Court File and Parties

Ontario Court of Justice

Date: 2013-10-07

Court File No.: London, 11-11613

Between:

Her Majesty the Queen

— and —

Tammie Lee-Ann Fletcher

Before: Justice A. Thomas McKay

Heard on: November 7, 2012 and August 21, 2013

Reasons for Judgment released on: October 7, 2013

Counsel:

• Judy Bielefeld, counsel for the Crown
• McKenzie McMillan, counsel for the defendant Tammie Lee-Ann Fletcher

MCKAY J.:

BACKGROUND

[1] Ms. Fletcher is charged with possession of cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act. The offence is alleged to have occurred on October 1, 2011. On that date, police received an anonymous phone call suggesting that Ms. Fletcher was at her residence, high on cocaine, waving a black handgun threatening to kill someone. As a result, police initiated a high priority call and a number of officers attended at Ms. Fletcher's residence. Police took custody of an individual who was in a vehicle in the driveway of the residence. Subsequently, Ms. Fletcher and another individual followed police directions and exited the residence. Police entered the residence and conducted a search. They located a quantity of cocaine, which is the subject matter of the charge.

THE CHARTER APPLICATION

[2] Ms. Fletcher filed an application under the Charter of Rights alleging that her right to be free from unreasonable search and seizure pursuant to section 8 had been violated. In addition, she alleged that her right to retain and instruct counsel without delay pursuant to section 10(b) had been violated. She asked that the evidence obtained as a result of those alleged violations be excluded from this proceeding.

THE EVIDENCE ON THE VOIR DIRE

Sergeant Corcoran

[3] Sergeant Patrick Corcoran has been a member of the London Police Service ("LPS") for more than 26 years. He has served in a number of capacities, including uniformed patrol officer, K-9 handler, drug unit member, training officer, member of the repeat offender unit, street supervisor, supervisor of the K-9 unit, and patrol supervisor. During his career, he has been involved in many high profile gunpoint arrests, particularly during his time with the repeat offender unit. In his experience, where there are drugs, there are often guns. LPS uses the phrase "a gun call" when they have information that firearms are involved in an incident. That is a code one, or highest priority call. Officers dispatched are to attend as soon as possible, using lights and sirens while traveling to the call.

[4] In the early morning hours of October 1, 2011, he was on duty from 12 a.m. to 8 a.m. in a supervisory capacity. Police received a priority emergency call. The unidentified caller advised that a female named Tammy Fletcher had a handgun at her residence. The caller indicated that Ms. Fletcher lived in the basement apartment of the residence. The caller further said that Ms. Fletcher was "on cocaine, out of it, and is a drug dealer". The caller informed police that Ms. Fletcher was waving a handgun, threatening to kill someone. The caller described Ms. Fletcher's clothing, and indicated that another individual named Todd was in the residence. Officers, including Sergeant Corcoran, received that report over the police radio. The details also appeared on the computer screens in the police vehicles.

[5] Sergeant Corcoran evaluated the information as having significant weight given the specific details provided in the call, which were beyond what one would normally expect. The level of detail suggested that someone had specific recent knowledge of the events occurring in the residence. That increased the credibility of the unknown caller. He received the call at 4:51 a.m. and proceeded to the scene as quickly as possible given the fact that it was a gun call. He arrived on scene at Ms. Fletcher's residence at 304 Phyllis Street at 4:55 a.m. Upon arrival, three or four other officers were already on scene. He saw those officers taking custody of an individual who had been sitting in a motor vehicle which was idling in the driveway of the residence. He approached the vehicle and turned off the engine and discarded the keys. Phyllis Street is a short, quiet dead-end street. He described the early morning hours of October 1st as cold, dark and noted that it had been raining earlier.

[6] On arrival, he ensured that officers had visual containment of the residence, and proper cover because of the firearm report. At the southeast corner of the residence he observed that the screen door was closed, but the inner door was open. After a few minutes, a female wearing clothing that matched the description given by the unidentified caller came to the screen door. For the benefit of the other officers, he yelled "contact". He ordered the female, ultimately identified as Ms. Fletcher, to exit the residence. Because of the exigent circumstances and the limited number of officers on scene, he also had to be the officer who physically took control of Ms. Fletcher. His practice is to handcuff the individual and provide a brief explanation as to why they are detained or arrested. At 5:02 a.m., he handcuffed her and arrested her "for a firearms investigation". After doing so, he asked Constable Corsaut to take control of Ms. Fletcher. Ms. Fletcher had told him that there was a male individual named Randy still in the residence. At that point, his priority was to get control of the other person in the residence and locate the firearm, for safety reasons.

[7] Sergeant Corcoran yelled through the door for Randy to exit. Sergeant Tebret was also yelling orders for Randy to come outside. Sergeant Corcoran indicated that in any situation similar to this, he could not accept as accurate the indication that there was only one other person left in the residence. There is always the possibility of an unknown, perhaps hidden person or an injured person. After a short time, the male known as Randy complied with the demands and exited the residence. He was taken into custody by another officer and removed from the scene. Both Randy and Ms. Fletcher were arrested at gunpoint.

[8] After the arrest of Randy, it was still necessary to determine whether anyone else was present in the residence and to locate the firearm reported to be in the residence. He, Sergeant Tebret and Constable Besley entered the residence to conduct a search. The residence was not large. He remained posted at the exterior door. At 5:12 a.m., Sergeant Tebret indicated that the residence was clear of other people. Sergeant Corcoran stepped into the residence. In his mind, he still did not assume that there were no other individuals in the residence. From his experience and training, someone could have been hiding and the other officers may have missed their presence. As the supervisor, he was responsible for everyone's safety and would always conduct the final search himself. He indicated that there was an overwhelming smell of cannabis in the residence. In his experience, firearms are often present in situations where drugs are present. He saw clear plastic baggies, which appeared to be packaging material, in plain view on the kitchen table. He checked a virtually empty kitchen cupboard over top of the refrigerator and saw small amounts of cannabis and psilocybin. He placed those items on the kitchen table with the baggies.

[9] Sergeant Corcoran heard Constable Besley call for him to look at something. He proceeded to one of the bedrooms where Constable Besley pointed to an item in plain view on the dresser. It was what appeared to be a compressed white powder contained in a clear container which was filled with rice. It seemed odd to Sergeant Corcoran that such an item would be left haphazardly on the dresser. In his experience, it did not add up. If it was cocaine, it was a high-value item, weighing something in the range of 12 to 14 grams. Because he found it strange, he wanted to ask Ms. Fletcher what the substance was. Because of the odd way in which it was stored, he thought it possible that the item could have been something other than cocaine. The contents of the bedroom were consistent with the bedroom belonging to a woman.

[10] Sergeant Corcoran went outside to see Ms. Fletcher. Ms. Fletcher was seated in the back seat of a police car. He confirmed with her and Constable Corsaut that Ms. Fletcher had been read the standard police caution. Ms. Fletcher appeared distraught, upset and shocked. He asked Ms. Fletcher what the white substance was on the top of her dresser. She responded by saying that it was cocaine, approximately 10 grams, and that several people had chipped in to buy it. He also asked her about cash that he observed in the bedroom. Her response was that she did not have a bank account. Ms. Fletcher kept asking him if she could be released on a warning. She then raised an issue about the legality of the police entering her residence without a warrant. He had a conversation with her about exigent circumstances.

[11] Another officer performed a test on the white substance. It tested positively for cocaine. That gave him grounds for an arrest of Ms. Fletcher on the CDSA charge. He told other officers to seize any drugs which were in plain view and to arrest and caution Ms. Fletcher on the CDSA charge. He did not recall ever personally advising Ms. Fletcher of the right to counsel at any point. His focus was on searching the residence for the firearm before clearing the residence.

[12] Sergeant Corcoran indicated in cross-examination that he did not carry out a search of the other rooms of the house after viewing the cocaine. He indicated that at that point, he was satisfied with the other officers having carried out the search of the other rooms. He also indicated in cross-examination that he never gave consideration to applying for a search warrant with respect to the residence. In his view, he was satisfied that he had a lawful right to enter the residence as a result of the information which had been received to that point. It was an issue related to public safety and concern for the possibility of other people in the residence with a firearm.

Constable Besley

[13] Constable Gordon Besley has been a member of LPS for 13 years. He is currently a K-9 officer. During the early morning hours of October 1, 2011, he was on duty in full uniform with his K-9 partner. He had been in an area close to 304 Phyllis Street on a previous call. He was dispatched to a gun call at 304 Phyllis Street. He received essentially the same information that Sergeant Corcoran received. On arrival, he took up a containment position with his K-9 partner on the north side of the building, with an angle to view the front of the residence. Other officers dealt with a male individual in the motor vehicle in the driveway.

[14] At one point, Ms. Fletcher exited the residence. Shortly thereafter, the male named Randy exited the residence. He placed his K-9 partner back in his police vehicle and assisted with the entry and search of the residence. The purpose was to search for other people and unsecured firearms. He entered the bedroom on the left side in the rear of the apartment. He visually cleared the room, the closet and under the bed. In plain view in a glass container on the dresser was an item which appeared to be a controlled substance under the CDSA. The clear jar contained rice, and on top of the rice was a white substance in rock form wrapped in plastic wrap. The bedroom contained female clothing in the closet. The item was in plain view, clearly visible on the top of the dresser. He considered the information contained in the original call related to cocaine use, and called Sergeant Corcoran. Other officers took control of the substance. He had no dealings with Ms. Fletcher.

[15] In cross-examination, he agreed that upon initially entering the residence, he saw no signs of struggle, no signs of blood. The two sergeants on the scene had made the decision to enter the residence based on exigent circumstances to search for other individuals, including possibly injured individuals, and unsecured firearms.

Constable Corsaut

[16] Constable Amanda Corsaut has been with LPS for approximately 4 ½ years. She was on uniformed duty on October 1, 2011, and responded to the gun call at 304 Phyllis Street. She received the same information that other officers had received. Upon her arrival, she was directed to maintain a perimeter on the north side of the residence. At 5:02 a.m., Sergeant Corcoran requested over the radio that an officer attend to take control of Ms. Fletcher. She took custody of Ms. Fletcher and took Ms. Fletcher to her police vehicle. Ms. Fletcher was placed in the rear seat of the vehicle at 5:04 a.m.

[17] At the time she took control of Ms. Fletcher, she had been advised by Sergeant Corcoran that Ms. Fletcher was detained for a weapons investigation. Accordingly, she informed Ms. Fletcher that she had been detained for a weapons investigation and she read the standard police caution from her duty book to Ms. Fletcher. Ms. Fletcher indicated that she understood the caution. She did not advise Ms. Fletcher of the right to counsel because her understanding was that Ms. Fletcher was detained rather than arrested and that she had no obligation to advise Ms. Fletcher of the right to counsel upon detention. She testified that she now knows that she should have advised Ms. Fletcher of the right to counsel. Ms. Fletcher indicated to her that the residence did not contain a gun and that the police entry to the residence without a search warrant was illegal. She had a brief conversation with Ms. Fletcher regarding exigent circumstances. She remained in the front seat of her police vehicle with Ms. Fletcher seated in the rear. There was no further conversation with Ms. Fletcher. At approximately 5:45 a.m., Constable Wilson attended and took custody of Ms. Fletcher, as Constable Corsaut was nearing the end of her scheduled shift. When Constable Wilson took control of Ms. Fletcher, he indicated that he would be advising Ms. Fletcher of her right to counsel.

[18] In cross-examination, she agreed that prior to Constable Wilson taking control of Ms. Fletcher, Sergeant Corcoran attended at the rear door of her police vehicle and had a conversation with Ms. Fletcher. She has no recollection of the substance of the conversation between Sergeant Corcoran and Ms. Fletcher and she did not make any notes related to that conversation. She agreed that if Sergeant Corcoran had advised Ms. Fletcher of her right to counsel, she would have made a note to that effect.

Constable Wilson

[19] Constable Wilson has been a member of LPS for seven years. He was one of the officers who attended the gun call at 304 Phyllis Street. On arrival, he took the position on the northeast corner of the residence. He heard commands being issued for people to exit the residence and he observed a male complying and exiting the residence. He followed other officers into the residence to conduct a search for firearms and possibly injured people. He understood that people had exited the residence, but the search was carried out for safety reasons. He searched a bedroom on the right in the rear of the residence. He saw nothing out of the ordinary. The officer in the bedroom across the hall indicated that he had located drugs.

[20] Constable Wilson attended that bedroom and assisted with the search. In a drawer in the nightstand he found a clear plastic bag with magic mushrooms inside. He observed what he assumed to be cocaine in plain view on the dresser. He was instructed to seize all of the drugs. He took drugs outside of the residence and sorted out what had been found, by location. At approximately 5:45 a.m. he took control of Ms. Fletcher from Constable Corsaut, advised her of her right to counsel and cautioned her, advised her that she was detained for a weapons investigation and placed her in the rear of his police vehicle. Another officer approached and advised him that the suspected cocaine had tested positive and that Ms. Fletcher was to be charged with possession of cocaine. He advised Ms. Fletcher of the CDSA charge and again, advised her of her right to counsel and cautioned her at 6:06 a.m. She indicated that she understood.

[21] The defence elected not to call evidence on the voir dire.

ISSUES

[22] The defence challenges the right of the police to enter the residence and conduct a search. Entry to the residence was without a warrant and is therefore prima facie unreasonable, with the onus on the Crown to show, on a balance of probabilities, that the search was reasonable.

[23] The defence takes the position that the statement made by Ms. Fletcher to Sergeant Corcoran at the vehicle, acknowledging that the dresser belonged to her and that the substance was cocaine, was obtained through a violation of Ms. Fletcher's section 10(b) rights.

[24] The defence position is that if Ms. Fletcher's rights under the Charter were breached as alleged, the evidence obtained through those breaches should be excluded.

THE ENTRY TO AND SEARCH OF THE RESIDENCE

[25] Sergeant Corcoran made the decision to enter the residence. His evidence is that it was necessary to enter the residence to determine whether anyone else was present in the residence, and to locate the firearm reported to be in the residence. He testified that he believed that an accessible firearm was located in the residence. He felt that he was compelled to "search thoroughly for a firearm before turning the house over". His priority was to look for something that could cause harm. His goal was to clear the residence of people and then look for a discarded weapon. In cross-examination he indicated that, given the information that he had, he felt he had an obligation to enter the residence to ensure that there was no public safety risk present. He was aware that he was entering a private residence, but confident of his lawful right to enter in these circumstances. He felt that Ms. Fletcher's privacy right was overshadowed by public and officer safety concerns. He never considered applying for a search warrant prior to going into the residence because of public safety concerns, and concern for anyone who might be in the residence.

[26] Given the entry to the residence without a search warrant, the search of the residence is presumed to be unreasonable, and accordingly the crown has the onus, on a balance of probabilities, to show that the search was reasonable within the meaning of section 8 of the Charter. A search will be reasonable if it is authorized by law, if the law itself is reasonable and the manner in which the search was carried out is reasonable.

[27] In certain situations, warrantless searches are authorized by law. The Crown takes the position that this is a classic case of exigent circumstances which justified police entry into the residence, and the subsequent search. The Crown refers to the Supreme Court of Canada decision in R. v. Godoy, [1999] 1 S.C.R. 311, which deals with the scope of police powers to enter a residence when responding to a 911 emergency call. Godoy dealt with a situation in which there was a disconnected 911 call. The court pointed out that in such circumstances it was not only reasonable, but imperative, that the police assume that the caller is in some distress and requires immediate assistance. In the court's view, to act otherwise would seriously impair the effectiveness of the system and undermine its very purpose. "The police duty to protect life is therefore engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call was disconnected before the nature of the emergency can be determined". Further in the decision, the court noted that even within that context, there are limits to the police power.

"The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident's privacy or property."

[28] In Godoy, the court also referred to the accepted test for evaluating the common-law powers and duties of the police, as set out in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.). The test provides that if police conduct constitutes a prima facie interference with that person's liberty or property, the court must consider the following two questions:

1. Does the conduct fall within the general scope of any duty imposed by statute or recognized at common law, and;

2. Does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty?

[29] The defence takes the position that, given that the only information available to the police was provided by an anonymous caller calling from an unknown location, the police did not have authority to enter the residence. Further, having entered the residence and determined that no one else was present, the police were required to leave the residence and obtain a warrant to search the residence, rather than seizing any evidence which was in plain view.

[30] In R. v. Kelsey, 2011 ONCA 605, [2011] O.J. No. 4159, the Ontario Court of Appeal discussed police powers with respect to exigent circumstances. The court referred to the codification of the common law power to search for evidence in exigent circumstances.

"The common law power to search for evidence in exigent circumstances has largely been codified since the enactment of the Charter. As the trial judge noted, s. 487.11 of the Criminal Code authorizes a warrantless search by a peace officer if the conditions for obtaining a warrant under s. 487(1) (the normal search warrant provision) or s. 492.1(1) (the tracking warrant provision) exist "but by reason of exigent circumstances it would be impracticable to obtain a warrant". Similar provisions exist in s. 117.02 for search and seizure of weapons and in s. 11(7) of the Controlled Drugs and Substances Act."

[31] The Court went on to state the following at paragraphs 29 and 30 of the decision.

"Cases since the enactment of the Charter that have considered exigent circumstances as a basis for searching for evidence or contraband appear to have assumed that grounds to obtain a warrant were required… A distinct line of cases has developed using the Waterfield test, which I will discuss below. However, it seems to me that at least when considering the loss or destruction of evidence, the exigent circumstances doctrine should be confined to cases where the officer had grounds to obtain the prior judicial authorization but could not do so because of the risk of imminent loss or destruction of the evidence."

[32] Continuing with its analysis of the Waterfield test, with respect to public and police safety, the court commented:

"A second set of exigent circumstances that appears to have been recognized is where there is a concern for the safety of the public or the police. The parameters of the power to search without warrant in such circumstances appear somewhat vague except where they been codified as in s. 529.3(2)(a) and this common law power has largely been overtaken by the Waterfield doctrine. In any event, even in this context, something close to reasonable grounds appears to be a prerequisite for a valid search."

[33] As a general comment, the court pointed out that exigent circumstances are extraordinary and should be invoked to justify violation of a person's privacy only where necessary. In discussing the doctrines of exigent circumstances and the Waterfield test, the court pointed out in paragraphs 51 and 52 that:

"The two doctrines can, in some circumstances, be related and even overlap, in my view, it is preferable to keep them distinct in determining whether police conduct is justified… The two doctrines are meant to address different concerns and are context-specific. Reasonableness in the exigent circumstances doctrine rests primarily on the fact that the officer did have grounds to obtain prior judicial authorization. The fact that it is not feasible to obtain a warrant merely sets the scene for possibly engaging the exigent circumstances doctrine, it does not justify the search. While there is a vague and ill-defined basis for search in exigent circumstances involving officer or public safety, even then there must be some reasonable basis for the search. Reasonableness in the Waterfield context rests on the reasonable necessity of the police action. Again, the fact that officers were acting generally in the course of their duties merely sets the scene; but it is only one half of the test that must be met. By combining the two doctrines in taking only certain elements from each, the core safeguard of reasonableness may be lost."

[34] Turning to the facts of this case, the police were reacting to a 911 call from an anonymous caller. There is no indication in the evidence that the call came from inside the Fletcher residence. The information provided by the caller was quite detailed and specific, enhancing its credibility in the eyes of the police. The caller indicated that Ms. Fletcher was in the basement apartment that she resided in waving a handgun, threatening to kill someone. The caller indicated that she was on cocaine, was out of it and, was a drug dealer. The caller described her clothing and indicated that there were drugs in the residence and that there was a male named Todd at the residence.

[35] When the police attended, they detained a male who was sitting in a vehicle which was idling in the driveway of the residence. After being ordered out of the residence, Ms. Fletcher appeared in the doorway, wearing clothing which matched the description provided by the caller, and exited the residence. Upon being taken control of by the police, she indicated that a male named Randy was still inside the residence. Shortly thereafter, Randy exited the residence in accordance with police commands and was detained. The police then entered the residence, ostensibly on the basis that they needed to determine whether anyone else was in the residence and whether a firearm was accessible.

[36] In examining the totality of circumstances known by the police at the time of entry to the residence, one looks at the information provided by the anonymous caller. The caller's description of Ms. Fletcher portrayed her as unstable, as armed, and high on cocaine. The only information which the caller provided regarding other people in the residence was presence of a male named Todd. The police made observations at the scene prior to their entry to the residence. A male seated in the vehicle idling in the driveway was detained. On command, Ms. Fletcher exited her residence. She was wearing clothing similar to the clothing described by the caller. There was no evidence that Ms. Fletcher appeared to be high on any narcotic, nor was there evidence that she was behaving in an out-of-control fashion. She informed the police that a male named Randy was still in the residence. Randy exited when commanded to do so by police. There was no evidence that there was anything unusual about his appearance or demeanour.

[37] The difficulty of evaluating the information provided by an anonymous caller is obvious. This is not a situation in which there is evidence that the 911 call originated from Ms. Fletcher's residence. The observations of Ms. Fletcher's conduct and mental state when she was detained were not consistent with the caller's information. There was no evidence to suggest that the appearance or demeanor of Randy suggested a problem in the residence. At that point, given the totality of what the police knew, in my view, they would not have had grounds to obtain a search warrant to enter the residence to search for evidence. Therefore, they would not have met the test to enter the residence to search for evidence in exigent circumstances as outlined in R. v. Kelsey, supra.

[38] However, the stated rationale of the police for entry to the residence related to possible presence of other people and the possible presence of the firearm, and the corresponding threat to the safety of both public and the police. Given the comments of the Court of Appeal in R. v. Kelsey that in exigent circumstances related to a concern for the safety of the public or the police, something close to reasonable grounds appears to be a prerequisite for a valid search, I find that the totality of information available to the police fell short of constituting something close to reasonable grounds. Therefore, there was not a reasonable basis for the search. Accordingly, the police could not justify exigent circumstances as the basis for entry to the residence.

[39] The issue of whether entry can be justified pursuant to police common-law powers as defined by the Waterfield doctrine remains. As indicated, that requires a two-step analysis. The first step is to determine whether the conduct of the police involved a justifiable use of powers associated with that duty. The next stage of the Waterfield doctrine is to determine whether the police conduct involved an unjustified use of police powers in the circumstances. In R. v. Simpson, 79 C.C.C. (3d) 482, Doherty J.A described what is meant by a justifiable use of police powers as follows:

"The 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."

[40] The police had no alternative but to respond to the emergency call from the anonymous caller. There was detailed information which implied some current knowledge of the situation in the residence. The police attended the residence and took control of the individual outside, Ms. Fletcher, and Randy. Some of the observations they made were not consistent with some of the information provided by the caller. The facts of this case differ in one significant respect from the facts in many of the reported cases that deal with 911 calls. In this situation, there is no evidence that the call originated from the Fletcher residence. However, the call provided the level of detail which the police viewed as unusual and suggestive of recent knowledge. When the police established visual contact with Ms. Fletcher, her clothing appeared to be similar to the clothing described by the caller. The observations of the police related to the condition and demeanor of Ms. Fletcher at the time of her detention was not consistent with the description provided by the caller.

[41] The entry to the residence constituted a prima facie interference with Ms. Fletcher's property. The danger in this type of fact situation is that, by claiming that a firearm is present, potentially any anonymous call opens the door to one's residence to the police. However, I accept that the priority concern of the police related to whether there were other individuals in the residence, and whether there was a firearm accessible in the residence.

[42] Given all of the information available to the police, and Sergeant Corcoran's experience as a police officer, there was some basis for concern related to the safety of members of the public and the police. If there was another individual in the residence with access to a firearm, the risk and potential consequences were significant. If there was an injured person inside the residence who needed help, the risk and potential consequences were significant. At that point, there was no other reasonable alternative to alleviate these concerns short of entry to the residence. Therefore, I find that the conduct of the police in entering the residence to look for other individuals and a readily accessible firearm fell within the general scope of their common-law duties and was a justifiable use of the powers associated with that duty. At that point, their authority to be inside the residence was limited to those concerns, and did not extend to searching for other evidence.

[43] Given that their entry to the residence for those limited purposes was justified, the next issue is whether the seizure of the cocaine, which was in plain view, was lawful. A general description of the law related to plain view seizures is outlined at page 670 of The Law of Search and Seizure in Canada, (eighth edition).

"Plain view" occurs when items fall into the view of an officer who has a right to be in the position he is in to have the view that he has had; and such items have been held to be subject to seizure.

When an officer finds such evidence-contraband, stolen property or crime evidence-unexpectedly in the course of his duties, in circumstances where it is at once obvious and visible without positive action on the officer's part to make it observable, he has the right to seize it…. The prior intrusion may be pursuant to a warrant, a valid warrantless search or a search incidental to arrest…. As set out in R. v. Spindloe, the plain view doctrine is, in reality, a power to seize, not a power to search, and as such cannot be extended to those items that are not visible.

[44] Constable Besley was justified in searching the bedroom for other individuals or an accessible firearm. The cocaine was visible on the top of the dresser without him taking any positive steps to view it. Accordingly, he was entitled to seize it.

RULING ON THE SEIZURE OF COCAINE

[45] In view of the foregoing, the Crown has satisfied its onus in establishing the reasonableness of the search of the residence which resulted in the seizure of the cocaine. Accordingly, the evidence related to the seizure of the cocaine is admissible.

THE SECTION 10(b) ISSUE

[46] Section 10(b) of the Charter provides the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. The informational component includes the right to be informed of any applicable systems of duty counsel and legal aid. That does not mean that an accused need instantly be informed of this right upon arrest or detention. The immediacy of the obligation is subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law. The use of the word detention in this section is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel.

[47] In this situation, Ms. Fletcher was advised that she was detained with respect to a gun investigation. She was handcuffed and placed in the back seat of a police car. She remained in the back seat of the car in the presence of an officer for a significant period of time. Sergeant Corcoran attended the vehicle after a significant period of time and questioned her regarding the nature of the substance found in a bedroom of the residence. Ms. Fletcher responded by providing an inculpatory statement. This was clearly a situation in which she was detained within the meaning of this section and she might reasonably require the assistance of counsel. The evidence of Constable Corsaut was that she mistakenly believed that she was not obligated to inform Ms. Fletcher of the right to counsel. There was a clear failure on the part of the police to inform Ms. Fletcher of her rights under section 10(b) of the Charter. The police had an obligation not only to advise Ms. Fletcher of her right to counsel, but to also curtail questioning until Ms. Fletcher had either exercised her right to speak to counsel, or waived her right to do so. The inculpatory statement provided by Ms. Fletcher was obtained in a situation which violated her Charter right.

SECTION 24(2) ANALYSIS

[48] Ms. Fletcher has established an infringement of her Charter rights with respect to the statement provided to Sergeant Corcoran when she was seated in the back seat of the police car. The statement is to be excluded if it is established that, in all of the circumstances, the admission of the statement would bring the administration of justice into disrepute. In determining whether evidence should be excluded, the court must examine the following three lines of inquiry:

1. The seriousness of the Charter infringing state conduct — the more severe or deliberate the state conduct, the greater the need for courts to disassociate themselves from that conduct, by excluding evidence linked that conduct, in order to preserve public confidence in, and ensure state adherence to, the rule of law;

2. Impact of the breach — to what extent did the breach actually undermine the interests of the accused protected by the infringed right? The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute;

3. Society's interest in the adjudication of the case on its merits — will the truth seeking function of the criminal trial process be better served by admission or exclusion of the evidence? Reliability of the evidence and its importance to the crown's case are relevant at this stage.

[49] There is a presumptive general, but not automatic, exclusion of statements obtained in breach of the Charter. Ms. Fletcher was cautioned upon being detained. The police were no longer in an emergency situation after they had secured the residence. After being cautioned, Ms. Fletcher was handcuffed and detained in a police car for a significant period of time. A highly experienced police officer questioned her under those circumstances on the core issue related to the laying of the charge, specifically the nature of the substance and its location in the house. The failure of the police to ensure that section 10(b) of the Charter was complied with was a serious violation of Ms. Fletcher's constitutionally guaranteed right. The conduct of the police had a serious impact on the protected right. Ms. Fletcher was unable to make a meaningful informed choice related to her section 10(b) rights, and in fact responded by making an inculpatory statement.

[50] With respect to society's interest to a fair trial on the merits, that line of inquiry normally involves some assessment of the reliability of the statement. A detainee deprived of the right to counsel may make statements that are based more on misconceived ideas how to get out of their predicament than the truth. In this situation, Ms. Fletcher was asking the police whether she could be released on a warning. Her desire to be cooperative in the hopes of receiving a warning may have impacted the reliability of her statement.

[51] On balance, I am satisfied that the admission of the statement made by Ms. Fletcher would bring the administration of justice into disrepute. Accordingly, that statement is excluded from the evidence.

Released: October 7, 2013

Signed: "Justice A. Thomas McKay"