Blue Line Magazine March 2012
Handcuffing a detainee and confining them in a locked police wagon does not necessarily amount to an arrest, British Columbia's top court has ruled.
In R. v. Chaif-Gust, 2011 BCCA 528, police obtained a s. 11 Controlled Drugs and Substances warrant to search for a marijuana grow operation at a residence believed to be uninhabited. The premises was rundown, it's windows all covered by drapes or sheets, there were no items in the yard, the lawn was brown and surveillance had revealed no activity in or around it.
Police used a PA system to announce their presence before entry, advising occupants that they had a search warrant and asking them to "come to the front door now." Within a minute, Chaif-Gust was seen leaving by the back door with another man. They were ordered to the ground, handcuffed and locked in the police wagon.
The detaining officer returned to his containment duties while others searched the house, finding the premises almost entirely dedicated to a marijuana grow operation and the front door barricaded shut from the inside. Once the residence was cleared, the detaining officer arrested Chaif-Gust for producing marijuana and possession for the purpose of trafficking. Some 42 minutes had elapsed between the initial detention and arrest.
The officer obtained Chaif-Gust's name, birth date and address and advised him of his right to counsel. He indicated he wanted to speak to a lawyer and was searched incidental to arrest; a key that opened the only door allowing access to the house was found in his pocket. He was taken to the police station, booked into jail, photographed and fingerprinted but wasn't allowed to contact a lawyer until some five and a half hours after he was arrested.
Police found four grow rooms in the basement, two on the main floor and a grow room and stolen generator in the attic. The estimated value of the crop was between $276,000 and $696,000 per year.
At trial in BC Provincial Court the detaining officer testified that he was instructed at the pre-search briefing that anyone coming out of the house would be taken into custody and then arrested once police had confirmed the existence of an offence. The judge concluded that Chaif-Gust's detention was lawful, stating:
i. The police had reasonable grounds to believe that a marijuana grow-op was inside the residence. This was established by the issuance of a search warrant to search the residence for this purpose. ii. The presence of the accused inside this residence and his departure from the residence via the rear door of the residence in apparent defiance of the police direction that the occupants come to the front door gave rise to a reasonable suspicion that the accused might have been implicated in the illegal grow-op inside the residence. I note here that, at the time of the accused's detention, neither (the lead investigator) nor (the detaining officer) were aware of the fact that the front door was barricaded shut, such that the accused could only come out of the rear door.
She further found that the investigative detention wasn't a de facto arrest. It was justified in the circumstances, even though the nature and extent of the interference with Chaif-Gust's liberty were significant. The officer needed to safely control the men while he resumed containment duties. Handcuffing and locking them in the police wagon was a necessary and reasonable step. Officers never intended to arrest them or attempted to interrogate or search them. Even the 42 minute delay did not convert the detention into a de facto arrest.
As for the arrest, police believed the residence was used solely to grow marijuana and it was reasonable to believe that anyone there was likely tending it. In the judge's view, Chaif-Gust was lawfully arrested after the grow operation was found. However, she found police breached his rights under s. 10 by not informing him why he was being detained, advising him of his rights to counsel and permitting access to a lawyer until hours after his arrest. Although these breaches were serious and flagrant, the key to the access door and photograph used to identify Chaif-Gust in court were admitted under s. 24(2).
Chaif-Gust was convicted of producing marijuana and possession for the purpose of trafficking but appealed to the BC Court of Appeal, arguing his detention was arbitrary, amounting to a de facto arrest and breaching his s. 9 Charter rights. Furthermore, since his formal arrest was unlawful for lack of reasonable grounds he was associated to the grow operation, the search incidental to arrest was unreasonable under s. 8 of the Charter. As a result of the breaches, he suggested that the key and photograph should have been excluded.
Chief Justice Finch first addressed the police power to detain for investigation:
(A) police officer has the authority to detain a person for investigative purposes provided that two conditions are met. First, the detention must be "viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence."
Second, the decision to detain must pass a test of "overall reasonableness" with respect to "all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with and the nature and extent of that interference" (para. 34).
Not only did the trial judge use the correct legal test in determining the lawfulness of the detention, Finch concluded, she also properly applied the test to the facts of the case. In his view, there was ample evidence to find the requirements for a lawful detention were satisfied:
With respect to the initial lawfulness of the detention, the trial judge found that the police had an objectively reasonable suspicion that the (accused) might be implicated in a marijuana grow operation at the moment they detained him. They had a reasonable basis to believe that there was a grow operation inside the house, as a result of prior observations. These same observations had led the police to believe, on reasonable grounds, that the house wasn't used as a residence, enabling them to make the further inference that anyone present in the building was there for the purpose of tending the grow operation.
The fact that the appellant and his co-accused left the house through the back door, when the police had ordered them out through the front, provided additional grounds for reasonable suspicion that the two men were implicated in the production of marijuana – reasonable, because the police were not yet aware and had no reason to suppose that it wasn't possible to leave through the front door (para. 39).
Finch also ruled that the detention remained lawful and non-arbitrary for its duration.The trial judge determined that police experienced difficulty in searching the interior of the house. There were many grow rooms and the search was more time consuming than it may otherwise have been due to its cluttered condition.
"The police had to satisfy themselves that there were no other persons in the building so that it could be secured," said Finch. While the court agreed that "the time required to search an entire residence will usually justify a longer detention of the building's occupants than would a simple street check, the length of the detention cannot be disproportionate to the requirements of the investigation involved."
A shortage of manpower or operational expediency cannot justify a disproportionate period of detention since "it will not always be possible to foresee the conditions to be encountered during a search, nor to make an accurate estimate of the manpower necessary to complete it in a timely fashion."
As for the detention being a de facto arrest by the manner it was carried out – confined in a locked wagon while handcuffed – Finch found there was no evidence that police intended from the outset to arrest anyone who came to the door of the house they were searching.
"The use of handcuffs or a police wagon do not, in and of themselves, render an otherwise reasonable detention a de facto arrest," he said.
The police power to arrest without a warrant is found in s. 495(1) of the Criminal Code: "A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence."
Reasonable grounds requires both a subjective belief that must be justifiable from an objective point of view. Police need not demonstrate anything more than reasonable grounds.
Once the grow operation was located, police established the existence of an indictable offence. However, the only link between the offence and Chaif-Gust was his presence on the property. This was enough to constitute subjective and objective reasonable grounds for arrest, the court held.
The investigating officer had concluded that the house wasn't being used as a residence. Since police had reasonable grounds to believe its only apparent purpose was a grow operation, it was reasonable to infer that anyone present was there to tend to the grow operation. Chaif-Gust's arrest and search was lawful.
S. 10 Charter
Police did not respect the requirements of ss. 10(a) and (b) when Chaif-Gust was detained and arrested. He wasn't informed of the reason for his detention when first ordered to the ground and handcuffed nor told of his right to counsel at this time.
Although he was told the reason for his arrest and right to counsel when formally arrested, he wasn't permitted to contact counsel for a further five and one half hours. Despite these breaches, the evidence of the key taken from Chaif-Gust's pocket and his photograph taken at booking were admitted.
Chaif-Gust's appeal was dismissed and his conviction upheld.