R. v. Gill, 2019 BCCA 260
[33] The judge relied on R. v. Asp, 2008 BCSC 794, aff’d on other grounds 2011 BCCA 433, for its summary of the plain view doctrine, permitting police seizure of evidence without a warrant if four requirements are met (at para. 25 of the Voir Dire Ruling):
a. the police had lawful prior justification to be at the place where the evidence was found;
b. the police discovered the evidence inadvertently while exercising a lawful police power or performing a lawful police duty;
c. the evidence was in plain view in the sense that it was detected through the unaided use of the officer’s senses; and
d. it was immediately apparent to the officer that the evidence was probably connected to criminal activity.
[34] The appellant agrees that the above four requirements are necessary elements of the plain view doctrine.
[35] The respondent does not take issue with the proposition that if the above four requirements are met, the plain view doctrine will apply to justify the police seizure of evidence without a warrant, and result in the conclusion that the accused’s s. 8 Charter rights were not breached.
[36] These four requirements are also consistent with the articulation of the doctrine by the Ontario Court of Appeal in Jones at para. 56, although expressed in a somewhat different order.
[37] The court in Jones also emphasized the limitation on the doctrine: it is a seizure power limited to items that are visible, and is not a power to conduct an exploratory search to find evidence of other crimes.
[38] It is clear that the officer must be lawfully in the place and acting lawfully in the exercise of police powers when the officer discovers the evidence, in order for the plain view doctrine to apply. This was confirmed in R. v. Askov (1987), 1987 CanLII 9462 (ON SC), 60 C.R. (3d) 261 at 270 (Ont. Dist. Ct.), as cited in R. v. Nielsen (1988), 1988 CanLII 213 (SK CA), 66 Sask. R. 293 (C.A.), and in R. v. Buhay, 2003 SCC 30 at para. 37.
[39] It is also uncontentious that the evidence has to be in plain view, the third requirement of the plain view doctrine listed above.
[40] In Asp and in R. v. Sipes, 2011 BCSC 1763 at para. 187, the court cited James A. Fontana & David Keeshan, The Law of Search and Seizure in Canada (Markham: LexisNexis, 2005 and 2007) on the plain view doctrine, the 2005 version (6th ed.) of which states (at 497‑498):
“Plain view” occurs when items fall into the view of an officer who has a right to be in the position he is in to have the view he has had; and such items have been held to be subject to seizure.
When an officer finds such evidence — contraband, stolen property or crime evidence — unexpectedly in the course of his duties, in circumstances where it is at once obvious and visible without positive action on the officer’s part to make it observable, he has the right to seize it. It may arise in circumstances in which the officer is already lawfully in the premises (under valid warrant, hot pursuit of a fugitive, emergency, etc.) and in the course of these duties he comes across seizable items in plain view, or, it may arise in circumstances where there has been no entry onto premises, but the seizable items present themselves to his view (e.g., in the rear of a pick‑up truck parked on a public street).
[41] With respect to the second requirement, the respondent submits that some authorities have questioned whether the discovery of the evidence must be “inadvertent” in the sense of being unexpected: see Sipes at para. 190, citing Nielsen; R. v. Mousseau (1994), 1994 CanLII 7550 (ON SC), 94 C.C.C. (3d) 84 (Ont. Gen. Div.); R. v. Spindloe, 2001 SKCA 58; and R. v. Gill, [1995] B.C.J. No. 3011 (S.C.); see also R. v. Fawthrop (2002), 2002 CanLII 45004 (ON CA), 166 C.C.C. (3d) 97 (Ont. C.A.).
[42] In Spindloe, the police obtained a warrant to search a retail store based on the belief it was illegally selling drug paraphernalia, some of which was displayed publicly. Officers executed the search and seized items, but the warrant was later found to be unlawful. The “inadvertent” aspect of the test was not met, as the police knew the evidence was there before they went to the premises. Some of the evidence was nevertheless admitted under the plain view doctrine, because it was clearly visible to members of the public who might enter the accused’s store.
[43] The court in Spindloe reasoned at paras. 39‑40 that the more important question is whether the police have a prior justification for being in the place where the plain view seizure occurred; where they do, the inadvertence requirement is less important. It held that the police, just like any member of the public, were lawfully present in the store and did not need a warrant to seize items in plain view.
[44] The Supreme Court of Canada in Buhay at para. 37 adopted the language in Spindloe, that is, under the plain view doctrine, the police need to have a prior justification for the intrusion into the place where the plain view seizure occurred. However, the Court did not squarely address whether the discovery of the evidence must be unexpected.
[45] Some of the cases use the word “inadvertence” to contrast evidence that was found only because it was in plain view, with evidence that could only be seen on a search.
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