Court of Appeal for Ontario

Date: 2023-05-29 Docket: C69539

Benotto, Miller and Coroza JJ.A.

Between:

His Majesty the King Respondent

and

Ersan Buakasa Appellant

Counsel: Chris Rudnicki and Theresa Donkor, for the appellant Andrew Hotke, for the respondent

Heard: September 16, 2022

On appeal from the conviction entered on April 23, 2021 by Justice Alison J. Wheeler of the Ontario Court of Justice.

Coroza J.A.:

I. INTRODUCTION

[1] On November 23, 2019, the appellant was driving on the 401 Highway towards Toronto when a police officer stopped him for speeding east of Gananoque. It was just before 7 p.m. and dark outside. Two children (the appellant’s cousins) were in the car. The car the appellant was driving was not insured and the police officer decided to exercise his common law power to impound the car. He called for a tow transport driver to take the car to the impound yard in Gananoque, and to drive the appellant and the two children to a hotel or a Tim Hortons restaurant. During the stop, the police officer also contacted a Waterloo police officer because the appellant was flagged on CPIC. That officer provided certain details about the appellant’s history and told him that it was “likely, very likely” that there was a pistol in the vehicle or a “good probability” that the appellant was armed. A subsequent search of the car revealed that a loaded gun and ammunition was hidden behind a panel on the passenger side of the console.

[2] At his trial for several firearm related offences, the appellant brought an application seeking to exclude the gun and ammunition from evidence on the basis that they were obtained in violation of his rights under ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.

[3] The Crown sought to justify the police officer’s warrantless search of the car as any of the following: (i) an authorized search under the Cannabis Control Act, 2017, S.O. 2017, c. 36, Sched. 1; (ii) an inventory search pursuant to the common law impounding of the car for lack of insurance; and (iii) a safety search.

[4] The trial judge found that the only applicable justification for the police officer’s warrantless search of the car was as a stand-alone safety search. She concluded that on the totality of the circumstances, the police officer’s duty to protect public safety was acutely at issue, and that the officer was justified in his decision to search the car for a gun before allowing the appellant and the children to leave with the tow truck driver. Accordingly, the trial judge found no violation of ss. 8 and 9, finding that the same factors that justified the safety search of the car justified his detention at the roadside while that search was being carried out. While the trial judge found breaches of ss. 10(a) and (b), she did not exclude the firearm and ammunition pursuant to s. 24(2).

[5] The appellant appeals, and renews his argument that the gun and ammunition should have been excluded by the trial judge. The Crown argues that the trial judge properly dismissed the Charter application because the search of the car did not violate the appellant’s s. 8 right. However, the Crown submits that in addition to a safety search, the search of the appellant’s car was also authorized as an inventory search and the trial judge erred by concluding, in the circumstances of this case, that the inventory search was not authorized by law. It requests that this court correct that part of the trial judge’s ruling.

[6] The trial judge gave compelling and comprehensive reasons in dismissing the appellant’s Charter application. The trial judge was right to find that the search of the car was a lawful and justified safety search; the appellant was not arbitrarily detained at the roadside during that search; and despite the breaches of the appellant’s ss. 10(a) and 10(b) rights, the gun and ammunition should not be excluded pursuant to s. 24(2). In light of my conclusion relating to the safety search, it is not necessary to deal with the Crown’s inventory search argument. I would dismiss the appeal.

II. BACKGROUND FACTS

a) The Traffic Stop

[7] On November 23, 2019, Cst. Sinclair of the Ontario Provincial Police (“OPP”) caught the appellant driving at a speed of 140 km/hr westbound on the 401 Highway, east of Gananoque. Cst. Sinclair pursued the appellant and queried the appellant’s licence plate, which indicated that the plate stickers for the car had expired, and the status of the appellant’s vehicle insurance was “unconfirmed”. Cst. Sinclair initiated a vehicle stop at the side of the highway.

[8] The appellant was accompanied by two child passengers, his cousins, one of whom was not wearing a seatbelt properly. Cst. Sinclair informed the appellant that he was speeding and asked for his documents. When the appellant opened the glove box to retrieve his documents, Cst. Sinclair testified that he observed marijuana debris in the glove box and a “very clear” odour of marijuana. He also testified that the appellant seemed nervous.

[9] Cst. Sinclair then returned to his cruiser to confirm whether the appellant’s insurance documents were valid and prepare tickets for speeding, the seatbelt infraction, and the expired licence plate sticker. When he learnt that the insurance was invalid, he contacted his dispatcher to have the vehicle towed away.

b) CPIC Information and Information from the Waterloo Regional Police Service

[10] Cst. Sinclair received CPIC information that indicated that the appellant was under surveillance, and to contact a particular officer of the Waterloo Regional Police Service “ASAP” if the appellant were arrested. The information was dated April 24, 2019, seven months prior. Cst. Sinclair contacted the phone number provided for the Waterloo officer.

[11] Cst. Sinclair testified that the Waterloo officer told him there was “likely, very likely” a pistol in the vehicle and there was a “good probability” that the appellant was armed with a handgun. The Waterloo officer also informed Cst. Sinclair that the appellant had been involved or was present in two prior shootings and that the appellant had “deep gang involvement”. The conversation with the Waterloo officer gave Cst. Sinclair a “high level of suspicion” that the appellant had a gun. Cst. Sinclair testified that he did not have reasonable grounds to believe that the appellant was in possession of a gun before he searched the car; if Cst. Sinclair believed he had such grounds, “then we would be at either investigative detention or arrest.”

[12] Following his conversation with the Waterloo officer, Cst. Sinclair requested his dispatcher to send a second officer.

c) The Search of the Car

[13] Cst. Nickerson arrived on the scene. The officers then directed the appellant and the two children to exit the car, because the vehicle was going to be impounded. Cst. Sinclair testified that he told the appellant he could smell marijuana in his car. The appellant testified that he did not have marijuana in the car, and although he uses marijuana, he does not do so or allow others to do so in his car.

[14] Cst. Sinclair then conducted a search commencing at the front passenger door. He testified that he noticed that a corner of the carpet was peeled back in the passenger footwell. He then shone his flashlight into the footwell and observed that a panel on the passenger side console was not properly in place. Cst. Sinclair testified that he touched the panel to see what was behind it, and the panel fell off without the application of any force. When the panel fell off, Cst. Sinclair immediately saw the butt of a handgun and a white sock. This entire search took approximately a minute before the gun was found.

d) Subsequent Arrest and Search of the Car

[15] The appellant was subsequently arrested at 7:38 p.m. and was informed that he was under arrest for possession of a handgun in a motor vehicle and for unauthorized possession of a handgun, that he had the right to a lawyer and the right to remain silent. Cst. Sinclair told the appellant he would explain these to him in a few minutes.

[16] After the appellant’s arrest, Cst. Sinclair took Cst. Nickerson to the car to show him the gun. Cst. Sinclair removed the gun from the console and the sock from the compartment. Cst. Sinclair ejected the magazine and racked it to remove a chambered round. The sock contained ammunition. Cst. Nickerson testified that when he bent down to get a closer look at the glove box, he could smell raw marijuana.

[17] Cst. Nickerson then returned to the appellant at 7:47 p.m. and read the formal caution and right to counsel from his police issued card.

[18] A search of the car was also conducted at the OPP detachment. Cst. Nickerson testified to there being a stronger odour of marijuana at the rear of the car but nothing was found to account for the smell. Suspected marijuana residue was collected from the crease of the glove box.

III. THE TRIAL JUDGE’S RULING

[19] As noted above, the Crown at trial argued that the search was authorized by law: (1) under the Cannabis Control Act; (2) as an inventory search incident to the car being impounded at common law; and (3) as a safety search.

[20] The trial judge did not accept that the search was authorized by either of the first two sources. The trial judge found that while Cst. Sinclair’s evidence was credible, the evidence of a faint smell was not enough to establish objectively reasonable grounds to search the car under the Cannabis Control Act, in the absence of other meaningful indications that marijuana was being transported in contravention of that Act.

[21] While the trial judge held that Cst. Sinclair had the authority at common law to have the car towed to an impound lot for not having insurance: see R. v. Waugh, 2010 ONCA 100, 251 C.C.C. (3d) 139, she held that the car could not be lawfully searched for inventory purposes, as the car was impounded pursuant to common law rather than under the Highway Traffic Act, R.S.O. 1990, c. H.8, or other statutory authority. The trial judge rejected the Crown’s argument that the common law power to impound must include an incidental power to conduct an inventory search, because she believed she was bound by authorities from the Supreme Court and this court’s decision in R. v. Ellis, 2016 ONCA 598, 132 OR (3d) 510, which states that “an inventory search of a vehicle will not be authorized by law and will therefore be unconstitutional where there is no statutory authority invoked for the search”.

[22] Having held that the search was not lawful either under the Cannabis Control Act or as an inventory search, the trial judge considered whether it was authorized for public safety reasons based on the information from the Waterloo police officer.

[23] While the evidence revealed that Cst. Sinclair did not have reasonable grounds to believe that the appellant was in possession of a gun before he searched the car, Cst. Sinclair stated that he had a “high level of suspicion about a gun” and thought there was a “good chance” that there would be a gun in the vehicle.

[24] The trial judge held that it was irrelevant that Cst. Sinclair did not subjectively consider the search a stand-alone safety search at the time, as he testified that the extent and scope of what he considered an inventory search was driven by safety concerns. The trial judge reviewed R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, in depth, and the subsequent academic and judicial commentary as to “the standard that must be met to justify a safety search, and whether the standard is different depending on whether it is incident to investigative detention or not”. She instructed herself with respect to para. 41 of MacDonald, in which the Supreme Court of Canada referred to the earlier case of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, and held that a safety search will be authorized by law “only if the police officer believes on reasonable grounds that his or her safety is at stake, and that, as a result, it is necessary to conduct a search.”

[25] The trial judge concluded that the requirement for reasonable grounds to conduct a safety search was a lower threshold than grounds that would justify an arrest; while there must be safety concerns specific to the situation, they need not necessarily relate to the individual accused in the way that grounds for arrest would require. The trial judge concluded that MacDonald “does not create a different test for a safety search where the search is not tied to investigative detention”. Rather, it was “an application of the same general principles that apply to safety searches incident to detention”. Applying this interpretation of MacDonald, the trial judge found that there was sufficient danger to the public to justify a safety search in this instance. Viewing the totality of the circumstances, including the “immediate and serious” public safety concerns that arose if the appellant had a gun in the car, she agreed with Cst. Sinclair’s assessment that he would have been “negligent not to search the car for a firearm.”

[26] The appellant also argued that his s. 9 rights were breached as the enhanced detention during the search of the car was arbitrary and without any legitimate basis. The trial judge found that the detention was incident to a necessary safety search, and as such it was not arbitrary or illegitimate.

[27] The trial judge did find that that there was a breach of the appellant’s ss. 10(a) and 10(b) rights for a few moments during the search after the appellant was directed to get out of the car so that it could be searched for a firearm. At that time, the nature of the detention changed, but the appellant was not told of the reason for the enhanced detention or informed of his right to counsel. However, the police officers did not seriously question the appellant or extract evidence during this time.

[28] Because she found breaches of ss. 10(a) and 10(b), the trial judge proceeded to conduct a Grant analysis respecting the firearm and ammunition found in the search: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The trial judge also undertook the analysis as though the appellant’s s. 8 had also been breached, in the event she was wrong in her determination that the search of the car was justified based on the common law police power to conduct a safety search. She concluded that the breaches was relatively minor, and the evidence gathered significant and highly reliable, such that she would not have excluded the evidence in any event. [1]

IV. ISSUES

[29] On appeal, the parties raise the following issues:

1. Did the trial judge err in finding that the search of Mr. Buakasa’s vehicle was justifiable as a safety search?

2. Was Mr. Buakasa’s detention an infringement of his rights under s. 9 of the Charter?

3. Should the firearms and ammunition obtained be excluded under s. 24(2) of the Charter?

4. Did the trial judge err in finding that the police did not have the power to do an inventory search?

V. ANALYSIS

ISSUE 1: Did the trial judge err in finding that the search of Mr. Buakasa’s vehicle was justifiable as a safety search?

a) Standard of Review

[30] The trial judge’s finding that Cst. Sinclair was justified to search the car as a safety search is a question of mixed fact and law. She is owed deference in relation to her factual findings unless the appellant can show a palpable and overriding error. Whether or not those findings meet the relevant standard for a safety search is a question of law, reviewable on a correctness standard: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

b) Safety Searches

[31] In Mann, the Supreme Court of Canada recognized a common law police power to conduct a pat-down safety search incident to an investigative detention. The court found that the general duty of police officers to protect life gives rise to the power to conduct a safety search incident to an investigative detention only where the officer “believes on reasonable grounds that his or her own safety, or the safety of others, is at risk”: Mann, at para. 40. The search “must be grounded in objectively discernible facts to prevent ‘fishing expeditions’ on the basis of irrelevant or discriminatory factors”: Mann, at para. 43.

[32] As the trial judge properly noted, a safety search may in some circumstances extend beyond a pat-down search of the appellant’s person to include a vehicle or a bag: R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, at paras. 73-79; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 29-65.

[33] In MacDonald, the Supreme Court of Canada considered whether the police were authorized by law to conduct a safety search where they interacted with Mr. MacDonald at the doorstep of his home while he was not under arrest or investigative detention. The facts of MacDonald are instructive. Mr. MacDonald was in his Halifax condo with his co-workers. The concierge asked him to turn down the music, which he ignored. The police were called. A police officer attended and spoke with Mr. MacDonald. He swore at the officer and slammed the door. Another officer, Sgt. Boyd attended. When Mr. MacDonald opened the door “about 16 inches”, Sgt. Boyd saw something “black and shiny” that was in his right hand, in shadow, and partially hidden by his right leg. Sgt. Boyd believed the item might be a knife. Sgt. Boyd pushed the door open a few inches and saw a handgun. The police subsequently forced their way into the unit.

[34] The majority in MacDonald then went on to describe the standard required to conduct a safety search, at para. 41: “the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search”. The majority found that the common law power to conduct a safety search was engaged “because Sgt. Boyd had reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat”: MacDonald, at para. 44.

[35] In concurring reasons, Moldaver J. and Wagner J. (as he was then) queried the majority’s conclusion, at paras. 39 and 44, that officers are “only empowered to conduct ‘safety searches’ where they have reasonable grounds to believe an individual is armed and dangerous”: at para. 66. The concurring reasons read the majority as departing from the reasonable suspicion standard established in Mann; officers may conduct safety searches “when they have reasonable grounds to suspect an individual is armed and dangerous”: at para. 66.

c) The Appellant’s Arguments

[36] The appellant’s first submission on this ground of appeal is that the trial judge erred in finding that there were objectively reasonable grounds for the search. Relying on the majority decision in MacDonald, the appellant argues that the standard to conduct a safety search requires that an officer have reasonable and probable grounds to believe there is an immediate threat to officer or public safety. The appellant points to Cst. Sinclair’s testimony at trial, where he acknowledged that he did not have reasonable and probable grounds to arrest the appellant for possession of a gun before he searched his car. As indicated above, Cst. Sinclair’s testimony was that he had a “high level suspicion” that the appellant had a gun. The appellant argues that more than suspicion is required for a stand-alone safety search.

[37] The Crown’s position is that the standard required to conduct a safety search is one of reasonable suspicion, as articulated in Mann, a standard which Cst. Sinclair met by a wide margin.

[38] The trial judge was well aware of this debate. As noted above, she reviewed the relevant jurisprudence, particularly MacDonald. The trial judge observed that the Supreme Court case law on safety searches has subsequently generated an abundance of judicial and academic commentary on the standard to be met for a safety search, and whether the applicable standard depends on whether the search is incident to investigative detention (as in Mann) or stand-alone (as in MacDonald).

[39] This court has similarly noted that the language used in MacDonald has given rise to confusion about what the appropriate standard is, and debate about whether there are two standards – for searches incident to detention and arrest, and free-standing safety searches: see R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191; and R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643. One view is the majority’s reasoning in MacDonald applies only to free-standing safety searches and does not apply to other contexts. Another view is that the majority in MacDonald did not recalibrate the test for any police safety searches from the the traditional reasonable suspicion standard: see R. v. McKenzie, 2022 MBCA 3, at paras. 38-40. Yet another is that the concurring opinion in MacDonald was correct that the standard for safety searches may indeed have been raised for all safety searches: see R. v. Del Corro, 2019 ABCA 156, at para. 49.

[40] The law continues to develop with the addition of two recent cases from the Supreme Court of Canada. In R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, the Supreme Court of Canada considered the appropriate standard for search incident to arrest in a person’s home. The police had lawfully entered Mr. Stairs’ home pursuant to exigent circumstances and placed him under arrest. The police then conducted a visual search of the basement and saw a bag containing drugs.

[41] In determining the relevant standard for search incident to arrest in a person’s home, the Supreme Court in Stairs noted that Mr. Stairs, on his appeal, had proposed a standard of “reasonable belief in imminent harm”, relying on MacDonald. The same standard had been endorsed by the dissenting judge of this court. In rejecting this argument, the Supreme Court used language that could be interpreted to suggest that MacDonald did change the standard for safety searches. It described the MacDonald standard as one of “reasonable belief in imminent harm”, noted that “because a search incident to arrest typically occurs at the early stages of an investigation, the police will often be unable to show reasonable and probable grounds”, and rejected an “imminence requirement”: Stairs, at para. 77. However, the majority in Stairs could be read to distinguish MacDonald not solely by reference to the fact that it involved a stand-alone search, but rather by a more holistic view of the respective appellants’ relative expectations of privacy. The Supreme Court of Canada held:

Importantly, Mr. MacDonald was not under arrest. He therefore retained a strong expectation of privacy in his home and the police required heightened grounds to justify entry – reasonable belief in imminent harm. In the present case, by contrast, the police had already entered the home under exigent circumstances and lawfully effected the arrest. Mr. Stairs’ expectation of privacy was thus significantly diminished.

The court went on to conclude that an imminence-based threshold, such as in MacDonald, is not required because setting the bar too high will prevent officers from taking immediate steps to address the risk to officer and public safety: at paras. 75-77.

[42] Another recent case from the Supreme Court of Canada suggests that the Court did create a different standard in MacDonald, but that this standard did not supplant the standard set out in R. v. Mann. The Mann standard remains applicable in some contexts. In R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at paras. 51-53; 60-64, the court relied solely on the standard set out in R. v. Mann to find that a safety search was a lawful search incident to investigate detention. It did not mention MacDonald or apply an imminence requirement where the appellant was lawfully detained as part of a traffic collision investigation.

[43] The addition of these two recent cases raises new questions with respect to whether different standards apply to different safety searches – and what circumstances distinguish their application. One theory has been advanced in Bruce A. MacFarlane, Croft Michaelson, Robert J. Frater, Drug Offences in Canada, 4th ed. (Toronto: Carswell, 2015):

Where does this leave us then when it comes to safety searches? First, it seems clear that the Supreme Court has not “recalibrated” the standard for safety searches articulated in Mann and Clayton. That standard, which is one of reasonable suspicion, simply applies to a different context than the one in MacDonald. Second, the appropriate standard will depend on the privacy interests at stake. If the police wish to enter a home without warrant to conduct a safety search, a place where there is a strong privacy interest, they must meet the standard articulated in MacDonald — a reasonable belief in imminent harm. However, safety searches in other contexts where the individual has a reduced expectation of privacy will be governed by a lower standard of reasonable suspicion of a risk to safety….

[44] The trial judge did not have the benefit of Stairs and Tim, which were each released after her decision. They may cast some doubt on her conclusion that MacDonald did not create two different categories of safety searches.

[45] However, it is not necessary to resolve the ongoing debate to decide this appeal. As I will explain, even assuming that the standard is the higher one advocated by the appellant and described in Stairs as a reasonable belief in imminent harm, this standard was met in this case.

[46] The trial judge found that the public safety concerns were “immediate and serious” and that Cst. Sinclair’s search of the car was “firmly rooted” in those public safety concerns. The trial accepted Cst. Sinclair’s testimony that his search of the car was motivated by concern for the tow truck operator and the children in the car.

[47] The trial judge noted the following constellation of circumstances:

(i) once the ticket was issued, the appellant would no longer be under police control;

(ii) the appellant and the children were presumably going to travel with the tow truck operator;

(iii) a gun is a valuable commodity, giving rise to a real concern that the appellant might take steps to retrieve it;

(iv) it would be reasonable to expect that the tow truck operator would need to access the interior of the car as part of the towing process, and that the tow operator would reasonably expect that police “would not expose him to a known risk of travelling with a person who had a gun that he might try to retrieve from the car”;

(v) the Waterloo officer, an officer involved in intelligence, had told Cst. Sinclair that the appellant had “deep gang involvement” and details of two prior incidents in which the appellant had been involved in or present at shootings in the past several months;

(vi) Cst. Sinclair was able to form a “high level of suspicion” that the appellant had a firearm; and

(vii) Cst. Sinclair came to a consensus with the Waterloo police officer that there was “a good probability” that the appellant had a gun in the car.

[48] While Cst. Sinclair testified that he did not have reasonable grounds to believe that the appellant was in possession of a firearm, he did have, on the totality of the circumstances, a reasonable belief that the safety of the tow truck driver, the children present and the public was at stake, because he believed that there was “a good probability” there was a gun was in the car. That threat to safety was imminent because that “present danger of harm” had not been dispelled at the road side: see Lee, at para. 59. I adopt the observations of the trial judge:

If Mr. Buakasa did have a gun in the car, the public safety concerns were immediate and serious. Cst. Sinclair was faced with making a choice between Mr. Buakasa’s expectation of privacy and the safety of the tow operator and anyone else whom Mr. Buakasa might encounter in a quest to regain control of a gun. I have concluded that Cst. Sinclair was correct to give priority to the safety concerns.

[49] In sum, on this record, it is clear that Cst. Sinclair had reasonable grounds to believe that there was an imminent threat to the safety of the public. When one considers the totality of the circumstances, as the trial judge did, including the high level of suspicion that the appellant had a gun, the good “chance” or “probability” that the gun was in the car, and that the appellant was going into Gananoque with the tow truck operator and two children, reasonable grounds to believe that there is an imminent threat to the safety of the public were made out. This conclusion is consistent with two previous cases of this court in Peterkin and McGuffie.

[50] This court considered MacDonald in Peterkin. The police received a blank 911 call. The police arrived at the scene but no one opened the doors of the unit. The officers waited to be let into the unit by the landlord’s security service. While waiting, they noticed Mr. Peterkin enter the backyard and use his phone. He was placed under investigative detention related to the trespass. Mr. Peterkin tapped his right hip at waist level twice. The officers suspected that he had a firearm. They advised that they would pat him down and he struggled to escape. A gun was found on his person.

[51] Watt J.A. declined to answer the question of whether MacDonald had recalibrated the standard to be applied to safety searches, because the evidence in that case satisfied the test as articulated in MacDonald: a reasonable belief an individual’s safety is at stake. On these facts, Watt J.A. found that the accumulation of factors fully supported a “reasonable belief” that officer safety was at stake. At para. 62, he held:

As the interaction with Peterkin continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the appellant’s pants. ‘Blading’ to obstruct their view of the appellant’s right side. Awkward receipt of the driver’s licence when the officers returned it to the appellant. An indication by the officers of a pat-down search for the officers’ safety. Resistance. An attempt to flee. Apprehension and only then a search. This accumulation of factors fully supported a reasonable belief on the part of the officers that their safety was at stake and justified the search.

[52] Similarly, in McGuffie, the police received a phone call that five men in a bar were passing around a handgun. Cst. Greenwood responded. He followed Mr. McGuffie, who the doorman identified as one of the five. Cst. Greenwood detained him because the officer believed he had a handgun. The officer testified to having a “belief” that Mr. McGuffie had a firearm and detained him for “public safety”. Cst. Greenwood then conducted a pat-down search. Nothing turned up in the search. Mr. McGuffie was placed in a police cruiser for 30 minutes. Cst. Greenwood came back, decided to conduct a more thorough safety search and found a package of cocaine, money, and marijuana. Mr. McGuffie was arrested.

[53] In addressing the pat-down search, Doherty J.A. found that the pat-down search was justified as incident to his investigative detention: at para. 51. Doherty J.A. found that Cst. Greenwood had “sufficient grounds to believe” there was an imminent threat to his safety. Doherty J.A. went on to add that this reasonable belief of an imminent threat could be based on the reasonable suspicion that the appellant had a handgun: at para. 52.

[54] The appellant’s second submission on this ground of appeal is that the trial judge erred in permitting the Crown to rely on a safety search power when Cst. Sinclair did not himself rely on it. The trial judge found that despite Cst. Sinclair’s testimony, safety concerns animated his decision to conduct the search:

Cst. Sinclair never asserted that he was doing a safety search separate and apart from the inventory search. However, in my view nothing turns on this because he was absolutely clear in his testimony that the reason he was undertaking such a detailed search of the car arose from the circumstances that included the impoundment, the fact that Mr. Buakasa and the children were going to travel with the tow operator, and his “high level suspicion” that there was a gun in the car. In my view, the substance of Cst. Sinclair’s evidence squarely calls for an assessment of whether he was authorized at common law to do a safety search of the car for a gun.

[55] I see no error. The law requires that Cst. Sinclair have both subjective and objective grounds for the search, and those grounds “must correspond – officers ‘cannot rely on the fact that, objectively a legitimate purpose for the search existed when that is not the purpose for which they searched’”: Stairs, at para. 128, quoting from R. v. Caslake, [1998] 1 S.C.R. 51, at para. 27.

[56] Here, the trial judge found that Cst. Sinclair subjectively believed that there was an imminent risk to safety; that that subjective belief was objectively reasonable, in all the circumstances; and that those grounds corresponded with the legitimate purpose of the search. While Cst. Sinclair did not explicitly rely on the common law power to conduct a safety search, the trial judge found that his testimony indicates that safety concerns were core and central to his decision to search the car: see also Tim, at paras. 55-64. The trial judge detailed this evidence in her reasons. I see no basis to interfere with her assessment of Cst. Sinclair’s evidence and I would not give effect to this argument.

[57] In conclusion, there is no basis to interfere with the trial judge’s finding that the appellant’s s. 8 rights was not violated.

ISSUE 2: Was Mr. Buakasa’s detention an infringement of his rights under s. 9 of the Charter?

[58] The appellant argues that if this court finds that the safety search was unlawful, it follows that his detention outside the car while Cst. Sinclair searched the car was also unlawful. As outlined above, Cst. Sinclair’s search of the car was not unlawful. It follows that the trial judge’s finding that the decision to ask the appellant to step out of the car was reasonably necessary and that it would not have been practical and safe to have the appellant remain in the car while Cst. Sinclair searched for a gun remains on firm ground. I do not understand the appellant to suggest otherwise.

ISSUE 3: Should the firearms and ammunition obtained be excluded under s. 24(2) of the Charter?

[59] Because she found a breach of ss. 10(a) and 10(b), the trial judge went on to consider the impact of these breaches, and she turned her mind to the three factors in the Grant analysis. The trial judge also conducted the assessment on the assumption that a s. 8 violation had been made out, and she found that if the search was unlawful, “there was a relatively serious intrusion” on the appellant’s privacy and liberty interests. Respectfully, I do not accept any of the appellant’s arguments regarding the trial judge’s s. 24(2) analysis. The trial judge’s decision to admit the evidence under s. 24(2) is entitled to deference from this court: Grant, at para. 86. Her findings are unassailable and her analysis discloses no error in principle, palpable and overriding factual error, or unreasonable determination. I find no reason to interfere with the trial judge’s analysis under s. 24(2) of the Charter and I adopt and note the force of the following observations made by her:

If the search of the car was done in violation of s. 8, I would still not exclude the evidence. Mr. Buakasa was driving a car with expired registration, without insurance, with two young children in the car and one of them not properly seat-belted, and he was driving at 140 km/h on the 401 in the dark. Even if the Waterloo information did not rise to the level of justifying a safety search, there was at least some basis for concern that Mr. Buakasa was carrying a firearm, and the police officer had to make a decision that implicated public safety without much time for reflection. Taking all those circumstances together, it is my view that public confidence in the administration of justice would not require exclusion of the evidence.

ISSUE 4: The Inventory Search

[60] Given my proposed disposition of the safety search issue, it is not necessary to deal with the Crown’s arguments relating to the inventory search.

VI. DISPOSITION

[61] For these reasons, I would dismiss this appeal.

Released: May 29, 2023 “M.L.B.” “S. Coroza J.A.” “I agree. M.L. Benotto J.A.” “I agree. B.W. Miller J.A.”

[1] The appellant testified that the gun was not his, but rather had been left in the car without his knowledge by a friend the previous evening. The trial judge rejected this evidence and convicted him of all of the firearms related offences with which he was charged. The appellant does not appeal any aspects of the trial judge’s findings respecting his substantive defence.