R. v. Debot, [1989] 2 SCR 1140

R. v. Debot, [1989] 2 S.C.R. 1140

 

Kevin Joseph Debot      Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. debot

 

File No.:  20099.

 

1989:  June 22; 1989:  December 7.

 

Present:  Dickson C.J. and Lamer, Wilson, Sopinka, and Cory JJ.

 

on appeal from the court of appeal for ontario

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Reasonableness of search ‑‑ Right to counsel ‑‑ Admissibility of evidence if obtained in circumstances in violation of Charter  rights ‑‑ Appellant frisked in warrantless drug search ‑‑ Search ordered following tip from reliable informant ‑‑ Drugs found and appellant arrested ‑‑ Appellant informed of his Charter  rights, including right to counsel, on arrest ‑‑ Whether or not search reasonable ‑‑ Whether or not right to counsel infringed ‑‑ Whether or not real evidence obtained in search should be excluded from evidence ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 10(b) , 24(2)  ‑‑ Food and Drugs Act, R.S.C. 1970, c. F‑27, s. 37(1)(a),(b).

 

    Criminal law ‑‑ Searches ‑‑ Appellant frisked in warrantless drug search ‑‑ Search ordered following tip from reliable informant ‑‑ Search permissible if reasonable belief that offence was committed ‑‑ Whether or not police had reasonable and probable grounds to believe offence committed ‑‑ Food and Drugs Act, R.S.C. 1970, c. F‑27, s. 37(1)(a),(b).

 

    A reliable informant informed the police that the appellant and two others were going to meet to complete an illegal drug deal and take delivery of substantial amount of speed being brought into the area by a supplier.  The informant had obtained this information in conversation with one of the persons who was to be a party to the deal.  All the individuals named were known by the police to have had an involvement with drugs in the past.

 

    Two officers, on orders from an R.C.M.P. sergeant, intercepted and searched appellant's vehicle shortly after it left the house where the transaction was to occur.  A constable told appellant that he had reasonable and probable grounds to believe that the appellant had speed on him and proceeded with a warrantless search as authorized by s. 37(1) of the Food and Drugs Act.  The appellant was ordered to assume a "spread eagle" position and told to empty his pockets.  A quantity of speed was found.  The constable placed the appellant under arrest and advised him of his Charter  right to counsel.

 

    The trial judge acquitted the accused.  He found the search to be unreasonable contrary to s. 8  of the Charter  and excluded the evidence under s. 24(2).  The Court of Appeal unanimously allowed the Crown's appeal and ordered a new trial.  The circumstances of the search raised Charter  issues as to the reasonableness of the search under s. 8, the right to counsel under s. 10(b), and the exclusion of evidence under s. 24(2).

 

    Held:  The appeal should be dismissed.

 

    Per Dickson C.J. and Lamer and Cory JJ.:  The right to search incident to arrest derives from the fact of arrest or detention of the person.  The right to retain and instruct counsel derives from the arrest and detention, not from the fact of being searched.  The detainee, therefore, has the right to be informed of the right to retain and instruct counsel immediately upon detention.  The police, however, are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.

 

    Denial of the right to counsel will result in a search's being unreasonable contrary to s. 8  of the Charter  in only exceptional circumstances.  A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.  The denial of the right to counsel does not affect the "manner" in which the search is conducted.  The "manner" in which the search is conducted relates to the physical way in which it is carried out and should not be inclusive of restrictions of other rights that already receive the benefit of the Charter 's protection.

 

    Evidence obtained by way of a search that is reasonable but contemporaneous with a violation of s. 10( b )  of the Charter  will not necessarily be admitted under s. 24(2).  Evidence will be excluded if there was a temporal link between the infringement of the Charter  and the discovery of the evidence, and if the admission of the evidence would bring the administration of justice into disrepute.

 

    Here, the "frisk" search authorized by s. 37 of the Food and Drugs Act was carried out contemporaneously to a violation of appellant's s. 10(b) rights under the Charter .  The evidence obtained, however, was real evidence and its existence was totally unrelated to the Charter  violation.  The repute of administration of justice would not be harmed by the admission of this evidence.

 

    Per Wilson J.:  A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable.  No question was raised as to whether s. 37 of the Food and Drugs Act was, either by necessary implication or through its operating requirements, irreconcilable with s. 8  or s. 10( b )  of the Charter  so as to constitute limits on those rights "prescribed by law" under s. 1 .  The appellant's Charter  rights therefore had to be respected.

 

    When police officers order someone to stand "spread eagle" against a wall, that person is "detained" within the meaning of s. 10.  In light of the fact that the arresting officers were instructed in advance to stop and search the vehicle and its occupants, the appellant was detained from the time he was approached by the constable.

 

    Counsel's role is not limited to advising a suspect of his or her options where such options exist.  The suspect is entitled to know what his legal rights and obligations are and to have counsel available to dispel uncertainty and provide assurance to the suspect that the officers do have the authority they are seeking to assert.  The right to counsel is not contingent on a hypothetical assessment of whether or not counsel would be useful to the suspect in the circumstances.

 

    The direction in s. 10(b) that the police inform a detainee of his or her rights to counsel "without delay" does not permit of internal qualification.  Any limit on the right to counsel, other than the limit required for the safety of the police, must be supported under s. 1  of the Charter  if it is a limit "prescribed by law" which was not the case here.

 

    The police had reasonable and probable grounds to search the appellant under the authority granted to them under s. 37 of the Food and Drugs Act.  The appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case".  The phrase "reasonable belief" also approximates the requisite standard.

 

    The police officer who decides that a suspect should be searched is the person who must have reasonable and probable grounds for believing the suspect is committing an offence.  That officer may or may not perform the actual search.  If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so.

 

    At least three concerns must be addressed in weighing whether or not the evidence relied on by the police justified a warrantless search.  First, was the information predicting the commission of a criminal offence compelling?  Second, where a "tip" originating from a source outside the police, was that source credible?  Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?  Each factor does not form a separate test.  Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness.  Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

 

    The information received by the police was compelling.  It was sufficiently specific to warrant their attention and did not take the form of bald conclusory statements or "mere rumour or gossip".  Two caveats, however, must qualify the use of reputation as germane to the issue of a reasonable search.  First, the reputation of the suspect must be related to the ostensible reasons for the search.  And second, if the reputation of the suspect is based on hearsay rather than police familiarity with the suspect, its veracity cannot be assumed.  The police here appear to have relied on both direct experience and hearsay.

 

    The informant whose credibility is most critical is the one who provided the details of the anticipated transaction.  The evidence of previous dealings with the informant in this case tended to validate the decision to treat the informant as credible.  Where the police rely on an anonymous tip or on an untried informant, the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source.

 

    The police need not confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.  The level of verification required, however, may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater.  Given the quality of the information and the reliability of the informant, the police surveillance yielded sufficient corroborative evidence to warrant the belief that a drug transaction had occurred.

 

    A detained person cannot be assumed to be fully apprised of all his Charter  rights at the critical moment and, without knowledge of those rights, may fail to exercise his rights or may attempt to resist in a mistaken belief that the police conduct was not lawful when in fact it was.  The police cannot appropriately provide legal advice regarding the legitimacy of their own actions.  An individual must rely on counsel to supply the vital information.

 

    The question of whether a denial of the right to counsel renders a search unreasonable depends on two factors:  (1) the source of authority for the search; and, (2) the invasiveness of the search.  The failure to advise an individual of his or her right to counsel detracts more from the reasonableness of a warrantless search than from a search subject to prior authorization.  The more invasive the search, the greater the assault on one's dignity.  To the extent that counsel can provide reassurance and advice to a person who may be subjected to a highly invasive procedure and perhaps even prevent an unjustified search, his or her presence can mitigate the impact of the intrusion on the individual's physical and psychological integrity.  Here, the failure to accord the appellant his s. 10(b) rights militated against the reasonableness of the warrantless search and the minimal nature of the invasion of his privacy from the "frisk" type search militated in favour of its reasonableness.

 

    The evidence should be admitted notwithstanding the Charter  violation.  The search following the violation of appellant's s. 10(b) rights produced real evidence which was totally unrelated to the Charter  violation.  Its admission would not render the trial unfair.  The police had not acted in bad faith in thinking that respondent did not have to be informed of his s. 10(b) rights before being searched.  The violation of appellant's right was not trivial but the "interests of truth" and the "integrity of the legal system" would be better served by the admission of the evidence than by its exclusion.

 

    Per Sopinka J.:  The police were under no obligation to advise the appellant of his right to counsel before completing the "frisk" search.  Where the obligation to inform a person of his or her right to counsel arises, there is an obligation to afford that person a reasonable opportunity to consult counsel.  If the circumstances surrounding a search incidental to an arrest do not lend themselves to the delay inherent in making counsel available, they are equally not conducive to the reading of rights.  This Court has recognized that the right to retain and instruct counsel without delay is not absolute.  The right to be informed of the right to counsel need not be accorded different treatment.

 

Cases Cited

 

By Lamer J.

 

    Applied:  R. v. Strachan, [1988] 2 S.C.R. 980; referred to:  R. v. Ross, [1989] 1 S.C.R. 3; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Jacoy, [1988] 2 S.C.R. 548.

 

By Wilson J.

 

    Considered:  R. v. Therens, [1985] 1 S.C.R. 613; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Strachan, [1988] 2 S.C.R. 980; referred to:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Rao (1984), 12 C.C.C. (3d) 97, leave to appeal refused [1984] 2 S.C.R. ix; R. v. Kelly (1985), 17 C.C.C. (3d) 419; R. v. Guberman (1985), 23 C.C.C. (3d) 406; R. v. Collins, [1987] 1 S.C.R. 265; R v. Jacoy, [1988] 2 S.C.R. 548; R. v. Manninen, [1987] 1 S.C.R. 1233; Spinelli v. United States, 393 U.S. 410 (1969).

 

By Sopinka J.

 

    Referred to:  R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Saunders (1988), 41 C.C.C. (3d) 532; R. v. Bonin (1989), 47 C.C.C. (3d) 230, leave to appeal refused, October 19, 1989, Bulletin of Proceedings, p. 2435.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 1 , 8 , 10( b ) , 24(1) , (2) .

 

Customs Act, R.S.C. 1970, c. C‑40, s. 144.

 

Food and Drugs Act, R.S.C. 1970, c. F‑27, s. 37(1).

 

Narcotic Control Act, R.S.C. 1970, c. N‑1.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1987), 30 C.C.C. (3d) 207, allowing an appeal from an acquittal by Clements Dist. Ct. J. and ordering a new trial.  Appeal dismissed.

 

    Andrew Z. Kerekes, for the appellant.

 

    Robert W. Hubbard, for the respondent.

 

//Lamer J.//

 

    The judgment of Dickson C.J. and Lamer and Cory JJ. was delivered by

 

    LAMER J. -- I have had the benefit of reading the reasons of my colleague Justice Wilson.  While I agree with her reasons and disposition of this appeal, I feel I must, with respect, qualify somewhat my concurrence, as regards two matters:  first, the relationship between the right to search incident to arrest and the right to retain and instruct counsel and second, the effect of a violation of the right to counsel on the constitutional validity of an otherwise reasonable search made contemporaneously with arrest.

 

    On the first point, I note that as a general rule police proceeding to a search are not obligated to suspend the search and give a person the opportunity to retain and instruct counsel, as for example when the search is of a home pursuant to a search warrant.  When the police are conducting a body search, however, the matter is entirely different.  In such a case, it is impossible to search without detaining the individual within the meaning of s. 10  of the Canadian Charter of Rights and Freedoms .  It is in that context that I now turn to a discussion of searches incident to arrest.

 

    The right to search incident to arrest derives from the fact of arrest or detention of the person.  The right to retain and instruct counsel derives from the arrest or detention, not from the fact of being searched.  Therefore immediately upon detention, the detainee does have the right to be informed of the right to retain and instruct counsel.  However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.  There are, in my view, exceptions to this general rule.  One is where the lawfulness of the search is dependent on the detainee's consent.  That situation is governed by this Court's decision in R. v. Ross, [1989] 1 S.C.R. 3, at p. 12:

 

    In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right.

 

Another is when a statute gives a person a right to seek review of the decision to search as was the case in R. v. Simmons, [1988] 2 S.C.R. 495.  In this case, when the person invokes the right, and pending its exercise, the authority to proceed to search is suspended.  Obviously, the person must be given the same rights as when arrested, and the officers wanting to search cannot assume that they may proceed absent the suspect's invoking his right to review, until he or she has been given reasonable opportunity to consult counsel.

 

    This then leads me to the second point.  It is Wilson J.'s view that a denial of a right to counsel should be a factor when determining the reasonableness of a search.  With respect, I cannot agree with such a broad statement in relation to the interaction of ss. 8  and 10( b )  of the Charter .  It is my view that it will only be in exceptional circumstances that the denial of the right to counsel will trigger a violation of s. 8.  Such would be the case when the lawfulness of the search is dependent upon the consent of the person detained.  If a detained person's consent to a search of his house, which, under the circumstances of the case and the applicable law, requires a warrant, was given while that person's s. 10(b) rights were being violated (either because he has not been informed of his right to counsel or because the police have obtained his consent to search his house before he has been given a reasonable opportunity to exercise his right to counsel) then  the search is unlawful and, as such, unreasonable.  Apart from a situation such as this or other situations analogous to those dealt with in R. v. Simmons, supra, where the s. 10(b) violation goes to the very lawfulness of the search, I have not been able to imagine situations where the right to counsel will be relevant to a determination of the reasonableness of a search.

 

    In respect of the right to protection against unreasonable search or seizure, the norm to be applied in considering reasonableness was set out by this Court in R. v. Collins, [1987] 1 S.C.R. 265, at p. 278:

 

    A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.

 

    In subsequent decisions, namely R. v. Simmons, supra, R. v. Strachan, [1988] 2 S.C.R. 980, R. v. Jacoy, [1988] 2 S.C.R. 548, and in the present case, Wilson J. has stated that the denial of the right to counsel affects the "manner" in which the search is conducted.  With respect, I cannot agree.  The "manner" in which the search is conducted relates to the physical way in which it is carried out and should not, in my view, be inclusive of restrictions of other rights that already receive the benefit of protection from the Charter .

 

    I hasten to add that I am not saying that evidence obtained by way of a  search which is reasonable but contemporaneous with a s. 10(b) violation will necessarily be admitted.  Once a restriction of the right to counsel has been established, the court must turn to the effects of the restriction under s. 24(2) and apply the two-fold test set out in R. v. Strachan, supra, at p. 1000:

 

(i)  the evidence must be "obtained in a manner that infringed or denied any rights or freedoms guaranteed" by the Charter .

 

(ii) the admission of the evidence "would bring the administration justice into disrepute".

 

    The above discussion is far from theoretical.  Indeed, determining the exclusion or admission of evidence obtained as a result of an unreasonable search is quite different from determining the exclusion or admission of evidence obtained as a result of a search which was perfectly valid but which was carried out contemporaneously with a s. 10(b) violation.  While the violation of s. 8 is directly linked to the obtaining of the evidence, the violation of s. 10 could be very remote:  indeed it could be totally unrelated to the finding of the evidence.  For example, in this case the appellant was subjected to a warrantless "frisk" search authorized by s. 37 of the Food and Drugs Act.  The search was carried out contemporaneous to a violation of the appellant's s. 10(b) rights under the Charter .  But as Wilson J. notes in her discussion of s. 24(2) in this case, the evidence obtained was real evidence the existence of which, and I hasten to add its seizure, was totally unrelated to the Charter  violation.  This link, or in this case the lack of it, of course makes a great difference when assessing whether the repute of our system of justice will be harmed by the admission of the evidence.

 

    I, therefore, agree with Wilson J.'s disposition of this appeal, save for the comments I have made above.

 

//Wilson J.//

 

    The following are the reasons delivered by

 

    WILSON J. -- The appellant was charged on an indictment alleging:

 

    That he on or about the 26th day of February, 1985 at the Town of Wallaceburg in the County of Kent unlawfully did have in his possession a Controlled Drug to wit:  Methamphetamine (Speed) for the purpose of trafficking, contrary to Section 34(2) of the Food and Drug Act.

 

    The drugs in question were discovered on the appellant's person in the course of an on-the-spot warrantless "frisk" search.  Section 37(1) of the Food and Drugs Act, R.S.C. 1970, c. F-27 as amended, in force at the relevant time, authorized a warrantless search in the following circumstances:

 

37. (1)  A peace officer may at any time

 

(a) without a warrant enter and search any place other than a dwelling-house, and under the authority of a writ of assistance or a warrant issued under this section, enter and search any dwelling-house in which he reasonably believes there is a controlled drug by means of or in respect of which an offence under this Part has been committed;

 

(b) search any person found in such place; . . .

 

 

    The circumstances of the search raise Charter  issues as to the  reasonableness of the search under s. 8, the right to counsel under s. 10(b), and the exclusion of evidence under s. 24(2).  The appeal also provides the Court with an opportunity to explore further the effect of a violation of the right to counsel on the constitutionality of the search under s. 8.

 

1.  The Facts

 

    On February 26, 1985, Constable Gutteridge, a Joint Forces Officer with the Chatham police and the R.C.M.P., received confidential information from an informant that the appellant and two others, Greg Carpenter and Gerry List, were going to meet that evening for the purpose of completing a drug transaction involving around four ounces of speed.  The transaction was to take place at Carpenter's residence and both he and the appellant were to receive a substantial amount of the drug.  The speed was being brought into the Wallaceburg area by a supplier named by the informant.  The informant told Gutteridge that he had obtained this information in conversation with Carpenter.  Gutteridge had had at least one previous dealing with this informant and described him as "reliable".  On that occasion the informant advised him that a large quantity of speed would be found at a particular residence.  Only trace amounts of speed were found but a larger quantity of marijuana was seized.

 

    Gutteridge contacted Sergeant Briscoe, head of the R.C.M.P. detachment in Chatham, and passed on the information he had received from the informant to him.  Gutteridge asked that the appellant, Carpenter and List all be put under surveillance.  All these individuals were known by the Drug Section of the Chatham police to have had an involvement with drugs in the past.  The police described the appellant as a user and trafficker although he had only one narcotics related conviction and that was for possession of a small amount of marijuana.  Carpenter was also known as a user and trafficker.  Warrants had been executed under the Narcotic Control Act, R.S.C. 1970, c. N-1 , and the Food and Drugs Act on Carpenter's residence on previous occasions.  He had a lengthy record of convictions for narcotics related offences.

 

    Sergeant Briscoe held a briefing session at which the information communicated to him by Gutteridge was relayed to the officers assigned to the surveillance, including Constables Birs and L'Heureux.  Birs also testified that he was instructed earlier in the day directly by Gutteridge.  Gutteridge's testimony is silent on this point.

 

    Several officers set up surveillance in the vicinity of Carpenter's residence.   At one point Constable L'Heureux was instructed to follow a grey Ford compact which had just left Carpenter's residence.  The car proceeded to a tavern where the occupants of the car, two men and a woman, parked and entered.  Constables L'Heureux and Birs observed from a distance what they thought might be a drug deal taking place between one of the men and another woman in the bar.  Constable L'Heureux testified that he noticed an exchange of money and "something else" which he could not identify.

 

    At approximately 9:10 p.m. a dark-coloured Ford Bronco arrived at Carpenter's house.  Gutteridge had seen the same car parked in front of the appellant's home several months earlier when he executed the search warrant issued under the Food and Drugs Act which ultimately led to the appellant's conviction for possession of marijuana.  Gutteridge had also seen the appellant drive the car on several occasions.  A number of people got out of the Bronco and at least one person went into the house.  About five minutes later two men and two women came out of the house, got into the Bronco, and drove away.  These observations were transmitted via police radio to Sergeant Briscoe who confirmed that the Bronco was registered in the appellant's name. 

 

    Sergeant Briscoe instructed two police cars, one occupied by a Constable Martin and the other by Constables L'Heureux and Birs, to intercept and search the vehicle a few minutes after it left Carpenter's residence.  The Bronco had entered the downtown area at the time it was stopped.  Constable L'Heureux went to the driver's side of the car and had a conversation with the driver Sandra Murphy.  She and another female passenger were subsequently searched at the police station after being advised of their right to counsel.  Constable Birs went toward the passenger side and approached the appellant who had already stepped out of the Bronco.  The Constable identified himself and asked the appellant his name, which the appellant gave.  Constable Birs later testified that he did not know whether the appellant was in the car or not when he intercepted it.  He asked the appellant if he was carrying drugs, to which the appellant replied that he was not.  Constable Birs asked him again and received the same response.  Birs then told the appellant that he had reasonable and probable grounds to believe that he had speed on him and proceeded with a search.  The appellant was ordered to face the wall of a nearby building in a "spread eagle" position and then told to empty his pockets.  The appellant turned over a wad of money.  Constable Birs discovered a sunglasses case in the appellant's pocket in which there was a clear plastic bag containing approximately one ounce of speed.  The Constable then placed the appellant under arrest and advised him of his Charter  right to counsel.  As Birs was putting the appellant into the car the appellant apparently volunteered the information that he had two syringes concealed in his sock and he produced those for the officer.

 

    A subsequent search of the Bronco uncovered no additional evidence.  A search warrant executed on the Carpenter residence also yielded nothing.

 

2.  The Issues

 

    The appellant raises the following issues on appeal:

 

(1)  Did the search of the appellant contravene s. 8  of the Charter ?

 

(2)  Did the police violate the appellant's right to counsel under s. 10( b )  of the Charter ?

 

(3)  If the appellant's Charter  rights were violated, is the evidence obtained from the search admissible under s. 24(2)  of the Charter ?

 

    (4)  Was the search of the appellant incidental to a lawful arrest?

 

The relevant Charter  provisions are as follows:

 

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

 

                            10.  Everyone has the right on arrest or detention

 

                                                                          . . .

 

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

 

    24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

    (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

3.  The Courts Below

 

District Court of Ontario  (Clements Dist. Ct. J., unreported)

 

    The trial judge held that the search of the accused was not incidental to an arrest, since the search preceded the arrest and one of the officers, Constable L'Heureux, testified that there was to be no arrest unless drugs were found.

 

    The trial judge then turned to s. 37 of the Food and Drugs Act as  authority for the search.  He referred to this Court's decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and noted that Dickson J. (as he then was) emphasized the need for reasonable and probable grounds as opposed to mere suspicion in order to render a search reasonable.  The trial judge held that the search in this case was arbitrary and not based on reasonable and probable grounds.  He stated:

 

Very concisely put, it was clear from the evidence of Constable L'Heureux that the vehicle in which the accused was found was going to be stopped and searched.  That was that.  It was the only task at hand when that vehicle was stopped.  Everyone in the vehicle was going to be searched.  The vehicle was going to be searched.  None of the officers that I have heard from knew if the accused was in that vehicle.

 

Later he added:

 

    The police were not instructed to make an arrest here but merely to search.  This did take place in a public place.  The question then is whether or not the search was reasonable.  Certainly, to conduct  the investigation was reasonable; certainly the surveillance was reasonable as carried on by the officers.  But knowing what might happen and what had happened to that point, in my view, the officers went beyond their lawful authority in stopping the vehicle and searching the accused.  They did not exercise any direct independent mind of their own to determine whether or not what they were doing was arbitrary because their instructions, according to Constable L'Heureux, were very clear.

 

    Clements Dist. Ct. J. concluded that the search by Constable Birs was unreasonable on the basis of the following facts.  The courier who was supposed to deliver the drugs to Wallaceburg was never spotted and there was no evidence that the drugs had arrived.  The police did not identify the accused as one of the people entering the house nor as an occupant of the vehicle prior to instructing Constables Birs and L'Heureux to intercept the vehicle, although it had been confirmed that the accused owned the Bronco.  The officers were instructed to search the car and its occupants; they themselves exercised no discretion in deciding whether to conduct the search or who to search.  It was irrelevant to such decision who was in the vehicle and what they said.  In this sense the actions of the police were arbitrary.  Clements Dist. Ct. J. stated:

 

    Against all that, Constable Birs said that he had reasonable and probable grounds to search; in my view, he did not have any aside from pure speculation and pure hope.  If anything, the police jumped the gun.  They should have continued on their surveillance.  It cannot be said that this was a reasonable search.  In fact, what can be said, although the police, in my view, were not out to even the score with the accused, was that their action was arbitrary.

 

    Having decided that the search contravened s. 8  of the Charter , the trial judge considered whether the evidence obtained from the search should be excluded under s. 24(2).  He stated that the onus lay with the Crown to establish that admission of the evidence would not bring the administration of justice into disrepute.  He determined that the search was "sufficiently arbitrary" and "sufficiently contrary to the spirit of the words given by Mr. Justice Dickson in the Southam case" to warrant exclusion of the evidence:

 

    Here, the surveillance was set up because of information deemed to be reliable by Constable Gutteridge, who remained in Chatham on another investigation.  The basis for the surveillance was apparently relayed to Sgt. Briscoe who briefed some officers but did not testify.  Constable L'Heureux, as I recall it, did not have the nature of the briefing in his notes.  My recollection is that Constable Birs did not know the amount of speed involved.  The chain of information was rather nebulous.  The officers in their testimony were unsure of themselves.  They were on surveillance and really, the officers who stopped the accused carried out an administrative act.  The decision had been made higher up apparently by Sgt. Briscoe who did not testify.  From the evidence I have heard there was no reasonable cause for the search to be ordered based on except [sic] the sighting of the accused's vehicle at the Carpenter residence without knowing if the accused was in it.

 

    Clements Dist. Ct. J. did not consider the past conduct or reputation of the accused as a factor bearing on the reasonableness of the search under s. 8 or on the effect of the exclusion of the evidence on the repute of the administration of justice under s. 24(2).

 

Ontario Court of Appeal  ((1986), 30 C.C.C. (3d) 207)

 

    The Ontario Court of Appeal (Martin, Goodman and Krever JJ.A.) unanimously allowed the Crown's appeal and ordered a new trial.  Writing for the Court, Martin J.A. first addressed the evidence required to justify a warrantless search for controlled drugs under s. 37 of the Food and Drugs Act.  He proceeded from the position that the reasonable belief required by s. 37 imposes a standard of "reasonable probability" or "probable cause" rather than "proof beyond a reasonable doubt" or "prima facie case".  On his view of the facts Martin J.A. found that Constable Birs had reasonable grounds to believe that the accused was in possession of a prohibited drug.  At page 219 he reviewed the relevant evidence on this point:

 

The information supplied by the informer to Constable Gutteridge was not a mere conclusory statement that the respondent was engaging in criminal activity with respect to drugs.  Rather, the informer disclosed the underlying circumstances of the expected drug transaction, including the location where it was to take place.  The informer told Gutteridge that the respondent was going to Carpenter's house to complete his part in the drug transaction.  The police investigation confirmed that the respondent's car arrived at Carpenter's house and that one of the occupants, at least, entered the house.  Two men and two women came out of the house shortly thereafter, got into the respondent's car and drove away.  Furthermore, the informer had proved to be reliable, with respect to information that he had given the police on previous occasions.

 

                                                                          . . .

 

In addition, Constable Birs was informed by Sergeant Briscoe that DeBot's Ford Bronco was leaving Carpenter's residence and that it bore licence No. KP 7409.

 

    Citing the decision of this Court in Eccles v. Bourque, [1975] 2 S.C.R. 739, Martin J.A. pointed out that the fact that the information Constable Birs received was hearsay from another officer did not preclude it from establishing probable cause.  Martin J.A. also ruled, at p. 220, that the reputation of a person as a drug user and drug trafficker may be "a relevant factor constituting part of the total circumstances that induce a reasonable belief that the suspect has upon his person a prohibited drug" even although it would not by itself constitute reasonable grounds.  The policy rule that excludes such evidence at trial has no application, he stated, in determining probable grounds for an arrest or search.

 

    Martin J.A. also held that even if Constable Birs did not, personally, have any information establishing reasonable grounds for a search, he was entitled to rely on the orders of a superior officer against a claim of arbitrariness as long as the superior officer had reasonable grounds to believe that the suspect had a prohibited drug in his possession.  It would be unrealistic and impractical, Martin J.A. stated, to require a police officer to obtain from his or her superior all the information supporting the order to search a person suspected of the commission of a crime especially where the suspect may be fleeing from the scene.

 

    Martin J.A. also decided that an automobile is a "place" within the meaning of s. 37(1)(a) of the Food and Drugs Act and that the accused was "found" in the car within the meaning of s. 37(1)(b) even although he got out of the car as Constable Birs approached him.  Quoting from the Court of Appeal's earlier decision in R. v. Rao (1984), 12 C.C.C. (3d) 97, at p. 125, (leave to appeal to the Supreme Court of Canada refused [1984] 2 S.C.R. ix), Martin J.A. observed at p. 222 that "a warrantless search of vehicles, vessels or aircrafts [sic], which may move quickly away, may be reasonable where there are reasonable grounds for believing that such contains a narcotic".

 

    Martin J.A. also disagreed with the trial judge's conclusion that the search was not incidental to a valid arrest because the search preceded the arrest and because the officer stated, in effect, that he would not have arrested the accused had the search not produced a prohibited drug.  Martin J.A. rejected the contention that this was a finding of fact made by the trial judge.  In his view, what constitutes a search incident to arrest is a question of law.  As long as the officer has probable cause to arrest the suspect, the fact that he or she postpones the decision until after the search is not fatal.  This is so because the reasonable belief that the suspect has committed the offence of being in possession of a prohibited drug may turn out to be erroneous.  Alternatively, the officer may still have reasonable grounds for making the arrest but conclude that there would be no chance of obtaining a conviction without the evidence.  In these circumstances an arrest would be pointless.

 

    The trial judge did not deal with the s. 10(b) argument because he acquitted the accused on the basis of s. 8.  The Court of Appeal held that the accused was "detained" by the police when the car was stopped and "when he was directed to face the wall and place his hands on it and when he submitted to the search".  He was informed of his right to counsel upon arrest but the issue was whether he was entitled to retain and instruct counsel prior to the search.  On this issue, Martin J.A. adopted Morden J.A.'s ruling in R. v. Kelly (1985), 17 C.C.C. (3d) 419, that a right to counsel "without delay" did not mean "immediately".  Morden J.A. pointed out as well that the relevant interest protected by s. 10(b) is "that of not prejudicing one's legal position by something said or done without, at least, the benefit of legal advice".  Martin J.A. concluded that the conduct of the on-the-spot search did not prejudice the interest of the accused protected by s. 10( b )  of the Charter .  Not only might it be dangerous to postpone searches until a suspect can consult with counsel (as in cases where the suspect might be carrying a weapon) but postponing a search for drugs until counsel arrives would require the suspect to be kept in close custody and under close observation during the intervening period.  Martin J.A. stated at p. 228:

 

    This would be necessary to ensure that he or she did not dispose of any prohibited drugs.  The adoption of such a course could not be of any benefit to the respondent and might very well be more intrusive than an on-the-spot search of the kind that occurred here.  This on-the-spot search, if it had failed to disclose he was in possession of a drug, might have resulted in DeBot's immediate release.

 

    Martin J.A. also adopted the proposition of the Manitoba Court of Appeal in R. v. Guberman (1985), 23 C.C.C. (3d) 406, that a search by police for physical evidence is distinguishable from circumstances in which an accused is being asked to incriminate himself, either verbally or by providing a breath sample, as occurred in R. v. Therens, [1985] 1 S.C.R. 613.  Martin J.A. quotes the following passage from R. v. Guberman with approval at p. 229:

 

    The search of the accused was part of a continuing investigation to find physical evidence.  There were no options open to the accused upon which he might require the advice of counsel prior to the search.  He was not being asked to provide evidence which might prove incriminating such as a statement or a breath sample.  The immediate advice he required was with respect to his entitlement to release and how to achieve it.

 

    In these last respects the present case is very different from cases involving breathalyzers, such as R. v. Therens . . . . In breathalyzer cases an accused has an option as to whether or not he should blow and is entitled to advice as to the grounds on which he might refuse and the consequences of doing so . . . . The Charter right to retain and instruct counsel must be construed in a manner consistent with its purpose, to enable an accused person to obtain advice as to his rights in the circumstances in which he finds himself and assistance in exercising those rights.  This cannot extend to matters such as a physical search for narcotics to which the accused is obliged to submit and which no amount of advice or legal assistance would deter.  [Emphasis added.] 

 

Martin J.A. concluded, at p. 229, that s. 10( b )  of the Charter  does not contemplate the exercise of the right to counsel "prior to a lawful and reasonable on-the-scene search incident to a lawful arrest."

 

    In light of his conclusions with respect to s. 8 and s. 10(b), Martin J.A. dealt with exclusion of the evidence under s. 24(2) very briefly.  He corrected the trial judge's placement of the onus and stated that the "onus was on the person seeking to exclude the evidence to establish on a balance of probability that its admission would bring the administration of justice into disrepute".  He then stated that if the accused's Charter  rights were infringed in this case such infringement did not require the exclusion of the evidence.

 

4.  Analysis

 

    In R. v. Collins, [1987] 1 S.C.R. 265, Lamer J. stated, at p. 278, that a search will be reasonable "if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable".

 

    A warrantless search for controlled drugs is expressly authorized by s. 37 of the Food and Drugs Act.  The appellant does not challenge the statutory standard of "reasonable belief" contained in that provision.  Rather, he alleges that this standard was not met by the police in this case and that the search is therefore unreasonable under s. 8.  The respondent Crown did not argue that s. 37, either by necessary implication or through its operating requirements, is irreconcilable with the s. 8 or s. 10(b) rights and is accordingly a limit on those rights which is "prescribed by law" under s. 1.  Therefore, this Court must proceed from the position that s. 37 of the Food and Drugs Act is compatible with both ss. 8  and 10( b )  of the Charter .  The questions to be addressed under s. 37 are whether the officer had a "reasonable belief" that the appellant was in possession of a controlled drug and whether the search was carried out in a reasonable manner.  In order to facilitate discussion of the consequences of a s. 10(b) violation on the reasonableness of a search I propose to deal with the right to counsel issue first.

 

The Right to Counsel

 

    In R. v. Therens, Le Dain J. provides a definition of "detention" for purposes of s. 10(b) which has been adopted by this Court.  At pages 641-42 of his judgment Le Dain J. writes:

 

    In determining the meaning that should be given to the word "detention" in s. 10  of the Charter  it is necessary to consider the purpose of the section.  This is the approach to the interpretation and application of the Charter  that was affirmed by this court in Hunter v. Southam Inc. . . .

 

    The purpose of s. 10  of the Charter  is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay.  The situations specified by s. 10 -- arrest and detention -- are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel.  In its use of the word "detention", s. 10  of the Charter  is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

 

    In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10  of the Charter  when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.  [Emphasis added.]

 

    It is clear from R. v. Therens, as well as from subsequent decisions of this Court, that when police officers stop a car and order one of the occupants to stand "spread eagle" against a wall, that person is "detained" within the meaning of s. 10:  R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Strachan, [1988] 2 S.C.R. 980.  In light of the fact that the arresting officers were instructed in advance to stop and search the car and its occupants I would find that the appellant was detained from the time he was approached by Constable Birs.

 

    In earlier decisions of this Court in which s. 10(b) violations were found to have occurred the function that counsel could have provided to the accused had he or she been informed of the right to counsel without delay was discussed.  In R. v. Simmons and R. v. Jacoy the accused were searched by customs officers without being informed of their right to seek a second opinion on the reasonable cause issue from a magistrate, justice of the peace, or senior customs officer.  It is clear from the majority judgments of the Chief Justice in these cases, however, that the ability of counsel to inform the accused of their options under s. 144 of the Customs Act, R.S.C. 1970, c. C-40, was only one factor leading to the conclusion that their right to counsel had been violated.  In R. v. Simmons the Chief Justice stated at pp. 530-31:

 

What is clear is that the appellant was unsure of the officers' authority.  Although she complied with their demands throughout, at one point during the search she asked whether it was really necessary for her to comply.

 

    It is clear from the foregoing that the right to counsel has an important impact on the execution of the search.  Had the appellant been informed of her right to counsel at the point she was detained, and she availed herself of that right, the appellant would have had the benefit of legal advice.  Counsel could have dispelled the appellant's uncertainty surrounding the search procedure by explaining the content of ss. 143 and 144 and assuring the appellant of the officers' right to insist she remove her clothing.  Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search.  [Emphasis added.]

 

    The Chief Justice in this passage from his reasons focusses on the inherent benefit of knowing one's legal rights and obligations and the value of having counsel available to dispel uncertainty and provide assurance to the suspect that the officers do have the authority they are seeking to assert.  Counsel's role, therefore, is not limited to advising a suspect of his or her options where such options exist.  It is broader than that.

 

    A good example of this broader perspective is found in R. v. Strachan where police executed a validly issued search warrant on the accused's residence but did not permit the accused to contact his counsel until after the search had ended and the accused had been taken to the police station.  The majority of the Court held that the accused's right to counsel had been violated as of the time the police located the restricted weapons and unknown parties in the accused's apartment.  While concurring in the ultimate disposition of the appeal I was of the view that the s. 10(b) violation commenced from the moment the accused was arrested and prevented from calling his lawyer.  The salient point, however, is that the Court did not view the answer to the question whether counsel could have been instrumental in averting the search as determinative of whether the right to counsel had been violated.  Indeed, the Court unanimously held in R. v. Strachan that the search warrant was validly issued and that the police were entitled to search the apartment.  It found that the right to counsel had been violated nonetheless.  It is accordingly, in my view, no answer to an alleged breach of the s. 10(b) right that counsel could not have prevented the search in any event.

 

    In sum, nothing in this Court's approach to s. 10(b) lends support to a definition of detention that is contingent on a hypothetical assessment of the utility of counsel in precluding the discovery of real evidence.  Any submission that the appellant did not "reasonably require the assistance of counsel" (R. v. Therens) because counsel could not have prevented the search in any event must therefore fail.

 

    Section 10(b) also instructs the police to inform a detainee of his or her rights to counsel "without delay".   As I have stated elsewhere, the phrase "without delay" does not permit of internal qualification:  R. v. Strachan; R. v. Simmons; R. v. Jacoy.  As I pointed out in R. v. Jacoy and R. v. Strachan, the phrase does not mean "at the earliest possible convenience" or "after police `get matters under control'", or even "without reasonable delay"; to which I add here that "without delay" likewise does not mean "after police have had a chance to search the suspect".  In R. v. Strachan, I suggested at p. 1013 that there may be "situations in which the police for their own safety have to act in the heat of the moment to subdue the suspect and may be excused for not pausing to advise the suspect of his rights and permit him to exercise them ...."  See also R. v. Manninen, [1987] 1 S.C.R. 1233.  In my view, time spent in legitimate self-protection is not an example of the "delay" which has to be justified within a s. 10(b) analysis.  The police are not deliberately forestalling advising a suspect of his or her s. 10(b) rights when they could be going ahead.  They are not expected to go ahead with undue risk to their own lives or safety.  However, there was no suggestion in the present case that the police did not inform the appellant of his right to counsel upon detention because of an apprehension of immediate danger.  The appellant was not violent or obstructive and the police do not appear to have suspected him of possessing a weapon.

 

    The Ontario Court of Appeal took the view that conducting a drug search prior to advising a detainee of his right to counsel was analogous to conducting a weapons search prior to advising a suspect of his right to counsel.  With respect, I think the analogy is unsound.  In the latter case, the legitimate motive of the police is safety and self-preservation.  In the former, the police motivation for the delay is the concern to preserve incriminating evidence which they fear the suspect will try to destroy or dispose of.  I see no analogy between these two justifications for not advising a person of their rights immediately upon detention.  The police are, of course, entitled to take whatever steps they think are required to prevent the suspect from destroying incriminating evidence but this does not include a violation of the suspect's Charter  rights.

 

    Martin J.A. correctly observes that drugs are easily disposed of and, if the right to counsel arises before a drug search, the police may have to keep suspects who want to exercise their s. 10(b) rights "in close custody and under close observation" until counsel can be contacted.  I agree that such procedures may cause great inconvenience to the police and may in the end prove more intrusive to the suspect than the "on-the-spot" search.  Nevertheless, it is not for the police, or for this Court, to waive the rights guaranteed to the appellant by s. 10(b); only he can make that choice.

 

    If there are to be limits on the right to counsel other than the limit required for the safety of the police, i.e., if there are to be qualifications put upon the words "without delay" in s. 10(b), then it seems to me that they must be supported under s. 1  of the Charter .  The respondent Crown, as already mentioned, did not submit that a limitation on the right to counsel arises by necessary implication from the terms of s. 37 of the Food and Drugs Act, or from its operating requirements:  R. v. Therens (per Le Dain J.)  As a consequence it is neither possible nor necessary for the Court to consider here whether an on-the-spot drug search prior to advising a detainee of the right to counsel is a limit on s. 10(b) "prescribed by law" which is reasonable and demonstrably justified under s. 1.  I find, therefore, that the appellant was detained and not informed of his right to counsel without delay contrary to the express words of s. 10( b )  of the Charter .

 

Unreasonable Search

 

    As noted earlier, the appellant does not challenge the constitutionality of s. 37 of the Food and Drugs Act.  He alleges rather that the search was carried out in an unreasonable manner because the police did not have "a reasonable belief" that the appellant was in possession of a controlled drug when the decision to search him was made.  The trial judge's assessment of the evidence led him to conclude that reasonable grounds for the search did not exist.  Martin J.A.'s assessment led the Court of Appeal to the opposite conclusion.

 

    The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly.  I agree with Martin J.A. that the appropriate standard is one of "reasonable probability"  rather than "proof beyond a reasonable doubt" or "prima facie case".  The phrase "reasonable belief" also approximates the requisite standard.

 

    Another preliminary issue raised on the facts before us is who exactly in the police department (if anyone) actually had reasonable grounds for the search.  Martin J.A. held that Constable Birs, the officer who actually performed the search, had reasonable grounds based on the following three pieces of evidence:  (1) Constable Gutteridge had relayed the informant's tip to Constable Birs; (2) Constable Birs received a radio message from Sergeant Briscoe stating that the appellant's car bearing licence No. KP 7409 was leaving the Carpenter residence; and, (3) Constable Birs was aware of the appellant's reputation as a drug user and trafficker.

 

    The Court of Appeal further suggested, at p. 221, that Constable Birs could also have relied on the order from his superior officer, Sergeant Briscoe, to stop and search the appellant.  In my opinion, Constable Birs must rely on Sergeant Briscoe's order.  Since the decision to stop and search the appellant was made by Sergeant Briscoe and not by Constable Birs, it is immaterial, in my view, what knowledge Constable Birs had when executing Sergeant Briscoe's request.  Constable Birs was simply following orders; he had no decision to make upon which to bring his own knowledge and belief to bear.  It would have made no difference had he known nothing about the case and had merely been on patrol in the area at the opportune time.

 

    The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched.  That officer may or may not perform the actual search.  If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so.  Of course, this does not prove that reasonable grounds actually existed.  It does make clear, however, that the pertinent question is whether Sergeant Briscoe and not Constable Birs had reasonable and probable grounds.  Regrettably and inexplicably, Sergeant Briscoe did not testify at the appellant's trial.  The record only indicates what he was told by others who did testify.  We are left in the unsatisfactory position of having to construct the grounds on which Sergeant Briscoe made his decision from the testimony of those who supplied him with the relevant information.

 

    It appears that the only piece of evidence originating from Sergeant Briscoe himself was the fact that the licence plate number of the Ford Bronco parked in front of the Carpenter residence matched a vehicle registered in the appellant's name.   The remainder of the evidence came from other officers.   The informant's tip was conveyed to Sergeant Briscoe by Constable Gutteridge and the activities in front of the Carpenter residence were transmitted on police radio from Constable MacLaughlan to Constable Briscoe.  Given Sergeant Briscoe's failure to testify, his direct knowledge of the appellant's reputation cannot be presumed either.

 

    In Eccles v. Bourke, a pre-Charter case decided by this Court, Dickson J. (as he then was) held that hearsay evidence communicated by one officer to another may contribute to establishing probable cause.  The principle was applied more recently by this Court in the Charter  case of R. v. Collins.  In the present case, the tip from the confidential source was hearsay in Sergeant Briscoe's hands.  While Sergeant Briscoe was entitled to assume the authenticity of Gutteridge's report of his conversation with the informant, the value of the evidence in establishing reasonable and probable grounds must also take into account the credibility of the informant, whether or not Sergeant Briscoe himself had any personal knowledge of the source.

 

    In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.  First, was the information predicting the commission of a criminal offence compelling?  Second, where that information was based on a "tip" originating from a source outside the police, was that source credible?  Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?  I do not suggest that each of these factors forms a separate test.  Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness.  Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

 

    With respect to the first aspect, the following data was relied on by the police in deciding to investigate the activities of the appellant:  (1) Constable Gutteridge had received information predicting a drug transaction between Carpenter, List and the appellant at the Carpenter residence on the evening of February 26, 1985; (2) the informant claimed to have acquired this knowledge directly from one of the actors; (3) the appellant had a prior conviction for a drug offence, albeit a minor one; (4) the other two participants in the transaction had convictions for narcotics related offences; (5) all three were reputed to be drug users and traffickers.

 

    I find that the information received by Constable Gutteridge was sufficiently specific to warrant the attention of the police.  The informant identified the participants and the courier, named the location of the transaction, and specified the time of day when the event would take place.  He also gave the basis for his assertions, namely a conversation with one of the participants.  The information did not take the form of bald conclusory statements or "mere rumour or gossip" to use the words of Martin J.A. at p. 219.

 

    The significance of the past record and reputation of the appellant, as well as the background of the other participants, presents a more difficult problem.  It is surely beyond question that reputation alone would never provide reasonable grounds for a search.  The appellant, however, objects to any use of reputation as a relevant factor.  He relies on the United States decision in Spinelli v. United States, 393 U.S. 410 (1969), for the proposition that it offends public policy to use reputation to give additional weight to allegations that would otherwise be insufficient to establish reasonable grounds for a search.

 

    I am sensitive to the argument advanced by counsel for the appellant that the reputation of a suspect should not be used to buttress an otherwise insubstantial case for searching a suspect.  At the same time I find it difficult to accept the proposition that the past activities of a suspect are irrelevant.  Indeed, as Martin J.A. points out at pp. 220-21 of his judgment:

 

    Evidence of bad character or prior criminal misconduct by an accused is excluded at his or her trial on a criminal charge, not on the ground that the evidence has no probative value, but on policy grounds, because the prejudicial effect of such evidence outweighs its probative value.

 

    These policy reasons are obviously not as cogent at the investigatory stage where the liberty of the subject is not directly at stake.  Moreover, I think it is somewhat artificial to assume that any one factor, be it reputation or something else, is responsible for turning a previously "insubstantial" case into a sufficient one.  Having said that, I add the following caveats to the use of reputation as germane to the issue of a reasonable search.  First, the reputation of the suspect must be related to the ostensible reasons for the search.  A background of driving offences, for example, has little relevance to drug trafficking.  Second, if the reputation of the suspect is based on hearsay rather than police familiarity with the suspect, its veracity cannot be assumed.  In the present case, it appears that the police relied on both direct experience and hearsay.  On the occasion leading to the appellant's conviction for possession of marijuana Constable Gutteridge executed a search warrant on the appellant's residence in which he testified to having found "marihuana .... traces of speed, scales, debt list, smoking pipes, packaging material, baggies, that sort of thing".  He also testified to finding his name on the phone list of another person on whose residence a search warrant was executed and drugs were found.  Constable Gutteridge further claimed that he had received information from "other confidential sources" to the effect that the appellant was a user and trafficker in speed.  The record does not indicate anything about the reliability of the sources who informed the police of the appellant's reputation; for that reason I am inclined to give greater weight to Constable Gutteridge's first hand observations.

 

    The informant whose credibility is most critical, of course, is the one who provided the details of the anticipated transaction.  At trial, Constable Gutteridge testified that this source was not paid for his information and had no outstanding charges or investigation pending against him.  The officer stated that he had received information in the past from this source about the activities of traffickers in general in Wallaceburg which the police had corroborated through surveillance.  Information from this source had once led to a search warrant's being executed on an apartment at which a quantity of speed (less than anticipated) and marijuana were located along with scales and debt lists.  Moreover, Constable Gutteridge testified that he had seen the informant and Carpenter together on at least three or four occasions which lends some support to the informant's claim that he received the information about the anticipated transaction directly from Carpenter.  These pieces of evidence tend to validate the decision to treat the informant as credible.  Different considerations would, of course, apply in situations where the police rely on an anonymous tip or on an untried informant.  In such circumstances the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source.

 

    Turning to the evidence yielded by police surveillance, it appears that the police were able to confirm the arrival of the appellant's vehicle at the location of the anticipated transaction (Carpenter's residence) in the evening as expected.  Police also observed what they thought might be a drug transaction between a man who had left the Carpenter residence and a woman in a bar.

 

    The primary gap in the evidentiary foundation is the failure of the police to actually spot the courier who was supposed to deliver the drugs.  The police also failed to find Gerry List, the third participant in the alleged transaction, although his vehicle was spotted in the Wallaceburg area (he apparently resided in Chatham).  Another deficiency pointed out by counsel for the appellant is the fact that the police did not identify the appellant entering or leaving the Carpenter residence, although it was confirmed that the Ford Bronco that arrived and departed from there belonged to him.

 

    With respect to this last point, I have no hesitation in concluding that in the circumstances of the case the police were entitled to infer that the appellant was in his own vehicle when it was intercepted.  On the other hand, I think little significance can be attached to the testimony of Constables Birs and L'Heureux regarding a possible drug transaction at the bar.  Their observations are highly speculative and of little probative value, especially since the courier was not identified as one of the parties and the alleged transaction was not part of the anticipated sequence of events.  Moreover, there was no testimony confirming that they had conveyed their impressions to Sergeant Briscoe so that it is impossible to know whether it was a factor in Sergeant Briscoe's decision.

 

    The failure of the police to spot the courier is the most serious deficiency in the corroborative evidence of the police.  In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.  As I noted earlier, however, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater.   Having regard to the quality of the information and the reliability of the informant in this case, I am satisfied that the police surveillance yielded sufficient corroborative evidence to warrant the belief that a drug transaction had occurred.  Absent a consideration of the impact of the s. 10(b) violation on the reasonableness of the manner in which the search was conducted, I would conclude that the police had reasonable and probable grounds to search the appellant under the authority granted to them under s. 37 of the Food and Drugs Act.

 

    Having so concluded, it is unnecessary to decide whether the search could also be justified as incidental to a valid arrest.

 

Interaction of ss. 10(b) and 8

 

    I have elsewhere expressed my doubts that a search conducted in the face of a Charter  violation can be a reasonable search:  R. v. Simmons;  R. v. Jacoy; R. v. Strachan.  I propose here to comment further on what I referred to in R. v. Jacoy as the "mutually reinforcing" nature of the right to counsel and the right to be secure against unreasonable search.

 

    I start with the proposition that a monopoly on the use of certain types of power is a sine qua non of a legitimate government and its agents.  With few exceptions only the state can detain persons against their will, enter homes without permission, forcibly subject someone to a search, and send people to prison.  The intrusiveness and coercive nature of these procedures should not be underestimated.  The legal rights guaranteed by the Charter  are designed inter alia to circumscribe these coercive powers of the state within the boundaries of justice and fairness to the individual.  They are the most formidable defences the individual can marshall against abuses of state power. 

 

    The detained individual, however, cannot be assumed to be fully apprised of all his or her Charter  rights at the critical moment.  Without that knowledge a detainee may fail to exercise the rights he or she has or, by the same token, attempt to resist in a mistaken belief that the police conduct is not lawful when it is.  It should be apparent that the police are not the appropriate ones to provide legal advice regarding the legitimacy of their own actions.  An individual must rely on counsel to supply the vital information.  Indeed, it is instructive to note that the only Charter  right the police must inform a detained or arrested person of is the right to counsel.  Should that right be exercised, it becomes the role of counsel to inform and advise the client of his or her other legal rights and obligations in the circumstances.  In this way, the right to counsel is for the suspect the key which opens the door to all his or her other legal rights.  As I observed in R. v. Jacoy, at p. 563, "The right to counsel is surely the main safeguard to the citizen that his or her other rights will be respected."

 

    In the present case the substantive legal right we are concerned with is the right to be secure against unreasonable search or seizure.  In my view, the question of whether a denial of the right to counsel renders a search unreasonable depends on two factors:  (1) the source of authority for the search; and, (2) the invasiveness of the search.

 

    In Hunter v. Southam Inc., this Court first addressed the meaning of s. 8  of the Charter .  Speaking for a unanimous Court, Dickson J. stated at p. 160 that the purpose of s. 8 was to "protect individuals from unjustified state intrusions upon their privacy."  To that end the ideal method of preventing unjustified searches was held to be prior authorization in the form of a warrant issued by a person capable of "acting judicially" who could assess the competing interests of the state and the individual "in a neutral and impartial manner".  Obviously, it is not always feasible to obtain a search warrant before a search.  Thus, in certain limited situations the police are permitted to conduct warrantless searches when they have satisfied legislative and constitutional criteria.  The search for controlled drugs pursuant to s. 37 of the Food and Drugs Act is one such example.

 

    One cannot ignore, however, the risks inherent in authorizing the police to balance their own interests against those of the individual when deciding whether to conduct a search.  The right to counsel is obviously more critical in cases where the decision by the police to search has not been subject to scrutiny by an independent party.  In such cases the risk that the privacy interest of the individual will not be accorded its full weight is greater.  Consequently, the failure to advise an individual of his or her right to counsel detracts more from the reasonableness of a warrantless search than from a search subject to prior authorization.

 

    The second factor I have identified as relevant is the invasiveness of the search.  Any involuntary search undertaken by the state is necessarily coercive.  Searches vary, however, in the extent to which they invade the privacy of the individual.  To take an obvious example, a body cavity search is clearly more invasive than a search of one's automobile.   The more invasive the search, the greater the assault on one's dignity.  To the extent that counsel can provide reassurance and advice to a person who may be subjected to a highly invasive procedure and perhaps even prevent an unjustified search, his or her presence can mitigate the impact of the intrusion on the individual's physical and psychological integrity.

 

    The appellant in the present case was subjected to a warrantless "frisk" search.  The fact that the appellant was denied his s. 10(b) right to counsel prior to a warrantless search militates, in my view, against the reasonableness of the search.  On the other hand, a "frisk" search is probably the least intrusive means of searching someone's physical person.  There is no suggestion that the search in this case was accompanied by mistreatment or undue force by the police.

 

    In my opinion, the considerations I have mentioned are very relevant in assessing the reasonableness of a search conducted under s. 8  of the Charter  especially in light of the fact that they arise from another independent Charter  right, the right to counsel.  In a case such as the present the interaction of the two sections must be considered.  As I indicated earlier, the two are "mutually reinforcing".  Nevertheless, the two factors I have identified as relevant in determining whether a denial of the right to counsel renders a search unreasonable point in opposite directions in this case.  While the failure to accord the appellant his s. 10(b) rights militates against the reasonableness of the warrantless search, the minimal nature of the invasion of his privacy from the "frisk" type search militates in favour of its reasonableness.  On balance, I find that a weighing of these factors tends to confirm my preliminary view that the search of the appellant in this case did not constitute a violation of s. 8  of the Charter .

 

Section 24(2)  of the Charter 

 

    Having found that the respondent's s. 10(b) right to counsel was violated, I turn to the remaining question in this appeal, namely whether the  appellant can discharge his onus of proving that the evidence should have been excluded under s. 24(2)  of the Charter .

 

    In R. v. Collins, Lamer J. identified the factors to be considered in deciding whether the admission of evidence would bring the administration of justice into disrepute.  These factors have been applied by the Court in several cases:  R. v. Simmons; R. v. Jacoy; R. v. Strachan.  In R. v. Jacoy the Chief Justice summarized them briefly at pp. 558-59:

 

    To reiterate briefly the criteria set out in Collins, Lamer J. speaking for the majority grouped the factors relevant to the determination into three groups.  First, the court must consider whether the admission of evidence will affect the fairness of the trial.  If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" (p. 284).  One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter  violation, its admission will rarely render the trial unfair.

 

    The second set of factors concerns the seriousness of the violation.  Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter  violation.

 

    Finally, the court must look at factors relating to the effect of excluding the evidence.  The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter  was trivial.  While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible.

 

    The evidence produced by the search conducted following the denial of the appellant's s. 10(b) rights was approximately one ounce of speed.  It was real evidence the existence of which was totally unrelated to the Charter  violation.  Unlike an incriminating statement it was not engendered by conscripting the appellant against himself.  Its admission would not render the trial unfair.

 

    With respect to the second set of considerations, there is no evidence to suggest that the police acted in bad faith in thinking that it did not have to read the respondent his s. 10(b) rights before searching him.  Constable Birs advised the appellant of his right to counsel immediately upon arrest and advised him of it again when they reached the police station.  I accept the submission of the Crown that the on-the-spot search of the appellant was motivated by the fact that drugs are readily disposed of and that the evidence might be lost if the appellant was not searched right away.  Whether the police were right or wrong in concluding that this was a valid reason for not reading the appellant his rights "without delay" does not affect the issue of their bona fides.

 

    I also conclude that the admission of the evidence in this case would not bring the administration of justice into disrepute.  While the denial of the appellant's right to counsel was certainly not trivial, it seems to me that the "interests of truth" and the "integrity of the judicial system" referred to by the Chief Justice in R. v. Simmons, at p. 534, would be better served by the admission of the evidence than by its exclusion.

 

    For all the foregoing reasons I would dismiss the appeal.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    SOPINKA J. -- I have read the reasons of my colleagues Justice Lamer and Justice Wilson.  I agree with their disposition of the appeal.  Subject to the qualification expressed in the reasons of Lamer J., I agree with the conclusion of Wilson J. that no violation of s. 8  of the Canadian Charter of Rights and Freedoms  occurred in this case.

 

    With respect to the alleged violation of s. 10(b), Wilson J. has concluded that there has been a violation, and s. 1 cannot be considered because the Crown did not seek to invoke this provision.  Lamer J. is of the view that while the appellant had the right to be informed of the right to retain and instruct counsel, the police were not obliged to suspend the search until an opportunity to retain counsel was afforded to the appellant.  In my opinion, there was in this case no obligation to advise the appellant of his right to counsel before completing the "frisk" search.  While in a practical sense, my position and that of Lamer J. both result in the search proceeding immediately, there is this significant difference.  In my view, there is no Charter  violation while in his there is.  If a breach of s. 10(b) has occurred, it is necessary to consider the remedy for the breach under s. 24(2).

 

    This difference is sufficiently important for me to explain briefly the basis for my opinion.  I have difficulty in appreciating what purpose is served in advising a detainee of a right which is then immediately suspended while the police conduct a search.  The considerations which justify a postponement of the obligation to afford the detainee a reasonable opportunity to consult counsel apply equally to the obligation to tell him or her of the right.  I agree with the statement by Martin J.A. in the Court of Appeal ((1986), 30 C.C.C. (3d) 207, at p. 227) that:

 

    It necessarily follows that where the obligation to inform a person of his or her right to counsel arises, there is an obligation to afford that person a reasonable opportunity to consult counsel if he or she wishes to do so.

 

    If the circumstances surrounding a search incidental to an arrest do not lend themselves to the delay inherent in making counsel available, they are equally not conducive to the reading of rights from cue cards and the discussion which almost inevitably follows.

 

    This Court has recognized that s. 10(b) rights must be set aside in the interests of the protection of police officers where there is a possible presence of weapons.  See R. v. Strachan, [1988] 2 S.C.R. 980.  The withholding of s. 10(b) rights while co-ordination tests are administered to a motorist has been justified in order to enable reasonable grounds of impairment to be obtained to warrant a demand for a breathalyzer test.  See R. v. Saunders (1988), 41 C.C.C. (3d) 532, and R. v. Bonin (1989), 47 C.C.C. (3d) 230.  In the latter case, this Court refused leave to appeal (October 19, 1989, Bulletin of Proceedings, p. 2435).  It has been recognized, therefore, that the right to retain and instruct counsel without delay is not absolute.  I see no reason why the right to be informed of the right should be accorded different treatment.

 

    Furthermore, if the right to be informed can be breached where the right to retain and instruct counsel is suspended, what possible remedy can be applied?  What are the consequences for the administration of justice from a failure to be told of a right that cannot be exercised?  In the absence of any discernible purpose in advising the appellant of a right which he cannot enjoy, the application of s. 10(b) suggested by Lamer J. does not seem to accord with the purposive approach to the interpretation of the Constitution which we have adopted.

 

    I therefore agree with Martin J.A. that there has been no breach of s. 10(b) and would dismiss the appeal.

 

    Appeal dismissed.

 

    Solicitors for the appellant:  Kerekes, Collins, Toronto.

 

    Solicitor for the respondent:  John C. Tait, Ottawa.