November 29, 2010
The Supreme Court of Canada ("SCC") has granted leave to appeal in R v Bacon, 2010 BCCA 135, a case in which an accused British Columbia man says that his Charter rights were violated by police who found drugs and weapons in his house and car. The decision will be of significance as it will further clarify the state of the law with respect to the review standards necessary for determining the validity of search warrants.
How It Started
Jonathan Bacon, his girlfriend Rayleene Burton, and Godwin Cheng were arrested on August 4, 2005. Police believed they had just witnessed a drug deal be conducted between Bacon and Cheng. The interaction took place at an Abbotsford, British Columbia townhouse in which Bacon and Burton lived. Bacon, believed to be a member of the notorious “Red Scorpion” gang in British Columbia, had been under constant police surveillance after police had received multiple complaints from neighbours of frequent short visits by vehicles to the house.
After initiating the surveillance (but before the arrest) the police were certain the house was a drug transfer facility and applied for a search warrant. A Judicial Justice of the Peace (“JJP”) refused the search warrant, justifying his decision on the basis that the police lacked reasonable grounds to believe drugs would be found. The head investigator tried to get a warrant however, and was in the process of applying for one when he received a call from the surveillance officers on the case. Despite not having the warrant in hand, the head investigator instructed the surveillance officers to arrest Bacon. The warrant was subsequently approved as it was supported with evidence from the seizures incidental to the arrest.
On arrest, Chen’s vehicle was searched which led to the seizing of 500 grams of marijuana, 92 methamphetamine pills, 15 ecstasy pills, 4 packages of cocaine and $2,600 in cash. In Burton's vehicle, the police found $88,000. And finally, in the townhouse, officers discovered "24 pounds of prepackaged marijuana, score sheets, a quantity of cash, four firearms (two automatic and two semi-automatic), illegal ammunition, silencers, a bulletproof vest, a police uniform, and a police scanner," according to the appeal court ruling.
A Miscarriage of Justice At Trial
The issues at trial came down to the following problems.
(1) Were the arrests of Bacon and Cheng lawful?
(2) If the arrests of Bacon and Cheng were lawful, then did the product of the incidental search after the arrest provide an adequate basis for a valid search warrant of the house?
Gardner J. held that the arrest was unlawful. In order to justify this finding, he found that Constable Forster (the head investigator) did not have the necessary subjective belief that there were “reasonable and probable” grounds that an offence had been committed. The reasoning indicated that the denial of an initial search warrant meant that the Constable could not reasonably believe a second warrant was justified. Secondly, Gardner J. reviewed the validity of the search warrant and, ruling it invalid, set it aside, relying on R v Sismey, [1990] 55 CCC (3d) 281 (BCCA) [Sismey], which established a test for determining the validity of search warrants.
The Court of Appeal Finds the Arrest was Lawful
The law surrounding lawful arrests is fairly simple. For an officer to authorize an arrest, the officer must have a subjective belief that there are sufficient grounds for an arrest. According to the trial judge, receiving a report from his officers stating that they saw Cheng and Bacon handling boxes and a suspicious looking garbage bag did not give Constable Forster the necessary belief to order the arrest, despite the constable’s testimony that he believed a drug exchange had just taken place.
Donald J. at the Court of Appeal disagreed with the trial judge’s findings. On appeal, the Crown argued that the finding that a prior search warrant refusal precluded Constable Forster from having reasonable belief to authorize an arrest was incorrect. This argument was accepted by Donald J., who held that a prior warrant denial cannot bind anyone, since the police always have the option to make another application without regard to a previous decision (established in R v Duchcherer; R v Oakes, 2006 BCCA 171). Additionally, Donald J. convincingly wrote that police officers cannot be expected to alter their beliefs to conform with a JJP’s opinion. Instead, the validity of an arrest must be judged according to the well-established terms set out in R v Storrey, [1990] 1 SCR 241. This decision in itself led Donald J. to order a new trial for Bacon and Cheng.
The Court Goes on to Discuss the Search Warrant
In obiter, Donald J. pointed out the trial judge’s error in invaliding the search warrant. By relying on Sismey, the trial judge made a fundamental error since the case is now bad law. It was overtaken by R v Garofoli, [1990] 2 SCR 1421.
The trial judge was understandably concerned with certain aspects of the supporting materials for the warrant. Specifically, one account stated,
the people Bacon meets are generally young East Indian males driving high-end sport utility vehicles. However, Donald J. stated the trial judge’s role is not to completely invalidate a warrant based on statements such as these. Instead, the trial judge’s role in reviewing the validity of a search warrant is to consider whether the supporting materials could support the issuance, while disregarding any objectionable features.
Thoughts on the Pending SCC Decision
I hope the SCC upholds the Court of Appeal’s decision in favour of the Crown. Upon examining the Court of Appeal’s decision, the reasoning does not appear to have any obvious weaknesses – indeed, the trial judge’s decision to rely on bad law is certainly not defendable!
The one issue I can see being given significant attention is the controversial statement made in the supporting reasons for the search warrant by the police with respect to the race of those Bacon was allegedly conducting drug deals with. The statement could be interpreted as using racial stereotyping to direct police to the drug house. There have been cases in Canada where racial profiling has led to drug charges being dropped (see R v Campbell, 2005 CanLII 2337 (QCCQ)). However, in an interesting twist, the accused (Jonathan Bacon) is not in the minority group identified in the statement at issue. While the issue of racial profiling was not discussed in the Court of Appeal reasons, it is quite possible the SCC will emphasize it at Bacon’s hearing.
However, as Donald J. pointed out, one statement suggesting racial profiling should not be enough to completely invalidate a warrant. Ultimately, it makes sense that an officer could believe that a known gangster with vehicles constantly visiting his house might be engaging in illegal activities and would provide the requisite suspicion for a search warrant. No hearing date has been set as of publication, however, so we will have wait to see what our highest court does to finally decide this matter.
4 Comments
This case comment is marred by three major errors.
First, while the law surrounding arrests is indeed "fairly simple," it includes more than the mere subjective belief on the part of the arresting officer that a crime has been committed: the belief itself must be objectively reasonable. This is plain on the face of s.495, which refers to belief on "reasonable grounds," and the authority of R. v. Storrey, which is cited in the decision.
Second, the BCCA did not in fact find that Bacon's arrest was lawful. Instead, it determined that the trial judge had fallen into error by judging the officer's subjective belief in light of the warrant application, and by failing to concretely consider the objective reasonableness of that belief. The BCCA found error; it did not determine whether the arrest was lawful or not. This is why it sent the case back to trial rather than convicting the accused per the power afforded courts of appeal under s.686(4)(b)(ii). Note that as this is a Crown appeal from acquittal, it must go to a question of law alone; our JA therefore restricts himself to undermining the reasoning of the trial judge, not any of his "findings" (which are matters of fact and entitled to deference).
Third, when a Court of Appeal judge finds that a trial judge used the wrong authority in deciding a material issue and invokes the magic phrase "He did not engage in this exercise and thereby committed reversible error" (para. 26), we know that his comments are not, as our author claims, obiter dicta. The warrant issue was a specific head of the Crown's appeal (paras. 1-3) and was in fact decided on appeal.
Hello Tony,
I enjoyed reading your comments and would like to present these thoughts for your consideration.
Based on my limited research, there are two exception to obtaining a warrant; "exigent circumstances" and "hot pursuit." In this case, the reasonableness
of police action has a defined and valid contextual basis which is to preserve evidence ("now or never"). The mobility of a motor vehicle has been held in itself to create an exigent circumstance or probable cause. Furthermore, the discovery in Burton's vehicle of 4 firearms, illegal ammunition, bullet proof vests and a police scanner represent a substantial risk of harm to the police and/or others. In short, the crown interest is high and the reasonable expectation of privacy of these individual's is low.
I contend, in this case the correct approach to reasonableness is a contextual one, and as in the Evan's trial, the admission of evidence takes precedent even if the search is determined to be unreasonable.
A correction is warranted even though the comments about exigent circumstances or probable cause basically remain the same in what was reported as a freshly committed crime. The weapons etc. were found in the townhouse. The cash ($90,600 in total) and drugs were found in the two vehicles; one belonging to Mr. Cheng and the other to Ms. Burton (the girlfriend of Mr. Bacon).
The weapons etc. issue (townhouse) is covered by the two pronged test:
1. a reasonable belief the suspect is at his residence; and 2. a reasonable belief the suspect is within their residence.
It is my understanding that a warrantless search is an unreasonable search, according to Section 8 of the Canadian Charter, but this protection is to people not places.
What additional powers (warrantless search and seizure) do the police have under the illicit drug legislation (Controlled Drugs and Substance Act)? Isn't the authorization of warrantless searches in exigent circumstances legislated under this Act, as well as, in the Criminal Code?
Doesn't both legislations authorize police who are in the process of obtaining a search warrant to search a person (under "constant" police surveillance because of tips/complaints from the public) and found at the locale for illicit drugs and illegal weapons?
A good summary can be found under the heading "Police Powers and Drug-Related Offences", March 6, 2001, Library of Parliament.