.J.N.L. (Barry and Hoegg JJ.A. concurring): The standard of review of the questions raised on appeal concerning the validity of the detention is correctness. The only detentions prohibited by

section 9 of the Charter are “arbitrary” detentions. An investigative detention carried out in accordance with the common law power of detention will not generally be considered arbitrary. The trial judge, in determining whether there was justification for an investigative detention, appears to have applied a standard that was more akin to the standard of reasonable grounds for an arrest. The standard to be applied to justify investigative detention is considerably lower.

When investigation subsequent to a tip, it is not necessary that the police have a subjective belief in the accuracy of the information at the time of commencing an investigation or that, at these early stages, there need be any objective corroboration of the information suggesting the need for investigation. That said, the right and duty to investigate does not automatically imply a right to detain or use force short of arrest. The degree of detention that is justifiable in pursuance of the investigation will depend on a view of the totality of circumstances.

At the point of detention, the officer must have reasonable grounds to suspect that in all the circumstances the targeted person is connected to a particular crime and that such detention is necessary. The police used excessive force in effecting the detention, and it was therefore unreasonable. Given the extent of the risk, the nature of the stop should be no more intrusive of liberty interests than is reasonably necessary to address the risk. An investigative detention should not be allowed to become a de facto arrest.

The duration and nature of the detention must be tailored to the investigative purpose of the detention. Handcuffing and other forms of physical restraint and confinement may be necessary in an investigative detention, but generally that should be the exception rather than the rule. The use of force such as pointing a weapon, ordering the suspect to the ground, handcuffing and confining in a police vehicle will usually be regarded as a de facto arrest. Here, the degree of force used and the intrusion into Mr.

Squires’ liberty was not, at the time when police initially encountered him, necessary to protect the officer or public safety or to further the investigation which had been activated by the tip that had been received or the initial observations in the parking lot. What began as a lawful detention became unlawful when excessive force and unnecessary detention methods were employed. The detention became arbitrary and was therefore a breach of

section 9 of the Charter . As for

section 8, a search will not be regarded as unreasonable if it is made incidental to a lawful arrest or investigative detention and the nature of the search is reasonable in the circumstances. The law permits police officers to conduct minimally intrusive safety searches which must still generally be based upon lawful actions of the police such as a lawful arrest or a lawful investigative detention. Thus, if a safety search is conducted incident to a detention that is arbitrary under

section 9 , the search will be regarded as an unreasonable search in violation of

section 8 . While the Supreme Court of Canada has decided that, in exigent circumstances or circumstances of an imminent threat, a search for weapons based on safety concerns does not necessarily have to be incident to either a lawful arrest or lawful detention, this presupposes that the actions of the police prior to the search are otherwise lawful. The police cannot, through unlawful conduct, create a circumstance said to justify a safety search of an individual. Accordingly, the police in this case could not justify a search as being incident to a lawful detention.

However, the trial judge erred in finding that there was a search of the vehicle at all. Although a driver and occupier of a motor vehicle

have a reasonable expectation of privacy in a motor vehicle, there can be no such expectation of privacy in the area of the vehicle open to observation by anyone, including the police lawfully standing outside the vehicle. On this analysis, the search in this case did not commence until the police officer opened the vehicle door, reached in and began to examine the interior further. By that time, the existence of the gun was already known. An officer does not have to avert his or her eyes from looking in the vehicle and observing items in plain sight.

Nor does the fact that the officer was aided in his observation by the use of a flashlight through tinted glass make any difference. The arrest of Mr. Squires in the second officer’s police car took place after the first officer saw the gun in the backseat of the vehicle, opened the door and seized it and the accompanying shells. Upon observing the shotgun through the window, that information, coupled with the information which initiated the attendance of the officers at the scene, and the admission by Mr. Squires that he had a gun in his possession, constituted reasonable and probable grounds for arrest.

The subjective and objective components of the test were satisfied. Inasmuch as the observation of the gun on the backseat of the vehicle did not, as explained earlier, amount to a search in itself, this is not a case of attempting to use the results of the search to constitute the grounds for arrest. Furthermore, once the items were seized, the arrest followed immediately thereafter. The seizure was therefore incident to the arrest. It can therefore be justified on that basis.

Even if looking into the vehicle could be characterized as a search, the seizure can also be justified on the application of the plain view doctrine. The plain view doctrine allows for a seizure without warrant where the item being seized is in plain sight of the person effecting the seizure. In this jurisdiction, the application of the doctrine has been expressed to be dependent on the existence of three requirements: (

i) the officer must be lawfully in a position from which the evidence was plainly in view; (ii) discovery of the evidence must be inadvertent; and (iii) it must be apparent to the officer at the time that the observed item may be evidence of a crime or otherwise subject to seizure. The question at issue in this case is whether the discovery was “inadvertent.” The discovery of the firearm without any advance indication that there would be one in the vehicle was inadvertent and that the test for the application of the plain view doctrine was satisfied.

However, inadvertent discovery should not be an absolute requirement for the operation of the doctrine in all cases. The main rationale of the plain view doctrine is that there is no interference with a reasonable expectation of privacy. Many of the pro- inadvertence cases appear to have been based on a mistaken analysis of American jurisprudence.

As a matter of policy, if the police are merely using their powers of observation from a position that does not otherwise invade the target’s zone of privacy, there does not appear to be any reason in principle to restrict the police’s ability to use powers of observation in the investigation of crime. For this reason also, the seizure of the gun was lawful. The trial judge erred in concluding otherwise. The question that must still be answered is whether, in light of the breach of

section 9 , the evidence ought nevertheless to be excluded by virtue of the application of section 24(2) of the Charter . The degree of deference that would normally be shown to findings of the trial judge need not be shown, as he based his analysis on the finding that there had been a breach of both sections 8 and 9, whereas there was a breach of

section 9 only. Exclusion of evidence under section 24(2) may potentially occur when it was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter . The question in this case is whether the

section 9 breach is sufficiently connected to the obtaining of the gun and ammunition. Notwithstanding the potential discoverability of the evidence through lawful means, if the police follow a course of conduct which infringes the Charter , the discovery may nonetheless be tainted and bring the administration of justice into disrepute. A causal relationship between the breach and the impugned evidence is not necessary. It is sufficient if the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct.

There is general agreement with Rowe J.A.’s analysis of the section 24(2) issue, and his conclusion that the evidentiary products of the search of the vehicle should not have been excluded. The appeal should be allowed and a new trial ordered. Rowe J.A. concurring: The statements and application of the law outlined by the Chief Justice are agreed with, save the comments about the requirement of inadvertence as an element of the plain view doctrine. The governing precedents are good law. The scope of the plain view doctrine should not be extended in the manner the Chief Justice suggests.

As to whether the evidence should have been excluded pursuant to section 24(2) of the Charter , there was no causal connection between the use of excessive force in detaining Mr. Squires and seizure of the shotgun. Nonetheless, the issue of exclusion of the evidence under section 24(2) can arise because of the temporal and contextual connection between the detention and seizure of the shotgun.

It is settled law that in considering whether to exclude evidence under section 24(2) of the Charter , a Court is to consider: (1) the seriousness of the conduct that infringed the Charter right; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in adjudication of the case on its merits. While the police used excessive force in their detention of Mr. Squires, they were not cavalier or egregious in their conduct; they simply went too far in the circumstances. While Mr. Squires was the subject of excessive force during his detention, which violated his

section 9 rights, the breach of those rights was relatively low impact. There is an important public interest in having the charges against Mr. Squires adjudicated on their merits.

Balancing the three factors, the evidence should not be excluded under section 24(2) of the Charter. The appeal should be allowed, and a new trial ordered. Welsh J.A., dissenting:

Section 9 of the Charter provides that everyone has the right not to arbitrarily detained or imprisoned. While, attimes, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, theallowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. The actions of the officers, particularly in handcuffing Mr. Squires, amounted to a de facto arrest. However, the officers did not have therequired subjective belief to ground an arrest of Mr.

Squires when he was required to lie face down on the ground, and was handcuffedand put in the patrol car. This amounted to a contravention of

section 9 of the Charter. There were grounds for an investigative detention. In the circumstances, the officers had a duty to act in response to the 911 call.However, excessive force was used which would render the detention arbitrary. The fact that the officers breached Mr. Squires’ rights under

section 9 of the Charter colours the application of

section 8. The trialjudge’s finding that the officer was conducting a search incident to an arrest is a relevant consideration. At the time the officer shone the flashlight into Mr. Squires’ car, officer safety was not an issue since Mr. Squires was handcuffed andsitting in the patrol car. Further, the trial judge accepted the officer’s testimony that he was conducting a search incident to an arrest.Since, at that time, Mr. Squires had already been unlawfully arrested, the search incident to that arrest must also be unlawful. Thus, Mr.Squires’ rights under

section 8 of the Charter were breached. The trial judge, having found a breach of sections 9 and 8 of the Charter, ordered that the evidence of the gun and ammunition beexcluded under section 24(2). The trial judge’s decision applying section 24(2) of the Charter is owed considerable deference where thejudge considered the proper factors and has not made any unreasonable finding. The judge classified the police conduct in breaching Mr. Squires’ Charter rights as serious. There is no basis on which to alter thatconclusion.

The trial judge did not directly address the second criterion under the section 24(2) test, that is, the impact of the breach onMr. Squires’ Charter rights. However, in the circumstances, to require Mr. Squires to lie face down on the ground and then to handcuff him and put him in a patrolcar must be construed as a significant impact on his right not to be subjected to the unjustified use of police power. Regarding the thirdcriterion, society’s interest in having an adjudication of the charges on the merits, the judge considered the proper factors and that he didnot make any unreasonable findings.

The appeal should be dismissed. Cases cited: Green C.J.N.L: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 R. v. Fountain, 2015 ONCA 354 R. v. Saeed, 2016 SCC 24, [2009] 2 S.C.R. 527 R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725 R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 R. v. McGuffie, 2016 ONCA 365 R. v. Whitfield, (SCC), [1970] S.C.R. 46 R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3 R. v. Gnanachandran (2005), 66 W.C.B. (2d) 28 (Ont. S.C.J.) R. v. Cunanan (2008), (ON SC), 170 C.R.R. (2d) 69 (Ont.

S.C.) R. v. Agengo, 2011 ABQB 171, 506 A.R. 344 R. v. Strilec, 2010 BCCA 198, 256 C.C.C. (3d) 403 R. v. Orr, 2010 BCCA 513 R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 R. v. Evans, (SCC), [1996] 1 S.C.R. 8

R. v. M.(A.), 2008 SCC 19, [2008] 1 S.C.R. 569 R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 R. v. Boersma, (SCC), [1994] 2 S.C.R. 488 R. v. Robere (1999), (NL CA), 181 Nfld. & P.E.I.R. 292 (Nfld. CA) R. v. Grunwald, 2010 BCCA 288, 257 C.C.C. (3d) 53 R. v. Calder (2004), (ON CA), 47 M.V.R. (4th) 20 (Ont. CA) R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615 R. v. Diamond, 2015 NLCA 60 R. v. Debot (1986), (ON CA), 30 C.C.C. (3d) 207, 54 C.R. (3d) 120 (Ont. C.A.) aff’d (SCC), [1989] 2S.C.R. 1140 R. v. Sinclair, 2005 MBCA 41, 19 Man. R. (2d) 283 leave to appeal to SCC dismissed, [2005] S.C.C.A. No. 263 R. v.

Dubois, 2004 BCCA 589, 125 C.R.R. (2d) 99 R. v. Aslam, 2006 BCCA 551, 149 C.R.R. (2d) 43 R. v. Frieberg, 2013 MBCA 40, 299 C.C.C. (3d) 254 R. v. Chaisson, 2005 NLCA 55, 249 Nfld. & P.E.I.R. 252 R. v. Belliveau and Loisier (1986), (NB CA), 30 C.C.C. (3d) 163 (N.B. C.A.) R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241 R. v. Jackson, 2005 ABCA 430, 376 A.R. 99 R. v. Kouyas (1994), 1994 NSCA 244 , 136 N.S.R. (2d) 195 (C.A.) aff’d (SCC), [1996] 1 S.C.R. 70 R. v. Lauda (1998), (ON CA), 122 C.C.C. (3d) 74 (Ont. CA), aff’d (SCC), [1998] 2 S.C.R. 683 R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 R. v.

L.F. (2002), (ON CA), 166 C.C.C. (3d) 97, 4 C.R. (6th) 52 (Ont. C.A.) R. v. Spindloe, 2001 SKCA 58, 154 C.C.C (3d) 8 Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489 R. v. Bernard, (SCC), [1988] 2 S.C.R. 833 David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), (ON CA), 76 O.R. (3d) 161(C.A.) R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 R. v. Plaha (2004), (ON CA), 188 C.C.C. (3d) 289, 24 C.R. (6th) 360 (Ont. C.A.) Rowe J.A. (concurring): R. v. Al-Amiri, 2015 NLCA 37, 368 Nfld. & P.E.I.R. 146 R. v.

Plaha (2004), (ON CA), 188 C.C.C. (3d) 289, 24 C.R. (6th) 360 (Ont. C.A.) R. v. Fountain, 2015 ONCA 354, 2015 Carswell Ont 7166 R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 R. v. Robere (1999), (NL CA), 181 Nfld. & P.E.I.R. 292 (Nfld. CA) Welsh J.A. (dissenting):

R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725 R. v. Godoy, (SCC), [1999] 1 S.C.R. 311 R. v. Latimer, (SCC), [1997] 1 S.C.R. 217 R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 R. v. Cody, 2013 NLTD(G) 181, 351 Nfld. & P.E.I.R. 1 R. v. Orr, 2010 BCCA 513, 297 B.C.A.C. 54 R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 40 R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 R. v. Dhillon, 2012 BCCA 254, 191 C.C.C. (3d) 93 R. v. Coté, 2011 SCC 46, [2011] 3 S.C.R. 215 Counsel: Iain R.W. Hollett, for the appellant; Derek J.

Hogan, for the respondent. This appeal was heard on December 14, 2015 before Green C.J.N.L., Welsh, Rowe, Barry and Hoegg JJ.A.

The following judgment was delivered on October 17, 2016 by Green C.J.N.L., concurred in by Barry and Hoegg JJ.A., with separateconcurring reasons by Rowe J.A. and dissenting reasons by Welsh J.A. ______________________________________________________________ Green C.J.N.L.: [1] In this appeal by the Crown of acquittals on charges for a number of firearms offences, the questions are whether the trial judgeerred in concluding that the respondent’s (Squires’) rights under sections 9 (arbitrary detention) and 8 (unreasonable search and seizure)of the Canadian Charter of Rights and Freedoms were infringed by the way in which the police interacted with him, and in concludingthat the evidence of a gun and ammunition seized from Mr.

Squires’ vehicle should be excluded under section 24(2) of the Charter. [2] In essence, the case addresses the problem of balancing the importance of protecting citizens from the illegitimate use of forceby police while at the same time trying to ensure that the police are not unduly hampered in the way they carry out their important publicduties and responsibilities, especially when safety issues relating to firearms are potentially involved. [3] The basic factual background is this: the police received an anonymous phone tip, in the early hours of the morning, that a malein a “black jeep” near the Froude Avenue Community Centre in St.

John’s had a firearm, possibly a shotgun or rifle. The first officer onthe scene saw a lone black sport utility vehicle with a male occupant in the parking lot. A second officer arrived in another car a fewminutes later. The first officer activated his vehicle’s emergency lights, exited the vehicle, drew his firearm and told the male, whom herecognized as Mr. Squires from a previous occasion, to put his hands out the window. Mr. Squires fully cooperated. [4] Upon the second officer’s arrival, she also drew her gun. Mr.

Squires was told to exit his vehicle and lie face down on theground, whereupon the second officer handcuffed him and brought him to her police vehicle. He was read his rights and caution and wastold the police were investigating a weapons complaint. Mr. Squires admitted there was a shotgun in his vehicle. [5] Not knowing of Mr. Squires’ statement that there was a gun in the vehicle, the first officer, using a flashlight, looked through thetinted glass in Mr. Squires’ vehicle to determine if there was anyone else there and to ensure the officers’ safety.

Not seeing any otheroccupant, he looked again and saw the partially covered barrel of a shotgun on the back seat. He opened the door, seized the gun andshotgun shells and told the other officer to arrest Mr. Squires for unsafe handling of a firearm. He was re-advised of his rights andcautioned and then arrested for careless use of a firearm and breach of a weapons prohibition. The second officer claimed reasonablegrounds for the arrest based on the original complaint that had been phoned in, Mr.

Squires’ admission that there was a shotgun in thevehicle and the fact that the first officer had seen the firearm in the vehicle.

[ 6 ] The first officer confirmed in evidence that he did not have grounds to arrest Mr. Squires prior to observing the firearm but he asserted that he searched the vehicle incident to the arrest. It is clear, however, that the formal arrest performed by the second officer back in the vehicle had not occurred before the gun and shells were actually seized. [ 7 ] On these facts, the trial judge concluded that Mr. Squires’ rights under sections 9 and 8 of the Charte r were infringed, and excluded the evidence of the shotgun and shells. As a result, Mr. Squires was acquitted for lack of admissible evidence.

GENERAL OBSERVATIONS [ 8 ] There are limits to the degree of interference with a citizen’s liberty that the police can employ when interacting with a citizen short of arrest. Nevertheless, the law recognizes that, especially in situations potentially dangerous to the public or to the police, a degree of intrusion may be justified. Moldaver and Wagner JJ. explained the balance that must be struck in terms of a “fundamental bargain” in R. v.

MacDonald , 2014 SCC 3 , [2014] 1 S.C.R. 37 as follows: [64] Every day, throughout this country, police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others. In return, they are entitled to know that when potentially dangerous situations arise, the law permits them to conduct minimally intrusive safety searches to alleviate the risks they face.

That is the fundamental bargain we, as a society, have struck with the police – and it is a fundamental commitment upon which the police are entitled to rely. (Emphasis added.) [ 9 ] Such a minimally intrusive safety search must still generally be based upon lawful actions of the police such as a lawful arrest or a lawful investigative detention. Thus, if a safety search is conducted incident to a detention that is arbitrary under

section 9, the search will be regarded as an unreasonable search in violation of

section 8. While MacDonald recognizes that, in exigent circumstances or circumstances of an imminent threat, a search for weapons based on safety concerns does not necessarily have to be incident to either a lawful arrest or lawful detention, it presupposes that the actions of the police prior to the search are otherwise lawful. On its facts, MacDonald does not extend to permitting a safety search as incident to an arbitrary ( i.e. otherwise unlawful ) detention.

Exigent circumstances do not in themselves provide a justification for a search; rather, they provide a justification for proceeding to search without a warrant which would have been available had there been time to apply for it, i.e. the circumstances provide an otherwise lawful basis for the search. [ 10 ] Professor Steve Coughlan, in a very helpful annotation to the Ontario Court of Appeal decision in R. v. Fountain , 2015 ONCA 354 , 2015 Carswell Ont 7166 , put it this way: … it has been necessary to point to some source of power for searching other than exigent circumstances.

The police must be doing some lawful thing when the need for a “shortcut” in doing it arises through exigent circumstances. (Emphasis in original.) [ 11 ] That said, it must be recognized that there may be good practical reasons to allow police, where safety issues are at play, to carry out investigative detentions (tailored in their nature to the factual circumstances) and searches incidental to such detentions. Allowing such detentions and searches may be more beneficial to a suspect than requiring a warrant. As noted recently in R. v.

Saeed , 2016 SCC 24 , at para. 65 , if police are required to keep an accused for an indefinite period in an uncomfortable and potentially degrading position while waiting to obtain a warrant, this may be more intrusive upon individual liberty than allowing police to exercise a common law power of search incidental to arrest or to investigative detention.

Section 9 of the Charter : Investigative Detention Investigative Detention [ 12 ] The trial judge framed the issue relating to the events leading up to the discovery and seizure of the shotgun and shells as to whether there had been an infringement of “…the right not to be arbitrarily detained…” within

section 9. The police officers had testified that they did not have grounds to arrest, and did not arrest, Mr. Squires until the firearm was observed in the backseat of the vehicle. The question therefore became whether the actions of the police in interfering with Mr. Squires’ liberty could be characterized as a legitimate investigative detention short of arrest.

Section 9 of the Charter provides: Everyone has the right not to be arbitrarily detained or imprisoned The judge concluded that: Ordering the accused out onto the ground and searching him, in my view, exceeded what would be warranted in encompassing an investigative detention. [ 13 ] The Crown submits that the trial judge erred in his analysis in that, although correctly treating the issue as whether the police could justify their actions as an investigative detention, he effectively applied a standard applicable for justifying an arrest (i.e. whether there were reasonable grounds to believe that an offence had been or was about to be committed, as per section 495(1) (

a) of the Criminal Code ). Had he applied the appropriate standard, so it was argued, he should have found the interference with Mr. Squires’ liberty to be lawful. [ 14 ] The only detentions prohibited by

section 9 of the Charter are “arbitrary” detentions. As recognized in R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59 , an investigative detention carried out in accordance with the common law power of detention will not generally be considered arbitrary and, accordingly will not infringe a detainee’s rights under the Charter (see para. 20). This is because the common

law power, as developed to date, has been regarded as being consistent with Charter values. As noted in R. v. Clayton , 2007 SCC 32 , [2007] 2 S.C.R. 725 , the common law power: [21] … requires the state to justify the interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive to liberty than reasonably necessary to address the risk. The standard of justification must be commensurate with the fundamental rights at stake.

The Trial Decision - Detention [ 15 ] The trial judge analyzed the facts and the law as follows: Courts have held that investigative detentions should be of brief duration, although “brief” is not defined.

There’s no indication, also, in the case law as to how far to move a detainee, but some authorities suggest you can move a detainee to the rear of a police car, certainly when detaining motorists… With respect to the reasonable grounds standard, reasonable and probable grounds has been defined as an honest belief in the guilt of the accused, based on a full conviction, founded upon reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent man placed in the position of the accused to the conclusion that the person charged is probably guilty of the offence.

The standard has both objective and subjective components… Constable McGuire had not formed a subjective belief in the truthfulness of the tip he had received. There was no objective evidence in support of that tip beyond the presence of a black vehicle at the community centre. By removing the accused and handcuffing and searching him, from the vehicle, he arbitrarily detained the accused and violated his

section 9 rights. [ 16 ] Counsel for the Crown submits that the trial judge made two errors in his analysis: (

i) by focusing on whether the first officer had formed a subjective belief in the truthfulness of the tip he received and whether there was any objective evidence in support of the tip, he incorrectly commingled the test for arrest with the test for justifying an investigative detention; and (ii) he erred in his conclusion that the degree of the invasion of Mr. Squire’s liberty exceeded what was needed for the purpose of investigative detention. [ 17 ] The first ground of appeal involves a question of law, importing a correctness standard of appellate review.

The second ground involves the application of the proper standard for effecting an investigative detention to the facts as found and is also a question of law which also requires a standard of correctness: R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 at para. 20 . The Applicable Standard Justifying Investigative Detention [ 18 ] I agree with Crown counsel that the trial judge, in determining whether there was justification for an investigative detention, appears to have applied a standard that was more akin to the standard of reasonable grounds for an arrest.

The standard to be applied to justify investigative detention is considerably lower. Here, the officers acted on a tip that a man was in a black utility vehicle at the community centre with a shotgun or rifle. That was sufficient to justify investigating. In the absence of anything indicating worthlessness or substantial unreliability of the information received, the police are entitled to rely on such information for the purpose of investigating further; see, Clayton , at para. 34 .

It is the duty of a police officer to investigate potential crimes and to ask questions of citizens in relation to that investigation. It is not necessary that the police must have a subjective belief in the accuracy of the information at the time of commencing an investigation or that, at these early stages, there need be any objective corroboration of the information suggesting the need for investigation. [ 19 ] That said, the right and duty to investigate does not automatically imply a right to detain or use force short of arrest.

The degree of detention that is justifiable in pursuance of the investigation will depend, on a view of the totality of circumstances, on what is reasonably necessary to facilitate that investigation. At that point, the officer must have reasonable grounds to suspect that in all the circumstances the targeted person “is connected to a particular crime and that such detention is necessary”; Mann at para. 45 . [ 20 ] Upon arrival at the scene, the first officer observed a man in a vehicle that roughly fit the description given in the tip. No one else fitting the description was present.

Given the possible presence of a firearm, it was perfectly reasonable for the officer to suspect that Mr. Squires was connected with the alleged crime and to seek to detain him to investigate further; see Clayton , at para. 34 . The safety of the public and the investigating officers was potentially engaged. [ 21 ] The more difficult question, however, is whether the police acted appropriately in the manner in which they purported to effect the detention.

The Manner of Effecting the Detention [ 22 ] The trial judge concluded that “ordering the accused out onto the ground and searching him … exceeded what would be warranted in encompassing an investigative detention.” [ 23 ] The Crown argues that the judge erred in that assessment because he was applying too high a standard for the justification of investigative detention and that, when all the circumstances are considered, especially the possible presence of firearms and the uncertainty of what they were being presented with, it was not unreasonable to subdue and secure the suspect by ordering him to the ground, handcuffing him and confining him in a police car.

The Crown submits that, recognizing the potentially fluid, uncertain and volatile situations the police may be presented with, an appellate court ought to be chary of viewing the behavior as a “Monday morning quarterback” and thereby applying a standard of perfection ex post facto . [ 24 ] The Crown submits that it is difficult to conceive how the police could have approached the situation differently without significantly increasing the risk to themselves, the community or Mr. Squires; in the circumstances their response was tailored to the circumstances as they unfolded. I do not agree.

[ 25 ] In Clayton at paragraph 31 , the Court stressed the importance of balancing the liberty interests of the suspect against the risks to the public and the police “to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk” (emphasis added). Assessment of police actions must be undertaken in light of such strictures as well as in light of the comments in Mann , at paragraphs 17-18 , that there is “a limited sphere for state intrusion” by way of investigative detention.

Applying this approach does not amount to Monday morning quarterbacking, which the Supreme Court, in R. v. Cornell , 2010 SCC 31 , [2010] 2 S.C.R. 142 at paragraph 24 , in another context, cautioned against, as being “unfair and inappropriate” to the police when exercising discretion in difficult and fluid circumstances. [ 26 ] In Clayton itself, which has some factual similarities to the current case, the police responded to a 911 call to the effect that ten people with handguns were in a parking lot outside a strip club.

Four vehicles were dispatched to the scene and encountered a number of cars that generally matched the description given by the 911 caller. The police set up a perimeter and blocked a car (in which Farmer was the driver and Clayton the passenger) from leaving. The car did not match the described vehicles. Informing Farmer there had been a gun complaint, the police told Farmer to get out of the car. After a delay, he reluctantly complied and was told to put his hands on the top of the car. This was done for officer safety, preparatory to a search for weapons.

Clayton was also asked to exit the vehicle but did not comply with a request to move to the rear of the car and to place his hands on the car where they could be seen. Clayton shoved the officer and ran to the front of the building where he was subdued by other officers, put on the ground, handcuffed and then placed in a police cruiser. On the way to the cruiser, Clayton acknowledged he had a gun on his person.

When he heard that it had been confirmed that Clayton was in custody and had a gun, another officer arrested Farmer for possession of the gun found on Clayton . [ 27 ] These actions were regarded as reasonable and appropriate in the circumstances to effect an investigative detention. Unlike the current case, the manner of detention initially involved asking the suspects to step out of the vehicle and put their hands on it so that they were in plain sight. It was only after one of them failed to cooperate and attempted to flee that handcuffing and detention in a police cruiser were employed. Unlike Clayton, Mr.

Squires was fully cooperative and gave no indication of reluctance to comply. He was told to put both his hands out of the car window in plain sight. He did so. Instead of requiring him to exit the vehicle, face it and put his hands on the roof, as was done in Clayton , he was immediately told to lie face down on the ground, handcuffed and removed to a police cruiser. [ 28 ] In R. v.

McGuffie , 2016 ONCA 365 , the Ontario Court of Appeal affirmed a trial judge’s finding that detaining, handcuffing and then placing the detainee, a potential suspect, in a police car for thirty minutes without grounds for arrest while police were investigating a report that five men were at a bar passing around a handgun, exceeded what was appropriate for an investigative detention because it ignored the obligation to minimize the length and nature of the detention that was reasonably necessary on an objective view of the totality of the circumstances.

Doherty J.A. expressed his analysis this way [citations omitted]: [33] The appellant was detained from the moment that Constable Greenwood stopped him on the street. The detention was made all the more obvious when Constable Greenwood handcuffed the appellant.

The appellant was entirely under Constable Greenwood’s control from that point forward… [34] When Constable Greenwood detained the appellant he had reasonable grounds to suspect that the appellant was in illegal possession of a handgun. … While Constable Greenwood did not have grounds to arrest the appellant, he did have a duty to investigate the gun- related incident and the appellant’s potential connection to it. [35] An individual may be detained for investigative purposes if the police are acting in the exercise of their duty and the detention is justified as reasonably necessary in the totality of the circumstances… [36] In my view, the appellant’s initial detention on the street was a lawful exercise of the police power to detain persons in the course of a criminal investigation. [37] In Mann , at para. 35 , Iacobucci J. stressed that an investigative detention was not the same thing as an arrest and could not be allowed to become “a de facto arrest”.

The significant interference with individual liberty occasioned by an arrest is justified because the police have reasonable and probable grounds to believe that the arrested person has committed an offence. Investigative detention does not require the same strong connection between the detained individual and the offence being investigated .

The detention contemplated by an investigative detention cannot interfere with individual liberty to the extent contemplated by a full arrest . [38] The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs.

A brief detention on the street to question an individual implicated in a criminal investigation involving ongoing evens may be justifiable under the Mann criteria, but under those same criteria imprisonment in a police cruiser while handcuffed for some indefinite period while an officer carries out other aspects of a criminal investigation cannot be justified. The police cannot use investigative detention as an excuse for holding suspects while police search for evidence that might justify the arrest of the suspect.

Nor does investigative detention mean that the police can detain suspects indefinitely while they carry out their investigation. [39] Constable Greenwood was justified in briefly detaining the appellant to question him about his knowledge of the handgun. However, after that brief detention, he was required to release the appellant unless he had grounds to arrest him. There is no suggestion that he had grounds to arrest the appellant. Constable Greenwood was therefore required to release the appellant. Instead, he imprisoned the appellant while he pursued his investigation elsewhere.

In doing so, he completely disregarded the appellant’s right to liberty and rendered him vulnerable to further police investigation. The appellant’s right to be free from arbitrary detention was infringed by Constable Greenwood when he confined the appellant in the back of Constable McDonnell’s cruiser. (Emphasis added.) [ 29 ] In McGuffie , Doherty J.A. relied on the statement in Mann at paragraph 35 , that an investigative detention should not be allowed to become a de facto arrest and stated that the duration and nature of the detention must be tailored to the investigative purpose of the detention.

Generally, subduing and immobilizing by threatening force, handcuffing and placement in a police vehicle will not be necessary to carry out an offence investigation. In most cases, a direction to cease movement, exit a vehicle, keep one’s hands visible and

respond to questioning will be sufficient. Obviously, as the events following the initial interaction with the suspects in Claytondemonstrate, handcuffing and other forms of physical restraint and confinement may be necessary in an investigative detention, butgenerally that should be the exception rather than the rule. [30] I subscribe to the views expressed by Penney, Rondinelli and Stribopoulos in Criminal Procedure in Canada (Markham, ON:LexisNexis Canada, 2011) at 125: … there is a risk that investigative detention, which is supposed to be brief and unobtrusive, may come to resemble de facto arrests.

Thiswould be most unfortunate. If courts were to authorize the police to routinely handcuff those detained for investigative purposes, to holdthose detained for extended periods, to move those held to different locations (like the station-house) and to carry out intrusive personalsearches, then investigative detentions would in time become indistinguishable from conventional arrests. This would mean that arrest-like encounters would have become licensed by the courts on the basis of a considerably lesser standard than that which Parliament haslegislatively mandated for arrests: reasonable and probable grounds.

In effect, such a change would impose the harsh consequences ofarrest on a much greater number of innocent people. [31] Sometimes the safety and offence investigation functions overlap, as where, in the current case, the offence being investigatedinvolves possible possession or use of a weapon. In such circumstances, the need for intrusive measures to enable a protective search,becomes commingled with the investigation of the substantive offences.

Detention for safety purposes including a protective safetysearch becomes in essence a search that would aid the investigation of the substantive offences. [32] McGuffie amounts to a re-affirmation of the notion that an investigative detention, while capable of being tailored to thepresenting circumstances, is intended to be generally a brief and limited suspension of a citizen’s right to go about his or her businessfreely. It must be no more intrusive of liberty interests than is “reasonably necessary.” If it exceeds that, it will become an unjustifieddetention that will be regarded as arbitrary under

section 9. [33] The use of force is usually associated with arrest rather than investigative detention. In R. v. Whitfield, (SCC),[1970] S.C.R. 46, Judson J. adopted the description of arrest in Halsbury as “the actual seizure or touching of a person’s body with aview to his detention” (at 48). It may also consist of words or conduct which make it clear that the officer will, if necessary, use force torestrain free movement: R. v.

Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 43. [34] While threats of use of force by the drawing and pointing of a weapon at the putative detainee may be permissible for detentionshort of arrest in some circumstances (R. v. Gnanachandran, 2005 Carswell Ont 3065 (S.C.) at para. 30; R. v. Cunanan (2008), (ON SC), 170 C.R.R. (2d) 69 (Ont. S.C.) at paras. 42, 44; R. v.

Agengo, 2011 ABQB 171, 506 A.R. 344, at paras. 14-17),the justifiability of such actions will depend on the totality of circumstances insofar as they demonstrate that they are an intrusion ofliberty that is reasonably necessary to the performance of the officer’s duty given the police officer’s knowledge of such things as thelikelihood that the suspect possesses a firearm, his apparent purpose and any reputation for violence that he may have.

The use of forcesuch as pointing a weapon, ordering the suspect to the ground, handcuffing and confining in a police vehicle will usually be regarded as ade facto arrest (see, e.g., R. v. Strilec 2010 BCCA 198, 256 C.C.C. (3d) 403; R. v. Orr, 2010 BCCA 513 at paras. 10-11). [35] Here, it is to be noted that it could not said that the police had more than a reasonable suspicion, upon entering the parking lotand seeing a vehicle that generally matched the description in the tip, that the suspect in the vehicle had any weapon in his possession orunder his control.

There was no evidence led at trial of any reputation of Mr. Squires, who was known to the officer, for violence(although he was subject to a firearms prohibition). Further, the suspect was not behaving in a manner that in itself would have invokedsuspicion. He was cooperative throughout and complied with all directions from the officer. The degree of force used and the intrusioninto Mr. Squires’ liberty was not, at that time, necessary to protect officer or public safety or to further the investigation which had beenactivated by the tip that had been received or the initial observations in the parking lot.

Once the police went beyond a scenario requiringMr.

Squires to keep his hands visible, exit the vehicle and put his hands on the roof of the vehicle preparatory to, perhaps, a pat downsearch, and instead used physical restraint, and threats of physical force, they exceeded the bounds of permissible detention and, giventhe conceded absence of grounds for an actual arrest, caused the resulting detention to become arbitrary. [36] Applying the analyses in Clayton and McGuffie against their respective factual backgrounds, I conclude, as did the trial judge,that it was reasonably necessary in the totality of the circumstances of the current case, (given the report of a firearm and the generaldescription given by the tipster, suggesting that the appellant could be regarded as a suspect), to detain and question the appellant whenhe was observed in his vehicle on the community centre parking lot.

However, in the absence of any indication of attempted flight,uncooperativeness or threatening behavior, that could have been accomplished by requiring the appellant to exit the vehicle and to placehis hands in plain sight on the top of the vehicle, preparatory to a pat down search. It did not in the circumstances require ordering him tothe ground at gunpoint, handcuffing him and placing him in the police cruiser before continuing to look for any weapons. What began asa lawful detention became unlawful when excessive force and unnecessary detention methods were employed.

The detention becamearbitrary and was therefore a breach of

section 9 of the Charter. [37] In these circumstances, I would not disturb the trial judge’s findings with respect to the

section 9 analysis.

Section 8 of the Charter: Unreasonable Search and Seizure Search Incident to Investigative Detention [38]

Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search and seizure. [39] A search will not be regarded as unreasonable if it is made incidental to a lawful arrest or investigative detention and the natureof the search is reasonable in the circumstances. This presupposes, of course, that the detention in question is lawful. Where it is not, itdoes not provide a justification for a warrantless search. In McGuffie, Doherty J.A., relying on R. v. Aucoin, 2012 SCC 66, [2012] 3S.C.R. 408 at para. 44, explained:

[54] … In my view, the police cannot, through unlawful conduct, create a circumstance said to justify a safety search of an individual. [55] I would draw an analogy between searches that are said to be lawful as an incident of an arrest and safety searches which are said to be lawful as an incident of a lawful investigative detention. If the arrest is unlawful, the search incidental to arrest is unlawful and contrary to

section 8. … Similarly, if an investigative detention is unlawful, a safety search said to be justified on the basis of that detention must be unlawful and contrary to

section 8. [citations omitted] [ 40 ] While there are indications in other cases (eg. R. v. Fountain ), that in some circumstances a safety search incident to an unlawful detention may nevertheless be upheld, I prefer the approach in McGuffie . Further, as MacDonald recognized, although there may be grounds for a safety search even outside an investigative detention, provided it is necessary to deal with exigent circumstances or an imminent threat, MacDonald was a case where no attempted detention, whether lawful or unlawful, was involved.

It does not stand for the proposition that a safety search can be lawfully undertaken in the context of an unlawful - and thus arbitrary – detention. Furthermore, it was not argued in this case that the circumstances were such that a search for safety purposes was so urgent and necessary that it could have been undertaken without first taking other investigative measures. [ 41 ] The approach in McGuffie is applicable to the case here. At the time the search was undertaken, the investigative detention had become unlawful, as explained above.

Accordingly, the search cannot be justified as being incident to a lawful detention. [ 42 ] (I would also note that had the gun been discovered, say, by the officer looking in the vehicle, or perhaps by even opening the vehicle door, in conjunction with a pat down search of Mr.

Squires while standing outside the vehicle with his hands on the roof, as was done initially in Clayton , and before the excessive force of requiring him to prostrate himself on the ground, cuffing him and confining him in the police vehicle had occurred, the search would have been a search incidental to a lawful detention and would have been permissible.). [ 43 ] The trial judge did not employ the foregoing analysis in his reasoning. He justified his conclusion that there was a violation of

section 8 on a different basis. It is to that to which I now turn. The Trial Decision - Search [ 44 ] Although the trial judge concluded that the search of Mr. Squires’ vehicle was in violation of

section 8, his reasons were brief. He stated: By removing the accused and handcuffing and searching him, from the vehicle, he arbitrarily detained the accused and violated his

section 9 rights. By performing a visual search of the vehicle by examining by flashlight through the tinted windows, he violated the

section 8 rights as he was basing his search as an incident of arrest and there had been no lawful arrest. [ 45 ] Although the trial judge had, earlier in his judgment, adverted to case law dealing with the “plain view” exception to the prohibition on otherwise unjustified seizures, he did not deal specifically with why it did or did not apply to the facts of the case. One might infer from his reference, in the passage quoted above, to the search being based as an incident of arrest – and therefore intentional - that he was concluding that the firearm and shells were not discovered inadvertently.

This assumes, of course, that the plain view doctrine is limited to inadvertent discoveries. This is a subject to which I will return later. [ 46 ] It is also not clear whether the judge’s conclusion that there had been “no lawful arrest” was based on a conclusion that at no stage in the process were there reasonable grounds for arresting Mr. Squires prior to actual discovery of the firearm and shells or his erroneous application of the arrest standard to the justification for an investigative detention or whether he was simply addressing the lack of knowledge by the searching officer of the arrest of Mr.

Squires in the police car at the time the search was carried out. If the latter, this engages the question of whether it is a requirement of the searching officer to know that an arrest had occurred or that grounds for arrest actually existed. This is also a matter that will be addressed later. [ 47 ] The Crown asserts that the trial judge erred (

i) in concluding that looking into the window of the vehicle amounted to a search; (ii) in not concluding that the search, ie., opening the door and seizing the firearm and shells, was a valid search and seizure incident to investigative detention or arrest; and (iii) in not concluding that, in any event, the search was justified by the application of the plain view doctrine. [ 48 ] I have already dealt with and rejected the argument that the search was incident to a lawful investigative detention. (I note here that even though a search conducted incident to an unlawful detention may constitute a breach of

section 8, that does not decide the issue of admissibility of the products of the search. That issue must be dealt with in the context of the application of section 24(2) of the Charter .) [ 49 ] The remaining issues all involve the application of proper legal standards to the facts and are questions of law, to which a standard of correctness will be applied. “Looking” as Searching [ 50 ] The Crown submits that the judge erred when he concluded that “performing a visual search by examining by flashlight through the tinted windows” constituted a search contrary to

section 8. [ 51 ] The Crown takes issue with the judge’s characterization of the visual inspection as a “search”, arguing that the police “needed no authority nor reason to look into the window of a motor vehicle parked in a public parking lot.” Although the cases recognize that a driver and occupier of a motor vehicle have a reasonable expectation of privacy in a motor vehicle (though reduced in comparison, say, to a private dwelling: R. v.

Tessling , 2004 SCC 67 , [2004] 3 S.C.R. 432 at para. 22 ), the Crown submits that there can be no such expectation of privacy in the area of the vehicle open to observation by anyone, including the police lawfully standing outside the vehicle. On this analysis, the search in this case did not commence until the police officer opened the vehicle door, reached in and began to examine the interior further. By that time, the existence of the gun was already known.

[52] I agree with this submission. To constitute a search within

section 8, the actions of the police must have intruded on a reasonableexpectation of privacy: R. v. Evans, (SCC), [1996] 1 S.C.R. 8 at para. 8; R. v. M.(A.), 2008 SCC 19, [2008] 1 S.C.R.569 at para. 8. While it is true that whether a reasonable expectation of privacy exists is said to depend upon “the totality of thecircumstances” (R. v.

Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 at para. 26) and the fact that the subject matter being observed orseized is in public view is but one factor among many to be considered in the privacy expectation analysis (Patrick, paras. 27-72), thesituation is different if all that is occurring is visual observation, without more, from outside the territorial zone of privacy that isinvolved and when what is engaged is not an issue involving personal or informational, as opposed to territorial, privacy.

Patrick dealtwith a situation (entry on property to inspect the contents of garbage bags) involving an incursion into the complainant’s zone ofterritorial privacy and involved aspects of personal and informational privacy as well. It did not involve merely seeing something andthereby acquiring knowledge that was relevant to the investigation. The current situation is similar to R. v.

Boersma, (SCC), [1994] 2 S.C.R. 488 where the Supreme Court of Canada upheld a British Columbia Court of Appeal decision holding that therecould be no objectively reasonable expectation of privacy in marijuana plants growing in plain view and observed from outside a zone ofterritorial privacy. In a short judgment, Iacobucci J. stated: [1] … The plants were being cultivated in plain sight and were observed by police officers walking by on a dirt road.

In thesecircumstances, we agree with Lambert J.A. of the British Columbia Court of Appeal that the appellants had no reasonable expectation ofprivacy with respect to the area on which marihuana was being cultivated and were thus not entitled to the protection of

section 8 of theCanadian Charter of Rights and Freedoms. [53] This surely makes sense when what is involved is simple observation in circumstances where only territorial privacy is engaged.We rightly expect more of our police forces when conducting an investigation than for them to wander aimlessly about their business inthe hopes they will stumble upon something relevant. We expect them to be purposeful, focused and methodical in what they do. One oftheir chief tools in carrying out an investigation is their powers of observation.

If they can exercise their powers of observationproductively without physically invading any private space in which the owner or occupier has a reasonable expectation of territorialprivacy and without invading informational and personal privacy, the person who has not taken the trouble to conceal the item observedcan hardly complain: See R. v. Robere (1999), (NL CA), 181 Nfld. & P.E.I.R. 292 (Nfld. CA) at para. 26, R. v.Grunwald, 2010 BCCA 288, 257 C.C.C. (3d) 53 at para. 48.

To restrict the police from looking or, if they have already looked, toeffectively pretend that what they saw did not exist, would unreasonably, unnecessarily and arbitrarily hamper them in effectively doingtheir duty. It must be remembered that a police officer needs no legal authority to approach or speak to a person sitting in a vehicle in a public space like a parking lot: R. v. Calder (2004), (ON CA), 47 M.V.R. (4th) 20 (Ont. CA).

In making such anapproach the officer does not have to avert his or her eyes from looking in the vehicle and observing items in plain sight. [54] Nor does the fact that the officer was aided in his observation by the use of a flashlight through tinted glass make any difference:R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615 at 623-624, per Cory J. In Grunwald , Bennett J.A. explained it this way: [38] Mr. Grunwald argued that the officer’s use of the flashlight to see through the tinting [of the vehicle] took the contents of the truckout of plain sight. It was submitted by Mr.

Grunwald that this action transformed the officer’s visual inspection into a search. [39] In my view, common sense tells us that the police, working at night, will have occasion to use flashlights in the ordinary course oftheir duties. It is not objectively reasonable to expect that they would not. When the police are lawfully where they are permitted to be,the use of artificial illumination should not automatically constitute a search. … [45] … [P]lain view is not limited to daytime hours.

If a flashlight is used to see what would be visible in daylight hours, such as objectsin the back of a pickup truck or the interior of a motor vehicle, the item does not cease to be in plain sight when the sun goes down. … [49] In these circumstances, Mr. Grunwald had no reasonable objective expectation of privacy in the back of his truck. It follows thatthere was no search, and therefore no

section 8 violation…. [55] Accordingly, observing portions of the shotgun sufficient to identify it as a shotgun, in plain view on the backseat of the vehicle,did not amount to a search. The trial judge erred in concluding otherwise. [56] I would also observe that this conclusion is consistent with the decision of the majority in this Court’s decision in R. v.

Diamond2015 NLCA 60 (which was released following argument in the current appeal) that observing something in plain view in a car is not asearch. [57] Having legitimately observed the firearm and concluded it was relevant to his investigation, the police officer’s authority tofurther search the vehicle by opening the door and seizing the item would, in the absence of having obtained a warrant, depend onwhether the search and seizure was authorized as being incident to arrest or whether it was in accordance with the plain view doctrine.For this purpose of this analysis, the “search” must be regarded as having commenced at the moment the police officer opened thevehicle door and laid hands on the gun, not at the moment he looked into the vehicle from outside and first saw the gun.

Timing of Arrest in Relation to Search [58] On the evidence, the arrest of Mr. Squires back in the second officer’s police car took place after the first officer saw the gun inthe backseat of the vehicle, opened the door and seized it and the accompanying shells. How then can it be said that the search andseizure was incidental to arrest? [59] The Crown submits, however, citing R. v.

Debot (1986), (ON CA), 30 C.C.C. (3d) 207, 54 C.R. (3d) 120 (Ont.C.A.) aff’d (without a majority addressing this point) (SCC), [1989] 2 S.C.R. 1140, that although the search precededthe actual words of arrest, it can still be characterized as being incidental to the arrest because the officer in fact had reasonable and

probable grounds to arrest Mr. Squires as soon as he observed the firearm on the seat of the vehicle even though the actual words of arrest were not uttered until after the seizure. That brought it within the scope of a search incident to an arrest. [ 60 ] In the Court of Appeal in Debot , Martin J.A. stated at 223: Counsel for the appellant also contended that the search of the respondent was also authorized as incident to a valid arrest, even though the respondent was not arrested until after the search.

It is axiomatic that a search may not precede an arrest and serve as part of its justification, for example, where prohibited drugs are found on the suspect's person in the course of the antecedent search and constitute the probable cause for the subsequent arrest. On the other hand, it is well established in the United States that where probable grounds exist for arresting a person, apart altogether from evidence discovered by a search, the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows on the search: see People v.

Simon, 290 P. 2d 531 (1955); United States v. Rogers, 453 F. 2d 860 (1971); State of Maine v. LeBlanc, Me., 347 A. 2d 590 (1975); In The Matter of John Doe, a Child, 547 P. 2d 566 (1976); Rawlings v. Kentucky, 100 S. Ct. 2556 at 2564 (1980). And at 224-225: The view enunciated by Mr. Justice Traynor in People v. Simon, supra, has much to commend it. … I am of the view that Constable Birs, prior to searching the respondent, had reasonable and probable grounds to believe that DeBot had committed an indictable offence: namely, possession of a controlled drug, methamphetamine, for the purpose of trafficking.

Constable Birs was justified, pursuant to

section 450 of the Code, in arresting DeBot without warrant. Holding that the search in the present case was incident to a valid arrest is consistent with the policy underlying the justification for a search incident to a valid arrest and is not precluded by authority. [ 61 ] Debot has been accepted and followed on this point in other cases at the appellate level: R. v. Sinclair , 2005 MBCA 41 , 19 Man. R. (2d) 283 , at para. 20 , leave to appeal to SCC dismissed, [2005] S.C.C.A. No. 263; R. v. Dubois , 2004 BCCA 589 , 125 C.R.R. (2d) 99 at para. 10 ; R. v.

Aslam , 2006 BCCA 551 , 149 C.R.R. (2d) 43 at para. 11 ; R. v. Frieberg , 2013 MBCA 40 , 299 C.C.C. (3d) 254 at paras. 32-39 . [ 62 ] As Frieberg emphasizes, however, the search and the arrest must be capable of being regarded as part of one transaction. The arrest must follow immediately following the search. [ 63 ] The Debot principle has application to the current case. Upon observing the shotgun through the window, that information, coupled with the information which initiated the attendance of the officers at the scene, and the admission by Mr.

Squires that he had a gun in his possession, constituted reasonable and probable grounds for arrest. The subjective and objective components of the test were satisfied. Inasmuch as the observation of the gun on the backseat of the vehicle did not, as explained earlier, amount to a search in itself, this is not a case of attempting to use the results of the search to constitute the grounds for arrest. Furthermore, once the items were seized, the arrest followed immediately thereafter. The seizure was therefore incident to the arrest. It can therefore be justified on that basis.

Plain View Doctrine [ 64 ] In my view, even if looking into the vehicle could be characterized as a search, the seizure can also be justified on the application of the plain view doctrine. [ 65 ] The plain view doctrine allows for a seizure without warrant where the item being seized is in plain sight of the person effecting the seizure and the item is potentially related to the matter being investigated. An object to which the plain view doctrine applies can be seized without breach of

section 8 rights. [ 66 ] In this jurisdiction, the application of the doctrine has been expressed to be dependent on the existence of three requirements: (

i) the officer must be lawfully in a position from which the evidence was plainly in view; (ii) discovery of the evidence must be inadvertent; and (iii) it must be apparent to the officer at the time that the observed item may be evidence of a crime or otherwise subject to seizure: Robere , at para. 19 ; R. v. Chaisson , 2005 NLCA 55 , 249 Nfld. & P.E.I.R. 252 , at para. 33 ; Diamond , at para. 19 . [ 67 ] In this case, the police officer was, as explained above, lawfully in the place outside the vehicle from which the interior could be viewed.

As well, once the firearm was observed, it would have been apparent to the officer that it may be evidence of a crime. It was the very type of item which was reported to them as being in the possession of someone in a black vehicle in the parking lot and which prompted the investigation in the first place. The first and third requirements listed above are therefore clearly satisfied. [ 68 ] The question at issue in this case is whether the discovery was “inadvertent.” In one sense, it could be said that it was.

The stated purpose of the officer in returning to the vehicle and looking inside was to check to see if there was anyone else in the vehicle and thereby ensure officer and public safety. It is true that by looking for a weapon as part of a protective search, the officer would have also been serving another purpose: searching to see if there was any evidence of a firearms offence. But that will be inevitable whenever the nature of the potential offence being investigated involves safety issues.

Nevertheless, the evidence of the officer concerned was that his initial purpose was to deal with safety issues. [ 69 ] To the extent that that purpose was the dominant one, then the discovery of a firearm could be said to be an inadvertent by- product of the viewing of the interior of the car as part of a protective safety search. If the second purpose had predominated, then it would be more difficult to say that viewing the firearm was inadvertent.

Even in this situation, however, I am guided by the definition of “inadvertent” given by Welsh J.A. in Chaisson at para. 33 : “the officer must not have knowledge of the evidence in advance.” A narrow

interpretation of those words would require some degree of advance knowledge of what the officer would likely find. In that sense, the officer here did not have that degree of knowledge; he was still investigating a complaint to determine whether or not the respondent was involved with a firearm. It must be remembered that at the moment of the observation, the officer was not privy to the acknowledgement by the respondent to the other officer back in the police cruiser that there was in fact a shotgun in the vehicle. Thus, it can be said that the

observing officer did not have “knowledge of the evidence in advance” [70] On the other hand, a more expansive view of the definition in Chaisson might require that the item seen could not be the verytype of item that was the subject of the search in the first place. In other words, seeing drugs while looking for a gun would beinadvertent but seeing a gun while looking for a gun (even if for another purpose, i.e. to deal with safety concerns rather than to furtherevidence-gathering) would not.

I see no reason why this broader definition should be applied. [71] I am prepared to decide, therefore, that the discovery of the firearm without any advance indication that there would be one in thevehicle was inadvertent and that the test for the application of the plain view doctrine was satisfied.

However, I do not in any eventbelieve that inadvertent discovery is or should be an absolute requirement for the operation of the doctrine in all cases. [72] In one sense, if, as I have concluded above, that in the case of observation from outside a zone of territorial privacy there cannoteven be a “search” at all when the thing observed is in plain view (because no reasonable expectation of privacy is engaged), then theplain view doctrine should not have, as a requirement, that the observation be inadvertent.

This should logically follow from the fact thatif there is no search at all, one is perfectly entitled to make any observations one wants, whether inadvertent or not. The plain viewdoctrine is only said to be engaged when a reasonable expectation of privacy is potentially being infringed by something that prima facieconstitutes a search.

Put another way, if the principal underpinning of the justification for the plain view doctrine is the absence of anyinterference with an expectation of privacy, then there is no need for a requirement of inadvertent observation. [73] On the other hand, if there is another rationale for the doctrine, it may be arguable that inadvertence should be a requirement.One possible rationale could be that such a requirement would be an additional safeguard against disingenuous explanations proffered bypolice as a pretext for not obtaining a search warrant by claiming that the item was in fact in plain view and that it was seen whilelooking for something else when in fact it was the target for the search from the beginning.

I am not satisfied that this sort of rationale isappropriate or necessary. Any assertions of the police as to whether they were able to see the item in plain view from a place where theywere otherwise lawfully able to be can be judged against the whole circumstantial background in any event. [74] There is also some controversy in the case law as to whether inadvertence is necessary. In addition to Robere, Chaisson andDiamond, these cases all make statements of the elements of the doctrine which include a requirement for inadvertence: R. v. Belliveauand Loisier (1986), (NB CA), 30 C.C.C. (3d) 163 (NBCA); R. v.

Jones, 2011 ONCA 632, 107 O.R. (3d) 241; Frieburg,supra; R. v. Jackson, 2005 ABCA 430, 376 A.R. 99; R. v. Kouyas (1994), 1994 NSCA 244 , 136 N.S.R. (2d) 195 (NSCA, aff’dwithout discussion (SCC), [1996] 1 S.C.R. 70); R. v. Lauda (1998), (ON CA), 122 C.C.C. (3d) 74(Ont. CA), aff’d (SCC), [1998] 2 S.C.R. 683. The Supreme Court has also referenced the inadvertence requirement inR. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 27 by acknowledging the Crown’s argument that the evidence in that case camewithin the view of a lawfully positioned officer that was discovered inadvertently.

However, the Court did not undertake any definitiveanalysis of the requirement. [75] Other cases question the requirement of inadvertence: R. v. L.F. (2002), (ON CA), 166 C.C.C. (3d) 97, 4C.R. (6th) 52; R. v. Spindloe, 2001 SKCA 58, 154 C.C.C (3d) 8. [76] While the predominance of the case law reiterates an inadvertence requirement, I am not satisfied that is or should be an absoluterequirement in all cases. I come to this conclusion, first, because, as explained above, the main rationale of the plain view doctrine is thatthere is no interference with a reasonable expectation of privacy.

Secondly, the reliance of many of the pro-inadvertence cases on UnitedStates jurisprudence appears to have been based on a mistaken analysis of the American jurisprudence, as discussed in L.F. and Spindloe.And thirdly, as a matter of policy, if the police are merely using their powers of observation from a position that does not otherwiseinvade the target’s zone of privacy, there does not appear to be any reason in principle to restrict the police’s ability to use powers ofobservation in the investigation of crime.

Careful and focused observing while not otherwise interfering with citizens is what policeshould do. [77] I recognize that this Court has reiterated an inadvertence requirement on at least three occasions. However, the Court is sitting asa panel of five on this case and has the authority to revisit or reconsider its previous decisions. That does not mean, however, that theCourt may, at its whim, discard previous authority in favour in new personal preferences. Any reconsideration must factor into itsanalysis respect for the considered views of previous times.

The Court must always balance the important values of correctness andcertainty (Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489 at para. 27). For a discussion of a non-exhaustive list of factors to beconsidered when addressing whether to depart from a previous decision in a horizontal stare decisis context, see: R. v. Bernard, (SCC), [1988] 2 S.C.R. 833 at 850-861 and David Polowin Real Estate Ltd. v.

Dominion of Canada General Insurance Co.(2005), (ON CA), 76 O.R. (3d) 161 (C.A.) at paras. 118-145. [78] In this case, given the absence of unanimity on the issue across the country, the absence of any definitive statement or analysison the issue by the Supreme Court of Canada, the possible misunderstanding of the United States jurisprudence which formed the basisof earlier Canadian decisions, the fact that the rationale for the plain view doctrine (based on the absence of any interference with areasonable expectation of privacy) does not support an inadvertence requirement, and the fact that the rule in this case does not involveupsetting settled police expectations and it is not a rule upon which an accused would rely, I am satisfied that the requirements for theestablishment of the plain view doctrine should not include inadvertent discovery.

So long as the police are lawfully in a place fromwhere the viewing can take place without invading the suspect’s zone of territorial privacy and the item is in plain view, it may be seizedwithout a warrant. While the fact that discovery is inadvertent may reinforce the genuineness of police assertions supporting plain view,it need not be a stand-alone requirement. [79] Accordingly, for this reason also, I would conclude that the seizure of the gun was lawful and that the items and evidence inrelation to it were admissible at Mr. Squires’ trial. The trial judge erred in concluding otherwise.

Application of sECTION 24(2) of the Charter [80] While I have concluded, based on the fact that the seizure was incident to an arrest or based on the plain view doctrine, that theevidence of the gun had been obtained without any breach of

section 8 of the Charter, there remains the fact that that there was an

arbitrary detention, based on the excessive use of force by the police, contrary to

section 9. [81] The question that must still be answered is whether, in light of the breach of

section 9, the evidence ought nevertheless to beexcluded by virtue of the application of section 24(2) of the Charter. [82] The trial judge undertook his analysis on the basis of his conclusions that there had been a breach of

section 8 as well as section9. In light of the fact that, on my analysis, the trigger for consideration of whether evidence should be excluded under section 24(2) isdifferent (a

section 9 breach only) any analysis of the application of section 24(2) must proceed on a different basis than that facing thetrial judge. The degree of deference that would normally be shown to findings of the trial judge in this regard therefore need not beshown. Furthermore, it is clear that the trial judge did not expressly consider all of the factors that should be addressed in applying theanalysis mandated in R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, especially with respect to the relevance of the second and thirdfactors (impact of the breach on the Charter-protected interests of the accused and society’s interest in adjudication of the case on itsmerits). An independent analysis is therefore needed. [83] Exclusion of evidence under section 24(2) may potentially occur when it was “obtained in a manner that infringed or denied anyrights or freedoms” guaranteed by the Charter. The question in this case is whether the

section 9 breach is sufficiently connected to theobtaining of the gun and ammunition in the sense that it was “obtained in a manner” that infringed

section 9. [84] In one sense, it could be said that the

section 9 infringement, by immobilizing Mr. Squires through putting him on the ground,handcuffing him and confining him in the police car, facilitated the subsequent discovery of the gun and ammunition and that the twowere therefore causally connected. However, it is likely that if the police had refrained from excessive force and conducted a lawfulinvestigative detention, by limiting their interaction with Mr.

Squires to stopping him, requiring him to exit the vehicle and standingoutside the vehicle with his hands in view on the roof to enable a pat down protective search, the officer would in due course haveobserved the shotgun by looking through the window or by opening the door incident to the search. The evidence would have beendiscoverable in any event. [85] Notwithstanding the potential discoverability of the evidence through lawful means, the Supreme Court decision in R. v.

Côté,2011 SCC 46, [2011] 3 S.C.R. 215 has acknowledged that if the police nevertheless follow a course of conduct which infringes theCharter, the discovery may nonetheless be tainted and bring the administration of justice into disrepute, thereby justifying exclusionunder section 24(2). Although discoverability remains a relevant factor under the analytical approach mandated in Grant and itscompanion cases, it is not determinative.

As Cromwell J. observed in Côté at para. 70, “[a] finding of discoverability should not be seenas necessarily leading to admission of evidence” (emphasis added). [86] The approach in Côté has been applied by appellate courts in cases where an unlawful detention is followed by an otherwiselawful search: Fountain; and R. v. Plaha (2004), (ON CA), 188 C.C.C. (3d) 289, 24 C.R. (6th) 360 (Ont. C.A.). [87] In Plaha, Doherty J.A. emphasized that“[a] causal relationship between the breach and the impugned evidence is not necessary”(at para. 45).

It is sufficient if the breach and the obtaining of the evidence can be said to be part of the same transaction or course ofconduct. [88] Here, given the short amount of time between the first interaction between the police and Mr. Squires and the time when the gunwas seen and seized, as well as the general contex

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