IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Gibson, 2013 NSPC 56
Date: 20130715
Docket: 2422219/21
Registry: Amherst
Between: Her Majesty the Queen
v.
Teilor Gibson
Judge: The Honourable Judge Paul B. Scovil
Heard: June 6, 2013 in Amherst, Nova Scotia
Written decision: July 15, 2013
Charge: That on or about the 3rd day of February, 2012 at or near Amherst, did unlawfully possess a substance included in Schedule II to wit Cannabis (marihuana) contrary to Section 4(1) of the Controlled Drugs and Substances Act;
AND FURTHERMORE on or about the 3rd day of February, 2012 at or near Amherst, did possess a
substance included in Schedule II to wit Cannabis for
the purpose of trafficking contrary to Section 5(2) of
the Controlled Drugs and Substances Act.
Counsel: Douglas Shatford Q.C., for the Crown
Jim O’Neil, for the Defence
By the Court:
[1] In Casablanca the famous line “round up the ususal suspects” was uttered by Captain Renault of the Gendarmeries when he advised another officer that Major Strasser had been shot. This after just seeing Rick shoot the Major. Here the police, in conducting surveillance of a residence, used similar logic when the lead investigator determined that while they were engaged in surveillance of one Mr. Vance, they would arrest anyone coming out of the residence where Mr. Vance was located. Subsequent to that, this Accused exited the home, was arrested and found with cannabis marijuana. For the reasons that follow, I have found that Ms. Gibson’s rights under the Canadian Charter of Rights and Freedoms were violated and further, I am excluding that evidence seized from her.
FACTS
[2] The Accused, Teilor Gibson, has applied under Section 9 of the Charter arguing that her right against arbitrary detention or imprisonment has been violated. A voir dire was held in relation to Ms. Gibson’s application. She is a Co-accused with Mr. Vance.
[3] The Crown’s main witness was Constable Christopher Jobe. The officer is a member of the Cumberland County Street Crime Enforcement Unit operating as a joint force made up of both R.C.M.P officers and Amherst Police Department officers.
[4] On the 3rd of February, 2012 the Unit had under surveillance the residence of Jesse Vance and Teilor Gibson. Constable Jobe testified that “our unit had received information from qualified sources that Mr. Vance was involved in drug trafficking” and that “he was a target of ours to watch”.
[5] At 15:46 the Unit observed a male, later identified as a Mr. Gail, arrive at the Vance residence and enter the same. The visit was of short duration and the individual left at 15:49. Constable Jobe indicated that this was consistent with drug trafficking. Shortly following this individual’s exit from the Vance residence, he was arrested and found to have nine methamphetamine pills upon his person. Mr. Gail immediately denied having purchased the pills from Mr. Vance.
[6] Following on the heels of the aforementioned Gail leaving the Vance residence, Mr. Vance, Ms. Gibson and another male left the residence. Constable Jobe testified that there was a determination prior to that point to arrest any individual who might leave the Vance residence. Constable Jobe advised his grounds to make such an arrest were based on the following facts: (1) surveillance had been conducted that day; (2) surveillance had been conducted on other days; and (3) the pills that had been found on the individual that had just shortly left Mr. Vance’s residence. All three individuals entered into a taxi upon exiting Mr. Vance’s residence.
[7] Constable Jobe was able to catch up with the taxi and conducted a high-risk takedown of the individuals contained therein. Constable Jobe testified that the takedown was done in such a manner due to his Unit having information that Mr. Vance had obtained a firearm or was seeking a firearm. All three individuals were ordered to the ground and arrested. Constable Jobe secured Mr. Vance and transported him to the police station in Constable Jobe’s police vehicle while other officers dealt with Ms. Gibson.
[8] The only other witness from the Crown was Corporal Baldwin. Corporal Baldwin was the supervisor of the integrated task force that day. Corporal Baldwin indicated that they had information that Mr. Vance was selling drugs. He further testified that they had observed a number of short duration visits that day to the Vance residence. Corporal Baldwin was also the arresting officer of the individual who had nine methamphetamine pills on his person after leaving Mr. Vance’s residence. The individual who had the methamphetamine tablets upon arrest quickly indicated that he had not purchased them from Mr. Vance. Corporal Baldwin testified that at that point he determined everyone in the taxi would be arrested and he went on to testify that “they were going to be arrested because they were in the house”. He then said the arrest was to take place to “keep the scene secure”. The evidence before this Court was not clear whether Corporal Baldwin had advised Constable Jobe that the individual with the methamphetamine pills had stated that he had not bought them from Mr. Vance. As a consequence, I cannot determine if that fact was part of Constable Jobe’s decision to arrest Ms. Gibson.
[9] Corporal Baldwin had arrived on scene and assisted in the arrest of Mr. Vance and Ms. Gibson. Upon taking Ms. Gibson into custody and arresting her, he noted that her purse was open and he could see that it contained a large bag of marijuana. The marijuana was contained in a plastic clear bag which he indicated he could see through. Further, the purse was open.
[10] As indicated earlier, Ms. Gibson seeks to have excluded the marijuana found by Corporal Baldwin arguing that her Charter rights under Sections 8 and 9 were violated. Section 8 of the Charter states:
8. Everyone has the right to be secure against unreasonable search.
Section 9 of the Charter states:
9. Everyone has a right not to be arbitrarily detained or imprisoned.
The questions remain: (1) was Ms. Gibson arbitrarily detained? and (2) as a result, was a search of her purse unreasonable?
LAW
[11] Police powers of arrest in circumstances where they do not have a warrant are clearly set out in Section 495.(1) of the Criminal Code. This Section sets out the following:
495. (1) a peace officer may arrest without warrant
(a) a person who has committed an indictable offense or who, on reasonable grounds, he believes has committed or is about to commit an indictable offense;
(b) a person whom he finds committing a criminal offense;
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
[12] There is a large amount of jurisprudence concerning grounds for officers to make arrests under Section 495 of the Code. In R. v. Storrey [1990] 1 S.C.R. 241 the Supreme Court of Canada set out the requirements that must be met in order to arrest an individual without a warrant for an indictable offence. Cory J. stated at pp. 250-251:
“... It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. See R. v. Brown (1987), 33 C.C.C. (3d) 54 (N.S.C.A.), at p.66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p.228.
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.”
[13] In evaluating whether a warrantless search is justified (i.e. there were reasonable grounds) the Court must ask: (1) whether there is compelling information predicting the commission of a criminal offence; (2) whether the information, if it arises from a source outside the police, originates from a credible source; and (3) whether the information was corroborated by police investigation prior to making the decision to conduct the search. These factors do not form three separate tests, but guide the analysis of whether in the totality of circumstances the reasonableness of the warrantless search is established. (See R. v. Hillgardener (2010), 252 C. C. C. (3d) 486 (ACA)).
[14] The determination as to whether the arresting facts such as arise before this Court is similar to and informed by the law relating to the issuance of search warrants. The standard of reasonable and probable grounds certainly is not relaxed at trial compared to when an officer must apply to justices for search warrants.
[15] Here the arresting officer testified that his unit had information from “qualified sources” that Jessie Vance was trafficking in drugs. The officer did not elaborate on what a “qualified” source was. Informations sworn by officers to obtain search warrants inevitably contain information as to the background and accuracy of sources. Are they of past proven reliability? Are they paid or unpaid? Have they provided past information that has led to arrests or convictions? In other words, how does “qualified” equate with “credible”? While this pertains to Mr. Vance in particular, the officer had laid no foundation as to grounds to proposition that they should arrest anyone exiting the building.
[16] In relation to corroborative efforts by the arresting police, there appears to have been some coming and going from the Vance residence with people making short stays that were described as consistent with drug trafficking. As well, there was the arrest of the specific individual carrying a small quantity of methamphetamine pills. That person denied purchasing them from Mr. Vance. There was no evidence before this Court as to whether that denial was communicated by Corporal Baldwin to the arresting Officer Jobe. On the witness stand, this statement was said to be conclusive of drug trafficking by Mr. Vance as his customer would not implicate him. Certainly, had the individual found with methamphetamine pills had not denied buying the same from Mr. Vance, that too would be held out as proof of trafficking by Mr. Vance. Given the above, the finding of methamphetamine pills on the person of the individual leaving the Vance residence should be viewed either neutrally or of very little weight to corroborate the trafficking activity of Mr. Vance. It certainly does not implicate anyone who happened to be in the Vance residence.
[17] In reviewing those facts available to the arresting officer for making a determination of reasonable grounds to arrest either Mr. Vance or one of those persons located within the home of Mr. Vance, I find that they were not compelling, nor credible and that there was a lack of corroborating evidence that would give Constable Jobe the reasonable grounds required to make an arrest under Section 495 of the Code. Therefore, the arrest of Ms. Gibson, Mr. Vance and their compatriot was a warrantless illegal arrest. Warrantless searches are presumptively unreasonable (See Hunter v. Southam Inc. (1984), 12 C.C.C. (3d) 97 (S.C.C.))
[18] While not argued before this Court, the question exists as to whether there was a valid investigative detention of the Accused, Ms. Gibson, incidental to Mr. Vance’s arrest. In R. V. Mann [2004] S.C.J. No. 49 (S.C.C.) the Supreme Court clarified the law in this matter. Justice Iacobucci stated at paragraph 45:
“To summarize, as discussed above, police officers may detain individual for investigative purposes if there are reasonable grounds to suspect and all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-him down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention of protective search powers are to be distinguished from arrest and incidental power search on arrest does not arise in this case.”
[19] Again in this matter, the officer had no articulable reason to detain any of these individuals and therefore the arrest and subsequent search of Ms. Gibson was arbitrary and unreasonable. The search therefore infringed the Accused’s rights under Sections 8 and 9 of the Charter of Rights and Freedoms.
[20] Having found that the Accused’s rights have been infringed under Sections 8 and 9 of the Charter, it then falls to the Court to determine whether the evidence obtained in violation of Ms. Gibson’s rights should be excluded. In that regards we look to Section 24(2) of the Charter. Section 24(2) states as follows:
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 mission of it in the proceedings would bring the administration of justice into disrepute.
[21] The regime for making a determination as to whether evidence should be excluded under Section 24(2) is set out by the Supreme Court of Canada in R. V. Grant [2009] 2 S. C. R. 353. At paragraph 68 of the decision in Grant the Supreme Court in discussing an overview of Section 24(2) stated as follows:
“the phrase “bring the administration of justice into disrepute” must be understood in the long term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in the acquittal may provoke immediate criticism. But S. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long-term, will be adversely affected by the admission of evidence. Inquiry is objective. Asked whether a reasonable person, informed of our relevant circumstances in the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.”
[22] The Court went on to set out three aspects for trial judges to consider in determining whether evidence should be excluded under the Charter. These are: (1) the seriousness of the Charter infringing conduct of the state; (2) the impact of the breach on the Charter protected interest of the Accused; and (3) society’s interest in the adjudication of the case on it’s merits. Grant made it clear that the Court is to balance on applications, those assessments made under each of these lines of inquiry to determine whether considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
SERIOUSNESS OF THE STATE CONDUCT
[23] The main concern in relation to the first stage of the Grant inquiry is to preserve public confidence in the rule of law and it’s processes. Nothing would undermine the rule of law more than the Court being seen to effectively condone egregious police misconduct leading to violation of Charter rights. Consequently, the Court must consider the seriousness of the violation in terms of the gravity of the offending conduct by the state authorities, whom the rule of law requires to uphold those rights guaranteed by the Charter.
[24] Such police misconduct in relation to Charter rights varies in seriousness from mere inadvertence and minor breaches to the willful and reckless actions by police. Obviously, police misconduct affects public confidence in the rule of law. Such confidence exists on a sliding scale relevant to the type of misconduct found by the Courts. Whereas mere inadvertence with good faith on behalf of policing agencies lessens the need for the Court to disassociate itself such police conduct. Conduct which shows either merits of Charter standards or flagrant disregard for the Charter is not to be rewarded nor encouraged.
IMPACT ON CHARTER-PROTECTED INTERESTS OF THE ACCUSED
[25] The second branch of inquiry under Grant involves an evaluation of the extent to which the breach actually undermines the interest protected by the right itself. The Court must look at those interests engaged by the right and examine the degree in which the violation impacts upon them. Obviously the more serious incursion into the right, the greater the risk that admission of evidence will bring the administration of justice into disrepute.
SOCIETIES INTEREST IN AN ADJUDICATION ON THE MERITS
[26] There can be no doubt that the interest of the public in the proper adjudication of criminal cases on their merits and in the Courts engaging in a truth finding exercise, is a very relevant consideration when engaged in a Section 24(2) analysis. The fact is that evidence that may assist in discovering the truth must be weighed against factors that would favour exclusion. It is essential and necessary to balance the interests of truth and the integrity of the justice system. The reliability of the evidence and it’s importance to the Crown’s case are relevant factors in relation to that inquiry. As well, the majority in Grant allowed that the seriousness of an offence may be considered when adjudicating on it’s merits. Thus, a minor offence with a serious Charter breach would mitigate against the admission of evidence.
ANALYSIS
[27] In relation to the seriousness of the state conduct in the matter before this Court, the concept of police having the ability to simply round up people coming out of the building and arrest them on the basis of some suspicion relating to one of the residence of that building, would no doubt be viewed by the public as a serious breach of state authority in a free and Democratic society. If in this case the police had further background evidence which would support reasonable and probable grounds to arrest Mr. Vance, they were not expressed before this Court. The actions of the police in this matter based on the evidence before me certainly should be termed as reckless and without due regard to those Charter rights of the individuals who were exiting the building on the day in question. The actions of the police here would mitigate against the admission into evidence the marijuana found on the person of Ms. Gibson.
[28] Ms. Gibson like any other citizen of Canada had a right on the day in question to be free to go about her business without intrusion by state authorities unless those authorities had reasonable and probable grounds to interfere with her liberty and security of her person. While the marijuana found by the arresting officer in this matter would have been in his plain view, given that his evidence was the purse was open, it must be remembered that Ms. Gibson was not even the subject of interest of the police leading up to when she exited the building on the day in question. Simply arresting someone as they exit the building that is of interest to the police is a serious incursion into that person’s Charter rights.
[29] Finally, we have to consider adjudication of this matter on it’s merits. It is clear that without the real evidence of the marijuana found on the person of Ms. Gibson, the Crown would be left without any case at all. The real evidence of marijuana would obviously exist without the breaches of Ms. Gibson’s Charter rights. On the other hand, the allegations of simple possession of marijuana would unlikely be viewed by a majority of the public as a major offence. The Crown in this voir dire led no evidence to support the allegation of possession for the purpose of trafficking. Given the lower level of the offence and the seriousness of the breaches, the circumstances would mitigate against the entering into evidence the marijuana found.
[30] Having considered all of the above and balancing the three prongs found under the Grant test for the admission of evidence in the face of Charter breaches, I find that to admit the marijuana seized from Ms. Gibson in these circumstances would in fact call the administration of justice into disrepute. As a consequence, I’m not allowing the evidence submitted by the Crown to be admitted into evidence.
JPC