R. v. Cooper (M.A.), 2005 NSCA 47

• Judge: Oland, Freeman and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 17, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSCA 47;(2005), 231 N.S.R.(2d) 156 (CA)

R. v. Cooper (M.A.) (2005), 231 N.S.R.(2d) 156 (CA);

 733 A.P.R. 156

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. MR.023

Michael Anthony Cooper (appellant) v. Her Majesty The Queen (respondent)

(CAC 232964; 2005 NSCA 47)

Indexed As: R. v. Cooper (M.A.)

Nova Scotia Court of Appeal

Oland, Freeman and Fichaud, JJ.A.

March 17, 2005.

Summary:

At 2:00 a.m., the vehicle in which the accused was a passenger took evasive action to avoid an attempted traffic stop by police. Both the driver and the accused exited the vehicle and fled on foot, ignoring directions to stop. When the accused was found hiding in an apartment building foyer, he was handcuffed and returned to an area where other officers had arrived. A search of his person for weapons uncovered a prohibited weapon (butterfly knife). The accused gave an alias, misidentifying himself. The accused was charged with, inter alia, possession of a weapon dangerous to the public peace and mischief by misleading police.

The Nova Scotia Provincial Court, in a judgment not reported in this series of reports, convicted the accused on both counts. The court held that the accused was not arbitrarily detained (Charter, s. 9) and was not subjected to an unreasonable search and seizure (Charter, s. 8). Accordingly, there was no basis under s. 24(2) of the Charter to exclude the knife and misleading statement from evidence. The accused appealed.

The Nova Scotia Court of Appeal dismissed the appeal. There was no arbitrary detention or unreasonable search and seizure.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - At 2:00 a.m., the vehicle in which the accused was a passenger took evasive action to avoid an attempted traffic stop by police - Both the driver and the accused fled on foot, ignoring directions to stop - When the accused was found hiding in an apartment building foyer, he was handcuffed and returned to an area where other officers were present - A pat-down search for weapons uncovered a prohibited weapon (butterfly knife) - The accused falsely identified himself - The accused was convicted of a weapons offence and mischief - The Nova Scotia Court of Appeal, in dismissing the accused's conviction appeal, affirmed that the accused was not arbitrarily detained (Charter, s. 9) or subjected to an unreasonable search and seizure (s. 8) - The accused's flight from a traffic stop authorized by law gave the officer reasonable grounds to believe, on an objective basis, that the flight was connected with a recent or ongoing offence - Detention was justified and proportionate to the scope of the officer's duties - The pat-down search for weapons, incidental to a lawful detention (protective search for officer safety), did not constitute an unreasonable search and seizure.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1404.3

Security of the person - Law enforcement - Warrantless search for weapons - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1410.2

Security of the person - Law enforcement - Investigation - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1214 ].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - The Nova Scotia Court of Appeal restated that "Police in Nova Scotia are justified in stopping vehicles at random ... for the purpose of controlling traffic on the highway by inspecting licensing, registration and insurance documents, the mechanical condition of vehicles, and to detect impaired drivers. Random stops are arbitrary detentions which infringe s. 9 of the Charter but which are saved under s. 1." - See paragraph 36.

Cases Noticed:

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, refd to. [para. 13].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 13].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 13].

R. v. P.S.B. (2004), 222 N.S.R.(2d) 26; 701 A.P.R. 26; 2004 NSCA 25, refd to. [para. 22].

R. v. Johnson (W.D.) (2004), 225 N.S.R.(2d) 22; 713 A.P.R. 22; 2004 NSCA 91, refd to. [para. 22].

Ontario Adult Entertainment Bar Association v. Metropolitan Toronto (Municipality) (1997), 104 O.A.C. 113; 118 C.C.C.(3d) 481 (C.A.), refd to. [para. 22].

R. v. Greaves (E.A.) (2004), 203 B.C.A.C. 31; 332 W.A.C. 31; 189 C.C.C.(3d) 305 (C.A.), refd to. [para. 30].

R. v. Nguyen (P.D.) (2004), 205 B.C.A.C. 4; 337 W.A.C. 4; 2004 BCCA 546, refd to. [para. 33].

R. v. Byfield (C.A.) (2005), 194 O.A.C. 98 (C.A.), refd to. [para. 33].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 36].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 36].

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. 36].

R. v. MacLennan (J.W.) (1995), 138 N.S.R.(2d) 369; 394 A.P.R. 369; 97 C.C.C.(3d) 69 (C.A.), refd to. [para. 36].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45, refd to. [para. 42].

R. v. Anderson (H.G.) (1996), 84 B.C.A.C. 18; 137 W.A.C. 18; 111 C.C.C.(3d) 540 (C.A.), refd to. [para. 42].

R. v. Perello (E.F.) (2005), 257 Sask.R. 46; 342 W.A.C. 46; 2005 SKCA 8; 2005 CarswellSask 77, refd to. [para. 44].

Terry v. Ohio (1968), 392 U.S. 1, refd to. [para. 47].

Illinois v. Wardlow (2000), 528 U.S. 119; 120 S.Ct. 673, refd to. [para. 47].

R. v. Moore, [1979] 1 S.C.R. 195; 24 N.R. 181, refd to. [para. 47].

R. v. Bonneycastle, [1969] 4 C.C.C. 198 (B.C.C.A.), refd to. [para. 47].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 54].

Counsel:

Donald C. Murray, Q.C., for the appellant;

Dana Giovannetti, Q.C., for the respondent.

This appeal was heard on February 7, 2005, at Halifax, N.S., before Oland, Freeman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On March 17, 2005, Fichaud, J.A., delivered the following judgment for the Court of Appeal.