R. v. Murphy, 2018 NSSC 191

Supreme Court of Nova Scotia Citation: R. v. Murphy , 2018 NSSC 191 Date: 20180815 Docket: CRH 473588 Registry: Halifax Between: Her Majesty The Queen v. Jay Cecil Paul Murphy Library Heading Judge: The Honourable Justice Peter Rosinski Heard: August 13, 2018 in Halifax, Nova Scotia Written Decision: August 17, 2018 Subject: Were there reasonable grounds for arrest, search incident to arrest, and search of vehicle?

Summary: Confidential informant provided detailed tip that male named “Jay” and known female would be driving in Fairview in precisely identified truck selling cocaine. Accused arrested as sole occupant and driver of truck. Result: There were reasonable grounds. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Murphy , 2018 NSSC 191 Date: 20180815 Docket: CRH 473588 Registry: Halifax Between: Her Majesty The Queen v.

Jay Cecil Paul Murphy __________________________________________________________________ DECISION __________________________________________________________________ Judge: The Honourable Justice Peter Rosinski Heard: August 13, 2018, in Halifax, Nova Scotia

Written Release: August 17, 2018Counsel: Jeff Moors for the Crown Joshua Nodelman for Mr. Murphy By the Court: Introduction [1] Mr. Murphy is to stand trial October 29 and 30, 2018, on charges that he did commit the following offences on or about May16, 2017, at or near Halifax: 1. unlawfully have in his possession for the purpose of trafficking, cocaine, a substance included in

schedule one of theControlled Drugs and Substances Act, and did thereby commit an offence contrary to section 5(2) of the said Act; 2. at the same time and place, he did while bound by a probation order issued on the third day of October 2016, wilfully failwithout reasonable excuse to comply with such order, to wit, “keep the peace and be of good behaviour” contrary to

section 733.1(1)(a)of the Criminal Code of Canada. On June 29, 2018 Mr. Murphy filed an application alleging breaches of sections 8 and 9 of the Charter of Rights, wherein he seeks tohave excluded as inadmissible at his trial, any evidence arising from unlawful police actions. [2] The hearing to decide the latter issues took place August 13th, 2018. The following reasons address the evidence andarguments. The evidence presented at the hearing [3] The Crown presented evidence by way of viva voce testimony from the investigating police officers, inter alia: ConstableDavid Harding; Sgt.

Kenneth Burton; Constable Chad McNamara and Constable Craig Smith. It also tendered, by consent, exhibit VD –1, which is a compilation of the items seized from the person of Mr. Murphy and from the Ford Escape (Nova Scotia license DDR 165)which he was operating at the time he was arrested. Counsel agreed that the informational contents of this exhibit could be used by thecourt for the truth of its contents. Has the Crown established that there were reasonable grounds for the arrest and search of Mr.

Murphy, and search of the FordEscape? [4] Counsel did not dispute that Justice Robert Stack outlined the general principles of law applicable to such cases in hisdecision, R. v. Wasylow and McGuire, 2017 NL TD 184: ANALYSIS 31 There is no disagreement between the parties as to the following basic principles: 1)The onus is upon the Crown to establish that a warrantless arrest was lawful and not contrary to

section 9 of the Charter. This onus ismet if the arrest complies with the requirements of section 495(1) of the Criminal Code, R.S.C. 1985, c. C-46. 2) Section 495(1) of the Criminal Code authorizes a peace officer to arrest without warrant a person whom the officer believes, onreasonable grounds, has committed an indictable offence. 3) The arresting officer must subjectively have reasonable grounds upon which to base the arrest. In addition, those grounds must bejustifiable from an objective point of view.

A reasonable person placed in the position of the officer must be able to conclude that therewere reasonable grounds for the arrest (R. v. Storrey, (SCC), [1990] 1 S.C.R. 241). 4) In Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at page 167, the Supreme Court of Canada set the reasonablegrounds standard "at the point where credibly-based probability replaces suspicion". As noted by Wilson J. in R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, at page 1166, "The appropriate standard is one of 'reasonable probability' rather than 'proof beyond areasonable doubt' or 'prima facie case'.

The phrase 'reasonable belief" also approximates the requisite standard. 5) In assessing the objective grounds for the arrest, an arresting officer's

interpretation of the actions of an accused must be considered inlight of the officer's training and experience (R. v. Acosta, 2014 BCCA 218). 6) The term "reasonable grounds" has been equated with "credibly-based probability" (Hunter v. Southam Inc.). Suspicion does notsuffice. 7) A warrantless arrest of an accused that is not in accordance with section 495(1)(

a) of the Criminal Code is an unlawful arrest. 32 In both Debot and R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, the Supreme Court of Canada addressed thesufficiency of grounds based, at least in part, on confidential source information. In Debot, Wilson, J. emphasized that a reviewing courtmust consider the "totality of the circumstances", stating at paragraph 53: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.

First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a'tip' originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, Iconcur with Martin J.A.'s view that the 'totality of the circumstances' must meet the standard of reasonableness.

Weakness in one areamay, to some extent, be compensated by strengths in the other two. [Emphasis added.] 33 In Garofoli, the Supreme Court addressed the above-noted principles particularly as they apply to information provided byconfidential informants at pages 1456 and 1457: Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from aninformer, by itself, is insufficient to establish reasonable and probable grounds. The reliability of the tip is to be assessed by recourse to the 'totality of the circumstances'.

There is no formulaic test as to what thisentails. Rather, the court should look to a variety of factors including:

a) the degree of detail of the 'tip'; (b)the informer's source of knowledge; c)indicia of the informer's reliability such as past performance or confirmation from other investigative sources. The results of the search cannot, ex post facto, provide evidence of reliability of the information. 34 To assess whether reasonable and probable grounds existed to believe that Mr. McGuire committed an indictable offence (traffickingin a controlled substance), I must review the grounds from both a subjective and objective basis.

The grounds to arrest him were basedon the information received from Source A, the NCDB check and the surveillance by the police. The law with respect to whetherreasonable grounds existed to arrest in this scenario -- where there is a tip from a confidential informant and then an arrest - has been setout in R. v. Whyte, 2011 ONCA 24, aff'd 2011 SCC 49 , [2011] 3 S.C.R. 364, and more recently reviewed by our Court ofAppeal in R. v.

Day, 2014 NLCA 14, aff'd 2014 SCC 74). 35 With respect to the degree of corroboration of information that may be required, the comments of Wilson, J. in Debot at paragraph218 must be kept in mind: ...it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observedconforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

As I noted earlier, however, the levelof verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where few detailsare provided and the risk of innocent coincidence is far greater. 36 These principles were recently recognized and affirmed by our Court of Appeal in R. v. Parsley, 2016 NLCA 51 at paragraph 16where Hoegg, J.A. stated: 16 The Garofoli court confirmed that it is the totality of the circumstances that must be assessed. In this regard, see R. v.

Burke, 2011NBCA 51 where the appellate court emphasized the need for flexibility in considering the factors and cautioned against elevating onefactor to the status of an essential prerequisite to the existence of reasonable grounds when considering the "totality of thecircumstances". (See also, R. v. Lewis (1998), (ON CA), 38 O.R. (3d) 540 (C.A.), at para. 22 per Doherty J.A.) 17 As well, it is worth restating that there is no legal requirement that confidential source information be independently corroborated inwhole or in part.

Where the informant is a confidential source of "known identity" and "proven reliability", the need for independentcorroboration of the information is less important and not required as a rule of law (R. v. Al-Amiri, 2015 NLCA 37, 368 Nfld. & P.E.I.R.146 and R. v. Beauregard (1999), (QC CA), 136 C.C.C. (3d) 80 (Que.

C.A.) at 82-83). [Emphasis added.] 37 As stated by the Ontario Court of Appeal in Whyte, at paragraph 12: 12 The test to be applied for considering whether an informer's tip provides reasonable grounds for an arrest or search is whether thetip is compelling, whether it is credible and whether the tip was confirmed by independent investigation. 38 In Day, Hoegg, J.A., discussed in some detail the role of informants in a criminal investigation: [34] The arrest of Mr. Day was based on an investigation prompted by a tip received from an informant.

The value of informants to theenforcement of criminal law in this country has long been recognized and respected (R. v. Scott, (SCC), [1990] 3 S.C.R.979, pp. 993-994; and R. v. Leipert, (SCC), [1997] 1 S.C.R. 281, para. 9). However, informant information can bevariable in its reliability, and care must be taken by the police not to act on it precipitously or cavalierly. This was recognized by theSupreme Court in Debot; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; and R. v. Greffe, (SCC), [1990]1 S.C.R. 755.

In Garofoli, a case concerning reasonable and probable grounds to justify a search, Sopinka J. quoted with approval LamerC.J.'s adoption of Martin J.A.'s statement in R. v. Debot (1986), (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), a caseinvolving the lawfulness of a warrantless arrest, as the test for assessing confidential informer's information: I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable groundsfor conducting a warrantless search ...

Highly relevant ... are whether the informer's 'tip' contains sufficient detail to ensure that it is

based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. 39 The nature and quality of the source information must be considered in light of the principle that the reliability of the tip is to be assessed by recourse to 'the totality of the circumstances'.

The Court must look to a variety of factors including: 1) the degree of detail of the 'tip', 2) the informer's source of knowledge, and 3) indicia of the tipster's reliability. 40 Finally, as to how the determination of whether an arresting officer's grounds were subjectively and objectively reasonable, Bennett, J.A., stated in R. v.

Luong , 2010 BCCA 158 : [24] The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations of the officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge and skills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the same conclusion as the police officer. ...

The factual findings I make [ 5 ] I accept the testimony of Constable David Harding, and the other officers, as honest and reliable, unless I state otherwise. [ 6 ] He has been with HRP as a police officer since March 2009, and with the West Quick Response Unit (WQRU) for two years. [ 7 ] The WQRU is a plainclothes group of approximately seven officers who work using unmarked police vehicles and are able to respond to emerging and urgent matters (“hotspots”) on short notice. Their shift starts at 4:00 p.m.

Tuesdays and ends with their 4:00 p.m. shift Fridays. [ 8 ] Since early 2010, he has been the source handler for 25 confidential informants. [ 9 ] In R. v. Brassington , 2018 SCC 37 , the Supreme Court most recently reiterated the paramountcy and sanctity of the informer privilege rule.

In a number of decisions in the last decade the court has strongly emphasized the need for those involved in law enforcement and the judicial process to be vigilant in ensuring that no information that could identify the confidential informant is made to any persons who are not authorized to be privy to that information. [ 10 ] When police officers testify regarding information they have received from a source, and upon which the prosecution relies in a case before the court, those officers must choose their words very carefully in order not to breach the informer privilege.

This duty may prevent an officer from giving a response to a question. Constable Harding was faced with such circumstances in this case. [ 11 ] Notably, he was confronted in cross-examination with what he had prepared as an initial threadbare can-say on May 16, 2017, as contrasted with his June 6, 2017 seven paragraph revised can-say. He confirmed that the initial can-say was created on the day of Mr. Murphy’s arrest and search.

Once he had further time to consult his Source Handler Notes, [1] he was able to expand his can-say in order to more fully comply with his disclosure obligations, by carefully choosing his words therein in order not to breach the informer privilege. [ 12 ] Counsel suggested to him that his can-says were inconsistent insofar as their respective content was concerned, and also in relation to his testimony. [ 13 ] As a general statement, I find that the officer was being as candid, honest and reliable as he could be given the necessary restrictions imposed upon his testimony by informer privilege.

I am satisfied that any apparent inconsistencies are explained by the Constable’s attempts to respect to the informer privilege. [ 14 ] Mr. Murphy questions whether the police had reasonable grounds to detain, arrest, and search Mr.

Murphy, and the Ford Escape. [ 15 ] Constable Harding and others testified that 14 Randall Avenue, Fairview, HRM, is a four-apartment unit building which had been an ongoing source of “drug activity” for some time preceding May 16, 2017. [ 16 ] The WQRU members had routinely surveilled that location and area many nights in the six months preceding May 16, 2017, and reasonably concluded that it continued to be a haven for those involved in the illicit drug trade during “all hours of the day and night”.

I accept their evidence thereon. [ 17 ] On May 12, 2017 in the evening Constable Harding was doing surveillance at that location and saw a silver Ford Escape bearing Nova Scotia license DDR 165 stopped there and a female exit in the driveway of 14 Randall Avenue. He identified the female and operator of the vehicle as Nadia Gonzalez, who is someone he knew was involved in the street-level drug trade. [ 18 ] He saw her speaking to another individual (a male who was not Jay Murphy) who was also involved in drug activity. [ 19 ] Constable Harding knew that Ms.

Gonzalez had recently been stopped in Dartmouth and charged for being in possession of illicit drugs, and confirmed it was her through a police photograph. Motor vehicle records confirmed that the vehicle was registered to the parents of Nadia Gonzalez. She was known to regularly operate that motor vehicle. [ 20 ] Four days later, on May 16, 2017, at or around 1:00 p.m., Constable Harding received information from a confidential informant – source A.

[ 21 ] Source A told him that Nadia Gonzalez and a male named “Jay” would be travelling around the Fairview area selling crack cocaine and pills and would be going to an address on Randall Avenue. They would be travelling in a silver Ford Escape with license plate number DDR 165. Ms. Gonzalez often travelled with a man named “Jay”. [ 22 ] Later in the day the source updated the information to advise that Ms.

Gonzalez and Jay would be going to 14 Randall Avenue, arriving in the next 30 to 45 minutes and that they were in possession of drugs for resale. [ 23 ] The WQRU quickly set up surveillance in anticipation of this vehicle driving to 14 Randall Avenue. While in separate vehicles, surveillance was conducted in a tight perimeter around Randall Avenue, by: Sgt. Ken Burton, Constable Chad McNamara and Constable Trudy McCullough, Constable Craig Smith, Constable Nick Byrne, Constable Foster and Constable David Harding. [ 24 ] Constable Harding testified regarding the reliability characteristics of source A.

He stated that: 1. He had known the source for 18 months; 2. He usually had weekly contact with his source, but sometimes so daily, although there were occasional intervals of no contact; 3. The source had a criminal record, however not for any offences that would materially affect his credibility, such as perjury, obstructing justice etc.; 4. The source freely associated with persons with criminal records and those involved in the illegal drug trade; 5. The source’s access to the information was “based on conversations with and observations of the persons involved”; 6. The source had been paid by the police; 7.

The source had provided information which had not been acted upon by police, but that was always where there were no means or ability to act or where action by the police would necessarily have jeopardized the source’s identity; 8. The source had provided information which had been acted upon, and in three cases specifically the information provided was confirmed; 9.

The source had not once provided information which was found to be unreliable. [ 25 ] Constable Harding testified that, “I had absolutely no concerns with the [reliability of the] source’s information that day.” [ 26 ] Notably, in this case, the information provided by the source was remarkably accurate regarding the events in the pre-arrest period. The source had predicted that Nadia Gonzalez and Mr. Murphy would be arriving in the vicinity of 14 Randall Avenue in the next 30 to 45 minutes, driving the Ford Escape with license DDR 165, and carrying drugs for resale. [ 27 ] Within that timeframe, Mr.

Murphy was seen driving that vehicle, on one of the only two routes leading to 14 Randall Avenue, and very close to arriving at 14 Randall Avenue. While Mr. Murphy was not able to be identified by the officers in the WQRU until the vehicle was stopped, upon being approached Mr. Murphy confirmed he was “Jay” Murphy. [ 28 ] Constable McNamara testified that he arrested Mr. Murphy, took him out of the vehicle, and gave him his Charter of rights and right to silence caution. He did not know Mr. Murphy before-hand, however Mr. Murphy readily admitted who he was. Shortly thereafter he handcuffed him. [ 29 ] Mr.

Murphy was stopped near the intersection of Main Street and Gebhardt Street. Constable McNamara was dealing with Mr. Murphy and took him back to his police vehicle. There Sgt. Burton assisted. He observed that while he was standing with his arms behind his back ready to be handcuffed Mr. Murphy was fidgeting in a purposeful manner and would not directly produce his hands easily for handcuffing. [ 30 ] Constable McNamara confirmed that when he tried to handcuff Mr. Murphy he was fidgeting with his hands. Immediately after he had handcuffed Mr.

Murphy, Constable McNamara retrieved a stone of crack cocaine which had fallen directly below where Mr. Murphy had been standing. I am satisfied that this stone of crack cocaine was dropped there by Mr. Murphy. [ 31 ] Sgt. Burton and Constable McNamara were both present when a search was carried out of Mr. Murphy’s person. Constable McNamara took from Mr.

Murphy’s camouflaged jacket, upper left body pocket, one pill bottle containing a stone of crack cocaine; a score sheet which was a listing of customer’s names and dollar amounts; and from his right upper body pocket he retrieved a black cylinder-shaped crack pipe which was stained with what appeared to be drug residue. [ 32 ] Sgt. Burton confirmed that his further search of Mr.

Murphy revealed wrapped tinfoil in his right sock; a plastic kinder egg container in his left sock; and a plastic bag in his left sock – all exhibits seized were turned over to Constable Byrne for processing. [ 33 ] The officers did not see any illegal drugs or what might have been illegal drugs or related paraphernalia “in plain view” inside the vehicle. [ 34 ] Constable Harding examined the vehicle interior and seized a new Samsung Galaxy phone and a cracked screen (inoperable) LG cell phone from the backseat.

He also seized a phone charger and earphones. [ 35 ] Constable Craig Smith seized from the passenger side door, in plain view once he was closer, several Ziploc bags that were empty which were inside of a larger one; from the closed glove compartment he emptied the contents on the passenger seat and identified a score sheet with items written thereon and highlighted in green and yellow marker.

[36] A

summary of the items seized was admitted by consent [2] as exhibit VD-1. In total, the search revealed: 6.2 g of cocaine(from 16 stones of crack cocaine). Given these facts, has the Crown established that there were reasonable grounds to stop the vehicle, arrest Mr. Murphy, andsearch him and the vehicle? [37] The key question is whether there were reasonable grounds for the officers’ arresting of Mr. Murphy, and the search of himand the vehicle? [38] First, I will address whether there were reasonable grounds to stop the vehicle. [39] In R. v.

Duong, 2018 SKCA 25, the trial judge convicted the appellant for possession of cannabis marijuana for the purpose oftrafficking contrary to section 5 (2) of the CDSA. Mr. Duong was speeding in his vehicle when he caught the attention of a police officerwho followed the vehicle.

While following the vehicle he ran the licence plate which generated three hits – the first was for a convictionfor cultivation contrary to section 7 (1) of the CDSA; the second related to a conditional discharge for an unknown offence; and the thirdindicated that the vehicle was linked to a prohibited driver. [40] As a result of the third hit the officer pulled over the vehicle. Mr. Duong was the sole occupant. Mr. Duong appeared verynervous. The officer learned that Mr. Duong was not a prohibited driver, however he had noted Mr. Duong appeared extraordinarilynervous when he was speaking to the officer.

He also observed a billfold of cash wrapped in an elastic band in the console in plain view.The officer decided to detain Mr. Duong for a drug investigation. During the detention, a police sniffer dog detected the scent of drugsafter which the vehicle was searched. Located in the trunk were 50 pounds of marijuana, vacuum sealed in half pound bags, and valuedat $90,000-$140,000. [41] On appeal the court stated: 39 Mr. Duong next argues the trial judge erred in finding the constellation of factors relied on by the officer to detain Mr.

Duong anddeploy a sniffer dog amounted to reasonable suspicion. 40 In Chehil, the Court affirmed that the suspicion relied on by the police must be supported by factors that are objectivelyascertainable. These factors are "[t]he constellation of facts ... based in the evidence, tied to the individual, and capable of supporting alogical inference of criminal behavior" (at para 46) (emphasis added). 41 That reasonable suspicion is a relatively low threshold was described in MacKenzie as follows: [74] Parenthetically, I note that there are several ways of describing what amounts to the same thing.

Reasonable suspicion means"reasonable grounds to suspect" as distinguished from "reasonable grounds to believe" (Kang-Brown, 2008 SCC 18 , [2008] 1S.C.R. 456 at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a "reasonable belief"in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, asopposed to a reasonable belief that an individual is connected to the offence.

As Karakatsanis J. observes in Chehil, the bottom lineis that while both concepts must be grounded in objective facts that stand up to independent scrutiny, "reasonable suspicion is a lowerstandard, as it engages the reasonable possibility, rather than probability, of crime" (para. 27). (Emphasis in original) 42 This was made clear as well by the Court in MacKenzie when it stated: "However, the test for reasonable suspicion will not bestymied when the factors which give rise to it are supportive of an innocent explanation" (at para 72). [42] There was no s.9 Charter violation when the police stopped the vehicle.

The reference to reasonable suspicion is usefulbecause it also gives further clarity to the greater threshold required in this case, namely reasonable grounds to believe that Mr. Murphyhad committed or was about to commit an indictable offence. [43] The key question is: did the arresting officer have a reasonable belief [subjectively honest and objectively demonstrable] thatMr.

Murphy had committed or was about to commit an indictable offence? [44] I find it a reasonable inference, and one that I would draw, that at their briefing, during the day and just before they set up theirsurveillance, each of the officers of the WQRU were aware of all the grounds for arrest articulated in his testimony by ConstableHarding.

a) The arrest of Mr. Murphy was based on reasonable grounds-see R. v. Loewen, 2011 SCC 21 [45] I accept that Constable McNamara honestly believed Mr. Murphy had committed an indictable offence or was about to do so. Was his belief, more likely than not, reasonable? [46] Source A’s information predicting the commission of a criminal offence by the persons driving the Ford Escape license numberDDR 165 was compelling – the level of detail was remarkable; the source was speaking from personal knowledge and observations; thesource had previously proven to be reliable in the past, and not once unreliable.

The source freely associated with persons in the criminalelement, and had no convictions for credibility – related offences. [47] The WQRU members had themselves seen, on an ongoing basis, illegal drug activity at 14 Randall Avenue. The vehicle inquestion was associated with earlier drug offences, had been seen driven by Nadia Gonzalez, and stopped at 14 Randall Avenue onlyfour days earlier. Nadia Gonzalez was reliably implicated in street level drug trafficking using that vehicle.

[48] The information provided by the source was corroborated. [49] I appreciate that the finding of cocaine after a search cannot ex post facto provide evidence of the reliability of the informationthat was relied on by police to form their reasonable grounds for the search.

However, the corroboration of the information provided bythe source that is confirmed in the pre-arrest period is legitimately considered in assessing the reasonableness of the arrest. [50] The pre-arrest sequence of events observed by the officers conformed sufficiently to the anticipated constellation of facts setout by the source, so as to remove the probability of innocent coincidence. Moreover, once Mr.

Murphy identified himself as “Jay”, thisonly added to the bulk of evidence in support of his arrest. [51] While the source information was incorrect insofar as Nadia Gonzalez was not present in the vehicle, that does not erode theremaining reliable evidence to a point where there were not reasonable grounds for the arrest of Mr. Murphy. In the totality ofcircumstances here there were reasonable grounds for the arrest of Mr. Murphy. [52] In R. v.

Pearson, 2017 ONCA 389, leave to appeal denied [2017] SCCA No. 465 (April 12, 2018), the court commented inrelation to a search of a vehicle after a lawful detention for impaired driving, as follows: D. THE SEARCH OF THE APPELLANT'S CAR ON JANUARY 15, 2008 23 The appellant concedes that the traffic stop of the appellant's car on January 15, 2008 was lawful. The police officer, Smintich, wasconcerned about impaired driving, given the manner in which the car was operated. When he approached the driver's side of the car henoticed unusual redness to the appellant's eyes.

His pupils were dilated, and the officer smelled burnt marijuana. The appellant was slowin retrieving his papers and failed field sobriety tests. Smintich arrested the appellant for impaired driving. He searched the appellant'svehicle incident to arrest, finding shotgun shells in a knapsack in the trunk. 24 The trial judge's reasons for admitting the shotgun shells into evidence are reported at 2011 ONSC 1913.

He held at para. 34 that thepurpose of the search of the trunk and the knapsack was to "locate evidence helpful to the impaired driving offence" and that the searchof the car was lawful and incident to his arrest for impaired driving. 25 The argument on appeal is that the search incident to arrest went too far. Searching the trunk, and the knapsack found in the trunk, forevidence helpful to the impaired driving offence was unreasonable, and the search should have been confined to the area close to thedriver's seat. 26 I do not accept this argument. The arrest of the appellant for impaired driving was lawful.

The search was undertaken to look formarijuana and by a police officer who was not involved at all in the homicide investigations. Discovery of marijuana in the trunk of theappellant's car and in his knapsack, would have some probative value on the issue of whether his ability to drive was impaired bymarijuana. There was a reasonable basis for the officer's actions and a reasonable prospect of finding evidence of the offence for whichthe appellant had been arrested: see R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, at paras. 20 and 22. [53] Having concluded that the arrest of Mr.

Murphy was lawful as it was based on reasonable grounds (a credibly-basedprobability), I go one to ask myself whether there was a reasonable prospect of finding evidence in the vehicle or on his person, of theoffence for which Mr. Murphy had been arrested? [54] By the time Mr. Murphy was arrested, his identity had added to the bulk of evidence in support of the reasonable grounds forthe officers to conclude he had on his person, or in the truck, cocaine for resale, and associated evidence such as score sheets, packagingetc. [55] There were reasonable grounds for the search incident to the arrest of Mr.

Murphy – which I find included the three commonpurposes referenced by the Supreme Court: ensuring the safety of the police and public; the protection of evidence from destruction atthe hands of the arrestee or others; and the discovery of evidence which can be used at the arrestee’s trial- R. v. Caslake (SCC), [1998] 1 SCR 51 and Cloutier v. Langlois, (SCC), [1990] 1 SCR 158. [56] There were also lawful grounds for the search of the vehicle. Conclusion [57] The arrest of Mr. Murphy, the search of Mr.

Murphy incidental to arrest, and the search of the Ford Escape were all lawful. [58] Alternatively, if it could be said that I have erred in so finding, I will briefly examine whether the evidence should remainadmissible pursuant to

section 24 of the Charter of Rights. [59] The governing cases from the Supreme Court of Canada include its seminal decisions in R v Grant, 2009 SCC 32; R. v. Suberu,2009 SCC 33; and R. v. Harrison, 2009 SCC 34. [60] Regarding the seriousness of the breaches, the police were acting in good faith on what could have been considered reliableinformation that they themselves observed and received from a confidential informant. Their actions were not cavalier, or arbitrary. Ifthere were breaches, they were of a less serious nature. [61] Regarding the impact on Mr.

Murphy’s right to be free from unlawful arrest and search incident to arrest, the officers actedrespectfully, and the search was not particularly intrusive, cocaine being retrieved from his socks and two pockets on his outerwear(including the scoresheet). [62] Notably, one of the crack cocaine stones was voluntarily dropped by Mr. Murphy, and thereby abandoned by him concurrently

with his handcuffing by police. [ 63 ] The search of the vehicle could only be unlawful if Mr. Murphy had a reasonable expectation of privacy therein. While that was conceded by the Crown, the police had not previously seen Mr. Murphy operating that motor vehicle, nor were there any indicia that he was a regular operator of that motor vehicle, so that the police in good faith may have believed his expectation of privacy therein was more limited. [ 64 ] Regarding society’s interest on the adjudication of the case on its merits, the evidence seized here is physical evidence, and highly reliable.

It is a reasonable inference that a trier of fact could draw, that cumulatively there is sufficient evidence to conclude that Mr. Murphy was committing the offence of possession of cocaine for the purpose of trafficking, and that he was delivering the cocaine to persons associated with 14 Randall Avenue. [ 65 ] The courts of this province have recognized that the dealing of cocaine, particularly with the violence and criminality that it brings, is a serious threat to social order.

Justice Bryson stated in relation to the objectives of the Safer Neighbourhoods and Communities Act , S.N.S. 2006, c. 6 as amended, in Nova Scotia (Dir. of Public Safety) v. Dixon , 2012 NSCA 2 , at para.62: The Act establishes civil means by which the insidious erosion of neighbourhoods and communities flowing from criminal activity can be forestalled. [ 66 ] In conclusion, as the Court stated in R. v. Harrison , 2009 SCC 34 , at para. 36 : The balancing exercise mandated by 24(2) is a qualitative one, not capable of mathematical precision.

It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth seeking interest of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration of justice that must be assessed . [ 67 ] I am satisfied that a reasonable observer would see no reason in the circumstances here to dissociate the justice system from any arguable missteps by the police in this case. In good faith, the police proceeded to investigate this matter. They surveilled Mr. Murphy’s movements, and stopped him in the Ford Escape when he approached what they believed was his final destination – namely 14 Randall Avenue. [ 68 ] The minimally intrusive search of Mr.

Murphy revealed non-bodily physical evidence that is highly reliable and essential to the Crown's case. Moreover, the seized items include cocaine, which drug is seen as seriously corrosive to the objective of the provision of a safe community environment.

Summary [ 69 ] I find the arrest, and search of Mr. Murphy and the vehicle were all lawful. [ 70 ] Alternatively, should I have erred in so finding, under the s. 24(2) Charter analysis, I would have concluded that the evidence should nevertheless be admitted. P.P. ROSINSKI J.