This week’s top three summaries: R v Gomez, 2020 ABQB 439, R v P.N., 2020 ONCJ 317, R v Colligan, 2020 BCSC 1139.
R v Gomez, 2020 ABQB 439
[July 30, 2020] Charter s.8 - Strip Search Requirement of Detailed Police Notes and Evidence of Superior Authorization - Charter s.10(b) - Delay of 15 minutes at Station to Conduct Strip Search Unreasonable Where No Evidence to Satisfy Urgency [Mr. Justice G. R. Fraser]
AUTHOR’S NOTE: Deficiencies in police notes are often explained in court by police indicating they are merely made to refresh their memory. Their magical quality is that the officer's memory of things not written are often refreshed by things that are there to the never-ending frustration of defence counsel. Most of the time, courts let police get away with this because there is no definitive way to prove police are exaggerating, confabulating, or lying about their recollection. Strip searches are one legal area where lack of detailed notes can be determinative, in and of itself. Here the lack of police notes and the long passage of time to the testimony of the officer was determinative of the s.8 breach on a strip search. The s.10(b) violation was factually connected as the officer failed to testify about why there were no alternatives to delaying the counsel phone call for the purpose of the strip search. Perhaps the officer just could not remember. Ironically, the officer in question may have established the violations through his honesty in that he did not try to "fill in the gaps" in his notes with magically detailed recollections. The court may have been far more severely tested had he done so.
Pertinent Facts
[8] Sometime in October 2017 the EDGE unit became aware of a tip from a confidential informant. The tip provided limited information, just that Benjamin Gomez trafficked cocaine at the ounce level and that he drove a black Lexus with a specific license plate number. This tip was given to the informant’s handler sometime between August and October 2017. The handler, Constable Kemp, relayed this information to the EDGE unit. Both Constable Stang and Detective MacLeod were aware of the information provided by the confidential informant, but knew few other details about him or her. The only other information provided was that the informant did not have a record for obstruction or perjury and that the informant had at some point in the past provided information about individuals involved in the drug trade which had been corroborated.
[10] As a result of Constable Stang’s findings and the information provided by the confidential informant, the EDGE unit started a surveillance operation focusing on Mr. Gomez. Over the next five months, police conducted over 40 hours of surveillance on Mr. Gomez. Through their surveillance, the police were able to observe 8 instances which they believed to be drug transactions.
[18] The final suspected transaction involving Mr. Gomez occurred on February 26, 2018, the date of his arrest. On that date, police observed him leave his house at approximately 1110 hrs. and enter the Lexus. He drove various places in the city, likely running errands. Approximately 1329 hrs. Mr. Gomez drove to the parking lot of a strip mall located at 3503 99 Street. He parked beside a white Ford pickup truck that was waiting there. Mr. Gomez exited his vehicle and got into the passenger side of the truck. At that point, Detective MacLeod instructed the surveillance team to arrest Mr. Gomez. Police approached the truck to place Mr. Gomez under arrest. Prior to the police reaching him, police observed Mr. Gomez place his hand up to his mouth.
[20] Both Detective McLeod and Constable Stang relied on all these surveillance operations to form their reasonable and probable grounds. Both officers were directly involved in the surveillance of Mr. Gomez on more than one occasion. If one or both of the officers was not directly involved in surveillance on a particular day, the uninvolved officer or officers would review the surveillance reports of their other unit members. Consequently, both Detective McLeod and Constable Stang were aware of the details of the above eight incidents.
[21] After his arrest, Mr. Gomez was transported to the downtown Edmonton Police Station on 96 Street by Detective MacLeod. They left the arrest scene at approximately 1405 hrs. and arrived at the Downtown Station at approximately 1430 hrs. Mr. Gomez had been appropriately Chartered and cautioned at the scene. At that time, he did not want contact counsel.
[22] Upon arriving at the police station and being taken to the third floor holding area, Mr. Gomez indicated that he wished to contact counsel. This was shortly after he was informed by Detective MacLeod that a strip search would be conducted.
[23] Detective MacLeod did not immediately facilitate access to a telephone for Mr. Gomez. Instead, he sought permission from his supervisor, Staff Sergeant Ockerman, to conduct the strip search. Detective MacLeod testified that he relayed information to Staff Sergeant Ockerman regarding Mr. Gomez and the circumstances of the arrest along with his reasons for wanting to conduct the strip search.
[24] It is important to note that Detective MacLeod had very limited notes regarding this aspect of the investigation. Most of his testimony was from his memory of what happened two years ago. There were many generalities in his testimony, and few specifics. This makes it difficult to find his recollection of the events completely accurate.
[25] There is no doubt that he was granted permission to conduct a strip search by his supervising officer. The search started at 1439 hrs. Six minutes later, Mr. Gomez was in a phone room and had the ability to contact counsel. What is less certain is exactly what information was provided to the Staff Sergeant who authorized the search and in what manner the search was conducted.
[26] Detective MacLeod testified that he would have advised his Staff Sergeant of the circumstances of Mr. Gomez’s arrest. He would have advised Staff Sergeant Ockerman that Mr. Gomez was being charged with a drug related offence and had been arrested during a suspected drug sale. He also believes that he advised the staff sergeant that no drugs were found at the arrest scene and that he believed Mr. Gomez had swallowed drugs.
[27] Detective MacLeod had no notes specifying what information was relayed to his supervising officer. He was testifying from memory about an event that happened over two years ago. I do not find the Detective McLeod was attempting to mislead the court in any way, but I do find his memory regarding many of the specifics of the information to be unreliable.
[28] I do accept that Detective MacLeod conducted the strip search in a room that was designated for such procedures. Only he and Mr. Gomez were in the room and that there was an officer outside the door for safety purposes. That officer did not participate in the search. I also find the Detective credible in his testimony that Mr. Gomez was never totally naked. He was made to strip down to his underwear, but he did not have to remove the underwear.
[30] He could not recall if there was a camera in the room, or if there were a camera, it was turned off. He did think that it was unlikely that the search was recorded. This may be because logic would seem to dictate a room designated for conducting strip searches should not have a camera. This is been established law in Canada for over a decade. However, he should have been able to give a definite answer. Proper notes would have allowed him to be sure of his answer.
[31] Detective MacLeod also could not describe the exact process used to conduct the strip search. He was unable to say if an item was removed, then searched, then given back to Mr. Gomez. He also could not give an exact time regarding how long it took to conduct a strip search. Only that it started at 1439 hrs. and that by 1445 hrs. Mr. Gomez was in the phone room. There had to be some time taken to move Mr. Gomez into the room for the strip search, then out of that room and into the phone room. However, the transportation time could not have been great as the rooms were on the same floor.
[32] Detective MacLeod testified that his reason for conducting the strip search was to possibly preserve evidence. At the time, he was an experienced police officer working in a unit focused on drugs and gangs. He was aware of how cocaine is usually packaged and sold. He had observed Mr. Gomez place his hand up to his mouth just prior to the arrest. I find Detective MacLeod’s testimony that he believed Mr. Gomez had swallowed drugs and his belief that it was possible that Mr. Gomez had drugs concealed in his clothing to be credible.
[33] Detective MacLeod’s grounds for conducting the strip search were reasonable. He testified that cocaine can be packaged in small amounts that are easily concealable. In the past, he knew of incidents where drugs were concealed in socks or other areas on the person. I find the detective’s testimony credible regarding Mr. Gomez being allowed to remain in his underwear and only move the waistband to ensure there was nothing concealed. This seemed to be a very specific memory with details that permit me to find him credible on this point.
Strip Search - Law and Analysis
[93] Mr. Gomez is alleging Detective McLeod violated his rights under Section 8 of the Charter when the detective strip searched Mr. Gomez.
[94] The seminal case regarding strip searches in Canada is R v Golden, 2001 SCC 83. The case set out an 11-point framework for police in deciding how to best conduct a Charter-compliant strip search incidental to arrest. Mr. Gomez submits that Detective McLeod did not follow two of the points from Golden; the search was not properly authorized by a superior officer and a proper record was not kept of the reasons for and the manner in which the search was conducted.
[95] The two alleged Charter violations are intertwined. It is difficult to determine if the strip search was properly authorized if there is not a proper record kept of the reasons underlying the search. The lack of a record also makes it difficult to determine if the manner in which the search was conducted was appropriate.
[97] I have no doubt that Detective McLeod sought approval from his supervising officer before conducting the strip search. I also have no doubt that approval was granted. The rub is that Detective McLeod could only provide generalities regarding this interaction. He had minimal notes on the subject, and almost no details. Not surprisingly, his memory of these events had faded in the two years that had passed. This is precisely why one of the steps in Golden is to keep a proper record.
[99] Most of this testimony consisted of generalities. He could not recall the exact details of how the search was conducted. The only real specific aspect he could recall was that Mr. Gomez remained in his underwear and only had to move the waistband away from his body.
[100] This is precisely why Golden requires police to keep a proper record. I do not believe Detective McLeod was trying to mislead the court. He was doing his best to recall an event that happened two years ago. It is not surprising that some of the details would be lost to his memory.
[101] Detective McLeod testified that he believed a proper record of the circumstances surrounding the strip-search was created. There is an Edmonton Police Service requirement that a form be completed every time a strip search is conducted. He believed that he had completed the required form.
[102] The problem is that he did not have the form with him when he testified. He had not reviewed it prior to his testimony. Detective McLeod did feel that he could find the form if he were now given the opportunity. If the form did exist, it was never provided to the Crown or to defence counsel.
[104] It is not acceptable that almost 20 years after the Golden decision police are either not keeping a proper record of strip searches or that they are not providing the record to the Crown. Detective McLeod was a senior member of the Edmonton Police Service and also of the EDGE Unit. Although there was no evidence given on this point, it is likely that he was familiar with Edmonton Police Service policy regarding strip searches. In his preparation for the trial, he should have realized he was missing the recorded information regarding the strip search. He should have taken steps to remedy the situation prior to his testimony, instead of volunteering to look for the document during his cross-examination.
[105] I find that Mr. Gomez’s right to be free from unreasonable search under Section 8 of the Charter was violated. The violation is the failure of the police to keep an adequate record of the reasons for conducting the search and records of the manner in which of the search was conducted.
Charter s.10(b) - Delay of Access to Counsel - Analysis and Law
[106] Mr. Gomez is alleging that his right to retain and instruct counsel without delay after his arrest under Section 10 (B) of the Charter was violated. Specifically, he alleges that he was denied his right to contact counsel for approximately 15 minutes after he arrived at the downtown police station.
[108] There is no doubt that Mr. Gomez was denied his right to contact counsel for that 15minute period. During those 15 minutes a strip search was conducted. No evidence was obtained during those 15 minutes.
[109] Detective McLeod testified that the reason for the 15-minute delay was that he was concerned that Mr. Gomez might be able to destroy evidence. He wanted to conduct the strip search prior to leaving Mr. Gomez alone in the phone room. Immediately after the completion of the strip search, Mr. Gomez was placed in the phone room and given the opportunity to contact counsel in private.
[110] The task of the trial judge regarding right to counsel was described in R v Luong, 2000 ABCA 301 at paragraph 12:
A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right.
[111] In Mr. Gomez’s case, the question is whether the police actions provided him with reasonable opportunity to exercise his right to counsel.
[112] In R. v. Willier, 2010 SCC 37(S.C.C.), the Supreme Court wrote at paragraph 29:
The purposes of s. 10(b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle, Lamer C.J. summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p. 192). Section 10(b) requires the police
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
[113] This passage allows police to delay providing an individual with an opportunity to contact counsel for reasons of urgency or safety.
[114] In this case, Detective MacLeod did delay Mr. Gomez’s ability to contact counsel. The only possible justifiable reason for this delay would be urgency. Detective MacLeod testified that he felt there was an urgency in conducting the strip-search prior to providing Mr. Gomez with the ability to contact counsel. The urgency arose from the possibility of Mr. Gomez destroying evidence while in the phone room.
[120] Although Detective MacLeod felt it was necessary to search Mr. Gomez before providing him with an opportunity to contact counsel, I do not agree. He may have had a good faith belief that urgency superseded Mr. Gomez’s rights and that he had no alternatives. There was no evidence given explaining why there were no alternatives. Perhaps he could have provided Mr. Gomez with an opportunity to use a telephone in a manner which would allow him to talk privately but still be observed to ensure that evidence could not be destroyed. Perhaps there were other viable alternatives. Perhaps there were no other viable alternatives. From the evidence, I do not know.
[121] The onus is on the Crown to prove that there was no violation of Mr. Gomez’s section 10(B) rights. I find they did not meet that onus. Consequently, I find the police did not provide Mr. Gomez with a reasonable opportunity to exercise his right to counsel and his Charter rights were violated.
R v P.N., 2020 ONCJ 317
[July 10, 2020] Charter s.9 - Arbitrary Detention: Loss of Credibility of Police - Charter s.8 - Routine Safety Searches Unreasonable [Justice Maria N. Sirivar]
AUTHOR’S NOTE: This case provides a s.9 example of adductive reasoning: "If it looks like a duck, swims like a duck, and quacks like a duck, then it's probably is a duck." Here, police claimed that they were investigating the Young Person for a potential breach charge, but evidence arose that they had some information he might have a gun. They arrested, searched, and treated him in all ways consistent with the treatment of a gun-carrying accused. Consequently, despite their fervent claims to the contrary, the police here were not credible this issue. Further, searches of the person for safety purposes cannot be conducted routinely. There must be specific evidence to substantiate them. The search here fell afoul of this rule as well. Ultimately, all the gun charges were dismissed.
Pertinent Facts
Grounds to Suspect
2. P.N. brings this Application, pursuant to section 24 (2) of the Canadian Charter of Rights and Freedoms (the “Charter”), to exclude the firearm on the basis that it was obtained in a manner that violated his Charter-protected rights contrary to sections 8, 9, and 10(a).
8. On August 17, 2019, at approximately 8:00 p.m., Detective Constable Gregory Yan (“DC Yan”) attended the […] Complex as part of a break and enter investigation. He is a member of the Major Crimes Unit and he was in plain clothes and was driving an unmarked police vehicle.
10. P.N. gave him a look that was “not innocent”. He then took the satchel he was carrying off his body and gave it to K.B., while still looking at the DC Yan. DC Yan believed that P.N. suspected he might be a police officer. K.B. put on the satchel and they walked away.
11. He knew that P.N. had been recently arrested for possession and that he was out on conditions. He did not know what the conditions were, so he called Detective Constable Dwayne Forde (“DC Forde”), the neighborhood officer.
12. DC Forde, who was on his bicycle on his way to an event in another community when he took the call, advised DC Yan that P.N. was on condition not to associate with K.B. DC Forde further advised DC Yan to use caution because P.N. might be in possession of a firearm.
15. DC Yan testified that he passed the information he received from DC Forde (both the condition and the advice to be cautious because P.N. may have a firearm) onto his colleagues from the Major Crimes Unit, Detective Constable Ryan Munro (“DC Munro”) and Detective Constable Eric Zimmerman (“DC Zimmerman”). He testified in cross-examination that he did so because P.N. was breaching his condition and he could be arrested or he could be detained to investigate further.
16. According to DC Yan, they were in the area because they were also looking for the break and enter suspect. He gave them the direction the pair were walking in and told them that they would likely end up at the McDonald Plaza at Pape and Gerrard. He then set up in an area “tucked away” to maintain observation.
Investigative Detention
21. DC Zimmerman described his approach in the following terms: “As I approached, I took control of the male, I grabbed him by his wrists at his side and advised him that I am a Toronto Police Offer.” In cross-examination he acknowledged that he did so with some force. He explained that the element of surprise is important in gaining physical control.
22. DC Munro testified that as the pair was approaching, he got a clear unobstructed view of both of them. He was able to confirm that it was P.N. at which point he advised P.N. that he was being detained in relation to the breach of conditions.
23. DC Zimmerman explained that he had a reasonable suspicion that a crime was occurring and then he took physical control of P.N. The possibility of a breach is what necessitated that he takes physical control of P.N. In cross-examination, DC Zimmerman conceded that talking to P.N. may have sufficed but added that it may have also allowed P.N. to escape.
26. DC Zimmerman explained that, in his view, under investigative detention he has the authority to physically control someone and that it is not out of the ordinary to handcuff a detainee.
27. DC Zimmerman conceded in cross-examination that if they had lost sight of P.N., he could have attended his place of residence or seen him in the community at some other time and he could have arrested him for the breach.
Detention of K.B.
28. DC Munro began speaking with K.B. because he wanted to confirm she was who they believed she was. He advised her that they were both Toronto Police Officers. She confirmed her name.
29. DC Munro describes K.B. as appearing nervous with her leg shaking and that she kept looking around. He was concerned that she was preparing to run. As a result, he advised her to have a seat on the sidewalk.
30. DC Munro explained K.B. detention in cross-examination as follows:
Q. Okay. Can I ask you why you would place K.B. under investigative detention? She’s not connected to any crime, is she?
A. The specific condition for P.N. was not to communicate directly or indirectly with one K. B.
Q. Right.
A. He as walking with a female that I believed to be K. B.….
Q. Right.
A….but I did not know 100 percent that it was K.B.. So, in order to confirm the female’s I.D. and, again, the breach of the condition was valid, I needed to confirm her identification. So, she was not free to go.
Q. She was not free to go?
A. She …
Q. So you, you detained her?
A. I did.
Pat Down/Safety Search
31. DC Zimmerman explained that a pat down allows him to search for weapons and not evidence. He indicated, “that is also what you do after you arrest”.
32. He further explained that in investigative detention, he routinely searches for weapons and means of escape because officer safety is “always an issue”, even when the person being detained is in handcuff. He indicated that he can always search an individual he has detained, as long as he has reasonable grounds to detain.
33. In this particular case, he did not know if P.N. was armed or if he had any weapons. He testified that it is “his duty” to make sure that he was not a risk to him, his partner and K.B.
34. DC Zimmerman then searched P.N.’s person for any means of escape or weapons. He searched P.N.’s waist band for sharp objects, his right pocket where he found two phones, and in his left pocket he found change and a $5 bill. He acknowledged in cross-examination that he may have exceeded the pat down search because he went into the left pocket without having felt a hard object like he did with the cellphone in the other pocket.
The Judicial Condition
36. DC Yan heard over the radio, that DC Zimmerman and DC Munro had the pair detained, about twenty minutes later. When he arrived on the scene, DC Zimmerman was with P.N. who was in handcuffs with his satchel on the ground. K.B. was being detained by DC Munro, but she was not handcuffed.
37. According to DC Yan, K.B. said she had given consent but neither of them had any paperwork. DC Yan then checked CPIC and saw that the there was an exception to the condition that allowed P.N. to be with K.B. with written verbally recoverable consent. There was nothing in CPIC, however, about the consent having been given.
38. He used a connected phone to conduct a CPIC check, for the first time, when he arrived at the at the scene and the pair was already detained. He relied on DC Forde because wanted to maintain observation.
39. Once he completed the CPIC check, DC Yan realized that the information he received from DC Forde was wrong because the condition provided “except with the written verbally revocable consent”.
41. All officers were able to conduct CPIC checks on their phones. DC Munro and DC Zimmerman did not make independent efforts to confirm the condition precluding P.N. from being with K.B.
43. DC Munro testified that he recalls K.B. saying that they were not breaching but conceded that this information is not in his notes. Similarly, DC Zimmerman testified that K.B. said something along the lines of, “we’re not breaching, it’s revocable”. In cross-examination, he acknowledged that this information is not in his notes, but it should have been. He also acknowledged that P.N. told him that he is not on conditions.
45. Alison Mastenbroek, Manager of the Toronto Bail Program, testified that on August 12, 2019, K.B. signed a written revocable consent allowing P.N. to have contact with her. K.B.’s signed consent was filed with the Bail Program. Ms. Mastenbroek explained that, because the condition did not direct that the signed consent be forwarded to the Toronto Police, it remained in her office.
The Arrest and Search Incident to Arrest
46. After DC Yan confirmed the identities of K.B. and P.N. and current the recognizance not to communicate with K.B., DC Zimmerman testified that he had reasonable grounds to believe they were breaching recognizance. Accordingly, P.N. was arrested for breach of recognizance and read his rights and youth caution.
48. DC Zimmerman then began the search incident to arrest searching not just for weapons on his person but also the satchel. He found a loaded semi-automatic firearm.
The Law of Investigative Detention
56. As stated by the Ontario Court of Appeal:
“articulable cause is “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation.” In ascertaining whether articulable cause exists the court must have regard to the facts and circumstances as a whole, rather than isolating each in turn and must be satisfied that there are bona fide clearly expressed and factually objective reasons justifying not only the detention of the suspect but also the extent and nature of the investigation.”
[Emphasis added] R. v. Coates, 2003 CanLII 36956 at para 3
57. The onus is on the accused to prove on a balance of probabilities that the detention was arbitrary. R. v. Mann
The Law of Protective Pat-Down Searches
58. Under the ancillary powers doctrine, the common law provides authority for a protective pat-down search incident to an investigative detention where:
- the officer has reasonable grounds to believe that his or her safety, or the safety of others, is at risk;
- the search is reasonably necessary in light of the totality of the circumstances; and
- the search is conducted in a reasonable manner.
R. v. Mann at paras 40 and 45
59. The search cannot, however, be justified based on a vague concern for safety. It must be grounded in objectively discernible facts such that reasonable and specific inferences can be drawn from the known facts of the situation in order to prevent fishing expeditions. R. v. Mann at paras 40- 43 and R. v. Lee, 2017 ONCA 654 at para 31.
Search Incident to Arrest
60. In order for a search incident to arrest to comply with the Charter, it must be:
- lawful;
- be truly incidental such that it is connected to the offence either as a means by which to discover and preserve evidence connected to the offence being investigated or to protect against safety or escape; and
- conducted reasonably.
R. v. Canary, 2018 ONCA 304 at para 33
Analysis - Charter Section 9
85. Central to the assessment of whether DC Zimmerman had reasonable grounds to suspect that P.N. was connected to a crime and whether his detention was necessary is the nature of the crime DC Zimmerman was investigating.
86. There is, however, conflicting evidence about the suspected crime. DC Yan testified that DC Forde advised that P.N. was on condition not to be with K.B. DC Yan had seen the pair them together. DC Forde, based on information from a confidential informant (at least in part), believed that P.N. could have been in possession of a firearm. He warned DC Yan to be careful.
87. DC Yan testified that P.N. looked at him in a way that was not innocent, took off his satchel and gave it to K.B., while still looking at him. DC Yan believed P.N. suspected he was a police officer. As a result of what he had seen and the information he received from DC Forde, he contacted two of his colleagues in the Major Crimes Unit, to pursue the two young people. DC Yan testified that he told DC Munro that P.N. was not to be with K.B. and that P.N. may be armed.
88. Based on the evidence of DC Yan and DC Forde, therefore, there were two possible crimes being investigated: the breach of judicial condition and the possession of a firearm.
89. DC Munro and DC Zimmerman, however, testified that they did not receive information from DC Yan that P.N. was possibly in possession of a firearm. They maintained that they were only investigating a possible breach.
90. The manner of detention is remarkable, in the circumstances. It involves two officers from Major Crimes Unit (in plain clothes and an unmarked vehicle), pursuing and cutting off (one foot and one with a vehicle) two young people as they walk down the street. DC Munro drove in front on them and intercepted them while DC Zimmerman snuck up behind them and grabbed P.N. by the hands behind his back in handcuff position relying on “the element of surprise”. He then handcuffed P.N. shortly after. K.B., the victim who was not suspected of any crime, was also detained. DC Munro testified that he was concerned that she would try to run away.
91. I agree with the Defence. It is incredible that DC Zimmerman and DC Munro would have proceeded the way they did to investigate a breach of an administrative condition. They approached and detained the two young people as if they were investigating two people that were suspected of being in possession of a firearm.
92. I do not accept the evidence of DC Zimmerman and DC Munro. I find that they have not been candid with Court. I accept the evidence of DC Yan and DC Forde, as it accords with the manner and scope of the detention. Accordingly, I find that the detention of N.B. was unlawful and therefore arbitrary, contrary to section 9 of the Charter.
Charter s.8 - Analysis of Safety Search
94. The Crown conceded a breach of s. 8 when DC Zimmerman reached into P.N.’s left pocket, without having felt a hard object and retrieved a $5 bill and some change.
96. Having found that the investigative detention was unlawful, the search incident to detention was also unlawful. If I am wrong, I find that the searches are also independently unlawful.
97. DC Zimmerman justified his search of P.N. after he was detained based on general safety concerns. He testified that he conducts “safety searches” as a matter of practice because officer safety is always an issue. He testified that he had told P.N. did not comply with his repeated instructions to put his hand behind his back. This information, however, was not in his notes, even though it was the basis for his decision to handcuff P.N. I do accept this evidence.
98. DC Zimmerman’s evidence did not reveal an assessment of the situation to determine whether he is authorized to conduct a safety search in the situation. DC Zimmerman’s explanation is not grounded in objectively discernable fact. At best, it can be characterized as a vague concern for safety.
99. I find that DC Zimmerman’s decision to search P.N.’s person and his satchel cannot be justified on the basis of safety in light of the totality of the circumstances. These include:
a. he testified that he was investigating a breach of condition;
b. he took physical controls of P.N.;
c. he caught P.N. by surprise;
d. P.N. was handcuffed behind his back; and
e. he had the assistance of up to two other police officers.
100. I find that the Crown has not established that the search of the satchel was necessary on the grounds of safety or fear of escape. Moreover, it cannot be justified on the basis of searching for evidence of the breach of judicial condition.
101. Based on the foregoing, I find that the search of P.N.’s person and satchel, upon detention and arrest, were unlawful, contrary to section 8 of the Charter.
Charter s.24(2) Analysis
Seriousness of the Charter Violation
106. I agree with the Defence. There were multiple breaches, and I find that the officers failed to take reasonable steps to determine whether K.B. had signed a consent. The fact that on the day in question they could not have determined that the consent had been signed is not determinative. There is no evidence any effort was made.
The Impact of the Violations on the Charter-protected Interests of the Accused
111. I am unable to conclude that the firearm lawfully discoverable. It is not possible to assess what DC Zimmerman subjectively believed not been honest with the Court in his testimony. Objectively he and DC Munro, despite the ability to do so, made no effort to confirm the condition or the fact that K.B. signed a consent. I find their evidence in this regard, along with that of DC Yan, to be incredible as it was at times contradictory and none of them made notes of the alleged conversations with K.B.
112. The fact that the consent signed by K.B. was not sent to the Toronto Police is not determinative because the officers failed to take any steps to confirm its existence.
113. The multiple breaches, in their cumulative impact, were not transient or trifling. They significantly impacted P.N.’s liberty, autonomy and privacy. Accordingly, I find that this line of inquiry strongly favours the exclusion of the evidence.
Balancing
120. Weighing the evidence on each of the three lines of inquiry, having regard to all the circumstances, I conclude that the admission of the evidence would bring the overall administration of justice into disrepute, viewed in the long term.
Conclusion
121. Having concluded that the firearm was obtained in a manner that infringed or denied P.N.’s Charter-protected rights contrary to sections 8, 9 and 10(b), the firearm shall be excluded because its admission in the proceedings would bring the administration of justice into disrepute, having regard to all the circumstances. Consequently, P.N. is acquitted of all 10 counts in the information.
R v Colligan, 2020 BCSC 1139
[July 31, 2020] Sentencing - CSO for Dial-a-Dope Operation [Mr. Justice Marchand]
AUTHOR’S NOTE: The offence in this case pre-dates the changes to the CSO regime brought in by the Harper government. However, with the recent striking down of CSO unavailability in R v Sharma, 2020 ONCA 478 (see: The Defence Toolkit - July 26, 2020) there is value in brushing up on past sentences for Ontario cases and in considering similar applications outside of Ontario (or ... patiently waiting for the SCC to wade in on Sharma?). Here the CSO was partly a function of rehabilitation by the offender due to having skipped on his bail for years and the effect of Gladue principles.
Overview
[1] In 2011, Daniel Colligan was charged with three counts of trafficking cocaine in Kamloops, British Columbia. Mr. Colligan did not appear in court for his trial in October 2013. A warrant was issued for his arrest. The warrant was executed on December 6, 2018 in Edmonton, Alberta. Mr. Colligan was transported to Kamloops, where he entered guilty pleas on December 17, 2018 and was then released on bail, by consent.
[2] Between 2011 and today, Mr. Colligan has completely turned his life around. That is commendable but the fact that he did so while on the lam presents a challenge at the sentencing stage. How can the court impose a sentence that discourages offenders from fleeing justice generally while at the same time promoting public safety by supporting the rehabilitation of a particular offender specifically?
Circumstances of the Offence
[4] On February 3, 2011, an undercover police officer telephoned the number and asked to purchase crack cocaine. The officer was directed to meet a black car at the Halston Market. At about 11:30 p.m., the officer met a black car at that location. Mr. Colligan was riding as a passenger. He asked the officer how he got the number. On receiving a satisfactory answer, the driver of the black car provided the officer with 0.6 grams of crack cocaine in exchange for $80. Mr. Colligan then directed the driver to put the money in the centre console.
[5] On February 10, 2011, a different undercover officer telephoned the number and asked to purchase $80 worth of cocaine. The officer was directed to the North Hills Mall parking lot. At about midnight, the same black car arrived. Mr. Colligan was driving. A female in the black car provided the officer with 0.68 grams of crack cocaine in exchange for $80. The officer asked if he could get more. Mr. Colligan replied that he could call.
[6] On February 18, 2011, the first undercover officer called the number and asked to purchase $40 of crack cocaine. The officer was directed to a convenience store on 8th Street on the North Shore. At about 8:00 p.m., Mr. Colligan arrived in a van. The officer asked for an additional $40 of cocaine. Mr. Colligan motioned to a female passenger who opened a plastic baggy and removed a packet containing 0.62 grams of crack cocaine. The female passenger handed the packet to the officer and the officer handed $80 to Mr. Colligan.
Circumstances of the Offender
[9] In considering the circumstances of Mr. Colligan, I have had the benefit of a detailed and thoughtfully prepared “Gladue” report.
[10] Mr. Colligan is 34 years old. He self-identifies as Métis. His childhood was marred by trauma and instability.
[11] When Mr. Colligan’s Métis mother was two, she and her 13 siblings were apprehended due to neglect and malnourishment. Mr. Colligan’s mother was then placed in an orphanage until she was adopted by a non-Indigenous family at age four. She ran away from home at 15 and was placed into foster care. She met Mr. Colligan’s father and entered into a relationship with him when she was 16. He was 23.
[12] Mr. Colligan’s father was a drug-addicted member of the Hell’s Angels. He was emotionally, physically and sexually abusive to his mother. Mr. Colligan’s mother became an alcoholic. She says that she was “the perfect victim”. Due to her age and background, she was vulnerable. In her words, she “had nobody”.
[13] Mr. Colligan was born in North Vancouver, but was raised by his parents until age five in Kamloops. Mr. Colligan witnessed his father’s abuse of his mother, which culminated in a horrifying attack when Mr. Colligan was five years old. Mr. Colligan jumped on his father during the attack and ended up being covered in his mother’s blood. His father was charged with attempted murder and fled.
[14] Mr. Colligan’s mother re-partnered but things did not improve much for Mr. Colligan. Mr. Colligan’s mother’s new partner was physically abusive to him. Mr. Colligan says that this man “beat on” him daily. Though the home situation was not good, Mr. Colligan lost his second father-figure following his mother’s separation from him when Mr. Colligan was eight years old.
[16] Mr. Colligan struggled in foster care. He did not see his mother much. He experienced negative messaging about his family and identity as an Indigenous person. Being alienated from his family, he internalized this messaging. He began using substances at age 13 to deal with his mental health issues. He did not complete high school. By age 17, he was addicted to alcohol, marihuana and cocaine, and began selling drugs to support his habit.
[17] At age 18, Mr. Colligan aged out of foster care and was released from a group home. By that time, he had already been in conflict with the law. He was dropped off at the Salvation Army with a backpack full of clothes, but not much else, other than a bunch of probation orders. By age 19, he began using crystal meth. As a result of its ravaging effects, his mother describes that he became quite skinny.
[21] Mr. Colligan then began a relationship with his current partner, Amber Murray. In 2012, Mr. Colligan broke off all of his negative associations and moved with Ms. Murray to Edmonton. Mr. Colligan was sick of his drug lifestyle and the vicious cycle of being in and out of jail. By this time, Mr. Colligan had accumulated an unenviable criminal record consisting of seven youth and 15 adult convictions. Of greatest relevance to the matters at hand, in 2010, Mr. Colligan was convicted of two counts of possession for the purpose of trafficking in ecstasy and cocaine valued at about $4,500. He received an effective 14-month jail sentence and a ten-year firearms prohibition.
[22] While in Edmonton, Mr. Colligan began attending NA and AA meetings. He found employment in the oil industry and has been steadily employed since that time. He has obtained a large number of employment-related “tickets”. As of the date of the sentencing hearing, he was working as a well site supervisor with a production testing company and had an annual income of $180,000.
[23] Mr. Colligan and Ms. Murray have two children, who are six and one. Mr. Colligan reports that Ms. Murray’s first pregnancy was a major factor in his efforts to become clean. He wants to make a better life for himself and his family. He is the sole income earner for his family and knows he has to keep his job to do so. He works in a drug-free environment and is subject to mandatory drug testing. After some initial set-backs, with the support of his family, NA, AA and some counselling funded by his employee assistance program, Mr. Colligan has been clean and sober for a number of years.
[24] Mr. Colligan’s self-reports of his changed lifestyle are supported by a number of letters of support from Ms. Murray, friends and co-workers. These letters paint a picture of a trustworthy, hardworking family man who can be counted on to help others in need.
[25] Given his history, it is hardly surprising that Mr. Colligan is disconnected from his Métis heritage. That was, in fact, the goal of Canada’s historic assimilationist policies. Looking forward, Mr. Colligan hopes to connect with his Métis heritage. He has applied for a Métis citizenship card. He hopes that understanding more about his heritage and culture will help him to build his self-esteem, re-instate his value system and continue to lead a pro-social life.
Gladue Principles
[38] Section 718.2(e) was introduced in 1996. Cases such as R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13make it clear that it is a remedial provision that was and is intended to deal with the crisis of over‑representation of Indigenous offenders in the Canadian criminal justice system. Sadly, the statistics are worse today than they were in 1996.
[39] The crisis described by the Supreme Court of Canada has been driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and bias experienced by Indigenous Canadians as a result of Canada's colonial history and destructive assimilationist policies, including a disproportionate number of child apprehensions.
[40] While these are broader societal issues, the Court in Gladue and Ipeelee has recognized that sentencing Indigenous offenders has a role to play in addressing their over-representation in the criminal justice system. Indigenous offenders are different from other offenders because, in the words of the Supreme Court of Canada, they "are victims of systemic and direct discrimination".
Sentencing Ranges
[45] At the time of his offences, s. 5(3) of the CDSA provided for a maximum sentence of life imprisonment for trafficking in a Schedule I substance such as cocaine. Today, s. 742.1(c) of the Code precludes resort to a CSO for drug trafficking offences, but that was not the case in 2011. All sentencing options, including a CSO, are statutorily available to me.
[46] The Crown has referred me to a number of sentencing authorities involving repeat drug trafficking offenders being sentenced for trafficking in cocaine by way of dial-a-dope operations. Collectively, R. v. Cook, 2001 BCCA 225, R. v. Tran, 2007 BCCA 405 and R. v. Charleyboy, 2010 BCCA 530 support the Crown’s position on sentence. Of note, in Tran, the Court of Appeal set aside a CSO and imposed jail of two years less a day and, in Charleyboy, the Court of Appeal upheld an effective two-year sentence imposed on an Indigenous offender who had been using cocaine at the time of his offences.
[47] Of course, sentencing ranges guide but do not bind sentencing judges: R. v. Nasogaluak, 2010 SCC 6; R. v. Lacasse, 2015 SCC 64; R. v. Friesen, 2020 SCC 9; R. v. Williams, 2019 BCCA 295.
[52] My consideration of Mr. Colligan’s submission that he receive a CSO of two years less one day must start with R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61.
[53] Proulx is the leading case on CSOs. In the context of this case, the following principles from Proulx are germane:
1. CSOs were introduced to address the problem of over-incarceration in Canada by reducing reliance on incarceration as a sanction and increasing the use of restorative justice principles;
2. CSOs must be distinguished from probation. While probation is primarily a rehabilitative tool, CSOs have both punitive and rehabilitative aspects;
3. Generally, CSOs should include punitive terms that restrict an offender’s liberty, such as house arrest;
4. Unless the Code excludes a CSO as a sentencing option, there should be no presumptions for or against the use of a CSO in relation to any specific offence;
5. A sentencing judge is not required to first impose a prison term of fixed duration and then consider if it can be served in the community. Rather, the sentencing judge should reject a penitentiary term and probation measures as inappropriate and then consider whether the remaining option of imprisonment of less than two years could be appropriately served in the community;
6. A CSO need not be of the same duration as the sentence of incarceration that would otherwise have been imposed. All that is required is that the CSO is a fit sentence;
7. The requirement that the sentencing judge be satisfied that the safety of the community would not be endangered by the offender serving their sentence in the community is a condition precedent to the imposition of a CSO;
8. In making this threshold determination, the sentencing judge should consider the risk posed by the specific offender and not the broader risk of whether a CSO would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law;
9. A CSO can provide significant denunciation and deterrence. Generally, the more serious the offence, the longer and more onerous the CSO should be;
10. In some cases the need for denunciation or deterrence may be so pressing that incarceration will be necessary;
11. Generally, a CSO will be better than incarceration at achieving restorative objectives, such as rehabilitation, reparations and promoting a sense of responsibility in offenders;
12. Where a combination of both punitive and restorative objectives may be achieved, a CSO will likely be more appropriate than incarceration; and
13. A CSO may be imposed even though there are aggravating circumstances that increase the need for denunciation and deterrence.
[55] In Charlie [2008 BCCA 44], the Court of Appeal upheld an 18-month CSO imposed on an Indigenous offender who was convicted of trafficking cocaine by way of a dial-a-dope operation at a time when he was already serving a CSO in relation to a prior dial-a-dope conviction. The offender had a troubled background, but had made significant progress since his arrest and had become a contributing member of his community. Despite the insidious nature of dial-a-dope operations and the general practice of not offering a repeat offender a second CSO, the sentencing judge had concluded that imprisonment would be counter-productive to society. Essentially, the sentencing judge had given the offender a second chance because his prospects of rehabilitation were so great. In the circumstances, the Court held that the sentencing judge appropriately gave primacy to the offender’s rehabilitation.
Aggravating and Mitigating Factors
[58] First of all, Mr. Colligan has a significant prior record, including convictions for possession for the purpose of trafficking. To make matters worse, Mr. Colligan committed the offences at issue shortly after completing his 14-month custodial sentence for his prior trafficking convictions.
[60] Finally, I must of course take into account that Mr. Colligan evaded justice for almost six years.
[61] There are also a number of mitigating factors. Though Mr. Colligan was on the lam for a considerable length of time, he entered guilty pleas very promptly after his arrest in 2018. He has acknowledged how harmful his conduct was and is sincerely remorseful. Most importantly, despite facing many hurdles and barriers, Mr. Colligan has completely turned his life around. He is now a loving husband, excellent father, good friend and productive employee.
Sentence
[64] In determining a fit sentence, I must take into account that Mr. Colligan has committed very serious offences. He trafficked a highly addictive substance in a manner that made that substance readily available throughout the community, was difficult for the police to detect and wreaked havoc on many individuals, families and the community as a whole. I must also take into account that Mr. Colligan evaded justice for almost six years.
[65] On the other hand, Canada’s assimilation policies have had a profoundly negative effect on Mr. Colligan and his family. As a result, Mr. Colligan developed a drug addiction that led directly to his past criminal lifestyle. In these circumstances, I consider Mr. Colligan to have a reduced level of moral blameworthiness. Further, I must recognize that Mr. Colligan has overcome many hurdles and barriers to completely turn his life around and is now taking responsibility for his actions.
[67] On the threshold question of whether Mr. Colligan serving his sentence in the community would endanger the community, I have no hesitation in concluding that it would not. Mr. Colligan has left his negative peer group behind. He no longer uses substances. He has supportive family, friends and co-workers. He attends NA, AA and counselling. At the date of the sentencing hearing, he had steady employment in a high-paying job. He has clearly left his drug addicted criminal lifestyle behind.
[68] The more difficult question is whether a CSO would be consistent with the fundamental purpose and principles of sentencing. After carefully considering all of the circumstances, I have concluded that the answer is yes.
[69] In my respectful view, a highly restrictive CSO of two years less one day will adequately address denunciation and deterrence, particularly in view of Mr. Colligan’s reduced level of moral blameworthiness. A term of imprisonment, even if served in the community, can be seen as a step up from Mr. Colligan’s previous 14month sentence for trafficking. Notably, that sentence was imposed when Mr. Colligan was a drug addict who posed a significant risk to the community and without the court being made aware of Mr. Colligan’s Métis heritage.
[70] Further, the CSO I will be imposing will not “reward” Mr. Colligan for absconding. Had Mr. Colligan presented himself to the court as fully reformed in 2013, I would have considered the circumstances so exceptional that I would have sentenced Mr. Colligan to a shorter and less onerous CSO, followed by probation. The reason for the length and onerous nature of the CSO I will be imposing is specifically to reflect the fact that Mr. Colligan evaded justice for so long.
[71] Finally, and most importantly, if s. 718(2)(e) and the calls to action voiced by the Supreme Court of Canada in Gladue and Ipeelee are to have any meaning, a CSO must be imposed in this case. Similar to Charlie, where a CSO would typically not have been available, Mr. Colligan’s progress and future prospects are so good that it would be counter-productive to society to incarcerate him in a correctional facility.
[72] While Mr. Colligan must be punished for his offences and not rewarded for absconding, he is in the process of breaking the cycle of intergenerational trauma and dysfunction that has so negatively affected so many Indigenous families, including his own. Sending Mr. Colligan to jail now would leave his children without their father for a significant period of time and leave them vulnerable to poverty and dislocation. Like Mr. Colligan, his children may suffer attachment injuries, such as feelings of abandonment, insecurity, low self-esteem, anxiety and depression. This type of outcome would clearly increase the chances of Mr. Colligan’s children following his previous footsteps into a life of dysfunction, addiction and perhaps even criminal activity.
[74] Mr. Colligan, you must comply with a CSO for a term of two years less one day. The conditions are: ...
