Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Protection against unreasonable search and seizure — Remedies for denial of rights — Exclusion of evidence — Application by accused allowed for exclusion of a cell phone, marijuana found on accused, a rifle and a digital scale found in vehicle driven by accused on basis that his rights under Charter had been infringed — Accused had not been informed of reason for his detention when he was stopped by police — In seizing accused's cell phone immediately after accused's investigative detention, police infringed accused's rights under s. 8 of Charter - Seizure was unreasonable and unauthorized by law — Administration of justice would be brought into disrepute if evidence admitted — Police conduct was high handed and constituted an abuse of police ancillary powers — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Application by accused for exclusion of a cell phone, marijuana found on accused, a rifle and a digital scale found in vehicle driven by accused on basis that his rights under Charter had been infringed — On a voir dire held prior to trial, trial judge concluded that there had been a violation of s. 10(a) of Charter for failure to inform accused of the reason for his detention — Accused was under investigative detention when he was stopped in his vehicle while talking on cell phone — Trial judge found that breach was not serious and that evidence should not be excluded — During trial, police office testified that he had seized accused's cell phone immediately upon accused's detention — Court thus required to determine whether seizure infringed accused's right under s. 8 of Charter — HELD: Application allowed — Evidence was excluded — Seizure of cell phone was a warrantless seizure that infringed s. 8 of Charter — No exigent circumstances justifying a warrantless seizure under s. 11(7) of the Controlled Drugs and Substances Act existed — Seizure of cell phone when accused had not been told of reason for his detention was unreasonable — Search was not authorized by law and was not carried out in a reasonable manner — Seizure constituted a serious intrusion on accused's personal autonomy and privacy — Police conduct was high handed and constituted an abuse of police ancillary powers — Cumulative effect of Charter breaches was most serious — Admission of evidence would bring administration of justice into disrepute.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 8, s. 9, s. 10(a), s. 10(b), s. 24, s. 24(2)

Controlled Drugs and Substances Act, s. 11(7)

Liquor Licence Act,

Counsel:

Mr. M. Morris Counsel for the Provincial Crown.

Mr. C. Rippell Counsel for the Accused.

¶ 1      S.S. SEPPI J. (orally):— The accused, Khary White, brought a motion before the commencement of trial to exclude certain evidence claiming violations of his rights under Sections 8, 9 and 10(a) and (b) of The Canadian Charter of Rights and Freedoms. I ruled that there had been a violation of Section 10(a) for failure to inform Mr. White of the reason for his detention by the police for investigative purposes.

¶ 2      The evidence sought to be excluded in the trial was a cell phone, and a quantity of marijuana found on Mr. White's person, as well as a digital scale and loaded 38 calibre firearm with bullets found in the car Mr. White was driving. The authorization to search the vehicle in which the scale and gun were found, arose from a Liquor Licence Act infraction that was discovered after Mr. White was detained. I found the evidence sought to be excluded was non-conscriptive.

¶ 3      In all the circumstances disclosed in the evidence on that first Voir Dire, I held the breach was not a serious one in the sense of the applicant's liberty rights being compromised for police expediency. I also found Mr. White would probably still have gone into his car for his licence even if he had been told he was being detained for suspicion of drug activity, which is what led to the discovery of the evidence, Having found no other Charter breaches, I concluded the admission of the items seized would not bring the administration of justice into disrepute, and the defence application to exclude evidence pursuant to Section 24 of the Charter was therefore dismissed.

¶ 4      The case proceeded to trial by jury. In the course of the Crown's case, during the cross-examination of Constable Philip King, new evidence came to light that materially affects the Charter ruling. Constable King, for the first time during the entire course of these proceedings, disclosed that he seized Mr. White's cell phone immediately upon his detention. He said he believed he seized it just after he walked up to him on the grassy area between Dixie Road and the gas station lot where Mr. White had left the car.

¶ 5      With this disclosure of what appeared to be an infringement of Mr. White's right under Section 8 of the Charter to be secure against unreasonable search or seizure, it was incumbent on the court to enter upon an inquiry to ascertain whether such an infringement occurred, see the Ontario Court of Appeal decision of R. v. Arbour [1990] O.J. No. 1353. The issues on this second Voir Dire are

¶ 6      There is no dispute that the seizure of the phone was without a warrant, thus the Crown bears the onus of justifying the warrantless seizure. The Crown is required to demonstrate, on a balance of probabilities, that the seizure was authorized by a reasonable law and carried out in a reasonable manner, see R. v. Buhay [2003] 1 S.C.R. 631, paragraph 32, as cited in R. v. Mann [2004] 3 S.C.R. 59, paragraph 36) .

¶ 7      The Crown submits the seizure of the cell phone was justifiable on two grounds: First, he says that in the circumstances where the court has found a lawful detention for investigative purposes, seizing the cell phone was justified pursuant to the authority of Section 11(7) of The Controlled Drugs and Substances Act. In effect he submits the cell phone is property related to the drug offence for which Mr. White was being investigated, and that obtaining a search warrant was not practicable in these circumstances where events began to unfold so rapidly with the accused moving to distance himself from the car. Secondly, Crown counsel submits the seizure was justified for reasons of officer safety. The defence submits there is no evidence of exigeable circumstances as required under Section 11(7) of The Controlled Drugs and Substances Act, nor of any factors that would support the claim that the officer perceived a real threat or danger to his safety when he unlawfully took Mr. White's cell phone.

¶ 8      Section 11(7) of The Controlled Drugs and Substances Act permits warrantless search and seizure if conditions for obtaining the warrant exist, but by reason of exigent circumstances it would be impracticable to obtain one.

¶ 9      Webster's New World Dictionary defines exigent as, "Calling for immediate action, urgent and critical." In R. v. Mann, (supra) paragraph 40, the Supreme Court of Canada delineated the scope of a search that is incident to an investigative detention. In R. v. Mann, the court countednanced the power to conduct a protective, pat-down search of an individual detained for investigative purposes where the police officer has reasonable and probable grounds to believe his own or the safety of others is at risk. There is, however, no general power of incidental search on an investigative detention, nor by extension is there a general power of incidental seizure. "The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest." Quoted from R. v. Mann, (supra) paragraph 45.

¶ 10      As previously held, the stopping of Mr. White when he was talking on the cell phone in the circumstances of this case was an investigative detention. When the cell phone was seized, he was not under arrest. He had not been told of the reason for his detention by the police. Moreover, the police did not have grounds for any arrest.

¶ 11      Officer King testified that he took the phone to prevent Mr. White from calling others to his aid. He said the words, "Yeah, they're here now," made him believe Mr. White was calling someone else to the scene. He said he was concerned that if others came, officer safety would be compromised. He believed the suspicions which arose from the events at the Cannonball Club gave him the right to seize the phone. He said he had seen other officers do this in the course of detention and has learned the cell phone to be a concern in numerous investigations.

¶ 12      I find there were no exigent circumstances justifying a warrantless seizure under Section 11(7) of The Controlled Drugs and Substances Act. There was no urgency to seize the cell phone, nor was there any credible evidence of a threat or apprehension that the safety of the officers was at risk because Mr. White had a cell phone on his person. Mr. White was totally compliant and responsive to the officer's detention. He made no threatening gestures with his phone or otherwise. He did not attempt to run, he showed no inclination towards violence. The officer, on his own evidence, perceived no real danger or discomfort in the process until later when the accused put his hand on the floor of the vehicle. The phone call he was on ended when the officer stopped him. There is no evidence he tried to use the phone after be was detained.

¶ 13      Taking the phone in the manner that he did, when Mr. White had not been told of the reason for his detention, was clearly an unreasonable seizure. It was not authorized by law nor was it carried out in a reasonable manner. Accordingly, I find there was an infringement of Mr. White's Section 8 Charter rights to be secure against unreasonable seizure.

¶ 14      The question which must now be addressed is whether, having regard to all the circumstances, the admission of the evidence obtained from Mr. White and the vehicle would bring the administration of justice into disrepute within the meaning of Section 24(2) of the Charter. To understand the totality of the circumstances of the detention and arrest of Mr. White on June 12th, 2003, it would be helpful at this stage of the analysis to refer to the factual findings in my earlier Charter ruling. As counsel and Mr. White are familiar with these, it is not necessary for me to repeat them here.

¶ 15      On this second Voir Dire in which Constable King testified the same material facts are in evidence, except that we now know that Constable King seized Mr. White's cell phone, a seizure which I have found to be an infringement of his Section 8 Charter rights. The nature of the evidence sought to be excluded as in my earlier ruling is non-conscriptive. Thus the exclusion or admission of the evidence depends on the seriousness of the Charter breaches and the effect of exclusion on the repute of the administration of justice.

¶ 16      The Crown submits the taking of the cell phone was no more serious then was the failure to immediately advise Mr. White of the reasons for his detention. He submits that my earlier ruling under Section 24(2) should still apply, or, if any change is warranted, only the cell phone which is the object of the seizure ought to be excluded from the evidence.

¶ 17      The defence submits the cell phone seizure adds a whole new dimension to the seriousness of the Charter breach. He submits the cell phone seizure is an extremely serious violation of Mr. White's right to privacy. He submits that where the evidence is found after two flagrant breaches of the Charter rights of an accused, its admission into evidence at trial would bring the administration of justice into disrepute. He submits the Ontario Court of Appeal authority of R. v. Clayton, (2005) 194 C.C.C. (3d) 289 applies in the context of this case.

¶ 18      Officer King admitted to routinely seizing individual's cell phones upon investigative or regulatory detentions. This, the defence contends, is a gross misapplication of police ancillary powers. The defence submits all of the evidence discovered after the breaches ought to be excluded in this trial. Pursuant to Section 24(1) of the Charter, the court must have regard to all of the circumstances in this case, not the seizing of the cell phone in isolation.

¶ 19      As we are reminded in R. v. Clayton, (supra) paragraph 75:

And further on in paragraph 76;

¶ 20      In the case at bar, there were two breaches by which Mr. White's Charter rights were infringed upon his initial detention. Not only was Mr. White not told of the real reason for his detention when Officer King stopped him, but also his privacy right to possession of his personal cell phone was violated without reason or justification. An individual who walks outside his vehicle talking on his cell phone is reasonably entitled to the privacy and continued custody of his phone. Though the officers suspected Mr. White's involvement in drug activity, which gave them the right to stop him for investigative purposes, taking the cell phone was a significant intrusion on Mr. White's freedom. As stated at paragraph 75 of R. v. Clayton, (supra), "A search of the person is always a serious intrusion on personal autonomy and privacy." So too is an unlawful seizure of a person's personal property.

¶ 21      When considered in the context of all the circumstances, the police conduct when they stopped Mr. White was high handed and an abuse of the police ancillary powers. I conclude, therefore, that the cumulative effect of the Charter breaches in this case was most serious.

¶ 22      The evidence sought to be excluded on account of this serious breach includes a very dangerous weapon. However, I reject the Crown's submission that the finding of the gun was not connected to the Charter violations. In R. v. Byfield, (2005) 193 C.C.C. (3d) 139, the Ontario Court of Appeal considered a bag containing crack cocaine thrown away by the accused after he fled from the scene when stopped by the police, and further evidence discovered on the accused's person upon his subsequent arrest, to have a close temporal connection to the Section 8 violation that occurred when the vehicle was initially stopped on an investigative detention.

¶ 23      At paragraph 27 of the Byfield case, the court found a strong temporal connection made the Charter breach and discovery of the evidence an integral part of a single transaction that concluded in a matter of minutes, The court in Byfield also found there to have been a close causal connection when the evidence was found because of the stop, detention and questioning of the accused see paragraph 27 of R. v. Byfield, (supra).

¶ 24      In the case at bar the evidence that was found, including the loaded gun under the seat, was found because of the stop, detention and initial questioning which occurred during the Charter breaches. The evidence was uncovered because Mr. White entered the vehicle to obtain his licence in response to the officer's initial questions on the investigative detention. The events took only a matter of minutes to lead to the discovery of the marijuana, digital scale and loaded prohibited firearm.

¶ 25      Though some of the evidence found, namely the loaded firearm and the alleged crimes are of a very serious nature, this does not minimize the seriousness of the Charter breaches. As stated in R. v. Clayton, (supra) paragraph 78:

And further on at paragraph 94:

¶ 26      In all of the circumstances, therefore, I conclude that the admission of these items, and the cell phone into evidence in this trial would bring the administration of justice into disrepute. Accordingly, the cell phone, marijuana, firearm, bullets and digital scale are excluded from the evidence at trial pursuant to Section 24(2) of the Charter.

QL UPDATE:  20060503
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