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CASE LAW – Applying investigative detention criteria can’t save unlawful arrest

The arbitrariness of a detention must be determined by what police actually did as opposed to what they could have done.

In <R. v. Stevenson, 2014 ONCA 842> police suspected a woman’s estranged husband may have been involved in her shooting death. She was shot walking from her home to her van at 7:20 pm in Brockville, Ontario.

A Brockville Police detective admittedly did not have grounds to arrest Stevenson, the estranged husband, but wanted to locate him and the couple’s two children. An erroneous message that Stevenson had shot his wife in the head was conveyed through police dispatch to the OPP jurisdiction where he lived.

At about 9:20 pm, OPP officers arrived at Stevenson’s sister’s home and saw his car parked in the driveway. At about 9:30 pm police saw him leave with two children and walk towards his car. Officers immediately approached and ordered him to the ground at gunpoint. He was handcuffed and searched while he lay on the ground.

At 9:42 pm he was arrested for homicide, advised of his right to counsel and his hands were wrapped in plastic bags in anticipation of testing them for gunshot residue (GSR). A Brockville detective arrived at the arrest scene at 10:08 pm and spoke to Stevenson’s mother and sister. They said he had left at 4:20 pm to go shopping in Brockville and returned at 8:20 pm.

At 10:24 Stevenson was taken back to Brockville as the lead detective believed he had reasonable grounds to “continue” the arrest. At 12:04 am Stevenson was advised he was under arrest for first degree murder, informed of his right to silence and advised of his right to counsel. At 12:35 am his hands were daubed for GSR, his clothing taken and other items from his vehicle submitted for testing.

Testing resulted in GSR particles being found on the back of his left hand, web and back of his right hand, right sleeve of his jacket and the front and back of his pants. He was charged with first degree murder.

The Ontario Superior Court of Justice found the arrest, based on the misinformation provided by the dispatcher, was unlawful but not arbitrary because the OPP officers acted in good faith in relying on that information. The judge held that the bagging of Stevenson’s hands was not a search or seizure and therefore did not engage <s. 8> of the Charter.

The police conduct that led to obtaining the GSR swabbing and clothing samples actually occurred after officers had reasonable grounds to arrest Stevenson, rendering those events lawful as an incident to arrest. This evidence was admissible and, on the basis of other circumstantial evidence (eg. the nature of the shooting, motive, and opportunity), Stevenson was convicted of first degree murder.

Stevenson appealed his conviction to the Ontario Court of Appeal. He argued, among other grounds, that his rights under <s. 8> (unreasonable search/seizure) and <s. 9> (arbitrary detention) of the Charter were infringed when he was arrested and searched, and the GSR results should have been excluded as evidence under <s. 24(2)>.

{Arbitrary detention}

Stevenson submitted that his arrest, based on the misinformation provided by the police dispatcher, was unlawful and therefore resulted in his arbitrary detention, contrary to <s. 9>. The Crown, on the other hand, suggested that, even if the arrest was unlawful, Stevenson’s detention was not arbitrary because police at least had grounds to detain him for investigative purposes at the time of his arrest — and within an hour of this detention had sufficient grounds to properly make an arrest.

Justice Doherty, speaking for the court, first examined the police power of arrest under <s. 495(1)> of the Criminal Code. “An arrest without warrant is lawful if the police have reasonable grounds to believe that the person arrested has committed an indictable offence,” he said.

The OPP officers were justified in arresting Stevenson based on the Brockville police dispatcher’s information, but since they did not independently assess the information, the arrest would be lawful only if Brockville police had the requisite reasonable grounds for the arrest.

“In circumstances where one officer, or one police force, acts on the direction of another, the question of whether reasonable grounds for an arrest exist is answered by reference to the information available to the officer or police force giving the direction,” said Doherty.

At the time of Stevenson’s initial arrest, Brockville police did not have reasonable grounds since they only considered him a suspect. His arrest was unlawful because it was not authorized by <s. 495(1)> of the Criminal Code or by any other law. The detention pursuant to the unlawful arrest could not be saved through application of the police power to detain for investigative purposes or to ensure the childrens’ safety.

“What ever lawful police power, apart from the arrest power, the police may have had to detain the [accused], they did not purport to exercise any such power,” said Doherty.

[references omitted, para. 56].

Since the arrest was unlawful, Stevenson’s detention was arbitrary. Hence, the police “could not rely on that detention to justify any further restraint on or restriction of the [accused].”

The bagging of his hands in preparation to preserve evidence was as “an additional restricting feature of the arbitrary detention that further compromised the [accused’s] liberty and security interests protected by the right against arbitrary detention.”

The appeal court did note, however, that Stevenson was lawfully arrested by the time the samples were taken and the clothing seized. Police did have grounds to arrest at 10:24 pm, after the lead investigator had spoken to Stevenson’s mother and sister, which occurred between the bagging and the actual taking of the samples for analysis. This was later factored into the <s. 24(2)> analysis.

{Unreasonable search or seizure}

Stevenson contended that the steps taken by police incidental to his unlawful arrest, including the bagging of his hands, breached <s. 8>.

Had Stevenson’s arrest been lawful, Doherty would have found that the pocket search and hand bagging justifiable as incidental to arrest. However, the arrest by the OPP was unlawful. The search could not be explained away as one incidental to an investigative detention.

“The arrest cannot be converted to an investigative detention for the purposes of determining the constitutionality of the police conduct,” Doherty said.

As for whether the hand bagging actually amounted to a search or seizure in these circumstances, Doherty stated:

<It is somewhat artificial to describe the bagging of the [accused’s] hands as a search or seizure. The bagging is more accurately characterized as a step taken in preparation of an anticipated search or seizure. In the usual case, when the anticipated search or seizure follows upon the preparatory steps without any intervening compliance with the Charter, the entirety of the search-related conduct can be considered part of the s. 8 violation.

In this case, however, a lawful arrest intervened between the step preparatory to the search, the bagging of the [accused’s] hands and the actual search, the taking of the samples and seizure of the clothing. In this unusual circumstance, it therefore becomes necessary to draw a distinction between steps in preparation of a search and the search> [para. 61].

As noted above, Stevenson was afforded Charter protection for the hand bagging under <s. 9> without “stretching the normal meaning of the words search or seizure to include the bagging of the [accused’s] hands.” Doherty also noted that the bagging could also arguably be seen as a distinct violation of <s. 7> of the Charter.

{Admissibility of the evidence}

Stevenson contended that the GSR evidence should have been excluded from evidence under <s. 24(2)> while the Crown opined that the results should be admitted. The appeal court agreed with the Crown, using the three pronged <s. 24(2)> analysis, and admitted the evidence despite the significant intrusion on Stevenson’s liberty and security. Stevenson’s appeal was dismissed and his murder conviction upheld.

Sidebar 1

According to the evidence in this case, a GSR particle is not visible to the naked eye and contains fused elements of lead, antimony and barium. Particles are easily transferred by contact or air movement and their presence on any surface, including a person’s hands, does not assist in identifying how they came to be deposited on that surface. These particles could be on a person’s hands and clothing from (1) recently discharging a firearm, (2) being in close proximity when a firearm was discharged or (3) picking them up from another surface.

Sidebar 2

The Ontario Court of Appeal found the detective’s reasonable and probable grounds to arrest Stevenson as of 10:24 consisted of the following:

1. The circumstances of the shooting suggested a “targeted killing”.

2. Stevenson and the victim were going through a somewhat contentious divorce.

3. Stevenson was on probation for threatening the victim.

4. The victim’s boyfriend had identified Stevenson as a “possibility” when asked if he could think of anyone who might want to kill the victim.

5. Stevenson had the opportunity to commit the offence since, according to his mother and sister, he was in Brockville at the relevant time.

6. A witness had seen a dark-coloured Honda Civic leaving the area of the shooting and reported the driver as “possibly” having blond hair. Stevenson drove a red Honda and had strawberry-blond hair.

7. About a year earlier the police found marijuana plants growing on the Stevenson farm, although he was not charged. The detective, an experienced drug investigator, testified that in his experience, marijuana growers sometimes used firearms for protection. Justice Doherty did not accept that this “fact” had any relevance to the existence of reasonable grounds.