R v Barton, 2024 ABCA 34
[81] A warrantless seizure is presumptively unreasonable. As such, the Crown bears the burden of establishing that the seizure was authorized by law, the law itself is reasonable, and the manner in which the seizure was carried out is reasonable: R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265 at 278 [Collins]. The appellant argues the trial judge erred with respect to the first of these considerations.
[82] For a search or seizure to be authorized by law, “reasonable grounds to believe” are normally required: Hunter v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at 167–68 [Hunter]. That is, the police must subjectively believe an offence has been committed and the search or seizure will afford evidence of the offence, and there must be objectively reasonable grounds for that belief: R v Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341 at para 27; Hunter at 167–68.
[85] The reasonable belief standard does not require certainty that an offence was committed, nor proof beyond a reasonable doubt, nor even proof on a balance of probabilities. Instead, it requires an “objective basis... based on compelling and credible information”: R v Beaver, 2022 SCC 54 at para 72 [Beaver 2022]; Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114; R v Ha, 2018 ABCA 233 at para 34 [Ha].
[88] The Waterfield or ancillary powers doctrine is used to assess whether a police action that interferes with individual liberty is authorized at common law: Fleming v Ontario, 2019 SCC 45 at para 43 [Fleming]. Courts should tread lightly when applying it, as establishing and restricting police powers is within the authority of the legislatures: Fleming at para 41. Nevertheless, courts cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist: Fleming at para 42.
[89] Where the Crown relies on the ancillary powers doctrine to justify police conduct, as here, a case-specific inquiry must be undertaken: R v Clayton, 2007 SCC 32 at para 22 [Clayton]. The inquiry is intended to strike the proper balance between preventing excessive intrusions on an individual’s liberty and enabling police to do what is reasonably necessary for them to perform their duties: Clayton at para 26. As a preliminary step, the court must define the police power asserted and the liberty interests at stake: Fleming at para 46. The appellant argues the trial judge did not address these preliminary aspects. We disagree.
[93] After identifying the police power and liberty interests, the Waterfield analysis poses two questions: Does the police action at issue fall within the general scope of a statutory or common law police duty? If so, does the action involve a justifiable exercise of police powers associated with that duty?: Fleming at para 46; Mann at para 24.
[94] The appellant rightly concedes the first stage of the analysis. It is well accepted police have a common law duty to investigate crime and bring perpetrators to justice: Mann at para 35; R v Kang-Brown, 2008 SCC 18 at para 52 (per McLachlin C.J. and Binnie J.) and at para 182 (per Deschamps and Rothstein JJ.) [Kang-Brown]. The duffel bag seizure was conducted within the scope of that duty.
[95] To determine whether the action involved a justifiable exercise of police powers, the court must focus on whether the action was “reasonably necessary” for fulfilling the police duty: Fleming at para 47; MacDonald at para 36. Applied here, was it reasonably necessary for police to seize and briefly hold the appellant’s bag to properly fulfill their duty to investigate the death of Ms Gladue?
[96] Answering this question requires balancing the competing interests associated with the police duty and the liberty interest at stake: Mann at para 26. Relevant factors include the importance of the performance of the duty to the public good, the necessity of the interference with individual liberty for the performance of the duty, and the extent of the interference with individual liberty: Fleming at para 47; MacDonald at para 37. If these factors weighed together lead to the conclusion that the police action was reasonably necessary, it will not constitute an “unjustifiable use” of police powers: MacDonald at para 37.
[97] First, the police duty to investigate crime and bring perpetrators to justice is always important to the public good. Its importance increases with the seriousness of the suspected offence. Clearly, this suspected homicide was among the most serious of offences.
[98] Second, the necessity of the interference in this case is defined by three factors: the compelling grounds pointing to the commission of a serious offence; the appellant’s attempt to place the bag beyond the reach of the investigation; and the exigency of the circumstances.
[99] Exigent circumstances may create a legal basis for a warrantless search where the urgency of the situation requires prompt police intervention to preserve evidence: Garland at paras 38–39. In assessing police action said to have been motivated by exigent circumstances, the court will consider whether police subjectively believed immediate action was required to secure and protect evidence, and whether that belief was reasonably held: R v Kim, 2015 ABCA 274 at para 19 [Kim].
[101] While section 8 generally requires a reasonable belief to justify a search or seizure, the “jurisprudence... accepts a measure of flexibility when the demands of reasonableness require”: Kang-Brown at para 59 (per McLachlin C.J. and Binnie J.). For example, sniffer dog searches are constitutionally justified on the lower standard of reasonable suspicion, in part because they are minimally intrusive: R v Chehil, 2013 SCC 49 at paras 24–29.
[103] Finally, the extent of the interference with the subject privacy interest must be considered. The mere seizure of the bag did not disclose any information about the appellant. While the privacy interest in the bag was significant, the interference with that interest was minimized as the police did not search it: compare R v Kelsy, 2011 ONCA 605 at para 42. That the duration of the warrantless seizure was to be no more than 24 hours also limited the degree of interference.
[104] We see no reviewable error in the trial judge’s conclusion that the seizure was “a reasonably necessary interference” and so involved a justifiable exercise of police powers “in the unique circumstances of the case”: Ruling #2 at paras 84, 138.
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