2012 QCCQ 3372, 2012 QCCQ 3372

R. c. Nougué JW0200 2012 QCCQ 3372 COURT OF QUEBEC Criminal and penal division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL No.: 500-01-041944-106 DATE: February 29, 2012 _____________________________________________________________________________ PRESIDING: THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutrix v.

GUY NOUGUÉ Defendant _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ INTRODUCTION [ 1 ] This judgment raises the issue of the power to search an automobile when police officers are concerned about the health of a detainee. [ 2 ] The defendant, Guy Nougué, faces four counts of possession of substances prohibited by Schedules I and III of the Controlled Drugs and Substances Act . [1] [ 3 ] The defence files a motion to exclude the evidence under section 24(2) of the Charter based on alleged violations of his rights under sections 7, 8 and 10 of the Charter .

THE FACTS [ 4 ] Following a concert at Montreal’s Bell Centre on March 10, 2010, security guard Marc Raymond was approached by the Bell Centre parking attendant, who asked him for assistance. The parking attendant was accompanied by an eleven-year-old boy, who said that his uncle was acting strangely. Raymond accompanied the boy to a car in the parking lot. [ 5 ] Raymond observed an individual at the wheel of a car that was moving forward and backward – one foot forward, then one foot backward – repeatedly.

This movement was inexplicable since there was nothing blocking the car in either direction and nothing to explain that erratic driving. [ 6 ] Raymond asked the driver to stop the car and step out of the vehicle. While the driver (the defendant) was cooperative, Raymond observed that he was perspiring, his pupils were dilated, he was nervous and he never stopped moving. The defendant’s behaviour was very odd: he repeated a rocking motion in which he would first lean backward and stretch, then bend forward into a crouching position. He undid his shoe laces, then retied them. He removed his belt, then replaced it.

He wanted to remove his coat.

[ 7 ] Raymond asked him [ translation ] “what he was on”. The defendant replied that he was not on anything and appeared not to understand what was happening. Raymond called the police and kept an eye on the defendant, who continued to repeat the same movements, without ever stopping. [ 8 ] Following the 911 call placed by Raymond, officers Cool and Bach arrived at the parking lot. [ 9 ] Officer Cool first noticed the car, which was poorly parked. Then he noticed the defendant’s same bizarre actions: he was sweating profusely, he was nervous and he could not stop moving.

He seemed to have nervous tics that caused all his facial muscles to twitch continuously. He constantly scratched his neck and back. He made stretching movements, bending down to touch his toes, then standing up to stretch his back. He removed his socks and shoes and replaced them three times, complaining that his feet were hot. His nephew was panic-stricken. [ 10 ] Despite the defendant’s extremely strange behavior, Officer Cool smelled no alcohol on his breath and observed that the defendant was able to answer questions. The defendant did not seem to be fully aware of his actions, however.

In particular, Officer Cool says that the defendant did not realize that he was moving constantly. When asked about the health problems that he seemed to be experiencing, the defendant did not even understand why the police officers were asking such questions, as if everything was normal. [ 11 ] Officer Cool was worried about the defendant’s physical condition - not only because his movements were so strange but also because he did not seem to be aware of what he was doing.

Believing that the defendant might have overdosed on something, Officer Cool called an ambulance. [ 12 ] While waiting for the ambulance to arrive, Officer Cool decided to look in the defendant’s vehicle for a [ translation ] “clue” that would explain his physical condition and thus allow him to give more specific information to the ambulance attendants. Officer Cool thought he might find medication or a medical prescription. He first checked the centre console, then opened the glove compartment, where he found small bottles and bags containing pills.

He realized that they were illegal substances. [ 13 ] Officer Cool seized the drugs and arrested the defendant for possession of narcotics. He explained his right to silence and his right to counsel. [ 14 ] Despite the original call for driving while impaired, Officer Cool did not arrest the defendant for that crime because he saw no signs of alcohol consumption, and he was unable to obtain a drug detector. [ 15 ] Officer Cool spoke to the ambulance attendants, telling them what he had found in the car.

He then followed the ambulance to the hospital, where he spoke to the doctor about the defendant’s physical condition. [ 16 ] Cross-examined about his reasons for searching the car, Officer Cool explained that it hadn’t occurred to him to obtain a warrant before searching the car.

He thought it was urgent to look for something that would explain the defendant’s condition. [ 17 ] By the parties’ admission, Officer Bach’s version confirms the testimony of Officer Cool. [ 18 ] The five certificates of analysis filed in evidence confirm that the drugs seized were GHB, methamphetamines and amphetamines. [ 19 ] The defendant presents no evidence in support of his motion. THE POSITIONS OF THE PARTIES [ 20 ] According to the defence, [2] the evidence shows that the defendant was detained for investigative purposes. Once he was detained, he was entitled to the rights guaranteed by sections 10(

a) and (

b) of the Charter, but the defendant was never informed either of the reason for his detention or of his right to counsel. Neither was he informed of his right to silence until the narcotics were discovered, which constituted a

section 7 violation. [ 21 ] Furthermore, the search of the car was a warrantless search, which is presumptively unreasonable. There was no justification for the search, since there was neither consent nor emergency. While a protective search is permitted during an investigative detention, this was not a protective search according to the police officers’ version.

The defence argues that the search for a clue concerning the medical condition of the defendant was merely a pretext and that the true goal of the search was to find evidence supporting a charge of driving while impaired by drugs. [ 22 ] Taking into account the cumulative effect of these violations, the facts in this case point to the blatant abuse of the defendants’ rights by the police officers, and the evidence should therefore be excluded under section 24(2) of the Charter . [ 23 ] According to the prosecution, [3] this was an emergency situation authorizing the police officers to exercise their powers to ensure the defendant’s safety.

Moreover, the brief detention did not engage the rights protected by sections 10(

a) and (

b) of the Charter . ANALYSIS [ 24 ] The applicable principles must be analyzed in accordance with the factual findings of the Court. The defence position that the reason given for the search was a pretext is rejected. The Court accepts Officer Cool’s account of the events, which was confirmed by his partner, Officer Bach, and which was not contradicted. According to his testimony, although the original intention of the police officers was to investigate a case of impaired driving, that intention quickly changed when they observed the extremely bizarre behaviour of the defendant.

Officer Cool’s testimony reveals that the officers had serious concerns about the physical condition of the defendant. The defendant’s nephew was panicking, and the officers believed that the defendant was experiencing the effects of an

overdose. Everything the officers did from that point on was meant to clarify the defendant’s condition and provide him with medical assistance as soon as possible. The purpose of the questions asked by the officer was to clarify the physical condition of the defendant. The officer wanted to know if the defendant suffered from a disease, such as Parkinson’s, given the many facial tics. But the defendant could not reassure the officers since he completely denied having any problem at all.

I conclude from this testimony that the police officers quickly set aside the primary goal of their intervention to carry out their duty to protect the public and provide assistance. [ 25 ] The Court does not accept the defence claim that the goal of the search was to find evidence. It is true that Officer Cool says that he made (unsuccessful) efforts to find a qualified technician to test for drugs for the purpose of charging the defendant with impaired driving. He nevertheless explains that these steps were taken only after the narcotics were discovered in the glove compartment.

Once the defendant was under the care of the ambulance attendants and they had been advised of the probable cause of the defendant’s distress, the police officers were perfectly free to continue their investigation and even charge the defendant with impaired driving. But I repeat that I conclude from Officer Cool’s testimony, confirmed by Officer Bach, that the purpose of the

summary search of the car was to find an explanation for the defendant’s behaviour and thus inform the ambulance attendants about his medical condition. Detention and

section 10 [ 26 ] It is not disputed that the defendant was detained. When the security guard intervened, the defendant was required to comply with his orders to stop the car and step outside the vehicle to await the arrival of the police. As explained by the Supreme Court in R. v . Suberu and R. v. Grant , [4] an individual may be detained within the meaning of the Charter without being subject to actual physical restraint. Where a person is legally required to comply with a demand or direction that interferes with his or her liberty, the person is generally considered to be detained for the purpose of

section 10. Where there is no legal obligation to comply but a reasonable person in the same position would conclude that he or she had been deprived of the freedom of choice, detention is also established. [5] Without addressing the issue of whether the actions of the security guard could give rise to this belief in the defendant, it is clear that once the police arrived, the defendant was not free to leave. According to the testimony of Officer Cool (confirmed by Officer Bach), the defendant was initially held for investigative purposes since he had been seen at the wheel of his car, while possibly impaired. [ 27 ] Suberu establishes that the rights conferred by

section 10 of the Charter apply as soon as detention arises. The police have a duty to inform detainees of the reason for their detention and their right to counsel “without delay”. “ The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter .” [6] [ 28 ] In the absence of any information given to the defendant as to the reasons for his detention and his right to counsel, this is a clear case of a

section 10 violation.

Section 7 and the right to silence [ 29 ] Whereas

section 7 of the Charter protects the right to silence and the right against self-incrimination, it is not the police officer’s responsibility to advise detainees specifically of these rights, as they must do regarding the right to counsel. [7] The absence of information given to the defendant concerning his right to silence does not violate

section 7. Of course, police officers cannot extract information from detainees who wish to remain silent, and they must refrain from questioning detainees before they have exercised their right to counsel. [8] [ 30 ] Despite its allegation of a

section 7 violation in its motion, the defence does not submit arguments in respect of a violation of this section. Indeed, in this case, no statements were extracted from the defendant. The goal of the questions he was asked was to clarify his medical condition. This was in no way a case where police officers sought to obtain an incriminating statement from the defendant. The conduct of the police officers did not infringe his right to silence. The search [ 31 ] The primary goal of

section 8 of the Charter is to protect privacy from State interference. Police conduct interfering with a reasonable expectation of privacy constitutes a search within the meaning of this provision . The reasonable expectation of privacy is limited, moreover, in the case of motor vehicles.

Since this was a warrantless search, it is presumptively unreasonable, and the Crown must establish on a balance of probabilities that the search was authorized by a reasonable law and carried out in a reasonable manner . [9] [ 32 ] The testimony of Officer Cool establishes that the search in question was not incidental to an investigative detention. Such searches are permitted within the limited context of protection and safety. [10] The search conducted by Officer Cool was not a protective search. [ 33 ] The issue is therefore whether this intrusion in the defendant’s privacy was otherwise justified.

As indicated in R v. Godoy , [11] a two-step analysis is required: If police conduct constitutes a prima facie interference with a person’s liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty? (para.12) [ 34 ] With regard to the first question,

section 48 of the Police Act provides the following about the duties of police officers:

The mission of police forces and of each police force member is to maintain peace, order and public security, to prevent and repress crime … In pursuing their mission, police forces and police force members shall ensure the safety of persons and property, safeguard rights and freedoms, respect and remain attentive to the needs of victims … [12] [ 35 ] Also, as noted in R v. Dedman , [13] at common law, police officers have a duty to protect life.

In this case, ensuring the safety of the defendant was among the duties of Officers Cool and Bach. [ 36 ] The second question is whether the warrantless search of the car constitutes an unjustifiable exercise of the powers arising from that duty to protect life. Each case turns on its own facts and all the circumstances must be taken into account. As stated by Doherty J.A. in R. v.

Simpson , [14] the following are among the factors to be considered: • the duty being performed by the officer; • the extent to which some interference with individual liberty is necessitated in order to perform that duty; • the importance of the performance of that duty to the public good; and • the liberty interfered with, and the nature and extent of the interference . [ 37 ] In this case, the duty fulfilled by the officers was to provide the necessary care to the defendant, who was showing major symptoms of unease.

Unlike in Godoy , where the forcible entry into a private home was necessary to determine the nature of the 911 distress call, we cannot say in this case that it was necessary for the police officers to search the car in order to protect the defendant’s life. This analysis must nevertheless be carried out in light of the circumstances in which the police officers found themselves.

Based on their assessment of the immediate situation and the defendant’s unusual and worrisome behaviour, they felt it was necessary to look for clues to fulfil their duty to protect the defendant in the most effective way possible. [ 38 ] As for the freedom interfered with by the police officers and the nature and extent of that interference, we must consider the lesser expectation of privacy in a motor vehicle [15] and the non-invasive nature of the search performed. [ 39 ] Consequently, this search was not unreasonable.

It was authorized by the duties and powers of police officers in circumstances requiring assistance, which the police officers were attempting to provide to the defendant. There is no violation of

section 8 of the Charter. Section 24(2) [ 40 ] The analysis under section 24(2) is relevant only to the violation of

section 10. In the event that the conclusions regarding the absence of violation of sections 7 and 8 are in error, however, an analysis based on the criteria set out in R. v. Grant [16] concerning the alleged violations of sections 7, 8 and 10 will follow. 1) Seriousness of the Charter -infringing State conduct [ 41 ] The Court reiterates that the conduct of the officers is not a source of reproach here. If their conduct exceeded the authorized limits, they were acting in good faith, with a sincere desire to assist the defendant. Their conduct does not show any contempt for the rights of the defendant.

This factor supports inclusion. 2) Impact of the breach on the rights of the defendant [ 42 ] The alleged violations of sections 7 and 10 had no effect on the police investigation. The defendant made no incriminating statements and was not conscripted against himself. While a causal relationship is not strictly necessary to raise a violation of

section 10, [17] it is relevant to note the absence of effects of this violation on the defendant. [ 43 ] With regard to the violation of

section 8, we must remember the low expectation of privacy in a motor vehicle. [18] This factor supports inclusion. 3) Society’s interest in the adjudication of the case on its merits [ 44 ] The drugs seized are reliable evidence and essential to the Crown’s case. Moreover, the appellant was not conscripted against himself. Although this is a case of simple possession, they are dangerous drugs and a trial on the merits is in society’s best interests.

This factor supports inclusion. [ 45 ] In conclusion, in all of the circumstances, the Court concludes that although the defendant’s sections 7, 8 and 10 Charter rights were violated, the use of the evidence obtained in violation of his constitutional rights would not bring the administration of justice into disrepute. [ 46 ] For these reasons, the motion is dismissed. __________________________________ LORI RENÉE WEITZMAN, J.C.Q.

Mtre Pierre Garon For the prosecution Mtre Michel Pelletier For the defendant Hearing dates: December 6, 2011, and January 25, 2012.