[September 18, 2023] Charter s.9/8: Arrest and Search - Scene Pictures of Pipe "ready to smoke", Charter s.10(b): Delay on Scene for Over 1hr [Justice Baird]
AUTHOR’S NOTE: While the law is pretty clear that arrests based on "residue" in drug pipes are unlawful as they only have evidence of the past existence of drugs, arrests for pipes that are "ready to smoke" with substances in them are plausibly based on reasonable grounds. This case shows how police can fail to meet reasonable grounds even in these circumstances. Here, images from the scene did not support the officer's claim of visible "chunks" in plain view within the pipe. For that reason the arrest and search were unlawful. The Charter s.10(b) violation occurred because the officer remained on scene with the accused detained in the police car when other officers were available causing a delay in placing the accused on the phone with counsel.
 THE COURT: The viability of this prosecution against Michael William Gallant on four charges of possession of Schedule I narcotics -- carfentanil, fentanyl, methamphetamine and cocaine -- turns upon the lawfulness of his arrest without warrant in the early morning hours of December 10, 2022. Section 495 of the Criminal Code permits a peace officer to undertake such an arrest where he believes on reasonable grounds that the subject has committed or is about to commit an indictable offence.
 On voir dire proceedings declared to address Mr. Gallant's application to exclude evidence under s. 24(2) of the Charter, he seeks orders to the effect that:
1) his arrest was based on inadequate grounds and therefore constituted a violation of his right guaranteed by s. 9 of the Charter not to be arbitrarily detained or imprisoned;
2) the search incidental to his arrest of the vehicle he was operating at the time constituted a violation of his right guaranteed by s. 8 of the Charter to be secure against unreasonable search or seizure;
4) his right guaranteed by s. 10 of the Charter to retain and instruct counsel without delay was denied without justification by officers failing to grant him access to counsel for over an hour after he had asked for it; and
 Constable Reilly-Perry was the Crown's principal witness on these voir dire issues. On December 10, 2020, he had been a police officer for a mere 10 months. He conceded that he was inexperienced and unsure of himself at the time. He was patrolling in a squad car by himself in central Nanaimo. He spotted a vehicle moving in the parking lot of Brooks Landing Mall off the Island Highway. He ran the plate and learned that the registered owner of the vehicle, a Pontiac minivan, was a person called Stephanie Jack, who was listed on the system as a prohibited driver.
 The minivan entered onto the Island Highway and headed north. By now it was around 1:30 a.m. Constable Reilly-Perry decided to pull this vehicle over to check the driver for licence and insurance. It was dark out but there was reasonably good ambient street lighting. When he arrived at the minivan's driver's side window, Constable Reilly-Perry saw immediately that it was Mr. Gallant behind the wheel, not Stephanie Jack. He told me that he recognised Mr. Gallant from a previous vehicle stop. He also knew that Mr. Gallant had recently been arrested for possession of narcotics for the purpose of trafficking and that his house had been searched with a warrant as a result.
 Constable Reilly-Perry asked Mr. Gallant to produce his driver's licence, which he did without any objection. I find, in fact, that Mr. Gallant was cooperative and docile throughout his dealings with the police on the evening in question. In the midst of this, Constable Reilly-Perry told me that he shone his flashlight into the rear of the minivan, which he said was crammed with all kinds of duffel bags, totes and personal property. He saw a blue reusable shopping bag containing, amongst other things, a wodge of paper towel with a glass pipe sticking out of it. He said that he could see “white chunks” in this pipe. He said that he thought these “chunks” were some kind of narcotic, and that the pipe was “ready to smoke”.
 It was on this basis that Constable Reilly-Perry arrested Mr. Gallant without warrant for possession of a narcotic. As Mr. Justice Jamal noted in R. v. Beaver, 2022 SCC 54 at para. 72, the essential legal principles governing a warrantless arrest are settled. They include the following (citations omitted):
1) A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint.
2) In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence. Subjective grounds for arrest are often established through the police officer's testimony. This requires the trial judge to evaluate the officer's credibility.
3) The arresting officer's subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.
4) Evidence based on the arresting officer's training and experience should not be uncritically accepted, but neither should it be approached with "undue scepticism". Although the analysis is conducted from the perspective of a reasonable person "standing in the shoes of the officer", deference is not necessarily owed to their view of the circumstances because of their training or experience. The arresting officer's grounds for arrest must be more than a "hunch or intuition".
5) In evaluating the objective grounds to arrest, courts must recognise that, "[o]ften, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Determining whether sufficient grounds exist to justify an exercise of police powers calls for the application of '[c]ommon sense, flexibility, and practical everyday experience’.”
6) "Reasonable and probable grounds" is a higher standard than "reasonable suspicion". Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime. Police do not require a prima facie case for conviction before making an arrest or even evidence establishing that the offence was committed on a balance of probabilities.
7) The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest.
 In the present case, I lack confidence in Constable Reilly-Perry's stated grounds for arresting Mr. Gallant. Based on the photographs that Constable Reilly- Perry took and submitted in evidence, I am prepared to accept that he may have seen a glass pipe sticking out of the paper towels in the reusable bag, and it may be that there appeared to be smudges of a filmy residue in it indicating that someone might previously have used it for smoking drugs. But it is not illegal to possess such a glass pipe, and residue, even if it comes from drugs, cannot ground an arrest for narcotics possession. It gives rise to no reasonable belief that an indictable offence is being committed or is about to be committed.
 I do not accept Constable Reilly-Perry's evidence that he saw “chunks” in this pipe, or that it contained narcotics “ready to smoke” . In my view, his own scene photographs fail to confirm any such thing. Now, it turned out, upon closer examination at the police station, that the pipe contained a small shard of what was later analysed as methamphetamine, but I am strongly inclined to think that this would only have been visible after the pipe was pulled out of the paper towel, and this latter discovery cannot retrospectively justify Mr. Gallant's arrest. I do not believe that Constable Reilly-Perry had subjectively reasonable grounds to arrest, and I am not satisfied that the grounds that he expressed in any event are reliable or objectively reasonable.
 I have reason to be suspicious about Constable Reilly-Perry's evidence…
 Months later, as I understand it, in response to a query from Mr. Gallant's counsel asking why this “strip search” had been conducted, Sergeant Mayes replied in a continuation report that it was because, while he was booking-in Mr. Gallant, Mr. Gallant had displayed angry and volatile behaviour by taking coins from his pocket and “slamming” them on the booking-in room counter. Sergeant Mayes gave sworn evidence to this effect at Mr. Gallant's preliminary inquiry, and Constable Reilly-Perry confirmed it in his own testimony on the same proceeding. Constable Reilly-Perry testified, in other words, to having witnessed this “slamming down” of coins.
 After the preliminary inquiry, as I understand it, Mr. Gallant's counsel sought disclosure of video footage taken by security cameras in the booking-in area. It turned out that Mr. Gallant's entire booking-in procedure was recorded by these cameras, and the footage was played for me in open court during the voir dire. In this footage there is absolutely no indication that Mr. Gallant ever became angry or upset, and I reject the notion that any such thing happened. To the contrary, it appeared to me that Mr. Gallant was compliant and as meek as a lamb throughout. He was complying with all instructions given to him by the police and he caused no sort of fuss at any time.
 It is obvious from looking at the footage and observing the movements of the various individuals that Mr. Gallant was ordered to turn out his pockets and he did this, including taking some change out of his front trouser pocket. He did not slam the coins on the counter. What I saw, instead, what anyone would have seen, is that he spread the coins gently onto the booking-in counter as if he were going to count them, or in the manner that some people use at a shop counter when they want to pay for something. He was not acting out. He was behaving himself. He was doing what he was told.
 Curiously, even after they were shown this footage in court, both Constable Reilly-Perry and Sergeant Mayes continued to insist that he had “slammed” the coins down. This to me is obvious nonsense…
 I am not prepared to accept that there were lawful grounds for Mr. Gallant’s arrest. I do not accept that the grounds articulated by Constable Reilly-Perry are reliable or accurate, or that considered objectively they amount to reasonable grounds for a warrantless arrest. The arrest was arbitrary and constituted a violation of Mr. Gallant’s s. 9 Charter rights.
 It follows that the search of the van that he was operating leading to the discovery of narcotic drugs in a duffel bag on the back seat was also unlawful. The only legal justification given for this search was as an incident to a lawful arrest, and I have decided that the arrest was not lawful. Accordingly, this search violated Mr. Gallant's s. 8 right to be free from unreasonable search or seizure.
 I said in my remarks the other day that in my judgment a s. 10(b) Charter violation occurred here. Mr. Gallant was arrested at 1:41 a.m. He was read his Charter rights. He said immediately that he wished to speak to a lawyer whom he identified by name. No efforts, or insufficient efforts, were made to connect him with counsel at the scene, even though Constable Reilly-Perry had a cellphone with internet access which he could have used to get a contact number for Mr. Gallant's lawyer.
 Constable Nowicki was also on scene. Constable Reilly-Perry asked him to take care of granting Mr. Gallant access to counsel. Constable Nowicki said that Mr. Gallant told him that he would call his lawyer from the detachment, but Constable Nowicki departed the scene leaving Mr. Gallant locked up in Constable Reilly-Perry's squad car. The Crown concedes that Constable Nowicki could have taken Mr. Gallant back to the detachment right away. There was another constable who attended the scene, Constable Mohsen, who could have done the same thing. Instead, Mr. Gallant as left to wait for over an hour before any attempt was made to connect him with counsel.
 In my view, there was no reasonable justification for this delay. The law has been clear now for decades that s. 10(b) requires immediate access to counsel when a detainee asks for it. No plausible explanation was given for ignoring this clear constitutional requirement in this case. I am satisfied that Mr. Gallant has established on the balance of probabilities that his s. 10(b) Charter rights were infringed or denied.
 I hereby declare and order that:
1) Mr. Gallant's arrest without warrant at approximately 1:41 a.m. on December 10, 2020 was not based on reasonable grounds and was therefore unlawful;
2) The search of the motor vehicle that Mr. Gallant was operating at the time, which was conducted on the sole basis that he had been properly arrested, was similarly unlawful and unreasonable;
3) Mr. Gallant’s right to retain and instruct counsel without delay was infringed or denied when he was kept without justification for over an hour without being granted access to counsel after he had clearly asserted his right to do so;
5) Mr. Gallant’s s. 8 rights were infringed or denied by Constable Reilly-Perry's failure to file a s. 490 extension application for detention of things seized after the 90-day period set out in s. 490(2) had expired. He also did not specifically list the data within Mr. Gallant's cellphone on the initial Form 5.2; and