R. v. Aucoin, 2011 NSCA 64

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Aucoin, 2011 NSCA 64 Date: 20110713 Docket: CAC 336128 Registry: Halifax Between: Brendan David Aucoin Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice M. Jill Hamilton for the majority. Justice Duncan R. Beveridge in dissent. Appeal Heard: March 17, 2011 Subject: Criminal Law;

Section 8 of the Charter ; Protective pat-down searches incidental to the police power of investigative detention.

Summary: The appellant appeals his conviction for possession of cocaine for the purpose of trafficking and his sentence. The trial judge found his s. 8 Charter rights had not been infringed when a police officer, essentially alone, at midnight, during the busy Apple Blossom Festival weekend, when the car the appellant was driving was to be towed away and when he was concerned the appellant may take off if left on his own outside the police car, did a pat-down search before placing him in the back seat of the police car, so he could write a ticket for a motor vehicle infraction in the front seat.

In reaching her decision the judge considered the expert’s opinion that the appellant’s possession of cocaine was for the purpose of trafficking. She imposed a two year jail sentence as opposed to a conditional sentence. Issue: Did the judge err in finding that the appellant’s s. 8 Charter rights had not been breached, in giving improper weight to the expert’s opinion, by reaching an unreasonable verdict or by feeling that she was constrained from imposing a conditional sentence? Result: Appeal dismissed.

The majority, (Hamilton, J.A.; Fichaud, J.A. concurring) concluded the judge did not err in finding the appellant’s s. 8 Charter rights had not been breached. The police officer had a duty to complete his investigation into the appellant’s breach of the Motor Vehicle Act by writing the ticket. In the circumstances here, the brief detention of the appellant in the back seat of the police car was part of his investigative detention. It was reasonable, before placing him in the back seat, to do a quick pat-down search for safety reasons.

The judge’s reasons make it very clear she was aware of the frailties of the expert’s opinion, referred to it appropriately, analyzed the evidence before her and applied the proper burden of proof. Her verdict is not unreasonable and there was

evidence supporting it. Her reasons also make it clear that she applied the proper sentencing principles to the facts that she found. Beveridge, J.A. ( dissenting), would allow the appeal and enter an acquittal. The officer had no lawful authority to arrest or otherwise take the appellant into custody. The trial judge erred in law in finding no breach of the appellant’s Charter rights. Balancing and assessing the effect of the admission of the unconstitutionally obtained evidence mandates it be excluded pursuant to s. 24(2) of the Charter. This information sheet does not form part of the court’s judgment.

Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 39 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Aucoin, 2011 NSCA 64 Date: 20110713 Docket: CAC 336128 Registry: Halifax Between: Brendan David Aucoin Appellant v. Her Majesty the Queen Respondent Judges: Hamilton, Fichaud, and Beveridge, JJ.A.

Appeal Heard: March 17, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Hamilton, J.A., Fichaud, J.A. concurring. Beveridge, J.A. dissenting. Counsel: Brian V. Vardigans, for the appellant Leonard MacKay, for the respondent Reasons for judgment : [ 1 ] The appellant, Brendan David Aucoin, appeals his conviction for possession of cocaine for the purpose of trafficking and the two-year prison sentence imposed on him by Provincial Court Judge Claudine MacDonald. None of her oral voir dire , conviction or sentencing decisions are reported.

The issues raised in this appeal are whether the police officer breached the appellant’s s. 8 Charter rights, when he did a pat-down search of Mr. Aucoin prior to placing him in the back seat of the police car, so that he could write a ticket for a motor vehicle infraction in the front seat, whether the judge gave inappropriate weight to the expert’s opinion, whether the verdict is unreasonable and whether the judge felt constrained from imposing a conditional sentence for this offence and, therefore, failed to consider and properly apply the principles of sentencing.

Facts [ 2 ] Shortly after midnight, in Kentville, Nova Scotia, on May 31, 2008, Cst. Christopher Michael Burke, on patrol with Cadet Tyler Lynk, stopped the car Mr. Aucoin was driving because the licence plate on the car was for another type of motor vehicle. While checking the insurance and registration for the vehicle and Mr. Aucoin’s newly issued licence, Cst. Burke smelled alcohol and gave the appellant the roadside alcohol screening test demand. He asked Mr.

Aucoin to step out of the car he was driving and go back to the police car, two or three car lengths away, telling him he was not under arrest. [ 3 ] Cadet Lynk, who was unarmed, stayed beside the car Mr. Aucoin was driving. At the time of the incident, Cadet Lynk, was on his first on-the-job training assignment, having started his studies at the Atlantic Police Academy five months earlier. When describing how much reliance he felt he could place on Cadet Lynk, Cst.

Burke testified that, at that time, Cadet Lynk probably did not even know how to work the radio in the police car. [ 4 ] For the purpose of administering the alcohol screening test, Cst. Burke placed Mr. Aucoin in the back seat of the police car on the curb side with the door open and his feet outside. The screening test indicated alcohol in Mr. Aucoin’s blood, lower than the legal limit but in breach of the zero tolerance policy for a newly licenced driver.

Section 100A(1) of the Motor Vehicle Act , R.S.N.S. 1989, c. 293, ( MVA ) makes it an offence for a newly licenced driver to operate or have care and control of a vehicle if the concentration of alcohol in their blood exceeds zero milligrams in one hundred milligrams. Constable Burke decided to issue a

summary offence ticket to the appellant for driving with alcohol in his blood as a new driver. [ 5 ] Constable Burke testified that he was going to put Mr. Aucoin in the back seat of the police car, while he wrote the ticket in the front seat, because the car Mr. Aucoin was driving was being removed, it was the busy Apple Blossom Festival weekend, and he was concerned the appellant could walk away and disappear while he was writing the ticket.

Constable Burke further testified that it is standard practice for him, especially where it is busy and alcohol is involved, to place a person to whom he is going to issue a motor vehicle ticket in the back seat of the police car while he writes the ticket in the front seat and to do a pat-down search for weapons. He testified that he did the quick pat-down search of Mr. Aucoin to ensure his safety and the safety of Mr. Aucoin while he wrote the ticket.

His evidence was that he had no idea what the appellant had “in his possession that could harm himself or harm me while my back is turned to him and he’s in the rear of the patrol car.” [ 6 ] In the course of doing the pat-down search, Cst. Burke felt something in Mr. Aucoin’s right pocket which Mr. Aucoin told him was Ecstasy. The officer then arrested Mr. Aucoin and retrieved from his right pocket, two small baggies containing a total of 100 green pills and eight bags of a white powdered substance, later determined to contain cocaine.

[ 7 ] Constable Burke then re-searched the appellant. He found in his pocket, $245 or $250 in his wallet, the evidence varied, and $45 outside his wallet. [ 8 ] He took the appellant to the police station. After the appellant spoke with counsel, Cst. Burke interviewed him, believing the interview was being recorded. It was not. The officer’s point-form notes made after the interview were introduced into evidence, but he was not questioned about the substance of any statements allegedly made to him by Mr. Aucoin.

There was no other evidence concerning these alleged statements. [ 9 ] The appellant was charged with possession of cocaine and Ecstasy for the purpose of trafficking. The lab reports subsequently indicated the green pills were not Ecstasy, but a substance sometimes sold on the street as Ecstasy. The charge relating to Ecstasy was changed to a charge of possession for the purpose of trafficking in a substance held out to be Ecstasy. Mr. Aucoin was acquitted of this charge.

His appeal only relates to his conviction on the charge of possession of cocaine for the purpose of trafficking and the sentence imposed with respect to that conviction. [ 10 ] During the trial, Cpl.

Manning was qualified as an expert to give opinion evidence with respect to: the identification of Ecstasy and cocaine; the indicators that are consistent with possession of Ecstasy and cocaine for the purpose of trafficking; the indicators that are consistent with possession of Ecstasy and cocaine for personal use; the packaging and pricing of Ecstasy and cocaine, and trafficking methods associated with Ecstasy and cocaine; and finally, the jargon [of] the drug subculture and paraphernalia associated with Ecstasy and cocaine trafficking. [ 11 ] In his report Cpl.

Manning opines that the appellant possessed the cocaine for the purpose of trafficking, not for personal use. His report lists the significant evidence as being 100 tablets of Ecstasy (which he indicated during cross-examination should have read “100 tablets of a substance held out to be Ecstasy”), eight grams of cocaine, $290 in Canadian currency and a cell phone. It indicates that in reaching his opinion he considered, among other factors, Cst. Burke’s notes from his interview with Mr. Aucoin at the police station, the information disclosed by Mr.

Aucoin’s cell phone and the weights of the eight baggies of cocaine. The cell phone information and the exact weights of the cocaine in the baggies were not introduced into evidence, although the actual baggies were introduced. The judge found that the contents of the appellant’s alleged statement to Cst. Burke was also not before her. Once this missing evidence was brought to Cpl. Manning’s attention during cross-examination, he indicated that even without these three factors, he was still of the opinion that the cocaine was for the purpose of trafficking rather than for personal use.

He based his “in court” opinion to a large extent on the manner in which the cocaine was packaged, i.e. eight baggies containing less than one gram each rather than a single baggie containing approximately eight grams, but he also took into account the “red flags” of the amount and separation of money in Mr. Aucoin’s pocket; the separation of the green pills into two bags, one with 16 pills and the other with 84 pills; and the fact the drugs were found near midnight in the downtown area during the busy Apple Blossom weekend, as opposed to at a remote location with fewer potential customers.

Grounds of Appeal [ 12 ] The four grounds of appeal raised by the appellant, restated, are: 1. Did the judge err in finding that the appellant’s s. 8 Charter rights had not been breached by Cst. Burke doing a pat-down search before placing him in the back seat of the police car, so the officer could write a ticket in the front seat for a motor vehicle infraction? 2. Did the judge err in the weight she gave to the expert’s opinion that the appellant’s possession of cocaine was for the purpose of trafficking and not for personal use? 3. Is the verdict unreasonable? 4.

Did the judge err in principle by determining that she was constrained from imposing a conditional sentence and therefore failing to consider and properly apply the principles of sentencing?

Analysis [13] Did the judge err in finding s. 8 of the Charter was not breached? [14] Following a voir dire conducted at the beginning of the trial, the judge found that the appellant’s s. 8 Charter rights had notbeen violated by the pat-down search. [15] In her reasons she made findings of fact based on the conflicting evidence before her. She determined the sequence of eventssurrounding the pat-down search: I find that the sequence of events was as follows. That there was a pat-down search, that the officer asked Mr. Aucoin what was in hispocket or what was that, that Mr.

Aucoin indicated it was his wallet, and that was fine. Then the officer asked Mr. Aucoin what the item was that was on the right side, that Mr. Aucoin replied that it was Ecstacy. It was atthat time that Mr. Aucoin was placed under arrest. It was at that time, then, that Mr. Aucoin was searched. And it was at that time that, in fact, the pills and the white powered substance referred to by Constable Burke in his evidence wereseized. While that search is taking place, that’s when Constable Allen and Constable Andrews arrive on the scene.

And then after that,the vehicle is then searched. [16] Thus she found that Cst. Burke was basically on his own when administering the alcohol screening test and doing the pat-down search. Constables Allen and Andrews had not yet arrived. Cadet Lynk was inexperienced and was beside the car Mr.

Aucoin hadbeen driving, two or three car lengths away. [17] Before reaching her conclusion that the appellant’s s. 8 Charter rights had not been violated, the judge considered the law andcarefully analysed the circumstances in which the proposed detention and pat-down search occurred. [18] She considered the Supreme Court of Canada’s decision in R. v.

Mann, 2004 SCC 52, where the Court approved of the use ofprotective pat-down searches incidental to the police power of investigative detention, where the officer has reasonable grounds tobelieve his or her safety, or the safety of others, is at risk, as long as the detention and search are conducted in a reasonable manner andthe search is reasonably necessary in the circumstances. She quoted from Mann: 40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down searchincident to an investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonablegrounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain forinvestigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceedwith Caution or Full Stop?” (2002), 2 C.R. (6th) 49, at p. 63. The officer’s decision to search must also be reasonably necessary inlight of the totality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can thesearch be premised upon hunches or mere intuition. ... 43 The importance of ensuring officer safety has been recognized in obiter by this Court in R. v. Mellenthin, (SCC),[1992] 3 S.C.R. 615. Police officers face any number of risks everyday in the carrying out of their policing function, and are entitled togo about their work secure in the knowledge that risks are minimized to the greatest extent possible.

As noted by L'Heureux-Dubé J. inCloutier, supra, at p. 185, a frisk search is a “relatively non-intrusive procedure”, the duration of which is “only a few seconds”. Wherean officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down

search of the detained individual. The search must be grounded in objectively discernible facts to prevent “fishing expeditions” on the basis of irrelevant or discriminatory factors. ... 45 ...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 . ... [Emphasis added] [ 19 ] She noted : I suppose as a starting point when looking at a

Section 8 argument, it’s important that the Court keep in mind that any search that’s incidental to the limited police power of investigative detention is necessarily a warrantless search.

And such searches are presumed to be unreasonable unless they can be justified and therefore found reasonable pursuant to the Collins test. [ 20 ] She indicated that if a protective search for officer safety becomes an investigative search to locate evidence, then the search will lose its lawful character as incidental to detention and there will be a breach of s. 8 of the Charter . [ 21 ] The judge found that the circumstances of Mr. Aucoin’s detention and pat-down search were unusual: But we’re dealing here with a situation that has in my view and I’m satisfied has some very unusual circumstances at play.

For starters here, this was late at night when the officer encountered Mr. Aucoin. The officer’s writing out the ticket, and there’s no place really for him to write out this ticket other than in the police car. It’s late at night. There’s no natural light there. It has to be written out in the police car in order that he can see what he’s doing. Constable Burke testified that the reason why he wanted Mr. Aucoin in the police vehicle was because the Aucoin vehicle was being removed. And I’ll go back to what I mentioned earlier. Mr.

Aucoin was being ticketed for having alcohol in his system as a newly- licensed driver. And the Motor Vehicle Act makes it clear that, of course, that is an offence. In this sort of situation, one may say, well, why not have Mr. Aucoin return to his own vehicle to await delivery of the ticket. Well, Mr. Aucoin is being charged with being a newly-licensed driver and having alcohol in his system. His motor vehicle was going to be removed. And clearly, it would have been inappropriate and indeed unlawful for the officer to have Mr. Aucoin to remain seated in his vehicle at this time.

In fact, that would have been a continuation, arguably a continuation of the offence under

Section 100 of the Motor Vehicle Act . So there’s that. The other factor that came out into evidence here was that this happened during Apple Blossom time when it’s a very busy time and there are many people around, as I understand the evidence that was heard the last day. The concern of Constable Burke was that this was a situation where Mr. Aucoin very simply just could have walked off before getting the ticket. So it’s not the situation that one thinks of when one is thinking in terms of operating a motor vehicle and being stopped and being given a ticket.

There are those unusual factors here - the time of day, the nature of the charge, the fact that the nature of the charge was such that Mr.

Aucoin was not going to be permitted to drive off in that vehicle. In fact, that would be a continuation of the offence, and his vehicle wasgoing to be towed away. [22] She concluded: ... given all the circumstances, it was reasonable for Constable Burke to request Mr. Aucoin to be seated in his police car while he waswriting out the ticket. And it was also reasonable in all the circumstances for Constable Burke to do the very quick pat-down search thathe did, and the short conversation that he had with Mr. Aucoin before Mr. Aucoin was placed in the back seat of that vehicle.

Office[r]safety is a legitimate concern in this particular fact-situation. So considering all of the evidence as was heard in this voir dire and being mindful of the law relating to this issue, as I just set out earlier,I find that no breach of

Section 8 has been established here, that it was not a breach of Mr. Aucoin’s

Section 8 rights under the Charter. [23] The issue of whether the judge erred in finding that s. 8 of the Charter was not breached, is one of mixed fact and law, butwith an extricable question of law. The judge’s finding of fact, that Csts. Allen and Andrews were not on the scene at the time of theproposed detention and the pat-down search, is entitled to deference. We are not to intervene absent palpable and overriding error. Onthe other hand, if the judge failed to properly apply the correct legal principles in reaching her conclusion that Cst.

Burke had reasonablegrounds to believe his safety, or the safety of others, was at risk, that the pat-down search was reasonably necessary in light of the totalityof the circumstances, or that the proposed detention and search were conducted in a reasonable manner, we must intervene; R. v. R.E.W.,2011 NSCA 18, paras. 29 to 31. [24] I am satisfied the judge made no palpable and overriding error when she determined that Csts. Allen and Andrews were not atthe scene when Cst. Burke did the pat-down search in preparation for placing Mr. Aucoin in the backseat of the police car.

It is not forus, from a position of appellate disadvantage, to re-weigh the conflicting evidence that was before her as to the sequence of events thattranspired. There was evidence supporting her findings. [25] I am also satisfied the judge did not err in the legal principles she considered or in her application of them. She recognized thats. 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. She referred to and quotedfrom the seminal decision of the Supreme Court of Canada in Mann.

She recognized that a search incidental to the police power ofinvestigative detention is a warrantless search and presumed to be unreasonable unless it can be justified and found reasonable pursuantto the test in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, para. 23. Under the Collins test, a search will be reasonable if itis authorized by law, if the law itself is reasonable and if the manner in which the search was conducted is reasonable. The judgeconsidered the appropriate legal principles and applied them to the facts she found. [26] The issuance of the motor vehicle ticket to Mr.

Aucoin was the final step of Cst. Burke’s investigation into Mr. Aucoin’sbreach of the MVA. He had a duty to complete this stage of the process. He had to do this in a situation where he had essentially no back-up, it was late at night, he needed the light in the front seat of the police car to write the ticket, he could not place the appellant in the carhe had been driving because it was being removed, and because it may be a continuing offence given the alcohol in the appellant’sblood, and he was concerned the appellant may take off if left on his own outside the police car.

In such circumstances, the briefdetention of the appellant in the back seat of the police car is within the scope of the doctrine of investigative detention and isreasonable. [27] Having decided to place Mr. Aucoin in the back seat of the police car, it was also reasonable for the officer to do a pat-downsearch to ensure that the appellant had no weapons that he could use to harm the officer or himself. [28] That is not to say that in other circumstances, if Cst.

Burke followed “his usual practice” of placing someone to whom he isgoing to issue an alcohol- related motor vehicle ticket in the back seat of his car and doing a pat-down search, such detention and pat-down search would not be a breach of s. 8 of the Charter. We are to consider the reasonableness of Cst. Burke’s actions in light of theparticular circumstances he faced, not in the context of other fact situations that may arise. [29] I would dismiss this ground of appeal.

Use of expert’s opinion [ 30 ] The second ground of appeal is whether the trial judge erred in the weight she gave to the expert’s opinion that the appellant possessed the cocaine for the purpose of trafficking. [ 31 ] The appellant argues that the judge should not have given as much weight as she did to Cpl. Manning’s opinion, given that his written opinion was based on several factors that were not in evidence, weakening its foundation, and his “in court” opinion was based on limited evidence that was capable of supporting possession for personal use. [ 32 ] The judge refers to Cpl.

Manning’s evidence in her reasons: [12] The evidence consists in large part of the drugs that were found on the person of Mr. Aucoin, as well as the cash that was found on him, as a result of what began as a Motor Vehicle Act stop and also the evidence of Cpl. Scott Manning, who was qualified to give opinion evidence in relation to ecstasy and cocaine. [13] Cpl. Manning's evidence was to the effect that, insofar as this case goes, that the individual, that is Mr. Aucoin, who possessed the pills and the cocaine, was in possession for the purpose of trafficking. His opinion was based on a number of factors.

These factors included statements that were allegedly made by Mr. Aucoin to the police. The very same statements that were not introduced into evidence. Also, his opinion was based, to some extent, I suppose, or his report certainly refers to the packages of cocaine and the weights of each of those packages again. And I reviewed my notes to make sure of this, I did not see where Cst. Burke or any other officer ever testified really with respect to the size or the weight of each of those separate packages.

Now, having said that, the separate packages were introduced as an exhibit and one can look and see the size of them, but it is not the weight and the weight is what Cpl. Manning referred to. [14] So, ... I suppose to summarize, that the evidence of Cpl. Manning, in his evidence and the opinion that he came to, was based in large part on information that never did become evidence during the course of the trial. And, just for two examples, being the statements of Mr. Aucoin as well as the weights of the packages. [ 33 ] These paragraphs make it clear the judge was aware of the frailties of Cpl.

Manning’s written opinion. The following quoted paragraphs indicate that it was her recognition of this frailty that caused her to reject Cpl. Manning’s opinion that Mr. Aucoin had possession of the green pills for the purpose of trafficking a drug held out to be Ecstasy, and acquit Mr. Aucoin of the second charge against him: [15] Nonetheless, having said that, what is clear from the evidence, is that Mr. Aucoin was indeed in possession of several packages, later identified and later analyzed and determined to be cocaine as well as what I will refer to as the green pills.

As it turns out, when these pills were analyzed, it was learned that they were not in fact ecstasy and the Crown indeed, back in February, amended the second count of the information and that is because the second count as originally laid specified the drug MDMA. And the Crown then amended that charge to read “a drug held out to be ecstasy”. [16] The evidence of Cpl. Manning was that the pills that were introduced as an exhibit. The pills that were found to be BZP and TFMPP are sold as ecstasy even though they are not ecstasy. And it was his opinion that Mr.

Aucoin would have been holding out those pills as ecstasy. And, again he was basing that opinion, in large part really, on the statement that was allegedly provided to Cst. Burke by Mr. Aucoin. And, in fact, what Cpl. Manning indicated in his evidence and it is found in his report, is that there was a statement from Mr. Aucoin to Cst. Burke, that Mr. Aucoin thought the pills were ecstasy and he was delivering them to a friend as ecstasy. But that statement that was made by Mr. Aucoin to Cst. Burke is not evidence before the Court, yet clearly it formed part of the basis of Cpl.

Manning’s opinion. [17] Dealing with the second count here first, dealing with the second count then and that is the count relating to “a drug held out to be MDMA”. Insofar as that charge goes, I am finding Mr. Aucoin not guilty of that count. [18] The charge as laid is that he did unlawfully have in his possession, for the purpose of trafficking a drug held out to be ecstasy and

the drug that he had in his possession was not ecstasy, obviously, it was a drug as I mentioned earlier that is not covered under any of the schedules to the Controlled Drug and Substances Act and there is no admissible evidence before the Court that Mr. Aucoin’s possession of those drugs was for the purpose of trafficking. Trafficking, as holding it out or trafficking in any manner. I say that realizing that, as I mentioned, that Cpl. Manning’s opinion obviously was based in large part on the statement but the statement is not evidence before the Court. So, I am left with the evidence, the evidence that Mr.

Aucoin had these green pills in his possession. These green pills were not ecstasy and there is no admissible evidence before the Court that he had those pills in his possession and that he was holding them out to be ecstasy and he had them in his possession for the purpose of trafficking, so I found Mr. Aucoin not guilty of that charge. [ 34 ] The judge then considered the charge relating to cocaine, concluding that the Crown had proven its case beyond a reasonable doubt: [19] With respect to the first count and that is that he did unlawfully have in his possession, for the purpose of trafficking, cocaine.

The evidence includes the eight separately wrapped packages found to contain cocaine. As I mentioned earlier, I am not sure of the specific weights of each of those packages. But, nonetheless, there were eight separate packages. [20] Again, I realize that Cpl. Manning’s opinion evidence here, had as its foundation, in part at least, as I mentioned earlier, information that just really did not become evidence at trial including, as I said, the statement of Mr. Aucoin, the weights of the drugs and what have you.

But nevertheless, what the Court is left with in terms of, when one looks at all of the evidence, when one looks at the relevant admissible evidence that the Court is still left with. That includes the way in which the cocaine was packaged, the number of packages and also, the money that was seized from Mr. Aucoin at the time of the initial stop by Cst. Burke. [21] And Cst. Burke testified with respect to that and he testified with respect to the money being found inside the wallet as well as outside the wallet.

There was Two Hundred and Forty-five dollars, I should say there was cash found in the wallet and money found outside the wallet. According to Cst. Burke, he said he found twelve twenty dollar bills and one ten dollar bill in the wallet that Mr. Aucoin had in his possession as well as two twenty dollar bills and a five dollar bill outside the wallet. [22] I note that Cpl.

Manning, when giving his opinion, in relation to this matter, mentioned as part of that opinion, that occasionally individuals who are engaged in trafficking will sometimes separate their money into float and profit and that is set out in his report, so I am mindful of that. [23] I realize that insofar as this case goes, that this is a case that does not have, for example, some of the paraphernalia that one might associate with trafficking in drugs, for example, scales. There is no evidence, there were no scales that were found here, in the possession of Mr. Aucoin.

No weapon, for example, that one might see in a charge involving a trafficking charge, or packaging materials, for example, that one might see. I realize that, but nonetheless, when I consider all of the evidence, and I am very mindful of the heavy burden of proof that the Crown faces in the prosecution of proof of the essential elements of the offence beyond a reasonable doubt. I am satisfied that Crown has indeed proven that Mr. Aucoin was in possession of the cocaine and that the possession was for the purpose of trafficking as set out in the charge.

As I mentioned, these packages were individually wrapped packages, there were eight individually wrapped packages and when I consider all of the evidence, as I said, I am satisfied that the Crown has indeed proven this charge beyond a reasonable doubt and I find Mr. Aucoin guilty of the first charge on the information. [ 35 ] As a trial judge, the judge is in the best position to determine the weight to be accorded any evidence before her. Neither her reasons, nor the record, indicate that she gave inappropriate weight to the expert’s evidence.

Rather, her reasons indicate that she recognized the weakness of his written opinion and the extent of the evidence on which his “in court” opinion was based. In reaching her conclusion, she accurately referred to the extent of the evidence before her, consisting “in large part of the drugs that were found on the person of Mr. Aucoin, as well as the cash that was found on him...”. The fact there were “8 separately wrapped packages found to contain cocaine” that she could look at and see the size of, was significant to her. She did not err in referring to Cpl.

Manning’s evidence that individuals involved in trafficking sometimes separate their money into float and profit. She noted the absence of other types of drug paraphernalia such as scales, packaging materials and weapons. She referred to the heavy burden on the Crown to prove each of the essential elements of the crime beyond a reasonable doubt.

In finding the appellant guilty, she rejected his arguments that his possession of the eight baggies containing cocaine was for personal use and that the separation of cash was for an innocent purpose, such as paying his rent the next day. [ 36 ] Her reasons make it clear she was aware of the frailties of the expert’s opinion, referred to it appropriately, analysed the evidence before her and reached her conclusion after applying the proper burden of proof.

[37] I would dismiss this ground of appeal. Unreasonable Verdict [38] The third issue raised by the appellant is that the verdict is unreasonable. [39] In order to find a verdict unreasonable, one applies the test of “whether the verdict is one that a properly instructed jury actingjudicially, could reasonably have rendered”; R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, para. 25; R. v. Biniaris, 2000 SCC15 , [2000] 1 S.C.R. 381, para. 36.

In addition, the decision has to be reviewed to determine if the findings of fact on which thejudge based her decision are “demonstrably incompatible” with the evidence that is neither contradicted by the other evidence norrejected by the judge; R. v. Beaudry, 2007 SCC 5, para 77. [40] I am not satisfied the conviction is unreasonable.

There was evidence (1) that the appellant had eight baggies of cocaine, (2)that it was unlikely a user as opposed to a trafficker would purchase that quantity of cocaine bagged in smaller quantities when it is moreeconomical to buy it in a single multi-gram bag, (3) that he had 100 green pills commonly sold as Ecstasy divided into two baggies, (4)that he had $290 or $295 cash in his pocket, separated into money inside and outside his wallet and that traffickers sometimes separatetheir float from their profit, and (5) that the appellant was in the downtown area of a small town near a university, around midnight,during the busy Apple Blossom Festival where there would be an opportunity to sell cocaine.

I am satisfied that a properly instructedjury acting judicially could reasonably have convicted on this evidence. I am also satisfied that the facts on which the judge based herverdict are not demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the judge. Herfinding of guilt indicates her rejection of the appellant’s argument before her, that it was possible that the eight bags of cocaine were forpersonal use and that the money in his pocket was separated for reasons unrelated to trafficking. [41] I would dismiss this ground of appeal.

Failure to apply correct principles of sentencing [42] The appellant’s final argument relates to his sentence. He argues that the judge erred in principle by determining that she wasconstrained from imposing a conditional sentence and therefore failed to consider and properly apply the principles of sentencing. [43] The sentence imposed by the trial judge is entitled to deference. As set out in R. v.

Rhyno, 2009 NSCA 108, absent an error inprinciple, failure to consider a relevant factor, or an overemphasis of the appropriate factors, this Court should only intervene if thesentence is demonstrably unfit: [17] On appeal, a sentence determined by a sentencing judge is to be accorded great deference. In R. v. L.M., 2008 SCC 31, LeBel, J.for the Court stated: [14] In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judgeswhere appeals against sentence are concerned.

An appellate court may not vary a sentence simply because it would have ordered adifferent one. The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para.15). This Court also made the following comment in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: ... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal shouldonly intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W.(G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359;

[15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard ofreview to be applied by an appellate court is one based on deference. The sentencing judge has "served on the front lines of our criminaljustice system" and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender (M.(C.A.), at para. 91). . . . [18] In R. v.

Muise (1995), 1994 NSCA 198 , 135 N.S.R. (2d) 81 (N.S.C.A.) Hallett, J.A. described what constitutes a fitsentence: [81] The law on sentence appeals is not complex. If a sentence is not clearly excessive or inadequate it is a fit sentence assuming thetrial judge applied the correct principles and considered all relevant facts. . .My view is premised on the reality that sentencing is not anexact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of theoffence and the offender.

The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range.In my opinion, that is the true basis upon which courts of appeal review sentences when the only issue is whether the sentence isinadequate or excessive. This passage was quoted with approval in R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227. See also R. v. Henry, 2002NSCA 33 at ¶ 11. [44] The judge begins her sentencing decision by indicating that she is not going to impose a conditional sentence. She notes thatsentencing is difficult.

She refers to the purpose and principles of sentencing, referring to both the principles in the Criminal Code and inThe Controlled Drugs and Substances Act, S.C. 1996, c. 19. She refers to the “fundamental principle of sentencing that the sentence hasto be proportionate to the gravity of the offence and the degree of responsibility of the offender.” She refers to the mitigating factors ofthe appellant’s youth, his family support and his lack of a criminal record.

She refers to his presentence report, that she describes asfavourable, except for his serious addiction issues, being addicted to alcohol, Ecstasy, cocaine and cannabis. [45] She continues: THE COURT: ...Cocaine, and again the court, in particular, the Court of Appeal in this Province in really case after casehas referred to the [sic] cocaine as a drug that wreaks havoc, as a drug that destroys lives, as a drug that . . . MR. AUCOIN: It has destroyed my life, Your Honour. THE COURT: Well, up to now but things can . . . this . . . yes. But after this, after your sentence is finished, you can get on withyour life.

MR. AUCOIN: Well, I just want to put myself into a position where I can better myself as well as do . . . serve my debt to society .. . THE COURT: I understand. MR. AUCOIN: ...which I do see that. I don’t see that being behind bars at all or sitting in a jail cell. THE COURT: I hear what . . .

MR. AUCOIN: I know there is many, many other options other than sitting in jail. THE COURT: I hear what you are saying but I have to follow the law and, as I mentioned, that is . . . MR. AUCOIN: I’d rather take a ten-years house arrest over sitting back in jail for . . . THE COURT: I hear what you are saying. But you see . . . MR. AUCOIN: I am not a threat to the community, myself, or anyone else. THE COURT: No, I hear what you are saying. But this sort of an offence is an offence that just goes right to the heart of the community because of the harm that the drug does. And the Court, in particular the Court of Appeal in this Province, has made it really clear that when dealing with

Schedule I drugs, in particular cocaine, that deterrence has to be emphasized. In other words, I cannot emphasize rehabilitation in imposing a sentence on you. If I could do that it would be two years less a day, a conditional sentence order. If I could do that lawfully in the sense of ignoring the need for deterrence. ... THE COURT: Okay, you are going to have to let me . . . talk. If I could do that, it would mean I would have to ignore all of the other objectives of sentencing and focus solely on your rehabilitation. And I can understand why you would urge me to do that because that would result. .. MR.

AUCOIN: . . . (inaudible) THE COURT: No, you are going to have to let me finish. That would result in you serving a sentence in the community. But the point that has to be made here, and it is important that you understand this, that there is another objective that has to be considered, has to be emphasized when dealing with serious charges such as this, and that is deterrence. You have learned never to do this again but, Mr.

Aucoin, for anybody else in the community who might think that they can possess cocaine for the purpose of getting some extra money or for the purpose of feeding their own habit or for whatever, they too have to understand that there are going to be real consequences to it and it is because of the nature of the drug; it tears communities apart. MR. AUCOIN: . . . (inaudible) THE COURT: It is as simple . . . No, you are going to have to let me finish. It is a simple as that.

So for a community-based sentence for a drug such as cocaine, I would have to, as I said, completely ignore deterrence, general deterrence, specific deterrence, denunciation and focus completely and entirely on your rehabilitation. And I am not prepared to do that. MR. AUCOIN: Isn’t that what the Court system is set up for? THE COURT: I am not prepared to do that. As recently as about a month ago our Court of Appeal . . . and the decision was called the Butt [R. v.

Butt, 2010 NSCA 56 ] decision, said that cocaine has consistently been recognized by this court as a deadly and devastating drug that ravages lives. “Involvement in the cocaine trade at any level . . .” and those are the words of Justice Bateman on the Court of Appeal”. . . at any level attracts substantial penalties.” And that is what we are dealing with here and that the reason, the rationale for that is there has to be the message sent out there, guess what, there is a price to be paid if you get involved in this sort of activity at any level. At any level there is going to be a price that has to be paid.

And as I said, the rationale for that is because of how the drug just destroys people and families and it goes to the heart of the community. [Emphasis added]

[46] Considering her reasons, I am not satisfied the judge felt constrained from imposing a conditional sentence and thereforefailed to consider and apply the principles of sentencing. She specifically referred to the purpose and principles of sentencing in herreasons. She referred to the need to stress one of those principles, deterrence, when sentencing for trafficking in cocaine. This is not anerror. It is in accordance with cases decided by this Court; R. v. Butt, 2010 NSCA 56, and R. v. Knickle, 2009 NSCA 59. She correctlyindicated that she cannot only consider the rehabilitation of Mr.

Aucoin to the exclusion of the other principles of sentencing. Sheconsidered the mitigating factors. The fact she did not specifically refer to the fact a conditional sentence can also have a deterrent effectin her oral decision in a busy provincial court, does not satisfy me that she failed to consider this.

While it may have been better if she hadmentioned this, she is not required to deal with every possible aspect of sentencing, especially in the situation she was in of the appellantconstantly interrupting her while she was giving her sentencing decision. [47] Taking everything into consideration, she imposed a sentence of two years in jail. The cases indicate a two year sentence suchas this is not unfit; R. v. Knickle, para 11. [48] I would dismiss this ground of appeal and the appeal. Hamilton, J.A. Concurred in: Fichaud, J.A. Dissenting Reasons for Judgment: [49] I have read my colleague’s reasons for judgment.

With respect, I am unable to agree that the police officer had any lawfulauthority to search the appellant. The search that led to the discovery of the cocaine was therefore unlawful and violated his rights underthe Charter. The results of that search must be excluded. As a consequence, I would allow the appeal and enter an acquittal. The factsare set out in some detail in the reasons of Hamilton J.A. I will only refer to the evidence and findings by the trial judge wherenecessary.

Police Powers [50] The power of the police to interfere with the liberty of a person can only come from two sources: a statute or common law. This fundamental concept in our legal landscape was emphasized in R. v. Dedman, (SCC), [1985] 2 S.C.R. 2, one of theearliest of cases to reach the Supreme Court of Canada on the tension between individual rights and police efforts to investigate possiblecriminal activity. The police set up a R.I.D.E. (Reduce Impaired Driving Everywhere) checkpoint to stop vehicles in order to gatherevidence to prosecute impaired drivers and to deter others from driving while impaired.

Both the majority and dissent acknowledged thesame need for lawful authority to permit police to interfere with the liberty of anyone in Canada. In dissent, Dickson C.J., wrote (pp. 10-11): It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as lawenforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the

extent authorized by law. Laskin C.J., dissenting, in R. v. Biron, (SCC), [1976] 2 S.C.R. 56, made the point at pp. 64-65: Far more important, however, is the social and legal, and indeed, political, principle upon which our criminal law is based, namely, theright of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent towhich it so provides can a person be detained or his freedom of movement arrested. Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law.

Otherwise theyact unlawfully. Martin J.A., in the case at bar, accurately summarized the rights of the citizen and the power of the police as follows: In carrying our their general duties, the police have limited powers, and they are entitled to interfere with the liberty and property of thecitizen only where such interference is authorized by law. It is, of course, a constitutional principle that the citizen has a right not to besubjected to imprisonment, arrest, or physical restraint that is not justified by law, and every invasion of the property of the citizen is atrespass unless legally justified....

On the other hand, when a police officer is trying to discover whether, or by whom, an offence hasbeen committed, he is entitled to question any person, whether suspected or not, from whom he thinks useful information may beobtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence,he has no lawful power to compel the person questioned to answer. Moreover, a police officer has no right to detain a person forquestioning or for further investigation.

No one is entitled to impose any physical restraint upon the citizen except as authorized by law,and this principle applies as much to police officers as to anyone else.

Although a police officer may approach a person on the street andask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless, of course, the officerarrests him on a specific charge or arrests him pursuant to s. 450 of the Code where the officer has reasonable and probable grounds tobelieve that he is about to commit an indictable offence. [Authorities omitted.] [51] LeDain J., for the majority, expressed no disagreement with this fundamental requirement.

Although the majority dismissedthe appeal from the judgment of the Ontario Court of Appeal, it did not agree with the reasons for that result, in particular, thesignificance attached to the voluntary compliance by the appellant with the request to stop. On this issue, LeDain J., wrote (pp. 28-29): With great respect, I do not think that the issue of the lawfulness of the signal to stop in this case can be properly disposed of by relianceon the notion of legal liberties which a police officer as an individual enjoys in company with other citizens.

For reasons which I shallindicate, I do not think that the appellant's compliance with the signal to stop altered the legal basis on which it must be justified. In myopinion, police officers, when acting or purporting to act in their official capacity as agents of the state, only act lawfully if theyact in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties. Thereason for this is the authoritative and coercive character of police action. An individual knows that he or she may ignore withimpunity the signal to stop of another private individual.

That is not true of a direction or demand by a police officer. It is for thisreason, in my opinion, that the actions of police officers must find legal justification in statutory or common law authority. Theambit of their authority, as distinct from their liability, is not to be determined by the limits of criminal or civil responsibility. Policeaction may be unlawful for lack of statutory or common law authority although neither criminal nor tortious. The issue in the presentcase may be likened to one of vires.

The contention is that the allegedly unauthorized and hence unlawful nature of the signal to stopaffected the validity of the subsequent demand for a sample of breath. [emphasis added] [52] In a series of subsequent cases, the Supreme Court of Canada has dealt with an array of issues presented by police interactionwith motorists. Legislation authorizing random or arbitrary stops at check stops or otherwise were found to be unconstitutional, butupheld as reasonable limits under s. 1 of the Charter (see R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257).

The rights of detained drivers under s. 10(

b) are impliedly suspended during the initialroad side screening process (R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Orbanski; R. v .Elias, 2005 SCC 37, [2005] 2 S.C.R. 3). [53] Here, there is no dispute that Cst. Burke had lawful authority to stop the appellant pursuant to the Motor Vehicle Act, R.S.N.S.1989, c. 293 (MVA), to investigate the discrepancy between the plate and the vehicle. Once he came into contact with the appellant, thesmell of alcohol triggered a more intrusive detention.

Again, there is no dispute about the authority, nor the manner in which heexercised it, in requiring the appellant to provide a sample of his breath pursuant to a demand under s. 254(2) of the Criminal Code.

[54] However, the law is also clear that simply because the police are initially acting lawfully does not create a carte blanche forsubsequent actions. R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615 is a good example. The appellant was stopped at apolice check point. A flashlight was used to illuminate the interior of the vehicle. The officer saw an open gym bag on the front seat,which led to a question to the appellant about what was inside. The appellant pulled the bag open and said food. The officer saw areflection of what he thought was glass. The officer became suspicious and asked what was in the brown bag.

The appellant pulled abaggie out of the brown bag. It contained empty glass vials of the type commonly used to store cannabis resin. The officer felt he hadreasonable and probable grounds to search and did so. He found vials of hash oil and other drugs. The appellant gave an incriminatingstatement at the detachment. [55] The trial judge found the conduct of the police shining the flashlight and the questions to constitute searches and excluded allof the evidence, resulting in the appellant’s acquittal. The Alberta Court of Appeal ordered a new trial. The Supreme Court of Canadare-instated the acquittal.

Cory J. wrote the unanimous reasons for judgment. He saw the use of the flashlight as being necessarilyincidental to a check stop program carried out after dark, but the balance of the police action improper. With respect to the notion of aconsent by the appellant to the answering of the questions and cooperation with the authorities, Cory J. wrote (pp. 13-14): The respondent next argued that the production of the gym bag and its contents came about as a result of the consent of the appellant.Once again, I cannot accept this submission.

It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he waspulled over. As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to himby the police officer. In those circumstances it is incumbent upon the Crown to adduce evidence that the person detained had indeedmade an informed consent to the search based upon an awareness of his rights to refuse to respond to the questions or to consent to thesearch. There is no such evidence in this case.

In my view the trial judge was correct in her conclusion that the appellant felt compelledto respond to the police questions. In the circumstances it cannot be said that the search was consensual. The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of asearch. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds.

It was therefore anunreasonable search in contravention of s. 8 of the Charter. [56] The law has long recognized the common law power of the police to search incidental to a lawful arrest (Cloutier v. Langois, (SCC), [1990] 1 S.C.R. 158). Here, there was no arrest. There can be no doubt that the appellant was detainedpursuant to an impaired driving investigation. That investigation ended when the appellant registered only 20 mg. of alcohol per 100 ml.of blood on the roadside screening device. Thereafter, Cst. Burke was merely engaged in writing a

summary offence ticket (SOT) to theappellant for the offence of being a newly licensed driver having alcohol above zero percent in his blood while having the care or controlof a motor vehicle, contrary to s. 100A(1) of the MVA. The Motor Vehicle Act provides a discretionary power to arrest. The relevantsection reads as follows: 261

(1) A peace officer may arrest without warrant a person whom he finds committing an offence or has reason to believe has recentlycommitted an offence against this Act.

(2) A peace officer making such arrest without warrant shall with reasonable diligence take the person arrested before a judge of theprovincial court or justice of the peace to be dealt with according to law. R.S., c. 293, s. 261. [57] It is obvious that an arrest for an offence under the MVA would be an unusual event, triggering a duty on the officer to takethe arrestee before a judicial officer ‘with reasonable diligence’. Furthermore, the power to arrest is circumscribed by s. 495 (2) of theCriminal Code. By virtue of s. 7 of the

Summary Proceedings Act, R.S.N.S. 1989, c. 450, the procedural and substantive provisions ofthe Criminal Code applicable to

summary conviction matters are adopted. Section 495(2) of the Code limits the power of the police toarrest for

summary conviction offences: 495.

(2) A peace officer shall not arrest a person without warrant for

(

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. [ 58 ] As already noted, Cst. Burke did not purport to arrest the appellant. Although the trial judge does not really address the basis upon which the police officer proceeded to place the appellant in the rear of a locked police car (a subject that I will address later), it seems to be assumed by my colleague that this was pursuant to an investigative detention. [ 59 ] In R. v.

Mann , 2004 SCC 52 , the Supreme Court of Canada recognized a common law police power to detain for investigative purposes and, on certain conditions, search for protective purposes. In Mann the police responded to a report of a break and enter in progress. As they approached the scene, they saw Philip Mann. They said he matched the description of the suspect. They stopped Mr. Mann and requested his date of birth and name. He gave it to them. They then conducted a pat-down search for weapons. They felt a soft object in the pouch pocket of his pullover. The officer reached in and found a bag containing marijuana.

Mann was then arrested and charged with possession for the purpose of trafficking. The trial judge found a s. 8 violation and excluded the evidence, resulting in an acquittal. The Manitoba Court of Appeal found the search to be reasonable as the officers had conducted the search for weapons in good faith. [ 60 ] Iacobucci J. wrote the majority judgment in the Supreme Court. He referred to the well known test set out by the English Court of Appeal in R. v. Waterfield , [1963] 3 All E.R. 659 concerning the scope of a police officer’s common law powers.

This was paraphrased as follows: 24 The test for whether a police officer has acted within his or her common law powers was first expressed by the English Court of Criminal Appeal in Waterfield , supra , at pp. 660-61. From the decision emerged a two-pronged analysis where the officer's conduct is prima facie an unlawful interference with an individual's liberty or property. In those situations, courts must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law.

If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. ... 26 At the first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties, including, at common law, “the preservation of the peace, the prevention of crime, and the protection of life and property” ( Dedman , supra , at p. 32).

The second stage of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake. This aspect of the test requires a consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is

reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. ( Cloutier , supra , at pp. 181-82) [ 61 ] In recognizing a common law power to detain, the majority required the police to have “reasonable grounds to detain”. Once having those grounds, an officer may search, but only if he or she believes on reasonable grounds that his or her safety, or the safety of others, is at risk.

Iacobucci J. wrote: 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. [ 62 ] It is with this backdrop of the scope of police powers that I turn to the evidence adduced in this trial, and the reasons of the trial judge for finding no violation of any Charter right. [ 63 ] The evidence was far from consistent from the five individuals present. There is no need to recount the points at which there were differences.

I agree with the conclusion of my colleague that there is no basis for this Court to interfere with the findings of fact made by the trial judge. But what was it that the trial judge found to infuse Cst. Burke with the lawful authority to carry out a search of the appellant? [ 64 ] The evidence of Cst. Burke was accepted. This led the trial judge to find that the search by Cst. Burke was not motivated by a search for evidence as a result of anything found by other officers from a search of the appellant’s vehicle. She said she was satisfied that there were very unusual circumstances at play.

The circumstances identified by the trial judge were that: it was late at night; there was no place for the officer to write out the SOT other than in his police car; he did not want Mr. Aucoin to return to his own vehicle as this could arguably constitute a continuation of the offence of being a newly licenced driver having alcohol in his blood while in control of a vehicle; it was Apple Blossom Festival time and it was busy in Kentville with many people around, and Mr. Aucoin could have simply walked away before getting the ticket.

This led the trial judge to conclude: And that given all the circumstances, it was reasonable for Constable Burke to request Mr. Aucoin to be seated in his police car while he was writing out the ticket. And it was also reasonable in all of the circumstances for Constable Burke to do the very quick pat-down search that he did, and the short conversation that he had with Mr. Aucoin before Mr. Aucoin was placed in the back seat of that vehicle. Office safety is a legitimate concern in this particular fact-situation.

So considering all of the evidence as was heard in this voir dire and being mindful of the law relating to this issue, as I just set out earlier, I find that no breach of

Section 8 has been established here, that it was not a breach of Mr. Aucoin's

Section 8 rights under the Charter . [ 65 ] With all due respect to the trial judge, whether it was reasonable to request the appellant to be seated in the rear of the police vehicle is not the test that imbues the police with power to interfere with the liberty of a person. Of course, if the police have a power to do something, it must be exercised reasonably, but merely finding police conduct to be reasonable is, in my opinion, insufficient. [ 66 ] It is important to emphasize that before Cst. Burke directed the appellant to be seated in the rear of the police car he had absolutely no officer safety concerns.

It was Cst. Burke’s direction to the appellant to be seated in the rear of the police car that created the officer safety issue. The Crown concedes this. In other words, had the officer just proceeded to write out the SOT without requiring the appellant to be seated in the rear of the police car, there was no officer safety concerns and, hence, no need to search. [ 67 ] If Cst. Burke needed to occupy the police car in order to write up the SOT (for which there was no direct evidence of this at all), I fail to see any lawful authority for Cst. Burke to take Mr. Aucoin into custody while he wrote the ticket.

The only basis suggested by Cst. Burke was: Q. And why were you putting him in your car to do up the ticket?

A. His car was being removed so he couldn't go back to his vehicle. And it’s Apple Blossom weekend. It was busy. And I felt if hewas on the side of the road, possibly he could walk away. As I’m writing the ticket, he could disappear. [68] The problem is there was no evidence to provide any grounds to Cst. Burke’s subjective fear that Mr. Aucoin “possibly couldwalk away”. The evidence is uncontradicted that Mr. Aucoin was completely cooperative throughout his dealings with Cst. Burke. Cst.Burke had Mr.

Aucoin’s licence showing his identity and residence. [69] On appeal, the Crown conceded there were no objective grounds for the stated fear that Mr. Aucoin would walk away beforethe SOT was issued. Instead of simply directing Mr. Aucoin to wait on the sidewalk as he wrote out the ticket, Cst. Burke carried out ade facto arrest by deciding to place the appellant in the rear of a locked police car.

It was only pursuant to that de facto arrest that gavethe officer any basis to interfere with his liberty and invade his privacy by carrying out a search and directing questions to him as he didso. [70] Section 495(2) of the Criminal Code mandates that a peace officer shall not arrest a person without warrant for any

summaryconviction offence unless the officer believes on reasonable grounds that the public interest requires he do so, including the need toestablish the identity of the person, secure or preserve evidence, prevent the continuation or repetition of the offence or the commissionof another offence, or if the officer has reasonable grounds to believe that unless he does not arrest, the person will fail to attend court. Cst. Burke had no reasonable grounds to satisfy any of these requirements. The Criminal Code directs that he is not to arrest, but hisactions plainly constituted a de facto arrest.

He placed his hands on the appellant and assumed complete control over his actions,including a search in the process of putting him in the rear of a locked police car. [71] The Crown did not suggest that the appellant’s compliance with Cst. Burke’s request amounted to consent. It can point to nolegislative or common law power to make lawful the actions of Cst. Burke. I see none. As clearly articulated by the Supreme Court ofCanada in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, and recently affirmed in R. v.

Mann, a warrantless search ispresumed to be unreasonable unless it is authorized by law, the law is reasonable and the manner in which the search is carried out isreasonable. Although the trial judge referred to these basic principles, she failed to identify what lawful authority she was relying on tofind the search to be in conformity with s. 8 of the Charter. It appears to be implicit in her reasons that she found the appellant to betangled up in an investigative detention and because she considered the officer’s decision to place Mr.

Aucoin in the rear of the policecar be reasonable, this justified a protective search. The majority reasons of my colleagues agree with this approach. With respect, Icannot. [72] I agree that Cst. Burke had a duty to issue the appellant a ticket. The existence of the duty does not translate into a power toactually take the appellant into custody. The distinction was succinctly set out by Doherty J.A. in R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482, [1993] O.J. No. 308: 34 The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties.

Policeduties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merelybecause it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom ofthe individual, that conduct will be lawful only if it is authorized by law. That law may be a specific statutory power or it may be thecommon law. ... [73] Cst.

Burke may well have had a duty to issue the SOT, and if the appellant had interfered with the lawful execution of thatduty by flight or other obstruent behaviour, he might face a charge of obstructing a peace officer under s. 129 of the Criminal Code (seeR. v. Moore, (SCC), [1979] 1 S.C.R. 195; R. v. Quist, [1981] S.J. No. 1236 (C.A.); R. v. Hayes (2003), (ON CA), 174 O.A.C. 185; R. v. Higdon, [1998] N.J. No. 298). [74] The Crown concedes that Cst. Burke had no reasonable grounds to believe that the appellant would walk away before theticket was prepared and given to him.

He was therefore without reasonable grounds to arrest pursuant to s. 495(2) of the CriminalCode. The approach by the trial judge, and endorsed by my colleagues, is that this does not matter. I must, with respect, differ. Theconsequences are significant.

[ 75 ] Since any person waiting for a ticket can possibly walk or drive away, every time a peace officer decides that he is going to issue a ticket for any

summary conviction offence, the officer can require, without any grounds, the intended recipient to be seated in the rear of a police car, and again, without any grounds, but a general concern for police safety, be searched. [ 76 ] In my opinion, the search conducted by Cst. Burke was not authorized by law and was unreasonable within the meaning of s. 8 of the Charter . [ 77 ] The Crown did not cite any case where in similar, or analogous circumstances, a search was upheld as being reasonable within the meaning of s. 8 of the Charter .

In keeping with the best traditions of appropriate advocacy the Crown referred to numerous cases where searches pursuant to detentions or arrests for provincial offences were found to be unlawful. ( R. v. Bercier , 2003 MBQB 90 ; R. v. Miller , 2006 NSPC 68 ; R. v. Power , 2001 NFCA 50 ; see also R. v. Cooper , 2011 ABQB 17 ). [ 78 ] I am also troubled by other aspects of the conclusion by the trial judge that officer safety was a legitimate concern in this fact situation, and the implicit acceptance that the search was reasonably confined to that purpose. Not only did Cst.

Burke arbitrarily create the officer safety issue, R. v. Mann directs that the officer who is considering carrying out a protective search incident to a investigative detention must have reasonable grounds to believe his safety or that of others is at risk. I am not satisfied Cst. Burke had such. He could identify only the vague concern triggered by the circumstance of having the appellant seated behind him in the vehicle. Iacobucci J. in R. v. Mann adopted with approval the careful delineation in the United States authorities as to when a protective search passes muster.

He described it as follows: 41 The determination as to when a protective search may be merited has been addressed in the United States through several decades of jurisprudence. In Terry , supra , at p. 27, the United States Supreme Court carefully circumscribed the search power, by holding that: ... there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

In exercising this authority, the officer must not be acting solely on a hunch, but rather is required to act on reasonable and specific inferences drawn from the known facts of the situation. The search must also be confined in scope to an intrusion reasonably designed to locate weapons (p. 29). [ 79 ] As already indicated, Cst. Burke identified no inference, reasonable or otherwise, to trigger a need to carry out a protective search. To the contrary, he was dealing with a polite and completely cooperative young man.

In my opinion, the circumstances did not justify a protective search. [ 80 ] Furthermore, the search itself went beyond one reasonably limited to locating weapons. While Cst. Burke referred to it as a pat-down search, it had the functional equivalent of turning his pockets inside out. Whenever Cst. Burke felt something in his pockets, he inquired of the appellant what it was. First, he says he felt a wallet in his left pocket. He asked what it was. The appellant answered. Then Cst. Burke felt something soft in the appellant’s right pocket.

It is impossible in these circumstances to leap from feeling something soft to a legitimate concern for officer safety justifying a targeted inquiry of the appellant as to what the object was. Nonetheless, Cst. Burke requested the appellant tell him what it was. There can be no doubt that the appellant felt compelled to answer. Not only is it a reasonable inference that this was so (see R. v. Mellenthin , supra ), but the appellant testified that he felt he had no choice, which evidence was not rejected by the trial judge.

It was the appellant’s reply it was “Ecstasy” that then justified his arrest and search incidental thereto. [ 81 ] With respect to those that hold a different view, the trial judge erred in law in finding the police had not violated the appellant’s rights pursuant to s. 8 of the Charter . The appellant also gave notice at trial that his rights under ss. 9 and 10(

b) were infringed or denied. The trial judge made no reference to s. 9. She did mention s. 10, but did not otherwise address it. In fairness, the appellant at trial did not appear to advance specific arguments in relation to these issues. However, applying the law to the facts as found by the trial judge, it is plain that the de facto arrest of the appellant was an arbitrary deprivation of his liberty. It was also done without any mention of his right to retain and instruct counsel without delay. It is clear that his rights under ss. 9 and 10(

b) were also infringed or denied (see R. v. Harrison , 2009 SCC 34 ; R. v. Grant , 2009 SCC 32 at para. 54 ; R. v. Suberu, 2009 SCC 33 ; R. v. Cooper , supra ).

Section 24(2) [82] The trial judge, having found no Charter violation did not consider if the results of the police conduct would result in aremedy of exclusion of evidence pursuant to s. 24(2). It therefore falls to this Court to carry out that analysis. (See R. v. Caputo (1997), (ON CA), 114 C.C.C. (3d) 1; R. v. Squires, 2005 NLCA 51; R. v. Morelli, 2010 SCC 8). [83] A finding of a Charter violation does not lead to an automatic remedy under s. 24(2). The

section provides: 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or deniedany rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [84] The burden is on the applicant to establish on a balance of probabilities the requirements for a remedy under s. 24(2) (R. v.Collins, supra, para. 30).

A court shall exclude the evidence if admission would bring the administration of justice into disrepute. Although the English version of s. 24(2) reads would, the Supreme Court of Canada in Collins concluded that it must be read as: “theevidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it could bring theadministration of justice into disrepute” ( para. 43). [85] In R. v. Grant, the Supreme Court of Canada revisited the analysis that must be applied in deciding whether a remedy under s.24(2) is appropriate.

Courts must now balance and assess the effect of admission of evidence obtained in violation of the Charter byexamining the seriousness of the state conduct, the impact of the breach on the interests of the accused, and society’s interest in theadjudication of the case on its merits.

McLachlin C.J. and Charron J., for the majority, gave the following overview of the approach: 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations setout in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [86] It is to these three avenues of inquiry that I now turn.

Seriousness of the Charter-Infringing State Conduct [87] The majority in Grant explained the factors that are important in this aspect of the analysis. Amongst others, it includesexamining how severe or

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