Nov 29, 2019

R. v. Smith, 2019 SKCA 126 - Summary

R v Smith, 2019 SKCA 126 (CanLII)

The accused was under an arrest warrant for possession of stolen property and obstruction. She was also a person of interest in another case, as the girlfriend of the suspect, and a general warrant allowed the police to covertly conduct a forensic examination of her cellphone. While under surveillance, she was located by an officer while with two other people. The officer stopped them and asked to speak to them. They then fled, one of them escaping and the two others being detained.

The accused was with her brother, who was quickly released while they arrested the accused. They handcuffed the accused. She also had a purse with her, which the police seized. When asked to give the purse to the accused's brother, the police refused and instead searched its contents on site. They found drugs inside.

This decision is a one stop shop for everything searches incident to arrest. It reminds us that they should not be read overbroadly, and remain limited by their purpose.

After a review of general principles, and a useful summary of flagship cases, the Court comes to the conclusion that the police was not authorised to search the purse under the common law power of search incident to arrest. It specifically rejects the Crown's position "that the police may, for general safety reasons, always conduct an intrusive search for weapons incident to an arrest", noting that such a search is possible but "must be conducted for a valid objective that is truly incidental to the arrest in question." [par. 34] Indeed, such a proposal "would permit the police to search a purse, backpack or other bag every time they arrest someone because there is always a possibility that something inside items like those could harm other officers or detention staff." [par. 43] As such, "items that belong to a detainee but which are no longer in the detainee’s possession or within the detainee’s grasp are unlikely to pose a continuing threat to the safety of officers or the public and, where they do not, the police lack a reasonable basis to conduct an intrusive search for weapons incident to the detainee’s arrest." [par. 45]

Could the general warrant concerning the accused's phone have allowed the search? The Court notes that it did not expressly provide search powers, but only the power to covertly analyse the phone if the police legally came into its possession [par. 56]. It also rejected the idea that such a search power was implicitly granted by the general warrant. Unlike other cases where the power granted required other underlying acts to be exercisable, a search for the targeted cellphone was not authorised by necessary implication [par. 59]. In addition, such an implied reading would invalidate the general warrant, which is only suppletive, as the powers it would purportedly grant fall under other, more specific kinds of warrants [par. 61].

As such, nothing here permitted the search of the accused's purse. It was done in violation of her right under section 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable searches. The trial judge held that this required the exclusion of the seized drugs as evidence, under section 24(2) of the Charter.

The Crown took issue with this remedy. It argued that the judge failed to consider the police's good faith. The Court rejects this argument, explaining that "the searching officer was acting under an honest but mistaken belief that he had the authority to search [the accused]’s purse pursuant to the General Warrant; but that still does not mean the searching officer was acting in good faith." [par. 73] The officer's belief was unreasonable, and thus not a show of good faith [par. 74]. Thus, the violation was a serious one. Since the accused "had a high expectation of privacy in her purse", the search had a grave impact on her protected interests. That the offence in question is serious and the evidence is reliable does not offset these important concerns, justifying the exclusion of the drug found [par. 79].

This decision is a great refresher on some daily-applied police powers, and their—too often ignored—limits. It should be kept handy, either to prepare a case or to submit to judges hearing Charter motions on the matter.