COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., DOHERTY and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Heather McArthur for the appellant Clayton
Respondent
Deepak Paradkar
for the appellant Farmer
- and -
WENDELL CLAYTON and TROY FARMER
Lisa Joyal for the respondent
Appellants
Heard: September 14-15, 2004
On appeal from the convictions entered by the Justice B. Durno of the Superior Court of Justice on June 21, 2001.
DOHERTY J.A.:
1Individual liberties can thrive only in a safe society. Measures to secure collective security can, however, clash with individual constitutional rights. This appeal arises out of just such a collision. The police, claiming to act under their common law ancillary powers, took steps to protect the community from a significant and undeniable danger. In doing so, they detained and searched the appellants. The trial court and now this court are called upon to decide whether the police actions amounted to a lawful exercise of their common law powers or an unconstitutional infringement of the appellants’ right not to be arbitrarily detained and their right not to be subjected to an unreasonable search or seizure.
I
The Nature of the Appeals
2The appellants, Wendell Clayton and Troy Farmer (“Clayton” and “Farmer”), were charged with a number of firearms offences arising out of their possession of two loaded semi-automatic handguns. Factual guilt was never in issue. Farmer and Clayton were stopped by the police as they were leaving a parking lot in Farmer’s vehicle. They were subsequently searched. Each was in possession of a loaded handgun. The weapons are prohibited weapons as defined in the Criminal Code.
3At trial, both Farmer and Clayton argued that the loaded weapons were found and seized from them in a manner that violated their rights under s. 9 (arbitrary detention) and s. 8 (unreasonable search and seizure) of the Charter. They contended that the guns should be excluded from evidence under s. 24(2) of the Charter. If the guns were not admissible, the Crown had no case against either Farmer or Clayton.
4The trial judge, in lucid and thoughtful reasons, found that the initial stop of Farmer’s vehicle was constitutional, but that the rights of Farmer and, to a lesser extent, Clayton were infringed by the police conduct after the initial stop. He went on to hold, however, that the guns should not be excluded from evidence.asterisk The Crown offered no further evidence, no defence was called, and the trial judge found the appellants guilty on all of the charges.1
5Clayton and Farmer appeal their convictions, contending that the trial judge erred in not finding that the initial stop of the vehicle was unconstitutional. They further contend that the trial judge erred in not excluding the guns from evidence under s. 24(2) of the Charter. Counsel for Farmer also argued that the trial judge erred in not recognizing that the police were engaged in racial profiling when they stopped Farmer’s vehicle. Counsel, who also acted for Farmer at the trial, apparently first appreciated that this was a case of racial profiling some time after the trial was over. Racial profiling was not an issue at trial. No questions or arguments were directed to that issue.
6The Crown does not concede the Charter violations found by the trial judge, but submits that even if those violations were properly found, the trial judge did not err in holding that the evidence should not be excluded under s. 24(2). The Crown further submits that racial profiling has nothing to do with this case.
7I can dispose of the racial profiling argument quickly. There is no basis in the trial record for this submission which, as indicated above, was made for the first time on appeal. It is unfair to those who are the target of this serious allegation to raise it for the first time on appeal. In addition, advancing a claim of racial profiling where it is so obviously devoid of merit tends to trivialize a matter of serious concern within the community. Not only was there no evidence of racial profiling, for the reasons I will set out, the police were wrong to ignore the information that the perpetrators were “black males” in deciding who to stop at their roadblock.
II
Factual Setting
8At about 1:25 a.m. on September 24, 1999, an individual made a 911 call from a coffee shop located across the street from the Million Dollar Saloon, a large strip club in Brampton, Ontario. The caller told the police dispatcher that there were about ten black men congregated outside of the front of the strip club and that four of these persons were holding handguns. The caller said that the individuals were dressed casually in “regular street wear”. He described by model and colour four vehicles that he associated with the group of individuals in the parking area. He also provided a description of the guns, indicating they were not revolvers, but fired bullets from clips like a “glock”.
9At one point during the 911 call, the caller, at the dispatcher’s request, left the phone to see if the individuals were still in the parking area. About twenty seconds later, he returned to the phone and advised the dispatcher that there was still a crowd in the parking area, but that one of the four vehicles had left. The caller identified himself by name to the dispatcher.
10The dispatcher immediately put out a “gun call” over the police radio and computer. By 1:25 a.m., a number of police vehicles were converging on the strip club. The dispatcher passed on to the police the information that had been given to her by the 911 caller. In putting out the “gun call”, the dispatcher did not indicate that the caller had identified himself by name. As far as the police responding to the call knew, it came from an unidentified source who had observed the individuals with the guns from about sixty or seventy metres away.
11One of the first police officers to arrive on the scene advised the other officers over the police radio that he could see a group of men outside of the club, but could not see any weapons.
12Constables Robson and Dickson arrived at the rear exit to the parking lot at 1:26 a.m. and parked near that exit. They intended to stop any vehicle attempting to exit the parking lot and to investigate the “gun call”. Constable Robson testified that he intended to stop any vehicle because he was responding to a “gun call” and that he had been trained to treat any “gun call” as a high risk situation. Robson and Dickson did not discuss what they would do after they stopped the vehicles.
13At 1:27 a.m., a sporty black Jaguar driven by Farmer with Clayton in the passenger seat approached the rear exit of the parking area. The Jaguar was the first vehicle to drive toward the exit after Constables Robson and Dickson took up their position near that exit. The Jaguar did not match, or even come close to, the description of any of the four vehicles that had been provided by the 911 caller. Robson pulled his police car in front of the Jaguar, blocking its exit and bringing it to a halt. Robson said “Let’s see what these guys are up to” to Dickson.
14Robson approached Clayton, the passenger. He advised him that he was investigating a gun call and told him to step out of the vehicle. After some discussion, Clayton got out of the vehicle and Robson put his hand on Clayton to direct him towards the back of the car. He intended to have Clayton put his hands on the car so that he could at least visually inspect Clayton for a weapon. As soon as Robson touched Clayton, a struggle ensued and Clayton ran towards the front of the strip club. Robson and Dickson gave chase. A third officer, Constable Mulholland, assumed control of Farmer who had exited the vehicle on Dickson’s instructions and was standing beside the driver’s door. Mulholland ordered Farmer to place his hands on the vehicle.
15Clayton was stopped as he tried to enter the club and apprehended by several officers. A bouncer from the club identified Clayton as one of the persons who was in possession of a handgun. Robson took control of Clayton, who was handcuffed by this time, and led him back towards Farmer’s Jaguar. Robson asked Clayton if he had a gun. Clayton, who was out of breath from his flight, nodded in the affirmative. The officer asked Clayton where the gun was and Clayton said it was in his pants pocket. Robson removed the gun from Clayton’s pocket and formally placed him under arrest.
16Constable Mulholland, who was detaining Farmer outside of Farmer’s vehicle, testified that shortly after he took control of Farmer, he heard Robson over the police radio confirming that Clayton had been captured and found to be in possession of a firearm. Mulholland testified that based on this information, he arrested Farmer on a charge of possession of the firearm that had been found in Clayton’s physical possession. He handcuffed Farmer. Two other police officers conducted a pat-down search of Farmer and found a loaded handgun tucked into the back of his pants. In the course of the voir dire, counsel reviewed the radio transmissions that could have been heard by Mulholland. It was established that Robson had not made the radio transmission that Mulholland believed he had heard and based upon which Mulholland had arrested Farmer.
III
The Trial Judge’s Ruling
17On the voir dire, the Crown called Officers Robson, Dickson and Mulholland. Tape recordings and transcripts of the 911 call and some of the police radio transmissions were also tendered. The defence did not call any evidence.
18The trial judge accepted the evidence given by the police officers as a generally accurate description of the relevant events. He indicated, however, that there were several inconsistencies and other inadequacies in their evidence. The trial judge ultimately held that many of the explanations offered by the officers for their conduct were embellishments and “after-the-fact justifications for actions taken” (para. 42). He also rejected Mulholland’s evidence that he had heard a radio transmission from Robson indicating that Clayton had been arrested and was in possession of a firearm.
19On appeal, counsel for Farmer challenged some of the findings of fact made by the trial judge. There is no merit to this challenge. The findings are supported in the evidence and must be accepted for the purposes of appeal.
20In his analysis, the trial judge addressed the following:
the constitutionality of the initial stop, which counsel described as a “roadblock” stop;
the constitutionality of the interchange between the police and the appellants after the initial stop;
the constitutionality of the police conduct at the time of the arrest and search of the appellants; and
the admissibility of the handguns seized from Farmer and Clayton under s. 24(2) of the Charter.
21The outcome of the appeal turns primarily on the correctness of the trial judge’s conclusion that the initial stop was constitutional.
(a) The initial stop (the roadblock stop)
22The trial judge found that Robson and Dickson intended to stop all cars leaving the parking lot of the club (para. 43). He next held that Farmer and Clayton were detained when their vehicle was stopped by Robson and Dickson (para. 45). The trial judge went on to hold, relying on R. v. Murray (1999), 136 C.C.C. (3d) 197 (Que. C.A.), that the police ancillary common law power justified stopping and detaining all vehicles leaving the parking lot (paras. 50-56). The trial judge further held that the common law power permitted the police, upon stopping a vehicle, to look inside the vehicle for their own safety (para. 66), question the occupants about the incident that led to the stop (para. 67), and because they were looking for a small item such as a gun, to require the occupants to step out of the vehicle so the police could see inside the vehicle (para. 68). In describing the nature of the permissible stop, the trial judge said at para. 70:
The initial stop is permitted as a brief detention to screen cars leaving the area. The early observations of the occupants and contents from outside the car, as well as the questions may lead to nothing else being permitted. Determination must be made on a case by case basis, and a vehicle by vehicle basis, in each roadblock.
(b) The interaction at the vehicle
23Having concluded that the police were entitled to stop and briefly detain the appellants, the trial judge found that any further police interference with the appellants beyond what he described as incidental to the initial stop could be justified only if the police had reasonable cause to suspect that the individuals were criminally implicated in a crime under investigation. Without “articulable cause”, the police could not conduct a physical search of the vehicle or search the appellants (paras. 71-72).
24The trial judge found that Dickson intended to search Farmer and his vehicle from the moment the vehicle was stopped. He also held that Dickson had no grounds to search either the vehicle or Farmer when he directed Farmer to get out of his car (paras. 73-75). He said:
[W]hen Clayton fled, Dickson was about to search the car and driver [Farmer], not necessarily in that order. The constable had no lawful authority to do so. Mr. Farmer’s rights pursuant to sections 8 and 9 were violated. While the initial detention was lawful, removing him from the car to search him resulted in the continued detention, violating both sections.
25On the trial judge’s findings, Robson also intended to search Clayton from the moment the vehicle was stopped, even though he did not have reasonable cause to suspect that Clayton had committed a crime. The trial judge went on to hold, however, that on the totality of the circumstances, including Clayton’s evasive responses to the questions put to him by Robson, Robson had articulable cause to search Clayton by the time Clayton got out of the vehicle (paras. 76-78). The trial judge held at para. 78:
While I am satisfied there was a breach of Mr. Clayton’s s. 8 and 9 rights, because the decision to search him had been made before any observations or conversation between the officer and the passenger, when the officer asked him to step out, objectively there existed articulable cause to remove him from the car and to search him.
(c) The arrest and search of the appellants
26Mulholland, who had taken control of Farmer when Robson and Dickson pursued Clayton, arrested Farmer for possession of the gun found in the physical possession of Clayton. The trial judge found that when Mulholland arrested Farmer, Mulholland did not know that Clayton had been found in possession of a handgun. Consequently, Mulholland did not have reasonable grounds to believe that Farmer had committed the criminal offence for which he was arrested. The arrest was not reasonable and was, therefore, unlawful. As the arrest was unlawful, the subsequent search of Farmer incidental to that arrest was unreasonable and violated Farmer’s s. 8 rights (paras. 80-83).
27The trial judge found that the arrest and search of Clayton did not violate any of his constitutional rights (paras. 84-87).
(d) The admissibility of the handguns
28The trial judge addressed the admissibility of the guns seized from the appellants separately. He decided that both were admissible. With respect to Farmer, he rejected the contention that the gun constituted conscriptive evidence and found that its admissibility would not affect trial fairness (paras. 89-93). The trial judge then turned to the seriousness of the breaches. He referred to several factors, some of which tended to make the constitutional violations more serious (e.g. the number of constitutional breaches), and others which tended to mitigate the seriousness of the breaches (e.g. the brief duration of the unlawful detention). He eventually concluded that the seriousness of the breaches did not warrant exclusion of the guns (paras. 94-99).
29In considering the third branch of the admissibility inquiry, the trial judge observed that the handgun was essential evidence in the prosecution of serious crimes and that the police officers had legitimate concerns about their safety when dealing with Farmer. The trial judge held that the exclusion of the evidence would do more harm to the administration of justice than would its admission (paras. 100-102).
30In determining the admissibility of the gun seized from Clayton, the trial judge found that Clayton’s statement after his arrest in which he admitted he had a gun in his pocket was made before he was advised of his right to counsel. The statement led directly to the seizure of the gun. The gun was, therefore, conscriptive evidence for the purposes of s. 24(2). The trial judge further held, however, that as Clayton would inevitably have been searched after his arrest, the gun would have been discovered regardless of the statement made by Clayton. Its admissibility would not, therefore, affect the fairness of the trial (paras. 103-104).
31Having concluded that the admission of the gun seized from Clayton would not affect the fairness of the trial, the trial judge went on to describe the breach of Clayton’s rights as not serious. He held that the exclusion of important evidence that would establish the commission of a serious crime would in the circumstances bring the administration of justice into disrepute (paras. 106-108).
IV
The Grounds of Appeal
(a) Was the initial stop constitutional?
32Like counsel, I will refer to the initial stop and the police contact with the appellants incidental to that stop as a roadblock stop. The Crown acknowledges that the roadblock stop resulted in the detention of Farmer and Clayton within the meaning of s. 9 of the Charter. The Crown further acknowledges that the questioning of Farmer and Clayton and the visual examination of the interior of the car constituted a search for the purposes of s. 8 of the Charter.
33The trial judge found, and it is accepted on appeal, that when the police stopped Farmer’s vehicle and detained Farmer and Clayton, they did not have reasonable grounds to suspect that either were implicated in criminal activity. Absent reasonable individualized suspicion, the detention could not be justified as an investigative detention as that phrase was explained in R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.).
34There was also no specific statutory authority justifying the roadblock stop.2 It is, however, well established that the police power to interfere with individual liberties reaches beyond those powers specifically enumerated in statutes. Section 42(3) of the Police Services Act, R.S.O. 1990, c. P. 15 expressly preserves police common law powers:
A police officer has the powers and duties ascribed to a constable at common law.
35The powers and duties of constables at common law were described in R. v. Waterfield, [1963] 3 All E.R. 659 at 661 (C.C.A.):
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty [emphasis added].
36The powers of police constables at common law, often described as the ancillary police power, as set out in Waterfield have been accepted by the Supreme Court of Canada as part of the Canadian common law in several decisions rendered both before and after the proclamation of the Charter: see e.g. Knowlton v. The Queen (1973), 10 C.C.C. (2d) 377 at 379-80 (S.C.C.); Dedman v. The Queen (1985), 20 C.C.C. (3d) 97 (S.C.C.); R. v. Godoy (1999), 131 C.C.C. (3d) 129 at 135-36 (S.C.C.); R. v. Mann, supra, at 320-1.3 The power of the police to detain for investigative purposes in some circumstances and the power to search as an incident of arrest are two of the better known examples of the exercise of the common law ancillary police power: R. v. Mann, supra; R. v. Caslake (1998), 121 C.C.C. (3d) 97 at 107-108 (S.C.C.).
37Where the prosecution relies on the ancillary power doctrine to justify police conduct that interferes with individual liberties, a two-pronged case-specific inquiry must be made. First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty: Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 at 23-24 (Ont. C.A.).
38The first prong of the inquiry is a straightforward one in this case. The police have a duty to investigate and prevent crime: Police Services Act, supra, s. 42(1)(b). They were clearly acting in the course of their duty to investigate and prevent crime when they stopped Farmer’s vehicle and detained the occupants at the roadblock stop.
39The second prong of the inquiry, that is whether the conduct was a justifiable use of police powers associated with their duty, raises a much more complex problem. The competing individual rights and societal concerns must be evaluated in the context of the specific fact situation faced by the police. It is not enough that the impugned police conduct assisted the police in the performance of their duties. Police powers are not co-extensive with their duties: R. v. Mann, supra, at 324.
40The approach to be taken when assessing whether police interference with individual liberties is justifiable was set out in R. v. Simpson (1993), 79 C.C.C. (3d) 482 at 499 (Ont. C.A.) and approved in R. v. Godoy, supra, at 137:
[T]he justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.
41An examination of the factors identified in Simpson within the factual context of this case begins with an identification of the nature of the duty engaged in by the police when the roadblock stop was implemented. The police were investigating criminal activity, hoped to apprehend individuals in possession of dangerous weapons and seize those weapons before they could be used in criminal activity to harm others. Criminal conduct involving the use of firearms, especially handguns, is a serious and growing societal danger. The law abiding segment of the community expects the police to react swiftly and decisively to seize illegal firearms and arrest those in possession of them. The risk posed to the community by those in possession of handguns gives an added significance to police efforts to seize those weapons and apprehend those in possession of them beyond the always important police duty to investigate and prevent criminal activity.
42The very fact that the police purpose in setting up the roadblock stop was to engage the criminal process against at least some of those who were the targets of the roadblock stop places an added burden on the Crown to demonstrate that the police interference with individual liberties was justified. As indicated in Simpson at 500:
[I]t is also essential to keep in mind the context of the particular police-citizen confrontation. Constable Wilken was investigating the appellant and the driver of the car. They were his targets. Constable Wilken interfered with the appellant’s liberty in the hope that he would acquire grounds to arrest him. He was not performing any service-related police function and the detention was not aimed at protecting or assisting the detainee. It was an adversarial and confrontational process intended to bring the force of the criminal justice process into operation against the appellant. The validity of the stop and the detention must be addressed with that purpose in mind. Different criteria may well govern detentions which occur in a non-adversarial setting not involving the exercise of the police crime prevention function.
43The same distinction was drawn in R. v. Godoy, supra, at 139 where the court had to decide whether the police were justified under the ancillary power doctrine in forcing their way into a residence from which a disconnected 911 call had been made. Holding that the police were justified, Lamer C.J.C. stressed that the police were acting to protect life and safety and were not investigating crime:
I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search the premises or otherwise intrude on a resident’s privacy or property.
44In Illinois v. Lidster, 540 U.S. 419 (2004), the United States Supreme Court emphasized the importance of the nature of the police-citizen interaction when assessing the constitutionality of police conduct that interfered with individual liberties. That court held that a brief roadside detention of motorists at a roadblock to elicit the assistance of those motorists in the investigation of a crime, where the motorists were not the target of that investigation, was not an unconstitutional interference with those motorists. Breyer J. said at 423:
The stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals [emphasis in original].
45The roadblock stop implemented in this case, while intended to protect the public in the general sense that all criminal investigation is intended to protect the public, was immediately intended to determine whether the occupants of the stopped vehicles were engaged in criminal activity. The police conduct targeted for potential criminal prosecution the very individuals whose liberties were interfered with by the police conduct. Interference with individual liberties in the context of a criminal investigation targeting those individuals demands strong justification before the police can be said to be acting within the ambit of their ancillary powers.
46In addition to the nature of the police duty being performed, the jurisprudence instructs that the nature and extent of the interference with individual liberties flowing from the police conduct is an important consideration in determining whether the police conduct was a justified exercise of their common law powers. The trial judge found that Officers Dickson and Robson intended to stop all vehicles leaving the parking area via the rear exit, question the occupants and search to some extent the vehicles and occupants of the vehicles. On any view, the conduct contemplated by the police constituted a profound interference with individual autonomy and privacy. The police conduct was in no way contingent upon the operation of a motor vehicle by the targets of the roadblock stop. Considerations that may be at play where the police interfere with those engaged in a regulated activity such as the operation of a motor vehicle have no application here: Brown v. Durham Regional Police Force, supra, at 26.
47The trial judge did not agree that the police were entitled as an incident of the roadblock to search the occupants or conduct a physical search of the vehicle. In the trial judge’s view, the police powers were limited to questioning the occupants about the gun call, visually examining the inside of the vehicle and removing the occupants from the vehicle to facilitate that visual examination of the interior of the vehicle. Even on this view of the scope of justifiable police conduct at the roadblock, the police actions would significantly interfere with the individual liberties of the occupants of the vehicles. Being stopped by the police, questioned about guns, told to exit the vehicle, and made to stand against the vehicle in a public place while the police examine the inside of the vehicle, can be a frightening and humiliating experience.
48In her able submissions, Ms. McArthur for Clayton accepts that the ancillary police power can justify the use of a roadblock stop to investigate and prevent crime as well as apprehend offenders. I agree with that concession. As the facts in R. v. Murray, supra, demonstrate, there are situations where the use of roadblock stops to investigate crimes and apprehend criminals is an entirely justifiable intrusion on individual liberties.4 The American case law also recognizes that roadblock stops can be constitutional, even absent individualized suspicion of those who are stopped at the roadblock: see Illinois v. Lidster, supra; U.S. v. Harper, 617 F.2d 35 (4th Cir. 1980); U.S. v. O’Mara, 963 F.2d 1288 at 1291-2 (9th Cir. 1992); W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 3rd Ed. (St. Paul, Minn.: West Publishing, 1996) vol. 4 at 308-313. Ms. McArthur contends, however, that the roadblock stop employed in this case was not, on the totality of the circumstances, a justifiable use of the ancillary police power.
49In ruling that the roadblock stop was a justifiable use of police powers, the trial judge relied on several factors:
the serious nature of the offences under investigation and the potential danger posed to the public by firearms;
the roadblock was established within five minutes of the report that four individuals in the parking area had guns;
the roadblock was placed so as to affect only the movement of individuals leaving the parking area; and
the exits from the parking area were the principal avenues of escape for those who had been seen in possession of the guns.
50Ms. McArthur does not challenge the relevance of the factors considered by the trial judge. She contends, however, that these factors become relevant only if the police have reasonable grounds to believe that a serious offence has been committed and reasonable grounds to believe that the perpetrators of that serious offence are in flight and will go past the point where the roadblock stop is established. In contending that these reasonable grounds are prerequisites to a roadblock stop, Ms. McArthur relies heavily on the absence of any grounds to even reasonably suspect that any specific person to be stopped was involved in the criminal activity under investigation. She argues that absent individualized suspicion, nothing short of the reasonable belief that a serious offence has been committed and that the perpetrators will be stopped at the roadblock can suffice to justify the significant interference with individual liberties necessitated by the roadblock stop.
51There is no Canadian authority directly on point. Ms. McArthur, however, refers to the facts in R. v. Murray, supra, as demonstrating the kind of information that the police must have before a roadblock stop can be justified in the absence of any basis to suspect the individuals stopped by the roadblock. In Murray, the police were advised by another police force, an obviously reliable source, that a bank robbery had just occurred in a small town and that the robbers were in flight. The police force that received the information had a protocol for the establishment of roadblocks. They followed that protocol and set up a roadblock along the likely avenue of escape.
52The facts revealed in the American authorities referred to above (para. 48) also lend support to Ms. McArthur’s submission. In those cases, the police who set up the roadblock stops had reasonable, if not overwhelming, grounds to believe that a serious crime had been committed and that the perpetrators were headed toward the position where the roadblock was established. In W. LaFave, Search and Seizure, supra, at 310 the author, after referring to the Model Code on Pre-Arraignment Procedures5 requiring “reasonable grounds to believe that a felony has been committed” before a roadblock stop can be justified, said:
Applying the Terry v. Ohio, [392 U.S. 1 (1968)] notion that the reasonableness of police conduct should be measured by balancing the need to search or seize against the invasion which the search or seizure entails, it can fairly be said that the need for this particular tactic [a roadblock], involving the stopping of many vehicles, does not arise until the police have received a reliable report of a crime.
But, while the roadblock tactic, as compared to the typical stop and frisk situation, requires more evidence that a crime has occurred, by its very nature it requires less evidence that any particular vehicle stopped is occupied by the perpetrator of that crime. Indeed, there need be no suspicion at all with regard to any particular vehicle, except that which exists by virtue of it being in the locale of the roadblock. This means, however, that the placement of the roadblock must itself be reasonable; that is, there “must be some reasonable relation between the commission of the crime and the establishment and location of the roadblock” [italics in original, underline added; footnotes omitted].
53The logic of this analysis is compelling. Where the police do not have grounds to suspect any specific person or persons, the use of a roadblock stop cannot be justified in furtherance of the police duty to investigate and prevent crime unless the police have reasonable grounds to believe both that a serious crime has been committed and that the roadblock stop may apprehend the perpetrator. The significant interference with liberties of an indeterminate number of people occasioned by the roadblock stop, combined with the fact that the individuals stopped are targets of a police investigation and may face criminal jeopardy as a result of the police action, demands a strong state interest to justify police interference with individual liberties. The state interest in the investigation of crime and the apprehension of criminals is sufficiently strong to justify the kind of interference necessitated by a roadblock stop only where the police have reasonable grounds to believe that a serious crime has been committed and reasonable grounds to believe that the roadblock stop will be effective in that it will apprehend the perpetrator.
54I stress that the reasonable belief criteria referred to above are minimum grounds to justify the use of a roadblock stop to investigate crime and apprehend criminals absent individualized suspicion. The existence of those grounds will not necessarily justify the use of a roadblock stop. If those prerequisites exist, then other factors, like those considered by the trial judge and the availability of other less intrusive investigative alternatives, will have to be taken into account.
55My conclusion that the police cannot establish a roadblock stop absent reasonable grounds to believe both that a serious crime has been committed and that the roadblock stop could apprehend the perpetrators is a product of the specific circumstances of this case, and cannot be taken as a generalized pronouncement. In this case, the police were acting in the course of their duty to investigate crime and apprehend criminals. There was no suggestion that anyone was in imminent danger. Had the police been executing some other facet of their duties, or had there been reasonable grounds to believe that someone was in imminent danger, a roadblock stop may well have been justified under the ancillary power doctrine without reference to the existence of reasonable grounds to believe a crime had been committed. For example, the justifiability of a roadblock stop used not to apprehend a criminal, but to locate and assist someone who is in imminent physical danger, could not be measured by reference to the same criteria as those used to measure the justifiability of a stop intended to apprehend criminals: see R. v. Godoy, supra.
56The trial judge did not expressly consider whether the police had reasonable grounds to believe that a serious offence had been committed, and reasonable grounds to believe that the roadblock stop established by them could apprehend the offenders. It is implicit in his reasons, however, that the trial judge accepted that the police were entitled to rely on the information provided to them by the 911 caller. Assuming that information was accurate, it provided reasonable grounds to believe that several individuals were committing serious firearms-related criminal offences in front of the club. It also provided ample grounds to conclude that those individuals who had vehicles would leave the parking area through one of the two available exits. The real question is whether it was reasonable for the police to establish the roadblock stop relying exclusively on the information provided by the 911 caller.
57Ms. McArthur equates the information available to the police from the 911 caller with unconfirmed information supplied to the police by an anonymous tipster of unknown reliability. I cannot accept this equation. While it is true that the officers who established the roadblock stop did not know the identity of the 911 caller, he had in fact identified himself to the police. The 911 caller did not request anonymity and the officers who acted on the information provided by the caller had no reason to think that the caller had shielded himself in anonymity before providing the information.
58In considering whether the police were entitled to rely on the information provided to them, it is significant that this information came by way of a 911 call. The 911 emergency system exists so that individuals can bring emergency situations to the attention of the police. The system assumes that the police will react in a timely fashion to the information provided by the 911 caller. A 911 system would hardly be effective if the police were expected to investigate the information provided and obtain independent confirmation of the information before acting on it.
59In this case, the police had information that a 911 caller was describing ongoing criminal activity to the police dispatcher. The caller provided significant detail concerning that activity. The police were on the scene within minutes of the call. They could not ignore the information. I think it was reasonable for them to accept the accuracy of the information conveyed by the 911 caller. That information provided reasonable grounds to believe that individuals in the parking area of the club were committing serious crimes and reasonable grounds to believe that the perpetrators of those crimes would leave the parking area via one of the exits.
60My difficulty is not that the police relied on the information provided by the 911 caller, but that they chose to ignore significant parts of that information when they decided they would stop every vehicle leaving the parking area regardless of whether it or its occupants bore any resemblance to the descriptions provided by the 911 caller.
61The 911 caller identified the perpetrators as black men who were casually dressed. He also identified by specific make and model four vehicles that he said were connected to the perpetrators. Although the information provided by the 911 caller did not provide grounds to reasonably suspect any specific person of committing offences, it did considerably narrow the field of potential perpetrators. Despite the detail provided to them, the police chose to establish a roadblock stop that would detain all vehicles leaving the parking area. They had no reasonable grounds to believe that stopping vehicles occupied by caucasians or asians would result in the apprehension of the individuals described by the 911 caller. Similarly, they had no reasonable grounds to think that stopping persons in vehicles that did not resemble the vehicles described by the 911 caller would result in the apprehension of those individuals or the recovery of the guns.
62As indicated above, the ancillary power doctrine is very fact-specific. A roadblock tailored to the information provided to the police may have been justified under that doctrine. However, a roadblock stop of any and all persons leaving the parking area regardless of whether they or their vehicles matched or even resembled the description provided by the caller went beyond what could be justified under the ancillary power doctrine. The police could not rely on the information provided by the 911 caller to establish the roadblock stop and then ignore the details of that information on the assumption that the caller had been mistaken in his identification of the individuals or vehicles involved.
63Had the police established a roadblock stop that was consistent with the information provided to them, Farmer’s vehicle would not have been stopped. Despite a suggestion to the contrary in Robson’s evidence, the trial judge rejected any suggestion that the black, sporty Jaguar driven by Farmer bore any resemblance to any of the four vehicles described by the 911 caller.
64I do not suggest that the vehicles and individuals detained at the roadblock stop had to match exactly the description provided by the 911 caller. Minor variations between the descriptions provided and the vehicles and individuals stopped would not necessarily render the stop unlawful: see e.g. R. v. Cooke (2002), 2002 BCCA 305, 2 C.R. (6th) 35 (B.C.C.A.). Farmer’s vehicle, however, was in no way similar to the vehicles described by the caller. More to the point, as the officers openly acknowledged, they were stopping all vehicles regardless of whether they bore any resemblance to the vehicles described by the caller and regardless of whether the occupants bore any resemblance to the persons identified by the caller.
65The stopping of Farmer’s vehicle and the consequential detention of Farmer and Clayton were not a justifiable use of police powers associated with the police duty to investigate the offences described by the 911 caller. Clayton and Farmer were arbitrarily detained in violation of s. 9 of the Charter. The questioning at the vehicle and the visual examination of the interior of the vehicle violated their rights under s. 8 of the Charter.
(b) Were the appellants’ rights violated by the interaction at the vehicle after the initial stop?
66It follows from my conclusion that the initial stop was unlawful that the police had no authority to remove Clayton and Farmer from the vehicle to search them, or to search the vehicle. Their rights under ss. 8 and 9 were violated by the police conduct after the vehicle was stopped and they were ordered out of the vehicle. In addition, even if, as the trial judge found, the police acquired the requisite grounds to detain Clayton, they did so in the course of an unconstitutional detention.
67I would add that had I found the roadblock stop to be constitutional, I am in substantial agreement with the trial judge’s observations concerning the steps that the police were entitled to take as incidental to a roadblock stop where they had reason to suspect that an occupant of one or more of the vehicles to be stopped is armed. I would make one additional observation. It is unclear to me whether the trial judge would countenance a “pat-down” search of the occupants of the vehicle once they were removed from the vehicle at the roadblock stop. In my view, legitimate police safety concerns justify a “pat-down” search of occupants removed from vehicles at a roadblock where the police have information that provides reasonable grounds to believe that one or more of the individuals detained at the roadblock may be armed. I do not think the police can be put in a position where they may have to turn their back on the occupants of the vehicle without first conducting a “pat-down” search. While my conclusion that a “pat-down” search would be warranted extends the police power, it also significantly increases the interference with individual liberty occasioned by the roadblock stop. As that interference grows, arguments which are said to make the conduct justifiable must become all the more compelling.
(c) Was the arrest and search incident to the arrest of the appellants unconstitutional?
68I agree with the trial judge’s conclusion that the arrest of Farmer was unlawful and that the search incident to that arrest violated Farmer’s s. 8 rights. I also agree with the trial judge’s conclusion that the arrest and search incident to that arrest of Clayton did not involve any additional violations of Clayton’s Charter rights.
(d) Should the handguns be excluded from evidence?
69The trial judge’s s. 24(2) analysis proceeded on the basis that the initial stop was constitutional. I have concluded that it was unconstitutional. It follows that the usual deference owed to a trial judge’s s. 24(2) analysis has no application: R. v. Grant (1993), 84 C.C.C. (3d) 173 at 199 (S.C.C.).
70When this court makes a different assessment of the alleged constitutional violation than did the trial judge, it will sometimes be necessary to direct a new trial to determine the admissibility of the impugned evidence. I am satisfied, however, that in the circumstances of this case, this court is in a position to do the s. 24(2) analysis. In performing that analysis, I accept the findings of fact made by the trial judge. To the limited extent I go beyond those findings, I rely on essentially unchallenged evidence.
71In addressing admissibility under s. 24(2) of the Charter, it is helpful to begin with the language of that section:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
72The strong temporal and causal link between the Charter violations, particularly those occasioned by the initial stop, and the seizure of the weapons from Clayton and Farmer leaves no doubt that the weapons were “obtained in a manner that infringed or denied” the rights of Clayton and Farmer.
73Judicial interpretation of the necessarily broad language of s. 24(2) of the Charter has given rise to the well known three-part test first articulated in R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) and most recently applied in R. v. Mann, supra, at 334. The court looks first at the effect of the admission of the impugned evidence on the fairness of the trial, second at the seriousness of the Charter violation and third at the negative impact, if any, on the administration of justice occasioned by the exclusion of the evidence: R. v. Stillman (1997), 113 C.C.C. (3d) 321 at 349 (S.C.C.).
74The trial judge found that the admission of the weapons would not affect the fairness of the trial as it related to either Clayton or Farmer. I agree.6
75The inquiry into the seriousness of the Charter violation looks both at the significance of the violation and the nature of the police conduct that brought about the violation. The more significant the constitutional violation, the stronger the claim that the vindication of that constitutional right requires the exclusion of the evidence. Similarly, the more blameworthy the police conduct, the stronger the claim that the trial court must disassociate the judicial process from that conduct by excluding its evidentiary product: see R. v. Kokesch (1990), 61 C.C.C. (3d) 207 at 226 (S.C.C.); R. v. Feeney (1997), 115 C.C.C. (3d) 129 at 166-69 (S.C.C.).
76The significance of a constitutional breach looks, among other things, to the intrusiveness of the violation, the number of Charter rights breached, and the extent to which the breach compromises the constitutional values underlying the Charter right that was breached. A consideration of those factors convinces me that the constitutional violations occasioned by the roadblock stop were significant. In reaching that assessment, I bear in mind not only the direct impact on the rights of Clayton and Farmer, but the potential impact on the constitutional rights of the indeterminate number of people who may have been subjected to the roadblock stop: see R. v. Thompson (1990), 59 C.C.C. (3d) 225 (S.C.C.). It is pertinent to the significance of the violation that the police intended to stop all vehicles, search those vehicles, and search the occupants of those vehicles. A search of the person is always a serious intrusion on personal autonomy and privacy.
77Police conduct that contemplated the arbitrary detention of individuals in a public place, the search of those individuals and their vehicles clearly undermines the values of individual autonomy and privacy. Those values animate the rights protected by ss. 9 and 8 of the Charter. In so holding, I do not speak on an abstract level. Farmer and Clayton were entitled to proceed on their way. Instead, they found themselves in a potentially demeaning and frightening confrontation with the police. The roadblock stop led to a serious violation of their Charter rights.
78The significance of the Charter breaches is not minimized because it turns out that Farmer and Clayton were in possession of loaded prohibited weapons. The scope of individual constitutional rights and the significance of the violations of those rights does not depend on whether the individuals’ whose rights are violated turn out to be criminals or law-abiding citizens. Criminals do not have different constitutional rights than the rest of the community.
79The constitutional violations effected by the roadblock stop were in and of themselves serious. The subsequent violation of Farmer’s rights when he was unlawfully arrested added to the seriousness of the breaches insofar as Farmer was concerned.
80Having concluded that the breaches were significant, I turn to the police conduct which generated those violations. In R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 at 26-27 (Ont. C.A.), the court said:
The nature of police conduct, by the officer or officers involved in the breach and on an institutional level, is an important consideration when calibrating the seriousness of the Charter breach. Indeed, where that breach does not implicate trial fairness, the nature of the police conduct will often determine whether the evidence should be excluded. Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights … What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.
81Where the admissibility of evidence would not affect the fairness of the trial, the characterization of the police conduct is often determinative of whether the evidence will be admitted. This is so, because the exclusion of otherwise reliable evidence that does not adversely affect trial fairness will not usually bring the administration of justice into disrepute absent blameworthy police conduct.
82It may be argued that the trial judge’s conclusion that the roadblock stop was justified lends support to the contention that the police acted reasonably and in good faith in setting up the roadblock stop. While I have reached a different conclusion than the trial judge, I certainly would not describe his analysis or his conclusion as unreasonable.
83I do not think, however, that the seriousness of the police conduct is properly measured by reference to the trial judge’s ruling. The evidence at trial did not even suggest, much less demonstrate, that the police when setting up the roadblock stop directed their minds to the analysis required by the ancillary power doctrine. They did not advert to the factors relevant to the exercise of their ancillary power and make a considered decision to proceed after balancing the pros and cons of doing so. To the contrary, the evidence reveals that the officers who set up the roadblock stop were sadly ignorant of the limits of their ancillary powers or the need to balance the demands of their duties against the interference with individual liberties caused by their actions. Furthermore, and in my view this significantly aggravates the seriousness of the breach, the evidence indicates that this ignorance is institutional and is a direct consequence of the training these officers received, or more to the point, the inadequacy of the training they received.
84Constable Robson testified that he decided to set up the roadblock stop because he had received “a gun call”. According to him, he had been trained to treat any and all “gun calls” as “high risk takedowns”. Constable Robson’s training left no room for a fact-specific assessment once a “gun call” went out. Robson never considered whether a roadblock stop was a justified interference with individual liberties, just as he never considered how he might minimize interference with individual liberties while still using a roadblock stop. Quite simply, Robson understood, based on what his police force had taught him, that once he received a “gun call”, he could proceed to detain vehicles and search individuals if those measures could lead to the recovery of the weapons and the apprehension of the offenders.
85Constable Dickson gave similar evidence, describing Robson as his “coach officer”. The cross-examination of Dickson also reveals that he had little, if any, appreciation of the scope of his lawful powers of search.
86The significance of systemic or institutional failures in assessing police conduct was referred to in R. v. Polashek, supra, at 201. The point is also powerfully made by Hill J. writing extra-judicially, “The Role of Fault in Section 24(2) of the Charter” in J. Cameron, ed., The Charter’s Impact on the Criminal Justice System (Toronto: Carswell, 1996) at 73:
The apparent good faith of the individual draftsperson [police officer] ought not to mask police fault where it can be established that institutionalized policy or features effectively drive a pattern of legal non-compliance. A system that routinely fails to produce the reasonably well-trained officer ought not to benefit from a good faith analysis measured against a climate of its own creation.
87The failure of the police force to properly train its officers to exercise their powers in a manner consistent with the Charter was made all the more damaging by the absence of effective supervision by more senior police officers. On the findings of the trial judge, the decision to set up the roadblock stop was a more or less spontaneous one made by individual officers unguided by any protocol or by any input from senior officers who might be expected to provide a more tailored response to the circumstances of a particular case. The procedures to be followed at the roadblock stop were also left entirely at the discretion of the officers. There was no plan.
88I also cannot accept that the exigencies or urgency of the situation should mitigate the seriousness of the police failure to properly consider the legal limits of their authority. I repeat, this was not a case where the police directed their minds to the proper considerations and reached a conclusion that the court concludes was wrong. Were that the case, the exigencies and urgency of the situation would be relevant. Here, the conduct of the police had nothing to do with the need to make quick decisions. On the training provided to these officers by their police force, once the officers received a “gun call”, they were entitled to proceed as they did. On the training provided to these officers, there was no need for any split second decision-making or in fact any decision-making at all.
89Having read the evidence of Constables Dickson and Robson, I am struck by the failure of their training to address in any way the limits of the ancillary power doctrine. This court, and others including the Supreme Court of Canada, have endeavoured over at least the last decade to articulate the ancillary power doctrine in a way that is consistent with both the principles protected by the Charter and in the community need for effective law enforcement. In interpreting that doctrine, the courts have recognized the difficulties inherent in policing, where officers face an infinite variety of fact situations and often must make quick decisions. The case-specific approach developed in these authorities has not penetrated the training of the officers involved in this case. The testimony of these officers strongly suggests that their police force has made no effort to embed the approach to the ancillary power doctrine adopted by the courts into police training. This systemic failure would suggest that the court must deliver its message in a more emphatic way. The exclusion of evidence may provide that added emphasis.
90The systemic failings that underlie the conduct of Officers Robson and Dickson make the infringement of the rights of Farmer and Clayton serious. Police training that leaves officers in the field unequipped to engage in the balancing process required by the ancillary power doctrine invites police officers to ignore individual rights whenever those rights get in the way of the execution of police duties. If the rights guaranteed by the Charter are to have real meaning and shape the interaction between the police and individuals, police forces must take those rights seriously. Officers must be trained to perform their duties in a manner that is consistent with those rights.
91Bearing in mind both the significance of the Charter breaches and the abject failure of this police force to train its individual officers to honour Charter rights while performing their duties, I would characterize the infringements as serious.
92The third component of the s. 24(2) analysis examines the effect of the exclusion of the evidence obtained by the constitutional violation on the repute of the administration of justice. Where the fairness of the trial is not affected by the admission of the impugned evidence, the exclusion of reliable evidence that conclusively establishes that an accused has committed a serious crime must have a negative impact on the way our criminal justice system is viewed by those who depend on it to keep them safe: R. v. Caslake, supra, at 112-113; R. v. Lewis (1998), 122 C.C.C. (3d) 481 at 497 (Ont. C.A.).
93If the handguns are excluded from evidence, Farmer and Clayton will in a very real sense have escaped justice and their serious crimes will go unpunished. This harsh reality cannot be ignored in weighing the negative effect brought about by excluding the evidence. Nor, however, can the negative effect of routinely admitting evidence obtained as a result of institutionally engrained disregard for individual constitutional rights be ignored. The adjudication of any specific case on its merits is important to the repute of the administration of justice. So too is the judicial reaction to constitutional abuses within the criminal justice system. As Lamer J. said in R. v. Greffe (1990), 55 C.C.C. (3d) 161 at 193 (S.C.C.):
It must not be forgotten, however, that the inquiry under s. 24(2) cannot be focused solely on the specific prosecution at issue; it is the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered.
94Where, as in this case, constitutional violations reflect an institutional indifference to, if not disregard for, individual rights, judicial failure to disassociate itself from that conduct must have long-term negative consequences for the proper administration of justice. The courts cannot be seen to at one and the same time wave a judicial finger of disapproval at police conduct that violates individual rights while embracing the evidentiary product of those violations whenever they do not undermine trial fairness.
95Courts can best demonstrate that constitutional rights are to be taken seriously by those who exercise powers that may impinge on those rights by excluding evidence obtained by constitutional violations that reflect an institutional failure to equip officers with the training necessary to perform their duties within the strictures of the Charter.
96I would exclude the handguns from evidence.
V
Conclusion
97I would allow the appeal, quash the convictions, and enter acquittals on all charges including those which were stayed by the trial judge.
RELEASED: “RRM” “MAR 18 2005”
“Doherty J.A.”
“I agree R.R. McMurtry C.J.O.”
“I agree Susan E. Lang J.A.”
Footnotes
- The trial judge’s reasons can be found at [2001] O.J. No. 2393.
- The trial judge entered two convictions against each of the appellants and stayed the other charges on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729.
- As opposed to, for example, New Zealand, where s. 317B of the Crimes Act 1961 (N.Z.), 1999, 41 RS 33, or the United Kingdom, where s. 4 of the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, provide statutory authority to establish roadblocks.
- Other jurisdictions have arrived at a similar conclusion with respect to police powers without reference to the ancillary power doctrine: see Brown v. Texas, 443 U.S. 47 at 50-51 (1979); City of Indianapolis v. Edmond, 531 U.S. 32 (2000); R. v. Jefferies, [1994] 1 N.Z.L.R. 290, per Cooke P. at 298 (C.A.).
- Ms. McArthur’s acceptance of the principle in Murray was no doubt influenced by the approving reference made to Murray by Iacobucci J. for the majority in R. v. Mann, supra, at 322.
- Model Code of Pre-Arraignment Procedures (American Law Institute, 1975), s. 110.2(2).
- In finding that the admission of the weapon seized from Clayton would not affect the fairness of the trial, the trial judge held that the seizure of the weapon was derivative of conscriptive evidence, that is Clayton’s admission that he had a weapon. The trial judge went on to find that since the weapon would inevitably have been discovered, its admission would not affect the fairness of the trial. I am not sure that Clayton’s admission that he had a weapon should be seen as conscriptive evidence. It may be arguable that Robson’s question and Clayton’s response were really part of the search that was incident to the arrest which followed immediately afterward. See R. v. Polashek (1999), 134 C.C.C. (3d) 187 at 198 (Ont. C.A.). I need not decide this issue as I agree with the trial judge’s conclusion that the admission of the evidence would not affect the fairness of the trial.
