COURT FILE NO.: CR-12-90000646-0000
DATE: 20130620
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARLON CARELSE-BROWN
Samuel Siew, for the Crown
Jordana Goldlist, for the Accused
HEARD: June 17, 18, 2013
R. F. Goldstein J.
REASONS FOR JUDGMENT ON CHARTER APPLICATION
[1] This is an application to exclude 25.3 grams of cocaine found in the underwear of Mr. Carelse-Brown. Mr. Carelse-Brown is charged with one count of possession of cocaine for the purpose of trafficking. The police found the cocaine in his underwear during the course of a strip search at a police station after arresting him during the course of a high-risk takedown. They had information that he was in possession of a handgun. After Mr. Carelse-Brown was arrested he was searched. The police found just under a gram of marijuana in his pocket, as well as cash totalling about $1600.00. They did not find a gun. He was arrested for possession of marijuana for the purpose of trafficking and for threatening and taken to the police station where he was subjected to the strip search.
[2] Ms. Goldlist, on behalf of Mr. Carelse-Brown, argues that the while the police had grounds for an investigative detention, they went too far when they arrested him and searched his pockets. They were only entitled, she argues, to conduct a pat-down search for safety purposes. They were not entitled to conduct the more intrusive search which led to finding the marijuana and the money, which in turn led to the arrest on drug charges, which in turn led to the finding of the cocaine in Mr. Carelse-Brown’s underwear.
[3] I disagree. The police had reasonable and probable grounds to arrest Mr. Carelse-Brown. They were entitled to do a complete search for weapons, including a search of Mr. Carelse-Brown’s pockets. Even if I am wrong in my conclusion, I still would not exclude the evidence under s. 24(2) of the Charter. The application is dismissed.
FACTS
[4] On February 6, 2012, shortly before 7 pm, Constable Dickie and Constable Verdoold were on patrol in 31 Division. They were in uniform and in a marked police cruiser. Constable Dickie was driving. Constable Verdoold was in the passenger seat. At 6:56 pm they received a “gun call” from a Toronto Police Service dispatcher. The officers received information that a silver Dodge sedan with an Ontario licence plate BMMH719 was travelling southbound on Keele Street in the area of Finch Avenue. The occupants were described as black men with light complexions wearing baseball caps. The information was from a private citizen who called the police.
[5] Constable Verdoold entered the licence number in the onboard computer system and received information that the vehicle with that licence number was four-door silver Dodge AXT – which Constable Verdoold believed was the code for a Dodge Avenger. The vehicle belonged to Enterprise Rent-a-Car. The vehicle was not flagged in the police system as suspicious. Constable Verdoold broadcast that information over his police radio.
[6] The police continued to receive updates from the dispatcher as to the route and location of the silver Dodge. It was clear that someone was following the silver Dodge and relaying that information to the police. There had been some kind of encounter at a Tim Horton’s at Sheppard Avenue and the Allen Road and the callers stated that they were threatened by the suspects in the silver Dodge. The extent of the encounter was unknown to the officers at the time.
[7] As the officers received updates, Constable Dickie drove in order to intercept the silver Dodge. While doing so, further information was received. The officers were told that the silver Dodge had pulled into an underground garage at or near Sentinel Avenue and that the callers had lost sight of it. The officers were also given information that both suspects in the silver Dodge were armed with handguns.
[8] After several minutes of driving, Constables Dickie and Verdoold finally caught up with the silver Dodge. The officers were driving northbound on Derrydown Road at 7:03 pm when they encountered the silver Dodge driving southbound. Constable Verdoold, who had a great deal of experience as a traffic officer, estimated the Dodge’s speed at 60 km/h. The posted limit was 40 km/h. As they passed the silver Dodge, Constable Dickie observed that the licence on it was BMMH719, which matched the licence plate number sent out over the police radio. He testified that he was certain it was the vehicle they were looking for. Constable Verdoold could not see the full licence number, but did read 719 and was also certain that it was the vehicle they were looking for.
[9] Constable Dickie immediately turned his police car around to pursue the silver Dodge. The silver Dodge proceeded down Derrydown Road and turned right on Frankton. When Constables Dickie and Verdoold turned onto Frankton, they observed that the silver Dodge was already stopped, as another police vehicle, driven by Constable Wilkins, had stopped it. The silver Dodge was parked on the north side of the street. The police initiated a high-risk takedown. Constable Verdoold exited his police car with a shotgun and took up a position behind a telephone pole for cover. Constable Wilkins also exited his car with a shotgun. Constable Dickie took up a position covering the silver Dodge behind his police cruiser.
[10] Constable Verdoold took control of the scene. He ordered the driver to come out with his hands up. The driver did so. He ordered the driver to slowly walk backwards towards the police with his hands in the air. He did so and was taken into custody. Constable Verdoold then ordered Mr. Carelse-Brown, the passenger, to also come out with his hands up. Mr. Carelse-Brown did so. Constable Verdoold then ordered Mr. Carelse-Brown to walk backwards towards the officers, which he did. He was then told to lie down prone, which he did. Constable Verdoold then cuffed his hands from behind and arrested him for possession of a firearm. He testified that he believed he had reasonable grounds to arrest, as opposed to grounds for an investigative detention. He cited the detailed description of the vehicle, including the licence plate, the fact that the occupants of the Silver Dodge matched the (admittedly not very precise) description provided by the complainant, and the fact that the complainant was specific about the presence of two handguns. Constable Verdoold then commenced a search incident to arrest. He was very clear that he was conducting a search incident to arrest, and not a pat-down search for officer safety purposes. Although he did not conduct the search, Constable Dickie testified that prior to the high-risk takedown it had been his intention to investigate the occupants and execute an investigative detention.
[11] While searching, Constable Verdoold located two baggies of marijuana in the right front coin pocket of Mr. Carelse-Brown’s jeans. Constable Verdoold weighed the marijuana later at the station. It totalled 0.83 grams. Constable Verdoold also located a $1445.00 in cash, folded into 11 individual bundles, in the right front pocket of Mr. Carelse-Brown’s jeans. While Constable Verdoold searched the right side of Mr. Carelse-Brown’s clothing, Constables Syed and Muto arrived and searched his left side. They located another $255.00 in cash and a cell phone. Constable Verdoold arrested Mr. Carelse-Brown for possession of marijuana, placed him in the rear of his police vehicle, and then advised him of his right to counsel.
[12] Constable Verdoold testified that the investigation continued. Other officers interviewed the people who had called the police. There was a search for firearms but none were located. After consultation with Sgt Olson, the officer-in-charge on the scene, it was decided that charges of threatening and possession of marijuana for the purpose of trafficking would be laid and that Mr. Carelse-Brown would be taken to the police station and held pending a show cause hearing.
[13] Constable Verdoold was questioned as to the basis for laying a charge of possession of marijuana for the purpose of trafficking. He has 22 years of experience as a police officer. He has only some experience with investigating drug offences and agreed that he was not an expert. He testified that although only a small amount of marijuana was seized, when combined with the large amount of cash he believed that it justified a possession for the purpose of trafficking charge.
[14] While at the station Constable Verdoold and Constable Dickie asked for and received permission to conduct a Level 3 search. Both constables testified that Mr. Carelse-Brown would be placed in the general jail population pending a show cause hearing. For obvious reasons, it was necessary to search him more thoroughly for contraband or weapons.
[15] A Level 3 search is essentially a strip search. The prisoner is instructed to remove an item of clothing. The item is searched and then put back on. In this way, the prisoner’s clothing is completely searched without the prisoner ever being fully naked. Constable Verdoold testified that during the Level 3 search he found 25.3 grams of cocaine in Mr. Carelse-Brown’s underwear. He was charged with possession of cocaine for the purpose of trafficking. He now seeks to have this cocaine excluded from evidence at his trial. He argues that his rights under s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms were violated. He says that the cocaine should be excluded from evidence under s. 24(2) of the Charter.
ANALYSIS
[16] There are three issues to be determined:
Did Constable Verdoold have reasonable and probable grounds to arrest Mr. Carelse-Brown?
If Constable Verdoold only had grounds to detain Mr. Carelse-Brown for investigative purposes, was he still entitled to go through his pockets?
If the s. 8 or s. 9 Charter rights of Mr. Carelse-Brown were violated, should the evidence be excluded?
1. Did Constable Verdoold have reasonable and probable grounds to arrest Mr. Carelse-Brown?
[17] Section 495(2)(a) of the Criminal Code states that a peace officer may arrest, without a warrant, a person who as committed an indictable offence or who the peace officer believes on reasonable grounds has committed or is about to commit an indictable offence. In the seminal case of R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1, Cory J., for the Supreme Court, stated that in order to carry out a lawful arrest a police officer must personally believe that he or she has reasonable and probable grounds. In addition to those subjective grounds, it must be objectively established that those reasonable and probable grounds existed. As Cory J. stated:
[16] …It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.
[18] Cory J. also quoted with approval this passage from Scott L.J.’s reasons in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.):
The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.
[19] Ms. Goldlist wisely made a very narrowly focussed argument. She agreed that the police had a basis to stop the silver Dodge, investigate the occupants, and conduct a pat-down search for officer safety purposes. On the basis of a Storrey analysis, however, she argued that the police could go no further. She conceded that Constable Verdoold had subjective grounds to arrest Mr. Carelse-Brown, but argued that those grounds were not objectively justified. She argued that the mere existence of an uncorroborated, undetailed tip from an unknown citizen could not objectively support reasonable and probable grounds to arrest. Since the police had no authority to go beyond a pat-down search, the search of the coin pocket, which led to the seizure of the marijuana and the cash, was unlawful. Those seizures in turn led to the decision to hold Mr. Carelse-Brown for a show cause hearing, which in turn led to the decision to conduct a strip search and the discovery of the cocaine in his underwear. Thus, the search at the station was also illegal – but for the illegal seizure of the marijuana and the cash, Ms. Goldlist argues, there would have been no search of the underwear.
[20] I respectfully disagree. In my view it is very clear that the police had reasonable and probable grounds to arrest.
[21] In R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097, 34 O.R. (3d) 743, 117 C.C.C. (3d) 193 (C.A.) Golub had been drinking and was refused service at a bar. He told Hepworth that he would get even with the staff at the bar and showed him a rifle under his jacket. He also struck Hepworth. The police treated the complaint as a “gun call” requiring immediate action. The police located Golub in his apartment and ordered him to come out. He did so and was immediately arrested. Fearing that there might be someone else in the apartment armed with a firearm (based on ambiguous statements by the accused) the police entered without a warrant, searched for persons who might be hiding, and ultimately found a rifle and ammunition.
[22] On appeal, Golub argued that the arrest was unlawful since it was based on the uncorroborated information of Hepworth, a person of unknown reliability. In rejecting the argument that the police could not have had reasonable and probable grounds absent some confirmation of Hepworth’s information, Doherty J.A., for the court, said this:
17 Mr. Harris' proposition is a novel one. If correct, it would greatly restrict the police power of arrest. It would preclude the police from arresting a suspect based on information received from a witness to the crime even where the witness could have arrested the suspect pursuant to s. 494(1)(a). In addition, as pointed out by Mr. Hutchison for the Crown, in the course of oral argument, Mr. Harris' position would set the test for reasonable grounds for arrest higher than the eventual standard for conviction since the respondent could be convicted based on the evidence of Hepworth absent any confirmation of his version of events.
[23] Doherty J.A. also noted that context plays an important role in determining whether reasonable and probable grounds exist:
18 … In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
21 In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable…
[24] Doherty J.A. then analyzed the actual information in the possession of the police:
22 In this case, the police had a specific and detailed complaint from a witness to the events. Mr. Hepworth contacted the police, identified himself, and made no claim to anonymity. The officers had a firsthand opportunity to assess Mr. Hepworth's reliability. They had no reason to discount his information. Certainly, counsel for the respondent at trial did not suggest that the officers should have disregarded Mr. Hepworth's information.
23 Based on the information provided by Mr. Hepworth, the police had every reason to believe that the respondent had committed more than one indictable offence, and was in possession of an unlawful weapon when he was located at his home. The police also had strong reason to believe that the respondent was distraught and intoxicated. Clearly, the respondent presented an immediate danger to himself and others. The police were not only justified in acting on Mr. Hepworth's information, they would have been derelict in their duty had they not acted on it.
[25] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, 101 O.R. (3d) 641, 259 C.C.C. (3d) 127, 80 C.R. (6th) 29 (C.A.), a citizen noticed a Nissan Murano driving erratically and called the police. The citizen believed that the driver was impaired. The citizen stayed on the phone and updated the police dispatcher with the location of the Nissan. An officer was sent to intercept. Before he could do so, the Nissan hit a parked truck. The officer arrived on scene, spoke briefly to the citizen, and observed a dazed look on the accused’s face and an odour of alcohol. He immediately arrested the accused for impaired driving. At trial in the Ontario Court of Justice the accused argued that the arrest and subsequent demand for a breath sample were unlawful because reasonable and probable grounds to arrest did not exist. The trial judge rejected that argument and convicted the accused. The summary conviction appeal judge disagreed and reversed the trial judge.
[26] On appeal, Durno J. (sitting as an ad hoc member of the Court of Appeal) examined whether or not reasonable and probable grounds existed to arrest. Although Durno J. conducted his analysis in the context of drinking and driving cases, the following comments are helpful:
66 In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: Shepherd at para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni at para. 35. The important fact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, 1990 CanLII 11054 (QC CA), [1990] A.J. No. 418 (C.A.).
67 An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine if reasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golub at para. 19. In others, the officer's observations and information known at the time may readily establish the requisite grounds.
[27] It is also clear that a police officer is entitled to take into account information that he or she receives from a police despatcher, even if he or she cannot independently confirm it: R. v. Regan, [2005] O.J. No. 2355 (Sup.Ct.).
[28] Ms. Goldlist argued that there was further investigation that the officers could have conducted in order to determine whether there were grounds to arrest for possession of a firearm. I respectfully disagree. Just because the police could have done more does not mean that they were required to do more. As Durno J. further observed in Bush:
68 Here, the officer could have asked the respondent if he had consumed alcohol. What weight the officer attached to the answer would have been for the officer to determine. If he said he had one beer or nothing to drink, the officer was not required to accept what he was told and terminate the investigation.
69 The officer could have asked the respondent how the accident occurred. However, if he provided an explanation unrelated to intoxication, the officer was not required to accept the explanation and eliminate the accident from consideration. At trial, the respondent admitted that he hit the curb because he was making cell phone calls and looking up numbers as he drove. His cell phone records confirmed he made six calls to his girlfriend which were continually disconnecting within five minutes of the accident. Continuing to make telephone calls while driving into curbs could also be seen as a sign of impairment: see Shepherd at para. 23.
70 The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual.
[29] The officers were “required to conduct the inquiry which the circumstances reasonably permit”. Information that two men were at large having threatened people and in possession of handguns does not require the police to conduct an extensive investigation to confirm the information. It requires them to act.
[30] Using a contextual analysis it is clear that the police had reasonable and probable grounds to arrest Mr. Carelse-Brown, and that there was an objective basis for those grounds, in particular:
- The complainants indicated that they had been threatened by two men;
- According to the complainants, each man was armed with a handgun;
- The complainants provided a location where the threats had taken place;
- The complainants gave a generic description of the suspects, but a very detailed description of the vehicle, including the make, the colour, and the licence plate number;
- The complainants were obviously in some form of contact with the suspect vehicle, as they relayed updated information from time to time as to the location;
- The complainants did provide at least their first names to the police dispatcher. Constable Verdoold could not recall whether or not he learned their names at the time of the gun call, but Constable Dickie did. It is likely that since both were privy to the same radio communications, Constable Verdoold learned the names of the complainants but did not recall at the time of the trial. In any event, even if Constable Verdoold did not know their names, certainly other police officers (or at least a police dispatcher) did.
[31] As in Golub and Bush, the police had a specific and detailed complaint from a witness to the events. That complaint was about individuals who were armed, had committed an offence, and were in a vehicle described with a high degree of specificity.
[32] Context matters, as both Doherty J.A. and Durno J. observed. This was a dynamic and fluid situation involving an extremely serious threat to public safety. Only eleven minutes elapsed from the first gun call to the arrest of Mr. Carelse-Brown. We judges and lawyers have the luxury of minutely examining and second-guessing every move made by a police officer in the safety and quiet of a courtroom. That process is obviously necessary and important in protecting the Charter rights of all citizens. That said, the police do not have the luxury of leisurely contemplation when they are reacting to fast-moving situations involving obvious dangers such as those presented by firearms. Doherty J.A. examined this issue in Golub, and made the following comments in the context of his analysis of the warrantless entry into the home:
44 In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.
45 In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised. The frustration of the effective enforcement of the criminal law is the hallmark of the exceptional circumstances identified in Feeney.
[33] I find that Constable Verdoold’s decision to arrest was clearly supported by objective factors in the circumstances of this case.
[34] Ms. Goldlist argued that once Mr. Carelse-Brown and the driver were cuffed and in custody, the dangers were mitigated and the police could have conducted a further investigation once the pat-down search was complete. That argument is obviously true to an extent but it ignores two important facts: first, if the police had reasonable and probable grounds to arrest and therefore conduct a search incident arrest, it did not matter whether safety concerns were mitigated. Second, even if safety concerns were mitigated, they were not absent. Constable Verdoold testified that he had known highly flexible individuals to retrieve items from their clothing while in cuffs or even manoeuvre themselves to put their hands in front of them after they had been cuffed to the back. Furthermore, the vehicle had not yet been searched. It was unknown whether there was another person hiding in the vehicle armed with firearms, or whether the occupants had stashed their firearms in the vehicle.
[35] It should also not be overlooked that Constable Verdoold testified that Mr. Carelse-Brown was to be arrested on the threatening charge. The police obviously could have searched him incident to arrest on that charge and would undoubtedly have discovered the marijuana. Although the police were not required to hold Mr. Carelse-Brown, given that possession for the purpose of less than a gram of marijuana is not a reverse onus offence, they clearly had discretion as to whether to hold him for a show cause hearing.
[36] I therefore find that the police had reasonable and probable grounds to arrest Mr. Carelse-Brown, and that the subsequent search that resulted in the discovery of the cocaine was lawful.
2. If Constable Verdoold only had grounds to detain Mr. Carelse-Brown for investigative purposes, was he still entitled to go through his pockets?
[37] Ms. Goldlist argues that since the police only had cause to detain for investigative purposes, they could not go beyond a mere pat-down search. The search of the coin pocket where the marijuana was discovered was not authorized and, therefore, was not lawful.
[38] It is not necessary for me to address this issue, as I have found that the police had reasonable and probable grounds to arrest. However, in the event that I am wrong about that I will briefly address this issue.
[39] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, 185 C.C.C. (3d) 308, the Supreme Court of Canada found that there existed a common law power to conduct an investigative detention. Ms. Goldlist argues that Mann quite explicitly does not authorize an intrusive pocket search: paras. 49 and 56. The police therefore had no authority to go into Mr. Carlse-Brown’s pockets.
[40] Although on the face of it Ms. Goldlist has a very strong argument, in my view context matters not only in the circumstances of an arrest, but also in the circumstances of an investigative detention.
[41] In R. v. Plummer, 2011 ONCA 350, [2011] O.J. No. 2034, 272 C.C.C. (3d) 172, 85 C.R. (6th) 41, 2011 CarswellOnt 4748 (C.A.) Plummer was in a car. He saw police officers, and seemed to have an expression of surprise or shock on his face. The police observed him make a downward movement that was consistent with concealing drugs. The police investigated and learned that Plummer was the subject of an “officer safety alert”. The alert indicated that he might be armed with a handgun and bulletproof vest. He was known to frequent the area where the police encountered him. Based on the observations as well as the officer safety alert, the police ordered him out of the car and conducted a pat-down search in order to determine whether there was a firearm. An officer felt the bulletproof vest. He then searched the car and found a handgun. The trial judge, Durno J., found that the investigative detention was lawful, and that the subsequent search of the car after finding the bulletproof vest was also lawful.
[42] On appeal, MacPherson J.A. found, relying on Mann and R. v. Clayton and Farmer, 2007 SCC 32, [2007] 2 S.C.R. 725, that whether or not there are reasonable grounds for an investigative detention must be determined through an examination of the totality of the circumstances. He had little trouble in agreeing with the trial judge that the investigative detention was justified. Plummer conceded that the police were justified in conducting a pat-down search but argued that the police could go no further in searching the car. MacPherson J.A. rejected this interpretation of Mann:
52 I agree that a Mann search is anchored in safety concerns and is limited to weapons.
53 However, there is nothing in Mann confining a search incidental to an investigative detention to only the person detained. Indeed, in Mann, the court actually considered both a pat-down search of the person detained, which it upheld, and a search inside the detainee's pockets, which it found to be unreasonable. Accordingly, I agree with this court's interpretation of Mann in R. v. Batzer (2005), 2005 CanLII 33026 (ON CA), 200 C.C.C. (3d) 330 at para. 16: "the [Supreme Court of Canada] leaves the clear inference that on the right facts, a search incidental to a lawful stop could comply with the common law and pass constitutional muster even though it went beyond a pat down.”
58 … If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity.
[43] Plummer also argued that since the police had him under control when the car was searched and, therefore, there was no immediate risk to public safety. MacPherson J.A. rejected this argument on the basis that the trial judge had found that there were grounds to believe that the accused had concealed something in the car:
65 Against this backdrop, I do not see why, once Constable Ratych discovered the bulletproof vest, he should be required to reject a further search for the gun in the immediate vicinity, including the passenger side area of the car in which the appellant had been seated moments before. To expect the police officer to abandon his search, release the appellant and, in effect, turn his back on the appellant as he walks back to the police cruiser is, in my view, both unrealistic and unreasonable: see Clayton at paras. 43-44 and Michigan v. Long, at pp. 1049-50.
66 In the end, I can put it no better than did the trial judge:
[W]here the police see conduct consistent with concealing something in the area of the front passenger seat, have information the person may be carrying a gun and wearing a bullet proof vest, and confirm he is wearing a bullet proof vest, to find that the police had to stop their search once they found he was not carrying a gun on him, flies in the face of concerns for officer safety.
[44] It is clear on MacPherson J.A.’s interpretation of Mann that pocket searches are not simply banned. It depends on the context. Like the situation in Plummer, it is hard to see how the police could have simply searched the occupants and then let them go without searching the silver Dodge. It would have been negligent beyond all reason for the police to have done that, even if they were only conducting an investigative detention of the Mr. Carelse-Brown and the driver. It is difficult to see how the police would be justified in conducting a search of the silver Dodge but not in looking in the pockets of the occupants. Constable Verdoold testified that the safety concerns were not fully mitigated simply because the occupants of the silver Dodge were in custody. I agree that the concerns were somewhat mitigated, but I accept Constable Verdoold’s evidence that there were still remaining issues. A slightly more intrusive search under the circumstances was not a violation of s. 8 of the Charter. Given Ms. Goldlist’s concession that the police had grounds for an investigative detention, there was no arbitrary detention and no violation of s. 9 of the Charter.
3. If the s. 8 or s. 9 [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights of Mr. Carelse-Brown were violated, should the evidence be excluded?
[45] Since I have found that there was no violation of s. 8 or s. 9 of the Charter, it is not necessary to determine whether the evidence should be excluded. If I am wrong, however, I would still have not excluded the cocaine.
[46] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out the three-pronged test for determining whether evidence should be excluded on the basis of s. 24(2) of the Charter:
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute…
[47] In my view, it is clear that the Charter-infringing state conduct, if it was infringing at all, was not serious. If the police did not have reasonable grounds to arrest, and therefore violated s. 8, that violation was trivial – they certainly had something close to reasonable grounds, and at the least, enough grounds for an investigative detention.
[48] In terms of the pocket search, I acknowledge that in Mann the Supreme Court of Canada found that a pocket search in the context of an investigative detention was a serious invasion of privacy. That said, I would distinguish Mann factually on the basis that the Court in that case found that the purpose of the search had shifted from officer safety to a search for evidence. That is not what occurred in this case. Here, there is no suggestion that Constable Verdoold was doing anything other than conducting a search incident to what he believed was a valid arrest. It was not a fishing expedition designed as a legitimate search. I find that Constable Verdoold genuinely believed that he was authorized to conduct a pocket search. He and Constable Dickie were well aware of the distinction between an investigative detention and an arrest. Both were aware that only a pat-down search for officer safety purposes is justified where there is an investigative detention, rather than the more intrusive search incident to arrest. This is not a case where the police were ignorant of or indifferent to Charter standards, even if they may have made a mistake. If Constable Verdoold’s belief was not objectively supported, then it was certainly close. In the context of a search for firearms, the pocket search was not a significant invasion of privacy.
[49] In assessing the impact of the breach on the Charter protected interests of the accused, the Supreme Court said the following:
76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[50] The pocket search was minimally intrusive and relatively fleeting. There was no wholesale invasion of privacy. Mr. Carlese-Brown’s own words were not used to conscript himself.
[51] Society also has a strong interest in the adjudication of this case on the merits. The possession of almost an ounce of cocaine must be viewed in light of a fairly minor Charter violation where the police were, without a doubt, required to act.
[52] In terms of the overall reputation of the administration of justice, in my view, a reasonable person, being well-informed and having thought the matter through, would have trouble understanding why the police were not entitled to respond as they did in reaction to a gun call. Still less would it be readily understandable why evidence should be excluded where the police engaged in behaviour that, if it fell below the standard, only did so minimally. I would not exclude the evidence.
DISPOSITION
[53] The application is dismissed.
R. F. Goldstein J.
Released: June 20, 2013
COURT FILE NO.: CR-12-90000646-0000
DATE: 20130620
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARLON CARELSE-BROWN
R. F. Goldstein J.
Released: June 20, 2013