Gun Discovered in Plain View During Investigative Detention Found Admissible

Police Powers

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

Facts: Police received an anonymous tip that a male in a "black jeep" near the Froude Avenue Community Centre in St. John's, Newfoundland, had a firearm, possibly a shotgun or rifle. The first officer on the scene saw a lone black sport utility vehicle with a male occupant in the parking lot of the community centre. A second officer arrived a few minutes later. The first officer activated his vehicle's emergency lights, exited the vehicle, drew his firearm and told the male driver, whom he recognized from a previous occasion, to put his hands out the window. The driver exited the vehicle and was told to lie down on the ground. The second officer handcuffed the driver, read him his rights to counsel and secondary caution, and told him they were investigating a weapons complaint. The driver admitted there was a shotgun in his vehicle.

The first officer, unaware of the admission of the driver, used his flashlight to look inside the vehicle and observed the partially covered barrel of a shotgun on the back seat. The first officer opened the door of the vehicle, seized the shotgun and told the second officer to arrest the driver for unsafe handling of a firearm.

At trial, the driver alleged violations of his rights under ss. 8 and 9 of the Charter and sought the exclusion of the evidence under s. 24(3). On the voir dire, the first officer testified that he did not have grounds to arrest the driver prior to observing the firearm, but also testified that he conducted the search of the vehicle incident to the driver's arrest. The trial judge agreed, finding that the detention of the driver was unlawful, and that the conduct of the officer, looking into the vehicle amounted to a search. The trial judge excluded the evidence under s. 24(2) and acquitted the driver. The Crown appealed.

Held: Appeal allowed in part, new trial ordered.

In R. v. Clayton, 2007 SCC 32, 2007 CarswellOnt 4268, the Supreme Court of Canada held that in the absence of any information indicating that a tip is substantially unreliable, police are entitled to rely on information obtained from an anonymous tipster to justify an initial investigation. In these circumstances, police need not have a subjective belief in the accuracy of the information when commencing an investigation based on an anonymous tip. That said, the right to investigate does not imply a right to detain or use force short of arrest. In Clayton, the Court stressed the importance of balancing the liberty interests of a suspect against the risks to the public and police in determining whether the nature of the detention is no more intrusive of the liberty interests of the detainee than is reasonably necessary to address the risk. More recently in R. v. McGuffie, 2016 ONCA 365, 2016 CarswellOnt 7507, the Court of Appeal for Ontario reiterated the obligation to minimize the length and nature of an investigative detention to what is reasonably necessary on an objective view of the totality of the circumstances.

Applying the analyses in Clayton and McGuffie, the trial judge did not err in finding that the detention and questioning of the accused was reasonably necessary in the totality of the circumstances. However, in the absence of any indication of attempted flight, uncooperativeness, or threatening behavior, the circumstances did not require ordering the accused to the ground at gunpoint, handcuffing him, and placing him in the back of the police cruiser. What began as a lawful detention became unlawful when excessive force was employed by police. The detention became arbitrary and was therefore a breach of s. 9 of the Charter.

However, the trial judge erred in finding that the conduct of the first officer, in looking into the vehicle, amounted to a search. Consistent with the decision of the Newfoundland and Labrador Court of Appeal's decision in R. v. Diamond, 2015 NLCA 60, 2015 CarswellNfld 518, police were entitled to look into the vehicle; observing something in plain view is not a search for the purposes of s. 8 of the Charter. In any event, the seizure of the shotgun was a valid search incident to the driver's arrest, in accordance with the principles in R. v. Debot, [1989] 2 S.C.R. 1140, 1989 CarswellOnt 111. Finally, the trial judge erred in his analysis of the test for the exclusion of evidence under s. 24(2) as articulated in R. v. Grant, 2009 SCC 32, 2009 CarswellOnt 4104.

The dissenting judge found that the detention of the driver was arbitrary and the search of the vehicle unreasonable, and would have dismissed the Crown's appeal.

Commentary: This case provides a good overview of the law of investigative detention, beginning with the Supreme Court of Canada's decisions in R. v. Mann, 2004 SCC 52, 2004 CarswellMan 303, and expanded on in R. v. Clayton, 2007 SCC 32, 2007 CarswellOnt 4268 and R. v. McGuffie, 2016 ONCA 365, 2016 CarswellOnt 7507.

R. v. Squires, 2016 NLCA 54, 2016 CarswellNfld 400 (N.L. C.A.)