Her Majesty the Queen v. White [Indexed as: R. v. White]
85 O.R. (3d) 407
Court of Appeal for Ontario,
Moldaver, Gillese and LaForme JJ.A.
April 27, 2007
Charter of Rights and Freedoms -- Unreasonable search and seizure -- Police officers observing accused detaining accused for investigation of drug trafficking and driving while prohibited -- Accused talking on cell phone while officers approached him -- Officers hearing him state "Yeah, they're here now" -- Officer immediately seizing cell phone for reasons of officer safety and evidence preservation as he feared that accused was summoning reinforcements -- Trial judge erring in holding that seizing cell phone amounted to serious s. 8 breach and that police conduct high handed and abusive -- No basis for such findings -- Trial judge also erring in excluding after acquired evidence of ammunition, drugs and loaded gun found under passenger's seat of car -- Trial judge misapprehending evidence and allowing s. 8 issue to be raised mid-trial based on erroneous belief that officer had failed to disclose seizure of cell phone during earlier voir dire -- Police not breaching accused's s. 8 rights when seizing phone for reasons of officer safety -- Even if seizure amounting to minor s. 8 violation, not justifying exclusion of after acquired physical evidence -- Crown appeal from acquittal allowed and new trial ordered -- Canadian Charter of Rights and Freedoms, s. 8.
The accused was charged with possession of marijuana for the purpose of trafficking, possession of property obtained by crime, possession of a prohibited firearm and prohibited ammunition, and being an occupant of a motor vehicle in which he knew there was a firearm. The arresting officers were on patrol in an area notorious for drug and gun-related crimes. They believed that they saw the accused engaging in a drug deal. They followed his car while running a check on the licence plate, and discovered that the owner of the car was subject to a driving prohibition. At that point, the accused appeared to become aware that he was being followed. He left his motor vehicle and walked away, talking into his cell phone. As the officers approached him, he was heard to say, "Yeah, they're here now". One of the officers seized the accused's cell phone. The accused was asked to produce his licence, which was in the car. When the accused opened the car door, one of the officers saw a mickey bottle of liquor between the driver seat and the passenger seat, and informed the accused that he was going to charge him with an offence under the Liquor Licence Act, R.S.O. 1990, c. L.18 and search him. The accused produced [page408] two bags of marijuana from his pocket and turned them over. He was arrested for possession of a controlled substance and informed of his right to counsel. One officer searched the car and found a loaded revolver under the front seat. On a pre-trial motion, the trial judge found that the police officers violated the accused's rights under s. 10(a) of the Canadian Charter of Rights and Freedoms when, in the course of the investigative detention, they informed him of only one of the valid reasons for detaining him (driving while prohibited) and not the other (engaging in illegal drug activity). However, she found that the Charter violation was not serious, primarily because the accused was aware that he had been followed because of suspected drug activity, and would not have acted any differently had the police informed him that he was being detained on suspicion of drug trafficking. The trial proceeded. In the course of testifying, one of the officers stated that he seized the accused's cell phone shortly after approaching him. The trial judge was under the impression that this was new information, and gave defence counsel leave to bring a mid-trial application to exclude evidence on the basis of a violation of the accused's rights under s. 8 of the Charter. The officer testified that he seized the phone for reasons of safety and evidence preservation, fearing that the accused was summoning reinforcements. He testified that he did not believe that it would have been enough to tell the accused to turn off the phone and put it away, since he was aware that some phones are designed to appear to be off while continuing to operate. The trial judge found that the seizure of the phone violated the accused's rights under s. 8 of the Charter, that the violation was serious, and that the s. 8 violation, combined with the almost simultaneous breach under s. 10(a), amounted to police conduct which was high-handed and abusive. She excluded the subsequently-discovered evidence under s. 24(2) of the Charter. Since that evidence was essential to the Crown's case, she withdrew the case from the jury and acquitted the accused. The Crown appealed.
Held, the appeal should be allowed.
The trial judge erred in assuming that the officer had not previously mentioned the seizure of the cell phone and the circumstances surrounding it. In fact, the officer had provided that information during the pre-trial s. 10(a) application. The trial judge's error affected her view of the officer's credibility. That was unfortunate, as the officer's justification for seizing the cell phone at the outset of his involvement with the accused depended largely on his credibility. The officer was justified in seizing the cell phone to prevent back-up forces from arriving at the scene and imperilling police safety and/or obstructing their investigation. The trial judge erred in assuming that the seizure would only have been justified if there was an immediate threat or act of violence by the accused towards the police. The seizure of the cell phone did not violate the accused's rights under s. 8 of the Charter.
If that conclusion was wrong, the subsequently-obtained evidence should not have been excluded under s. 24(2) of the Charter. The Charter violation was not serious, and the police did not act in a high-handed or abusive manner. The officers found themselves in a dangerous and potentially volatile situation, yet acted with restraint and treated the accused with courtesy and respect. The charges against the accused were serious. The evidence sought to be excluded was reliable and it established the accused's guilt to a virtual certainty. Trial fairness issues were non-existent. Excluding the evidence would bring the administration of justice into disrepute.
APPEAL by the Crown from the acquittals entered by Seppi J. of the Superior Court of Justice, sitting with a jury, dated October 17, 2005.
Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 9, 10, 24(2) Liquor Licence Act, R.S.O. 1990, c. L.18 [page409]
Jennifer Woollcombe, for appellant. Leslie Maunder, for respondent.
The judgment of the court was delivered by
1MOLDAVER J.A.: -- This is a Crown appeal from the respondent White's acquittal on charges of possession of marijuana for the purpose of trafficking, possession of property obtained by crime, possession of a prohibited firearm, possession of prohibited ammunition and being an occupant of a motor vehicle in which he knew there was a firearm.
2The respondent commenced his trial before Justice Seppi and a jury. Part way through the trial, the trial judge withdrew the case from the jury and directed that the respondent be acquitted on all counts. She did so following a mid-trial ruling in which she determined that the police violated the respondent's rights under s. 8 of the Canadian Charter of Rights and Freedoms when they seized his cell phone during an investigative detention. That was the second Charter breach found by the trial judge. The first, found in the context of a pre-trial motion, was that the police breached the respondent's s. 10(a) Charter rights when, in the same investigative detention, they informed him of only one of the valid reasons for detaining him (driving while prohibited) and not the other (engaging in illegal drug activity).
3The s. 10(a) ruling did not result in the exclusion of after-acquired evidence that the police seized from the respondent and his car and upon which the charges against him were based. The same did not hold true following the s. 8 mid- trial ruling. In the opinion of the trial judge, the s. 8 breach was serious. The police had no right to seize the respondent's cell phone and in doing so, they unlawfully deprived him of his personal property. That, combined with the almost simultaneous breach of his s. 10(a) rights, resulted in police conduct that the trial judge described as "high-handed and an abuse of [their] ancillary powers". Such conduct was not to be condoned. Hence, the after-acquired evidence should not be received; to do otherwise would bring the administration of justice into disrepute. Accordingly, the trial judge excluded the cell phone and all of the after-acquired evidence.
[4] The primary issue on appeal is whether the trial judge erred in holding that the police violated the respondent's s. 8 Charter rights when they seized his cell phone at the beginning [page410] of their investigative detention. If she erred, then the appeal must succeed. If she did not, then a secondary issue for determination is whether she erred in excluding the after-acquired evidence that the police seized from the respondent and his car, upon which the charges against him were based.
[5] For reasons that follow, I am respectfully of the view that the trial judge erred in holding that the seizure of the respondent's cell phone constituted a breach of his s. 8 Charter rights. I am further of the view that even if the seizure of the phone did constitute a breach of the respondent's s. 8 rights, the trial judge erred in finding that the breach was "serious" and that the police acted in a high- handed and abusive manner. The most that can be said is that the police made an error in judgment in the circumstances. For that, they do not deserve censure. No other basis for excluding the after-acquired evidence existed. It follows that the evidence needed to convict the respondent, including a loaded .38 calibre handgun found under the passenger seat of his car, should have been admitted under s. 24(2) of the Charter.
Findings of the Trial Judge on the Section 10(a) Ruling Pertinent to the Seizure of the Respondent's Cell Phone
6In the context of a pre-trial motion (hereafter referred to as the s. 10(a) motion) in which the trial judge found that the police violated the respondent's s. 10(a) rights by failing to inform him of the two lawful purposes for which he was being investigated, the trial judge made a number of findings of fact that provide a lead-in to the seizure of the respondent's cell phone and the alleged breach of his s. 8 rights occasioned by it. Significantly, in the context of the s. 10(a) motion, the respondent testified as to the events surrounding his initial detention and subsequent arrest. His evidence differed markedly from the testimony given by the two police officers who detained and arrested him. In all instances, where the evidence of the officers differed from that of the respondent, the trial judge disbelieved the respondent and sided with the police. The pertinent facts found by her are as follows.
7On the evening of June 12, 2003, Constables King and Smith of the Peel Regional Police Plainclothes Unit were on patrol in a troublesome area of Brampton notorious for all manner of criminal activity, including gun and drug-related crimes. Shortly after 6:00 p.m., they observed the respondent, who was driving a black Acura, pull up to a parking spot close to the front door of the Cannonball Strip Club. The respondent remained parked in that location while a woman (later determined to be his [page411] girlfriend) made three separate trips back and forth from the car to the club in the space of six minutes.
8After the third trip, the respondent's girlfriend re- entered the club and remained inside. The respondent then left and drove to a nearby Petro Canada gas station. The officers followed him in their van. They did so because they had just observed what was, in their experience, a "text-book" case of someone either buying or selling drugs. As such, they had reason to suspect that the respondent was engaged in illicit drug activity.
9At the gas station, as the respondent pumped gas into his car, the officers ran a check on his licence plate. They learned that the Acura was registered to Glenville White and that White was under an order prohibiting him from driving.
10Once the respondent paid for his gas, he did not return directly to his car. Instead, he took a circuitous route that enabled him to pass the officers' van and look inside it. The officers believed that his conduct was deliberate and designed to confirm his suspicion that he was being followed by the police.
11After walking past the officers' van, the respondent returned to his car but he did not leave the gas station. He proceeded instead to a Tim Horton's "drive-through" and then returned to the gas station parking lot where he parked his car. He got out of his car and began to walk away from the officers towards the street. He was speaking on his cell phone at the time.
12Believing that the respondent might be trying to get away, the officers decided to stop and investigate him for suspected drug activity and driving while prohibited. They got out of their van and as Constable King approached the respondent, he overheard the respondent say "Yeah, they're here now". Constable King immediately identified himself as a police officer. It was at this point that Constable King seized the respondent's cell phone. [See Note 1 below] He then asked the respondent if he was Glenville White and the respondent replied that he was not; Glenville was his brother and the car belonged to Glenville. Constable King then asked the respondent to produce his licence and the respondent told him that it was in the car. He was asked to retrieve it and the officers followed him to the car. [page412]
13At the car, the respondent opened the driver's door and leaned across the front seat. With his left hand, he opened the glove compartment. As he did so, he put his right hand under the passenger seat. That action concerned the officers and they put their hands on their guns. At this point, Constable Smith noticed a "mickey" bottle of liquor between the driver seat and the passenger seat. By this time, the respondent had retrieved his licence and turned it over to Constable King. Constable Smith now informed the respondent that he had seen "open alcohol" in the car and he was going to charge the respondent under the Liquor Licence Act, R.S.O. 1990, c. L.18 and search him. The respondent replied that if he was going to be searched, he had "this" and he pulled out two bags of marijuana from his pocket and turned them over to Constable King. The respondent was then arrested for possession of a controlled substance and advised of his right to counsel.
14Constable Smith proceeded to search the car. Under the front passenger seat, he found and seized a loaded .38 calibre revolver wrapped in a bandana. He also seized the "mickey" bottle of alcohol and an electric pocket scale located inside the car. Constable King seized CDN$80 and US$30 from the respondent at the police station.
The Trial Judge's ruling on the s. Section 10(a) Motion
15The s. 10(a) motion was one of several inter-related pre-trial Charter motions brought by the respondent. The others involved alleged breaches of his rights under s. 9 (arbitrary detention), s. 8 (unreasonable search and seizure of the car) and s. 10(b) (right to counsel).
16On October 11, 2005, the trial judge gave her ruling on the pre-trial Charter motions. She found that apart from a s. 10(a) breach (failure to inform the respondent of both reasons for his detention), the police did not otherwise violate his Charter rights.
17With respect to the s. 10(a) breach, the trial judge considered and rejected the respondent's follow-up submission that the after-acquired evidence, seized by the police from the respondent and his car, should be excluded under s. 24(2) of the Charter. In the opinion of the trial judge, that evidence was non-conscriptive and trial fairness was not an issue. The police had reason to suspect that the respondent was engaged in illegal drug activity and that he was also driving while prohibited. Contrary to the submission of the respondent, their investigation of the potential driving offence was not a ruse to enable them to improperly detain and investigate the respondent for his suspected drug [page413] activity. In the circumstances, the breach was not a serious one. The trial judge's reasons in this regard are instructive and they are reproduced below:
In the case at bar, there is credible evidence from the officers that they believed Mr. White knew, and Mr. White behaved as if he knew he had been followed from the Cannonball and was under police surveillance for drugs. The arrest for open liquor was made almost immediately after the detention during which the 10(a) Charter violation had occurred.
Though these facts do not excuse the breach, they do go to its seriousness, and the effect that excluding all the evidence obtained in the process of what I have found to be a lawful detention, lawful arrest, and a lawful search and seizure.
In these circumstances, I find the breach was not a serious one in the sense of the applicant's liberty rights being compromised for expediency and effective policing. I am satisfied on all the evidence that Mr. White would not have acted any differently had the police informed him he was also being detained for suspicion of drug trafficking. He would have, in all probability, cooperated and gone to retrieve his licence. In all probability he knew as soon as the police arrested him for the open liquor that he was caught, and they were entitled to lawfully search him and the vehicle. This is evidenced by his voluntary production of the marijuana on his person.
In all the circumstances, therefore, I conclude that the admission of the items found in the car that evening would not bring the administration of justice into disrepute. Accordingly, the defence application under Section 24(2) is dismissed.
(Emphasis added)
The Section. 8 Mid-Trial Charter Motion
18Following the s. 10(a) ruling, the trial commenced before the jury and the Crown called Constables Smith and King to testify. In the midst of Constable King's cross-examination, defence counsel (not Ms. Maunder) questioned him about some of the items he had seized from the respondent, including the respondent's cell phone. When asked "when" the phone was seized, Constable King replied that it was when he was "first investigating [the respondent] . . . when I walked up to him and he said, 'They're here now' ". It was just "shortly after that [that I took his phone]". Defence counsel then asked the Constable "what authority" he had to seize the phone. Constable King replied as follows:
A. The authority -- well, as I indicated earlier in my opinion he was being investigated for a drug-related offence. That was the initial thing. When he came to my car and he looked into my window that made me believe at that point that he identified me as a police officer. When I approached him, he was distancing himself from his car and he indicated, as I said already, "Yeah, they're here now;" that made me believe that he was talking to someone on the other phone that could possibly be involved as well, so as far as the offence taking place, I seized it just after that. [page414]
19In the next series of questions, defence counsel established that Constable King's notebook contained no notation about his having seized the respondent's cell phone at the outset of his contact with the respondent. He also confirmed that Constable King could not recall exactly what he said to the respondent when he took the phone; nor did he recall what he did with it, although he thought he "probably just put it in [his] pocket".
20That exchange occurred in the afternoon of October 13. Defence counsel did not complete his cross-examination of Constable King at that time. On the next morning, when the proceedings resumed, defence counsel raised several issues with the trial judge in the absence of the jury. One related to the seizure of the respondent's cell phone.
21In what can only be described as a tirade, defence counsel referred to Constable King's seizure of the cell phone as "a shocking new development on the Charter front". He pointed to the fact that the seizure was not mentioned in the Constable's notes, nor was it disclosed "on the two previous occasions on which he has testified". Calling the seizure a "clear, unequivocal section 8 breach" for which Constable King "had absolutely no lawful authority", defence counsel accused the officer of "robbery". That kind of conduct, he continued, "would shock freedom loving Canadians". It was "the kind of lawless behaviour" that "the Charter [was] meant to prohibit" and "given the extreme seriousness of Constable King's admission", defence counsel demanded that a "new Charter analysis with respect to s. 8" be conducted.
22In response to a question from the trial judge as to what he was suggesting, defence counsel continued his attack on Constable King and submitted that the court should hold an immediate voir dire to address the problem. In the course of his submissions, defence counsel said the following:
But defence counsel is -- is arguing it and arguing it in the strongest terms that if -- if this had ever been disclosed to the defence at any time either on the Charter voir dire, either at discovery, either in the officer's notes, this would have been raised in the strongest possible terms. This again is unlawful taking and on -- on my reading of the law, it amounts to robbery. It amounts to someone taking something with absolutely no colour of the right in the context of a regulatory search. This is shocking wild-west behaviour, and for that reason the court must engage in the analysis.
(Emphasis added)
23Over the objection of Crown counsel, the trial judge determined that the defence could bring the s. 8 mid-trial motion. In so ruling, the trial judge was very much influenced by the fact that she had made her pre-trial ruling on the s. 10(a) motion without knowing the "whole circumstances" and in particular, "that the [page415] phone was . . . just taken from [the respondent] as he was standing out there talking on it and . . . that's a major event under the Charter".
24Thus, like defence counsel, the trial judge was under the impression (wrongly as it turns out) that on the pre-trial voir dire, Constable King did not mention the circumstances under which he had seized the respondent's cell phone.
25As will become apparent, that mistake was unfortunate. It figured prominently in the trial judge's decision to allow defence counsel to raise the s. 8 issue in the middle of the trial, something she might not have acceded to had she known the true state of affairs. More importantly, it skewed her assessment of Constable King's credibility and his justification for seizing the respondent's phone when he did. As such, the error was serious. Indeed, for reasons that follow, I am respectfully of the view that it tainted the whole of the trial judge's s. 8 analysis.
Constable King's Testimony on the Section 8 Mid-Trial Voir Dire
26Constable King testified that he seized the respondent's cell phone immediately after making contact with him for reasons of safety and evidence preservation. On the issue of safety, Constable King testified as follows:
A. The first concern at that point was the indication immediately to me was that he had said, "Yes, they're here now." That to me meant that he was talking to someone and he had already probably revealed the location of where he was and was asking, in my opinion, perhaps someone to come meet him or assist him where he was at that point. The second thing is it became a -- which I guess comes from that same thing, is there becomes an immediate officer safety issue. If he's on the phone and is involved in any type of criminal activity, which at that point I suspected and he was letting others know where he was and what was taking place, that -- that could present an immediate officer safety issue to -- to me as far as other people coming to attend the scene to assist him. And in this case it did happen.
Q. What do you mean by that?
A. Other people showed up at the parking lot to assist him -- to assist him. In my opinion there were -- to my recall it was family members, his sister, that showed up or -- and who else may have been coming I didn't know.
Q. All right, so -- so the concern you had about others coming as a result of that phone call was borne out?
A. Yes, it became an immediate -- immediate issue.
(Emphasis added)
27On the issue of evidence preservation, Constable King explained as follows: [page416]
Q. All right, now, what other issues or concerns would you have approaching this fellow to -- to his cell phone?
A. The other assistance would be if there were any items on his person as far as weapons or evidence, they -- and another person showed up at the scene, those items or evidence or what have you could be easily transferred.
One of the problems, as I indicated, if persons were attending to assist Mr. White, which in my belief he had -- he had had that conversation with another person, the -- any items that could have been retrieved as far as evidence could have easily been seized from the vehicle.
(Emphasis added)
28In cross-examination, Constable King stated that when he seized the phone, he was not sure whether the respondent had "hung up the phone". He disagreed with the suggestion that he could have resolved his concerns by simply having the respondent turn the phone off and put it in his pocket. Based on his experience, Constable King was aware of numerous phones that were designed to "appear to be off" but nonetheless continued to "operate as two-way phones". Constable King did concede that when he seized the cell phone, the respondent did not put up an argument; he also agreed that when he approached the respondent and called out "hey, Peel police", the respondent stopped moving.
29Furthermore, Constable King acknowledged that he did not do a "pat-down" search of the respondent after seizing his cell phone. He denied, however, that this belied his testimony that officer safety was one of the reasons for seizing the phone. His reason for not doing a pat-down search was because the investigation moved "so quickly" in a way that made it unnecessary to do so. Within moments of the respondent's apprehension, Constable Smith noticed alcohol in his car and he told the respondent that he was going to be searched. It was then that the respondent produced drugs . . . "it moved so quickly. So far as a pat-down search, maybe I would have conducted a pat-down search if the investigation moved that way, but it didn't."
The Trial Judge's Ruling on the Section 8 Motion.
30The trial judge commenced her ruling by reiterating her findings on the pre-trial Charter issues raised by the respondent. In particular, she summarized her ruling on the s. 10(a) breach and her reasons for admitting the after-acquired evidence under s. 24(2) despite the breach.
31The trial judge then turned to Constable King's evidence at trial and stated as follows: [page417]
In the course of the Crown's case, during the cross- examination of Constable Philip King, new evidence came to light that materially affects the Charter ruling. Constable King, for the first time during the entire course of these proceedings, disclosed that he seized Mr. White's cell phone immediately upon his detention.
(Emphasis added)
32Having identified the circumstances under which the respondent's cell phone was seized, the trial judge commenced her analysis to determine whether the seizure constituted a breach of the respondent's rights under s. 8 of the Charter. In doing so, she quite properly observed that "the onus of justifying the warrantless seizure" rested upon the Crown. Her reasons for concluding that the Crown failed to meet its onus and that the respondent's s. 8 rights were violated are relatively brief. They are reproduced in full below:
Officer King testified that he took the phone to prevent Mr. White from calling others to his aid. He said the words, "Yeah, they're here now," made him believe Mr. White was calling someone else to the scene. He said he was concerned that if others came, officer safety would be compromised. He believed the suspicions which arose from the events at the Cannonball Club gave him the right to seize the phone. He said he had seen other officers do this in the course of detention and has learned the cell phone to be a concern in numerous investigations.
I find there were no exigent circumstances justifying a warrantless seizure under Section 11(7) of The Controlled Drugs and Substances Act. There was no urgency to seize the cell phone, nor was there any credible evidence of a threat or apprehension that the safety of the officers was at risk because Mr. White had a cell phone on his person. Mr. White was totally compliant and responsive to the officer's detention. He made no threatening gestures with his phone or otherwise. He did not attempt to run, he showed no inclination towards violence. The officer, on his own evidence, perceived no real danger or discomfort in the process until later when the accused put his hand on the floor of the vehicle. The phone call he was on ended when the officer stopped him. There is no evidence he tried to use the phone after he was detained.
Taking the phone in the manner that he did, when Mr. White had not been told of the reason for his detention, was clearly an unreasonable seizure. It was not authorized by law nor was it carried out in a reasonable manner. Accordingly, I find there was an infringement of Mr. White's Section 8 Charter rights to be secure against unreasonable seizure.
(Emphasis added)
33Having found a s. 8 breach, the trial judge turned to s. 24(2). In doing so, she re-introduced the s. 10(a) breach into the analysis. Hence, the new question for determination was whether, in the face of two separate Charter breaches, the after-acquired evidence, earlier found to be admissible, should be excluded under s. 24(2). [page418]
34The trial judge answered that question in the affirmative. In her view, the "unlawful seizure" of the respondent's "personal property" amounted to a serious breach. Considered in the context of all of the circumstances, "the police conduct when they stopped [the respondent] was high- handed and an abuse of the police ancillary powers". As such, the "cumulative effect of the Charter breaches in this case was most serious".
35The trial judge next determined that the after-acquired evidence was both temporally and causally connected to the breaches. On the latter point, she found that the items in the car were located:
. . . because of the stop, detention and initial questioning which occurred during the Charter breaches. The evidence was uncovered because Mr. White entered the vehicle to obtain his licence in response to the officer's initial questions on the investigative detention. The events took only a matter of minutes to lead to the discovery of the marijuana, digital scale and loaded prohibited firearm.
36Finally, the trial judge found that despite the discovery of a loaded firearm and the "very serious nature" of the charges against the respondent, that did "not minimize the seriousness" of the Charter breaches. In the circumstances, she determined that it would be wrong for the court to countenance such breaches by admitting their evidentiary product into evidence. To do so would bring the administration of justice into disrepute. Hence, the trial judge excluded all of the evidence seized from the respondent and his car under s. 24(2).
37Without that evidence, the Crown could not succeed. The trial judge accordingly withdrew the case from the jury and acquitted the respondent on all counts. In doing so, she told the jury that certain evidence introduced at trial:
. . . should have been excluded due to a serious Charter violation. The facts of the violation were not known to either of the lawyers or the court before we began the evidence in this trial, which is the reason for the court not having dealt with the issue before the trial began. (Emphasis added)
[38] That is the backdrop against which the Crown brings this appeal. At issue is whether the trial judge erred in finding that Constable King breached the respondent's s. 8 Charter rights when he seized the respondent's cell phone at the outset of a lawful investigative detention. Alternatively, if the trial judge was correct in finding a s. 8 breach, did she err in excluding the after-acquired evidence that formed the basis of the charges against the respondent. [page419]
Analysis
Issue one: Did Constable King breach the respondent's section 8 Charter rights when he seized the respondent's cell phone?
39With respect, I am of the view that the trial judge made a number of errors in her s. 8 analysis and ultimately came to the wrong conclusion. There was no s. 8 breach here. Constable King was fully justified in seizing the respondent's cell phone when he did. Indeed, in the circumstances, he would have been derelict had he not done so.
40I commence my analysis with the remarks made by the trial judge to the jury when she withdrew the case from them. I do so because they illustrate the factual misunderstanding that everyone was labouring under, namely, that Constable King did not mention the seizure of the cell phone and the circumstances surrounding it "before we began the evidence in this trial".
41Without faulting anyone, that observation was plainly wrong. In the pre-trial s. 10(a) voir dire conducted on October 6, 2005, Constable King testified as follows at p. 96:
Q. All right. Now, what about the cell phone from Mr. White?
A. Mr. White's cell phone was seized originally when I began speaking with him.
That the parties and the trial judge may have missed that response is unfortunate. All the more unfortunate is that it placed Constable King in an unfavourable light before the s. 8 mid-trial motion even began.
42That, as I have already intimated, was particularly troublesome in the circumstances. Constable King's justification for seizing the respondent's cell phone at the outset of his involvement with the respondent depended largely on his credibility. He was entitled to a fair and just assessment in that regard, not one which wrongly placed him under a cloud of suspicion because of his supposed failure to disclose the timing of the seizure.
43In my view, that error alone would justify setting aside the trial judge's findings rejecting Constable King's reasons for seizing the cell phone when he did. But that would mean that the s. 8 issue could be raised again at the new trial. I see no need for that.
44On the s. 10(a) pre-trial voir dire, the trial judge made critical findings of fact that remained undisturbed for purposes of the mid-trial s. 8 motion. Had the trial judge applied the correct principles of law to those findings, she would, in my respectful view, have concluded that Constable King was fully justified in [page420] seizing the respondent's cell phone when he did and that he did not violate the respondent's s. 8 rights in the process. The critical facts to which I refer are set out below:
-- On the evening in question, Constables Smith and King were working in plain clothes in a high risk area of Brampton notorious for all manner of criminal activity, including drug and gun-related crimes. Their observation of the respondent and his girlfriend at the Cannonball Strip Club provided them with reasonable grounds to suspect that the respondent was engaged in illegal drug activity.
-- After they followed the respondent for about a block to a nearby gas station, the officers observed him taking steps that caused them to believe that he suspected he was being followed by the police. By this time, the officers had reason to suspect that the respondent was not only engaged in illegal drug activity but also, that he was driving while prohibited. Their beliefs were legitimate and honestly held, and they provided the officers with two separate bases for detaining and investigating the respondent.
-- When the officers decided to approach the respondent, he was walking away from their vehicle towards the street and he was using his cell phone. As Constable King approached and identified himself as a police officer, he overheard the respondent say "Yeah, they're here now". It was then that he seized the respondent's phone.
45Those findings were made by the trial judge on the s. 10(a) voir dire and they remained undisturbed for purposes of the s. 8 mid-trial motion. Nonetheless, the trial judge determined that Constable King was not legally justified in seizing the respondent's cell phone when he did. In so concluding, she found, among other things, that there were "no exigent circumstances justifying a warrantless seizure" and there "was no urgency to seize the cell phone". If by that, the trial judge intended to limit the right of seizure to situations of immediate danger as opposed to reasonably apprehended potential danger, I am respectfully of the view that she erred. Put simply, the police did not have to wait to seize the respondent's cell phone until they were set upon by back-up forces summonsed by him. They were entitled to take preventative measures.
46The trial judge continued her analysis noting that there was no "credible evidence of a threat or apprehension that the safety of the officers was at risk because [the respondent] had a cell phone on his person". [page421]
47With respect, that misses the point. Constable King did not seize the respondent's cell phone simply because he "had [it] on his person". He did so because the respondent was letting someone know that the police were there. That is precisely the kind of information that Constable King was worried about, both from the point of view of officer safety and the potential loss of evidence. If the respondent had not already done so, Constable King did not want to give him the opportunity to provide his cohorts with more information, such as the location of the gas station and the number of officers present. Nor was he required to do so. If ever there was a case where Constable King was justified in seizing the phone to prevent (or attempt to prevent) back-up forces, sympathetic to the respondent, from arriving at the scene and imperilling police safety and/or obstructing their investigation, this was it.
48Regrettably, the trial judge does not appear to have appreciated that. As indicated, she seemed to be looking for immediate threats or acts of violence by the respondent towards the police. Indeed, after observing that the officers were not at risk "because [the respondent] had a cell phone on his person", she continued as follows:
Mr. White was totally compliant and responsive to the officer's detention. He made no threatening gestures with his phone or otherwise. He did not attempt to run, he showed no inclination to violence.
49Again, with respect, those observations, while accurate, miss the point. Constable King testified that he seized the phone because he wanted (if possible) to prevent the respondent from summonsing back-up assistance. He also explained that to accomplish that, he had to take possession of the phone; requiring the respondent to simply put it away was insufficient because the phone may well have been "a two-way" phone designed to transmit even though apparently "shut-off".
50Another reason given by the trial judge for rejecting Constable King's "officer safety" concerns was that "on his own evidence, [he] perceived no real danger or discomfort in the process until later when the accused put his hand on the floor of the vehicle". That observation by the trial judge must, of necessity, relate back to Constable King's evidence on the s. 10(a) pre-trial voir dire. It could not relate to his evidence on the s. 8 mid-trial voir dire because Constable King testified, in no uncertain terms, that officer safety was one of the paramount reasons for seizing the respondent's cell phone when he did.
51That being so, I am respectfully of the view that it was inappropriate for the trial judge to use Constable King's pre- trial [page422] voir dire testimony as a basis for impugning his credibility on the s. 8 voir dire. It is true that on the pre-trial voir dire, Constable King made no mention of "safety concerns" as a reason for seizing the respondent's cell phone when he did. But that is hardly surprising. The cell phone seizure was not in issue on the pre-trial voir dire; hence there was no reason for Constable King to explain why he seized the phone when he did.
52Finally, the trial judge made no mention of the second reason given by Constable King for seizing the respondent's cell phone, namely, protecting against the possible loss of evidence should friends of the respondent appear on the scene. That too, was a legitimate basis for seizing the cell phone and the trial judge erred in failing to consider it, much less give effect to it.
53In sum, when the correct legal principles are applied to the facts as found by the trial judge on the s. 10(a) pre-trial voir dire, I have no doubt that Constable King was fully justified in seizing the respondent's phone when he did, for the reasons he gave. There was no s. 8 breach here. Constable King was engaged in a high risk investigation. He and his partner were in plain clothes, in an area of town notorious for drug and gun-related crimes. They were investigating a suspected drug dealer who knew that he was being followed by the police and who was "caught in the act" conveying information to someone as Constable King approached him.
54When Constable King seized the respondent's cell phone, he found himself in a dangerous and potentially volatile situation. In the circumstances, he had little time to reflect. He had to make a split second decision; a moment's hesitation could have put his life and that of his partner in peril. Courts should keep this in mind when assessing the conduct of officers in the field. When it comes to officer safety and preserving the integrity of their investigation, police officers should be given a good deal of leeway and second guessing should be avoided.
[55] For these reasons, I am satisfied that the trial judge erred in ruling that Constable King breached the respondent's s. 8 Charter rights when he seized the respondent's cell phone. It follows that the evidence obtained thereafter, including the marijuana, the loaded firearm, and the ammunition, should have been admitted into evidence.
Issue two: Did the trial judge err in excluding the after- acquired evidence under section 24(2)?
56In light of my conclusion that there was no s. 8 violation, it is not necessary, strictly speaking, to consider the s. 24(2) issue. However, for the sake of completeness I will do so. [page423]
57The trial judge found that the police were lawfully entitled to detain the respondent for investigative purposes. She further found that at the outset of their investigation, the police breached the respondent's Charter rights in two ways -- first, under s. 10(a) [See Note 2 below] by failing to inform him of the two reasons for which he was being investigated and second, under s. 8, for unlawfully seizing his cell phone.
58In her s. 24(2) analysis, the trial judge found that there was both a temporal and causal link between the two breaches and the evidence seized thereafter from the respondent and his car. I mention that for one reason. In my respectful view, there was no causal link here. In the context of her s. 10(a) ruling, the trial judge found that the respondent would not have done anything different had he been told of the second valid reason for his detention; so too, in my view, he would not have done anything different had Constable King not seized his cell phone. Indeed, one of the ironies in this case is that the respondent did not even tell his counsel about the timing of the seizure of his cell phone. That information came from the testimony of Constable King, initially on the pre-trial voir dire and then, in cross-examination by defence counsel midway through the trial.
59To the extent that a temporal link existed, I need not decide whether it was sufficiently strong to warrant a finding that the Charter breaches were an integral part of a single transaction. Suffice it to say that I have my doubts on the issue.
60Assuming, for present purposes, that the after-acquired evidence needed to convict the respondent was "obtained in a manner" that violated his Charter rights, I respectfully disagree with the remainder of the trial judge's s. 24(2) analysis. In particular, I do not accept her finding that the seizure of the respondent's cell phone constituted a serious breach; nor do I accept that the police acted in a high-handed or abusive manner.
61Commencing with the seriousness of the breach, if Constable King breached the respondent's s. 8 rights when he seized his cell phone (which, I have determined, he did not), the breach was at most a minor one made in good faith. His error (assuming there was one) consisted of seizing the phone instead of ensuring that it remained safely stored with the respondent. Given the dynamics of the situation, Constable King's conduct can hardly be described as a serious breach. It is not as though he had no reason to be concerned about the respondent's use of [page424] the phone. Moreover, in assessing the seriousness of the breach, it must be remembered that Constable King did not attempt to use the phone to obtain private information about the respondent. Had the ensuing investigation turned up nothing, the phone would have been returned to the respondent and at worst, the respondent would have been deprived of its use for a period of several minutes.
62In sum, assuming that there was a breach here, by no means was it serious. To label it as "robbery" and "lawless" behaviour, as defence counsel did, is inexcusable.
63Just as the breach was not serious, so too in my view, there was no basis for describing the police conduct as "high- handed" or "abusive". The officers found themselves in a dangerous and potentially volatile situation. And yet, throughout, they acted with restraint and treated the respondent with courtesy and respect. Far from being high- handed and abusive, their manner at all times was both professional and conscientious.
64The charges against the respondent were serious; the Charter breaches, if any, were not. The evidence sought to be excluded was reliable and it established the respondent's guilt to a virtual certainty. Trial fairness issues were non- existent.
65Excluding the evidence in these circumstances could only bring the administration of justice into disrepute and deprive the public of faith and confidence in the criminal justice system.
Conclusion
[66] The trial judge erred in finding that Constable King breached the respondent's s. 8 Charter rights when he seized the respondent's cell phone. The evidence obtained thereafter should have been admitted at trial. The mid-trial s. 8 motion was premised on a false assumption. Had the true state of affairs been known, the trial judge would have been justified in refusing to even entertain it. As it is, the motion was ill- founded. To the extent that it was allowed to proceed, it should have been dismissed.
Disposition
67I would allow the appeal, set aside the acquittals and order a new trial on all counts in the indictment.
Appeal allowed. [page425]
Notes
Note 1: Constable King's testimony on the s. 10(a) voir dire affirms this. The trial judge did not refer to it in her s. 10(a) ruling; nor did defence counsel comment on it. It may be that they misheard Constable King or mistook him to say that he seized the phone later when he and his partner arrested the respondent. Regardless, I will return to this when I relate the circumstances giving rise to defence counsel's mid-trial s. 8 Charter motion and the voir dire that followed.
Note 2: The Crown did not appeal the trial judge's s. 10(a) ruling. Accordingly, I should note by taken as approving or disapproving it.
