R v Smith, 2019 SKCA 126

Court of Appeal for Saskatchewan Docket: CACR2889 Citation: R v Smith , 2019 SKCA 126 Date: 2019-11-22 Between: Her Majesty the Queen Appellant And Tristen Wendy Sarah Smith Respondent Before: Jackson, Caldwell and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Leurer On Appeal From: Provincial Court, Prince Albert Appeal Heard: November 6, 2018; supplemental Crown factum filed July 5, 2019 Counsel: Wade E.

McBride, Q.C. for the Appellant No one appearing for the Respondent Caldwell J.A. I. Introduction [ 1 ] The Crown appeals against the acquittal of Tristen Wendy Sarah Smith by a Provincial Court judge on a charge of possession of methamphetamine for the purpose of trafficking, pursuant to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 . The Crown alleges the trial judge erred by finding the police had violated Ms.

Smith’s rights under s. 8 of the Charter when they searched her purse and erred again when he excluded the methamphetamine the police found in the purse pursuant to s. 24(2) of the Charter . [ 2 ] I am not persuaded the trial judge erred when he found the police had breached Ms. Smith’s s. 8 Charter rights in the circumstances of this case. Further, given the deferential standard of appellate review of a trial court’s s. 24(2) analysis, I am not persuaded this Court should interfere with the trial judge’s decision to exclude the evidence obtained through the Charter breach. I would dismiss the Crown’s appeal. II.

Background A. Arrest and search [ 3 ] In September 2015, Ms. Smith was subject to an outstanding warrant for her arrest on charges of possession of stolen property and obstruction [Arrest Warrant]. She was also under surveillance at that time as a person of interest because she was the girlfriend of the prime suspect in a homicide investigation. In furtherance of that investigation, the police had obtained a general warrant authorising them to “covertly remove” any mobile device found on Ms. Smith and to forensically examine it [General Warrant]. [ 4 ] On September 16, 2015, the police located Ms.

Smith, who was accompanied by two males. Constable Gullacher approached the group and asked them to stop so he could speak with them. Ms. Smith and her two companions fled. Officers caught Ms. Smith and one of her companions, but her second companion, who police believe was her boyfriend, hopped a fence and escaped arrest. Once the police had detained the companion, later identified as her brother, they released him but he waited around anyway. Ms. Smith was uncooperative in her arrest. Constable Drabinasty believed Ms. Smith was impaired by some drug. [ 5 ] Ms.

Smith had a purse with her at the time of her arrest. In the course of her arrest, the police handcuffed her and took her purse from her. Ms. Smith’s brother asked the arresting officers if he could take the purse since he was there. Ms. Smith also told the officers she wanted to deliver the purse to her common law partner. The police refused these requests. Constable Drabinasty searched the purse at the site of the arrest. In it, he located a black camera case, which he opened. The camera case contained four baggies of methamphetamine, totaling 2.7 ounces.

In his testimony, Constable Drabinasty stated he searched the purse for two reasons: (

i) to locate potential weapons that could harm him or anyone else; and (ii) to locate Ms. Smith’s cellphone pursuant to the General Warrant. B. Voir dire decision [ 6 ] In a voir dire hearing held to determine the admissibility of the items found in Ms. Smith’s purse, the trial judge found Constable Drabinasty’s search of the purse was unreasonable and contrary to s. 8 of the Charter . The trial judge rejected the Crown’s argument that the search had been lawfully conducted incident to Ms. Smith’s arrest. The trial judge observed that: (

i) Ms. Smith had been separated from her purse at the time the police searched it and there was no reasonable basis to be concerned about officer or public safety; (ii) a search could not be justified on the basis of a vague concern for safety; and (iii) the officers were not likely to find in the purse any evidence relating to the offences of possession of stolen property and obstruction—which were the offences set out in the Arrest Warrant. As to the General Warrant, the trial judge found it had authorised the police to search Ms. Smith’s cellphone only if it

came into their lawful possession. That is, the General Warrant did not authorise the police to search the purse for the cellphone. [7] Having found a Charter breach, the trial judge assessed it as having had a significant impact on Ms. Smith’s Charter rights,considering the high expectation of privacy she had in her purse. He concluded the state misconduct was serious, given his finding thatthe searching officer’s belief that the General Warrant had authorised the search had been based on a “complete misunderstanding of theplain limits on search and seizure imposed in the warrant”.

After balancing the relevant factors, the trial judge concluded that admittingthe methamphetamine into evidence would bring the administration of justice into disrepute. III. Issues [8] In its appeal against the acquittal, the Crown asserted the trial judge had erred by: (

a) finding the police did not have lawful authority to search Ms. Smith’s purse incident to her arrest; (

b) finding the police did not have lawful authority to search Ms. Smith’s purse as part of a safety search; (

c) concluding the General Warrant did not authorise the police to search Ms. Smith’s purse for a cellphone; and (

d) excluding the methamphetamine found in Ms. Smith’s purse from evidence under s. 24(2) of the Charter. The Crown subsequently abandoned its second ground of appeal. [9] The standards of review in a Crown appeal against acquittal involving Charter issues were recently summarised in R vKossick, 2018 SKCA 55, 365 CCC (3d) 186, as follows: [18] The Crown’s right to appeal against an acquittal on an indictable offence is limited to questions of law alone (Criminal Code, s.676(1)(a)).

Further, the Crown must satisfy the appellate court that the error of law had a material bearing on the acquittal: R vGraveline, 2006 SCC 16 at para 14, [2006] 1 SCR 609. [19] A judge’s application of the Charter raises a question of law: R v Ramos, 2011 SKCA 63 at para 19, 371 Sask R 308.

A judge’sfinding of fact is entitled to deference; however, the application of a legal standard to the facts to establish a Charter violation is subjectto the correctness standard: R v Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527. [20] The standard of review applied to a judge’s s. 24(2) analysis is narrow and deferential.

Absent an error in principle or where it isclear the trial judge made an unreasonable finding, an appellate court will generally not intervene in a judge’s decision to excludeevidence: R v Grant, 2009 SCC 32, [2009] 2 SCR 353; R v Buhay, 2003 SCC 30, [2003] 1 SCR 631; R v McMahon, 2018 SKCA 26; R vKoma, 2015 SKCA 92, 465 Sask R 188; R v Turpin, 2012 SKCA 50, 393 Sask R 184. IV. analysis A. Search incident to arrest [10] The Crown argued initially that the trial judge had erred by failing to find the police had lawfully searched Ms. Smith’s purseincident to her arrest or as a safety search.

Under each argument, the Crown submitted the trial judge had failed to consider the fullfactual matrix of the arrest when assessing whether the search had been necessary to ensure officer or public safety. [11] I begin with the observation that both the Crown, at least initially, and the trial judge appear to have merged the common lawpolice power of search incident to arrest (Cloutier v Langlois, (SCC), [1990] 1 SCR 158) with the power of policeofficers to conduct a so-called safety search in the absence of an arrest (as described in the majority reasons in R v MacDonald, 2014SCC 3, [2014] 1 SCR 37).

In R v MacDonald, LeBel J., for the majority of the Court, on the issue of when a safety search will beconsidered lawful, wrote: [40] On balancing these factors, I am convinced that the duty of police officers to protect life and safety may justify the power toconduct a safety search in certain circumstances.

At the very least, where a search is reasonably necessary to eliminate an imminent threatto the safety of the public or the police, the police should have the power to conduct the search. [41] But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. Inmy view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity ofsafety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police.

Given thehigh privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonablegrounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45).The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v.Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vagueconcern for safety.

Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from theknown facts of the situation” (Mann, at para. 41). (Emphasis added) [12] However, subsequent to the appeal hearing, the Crown identified a “flaw” in its factum and oral argument, such that itappeared “as though the Crown may have conceded that the more stringent test from [R v MacDonald] applied on the facts even thoughthis was a weapons search incidental to arrest”. In its correspondence to the Court, the Crown wrote: “That was not the argument that

[we] intended to make”, further advising that “[t]he law in the [factum] is correct but the argument is not sufficiently developed”. [13] Frankly, I cannot disagree with the Crown’s characterisation of its original argument as flawed. In that argument, the Crownrelied heavily on the test from R v MacDonald to support the legality of a search that was undoubtedly a search incident to an arrest. Thestandards applicable to and the breadth of the safety search power and the search incident to arrest power are different.

In itssupplemental factum, the Crown fundamentally changed its position from that taken under its original factum. Of note, the Crown alsoaltered its position on the scope of police authority under the General Warrant and on the trial judge’s balancing of the R v Grant factors(R v Grant, 2009 SCC 32, [2009] 2 SCR 353) under s. 24(2), which I address later in these reasons. [14] As to the search of the purse, the Crown now states the law of safety searches conducted in the absence of an arrest does notapply in the circumstances of this case. There are two aspects to this shift in position.

First, the Crown now argues that the trial judgeerred in law by applying the test in R v MacDonald. Second, the Crown asks us to recognise a broad discretion to conduct a safety searchunder the common law police power of search incident to arrest. In short answer to these issues, I am not persuaded the law in R vMacDonald was inapplicable in the circumstances of this case, although the law of search incident to arrest is certainly a better fit withthe facts.

Regardless, I find the trial judge did err by relying on the criteria for a safety search under R v MacDonald when delineatingthe scope of the safety objective of a search incident to arrest, thereby holding the police to a higher standard than was required under theapplicable law. Nonetheless, I also find that the power of search incident to arrest is not as broad as the Crown contends. I turn now tothat issue. [15] There are three recognised common law police powers of search without a warrant: (

i) a search incident to arrest (Cloutier vLanglois); (ii) a search incident to an investigative detention (R v Mann, 2004 SCC 52, [2004] 3 SCR 59); and (iii) a safety search (R vMacDonald). The power to search incident to arrest had been recognised in Canada prior to the adoption of the Charter, where itsexistence and its scope were influenced by similar police search powers under British and American common law.

The latter two powers—i.e., the investigative detention and safety search powers—were created by the Supreme Court of Canada under the ancillary powersdoctrine first authoritatively discussed in R v Waterfield, [1963] 3 All ER 659 (CA), as set out in R v Dedman, (SCC),[1985] 2 SCR 2. [16] The Supreme Court arguably first recognised a post-Charter common law police power of search incident to arrest in itsdecision in R v Beare, (SCC), [1988] 2 SCR 387, where it held the police had the authority to fingerprint an arrestedindividual.

However, L’Heureux-Dubé J.’s reasons in Cloutier v Langlois are acknowledged as setting out the general framework forinterpretation of the post-Charter power (at 180–181): In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developedin Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession orimmediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence againsthim.

The common thread in this line of authority is the objective of guaranteeing safety and applying the law effectively. While theexistence of the power is accepted, there seems to be some uncertainty as to its scope. While at common law the British courts did notimpose reasonable grounds as a prerequisite to the power to search a person lawfully arrested, neither have they gone so far as torecognize a power to search as a simple corollary of arrest.

The Canadian courts, on the other hand, do not seem to have hesitated inadopting this latter approach. (Emphasis added) [17] Notably, L’Heureux-Dubé J. described the type of search contemplated by the power as being a frisk search, explaining howthat type of search balanced the competing interests at play in an arrest.

She then observed that, while the power to frisk a detainee uponarrest did not depend on the existence of reasonable grounds, it was not without its limits (at 185–186): In this regard a “frisk” search is a relatively non-intrusive procedure: outside clothing is patted down to determine whether there isanything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force isapplied. The duration of the search is only a few seconds.

Though the search, if conducted, is in addition to the arrest, which generallyentails a considerably longer and more sustained loss of freedom and dignity, a brief search does not constitute, in view of the objectivessought, a disproportionate interference with the freedom of persons lawfully arrested. There exists no less intrusive means of attainingthese objectives. A “frisk” search incidental to a lawful arrest reconciles the public’s interest in the effective and safe enforcement of the law on the onehand and on the other its interest in ensuring the freedom and dignity of individuals.

The minimal intrusion involved in the search isnecessary to ensure that criminal justice is properly administered. I agree with the opinion of the Ontario Court of Appeal, as stated inBrezack, Morrison, Miller, supra, that the existence of reasonable and probable grounds is not a prerequisite to the existence of a policepower to search. The exercise of this power is not however unlimited. Three propositions can be derived from the authorities and aconsideration of the underlying interests. 1. This power does not impose a duty. The police have some discretion in conducting the search.

Where they are satisfied that the lawcan be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assessthe circumstances of each case so as to determine whether a search meets the underlying objectives. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be athreat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.

Thepurpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case forexample if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. 3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should beproportionate to the objectives sought and the other circumstances of the situation. A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law.

(Emphasis added) [18] The Supreme Court has, since Cloutier v Langlois, expounded on its understanding of the scope of the power of searchincident to arrest a number of times: (

a) In R v Stillman, (SCC), [1997] 1 SCR 607 at para 35, the Supreme Court recognised the preservation ofevidence from destruction by the detainee and the discovery of evidence could be valid objectives in a search incident to arrest, but foundthe power did not entitle the police to conduct an invasive search of the detainee’s person with a view to obtaining hair and buccalsamples and teeth impressions. (

b) In R v Caslake, (SCC), [1998] 1 SCR 51, the majority found an inventory search of a detainee’s vehiclefell outside the bounds of the legitimate purposes of search incident to arrest. (

c) In R v Golden, 2001 SCC 83, [2001] 3 SCR 679, the majority found the law of search incident to arrest permitted a stripsearch only where the police had reasonable grounds to strip search a detainee to discover weapons or seize evidence related to theoffence for which the detainee had been arrested; the minority agreed the power entailed such authority but disagreed that its exerciserequired reasonable grounds.

Notably, the majority also said: “a ‘frisk’ or ‘pat down’ search at the point of arrest will generally sufficefor the purposes of determining if the accused has secreted weapons on his person”, observing that the “mere possibility that anindividual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search” (at para 94). (

d) In R v Nolet, 2010 SCC 24, [2010] 1 SCR 851, a unanimous Court found a vehicle search, conducted hours after arrest withthe objective of obtaining evidence of criminal activity related to the offence for which the detainee had been arrested, fell within thepower but that an inventory search of the vehicle would not have been lawful under the power of search incident to arrest (see R vCaslake). (

e) In R v Fearon, 2014 SCC 77 at para 83, [2014] 3 SCR 621, a majority of the Court recognised the power extended to thesearch of a cellphone but not in every arrest and laid out non-exhaustive circumstances in which such a search would comply with s. 8 ofthe Charter. Justice Cromwell, who wrote for the majority, also added “to locate the other perpetrators” as a valid objective for a searchincident to arrest (at para 48). (

f) In R v Saeed, 2016 SCC 24, [2016] 1 SCR 518, a majority of the Court distinguished R v Stillman and recognised the poweras extending to a penile swab search of a detainee at the police station conducted hours after arrest where the police had reasonablegrounds to believe such a search would reveal and preserve evidence of the offence for which the accused had been arrested. [19] Most recently, in R v Saeed, the majority of the Court confirmed the framework for the common law power of search incidentto arrest in terms consistent with Cloutier v Langlois, albeit referencing R v Fearon: [37] The existing general framework for a valid search incident to arrest purports to authorize a broad range of searches.

It requiresonly that (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense that it is for avalid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably (R. v. Fearon, 2014 SCC77, [2014] 3 S.C.R. 621, at para. 27). [20] As I see it, the issue in this appeal falls squarely under the second requirement summarised in R v Saeed. The question theCrown has put before the Court is whether the search of Ms.

Smith’s purse was “truly incidental to the arrest” in the sense that it wasconducted for a valid law enforcement purpose that is “related to the purpose of the arrest”. Explaining this requirement in R v Caslake,Lamer C.J.C. wrote: [17] In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself:searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for thesearch does not arise as a result of a reduced expectation of privacy of the arrested individual.

Rather, it arises out of a need for the lawenforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy.

See the LawReform Commission of Canada, Report 24, Search and Seizure (1984), at p. 36. (For a more in-depth discussion, also see WorkingPaper 30, Police Powers - Search and Seizure in Criminal Law Enforcement (1983), at p. 160.) This means, simply put, that the search isonly justifiable if the purpose of the search is related to the purpose of the arrest. (Emphasis added) [21] Later in his reasons, Lamer C.J.C. reiterated the primary purposes of a search incident to arrest: [19] As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the policeand public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can beused at the arrestee’s trial.

The restriction that the search must be “truly incidental” to the arrest means that the police must beattempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police werelooking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposesfor a valid search incident to arrest in mind when the search is conducted.

Further, the officer’s belief that this purpose will be servedby the search must be a reasonable one. [20] To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before asearch can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To givean example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrestedperson was armed with a particular weapon before searching the person.

By contrast, under the standard that applies here, the policewould be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the personmight be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in thecircumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there

must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest. [21] In my view, it would be contrary to the spirit of the Charter’ s s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test.

The objective element ensures that the police officer’s belief that he or she has a legitimate reason to search is reasonable in the circumstances. [ 22 ] Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested . For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis , supra ). … [25] In

summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier , supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds.

However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the Court to draw a negative inference.

However, that inference may be rebutted by a proper explanation. (Underlining in original, italics emphasis added) [22] Professors Coughlan and Luther, in Detention and Arrest , 2d ed (Toronto: Irwin Law, 2017) at 55–56, describe the subjective component of the lawfulness of a search incident to arrest in the following way: Like the power to arrest itself, search incident to arrest has both a subjective and an objective requirement.

Although the search does not require reasonable grounds, it must be, as the Court said in Cloutier , “for a valid objective in pursuit of the ends of criminal justice.” The subjective requirement means that the officer must personally think that his search is aimed at one of those objectives. This requirement is related to the first criterion in Cloutier — that each search is a discretionary one, based on an assessment of the circumstances of the case. This is a fine line the Court is drawing, though that does not mean drawing it is not worth the effort.

The power to search flows directly from the arrest; on the other hand, the search should not be conducted automatically.

In effect, police might well be able to decide, each time, “I will now conduct a search”; what they cannot do is decide in advance, “every time I arrest someone I will conduct a search.” A search that is simply conducted in accordance with a general policy to search will not satisfy the subjective criterion: “the police must be able to explain … why they searched.” (Footnotes omitted) [ 23 ] To summarise, under R v Stillman , the Court described the valid purposes for a search incident to arrest as including: “ discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.

The purpose of the search must not be unrelated to the objectives of the proper administration of justice ” (emphasis in original, at para 158). In oral argument, the Crown conceded the search of Ms. Smith’s purse had not been conducted for the purpose of obtaining or preserving evidence relating to the reasons for her arrest, i.e., under the Arrest Warrant, for possession of stolen property and obstruction. This concession left the Crown to argue only limited bases as justification for the search. The Crown submitted the search of Ms.

Smith’s purse was conducted in furtherance of the legitimate objective of police officer and public safety. Framing the search as a “weapons search incidental to arrest”, the Crown stated the appropriate standard is whether, having regard to the totality of the circumstances, it was reasonable for the police to have searched Ms. Smith’s purse for weapons. [ 24 ] Here, the Crown asserts the trial judge erred by concluding the police only had some “vague concerns” about officer safety. The Crown points to the totality of the evidence, where Ms.

Smith had sought to elude the police, been abusive and aggressive towards the arresting officer, demanded that she be allowed to give her purse to her common law partner, and appeared to be under the influence of a drug. This evidence, the Crown submits, contributed to the searching officer’s belief that it was reasonable to search Ms. Smith’s purse for a weapon. Of course, the totality of the circumstances also includes the fact that, at the time of the search, Ms.

Smith had been handcuffed and separated from her purse. [ 25 ] While the Supreme Court in R v Stillman expanded the police power of search incident to arrest to include a search for items of evidence not in the immediate possession of the detainee, I am not persuaded the expanded power reaches far enough to cover searches for the purpose of officer or public safety. In R v Stillman , the justification for expanding the search power was to enable police officers to discover and preserve evidence related to the reasons for arrest.

That justification does not, on its face, extend to a search for items not in the possession of a detainee for the purpose of police or public protection. In Stanley A. Cohen, “Search Incident to Arrest: How Broad an Exception to the Warrant Requirement?” (1988) 63 CR (3d) 182 at 186, the author wrote: The power to search incident to arrest should be among the recognized subcategories falling within the feasibility exception, but restrictions as to its actual ambit must be clearly delineated so as to remain consistent with Southam . Without this power, effective law enforcement would be an impossibility.

The assumption should be that, once a limited external search has been conducted for such justifiable purposes as the protection of the officer, the onus should be on the police to show circumstances of sufficient importance or exigency to justify a wider, more intrusive search without a warrant.

[ 26 ] Moreover, in seeking to extend the safety objective articulated in Cloutier v Langlois beyond its original scope, the Crown’s argument crab-walks around the existing common law doctrine of exigent circumstances. That doctrine, in my view, already accounts for an arrest scenario where the public or other officers might be put at risk. Although in dissent in R v Fearon , Karakatsanis J. wrote: [173] The doctrine of exigent circumstances, as expressed in the common law and the Criminal Code , R.S.C. 1985, c. C-46 , recognizes that privacy protections may be overridden under exigent circumstances.

This doctrine is an exception to the general requirement to obtain a search warrant. [174] Under s. 487(1)( b ), the police may obtain a search warrant if “there are reasonable grounds to believe that a search will afford evidence with respect to the commission of an offence or will reveal the whereabouts of a person who is believed to have committed an offence”.

Section 487.11 provides: A peace officer ... may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) ... without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. Thus, the requirement for a warrant to search a personal digital device can be dispensed with under exigent circumstances, if the conditions for obtaining a warrant exist.

These provisions, however, do not define exigency. [175] At common law, exigent circumstances have been defined to include (1) the imminent loss or destruction of evidence or (2) an imminent threat to police or public safety ( Feeney , at para. 52, citing J.A. Fontana, The Law of Search and Seizure in Canada (3rd ed. 1992); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (8th ed. 2010), at p. 1066; R. v. Kelsy , 2011 ONCA 605 , 283 O.A.C. 201 (Ont. C.A.), at para. 24 .) [176] The definition of exigency in s. 529.3 of the Criminal Code is consistent with the common law.

That provision authorizes the police to enter a home, without a warrant, under exigent circumstances, which are defined in s. 529.3(2) as circumstances in which the officer: (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [177] This provision provides for a lower standard for exigency to protect safety (reasonable suspicion) than to preserve evidence (reasonable belief).

Similarly, in Golub , at pp. 758-59, the Ontario Court of Appeal recognized the power to search a home incident to an arrest in exceptional circumstances, based on a reasonable suspicion that an armed person or injured victim may have been inside. [178] In my view, the existing common law standards of exigency are equally applicable to the search of a cell phone. The usual standard of reasonable belief is appropriate for the preservation of evidence. However, the standard to infringe an arrested person’s privacy interest is lower when the search is reasonably necessary to safely and effectively perform an arrest.

When an accused has summoned backup, the arrest itself is potentially jeopardized by threats to the police and the public. The highest purpose of law enforcement is to protect the public, and officers are entitled to ensure their own safety in carrying out their dangerous and necessary duties.

Thus, a reasonable suspicion that the search of a cell phone is necessary to prevent imminent bodily harm or death will justify a warrantless search. [179] Therefore, a warrantless search of a cell phone on arrest will be justified when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search. (Emphasis in original) [ 27 ] Under the doctrine of exigent circumstances, a police officer may already lawfully conduct a search of a detainee’s purse incident to an arrest where the officer holds a reasonable suspicion that such a search is necessary to prevent imminent bodily harm or death. [ 28 ] However, observing that, unlike the R v MacDonald safety search power, the power to search incident to arrest is not limited to imminent threats to safety, the Crown proposed that the Court consider a few general factors, which the Crown has drawn from common sense concerns about police officer and public safety.

It says the following factors weigh in favour of recognising a broad power to search for weapons incident to any arrest, namely: (

a) safety concerns may continue even after an arrest and after the detainee has been handcuffed; (

b) when a detainee is taken into custody, the concern for officer safety extends to officers and detention personnel at the police station; (

c) many things have the potential to be used as a weapon, including small or sharp objects, and the existence of a potential weapon is, on its own, a safety risk; and (

d) a detainee will regain possession of his or her belongings, which may include a potential weapon, when released from detention. [ 29 ] As may be seen, the foregoing factors speak to matters of officer safety that are far removed from the direct arrest-related safety concerns weighed in Cloutier v Langlois and in R v Golden , which the Court found in both cases could be attenuated by a frisk or pat-down search. That is, the Crown here seeks an

interpretation of safety concern that is far broader than what the Supreme Court has

previously contemplated. [ 30 ] Nonetheless, referring to R v Caslake (at para 20 ), the Crown submits the validity of a weapons search incident to an arrest is based on “whether it is reasonable to search for any weapon, having regard to the totality of the circumstances”. While this

interpretation is one that may be drawn, the Crown would rephrase it in such a way that it would apply to circumstances unintended by the language of R v Caslake by stating “the searching officer need only have a reasonable concern that the person arrested might have something that could potentially be used as a weapon” (emphasis added).

Even accepting the Crown’s contention that any object, even a small item, can be employed as a weapon, I must reject its broad proposition. [ 31 ] I am not persuaded the Supreme Court’s jurisprudence, including paragraph 20 of R v Caslake , may be interpreted as broadly as the Crown has suggested. In that paragraph, Lamer C.J.C. was speaking about officer and public safety concerns arising directly from the possibility that a detainee might be armed .

He wrote in clear terms that, “under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed ” (emphasis added). This

interpretation is supported by the decision in R v Golden where, as noted, the majority described the power to search for weapons incident to an arrest in terms entirely consistent with the limited scope of a frisk search (as had been contemplated by L’Heureux-Dubé J. in Cloutier v Langlois ) conducted incident to the arrest of a possibly armed detainee (as had been contemplated by Lamer C.J.C. in R v Caslake ).

In their majority reasons, Iacobucci and Arbour JJ. wrote: [94] In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a “frisk” or “pat down” search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person.

Only if the frisk search reveals a possible weapon secreted on the detainee’s person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee’s person will a strip search be justified.

Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search . (Emphasis added) [ 32 ] While there are many reasons not to equate a strip search with the search of a purse, the relevant point I take from R v Golden is that the common law police power to search incident to an arrest does not permit the police to do anything more than conduct a frisk or pat-down search of a detainee’s person for weapons where the officer holds a reasonable concern that the detainee might have a weapon on or about his or her person.

However, where the circumstances of the case or the initial body search itself reasonably give rise to a weapons-related safety concern that warrants a further, more-intrusive search, such a search may be lawfully conducted incident to the arrest. [ 33 ] Of course, where an individual is arrested for a weapons-related offence , the police officer may—depending on the circumstances—have an objectively valid reason for conducting a more intrusive or expansive search for weapons because there might be “some reasonable prospect of securing evidence” related to that offence ( R v Caslake at para 22 ).

Regardless, it is clear from Cloutier v Langlois , R v Caselake and R v Golden that, when the objective of a search incident to arrest is officer or public safety, that concern must be tied directly to the risk that the detainee might be armed and might thereby pose a threat to safety. [ 34 ] As such, I conclude neither the decision in R v Caslake nor any other Supreme Court jurisprudence supports the proposition that the police may, for general safety reasons , always conduct an intrusive search for weapons incident to an arrest.

I agree a weapons search incident to an arrest addresses the valid objective of officer and public safety. However, in all circumstances, a search incident to arrest must be conducted for a valid objective that is truly incidental to the arrest in question . And, this is where the Crown’s proposition falls down. [ 35 ] There is no suggestion here that the police believed Ms. Smith had a weapon in her purse. Moreover, it is hard to conclude the police reasonably believed the possibility Ms.

Smith’s purse contained a weapon (or an object that might be used as a weapon) posed a safety risk to officers or to the public, given that they had detained her, handcuffed her and separated her from her purse. In saying this, I accept the Crown’s assertion that police officer and public safety concerns “can continue after the arrest and even after the arrestee has been handcuffed”.

The Crown cited R v Duong (4 March 2005) Vancouver, 150816-3-C2 (BC Prov Ct), aff’d 2006 BCCA 325 , 142 CRR (2d) 261, as supporting this proposition. [ 36 ] In R v Duong , the police had found drugs on a detainee through a pat-down search incident to an investigative detention ( R v Mann ). The detainee argued the search was unnecessary because he had been handcuffed at the time, thereby no longer posing a threat to safety. However, the searching officer had been concerned that the detainee might have had a knife in his pocket, which the detainee might have been able to access even though handcuffed.

The trial judge found these concerns “were bona fide and reasonable” (at para 57). The Court of Appeal dismissed the detainee’s appeal. As is evident, the decision in R v Duong does not stand for the proposition the Crown seeks to establish in this case. Its facts line up squarely with the dicta in R v Caslake , where Lamer C.J.C. was speaking about armed detainees. [ 37 ] In the case at hand, once Ms. Smith had been arrested, she no longer had access to her purse or, therefore, to any potential weapon it contained. By separating Ms.

Smith from her purse, the police had reasonably and effectively averted any threat to safety the purse—or Ms. Smith’s access to it—presented in the context of the arrest, thereby eliminating the legal basis to search it under the common law power of search incident to arrest and under the common law safety search power (latterly, because there could be no imminent threat).

There are markedly different safety risks associated with a detainee who might have a weapon hidden on or about his or her person versus a purse placed outside a detainee’s control or access that might contain a potentially harmful object. [ 38 ] The Crown also referred to R v Davis (15 February 2002) Calgary, 016004236-Q1 (Alta QB), aff’d 2004 ABCA 33 , 115 CRR (2d) 332, where, during a pat-down search incident to an investigative detention, a police officer felt a bulge around the detainee’s shin, which turned out to be a potato chip container containing drugs.

On appeal, the Court found the trial judge had not erred by concluding the search of the chip container for a weapon had been reasonable even though any imminent safety threat had been abated, as it had in

Ms. Smith’s arrest, by removal of the container from the detainee’s body. Importantly, however, the pat-down search in R v Davis had been conducted incident to an investigative detention ( R v Mann ), not an arrest. Given those circumstances, the trial judge found “it reasonable and prudent for the constable to open the chip box to find out what is in it before returning it to the accused ” (at para 8; emphasis added). In Ms. Smith’s situation, the police would not have been returning her purse to her in the immediate future as she had been placed under arrest. That is, unlike R v Davis , the circumstances of Ms.

Smith’s arrest did not present a continuing safety concern that made it reasonable and prudent for the police to determine what she had in her purse. [ 39 ] The Crown further argued the concern for safety is not limited to the officers at the scene of the arrest and extends to detention personnel at the jailhouse or police station, citing R v Majedi , 2009 BCCA 276 , 192 CRR (2d) 288, in support of this proposition. In that case, the arresting officers had searched two purses found in the detainee’s vehicle. Factually, the police had detained Ms.

Majedi on a mistaken belief that she was in Vancouver in violation of a provision of a recognisance, which she denied, informing the police that it was no longer operative and that she usually carried her “court papers” with her to establish that fact but that she did not have them with her on that day. The police inquired about the status of the recognisance but their dispatch erroneously told them the provision remained in force. At that point, the police arrested Ms. Majedi, handcuffed her and placed her in a police car.

Since her vehicle was parked illegally as a result of police action, the police decided to impound it and so they searched it and found the two purses. The officers who searched the purses testified that they had done so for four reasons: (

i) because the “court papers” might be inside; (ii) because the vehicle was being impounded and they were responsible for it and, therefore, an inventory of possible valuables was necessary; (iii) to protect the police from potential liability if valuables went missing; and (iv) it was necessary to search for sharp objects to protect custodial staff. The search of the two purses led to the discovery of drug paraphernalia and cash, which resulted in the police re-arresting Ms.

Majedi for drug trafficking (at paras 2–4). [ 40 ] The British Columbia Court of Appeal ruled that the search of the purses had had nothing to do with the offence for which Ms. Majedi had been arrested and “no issue of officer safety was apparent as a justification for entering the car” (at para 24). Despite this, the Court determined the search was lawful because “the officer was entitled to enter the vehicle to determine whether there were dangerous items inside” (at para 25).

Secondarily, the Court found the officers had valid reason to search for the “court papers”, which ostensibly contained exculpatory evidence on the offence for which Ms. Majedi had been arrested, even though the Court had ruled that the search of the purse had had nothing to do with that offence. However, on the issue of safety, the Court wrote: [32] The officers relied on their experience that personal effects such as purses usually accompany arrested persons to jail.

They also relied on their experience and jail staff practise that requires an inventory of the contents of personal effects that are held by the police for safe keeping. In my view, the officers believed the purses would accompany Ms. Majedi to the police station and would be searched there by jail staff. The subjective and objective requirements for searching the purses for objects that might imperil the safety of jail staff were met. [33] Ms. Majedi asserts this is of no assistance to the Crown because the jail staff inventory search itself would have been unlawful.

In my view, it is not necessary to determine that question on this appeal, but it seems to me that the balance between an arrested person’s privacy interests and the need for the police to know exactly what they are putting into safe keeping in the police station would militate toward supporting the legitimacy of such a search.

I note the Court in Caslake certainly left the issue open, stating in para. 30, “[i]f the police feel the need to inventory a car in their possession for their own purposes, that is one thing. ...” [34] A question was raised whether the officers needed to undertake the searches or whether they could have left it to jail staff. I would not intrude into this area of judgment. It is apparent the officers believed it was incumbent on them to undertake the search out of concern for correction officer safety. I would not question their concern in the circumstances of this case.

Notably, R v Majedi is of little assistance as a precedent because the Court did not consider whether it was objectively reasonable in the circumstances for the police to search the purses and instead declined to “intrude into this area of judgment” or to “question their concern”. That is, the Court accepted the officer’s subjective belief without examining whether it was objectively reasonable.

Respectfully, the analysis in R v Majedi is not consistent with requirements of R v Caslake . [ 41 ] Nonetheless, the Crown drew a direct parallel between R v Majedi and this case, noting the arresting officer had indicated that, in his experience, Ms. Smith and her purse would be taken to the RCMP detachment where her purse would be examined as part of the arrest process.

On this evidence, the Crown argued this Court should directly inquire into objective reasonableness and find that the arresting officer had a legitimate basis to search the purse “to ensure the purse did not contain any dangerous items or items that might be hazardous to be handled”.

The Crown asks us to infer therefrom that the search was “[i]n large part … carried out with a concern for other officers who may later have to conduct an inventory search … [who] would not necessarily be aware that there could be a weapon (particularly a sharp object) or some other dangerous item in the purse”. [ 42 ] What this argument overlooks, however, is that the searching officer also said he had searched Ms. Smith’s purse to locate her cellphone pursuant to the General Warrant—a point to which I will return later.

However, it is important to remember that the common law police power to search incident to an arrest only permits the police to conduct searches that are truly incidental to the arrest in question ( R v Caslake at para 19 ). Here, Ms. Smith had not been arrested on weapons-related offences and, once she had been isolated from her purse, any concern for safety could no longer be premised on whether there might be a potential weapon in her purse that she might use against the police or the public, or to aid in an escape.

At that point, on the Crown’s argument, the safety concern became whether there might be something in the purse that could—independent of any action on Ms.

Smith’s part and independent of her arrest —injure an officer or a detention staff member while they were going through her purse for inventory purposes at the police station. [ 43 ] Looking at the Crown’s argument in that way, the principle it puts forward would permit the police to search a purse, backpack or other bag every time they arrest someone because there is always a possibility that something inside items like those could harm other officers or detention staff.

That is, the Crown’s proposition is that such a search is necessarily incidental to all arrests where the detainee has a purse, backpack or other container that might conceal a weapon or an object that could cause harm to an officer or detention staff conducting an inventory search. This would be the case even though R v Caslake and R v Nolet stand for the proposition that an inventory search is not a valid objective for a search incident to arrest. In R v Nolet , the Court wrote:

[53] The following day an RCMP officer from the Integrated Proceeds of Crime Unit searched the tractor-trailer rig for the purpose of creating an inventory. Caslake ruled that “an inventory search per se does not serve a ‘valid objective in pursuit of the ends of criminal justice’” because its purposes “relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing.

However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority” (para. 30). Corporal Houston’s work was incidental to RCMP administrative procedures rather than to the arrest of the appellants. As a result, it did not meet the requirements of a warrantless search, and the fruits of the “inventory” search were thus harvested in breach of s. 8.

In short, R v Nolet states that the Crown may tender at trial evidence discovered as part of an inventory search provided the search was itself conducted pursuant to some lawful authority. R v Nolet cannot be reverse engineered to support an assertion that the fact the police will later conduct an inventory search somehow justifies a search incident to arrest.

The common law power of search incident to arrest has not been expanded to allow a blanket search of the personal property of a detainee on the basis it will inevitably be searched for inventory purposes. [ 44 ] Aside from that, what the Crown’s argument also overlooks is the objective reasonableness of the search. In the scenario proffered by the Crown, the arresting officer would conduct a search of a purse at the arrest scene so as to mitigate the risk to other officers and detention staff, who will later conduct an inventory search of the purse at the police station.

In its factum, the Crown argued these other officers and detention staff may be unaware that there could be a weapon or harmful object in the purse. I find that premise extremely difficult to accept because it implies police services will negligently fail to instruct their detention staff to be wary of, and to train and equip their detention staff to deal with, a known and pervasive safety risk inherent to their job function.

Furthermore, if the safety concern is related to sharp objects, which could cause injury to the searcher, then it seems counterintuitive to me to think that a police officer at the scene of the arrest would somehow be better positioned than detention personnel at the police station to safely search through a purse.

Intuitively, I would have thought that, by searching at the scene of arrest in the heat of the moment, the arresting officer might actually cause the potential safety risk to materialise. [ 45 ] As the Crown asserted, a detainee may pose a continuing safety threat to officers or the public even though they are handcuffed. This is particularly so when the police have reason to believe the detainee has a weapon secreted on or about his or her body.

However, items that belong to a detainee but which are no longer in the detainee’s possession or within the detainee’s grasp are unlikely to pose a continuing threat to the safety of officers or the public and, where they do not, the police lack a reasonable basis to conduct an intrusive search for weapons incident to the detainee’s arrest. In contextual terms, the factual circumstances of Ms.

Smith’s arrest did not give rise to a weapons-related safety concern that continued after she had been frisked, handcuffed and separated from her purse. [ 46 ] To return to core principles, the power of search incident to arrest is an exception to the general principle that a warrantless search is prima facie unreasonable (and therefore in violation of s. 8 of the Charter ) and to the requirement of reasonable grounds to search. As such, the common law power is an exceptional policing tool and its exercise must be limited to searches “truly incidental” to the arrest in question.

As Lamer C.J.C. noted in R v Caslake , reviewing courts must consider the motives of the police for the timing and place of the arrest and the relationship in time and place between the arrest and the search. That is, the search must be limited to areas and things both spatially and causally connected to the arrest in question—a search is not incidental to an arrest when the police are acting for purposes unrelated to the arrest. [ 47 ] On the evidence, the search of Ms. Smith’s purse was neither spatially nor causally connected to her arrest. Once the police had handcuffed Ms.

Smith and separated her from her purse, the search of that purse for items that might affect officer or public safety was not truly incidental to her arrest. The officer’s subjective belief that the purpose of officer and public safety would be served by the search was not objectively reasonable in the circumstances. [ 48 ] In light of the entire factual matrix, including the existence of the General Warrant, the fact the officers did not allow Ms.

Smith to give her purse to her brother, and Constable Drabinasty’s stated secondary purpose for conducting the search (the General Warrant authorising the covert removal and search of Ms.

Smith’s phone), it appears the true, or at least a major, purpose of the search was related to the retrieval of the cellphone—not safety concerns respecting jail staff. [ 49 ] To be clear, my conclusions in no way limit the possibility that other circumstances might well justify a police officer searching a detainee’s belongings at the scene of the arrest incident to that arrest, whether for the purpose of officer or public safety or otherwise. As Lamer C.J.C. remarked in R v Caslake , the police may rely on valid purposes other than those articulated in Cloutier v Langlois to justify a search.

Further, as Cromwell J. stated in R v Fearon , “the permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest” (at para 13). It is certainly conceivable that a search of a purse for safety reasons might be found to be lawful in different circumstances, but it was not reasonable in the circumstances at hand. [ 50 ] Moreover, I emphasise that ancillary police powers will often provide a lawful basis for a search when there are concerns respecting officer or public safety.

If there are reasonable grounds to believe a detainee’s purse contains something dangerous to a police officer or the public, the police have the power to conduct a safety search for those items ( R v MacDonald ). The police may also conduct a lawful warrantless search of a purse in exigent circumstances (s. 487.11).

Of course, these ancillary powers require a higher level of knowledge or suspicion on the part of the police than that required under a search incent to arrest; but then, the power to search incident to arrest is an extraordinary exception to the general principle that a search without warrant is unlawful.

To put it another way, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, or where an officer has a reasonable suspicion a search is necessary to prevent imminent bodily harm or death, the police already have the power to lawfully conduct the search. [ 51 ] Given that the common law police power to search incident to arrest must be defined and applied in a way that accords with an individual’s right to be free from unreasonable search and seizure, the trial judge made no error when he determined officer and public safety did not justify searching Ms.

Smith’s purse incident to her arrest in the circumstances of this case. B. General Warrant

[52] The trial judge found the General Warrant only authorised a search of Ms. Smith’s cellphone once it had lawfully come intothe possession of the police. Since the trial judge found the search incident to arrest was unlawful, he ruled the police were unable to relyon the authority of the General Warrant to justify their search for and of Ms. Smith’s cellphone. In this appeal, the Crown said the trialjudge erred by grounding the authorisation to conduct a search of the cellphone under the General Warrant on the existence of anindependent, legally-valid search putting the phone in their hands.

The Crown provided no authority for this assertion, submitting it isstrictly a question of interpreting the General Warrant. [53] The General Warrant reads: If, upon arrest of: [Ms. Smith and five other named individuals] They are found in the possession of a cellular telephone(s), a peace officer may: • Covertly remove the cellular telephone(

s) from their personal property and using established procedures and/or software writtenwith the capability of extracting information and data, forensically examine the cellular telephone(s). • All information located will examined [sic], copied, photographed and/or seized accordingly, before the cellular telephone(

s) arereturned. [54] The General Warrant was issued under s. 487.01(1) of the Criminal Code, which reads: Information for general warrant 487.01(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552 may issue awarrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or aperson's property if (

a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or anyother Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use ofthe technique, procedure or device or the doing of the thing; (

b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (

c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permittingthe technique, procedure or device to be used or the thing to be done. [55] In finding it was a precondition to the execution of the General Warrant that a cellular telephone must come into the lawfulpossession of the police, the trial judge stated the General Warrant excluded the authority to search for a phone because it expresslyauthorised only the covert removal of a phone.

In written argument, the Crown asserted that, on its face, the General Warrant authorisedthe police to covertly seek out and remove any mobile device Ms.

Smith may have had in her possession at the time of her arrest and, ifthat authority is not express, then it is necessarily implicit given the nature of the investigative technique or procedure authorised by theGeneral Warrant and given the provisions of s. 487.01 of the Criminal Code. [56] On its face, the General Warrant specifically authorised the covert removal of a cellular phone and, by implication, the covertsearch of information contained within a cellular phone. However, the General Warrant was not a warrant of arrest nor did it expresslyauthorise the search of Ms.

Smith’s person or her personal property. At one end, s. 487.01(2) of the Criminal Code undoubtedly rules outany express or implied authority to interfere “with the bodily integrity of any person” under a general warrant. And, on its wording, theGeneral Warrant required that the police find Ms. Smith “in the possession of a cellular telephone(s)”. In my reading of it, this wordingsupports the trial judge’s

interpretation of the limits of the authority conferred under the General Warrant. [57] The question then is whether the General Warrant can or should be read as necessarily have conferred the authority to searchMs. Smith’s purse for her phone, even though it did not say that.

Here, the Crown’s position is that the General Warrant contemplated acovert search of the personal property of each person named in the General Warrant, if they were arrested, citing R v Lyons, (SCC), [1984] 2 SCR 633, in support. [58] In R v Lyons, the Supreme Court was concerned with a warrantless entry into a home to install surveillance equipment. Thepolice had received judicial authorisation to intercept the accused’s private communications.

The warrant did not, however, contain aprovision expressly authorising the police to trespass onto the accused’s property notwithstanding that the investigative technique itauthorised clearly required the installation of communication interception equipment on that property and set out its location as the placeat which the interception was to take place (at 666–668, 672 and 695–696).

On this basis, a majority of the Supreme Court held that theprovisions of the Criminal Code governing the interception of private communications, by necessary implication, authorised the policeto enter private property to install the surveillance equipment. [59] In this case, however, the General Warrant expressly authorised the covert removal of a phone from Ms. Smith’s personalproperty and then authorised the police to employ investigative techniques and procedures to extract information and data from it.

Assuch, the General Warrant could have been executed in the circumstances of a lawful arrest and lawful search. Indeed, I would go so faras to speculate that, given its covert nature, the law might well allow for it to have been executed concurrent with an inventory search andyet give rise, by reason of its authority, to evidence adducible in a trial—although I do not have to decide that point. What this means isthat it cannot be said the authority to search Ms.

Smith’s person or her purse for a phone is, by necessary implication, to be found in theGeneral Warrant—i.e., unlike R v Lyons, that authority is plainly not necessary to the employment of the investigative technique orprocedure authorised by the General Warrant. [60] Moreover, in R v TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3, the majority of the Supreme Court quashed a

general warrant on the basis that the police had not satisfied the requirement in s. 487.01(1)(

c) of the Criminal Code. As quoted above, s.487.01(1)(

c) provides that a judge may issue a general warrant if “there is no other provision in this or any other Act of Parliament thatwould provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done”.Under two sets of reasons, a majority of five judges in R v TELUS Communications Co. held that s. 487.01(1)(

c) should be broadlyconstrued to ensure general warrants are not used to circumvent more specific or more rigorous pre-authorisation requirements for otherwarrants, but the majority split on whether s. 487.01(1)(

c) ought to be construed literally. Three of the judges ruled that a general warrantcannot be issued if another provision of the Criminal Code is available to authorise the technique used by the police.

The two otherjudges wrote that s. 487.01 may be used “to fill a legislative lacuna only where Parliament has actually failed to anticipate a particularsearch authorization” (at para 78), but allowed for a measure of judicial discretion in that determination. [61] Regardless, in that s. 487.01 has been interpreted as supplementing the traditional search warrant powers found in theCriminal Code to account for new investigative techniques (see also R v Ha, 2009 ONCA 340, 245 CCC (3d) 546), it could not haveimplicitly authorised the search of Ms. Smith’s purse.

Taken to the particular, the new investigative technique in this case is theprocedure and software that gives the police the capability of extracting information and data from cellular telephones. This is the searchcontemplated by s. 487.01(1) and it would, absent the General Warrant, violate Ms. Smith’s s. 8 Charter rights. On the other hand, thesearch of Ms.

Smith’s purse is not a new investigative technique, can be authorised under common law in certain circumstances (i.e.,investigative detention, safety search, exigent circumstances, inventory search, etc.), and can likely be authorised by warrant issuedunder s. 487 of the Criminal Code. For those reasons, a search of a purse is not the type of search Parliament had in mind when itenacted s. 487.01 (R v TELUS Communications Co.). The General Warrant could only have been concerned with the authorisation of theinvestigative technique the police would use to conduct a search of Ms.

Smith’s phone—i.e., to obtain the data on it. Accordingly, I amunable to conclude the General Warrant contained an implicit authorisation to search Ms.

Smith’s personal property for the phone. [62] The Crown also premised its argument for implicit authorisation on the fact that, under the Criminal Code, a general warrantmay authorise covert entry: Notice after covert entry 487.01(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, aspart of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after theexecution of the warrant that the judge considers reasonable in the circumstances. [63] In the Crown’s argument, the Criminal Code allows a general warrant to authorise covert entry as an investigative technique(R v Ha) and that necessarily implies a search of personal property in the context of this case.

In that respect, the Crown argued theGeneral Warrant authorised two searches, namely: (1) a covert search of the personal property of the individuals named in the GeneralWarrant; and (2) if a cellular telephone were found therein, the covert removal of that device to facilitate a forensic search of the data onit. [64] I am not persuaded s. 487.01(5.1) of the Criminal Code adds anything to the Crown’s overall argument.

While s. 487.01(5.1)speaks to the notice requirement that is engaged whenever a general warrant authorises covert entry, that requirement does notnecessitate that a general warrant authorising covert entry necessarily grants authority to search an individual’s personal property. Unders. 487.01(3) of the Criminal Code, the police must abide by the terms of a general warrant and the warrant must contain such terms andconditions as the issuing judge considers advisable “to ensure that any search or seizure authorized by the warrant is reasonable in thecircumstances” (emphasis added).

This would seem to contemplate that a general warrant contain express authorisation to conduct asearch. It also confirms that, regardless of its authority, every search and seizure under a general warrant must be “reasonable in thecircumstances”. In fundamental terms, a search will only be reasonable where it is authorised by law, where the law is itself reasonable,and where the manner in which the search was conducted is also reasonable (R v Collins, (SCC), [1987] 1 SCR 265 at278; R v Spindloe, 2001 SKCA 58 at para 22, 154 CCC (3d) 8).

Put in context, the Crown’s argument would have the Court find thesearch of Ms. Smith’s purse—which was otherwise a violation of her Charter rights—was implicitly authorised by law, namely,s. 487.01(5.1) of the Criminal Code. However, even if I were to accept that premise, I would be hard-pressed to conclude that such avague and ill-defined authority to infringe upon Charter rights could, itself, be reasonable. [65] In the end, I find the Crown’s argument fails to come to grips with the limitations Parliament has imposed on the scope of ageneral warrant under s. 487.01(1) of the Criminal Code.

The Crown has not persuaded me that the authority to search personal propertyfor a cellular telephone resides, in the circumstances of this case, in the General Warrant or is found, by necessary implication, under s.487.01(1) of the Criminal Code. For these reasons, I find the trial judge correctly concluded the General Warrant did not authorise thepolice to search Ms. Smith’s purse for her phone. C.

Section 24(2) of the Charter [66] In the event it was not met with success on its primary argument that the Charter had not been breached in the circumstances,the Crown took issue with the trial judge’s decision to exclude the methamphetamine found in Ms. Smith’s purse. In his reasons under s.24(2) of the Charter, trial judge said: In deciding whether admitting the evidence found in breach of the Charter would bring the administration of justice into disrepute I’mguided by the Supreme Court of Canada decision in Grant, 2009 SCC 32.

I am to balance three competing considerations: theseriousness of the breach; the impact of the breach on the accused’s Charter-protected interests; and society’s interests in having thecase decided on its merits. I find the breach to be serious. The search of the purse was unrelated to the arrest warrant and was notauthorized by the warrant permitting covert removal of a cell phone in her possession. She was not the target of a drug investigation atthe time of the arrest and there was no evidence to suggest that she was involved in the drug trade.

Constable Drabinasty’s belief that the general warrant authorized the search for a cell phone is based on a complete misunderstanding ofthe plain limits on search and seizure imposed in the warrant. Given the high expectation of privacy in a purse this unauthorized searchhas a significant impact on the right to be free from unreasonable search and seizure.

While there is a strong interest in having cases tried on their merits, especially when hard drugs such as methamphetamine is involved I find this to be outweighed by the seriousness of the breach here and the impact on Ms. Smith’s Charter -protected interests. I find that condoning the search here would send the wrong message that such searches are condoned. I find that admission of the evidence seized from the purse would bring the administration of justice into disrepute and so it is excluded as evidence from this trial.

That is my finding regarding the voir dire . [ 67 ] In its written argument, the Crown put forward two reasons for asserting that the trial judge’s approach was flawed: 1. [T]he officer’s belief that a warrantless search of Smith’s purse incidental to her arrest emerged in the course of a rapidly developing dynamic scenario. Reasonable minds can, and often do, disagree about the point when a threshold has been met in these situations. Certainly, the seizing officer’s belief that he could conduct a search for weapons was not baseless, arbitrary or capricious.

The trial judge erred by failing to appreciate that the seriousness of this alleged breach was mitigated by good faith on the officer’s part; and 2. [B]ased on the wording of the General Warrant, the police reasonably believed that they were permitted to search for and seize Smith’s mobile device. They were acting in good faith on a reasonable (but allegedly flawed)

interpretation of an ostensibly valid search warrant. [ 68 ] Turning to the facts, the Crown submitted the breach in this case was not as serious as the breach in R v Harrison , 2009 SCC 34 , [2009] 2 SCR 494, where the conduct had been described as brazen and flagrant, reprehensible, extremely serious, reckless and exhibiting insufficient regard for Charter rights. The Crown submitted the conduct of the officers in this case should be seen as an honest mistake.

In this regard, the Crown asserted that the trial judge’s application of the incorrect and more stringent standard for a safety search had “coloured” his characterisation of the severity of the breach. The Crown explained: Often in these situations involving an arrest and incidental search, if the police conduct misses the mark, it is only by a small degree. In such cases, the misconduct has to be viewed as a minor violation of the Charter . That was the case here.

Had the trial judge applied the correct test when he assessed the validity of the search of Smith’s purse incidental to her arrest, he could not have concluded that the alleged breach was as serious as he portrayed it to be. [ 69 ] The Crown submitted a fair characterisation of the searching officer’s testimony would be that the officer honestly believed he had the authority to conduct the search under the search incident to arrest power and that he had acted in good faith on a reasonable

interpretation of the General Warrant. As such, the Crown asserted, the misconduct should be viewed as a minor violation of the Charter . For reference, the searching officer testified as to his

interpretation of the General Warrant in this way: Q Okay. What happened with the -- the purse? A The purse, I took possession of it. I searched it incidental to arrest, like, every time somebody’s arrested and we’re going to be transporting them to the detachment a couple of reasons why I searched it: (

a) incidental to arrest, for obviously everyone’s safety, not knowing what’s in there, potential weapons that could harm me or anybody else; (2) there was a general warrant in place under the homicide investigation that allowed us to covertly remove any cell phones that were on her person and could be searched lawfully. Q Okay. A Also, for myself too when I’m transporting someone I’d like to know what’s -- what they have in their possession. In the past people have claimed, you know, I had $10,000 in there, it’s not here now, where is it?

So, anything that’s any type of value I like to document beforehand just so it doesn’t come back on me. … Q What does that general warrant authorize police to do? A Do you want me to read it out to you? Q Well, the document speaks for itself, if you could just summarize what it is (INDISCERNIBLE) -- A Basically, upon arrest it names out several individuals, including the accused here, if they’re found in possession of a cellular phone we have the authority to remove it and extract the data from it. Q Okay.

A For purpose of the homicide investigation. … Q Constable, I believe that you testified that the existence of that warrant played some role in your decision to look in the purse; is that correct? A That’s correct. Q Okay. Could you elaborate on that? A As authorized under the warrant I was too searching for a cell phone in her purse. Q Okay. A And she did make reference that she had been living in a hotel for several days and that her bag contained most of her personal belongings. Q Okay.

I will come back to this in a moment, but can you tell me in your experience what is the usual practice of police when a subject is arrested and has a bag or a purse in their possession?

A Usually it’s searched immediately incidental to arrest just for, like I saidpreviously, for officer’s safety and any articles that may need attending toand then we keep it in our possession, it’s brought back with them to thedetachment and itemized when they’re lodged in cells just to ensure thatthere’s a proper reflection of what she had on her person.… Q So, you state that you searched the purse because you had this warrant thatwas entered as an exhibit; is that right?A That’s one of the reasons.Q Or -- okay. But you’d agree that this warrant gives authority to check a cellphone if a cell phone is -- well, if a cell phone is found it gives you theauthority to, you

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