r v. MARTIN SANSCARTIER, 2019 QCCA 1079

Unofficial English Translation of the Judgment of the Court R. c. Sanscartier 2019 QCCA 1079 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos.: 500-10-006448-177 (500-01-140066-165) (500-01-140186-161) (500-01-146469-165) DATE: June 19, 2019 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. GENEVIÈVE COTNAM, J.A. STEPHEN W. HAMILTON, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. MARTIN SANSCARTIER RESPONDENT – Accused JUDGMENT [ 1 ] The Crown appeals from a judgment of the Court of Quebec, District of Montreal, rendered on May 11, 2017, by the Honourable Christian M.

Tremblay, granting a motion to exclude evidence and acquitting the respondent of all charges. [1] [ 2 ] The respondent was charged with various indictable offences in connection with the possession of a prohibited firearm and possession of heroin and cocaine. He was also charged with breach of probation in connection with these offences. [ 3 ] Because this last charge proceeded summarily, the Court, with the consent of all the parties, granted to the appellant, from the bench, leave to appeal the verdict of acquittal in respect of that offence, pursuant to s. 676 (1.1) (

b) of the Criminal Code . [ 4 ] The judge granted the respondent’s application to exclude the evidence, since his arrest and the pat-down search to which he was subjected were carried out in violation of his rights under the Canadian Charter of Rights and Freedoms . That decision led to the respondent’s acquittal because the appellant’s evidence was based entirely on the excluded elements. [ 5 ] The appellant contests the decision.

It is of the view that the evidence collected during the pat-down searches, which resulted in the discovery of a prohibited weapon and the narcotics and led to the charges against the respondent, was perfectly legal.

According to the appellant, the trial judge erred: (1) in finding that the respondent was under arrest when he was simply under investigative detention; (2) in determining that the pat-down search performed during the investigative detention violated s. 8 of the Canadian Charter of Rights and Freedoms ; and (3) in excluding the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms . [ 6 ] An analysis of the issues requires revisiting the circumstances surrounding the June 25, 2016 police intervention that led to the charges laid against the respondent. [ 7 ] In the course of a Canada-wide investigation targeting the head of a drug trafficking operation, the RCMP suspected the respondent of supplying narcotics for sale in New Brunswick.

Constable Romanelli (hereafter “the Police Officer”) was part of a team assigned to his surveillance in the month before the intervention. The Police Officer took

part in at least four surveillance operations, during which he observed that the respondent’s lifestyle was consistent with that of a drug trafficker. [ 8 ] On June 25, 2016, a New Brunswick judge authorized a search warrant for the respondent’s residence after the respondent had been seen in the company of two people who were subsequently arrested in that province in possession of one kilogram of cocaine.

The RCMP team, which included the Police Officer, was to perform the search as soon as a Quebec justice of the peace endorsed the warrant. [ 9 ] While on his way to the agreed meeting place for the search, the Police Officer heard on the broadcast system that the respondent had just left his residence in his vehicle after placing an unidentified object in the trunk. [ 10 ] A few moments later, he happened to come across the respondent’s vehicle. With permission from his superiors, he decided to intercept it. The intervention took place on a busy street during rush hour.

The respondent stopped his vehicle as soon as the Police Officer intercepted him. As the Police Officer approached the vehicle, he observed that the respondent appeared nervous. Without further preliminaries, he informed the respondent that he was under detention and that the police had a search warrant for his home, and he told him to keep his hands on the steering wheel. He then ordered him to get out of his vehicle and place his hands on the roof. With

no further explanation, the Police Officer handcuffed the respondent and took him to his patrol car. [ 11 ] The respondent cooperated and was not aggressive. Before asking him to sit in the back seat of the patrol car, the Police Officer conducted a pat-down search of the respondent. It was in this context that he discovered a loaded illegal weapon in the waistband of the respondent’s trousers. On the basis of this new information, he placed him under arrest and informed him of his rights. [ 12 ] A subsequent search yielded a small quantity of heroin and cocaine in the respondent’s possession. A search of the vehicle revealed nothing in particular.

A) Did the trial judge err in finding that the respondent’s arrest was arbitrary? [ 13 ] The appellant submits that the trial judge erred in concluding that the respondent’s arrest was arbitrary because the Police Officer did not have reasonable grounds to believe that the respondent was involved in the commission of an offence at the time of his arrest and subsequent search.

According to the appellant, the judge imposed too heavy a burden on the Police Officer, who, at the time of the interception, had reasonable grounds to suspect that the respondent was involved in drug trafficking and to detain him for investigative purposes. [ 14 ] The first ground must fail. [ 15 ] The Supreme Court bases the police’s power of investigative detention on their duty to ensure the preservation of the peace, the prevention of crime, and the protection of life and property. [2] [ 16 ] Investigative detention carried out in accordance with the common law power does not infringe the right protected by s. 9 of the Charter . [3] To justify investigative detention, a police officer must have reasonable grounds to suspect that the totality of the circumstances present a clear nexus between the detained individual and a recent or on-going criminal offence. [4] In the absence of such reasonable suspicion, the detention becomes implicitly arbitrary and thereby infringes s. 9 of the Charter . [5] [ 17 ] The police officer’s subjective belief alone is not enough. [6] The reasonable suspicion standard requires that the suspicion be based on objectively discernable facts. [7] The analysis must be performed from the standpoint of a reasonable person “standing in the shoes of the police officer”. [8] Reasonable suspicion must be assessed against the totality of the circumstances. [9] [ 18 ] In addition, investigative detention must be conducted in a reasonable manner, taking into account the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference. [10] [ 19 ] In every case, investigative detention must be brief in duration [11] and must not become a de facto arrest. [12] [ 20 ] In this case, it can be inferred from the evidence that the Police Officer had reasonable grounds to suspect that the respondent was involved in drug trafficking in general, but not that he was committing or about to commit an offence at the time of the interception. [ 21 ] Investigative detention must not only be justified, it must, above all, be reasonably necessary. [13] [ 22 ] The evidence establishes that the Police Officer did not use his power of investigative detention, but that he intervened with the intention of detaining the respondent to prevent him from hindering the imminent search of his home and in the hopes of obtaining a warrant to search the trunk of his vehicle where he had allegedly place an unidentified object when he left his home. [ 23 ] These two grounds do not justify detaining the respondent.

He had just left his home and was unaware of the impending search. There was nothing to indicate that he was about to return to his home or, even if that had been the case, that he would hinder the search. [14] [ 24 ] Furthermore, the mere fact that the respondent had placed an unidentified object in the trunk of his car did not raise a suspicion that an offence was on-going or make investigative detention necessary. The respondent’s residence was under surveillance when he left his home.

No one found it necessary to intercept him at that time, just as no one had detained him during previous surveillance operations.

The police cannot use investigative detention as an excuse while they search for evidence. [15] [ 25 ] These reasons are sufficient to find that the detention was arbitrary and therefore contrary to s. 9 of the Charter . [ 26 ] Moreover, the judge could also find as he did that the detention had become a de facto arrest [16] within the first few minutes of the intervention. [ 27 ] Indeed, in the trial judge’s view, the evidence showed that from the first few moments, the Police Officer sought to control the respondent and that his actions exceeded mere investigative detention. [17] The Police Officer: (1) asked him to keep his hands on the steering wheel, (2) told him to get out of his vehicle, (3) handcuffed him, (4) told him that the police had a warrant to search his residence and that anything he said could be held against him, (5) led him to the patrol car, and (6) decided to search him before putting him in the vehicle until he got a search warrant. [ 28 ] The evidence does not establish that the Police Officer had reasonable grounds to believe that the respondent was involved in drug trafficking at the time of his intervention.

In his testimony, the Police Officer acknowledged that he did not subjectively believe he had such grounds. The facts also do not establish that he could have objectively believed that there were such grounds. Therefore, the trial judge was right to conclude that the respondent’s rights under s. 9 of the Charter had been violated.

B) Did the trial judge err in concluding that the pat-down search was unlawful and therefore contrary to s. 8 of the Charter ? [ 29 ] The second ground must also fail inasmuch as the respondent’s detention and, a fortiori , his de facto arrest were unreasonable.

[ 30 ] That decision is obvious insofar as, for the reasons already discussed, we find that the decision to intercept and detain the respondent in the police car was arbitrary. [18] The Police Officer searched the respondent solely to be able to confine him in the vehicle. [ 31 ] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. [19] A warrantless search, however, will be presumptively unreasonable. [20] In the case of a warrantless search, the Crown must justify it. [ 32 ] Without a reason to arrest or detain the respondent for investigative purposes, the search cannot be justified under the powers of search incidental to arrest. [ 33 ] In Mann , the Supreme Court recognized that, in some circumstances, a police officer may conduct a pat-down search as part of an investigative detention. [21] This is not so as a matter of course, however.

The police must “[believe] on reasonable grounds that his or her safety [or that of the public] is at stake and that, as a result, it is necessary to conduct a search.” [22] A vague concern or mere intuition are not sufficient to justify such a search. The search must be reasonably necessary in light of the totality of the circumstances. [ 34 ] In this case, it was for the appellant to prove that the Police Officer was justified in conducting such a search and therefore that he had reasonable grounds to believe that there was a threat to his safety or that of others.

The trial judge found that the appellant had not discharged this burden. [ 35 ] The Police Officer acknowledged that he was not at all concerned for his safety or that of the public. He did not feel threatened. The respondent, who was in handcuffs, was cooperating and was not aggressive. SPVM officers were nearby during the intervention. [ 36 ] It is true that the police systematically search detainees before putting them in the police car. In such cases, however, the search follows a lawful arrest. This case, however, presents a completely different state of affairs.

Even if it were accepted that drug traffickers are often armed, in the circumstances, an experienced officer knew or should have known that he had no grounds to detain the respondent and therefore to search him. [ 37 ] The trial judge was correct in concluding that the appellant did not discharge its burden and that the pat-down search, which resulted in the discovery of evidence leading to the charges against the respondent, was conducted in violation of the rights protected by s. 8 of the Canadian Charter of Rights and Freedoms .

C) In the alternative, did the trial judge err in law in his analysis of the test for excluding evidence under s. 24(2) of the Charter ? [ 38 ] In the alternative, the appellant argues that the judge erred in excluding the evidence obtained in violation of the respondent’s rights. [ 39 ] Evidence obtained under circumstances that violate the Charter is not systematically set aside. [ 40 ] Grant established that before granting a motion to exclude evidence, the judge must assess (1) the seriousness of the Charter - infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits, in order to determine whether the admission of evidence would bring the administration of justice into disrepute. [23] This analysis must take into account all the violations of the Charter rights of the person concerned.

The trial judge must weigh the various factors in light of the evidence adduced. [ 41 ] Unless an appellate court reaches a different conclusion on the issue of the breach itself, [24] the Court will show deference towards the trial judge’s decision and will not intervene, absent palpable and overriding error. [25] [ 42 ] In this case, the judge found that there were two Charter violations, namely, arbitrary detention and the unreasonable pat-down search.

He considered the impact of these violations in lights of the test in Grant . [ 43 ] In this case, the judge did not err in his assessment of the seriousness of the interference when he decided that the Police Officer had exceeded his power to detain when he stopped the respondent for the purpose of retaining him and obtaining a warrant to search the trunk of the car.

The circumstances of this case justified the judge’s finding of imprudent conduct on the part of the Police Officer, which was a serious Charter violation in a situation where there was no urgency to act and nothing to lead him to believe that the object placed in the truck was breaking the law or likely to disappear. [26] [ 44 ] In addition, the Police Officer did not inform the respondent of the real reasons for his detention. [27] He simply told him that a search warrant for his residence had been authorized.

Although he placed him under de facto arrest, he did not immediately inform him of his rights. [ 45 ] The judge also found that, by the Police Officer’s own admission, he searched the respondent for no valid reason. Therefore, the judge was correct to find that the Police Officer could not justify his actions by raising a good faith error [28] to explain the violation of a well-established rule governing a police officer’s power to conduct this type of a pat-down search. [ 46 ] Relying on R. v. Harrison , [29] the judge found that the intrusions, while not egregious, were nonetheless significant.

Despite the relatively non-intrusive nature of the detention and pat-down search, in his assessment of the violation, he took into consideration the absence of urgency or danger that the respondent would destroy the evidence sought by the search warrant. [ 47 ] The judge was aware that the evidence the respondent sought to exclude was reliable evidence and that, furthermore, it was the only evidence available to the appellant.

Nevertheless, given the seriousness of the violations and the fact that the Police Officer had no reason to believe that the respondent was about to commit a crime, the judge assigned less weight to the third test, which concerns society’s interest in the adjudication of the case on its merits. [ 48 ] The Supreme Court also recently stated the following with respect to the third test in Grant :

[142] The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction — that is, towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case ( see R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494 , at paras. 33-34 ), we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage.

The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility ( Paterson , at para. 56 ).

Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. [30] [Emphasis added] [ 49 ] In this case, the trial judge exercised his discretion in light of the proper tests and the evidence when he excluded the evidence gathered during the pat-down search and acquitted the accused. There is therefore no cause to intervene. FOR THESE REASONS, THE COURT: [ 50 ] DISMISSES the appeal. JACQUES DUFRESNE, J.A. GENEVIÈVE COTNAM, J.A.

STEPHEN W. HAMILTON, J.A. Mtre Luc Pagé DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the appellant Mtre Alexandra Longueville RABY, DUBE, LEBORGNE, AVOCATS For the respondent Date of hearing: October 3, 2018