No Free Downloads

Jeremy Glenfileld was charged with impaired driving causing death, dangerous driving causing death and refusing to provide a sample of his breath.  Shortly before Christmas in 2011, Glenfield was alone in his car when he ran a stop sign and struck the Huber family, husband and wife and their two young sons, who were proceeding lawfully through the intersection. Glenfield struck the driver’s side passenger door where 11 year Jeremy was sitting; he died the next day.

At the time of the accident it was snowing lightly and the roads were wet. Witnesses smelled alcohol on Glenfield’s breath. Within 6 minutes of arriving on scene police issued a roadside demand, which Glenfield failed. Later at the police station Glenfield refused to provide a sample of his breath.

Glenfield elected to have a preliminary hearing; he was committed to stand trial. Glenfield then elected to have trial by judge and jury. At the start of his trial and with the Crown’s consent Glenfield re-elected to have a trial by judge alone. The trial proceeded in a blended fashion with Glenfield’s two applications to have evidence excluded heard along with the trial evidence.

One of the applications concerned the “Event Data Recorder [EDR]” seized from Glenfield’s Jeep at the scene of the accident: 2015 ONSC 1304.  Cst Stotts arrived on scene nearly an hour after Glenfield had failed the roadside demand. Stotts was assigned to collect “roadway evidence.” Stotts had no idea who the Jeep belonged to and if any charges had been laid. Stotts entered the Jeep and downloaded the information on the EDR. Stotts testified that he did so in order to avoid having the EDR reset by the jostling that would be caused by towing.

To get to the EDR, Stotts forcibly removed a cover in the front passenger area of the console and using a Crash Data Retrieval system he downloaded some of the data. It is that information that Glenfiled sought to have excluded on the basis that his right to be free from unreasonable search and seizure had been violated.

Hambly J held that “the owner of the damaged vehicle in a collision has a reasonable expectation of privacy in the contents of the EDR” [para 46]. Since the police had neither Glenfield’s consent nor a warrant they were trespassing when they entered Glenfield’s vehicle.

Hambly J held that there was no evidence that police:

knew how the accident happened. He sought to download the EDR in the Huber van but did not have the equipment to do so. He seems to have proceeded on the basis that there was a motor vehicle accident resulting in two damaged vehicles. He would therefore download the EDR information on them that he could conveniently access. This could be used in the prosecution of any charges that might be laid. If this is permitted, this means that the police can without a warrant enter any damaged vehicle at the scene of an accident, gain access to a computer like device in the vehicle by damaging the vehicle and download information from it of extensive details about the movement of the vehicle. There were no exigent circumstances making it necessary for the police to act before obtaining a warrant. The police could have entered the vehicle for the sole purpose of deactivating the power to the EDR. This would have protected the risk of the information recorded of the movement of the vehicle in the five seconds before the accident being erased by an accidental event. The vehicle could have been towed to a storage yard and a warrant obtained the following day. The vehicle also could have been left at the scene until the following day. It was not obstructing traffic. A police officer could have been stationed there to maintain the security of the vehicle.6. Biographic Core Test [para 51].

After concluding that the police had violated Glenfield’s section 8 Charter rights the court then turned to whether the evidence should be excluded. Hambly J held first, that the seriousness of the breach was at the low end of the spectrum [para 74]. Second, that the impact on Glenfield’s Charter protected interest was low. [para 75] Third, that the exclusion of the evidence would effectively gut the crown’s case. [para 76]

In balancing the factors the Court concluded that Glenfield had failed to establish administration of justice would be brought into disrepute by the admission of the EDR evidence. [para 78]

One important aspect of this decision is Hambly J’s instruction to police on how they could have lawfully secured and searched for the data on the EDR.  Hambly J explained that “police could have entered the vehicle for the sole purpose of deactivating the power to the EDR”. By deactivating the power they would have protected the information on the EDR while they secured a warrant. [para 51] 

LT

USB Key Searches

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In recent years a steady stream of authority from the Supreme Court of Canada has made clear that specific prior judicial authorization is required to search a personal computer. The most recent example is the decision of the Supreme Court of Canada in R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII), which held that computers found while carrying out a search cannot be searched unless specifically authorized by a search warrant.

The Court in R v Vu seemed to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search—items such as USB keys, memory cards for cameras, and similar devices.

The Ontario Court of Appeal appears to have closed the door in R v Tuduce, 2014 ONCA 547 (CanLII).

The analysis in R v Vu

Much of the analysis in R v Vu focused on the difference between a computer and a “receptacle.”

A search warrant issued under s. 487 of the Criminal Code may authorize police officers to search “a building, receptacle or place” for the items named in the warrant, and to seize the items in evidence.  A warrant that authorizes police to search a particular place—such as a house—also authorizes police to search places and receptacles within that house. However, the Supreme Court of Canada in R v Vu ruled that this general principle does not apply to computers. The Court held that ordinary receptacles such as cupboards and filing cabinets are markedly different from personal computers, and that specific prior authorization is required to search a computer.

The Court stated four reasons why computers are markedly different from other receptacles:

• Computers store immense amounts of information. The scale and variety of the material that can be found on a computer makes comparison with traditional receptacles unrealistic.
• Computers contain information that is automatically generated, often unbeknownst to the user. A computer is a “fastidious recordkeeper” that documents when and by whom a file was created and accessed; logs a user’s Internet browsing habits; and stores the user’s search histories. In the context of a criminal investigation this data can enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly. This kind of information has no analogue to other types of receptacles found in the physical world.
• A computer retains files and data even after users think that they have destroyed them. It creates information without a user’s knowledge, and retains information that the user has tried to erase.
• A search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized. [@ paras 41-44]

The Court concluded:

These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule -- that if the search of a place is justified, so is the search of receptacles found within it -- simply cannot apply with respect to computer searches. [@ para 45]

The above analysis merits two comments. First, none of the four differences discussed in R v Vu is unique to a computer. A traditional receptacle like a filing cabinet, bookcase, or a banker’s box full of papers is also capable of storing a large volume of information. In any event, the volume of information could not have been determinative. It has never been the case that police searching a building would be entitled to search one or two filing cabinets, but would need a search warrant if they happened to find one hundred filing cabinets. A physical document like a log book, leger, or photo album can retain physical evidence (such as fingerprints and DNA) that could enable an expert to identify exactly what pages had been accessed, and by whom. Firing a gun generates new data unbeknownst to the user, such as firing pin marks, bullet striations, and ejector marks. It has always been true that the search of one place can reveal another building, receptacle, or place, including the exact address and the keys or combination needed to access it. However, a charitable reading of the Court’s analysis should not parse the differences in this manner. It is not any one of the differences on its own, but rather the totality of the differences and their magnitude in combination that justifies the different treatment of a computer.

Second, it was not obvious how the analysis in R v Vu would apply to an electronic device that functions exclusively as a storage container. A floppy disk, USB key, or flash memory card does not have its own operating system, does not generate data, and unless it is connected to a computer it cannot connect to a network or the Internet. Most of the differences in R v Vu did not appear to apply to an electronic device that is more like a container than a computer. Thus, R v Vu appeared to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search.

The decision in R v Tuduce

In R v Tuduce, 2014 ONCA 547 (CanLII), the Ontario Court of Appeal considered the warrantless search of a USB key that was seized incidental to an arrest.

In 2012 Adrian Tuduce was convicted of seven credit card fraud-related offences and sentenced to two years less a day’s imprisonment and two years of probation. His participation in the fraud was discovered by accident. A Waterloo Regional Police officer pulled Mr. Tuduce over for speeding. The officer searched Mr. Tuduce on police databases and discovered he was a suspended driver. The officer arrested Mr. Tuduce and conducted a pat-down search, locating USB key and bundle of credits cards in someone else’s name. The officer found other items in the vehicle that caused him to believe Mr. Tuduce was in possession of stolen credit cards. Fraud investigators seized the USB key incidental to arrest and submitted it for forensic analysis. The USB key contained stolen credit card data and photographs of credit card data skimming equipment.

The trial judge held that the warrantless search of the USB key infringed Mr. Tuduce’s s. 8 Charter rights, but admitted the evidence under s. 24(2): 2011 ONSC 2749 (CanLII).

On appeal, Mr. Tuduce challenged the trial judge’s decision to admit the USB key evidence under s. 24(2). The appeal was dismissed: 2014 ONCA 547 (CanLII).

The Court noted that the Supreme Court of Canada in R v Vu reviewed the privacy considerations that apply to searches of personal computers and held that they apply to USB keys, for three reasons:

• A USB key can store a significant amount of data.
• Data can be left on a USB key without a user’s knowledge, including information about the date and time a file was created or modified, and information about the user who created or modified the file.
• A user does not have complete control over which files an investigator will be able to find on a USB key because—like a computer hard drive—the unallocated space in USB key may contain files that could be retrieved by a forensic expert. [@ paras 71-73]

The Court commented that a USB key may not contain personal information such as a list of contacts, the contents of past communications, and information a user’s web searching habit. This makes a USB key different from a home computer or cell phone. On the other hand, a USB key will attract a greater expectation of privacy than a work computer. This is because the two factors that diminish the expectation of privacy in a work computer—that the computer is not actually owned by the user, and the employee’s use of the computer is often subject to terms and conditions imposed by the employer—do not apply to personal storage devices like a USB key. [@ paras 74-75]

Strictly speaking, the Court of Appeal did not rule that specific, prior judicial authorization is required to search a USB key. That is because the trial judge’s ruling on the lawfulness of the search was favourable to Mr. Tuduce and therefore not a ground of appeal.

However, the broader implication of the decision cannot be ignored. The Supreme Court of Canada in R v Vu concluded that certain factors make a computer markedly different from other things that can be searched; and that specific, prior judicial authorization is therefore required to search a computer. The Ontario Court of Appeal in R v Tuduce held that the factors cited in R v Vu also apply to a USB key. This analysis leaves little doubt about how it would have ruled, had the s. 8 issue been properly before it.

The decision of the Ontario Court of Appeal in R v Tuduce is the strongest possible signal that absent exigent circumstances, police will require specific, prior judicial authorization before searching a USB key.

MGM

The views expressed in this post are those of the author, and do not necessarily represent the views or policy of the Ministry of the Attorney General.

New & Notable: Illustrating the need for 24(2)

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TGH sexually abused his step-son and step-daughter when they were children. The abuse spanned a period of 10 years. The abuse included acts of oral and anal sex that would give the step-son a direct view of TGH’s anal area. The step-son reported to police (and later testified at trial) that TGH had a flap of skin or “skin tag” over his anus. The step-son provided a detailed description of the skin tag, including its approximate size, appearance, and location.

TGH was arrested, provided with his right to counsel, interviewed, and ultimately released from custody. Ten months later the detective in charge of the case obtained a general warrant pursuant to section 487.01 of the Criminal Code, authorizing her to take TGH to a hospital, examine his anal area, and if a skin tag was found to photograph it. The detective attended TGH’s home and showed him the warrant. She did not advise TGH of his right to counsel when she detained him, or at any time during the execution of the warrant. TGH was brought to the hospital where he was told to bend over or lie on the bed and spread his buttocks. The detective observed a skin tag near TGH’s anus and took three photographs.

At trial the accused applied to exclude the evidence of TGH’s skin tag pursuant to section 24(2) of the Charter, on three grounds:

1. The search in this case interfered with the bodily integrity of TGH, and consequently was outside of the scope of the general warrant provisions of the Criminal Code, thereby breaching his rights under s. 8.
2. The search was not carried out in a reasonable manner, in that the detective required TGH to spread his buttocks, which was not expressly authorized by the warrant, thereby breaching his rights under s. 8.
3. The detective did not advise TGH of his right to counsel when she detained him and brought him to the hospital to be examined, thereby breaching his right to counsel under s. 10(b).

The trial judge found that TGH’s Charter rights were not breached and admitted the evidence: [2012] OJ No 6478 (SCJ).

On appeal, TGH raised only the second and third ground. The Ontario Court of Appeal ruled that the search was carried out in a reasonable manner and no s. 8 breach occurred. The court found that TGH’s s. 10(b) rights were breached, but admitted the evidence under s. 24(2). In the result, the appeal from conviction was dismissed: 2014 ONCA 460 

The search was carried out in a reasonable manner

The Court of Appeal acknowledged that the search authorized by the general warrant was “invasive under any definition of that word,” and agreed that the powers granted to police by such a warrant should be both carefully delineated and narrowly construed [para. 47].

Nevertheless, the Court held that a warrant authorizing police to view a part of a person’s body necessarily includes positioning or bodily movements that allow a full viewing:

Setting aside intrusive measures that could compromise bodily integrity and, therefore, exceed the scope of a general warrant, I regard the authority to view a part of a person’s body as necessarily including positioning or bodily movements so as to allow a full viewing.  For example, if the police were authorized to view the area under a person’s arm for the presence of a tattoo, I have no doubt that the warrant would empower the police to require the subject to lift his arm.  The requirement that the appellant spread his buttocks, while no doubt more embarrassing than lifting one’s arm, is qualitatively no different for the purposes of assessing the reasonableness of the manner in which the police executed the warrant.  [para 48]

Police were required to advise TGH of his right to counsel upon detention

It was not in dispute that TGH was detained when the detective attended his house, showed him the general warrant, and brought him to the hospital to be examined. The arguments on appeal focused on whether, having complied with the right to counsel at the time of initial arrest, a second right to counsel warning was required when TGH was detained 10 months later for the purpose of executing the general warrant.

The Supreme Court of Canada in R v Sinclair, 2010 SCC 35 (CanLII), held that in most cases an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b) [para 2].

The Ontario Court of Appeal disagreed that this principle relieved police of the obligation to provide the right to counsel when TGH was detained for the purpose of executing the general warrant.

First, the Court held that the facts of this case were distinguishable from Sinclair because there were two different detentions separated by a significant period time:

I do not think Sinclair supports the trial judge’s holding that the police were not obliged to advise the appellant of his s. 10(b) rights.  I come to that conclusion for two reasons.  First, the principle enunciated in Sinclair assumes a single ongoing detention and speaks to situations in which the police are obliged to repeat the detainee’s s. 10(b) rights in the course of that single detention.  In my view, Sinclair has no application to a situation like this where the appellant was arrested, advised of his s. 10(b) rights as required, released, and then some 10 months later detained for the purpose of executing the general warrant.  The initial detention upon arrest in January 2011 and the subsequent detention for the purpose of executing the warrant in October 2011 were entirely distinct from each other and must be treated as such for the purposes of s. 10(b).  The question raised on these facts is not whether the police were required to restate the appellant’s s. 10(b) rights in the course of his detention, but rather whether they were required to comply with s. 10(b) when they detained the appellant for a second time many months after the initial detention. [para 37]

Second, the Court held that, in any event, Sinclair requires police to provide the right to counsel a second time when the circumstances are such that the purpose animating the right to counsel requires a repetition of the s. 10(b) rights:

Even if I am wrong and the principle in Sinclair does apply, the appellant’s detention in October 2011 for the purpose of executing the general warrant falls squarely within one category of cases that Sinclair recognizes as requiring a second compliance with s. 10(b).  As Sinclair explains, at para. 50:

The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee.  Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation.  It follows that to fulfill the purpose of s. 10(b) of providing the detainee with information necessary to make a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary. [Citation omitted; emphasis added.]

The examination authorized by the general warrant was about as far from a “routine procedure” as one could get.  No one would suggest that the appellant’s lawyer, when he was advising the appellant at the time of his arrest, could have anticipated an order in the terms of the general warrant and given the appellant the appropriate advice.  It also is irrelevant that the appellant was required to comply with the warrant and that any advice he might have received from his lawyer would not have altered that reality.  The appellant was entitled to legal advice even if that advice left him with few, if any, options other than compliance.  The appellant was entitled to legal advice about the scope of the warrant and exactly what he had to do or, more importantly, not do, to comply with the warrant.  In any event, and assuming the lawyer could do nothing other than tell the appellant to comply with the warrant, that advice could be important in that a reasonable detainee, in the appellant’s position, might well refuse to allow the police to do what the warrant authorized.  Without proper legal advice, a detainee might well refuse to cooperate and find himself in further difficulty with the law. [paras 39-40]

The absence of a causal connection and the nature of the allegations were factors supporting admission of the evidence under s. 24(2)

In its s. 24(2) analysis the Court first noted the absence of a causal connection between the Charter breach and the evidence that was obtained. However, the evidence could still be excluded under s. 24(2) because there was a “clear temporal and transaction link between the breach, the execution of the warrant, and the retrieval of the evidence.” In this case the link was sufficient to trigger the exclusionary power of s. 24(2) [para 52].

Regarding the seriousness of the breach, the Court noted that the detective treated TGH with respect and dignity during the search procedure. Her conduct did not require a court to dissociate itself from the evidentiary fruit of her conduct [para 57]. The seriousness of the breach was also reduced because the detective did not question TGH, thus respecting his right to silence [para 56].

The Court concluded that the impact of the breach on the Charter-protected interests of the accused was tempered by two factors.

First, the police did not attempt to take advantage of the absence of legal advice by attempting to elicit incriminating evidence from the appellant in the form of admissions or other statements [para 59].

Second, there was no causal connection between the breach of TGH’s right to silence and the evidence obtained. Nothing suggested that anything a lawyer may have said would have altered the course of the police conduct:

The police would have taken the appellant to the hospital, executed the warrant as they were entitled to do and the photographs would have been taken.  The absence of any causal connection between the breach of s. 10(b) and the obtaining of the challenged evidence leads me to conclude that the evidence would have been available even if the police had complied with s. 10(b).  This diminishes, to some degree, the significance of the breach on the appellant’s Charter-protected interests: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 69-74; R. v. MacMillan, 2013 ONCA 109, 296 C.C.C. (3d) 277, at paras. 67-72. [para 60]

Finally, the Court held that society’s interest in an adjudication on the merits strongly favoured admission of the evidence. This was true, firstly, because the evidence was reliable.

The Court went further and held that the availability of reliable evidence capable of corroborating the complainants had additional significance in a trial of historical sexual assault allegations:

The negative impact on the administration of justice when reliable evidence is excluded is arguably particularly significant in cases involving allegations of historical sexual assaults.  In many of those cases, there is little evidence independent of the complainant’s allegations and the accused’s denials.  The outcome often turns on difficult credibility assessments.  The availability of independent reliable evidence can be important to the maintenance of confidence in the administration of justice in this kind of case.  To exclude that kind of evidence under s. 24(2) runs a real risk of bringing the administration of justice into disrepute. [para 62]

In the result the Court concluded that the observations and photographs of TGH’s anal area were admissible under s. 24(2).

MGM

New & Notable: Possibly is not Probably

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Yates’ driving drew the attention of Saskatoon Police Services Cst. Mudasia. Yates was observed speeding some 20-30 km/hr over the speed limit and abruptly veering between lanes.

Cst Mudasia pulled Yates over and approached the driver’s side window whereupon he noticed that the vehicle smelled like alcohol and that Yates had bloodshot, glossy eyes. Cst. Mudasia issued the roadside demand. Yates complied and the Approved Screening Device (ASD) registered a ‘fail’. Yates was arrested, cautioned, read his rights and the Intoxylizer demand and transported to the police station. 

Both Intoxylizer samples revealed that Yates had a criminal blood alcohol concentration when he was driving. The trial judge excluded those results pursuant to section 24(2) of the Charter on the basis that Cst. Mudasia breached Yates’ section 8 and 9 Charter rights.

The trial judge concluded that the Cst. Mudasia did not have the requisite reasonable suspicion for the ASD demand. The trial judge held that although she accepted the officer’s evidence about an odour of alcohol emanating from Yates’ vehicle she could not be sure that the odour was emanating from Yates’ breath. The trial judge found that because the officer could not remember if anyone was present in the vehicle with Yates, the source of the odour of alcohol was undetermined. The Crown unsuccessfully appealed to the Saskatchewan Court of Queen’s Bench. The Crown then appealed to the Saskatchewan Court of Appeal: R v Yates, 2014 SKCA 52.

The Saskatchewan Court of Appeal held that:

(…) the appeal court judge and the trial judge both misinterpreted the evidentiary and persuasive burden imposed on the Crown by requiring the Crown to prove that the respondent probably had alcohol in his body; whereas the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body. Specifically, the trial judge found the threshold of reasonable suspicion was not met because the Crown had failed to adduce sufficient evidence to eliminate possible sources of odour of beverage alcohol, which emanated from the respondent’s vehicle, other that the respondent. (…)

In my respectful view, the requirement that an investigating officer must have direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standard and the requirements of s.254(2)(b) [paras 37-38].

Both the trial judge and summary conviction appeal judge emphasized the Crown’s failure to establish that Yates was alone in the vehicle. The Court of Appeal gave short shrift to this argument noting that:

[t]here is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as to the possible source of the odour of beverage alcohol . The Crown need only proved that that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, facts known to the investigating officer and inferences of fact drawn by the investigating officer reasonably support a suspicion that the accused had alcohol in his or her body.

By holding the Crown to dispel speculation that other persons were in the vehicle or to definitively show that the respondent was the source (or was the probable source) of the odour of beverage alcohol, the trial court and the appeal court mistakenly elevated the evidentiary and persuasive burden imposed on the Crown and held the Crown to establish the validity of the s. 254(2)(b) demand on a standard greater than “reasonable suspicion” [paras 45-46].

Despite finding no Charter breaches, the Court of Appeal declined to enter a conviction and instead ordered a new trial. 

LT

New & Notable: Safety Searches Post MacDonald

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Tom Le was visiting a friend. He was in the backyard of the friend's residence hanging out. Le had some plans for that night; he hoped to sell some illegal drugs - he had them on his person for that reason. He also had a fully-loaded restricted firearm, namely a .45 calibre semi-automatic Ruger pistol. The gun was secured in a satchel that Le was wearing over his shoulder.

Le would later be arrested and charged with possession of that gun. At trial he sought to exclude the gun on the basis of alleged violations of his rights under sections 8 and 9. Campbell J dismissed his motion: 2014 ONSC 2033.

While Le was visiting his friend, the police happened to be in that same neighbourhood; they were looking for another man who was wanted for some violent offences. The police were directed to the house where Le was visiting. The police were also told that this residence was the source of some problems including suspected drug activity.

The police entered the backyard. Campbell J described what happened next as follows:

As the police officers were speaking to some of the young men, the accused, who had told the police he did not live in the residence, began behaving nervously, and was “blading” his body to the officer speaking to him so as to keep the satchel away from the officer.  The accused denied having any identification on his person and, when asked about his satchel, quickly fled from the area.  Two of the police officers quickly gave chase and were, eventually, able to tackle the running accused to the ground on a nearby street.  As they wrestled on the ground, with the two officers trying to subdue the accused, the police discovered the firearm in the satchel.  Subsequently, they discovered his illicit drugs [para 5].

At trial Le sought, inter alia, to exclude the evidence on the basis that his detention and the subsequent search violated sections 8 and 9 of the Charter. Campbell J rejected both arguments. 

First, Campbell J addressed whether the police were lawfully positioned when they first encountered Le. Relying on the implied invitation to knock and rejecting the assertion that the police had to attend at the front door - rather than walk straight into the backyard - Campbell J held that they were.

In the circumstances of the present case, the police officers clearly had a lawful reason to enter the backyard property and speak to the occupier.  They were pursuing an investigation of a wanted man who, they had been told, frequented that backyard area and had been seen hanging out there.  Further, the police had been told that the 84 Vanauley Walk address was a “problem” in relation to suspected drug trafficking.  In fulfilling their professional duties, the police were lawfully entitled to enter this backyard area in an effort to ascertain if any of the young men was an occupier of the residential premises there, and to pursue their investigations in relation to Mr. Jackson and potential drug trafficking.  There was no signage in the area that suggested the police were prohibited from entering the backyard, and no occupier of the premises ever expressly revoked their implied licence to enter the backyard area.  In short, the police officers were never trespassers in the backyard area of this address.  They entered lawfully pursuant to the implied licence doctrine, and remained there lawfully as they were never asked to leave by an occupier of the dwelling [para 70].

Second, Campbell J addressed the detention issue. In doing so he held that Le was not initially detained but, just prior to his flight, based on his conduct and the intervention of the police which then was directed at him, the police had the basis to detain him for investigative purposes and he was detained in law.

While the arrival of the police into the backyard area of 84 Vanauley Walk temporarily interrupted the conversations of the five young men, none of the police physically restrained the accused or made any demand or direction to him that interfered with his liberty.  The accused was not on his way anywhere, so the accused was not even “stopped” by the police or momentarily delayed on any journey. The accused was not subjected to any physical or psychological restraint by the police.  No police officer told him to do anything.  He was asked only for some identification.  A reasonable person in the position of the accused, at that point, would not have concluded that he had been deprived of the freedom to choose whether or not to co-operate with the police.  Indeed, the accused himself testified that he thought that he was free to leave the backyard area.  More particularly, the accused explained that he went to go inside the townhouse through the back door because he did not think he needed to remain in the backyard, as no police officer was talking directly to him.  According to the accused, it was only when Cst. O’Toole physically prevented him from going into the townhouse that “things changed” and he did not think he could leave.

In my view, the accused was only detained by the police when Cst. O’Toole asked him about the contents of his bag.  Cst. O’Toole may only have been inquiring about the bag as a way of asking whether the accused had any identification documents in his bag, but a reasonable person in the position of the accused, in those circumstances, might well interpret that inquiry as a tactical demand or direction in relation to the bag, which meant that the accused was no longer free to leave and had lost the freedom to choose whether or not to continue to cooperate with the police [paras 87-88].

Third, Campbell J addressed the search issue. In doing so, he concluded that in the circumstances the police had the basis to perform a pat-down - "safety search" - of Le during the investigative detention as there was a basis to believe he had a gun on his person [paras 94-97].

Notably, in undertaking this analysis Campbell J addressed the recent Supreme Court ruling in R v MacDonald, 2014 SCC 3 and whether it changed the standard for safety searches. Noting that whether the standard was reasonable grounds or reasonable suspicion, the officers had the requisite basis to search, Campbell J nonetheless offered the following interpretation of MacDonald.

There is some question whether the decision in R. v. MacDonald changes the legal threshold for lawful police “safety searches” from the traditional “reasonable suspicion” standard to a higher standard akin to the search warrant requirement of “reasonable and probable grounds.”  I do not read the R. v. MacDonald decision as having such an effect.  It is important to recall that, from its judicial inception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied, in somewhat different language, the standard of “reasonable suspicion” to measure the constitutional permissibility of such “stop and frisk” searches.  The significantly higher standard of “reasonable and probable grounds” has never been the required threshold, for the sound functional reason that it would render such searches legally redundant and practically useless.  If a police officer possessed reasonable and probable grounds to believe a suspect was armed and dangerous, the suspect would invariably be arrested, not merely detained, and would be physically searched as incident to that arrest.  There would be little point in the existence of the police “safety search” power, which has been clearly recognized in the appellate court jurisprudence, if it provided no search powers beyond those already recognized as being incident to an arrest.  Moreover, if police officers are to lawfully conduct investigations in relation to detained (but not arrested) suspects, it only stands to reason that they must be given the lawful means of taking the necessary steps to protect themselves and others during the course of such investigations.  Otherwise, the police would be needlessly placed at serious risk in the performance of their important public duties.  See: R. v. Chehil, 2013 SCC 49 (CanLII), 2013 SCC 49, at para. 3, 20-24, 27; R. v. MacKenzie, 2013 SCC 50 (CanLII), 2013 SCC 50, at para. 74; R. v. Clayton and Farmer, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126; R. v. Simpson 1993 CanLII 3379 (ON CA), (1993), 12 O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202; Arizona v. Johnson, 129 S.Ct. 781 (2009), at p. 784; R. v. Crocker,2009 BCCA 388 (CanLII), 2009 BCCA 388, 275 B.C.A.C. 190, at paras. 62-72, leave denied: [2010] 1 S.C.R. viii; W.R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment (2005, 4th ed.) at § 9.6(a); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (2010, 8th ed.) at pp. 709-712.

In R. v. Mann and its progeny the courts have confirmed the existence of the police power to detain individuals for investigative purposes and, where the police have “reasonable grounds” to suspect the detainee is armed and dangerous, to conduct a brief frisk or pat-down search to ensure their own safety and the safety of the public as they conduct such investigations.  In my view, R. v. MacDonald is but an application of that well-established warrantless search power in a particular factual context, namely, where the search involves police entry of the confines of a private residence, where there is an increased expectation of privacy.  See: R. v. Zargar, 2014 ONSC 1415 (CanLII), 2014 ONSC 1415, at paras. 29-32.  Indeed, in R. v. MacDonald, the Supreme Court expressly purports to apply R. v. Mann in this factual context – not overrule it (or the many subsequent judgments that have clarified and applied it).  The confusion in relation to this legal threshold has arisen, it seems to me, from the use of the phrase “reasonable grounds” to describe the threshold of “reasonable suspicion” or “articulable cause,” as this same terminology is also used to describe the higher threshold of “reasonable and probable grounds.”  See: R. v. Mann, at paras. 33-35, 40-45, 63-64.  Accordingly, it is important to recall that, in this particular context, the term “reasonable grounds” is used to describe a threshold of reasonable suspicion, not a threshold of reasonable probability [paras 99-100].

In a recent issue of  Mack's Criminal Law Bulletin on Westlaw's CriminalSource, I discussed MacDonald. Therein I noted that MacDonald was not a case about investigative detention safety searches but rather non-detention searches - while it appeared that MacDonald imposed a standard of reasonable grounds for safety searches (not reasonable suspicion) that standard would only apply in the context of non-detention searches. For investigative detention safety searches the standard remained one of reasonable suspicion - MacDonald did not affect that.

Campbell J has interpreted MacDonald as not changing the standard at all. His reasons for so concluding are compelling. 

Going forward there will no doubt be other interpretations of MacDonald - likely until the Supreme Court again addresses this issue and explains what precisely they meant.

DGM