CITATION: R v. Shankar, 2007 ONCA 280
DATE: 20070417
DOCKET: C45242
COURT OF APPEAL FOR ONTARIO
GILLESE, BLAIR and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Gillian Roberts for the respondent
(Respondent)
- and -
COREY CHANT SHANKAR
Gary J. Grill for the appellant
(Appellant)
Heard: March 8, 2007
On appeal from the convictions entered on October 19, 2005 by Justice Gordon P. Killeen of the Superior Court of Justice.
GILLESE J.A.:
[1] Mr. Shankar was convicted of two counts of possession of a loaded prohibited firearm, possession of a prohibited device, driving while disqualified, and public mischief.
[2] The convictions stem from an incident on October 25, 2004. Constables Bullick and Ordronneau were on routine patrol at 2:29 a.m. when they noticed Mr. Shankar’s car being driven without its tail lights illuminated. They pulled the car over and asked Mr. Shankar for his licence, registration and insurance. Mr. Shankar provided a driver’s licence in the name of Jason Singh, a yellow post-it note on which insurance information was handwritten, and a photocopy of the vehicle registration. The photocopied registration was unusual because it contained a handwritten bill of sale.
[3] When asked to spell the name on the licence, Mr. Shankar spelt the name “Sing” rather than “Singh”. He also gave the wrong unit number of his ostensible address. Constable Bullick knew the address that was given as a possible crack house and Mr. Shankar, who looked familiar to Bullick, fit the description of a crack dealer operating from that address. Mr. Shankar also claimed to live at the address with his mother but Constable Bullick believed that no one fitting the mother’s description lived at the address. In addition, Mr. Shankar explained that he was on his way to a night club; however, the club in question usually closed at 2:00 a.m.
[4] Constables Bullick and Ordronneau then arrested Mr. Shankar for attempting to mislead them about his identity. They had to physically remove Mr. Shankar from his car, at which time he told them they were not allowed to search the car. When they patted him down for weapons, they discovered that he was wearing two bullet proof vests. He explained that he needed them because people “want to kill me”.
[5] The police officers secured Mr. Shankar in the back seat of the police cruiser. Constable Bullick then searched the car and found a semi-automatic hand pistol together with a fully loaded thirty-round ammunition clip in the trunk, and a hunting knife and a fully loaded nine-shot revolver in a shoulder holster in the locked glove box.
[6] Mr. Shankar did not testify or call any evidence at trial.
[7] The main dispute at trial was whether the police were permitted to search the car, incident to arrest. The trial judge was of the view that the officers could have sought a search warrant quickly and without creating security issues. “They chose not to do so and I believe the extended search was not reasonably necessary in the circumstances.” On that basis, he concluded that the search constituted a breach of s. 8 of the Charter. However, he found that Constables Bullick and Ordroneau acted in good faith throughout and he admitted the guns into evidence pursuant to s.24(2) of the Charter.
[8] Mr. Shankar appeals from conviction. He argues that the guns ought not to have been admitted pursuant to s. 24(2). He contends that the police officers were ignorant of the scope of their powers and that such ignorance would preclude a finding of good faith and increase the seriousness of the breach. On this view, he contends that the admission of the firearms would bring the administration of justice into disrepute.
[9] The Crown asks this court to reconsider the s. 8 issue, arguing that the search flowed from the lawful arrest and was constitutional and proper.
[10] For the reasons that follow, in my view, the trial judge erred in concluding that the officer’s search violated the appellant’s right under s. 8 of the Charter and I would dismiss the appeal.
SECTION 8
[11] The common law power to search incident to arrest endures under the Charter. The power flows from a legal arrest, and there need not be separate reasonable and probable grounds that the search will yield evidence or weapons. However, the scope of the power is constrained by its source, the legal arrest. The main purposes of search incident to arrest have been articulated by the Supreme Court of Canada as follows:
to ensure the safety of the police and the public;
to prevent the destruction of evidence; and,
to discover evidence of the offence or offences for which the accused was arrested.
See R. v. Caslake (1998), 1998 838 (SCC), 121 C.C.C. (3d) 97 at paras. 15-25 (S.C.C.) and Cloutier v. Langlois (1990), 1990 122 (SCC), 53 C.C.C. (3d) 257 at 270-278 (S.C.C.).
[12] In order for a search to be incidental to an arrest, the police must have one or more of the valid purposes in mind when the search is conducted, and there must be some reasonable basis for the belief that the purpose will be served. In Caslake, Chief Justice Lamer stressed that this is not a standard of reasonable and probable grounds but, rather, a common sense observation that an objective or purpose cannot be valid if it is not reasonable to pursue it in the circumstances. In making this observation, the Chief Justice cautioned that “[t]he police have considerable leeway in the circumstances of an arrest which they do not have in other situations” (para. 20).
[13] There does not appear to be any issue that the appellant was lawfully arrested for attempting to mislead the police about his identity. Both police officers testified that they subjectively believed that they had grounds to arrest the appellant on this basis and there was ample objective justification for the arrest.
[14] Nor is there any doubt that the search was truly incidental to the arrest. The search of the car flowed directly from the lawful arrest and was prompted by the nature and circumstances of the arrest.
[15] In his testimony, Constable Bullick explained that he had two purposes in searching the car: to attempt to find documentation as to Mr. Shankar’s true identity and, out of a concern for public safety, to search for weapons. Having lawfully arrested the appellant for attempting to mislead the police, it was proper to check the car for documents pertaining to his true identity. Furthermore, the circumstances of the arrest and taking the appellant into custody gave rise to real concerns about safety, which made it appropriate to check the car for weapons. The officer’s concern about public safety arose from the bullet-proof vests that the appellant was wearing, the appellant’s comments about people wanting to kill him, the time of night, and the fact that he believed that the appellant was involved in the crack cocaine trade.
[16] While a fairly extensive search of the vehicle was conducted in this case, in my view, it was reasonable in the circumstances. Those circumstances, as set out in para. 14 of the Crown’s factum, include the following:
• The search followed a determination by Constable Bullick that it was merited in order to locate weapons and/or discover evidence as to the appellant’s true identity.
• It was conducted pursuant to valid state objectives, i.e. public protection and the discovery and preservation of evidence which could be located at the scene of the arrest, and not for any oblique or improper motive.
• The search was relatively non-intrusive. It began with an inspection of the interior of the car, under the seats, and proceeded logically from there to the trunk and the glove box.
• There is a diminished expectation of privacy in a motor vehicle.
• There was nothing abusive in the manner in which the search was conducted. No damage was done to the car, no individuals were interfered with, and the seizures were selective and related to the purpose of the search.
• Immediately upon finding the first gun, the Emergency Task Force was called so as to properly secure the guns and make them safe.
[17] A consideration of the full circumstances of the case leads me to conclude that the search flowed directly from the lawful arrest and the circumstances of the arrest and was proper. Accordingly, in my view, the trial judge erred in finding the search constituted a breach of s. 8 of the Charter.
SECTION 24(2)
[18] In light of the foregoing conclusion, strictly speaking there is no need to go further and consider s. 24(2) of the Charter. Having said that, had it been necessary to decide the matter, I see no basis on which to interfere with the trial judge’s determination of this issue.
[19] The trial judge articulated and applied the correct legal principles in his s. 24(2) analysis. The appellant’s only real quarrel is with the trial judge’s conclusion that the police officers acted in good faith, which he considered as a component of the seriousness of the Charter breach. He argues that once the trial judge found that the police officers could have proceeded by way of obtaining a search warrant, he erred in failing to find that the breach was wilful and an act of bad faith.
[20] I disagree.
[21] In reaching his finding of good faith, the trial judge stated:
I am entirely satisfied that these officers engaged in sound and good‑faith‑based investigative practices in their dealings with the accused even though their ultimate decision to search the vehicle without a warrant went too far.
They [the police officers] legitimately stopped the accused and did not indulge thereafter in hectoring conduct with the accused as they attempted to get his explanation for his presence on the road and who he really was. Looking at everything they did, notwithstanding the ultimate breach, I conclude they acted in good‑faith throughout. If what they did could not be characterized as good‑faith police work, it seems to me the good‑faith criterion would become a dead letter of our law. As well, overall, I cannot conclude that this breach was anywhere near the upper level of seriousness. The accused’s expectation of privacy could not be high here within the context of time and place….
[22] A reviewing court will not interfere with a trial judge’s conclusions in respect of s.24(2) absent an error of law or principle, or an unreasonable finding. Deference is particularly important in the context of assessing the seriousness of the breach, which depends on factors generally established though testimony, such as the good faith of the police. See R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 at paras. 32-38 (S.C.C.) and R. v. Buhay (2002), 2003 SCC 30, 174 C.C.C. (3d) 97 at paras. 42-47 (S.C.C.).
[23] In my view, there is no basis for interfering with the trial judge’s determination that the police officers acted in good faith. He made no error in law and deference is owed. The officers testified about their purposes in searching the car and how these purposes were related to the arrest. In the circumstances, their belief that they were permitted to search the vehicle was reasonable. This is unlike R. v. Clayton (2005), 2005 16569 (ON CA), 194 C.C.C. (3d) 289, in which this court held that the officers’ failure to consider the liberty interest of persons detained at a roadblock, and the failure of the police force to teach them to consider those interests, brought the administration of justice into disrepute. Here, one of the police officers testified to having received training about search incident to arrest and the officers reasonably believed they had the grounds to proceed with the search. Even if there is some question about the extent of such a search, this does not detract from the fact that they understood the principles underlying such searches. Moreover, in light of the trial judge’s findings, it cannot be said that they disregarded the appellant’s rights.
DISPOSITION
[24] Accordingly, I would dismiss the appeal.
RELEASED: April 17, 2007 (“EEG”)
“E. E. Gillese J.A.”
“I agree R. A. Blair J.A”
“I agree S. E. Lang J.A.”