2013 QCCQ 7863, 2013 QCCQ 7863

R. c. Périgny 2013 QCCQ 7863 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF AMOS “Criminal Division” No.: 605-01-008199-121 DATE: July 5, 2013 ______________________________________________________________________ PRESIDED BY: MADAM JUSTICE LUCILLE CHABOT, J.Q.C. ______________________________________________________________________ THE QUEEN PROSECUTRIX v. PATRICK PÉRIGNY ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Patrick Périgny is charged with the

summary conviction offence of possession of cocaine. [ 2 ] He brings a motion to exclude evidence on the grounds that the police conducted an unauthorized search of his vehicle and that he was subjected to an unwarranted pat-down search. [ 3 ] He alleges that these warrantless searches were unreasonable because they were not based on any recognized power conferred by statute or at common law and that consequently the evidence was obtained in violation of his fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms [1] (the Charter ).

The exclusion of the evidence is sought because its use would be likely to bring the administration of justice into disrepute. [ 4 ] The parties have agreed that the evidence adduced at the voir-dire would be included in the record at trial to permit the Court to rule on the motion and, as the case may be, on the merits. [ 5 ] The versions of the officers and the accused concerning the sequence of events of the police intervention differ on some points.

According to the police officers, the events took place in the following manner. [ 6 ] On March 8, 2012, during a meeting with a third party, Officer Izraël Rouleau was told that Périgny had made suicidal statements. Apparently, on March 4, he had placed the barrel of a 7 mm rifle in his mouth. Someone had intervened, and Périgny had not followed through on his grim plan. [ 7 ] The officer consulted the registry and confirmed that Périgny owned a firearm, specifically, a 7 mm rifle. [ 8 ] He asked for Périgny to be located as quickly as possible.

A preventive intervention was undertaken, and the situation was designated [ translation ] "intervention for disturbed mental state", using the police department jargon. [ 9 ] Officers Morin and Bolduc teamed up and headed toward Périgny's domicile. As they neared the street on which Périgny lived, they saw a vehicle pull out. It matched the description of Périgny's vehicle. Before stopping it, they followed the vehicle for a while and observed nothing unusual about the way it was being driven.

As soon as they turned on their roof lights, the accused pulled over to the side of the street. [ 10 ] Périgny was identified. According to the information that Officers Morin and Bolduc had, Périgny had threatened to commit suicide with a firearm. They had no other details. Officer Bolduc ordered Périgny to exit his vehicle and to come with him to stand behind it. They questioned him about his life and his state of mind. They describe him as calm and cooperative. At first, Périgny denied that he had made any suicidal statements, but he soon admitted that he had.

Bolduc and Morin report that Périgny said that things were not going very well and that he was having a hard time. They told him that they had to take him to a hospital, where professionals with expertise in such matters could evaluate him and make a decision. Initially, Périgny was not particularly inclined to follow them there.

He changed his mind quickly, however, realizing he had no choice when Officers Bolduc and Morin told him that he would be taken to the hospital whether he agreed or not, either by them or in an ambulance. [ 11 ] In the meantime, Officers Rouleau and Lemieux had arrived on the scene. [ 12 ] They asked Périgny where the 7 mm rifle was. Périgny told them that it was in the trunk of his car, which he opened so that the

officers could take possession of the firearm. Officer Rouleau opened the case and saw that the ammunition was not with the rifle. They wanted to find and seize the ammunition. Officer Rouleau testified that Périgny told them that it was inside the car. Lemieux and Rouleau began to search the car again. Rouleau said that he found three packets of cocaine in the storage compartment of the centre console between the two front seats, in plain view.

Rouleau does not remember if there were compact disks or papers in the storage compartment, but he does recall that there were other objects, although he cannot specify what they were. [ 13 ] While Rouleau and Lemieux searched the trunk of the car, Officers Bolduc and Morin conducted a pat-down search of Périgny. A hard object was detected. When the police officers asked Périgny what it was, he told them that it was a pocketknife. Officer Bolduc says that he personally removed the pocketknife from Périgny's pockets.

He says that his dexterity and sensitivity were diminished because he was wearing gloves and that a packet of cocaine slid out of the pocket with the knife as he pulled it out. [ 14 ] Bolduc placed Périgny under arrest for possession of narcotics. Officers Bolduc and Morin were unaware of the results of the search of the car interior, and it is likely that this search was still underway when they left with Périgny. Similarly, Rouleau and Lemieux were unaware of the result of the pat-down search conducted by Bolduc and Morin. [ 15 ] Officers Bolduc and Morin went to Périgny's home to retrieve the ammunition.

Périgny invited them in. The 7 mm rifle ammunition was not found in either in the car or in the accused's residence. [ 16 ] Officers Bolduc and Morin then took Périgny to the hospital.

As they were waiting, Bolduc and Morin learned that three packets containing cocaine were found in the car, and they told Périgny. [ 17 ] The on-call physician decided to admit Périgny so that he could undergo an evaluation the next day by a mental health professional. [ 18 ] When asked about the grounds for the pat-down search, Officers Bolduc and Morin stated: − The search was necessary for their own safety and that of Périgny. − Their vehicle did not have a cage between the front and back seats. − Officer Bolduc states that, when a person gets in his vehicle after he has placed that person under arrest, or when he intervenes because of suicidal statements, in those cases, it is automatic: there is a search to ensure the safety of both the officer and the person. − Officer Morin confirms that they regularly proceed in this manner. [ 19 ] Regarding the search of the interior of the vehicle for ammunition, Officer Rouleau acknowledges that he did not ask for Périgny's consent, stating that, because he had found the weapon in the trunk, he had the right to search the entire vehicle.

He states that he did not insist on obtaining Périgny's consent to seize the weapon because it was his duty to do so. He adds that when Périgny answered his question regarding the whereabouts of the ammunition, he said that all he had to do was look in the car, since it was probably there.

He notes that Périgny was no longer there when he searched the interior of the vehicle because Officers Morin and Bolduc had already taken him away. [ 20 ] The accused provided his version of the facts in a lengthy examination and an even lengthier cross-examination. [ 21 ] Périgny confirms that, on March 4, 2012, he thought about killing himself with a firearm. This event lasted four hours. Thoughts of his daughter finally made him snap out of it and change his mind.

The fact that it was his daughter's birthday a few days later made him realize the seriousness of the act and the consequences it would have on his loved ones. Members of his immediate family quickly came to his aid, offering him support and keeping an eye on him. On March 8, he went to Malartic to purchase some narcotics. After returning home, he decided to take a drive around town. He had a packet of cocaine on him and three others in the storage compartment of the central console in his car. [ 22 ] As he pulled out of his street, he saw a police car driving in.

He noticed that the police officers were staring at him. He continued on his way. He quickly noticed that the police cruiser was following him. He drove along Rue Principale to the intersection of 3rd Avenue, where he decided to turn to see whether the police were indeed following him. When he turned onto 1st Street, the officers turned on the roof light and the accused pulled over. Officer Bolduc approached his window and asked him whether he was Patrick Périgny. When he answered in the affirmative, he was asked to exit the vehicle.

He was led to a spot between his vehicle and the police cruiser parked behind it. The police officers asked him how he felt, because they had heard that he was not doing too well, and questioned him. He was finally told that they had been informed that he was suicidal and that they were looking for the 7 mm rifle so that they could seize it. [ 23 ] Périgny tried to reassure the officers about his state of mind. He told them that, although he had been suicidal four days earlier, the situation was completely different now. He mentioned his daughter's birthday, which was the next day.

In fact, it was precisely because of his daughter that he had not killed himself and that he no longer wanted to. He told them that he had his family's support. [ 24 ] When he was told that he was going to be brought to the hospital, he was reluctant to go at first because he thought that in these situations people were kept for three days and that meant that he would miss his daughter's birthday. After he was told he would be brought there with or without his consent, he agreed to follow the officers. [ 25 ] In the meantime, the other two officers, Rouleau and Lemieux, arrived on the scene.

One of them asked where the 7 mm rifle was, and Périgny opened the trunk of his car for them. One of the officers noted that the ammunition was not with the weapon in its case and asked him where it was. Even before he answered, one of the officers was using his flashlight to peer through a window into the vehicle. Périgny, however, was certain that the ammunition was with the gun. He wondered aloud whether it might be in the car but then quickly said it was impossible and that it must be at his house.

[ 26 ] Périgny states that, as soon as he said [ translation ] "car", Officers Rouleau and Lemieux opened the car doors and began to search. He denies that he gave them any authorization whatsoever to search the interior of his vehicle. [ 27 ] The accused was led back between the two vehicles, where Officer Bolduc told him that he would be subjected to a pat-down search before being placed in the police cruiser. He was told that, for safety reasons, they were searching for blunt, sharp, or pointy objects. [ 28 ] They proceeded with a first pat-down, asking him to empty his pockets.

He emptied his right pocket, taking out a few bills and some change, and his left pocket, taking out a pocketknife. Périgny states that, when he took out his pocketknife, he tried to flatten and place the packet of cocaine in such a way that they would not feel it. The police officer then proceeded with a second pat-down, stopping at the left pocket, where he felt something. He asked the accused what it was, and the accused answered, [ translation ] "It isn't a blunt object". Officer Bolduc put his hand in the pocket and pulled out the packet of cocaine.

The accused adds that when he pulled out the packet of cocaine, a straw used to ingest the drug came out at the same time. The straw had been in the side of his pocket, along the pant seam, which is why it had not been detected. [ 29 ] Officer Bolduc placed the accused under arrest. Whereas the officers had told him a few minutes earlier that the priority was to bring him to the hospital, they now asked to go to his home to retrieve the ammunition for the 7 mm rifle, which they did, but to no avail. [ 30 ] Once at the hospital, he was told that the other packets of cocaine had been discovered in his car.

The accused testified that he had taken care to put papers and compact disks on top of these three packets. He challenges Officer Rouleau's statement that these packets were in plain view. [ 31 ] At the hospital, he met with the general physician on call, who decided to admit him to the hospital overnight so that he could be seen by a mental health professional the next day. After this evaluation, which took place in the morning of March 9, Périgny was released from the hospital.

Position of the defence [ 32 ] The defence argues that both the pat-down search and the search of the vehicle were unreasonable because there was no statutory or common law power to conduct these searches. The accused was not detained for investigative purposes. They were not searches incidental to arrest, since the arrest resulted from the searches.

Nor were there exigent circumstances raising a concern that the evidence would be destroyed or where the time required to obtain a warrant would have rendered it impractical. [ 33 ] It is also submitted that the situation of the accused did not meet the criteria under

section 8 of the A ct respecting the Protection of persons whose mental state presents a danger to themselves or to others [2] or call for the application of

section 48 of the Police Act . [3] [ 34 ] More specifically, with regard to the search of the vehicle, the defence argues that the packets of cocaine were not in plain view, since other spots were searched first (glove compartment, seats) and objects had to be moved for the packets to be discovered. [ 35 ] The Court is asked to declare that these searches were unlawful because they were conducted in violation of

section 8 of the Charter and, in light of the detailed assessment carried out by the Supreme Court in Grant , [4] to set aside the evidence seized from the accused's person and from his vehicle. Position of the prosecution [ 36 ] The prosecution argues that the police officers intervened under

section 48 of the Police Act in order to save a life. The prosecution acknowledges that Périgny's situation involved psychological detention. It also acknowledges that he was not under investigative detention. [ 37 ] The Court is referred to Aucoin [5] and more specifically to paragraph 36 thereof, which deals with the general common law power of detention. The prosecution submits that the Court must weigh the risk incurred by the police officers against the right infringed to determine whether their intervention violated the accused's freedom only to the extent reasonably required to deal with such risk.

It argues that, even if the Court concludes that the rights of the accused were infringed by the pat-down search, under Grant , [6] the evidence should not be excluded. [ 38 ] With regard to the search of the vehicle, it is up to the Court to determine whether or not the packets were in plain view. [ 39 ] The prosecution further argues that subsection 117.02 of the Criminal Code [7] permitted the officers to search the vehicle because Périgny's actions four days earlier had constituted an offence. Here the prosecution refers specifically to carrying a weapon for a dangerous purpose (

section 88 of the Criminal Code ). The prosecution concludes that the search of the vehicle was perfectly lawful and that the evidence thereby obtained is admissible.

Analysis: [ 40 ] The defence bears the burden of proving the facts supporting its motion on a balance of probabilities. [ 41 ] On the merits – since, if need be, the same evidence will ultimately be used to arrive at the verdict – the prosecution must establish the essential elements of the offence alleged against the accused beyond any reasonable doubt. [ 42 ] The versions of the facts provided by the police officers and the version given by Périgny overlap on several points but differ with respect to the two most important elements: the moments immediately preceding the search of the automobile and the pat-down search of the accused.

[ 43 ] The version given by Périgny is coherent. He answers questions openly and sensibly. He does not try to avoid the questions, nor does he tend to trivialize or exaggerate. [ 44 ] Despite a long and tortuous cross-examination, he never once contradicted himself. He never seemed irritated by the repeated questions, remaining attentive and calm. The facts he related are clear and precise. This is the version the Court accepts, because it has no valid reason to reject it. [ 45 ] Both parties agree that the accused in this case was detained. He could not leave the scene, even if he wanted to.

There was no possibility of doing so. This was made clear to him when he was told that he would be brought to the hospital whether he liked it or not. The elements of constraint, lack of choice, and the obligation to submit are clear in the testimonies of both the police officers and Périgny. [ 46 ] Périgny was subjected to a pat-down search. The interior compartment of his vehicle was also searched. These warrantless searches are presumptively unreasonable.

It is up to the prosecution to prove, on a balance of probabilities, that the searches were authorized by law, that the law itself was not unreasonable, and that the searches were not conducted in an unreasonable manner. [8] [ 47 ] The prosecution alleges that the source of the police powers used here is

section 48 of the Police Act , the preservation of life. It is acknowledged that this power also emanates from the common law. [9] [ 48 ] The ground for intervention alleged by the three officers who testified was [ translation ] "a disturbed mental state".

This is the only real ground they invoke. [ 49 ] Clearly, this intervention was based on very specific statutory provisions contained in a particular statute, the Act respecting the Protection of persons whose mental state presents a danger to themselves or to others, which may be characterized as a special statute in that it goes beyond what the ordinary law prescribes. Where a special statute creating special powers and duties exists, it must prevail over laws of general application.

At its origin, the intervention that took place is based in the civil law. [ 50 ] No one here has claimed that Périgny was detained because he was suspected of being connected to any crime whatsoever.

He was not under arrest, nor was he under investigative detention within the meaning of Mann [10] since, in the circumstances, none of the police officers had reasonable grounds to suspect that he was connected to a particular crime and that the detention was therefore necessary. [ 51 ] The Court shall deal with the two searches separately because they were conducted by two teams of police officers independently and there was no exchange of information between them at the scene about the results of either the pat-down or the vehicle search.

Rouleau and Lemieux did not know that Périgny had been arrested after a packet of cocaine was discovered during the pat-down search. The only information that was shared was the discovery of the rifle in the trunk of the car and the fact that the ammunition was not with the gun. [ 52 ] The search of the VEHICLE: [ 53 ] When they performed this search, the rifle had already been found and was in the possession of the police officers. [ 54 ] The urgency to act, the immediacy, and the degree of danger were therefore decreased. [ 55 ] The only thing missing was the ammunition.

It must be admitted that without the firearm, the ammunition did not represent an immediate danger, especially since the cfro check had shown that Périgny owned only one firearm, the 7 mm rifle.

The circumstances, therefore, were not exigent. [ 56 ] Officer Rouleau testified that Périgny told him that the ammunition might have been in the car. [ 57 ] The accused says that he wondered aloud whether the ammunition might be in the car, but that he immediately rejected this hypothesis and said that it must be at his residence. [ 58 ] The Court finds that the accused did not authorize the search of his vehicle, much less waive his Charter rights protecting his expectation of privacy with respect to the contents of his vehicle. [ 59 ] It is true that there is a reduced expectation of privacy with respect to a vehicle.

This has been pointed out many times by the higher courts.

The Court also finds that authorization does not necessarily amount to a waiver of a Charter right. [11] [ 60 ] The Court accepts Périgny's version and, for two main reasons, can only conclude that authorization was not given: − It is difficult to believe that someone who is calm, cooperative, and in full control of his faculties would give such an authorization, knowing full well that there were packets of cocaine in his vehicle. − Officer Rouleau's statement that, with regard to firearms, he had the power to search for the purpose of seizing the ammunition or any other object connected with a firearm.

In cross-examination, he added that if a weapon is found in a vehicle, he has the power to search the entire vehicle. [ 61 ] Officer Rouleau also admitted in cross-examination that he did not ask for Périgny's authorization. [ 62 ] What statutory provision or principle does he base himself on when he asserts such powers? [ 63 ] It is worth repeating that the firearm had already been seized. [ 64 ] The Criminal Code [12] contains a specific provision dealing with the warrantless search of a vehicle for firearms, ammunition

or other enumerated devices. This provision, subsection 117.02(1), reads as follows: Where a peace officer believes on reasonable grounds (

a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or (

b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed. [ 65 ] It is quite easy to see that the conditions set out in this provision were not satisfied here: 1) There was no reasonable ground to believe that a firearm was being used in the commission of an offence.

It is worth pointing out that the three police officers all testify to the same effect: They were intervening because of a situation involving a disturbed state of mind. [ 66 ] In arguments, the prosecution tried to suggest that, four days earlier, Périgny had violated

section 88 of the Criminal Code . This assertion is in no way supported by the evidence. Reasons for the intervention that did not exist at the time of the events cannot be found in hindsight. Moreover, Périgny is not charged with an offence under

section 88 of the Criminal Code . This is an attempt to establish an ex post facto justification for the actions committed. 2) The police officers were not facing exigent circumstances that made obtaining a warrant impracticable. [ 67 ] Périgny was about to be brought to the hospital by two other officers. His vehicle was going to remain at the scene. Since Périgny was accompanied by police officers, it is highly unlikely that he would have been discharged from the hospital without Officers Rouleau and Lemieux being informed of this fact by Bolduc and Morin.

They therefore had the time they needed to apply for a warrant. Without it, this search was unlawful and the evidence was illegally obtained in violation of Périgny's constitutional rights and of a clear provision of the Criminal Code . [ 68 ] It is alleged that the packets of cocaine were in plain view and that no manipulation of other objects was needed to find them. [ 69 ] I find Périgny's testimony on this point particularly credible, since he knew he had cocaine in the centre console storage compartment because he had recently purchased it.

As he was driving out of the street he lives on, he saw the police cruiser and noticed that the officers were staring at him. He kept driving, and the officers followed him for a significant distance. Périgny turned onto 3rd Avenue, and the officers did the same. Since he knew he was being followed, it is more than likely that he took measures at that point to camouflage and hide the packets. It would be illogical to act in any other way. The Court accepts his version of the facts whereby the packets were concealed under some papers that were themselves underneath compact disks.

The Court does not believe that the packets were in plain view. [ 70 ] Therefore, the drug seized from the interior of the car was obtained in violation of the Charter . [ 71 ] Pat-down search [ 72 ] Were the police in a situation where they could detain Périgny? [ 73 ]

Section 8 of the A ct respecting the Protection of persons whose mental state presents a danger to themselves or to others provides the following: ... (1) at the request of a member of a crisis intervention unit who considers that the mental state of the person presents a grave and immediate danger to himself or to others; (2) at the request of the person having parental authority, the tutor to a minor or any of the persons mentioned in

article 15 of the Civil Code , where no member of a crisis intervention unit is available in due time to assess the situation. In such a case, the peace officer must have good reason to believe that the mental state of the person concerned presents a grave and immediate danger to himself or to others. ... [ 74 ] What information did they have? What information could they have had? [ 75 ] When Périgny was stopped, all Officer Bolduc knew about the situation was that he had threatened to commit suicide with a firearm. Officers Bolduc and Morin knew that Périgny had not made those statements that day.

Unlike Officer Rouleau, they did not have all of the information that could have been available. When were these suicidal statements made? Despite the arrival of Officer Rouleau where Périgny had been stopped, they did not ask for more information. [ 76 ] Périgny was calm and cooperative. He tried to explain to the police officers that he was no longer considering suicide, referring to his daughter's birthday the next day.

He was self-possessed, and he acknowledged that not everything was going smoothly in his life. [ 77 ] Did this represent " good reason to believe that he presented a grave and immediate danger "? [ 78 ] Four days had passed since the events. The immediate danger requirement was not satisfied.

[ 79 ] In the circumstances of this case, an application to a court for preventive confinement to undergo a psychiatric assessment would have been the appropriate procedure (article 27 C.C.Q .). [ 80 ] The Court therefore finds that the accused's detention under

section 8 of the A ct respecting the Protection of persons whose mental state presents a danger to themselves or to others was not valid. [ 81 ] What would the outcome be if the Court accepted the prosecution's argument that they were acting under

section 48 of the Police Act ? [ 82 ] Would the pat-down search have been valid? [ 83 ] According to the witnesses Bolduc and Morin, this search was performed to ensure their own safety and that of Périgny. They informed Périgny that he would be searched.

The lack of reaction on Périgny's part did not amount to acquiescence or a waiver of his Charter rights. [ 84 ] With regard to the contents of one’s pockets, there is a high expectation of privacy. [ 85 ] In Aucoin , [13] the officer who detained an individual, a new driver prohibited from driving after consuming any alcohol, requested and obtained the detainee's permission to perform a quick search for safety reasons before placing him in the back of the police cruiser. The Court considered whether any other means were available to the officer.

It should be noted that the pat-down search performed for safety reasons led to the discovery of cocaine. The Court found that there were other means available to the officer, particularly the presence of other officers, and the detention and search were therefore found to be unreasonable. It is also useful to note that the officer did not place his own hand into Aucoin's pocket. [ 86 ] In Phengchanh , [14] the Supreme Court of British Columbia reviewed the appropriate case law. Citing Waterfield , [15] it reiterated a few broad principles: [35] Police powers and police duties are not necessarily correlative.

While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty . Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain .

The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. ... [40] The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention . Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances : see S.

Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002), 2 C.R. (6th) 49, at p. 63 . The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition . ... [45] To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual . Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police.

The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [ 87 ] Discussing the issue of the safety of the officers, the court reviewed several decisions that warned trial judges "about second guessing a police officer about the need to search for the purpose of ensuring officer safety".

Later on, the court quoted Rosenberg J. of the Court of Appeal for Ontario in Byfield : [16] [40] The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. [ 88 ] Other than the suicidal statements, the timing of which the police officers did not exactly know, and the discovery of the 7 mm rifle, which had been seized, were there any other facts that could cause them to believe that the safety of the offices of Périgny was at risk? [ 89 ] Périgny was not angry or aggressive. He cooperated and spoke calmly with the officers. We are not speaking of a person with a record of violent offences.

Were there other, less intrusive methods that could have been used to ensure the safety of the officers and of Périgny? [ 90 ] Certain excerpts from the testimonies heard are worth repeating here. It was claimed that the search was justified because Officers Bolduc and Morin did not have a cage in their vehicle. What about the other vehicle that was at the scene? No evidence was adduced in this respect. [ 91 ] Could the intrusion have been avoided by calling an ambulance? Probably.

[ 92 ] What is most disturbing in the circumstances is the statements of the officers, each one affirming in a different way, that their actions were automatic. Officer Bolduc, for example, said: [ translation ] "It's automatic, someone who’s detained and is getting into my car will be searched ". [ 93 ] As for Officer Morin, he stated that, because there was no cage in the vehicle, there was a preventive search.

He added: [ translation ] "We do that regularly". [ 94 ] On the evidence adduced, the Court cannot find sufficient facts that could raise any concern regarding the safety of the officers or others. [ 95 ] Calling another vehicle with a cage or calling an ambulance to the scene would have been possible ways of avoiding the search. [ 96 ] The Court has the most difficulty reconciling the need for safety felt by the officers with the subsequent facts when it considers what happened when they went to Périgny's home. He was not handcuffed.

He was the only one familiar with the inside of his residence and who knew where any potentially dangerous objects were kept. It would appear that the concerns of the police officers, who just a few minutes earlier had been worried about their safety or that of Périgny, had fallen by the wayside once they were at his residence. [ 97 ] In my view, these two situations appear to be contradictory.

An officer may not claim to fear for his safety when placing a person in his vehicle while letting that same person move around his own home freely, without handcuffs. [ 98 ] From the above, the Court finds that the search was unreasonable because reasonable grounds for the police to fear for their own safety or that of Périgny have not been shown. [ 99 ] Should the evidence obtained be excluded under subsection 24(2) of the Charter ? [ 100 ] Grant [17] and Harrison [18] set out the criteria to be weighed by a court when making a decision with respect to evidence obtained in violation of Charter rights.

a) Seriousness of the Charter -infringing state conduct [ 101 ] In Grant , [19] the Supreme Court writes: .... a court [must] assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. [ 102 ] Thus, the more serious or deliberate the Charter -infringing state conduct, the more necessary it is for courts to dissociate themselves from it to preserve public confidence in the legal system. [ 103 ] Let us now consider the situation in the present case.

Périgny, the accused, was stopped due to concerns for his safety as a result of suicidal statements he had allegedly made four days earlier. This situation, which had the initial purpose of aiding a citizen, led to a completely different result: the search of his person and of his vehicle, and the charges he is facing today. [ 104 ] The search of the vehicle demonstrates a lack of awareness of the conditions for exercising the powers conferred on police forces by subsection 117.02(1) of the Criminal Code .

It is incorrect to claim that an officer has the power to search a vehicle as soon as a firearm is involved, and this statement demonstrates ignorance of the powers conferred by the Criminal Code and of their limits. [ 105 ] Similarly, the systematic performance of pat-down searches on every individual who is detained or arrested is not consistent with the principles that have been laid down by the courts. [ 106 ] Because of these erroneous beliefs, little regard was shown for the accused's rights and his right to privacy. [ 107 ] The police also intervened without knowing the conditions of application of the Act respecting the Protection of persons whose mental state presents a danger to themselves or to others. [ 108 ] In the circumstances, we find that the first test in Grant [20] is met.

The police conduct in this case is serious because it violated the constitutional rights of the accused, and the intervention, which was intended to assist him, resulted in a much more serious situation.

b) Impact on the Charter -protected interests of the accused: [ 109 ] In Grant , [21] the Supreme Court writes the following, in paragraph 78: Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity . An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [ 110 ] The case law has clearly established that the expectation of privacy in a vehicle is not as high as it is in a residence.

In R. v. Dault , [22] Gagnon J.A. wrote: [ translation ] While it is true that the expectation of privacy of a driver and a passenger in an automobile is lower than that of a person in a home, it is not non-existent. The law does not assume that all citizens are under suspicion. Police action must be adapted to the law being applied and the circumstances at the moment of the intervention to ensure that only " reasonably necessary " searches are permitted.

[ 111 ] Regarding the search for the ammunition, there was no urgency, since the firearm had been seized. The officers were required to comply with the provisions of the Criminal Code and apply for a search warrant, which they had the time to do since Périgny had been escorted to the hospital by two other police officers. [ 112 ] With regard to the contents of Périgny's pockets, the expectation of privacy was clearly higher.

Given the total absence of any reason for concern for safety, it was unreasonable to perform such a search, especially since it appears that this search has become a nearly automatic reflex every time a person is placed in the back of the police cruiser.

Other options that were more realistic and respectful of the citizen's rights were available. [ 113 ] Moreover, it is clear that in the subsequent moments, that is, during the visit to the accused's home, the safety concerns had apparently fallen by the wayside, even though many more potentially dangerous objects were available to Périgny and he was the only one who knew where they were. [ 114 ] A citizen in the situation in which Périgny found himself should not expect to be searched but to be helped.

c) Society's interest in an adjudication on the merits: [ 115 ] The drugs that were found are without question reliable evidence. This evidence is essential to the prosecution to establish that the accused is guilty of the offence charged. [ 116 ] The case law has recognized that the more serious the charge, the more interest society has in seeing it go to trial. [ 117 ] Therefore, the reliability of this evidence and the need for it to be adduced for the case to be heard on its merits weigh in favour of not excluding the evidence obtained through the violations.

d) Weighing of the factors: [ 118 ] In Harrison , [23] the Supreme Court makes the highly salient point that the expectation of compliance with constitutional standards is clearly higher for members of the police force. [ 119 ] Considering all of the circumstances surrounding the stopping of Périgny and the fact that the initial purpose of this intervention was to protect his person, and taking into account the Court's conclusion that a pat-down search was not necessary since other options were realistic and feasible, that the search of the vehicle was conducted in violation of the provisions of the Criminal Code , and that in both cases the police had erroneous beliefs regarding their powers and the scope thereof, the Court’s determination that both of the searches were unreasonable and that the requirements for the application of the A ct respecting the Protection of persons whose mental state presents a danger to themselves or to others were not met, the Court must find that, in the very specific circumstances of this case, the use of this evidence would bring the administration of justice into disrepute .

Failure to dissociate from such conduct could lead to public confidence in the administration of justice being undermined in the long-term. [ 120 ] Therefore, the Court [ 121 ] GRANTS the motion; [ 122 ] ORDERS the exclusion of the evidence gathered during the search of the vehicle and the pat-down search of the accused; [ 123 ] ACQUITS the accused of the offence charged, given the order to exclude the evidence. __________________________________ LUCILLE CHABOT, J.Q.C.

Mtre Geneviève Lamontagne Counsel for the prosecution Mtre Caroline Veillette-Jackson Counsel for the accused Dates of hearing: April 18 and 19, 2013