R. v. Debot

R. v. Debot
Collection
Supreme Court Judgments
Date
1989-12-07
Report
[1989] 2 SCR 1140
Case number
20099
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; Sopinka, John; Cory, Peter deCarteret
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20099
Decision Content
R. v. Debot, [1989] 2 S.C.R. 1140
Kevin Joseph Debot Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. debot
File No.: 20099.
1989: June 22; 1989: December 7.
Present: Dickson C.J. and Lamer, Wilson, Sopinka, and Cory JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Reasonableness of search ‑‑ Right to counsel ‑‑ Admissibility of evidence if obtained in circumstances in violation of Charter rights ‑‑ Appellant frisked in warrantless drug search ‑‑ Search ordered following tip from reliable informant ‑‑ Drugs found and appellant arrested ‑‑ Appellant informed of his Charter rights, including right to counsel, on arrest ‑‑ Whether or not search reasonable ‑‑ Whether or not right to counsel infringed ‑‑ Whether or not real evidence obtained in search should be excluded from evidence ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 10 (b), 24(2) ‑‑ Food and Drugs Act, R.S.C. 1970, c. F‑27, s. 37(1)(a),(b).
Criminal law ‑‑ Searches ‑‑ Appellant frisked in warrantless drug search ‑‑ Search ordered following tip from reliable informant ‑‑ Search permissible if reasonable belief that offence was committed ‑‑ Whether or not police had reasonable and probable grounds to believe offence committed ‑‑ Food and Drugs Act, R.S.C. 1970, c. F‑27, s. 37(1)(a),(b).
A reliable informant informed the police that the appellant and two others were going to meet to complete an illegal drug deal and take delivery of substantial amount of speed being brought into the area by a supplier. The informant had obtained this information in conversation with one of the persons who was to be a party to the deal. All the individuals named were known by the police to have had an involvement with drugs in the past.
Two officers, on orders from an R.C.M.P. sergeant, intercepted and searched appellant's vehicle shortly after it left the house where the transaction was to occur. A constable told appellant that he had reasonable and probable grounds to believe that the appellant had speed on him and proceeded with a warrantless search as authorized by s. 37(1) of the Food and Drugs Act . The appellant was ordered to assume a "spread eagle" position and told to empty his pockets. A quantity of speed was found. The constable placed the appellant under arrest and advised him of his Charter right to counsel.
The trial judge acquitted the accused. He found the search to be unreasonable contrary to s. 8 of the Charter and excluded the evidence under s. 24(2) . The Court of Appeal unanimously allowed the Crown's appeal and ordered a new trial. The circumstances of the search raised Charter issues as to the reasonableness of the search under s. 8 , the right to counsel under s. 10 (b), and the exclusion of evidence under s. 24(2) .
Held: The appeal should be dismissed.
Per Dickson C.J. and Lamer and Cory JJ.: The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest and detention, not from the fact of being searched. The detainee, therefore, has the right to be informed of the right to retain and instruct counsel immediately upon detention. The police, however, are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.
Denial of the right to counsel will result in a search's being unreasonable contrary to s. 8 of the Charter in only exceptional circumstances. A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. The denial of the right to counsel does not affect the "manner" in which the search is conducted. The "manner" in which the search is conducted relates to the physical way in which it is carried out and should not be inclusive of restrictions of other rights that already receive the benefit of the Charter 's protection.
Evidence obtained by way of a search that is reasonable but contemporaneous with a violation of s. 10 (b) of the Charter will not necessarily be admitted under s. 24(2) . Evidence will be excluded if there was a temporal link between the infringement of the Charter and the discovery of the evidence, and if the admission of the evidence would bring the administration of justice into disrepute.
Here, the "frisk" search authorized by s. 37 of the Food and Drugs Act was carried out contemporaneously to a violation of appellant's s. 10 (b) rights under the Charter . The evidence obtained, however, was real evidence and its existence was totally unrelated to the Charter violation. The repute of administration of justice would not be harmed by the admission of this evidence.
Per Wilson J.: A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable. No question was raised as to whether s. 37 of the Food and Drugs Act was, either by necessary implication or through its operating requirements, irreconcilable with s. 8 or s. 10 (b) of the Charter so as to constitute limits on those rights "prescribed by law" under s. 1 . The appellant's Charter rights therefore had to be respected.
When police officers order someone to stand "spread eagle" against a wall, that person is "detained" within the meaning of s. 10 . In light of the fact that the arresting officers were instructed in advance to stop and search the vehicle and its occupants, the appellant was detained from the time he was approached by the constable.
Counsel's role is not limited to advising a suspect of his or her options where such options exist. The suspect is entitled to know what his legal rights and obligations are and to have counsel available to dispel uncertainty and provide assurance to the suspect that the officers do have the authority they are seeking to assert. The right to counsel is not contingent on a hypothetical assessment of whether or not counsel would be useful to the suspect in the circumstances.
The direction in s. 10 (b) that the police inform a detainee of his or her rights to counsel "without delay" does not permit of internal qualification. Any limit on the right to counsel, other than the limit required for the safety of the police, must be supported under s. 1 of the Charter if it is a limit "prescribed by law" which was not the case here.
The police had reasonable and probable grounds to search the appellant under the authority granted to them under s. 37 of the Food and Drugs Act . The appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case". The phrase "reasonable belief" also approximates the requisite standard.
The police officer who decides that a suspect should be searched is the person who must have reasonable and probable grounds for believing the suspect is committing an offence. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so.
At least three concerns must be addressed in weighing whether or not the evidence relied on by the police justified a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? Each factor does not form a separate test. Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
The information received by the police was compelling. It was sufficiently specific to warrant their attention and did not take the form of bald conclusory statements or "mere rumour or gossip". Two caveats, however, must qualify the use of reputation as germane to the issue of a reasonable search. First, the reputation of the suspect must be related to the ostensible reasons for the search. And second, if the reputation of the suspect is based on hearsay rather than police familiarity with the suspect, its veracity cannot be assumed. The police here appear to have relied on both direct experience and hearsay.
The informant whose credibility is most critical is the one who provided the details of the anticipated transaction. The evidence of previous dealings with the informant in this case tended to validate the decision to treat the informant as credible. Where the police rely on an anonymous tip or on an untried informant, the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source.
The police need not confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. The level of verification required, however, may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater. Given the quality of the information and the reliability of the informant, the police surveillance yielded sufficient corroborative evidence to warrant the belief that a drug transaction had occurred.
A detained person cannot be assumed to be fully apprised of all his Charter rights at the critical moment and, without knowledge of those rights, may fail to exercise his rights or may attempt to resist in a mistaken belief that the police conduct was not lawful when in fact it was. The police cannot appropriately provide legal advice regarding the legitimacy of their own actions. An individual must rely on counsel to supply the vital information.
The question of whether a denial of the right to counsel renders a search unreasonable depends on two factors: (1) the source of authority for the search; and, (2) the invasiveness of the search. The failure to advise an individual of his or her right to counsel detracts more from the reasonableness of a warrantless search than from a search subject to prior authorization. The more invasive the search, the greater the assault on one's dignity. To the extent that counsel can provide reassurance and advice to a person who may be subjected to a highly invasive procedure and perhaps even prevent an unjustified search, his or her presence can mitigate the impact of the intrusion on the individual's physical and psychological integrity. Here, the failure to accord the appellant his s. 10 (b) rights militated against the reasonableness of the warrantless search and the minimal nature of the invasion of his privacy from the "frisk" type search militated in favour of its reasonableness.
The evidence should be admitted notwithstanding the Charter violation. The search following the violation of appellant's s. 10 (b) rights produced real evidence which was totally unrelated to the Charter violation. Its admission would not render the trial unfair. The police had not acted in bad faith in thinking that respondent did not have to be informed of his s. 10 (b) rights before being searched. The violation of appellant's right was not trivial but the "interests of truth" and the "integrity of the legal system" would be better served by the admission of the evidence than by its exclusion.
Per Sopinka J.: The police were under no obligation to advise the appellant of his right to counsel before completing the "frisk" search. Where the obligation to inform a person of his or her right to counsel arises, there is an obligation to afford that person a reasonable opportunity to consult counsel. If the circumstances surrounding a search incidental to an arrest do not lend themselves to the delay inherent in making counsel available, they are equally not conducive to the reading of rights. This Court has recognized that the right to retain and instruct counsel without delay is not absolute. The right to be informed of the right to counsel need not be accorded different treatment.
Cases Cited
By Lamer J.
Applied: R. v. Strachan, [1988] 2 S.C.R. 980; referred to: R. v. Ross, [1989] 1 S.C.R. 3; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Jacoy, [1988] 2 S.C.R. 548.
By Wilson J.
Considered: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Strachan, [1988] 2 S.C.R. 980; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Rao (1984), 12 C.C.C. (3d) 97, leave to appeal refused [1984] 2 S.C.R. ix; R. v. Kelly (1985), 17 C.C.C. (3d) 419; R. v. Guberman (1985), 23 C.C.C. (3d) 406; R. v. Collins, [1987] 1 S.C.R. 265; R v. Jacoy, [1988] 2 S.C.R. 548; R. v. Manninen, [1987] 1 S.C.R. 1233; Spinelli v. United States, 393 U.S. 410 (1969).
By Sopinka J.
Referred to: R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Saunders (1988), 41 C.C.C. (3d) 532; R. v. Bonin (1989), 47 C.C.C. (3d) 230, leave to appeal refused, October 19, 1989, Bulletin of Proceedings, p. 2435.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 10 (b), 24(1) , (2) .
Customs Act, R.S.C. 1970, c. C‑40, s. 144.
Food and Drugs Act, R.S.C. 1970, c. F‑27, s. 37(1).
Narcotic Control Act, R.S.C. 1970, c. N‑1.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 30 C.C.C. (3d) 207, allowing an appeal from an acquittal by Clements Dist. Ct. J. and ordering a new trial. Appeal dismissed.
Andrew Z. Kerekes, for the appellant.
Robert W. Hubbard, for the respondent.
//Lamer J.//
The judgment of Dickson C.J. and Lamer and Cory JJ. was delivered by
LAMER J. -- I have had the benefit of reading the reasons of my colleague Justice Wilson. While I agree with her reasons and disposition of this appeal, I feel I must, with respect, qualify somewhat my concurrence, as regards two matters: first, the relationship between the right to search incident to arrest and the right to retain and instruct counsel and second, the effect of a violation of the right to counsel on the constitutional validity of an otherwise reasonable search made contemporaneously with arrest.
On the first point, I note that as a general rule police proceeding to a search are not obligated to suspend the search and give a person the opportunity to retain and instruct counsel, as for example when the search is of a home pursuant to a search warrant. When the police are conducting a body search, however, the matter is entirely different. In such a case, it is impossible to search without detaining the individual within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms . It is in that context that I now turn to a discussion of searches incident to arrest.
The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest or detention, not from the fact of being searched. Therefore immediately upon detention, the detainee does have the right to be informed of the right to retain and instruct counsel. However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. There are, in my view, exceptions to this general rule. One is where the lawfulness of the search is dependent on the detainee's consent. That situation is governed by this Court's decision in R. v. Ross, [1989] 1 S.C.R. 3, at p. 12:
In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right.
Another is when a statute gives a person a right to seek review of the decision to search as was the case in R. v. Simmons, [1988] 2 S.C.R. 495. In this case, when the person invokes the right, and pending its exercise, the authority to proceed to search is suspended. Obviously, the person must be given the same rights as when arrested, and the officers wanting to search cannot assume that they may proceed absent the suspect's invoking his right to review, until he or she has been given reasonable opportunity to consult counsel.
This then leads me to the second point. It is Wilson J.'s view that a denial of a right to counsel should be a factor when determining the reasonableness of a search. With respect, I cannot agree with such a broad statement in relation to the interaction of ss. 8 and 10 (b) of the Charter . It is my view that it will only be in exceptional circumstances that the denial of the right to counsel will trigger a violation of s. 8 . Such would be the case when the lawfulness of the search is dependent upon the consent of the person detained. If a detained person's consent to a search of his house, which, under the circumstances of the case and the applicable law, requires a warrant, was given while that person's s. 10 (b) rights were being violated (either because he has not been informed of his right to counsel or because the police have obtained his consent to search his house before he has been given a reasonable opportunity to exercise his right to counsel) then the search is unlawful and, as such, unreasonable. Apart from a situation such as this or other situations analogous to those dealt with in R. v. Simmons, supra, where the s. 10 (b) violation goes to the very lawfulness of the search, I have not been able to imagine situations where the right to counsel will be relevant to a determination of the reasonableness of a search.
In respect of the right to protection against unreasonable search or seizure, the norm to be applied in considering reasonableness was set out by this Court in R. v. Collins, [1987] 1 S.C.R. 265, at p. 278:
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.
In subsequent decisions, namely R. v. Simmons, supra, R. v. Strachan, [1988] 2 S.C.R. 980, R. v. Jacoy, [1988] 2 S.C.R. 548, and in the present case, Wilson J. has stated that the denial of the right to counsel affects the "manner" in which the search is conducted. With respect, I cannot agree. The "manner" in which the search is conducted relates to the physical way in which it is carried out and should not, in my view, be inclusive of restrictions of other rights that already receive the benefit of protection from the Charter .
I hasten to add that I am not saying that evidence obtained by way of a search which is reasonable but contemporaneous with a s. 10 (b) violation will necessarily be admitted. Once a restriction of the right to counsel has been established, the court must turn to the effects of the restriction under s. 24(2) and apply the two-fold test set out in R. v. Strachan, supra, at p. 1000:
(i) the evidence must be "obtained in a manner that infringed or denied any rights or freedoms guaranteed" by the Charter .
(ii) the admission of the evidence "would bring the administration justice into disrepute".
The above discussion is far from theoretical. Indeed, determining the exclusion or admission of evidence obtained as a result of an unreasonable search is quite different from determining the exclusion or admission of evidence obtained as a result of a search which was perfectly valid but which was carried out contemporaneously with a s. 10 (b) violation. While the violation of s. 8 is directly linked to the obtaining of the evidence, the violation of s. 10 could be very remote: indeed it could be totally unrelated to the finding of the evidence. For example, in this case the appellant was subjected to a warrantless "frisk" search authorized by s. 37 of the Food and Drugs Act . The search was carried out contemporaneous to a violation of the appellant's s. 10 (b) rights under the Charter . But as Wilson J. notes in her discussion of s. 24(2) in this case, the evidence obtained was real evidence the existence of which, and I hasten to add its seizure, was totally unrelated to the Charter violation. This link, or in this case the lack of it, of course makes a great difference when assessing whether the repute of our system of justice will be harmed by the admission of the evidence.
I, therefore, agree with Wilson J.'s disposition of this appeal, save for the comments I have made above.
//Wilson J.//
The following are the reasons delivered by
WILSON J. -- The appellant was charged on an indictment alleging:
That he on or about the 26th day of February, 1985 at the Town of Wallaceburg in the County of Kent unlawfully did have in his possession a Controlled Drug to wit: Methamphetamine (Speed) for the purpose of trafficking, contrary to Section 34(2) of the Food and Drug Act.
The drugs in question were discovered on the appellant's person in the course of an on-the-spot warrantless "frisk" search. Section 37(1) of the Food and Drugs Act, R.S.C. 1970, c. F-27 as amended, in force at the relevant time, authorized a warrantless search in the following circumstances:
37. (1) A peace officer may at any time
(a) without a warrant enter and search any place other than a dwelling-house, and under the authority of a writ of assistance or a warrant issued under this section, enter and search any dwelling-house in which he reasonably believes there is a controlled drug by means of or in respect of which an offence under this Part has been committed;
(b) search any person found in such place; . . .
The circumstances of the search raise Charter issues as to the reasonableness of the search under s. 8 , the right to counsel under s. 10 (b), and the exclusion of evidence under s. 24(2) . The appeal also provides the Court with an opportunity to explore further the effect of a violation of the right to counsel on the constitutionality of the search under s. 8 .
1. The Facts
On February 26, 1985, Constable Gutteridge, a Joint Forces Officer with the Chatham police and the R.C.M.P., received confidential information from an informant that the appellant and two others, Greg Carpenter and Gerry List, were going to meet that evening for the purpose of completing a drug transaction involving around four ounces of speed. The transaction was to take place at Carpenter's residence and both he and the appellant were to receive a substantial amount of the drug. The speed was being brought into the Wallaceburg area by a supplier named by the informant. The informant told Gutteridge that he had obtained this information in conversation with Carpenter. Gutteridge had had at least one previous dealing with this informant and described him as "reliable". On that occasion the informant advised him that a large quantity of speed would be found at a particular residence. Only trace amounts of speed were found but a larger quantity of marijuana was seized.
Gutteridge contacted Sergeant Briscoe, head of the R.C.M.P. detachment in Chatham, and passed on the information he had received from the informant to him. Gutteridge asked that the appellant, Carpenter and List all be put under surveillance. All these individuals were known by the Drug Section of the Chatham police to have had an involvement with drugs in the past. The police described the appellant as a user and trafficker although he had only one narcotics related conviction and that was for possession of a small amount of marijuana. Carpenter was also known as a user and trafficker. Warrants had been executed under the Narcotic Control Act, R.S.C. 1970, c. N-1 , and the Food and Drugs Act on Carpenter's residence on previous occasions. He had a lengthy record of convictions for narcotics related offences.
Sergeant Briscoe held a briefing session at which the information communicated to him by Gutteridge was relayed to the officers assigned to the surveillance, including Constables Birs and L'Heureux. Birs also testified that he was instructed earlier in the day directly by Gutteridge. Gutteridge's testimony is silent on this point.
Several officers set up surveillance in the vicinity of Carpenter's residence. At one point Constable L'Heureux was instructed to follow a grey Ford compact which had just left Carpenter's residence. The car proceeded to a tavern where the occupants of the car, two men and a woman, parked and entered. Constables L'Heureux and Birs observed from a distance what they thought might be a drug deal taking place between one of the men and another woman in the bar. Constable L'Heureux testified that he noticed an exchange of money and "something else" which he could not identify.
At approximately 9:10 p.m. a dark-coloured Ford Bronco arrived at Carpenter's house. Gutteridge had seen the same car parked in front of the appellant's home several months earlier when he executed the search warrant issued under the Food and Drugs Act which ultimately led to the appellant's conviction for possession of marijuana. Gutteridge had also seen the appellant drive the car on several occasions. A number of people got out of the Bronco and at least one person went into the house. About five minutes later two men and two women came out of the house, got into the Bronco, and drove away. These observations were transmitted via police radio to Sergeant Briscoe who confirmed that the Bronco was registered in the appellant's name.
Sergeant Briscoe instructed two police cars, one occupied by a Constable Martin and the other by Constables L'Heureux and Birs, to intercept and search the vehicle a few minutes after it left Carpenter's residence. The Bronco had entered the downtown area at the time it was stopped. Constable L'Heureux went to the driver's side of the car and had a conversation with the driver Sandra Murphy. She and another female passenger were subsequently searched at the police station after being advised of their right to counsel. Constable Birs went toward the passenger side and approached the appellant who had already stepped out of the Bronco. The Constable identified himself and asked the appellant his name, which the appellant gave. Constable Birs later testified that he did not know whether the appellant was in the car or not when he intercepted it. He asked the appellant if he was carrying drugs, to which the appellant replied that he was not. Constable Birs asked him again and received the same response. Birs then told the appellant that he had reasonable and probable grounds to believe that he had speed on him and proceeded with a search. The appellant was ordered to face the wall of a nearby building in a "spread eagle" position and then told to empty his pockets. The appellant turned over a wad of money. Constable Birs discovered a sunglasses case in the appellant's pocket in which there was a clear plastic bag containing approximately one ounce of speed. The Constable then placed the appellant under arrest and advised him of his Charter right to counsel. As Birs was putting the appellant into the car the appellant apparently volunteered the information that he had two syringes concealed in his sock and he produced those for the officer.
A subsequent search of the Bronco uncovered no additional evidence. A search warrant executed on the Carpenter residence also yielded nothing.
2. The Issues
The appellant raises the following issues on appeal:
(1) Did the search of the appellant contravene s. 8 of the Charter ?
(2) Did the police violate the appellant's right to counsel under s. 10 (b) of the Charter ?
(3) If the appellant's Charter rights were violated, is the evidence obtained from the search admissible under s. 24(2) of the Charter ?
(4) Was the search of the appellant incidental to a lawful arrest?
The relevant Charter provisions are as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
10. Everyone has the right on arrest or detention
. . .
(b) to retain and instruct counsel without delay and to be informed of that right; . . .
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , 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.
3. The Courts Below
District Court of Ontario (Clements Dist. Ct. J., unreported)
The trial judge held that the search of the accused was not incidental to an arrest, since the search preceded the arrest and one of the officers, Constable L'Heureux, testified that there was to be no arrest unless drugs were found.
The trial judge then turned to s. 37 of the Food and Drugs Act as authority for the search. He referred to this Court's decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and noted that Dickson J. (as he then was) emphasized the need for reasonable and probable grounds as opposed to mere suspicion in order to render a search reasonable. The trial judge held that the search in this case was arbitrary and not based on reasonable and probable grounds. He stated:
Very concisely put, it was clear from the evidence of Constable L'Heureux that the vehicle in which the accused was found was going to be stopped and searched. That was that. It was the only task at hand when that vehicle was stopped. Everyone in the vehicle was going to be searched. The vehicle was going to be searched. None of the officers that I have heard from knew if the accused was in that vehicle.
Later he added:
The police were not instructed to make an arrest here but merely to search. This did take place in a public place. The question then is whether or not the search was reasonable. Certainly, to conduct the investigation was reasonable; certainly the surveillance was reasonable as carried on by the officers. But knowing what might happen and what had happened to that point, in my view, the officers went beyond their lawful authority in stopping the vehicle and searching the accused. They did not exercise any direct independent mind of their own to determine whether or not what they were doing was arbitrary because their instructions, according to Constable L'Heureux, were very clear.
Clements Dist. Ct. J. concluded that the search by Constable Birs was unreasonable on the basis of the following facts. The courier who was supposed to deliver the drugs to Wallaceburg was never spotted and there was no evidence that the drugs had arrived. The police did not identify the accused as one of the people entering the house nor as an occupant of the vehicle prior to instructing Constables Birs and L'Heureux to intercept the vehicle, although it had been confirmed that the accused owned the Bronco. The officers were instructed to search the car and its occupants; they themselves exercised no discretion in deciding whether to conduct the search or who to search. It was irrelevant to such decision who was in the vehicle and what they said. In this sense the actions of the police were arbitrary. Clements Dist. Ct. J. stated:
Against all that, Constable Birs said that he had reasonable and probable grounds to search; in my view, he did not have any aside from pure speculation and pure hope. If anything, the police jumped the gun. They should have continued on their surveillance. It cannot be said that this was a reasonable search. In fact, what can be said, although the police, in my view, were not out to even the score with the accused, was that their action was arbitrary.
Having decided that the search contravened s. 8 of the Charter , the trial judge considered whether the evidence obtained from the search should be excluded under s. 24(2) . He stated that the onus lay with the Crown to establish that admission of the evidence would not bring the administration of justice into disrepute. He determined that the search was "sufficiently arbitrary" and "sufficiently contrary to the spirit of the words given by Mr. Justice Dickson in the Southam case" to warrant exclusion of the evidence:
Here, the surveillance was set up because of information deemed to be reliable by Constable Gutteridge, who remained in Chatham on another investigation. The basis for the surveillance was apparently relayed to Sgt. Briscoe who briefed some officers but did not testify. Constable L'Heureux, as I recall it, did not have the nature of the briefing in his notes. My recollection is that Constable Birs did not know the amount of speed involved. The chain of information was rather nebulous. The officers in their testimony were unsure of themselves. They were on surveillance and really, the officers who stopped the accused carried out an administrative act. The decision had been made higher up apparently by Sgt. Briscoe who did not testify. From the evidence I have heard there was no reasonable cause for the search to be ordered based on except [sic] the sighting of the accused's vehicle at the Carpenter residence without knowing if the accused was in it.
Clements Dist. Ct. J. did not consider the past conduct or reputation of the accused as a factor bearing on the reasonableness of the search under s. 8 or on the effect of the exclusion of the evidence on the repute of the administration of justice under s. 24(2) .
Ontario Court of Appeal ((1986), 30 C.C.C. (3d) 207)
The Ontario Court of Appeal (Martin, Goodman and Krever JJ.A.) unanimously allowed the Crown's appeal and ordered a new trial. Writing for the Court, Martin J.A. first addressed the evidence required to justify a warrantless search for controlled drugs under s. 37 of the Food and Drugs Act . He proceeded from the position that the reasonable belief required by s. 37 imposes a standard of "reasonable probability" or "probable cause" rather than "proof beyond a reasonable doubt" or "prima facie case". On his view of the facts Martin J.A. found that Constable Birs had reasonable grounds to believe that the accused was in possession of a prohibited drug. At page 219 he reviewed the relevant evidence on this point:
The information supplied by the informer to Constable Gutteridge was not a mere conclusory statement that the respondent was engaging in criminal activity with respect to drugs. Rather, the informer disclosed the underlying circumstances of the expected drug transaction, including the location where it was to take place. The informer told Gutteridge that the respondent was going to Carpenter's house to complete his part in the drug transaction. The police investigation confirmed that the respondent's car arrived at Carpenter's house and that one of the occupants, at least, entered the house. Two men and two women came out of the house shortly thereafter, got into the respondent's car and drove away. Furthermore, the informer had proved to be reliable, with respect to information that he had given the police on previous occasions.
. . .
In addition, Constable Birs was informed by Sergeant Briscoe that DeBot's Ford Bronco was leaving Carpenter's residence and that it bore licence No. KP 7409.
Citing the decision of this Court in Eccles v. Bourque, [1975] 2 S.C.R. 739, Martin J.A. pointed out that the fact that the information Constable Birs received was hearsay from another officer did not preclude it from establishing probable cause. Martin J.A. also ruled, at p. 220, that the reputation of a person as a drug user and drug trafficker may be "a relevant factor constituting part of the total circumstances that induce a reasonable belief that the suspect has upon his person a prohibited drug" even although it would not by itself constitute reasonable grounds. The policy rule that excludes such evidence at trial has no application, he stated, in determining probable grounds for an arrest or search.
Martin J.A. also held that even if Constable Birs did not, personally, have any information establishing reasonable grounds for a search, he was entitled to rely on the orders of a superior officer against a claim of arbitrariness as long as the superior officer had reasonable grounds to believe that the suspect had a prohibited drug in his possession. It would be unrealistic and impractical, Martin J.A. stated, to require a police officer to obtain from his or her superior all the information supporting the order to search a person suspected of the commission of a crime especially where the suspect may be fleeing from the scene.
Martin J.A. also decided that an automobile is a "place" within the meaning of s. 37(1) (a) of the Food and Drugs Act and that the accused was "found" in the car within the meaning of s. 37(1) (b) even although he got out of the car as Constable Birs approached him. Quoting from the Court of Appeal's earlier decision in R. v. Rao (1984), 12 C.C.C. (3d) 97, at p. 125, (leave to appeal to the Supreme Court of Canada refused [1984] 2 S.C.R. ix), Martin J.A. observed at p. 222 that "a warrantless search of vehicles, vessels or aircrafts [sic], which may move quickly away, may be reasonable where there are reasonable grounds for believing that such contains a narcotic".
Martin J.A. also disagreed with the trial judge's conclusion that the search was not incidental to a valid arrest because the search preceded the arrest and because the officer stated, in effect, that he would not have arrested the accused had the search not produced a prohibited drug. Martin J.A. rejected the contention that this was a finding of fact made by the trial judge. In his view, what constitutes a search incident to arrest is a question of law. As long as the officer has probable cause to arrest the suspect, the fact that he or she postpones the decision until after the search is not fatal. This is so because the reasonable belief that the suspect has committed the offence of being in possession of a prohibited drug may turn out to be erroneous. Alternatively, the officer may still have reasonable grounds for making the arrest but conclude that there would be no chance of obtaining a conviction without the evidence. In these circumstances an arrest would be pointless.
The trial judge did not deal with the s. 10 (b) argument because he acquitted the accused on the basis of s. 8 . The Court of Appeal held that the accused was "detained" by the police when the car was stopped and "when he was directed to face the wall and place his hands on it and when he submitted to the search". He was informed of his right to counsel upon arrest but the issue was whether he was entitled to retain and instruct counsel prior to the search. On this issue, Martin J.A. adopted Morden J.A.'s ruling in R. v. Kelly (1985), 17 C.C.C. (3d) 419, that a right to counsel "without delay" did not mean "immediately". Morden J.A. pointed out as well that the relevant interest protected by s. 10 (b) is "that of not prejudicing one's legal position by something said or done without, at least, the benefit of legal advice". Martin J.A. concluded that the conduct of the on-the-spot search did not prejudice the interest of