) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 5492

CITATION : R. v. Faucher, 2013 ONSC 5492 COURT FILE NO.: 12-9164 DATE: 20130829 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – RICHARD FAUCHER Applicant ) ) ) ) ) ) ) ) )) ) ) )) John Semenoff, for the Crown Leonard S. Russomanno, for the Applicant ) ) HEARD: August 26 and 27, 2013 REASONS FOR Decision James J. [ 1 ] In this application the Applicant, Richard Faucher, seeks an order under s. 24(2) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [“Charter”], excluding evidence that he says was obtained by the police in violation of his Charter rights under ss. 8 , 10(a) , and 10(b) . [ 2 ] Crown and defence counsel have agreed that the outcome of this application will be dispositive of the charges against the Applicant, that is, if I ultimately determine that the handgun seized by the police is admissible evidence, then a finding of guilt will follow without a trial. If I determine that the handgun is inadmissible evidence, then a finding of not guilty will follow without a trial.

The Facts [ 3 ] At about 10:00 p.m. on January 16, 2012, Constables Vandal and Peak observed a car with a damaged tail light travelling on Montreal Road in the Vanier neighbourhood of the City of Ottawa. The vehicle was being driven by the Applicant, who was alone in the vehicle. They executed a traffic stop of the vehicle. Constable Peak approached along the passenger side of the vehicle. Constable Vandal approached along the driver’s side. Both officers said that the Applicant reached over and opened the front passenger door as they approached.

Constable Vandal knocked on the driver side window and the Applicant opened the door instead of lowering the window. He explained that the power equipment in the vehicle wasn’t working, including the power windows. [ 4 ] Constable Peak said he scanned the interior of the vehicle through the open passenger door while Constable Vandal engaged the Applicant in conversation. Constable Peak saw some tools on the floor in front of the passenger seat. One of the officers asked the Applicant if he had any weapons and he said he did not.

Constable Peak then observed an unsheathed hunting knife in the side pocket of the passenger door. He retrieved the knife and showed it to Constable Vandal. When questioned about the knife, the Applicant said he carried it for personal protection. He said he forgot he had it with him and that’s why he didn’t disclose it when first asked whether he had any weapons. [ 5 ] Constable Peak said that the discovery of the knife and the failure of the Applicant to disclose its presence when first asked heightened his level of alertness and his safety concerns.

[6] Constable Vandal said he resolved at that point to arrest the Applicant for possession of a concealed weapon. He requested theApplicant to get out of the car and accompany him to the rear of the vehicle. He told the Applicant he was being arrested for carrying aconcealed weapon and proceeded to apply handcuffs. [7] Constable Peak’s evidence left me with the impression he was unaware that Constable Vandal was arresting the applicant.

He saidthey were interacting at the back of the vehicle. [8] Constable Peak walked around to the driver side of the vehicle while Constable Vandal stood at the back of the vehicle with theApplicant. He leaned into the driver’s compartment and scanned the driver’s seat area for any documents that might assist in identifyingthe applicant who had provided a verbal identification only. He said was looking for weapons as well. On the far side of the driver’s seatin the gap between the side of the seat and the center console he observed the barrel of a gun. The barrel was pointed forward andslightly downward.

At first the Applicant denied knowing the gun was there but when asked again he said it was a real gun, not a fake,and that it was loaded. Upon inspection Constable Peak found one bullet in the chamber and a loaded ammunition clip. [9] The Applicant said it was Constable Peak, not the Applicant, who opened the passenger door and that Constable Peak immediatelybegan scanning the interior of the vehicle with his flashlight. Constable Peak said that the area was well lit and he didn’t use a flashlight.Constable Vandal agreed the area was well lit but couldn’t recall if Constable Peak used a flashlight or not.

In my view nothing turns onwhether the officer used a flashlight to scan the inside of the vehicle. Defence counsel agreed that the issue whether a flashlight was usedor not only went to credibility. [10] The Applicant said that Constable Peak searched the vehicle for about 4-5 minutes prior to finding the gun; a couple ofminutes on the passenger side and a couple of minutes on the driver’s side. He also said the gun was not readily visible at the side of theseat. It was beneath the seatbelt clasp and one would have needed to move the clasp assembly to see the gun.

According to ConstablePeak, the gun barrel was visible without moving or touching the seatbelt clasp. Position of the Parties [11] Crown counsel takes the following positions on his view of the evidence: a. Constable Peak’s search was incidental to the arrest of the Applicant; b. alternatively, the search was conducted in the context of an investigative detention; c. in either event, the Applicant’s s. 8 Charter protection against unreasonable search and seizure was not violated; and d. in the further alternative, if it is determined that a Charter breach occurred, the evaluative process prescribed by R. v.

Grant, 2009SCC 32 , [2009] 2 S.C.R. 353, must result in a finding that the discovery of the handgun ought to be admitted into evidence. [12] Defence counsel takes the following positions: a. Constable Peak’s testimony was internally inconsistent and not credible.

Factual discrepancies between the testimony of ConstablePeak and the Applicant ought to be resolved in favour of the Applicant; b. the search of the vehicle ought to be assessed in the context of an investigative detention with all the limiting factors this type ofsearch entails; c. for a search incident to an arrest to be lawful, the arrest itself must be lawful and the police cannot use the Applicant’s statement asto why he had the knife to inform whether they had reasonable and probable grounds to make an arrest in relation to the knife; d. the detention of the Applicant was arbitrary; and e. the Charter breach was egregious and the evaluative process required by Grant must inevitably lead to the conclusion the evidenceought to be excluded.

Analysis [13] First, a review of applicable principles: a. a warrantless search is presumptively unreasonable: see R. v. Collins, (SCC), [1987] 1 S.C.R. 265; b. the Crown has the onus to establish reasonableness on a balance of probabilities: see R. v. Buhay, 2003 SCC 30 , [2003] 1S.C.R. 631; c. police search powers are broader when the search is conducted in the context of an arrest compared to the situation where a personis detained but not under arrest.

The three main purposes of a search incidental to an arrest are to ensure the safety of the police and thepublic, the protection of evidence from destruction, and the discovery of evidence that can be used against the accused: see Cloutier v.Langlois, (SCC), [1990] 1 S.C.R. 158, at p. 186;

d. to conduct a warrantless search in the context of an investigative detention, the police must have reasonable grounds to believe thatpolice or public safety issues exist: see R. v. Clayton, 2007 SCC 32 , [2007] 2 S.C.R 725; e. a pat-down search of a detained person is permissible where there are legitimate safety concerns. The officer’s decision to searchmust be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existentconcern for safety, nor can the search be premised upon hunches or mere intuition: see R. v.

Mann, 2004 SCC 52 , [2004] 3S.C.R. 59; and f. a broader, more intrusive search, tied to safety concerns, may be reasonable if the initial search justifies further inquiry. This caninclude a search of a vehicle: see R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172 (Ont. C.A.). [14] Applying these principles to the evidence adduced during the course of this application requires factual findings to be madewhere there is conflicting testimony. I will deal firstly with the issue of who opened the passenger door.

On this issue I recall thetestimony of Constable Vandal, to the effect that a police officer is more exposed to possible harm when a car door is open. This makessense in that the door no longer operates as a barrier. The evidence suggested that where only a window is open, a potential assailant’sability to get at the officer is reduced. The inference that may be drawn from this testimony is that there is a safety reason why policeofficers may choose not to routinely open car doors upon approaching a vehicle. Also, Constable Peak would not have known the electricside windows didn’t work.

The Applicant would have had to open the door to speak with the officer approaching on the passenger side ofthe vehicle. Both police officers said the Applicant opened the passenger door. Constable Vandal said he saw the Applicant reachingacross to the passenger side of the car. I do not accept the Applicant’s evidence that Constable Peak opened the passenger door. [15] There is nothing wrong with Constable Peak looking into the vehicle through the open door. It only makes sense that hewould. He saw the knife. It was about 25 cm in length. He said he saw it after a few seconds.

The Applicant said Constable Peaksearched the passenger side of the car for a couple of minutes. Considering that the knife was lying inside the door storage compartmentand was visible without moving other items around, it is logical that it was easily and quickly observed and I accept Constable Peak’stestimony on this point. [16] I prefer to conduct an assessment of the reasonableness of the search in the context of a detention rather than as beingincidental to an arrest.

In my view, there is at least an arguable case that the police were entitled to conduct a more wide ranging searchin the circumstances; there was after all a contemporaneous arrest of the Applicant, but in my view the reasonableness of the search wasestablished in the context of an investigative detention of the Applicant. [17] Despite Constable Peak’s preference to characterize his actions as a scanning of the vehicle, I find that his actions amounted toa search.

I accept his evidence that he was looking for documentation to assist in the identifying of the Applicant and he was surveyingthe interior of the vehicle to ascertain whether any further weapons were present. The search was conducted for a lawful purpose and itwas not unduly intrusive. There is no suggestion that he inspected the contents of the glove box or moved or disturbed any contents.Clearly he did not access the trunk of the vehicle.

It makes sense he would want to check for any objects that could pose a risk to officersafety, especially in the circumstances where he says he was not immediately aware that the Applicant was being arrested by his partner.This means that for all he knew it was possible that the Applicant could be re-entering the vehicle momentarily. He described hisposition on the driver’s side of the vehicle.

He had one hand on the frame of the opened door and the other hand was positioned insidethe vehicle, perhaps on the driver’s seat, as a brace while he leaned into the vehicle to survey the interior. [18] I view the fact situation in this application to be distinguishable from the circumstances before A. M. Molloy J. in R. v.Taylor, 2011 ONSC 1737, 232 C.R.R. (2d) 233. In Taylor a loaded handgun was found during the search of a vehicle that was stoppedfor a traffic violation. The police sought to identify the occupants other than the driver.

The application judge concluded that one policewitness concocted evidence respecting the presence of a strong smell of marijuana. The vehicle was detained for about 20 minutes whileanother patrol car was requested to attend. The application judge concluded the second patrol car was requested for purposes other thangeneral back up and safety reasons. The application judge found that the occupants were arbitrarily detained in breach of s. 9 of theCharter, and she characterized the entire transaction as a shakedown designed to put pressure on one of the passengers.

Molloy J.specifically distinguished the facts of the application before her from “the situation in which concerns for officer safety prompted a scanof the interior of the car by flashlight, as has sometimes been justified by the case law”. (para. 90). One of the police officers conceded hedid not expect to find a weapon in the car. He expected to find marijuana. [19] In Plummer, the police searched a vehicle, including an overnight bag, and found a gun in the context of an investigativedetention.

The trial judge found that in conducting the search, the police officer “probably first checked under the passenger's seat, andthat the gun was likely under items in the bag” at para. 11. The Appellant in that case made an application to exclude the evidence of thegun on the basis that his rights under s. 8 (unreasonable search and seizure) and s. 9 (arbitrary detention) of the Charter had beenviolated. [20] In the Court of Appeal, J. C. MacPherson J.

A. agreed with the trial judge that when the police conducted a pat down searchof the Appellant and found him to be wearing a bulletproof vest, they were justified in searching the vehicle and the overnight bag, atleast in the area where the Appellant was sitting.

I acknowledge that an important distinguishing factor in Plummer was that the policehad received prior information that the Appellant was possibly armed with a handgun but I do not think that this fact prevents thedecision in Plummer from being instructive in the circumstances present in this application. [21] In my view Constable Peak was entitled to conduct a safety-focused superficial search of the vehicle after discovering theknife. In coming to this conclusion, I note the cautionary comments of R. J. Sharpe J.

A. in Plummer where he said at paras. 76, 78, and79: 76 A search incidental to an investigative detention is defined and limited by the immediate concerns of officer safety. This reflectsan important difference between the narrowly focussed and strictly limited protective search that may accompany an investigativedetention, and the broader power to search consequent to a lawful arrest. It is necessary to maintain that distinction and to confine thescope of a search incidental to an investigative detention within strict limits. Here, the police did not arrest the appellant, presumably

because they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon or some other valuable evidence. This is a tendency that the courts should resist. 78 On those specific facts, I agree that the officers were entitled to search the bag in the car as an incident of the investigative detention to ensure their own immediate safety.

While this does represent a modest extension of the protective pat-down search in R. v. Mann , it is limited by the concern for immediate officer safety that underpins Mann . 79 However, I would emphasize that this should not be read as giving the police carte blanche power to permit searches of bags or vehicles incident to investigative detention.

Such a search demands satisfactory proof of a serious concern for officer safety that requires something more than the initial pat-down. [ 22 ] I would like to now turn to a consideration of s. 24(2) of the Charter since even if the search in question was found to be unreasonable, a separate evaluation is required to determine whether evidence acquired as a result of the Charter-infringing conduct ought to be excluded. [ 23 ] The process of determining whether improperly obtained evidence ought to be excluded requires a consideration of the factors set out in Grant, which are as follows: a. an assessment of the Charter – infringing state conduct; b. impact on the Charter – protected interests of the accused; and c. society’s interest in an adjudication on the merits.

Charter infringing conduct - this factor requires an assessment of the seriousness of the impugned police conduct. The main concern is to preserve public confidence in the rule of law and the administration of justice. Charter breaches may be minor in some cases and more serious in other. In this application defense counsel characterizes the Charter breach as serious and flagrant. Mr. Russomanno asks the court to make credibility findings against Constable Peak and to hold that his conduct amounted to bad faith. I do not agree.

I find no basis for holding that Constable Peak’s evidence was untrue or that his actions amounted to a willful or reckless disregard of the Applicant’s Charter rights. Impact on the Charter interests of the Applicant - This factor requires an evaluation of the extent to which the breach actually undermined the Charter protected interest. Was the breach fleeting or profoundly intrusive? Did the Applicant have a high expectation of privacy in the particular circumstances of this case? Was he demeaned in some way?

In my view a scan of the interior of the Applicant’s vehicle, in a public place, without a search of his person or personal effects is intrusive but not a profound violation of the Applicant’s privacy. Society’s interest in an adjudication on the merits - This factor acknowledges that society expects cases to be determined on their merits. It requires a consideration of whether the truth seeking function of the trial process would be better served by admitting the evidence or excluding it.

This factor requires an appreciation of the fact that not all reliable evidence should be admitted as evidence without regard for how it was obtained. It is necessary to protect the integrity of the system and this sometimes means even reliable evidence must be excluded. The importance of the evidence is also a relevant consideration. It is obvious that finding a loaded handgun in a vehicle is important and reliable evidence. This factor weighs heavily in favour of admission of the handgun evidence. [ 24 ] In

summary, balancing these factors and considering all of the circumstances, I would hold that even if the search was unreasonable, in the particular circumstances of this case, the handgun evidence should not be excluded. [ 25 ] As a final comment I note that the Notice of Application specifically refers to ss. 10(

a) and 10(

b) of the Charter . However, the manner in which the application was presented by defence counsel and responded to by Crown counsel, and considering the agreement that the determination of the admissibility of the handgun would be dispositive of the case on the merits, I find that it is unnecessary to deal with the s. 10 Charter issue. [ 26 ] In the result, the application is dismissed. James J. Released: August 29, 2013 CITATION : R. v. Faucher, 2013 ONSC 5492

COURT FILE NO.: 12-9164 DATE: 20130829 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – RICHARD FAUCHER Applicant REASONS FOR JUDGMENT James J. Released: August 29, 2013