CITATION: R v. Alkins, 2007
ONCA 264
DATE: 20070412
DOCKET: C44851
B E T W E E N : |
|
HER MAJESTY THE QUEEN |
Susan Magotiaux for the appellant |
- and - |
|
CHRISTOPHER ALKINS |
Clayton Ruby for the respondent |
Heard: January 24, 2007 |
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On appeal from the acquittal entered by Justice Ted Matlow of the Superior Court of Justice on January 13, 2006.
[1] In
the early morning hours on a wintry night,
[2] The police searched the four men and the interior of the car. They found two guns (later determined to be pellet guns) and four knives in the clothing of the men or inside the car. The police opened the car trunk and found a knapsack with a loaded sawed‑off shotgun inside.
[3] The respondent was charged with eight weapons‑related offences. At his trial, a voir dire relating to the legality of the searches took place. The trial judge, Matlow J., ruled that the searches of the respondent and the interior of the car were lawful searches incident to arrest. However, he held that the search of the car trunk violated s. 8 of the Charter.
[4] The trial judge then excluded the evidence relating to the shotgun under s. 24(2) of the Charter on the basis that “[t]here is nothing in the evidence which persuades me that there was any mitigating factor which might explain or lessen the seriousness of his [one of the officer’s] Charter violations.”
[5] The result of the trial judge’s s. 8/s. 24(2) ruling was that the respondent was acquitted of six of the eight charges in the indictment. Later, he was also acquitted of the other two charges, relating to a pellet gun and a knife, because the trial judge was not convinced that they came within the definition of “weapon” in s. 2 of the Criminal Code.
[6] The Crown appeals, principally on the basis that the trial judge erred in both components of his s. 8/s. 24(2) ruling. The Crown contends that the search of the car trunk was a lawful search incident to arrest. The Crown also submits that, even if this search were unreasonable, the evidence relating to the shotgun should have been admitted under a proper application of the Collins test: see R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.). The Crown seeks an order for a new trial on all counts.
[7] Early in the morning of December 13, 2003, the respondent was in the driver’s seat of his father’s vehicle with three other men. The vehicle was parked, but running, in the parking lot of an apartment building. Andre Martin (“Martin”) was in the front passenger seat. The police were looking for Martin as they suspected that he was in breach of his probation order, which prohibited him from being in the area.
[8] At 12:58 a.m., two officers observed the vehicle. The officers suspected that the occupants of the vehicle were committing offences under the Liquor Licence Act, R.S.O. 1990, c. L.19, and that they were in possession of and smoking marijuana.
[9] Constable Judd approached the front passenger, while Constable Burleau approached the respondent. Constable Judd realized that Martin was the front passenger and identified himself as a police officer. At 1:03 a.m., Martin was arrested for failing to comply with his probation order. When asked if he had any weapons, Martin revealed that he had a large knife on his right side tucked into his pants. Constable Judd notified Constable Burleau that Martin had a weapon on him. When Martin was searched, a gun was located in his front waistband. At 1:12 a.m., Martin was arrested for carrying a concealed weapon. Constable Judd later determined that the gun was a pellet gun.
[10] Meanwhile, Constable Burleau asked to see the respondent’s driving documents and then told him to turn off the engine of the car. After Constable Burleau was informed that Martin had a weapon in his possession, he asked the respondent to step out of the vehicle. At that point, what appeared to be a handgun fell out of the respondent’s pant leg. At 1:04 a.m., the respondent was arrested for possession of a firearm. When Constable Burleau picked up the gun, he realized that it might be a pellet gun. The respondent was patted down, but no other weapons were found. When he was searched again at the police station, a knife with a three‑inch blade was found hidden in his pants.
[11] While the respondent and Martin were being arrested and searched, the two men in the back of the vehicle were told to put their hands on their heads. Constable Burleau testified that the men in the back were placing their hands underneath the seat and moving around suspiciously. Back‑up was called and arrived at 1:06 a.m. The new officers who arrived, Chant and Ellis, were informed that two handguns had been located. Constable Chant opened the rear door on the passenger side to effect an arrest for possession of firearms in a motor vehicle. He saw the passenger trying to kick a large knife under the seat in front of him. The passenger was taken from the vehicle, arrested, handcuffed and searched. Constable Ellis went to the rear door on the driver’s side and saw that passenger trying to conceal an item, which turned out to be another large knife.
[12] Once all four passengers had been arrested and secured, Constable Tait, who arrived at the scene at 1:08 a.m., and Constable Chant searched the vehicle. Constable Tait located a large kitchen knife on the back seat and an Exacto knife on the floor behind the driver’s seat. Constable Chant found a large knife on the floor of the back of the vehicle.
[13] Constable Chant then proceeded to the trunk of the car where he found a blue backpack. When he pulled the bag out of the trunk, the respondent said: “Ah, shit. Here we go. This should be interesting.” Inside the backpack, Constable Chant found a sawed‑off shotgun with a shell chambered in the ready‑to‑fire position.
[14] The respondent was indicted on eight counts: counts 1 and 2 – carry a concealed weapon (knife and pellet gun); and counts 3 to 8 – various offences related to the loaded sawed‑off shotgun.
[15] At the respondent’s trial, a combined Charter application and voir dire was held to determine the admissibility of the evidence obtained as a result of the searches of the respondent’s person and the car trunk, as well as the admissibility of the oral statement attributed to the respondent during the search of the car trunk.
[16] The trial judge ruled that the search of the respondent was a lawful search incident to arrest. Accordingly, counts 1 and 2 relating to carrying concealed weapons (a knife and a pellet gun) could proceed.
[17] However, although the trial judge found that the search of the interior of the car was lawful, he ruled that the search of the car trunk violated s. 8 of the Charter, which provides:
8. Everyone has the right to be secure against unreasonable search or seizure.
[18] The trial judge described the car trunk as “a place where the accused was entitled to expect respect for his right to privacy.” He concluded that the Crown had failed to demonstrate any “valid reason why such a search had to be done immediately without the authority of a warrant.” He found that neither safety nor destruction of evidence were live issues in the circumstances because the car could have been “detained for a reasonable period of time while a search warrant was sought, and if one were obtained, the evidence could still have been discovered.” He concluded:
There was no reasonable expectation that the police might find something in the trunk that could lend weight to the proof of charges that would be laid as a result of the arrests already effected. Because of the nature of those charges, all of the relevant evidence to support them had already been found and seized. I am satisfied that Officer Chant’s only purpose in carrying out the search was to attempt to uncover evidence of additional crimes for which no evidence had already been discovered and for which no reasonable basis for any belief that had occurred already existed. In my view, the search was based only on hunch or speculation.
[19] The trial judge further ruled that the evidence obtained pursuant to the search of the car trunk should be excluded pursuant to s. 24(2) of the Charter, which provides:
24.(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.
[20] The trial judge reasoned:
There is nothing in the evidence which persuades me that there was any mitigating factor which might explain or lessen the seriousness of his Charter violations. Although the situation facing Officer Chant upon his arrival to the scene may well have been challenging for him and the other officers who were present, the intensity of that diminished enormously by the time the search of the trunk commenced and it ought to have been possible for trained and experienced officers such as those who were present to confer, if necessary, and determine and apply the law of search and seizure correctly. Inexplicably, they did not do this and the consequence must be that all evidence of what was found in the trunk must be excluded. This, in my view, is the only proper remedy to grant to the accused pursuant to Section 24(2) of the Charter.
[21] Finally, the trial judge ruled that the respondent’s oral statement – “Ah, shit. Here we go. This should be interesting.” – was, although voluntary, also inadmissible because it was provoked by the unlawful search of the car trunk and discovery of the shotgun.
[22] The effect of the trial judge’s ruling was that all evidence relating to the shotgun was excluded and the respondent was acquitted of counts 3 to 8 in the indictment.
[23] Later in the trial, the trial judge acquitted the respondent of counts 1 and 2 relating to carrying concealed weapons (the knife and pellet gun). He found that these items were concealed by the respondent but that the Crown had not proven that they came within the definition of “weapon” in s. 2 of the Criminal Code.
[24] The Crown appeals the trial judge’s ruling relating to the search of the car trunk and the admissibility of the shotgun and the respondent’s statement and seeks an order for a new trial on all counts in the indictment.
[25] The issues in the appeal are:
(1) Did the trial judge err by concluding that the search of the car trunk violated s. 8 of the Charter?
(2) If the answer to Question (1) is ‘No’, did the trial judge err by excluding the evidence obtained pursuant to the unreasonable search of the car trunk?
(3) Did the trial judge err by excluding the respondent’s voluntary statement?
(4) If a new trial is ordered, should it proceed in relation to all counts in the indictment or only counts 3 to 8?
[26] Section 8 of the Charter protects against unreasonable search and seizure. Searches conducted incident to arrest have been recognized as an exception to the rule that warrantless searches are prima facie unreasonable: see R v. Golden, [2001] 3 S.C.R. 679 at para. 23. A search incident to arrest must still be reasonable within the meaning of s. 8, as set out in Collins, supra. The search will be reasonable only if it is authorized by law, the law is reasonable, and the search is conducted in a reasonable manner. A search conducted incident to arrest will be authorized by law if it meets the requirements set out in R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.). First, the arrest must be lawful. Second, the search must be truly incidental to arrest. Third, the manner in which the search is conducted must be reasonable.
[27] In the present appeal, there is no issue regarding the lawfulness of the respondent’s arrest. Nor is the manner of the search disputed. The crux of the present appeal lies in determining whether the search of the trunk was truly incidental to the respondent’s arrest.
[28] The starting point for the legal analysis of this question is the decision of the Supreme Court of Canada in Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257. Justice L’Heureux-Dubé, writing for a unanimous court, surveyed the English and American common law and stated at p. 274:
[I]t seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence against him.
[29] The court justified the power to search incident to arrest as necessary to attain the “ultimate purpose of criminal proceedings … to convict those found guilty beyond a reasonable doubt” (p. 275). While the court held that reasonable and probable grounds are not required in order for the police to conduct a search incident to arrest, the power does have restrictions. Specifically, the court set out the following three principles that apply to searches incident to arrest at p. 278:
1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
3. The search must not be conducted in an abusive fashion and, in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
[30] Ultimately, the court concluded that the frisk search in question in that case was justified. The officers had carried out the search for the valid purpose of ensuring officer safety.
[31] The Supreme Court of Canada had another opportunity to consider the reasonableness of a search incident to arrest in R. v. Caslake (1998), 121 C.C.C. (3d) 97. An officer had seen the accused in a grassy area on the side of the road where a bag containing nine pounds of marijuana was subsequently found. The accused was stopped in his vehicle on the highway and arrested for possession of marijuana. Six hours after the arrest, an officer went to the garage where the vehicle had been towed and conducted a search without a warrant or the consent of the accused. The officer found $1,400 in cash and two packages of cocaine. The accused was convicted of possession of marijuana for the purposes of trafficking and possession of cocaine. He appealed from his conviction on the cocaine offence, arguing that the search was unlawful and the cocaine should not have been admitted.
[32] There are several aspects of the Caslake decision that are relevant to the present appeal. First, Lamer C.J.C., writing for the majority, indicated that the power to search incident to arrest is not confined to the accused’s person; it extends to motor vehicles (para. 15).
[33] Second,
Lamer C.J.C. emphasized that “the search is only justifiable if the purpose
of the search is related to the purpose of the arrest” (para. 17). The court
noted that this connection was missing in R. v. Belnavis (1996), 107
C.C.C. (3d) 195 (Ont.
[34] Third, the court repeated that the three main purposes for a search incident to arrest are “ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial” (para 19).
[35] In Caslake, the evidence was that the officer conducted the search of the car because of an R.C.M.P. policy requiring that an inventory be taken of the contents of all impounded cars. Therefore, the search was not conducted for a valid purpose and it was held to be unreasonable. The court did indicate at para. 26 that if the officer’s objective had been different, the search might have been reasonable:
Had Constable Boyle searched the car, even hours later, for the purpose of finding evidence which could be used at the appellant’s trial on the charge of possessing marijuana for purpose of trafficking, this would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search of the vehicle.
[36] In fact, the situation that the Supreme Court hypothesized in Caslake presented itself before this court in R. v. Polashek (1999), 134 C.C.C. (3d) 187. In that case, the accused was pulled over because of a highway traffic violation. While the officer was speaking to the accused, he detected the smell of marijuana. The officer asked the accused to exit his vehicle and conducted a quick search of the accused’s person. Cannabis resin was found in the accused’s pocket and the officer placed him under arrest for possession of marijuana. The officer then continued the search of the accused and found over $4,000 in cash. After the accused was handcuffed and placed in the police cruiser, two officers searched the interior of the car, including the glove compartment and the trunk of the car. Bags of marijuana, a scale, rolling tobacco and a small amount of L.S.D. were located in the trunk. At that point, the accused was arrested for possession of a narcotic for the purpose of trafficking.
[37] One of the issues on appeal in Polashek was whether the search of the vehicle was reasonable. Relying on Caslake, Rosenberg J.A. held that the search was a lawful search incident to arrest. He said at para. 26:
In Caslake at p. 65, Lamer C.J.C. also held that for search to be “truly incidental to the arrest”, where the justification for the search is to find evidence, “there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested [emphasis in original]”. In my view, the search of the trunk of the vehicle fell within the scope of the common law power. The appellant was arrested shortly after being removed from the vehicle that he was driving. A lawful search of his person disclosed a quantity of cannabis resin and a large amount of money. He had been stopped in an area known to the officer for drug trafficking. In those circumstances, there was a reasonable prospect that the officer would find more drugs or narcotics in the vehicle.
[38] Therefore, in Polashek the court found that after the accused had been arrested for possession of marijuana, it was reasonable in the circumstances for the police to search his car to find more drugs. The second search would clearly be based on, in the language of Caslake at para. 25, “some reason related to the arrest”.
[39] In his ruling, the trial judge emphasized two factors – the respondent’s privacy interest and the absence of a supportable reason for searching the trunk. With respect, the trial judge erred on both points.
[40] The
privacy interest of the respondent with respect to the car trunk was, in
my view, miniscule. The car was not the respondent’s; it belonged to his
father. Moreover, there is “a lesser expectation of privacy in a car than
there is in one’s home or office, or with respect to their physical person”:
see Caslake at para. 34. The respondent had been lawfully
searched and a handgun (later determined to be a pellet gun) had been seized. A
passenger in the car had been arrested and a large knife and a handgun
(also later determined to be a pellet gun) were seized from him. More
police arrived on the scene. When Constable Chant and his partner
searched the interior of the car – a lawful search – two more large knives
and an Exacto knife were discovered. In these circumstances – four arrests,
lawful searches of four persons and the interior of a car, and discovery
and seizure of what appeared to be two handguns and four knives – it is
difficult to see any
serious privacy interest that the respondent might have in the contents of
the car trunk. The reality is that the car appeared to be filled with weapons
and people connected to those weapons.
[41] These same circumstances also, in my view, provide a strong and supportable reason for the search of the car trunk. In his testimony on the voir dire, Constable Chant was candid about his reasons for searching the car trunk:
THE COURT: You’re looking for more evidence of what?
THE WITNESS: Well, I knew – for weapons, Your Honour. Because I knew that there had been two firearms located already, a knife, and that’s significant in my mind as far as offences, criminal offences, and so I began searching the car to see if there was any other weapons in the car.
Later in his testimony, Constable Chant described his search of the car trunk, in the context of the circumstances outlined above, as “the natural thing to do.”
[42] In my view, the search for more weapons was not only the natural thing to do; it was also fully compliant with s. 8 of the Charter.
[43] When Constable Chant arrived on the scene – a dark parking lot in the early morning hours of a wintry night – he faced “a very volatile situation in which it is fair for the police to expect the unexpected”: see R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136 at 142 (H.C.J.), Doherty J. Constable Chant and his partner were responding to an emergency call for police back‑up. As soon as Constable Chant arrived, he was informed that two men had been arrested and two handguns had been seized. Constable Chant approached the vehicle and saw two other men seated in the back of the car. When he opened a rear door, he saw one of the men trying to kick a large knife under the seat. He removed him from the car, brought him to the ground and handcuffed him. Meanwhile, his partner was dealing with the other man in the back seat. He discovered another large knife and an Exacto knife.
[44] The purpose of s. 8 of the Charter is to protect against unreasonable searches. In the circumstances I have outlined, Constable Chant’s search of the car trunk for more weapons strikes me as the antithesis of an unreasonable search.
[45] In Cloutier at p. 278, the court observed that a search incident to arrest “must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public”. In my view, this is precisely the situation in the present case. Where multiple weapons have been discovered on several arrested persons and in their vehicle, and where the arrests and searches leading to the discovery of the weapons are lawful, finishing the search of the same vehicle with a view to finding more weapons is the epitome of reasonable police conduct. This can be contrasted with Belnavis where the search, conducted with a view to discovering stolen property, was unrelated to the arrest for traffic fines.
[46] Moreover, the discovery of additional weapons would, potentially, be connected to a fair assessment of the nature and gravity of the weapons‑related charges that the four men in the car were already facing. It might shed light on the intended use to be made of the weapons already located on two of the accused and in the interior of the car. In this respect, the search complied with Lamer C.J.C.’s stricture in Caslake at para. 17 that “the search is only justifiable if the purpose of the search is related to the purpose of the arrest.”
[47] It is true that the discovery of additional weapons in this case led to other weapons‑related charges. However, this result was foreshadowed in Caslake (para. 26) and actually occurred in Polashek. Additional charges flowing from a valid search are an appropriate result of the search.
[48] In summary, I conclude that in the circumstances of this case, where multiple suspects have been lawfully arrested and several weapons have been discovered pursuant to lawful searches of the arrested persons and the interior of a car, it is appropriate for a police officer to search the trunk of the same car with a view to discovering additional weapons. These weapons can be relevant to the weapons charges that have already been laid; they can also ground additional weapons‑related charges.
[49] For these reasons, I conclude that the trial judge erred in ruling that the search of the respondent’s car trunk was unreasonable. It follows that the evidence obtained pursuant to the search – the loaded saw‑off shotgun and the respondent’s statement – should have been admitted as evidence at the trial.
[50] In light of my conclusion that the search of the car trunk did not violate s. 8 of the Charter, it is not necessary, strictly speaking, to consider the s. 24(2) issue. However, for the sake of completeness, I will do so.
[51] In Collins, supra,
the Supreme Court of Canada established the framework for determining whether
evidence obtained in breach of a Charter right should be excluded. The
judge must consider three main factors –
the effect on the fairness of the trial, the seriousness of the breach and
the effects on the administration of justice. The Supreme Court of
[52] Appellate courts must show deference to a trial judge’s s. 24(2) analysis. As stated by Bastarache J. in Law at para. 32, “[w]hile the decision to exclude must be a reasonable one, a reviewing court will not interfere with a trial judge’s conclusions on s. 24(2) absent an ‘apparent error as to the applicable principles or rules of law’ or an ‘unreasonable finding’.”
[53] The trial judge delivered full reasons on the s. 8 issue. His reasons on the s. 24(2) issue were very brief, a single paragraph set out earlier in these reasons. In my view, the trial judge’s reasons on this issue reflect both types of error set out in Law.
[54] First, the trial judge did not perform any balancing of the Collins factors. His reasons are silent on the trial fairness factor and, at their highest, merely hint at the administration of justice factor. However, even if one assumes, as I am prepared to do, that the trial judge did not refer explicitly to trial fairness because the respondent conceded this factor at his trial, what is completely missing from the trial judge’s reasons is any indication of how he balanced the Collins factors. Such an assessment is particularly important in a case, like this one, where the factors point, in the trial judge’s eyes, in different directions (trial fairness – admit; seriousness of the Charter breach – exclude).
[55] Second,
the trial judge erred in concluding that there was “nothing in the evidence
which persuades me that there was any mitigating factor which might explain
or lessen the seriousness of the Charter violations.” Similar to Caslake,
the search of the respondent’s car was unobtrusive. There is no evidence
that the car was damaged. Moreover, the search of a car does not attract
the same protection as the search of a person’s body, home or office: Caslake at
para. 34. In addition, any expectation of privacy in the contents
of the car trunk recedes to the extreme periphery, in my view, in a situation
where several persons have been lawfully arrested and multiple weapons
have been discovered through lawful searches of the arrested persons and
the interior of the car. Finally, the fact of a loaded sawed‑off
shotgun in a car is a very serious matter. There is no good or benign
purpose for such a weapon. Society must be protected from criminals armed
with deadly weapons: see R. v. D. (Q.) (2005), 199 C.C.C. (3d)
490 at paras. 77‑78 (Ont.
[56] Finally, if admission into evidence of the sawed‑off shotgun would not affect trial fairness, and if Constable Chant’s violation of s. 8 of the Charter was not a serious one, it follows that the administration of justice would not be brought into disrepute by its admission.
[57] For these reasons, the trial judge erred in excluding the evidence relating to the shotgun from the trial.
[58] The trial judge excluded the respondent’s statement, which he concluded was voluntary, only because it was provoked by the search of the car trunk. Since I have determined that this search was reasonable, it follows that the respondent’s statement should have been admitted. I observe that the respondent does not contest this point.
[59] The respondent contends that if a new trial is ordered, the trial should proceed on only counts 3 to 8 in the indictment. The acquittals relating to counts 1 and 2 should stand.
[60] I disagree. Counts 1 and 2 relate to carrying concealed weapons (a knife and a pellet gun). The trial judge found that the respondent had concealed these items. However, he acquitted the respondent on this basis:
In my view, it has not been proven that either of these two items was used, designed to be used or intended to be used for any of the things set out in the definition of Section 2 of the Criminal Code.
[61] The definition of “weapon” in s. 2 of the Criminal Code is:
“weapon” means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person
and, without restricting the generality of the foregoing, includes a firearm.
[62] It seems clear that if a loaded sawed‑off shotgun was admitted into evidence at the respondent’s trial, it would be relevant in the assessment of whether the respondent’s knife and pellet gun were weapons within this definition.
[63] I would allow the appeal, set aside the acquittals, and order a new trial on all counts in the indictment.
“J. C. MacPherson J.A.”
“I agree M. A. Catzman J.A.”
“I agree E. E. Gillese J.A.”