ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN vs. B.H.

The Honourable Mr. Justice J. G. Lebel

THURSDAY JANUARY 10, 2013

REASONS FOR JUDGEMENT

 

Lebel, J.

(Orally):

B. H. was charged that on the seventh of November, 2011, at the municipality of West Nipissing, did unlawfully possess a substance included in schedule one to wit oxycodone contrary to Section 4(1} of the Controlled Drugs and Substances Act.

Prior to the commencement of the trial counsel, for the accused, gave notice to the Crown that he would be bringing a Charter application to exclude evidence of the basis of breaches of the accused’s Charter rights pursuant to Sections eight, nine, ten of the Charter.

Following his plea of not guilty, Crown and defence agreed to proceed by way of a blended trial, so I have heard all of the evidence in this case. It appears to be conceded that in the event the Charter motion fails, that the Crown will have proven its case beyond a reasonable doubt.

I will deal with the evidence on the Charter issue at this time, and that evidence was provided by Constable Paquette of the West Nipissing Police Service. I just want to say in the outset that Constable Paquette gave his evidence in a very candid and straightforward manner.

On the date in question Constable Paquette was involved in a case regarding a suicidal person. While on patrol he received information regarding a possible home invasion. The information that he received was that a fellow by the name Brian Lariviere and others entered a residence, one person was armed with a bat and a knife and they had left the residence on foot. He returned to headquarters to get a photograph of Lariviere.

He received some information from another officer that the accused’s name came up when that officer was at the residence, and that he was driving a black civic. Constable Paquette then received information that Lariviere was at a Tim Horton’s here in Sturgeon, so he went there, and Mr. Lariviere was in the black civic. The accused was the driver of that motor vehicle.

Constable Paquette asked the accused to exit the vehicle and told him he was under investigative detention and cuffed him. He never articulated the reason why he cuffed him. Whether that was excessive or not remains to be seen. His reason though was to determine whether Mr. H. was either a party to the offence, or a witness to the offence, or whether he was involved at all.

He decided to search the accused for officer safety prior to placing him in the cruiser. The search went far beyond a pat down search. After feeling a small lump in a pocket he decided to search the inside the pockets of Mr. H’s clothing, and he found a small zip lock baggie and a one ounce foil pack, those items were produced as exhibits I believe, at least I saw them during the course of the trial, and the foil pack was, I’m doing this with my fingers, it was about that big, it was about an inch. Those items contained controlled substances which were subsequently analyzed to be Oxycodone pills.

The officer testified the reason for the search was to determine if the accused was carrying a bat, a knife, or drugs. He testified to that effect in cross-examination.

The officer further testified that his practice is no matter what the size of the object during a pat down search, that he does not take chances and will look inside a suspect’s pockets at all times.

The facts in the case are virtually identical to those in the Supreme Court of Canada decision of

R. v. Mann, [2004], 3 SCR 49. In Mann the Supreme Court stated – and I quote from the summary at page three: “Although there is no general power of detention for investigative purposes police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention, is reasonably necessary on an objective view of the circumstances”.

In my view Constable Paquette had those reasonable grounds to detain Mr. H for investigative purposes, why do I say that, because he was in the motor vehicle that was being driven by him with the main suspect as a passenger. This observation was made shortly after the event that was being investigated i.e. the home invasion. Further, Mr. H’s name had come up in the context of the home invasion investigation. And finally, all the officer wanted to do was to determine whether the accused was involved, or a witness, or not involved at all.

Given that a knife was involved in the home invasion investigation, it was appropriate for him to engage in a protective pat down search. This type of search however should not be confused with a search incidental to arrest, they are not the same. In any event Constable Paquette went far beyond the scope of a protective pat down search. He testified that he was not only searching for weapons, but also for drugs. He had no authority to search for drugs at this stage of the investigation. Finally he testified that his practice is not to take chances and he always looks inside a detainee’s pockets.

I am satisfied that on a balance of probabilities that the seizure in this instance contravenes section 8 of the Charter. In my view the conduct of the officer in seizing the drugs was not accomplished in good faith. One of the purposes of the pat down search was to locate drugs, he had no authority to do so. In this day and age the officer should have known better. Secondly, the impact of the search on the accused Charter protected rights was significantly compromised.

Finally, I am of the view that it’s admission would bring the administration of justice into disrepute. Given my earlier comments the evidence is excluded.

I find the accused not guilty, but the drugs will be forfeited to the Crown for destruction.