When an officer made an error by believing a drug was a controlled substance, when it was not, the arrest for possession of it was unlawful and the incidental searches that followed were unreasonable. In R. v. Tim, 2020 ABCA 469, the accused’s vehicle veered off the road and collided with a road sign. After Tim left the scene, a passerby called 911, and police, fire and EMS responded. Tim’s vehicle was located about one kilometer away. When asked to provide proof of registration and insurance, Tim returned to his vehicle to retrieve it. The officer followed him.
When Tim opened the door to his vehicle, the officer saw him swipe a small plastic bag containing a single pill to the ground. The officer believed this pill was gabapentin, a substance the officer erroneously believed was controlled under the Controlled Drugs and Substances Act (CDSA). Tim was immediately arrested for possessing a controlled substance and he was patted down as an incident to arrest. Police found live .22 calibre rifle and .45 calibre handgun ammunition along with fentanyl, hydromorphone and alprazolam pills. Another gabapentin pill, three cell phones and $480 in cash were also located. A search of Tim’s car revealed a folding serrated knife, a can of bear spray, fentanyl and alprazolam.
After Tim was patted down, he was escorted to a police car. He limped and shook his leg as he walked, and an officer noticed .22 calibre ammunition fall from inside his pant leg. The officer patted him down again prior to placing him in the police car. When the officer touched the outside of Tim’s pants, he felt a metal object in Tim’s groin area. A small double-barrelled pistol loaded with two live rounds was dislodged and fell from Tim’s pants. He was then arrested for possessing a prohibited firearm. A strip search was also conducted at the police station, but no further drugs or firearms were located. Tim was charged with drug and firearm offences.
In the Alberta Court of Queen’s Bench, Tim argued that his ss. 8 and 9 Charter rights had been violated and that the evidence resulting from the searches should be excluded as evidence under s. 24(2). But the judge found Tim’s arrest lawful. Not only did the officer have the necessary subjective belief that an offence was being committed, but this belief was also objectively reasonable despite gabapentin not being a controlled substance. As for the searches, they were lawful as an incident to Tim’s arrest. Having had his Charter applications dismissed, Tim pled guilty to the charges and was sentenced to three and a half years in prison.
Tim subsequently appealed his convictions to the Alberta Court of Appeal, arguing the trial judge erred in failing to find Charter breaches and by not excluding the evidence. He submitted his arrest was unlawful because it was based upon ignorance of the law – a “non-existent offence”. Two of the three judges hearing the appeal found a lawful basis for Tim’s arrest. Not only did the majority conclude the officer had the necessary subjective belief at the moment of arrest, but agreed with the trial judge that the officer’s belief was also objectively reasonable in the circumstances. The officer could not be held to a standard of perfection. Since Tim’s arrest was lawful, the searches that followed were reasonable as an incident to arrest. There were no Charter breaches and Tim’s appeal was dismissed.
“Canadian law has long held that an arrest based on a mistake of law is unlawful, even if the mistake is made in good faith.” – Justice Jamal
One judge disagreed with the majority and concluded the officer’s subjectively held belief was not objectively reasonable. In her view, the arrest was unlawful, resulted in an arbitrary detention under s. 9 of the Charter and all the searches that followed were unreasonable under s. 8. She would have excluded all the evidence under s. 24(2) and entered acquittals on all charges.
Tim then appealed his convictions to Canada’s highest court.
Mistake of law
The Supreme Court agreed that an arrest based on a mistake of law is unlawful and therefore amounts to an arbitrary detention. Justice Jamal, speaking for a six-member majority stated:
Allowing the police to arrest someone based on what they believe the law is — rather than based on what the law actually is — would dramatically expand police powers at the expense of civil liberties. This would leave people at the mercy of what particular police officers happen to understand the law to be and would create disincentives for the police to know the law. Canadians rightly expect the police to follow the law, which requires the police to know the law. [para. 30]
Canadian law has long held that an arrest based on a mistake of law is unlawful, even if the mistake is made in good faith. The concept of “reasonable and probable grounds” for arrest relates to the facts, not the existence of an offence in law. A police officer makes a mistake of law when the officer knows the facts and erroneously concludes that they amount to an offence, when, as a matter of law, they do not. [para. 36]
Since the officer’s subjective belief was based on a mistake of law, it could not be objectively reasonable, and the initial arrest was unlawful. Thus, the first pat-down search and search of Tim’s car were not incidental to a lawful arrest, a prerequisite to the search power. These first two searches therefore breached s. 8 – the right to be secure against unreasonable search or seizure.
Safety search incident to investigative detention
As for the second pat-down, it was a lawful search incident to an investigative detention related to the fail-to-remain traffic collision investigation and did not breach s. 8. In this case, the police could detain Tim to investigate him for the traffic collision, even if he could not be detained as part of a drug investigation. The initial interaction between Tim and police resulted in the officer’s suspicion that Tim fled from the scene of the collision with the roadside sign. The officer was properly exercising his investigatory powers under Alberta’s Traffic Safety Act and the Criminal Code. After the officer saw bullets falling from Tim’s pant leg, the officer was reasonably concerned about his safety.
Strip search
As for the strip search at the station, it too was lawful. Once the ammunition and handgun fell from Tim’s pants, he was lawfully arrested for possessing the firearm. A strip search is justified as an incident to arrest provided there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest. Here, the strip search was incident to the weapon arrest “for the purpose of discovering concealed weapons or evidence related to the offence for which [Tim] was lawfully arrested.” The strip search was also conducted reasonably: it was minimally intrusive, performed at the police station, limited to the accused’s underwear waistband and Tim wore his underwear throughout the search.
Evidence admissibility
Since Tim’s initial arrest breached s. 9 and the first pat-down and vehicle search were unreasonable under s. 8, the majority had to consider whether all the evidence obtained ought to be excluded because of these three Charter violations. Even though the second pat-down was lawful, the obtaining of the handgun was temporally and contextually connected to the Charter breaches that proceeded it. The Charter-infringing police conduct was at the less serious of the scale of culpability. Here, the officer made an honest mistake, did not show a flagrant disregard for the Charte and there was no evidence of a systemic problem. As for the impact of the breaches on Tim’s Charter protected interests, they had a moderate effect. Although unlawfully arrested, Tim was lawfully detained for the traffic collision investigation, and the Charter infringing pat-down and vehicle search were minimally intrusive. Finally, the evidence was reliable, relevant and critical to the prosecution of serious offences. After balancing the three s. 24(2) admissibility factors — the seriousness of the Charter-infringing state conduct, the impact of the breach on the accused’s Charter-protected interests, and society’s interest in the adjudication of the case on the merits — the majority admitted the evidence and dismissed Tim’s appeal. Justice Brown, in dissent, would have excluded the evidence and acquitted Tim on all charges.
Mike Novakowski is Blue Line’s case law columnist.
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