Court Information and Parties

Date: January 25, 2017

Information No.: 15/2427

Ontario Court of Justice

Her Majesty the Queen

v.

Sylvie Janine Arsenault, William Joseph Green and Stevie Ray Arsenault

Ruling

(Charter Application – Stevie Arsenault)

Before the Honourable Mr. Justice G.M. Hornblower

on Wednesday, January 25, 2017, at Sarnia, Ontario

Appearances

• M. Robb, Counsel for the Federal Crown
• L. Perzia, Counsel for Stevie Arsenault

Ruling

(Charter Application – Stevie Arsenault)

HORNBLOWER, J. (Orally):

Facts

On December 15th, 2015, officers from the Sarnia Police Services executed a warrant at the residence of the accused, Sylvie Arsenault. As the officers arrived to execute the warrant, two persons were seen to leave the residence and get into a car parked adjacent to the residence. Constables Howell and Vosburg immediately went to that car, removed the two men from the vehicle and then detained them.

Mr. Arsenault, one of the two men in the vehicle, was initially detained by Constable Vosburg, who quickly turned him over to Constable Halfpenny. That officer advised Mr. Arsenault of his detention, the reasons, provided him with his right to counsel. The officer then decided to conduct a search of Mr. Arsenault for officer safety. In furtherance of that, the officer asked Mr. Arsenault if he had anything on him that would be harmful to the officer as he conducted a pat-down search. Mr. Arsenault replied that he had some cocaine residue and a quantity of weed. With that information, Constable Halfpenny then arrested Mr. Arsenault for possession, handcuffed him and took him inside so that he could conduct a search incident to his arrest.

In conducting the search, Constable Halfpenny then located the drugs Mr. Arsenault advised he possessed. From this, Mr. Arsenault was charged with possession of cocaine as well as possession of cannabis marihuana for the purpose of trafficking. At the outset of the trial, the Crown conceded it would only be establishing simple possession on that charge.

Credibility Assessment

That overview of the evidence of Constable Halfpenny is at odds in a number of areas with the evidence of Mr. Arsenault. His evidence differs regarding what happened when he was removed from the vehicle, who detained him, whether his rights were given at that point and where the search was conducted.

Without delving further into the discrepancies, I accept the officer's evidence as to what transpired. Where Constable Halfpenny's evidence was capable of being confirmed by other officers, it was, particularly the evidence of Constable Vosburg.

Given Constable Vosburg's assigned role in the search, it is logical that he would turn Mr. Arsenault over to someone else as quickly as he could in order to get in the home in order to carry out his assigned task. Events unfolded quickly, something the officers would routinely experience. Mr. Arsenault had never been arrested before, and I accept that the speed with which events unfolded has created some confusion for him. Although he made notes, those notes were not made until four days after the fact.

Issues

Three issues arise on this evidence:

1. Was the investigative detention lawful?
2. Was the search lawful?
3. If either the detention or the search was unlawful, should the evidence be excluded?

The Detention

Police officers acting within the scope of their duties have the power to detain a person for investigative purposes if they have reasonable grounds to suspect the individual to be detained is connected to a particular crime, and that the circumstances necessitate the detention.

The evidence before me supports a finding that the detention was lawful. The officers were in the course of executing a valid search warrant relating to the presence of controlled substances at the residence of the accused. Mr. Arsenault had been seen arriving at the residence by Constable Halfpenny shortly before the search warrant was to be executed. While the officer could not give a precise time, he believed Mr. Arsenault had arrived at the residence about 15 minutes before the search team arrived. Mr. Arsenault was seen leaving the residence at nearly the same time as the search team arrived for the execution of the warrant. In those circumstances, it was reasonable to suspect that there was a nexus between Mr. Arsenault and the offence the officers were investigating.

The detention was lawful.

The Search

Unlike an arrest, a lawful detention does not automatically give rise to a right to conduct a search. Police officers can conduct a search for officer safety, incidental to an investigative detention where the officer believes on reasonable grounds that his or her safety, or the safety of others is at risk. As enunciated in Mann, Clayton and elsewhere, a vague or non-existent concern for safety is not a basis for a search.

Constable Halfpenny testified that his rationale for conducting a search for safety reasons was that Mr. Arsenault was not in handcuffs. No other basis for a concern for his safety was advanced to justify the search. If the mere absence of handcuffs were a sufficient basis to conduct a search for safety reasons, virtually every detained individual could be searched. There needs to be more. The belief in the presence of a drug, such as Fentanyl, that can be absorbed through the skin could, for example, give rise to a safety concern. That is not the situation here. The mere absence of cuffs does not rise to that level.

The basis for a concern here stands in stark contrast to that which existed in R. v. Peterkin, Ontario Court of Appeal decision, [2015] ONCA 8. There the police could articulate, based on their previous experience and what they observed before them, how the actions of the accused were consistent with those of someone trying to hide a weapon, thus giving rise to a concern for safety.

Constable Halfpenny testified to one other reason for conducting a search of Mr. Arsenault once he had detained him. For him it is a matter of practice in any detention. Such a practice, however, is not in accordance with the law and undermines any stated reason that he may have given for an officer safety concern.

There is no lawful basis for Constable Halfpenny to have conducted a search following his detention of Mr. Arsenault. In undertaking the search, the officer began by asking what, if anything, Mr. Arsenault might have on his person that could harm the officer. Mr. Arsenault turned over drugs or at least mentioned the drugs in response to that question, knowing he was about to be physically searched. The fact that the officer had not yet laid hands on Mr. Arsenault as part of the search is of no consequence. The officer had embarked on the search by asking that question. He had formed the intention to conduct a search and then asked the question. The inquiry was an integral part of the search and cannot be separated from the physical aspect of the search.

The search, I am satisfied, was unlawful.

Exclusion of Evidence

The Charter infringing State conduct is in these circumstances serious. The law on the propriety of a search for safety on an investigative detention is well settled and long-standing. Mann was decided in 2004. Notwithstanding that, the officer searched as part of a routine practice where he detains someone for investigative purposes. Such a practice raises a concern about a lack of understanding of the pre-requisites for conducting a search for safety. It is also indicative of a larger systemic problem. There is a strong need for the court to distance itself from that conduct.

As for the impact on the accused, the search was minimally intrusive, but it did result in the discovery of evidence.

The evidence found is reliable evidence. The societal interest in an adjudication on the merits would favour inclusion of the evidence.

Having found the infringement to be serious and one that requires the court to distance itself from the conduct, to admit the evidence would bring the administration of justice into disrepute. I come to this conclusion notwithstanding that the other two Grant factors favour inclusion, but it is never a case of two versus one.

It is a question of analysis as to the impact on the administration of justice, and I have concluded that the admission of the evidence in this circumstance would bring the administration of justice into disrepute.

The results of the search are therefore excluded from the evidence. In the absence of that evidence, the charges cannot be proven. They are dismissed.

Certificate of Transcript

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, Julie Hillier (Authorized Person), certify that this document is a true and accurate transcript of the recording of R. v. Stevie Arsenault et al in the Ontario Court of Justice held at 700 N. Christina Street, Sarnia, Ontario, taken from Recording 1711-CrtRm302-20170125-091310-6, which has been certified in Form 1.

January 30, 2017