Court File and Parties
Court File No.: 152/15 Date: 2016/09/27 Superior Court of Justice – Ontario
Between: Cody McNeil, Applicant Counsel: M. McMillan, for the applicant
And: Her Majesty the Queen, Respondent Counsel: B. Eberhard, for the respondent
Heard: July 13, 2016
Before: Grace J.
A. Introduction
[1] A March 2, 2015 incident resulted in Mr. McNeil being charged with two counts under the Controlled Drugs and Substances Act (“CDSA”): possession of cannabis (marihuana) contrary to s. 4(1) and possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the CDSA.
[2] Mr. McNeil maintains the police officers with whom he interacted breached his right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”). [1] Mr. McNeil submits the substances in question should be excluded because, having regard to the circumstances, their admission in these proceedings would bring the administration of justice into disrepute: Charter, s. 24(2).
B. The Facts
[3] Three witnesses testified on the return of the application: Detective-Constable (then Constable) Dylan Van Bellegham, Constable Stuart Gordon and Acting Sergeant (then Constable) Michael Pottruff of the London Police Service (“LPS”).
[4] D-C Van Bellegham’s testimony concerned his dealings with Mr. McNeil on October 20, 2014. He was on foot patrol with his partner Constable Gordon. He observed Mr. McNeil standing under an overhang outside a building municipally described as 151 Dundas Street, London, Ontario and known as the Market Tower.
[5] D-C Van Bellegham recognized Mr. McNeil because, to use the officer’s word, Mr. McNeil often “loitered” in and near that location.
[6] A conversation ensued. D-C Van Bellegham asked Mr. McNeil to explain his presence and offered some unsolicited career advice to an unreceptive audience. They parted.
[7] Twenty five minutes later, Mr. McNeil was observed exiting the front doors to the Market Tower when D-C Van Bellegham and his partner returned to the area.
[8] D-C Van Bellegham said he knew the LPS had been authorized by the Market Tower’s owner, Farhi Holdings Corp., to enforce the Trespass to Property Act, R.S.O. 1990, c. T.21. An “Authorization” dated February 19, 2013 was entered into evidence. The document appears to be based on a template provided by the LPS. After naming the owner/manager and stating the municipal address of the Market Tower the document provided as follows:
I hereby authorize the London Police Service to act as my agent and enforce the Trespass to Propert [sic] Act, City By-Laws, and other statues [sic] in relation to the above named property. There are to be no unauthorized persons on this property after business hours. During business hours, the property is to be used by patrons only.
[9] A signature, title and phone number appeared thereon for the person signing on behalf of Farhi Holdings Corp. along with a handwritten statement that:
This Authorization is valid for the following 10 years from the current date of execution.
[10] D-C Van Bellegham provided reasons for his suspicion Mr. McNeil was in the Market Tower for an unlawful reason, namely, drug trafficking. In cross-examination he acknowledged he did not have reasonable and probable grounds to arrest Mr. McNeil.
[11] Nonetheless, D-C Van Bellegham felt able to take a more modest action. Entry on premises may be prohibited by oral or written notice under the Trespass to Property Act: see ss. 3(1) and 5(1)(a).
[12] Pursuant to the Authorization and the Trespass to Property Act, D-C Van Bellegham told Mr. McNeil he was banned from the Market Tower for life and was subject to arrest, search and to seizure of property if he returned.
[13] Constable Gordon was on foot patrol in the downtown core that day and also several months later when the events in question occurred.
[14] On March 2, 2015, Constables Gordon and Pottruff were patrolling the area near the Market Tower on foot.
[15] Seeing Mr. McNeil was a frequent occurrence. He was often observed in the vicinity of the Market Tower. In cross-examination, Constable Gordon acknowledged the police watched Mr. McNeil carefully because he continued to be a suspected drug dealer. He agreed the police still did not have reasonable and probable grounds to arrest Mr. McNeil for an offence under the CDSA.
[16] Mr. McNeil’s location on March 2, 2015 drew more than passing interest. He was seen standing inside the front hallway of the building he had been prohibited from entering.
[17] The two police officers entered the Market Tower at about 3:30 p.m. They approached Mr. McNeil and placed him under arrest for trespassing pursuant to s. 9 of the Trespass to Property Act.
[18] He was handcuffed to the rear. Constable Gordon explained why that step was taken.
[19] Constable Gordon said he had received information from a number of confidential sources that Mr. McNeil was selling drugs illegally. Personal observations were supportive. In his experience, almost all drug dealers carry weapons. He believed Mr. McNeil would be in possession of a weapon because his criminal record included a conviction for a violent offence. Constable Gordon testified Mr. McNeil had been found guilty of unlawfully possessing a prohibited weapon.
[20] Additional reasons caused the officers to lead Mr. McNeil to a small LPS foot patrol office in the Covent Garden Market building (“Covent Garden”) immediately to the south of the Market Tower.
[21] Constable Gordon said frequent calls were made to the police by security personnel at the Market Tower. Reports of drug use, drug dealing, nuisance and fights were regularly received. He said that location was “ground zero” for criminal activity in downtown London.
[22] Constable Gordon testified he had received threats of physical harm while on patrol there. He said he had also been assaulted. By handcuffing Mr. McNeil to the rear, the possibility Mr. McNeil could reach a weapon or inflict harm in some other manner was minimized. The risk of interference by others was eliminated when Mr. McNeil was taken to a secure room in a nearby building.
[23] In cross-examination, Constable Gordon agreed he carried a pad of tickets and short form summons when on foot patrol. He acknowledged a ticket or summons could have been issued on the spot after inquiries were made of Mr. McNeil and other information accessed using the cell phone Constable Gordon carried. The police officer added, however, that he did not issue a ticket or summons in the public area because of his concern for officer safety.
[24] Constable Gordon acknowledged there was nothing he could see on Mr. McNeil’s person that raised any safety concern. He also agreed that no effort was made to “pat down” or “frisk” Mr. McNeil.
[25] Constables Gordon and Pottruff admitted it was possible a hard object such as a knife or handgun would have been detected if that method of search had been adopted. However, both officers said they were not confident that a potentially dangerous object would have been found given the fact Mr. McNeil was wearing a jacket, two hooded sweatshirts, a t-shirt, blue jeans, jogging pants, and shorts that day.
[26] Once in the secure room the Covent Garden contained, Mr. McNeil was cautioned and told of his right to counsel. A search of his person followed.
[27] Constable Gordon testified that at 3:42 p.m. a baggie and several (twenty one) smaller “dime” bags were located in the upper left inside pocket of the outer winter jacket Mr. McNeil was wearing. All contained what appeared to be crystal methamphetamine. A total of 5.3 grams of the drug was seized. Constable Pottruff said he located a number of empty “dime” plastic bags in the right front pocket and a Samsung Galaxy S4 cell phone in the front left pocket of Mr. McNeil’s jacket.
[28] At 3:43 p.m. Mr. McNeil was advised he was under arrest for possession of crystal methamphetamine for the purpose of trafficking.
[29] A second caution was issued and Mr. McNeil was again advised of his right to counsel.
[30] The search continued. Constable Pottruff said $675 in currency and 1.5 grams of ground marijuana were found in the left front pocket of the jeans Mr. McNeil was wearing.
[31] The search ended once Mr. McNeil had shedded all layers of clothing except his shorts and underwear.
[32] In addition to the charges before this Court, Mr. McNeil was issued a summons under the Trespass to Property Act.
C. Analysis and Decision
[33] Section 8 of the Charter reads as follows:
Everyone has the right to be secure against unreasonable search or seizure.
[34] Decisional law interpreting and applying the provision is abundant. The applicable principles are well settled:
a) Prima facie, warrantless searches are unreasonable. However, searches of the person incident to a lawful arrest are an established exception: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 at p. 725. I pause here to note that I am satisfied Mr. McNeil’s arrest was lawful. He had entered the Market Tower despite having received notice he was prohibited from doing so;
b) The search incident to arrest must be for a lawful purpose. Examples include:
(i) discovering evidence relating to the reason for arrest. The initial search of Mr. McNeil was not undertaken for that purpose. As noted, at first instance he was arrested only for trespassing;
(ii) preserving or preventing the disposal of evidence by the detainee. Given the reason for the arrest, the initial search of Mr. McNeil was not undertaken for that purpose either;
(iii) determining whether the detainee is in possession of an object that may be a threat to the safety of the police, the detainee or the public;
(iv) determining whether the detainee is in possession of an object that may facilitate escape: Cloutier v. Langlois, 1990 SCC 122, [1990] 1 S.C.R. 158 at pp. 182-184, R. v. Caslake, 1998 SCC 838, [1998] 1 S.C.R. 51; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Dunkley, 2016 ONCA 597 at para. 35. [2] I will return to the third and fourth permitted purposes shortly.
[35] The police must have in mind one or more of the legally recognized purposes and the pursuit of the purpose(s) must be reasonable in the circumstances. In other words, the belief a search is necessary for one or more of the permitted purposes must be honestly held and objectively reasonable.
[36] Writing for the majority in R. v. Caslake, supra, at pp. 64-65, Chief Justice McLachlin wrote in part:
...the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might otherwise be armed.
[37] At p. 65 of the same decision, the Chief Justice provided an example of a situation where a search of the person for the purposes of safety would be unreasonable:
For example, when the arrest is for a traffic violation, once the police have ensured their own safety, there is nothing that could properly justify searching any further.
[38] Several reasons were advanced in this case for the initial decision to handcuff the accused, to take him to the foot patrol office and to search Mr. McNeil’s person.
[39] Constable Gordon testified that such a search was standard operating procedure following an arrest for trespass in the downtown core.
[40] Had it stood alone, that reason would not have justified a search of Mr. McNeil’s person. Common practice does not justify an invasive, Charter violating search. Had the testimony of the Crown’s witnesses ended there, the defence would have gained traction for its theory that the arrest was a pretext for a search designed to uncover evidence to support a charge under the CDSA.
[41] However, the evidence on the application went further.
[42] Constable Gordon testified the foyer of the Market Tower was not a suitable location for the completion of the paperwork relating to the trespass or for a security or means of escape search to be undertaken.
[43] The location where Mr. McNeil was arrested was objectively problematic. I accept that the Market Tower is regarded as a hub for criminal activity ranging from drug use and trafficking to physical violence. I also accept Constable Gordon’s testimony that he has been threatened and assaulted at that location. The testimony of the officers that drug users and dealers were milling about the premises at the time was unchallenged.
[44] The individual circumstances of Mr. McNeil also played an important role.
[45] His regular attendance in the vicinity of the Market Tower had long been noted. Suspicions that he was engaged in the illegal sale of narcotics were deep rooted and, seemingly, well founded although the officers readily acknowledged they did not have reasonable and probable grounds to arrest him for that reason.
[46] Constable Gordon said he had learned from his training and experience that most drug dealers carry weapons. That generalization may not have withstood scrutiny on its own. However, there was more. While he had never observed Mr. McNeil acting violently, Constable Gordon’s evidence concerning Mr. McNeil’s criminal record was not contradicted. He said it included a crime of violence and a conviction for unlawful possession of a prohibited weapon.
[47] I accept that the search of Mr. McNeil was undertaken for a valid purpose incident to arrest. In the particular circumstances of this case, I also conclude it was reasonable for the officers to undertake a search to determine whether Mr. McNeil was in possession of something which would pose a threat to officer safety. In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, Iacobucci J. wrote at para. 43:
Police officers face any number of risks every day in the carrying out of their policing functions and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible.
[48] That is not, however, the end of the analysis. The search must not be conducted in an abusive fashion. In R. v. Golden, supra at p. 730, Iacobucci and Arbour JJ. concluded:
…a “frisk” or “pat down” search at the point of arrest will generally suffice for the purpose of determining if the accused has secreted weapons on his person. Only if the frisk search reveals a possible weapon secreted on the detainee’s person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee’s person will a strip search be justified…
[49] In this case, Mr. McNeil was not frisked even after entering the foot patrol office. Ordinarily, that step should have been undertaken. However, the number of layers of clothing Mr. McNeil was wearing complicated the situation.
[50] Mr. McNeil’s manner of dress did not, of itself, justify the layer after layer search the officers were intent on undertaking. The extent of the search must be analyzed and assessed in light of the circumstances that unfolded.
[51] Constable Gordon testified, somewhat curiously, that even though handcuffs had been removed, safety concerns were eliminated once Mr. McNeil was in the locked foot patrol office and had removed his outside jacket.
[52] The winter coat was thoroughly searched. A solid object was found in an outside pocket. It was, in fact, a cell phone. No weapons or means of escape were located. Had the search of the outside jacket yielded nothing else of concern, Constable Gordon’s testimony may have been impactful. At that stage a pat down of Mr. McNeil’s person may have been all that was required incident to the arrest for trespass to property.
[53] However, items suggestive of criminal activity were found in and extracted from an inside pocket of the winter coat. [3] I agree with the Crown that the landscape changed once Constable Gordon found methamphetamine in the outer layer of clothing.
[54] Reasonable and probable grounds then existed which justified Mr. McNeil’s arrest for another reason: an offence under the CDSA. Continuation of the search for the purpose of uncovering evidence relating to Mr. McNeil’s arrest on the new charge was then appropriate. At that time the search of Mr. McNeil’s person properly moved to a second stage. It was then that the additional items I have described were discovered, including a small quantity of marihuana.
[55] In my view, the initial search of Mr. McNeil’s outer layer did not violate s. 8 of the Charter. A legitimate purpose was in mind which was, in all of the circumstances, objectively reasonable. Given what that examination yielded, the search of subsequent layers also did not violate Mr. McNeil’s right to be secure against unreasonable search or seizure.
[56] Those findings make it unnecessary to consider s. 24(2) of the Charter and the factors set forth in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. I simply note that Mr. McNeil’s application was based on the premise the police engaged in Charter offending conduct that was egregious. Had an invasive partial strip search been undertaken following an arrest under s. 9 of the Trespass to Property Act simply as a matter of routine, for an improper purpose or “on the basis of a vague or non-existent concern for safety” [4], I may well have agreed with that characterization. Such a finding would have been material to the s. 24(2) analysis that would have followed: see, R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 at para. 50. However, other compelling circumstances existed which justified the initiation and then the continuation of the search of Mr. McNeil’s person and the clothing he wore.
[57] For the reasons given the application is dismissed.
“Justice A. D. Grace” Grace J. Released: September 27, 2016
Footnotes
[1] A breach of s. 9 of the Charter (the right not to be arbitrarily detained) was raised in the notice of application and in the applicant’s factum but the issue was not pursued. Section 9 of the Trespass to Property Act expressly authorizes a police officer to arrest, without warrant, any person the police officer believes on reasonable grounds to be on premises despite being prohibited from entry.
[2] Other recent cases cited included R. v. MacDonald, 2014 SCC 3 and R. v. Peterkin, 2015 ONCA 8.
[3] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the accused was detained for investigative purposes. While there were reasonable grounds for a protective search, the majority concluded the police went too far when an officer reached into the appellant’s pocket after feeling a soft object. The search in this case was incident to arrest. At para. 37, Iacobucci J. highlighted “the importance of maintaining a distinction between search incidental to arrest and search incidental to an investigative detention.”