Introduction

[1] The defendant is charged with four counts of possession of drugs for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), and one count of possession of the proceeds of crime contrary to s. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46. The evidence against the defendant was obtained during the execution of a search warrant on an apartment in which he was present at the time. Cash was found in the apartment, and two small bags found to contain cocaine, heroin and fentanyl, were found on the defendant during a “pat-down” search.

[2] The defendant applies for an order excluding the evidence found on the search. He submits that his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) were violated by the police in conducting the pat-down search and that the evidence obtained thereby should be excluded pursuant to s. 24(2) of the Charter.

The search on June 21, 2018

[3] On June 21, 2018, at approximately 5AM, officers of the Toronto Police Service executed a search warrant at Apartment 304, 3725 Dundas Street West in Toronto. The search warrant, issued by Justice R. Kelly of the Ontario Court of Justice on June 18, 2018, was part of “Project Patton” and sought evidence to support charges of participating in a criminal organization pursuant to s. 467.11 of the Criminal Code and conspiracy to traffic controlled substances contrary to s. 465(1)(c) of the Criminal Code. The warrant authorized a night search.

[4] The target of the search was Shane Evans, who was associated with the address named in the search warrant. The officers hoped to effect the arrest of Mr. Evans. In a briefing at approximately 3AM on June 21, 2018, prior to the search, the police officers executing the warrant were provided with information about Mr. Evans, including a description of him.

[5] Seven officers were involved in the search, including two uniformed officers. Three officers testified on this application: PC George Christou, who was in uniform; DC Scott Kangas, whose role was to take photographs; and DC Kas Salihu, at the time a member of the Major Crime Unit.

[6] The apartment door was forced open at 5AM. A man and a woman were found in bed in one of the two bedrooms. They had been asleep and were awoken by the arrival of the police. The woman’s name was Carolyn Walker, and the man was the defendant, Nigel Joseph-Palmer. There is no evidence that Mr. Joseph-Palmer was known to the police or was a target in Project Patton. His home address was elsewhere and there is nothing which linked him to the premises at 3725 Dundas St. West.

[7] Mr. Joseph-Palmer was found wearing a white t-shirt and red gym shorts. There is no evidence as to what Ms. Walker was wearing. She was clutching Mr. Joseph-Palmer when the police entered the bedroom and she had to be forcibly separated from him. Both Ms. Walker and Mr. Joseph-Palmer were immediately handcuffed from behind.

[8] At the trial, PC Christou testified that he took Mr. Joseph-Palmer into the living room and searched him by running his hands along the defendant’s clothing. He said he felt two hard, “ball-like” objects along the waistband and on the right front of Mr. Joseph-Palmer’s shorts. He removed one object from the right front coin pocket, described as a very small mesh pocket one or two inches in size. The other object was removed from the right front pocket. These golf-ball sized objects were in small plastic bags. PC Christou said he removed them to make sure they were not weapons, saying he was looking for anything sharp, such as a razor blade, as he has had previous experience with concealed sharp implements. PC Christou testified that he believed the bags contained drugs and placed them on a window ledge. This all occurred within four minutes of the police entering the apartment.

[9] PC Christou described Mr. Joseph-Palmer as shocked but cooperative. As PC Christou put it, he was “good with us.” Following the search of him by PC Christou, Mr. Joseph-Palmer provided his name and personal information, including his date of birth, address and phone number. He stood by during the search of the apartment, and was later released from the scene. The charges against Mr. Joseph-Palmer were laid later, after the plastic bags were analyzed and found to contain controlled substances.

[10] Although DC Kangas initially handcuffed Ms. Walker and told her that they were executing a search warrant, there is no evidence as to what else, if anything, happened to her during the search of the apartment.

[11] In the apartment the police found and seized a digital scale, three cellphones, a small amount of marijuana (3.44 grams) and $980 in cash. One of the cellphones was found inside a bag described as a “fanny pack” along with some of the cash, perhaps $300 or $400. There is no evidence as to whose phones they were, nor to whom the fanny pack belonged, or the scale, and it is unclear where the balance of the cash was found. The cash was in good condition. Nothing was sent for fingerprint analysis.

[12] In the property report completed that morning by DC Salihu, the two plastic bags taken from Mr. Joseph-Palmer were described as containing crack, one weighing 8.3 grams and the other weighing 5.33 grams. Subsequent analysis indicated that the smaller bag contained cocaine and the larger bag contained a mixture of cocaine, heroin and fentanyl, all of which are controlled substances under the CDSA.

[13] Mr. Evans was not in the apartment. The evidence supports the conclusion that the officers knew right away that Mr. Joseph-Palmer was not Mr. Evans. DC Salihu acknowledged this in his testimony. Both DC Salihu and DC Kangas had reviewed a photograph of Mr. Evans prior to the search, and although he could not remember and had no notes of it, PC Christou likely would have done so as well. PC Christou described him as an unknown male at the trial.

Issues

[14] There are two issues to be resolved:

(a) whether the search of Mr. Joseph-Palmer by PC Christou was a violation of Mr. Joseph-Palmer’s rights under s. 8 of the Charter; and

(b) if so, whether the evidence found on Mr. Joseph-Palmer should be excluded pursuant to s. 24(2) of the Charter?

Discussion

Legal principles regarding safety searches

[15] The issuance of a search warrant does not permit police officers to search persons found at the location of a search. People found in the location may be detained or “frozen” while the search is conducted, but something more is required to actually search the individuals.

[16] In R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, the Supreme Court recognized that the police have the power to detain individuals for investigative purposes and that such detention does not violate s. 9 of the Charter which states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” This includes detaining people in the location of a search warrant in order for the police to carry out the terms of the warrant.

[17] However, as the Court noted at para. 35 of Mann, any intrusion on the liberty of an individual “must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.” Investigative detention does not permit, or include, the power to search an individual. As the Court stated at para. 36:

Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, [1987)] 1987 CanLII 84 (SCC), 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32.

[18] Further, the Court noted at para. 37 of Mann that there is an important distinction between a search incidental to arrest and a search incidental to an investigative detention, stating: “The latter does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible.” The Court continued at para. 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]

[19] In Mann, the accused was stopped because he matched the description of the suspect of a reported break-and-enter at that location. He identified himself and was then given a pat-down search for concealed weapons. The officer felt a soft object in one pocket and reached into the pocket and found marijuana. The Supreme Court held that the officers were justified in detaining Mann, as he matched the description of the offender. Further, a “protective” pat-down search was reasonable as there was a “logical possibility” that he was in possession of “break-and-enter tools, which could be used as weapons.” However, the search of the pockets was “more intrusive” and unreasonable as the trial judge had found there was no basis to go beyond the pat-down search for security reasons. At that point the search became a search for evidence without reasonable and probable grounds. Despite the limited intrusiveness of the search, the Supreme Court agreed with the trial judge that the evidence should be excluded under s. 24(2) of the Charter.

[20] In R. v. Clayton, [200] 2 SCR 725, the Supreme Court applied the principles in Mann to uphold the lawfulness of a warrantless search of a vehicle and a pat-down search which revealed loaded handguns. However, there was much evidence to support the safety concerns of the police, who had been called to a scene in which guns were suspected to be present and the people detained were acting in a manner that gave rise to additional concerns.

[21] In R. v. MacKenzie, 2013 SCC 50, [2013] 3 SCR 250 at para. 65, the Supreme Court cautioned that “while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope.”

[22] The following year, in R. v. MacDonald, 2014 SCC 3, [2014] 1 SCR 37 at para. 32, the Supreme Court observed that a “safety search” “will generally be conducted by the police as a reactionary measure… in response to dangerous situations… guided by on-the-spot observations.” The majority decision written by LeBel J. concluded at para. 41 that safety searches are authorized “only if the police officer believes on reasonable grounds that his or her safety is at stake”, making the search necessary. As LeBel J. continued:

The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter [citation omitted]. 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 from the known facts of the situation” (Mann, at para. 41).

[23] The cases of MacDonald and MacKenzie did not deal with pat-down searches. But in R. v. Peterkin, 2014 ONCA 8, the Court of Appeal applied the test in MacDonald to uphold a pat-down search arising from the detention of an individual who had been found in a dark backyard when the police were responding to a 911 call from that address, and after the detained individual acted suspiciously.

[24] The Crown has cited a number of additional cases dealing with pat-downs and safety searches. These cases all turn on their facts, and many arose in the context of detaining a suspect at the scene of a crime or shortly after the offence had been committed. The cases are also influenced by the concern that these searches often arise in “dynamic and potentially life-threatening” situations (R. v. Ellis, 2016 ONCA 598 at para. 30) and that “police officers should be given a good deal of leeway and second guessing should be avoided”: R. v. White, 2007 ONCA 318 at para. 54.)

Application to the facts

[25] Applying these principles to this case involves an assessment of the totality of the circumstances, including what motivated PC Christou to conduct a pat-down search of Mr. Joseph-Palmer.

[26] The Crown highlights the context and totality of the circumstances, noting that the search warrant was part of an investigation of a criminal organization involved in drug trafficking, and that drug trafficking is associated with weapons. In effect, as a CDSA search warrant, it is argued that the officers were in a dangerous situation in an unsafe environment, and that a pat-down of anyone in the apartment was justified to ensure the safety of the officers conducting the search.

[27] The defence emphasizes the fact that Mr. Joseph-Palmer was simply found in the premises. He was not the person the police were looking for, was woken up in the middle of the night, was wearing very little and was cooperative. PC Christou, it is argued, had no basis to believe that Mr. Joseph-Palmer posed a safety threat. Further, he was handcuffed.

[28] The defence highlights the poor quality of PC Christou’s evidence. His notes were sparse, and his memory was poor. Unlike the other officers who testified, PC Christou had no notes or recollection of looking at a photo of Mr. Evans, nor did he even have a description of him. Yet he attended the same briefing as DC Kangas and DC Salihu. He could not recall if he ever looked at the search warrant. Although the first one into the apartment and the bedroom, he made no note of who was with him or who turned on the light in the bedroom. He could only confirm that he handcuffed Mr. Joseph-Palmer behind his back by looking at his notes.

[29] PC Christou’s notes did not say or contain anything to suggest that he detained Mr. Joseph-Palmer and conducted a pat-down search for safety reasons. Indeed, in cross-examination he could not say whether it was him or someone else who decided to detain the defendant. He also had no memory of whether it was him or someone else who decided to search Mr. Joseph-Palmer. He said this is “part of policing” and “part of a search warrant”, and that “nobody wants to get hurt.”

[30] In his evidence-in-chief at trial PC Christou said the search was conducted for safety reasons, but there was no evidence that suggested Mr. Joseph-Palmer had weapons or posed a safety threat. This is not surprising given that he had just been pulled out of bed, was wearing very little, and had already been handcuffed behind his back. Further, there was nothing in Mr. Joseph-Palmer’s appearance or conduct that suggested he was concealing a weapon or would be a safety threat. Indeed, in re-examination PC Christou said there were no obvious bulges in Mr. Joseph-Palmer’s clothing and, as noted earlier, he was cooperative.

[31] PC Christou’s evidence at trial contrasted with his testimony at the preliminary inquiry where, when asked why he searched Mr. Joseph-Palmer, he stated that “we want to make sure that he doesn’t have any weapons”, “among other things.” Of course the reference to “we” begs the question that could not be answered by PC Christou, which is who decided to conduct the pat-down search. Further, when pressed on his reference to “among other things”, he agreed that it was possible he was also looking for contraband or drugs, but then said “sorry” and stated: “I’m just going to go with weapons at this point right now.” When confronted at trial with this testimony, PC Christou said he was “under the weather” when he testified at the preliminary inquiry and had not been “prepped.”

[32] There was no evidence from DC Kangas or DC Salihu about any safety concerns regarding Mr. Joseph-Palmer or Ms. Walker. There was no evidence that Ms. Walker was subjected to a pat-down search.

[33] Nor did PC Christou make notes of his actual search and seizure of the drugs from Mr. Joseph-Palmer. He simply said that he reached into the inside coin pocket first and then reached into the outside pocket.

[34] In my view, the police had grounds to detain Mr. Joseph-Palmer in order to conduct the search permitted by the search warrant. Consequently, he was not arbitrarily detained contrary to s. 9 of the Charter, nor is that argument pressed by defence counsel.

[35] However, the police had no “objectively verifiable” grounds to conduct a pat-down search of Mr. Joseph-Palmer, and in doing so they breached his “right to be secure against unreasonable search or seizure” protected by s. 8 of the Charter. As the Supreme Court made clear in Mann, a search power “does not exist as a matter of course.” A police officer “must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk.” The only ground here, taking into account the “totality of the circumstances”, is that this was a search under the CDSA involving an alleged drug trafficking operation. This is not enough.

[36] The Crown’s submission, in effect, is that when police are engaging in searches involving these types of offences they have carte blanche to conduct pat-down searches on persons found at the location of a search. In my view that is not the law and would be a departure from the guidance set out in Mann. I also observe that in a recent Court of Appeal case where the suspect was found at the place of the search, he was initially only placed in handcuffs, and not searched until he was placed under arrest and readied for transport: R. v. Pileggi, 2021 ONCA 4 at para. 50.

[37] I appreciate that such circumstances are dynamic and highly charged, that this type of police work can be dangerous and calls for quick decisions, and courts should be cautious in second-guessing those decisions; but those concerns do not arise here. The objective of the warrant was to surprise and arrest Mr. Evans. It became clear immediately following entry that Mr. Evans was not in the apartment; instead an unknown couple were awoken in bed in the middle of the night and there was nothing in their appearance or behaviour that gave rise to any safety concerns that would justify a pat-down search.

[38] At its highest, the evidence supporting the search of Mr. Joseph-Palmer was a vague concern for safety due to the fact that the police were executing a search warrant. Although, as the Crown conceded, PC Christou was not a strong witness in explaining the search who said “[a]mong other things, …we want to make sure that he doesn’t have any weapons,” there was no evidence from the other officers as to whether they had concerns that Mr. Joseph-Palmer, or Ms. Walker, had weapons.

[39] In short, therefore, this is not a situation in which the court is second-guessing difficult split-second decisions. Rather, in my view, in the absence of any reasonable belief that Mr. Joseph-Palmer had a weapon or posed a safety risk, the police conducted an unreasonable pat-down search which was, “among other things”, intended to see if drugs could be found. This was, therefore, a warrantless and unreasonable search in breach of s. 8 of the Charter.

Section 24(2) of the Charter – should the evidence be excluded?

[40] Having concluded that the evidence against Mr. Joseph-Palmer was “obtained in a manner” that infringed his rights under s. 8 of the Charter, s. 24(2) of the Charter requires that “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[41] In R. v. Grant, 2009 SCC 32 at para. 67, the Supreme Court stated that the purpose of the section is “to maintain the good repute of the administration of justice.” To meet that purpose the Court emphasized that one must take a broad view of the administration of justice and ask “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.” (para. 68) One should not focus on the public’s reaction to a particular case, but at the impact exclusion of evidence would have on the “overall repute of the justice system.” The focus is on “systemic concerns.”

[42] The Court set out three factors to assess and balance in applying s. 24(2): “(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.”

Seriousness of the Charter violation

[43] The Crown argues that the breach of Mr. Joseph-Palmer’s right under s. 8 was not serious, asserting that the police conduct was not high-handed and that the pat-down took only a few seconds. The Crown cites a number of other cases where evidence obtained following pat-downs has been admitted (see, e.g., R. v Aucoin, 2012 SCC 66 at paras. 45-52; R. v. Williams, 2013 ONSC 1399 at paras. 179-182; R. v. Gobire, 2013 ONSC 2921 at paras. 48-53); however those cases dealt with quite different facts which reduced the seriousness of the breach of Charter rights.

[44] In this case, as I have found, PC Christou had no reasonable basis to conduct a safety search but was, in fact, looking for drugs, which he found when he reached into the accused’s pockets. There is much similarity between this case and Mann. There, although the officer had grounds to conduct the protective search, the grounds did not extend to reaching into the suspect’s pocket when the officer had no basis to think that anything in the pocket raised a safety concern. In conducting the s. 24(2) analysis, the Supreme Court agreed with the trial judge that the actions constituted a serous breach of the accused’s Charter rights under s. 8.

[45] I reach the same conclusion. The difference between this case and Mann is that here PC Christou had no basis to conduct the pat-down search in the first place. Further, in light of PC Christou’s poor evidence on why he even conducted a search, I do not accept his assertion that he reached into Mr. Joseph-Palmer’s pockets to look for something sharp, when all he felt were small, hard, golf ball sized objects.

[46] Accordingly, I conclude that the seriousness of the breach favours exclusion of the evidence.

Impact on the Charter-protected interests of the accused

[47] As the Supreme Court stated in Grant, at para. 78: “an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.”

[48] In my view, the impact on Mr. Joseph-Palmer was serious. Although the pat-down was brief, it was intrusive and had a serious impact on Mr. Joseph-Palmer’s protected interests, which must be recognized. This factor also favours exclusion.

Society’s interest in an adjudication on the merits

[49] In considering this factor I must consider “not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.” (Grant, para. 79, emphasis in original)

[50] There is no doubt that the evidence obtained is reliable and establishes, at least, that Mr. Joseph-Palmer was in possession of serious, harmful drugs. The Crown called a police expert who testified that the quantity found was consistent with that which would be possessed by someone trafficking in those substances. The offences, therefore, are serious. Thus, the Crown argues that public confidence in law enforcement and the administration of justice will suffer if the evidence is excluded. Given the reliability of the evidence obtained, which is physical and non-bodily, society’s interest in having the case adjudicated on its merits favours admitting the evidence: Grant at para. 115.

Conclusion on s. 24(2)

[51] Considering the totality of the circumstances, and weighing the three factors above, I conclude that the evidence should be excluded. While the evidence is reliable and would support a conviction on, at least, possession charges, one must be cautious not to put too much weight on the seriousness of the offence but remain focused on the “longer-term repute of the administration of justice.” (Grant, para. 84)

[52] To accede to the Crown’s submission and admit this evidence would, in my view, effectively condone pat-down searches where any search warrants relating to drug trafficking are executed. No evidence was called to support such an exceptional proposition; indeed, as noted, neither DC Kangas nor DC Salihu, both of whom were much more experienced in these types of cases and situations than PC Christou, gave evidence which would support the need for automatic safety searches.

[53] Charter rights must be protected as much as reasonably possible; it is often said that there is no right without a remedy. Here, there was no basis for the pat-down search and the court should not carve out exceptions to condone searches in circumstances when they have no justification in the evidence. To find that evidence obtained in the circumstances of this case is admissible would create a systemic concern about police conduct overriding Charter rights and have a negative impact on the “overall repute of the justice system.” Accordingly, in my view admission of the evidence obtained from Mr. Joseph-Palmer would bring the administration of justice into disrepute and I order that it be excluded.

Conclusion

[54] The application by the accused to exclude the evidence seized from him during the search is allowed. Accordingly, as the Crown has no other evidence to present, Mr. Joseph-Palmer is acquitted of all charges.

Paul B. Schabas J.

Released: November 3, 2021

COURT FILE NO.: CR-19-10000419-0000

DATE: 20211103

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NIGEL JOSEPH-PALMER

REASONS FOR JUDGMENT

Schabas J.

Released: November 3, 2021

R. v. Joseph-Palmer, 2021 ONSC 7268

Case Summary

Introduction

The search on June 21, 2018

Issues

Discussion

Legal principles regarding safety searches

Application to the facts

Section 24(2) of the Charter – should the evidence be excluded?

Seriousness of the Charter violation

Impact on the Charter-protected interests of the accused

Society’s interest in an adjudication on the merits

Conclusion on s. 24(2)

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 7