Court File and Parties
COURT FILE NO.: CR-19-157-00 DATE: 2020-08-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN M. Haque, for the Crown, Respondent
- and -
Wally Williams N. McCartney, for the Applicant
Applicant
HEARD: August 4, 2020 at Thunder Bay, Ontario Mr. Justice W. D. Newton
Reasons on Application
Overview
[1] This application raises questions with respect to police powers to search when a person is not arrested and not detained for investigative purposes.
[2] Mr. Williams and three others were involved in a single car accident on a remote stretch of highway in Northwestern Ontario. The vehicle in which Mr. Williams was a passenger was inoperable and in a snow covered ditch. When the police arrived, it was dark and cold. The police offered to give Mr. Williams and his companions a ride to their home community, about 45 minutes away, but advised them that they would have to be searched for “safety reasons”.
[3] During the search of Mr. Williams, a pill bottle was discovered. He was arrested and charged with possession of an illegal drug. A search of his backpack incidental to his arrest revealed additional illegal drugs and a possible “debt book”. Mr. Williams was charged with possession of illegal drugs for the purpose of trafficking.
[4] Mr. Williams applies to have the illegal drug evidence excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”).
[5] Because this was a warrantless search, the onus is on the Crown to satisfy the court, on a balance of probabilities, that the search did not contravene Mr. Williams’ Charter right to be secure against unreasonable search or seizure. The Crown argues that the search was reasonable as a “safety” search and as a “consent” search.
[6] For the reasons that follow, I find that Mr. Williams’ Charter rights were infringed, and I would exclude the evidence of the pill bottle and its contents found initially and the drugs and other contents of the backpack found subsequently.
The Facts
[7] The facts are, for the most part, undisputed.
[8] Mr. Williams was not able to physically attend this portion of his trial for legitimate reasons. He consented to be present via telephone while the evidence of witnesses was taken.
[9] Mr. Williams consented to the inclusion of the evidence on this application as evidence at trial.
[10] It was admitted that the drug found in the pill bottle and in the backpack was oxycodone (Percocet).
[11] Two officers testified: Constables Weston and Wherle.
[12] On November 25, 2018, these officers were on duty together. They received a call reporting a car in the ditch with uninjured occupants. The accident location was near the end of their patrol zone on a remote section of Highway 17. The area was described as “the middle of nowhere”. It took the officers approximately an hour and twenty minutes to drive the 100 kilometres to the scene. They arrived just after 10 p.m. The roads were icy in spots and it was snowing. The temperature was well below freezing.
[13] When the officers arrived, the occupants exited the car which was in the ditch. Present were two males and two females. All appeared cold. The car in the ditch was inoperable and could not provide any heat. The officers allowed all four persons to sit in the back of the cruiser while next steps were discussed. Since the vehicle was not an obstruction on the roadway it did not have to be removed immediately. According to the officers, it was not likely that a tow truck would attend that night. According to Constable Weston, all occupants wanted to get a ride to Longlac, their home community, and the owner would arrange a tow the next morning.
[14] Three of the four persons were known to the police. The other was quickly identified. The vehicle owner and front seat passenger were common-law spouses who were known to the police because of some domestic disputes. Mr. Williams was thought to be involved in the drug trade, but he had never been arrested or investigated before this date. Throughout, including throughout the searches, all four persons were “perfectly compliant”. The officers acknowledged that there was no resistance, hesitation in cooperating, or combativeness. Nothing was noted in the words or actions of any of the four that caused any concern to the officers. One of the females carried her purse with her into the back of the cruiser. Mr. Williams carried a backpack.
[15] After it was established that the four persons wanted to get a ride in the cruiser, they were told that they had to have a “pat-down” to ensure that they had no weapons before they were given a ride.
[16] According to Constable Weston, all were aware of this requirement and all agreed to this before transport. He said there were “head nods” and that “no one verbalized that they were not in agreement”.
[17] According to Constable Wherle, Mr. Williams and his companions were told that if they wanted a ride they had to be searched “for safety”. He testified that no one objected. Constable Wherle testified that the purpose of the search was to ensure that there were no weapons that would jeopardize the safety of the officers or the persons to be placed in the back of the cruiser. He recorded in his notes: “advised all parties, pat down search for officer safety to be conducted prior to transport…”.
[18] The police did not offer any other options to the four persons other than transporting them in the cruiser.
[19] Mr. Williams was the first person searched. It was described as a “pat-down” consisting of exterior physical touching of the body, particularly at pockets and waistbands.
[20] As Mr. Williams was being searched by Constable Weston, Constable Wherle was standing behind and to the side of Mr. Williams with Constable Wherle shining a flashlight on the search. While the “pat-down” search was being conducted by Constable Weston on the right side of Mr. Williams, Constable Wherle noticed that Mr. Williams took out something from his left-hand side pocket in a manner which suggested to him that Mr. Williams was attempting to hide whatever the object was from Constable Weston.
[21] When asked about the object, Mr. Williams showed a prescription pill bottle to Constable Weston, who took it and handed it to Constable Wherle. Constable Wherle testified that Mr. Williams said that the prescription was “in my name”, that the medication was for pain for his knees and that the prescription had just been filled.
[22] Constable Wherle described the label on the prescription bottle as looking ripped – “homemade”. He thought it appeared that the label was an older label that had been ripped off another bottle and placed on this bottle. He noted that the prescription was in Mr. Williams’ name and the date on the label was August 24, but he did not note a year. He looked in the bottle, which had cotton on the top, and found that it contained oxycodone. Based on the tampered appearance of the label on the bottle and the fact that the date did not match with Mr. Williams’ statement that the prescription had just been filled, Constable Wherle formed the opinion that this was not a proper prescription and arrested Mr. Williams for possession of narcotics. Mr. Williams was cautioned. Given the circumstances, his right to contact counsel could not be exercised, but he advised Mr. Williams that he could call a lawyer once they reached the detachment.
[23] The backpack Mr. Williams had with him had been placed on the ground beside him before the search. Constable Wherle searched the backpack as an incident to arrest and located two green bank deposit type bags, a grey plastic bag containing four pill containers and a ledger which he described as a “debt list”. According to Constable Wherle, the pill containers did not appear to be for filled prescriptions but rather appeared to be how a pharmacy would receive medication in bulk. The bottles were labelled oxycodone. A total of 660 ½ pills were seized from Mr. Williams and the backpack. Mr. Williams was arrested for possession for the purpose of trafficking and cautioned again.
[24] In cross-examination, it was established that the SUV cruiser operated by the officers had a barrier separating the rear compartment from the front with a plexiglass portion at the top. The plexiglass portion had a sliding window that could be operated by the officers to speak with anyone in the rear seat.
[25] The officers testified that they searched the pill bottle because they did not know what was inside. They testified that they have seized small objects such as razor blades on prior searches.
[26] No evidence of a specific police policy was introduced. Both officers testified that they were trained to do a “safety” search before transporting anyone in the back of the cruiser.
[27] Constable Wherle testified that the offer to give Mr. Williams and his companions a ride was for their protection. He said that they could not and would not leave them to freeze to death.
[28] Because two of the persons were female, the male officers conducted a visual examination only. From their clothing, the officers were able to determine that no weapons could be concealed. The other male was also searched. A kitchen “paring” knife was found which was taken by the officers without incident. The knife was returned to that male when they reached their destination.
Positions of the Parties
[29] At the commencement of argument, the Crown asked for an adjournment to prepare additional arguments. Mr. Williams objected. In declining the request for an adjournment, I noted that the application was served at the time of the judicial pretrial in November 2019 and that the Crown had filed a responding factum on July 15, 2020, and an addendum to that factum on July 30, 2020. It was agreed by the parties that the testimony of the officers introduced on this application was consistent with their testimony at the preliminary inquiry completed in 2019.
[30] Mr. Williams argues that the search was not authorized by law since the requirements of a “safety” search (relying upon R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37) or a “consent” search (relying upon R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.)) were not met.
[31] Therefore, Mr. Williams argues that the evidence of the drugs and drug related objects must be excluded following R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He argues that the breach was serious, that there was a significant impact upon his rights, and that society’s interests in the adjudication of this case on its merits is trumped by society’s interest in having a justice system that is above reproach.
[32] The Crown argues that neither the MacDonald nor the Wills case is applicable, as Mr. Williams and his companions were not detained or the subject of any police investigation. In keeping with their duty to protect lives, the officers were assisting Mr. Williams and his companions since to abandon them in the circumstances would put their lives and safety at risk. The “safety” search was reasonable in the circumstances. The purpose of the search was understood and consented to by Mr. Williams.
The Law
“Safety” Searches
[33] “Safety” searches were discussed by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, and, later, in MacDonald.
[34] Mann clarified search power incidental to investigative detention. In Mann, the police detained a potential suspect in a break and enter and conducted a “protective pat-down” search. During that search, the officer reached into Mr. Mann’s pocket, where he felt something soft, and discovered marijuana.
[35] MacDonald involved a “safety” search, although in exigent circumstances. While police were investigating a complaint, an officer knocked on Mr. MacDonald’s door. When Mr. MacDonald opened the door slightly, the officer thought he saw a weapon. The officer pushed the door open a few inches further and identified the weapon as a handgun. A struggle ensued, and a loaded handgun was seized from Mr. MacDonald.
[36] Many of Justice Iacobucci’s statements from the majority decision in Mann were repeated and affirmed in MacDonald. Relevant to this decision are the following observations.
[37] Justice Iacobucci noted the “delicate balance that must be struck in adequately protecting individual liberties and properly recognizing legitimate police functions” (Mann at para. 1).
[38] He continued:
Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law. The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties. (Mann at para. 15)
[39] With respect to “safety” searches in circumstances of investigative detention, Justice Iacobucci stated:
40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002), 2 C.R. (6th) 49, at p. 63. The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. [Emphasis added.]
43 The importance of ensuring officer safety has been recognized in obiter by this Court in R. v. Mellenthin, [1992] 3 S.C.R. 615. Police officers face any number of risks everyday in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. As noted by L'Heureux-Dubé J. in Cloutier, supra, at p. 185, a frisk search is a “relatively non-intrusive procedure", the duration of which is "only a few seconds”. Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objectively discernible facts to prevent “fishing [page81] expeditions” on the basis of irrelevant or discriminatory factors. [Emphasis added.]
[40] Justice Iacobucci held that the “protective pat-down” search for weapons was justified, but not the subsequent seizure of marijuana from Mr. Mann’s pocket. Justice Iacobucci found that “the purpose of the search shifted from safety to the detection and collection of evidence, and thus became a search for evidence absent reasonable and probable grounds” (Mann at para. 49).
[41] Justice LeBel, writing for the majority in MacDonald, expressly adopted the observations of Justice Iacobucci referenced above (see MacDonald at para. 31) and stated:
41 But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns [page 59] on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” (Mann, at para. 41). [Emphasis added.]
[42] Justice LeBel set out some factors to consider “to determine whether a safety search is reasonably necessary, and therefore justifiable”:
- the importance of the performance of the duty to the public good (Mann, at para. 39);
- the necessity of the interference with individual liberty for the performance of the duty (Dedman, at p. 35; Clayton, at paras. 21, 26 and 31); and
- the extent of the interference with individual liberty (Dedman, at p. 35).
If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute an "unjustifiable use" of police powers (Dedman, at p. 36). If the requirements of both stages of the Waterfield test are satisfied, the court will then be able to conclude that the search in question was authorized by law. (MacDonald at para. 37)
“Consent” Searches
[43] In Wills, Justice Doherty of the Court of Appeal set out guidelines for assessing consent.
[44] Mr. Wills was persuaded to take a breathalyzer test to assist him in an anticipated civil proceeding arising from an accident. Officers were not contemplating any criminal proceedings. After Mr. Wills “failed” the test, he was charged with impaired driving causing death.
[45] After commenting upon the importance of cooperative policing, Justice Doherty added this caution:
Co-operation must, however, be distinguished from mere acquiescence in or compliance with a police request. True co-operation connotes a decision to allow the police to do something which they could not otherwise do. Acquiescence and compliance signal only a failure to object; they do not constitute consent. (Wills at para. 44)
[46] He continued, noting that consent must be “real” (at para. 46), that is, “not only voluntary, but also informed” (at para. 60).
[47] Justice Doherty concluded that proving consent requires that the Crown establish on a balance of probabilities that:
(i) there was a consent, express or implied; (ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and, (vi) the giver of the consent was aware of the potential consequences of giving the consent. (Wills at para. 69) [Emphasis added.]
Section 24(2) of the Charter
[48] Section 24(2) requires the court to exclude evidence obtained in a manner that infringed the Charter if the admission of the evidence would bring the administration of justice into disrepute. The onus is on Mr. Williams to establish a case for exclusion.
[49] In considering whether the evidence should be excluded under s. 24(2) of the Charter, I must consider the three factors set out by the Supreme Court of Canada in Grant, at paras. 67-86. These factors are summarized by McLachlin C.J. at para. 71:
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.
Analysis and Disposition
Was the decision to search reasonably necessary?
[50] Protective pat-down or “safety” searches are justifiable where an officer has “reasonable grounds to believe that his or her safety is at risk” (see Mann at para. 43). Such searches are “to address an imminent threat to the safety of the public or the police” (see MacDonald at para. 41). Such searches “cannot be justified on the basis of a vague concern for safety” (see Mann at para. 40 and MacDonald at para. 41).
[51] On the evidence of the officers, Mr. Williams and his companions were “perfectly compliant”. The officers acknowledged that there was no resistance, hesitation in cooperating, or combativeness. Nothing was noted by the officers in the words or actions of any of Mr. Williams and his companions that caused any concern to the officers. This was a search based on a vague concern for safety.
[52] Applying the factors as set out by Justice LeBel in MacDonald, I conclude that the police were not involved in an arrest or investigative detention duties. Their duty in this case was to assist in securing the safety of Mr. Williams and his companions from the present environmental dangers. There is nothing in the circumstances that suggested that the search of these individuals was necessary for the performance of that duty. The interference with individual liberty by requiring a search was significant.
[53] As such, I conclude that the search was not authorized by law.
Did Mr. Williams consent to the search for anything other than weapons?
[54] Four of the factors identified by Justice Doherty in Wills must be considered on these facts.
[55] Was there consent, express or implied? According to the officers, no one objected. There were “head nods” and “no one verbalized that they were not in agreement”. Although more than a failure to object would be required in most cases, in these circumstances, I am satisfied that the Crown has proven, on a balance of probabilities, that there was consent to some form of search.
[56] Was the consent voluntary, and not the product of oppression, coercion or “external conduct which negated the freedom to choose”? While the circumstances – the cold, the remote location, and the lack of other options – might negate the freedom to choose, for the purposes of my analysis I am satisfied that the Crown has proven, on a balance of probabilities, that the consent was voluntary to some form of search.
[57] Was Mr. Williams aware of the nature of the police conduct to which he was being asked to consent? According to the evidence of the officers, the search was for weapons and safety. I find, on the evidence, that this was the purpose of the search as described by the officers and that no other purpose was communicated to Mr. Williams or his companions. I conclude that the consent given by Mr. Williams was for that purpose only. Once the pill bottle was located, I am satisfied that, as in Mann, the “purpose of the search shifted from safety to the detection and collection of evidence” (Mann at para. 49). Although it is conceivable that drugs may pose a safety risk to the individual who consumes the drugs, this was not offered as a reason to take and examine the pill bottle.
[58] Was Mr. Williams aware of the potential consequences of giving the consent? As noted, I find that the only purpose for the search given by the officers was a “safety” search for weapons. Consequently, Mr. Williams could not have been aware that the search could lead to a search for contraband.
[59] As such, I conclude that the search for anything other than weapons was not authorized by law.
Should the evidence be excluded under s. 24(2) of the Charter?
[60] While society would expect nothing less than the concern for the safety of Mr. Williams and his companions as shown by these officers that evening, the actions of the officers that impact upon the Charter-protected interests of Mr. Williams must be examined critically.
[61] The “safety” search was not justified. To the extent that there was the voluntary consent to a search, it was a search for weapons only. As such, the admission of the evidence would, in my opinion, send the message that the justice system condones serious state misconduct. The unlawful “safety” search was a significant breach of Mr. Williams’ right to be secure against unreasonable search. Similarly, to go from a consensual search for weapons to a search for evidence of criminal activity, when there were no reasonable and probable grounds to conduct that search, is also a significant breach of Mr. Williams’ right to be secure against unreasonable search. Individual rights are not to be ignored because of expediency or, as was suggested, police policy, to the detriment of Charter rights.
[62] The evidence of the drugs obtained as a consequence of the Charter breaches is highly reliable and critical to the Crown’s case. Possession for the purpose of trafficking is a serious offence. I take judicial notice of the significant impact that trafficking of illegal drugs has upon persons residing in Northwestern Ontario and, particularly, upon Indigenous persons in our towns and remote communities. I am satisfied that 660 ½ illegal Percocet pills would cause considerable harm. However, the public also has a vital interest in a justice system that is beyond reproach. In the circumstances of this case, to allow this unlawful and significant incursion on Mr. Williams’ rights would, I conclude, undermine the repute of the administration of justice.
[63] Accordingly, the drugs seized from Mr. Williams’ person are excluded as are the drugs and other material discovered as an incident to arrest. But for the unauthorized search and discovery of the prescription bottle, there would not have been any search of the backpack.
[64] The application is allowed.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: August 14, 2020