Le simple passage du temps ne rend pas automatiquement une information périmée, car sa pertinence doit être évaluée de manière contextuelle en tenant compte notamment de la nature continue des activités criminelles visées

R. v. James, 2019 ONCA 288

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[55] There is no rule as to how recent information has to be in order to be relevant: R. v. Dionisi, [2012] A.J. No. 65, 2012 ABCA 20, 285 C.C.C. (3d) 502, at para. 22. In my view, the trial judge fundamentally misunderstood the nature of the offences being investigated and the respondent's possible involvement in them. The information from the investigation showed that Primo was not some low level drug dealer operating in small quantities that might be sold on a street corner or in a back alley. Rather, the information showed that Primo was dealing in much larger quantities of cocaine, up to the kilogram level. The activities of large-scale drug dealers are not transitory.

[57] Not only do these events support this conclusion, so too does the criminal record of the respondent. Prior criminal activity -- including prior involvement in the drug trade -- is a relevant factor in determining whether there are reasonable and probable grounds for a search: R. v. Pasian, [2017] O.J. No. 2858, 2017 ONCA 451, 349 C.C.C. (3d) 144, at para. 6.

[60] Against that background, and the contemporaneous evidence regarding the drug activity involving the respondent and MD, the affiant's failure to mention that the April 2012 charges were stayed is an entirely minor error that does not, in any way, detract from the overall picture presented to the authorizing justice. It certainly would not have unduly influenced the justice of the peace in terms of whether or not to issue the search warrant. And, on review, whether you excise the April 2012 charges, or amplify the record by including the stay of those charges, neither would result in a conclusion that the justice of the peace could not have issued the search warrant.

[61] Returning to the issue of the currency of the information, the only authority to which the trial judge made reference on the issue of stale-dated information was R. v. Silveira (1995), 1995 CanLII 89 (SCC), 23 O.R. (3d) 256, [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38. It is not clear how that authority would assist on the issue here since that case [page338] dealt with a search in exigent circumstances. I do note, however, that Cory J., speaking for the majority, discussed the problem that the police had in terms of whether they could obtain a search warrant in the exigent circumstances that they were confronted with. He suggested that one solution to the problem would have been for the police to have obtained the search warrant based on information that they had from a week or so earlier. In making that suggestion, Cory J. made the following observation, at para. 154, which is particularly apt to the situation here:

In this case, evidence existed upon which a search warrant might have been obtained before the arrests were made. It may be that it would have been preferable for the police to have obtained a search warrant based on the earlier transactions prior to that made on the day of the arrests . . . At the time of trial, if the search warrant was attacked on the grounds that it was outdated, evidence could be adduced of the difficulty of providing up-to-date material in circumstances like these and that, in light of the necessity of protecting the evidence, the police found it necessary to obtain a warrant based on the earlier transactions and observations. In the absence of an unreasonable delay between the observations and the application, it would be difficult to imagine that the warrant could be successfully attacked on the grounds that it was stale-dated. That is the way the police should have proceeded.

[62] A more pertinent authority on this subject is this court's decision in R. v. Breton, 1994 CanLII 939 (ON CA), [1994] O.J. No. 2097, 74 O.A.C. 99, 93 C.C.C. (3d) 171 (C.A.). In that case, there had been drug transactions in an apartment on September 16 and October 8. A search warrant was executed on October 15. One of the challenges to the warrant was that there was no information to believe that drugs would be found in the apartment on October 15. While that argument found favour with the trial judge, it did not find favour with this court. This court concluded that it was open to the issuing justice to infer from the earlier transactions that there was a probability that drugs would be found in the apartment on the later date. In so concluding, this court made reference to an earlier decision where a search warrant was issued on July 12 based on a drug transaction from May 3.¹ This court noted that, in that earlier case, "[n]otwithstanding the time lapse this court held that the information was sufficient": Breton, at para. 48.

[63] Another example is found in R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, leave to appeal to S.C.C. dismissed [2014] S.C.C.A. No. 460, 2015 CanLII 1812. In that case, there was a challenge to the ITO relied upon to obtain an authorization to intercept private communications. The target, Lucas, was believed to be trafficking in firearms. Lucas [page339] challenged the information in the ITO on the basis that it was stale because it referred to activities that had taken place some three years earlier. This court rejected that challenge. This court said, at para. 140:

[W]e agree with the trial judge that in this case, the fact that guns had allegedly been supplied to Lucas some years before the investigation into the offences referred to in the ITO did not undermine the grounds for issuing the authorization to intercept his communications. The ITO provided reasonable grounds to believe that Lucas had not disposed of all the guns delivered to him by Cooke, that he had supplied guns to the Doomstown Crips in the past, and the surveillance evidence from January 2006 indicated that Lucas may have been transporting firearms. The ITO thus provided reasonable grounds to believe that Lucas had been and continued to be involved in the organized trafficking of a substantial number of weapons.

(Emphasis added)

[64] The approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account. As the British Columbia Court of Appeal observed in R. v. Ballendine, [2011] B.C.J. No. 838, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:

Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.

[65] As the court in Ballendine also observed, on these issues, a court is entitled to draw common sense inferences regarding the activities of persons: at paras. 53, 55, 57. That common sense point was echoed by this court in R. v. Beauchamp, [2015] O.J. No. 1939, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 113:

[I]t would have been open to the authorizing judge to infer current criminality from past criminality in the circumstances disclosed by the evidence in the affidavit. In considering the capacity of the evidentiary predicate to ground a finding of probable cause, it is important to keep in mind the investigative objective and the nature of the alleged criminality involved. Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance.

(Emphasis added)

[66] The suggestion, implicit in the respondent's position, that three weeks after the respondent was observed driving from London to Windsor in order to deliver a significant quantity of cocaine to MD, he became disassociated from, and unconnected with, drug trafficking finds no common sense foundation.

[67] In support of his position, the respondent relies on the decision in R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, [page340] 2010 SCC 8, where a warrant to search for evidence of possession of child pornography based on four-month-old information was held to have been improperly issued. In my view, the decision in Morelli does not assist the respondent. The decision in that case is very much fact driven. A particularly salient fact is that the links on the accused's computer to two possible child-pornography websites, that a technician had noticed, were gone when the technician returned to view the computer the next day. As Fish J. said, at para. 95:

At best, this may be a ground for suspicion, but surely the deleted links afford no reasonable and probable grounds to believe that the appellant was in possession of child pornography, and still less that evidence of that crime would be found upon a search of his computer.

[68] The decision in Morelli does not preclude reliance on a pattern of behaviour as part of the evidentiary foundation for the issuance of a search warrant. It merely requires that there be sufficient facts to provide that foundation. In Morelli, the court found that there were not sufficient facts. Here, as I have already explained, there is a pattern of conduct by the respondent based on the information that the police had gained from their investigation and the criminal record of the respondent. Put simply, there was offence specific information establishing a pattern of drug dealing involving the respondent.

[69] My colleague draws support for the trial judge's conclusion from R. v. Rocha (2012), 112 O.R. (3d) 742, [2012] O.J. No. 4991, 2012 ONCA 707. However, that case also does not assist. Rocha involved the sufficiency of an ITO based on an informer's tip, and whether that tip was sufficiently credible and corroborated to tie drugs to a particular residence. The decision does not turn on whether the information was "dated", nor does it turn on any pattern of conduct.

[70] The trial judge also rejected the Crown's explanation for the delay in obtaining the warrant based on the fact that, had the police moved on the respondent's involvement earlier, it would have curtailed the broader ongoing police investigation. In response to this point, the trial judge said:

If they were after the bigger fish with respect to the firearms they should have left [the respondent] alone until they could achieve their purpose and go after him on the evidence that they had at the time.

[71] It is unclear to me what the trial judge meant by "on the evidence that they had at the time". The evidence that the police had was the evidence they put in the ITO. If the trial judge meant that, if the police had nothing further regarding the respondent when they moved on the broader investigation, they ought to have [page341] left the respondent alone, then that view reflects a fundamental misunderstanding of large-scale police investigations, and an extremely problematic one at that.

[72] As numerous large-scale police investigations have demonstrated, such investigations take time. During the course of those investigations, different individuals committing different offences may be identified at different times. It is common practice to address all such individuals, and all such offences, at the time that the broader investigation is completed -- the so-called "take-down day". This is done as a practical matter to avoid undermining the broader investigation. This necessary approach does not, of course, remove the need for the police to have the requisite grounds for the authorization at the time that they obtain it.

[73] If the thrust of the trial judge's decision here is, as I fear, that the police must either move immediately, when each of those offenders and offences is identified, or otherwise walk away from the prosecution of such persons, the result will seriously undermine the effectiveness, indeed the viability, of these types of investigations. The police will be left with the insolvable dilemma of either moving on the more peripheral but still serious offences immediately, and thus risk disrupting the larger investigation that often reflects more widespread and ongoing offences, or complete their investigation and walk away from the earlier offences revealed. Neither of those results is palatable in terms of public safety or proper law enforcement. With respect, no evidence is required to take into account such common sense real-world considerations.

[74] Further, any suggestion that the police should act on such offences and just hope that doing so will not jeopardize the larger investigation, imposes on the police a requirement to assume an unacceptable risk. It also potentially involves placing any police agents and undercover officers who might be involved in the investigation, as was the case here, at risk for their safety. No proper interpretation of s. 8 Charter rights compels such intolerable choices.

*** Note de l'auteur de ce blog: cette dissidence de la Cour d'appel de l'Ontario est avalisée par la Cour suprême - voir R. c. James, 2019 CSC 52 ***

La pertinence d'une information à la base de motifs raisonnables d'un policier n'est soumise à aucune règle stricte de récence

R. v. Dionisi, 2012 ABCA 20

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[20]           We conclude that the trial judge erred in her approach as to whether there was a section 8 Charter breach in the first place. In a voir dire as to a section 8 Charter breach, the onus is not upon the claimant to merely show that there were defects in the ITO, the claimant must establish the breach of section 8 on a balance of probabilities. This can be done only by showing that it is likely that the search warrant would not have issued based upon the content of the ITO. It is not enough to persuade the trial judge that she would not have been inclined to issue the warrant on the grounds thus provided. The trial judge must be satisfied that the warrant is invalid, not that the trial judge would not have authorized it. The trial judge does not re-try the warrant: R v Schindler, 2001 ABCA 22, 277 AR 98 at para 18, citing R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992.

 

[21]           Even if it is established that there are flaws in the ITO, such as that information is inaccurate, or a material fact is not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions: see R v Pires, 2005 SCC 66 at para 30, [2005] 3 SCR 343. As the trial judge noted, the fact that the confirmatory information in the ITO related to details other than the actual observations of drugs in the house or the fact of appellant’s trafficking, that confirmation still has value on the totality of the circumstances: R v Caissey, 2007 ABCA 380 at para 23, 227 CCC (3d) 322, aff’d 2008 SCC 65, [2008] 3 SCR 451; R v Hillgardener, 2010 ABCA 80, 252 CCC (3d) 486. Here the ITO said that the informant had provided reliable information in the past and that he had been compensated for it, and also that he had a relationship with the handler. The fact that the informant had given specific details about non-offence particulars was still consistent with the informant providing information on which reliance could be placed. There would in such a context be support for the idea that the informant had no grudge against the appellant but a motive to work with the police.

 

[22]           The trial judge appears to have felt that the information from the informant might have been dated. There is no rule as to how recent information has to be in order to be relevant. In any event, the ITO alleged the information in the present tense. These averments provided no room for the conjecture that the information provided was not recent enough to be relevant. The trial judge also speculated as to whether the information provided by the ITO was information that the informant learned rather than seeing personally. An ITO is to be read in a practical, non-technical, common-sense basis: see R v Whitaker, 2008 BCCA 174 at paras 41-42, 254 BCAC 234, leave refused [2008] 3 SCR x. There was no foothold for the assumption that the information was second-hand. Even if it were second-hand, the police experience with the informant was such that his information had been found to be reliable in the past.

[23]           More generally, it would not be correct for a trial judge to assume that any observations made by that trial judge as to possible questions about the content of the ITO from looking at the text would be such as would have escaped the notice of the authorizing judge. For example, at one point she questioned whether the grammar in the ITO was identifying more than one informant. This court does not share her concern in that respect, but in any event the law does not assume that the trial judge is smarter than the authorizing judge in that sense. Rather, the search warrant is presumed to be valid: R v Pitre, 2011 NBCA 106 at para 34 citing Quebec (Attorney General) v Laroche, 2002 SCC 72 at para 68, [2002] 3 SCR 708.

 

[24]           The case law has said repeatedly that the function of the trial judge is not to substitute her opinion for that of the authorizing judge: R v Campbell, 2011 SCC 32 at para 14, [2011] 2 SCR 549 (“The question for a reviewing court is ‘not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence’ to permit an issuing justice to authorize the warrant (Morelli, at para. 40).”). Also see R v Lee, 2011 ABCA 310 at para 14 (“ The function of the reviewing judge is not to conduct a rehearing; rather, that judge should not interfere if the authorizing judge could have granted the authorization: R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at 1452, 60 CCC (3d) 161; R v Araujo, 2000 SCC 65, [2000] 2 SCR 992 at 1016‑1017.”).

 

[25]           A search warrant should issue only on a credibly-based probability, having regard to the whole of the circumstances, but as pointed out in Lee:

 

15        The proof sufficient to meet the standard of credibly based probability is whether the totality of the relevant circumstances support the inference. Here the appellant invites us to examine individual circumstances in isolation, and suggests other inferences are possible. We are satisfied that a collective assessment of the circumstances supports the finding of the reviewing judge that there was sufficient evidence that the authorizing judge could properly have granted the search warrant in this case.

 

[26]           The Court in Pitre explained that it is not for the trial judge to decide if the warrant would have necessarily issued on the ITO, but whether it could have been authorized by a judge acting judicially: see likewise R v Ebanks, 2009 ONCA 851, 249 CCC (3d) 29 at paras 21, 33. (Ebanks was applied by ONCA majority in its decision later affirmed in Campbell.) It is apparent from the reasons of the trial judge, notably at paras 35 to 37, that she adopted a totality test, contended for by counsel for the appellant, that the ITO had to provide “compelling” information. Her concerns about the conclusory nature of what the ITO contained overlooked the specific detail of the manner and price at which the appellant allegedly was selling cocaine. The suggestion that this may be “mere rumour or gossip” is not grounded in anything but the argument of counsel. She dismissed the averments about the 2004 incident as unhelpful. She concluded her analysis with the observation that “I find that the edited ITO contains insufficient grounds ...” by reference to the “compelling” test. That was not the question. The question was whether no judge, acting judicially, could have chosen to grant the authorization on the information remaining after redaction.

L'exécution d'un mandat de perquisition est de nature intrinsèquement coercitive, ce qui peut facilement mener à une détention psychologique des occupants si les policiers ne clarifient pas la situation

R. v. O'Brien, 2023 ONCA 197

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[37]      I accept the trial judge’s conclusion that the s. 9 breach was of minimal seriousness. There is no basis on the evidence for inferring that the police intentionally set out to detain Mr. O’Brien or acted negligently in doing so. I would say, however, that given the inherently coercive nature of warrant execution, and the reaffirmation in R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, that psychological detention can occur during the execution of search warrants, police officers who assume control over occupants in order to secure the scene of a search should pay closer attention to whether there are objectively reasonable indications that those persons may consider themselves to be detained than the police officers did in this case. It is a simple matter to explain to occupants why they are being directed, and to notify them when and where they are free to go.

Un mandat autorisant une perquisition dans un lieu précis pour chercher des choses précises confère aux personnes qui exécutent ce mandat le pouvoir de procéder à un examen raisonnable de tout élément se trouvant à cet endroit et dans lequel les choses précisées pourraient être découvertes

R. c. Vu, 2013 CSC 60

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[23]                          Je souscris à la proposition générale qu’a formulée dans les termes suivants la Cour d’appel : [traduction] « Un mandat autorisant une perquisition dans un lieu précis pour chercher des choses précises confère aux personnes qui exécutent ce mandat le pouvoir de procéder à un examen raisonnable de tout élément se trouvant à cet endroit et dans lequel les choses précisées pourraient être découvertes » (par. 63).  Autrement dit, une autorisation expresse préalable de fouiller tout ce qui se trouve dans le lieu en question n’est pas requise.  Toutefois, la question qui se pose consiste à décider si cette proposition générale s’applique aux ordinateurs ou si la fouille d’un ordinateur requiert l’obtention d’une autorisation expresse préalable.

En raison de la nature intrinsèquement coercitive de l'exécution d'un mandat de perquisition, une détention psychologique peut survenir, obligeant ainsi les policiers à être attentifs aux signes indiquant que les occupants ne se sentent pas libres et à les informer clairement de leur liberté de mouvement

R. v. O'Brien, 2023 ONCA 197

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[37]      I accept the trial judge’s conclusion that the s. 9 breach was of minimal seriousness. There is no basis on the evidence for inferring that the police intentionally set out to detain Mr. O’Brien or acted negligently in doing so. I would say, however, that given the inherently coercive nature of warrant execution, and the reaffirmation in R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, that psychological detention can occur during the execution of search warrants, police officers who assume control over occupants in order to secure the scene of a search should pay closer attention to whether there are objectively reasonable indications that those persons may consider themselves to be detained than the police officers did in this case. It is a simple matter to explain to occupants why they are being directed, and to notify them when and where they are free to go.

Les limites des pouvoirs policiers selon le test de Waterfield : exiger la fouille ciblée des manifestants pour accéder à une rue porte de prime abord atteinte à la liberté d'expression et au droit fondamental de circuler librement

Figueiras v. Toronto (Police Services Board), 2015 ONCA 208

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(1) Common law police powers and Waterfield

[41] Rule of law is a fundamental principle of the Canadian Constitution: Manitoba Language Rights (Re), 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36. One crucial aspect of the rule of law is the principle that "the exercise of all public power must find its ultimate source in a legal rule": Reference re Remuneration of Provincial Court Judges, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, at para. 10. As a result, "police officers . . . only act lawfully if they act in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties": R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, [1985] S.C.J. No. 45, at p. 28 S.C.R.

[42] Police powers arise both from statute (e.g., Police Services Act, R.S.O. 1990, c. P.15; Criminal Code) and from the common law itself. In the latter case, this is referred to as the "ancillary powers doctrine", reflecting the fact that police powers are ancillary to police duties.

[43] Police officers are given broad duties to preserve the peace and prevent crime. The powers conferred on them to execute those duties, however, are not correspondingly broad. As Doherty J.A. explained in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, [1993] O.J. No. 308 (C.A.), at p. 194 O.R.:

The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties. Police duties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law.

[44] Doherty J.A. later reinforced this point in Brown, where he noted that "[t]he common law ancillary power doctrine has never equated the scope of the police duties with the brea[dth] of the police powers to interfere with individual liberty in the performance of those duties" (at p. 250 O.R.).

[45] Brown also stands for the proposition that it will be more difficult for police to justify the existence and exercise of a power on the basis of preventive policing compared to when the police investigate a past or ongoing crime (Brown, at pp. 249-51 O.R.). [page654]

[46] Courts play an important role in regulating the exercise of preventive policing due to the low-visibility nature of preventative stops and their potential for abuse. As the Supreme Court explained in Mann, at para. 18: "[T]he unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low-visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role." When courts exercise their custodial role, this will sometimes involve recognizing a police power and imposing a legal framework on its exercise, as occurred in Mann. But it may result in the wholesale rejection of a purported police power, as occurred in Brown, and as I propose to do here.

[47] The Waterfield analysis is contextual, and one of the most important elements of context is the degree to which the police can link an individual whose rights are affected by police conduct to an actual or anticipated crime.

[48] The Waterfield test involves a careful balancing of competing interests. On one side of the scale is the state's interest in effective policing, including keeping the peace and crime prevention. On the other side is a consideration of the liberty interests of citizens, such as Mr. Figueiras, affected by the power that police exercise (or purport to exercise).

[49] Waterfield was imported into the Canadian jurisprudence in the pre-Charter case of Dedman. After the Charter's adoption, the Supreme Court effectively integrated the analysis of the impact on Charter rights into the Waterfield analysis. As the concurring minority in Clayton explained, the reference to "liberty" in the Waterfield test is a reference to all of a citizen's civil liberties, which in a post-Charter era mean both common law liberties, such as those at stake in Dedman and Waterfield itself, as well as constitutional rights and freedoms, such as those protected by the Charter (Clayton, at para. 59).

[50] Over time, the Supreme Court has modified the Waterfield test to emphasize the importance of Charter-protected rights. For example, the Waterfield test was summarized in Mann, at para. 26, as follows:

At the first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties, including, at common law, "the preservation of the peace, the prevention of crime, and the protection of life and property" (Dedman, supra, at p. 32). The second stage of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake. This aspect of the test requires a consideration of

whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is [page655] reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. (Cloutier, supra, at pp. 181-82)

The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage. Specifically, in Dedman, supra, at p. 35, Le Dain J. provided that the necessity and reasonableness for the interference with liberty was to be assessed with regard to the nature of the liberty interfered with and the importance of the public purpose served.

[51] The Supreme Court continues to apply the Waterfield analysis to define the limits of common law police powers. It has done so in accordance with Charter values, and in some cases has expressly integrated the Waterfield test into existing Charter frameworks, such as the R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15 analysis for the reasonableness of searches: see MacDonald. Accordingly, some commentators have argued that the Supreme Court has imported into the application of the Waterfield test an analysis akin to R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 (see, e.g., Richard Jochelson, "Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory" (2012-2013), 43:3 Ottawa L. Rev. 355).

[52] The potential interplay between Waterfield and Oakes is particularly important given the liberties at stake in this case. The existing Waterfield jurisprudence deals predominantly, if not exclusively, with rights under ss. 8, 9 and 10 of the Charter, which have internal limits built into the rights they guarantee (i.e., s. 8 guarantees the right to be secure against unreasonable search and seizure; s. 9 guarantees the right not to be arbitrarily detained or imprisoned). The Supreme Court has held that a detention that is found to be lawful at common law is, necessarily, not arbitrary under s. 9 (Clayton, at para. 20). Similarly, a search conducted incidentally to a lawful arrest or detention will not be found to infringe s. 8 if the search is carried out in a reasonable manner and reasonable grounds for the search exist (Mann; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3). As a result, when police act in accordance with their common law ancillary powers, the internal limits of these sections are respected, and there is no Charter breach that must be justified by s. 1.

[53] By contrast, s. 2(b) guarantees an unqualified right to freedom of expression, without internal limits, the infringement of which falls to be justified under s. 1: Peter W. Hogg, Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007), at p. 43-6. Thus, to the extent that the police conduct in this case infringed Mr. Figueiras' expressive rights, it is not immediately apparent that that conduct should be analyzed [page656] under Waterfield rather than under s. 1 (and, in particular, under the "prescribed by law" branch of the Oakes test).

[54] In my view, nothing turns on the approach taken. Whichever approach is used here, the outcome of the appeal depends on whether the officers were validly exercising a common law police power. In any case, as I explained above, the parties agreed before the application judge that if the impugned conduct passed muster under Waterfield, there was no breach of Mr. Figueiras' Charter rights. In light of that position, I will follow the Waterfield analysis -- as the application judge did -- to decide this appeal.

(2)   Threshold issues

[55] Before undertaking the Waterfield analysis, I will address two threshold issues: (a) defining the police power at issue, and (b) identifying the liberty interests at stake.

(a)   Defining the police power

[56] Defining what police power was being exercised in the present case is not straightforward. Various types of powers present themselves as possible candidates.

[57] At first glance, Sgt. Charlebois and his team were exercising a police power to control access to a defined area. There are a variety of circumstances where such a police power has been recognized in the case law.

[58] In some instances, statutes provide the police with the power to control access to an area. For example, there are statutes that regulate the public's access to buildings such as courthouses (in Ontario, the Public Works Protection Act, R.S.O. 1990, c. P.55) and airports (see the Aeronautics Act, R.S.C. 1985, c. A-2 and associated regulations). These statutes typically require individuals to consent to a search before access to a building will be granted. In Manitoba, it was held that absent statutory authority, police were not authorized to carry out searches of those seeking to enter courthouses (R. v. Gillespie, 1999 CanLII 4707 (MB CA), [1999] M.J. No. 562, 142 Man. R. (2d) 96 (C.A.)). However, both this court and the Manitoba Court of Appeal have held that searches conducted at courthouses were Charter-compliant, provided that the power was granted to police by statute (R. v. Campanella (2005), 2005 CanLII 10880 (ON CA), 75 O.R. (3d) 342, [2005] O.J. No. 1345 (C.A.); R. v. Lindsay, [2004] M.J. No. 380, 2004 MBCA 147, 187 Man. R. (2d) 236).

[59] There is no comparable statute here. Accordingly, the police must rely on their common law powers. Examples of the common law police power to control access to an area include establishing a perimeter around a police officer who is executing [page657] an arrest (R. v. Wutzke, [2005] A.J. No. 432, 2005 ABPC 89, at paras. 60-66); establishing a perimeter around a police officer who is questioning a suspect or a witness (R. v. Dubien, [2000] Q.J. No. 250, J.E. 2000-461 (C.M.), at paras. 14-26); establishing a perimeter around a crime scene to preserve evidence (R. v. Edwards, [2004] A.J. No. 68, 2004 ABPC 14, 25 Alta. L.R. (4th) 165, at paras. 4-6, 24-48, 66); and establishing a perimeter around a hazardous area to preserve public safety (R. c. Rousseau, [1982] J.Q. no 490, [1982] C.S. 461 (Sup. Ct.), at pp. 461-62, 463-64 C.S.). It has also been recognized that the police can establish a security perimeter around a potential target of violent crime in order to ensure the target's protection (Knowlton, at pp. 447-48 S.C.R.).

[60] As the case law demonstrates, even in the absence of statutory authority, the police must be taken to have the power to limit access to certain areas, even when those areas are normally open to the public. However, this is not a general power; it is confined to proper circumstances, such as fires, floods, car crash sites, crime scenes and the like.

[61] However, the power exercised by Sgt. Charlebois and his team in this case was not merely a power to control access to an area; rather, it was a power to compel those entering an area to submit to a search, and to exclude those who refused. It was also a power that was applied selectively, targeting only demonstrators. This power was not provided by any statute or regulation. It was also significantly different from any of the situations recognized under common law and described in previously reported cases.

[62] I would frame the power exercised in this case as follows: the power of individual police officers to target demonstrators and, where no crime is being investigated or believed to be in progress, but with the intention of preventing crime, to require that they submit to a search if they wish to proceed on foot down a public street.

(b) Identifying the liberty interests at stake

[63] As noted earlier, the parties disagree about which liberties (in the sense of common law civil liberties or Charter rights) are implicated here. As a result, even though Mr. Figueiras had requested declaratory relief based on his ss. 2(b), 2(c) and 7 Charter rights, the bulk of the application judge's reasons focused on s. 9. In my view, the unusual situation presented in this case makes the task of identifying the Charter issues less straightforward than it appears from the application judge's reasons.

[64] For example, one could argue that the s. 8 right to be free from unreasonable search is at play. After all, it was the police's [page658] desire to search Mr. Figueiras that led them to deny him access to the perimeter zone in the first place. However, the case law establishes that the operative moment for assessing a s. 8 violation is the moment at which the search is actually carried out (Clayton, at para. 48; Peterkin, at para. 62). I agree with the intervenor the Canadian Civil Liberties Association that in this case, because there was no search, that moment was never reached.

[65] Similarly, the s. 9 right not to be arbitrarily detained may well not apply here. On one hand, there could arguably have been a detention at some point during the interaction between police and Mr. Figueiras, but on the other hand, Mr. Figueiras was free to walk away from the officers, albeit not in the direction he had intended (see R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at paras. 20-21). Indeed, Mr. Figueiras himself argued that he was not detained and that his s. 9 rights were not engaged.

[66] In my view, the police conduct in this case was a prima facie infringement of two liberties: freedom of expression under the Charter and the common law right to travel unimpeded down a public highway. I will address each in turn.