2004 BCCA 484 R. v. Greaves

AN ORDER HAS BEEN MADE IN THIS CASE PURSUANT TO SS. 486(1) AND 539(1) OF THE CRIMINAL CODE PROHIBITING PUBLICATION OF ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF A VICTIM OR WITNESS

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Mackenzie
	The Honourable Mr. Justice Lowry

J.T. Campbell and E. Gottardi	Counsel for the Appellant
W.J.S. Bell	Counsel for the Respondent (Crown)
Place and Date of Hearing:	Vancouver, British Columbia
June 10, 2004
Written Submissions Received:	August 18 and September 16, 2004
Place and Date of Judgment:	Vancouver, British Columbia
September 23, 2004

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Mackenzie

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1] This appeal raises a question about the extent to which police can, when investigating a crime, detain and search a person for the sole purpose of determining his identity without breaching his rights guaranteed under sections 8 and 9 of the Canadian Charter of Rights and Freedoms: the right to be secure against unreasonable search and seizure and the right not to be arbitrarily detained.

[2] Since the hearing of this appeal, the Supreme Court of Canada has clarified much of the law relating to investigative detention and searches incidental thereto with its decision in R. v. Mann, 2004 SCC 52, rev'g (2002) 169 C.C.C. (3d) 272, 2002 MBCA 121. The parties made further written submissions with respect to the applicability of that case.

Introduction

[3] The appellant was tried before Madam Justice Dillon and convicted of various offences relating to two separate incidents of confinement, threatening, and robbery which occurred about one month apart in May and June 2000. The victims, two middle-aged men referred to as G.V. and W.D. who the appellant pretended to befriend, were tied up, threatened, and robbed in their homes. Both testified that the appellant was the person who robbed them. The appellant contends that their evidence, adduced to prove that fact, should have been ruled inadmissible because police obtained it through an arbitrary detention and unreasonable search while investigating an unrelated matter.

[4] G.V. reported the robbery he suffered to the police immediately. He described the appellant and provided a complete statement. W.D. did not report what had happened to him.

[5] Ten days after the robbery of W.D., a police officer stopped the appellant and two others in the course of responding to the report of an assault. He sought only to determine their identity. The detention of the appellant became protracted because he lied to the officer about who he was and it became clear to the officer that the appellant was obstructing his investigation. In the course of attempting to determine the appellant's true identity, the officer took from him a cigarette case containing pieces of identification. That led to him also taking a cellular telephone. The officer accessed the address book or memory data base of the telephone and called a number listed for "Dad" in the expectation that the appellant's father could identify him. W.D. answered the call. The appellant had stolen the telephone from him. The appellant was ultimately charged with the offences relating to the robbery of W.D. as well as the robbery of G.V.

[6] At his trial, the appellant applied for an order excluding any evidence obtained as a result of his being detained and searched. While the record is not clear as to what specific evidence the appellant would have said was to be excluded, it can in the main be said to have been the testimony of G.V. and W.D., and any ancillary evidence, relating to his identity as the person who robbed them. Following a voir dire, the trial judge ruled that neither the detention nor the search of the property on the appellant's person that ultimately led to the telephone call to W.D. breached the appellant's s. 8 or s. 9 Charter rights. She also held that, if there had been a Charter violation, the evidence should not be excluded under s. 24(2) of the Charter because its admission would not bring the administration of justice into disrepute.

[7] On this appeal, the appellant maintains that the trial judge erred in determining that the appellant's s. 8 and s. 9 rights were not breached. While it was not raised at trial, the appellant now seeks leave to argue as well that his s. 10(b) right to be informed on detention that he could consult with counsel without delay was also breached. The appellant then contends that the trial judge erred in holding that the evidence should, in any event, not be excluded under s. 24(2).

The Facts

[8] Constable Ray Winters was on general uniform police duty in a marked car in the early evening when he received a radio report of an assault said to have been in progress at a nearby liquor store. From the report, he understood only that the assault was perpetrated on a black victim by a black male and several white males who had fled eastbound. The dispatch record indicated one black male and five white males, the black male being described as 18 years of age, six feet tall, skinny build, short black hair, light t-shirt and black pants.

[9] The officer was at the liquor store in five minutes. He saw no one and proceeded east. He travelled about two blocks and saw one black male, being the appellant, and two white males coming out of a park walking in a north-west direction. The appearance of the appellant did not closely fit the description of the black male described on the dispatch record. However, Cst. Winters considered the grouping of a black male with two white males unique for that part of the city. The appellant and his companions were drinking from brown, beer-bottle-like, long-necked bottles that they discarded when they saw him. Cst. Winters manoeuvred his car to approach them and made eye contact with them, but they jay-walked across the street in an apparent effort to avoid him. He turned around, stopped his vehicle in the centre lane of the street, walked after them, and, when he was about 10 feet away, called to them to stop.

[10] Cst. Winters believed he had reason going beyond mere suspicion to stop the three males. He believed they were involved in the assault.

[11] Speaking in a normal tone of voice, he told them he was investigating an assault and that they matched the general description he had been given of those involved. He noticed nothing that would suggest that they had been fleeing and all were sober and coherent. He asked them to produce identification. His purpose was only to determine who they were so that later they could be photographed for the purpose of a photo line-up in the event such was warranted for the investigation. His intention was to permit them to go on their way as soon as their identities were established.

[12] One of the white males gave him a piece of identification. The other had none but gave him a name and date of birth.

[13] The appellant produced a piece of identification in the name of Bradley Vrekko from a silver cigarette case he held open in his hand. He made no attempt to conceal the contents of the case and it was apparent that it included other pieces of identification. The piece of identification given contained no birth date or photograph. The appellant said he was born in August and then immediately changed that to January 1973. Cst. Winters became suspicious that he was not being told the truth.

[14] He confirmed the identity of the two white males by a hand-held radio through police computer information networks. He attempted to confirm the appellant's identity in the same way, but the reply to his inquiry was negative. About five minutes had elapsed from the time the group of three had been stopped.

[15] Cst. Winters then told the appellant that he felt he had been given a fictitious name or date of birth and asked if the information was correct. The appellant said it was. He then asked the appellant if he had ever had a driver's licence in this or any other province. The appellant said he had not and had never owned a vehicle or had a reason to drive one.

[16] Cst. Winters then leaned over and took the cigarette case from the appellant's hand to ascertain his identity. Cst. Winters proceeded to sort through the contents of the case. They included a social security card, a service station credit card, and a motorcycle safety certificate, all in the name of Bradley Vrekko, as well as various notes of telephone numbers and the like. There was no identification with a birth date or a photograph.

[17] About six minutes from the time the group of three was stopped, a second officer, Cst. Jeffrey Law, arrived and Cst. Winters told him what had occurred to that point. Cst. Law confirmed the identity of the two white males on his radio through the police information networks, but the only reply he received for a Bradley Vrekko was that there was a driver's licence in the name of a white male by that name. Cst. Law reported to Cst. Winters accordingly.

[18] The two white males that had been stopped with the appellant were then told they were free to go. Cst. Winters asked the appellant why he had a service station card and a motorcycle safety certificate if he had never had a driver's licence. The appellant turned and took a couple of steps as if to run away. Cst. Winters grabbed him from behind and handcuffed him. The officer did this because he was not comfortable with who the appellant said he was, the officer thought he was lying, and the appellant had started to run. Cst. Winters then made a cursory search for security purposes and, according to him, "for further evidence". What he meant by further evidence is not clear. The search produced a pocket knife and two prescription pills but strangely missed a pellet gun in the waistband of the appellant's pants.

[19] Cst. Winters then gave the appellant an obstruction warning. He told him that he was investigating an assault. He said that he believed the appellant was lying to him and in so doing was obstructing his investigation. Cst. Winters told the appellant that if he continued to do so he could be charged with obstructing a police officer.

[20] The appellant then said his name was Michael Loyd, which he spelled. He gave his date of birth as July 16, 1965 which appeared to Cst. Winters to be more consistent with his apparent age than 1973. Cst. Law attempted to confirm the identity through the police computer networks to no avail.

[21] Cst. Winters then gave the appellant a second obstruction warning. He explained that his purpose was simply to identify him for a photo line-up in relation to the assault and asked if there was anyone who could be called to confirm he was who he then claimed to be. The appellant told the officer to call his friend, Lance, and gave him a telephone number. The officer noticed there was a cellular telephone in the appellant's shirt pocket. He reached over, took the telephone, and dialled the number. He received an out-of-service response. He informed the appellant and asked who else he could call. While he was doing that he scrolled through the address book and noticed the listing for "Dad". Cst. Winters reasoned that the appellant's father would be able to identify his son and describe him to the point where he could be satisfied who he was. He dialled the number. He identified himself to the person who answered and asked if he could describe his son. The description given was that of a white male. Cst. Winters then inquired who he was speaking with and learned that he was speaking with W.D. and that the telephone, which belonged to his son, had been stolen from him. Arrangements were made to meet with W.D.

[22] Forty minutes had passed since the appellant and the two white males he was with had been stopped. He was arrested for being in possession of stolen property and given a Charter warning. He was searched and the pellet gun was found.

[23] W.D. was subsequently able to identify the appellant in a photo line-up. G.V., being the victim of a similar robbery committed by a person matching the appellant's description, was shown the same photo line-up and identified the appellant as the person who robbed him.

[24] The true identity of the appellant was determined from fingerprints. The police had held the appellant's prints on file since 1990. They were able to establish who he was by matching the prints taken after he was arrested to those on file and he was then charged with the offences with which he has been convicted under his correct name.

[25] It is significant that fingerprints were lifted from G.V.'s apartment when he reported the robbery. They were submitted to an automated fingerprinting system but it failed to match them to the appellant's prints that were on file. The matter was apparently not further pursued for sixteen months until the police did match all three sets of prints in October 2001: those taken in 1990, those taken when the appellant was arrested, and those lifted from G.V.'s apartment.

The Ruling on Admissibility

[26] The trial judge concluded that, in the factual circumstances, Cst. Winters had "articulable cause" as recognized in the governing authorities to detain the appellant. In other words, he reasonably suspected that the accused was involved in the assault and that he was justified in detaining him to further the investigation.

[27] She then considered whether the inspection of the contents of the cigarette case and the address book of the cellular telephone was justified as an attempt by Cst. Winters to establish the identity of the appellant. She saw the question as being whether the search was reasonably necessary in the circumstances, expressing the view that the power of the police to search the appellant was, on the authorities, not limited to their security but reasonably related in scope to the circumstances that justified the interference with the appellant in the first place. She then concluded that the search was necessary in the pursuit of the appellant's identity which was the purpose for which he was detained. She did not see the search as intrusive, commenting that both the cigarette case and the telephone were in the open or visible to Cst. Winters.

[28] The trial judge did not need to consider whether the evidence should be excluded because its admission would bring the administration of justice into disrepute. However, she said that, if there had been a violation of s. 8, she would have admitted the evidence in any event. (She did not consider a violation of s. 9.) She viewed the evidence obtained from the search as non-conscriptive such that it would not affect the fairness of the trial. The violation was, in her view, not serious and she noted that the appellant at no time objected to the police taking the cigarette case or the telephone. She pointed out that the appellant had lied about his identity rendering further effort to establish who he was necessary in the circumstances. If the search violated s. 8 of the Charter, the trial judge saw it as neither wilful nor flagrant nor racially motivated. It was undertaken on the street as a matter of some urgency. The trial judge concluded that the charges were serious and that the admission of the evidence would not reflect adversely on the administration of justice.

The Issues

[29] In my view the issues that arise are as follow:

1. Did the detention of the appellant breach his s. 9 Charter right not to be arbitrarily detained: Were there reasonable grounds to detain him and was the extent of the detention justified in all the circumstances?

2. Did the taking of the cigarette case and the inspection of its contents, the pat-down search, or the taking of the cellular telephone and the scrolling through its address book, breach the appellant's s. 8 Charter right not to be subjected to unreasonable search or seizure?

3. Should the appellant be granted leave to argue that his s. 10(b) right to counsel was breached and, if so, was there a Charter breach in that regard that bears on the admissibility of the evidence?

4. Should the evidence, specifically the testimony of the victims that identified the appellant as the person who robbed them, have been excluded under s. 24(2) because its admission would bring the administration of justice into disrepute?

1. Investigative Detention and Section 9 of the Charter

[30] Section 9 of the Charter provides:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[31] In Mann, the Supreme Court of Canada recognized that the police have a common law power to briefly detain individuals for investigative purposes. In that case, two police officers investigating a break and enter observed the appellant near the crime scene and noticed that he matched the general description of the suspect. The police stopped the appellant and asked him to identify himself, which he did. They conducted a pat-down search ostensibly to check for weapons. One officer detected a soft object in the appellant's pocket. He reached into that pocket and found it was a small plastic baggie of marihuana. He then found more baggies of marihuana in another pocket.

[32] The accused was charged with possession for the purpose of trafficking. At trial the accused was acquitted but his acquittal was reversed on appeal. The Supreme Court of Canada restored the acquittal, holding that, while the appellant was not arbitrarily detained, he was subjected to an unreasonable search and seizure contrary to s. 8 of the Charter and that the trial judge properly concluded the evidence obtained as a result of that search should be excluded under s. 24(2).

[33] The Supreme Court held in Mann that a common law investigative detention power does exist. This flows from the ancillary powers doctrine and the duties of police to preserve the peace, prevent crime and protect life and property: see R. v. Waterfield, [1963] 3 All E.R. 659 at 661 (C.C.A.); and R. v. Dedman, [1985] 2 S.C.R. 2 at 32-34, 20 C.C.C. (3d) 97 at 119-20. The power is not, however, a general power to detain whenever such a detention will assist the police in the execution of their duties: Mann, ¶ 17. In order that an investigative detention not be arbitrary and thereby offend s. 9 of the Charter, it must fulfill two conditions. First, the police must have "reasonable grounds to detain" in the sense that they reasonably suspect that the individual detained was involved in a crime under investigation. There must be both a subjective and objective basis for that belief. Second, the detention must be "reasonably necessary" in all the circumstances, including the nature of the liberty interfered with and the public purpose the interference serves.

[34] Iacobucci J., writing for the majority in Mann, explained:

[34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

[35] It is clear from this passage that the Supreme Court of Canada largely adopted the approach to investigative detention set out in R. v. Simpson (1993), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 at 495-503 (C.A.) [cited to C.C.C.], a decision which this Court has followed on several occasions: see, e.g. R. v. Ferris (1998), 50 B.C.L.R. (3d) 109, 126 C.C.C. (3d) 298 ¶ 37-39 (C.A.), leave to appeal refused [1998] S.C.C.A. No. 424 (Q.L.); and R. v. Lal (1998), 113 B.C.A.C. 47, 130 C.C.C. (3d) 413 ¶ 18-20, leave to appeal refused (1999), 61 C.R.R. (2d) 376.

[36] With respect to the first criterion, although Iacobucci J. expressed a preference for the term "reasonable grounds to detain", this essentially refers to the same "articulable cause" standard which Canadian appellate courts had adopted from the American jurisprudence relating to stop-and-frisk procedures. Iacobucci J., at para. 27, quoted in part from the explanation of "articulable cause" in Simpson, where Doherty J.A. said, at 501-02:

These cases require a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power (R. v. Storrey (1990), 53 C.C.C. (3d) 316 at p. 324, [1990] 1 S.C.R. 241, 75 C.R. (3d) 1), and serves to avoid indiscriminate and discriminatory exercises of the police power. A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation.

[emphasis added]

[37] With respect to the second question, Mann establishes that reasonable grounds to detain alone are insufficient to justify an investigative detention. The detention must also be reasonably necessary in all the circumstances. Iacobucci J. indicated that, generally, this means an investigative detention will be "of brief duration" (¶ 22) and cannot become a "de facto arrest" (¶ 35). In Simpson, at 503, Doherty J.A. provided examples of situations in which an investigative detention would and would not be justified:

... [A] reasonably based suspicion that a person committed some property-related offence at a distant point in the past, while an articulable cause, would not, standing alone, justify the detention of that person on a public street to question him or her about that offence. On the other hand, a reasonable suspicion that a person had just committed a violent crime and was in flight from the scene of that crime could well justify some detention of that individual in an effort to quickly confirm or refute that suspicion. Similarly, the existence of an articulable cause that justified a brief detention, perhaps to ask the person detained for identification, would not necessarily justify a more intrusive detention complete with physical restraint and a more extensive interrogation.

A. Reasonable grounds to detain the appellant

[38] The appellant submits that Cst. Winters lacked an "articulable cause" to conduct the initial investigative detention. He says there were insufficient objectively discernible facts to give rise to a reasonable suspicion that the appellant and the persons initially detained with him were involved in the assault at the liquor store. The appellant does not say that the trial judge erred in the test applied, but rather says she erred in its application to the facts of this case.

[39] The trial judge held that Cst. Winters did not initially have reasonable and probable grounds to arrest the appellant. She concluded, however, that the officer did have "articulable cause" (as it was then described) to detain the appellant and those who were with him briefly for the purposes of ascertaining their identities. She reviewed the factors which provided the subjective and objective basis for finding an articulable cause:

[28] In this case, Constable Winters confirmed that he thought that he had reason to detain the accused because he was investigating an assault in progress reported from a 911 eyewitness caller. The accused was found in an area within two blocks of the assault and within five minutes of the report of an assault in progress. He fit the general description of the assailants in that he was a black male in the company of white males. The officer thought that this particular grouping was unique. The apparent presence of beer bottles gave the officer reason to suspect that the males had been at the liquor store. The suspects seemed to avoid the officer by jay-walking across the street when he u-turned his vehicle to approach them. In these circumstances, I conclude that the officer subjectively had reason to suspect that the accused was involved in the assault and so justifies detention for further investigation.

[29] The detention was also justifiable from an objective point of view. The initial 911 caller was located in front of the liquor store when she reported the assault in progress. She gave a detailed description of the black male who started the fight and of the victim. She was able to describe the flight path of the victim and the last sighting of the suspects behind the liquor store. A black male with white male suspects in the area of the liquor store within five minutes of this report was sufficient to attract the officer's attention. It is not dissimilar to the West Vancouver officer in R. v. Yamanaka, supra at paras. 4 and 15 who, by considering that the suspects did not 'belong' in the area along with other factors, justified detention.

[30] Constable Winters had articulable cause to detain the accused for purposes of the investigation of an assault. He was justified in detaining Mr. Greaves....

[40] The appellant takes issue with the conclusion that these facts add up to articulable cause, or what is now referred to as reasonable grounds to detain. He suggests that other factors militate against the conclusion that Cst. Winters had reasonable grounds to detain, including the fact that the group detained was walking towards, as opposed to walking away from, the liquor store and differed in number from the broadcast description. The appellant says further that the height, weight, age and clothing of the persons detained did not closely match the broadcast description. Emphasis is placed on the lack of objective data to support Cst. Winters' subjective belief that the combination of a black man with several white men is "unique" in the area.

[41] In my view, the appellant has established no sound basis for interfering with the trial judge's conclusion that Cst. Winters had reasonable grounds to detain for the initial investigative detention. The precise and detailed facts which the appellant suggests the police must possess in order to form reasonable grounds to detain would elevate that standard much closer to the higher standard of reasonable grounds to arrest. It is clear that the standard of reasonable grounds to detain is less demanding than that of reasonable grounds to arrest: Mann, ¶ 27; Lal, ¶ 30. Articulable cause has been said to exist, even where the person detained does not match the description of a suspect with the type of precision the appellant here suggests is required, but the circumstances as a whole still give rise to a reasonable suspicion: see, e.g. R. v. Willis (2003), 174 C.C.C. (3d) 406, 2003 MBCA 54 ¶ 23-28.

[42] The primary purpose of the requirement that police have reasonable grounds to detain is to ensure that they do not have carte blanche to interfere with individual liberty and do not detain persons based on mere "hunches". It prevents the discriminatory or capricious exercise of police power: Mann, ¶ 35; Simpson, at 501-02; Lal, ¶ 18; Willis, ¶ 24. It is clear that Cst. Winters was acting on more than an intuitive hunch. His suspicion that the persons detained may have been involved in the assault was supported by objective facts and was reasonable in the circumstances. Although there may not be objective data to support his belief that the combination of one black and two white males was "unique" in this area, the testimony of both he and Cst. Law was consistent with the fact that this was the only group of males –- whether black, white, or some combination of the two –- observed in the area at the time. After hearing the testimony of Cst. Winters, the trial judge was satisfied that his conduct was not racially motivated. In those circumstances, the police had reasonable grounds to detain for the initial detention of the appellant and his companions.

B. The extent of the detention

[43] The appellant submits that even if the police initially had reasonable grounds to detain the appellant and his companions, the manner and duration of detention were not justified in the totality of the circumstances. More specifically, it is said that even if the police initially could have stopped the appellant briefly and asked him to identify himself for the purposes of later obtaining a photograph for a possible photo line-up, a detention of 40 minutes in length involving the use of handcuffs was a serious infringement of the appellant's liberty which was unreasonable in the circumstances.

[44] The trial judge concluded her s. 9 analysis with the finding that the police had articulable cause to detain the appellant, and did not expressly address whether the extent of the detention was reasonable in the circumstances, as I consider is required under Mann. However, I am satisfied that in the circumstances of the case, the duration and scope of the detention was reasonably necessary and did not violate the appellant's s. 9 right.

[45] The initial detention of the appellant and his companions to ascertain their identity for the purposes of investigating the assault was justified. Cst. Winters sought only to identify these persons to facilitate later investigation of the assault. He intended to allow the detainees to proceed on their way after determining their identity, and indeed the first two suspects were permitted to go on their way after their identities were confirmed. The reasonable grounds to detain based on the belief that these persons might have been involved in the assault justified the sort of brief and minimally intrusive detention which Cst. Winters initially contemplated: see Simpson, at 503.

[46] The real issue is whether at some point during the appellant's 40 minute detention it ceased to be reasonable and became arbitrary. That issue requires some consideration of the general power of police to ask questions of citizens and the legal obligations on citizens to respond to such questioning.

[47] In R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), the issue before the Court was whether police who observed a person behave in a suspicious manner, and then stopped to ask for identification, had "detained" that person in a way which required the police to inform him of his s. 10(b) right to retain and instruct counsel. In the course of deciding that asking such questions did not give rise to a requirement to advise the person of his s. 10(b) right, Krever J.A., writing for the court, said at 271:

The law has long recognized that although there is no legal duty there is a moral or social duty on the part of every citizen to answer questions put to him or her by the police and, in that way to assist the police: see, for example, Rice v. Connolly, [1966] 2 All E.R. 649 at p. 652, per Lord Parker C.J. Implicit in that moral or social duty is the right of a police officer to ask questions even, in my opinion, when he or she has no belief that an offence has been committed. To be asked questions, in these circumstances, cannot be said to be a deprivation of liberty or security.

[48] Accordingly, although the police may have the right to ask questions, and indeed may be under a duty to do so where they reasonably suspect that the person questioned was involved in a crime, citizens are under no legal obligation to respond to those questions in the absence of a statutory duty to do so: R. v. Moore, [1979] 1 S.C.R. 195, 43 C.C.C. (2d) 83; or, as McFarlane J.A. stated in R. v. Bonnycastle, [1969] 4 C.C.C. 198 at 201 (B.C.C.A.):

The duty of a peace officer to make enquiries must not be confused with the right of a person to refuse to answer questions in circumstances where the law does not require him to answer.

[49] Generally, a person cannot then be convicted of obstructing a police officer in the execution of duty for simply refusing to say or establish who he or she is when asked to do so: Rice v. Connolly, [1966] 2 All E.R. 649 (Q.B.); and R. v. Guthrie (1982), 21 Alta. L.R. (2d) 1, 69 C.C.C. (2d) 216 (C.A.). The law in this respect is no different after Mann. Iacobucci J. noted that "[a]bsent a law to the contrary, individuals are free to do as they please" (¶ 15). He further stated that recognition of a police power to conduct investigative detentions "does not impose an obligation on the detained individual to answer questions posed by the police" (¶ 45).

[50] Given the absence of any legal obligation that required the appellant to identify himself to the police, it is difficult to see how the extended detention could be considered reasonably necessary had the appellant simply refused to reply to Cst. Winters' request for identification. If those were the circumstances, the extended detention, aimed at compelling information from the appellant which he was under no legal obligation to provide, probably could not be justified. It would have represented a significant restriction of liberty in a situation in which the appellant's behaviour was perfectly consistent with his legal obligations.

[51] Those are not, however, the facts of this case. The appellant did not simply refuse to provide his identity to the police; he provided two false identities. The authorities recognize a distinction between the absence of a legal obligation to respond to police questioning and the existence of a legal obligation to refrain from providing the police with false information. As Parker C.J. explained in Rice v. Connolly, at 652:

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest. Counsel for the respondent has pointed out that it is undoubtedly an obstruction, and has been so held, for a person questioned by the police to tell a "cock-and-bull" story, to put the police off by giving them false information, and I think he would say: well, what is the real distinction, it is very little away from giving false information to giving no information at all; if that does in fact make it more difficult for the police to carry out their duties then there is a wilful obstruction. In my judgment there is all the difference in the world between deliberately telling a false story, something which on no view a citizen has a right to do, and preserving silence or refusing to answer, something which he has every right to do.

[emphasis added]

[52] Given this distinction, I am satisfied that the extended detention of the appellant was reasonable and justified in the circumstances. Even if Cst. Winters' reasonable grounds to detain the appellant in connection with the assault dissipated when he had the opportunity to confirm that the appellant did not closely match the broadcast description of the assault suspect, the appellant's conduct immediately gave rise to a reasonable suspicion that he was obstructing Cst. Winters in the execution of his duty to investigate the assault. In my view, the existence of these further reasonable grounds to detain justified a more prolonged and intrusive detention than would have been the case had the appellant simply refused to answer the officer's questions.

[53] There were clearly reasonable grounds to detain (which as discussed below became reasonable and probable grounds to arrest) the appellant for obstructing Cst. Winters in the execution of his duty. The fact that Cst. Winters warned the appellant about obstruction indicates that he subjectively believed that the appellant's conduct amounted to obstruction. Several facts make that subjective belief objectively reasonable. The appellant stammered when asked his birth date and initially provided a birth date inconsistent with his apparent age. The appellant first provided a name which could not be confirmed on the police computer system and then refused to provide confirmatory identification for that name despite his apparent possession of multiple pieces of identification. As Cst. Winters challenged him and pressed for further information to confirm his identity, the appellant appeared to attempt to run away. He then provided a second and entirely different name and birth date which made it clear beyond question that he had lied to Cst. Winters and obstructed him in his investigation.

[54] In light of those facts, Cst. Winters was justified in the continued questioning of the appellant to ascertain his identity and in using physical restraint to prevent the appellant from leaving. It was reasonably necessary in the circumstances, both with respect to the assault and a possible obstruction charge, to prolong the questioning of the appellant for a further 30 minutes in an attempt to discover his true identity.

[55] I conclude, then, that the police did have reasonable grounds to detain the appellant and that the extent of the detention was reasonable in the circumstances. There was no s. 9 violation.

2. Incidental Search and Section 8 of the Charter

[56] Section 8 of the Charter provides:

8. Everyone has the right to be secure against unreasonable search or seizure.

[57] The appellant contends that even if his detention did not violate s. 9, the searches incident to that detention were unreasonable and therefore violated s. 8. The appellant says that, as a matter of law, a search incidental to investigative detention is limited in scope and does not allow the police to search someone for the purpose of determining his or her identity.

[58] The trial judge held that a search incidental to investigative detention will not violate s. 8 as long as it is "reasonably necessary in the circumstances". She set out her view of the law as follows:

[31] ... The court in R. v. Ferris, supra at paras. 53-55 concluded that, in proper circumstances, a warrantless and non-consensual search may be lawful for purposes of completing the on-site investigation (R. v. Yamanaka, supra at para. 12). The question is whether the search is reasonably necessary in the circumstances (R. v. Ferris, supra at para. 68). The power is not limited to search for self-protection. It may also be reasonably related in scope to the circumstances that justified the interference in the first place (R. v. Ferris, supra at para. 55).

[32] The issue of whether the search was justified to verify identification did not arise in R. v. Ferris, supra. However, it is not in issue that such a search may be justified depending on the circumstances. It is the seriousness of the circumstances that governs whether to search and the scope of the search (R. v. Lal, supra at para. 39).

[59] The trial judge was satisfied that the police searches of the appellant's cigarette case, cellular telephone memory data base, and his person once he was handcuffed met the "reasonably necessary" standard:

[34] The search undertaken here was reasonably necessary in the pursuit of the identification of the assailant in the assault. Identification was necessary to assist the victim in identification of the assailant at a later date, and to give the officer more opportunity to assess the suspects that he had stopped to determine whether they were involved in the assault. Whether the identification would really have been useful at a later date is not important. The officer did not know the status of the rest of the investigation. It was reasonable police conduct to seek identification in the circumstances. The cigarette case was in the open and obviously contained more identification than Mr. Greaves initially offered. The search of the police data bank had not confirmed the identity of the suspect. The officer was justified to seek further identification through a search of the cigarette case. When this also proved fruitless and even more suspicion was raised, the officer was further justified in taking the cell phone that was obviously in the shirt pocket of the suspect and using it to further attempt identification of the suspect. The phone was visible. It was not unreasonable for the officer to first use the phone to contact the person named as an identifier and then to scroll down the data bank to find another source of identification.

[35] The search for the weapon made after the accused was handcuffed was also justified. The search was a 'pat-down' for safety after the accused had taken some steps that Constable Winters interpreted as an attempt to flee. The search that revealed the pellet gun in the waistband of the accused's pants is justified as a search incident upon arrest.

[36] The searches were lawful.

[60] The appellant's contention on the s. 8 issue turns on whether the trial judge stated the test too broadly in saying that a search incidental to investigative detention will be lawful when it is "reasonably necessary in the circumstances". The appellant says, in short, that if the reasonableness of a search depends on whether it is authorized by law, whether the law itself is reasonable, and whether the manner in which the search was carried out is reasonable (R. v. Collins, [1987] 1 S.C.R. 265 at 278), the searches in this case were unreasonable because the common law power to search incidental to investigative detention does not go as far as authorizing a search to obtain identification.

[61] The trial judge did not have the benefit of the Supreme Court's decision in Mann. It makes it clear that she cast the permissible scope of a search incidental to investigative detention too broadly. The decision buttresses the appellant's contention that the common law power to search incidental to investigative detention does not extend beyond the purposes of searching to ensure officer safety.

[62] Given the decision in Mann, it is unnecessary to review in detail the prior jurisprudence to determine whether the police power to search incidental to detention extended to permit searches for identification. It is enough to say that, although this Court and the appellate courts of other provinces recognized a police power to search incidental to detention, the precise scope of that power remained somewhat uncertain: see, e.g. R. v. Ferris; R. v. Lal; R. v. Yamanaka (1998), 128 C.C.C. (3d) 570, 111 B.C.A.C. 154; R. v. Johnson (2000), 138 B.C.A.C. 190, 2000 BCCA 204; R. v. Le (2001), 160 C.C.C. (3d) 146; R. v. V.(T.A.) (2001), 48 C.R. (5th) 366, 2001 ABCA 316; R. v. Power (2001), 48 C.R. (5th) 177, 2001 NFCA 50; R. v. Willis; R. v. Cooke (2002), 171 B.C.A.C. 177, 2002 BCCA 305; R. v. Hunt (2003), 186 B.C.A.C. 24, 2003 BCCA 434; and R. v. Lam (2003), 180 C.C.C. (3d) 279, 2003 BCCA 593.

[63] It is now clear that while the police do have a common law power to conduct a search incidental to investigative detention, such a search will not be "unreasonable" within the meaning of s. 8 only when it is reasonably necessary to ensure the safety of the investigating officer or others and is limited to a pat-down frisk. Iacobucci J. explained in Mann:

[40] The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances.... The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

[41] The determination as to when a protective search may be merited has been addressed in the United States through several decades of jurisprudence. In Terry [Terry v. Ohio, 392 U.S. 1 (1968)], at p. 27, the United States Supreme Court carefully circumscribed the search power, by holding that:

... there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

In exercising this authority, the officer must not be acting solely on a hunch, but rather is required to act on reasonable and specific inferences drawn from the known facts of the situation. The search must also be confined in scope to an intrusion reasonably designed to locate weapons (p.29).

. . .

[43] The importance of ensuring officer safety has been recognized in obiter by this Court in R. v. Mellenthin, [1992] 3 S.C.R. 615. Police officers face any number of risks everyday in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. As noted by L'Heureux-Dubé J., in Cloutier, supra, at p. 185, a frisk search is a "relatively non-intrusive procedure", the duration of which is "only a few seconds". Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objectively discernible facts to prevent "fishing expeditions" on the basis of irrelevant or discriminatory factors.

[44] A finding that a limited power of protective search exists at common law does not obviate the need to apply the Collins test for determining whether a warrantless search passes constitutional muster under s. 8 of the Charter. To recall, the search must be authorized by a reasonable law, and be carried out in a reasonable manner. The reasonableness of the search necessarily overlaps the second-prong of the Waterfield test, with the third factor under Collins. The officer must have reasonable grounds to search before the overall reasonableness of the search is considered on the totality of the circumstances.

[64] Deschamps J., writing in dissent in Mann, would have left open the possibility that searches incidental to investigative detention might not be unreasonable when conducted for purposes beyond ensuring officer safety, including preserving evidence, preventing escape and, arguably, obtaining identification: see ¶ 66-67. However, the majority's reasons foreclose such a possibility and searches for such broader purposes must now be treated as unreasonable. Thus, any search incidental to an investigative detention must be reasonably necessary to permit the detention to be safely conducted.

A. The searches and seizures made

[65] I turn to the searches and seizures that Cst. Winters conducted in this case.

i) The cigarette case

[66] The taking and inspecting of the appellant's cigarette case containing identification violated s. 8 of the Charter. Cst. Winters testified that the purpose of that search was "to further my investigation to find out the identity of this person". The inspection was not reasonably necessary to ensure officer safety and therefore falls outside the police power to search incidental to investigative detention.

[67] The Crown attempts to minimize the intrusive nature of this search. It says that the case was open in the appellant's hand in plain view and that the appellant did not protest when Cst. Winters leaned over and took it. At that point, however, it was only evident that the case contained pieces of identification. What that identification consisted of, and what else was in the case, was determined only when Cst. Winters inspected its contents. It was then that he found the service station credit card and the motorcycle safety certificate. The inspection was not one that can be justified on the basis that the information contained in the case was in plain view. Further, the appellant's failure to protest does not meet the high threshold required for consent to a search given that the appellant was not informed of his right to refuse to provide such items to the police: R. v. Mellenthin, [1992] 3 S.C.R. 615 at 624-25, 76 C.C.C. (3d) 481 at 487; R. v. Borden, [1994] 3 S.C.R. 145 at 162-65; Lam, ¶ 35.

[68] There is no question that when the cigarette case was taken from the appellant, it was "seized" by the police, and that in looking through its contents the police conducted a "search", as those terms are defined in R. v. Law, [2002] 1 S.C.R. 227, 160 C.C.C. (3d) 449 ¶ 15. Given that the seizure and the search were not conducted for the purpose of ensuring officer safety, they were made without lawful authority and violated s. 8 of the Charter.

(ii) The pat-down search

[69] In my view, the pat-down search of the appellant was largely consistent with the police power to search incidental to investigative detention. The main purpose of that search was to ensure officer safety and it was conducted largely in a manner consistent with that purpose. Such a search was reasonably necessary in this case, where Cst. Winters reasonably suspected that the appellant had been involved in a violent assault.

[70] I do have some concern that the purpose for Cst. Winters' pat-down search of the appellant was not limited to ensuring officer safety. He testified that the reason he searched the appellant immediately after handcuffing him was "[j]ust for safety -- officer safety reasons and also to protect the black male from doing harm to himself, or anyone else, for further evidence". Additionally, the search produced two prescription-drug pills from the appellant's pocket.

[71] In Mann, the Court held that the officer's search became unreasonable when it moved beyond an external pat-down to include reaching into the appellant's pockets without a reasonable basis for doing so connected to the need to assure officer safety: see ¶ 49. Accordingly, to the extent which Cst. Winters' searched for "further evidence", and removed contents from the appellant's pocket which could not reasonably have posed any threat to officer safety, the pat-down search exceeded the scope of a proper search incident to investigative detention and violated s. 8.

iii) The cellular telephone

[72] Taking the cellular telephone from the appellant's pocket and inspecting the address book violated s. 8 of the Charter for the same reasons.

[73] The Crown argues that what Cst. Winters did – both in taking the telephone and in accessing the address book in an effort to verify the second name the appellant gave him – was not unreasonable in the circumstances. It may have been reasonable in the sense of being part of a logical progression of Cst. Winter's attempts to determine the appellant's identity, but that does not mean that it was not an unreasonable search and seizure given its intrusive nature in light of the expectation of privacy associated with a personal address book.

[74] I conclude that the appellant's s. 8 right was violated.

3. The Right to Counsel, Section 10(b) of the Charter

[75] Section 10 of the Charter provides:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; ...

[76] Cst. Winters informed the appellant that he was investigating an assault when he stopped the appellant and those with him and asked for identification. There is, therefore, no issue with respect to s. 10(a). But Cst. Winters did not at any time inform the appellant of his right to retain and instruct counsel until 40 minutes after the appellant was first stopped when he was arrested for possession of stolen property. The appellant now wishes to contend that the officer's failure to inform him much earlier of his right to counsel violated his s. 10(b) Charter right. The appellant does not, however, attempt to say precisely when the police obligation to advise him of his s. 10(b) right arose.

[77] As indicated, the appellant did not raise any issue with respect to s. 10(b) at trial. However, he submits that the evidentiary basis necessary to examine that issue was established at trial and that this Court can therefore consider it.

[78] It is significant that the appellant raises the s. 10(b) issue now not as an independent basis for excluding any evidence, but rather to inform the s. 24(2) analysis relating to the ss. 8 and 9 breaches for which he contends. The appellant says, in short, that the alleged s. 10(b) violation goes to establishing a "pattern of conduct" showing a general disregard for the rights of the appellant which increases the seriousness with which any s. 8 or s. 9 Charter violations should be viewed.

[79] The Crown submits that this Court should decline to consider the s. 10(b) issue because it was not raised at trial. The Crown does not, however, point to the absence in the record of any particular facts which would hinder this Court's analysis. Alternatively, the Crown says that there was no s. 10(b) violation in the circumstances of this case in any event. The Crown emphasizes the necessity of allowing police to proceed with questioning during an investigative detention and the practical difficulties in requiring police officers to cease such questioning in order to permit the appellant time to engage and instruct counsel in private.

A. Consideration of a s. 10(b) violation now

[80] The determination of whether to grant the appellant leave to raise the s. 10(b) issue is a discretionary decision that involves weighing the interests of justice. In R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391 at 398-99, Lambert J.A., writing for this Court, stated:

The decision whether to grant leave is a matter for the discretion of the court. The exercise of the discretion will be guided by balancing the interests of justice as they affect all the parties. The rule is no different in criminal cases than it is in civil cases, though the balancing of the interests of justice may have a different emphasis.

An accused must put forward his defences at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defence that is available, he must abide by that decision. He cannot expect that if he loses on the defence that he has put forward, he can then raise another defence on appeal and seek a new trial to lead the evidence on that defence.

The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done, that a new ground is likely to be permitted to be raised on appeal. Such a new ground is more likely to be permitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial.

[81] In the present case, the factual record necessary to consider the s. 10(b) issue was fully established at trial and no new evidence is required. The fact that the s. 10(b) issue is ancillary to and in support of a defence that the appellant did put forward at trial (violations of his ss. 8 and 9 Charter rights and the consequent exclusion of evidence under s. 24(2)) and does not constitute an entirely new defence, also militates in favour of allowing the appellant to raise the issue now. Accordingly, I conclude that it is appropriate to consider whether his s. 10(b) right was violated.

B. The violation of s. 10(b)

[82] There appears to be some question of whether there is a "detention" within the meaning of s. 10 when a police officer briefly stops a person to request identification: see, e.g. R. v. Lawrence (1990), 59 C.C.C. (3d) 55 at 60-62, 46 O.A.C. 345; Grafe, at 272-74; R. v. Tammie, 2001 BCSC 366 ¶ 15; but see R. v. Young (1997), 34 O.R. (3d) 177, 116 C.C.C. (3d) 350 at 356 (C.A.). Even those cases which consider such a brief stop a "detention" have left open the possibility that some delay in informing the person of his or her s. 10(b) right may be justified: see R. v. Lewis (1998), 38 O.R. (3d) 540, 122 C.C.C. (3d) 481 ¶ 28 (C.A.); R. v. V.(T.A.) ¶ 32; and R. v. Campbell (2003), 175 C.C.C. (3d) 452, 2003 MBCA 76 ¶ 44-52.

[83] Most recently, in Mann, although the appellant alleged no s. 10(b) violation, the majority expressed the view that a brief investigative detention likely would not engage s. 10. Iacobucci J. stated:

[19] "Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

Ultimately, however, the Court held that issues relating to s. 10(b) rights in the context of investigative detention should be left to another day.

[84] In the present case, I need not pinpoint the precise time at which the appellant's detention became a "detention" within the meaning of s. 10. Here, there is little doubt that at least by the time Cst. Winters applied the handcuffs to the appellant, he was subjected to significant physical restraint which triggered his s. 10(b) rights: see Lewis; Campbell; Young. In failing to inform the appellant that he had the right to retain and instruct counsel without delay at this point, Cst. Winters violated the appellant's s. 10(b) Charter rights.

[85] I conclude, then, that there was a s. 10(b) violation.

4. Excluding the Evidence under Section 24(2) of the Charter

[86] Section 24(2) of the Charter provides:

(2) Where ... 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 admission of it in the proceedings would bring the administration of justice into disrepute.

[87] I have concluded that the appellant's ss. 8 and 10(b) rights were violated during his detention in connection with the reported assault the police were investigating. Given that what occurred during the detention ultimately led to G.V. and W.D. identifying the appellant in court as the person who robbed them, it is necessary to consider whether their evidence in that regard was obtained in a manner that infringed the appellant's rights and ought to have been excluded because, having regard to the circumstances, its admission would bring the administration of justice into disrepute.

A. The manner in which the evidence was obtained

[88] The test for determining whether evidence was obtained in a manner that violated an accused's Charter rights was canvassed in R. v. Therens, [1985] 1 S.C.R. 613 and R. v. Strachan, [1988] 2 S.C.R. 980. Those decisions warn against over-reliance on causation alone, advocating instead an examination of the entire relationship between the breach and the impugned evidence. It is necessary to examine the temporal and causal relationship between the violation and the discovery of the evidence, to determine if there is a close connection. The evidence will not have been "obtained in a manner" where the link between the breach and the discovery of the evidence is remote. See more recently R. v. Goldhart, [1996] 2 S.C.R. 463, 136 D.L.R. (4th) 502, 107 C.C.C. (3d) 481.

[89] The testimony of G.V. and W.D. identifying the appellant as the person who robbed them was not evidence that was directly obtained during the appellant's detention. The most that can be said is that the information the police obtained as a result of what occurred during the detention implicated the appellant in the two robberies. It remained for G.V. and W.D. to testify as they did to prove the Crown's case against him.

[90] This Court has said, in circumstances similar to those presented here, that the question of whether the impugned testimonial evidence of identity was obtained in a manner that violated an accused's rights is a "troubling question of the construction of s. 24(2)": R. v. Fraser (1993), 80 C.C.C. (3d) 539 at 556, 15 C.R.R. (2d) 44, leave to appeal refused [1993] 3 S.C.R. vi. It may be arguable that the in-court identification evidence, particularly that of G.V. who (unlike W.D.) reported that he had been robbed, was not obtained in a manner that violated the appellant's Charter rights. The point was not, however, explored in argument and I proceed on the assumption that the impugned evidence was obtained in a manner that violated the appellant's rights.

B. Exclusion of the evidence

[91] It is well established that there are three factors to be considered in determining whether evidence obtained by Charter violation should be excluded: the impact of the evidence on the fairness of the trial; the seriousness of the violation; and the effect the admission of the evidence would have on the reputation of the administration of justice: Collins, at 284-86; R. v. Stillman, [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321 ¶ 69.

[92] As indicated, the trial judge said that, had she found a breach of the appellant's Charter rights, at least in respect of s. 8, she would have admitted the evidence. Trial judges usually are accorded deference with respect to the application of s. 24(2) of the Charter in the absence of an error in principle or an unreasonable finding of fact: Stillman, ¶ 68. However, an appellate court may consider the exclusion of evidence under s. 24(2) de novo where, as here, a trial judge's analysis is obiter: R. v. Kokesch, [1990] 3 S.C.R. 3 at 21, 61 C.C.C. (3d) 207 [cited to S.C.R.]. In any event, where a trial judge and an appellate court differ as to whether there has been a Charter violation, it is appropriate for the appellate court to consider the s. 24(2) analysis unencumbered: R. v. Grant, [1993] 3 S.C.R. 223 at 257. Accordingly, it is appropriate to reassess the trial judge's determination of whether the evidence should be excluded.

[93] The appellant concedes that the first of the three factors to be considered is not in issue. The impugned evidence did not affect the fairness of the trial because it was not conscriptive evidence. Thus, for the evidence to be excluded, it must be established that the seriousness of the Charter violations is so great that its admission would more adversely affect the reputation of the administration of justice than would its exclusion.

[94] The seriousness of a Charter violation requires a consideration of four factors: the obtrusiveness of the search; the individual's expectation of privacy in what was searched; the existence of reasonable and probable grounds that the individual searched has committed an offence; and the good faith of the police in conducting the search: R. v. Caslake, [1998] 1 S.C.R. 51, 155 D.L.R. (4th) 19, 121 C.C.C. (3d) 97 ¶ 34; Mann ¶ 53.

[95] Good faith embraces a spectrum ranging from an absence of malicious or wilful intention to an objective reasonable belief by police that their conduct was lawful: R. v. Makwaychuk (1993), 81 C.C.C. (3d) 186 at 193 (Man. C.A.). Lawful conduct means conduct the police believed to be consistent with the exercise of a statutory or common law power vested in them: Kokesch, at 33-34; Caslake ¶ 12. The exercise of good faith will mitigate the seriousness of a Charter violation while the presence of bad faith will be seen to render it more serious: R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 at 419-20, 8 C.R. (4th) 327 (B.C.C.A.).

[96] I turn to consider the seriousness of each of the violations of the two sections of the Charter and then assess the effect of admitting the testimonial evidence of G.V. and W.D. that the appellant was the person who robbed them.

i) The seriousness of the s. 8 violations

[97] The seriousness of a violation of s. 8 depends on the accused's expectation of privacy in the objects searched: R. v. Belnavis, [1997] 3 S.C.R. 341, 151 D.L.R. (4th) 443, 118 C.C.C. (3d) 405 ¶ 38-40. There is a reasonable expectation of privacy associated with items that may be used to hold information of a personal nature such as the pockets, cigarette case and cellular telephone address book in question here. An individual walking down the street would not expect that police could search his or her pockets or compel disclosure of the contents of a wallet in which pieces of identification and other documentation are carried. This type of information falls within the "biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state" which s. 8 is intended to protect: R. v. Plant, [1993] 3 S.C.R. 281 at 293, 84 C.C.C. (3d) 203.

[98] Thus, neither the search of the appellants' pockets, inspection of the cigarette case, nor accessing of the telephone address book can be said to constitute infringements of the appellant's s. 8 Charter right which were not, to some extent, serious. In my view, however, Cst. Winters taking the cigarette case and inspecting its contents was the more serious of the violations.

[99] The pat-down search was largely consistent with its permitted purpose. A knife, albeit a penknife, was found; the drugs found were, in the circumstances, inconsequential.

[100] When Cst. Winters took the cellular telephone from the appellant's shirt pocket and accessed the address book, he had reasonable and probable grounds to arrest the appellant for the offence of obstructing him in the execution of his duty.

[101] While the existence of reasonable and probable grounds is a distinct factor that serves to mitigate an otherwise serious Charter breach, it may also serve to suggest the existence of good faith: Grant, at 260.

[102] Cst. Winters did not testify that he had reasonable and probable grounds to seize the cigarette case or the telephone and to conduct either of those two impugned searches. When he inspected the cigarette case, he considered the appellant detained for the purpose of investigating the assault. Up to that point, the appellant had stammered over his birth date, given Cst. Winters a birth date that appeared to be inconsistent with his apparent age, and provided a name that could not be confirmed on the police information networks. Those factors provided some grounds for Cst. Winters to believe that the appellant was not telling the truth, and was therefore obstructing his investigation, but may not have afforded the reasonable and probable grounds necessary to support his seizure and search of the cigarette case or the telephone. Accordingly, at that time, only a protective search was lawful. Thus, the seriousness of the seizure and search of the cigarette case remains unmitigated by good faith or the existence of reasonable and probable grounds.

[103] However, the situation is different for the search of the telephone. After Cst. Winters challenged the appellant with the inconsistency between saying he never had a driver's licence and possessing the service station credit card as well as the motorcycle safety certificate found in the cigarette case, the appellant appeared to start to run and was handcuffed. At that point Cst. Winters warned the appellant about obstruction and again asked him to identify himself. The appellant then gave the officer a different name and birth date. It was then apparent that, with respect to at least one of those two names, the appellant had lied to Cst. Winters about who he was. At this point, on the authority of Rice v. Connolly discussed above (para. 51), there were objective reasonable and probable grounds to believe that the appellant had committed the offence of obstruction.

[104] Although Cst. Winters did not testify that he had reasonable and probable grounds to believe the appellant was obstructing him, the existence of subjective grounds can be inferred from the fact that Cst. Winters gave him two obstruction warnings and told the appellant that he did not believe him: see e.g. Belnavis ¶ 27-32.

[105] The seizure and search of the telephone followed the second obstruction warning and thus occurred in a situation where both subjective and objective reasonable grounds to arrest the appellant for obstruction existed. Even if Cst. Winters did not expressly recognize the presence of these subjective and objective grounds and act upon them to arrest the appellant, the existence of objective grounds alone can serve to mitigate the seriousness of the Charter violation: see Caslake ¶ 34; Collins at 288; and Belnavis ¶ 42. The situation is not dissimilar from that in Caslake where the officer's search of the appellant's vehicle for inventory purposes violated s. 8, but was considered not too serious because the officer's search would have been reasonable had the officer turned his mind to the power to conduct the same search as incident to the appellant's arrest.

[106] This, in my view, tends to minimize the seriousness of the seizure of the telephone and the search of its address book. The presence of the reasonable grounds to arrest the appellant for obstruction, which in turn would have permitted Cst. Winters to conduct a more extensive search on the basis of the common law power to search incidental to arrest, also distinguishes the present case from Mann, where the absence of any reasonable grounds for the impugned search was a factor in the Supreme Court's conclusion that the evidence should be excluded (see ¶ 54).

[107] Here, the seizure and search of the cigarette case, being the more serious violation, is therefore cause for greater concern. What Cst. Winters found in the contents prompted the further action that he took. It is, however, significant that the appellant was not reluctant to hold the case open in his hand for the contents to be seen when he drew out the piece of identification he showed Cst. Winters. This is not a case where the police first searched to find the case in a pocket of a person's clothing and then opened it to inspect the contents. While the appellant did not consent to the contents being inspected in any legal sense, his conduct was such that the officer should not be judged too harshly in proceeding to take the case as he did. This is particularly true when the officer's primary purpose was not to search for evidence of a crime (something which the case-law prohibited at the time: see Johnson, ¶ 10-12), but rather only to verify the appellant's identity (something which the case-law at the time left unclear: see Ferris ¶ 78).

ii) The seriousness of the s. 10(b) violation

[108] The appellant concedes that no evidence was discovered as a result of the s. 10(b) violation. He argues it is relevant to establishing a pattern of conduct showing a disregard for his rights: see e.g. R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129 ¶ 80. In my view, the s. 10(b) violation in this case was minor and does not establish a pattern of violations nor indicate Cst. Winters was acting in bad faith. The fact that Cst. Winters twice warned the appellant about obstruction and then promptly advised him of his s. 10(b) right upon arrest indicates that his failure to inform him of his right to counsel earlier was largely inadvertent. It does not reflect a pattern of disregard for the appellant's Charter rights.

iii) The effect of admitting the evidence

[109] The admission of the testimonial evidence of G.V. and W.D. identifying the appellant as the person who robbed them could only be said to bring the administration of justice into disrepute if its admission would affect the reputation of the administration of justice more adversely than its exclusion. This requires balancing the seriousness of the offence and the significance of the evidence to securing a conviction, on the one hand, with the seriousness of the violations on the other: Law ¶ 40.

[110] It appears clear that, without the testimony of G.V. and W.D. as to the identity of the person who robbed them, there would have been no evidence to prove that it was the appellant who committed the robberies. (The police did have the appellant's fingerprints on file but matching them to those lifted from G.V.'s apartment could be said to be a product of the s. 8 Charter violations.)

[111] There is no question that the offences are serious. The appellant violated the security of G.V.'s and W.D.'s homes by appropriating their trust. He took advantage of them, tied them up, and threatened their lives in order to rob them of money, valuables and other possessions. In the case of W.D., he used the pellet gun Cst. Winters found when he arrested him to intimidate his victim. That said, however, an accused person is entitled to the full protection of the Charter regardless of the seriousness of the crime: R. v. Burlingham, [1995] 2 S.C.R. 206 at 242 per Iacobucci J.; see also Feeney, ¶ 82.

[112] In considering whether the Charter violations were so serious that admitting the evidence needed for a conviction would more adversely affect the reputation of the administration of justice than excluding the evidence, I attach importance to the fact that the appellant was himself engaged in obstructing Cst. Winters' investigation throughout. Indeed, the whole of the detention beyond the first few minutes, as well as the infringement of the appellant's rights, occurred only because he persisted in attempting to mislead the officer by providing him with false identification.

[113] It has been recognized that the conduct of a person detained by police may in some instances be considered, not to excuse a Charter breach, but rather to provide some explanation for the failure to observe the person's Charter rights: R. v. Tremblay, [1987] 2 S.C.R. 435 at 438-39, a case where the s. 10(b) rights of an individual being subjected to a breathalyser test were violated in circumstances where he deliberately attempted to make the investigation difficult and was actively obstructing the police. The explanation may serve, as I consider it does here, to mitigate the adverse effect the admission of the impugned evidence may have on the reputation of the administration of justice.

[114] Further, the connection between the violations and the evidence which the appellant seeks to have excluded – i.e. the testimony of G.V. and W.D. establishing identity – is tenuous in the sense that there is no direct connection. This is especially true of G.V.'s evidence. He had reported the robbery to police before the events which led to Cst. Winters arresting the appellant. The case is in this respect unlike cases such as Mann where the evidence in issue (there marihuana) was obtained directly as a result of the unconstitutional search of the accused.

[115] Although I assume that this evidence was obtained in a manner that infringed the appellant's Charter rights, the strength of the relationship between the violations and the discovery of the evidence is a factor that can be weighed in balancing the seriousness of the violation with the state's interest in securing a conviction: see R. v. Church of Scientology (1997), 33 O.R. (3d) 65 at 100 (C.A.), leave to appeal refused [1997] S.C.C.A. No. 683 (Q.L.); Fraser, at 556.

[116] Finally, it is significant that the police were at no time seeking to obtain evidence of a crime. Their sole purpose throughout was simply to establish the identity of the appellant in order to facilitate a photo line-up at a later time if such proved warranted in the course of their investigation of the assault. The fact that their efforts, frustrated as they were by the appellant deliberately misleading them, served to implicate him in two robberies that the police officers were apparently not even aware of was completely fortuitous.

[117] In summary, like the trial judge, I do not consider the violation of the appellant's Charter rights, including in particular the seizure and search of the cigarette case, to be so serious that the testimonial evidence of G.V. and W.D. as to the identity of the appellant as the person who robbed them should be excluded. In all the circumstances of this particular case, taken as a whole, admitting the evidence would not impair the reputation of the administration of justice as much as would its exclusion.

[118] I conclude, then, that under s. 24(2), the evidence was properly admitted.

Disposition

[119] I would dismiss the appeal.

“The Honourable Mr. Justice Lowry”

I agree:

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Mr. Justice Mackenzie”