Counsel:

¶ 1      McNEELY J. (orally):— This is an application by the accused, and he seeks to have a finding that the Charter rights of the accused have been breached by reason of an unreasonable search and also by reason of the privacy rights of the accused being breached in the course of that search. He, accordingly, seeks to have the Court exclude from evidence at the trial the material found in the course of the search which, as admitted for the purposes of this application anyway, was cocaine.

¶ 2      Now, there is no question the search was without a warrant.  Also, it is equally beyond question that a search incident to a lawful arrest is an exception to the general rule of warrantless searches are prima facie illegal.

¶ 3      In R. v. Stillman, which is a very recent case by the Supreme Court of Canada, March, 1997, Mr. Justice Cory, speaking for the Court, had this to say:

So that is what we are dealing with now.

¶ 4      There is no question that the accused was arrested.  Was it a lawful arrest?  A police officer is entitled to arrest someone whom he believes on reasonable and probable grounds has committed an offence?  In this case the police had an operation underway involving a number of officers in an area which according to the police witness, Theriault, and very much confirmed by the witness called by the accused who was the manager of the submarine shop, was an area and, in fact, a place where drug trafficking was known to have taken place.

¶ 5      Now, the police set up an operation that consisted in Officer Theriault being located across the street in an unoccupied building where he had a view into the submarine shop which was some 70 feet away, and he was armed with binoculars which he didn't have occasion to use, but more importantly, with a telescope which he did use.  His evidence was that from that vantage point he had a clear view into the submarine shop and that, with the aid of the telescope, he was able to see clearly what went on there.

¶ 6      He described two transactions in which people went into the submarine shop and in which the accused person, whom he identified as the person who was arrested and also as the person whom he had under observation with the telescope, transferred substances from the palm of his hand to others on two occasions, and he says that he saw the substance taken with the thumb and forefinger out of the hand and given to someone else.  He says that it was white.  He says that, having regard to the place where it occurred, the manner in which he observed it and the colour of the substance, he believed that it was cocaine.  He believed it was a drug.

¶ 7      He did not do anything with respect to the first incident, but on the occasion of the second incident (he probably did on the first, as well, but, in particular, the second) he transmitted to the other members of the team, the take-down members of the team, the descriptions of the persons involved, and of great importance to this particular case, a description of the accused person in this case and a description which fits the accused.

¶ 8      The officer believed that the accused was trafficking in drugs as a result of what he saw, and as a result of the fact that within a short space of time he had seen this type of transaction take place on two occasions, there is no question in my mind that the officer, Theriault, believed that a trafficking of drugs had occurred, and there is equally no question in my mind that he had reasonable and probable grounds for that belief.

¶ 9      The nature of activity, the small quantity apparently involved, the manner in which it was handled, the colour of the substance, the locale in which it occurred, all of these would provide an objective basis on which the officer could found a belief, which he did form, on those reasonable and probable grounds that trafficking had occurred.  His evidence is that he had the accused under observation with his telescope throughout and up until the point when the arresting officers actually arrested the accused.

¶ 10      When the take-down occurred, officer Theriault had previously furnished descriptions and, in particular, a description of the accused to the other officers and told the other officers involved, most particularly Officer Ryan, but the others, as well, that he was to be arrested for trafficking in narcotics.  The other officer, Officer Ryan, with his partner, entered the shop, the submarine shop, and they arrested the accused.

¶ 11      I am satisfied that, not only Officer Theriault had the reasonable and probable grounds for believing that the accused had committed an offence, but so did officer Ryan, although, the fact that Theriault had those grounds and directed the other members of his team to effect the arrest would have been sufficient by itself.  The arrest, therefore, in my view, clearly, was a lawful arrest.  The first requirement is satisfied.

¶ 12      The second requirement set out in R. v. Stillman is that the search must have been conducted as an incident to the lawful arrest. well, the arrest was on for trafficking in a narcotic, and it would be reasonable for the officers to believe, as they did, that narcotic substances might be found on persons who were trafficking in narcotics, and the first officer, Ryan, accordingly, in the restaurant patted down the accused, looked in his pockets and apparently did not find anything.

¶ 13      He then obtained a key and brought the accused, and he went with his partner and opened the door leading to a basement and brought the accused there and continued the search.  He pulled the accused's pants and pulled his underwear so that he looked down, and the evidence was that he saw some plastic between the buttocks of the accused and that he also saw a white substance within the plastic wrap.

¶ 14      His partner, in his evidence, says that while it was in the buttocks, he observed the plastic, or the wrapping, but didn't observe the white substance.

¶ 15      Now, having regard to the fact that the arrest was for trafficking in a narcotic, it is perfectly clear that that search was incident to the arrest.  It would be necessary for the officer involved, reasonable, that the accused be patted down to make sure that safety concerns were satisfied, but it would also be reasonable that a search be made to see if there was evidence which should be preserved for use at the trial.  When the object was seen between the buttocks, the evidence of both officers was that the accused was flexing the muscles of his buttocks in such a way as to prevent, make it difficult, for the officers to retrieve what he had between his buttocks and what they believed would be a narcotic.

¶ 16      On the landing at the top of a flight of stairs there was some physical interaction between the accused and the officers, particularly officer Ryan, who testified that the accused hip checked him at one point and that he almost went down the stairs, and he says that he thereupon pushed the accused against the wall.  The accused went into the wall face-first.

¶ 17      After this, according to the officer, there was concern that the place at the landing at the top of the stairs was not a safe locale in which to continue to search, and the officer said he also did not wish to go down in the basement because that would have involved the officer and the accused going down a flight of steps, which would, of course, increase the risks incident to the situation.

¶ 18      So at that point they brought the accused into the store.  They had the patrons (there were only a couple, anyway) but they were excluded from the store.  The premises were secured, and then in a back area of the store and with booths between them and Dundas Street (or the front window), they had the accused bend over a table and at that point tried to retrieve the package.  The accused was still using his muscles in such a way as to hold onto it.

¶ 19      Now, the evidence was that the accused defecated at that point, and there is no suggestion that was anything other than an accident, I don't think, but that after this happened the officer was able to retrieve the package.

¶ 20      So having regard to the offence for which the arrest was made and the need to preserve evidence, I am satisfied that it is clear that the second requirement, I am satisfied that this was a search incident to a lawful arrest.

¶ 21      The third requirement that applies to all searches, of course, is that they must be reasonable because it is the unreasonable search that attracts a Charter violation.

¶ 22      In considering whether the search was reasonable, all of the circumstances have to be taken into account.  There is, first of all, the fact that it was an arrest for trafficking drugs.  There is the fact that it was important to obtain and preserve evidence, if there was any, find out if there were drugs on the person or on the body of the accused and to preserve it for purposes of trial, and this is what the officers were doing.

¶ 23      Now, had the accused relaxed and not attempted to retain the substance, of course, the search would have taken a much shorter period of time and would have involved a much less intrusive kind of interaction with the police, but it is clear, not only from the evidence of the police officers, but also from the evidence of the witness called by the accused who says that he heard voices saying, "Let go.  Let go," which would be consistent, certainly, with the officers, evidence that they were telling the accused, loosen up, so that they could get that material.  So the resistance or noncooperation of the accused is something also to be taken into account in judging the reasonableness of the search.

¶ 24      Thirdly, there is the fact that the search took place in the restaurant.  The officers, however, conducted it at the back of the store.  The evidence of the manager of the store was that passersby outside would not be able to see what happened, but that if someone took up a post at a particular spot on Dundas Street and looked through the window at that spot, they could see one leg of the accused.  The evidence is that they could not see anything else of the accused.

¶ 25      The evidence of the witness called by the accused also was to the effect that there were partitions on the booths that were, he indicated, a height he indicated up to his neck as he sat in the witness box.

¶ 26      I am satisfied that having regard to the nature of the offences on which the accused was arrested and the need to preserve evidence and the non-cooperation of the accused, that the officers acted in a reasonable manner.  Accordingly, I am satisfied that the search in question was a search incident to a lawful arrest and carried out in a reasonable manner, and, therefore, was not an unreasonable search or an undue invasion of the privacy interests of the accused, and for that reason the results of the search will be admitted in evidence.

¶ 27      In view of the finding I have made, it will not be necessary to call on the counsel to argue whether, even if I had arrived at another conclusion, the results of the search should not be admitted into evidence, being as they are, consisting as they are, in substance existing independently of any action of the accused and not something coerced from him. So we don't have to hear that.

QL Update:  990611
qp/s/ala