Lewis, R. v. (1998), 38 O.R. (3d) 540 (C.A.)

  • Document:
  • Date: 2018

Regina v. Lewis

[Indexed as: R. v. Lewis]

38 O.R. (3d) 540

[1998] O.J. No. 376

Docket No. C22385

Court of Appeal for Ontario

McMurtry C.J.O., Doherty and Rosenberg JJ.A.

January 30, 1998

 

 

Charter of Rights and Freedoms — Search and seizure — Police searching accused’s luggage at airport after receiving anonymous tip that person fitting accused’s description would be at airport with cocaine concealed in bottle — Totality of circumstances not providing police with reasonable and probable grounds to arrest accused or to search his luggage without warrant — Accused’s right to be secure against unreasonable search violated — Evidence of narcotics found in accused’s luggage not conscriptive — Accused’s expectation of privacy at airport reduced — Offence serious — Admission of evidence bringing administration of justice into disrepute — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Charter of Rights and Freedoms — Remedies — Exclusion of real evidence — Accused having luggage searched at airport following anonymous tip — Accused not being instructed of right to counsel before search — Accused’s rights under ss. 8 and 10(b) of Charter infringed — Drugs not conscriptive evidence nor found as result of conscriptive evidence — Expectation of privacy reduced at airport — Offence of possession of narcotics for purpose of trafficking serious and evidence essential to prosecution — Trial judge erring in excluding evidence of drugs — Admission of evidence not bringing administration of justice into disrepute — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

The accused was charged with possession of cocaine for the purpose of trafficking. The police received a tip from an anonymous source that a man with the accused’s name and matching his description would be taking a certain flight at a certain time accompanied by a two-year-old boy and would be carrying cocaine concealed in a bottle of wine or rum. After identifying the accused based on that description, the police officers escorted him to a baggage room and asked him if he had any drugs in his luggage. The accused opened one of his bags. The officer reached into the bag and removed a bottle of rum which contained almost a pound of 100 per cent pure cocaine.

The trial judge found that the accused’s rights under ss. 8 and 10(b) of the Canadian Charter of Rights and Freedoms were violated. He excluded the evidence of the cocaine under s. 24(2) of the Charter on the ground that the evidence would not have been found but for the illegal search and that its admission would render the trial unfair. He also found that the Charter breaches were serious and rejected the contention that the seriousness of the s. 8 violation was mitigated by the accused’s reduced privacy expectation at an airport. The accused was acquitted. The Crown appealed.

 

Held, the appeal should be allowed.

 

The totality of the circumstances must be considered in determining whether information provided by a tipster constitutes reasonable grounds for an arrest or a warrantless search. In cases like this one where the allegation relates to the possession of narcotics, the totality of the circumstances must be such as to raise a reasonable probability that the target is in possession of the suspected contraband at the time of the arrest or search. The totality of the circumstances encompasses factors which are relevant either to the accuracy of the specific information supplied by the tipster or the reliability of the tipster as a source of information for the police. Where, as here, the tip is provided by an unknown

first-time tipster who has not revealed how she has come to know about the alleged criminal activity, the value of the tipster’s information depends on the nature of that information and the extent to which the police are able to confirm that information before the arrest or search. Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search. The police in this case did not, objectively speaking, have reasonable grounds to search the accused’s luggage. Even if such objective grounds existed, it was clear that the police did not subjectively believe that they had reasonable grounds to make an arrest until after the rum bottle was discovered. Absent a subjective belief in the existence of reasonable grounds to make an arrest, the police had no right to arrest the accused even if reasonable grounds did exist.

While the police did not have reasonable grounds to arrest the accused, his detention was neither unlawful or arbitrary. The tip and the verification of the details in the tip provided the police with articulable cause to briefly detain the accused to investigate the allegations made by the tipster. However, the conclusion that the detention was a lawful exercise of the police investigative power did not, in the circumstances, absolve the police of their obligation to advise the accused of his right to counsel.

Police officers do not have a duty to advise a person of his right to refuse to consent to a search. However, if they do not do so, they run the risk that any apparent consent given will be found to be no consent for the purposes of s. 8 of the Charter. Where the police do not inform a person of the right to refuse to consent to a search, it will be open to a trial judge to conclude that the person was unaware of the right to refuse and could not, therefore, give an informed consent. The trial judge’s conclusion that the consent given by the accused to the search of his bag was an uninformed consent was not unreasonable.

The trial judge was correct in finding that the accused’s rights under ss. 8 and 10(b) of the Charter were violated. However, he erred in excluding the evidence under s. 24(2). The cocaine was not conscriptive evidence, and the fact that the accused, rather than a police officer, opened the bag did not render it conscriptive. Moreover, the cocaine was not discovered as a result of the obtaining of conscriptive evidence. The trial judge erred in law in holding that the admission of the cocaine would impair the fairness of the trial.

The trial judge also erred in failing to appreciate the effect of the accused’s reduced privacy expectations in determining the seriousness of the s. 8 breach. The accused had to know that his luggage could be examined and searched at random by state authorities for security purposes before it was placed or taken on the airplane. While the security personnel would be looking for things which might affect the safety of the air travellers and the police were looking for cocaine, the reason for the search did not materially affect the accused’s privacy expectation in the circumstances of this case.

In the circumstances, the police officers could reasonably have believed that the accused had consented to an examination of the contents of his bag. That belief, while not legitimizing the search, did reduce the seriousness of the s. 8 violation.

The cocaine was reliable evidence which was essential to the prosecution of a very serious crime. The exclusion of this kind of evidence exacts a heavy toll on the repute of the administration of justice. That consequence must be accepted where necessary to preserve trial fairness or where the Charter violations are sufficiently serious to demand the exclusion of the evidence. Trial fairness was not compromised in this case and the seriousness of the breaches was not of a magnitude which warranted the exclusion of this kind of evidence.

 

R. v. Belnavis (1997), 46 C.R.R. (2d) 272, 118 C.C.C. (3d) 405, 10 C.R. (5th) 65, 151 D.L.R. (4th) 443, 29 M.V.R. (3d) 1, 214 N.R. 161, 34 O.R. (3d) 806n (S.C.C.); R. v. Feeney, [1997] 2 S.C.R. 13, 44 C.R.R. (2d) 1, 115 C.C.C. (3d) 129, 7 C.R. (5th) 301, 146 D.L.R. (4th) 609, 212 N.R. 83, [1997] 6 W.W.R. 634; R. v. Stillman, [1997] 1 S.C.R. 607, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1, 144 D.L.R. (4th) 193, 185 N.B.R. (2d) 1, 472 A.P.R. 1, 209 N.R. 81, apld

R. v. Zammit (1993), 13 O.R. (3d) 76, 15 C.R.R. (2d) 17, 81 C.C.C. (3d) 112, 21 C.R. (4th) 86 (C.A.), consd

Draper v. United States, 358 U.S. 307 (1959); Illinois v. Gates, 462 U.S. 213 (1983); Massachusetts v. Upton, 466 U.S. 727 (1984); R. v. Plant, [1993] 3 S.C.R. 281, 17 C.R.R. (2d) 297, 12 Alta. L.R. (3d) 305, 84 C.C.C. (3d) 203, 24 C.R. (4th) 47, 157 N.R. 321, [1993] 8 W.W.R. 287, distd

 

Other cases referred to

 

R. v. Acciavatti (1993), 80 C.C.C. (3d) 109, 44 M.V.R. (2d) 66 (Ont. C.A.); R. v. Blackstock (1997), 10 C.R. (5th) 385, 30 M.V.R. (3d) 165 (Ont. C.A.); R. v. Borden, [1994] 3 S.C.R. 145, 24 C.R.R. (2d) 51, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147, 171 N.R. 1; R. v. Debot, [1989] 2 S.C.R. 1140, 45 C.R.R. 49, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129, 102 N.R. 161, 37 O.A.C. 1, affg (1986), 26 C.R.R. 275, 17 O.A.C. 141, 30 C.C.C. (3d) 207, 54 C.R. (3d) 120 (C.A.); R. v. Simpson, 12 O.R. (3d) 182, 14 C.R.R. (2d) 338, 79 C.C.C. (3d) 482, 20 C.R. (4th) 1, 43 M.V.R. (2d) 1 (C.A.); R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1, 105 N.R. 81, 37 O.A.C. 161; R. v. Wills, 7 O.R. (3d) 337, 9 C.R.R. (2d) 360, 70 C.C.C. (3d) 529, 12 C.R. (4th) 58, 34 M.V.R. (2d) 296 (C.A.)

 

Statutes referred to

 

Canadian Charter of Rights and Freedoms, ss. 8, 10(b), 24(2) Authorities referred to Cory, P., “General Principles of Charter Exclusion”, Paper presented at the National Criminal Law Programme 1997, Halifax, Nova Scotia.

 

APPEAL by the Crown from an acquittal on a charge of possession of cocaine for the purpose of trafficking.

 

Fergus C. O’Donnell, for the Crown, appellant. David M. Tanovich, for respondent.

 

The judgment of the court was delivered by DOHERTY J.A.: —

I

 

The respondent was found in possession of almost one pound of 100 per cent pure cocaine at the Pearson International Airport and charged with possession for the purpose of trafficking. The trial judge found that the respondent’s rights under s. 8 and s. 10(b) of the Canadian Charter of Rights and Freedoms had been violated and that s. 24(2) of the Charter required the exclusion of the cocaine from evidence. The respondent was acquitted and the Crown appeals.

The Crown submits that the respondent’s Charter rights were not infringed and that if they were, the cocaine should not have been excluded from evidence. I do not accept the first submission. On the trial judge’s findings, none of which are unreasonable, the respondent was subject to an unreasonable search and seizure and he was not informed of his right to counsel without delay after he was detained. I do, however, agree with the Crown’s second submission. The trial judge erred in law in his application of the principles governing the exclusion of evidence under s. 24(2) of the Charter. The cocaine should not have been excluded from evidence.

 

II

 

Constable Tischhart, of the R.C.M.P., was on duty at Pearson International Airport when he received an anonymous telephone call from a woman. After some preliminary discussion, she told Constable Tischhart that a clean-shaven, heavy-set black man named Keith Lewis would be taking a flight on Canada 3000 Airlines to Edmonton at about 3:00 p.m. the next day. The woman said that Mr. Lewis would be with a two-year-old boy and that he would be carrying cocaine concealed in a wine bottle or an Appleton rum bottle. The caller spoke clearly and rationally. She would not identify herself or give Constable Tischhart her telephone number. She did not describe her connection to Mr. Lewis or tell Constable Tischhart how she came to know the information she passed on to him. Constable Tischhart did not know who the caller was and had no way of identifying her. The conversation lasted about ten minutes.

Constable Tischhart and Constable Helowka, a member of the drugs squad assigned to the airport, confirmed that a Mr. D. Lewis was scheduled to fly to Edmonton on a Canada 3000 flight the next day. Constable Helowka was aware of two prior occasions when cocaine had been found secreted in an Appleton rum bottle. A CPIC check of the information provided by the tipster and an inquiry of the Edmonton police force yielded no further information. Constable Helowka testified that most anonymous telephone drug tips received at the airport do not result in the discovery of drugs.

The next day, Constables Tischhart and Helowka waited near the Canada 3000 ticket kiosk to see if a person named Lewis, matching the description given by the tipster, would show up for the Edmonton flight. At about 2 p.m., the respondent, who matched that description, arrived at the Canada 3000 ticket kiosk. A small boy was with him. The respondent was carrying a garment bag, a small carry-on black bag, and what appeared to be a hood ornament for an automobile. He gave his tickets to the Canada 3000 agent who then signalled the officers. They approached the respondent and asked him if they could speak to him in a more private setting. The respondent agreed to go with the officers and they walked to a small baggage room about 20 feet away. Constable Tischhart was in uniform and Constable Helowka was in plain clothes.

The respondent was very cooperative. Constable Tischhart told him that he was investigating a possible narcotics offence and that the respondent need not say anything, but that anything he might say could be given in evidence at a later time. Upon being told of the narcotics investigation, the respondent immediately said, “I have nothing on me . . . go ahead search me . . . please search me . . . go ahead search me I have nothing to hide.” He then lifted his shirt and pulled his pants down to his knees. The officers had not asked him if they could search his person and had no intention of doing so. They told the respondent not to remove his clothes.

Constable Tischhart asked the respondent for identification and he produced his driver’s licence and passport. Constable Tischhart then asked if he had any drugs in his luggage. The respondent immediately replied, “Go ahead search.” He picked up the black carry-on bag and opened the zipper. At this point he became visibly nervous. His hands twitched and he stuttered.

The officers looked in the bag and asked if it contained any breakables. The respondent replied “no”. The officers noticed what appeared to be a bottle wrapped in newspaper. Constable Helowka reached into the bag for the bottle at the same time as the respondent. The bottle was removed and the officers unwrapped it. It was a 26-ounce bottle of Appleton rum. The respondent began to shake “profusely”. He said that the bottle was a gift for his father in Edmonton from his cousin in Jamaica. Constable Helowka noticed crystals floating in the liquid in the bottle. This indicated to Constable Helowka that there were narcotics in the liquid. He performed a preliminary test on the liquid and concluded that it contained cocaine. The respondent was arrested, given his “Charter rights”, and taken immediately to the R.C.M.P. office on the next floor of the terminal where he was given an opportunity to contact a lawyer. He called his brother who apparently arranged for a lawyer. Subsequent tests showed that the bottle contained 425 grams of 100 per cent pure cocaine.

The respondent did not testify on the voir dire to determine the admissibility of the cocaine.

The trial judge made the following findings:

the respondent was detained when he accompanied the officers to the baggage room;

the officers were acting on suspicion and did not have reasonable and probable grounds to search or arrest the respondent prior to the discovery of the rum bottle;

the officers did not tell the respondent of his right to counsel until after his arrest;

there was no informed consent to search the bag given by the respondent because the officers did not tell the respondent that he had the right to refuse to consent to a search of his bag.

No issue is taken with the findings that the respondent was detained and was not told of his right to counsel until after his arrest.

I also do not understand the appellant to contend that the trial judge erred in law in finding that the respondent did not provide an informed consent to the search of his bag. The trial judge held that “the officers had a duty to inform the accused that he did not have to consent to the search”. In my view, the police are not under a “duty” to advise a person of the right to refuse to consent to a search in the sense that the failure to do so will amount to a violation of s. 8. Unlike s. 10(b) of the Charter, s. 8 does not contain an informational component. The failure to advise a person of the right to refuse to consent to a search may, however, lead to a violation of s. 8 where the police conduct can be justified only on the basis of an informed consent. It is well established that a person cannot give an effective consent to a search unless the person is aware of their right to refuse to consent to that search: R. v. Wills (1992), 7 O.R. (3d) 337 at p. 354, 9 C.R.R. (2d) 360 at pp. 376-77, 12 C.R. (4th) 58 at p. 78 (C.A.); R. v. Borden, [1994] S.C.R. 145 at p. 162, 24 C.R.R. (2d) 51 at p. 61, 33 C.R. (4th) 147 at p. 158; R. v. Blackstock, Ont. C.A., September 4, 1997 [reported (1997), 10 C.R. (5th) 385, 30 M.V.R. (3d) 165]. If the police do not tell a person of the right to refuse to give a consent to a search, the police run the very real risk that any apparent consent given will be found to be no consent at all for the purposes of s. 8: R. v. Wills, supra, at p. 353 O.R., p. 376 C.R.R., p. 77 C.R. Where the police do not inform a person of the right to refuse to consent to a search, it is certainly open to a trial judge to conclude that the person was unaware of the right to refuse and could not, therefore, give an informed consent. The trial judge’s conclusion that the consent given by the respondent to the search of the bag was an uninformed consent cannot be said to be unreasonable.

The appellant does challenge the trial judge’s finding that the police acted on mere suspicion. Counsel submits that the information provided by the tipster had been sufficiently confirmed by the police investigation to afford reasonable grounds to believe that the respondent was in possession of narcotics when he arrived at the Canada 3000 ticket kiosk. Counsel maintains that the police were entitled to arrest the respondent and conduct a search incidental to that arrest.

Most of the argument centred on the degree to which information provided by an anonymous tipster must be confirmed by independent sources or other investigative techniques before that tip can constitute reasonable grounds for an arrest or search. Crown counsel submitted that the trial judge erred in holding that the tipster’s information could only provide a basis for an arrest or search if the police confirmed the criminal aspect of the tipster’s information. Counsel urged that confirmation through investigation of many of the details of the information provided by the tipster could provide reasonable grounds even though the details confirmed did not go directly to the criminal component of the information provided by the tipster.

In determining whether information provided by a tipster constitutes reasonable grounds for an arrest or a warrantless search, the “totality of the circumstances” must be considered: R. v. Debot (1986), 26 C.R.R. 275 at pp. 284-85, 30 C.C.C. (3d) 207 at pp. 218-19 (Ont. C.A.), affirmed [1989] 2 S.C.R. 1140 at p. 1168, 45 C.R.R. 49 at pp. 71-72, 52 C.C.C. (3d) 193 at p. 215. In cases like this where the allegation relates to possession of narcotics, the totality of the circumstances must be such as to raise a reasonable probability that the target is in possession of the suspected contraband at the time of the arrest or search: R. v. Debot, supra, per Martin J.A. at p. 285 C.R.R., p. 219 C.C.C. (Ont. C.A.); per Wilson J. at p. 1166 S.C.R., p. 70 C.R.R., p. 213 C.C.C.

The totality of the circumstances encompasses factors which are relevant either to the accuracy of the specific information supplied by the tipster or the reliability of the tipster as a source of information for the police. Where, as here, the tip is provided by an unknown first-time tipster who has not revealed how she came to know about the alleged criminal activity, the value of the tipster’s information depends on the nature of that information and the extent to which the police are able to confirm that information before the arrest or search.

This tipster provided detailed information identifying the alleged perpetrator, the place and time of the alleged crime, and the particular means by which the crime would be committed. That detail tended to exclude the possibility that the tipster was merely relating rumour or gossip. Prior to the search of the respondent, the police confirmed many of the details provided by the tipster. The respondent was scheduled to fly to Edmonton on a Canada 3000 flight at the time indicated, he matched the description given by the tipster, and he was travelling with a young child.

Although the details provided in the tip and the confirmation of many of those details go some way to providing the requisite reasonable grounds, the danger in holding that they go the entire way is clear. Literally thousands of people go to the Pearson International Airport every day to fly to various destinations. No doubt, there are thousands more who are sufficiently familiar with a traveller’s plan to know the traveller’s flight, destination and who, if anyone, will accompany that traveller. Any one of those thousands could supply the police with exactly the same kind of information about any one of the thousands of travellers that this tipster provided about the respondent. It takes little imagination to conceive of situations in which a person familiar enough with another person to know his or her travel plans would also have a motive to falsely accuse that person of a serious crime. The risk of false allegations is particularly significant when the tipster is shielded by an absolute and impenetrable anonymity.

The Crown’s position comes down to this. If a person shows up at the airport and acts exactly as one would expect a normal traveller to act, that person is subject to arrest if an anonymous, unproven tipster has predicted that the person would attend at the airport in possession of cocaine and act like a normal traveller. I cannot accept that contention. Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search.

The present case is distinguishable from R. v. Plant, [1993] 3 S.C.R. 281, 17 C.R.R. (2d) 297, 84 C.C.C. (3d) 203, the authority most heavily relied on by the Crown. In Plant, the court had to decide whether information provided by an anonymous tipster was properly included as part of the reasonable grounds relied on to obtain a search warrant. The tipster had told the police that marijuana was being grown in a “cute” house at a certain geographic location. The tipster could not provide an address. Police recognizance, based on the tip, led them to the appellant’s house and a search warrant was eventually obtained. In holding that the information provided by the anonymous tipster was properly considered by the justice of the peace in deciding whether there were reasonable grounds to issue a search warrant, Sopinka J. said, at pp. 297-98 S.C.R., p. 310 C.R.R., p. 216 C.C.C.:

The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of the appellant’s residence and corroborate the report of the informant. I conclude that the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant. Therefore, I would not excise that piece of evidence from the warrant.

(Emphasis added)

Sopinka J. did not suggest that the tip, even as confirmed as to the location of residence, could justify a search. He said that it could form part of the reasonable grounds needed for a search warrant. In Plant, the additional information which completed the reasonable grounds consisted of public utility records showing that four times the normal amount of electricity was used at the residence. Such high levels of electrical consumption were said to be consistent with the hydroponic growth of marijuana. The data obtained from the records supported the tipster’s allegation that the residence was being used to grow marijuana. There is no independent confirmation of this tipster’s information which is analogous to the data provided to the police in Plant.

In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds. Nor does R. v. Zammit (1993), 13 O.R. (3d) 76, 15 C.R.R. (2d) 17, 81 C.C.C. (3d) 112 (C.A.), hold to the contrary. In Zammit, at p. 84 O.R., p. 25 C.R.R., p. 121 C.C.C., the court stressed that the information provided by the tipster which the police confirmed “would not in any way substantiate the allegation that the appellant was involved in drugs”. That observation was part of the court’s detailed assessment of the reliability of the information provided and did not fix independent substantiation of the tipster’s allegation of the criminal nature of the conduct as a prerequisite to the existence of reasonable grounds based on the tipster’s information. The fact that the confirmed information did not relate to the criminal nature of the activity was one of several features of the evidence which the court looked to in assessing the “totality of the circumstances”.

I also have no quarrel with the American authorities relied on by the Crown. They are, however, distinguishable. In Illinois v. Gates, 462 U.S. 213 at p. 243 (1983), the tipster’s information described a very unusual travel pattern involving two people which suggested a “pre-arranged drug run”. The police were able to confirm those details by surveillance before applying for a warrant. The respondent’s conduct in this case prior to his detention is indistinguishable from the conduct of thousands of persons who use the airport for entirely proper purposes.

In Draper v. United States, 358 U.S. 307 (1959), the tipster, who was well known to the police, had provided reliable information on several previous occasions. The tipster’s “track record” and the police verification of many of the details provided in the specific tip combined to provide the necessary probable cause. The tipster in this case was entirely unknown to the police.

Massachusetts v. Upton, 466 U.S. 728 (1984) is perhaps closer on its facts to this case than the other American authorities relied on by the appellant. However, in Upton, the police knew the identity of the tipster and she had specifically indicated that her tip was based on personal observation of the stolen property at the place named by her. Given her identity (the target’s former girlfriend), she was in a position to have made those observations. Those facts, combined with the confirmation of specific details of her tip, including confirmation of a related seizure of stolen property a few days earlier, provided a basis upon which the magistrate could reasonably conclude that probable cause had been made out. In this case, the police had no information as to the tipster’s connection to the respondent. The court’s holding in Upton was also based in large measure on deference to the decision of the magistrate who had concluded that reasonable cause had been shown. Here, deference works the other way. The trial judge concluded that there were not reasonable grounds for an arrest or search.

There is a further problem with the appellant’s submission that the police had reasonable grounds to arrest and search the appellant. Apart entirely from the existence of objectively discernible reasonable grounds for an arrest, the officer must also believe that he has reasonable grounds to make an arrest:

R. v. Storrey, [1990] 1 S.C.R. 241 at pp. 250-51, 47 C.R.R. 210 at p. 218, 53 C.C.C. (3d) 316 at p. 324; R. v. Feeney, [1997] 2 S.C.R. 13 at p. 33, 44 C.R.R. (2d) 1 at p. 14, 115 C.C.C. (3d) 129 at pp. 144-45. Constable Tischhart testified that he believed he had reasonable grounds to effect an arrest when the respondent had been identified, presumably when he gave his ticket to the agent at the Canada 3000 kiosk. Constable Tischhart had, however, previously testified on two occasions that he only had reasonable grounds to arrest after he discovered the rum bottle. Although the trial judge made no specific reference to this very significant change in the officer’s testimony, it is fair to infer from his finding that the police acted on suspicion only, that the trial judge rejected the officer’s revised version of when he believed he had reasonable grounds to effect an arrest. Absent a subjective belief in the existence of reasonable grounds to make an arrest, Officer Tischhart had no right to arrest the respondent even if reasonable grounds did exist: R. v. Feeney, supra.

The trial judge did not err in holding that the police did not have reasonable grounds to arrest or search the respondent when he arrived at the airport or when he accompanied them to the baggage room. I would not, however, go so far as the trial judge did and hold that the detention was unlawful and arbitrary. The tip and the verification of the details in the tip, while not amounting to reasonable grounds for arrest, did provide the officers with articulable cause to briefly detain the respondent to investigate the allegations made by the tipster: R. v. Simpson (1993), 12 O.R. (3d) 182 at p. 202, 14 C.R.R. (2d) 338 at p. 357, 79 C.C.C. (3d) 482 at p. 502 (C.A.). It was also appropriate for the police to conduct that investigation in a nearby private area rather than in the public part of the terminal.

The conclusion that the detention was a lawful exercise of the police investigative power does not absolve the police of their obligation to advise the detainee of his right to counsel. Without deciding whether every investigative detention requires compliance with s. 10(b), I would hold that this investigative detention, which encompassed a search of the respondent’s luggage, gave rise to an obligation that the police inform the respondent of his right to counsel: R. v. Debot, supra, per Lamer J. at p. 1146 S.C.R., pp. 54-55 C.R.R., p. 198 C.C.C. (S.C.C.). There was a violation of s. 10(b) of the Charter.

On the facts as found by the trial judge, the respondent was also subject to an unreasonable search and seizure. That search began with inquiries about the contents of the appellant’s luggage and proceeded immediately to a physical examination of those contents, retrieval of the bottle and examination of it. The search was a warrantless one, was not the incident of a lawful arrest, and was not preceded by an informed consent. It and the seizure which followed were unreasonable.

 

III

 

In considering whether the cocaine should be excluded from evidence, the trial judge observed that the admissibility of evidence obtained in a manner which infringed the Charter depended upon a consideration of the effect of the admission of that evidence on the fairness of the trial, the seriousness of the Charter violation, and the effect of exclusion of the evidence on the repute of the administration of justice. In addressing the effect of admitting the cocaine on the fairness of the respondent’s trial, the trial judge said:

Would the fairness of the trial be jeopardized? In my respectful view, the fairness of the trial would be irreparably affected. This evidence would not have been found but for the illegal search and seizure. Obviously it is real evidence but it would not inevitably have been found, certainly not on the record before me. According to the recent cases, if the fairness of the trial is irreparably damaged that ends the matter.

The trial judge’s reliance on a “but for” discoverability test is understandable given the state of the law at the time of the trial. Some cases in this court had adopted that approach: e.g., see R. v. Zammit, supra, at p. 87 O.R., p. 28 C.R.R., p. 124 C.C.C.; R. v. Acciavatti (1993), 80 C.C.C. (3d) 109, 44 M.V.R.(2d) 66 (Ont. C.A.). More recent decisions of the Supreme Court of Canada, however, have clarified the fair trial component of the s. 24(2) analysis. In R. v. Stillman, [1997] 1 S.C.R. 607, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, Cory J. identified the characterization of the challenged evidence as conscriptive or non-conscriptive as the primary task in the assessment of whether its admission would impair the fairness of the trial. He said, at pp. 652-53 S.C.R., pp. 218-19 C.R.R., p. 351 C.C.C.:

Thus, as a first step in the trial fairness analysis it is necessary to classify the type of evidence in question. Evidence to be considered under “fairness” would generally fall into one of two categories: non-conscriptive or conscriptive. The admission of evidence which falls into the “non-conscriptive” category will, as stated in Collins, rarely operate to render the trial unfair. . . . The key, then, is how to distinguish between “non-conscriptive” and “conscriptive” evidence. ory J. provided a definition of conscriptive evidence, at p. 655 S.C.R., p. 220 C.R.R., p. 353 C.C.C.:

Evidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples.

R. v. Stillman, supra, was applied in R. v. Feeney, supra, at p. 60 S.C.R., p. 33 C.R.R., p. 164 C.C.C., and R. v. Belnavis (1997), 46 C.R.R. (2d) 272 at p. 287, 118 C.C.C. (3d) 405 at p. 423 (S.C.C.). In both cases, conscriptive evidence was limited to evidence in the form of a statement, a bodily sample or evidence derived from the use of the accused’s body. In addition to evidence which is conscriptive by nature, other evidence found as a result of the obtaining of conscriptive evidence may also be regarded as conscriptive for the purposes of s. 24(2): R. v. Feeney, supra, at p. 61 S.C.R., p. 33 C.R.R., p. 165 C.C.C. These same cases make it clear that the discoverability of evidence tainted by a Charter violation becomes significant to its admissibility only if that evidence is otherwise properly characterized as conscriptive. The admission of evidence which is conscriptive but discoverable will not affect the fairness of the trial: R. v. Stillman, supra, at p. 665 S.C.R., p. 227 C.R.R., p. 360 C.C.C.; R. v. Feeney, supra, at pp. 63-64 S.C.R., pp. 33-34 C.R.R., pp. 165-66 C.C.C.

Mr. Tanovich, for the respondent, submits that when the respondent opened the bag for the police in the course of the search, he was conscripted to assist in obtaining the evidence in the bag. I cannot agree. The respondent was not compelled to open the bag and in opening the bag, he added nothing to the evidentiary value of the cocaine found in the bag. The respondent was not used in any relevant sense in the obtaining of the evidence, nor was he required to incriminate himself. I see no difference for fair trial purposes between a situation in which the police open the bag and a situation in which an accused opens the bag for the police. In either case, it is a police search and the evidentiary value of anything seized in the search has no connection to the accused’s physical involvement in the search. Mr. Tanovich’s submission would turn an inconsequential feature of the interplay between the respondent and the police into the determining factor in the characterization of the evidence as conscriptive or non- conscriptive. Cory J., in an extrajudicial observation, has also rejected the distinction urged by Mr. Tanovich: see P. Cory, “General Principles of Charter Exclusion”, Paper presented at the National Criminal Law Programme 1997, Halifax, Nova Scotia.

The cocaine did not come within any of the three types of conscriptive evidence identified in Stillman, Feeney and Belnavis and it was not discovered as the result of the obtaining of conscriptive evidence. The trial judge erred in law in holding that the admission of the cocaine would impair the fairness of the trial.

The trial judge also found that the Charter breaches were serious. In doing so, he concentrated almost exclusively on the violation of s. 8. The trial judge rejected the contention that the seriousness of the s. 8 violation was mitigated by the respondent’s reduced privacy expectation. He said:

It makes no difference, in my respectful view, that it happened in the lobby of the airport. The transgression is the same as if it happened on the street, in the accused’s driveway, in a mall, or any other place away from the airport.

The nature of the reasonable privacy expectation which is violated by an unconstitutional search is an important consideration in calculating the seriousness of the s. 8 breach. As Cory J., in R. v. Belnavis, supra, said, at p. 289 C.R.R., p. 424 C.C.C.:

Obviously, the degree of the seriousness of the breach will increase the greater is the expectation of privacy. Clearly the converse must also be true.

I cannot agree with the trial judge’s conclusion that the respondent’s expectation of privacy was not affected by the fact that he was in the airport and intending to board an airplane. The respondent had to know that his luggage could be examined and searched at random by state authorities for security purposes before it was placed or taken on the airplane. While the security personnel would be looking for things which might affect the safety of the air travellers and the police were looking for cocaine, I do not see why the reason for the search would materially affect the respondent’s privacy expectation in the circumstances of this case.

The trial judge suggested that, as the respondent had not entered the secured area of the airport and could have left at any time, his privacy expectations were not in any way reduced. Once again, I cannot agree. There is nothing in the record to suggest that the respondent had any intention of leaving the airport. He had purchased a ticket and given it to the agent. In my view, the only reasonable inference is that he intended to board the airplane and subject his luggage to the kind of state scrutiny which a traveller accepts as part and parcel of modern-day air travel.

In assessing the seriousness of the breach, the trial judge also observed that there was evidence indicating that the officers knew the accused had the right to be informed that he did not have to consent to the search and that they had not so informed him. As indicated earlier, I am not aware of a constitutional obligation on the police to inform a person of his right not to consent to a search, although a failure to provide that information may render any consent given ineffective. I also find no evidence to suggest that the officers believed that they were under an obligation to so inform the respondent. Although there was no informed consent to the search, I think the officers could reasonably have believed that the respondent was willing to have his bag searched. The police had made it clear from the outset that they were engaged in a narcotics investigation, and they told the respondent that he need not say anything to them. The respondent had been willing, indeed, insistent upon subjecting himself to a very intrusive body search. He had also immediately invited the police to search the bag when asked if there were any drugs in it. In all these circumstances, I think the officers could reasonably have believed that the respondent had consented to an examination of the contents of his bag. That belief, while not legitimizing the search, does reduce the seriousness of the s. 8 breach: R. v. Wills, supra.

The breaches of s. 8 and s. 10(b) were not inconsequential. I am satisfied, however, that the trial judge erred in law in failing to appreciate the effect of the respondent’s reduced privacy expectations in determining the seriousness of the s. 8 breach. I am also satisfied that he erred in law in his consideration of whether the police reasonably believed that the respondent was willing to let them search his bag.

The third factor to be considered in determining whether evidence should be excluded under s. 24(2) is the effect on the administration of justice of the exclusion of the proffered evidence. In this case, the cocaine was reliable evidence which was essential to the prosecution of a very serious crime. There can be no doubt that the exclusion of this kind of evidence exacts a heavy toll on the repute of the administration of justice. That consequence must be accepted where necessary to preserve trial fairness or where the Charter violations are sufficiently serious to demand the exclusion of the evidence. Trial fairness is not compromised in this case and the seriousness of the breaches is not of a magnitude which warrants the exclusion of this kind of evidence. The cocaine should not have been excluded.

 

IV

 

I would allow the appeal, set aside the acquittal and direct a new trial.

 

Appeal allowed.