COURT OF APPEAL FOR ONTARIO
WEILER, GOUDGE AND FELDMAN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Peter DeFreitas and Xenia Proestos for the appellant
Appellant
- and -
NATHAN BATZER
Paul J. Osier for the respondent
Respondent
Heard: May 20, 2005
On appeal from the acquittal by Justice Martha B. Zivolak of the Ontario Court of Justice dated April 19, 2004.
GOUDGE J.A.:
1Sometime before 4:00 a.m. on March 12, 2003, two Ontario Provincial Police Officers responded to a 911 gun call from a house on the outskirts of Dunnville, Ontario. Shortly after they arrived, a car driven by the respondent Nathan Batzer pulled up behind their cruiser. The two occupants of the car, who said they had been invited over by a resident of the house, answered the very general description given by the caller. As a result, the officers detained both men for investigation. At trial, the stop was determined to be lawful and that finding is not contested on appeal.
2The officers then embarked on a search incidental to the lawful stop, looking for a gun. They did a pat down of both men followed by a search of the car, but found nothing. On a second search of the car, they found a zippered case in the glove compartment. They opened it and discovered that it contained 22 grams of cocaine and 13 pills of ecstasy.
3The question raised in this appeal is whether this search incidental to the lawful detention of the two men, extended beyond the constitutional bounds provided by s. 8 of the Charter of Rights and Freedoms. The trial judge concluded that it did and excluded the evidence, pursuant to s. 24(2) of the Charter. As a consequence, the respondent was acquitted of possession of both drugs for the purpose of trafficking. The Crown appeals. For the reasons that follow, I would dismiss the appeal.
4As in most cases of this kind, the lawfulness of this search turns very much on the specific facts. On the voir dire, the trial judge heard evidence from both officers and the respondent. In the main, the facts are not contested.
5The officers were dispatched to 216 Hendershot Drive in Dunnville shortly before 4:00 a.m. on March 12. The police dispatcher told them that a 911 call had been received from the homeowner saying that he had observed two males dressed in dark clothing outside his residence, armed with a gun. En route, the officers received further information that the caller was very frantic and that he could no longer see the two men but believed they were now up on the roof.
6The house was one of only three houses on the street, in an isolated area of Dunnville. The officers were aware that some two weeks earlier, shots had been fired at one of the other two houses in an apparently random drive-by shooting that remained unsolved. They also knew that they were the only two officers assigned to patrol Dunnville on that shift, and that it was uncertain how long any backup would take to arrive.
7It had snowed that day and there was some significant accumulation of snow on the ground when the officers arrived at Hendershot Drive. They parked their vehicle a short distance from the house and approached it on foot. They spoke with the owner, Jeff Davies Sr., who suggested that the suspects may have gone into the field although the officers saw no tracks around the house. One of the officers also noted that there was a second male in the residence.
8The officers then noticed another vehicle parked a short distance behind their cruiser, perpendicular to it. They had not heard it drive up and were concerned that perhaps the gunmen had returned. The officers approached the car, saw that its two occupants were male and dressed in dark clothing, thus fitting the general description provided by the dispatcher, and ordered them out of the car onto the ground. The officers handcuffed them and asked what they were doing there at that time of night. The respondent, who was the driver, explained that Jeff Davies Jr. had called and asked them to come over and that they had got stuck in the snow when they drove up. Concerned about their own safety and that of the public, the officers conducted a pat down search of both men looking for a gun, but found nothing. They then turned their attention to the car. The evidence conflicted as to whether the respondent consented to the car being searched. One of the officers heard no consent from the respondent, but indicated that this did not matter because she would have searched any car coming down that road that night. In any event, the Crown agrees that if a consent was given, it was not properly informed.
9The trial judge found that the officers searched the car once without finding either a gun or the drugs, but subsequently, on a second search, one officer checked the glove compartment and in it found the box which contained the drugs. The box was described as a blue nylon zippered case, six inches long, two inches high and three inches wide with the name “Remington” on it. The officer knew that to be the name of a gun manufacturer and because he was looking for a gun, he opened it. He discovered the drugs and arrested the respondent.
10The trial judge assessed these facts and concluded that the initial detention of the respondent for investigative purposes was lawful and that the pat down search incidental to that detention was also lawful since it was for the purpose of both officer and public safety. Neither of these actions breached the respondent’s Charter rights.
11She then went on to consider the extension of the search to the vehicle. She found that it lacked the respondent’s informed consent and was therefore a warrantless search without consent. She acknowledged that there were issues of public and officer safety, but ultimately concluded that the extended search was unreasonable. The circumstances lacked the constellation of events that would warrant such an extensive search incidental to a lawful stop. Most particularly, she found that the circumstances were not so exigent as to prevent a determination of whether the respondent’s innocent explanation for his presence was true. The search therefore violated the respondent’s right under s. 8 of the Charter to be secure against unreasonable search or seizure.
12Pursuant to s. 24(2), the trial judge went on to determine that the evidence thus obtained should be excluded. While it was real not conscripted, and was central to the Crown’s case, other investigative techniques were available. She found that checking the respondent’s story could readily have been done and may have negated the need to check the vehicle altogether. Ultimately, she concluded that in all the circumstances the admission of this evidence would bring the administration of justice into disrepute. She therefore excluded the evidence and the respondent was acquitted.
ANAYLSIS
13The Crown first argues that the trial judge erred in finding that the extension of the search in this case violated the respondent’s s. 8 rights. This argument requires a consideration of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.
14In Mann, the Supreme Court of Canada described for the first time the parameters that must be met for a search incidental to a lawful detention to be authorized by the common law. Applying the analysis in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), the Court found that the search must fall within the general scope of the duty of police officers to protect life and property. If it does, the search must also involve a justified use of the police powers associated with that duty. In other words, it must be reasonably necessary in all the circumstances. As well, the officer must have a reasonable belief that his or her safety or that of others is at risk. Not every investigative stop will justify an incidental search. The Court put it this way at para. 40 of Mann:
The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002, 2 C.R. (6th) 49, at p. 63. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.
15The Court then went on to make clear that, since the search incidental to an investigative detention is necessarily a warrantless one, it must be found reasonable pursuant to the test established in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 if it is to avoid transgressing s. 8 of the Charter. It must be authorized by law, the law must be reasonable and the search must be carried out in a reasonable manner. If the search complies with the common law set out in Mann the first two criteria are met. The overall reasonableness of the search entails an examination that necessarily overlaps with the reasonable necessity inquiry necessary to ensure compliance with the common law.
16Finally the Court in Mann underlined that where a trial judge finds that extending a search beyond the pat down is unreasonable in light of security considerations, that finding is a finding of fact deserving of due deference in an appellate court. This of course is because such a finding is very much fact driven. However, in my view, by reviewing this finding in that case (albeit against a standard of deference), the Court leaves the clear inference that on the right facts, a search incidental to a lawful stop could comply with the common law and pass constitutional muster even though it went beyond a pat down.
17In this case, the trial judge did not have the benefit of the reasons in Mann which were released several months later. Nevertheless, her reasons clearly reflect its themes. Her awareness of the essential importance of safety considerations in justifying such a search is seen explicitly in her sanctioning of the initial pat down search of the respondent. She further tested the legality of the extended search by assessing whether the officers could simply have checked the respondent’s innocent explanation for his presence rather than immediately extending their search as they did. In essence, she asked herself whether the extension of the search was reasonably necessary. In addition, in determining the constitutionality of the extended search, she applied Collins in deciding whether in all of the circumstances the extended search was reasonable. Finally, she did not take the position that any extension beyond a pat down search was per se unconstitutional. I can therefore find no error in the legal criteria applied by the trial judge in concluding that the extended search violated the respondent’s s. 8 rights.
18Ultimately, she found that the respondent’s story could have been checked out by the officers and that the situation faced by them was not sufficiently exigent or critical to warrant extending the search to the contents of the closed box in the glove compartment of the car. It was not reasonably necessary for the search to go that far. She concluded that in all the circumstances the extended search was unreasonable.
19Her finding that the circumstances were not sufficiently critical is supported by the fact that the occupants of the car were said to match a description that was only very general and unspecific, the absence of weapons on their person, the innocent explanation offered for their presence, and the apparent absence of footprints fleeing the area of the house.
20The same is true of the finding that their innocent explanation could readily have been checked so as to make the extended search unnecessary. The two occupants were handcuffed and on the ground. The officers were a very short distance from the house, and had just spoken to the owner. They were aware that there was a second male in the house. The respondent’s story could easily have been checked, with no meaningful if any extension of the appellant’s detention beyond that required for the extended search. If confirmed, the extended search would have been unnecessary.
21Thus the conclusion that it was unreasonable for the officers to extend the search as far as they did is well founded on the evidence, and I can see no basis for interfering with the trial judge’s conclusion that the extended search here breached the respondent’s s. 8 rights.
22The Crown also argues that even if the extended search breached the respondent’s s. 8 rights, the trial judge erred in not admitting the evidence pursuant to 24(2) of the Charter.
23I do not agree. The trial judge’s decision in this regard must also be accorded deference in this court (see Mann at para. 59). I cannot find it to be unreasonable.
24As the trial judge acknowledged, trial fairness is not implicated since this was real evidence. However the extended search could reasonably be viewed as a relatively serious breach of the respondent’s Charter rights. It went beyond what was required to mitigate concerns about officer safety. The officers had no reasonable and probable grounds. There is a considerable expectation of privacy in a small case that is zippered shut in the glove compartment of one’s car. And where one of the officers makes clear that she would have searched this car and any car coming down the road that night regardless of whether she has the common law power to do so, it is hard for the police to rely on good faith in light of this ignoring of the scope of the officers’ authority. Finally, in all the circumstances, including the readily available alternative of checking out the respondent’s explanation for being there, I cannot fault the conclusion that the administration of justice would be brought into disrepute if the evidence obtained by the extended search was admitted.
25I would therefore dismiss the appeal.
RELEASED: September 19, 2005 “KMW”
“S.T. Goudge J.A.”
“I agree K.M. Weiler J.A.”
“I agree K. Feldman J.A.”
