Court of Appeal for Ontario

Date: August 17, 2017

Docket: C61186

Judges: Weiler, Hourigan and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Donald Lee Appellant

Counsel:

• Adam Steven Boni, for the appellant
• Brian Puddington, for the respondent

Heard: July 5, 2017

On appeal from the conviction entered on September 19, 2014 by Justice Wailan Low of the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

A. Introduction

1The appellant was convicted of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He appeals his conviction on the basis that his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms was violated and further submits the evidence seized ought to have been excluded pursuant to s. 24(2) of the Charter.

2The search was in response to a 911 call stating the appellant was observed in his car with what the caller believed to be a gun. Once no gun was found on the person of the appellant or in the interior of the car, the police searched the trunk. In the trunk, officers found 23 kilograms of cocaine.

3The main issue on appeal is whether that search was reasonable. If not, the issue is whether the evidence obtained as a result of the search ought to have been admitted at trial.

4For the reasons that follow, I would uphold the trial judge's conclusion that the search was reasonable. I would also uphold her conclusion that, in any event, the evidence seized was admissible under s. 24(2). Accordingly, I would dismiss the appeal.

B. Facts

5On the evening of November 29, 2012, Officers Warman and Cassidy were on general patrol in their scout car. At 8:23:10 p.m. they received a call from dispatch that there was a male of Asian descent possibly armed with a gun in the parking lot near the liquor store at the Agincourt Mall, which is in the area of Kennedy Road and Sheppard Avenue in Toronto.

6911 gun calls are designated with the highest priority. The officers were seconds away and told dispatch to "mark" them on the call. While en route, the officers received the following message over the squad car's computer:

WL2 SCARBOROUGH WIND-MOBILE ADDRESS AVAILABLE BY THE LIQUOR STORE IN A WHITE VEH -BKND714 [the licence plate number]

COMP SAYS HE SAW A LARGE BAG

IT WAS IN THE TRUNK OPEN

COMP BELIEVES HE SAW A GUN - 1M/A.SIAN-30-40'S

COMP SAYS HE JUST DROVE BY A CAR AND BELIEVES HE SAW A GUN

THINKS THIS MALE IS DEALING DRUGS

COMP IS IN A CAR AND DROVE BY THE SUSP VEH-ITS DARK INSIDE THE CAR AND BELIEVES HE SAW IT IN THE MALE'S POCKET

SAYS THE MALE WAS BY HIMSELF AND IN THE DRIVER'S SEAT

VEH COMES BACK AS RENTAL CAR

TRIED TO FIND OUT HOW HE SAW THE GUN IN THE DARK DRIVING BY-CHANGES HIS MIND

BELIEVES HE SAW IT

MALE ALSO HAS A BRN HAT ON

COMP COULD NOT EXPLAIN/CLARIFY EXACTLY WHERE THE GUN MAY BE

7Dispatch was unable to get in touch with the complainant after the initial call.

8Officers Warman and Cassidy then received oral information from dispatch that the vehicle was a white four-door 2009 Toyota. They drove to the liquor store, arriving at 8:24:53, but did not see the vehicle. They exited the parking lot and drove along a nearby road where, a few minutes later, they saw a vehicle pulled over with the engine running matching dispatch's description of the car and the licence plate. The car had a single male occupant – the appellant – who was Asian and wearing a brown hat. Officers Warman and Cassidy stopped behind the vehicle.

9The officers approached the appellant, ordered him to show his hands, opened the car door, and removed him from the driver's seat. Officer Warman told the appellant he was under investigative detention following the 911 gun call. The appellant looked shocked and said, "No! No!", in response to mention of the word "gun". Officer Warman did not immediately inform the appellant of his right to counsel. He did a pat-down search for weapons and found none. The appellant was detained but not handcuffed. Officer Cassidy performed a search of the passenger cabin of the appellant's vehicle and did not find a gun.

10Sergeant Gouthro, who had also heard the 911 gun call, arrived shortly after Officers Warman and Cassidy with two other officers. Either P.C. Cassidy or Sgt. Gouthro pushed the button releasing the latch to open the trunk of the appellant's vehicle. A duffle bag came into view once the trunk was open. Sergeant Gouthro lifted the bag and found it heavy. Thinking there could be guns inside, he unzipped it. The bag contained 23 kilograms of cocaine. No gun was located.

11The investigative detention lasted three minutes. By 8:39 p.m., the appellant was arrested for possession of a controlled substance for the purpose of trafficking. At that time, he was informed of his right to counsel. The next day, the police obtained a search warrant to search the appellant's vehicle and to seize the duffle bag and cocaine.

C. Trial Judge's Reasons

(1) Ruling on the Charter application

(a) Section 8 and 9

12The appellant brought an application to exclude the 23 kilograms of cocaine from evidence at his trial. The trial judge dismissed the application and admitted the evidence.

13The trial judge rejected the appellant's submission that the 911 call was unreliable because it was ambiguous as to where exactly the suspect was storing a gun – in his car, or in his pocket. She stated the other details provided by the caller, and the fact that the officers found a vehicle matching the caller's description in the vicinity of the identified location, made the caller a "reasonably reliable source of information" for the police. On the basis of the information in the 911 call, the officers reasonably believed the appellant was probably the person the caller had seen. They reasonably inferred there could have been a gun in the appellant's car.

14The trial judge accepted P.C. Cassidy and Sgt. Gouthro's evidence that they believed since the gun was not on the appellant's person or in the car's cabin, it was likely in the trunk. They accordingly searched the trunk.

15The trial judge held Sgt. Gouthro's search of the trunk was authorized by either s. 117.02(1) of the Criminal Code, R.S.C. 1985, c. C-46 or the common law.

16Section 117.02(1) authorizes the police to search a vehicle without a warrant where certain preconditions are met. This section applies where a police officer believes on reasonable grounds that a weapon was used in the commission of an offence and evidence of the offence is likely to be found in a vehicle, and where the conditions for obtaining a warrant exist but because of exigent circumstances it would not be practicable to obtain a warrant.

17The trial judge also held the police had a common law power to search the appellant's trunk. She analogized this case to the situation in R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172. In Plummer, a police officer conducted a pat-down search and then conducted a more extensive search of the suspect's vehicle for weapons after the pat-down revealed the suspect was wearing a bulletproof vest. This court held that search was a valid use of the power to search incidental to an investigative detention. In the present case, the police officers reasonably believed based on the 911 call that the appellant had a gun in his vehicle. It was reasonable for the police to infer that if the gun was not found on the appellant's person or in the vehicle's cabin, it must have been in the trunk. The trial judge noted, "[i]n the absence of either seizing the gun or verifying that there was no gun, there remained a reasonably held concern for officer and public safety."

18Ultimately, the trial judge found that the search of the trunk was authorized by either s. 117.02(1) of the Criminal Code or the common law and was therefore reasonable. She held there was no breach of s. 8 of the Charter. It is implicit from her reasons that she also found no breach of s. 9.

(b) Section 10(b)

19The trial judge acknowledged the police breached the appellant's rights under s. 10(b) of the Charter by not informing him of his right to counsel immediately upon detaining him for investigative purposes. She held, however, the delay was minimal (90 seconds) and there was no bad faith. The police did not elicit any statements from the appellant, there was no nexus between the s. 10(b) breach and the location of the cocaine, and there was no question of compromising trial fairness. Therefore, the trial judge held there was no cogent argument in favour of excluding the cocaine from evidence as a result of the s. 10(b) breach.

(c) Section 24(2)

20In the event that she was wrong about her conclusions with respect to the breach of s. 8 of the Charter, the trial judge concluded she would have admitted the cocaine into evidence under s. 24(2). In doing so, she conducted the analysis set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

21First, the breach was not egregious. The police were acting reasonably in response to the 911 gun call and were not acting in bad faith. Sergeant Gouthro thought he had statutory authority to search the appellant's vehicle, although he was mistaken as to the true source of his authority.

22Second, the impact of the search of the trunk on the appellant's privacy interests was diminished because the car was a rental vehicle, the appellant attempted to distance himself from the car by saying it was not his, and he had few personal belongings in the vehicle.

23Third, society has a strong interest in the adjudication of the case on its merits. The cocaine is reliable evidence of the appellant's guilt and is essential to the Crown's case.

(2) Reasons for conviction

24The trial judge was satisfied the quantity of cocaine found in the appellant's trunk was consistent with trafficking and the appellant had knowledge that it was in his trunk. She therefore entered a conviction against the appellant for possession of cocaine for the purpose of trafficking.

D. Issues

25The appellant raises three issues:

1. Was the search of his trunk authorized by s. 117.02(1) of the Criminal Code?
2. Was the search of his trunk authorized by the common law?
3. Should the cocaine be excluded from evidence under s. 24(2) of the Charter?

E. Analysis

(1) The search of the trunk was not authorized by s. 117.02(1)

26As the police officers all testified that they did not believe they had grounds to obtain a warrant to arrest the appellant at the time of the search, s. 117.02(1) of the Criminal Code does not apply. In oral argument before us, the Crown did not suggest otherwise. Accordingly, I would agree with the appellant that s. 117.02(1) did not authorize the search in this case.

(2) The search of the trunk was authorized by the common law

(a) Relevant legal principles

27To determine whether a search is authorized by the common law, a court must determine: (1) whether the police conduct in issue falls within the general scope of any duty imposed on the officer by any statute or common law, and (2) whether, in the circumstances, the police conduct involved a justifiable use of the powers associated with the engaged duty: R. v. Waterfield, [1964] 1 Q.B. 164; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 12.

28In this case it was not really contested on appeal that police have a duty to respond to a 911 call. Thus, the real issue is the second branch of the Waterfield test, namely, whether the search conducted by the police is a justifiable exercise of police powers.

29One line of jurisprudence concerning when a search is justifiable arises from searches conducted pursuant to an investigative detention. In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court established the following four requirements.

30First, a police officer must have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary: Mann, at para. 45.

31Second, the police officer is entitled to search the individual detained for a weapon where the officer has a reasonable belief that his safety "or the safety of others…is at risk": Mann, at paras. 40, 43, 45. The Supreme Court cited with approval the decision in Minnesota v. Dickerson (1993), 508 U.S. 366, at p. 373-74, which describes the objective of a valid protective search as extending to "bystanders". The decision to search cannot be premised on hunches, mere intuition, or a vague or non-existent concern for safety, rather, the officer, "is required to act on reasonable and specific inferences drawn from the known facts of the situation". The search must also be confined in scope to an intrusion reasonably designed to locate weapons: Mann, at paras. 40-41.

32Third, the search must be conducted in a reasonable manner: Mann, at paras. 45.

33Fourth, the investigative detention should be brief and the individual detained is not obliged to answer questions: Mann, at para. 45. Questions during the detention may, depending on the circumstances, amount to a search and seizure of information.

34The scope of a search incidental to an investigative detention was further considered in Plummer. In Plummer, the police questioned the occupants of a car parked outside of a residence with known drug associations after seeing the passenger slouch forward and bend down in a manner which they thought was consistent with concealing drugs. After asking the occupants their names, one officer recalled an "officer safety alert" that had been issued the week before warning that the passenger was possibly armed with a handgun. A pat-down search revealed the passenger was wearing a bulletproof vest, but he did not have a gun on his person. The officer subsequently found a gun in a bag belonging to the appellant's girlfriend under the passenger seat.

35At issue was whether the officer had the authority to search the car incidental to the investigative detention. In concurring reasons, Sharpe J.A. emphasized the limited power to search incidental to an investigative detention, at para. 76:

A search incidental to an investigative detention is defined and limited by the immediate concerns of officer safety. This reflects an important difference between the narrowly focussed and strictly limited protective search that may accompany an investigative detention, and the broader power to search consequent to a lawful arrest. It is necessary to maintain that distinction and to confine the scope of a search incidental to an investigative detention within strict limits. Here, the police did not arrest the appellant, presumably because they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon or some other valuable evidence. This is a tendency that the courts should resist.

36On the facts of Plummer, however, MacPherson J.A. held, and Laskin and Sharpe JJ.A. concurred, that the officers were entitled to search the bag in the car to ensure their own immediate safety: Plummer, at paras. 65, 77-78.

37The other line of jurisprudence relevant to this case concerns the justifiability of searches conducted pursuant to a 911 call. In Godoy, the police received a 911 call that was disconnected before the caller spoke. The police traced the call and attended the apartment from where the call had emanated. The person who opened the door assured them that everything was alright; he subsequently attempted to close the door. The police prevented the door from closing, entered the dwelling, and searched the apartment. They found the injured victim in the bedroom. Even though the initial observations of the police in responding to the 911 call did not raise any significant safety concerns, and the police searched a home, in which the reasonable expectation of privacy is high based on the underlying values of the dignity, integrity and autonomy of the individual, the Supreme Court held the search was justifiable. In coming to its conclusion, at para. 18, the court adopted the following description of "justifiable", which Doherty J.A. articulated in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482, at p. 499:

[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.

38The Court concluded at para. 18, "it was necessary for the police to enter the appellant's apartment in order to determine the nature of the distress call. There was no other reasonable alternative to ensure that the disconnected caller received the necessary assistance in a timely manner." Entry into the home and a search of the home was necessary in order to assure the safety of the 911 caller.

39In addition to providing helpful guidance on when a search is justifiable, Godoy also contains some useful comments on the nature of a 911 call. The Supreme Court held that a 911 call is a distress call, that criminal activity is not a prerequisite, and that, "[t]he point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call": Godoy, at para. 16.

40More recently, in R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191, at paras. 37-54, Watt J.A. thoroughly summarized the general principles governing the authority for police to conduct a safety search incidental to an investigative detention pursuant to a 911 call. As in this case, the main issue in Peterkin was the extent to which a safety search incidental to an investigative detention was justifiable.

41In Peterkin, Watt J.A. pointed out that the Supreme Court considered the extent to which a safety search is authorized in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37. Although MacDonald involved a police response to a 911 call about a noise complaint instead of a safety search incidental to an investigative detention, the majority of the Supreme Court, citing Mann, concluded safety searches are authorized by law, "only if the officer believes on reasonable grounds his or her safety is at stake and that, as a result, it was necessary to conduct a search": Peterkin, at para. 53 (citations omitted; emphasis in original).

42I read Watt J.A. to be saying that, arguably, MacDonald stands for the proposition that it is appropriate to take a subjective–objective approach to whether a safety search incidental to investigative detention is lawful. The police must believe the search is necessary for their own safety, or that of the public, and that belief must be objectively reasonable. I note, however, MacDonald was not argued before us.

43Ultimately, regardless of any subtle differences in the evolution of the law, for the reasons that follow, I am of the opinion that in all the circumstances the search carried out in this case was reasonably necessary to ensure the safety of the police and the public.

(b) Application

44I begin with the observation that the trial judge found the search was analogous to the situation in Plummer. She stated:

In my view there is an equally compelling safety concern here. This was a fluid situation initiated by a 911 call and where every other detail checked out positive. It was a reasonable belief on the part of the officers that if the 911 caller was right about all the other details, he would be right about the gun also. [Emphasis added.]

45The trial judge's assessment of the evidence and findings of fact are entitled to substantial deference by a reviewing court: see R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 22-25.

46The appellant agrees the trial judge appropriately observed the police should be entitled to proceed on the basis that "the information derived from a 911 call is given bona fides unless and until shown otherwise." On appeal, the appellant also concedes the police had authority to conduct an investigative detention and common law authority to search his person and the cabin of his car. He submits, however, the trial judge erred "by resolving the matter based on the sincerity of the officers' subjective belief and not the objective reasonableness of their actions."

47As I understand the appellant's position, he does not take issue that three of the four Mann criteria were met in this case. I agree that three can be readily disposed of.

48First, the investigative detention was necessary. Based on the 911 call, "[the officers] were discharging their common law duty to preserve the peace, prevent crime, and protect life and property": Peterkin, at para. 61. As a result of confirmation of the specific information in the call, description of the car, licence plate, and description of the individual driving it, the police had reasonable grounds to suspect that the appellant was connected to a particular crime, possession of an illegal weapon, a gun, and his investigative detention was necessary.

49Second, the police had reasonable grounds to believe that their safety and the safety of the public was engaged and they were entitled to conduct a protective pat-down search of the appellant. In the particular circumstances, and in accordance with Plummer, they were also entitled to search the cabin of the car. That, says the appellant, is the extent of the search authorized by the jurisprudence and it is to this submission I will return.

50Third, the appellant does not submit that the manner in which the search was conducted was unreasonable.

51Fourth, there is also no issue that the investigative detention was brief. Here, after receiving the 911 call from dispatch at 8:23:10 p.m., the police were at the liquor store parking lot by 8:24:53 p.m., and they located the appellant only a few minutes later. The appellant was under arrest within sixteen minutes from the time of the 911 call.

52The appellant reads Mann as authorizing a pat-down search during an investigative detention for police safety, Plummer as an extension to the cabin of the car in very particular circumstances, and this case as attempting to extend a safety search to the entire car without the required confirmatory basis that existed in Plummer to extend such a search.

53In particular, the appellant submits the trial judge's reliance on Plummer is misplaced in three respects: (1) there was no confirmatory evidence from the pat-down search or the search of the car's cabin that a weapon existed; (2) once these searches were completed, no reasonable basis remained for a belief that the appellant had immediate access to a firearm; and (3) unlike in Plummer, where there had been a police safety alert and the car was in a high-crime area, here there were no specific articulated safety concerns. The appellant submits the search in this case did not involve a careful step-by-step approach, as was the case in Plummer. Rather, the police were focused on searching for a gun.

54I agree that this case has significant factual differences from Plummer. But these differences do not assist the appellant in his submissions. In Plummer, the police had no specific information that the accused was engaged in illegal activity (other than being parked illegally) at the time they approached his car. The officers' primary concern at the time of the investigative detention was for their own safety and thus it was only as each step they took confirmed their suspicions that the ultimate search of the bag in the vehicle pursuant to the investigative detention could be considered reasonable.

55Here, by contrast, the caller specifically asserted he believed he saw a gun in the possession of the person sitting in the driver's seat of the car, he saw a large bag in the open trunk, and he suspected the person in the car was dealing drugs in a public area. The officers were responding to a 911 call and Officer Cassidy testified that, as a police officer, he was concerned for public safety after reading the computer printout of the 911 call. The urgency and importance associated with a 911 gun call and its implications for public safety, cannot be ignored. In responding to the 911 call, the officers' concern was for the safety of the public as well as their own safety.

56The appellant's assertion that, in the absence of further confirmatory evidence, the jurisprudence precludes the police from searching the trunk of the car is really a narrow compartmentalized approach to the jurisprudence that does not accord with Mann.

57Mann holds that the officer "is required to act on reasonable and specific inferences drawn from the known facts of the situation." At the time of the 911 call, the caller specifically stated the trunk of the car was open and there was a large bag inside. Although the caller indicated he thought the person in the driver's seat had a gun in his pocket, he also indicated he could not explain or clarify exactly where the gun might be. When the officers approached the vehicle, the trunk was closed. The trial judge found the officers reasonably believed the person driving the car was probably the person who had closed the trunk. At para. 28 of her reasons she held:

I find that the officers reasonably believed that the person driving the car was probably the person who closed the trunk as there was no other individual involved. I find that they reasonably inferred that there could have been one or more guns in the car and that the gun that the caller believed he saw could have been moved to the pocket of the Asian male from the trunk or from the pocket to the trunk.

58In holding that the officers' belief was reasonable and that the inference they drew was a reasonable one, the trial judge was assessing their evidence objectively; she did not base her decision solely on the sincerity of the police officers' subjective belief as asserted by the appellant. Once the police had searched the appellant's person and the car's cabin, it was not an unreasonable inference that the gun might be in the trunk.

59Officer Cassidy testified that while the appellant was detained, he posed no threat to the officers or to public safety. He further testified, however, if the appellant had been allowed to drive away without his trunk having been searched, and if a gun was in the trunk, then a member of the public was "probably going to be … affected by it down the road." Although read on its own, the first part of P.C. Cassidy's testimony supports the appellant's submission that the police believed the immediate threat to public and police safety was over once the driver and body of the car had been searched, when the evidence is read in context and as a whole, it is apparent that while there was no immediate threat to the officers' safety, an immediate concern for the safety of the public remained. This concern was reasonable because had the police not searched the trunk of the car, and had the appellant been allowed to leave, he would still have had access to any firearm in the trunk simply by pressing a lever and re-opening the trunk. Although actual harm might only occur in the future, a present danger of harm existed that had not been dispelled. The only way the police could complete their duty to protect the public from the risk of harm was to search the trunk.

60The justifiability of police conduct in conducting a search also factors in the nature and extent of the interference with individual liberty: Simpson, at p. 499. In this case, the nature of the search, a search of the trunk of the appellant's car, was not demeaning to his dignity, integrity or individual autonomy.

61The appellant makes two final complaints about the trial judge's s. 8 Charter analysis.

62First, the appellant submits the trial judge failed to take into account the appellant's exculpatory statements in response to being informed he was under investigation because of a 911 call. However, the trial judge did note the appellant's exculpatory statements in describing the facts; she was alive to the appellant's statement as part of the circumstances. It is trite law that a trial judge need not refer to all of the evidence in giving reasons for a decision or ruling: see R. v. Newton (2006), 29 M.V.R. (5th) 11 (Ont. C.A.), at para. 3. I also note that in Godoy, the police were not obliged to act on the assurances of the person who answered the door.

63Second, the appellant is critical of the fact that the police did not question him further before engaging in their search. However, given the circumstances and the fact the detainee is under no obligation to respond to questions, the police were under no duty to question him.

64In summary, the appellant has not shown any error in the trial judge's findings and her conclusion accords with the existing jurisprudence. The officers' conduct meets the justifiability criteria. The officers acted in the course of their duty in responding to the 911 call, the extent to which there was an interference with the appellant's liberty – both in time and in scope – was limited and necessary in order to dispel the possible threat of serious injury or death to others. The importance of preventing serious injury or death to members of the public in not allowing the appellant to drive away until that threat was dispelled clearly outweighs the additional interference with the appellant's liberty and privacy interests.

65Importantly, this decision must not be read as condoning an unlimited search of a car for police or public safety purposes whenever there is an investigative detention. The jurisprudence makes it clear that it is the totality of the circumstances that must be considered in every case. It is a very factually-driven analysis.

(3) The cocaine was properly admitted as evidence under s. 24(2)

66In Grant, the Supreme Court held that a trial court must review and balance three lines of inquiry under s. 24(2): (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.

67The trial judge held that given the totality of the circumstances, the officers were acting bona fide in the discharge of their duties. The officers had an honest and reasonable belief they had the authority to search the car, including the trunk. The impact of the search on the Charter-protected interests of the appellant was diminished by his disclaimer that it was not his car and the relative emptiness of the car as judged by the officers' view of the passenger cabin. Further, the appellant had acquired physical possession of the car only a short time prior to the search. With respect to the third inquiry under Grant, the 23 kilograms of cocaine is physical and reliable evidence. Admitting it did not affect trial fairness; it was the crux of the Crown's case. On balance, the trial judge was not satisfied the administration of justice would be brought into disrepute if the cocaine was admitted as evidence.

68The appellant submits the cocaine found in his trunk should be excluded from evidence under s. 24(2). First, the breaches were serious. The police simply charged ahead to search for evidence suggested by the 911 caller without turning their minds to their authority to do so. Second, the impact of the illegal search on the appellant's privacy was serious. This court has held that individuals have a high expectation of privacy in a rental car: see R. v. Calderon (2004), 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 (Ont. C.A.), at para. 98. The s. 8 breach was aggravated by the s. 10(b) breach. Third, even if the evidence found in this case was reliable, this third inquiry under Grant cannot tip the balance in favour of admissibility: see R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 63.

69I would not give effect to these submissions for three reasons. First, the contention that the police charged ahead without considering their authority to act is simply not supported by the record. The trial judge's finding that the police acted in good faith is entitled to deference. Second, in terms of the privacy interest in a car, I note that in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 30, the Supreme Court of Canada commented that "motorists have a lower expectation of privacy in their vehicles than they do in their homes" because driving is a regulated activity and drivers are subject to stops for reasons pertaining to highway safety. As a result, "[t]he intrusion on liberty and privacy is less severe than it would be in the case of a pedestrian", however, it is "much more than trivial" and "must be weighed against the absence of any reasonable basis for justification": Harrison, at para. 31, citation omitted, emphasis in original. In this case, unlike Calderon in which the majority held there was no justification for any search, there was justification for an investigative detention and the search of the appellant's person and cabin of the car. Third, the trial judge's conclusion was sound and reasonable. It too is entitled to deference: see R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.

70Therefore, if there was a Charter breach, I would nonetheless uphold the trial judge's decision to admit the evidence.

F. Disposition

71For the reasons above, I would dismiss the appeal.

"K.M. Weiler J.A."

"I agree C.W. Hourigan J.A."

Pardu J.A. (Concurring):

72I agree with the majority that this appeal should be dismissed but for different reasons than those given by my colleagues.

73The police power of search incidental to investigative detention ought to be carefully circumscribed so that it does not undermine the protection afforded by s. 8 of the Canadian Charter of Rights and Freedoms. In my view, the search in this case was not authorized by law and therefore infringed the appellant's right to be free from unreasonable search and seizure. However, I agree with the majority that the evidence obtained from the search should be admitted under s. 24(2) of the Charter.

A. BACKGROUND

74I adopt the majority's statement of the facts of this case. However, I wish to highlight the nature of the 911 call to which Officers Warman and Cassidy were responding in this case.

75The call in this case, as relayed to Warman and Cassidy, stated that there was a person possibly armed with a gun in the parking lot near the liquor store at the Agincourt Mall, near Kennedy Road and Sheppard Avenue in Toronto. Dispatch sent a text message to the computer in the officers' car indicating the following:

• The complainant said he saw a large bag in the open trunk of the suspect's vehicle.
• The complainant said he believed he saw a gun while driving by in the occupant's pocket.
• The complainant could not explain or clarify exactly where in the car the gun may have been.

76The 911 complaint in this case was inherently frail. At trial, Cassidy testified that, in his experience, more than 50 per cent of 911 "gun calls" turn out to be unfounded. He was aware that a caller could mistake an object in a person's hand – such as a cell phone – for a gun. As the majority points out, in oral argument before this court the Crown conceded that the 911 call did not give Warman and Cassidy reasonable grounds to believe that the appellant was committing a firearms-related offence. At trial, the officers testified that they did not have such grounds. The call therefore did not establish the conditions for obtaining a warrant for the appellant's arrest for such an offence. That is why the search of the trunk of the appellant's rental car could not have been authorized by s. 117.02(1) of the Code.

77That said, the appellant was found in the same vehicle identified by the 911 complainant and matched the description of the suspect given by the complainant conceded. He conceded that the 911 call gave Warman and Cassidy reasonable grounds to suspect that the appellant was connected to a firearms-related offence and that, on the basis of those grounds, his detention was necessary in the totality of circumstances. His detention was therefore a valid investigative detention authorized at common law under the principles established in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34 and 45. What is in issue here is the extent of the search incident to investigative detention, that is to say whether the search that extended beyond a pat down search of the appellant's person, and beyond the cabin of the car, and into luggage in the trunk of the car was lawful.

78Against this background, I address the question whether the search of the appellant's car trunk by either Sgt. Gouthro or Warman infringed s. 8 of the Charter – namely, whether the search was authorized incident to the appellant's investigative detention.

B. ANALYSIS

(1) The Authorization for the Search Incident to Investigative Detention

(a) Legal Principles

(i) The Constitutional Framework

79Section 8 of the Charter provides: "Everyone has the right to be secure against unreasonable search and seizure."

80It is not contested that the search of the trunk of the appellant's car interfered with a reasonable expectation of privacy. In R. v. Calderon, (2004) 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 (Ont. C.A.), this court held that a person has a reasonable expectation of privacy in the trunk of a rental car, although the expectation is less than in a person's home or office. See also R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at paras. 19 and 38-39. Importantly, Laskin J.A. wrote in Calderon, at para 98, that "the expectation of privacy in a car's trunk, which is under lock and key, is greater than in the interior of a car, where items are ordinarily in plain view or easily accessible." The implication is that items in the trunk of a vehicle, including a rental car, are not in plain view or easily accessible by the occupants of the vehicle, unlike items in the passenger cabin of the vehicle.

81As a general rule, reasonable and probable grounds, established upon oath, to believe that an offence has been committed, and that there is evidence to be found at the place of the search, is the minimum standard consistent with s. 8 of the Charter where there has been an invasion of privacy. The need to balance the invasion of privacy against the government objective in conducting the search means that prior judicial authorization is required for a search. The goal is to prevent unjustified searches before they happen. Section 8 of the Charter gives priority to the right of the individual to be free from state interference. See generally Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.

82A warrantless search, like that which occurred in this case, is presumptively unreasonable. The Crown has the burden of establishing that it was reasonable because it was authorized by law, the law itself was reasonable and the manner in which the search was carried out was reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 23.

83In the present case, the Crown relies on common law authorization to search the appellant's trunk incident to the appellant's investigative detention under Mann. The trunk search did not violate s. 8 if it fell within the parameters established in Mann for a search incident to investigative detention.

(ii) Search Incident to Investigative Detention: The Decision in Mann

84In Mann, Iacobucci J. invoked the test for determining whether a police officer has acted within his or her common law powers developed in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), and Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, in order to define for the first time the circumstances in which a police officer may search a detainee incident to investigative detention. He held that the general duty of police officers to protect public safety gives rise to "the power to conduct a pat-down search incident to an investigative detention," stating that "the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk": para. 40. This power cannot, however, "be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition": para. 40. Iacobucci J. made the protective, safety-based rationale of the search power clear at para. 45, writing that "where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner."

(iii) The Scope of the Power to Search Incident to Investigative Detention

85This appeal raises the question whether the scope of a Mann-type search incident to investigative detention may extend beyond a protective pat-down of the detainee to other locations. The case law from this court, and from British Columbia, answers this question in the affirmative. I will discuss these jurisdictions before turning to American jurisprudence, which has explicitly addressed whether the police may search the trunk of an individual's vehicle incidentally to detaining him for investigative purposes.

Ontario Jurisprudence

86In Ellis, this court stated that, in Mann the Supreme Court did not pronounce a general rule that a protective pat-down search incident to an investigative detention can never extend to a search of the contents of the detainee's pockets. Hourigan J.A. wrote at para. 28:

Implicit in the court's holding was that, had the pat down search revealed a safety concern, the officers would have been justified in extending the search to the accused's pockets. Indeed, there would be no point in conducting the pat down search if, as suggested by the appellant, an officer cannot take further steps to protect his or her safety on having a reasonable basis for believing that there is a safety concern. [Citation omitted.]

See also R. v. Batzer (2005), 2000 C.C.C. (3d) 330 (Ont. C.A.), at para. 16.

87In Plummer, a police officer pulled over the accused, who was parked illegally and sitting in his vehicle with his girlfriend. A few weeks earlier, Peel Regional Police had issued an Officer Safety Alert in relation to the accused. The officer saw the accused attempt to hide something in the passenger side of his vehicle where his girlfriend was sitting. Based on this observation and the alert, he asked the accused to exit the vehicle and conducted a pat-down search on him. He felt that the accused was wearing a bulletproof vest. He then proceeded to search the passenger side of the vehicle and found a gun in plain view on top of an open bag on the floor of the passenger side. The accused was convicted of firearms-related offences.

88MacPherson J.A. wrote a minority concurring judgment concluding that the search of the bag in the accused's car incident to investigative detention did not infringe s. 8 of the Charter. He rejected the submission that such a search should be confined to the person of the detainee and should not extend to other locations. In his view, the animating principles behind the power to search incident to investigative detention are the detaining officer's safety concerns and the protective purpose of the search, not the location of the search. He stated, at para. 58:

If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity.

89MacPherson J.A. concluded that the officer's pat-down of the accused and the revelation of a bulletproof vest added to his safety concerns. This gave the subsequent search of the interior of the vehicle, where the appellant could have had a gun in his immediate reach, a further protective purpose consistent with the principles animating the power to search incident to investigative detention: see paras. 65-66.

90Sharpe J.A. wrote a majority concurrence in Plummer in which he endorsed the conclusion of MacPherson J.A. with respect to the validity of the search of the accused's vehicle interior, albeit with some trepidation. He held that the proposed extension of the power to search incident to investigative detention was narrow and modest enough to be justified on the facts of the case by "immediate concerns of officer safety" (para. 76), while still cautioning against an overly-broad expansion of common law police powers. He stated at para. 79 that the decision "should not be read as giving the police carte blanche power to permit searches of bags or vehicles incident to investigative detention. Such a search demands satisfactory proof of a serious concern for officer safety that requires something more than the initial pat-down."

British Columbia Jurisprudence

91A line of jurisprudence from the British Columbia Court of Appeal also establishes that a search incident to investigative detention may extend beyond a pat-down of the detainee's person if the more extensive search is objectively justified by compelling safety reasons. For example, in Sheck, at para. 54, the court wrote that "the scope of the permissible search has been modestly expanded from pat-downs of the person to include a search of fanny packs." It upheld a police search of the contents of an accused's satchel where the officer could see that the satchel looked "thick" and was emitting a smell associated with a firearm. See also R. v. Lal (1998), 1998 CanLII 4393 (BC CA), 130 C.C.C. (3d) 413 (B.C. C.A.), at para. 39, leave to appeal refused, [1999] S.C.C.A. No. 28; R. v. Thibodeau, 2007 BCCA 489, 247 B.C.A.C. 103, at para. 9; and Patrick, at para. 94.

92In Patrick, the court approved of the discussion of Ryan J.A. in the pre-Mann case of R. v. Ferris (1998), 1998 CanLII 5926 (BC CA), 126 C.C.C. (3d) 298 (B.C. C.A.), about how the factual context influences the assessment of the permissible scope of a search incident to investigative detention. Ryan J.A. wrote at paras. 54-55:

If the police have the duty to determine whether a person is engaged in crime or is about to be engaged in crime they should not be obliged to risk bodily harm to do so. It is my view that the police are entitled, if they are justified in believing that the person stopped is carrying a weapon, to search for weapons as an incident to detention. The question for the court must be whether the search was reasonably related in scope to the circumstances which justified the interference in the first place.

I have concluded that in proper circumstances the police are entitled to search for weapons as an incident to an investigative stop. The seriousness of the circumstances which led to the stop will govern the decision whether to search at all, and if so, the scope of the search that is undertaken. As Chief Justice Warren put it in Terry (at p. 905), the search must be "reasonably related in scope to the circumstances which justified the interference in the first place." Questioning an elderly shopper about a suspected shoplifting would not ordinarily require a search for weapons; questioning someone after a bank robbery might require a search of the detainee and his or her immediate surroundings. In other words, such a search can meet the reasonable necessity test depending on the circumstances.

93I take the suggestion of Ryan J.A. in Ferris to be that the objective reasonableness of the grounds relied on to justify a police search incident to investigative detention that goes beyond a pat-down of the detainee's person will be informed by the nature of the grounds invoked to justify the detention in the first place. The safety concern supporting the more extensive search may be founded on the reasons for the initial detention, in addition to facts uncovered during the course of an incidental pat-down search, as discussed by this court in Plummer and Ellis.

American Jurisprudence

94Canadian developments in the common law investigative detention police power, and the related power of incidental search, were influenced by the American jurisprudence on the Fourth Amendment of the U.S. Constitution, specifically, the "stop and frisk" doctrine established in Terry v. Ohio, 392 U.S. 1 (1968). Garland J. summarizes the law on Terry stops in United States v. Christian, 187 F.3d 663 (U.S. App. D.C. 1999), at p. 668:

In Terry, the Court held that police do not need probable cause to conduct a brief, investigatory stop of an individual if they are "able to point to specific and articulable facts which, taken together with rational inferences from these facts," give rise to a reasonable suspicion of criminal activity. The Court further upheld an officer's authority to search the individual for weapons where he has a "reasonable fear for his own and others' safety" based on an articulable suspicion that the suspect is armed and dangerous.

In Michigan v. Long, the Court … held that the scope of a Terry search may extend beyond the person of the suspect. The police, the Court said, may search "'the [suspect's] person and the area "within his immediate control" … mean[ing] the area from within which he might gain possession of a weapon.'" In Long, the Court found that area to include the passenger compartment of a car outside of which the defendant was standing, after he had driven the vehicle into a ditch and gotten out to meet the investigating officers. The search of the compartment was "limited to those areas in which a weapon may be placed or hidden." [Citations omitted.]

As Garland J. mentions, in Michigan v. Long, 464 U.S. 1032 (1983) the Supreme Court of the United States court established that, incidentally to a valid Terry stop, the police may conduct a safety-based search that extends beyond the person of the suspect and into areas of his car within the suspect's immediate control where the suspect could gain possession of a weapon.

95Two decisions of the United States Court of Appeals for the Seventh Circuit deal with the extension of the reasoning in Long to searches of car trunks. Valance v. Wisel, 110 F.3d 1269 (7th Cir. 1997), concerned a traffic stop for suspected impaired driving. The police officer saw a pellet gun in plain sight on the floor of the driver's side of the suspect's car. Thinking that additional weapons may be in the vehicle, the officer searched it, finding ammunition in the trunk. Rovner J. stated, at p. 1278: "The trunk search cannot be justified under Michigan v. Long because Valance would not have been able to gain immediate control of a weapon located there."

96In United States v. Arnold, 338 F.3d 237 (7th Cir. 2004), a police officer stopped the suspect for erratic driving and having a burnt out tail light. The officer saw him turn around, manoeuvre between the passenger and driver's seats into the back seat, either retrieve something from or place it in the back seat and return to the driver's seat. The officer asked him to step out of the vehicle and performed a pat-down search, which produced nothing. The officer then searched the entire vehicle. He pulled down an armrest in the backseat, which exposed a channel into the trunk of the car. There, he found a loaded handgun.

97The court stated at p. 240 that "the limited rationale for permitting a search under Long – safety concerns – constrains an officer to search only the locations that may contain a weapon and to which the motorist may have access." It noted that under American Fourth Amendment jurisprudence this accessibility criterion also restricts where an officer may search in a car incident to arresting a suspect: see New York v. Belton, 453 U.S. 454 (1981). According to the court, although the rationales for a search incident to arrest and Terry protective searches are distinct, their physical boundaries are not, extending to whatever the suspect has access to.

98The court went on to write at p. 240: "Although no court seems to have addressed the specific problem of a trunk that is readily accessible from inside the passenger compartment, we see no reason to distinguish this accessible area from any other." It noted that courts have held that the police can search incident to arrest secret compartments in the back seats of vehicles, locked glove compartments and cargo spaces of SUVs: "In analyzing whether these searches were permissible, these courts considered whether an item located in the area in question was generally, 'even if not inevitably,' within reach." The court held that the officer's search in the case at bar was a lawful one incident to a Terry stop. The court stated at pp. 240-241:

That the officer reached into the trunk while he was inside the car, by pulling down the armrest in the back seat, does not mean that his search automatically exceeded the boundaries delineated in Long. An officer armed solely with reasonable suspicion may not search the trunk of a vehicle when the motorist would not have been able to reach a weapon located there. Here, however, the area behind the armrest that opened into the trunk was generally accessible from the passenger compartment. Just as if the gun had been behind the back seat in a hatchback or in the covered cargo area of an SUV, Arnold could have gained immediate access to it through the armrest, even though the weapon was technically located in the usually protected realm of the trunk. Taking into account the purpose of the officer's search, it seems likely that in no more time than it would take a motorist to retrieve a weapon from a locked glove compartment, Arnold could have reached the handgun. Officer Ford's search of the trunk area behind the armrest did not exceed the permissible scope of a search under Long.

99There are of course significant differences in the American and Canadian jurisprudential cultures regarding firearms, but this line of cases illustrates how U.S. courts have limited the scope of search incident to investigative detention. The conclusion flowing from the cases appears to be that a car trunk is not a searchable area incident to a Terry stop. Generally speaking, nothing in the trunk of a car can be within the immediate control of the suspect. Therefore, there will generally be no immediate concern for safety on the part of the investigating officer if the suspect might later access the weapon in the trunk where his possession of the gun could in general, like possession of any gun, amount to a safety risk.

(b) Application to the Facts

100In concluding that in this case the police officers' search of the trunk of the appellant's rental car was authorized incident to investigative detention, the trial judge wrote as follows:

In my view, there is an equally compelling safety concern here. This was a fluid situation initiated by a 911 call where every other detail checked out as positive. It was a reasonable belief on the part of the officers that if the 911 caller was right about all the other details, he would be right about the gun also. It was a reasonable inference that if there was a gun, and if it was not on the defendant's person it was likely in the trunk. In the absence of either seizing the gun or verifying that there was no gun, there remained a reasonably held concern for officer and public safety.

The majority substantially agrees with this reasoning. It urges deference to the trial judge's findings of fact regarding the police officers' grounds for suspecting that the appellant's purported possession of a weapon posed a safety risk to them or the public: see R. v. Cornell, 2010 SCC 31, [2010] 1 S.C.R. 142, at paras. 22-25; and Plummer, at para. 21.

101The 911 caller in this case stated that the trunk of the suspect's vehicle was open. He indicated that he thought the occupant had a gun in his pocket but that he could not explain or clarify exactly where the gun might be. When the officers subsequently approached the appellant's vehicle, the trunk was closed. According to the majority, it was reasonable for the officers to believe that the appellant had been the one to close the trunk. It was not an unreasonable inference for the officers to make that once they searched appellant's person and found no gun, the gun might be in the trunk. They reasonably suspected that there was an immediate risk of danger to the safety of themselves or the public that justified searching the trunk for the gun. Had they not searched the trunk and confiscated the gun they suspected was there, and the appellant was allowed to leave the scene, the appellant would later be able to access any firearm in the trunk.

102I disagree with both the majority and the trial judge.

103Once no weapon was found on the appellant's person or inside the cabin of his vehicle within his accessible reach, no further immediate safety hazard existed; the appellant had no immediate access to his trunk and had no means to immediately retrieve anything from the trunk or from the luggage in the trunk that could pose such as hazard. Indeed, the central rationale for this court's statement in Calderon that a motorist has a higher expectation of privacy in the contents of the trunk of his or her vehicle than in the contents of passenger cabin was precisely that the latter but not the former are "easily accessible."

104By contrast, the majority's position that the immediate and present safety risk in this case was the potential for the appellant to drive away after the detention ceased and retrieve the gun from the inside of the luggage in the trunk strikes me as extending the scope of a warrantless search incident to investigative detention too far. A reasonable suspicion of an immediate safety concern capable of justifying a search incident to investigative detention must be grounded on the apprehension of a risk that is more physically or temporally imminent or impending than what is posited by the majority.

105For example, the imminence of the safety risk in Plummer that justified a protective search beyond the accused's person was that the accused may have had a gun in his immediate vicinity that could be used to endanger the detaining officer, and this only extended the search to the interior of the accused's vehicle. Sharpe J.A. stated at para. 77 that the circumstances gave the detaining officer authority to conduct search "because they gave rise to a legitimate serious concern that he had immediate access to a weapon that he could use if the officers were to simply release him and return to their own vehicle" (emphasis added).

106The majority's position also runs contrary to the American jurisprudence post-Terry. The American cases recognize that a search incident to a Terry stop does not extend to the trunk of a car because a suspect cannot gain immediate possession of an item in the trunk that could be used to pose an immediate risk to the safety of the detaining officer or the public.

107For these reasons, I conclude that the search of the appellant's trunk in this case incident to his investigative detention infringed s. 8 of the Charter because it was not authorized at common law under the parameters established in Mann.

(c) The Need for Judicial Minimalism in Developing the Power to Search Incident to Investigative Detention

108Before addressing s. 24(2) of the Charter, I stress that protective searches incident to an investigative detention must be narrowly confined. The need for judicial minimalism in this area is made clear by Sharpe J.A. in Plummer, at paras. 74-76:

R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 (S.C.C.) establishes "a limited power of protective search", defined, at para. 45, to be "a protective pat-down search of the detained individual." Mann represented a modest but significant expansion of police powers. No Canadian case extends that power to cover additional searches of vehicles or items in vehicles. Mann states, at para. 17, that the courts "must tread softly" when asked to expand police powers, and that the creation of new police powers is "better accomplished through legislative deliberation than by judicial decree". It was "for that very reason" that the Court refused "to recognize a general power of detention for investigative purposes" referring, at para. 18, to the need for the court to exercise "its custodial role" to control and constrain "the unregulated use of investigative detentions in policing … and the potential for abuse inherent in such low-visibility exercises of discretionary power."

The cautionary note sounded in Mann is rooted in the historic role of the courts, standing between the individual and the state, and reluctant to grant or recognize new police powers that encroach on individual liberty: see James Stribopolous, "The Limits of Judicially Created Police Powers: Investigative Detention After Mann" (2007) 52 Crim. L.Q. 299. In my view, we should follow Mann's caution in a case like the present, when we are asked to expand the scope of a search incidental to an investigative detention.

A search incidental to an investigative detention is defined and limited by the immediate concerns of officer safety. This reflects an important difference between the narrowly focussed and strictly limited protective search that may accompany an investigative detention, and the broader power to search consequent to a lawful arrest. It is necessary to maintain that distinction and to confine the scope of a search incidental to an investigative detention within strict limits. Here, the police did not arrest the appellant, presumably because they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon or some other valuable evidence. This is a tendency that the courts should resist.

109In particular, the court should resist any impetus towards invoking the Waterfield / Dedman test to create common law police powers incident to investigative detention that tend to erode the protections afforded to detainees by s. 8 of the Charter. That test involves a cost-benefit analysis that weighs individual liberties against the state's law enforcement interests in a manner that threatens to eclipse the very judicial balancing of privacy and state interests underlying s. 8 of the Charter. As Lebel J. noted in a dissenting opinion in R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 81:

The adoption of a rule limiting Charter rights on the basis of what amounts to a utilitarian argument in favour of meeting the needs of police investigations through the development of common law police powers would tend to give a potentially uncontrollable scope to the doctrine developed in the Waterfield-Dedman line of cases, which – and we sometimes forget such details – the court that created it took care not to apply on the facts before it (R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.)). The doctrine would now be encapsulated in the principle that what the police need, the police get, by judicial fiat if all else fails or if the legislature finds the adoption of legislation to be unnecessary or unwarranted. The courts would limit Charter rights to the full extent necessary to achieve the purpose of meeting the needs of the police. The creation of and justification for the limit would arise out of an initiative of the courts. In the context of cases such as those we are considering here, this kind of judicial intervention would pre-empt any serious Charter review of the limits, as the limits would arise out of initiatives of the courts themselves.

110Furthermore, the rule of law, and its edict that all state-citizen interaction must be regulated by law, suggests that the requirement that interferences with individual privacy must be authorized by law, that is, by fixed, preordained and ascertainable rules: see British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 58; and R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204, at paras. 1-3 and 32-35. A case-by-case, after-the-fact cost-benefit analysis using the Waterfield / Dedman test of whether a search was authorized by law leaves the limits of police offers' powers to intrude on privacy interests overly vague and provides little advance guidance for police or citizens as to those limits. This may well have negative consequences for Canadians' commitment to eradicating discrimination, according to sociological studies of police behaviour. Professor James Stribopoulos (now a Justice of the Ontario Court of Justice) pointed this out in "The Limits of Judicially Created Police Powers: Investigative detention after Mann" (2007) 52 Crim. L.Q. 299, at p. 313:

As James Skolnick warns, "… whenever rules of constraint are ambiguous, they strengthen the very conduct they are intended to restrain. Thus, the police officer already committed to a conception of law as an instrument of order rather than as an end in itself is likely to utilize the ambiguity of the rules of restraint as a justification for testing or even violating them." And, as a mounting body of empirical evidence would now seem to suggest, when these powers are abused, the effect is felt disproportionately by visible minorities, in particular African and Aboriginal Canadians. [Footnotes omitted.]

111Under the separation of powers, courts are not the best-situated institution for creating broad-ranging police powers, either in theory or in practice. Richard Jochelson takes note of the theoretical problem in "Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory" (2013) 43 Ottawa L. Rev. 355, at p. 376:

[The Waterfield / Dedman test] reserves a legislative function for the Court when the seat of police powers properly belongs in Parliament. [It] also situates the constitutional adjudication of those powers with the de facto legislative body (in this case, a court). The result is problematic for the principle of legality, embedded in the rule of law, but also creates problems with the human rights era approach to judicial decision making – an approach that situates the Court as a steward of thin constitutional principles.

LeBel J. also states in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 12:

The common law has long been viewed as a law of liberty. Should we move away from that tradition, which is still part of the ethos of our legal system and of our democracy? This case is about the freedom of individuals and the proper function of the courts as guardians of the Constitution. I doubt that it should lead us to depart from the common law tradition of freedom by changing the common law itself to restrict the freedoms protected by the Constitution under s. 8 of the Charter.

From a practical perspective, it is difficult for courts to weigh the competing interests in permitting searches incident to investigative detention based only on reasonable suspicion because courts will generally only see the cases in which a search revealed evidence of a crime. They thereby become subject to the distorting effects "hindsight bias," inclining towards concluding that a police officer's interference with liberty to obtain incriminating evidence is justified: Steven Penney, "Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule-making and the Problem of False Confessions" (2012) 57 Sup. Ct. L. Rev. (3d) 263, at p. 270.

112Thus, balancing the level of intrusion in the cases where no evidence is located against the furtherance of police objectives where evidence is found is a matter best suited to the legislature. Here the legislature has specifically spoken as to when police may search for firearms without a warrant in exigent circumstances, in s. 117.02 of the Criminal Code. The police here did not meet the requirements of that provision. Police powers of search incident to investigative detention should not be expanded beyond what is necessary to deal with immediate safety concerns.

(2) Section 24(2) of the Charter

113As stated at the outset, I agree with the majority in affirming the trial judge's alternative conclusion that the evidence of cocaine obtained from the trunk of the appellant's rental car should be admitted under s. 24(2) of the Charter.

114The trial judge found that the police delayed in advising the appellant of his right to counsel, but that this was a technical delay of about 90 seconds.

115Here the appellant concedes that the police had grounds for an investigative detention, a pat-down search and a search of the interior of the cabin of the car. The search here went further, but not by much. The officers did not understand that s. 117.02(1) of the Code did not grant authority to search the luggage in the trunk of the car. There has been little jurisprudence on the extent of a search incident to investigative detention, and, as the difference of opinion in this court demonstrates, perhaps that confusion is understandable. While there were frailties with the 911 call, and its inconclusive location of the gun possessed by the appellant, the appellant matched the physical description of the individual recounted and his vehicle and licence plate description matched the information given by the complainant. Police here were concerned that there might be a gun in the car. There is no indication of any racial stereotyping or ulterior purpose. All of the events unfolded in a time period of about three minutes in the context of a fluid and dynamic response on the street to a 911 call.

116The appellant's vehicle was a rental car. He had a reasonable expectation of privacy in the trunk, but, as the trial judge noted:

The absence of ownership interest in the car, the recent acquisition of possession and the relative emptiness of the car as judged by the passenger cabin would tend to diminish any impact on the defendant's privacy interests, and given the defendant's disclaimer of ownership of the car, I am of the view that the search of it did not impact on his dignity.

I agree with this assessment.

117Finally, the trial judge considered society's interest in an adjudication on the merits,

I turn finally to society's interest in an adjudication on the merits. I am not persuaded that the admission of the 23 kilos of cocaine in evidence would likely bring the administration of justice into disrepute. The evidence is real, or physical evidence and is completely reliable. I do not believe it will affect trial fairness. The evidence is the crux of the Crown's case and without it the prosecution will fall.

In the balancing the interests of truth seeking and an adjudication of the case on its merits against vindication of the Charter breach if there was one here, I am not satisfied that the long term repute of the justice system would be harmed if the cocaine were admitted into evidence.

I agree with the trial judge's conclusions that the long-term repute of the administration of justice would not be undermined by the admission of the evidence in this case. That may not be the case in the future as the jurisprudence develops as to the permissible extent of a Mann safety search.

C. DISPOSITION

118Accordingly, I would dismiss the appeal.

"G. Pardu J.A."

Released: August 17, 2017