R. v. Aucoin (B.D.),

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: LeBel, Deschamps, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ.
• Citation: (2012), 324 N.S.R.(2d) 1 (SCC),2012 SCC 66
• Court: Supreme Court (Canada)
• Date: 30 November 2012

R. v. Aucoin (B.D.) (2012), 324 N.S.R.(2d) 1 (SCC);

    1029 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.015

Brendan David Aucoin (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(34349; 2012 SCC 66; 2012 CSC 66)

Indexed As: R. v. Aucoin (B.D.)

Supreme Court of Canada

LeBel, Deschamps, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ.

November 30, 2012.

Summary:

The accused's vehicle was stopped for a traffic violation. The smell of alcohol led to a roadside screening test demand. The accused's blood-alcohol level was under the legal limit, but exceeded the zero tolerance level. Since the accused was a newly licenced driver, it was an offence to drive with a blood-alcohol level exceeding zero. The officer decided to put the accused in the back seat of the police vehicle while he wrote out a summary conviction ticket. In following his standard practice, the officer did a pat-down search for weapons. The officer found 100 ecstasy pills and eight bags of cocaine. The trial judge dismissed the accused's application to exclude the evidence under s. 24(2) of the Charter, finding that there had been no unreasonable search and seizure (s. 8). The evidence was admitted and the accused was convicted of possession of cocaine for the purpose of trafficking and was sentenced to two years' imprisonment. The accused appealed his conviction and sentence. The accused argued that (1) the judge erred in finding that the pat-down search did not constitute an unreasonable search and seizure, (2) the judge gave undue weight to expert evidence that the amount of cocaine in the accused's possession was for trafficking purposes, not personal use, (3) the verdict was unreasonable and (4) the judge erred in determining that she was constrained from imposing a conditional sentence, thereby failing to consider and properly apply the principles of sentencing.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, in a judgment reported (2011), 306 N.S.R.(2d) 20; 968 A.P.R. 20, dismissed the conviction appeal and the sentence appeal. The accused appealed as of right, limited to the issue of whether the accused was subjected to an unreasonable search and seizure and, if so whether the evidence obtained should have been excluded under s. 24(2).

The Supreme Court of Canada, LeBel and Fish, JJ., dissenting, dismissed the appeal. In these circumstances, it was unreasonable to place the accused in the back seat of the police vehicle, knowing that a pat-down search would have to be performed. The accused was arbitrarily detained (Charter, s. 9) and subjected to an unreasonable search and seizure (s. 8). However, the Charter breach was not sufficiently egregious to warrant excluding the evidence under s. 24(2).

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 3603].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 3603].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was stopped for a traffic violation - He smelled of alcohol - The accused passed a roadside screening test, but since he was a newly licensed driver (zero alcohol tolerance), and consumed alcohol, the officer decided to write a summary conviction ticket - The accused's vehicle was being towed - The area was crowded due to a festival - Because of the darkness, the officer needed to sit in the police vehicle to write the ticket - The officer, concerned that the accused would walk off and disappear into the crowd, put him in the back seat of the police while he wrote the ticket - A pat-down search for weapons disclosed cocaine in the accused's pocket - The accused was charged with possession of cocaine for the purpose of trafficking - The trial judge held that there was no unreasonable search and seizure (Charter, s. 8) - The Nova Scotia Court of Appeal affirmed the decision - The Supreme Court of Canada dismissed the accused's appeal - This was not a case of investigative detention - The officer had authority to detain the accused for the motor vehicle infractions - The issue was whether it was reasonably necessary to place the accused in the back seat of the police vehicle to avoid him leaving the scene - Placing the accused in the rear seat of the police vehicle, especially knowing that he would first be subjected to a pat-down search, was not reasonably necessary and constituted an arbitrary detention (Charter, s. 9) - There were other reasonable means to prevent the accused from fleeing - Police backup arrived during the search and the officer could have waited an extra minute or two to write up the ticket - The court stated that "it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. But where reasonably necessity exists, no further balancing is required" - Since the accused's detention was unlawful, the subsequent pat-down search constituted an unreasonable search and seizure - However, the Charter breach was not sufficiently egregious to warrant excluding the evidence under s. 24(2) - The officer did not flagrantly disregard the accused's Charter rights - He made a mistake, but did so in good faith - The search was legitimately performed for officer safety, not as a ruse to obtain incriminating evidence - The court stated that "the law surrounding police powers in the detention context is still evolving. ... in cases where the police act in good faith and without deliberate disregard for or ignorance of Charter rights ... the seriousness of a breach may be attenuated" - Balancing the three factors in R. v. Grant, the scales were tipped in favour of admitting the evidence - See paragraphs 1 to 52.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603].

Police - Topic 3188

Powers - Search - Weapons search of persons - [See Civil Rights - Topic 3603].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 30].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 31].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314, refd to. [para. 36].

R. v. Cole (R.) et al. (2012), 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 50].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 52].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 73].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 74].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 76].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 76].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 80].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 95].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 100].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 103].

Counsel:

Brian Vardigans and Roger A. Burrill, for the appellant;

David W. Schermbrucker and James C. Martin, for the respondent;

Jennifer M. Woollcombe and Emile Carrington, for the intervenor.

Solicitors of Record:

Nova Scotia Legal Aid, Halifax, N.S., for the appellant;

Public Prosecution Service of Canada, Halifax, N.S., for the respondent;

Attorney General of Ontario, Toronto, Ont., for the intervenor.

This appeal was heard on May 16, 2012, before LeBel, Deschamps, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On November 30, 2012, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Moldaver, J. (Deschamps, Abella, Rothstein and Karakatsanis, JJ., concurring) - see paragraphs 1 to 53;

LeBel J. (Fish, J., concurring), dissenting - see paragraphs 54 to 107.