R. v. Debot  2 S.C.R. 1140: 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
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.
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