R. v. Peterkin (M.), 2015 ONCA 8

• Judge: Feldman, Watt and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 20, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 8;(2015), 328 O.A.C. 321 (CA)

R. v. Peterkin (M.) (2015), 328 O.A.C. 321 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.020

Her Majesty the Queen (respondent) v. Mackel Peterkin (appellant)

(C57756; 2015 ONCA 8)

Indexed As: R. v. Peterkin (M.)

Ontario Court of Appeal

Feldman, Watt and van Rensburg, JJ.A.

January 12, 2015.

Summary:

Peterkin was convicted of unlawful possession of a loaded restricted firearm while not the holder of an authorization, licence or registration; and unlawful possession of a controlled substance (cocaine) for the purpose of trafficking. He appealed, on the grounds that the trial judge, in a pre-trial ruling reported at [2013] O.T.C. Uned. 165, erred: (1) in holding that the police officers were lawfully entitled to conduct a safety search (i.e., a pat-down) incidental to his investigative detention; and (2) in failing to exclude the gun, cocaine, and trafficking paraphernalia under s. 24(2) of the Charter.

The Ontario Court of Appeal dismissed the appeal on both grounds.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - The Ontario Court of Appeal set out the principles that defined the basis upon and scope within which police might conduct a safety search incidental to an investigative detention - The main issue on this appeal was what test properly applied under the second prong of the "R. v. Waterfield" analysis to determine when a safety search incidental to an investigative detention was justifiable - See paragraphs 37 to 56.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Peterkin entered a backyard of a townhouse as officers were responding to a 911 call from the unit - The officers established Peterkin had no connection to the townhouse - He identified himself, but explained his presence with a reason the officers considered implausible - Peterkin's behaviour caused the officers to be concerned about their safety - When the officers told Peterkin they were going to pat him down, he began to run - The trial judge held that the officers were lawfully entitled to conduct a safety search (i.e., a pat-down) incidental to the investigative detention - The Ontario Court of Appeal agreed - "To be lawful, the investigative detention and safety search incidental to it must satisfy the two-stage Waterfield test. The conduct must fall within the general scope of a statutory or common law duty imposed on the officer, and must also involve a justifiable use of powers associated with that duty" - The officers were discharging their common law duty to preserve the peace, prevent crime, and protect life and property - Peterkin's entry into the fenced rear yard also entitled the officers to detain him to investigate a potential breach of the Trespass to Property Act - The officers noticed movements they considered to signal possession of a gun, followed by an indication by the officers of a pat-down search for the officers' safety - The accused resisted and attempted to flee - That accumulation of factors fully supported a reasonable belief on the part of the officers that their safety was at stake and justified the search - See paragraphs 57 to 62.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused entered a backyard of a townhouse as officers were responding to a 911 call from the unit - The officers established that the accused had no connection to the townhouse - The accused challenged the correctness of the trial judge's ruling that the evidence obtained during a pat-down search for the officers' safety was admissible under s. 24(2) of the Charter - The Ontario Court of Appeal dismissed that ground of appeal - The infringements that occurred here, of both s. 10(a) and s. 10(b) of the Charter, were aptly characterized by the trial judge as the product of negligence, not the result of wilful or deliberate misconduct - The information the officers provided the accused about the reasons for the investigative detention and his right to counsel was incomplete - However, the information did alert the accused to the extent of his jeopardy - Nothing omitted yielded any response of evidentiary value - The items recovered would have been discovered in any event on a search incident to arrest under the Trespass to Property Act - They afforded reliable real evidence central to the demonstration of guilt - See paragraphs 63 to 79.

Criminal Law - Topic 1440

Firearms - General - Search and seizure on ground of safety - [See second Civil Rights - Topic 1214 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See second Civil Rights - Topic 1214 ].

Criminal Law - Topic 3154

Special powers - Power of search - Evidence obtained - Admission of - [See Civil Rights - Topic 8368 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See second Civil Rights - Topic 1214 ].

Cases Noticed:

R. v. Waterfield, [1964] 1 Q.B. 164, refd to. [para. 38].

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. 38].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 220 C.C.C.(3d) 449; 2007 SCC 32, refd to. [para. 46].

R. v. MacDonald (E.) (2014), 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 50].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127 (S.C.C.), refd to. [para. 55].

R. v. Amofa (R.) (2011), 282 O.A.C. 114; 2011 ONCA 368, refd to. [para. 56].

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. 67].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 75].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 75].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask. R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 76].

Counsel:

Gary J. Grill and James M. Stevenson, for the appellant;

Gillian Roberts, for the respondent.

This appeal was heard on June 20, 2014, before Feldman, Watt and van Rensburg, JJ.A., of the Ontario Court of Appeal. In reasons written by Watt, J.A., the Court released the following judgment, dated January 12, 2015.