COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lee, 2017 ONCA 654

DATE: 20170817

DOCKET: C61186

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Lee

Appellant

Adam Steven Boni, for the appellant

Brian Puddington, for the respondent

Heard: July 5, 2017

On appeal from the conviction entered on September 19,
    2014 by Justice Wailan Low of the Superior Court of Justice, sitting without a
    jury.

Weiler J.A.:

A.

Introduction

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, contrary to s. 5(2) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. He appeals his conviction on the basis that his right to be
    free from unreasonable search and seizure under s. 8 of the
Canadian Charter
    of Rights and Freedoms
was violated and further submits the evidence seized
    ought to have been excluded pursuant to s. 24(2) of the
Charter
.

[2]

The search was in response to a 911 call stating the appellant was
    observed in his car with what the caller believed to be a gun. Once no gun was
    found on the person of the appellant or in the interior of the car, the police
    searched the trunk. In the trunk, officers found 23 kilograms of cocaine.

[3]

The main issue on appeal is whether that search was reasonable. If not,
    the issue is whether the evidence obtained as a result of the search ought to
    have been admitted at trial.

[4]

For the reasons that follow, I would uphold the trial judges conclusion
    that the search was reasonable. I would also uphold her conclusion that, in any
    event, the evidence seized was admissible under s. 24(2). Accordingly, I would
    dismiss the appeal.

B.

Facts

[5]

On the evening of November 29, 2012, Officers Warman and Cassidy were on
    general patrol in their scout car. At 8:23:10 p.m. they received a call from dispatch
    that there was a male of Asian descent possibly armed with a gun in the parking
    lot near the liquor store at the Agincourt Mall, which is in the area of
    Kennedy Road and Sheppard Avenue in Toronto.

[6]

911 gun calls are designated with the highest priority. The officers
    were seconds away and told dispatch to mark them on the call. While en route,
    the officers received the following message over the squad cars computer:

WL2 SCARBOROUGH WIND-MOBILE ADDRESS AVAILABLE BY THE LIQUOR
    STORE IN A WHITE VEH -BKND714 [the licence plate number]

COMP SAYS HE SAW A LARGE BAG

IT WAS IN THE TRUNK OPEN

COMP BELIEVES HE SAW A GUN - 1M/A.SIAN-30-40S

COMP SAYS HE JUST DROVE BY A CAR AND BELIEVES HE SAW A GUN

THINKS THIS MALE IS DEALING DRUGS

COMP IS IN A CAR AND DROVE BY THE SUSP VEH-ITS DARK INSIDE THE
    CAR AND BELIEVES HE SAW IT IN THE MALES POCKET

SAYS THE MALE WAS BY HIMSELF AND IN THE DRIVERS SEAT

VEH COMES BACK AS RENTAL CAR

TRIED TO FIND OUT HOW HE SAW THE GUN IN THE DARK DRIVING
    BY-CHANGES HIS MIND

BELIEVES HE SAW IT

MALE ALSO HAS A BRN HAT ON

COMP COULD NOT EXPLAIN/CLARIFY EXACTLY WHERE THE GUN MAY BE

[7]

Dispatch was unable to get in touch with the complainant after the
    initial call.

[8]

Officers Warman and Cassidy then received oral information from dispatch
    that the vehicle was a white four-door 2009 Toyota. They drove to the liquor
    store, arriving at 8:24:53, but did not see the vehicle. They exited the
    parking lot and drove along a nearby road where, a few minutes later, they saw
    a vehicle pulled over with the engine running matching dispatchs description of
    the car and the licence plate. The car had a single male occupant  the appellant
     who was Asian and wearing a brown hat. Officers Warman and Cassidy stopped
    behind the vehicle.

[9]

The officers approached the appellant, ordered him to show his hands,
    opened the car door, and removed him from the drivers seat. Officer Warman
    told the appellant he was under investigative detention following the 911 gun call.
    The appellant looked shocked and said, No! No!, in response to mention of the
    word gun. Officer Warman did not immediately inform the appellant of his
    right to counsel. He did a pat-down search for weapons and found none. The
    appellant was detained but not handcuffed. Officer Cassidy performed a search
    of the passenger cabin of the appellants vehicle and did not find a gun.

[10]

Sergeant Gouthro, who had also heard the 911 gun call, arrived shortly
    after Officers Warman and Cassidy with two other officers. Either P.C. Cassidy
    or Sgt. Gouthro pushed the button releasing the latch to open the trunk of the
    appellants vehicle. A duffle bag came into view once the trunk was open. Sergeant
    Gouthro lifted the bag and found it heavy. Thinking there could be guns inside,
    he unzipped it. The bag contained 23 kilograms of cocaine. No gun was located.

[11]

The investigative detention lasted three minutes. By 8:39 p.m., the
    appellant was arrested for possession of a controlled substance for the purpose
    of trafficking. At that time, he was informed of his right to counsel. The next
    day, the police obtained a search warrant to search the appellants vehicle and
    to seize the duffle bag and cocaine.

C.

Trial Judges Reasons

(1)

Ruling on the
Charter
application

(a)

Section 8 and 9

[12]

The appellant brought an application to exclude the 23 kilograms of
    cocaine from evidence at his trial. The trial judge dismissed the application
    and admitted the evidence.

[13]

The trial judge rejected the appellants submission that the 911 call
    was unreliable because it was ambiguous as to where exactly the suspect was
    storing a gun  in his car, or in his pocket. She stated the other details
    provided by the caller, and the fact that the officers found a vehicle matching
    the callers description in the vicinity of the identified location, made the
    caller a reasonably reliable source of information for the police. On the
    basis of the information in the 911 call, the officers reasonably believed the
    appellant was probably the person the caller had seen. They reasonably inferred
    there could have been a gun in the appellants car.

[14]

The trial judge accepted P.C. Cassidy and Sgt. Gouthros evidence that they
    believed since the gun was not on the appellants person or in the cars cabin,
    it was likely in the trunk. They accordingly searched the trunk.

[15]

The trial judge held Sgt. Gouthros search of the trunk was authorized
    by either s. 117.02(1) of the
Criminal Code
, R.S.C. 1985, c. C-46 or the common law
.

[16]

Section 117.02(1) authorizes the police to search a vehicle without a
    warrant where certain preconditions are met. This section applies where a
    police officer believes on reasonable grounds that a weapon was used in the
    commission of an offence and evidence of the offence is likely to be found in a
    vehicle, and where the conditions for obtaining a warrant exist but because of
    exigent circumstances it would not be practicable to obtain a warrant.

[17]

The trial judge also held the police had a common law power to search
    the appellants trunk. She analogized this case to the situation in
R. v.
    Plummer
, 2011 ONCA 350, 272 C.C.C. (3d) 172. In
Plummer
, a police
    officer conducted a pat-down search and then conducted a more extensive search
    of the suspects vehicle for weapons after the pat-down revealed the suspect was
    wearing a bulletproof vest. This court held that search was a valid use of the
    power to search incidental to an investigative detention. In the present case,
    the police officers reasonably believed based on the 911 call that the
    appellant had a gun in his vehicle. It was reasonable for the police to infer
    that if the gun was not found on the appellants person or in the vehicles cabin,
    it must have been in the trunk. The trial judge noted, [i]n the absence of
    either seizing the gun or verifying that there was no gun, there remained a
    reasonably held concern for officer and public safety.

[18]

Ultimately, the trial judge found that the search of the trunk was authorized
    by either s. 117.02(1) of the
Criminal Code
or the common law and was
    therefore reasonable. She held there was no breach of s. 8 of the
Charter
.
    It is implicit from her reasons that she also found no breach of s. 9.

(b)

Section 10(b)

[19]

The trial judge acknowledged the police breached the appellants rights
    under s. 10(b) of the
Charter
by not informing him of his right to
    counsel immediately upon detaining him for investigative purposes. She held,
    however, the delay was minimal (90 seconds) and there was no bad faith. The
    police did not elicit any statements from the appellant, there was no nexus
    between the s. 10(b) breach and the location of the cocaine, and there was no
    question of compromising trial fairness. Therefore, the trial judge held there
    was no cogent argument in favour of excluding the cocaine from evidence as a
    result of the s. 10(b) breach.

(c)

Section 24(2)

[20]

In the event that she was wrong about her conclusions with respect to
    the breach of s. 8 of the
Charter
, the trial judge concluded she would
    have admitted the cocaine into evidence under s. 24(2). In doing so, she
    conducted the analysis set out in
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353.

[21]

First, the breach was not egregious. The police were acting reasonably
    in response to the 911 gun call and were not acting in bad faith. Sergeant Gouthro
    thought he had statutory authority to search the appellants vehicle, although
    he was mistaken as to the true source of his authority.

[22]

Second, the impact of the search of the trunk on the appellants privacy
    interests was diminished because the car was a rental vehicle, the appellant
    attempted to distance himself from the car by saying it was not his, and he had
    few personal belongings in the vehicle.

[23]

Third, society has a strong interest in the adjudication of the case on
    its merits. The cocaine is reliable evidence of the appellants guilt and is
    essential to the Crowns case.

(2)

Reasons for conviction

[24]

The trial judge was satisfied the quantity of cocaine found in the
    appellants trunk was consistent with trafficking and the appellant had
    knowledge that it was in his trunk. She therefore entered a conviction against
    the appellant for possession of cocaine for the purpose of trafficking.

D.

Issues

[25]

The appellant raises three issues:

1.

Was the search
    of his trunk authorized by s. 117.02(1) of the
Criminal Code
?

2.

Was the search of
    his trunk authorized by the common law?

3.

Should the
    cocaine be excluded from evidence under s. 24(2) of the
Charter
?

E.

Analysis

(1)

The search of the trunk was not authorized by s. 117.02(1)

[26]

As the police officers all testified that they did not believe they had
    grounds to obtain a warrant to arrest the appellant at the time of the search,
    s. 117.02(1) of the
Criminal Code
does not apply. In oral argument
    before us, the Crown did not suggest otherwise. Accordingly, I would agree with
    the appellant that s. 117.02(1) did not authorize the search in this case.

(2)

The search of the trunk was authorized by the common law

(a)

Relevant legal principles

[27]

To determine whether a search is authorized by the common law, a court
    must determine: (1) whether the police conduct in issue falls within the
    general scope of any duty imposed on the officer by any statute or common law,
    and (2) whether, in the circumstances, the police conduct involved a
    justifiable use of the powers associated with the engaged duty:
R. v.
    Waterfield
, [1964] 1 Q.B. 164;
R.
    v. Godoy,
[1999] 1 S.C.R. 311, at para. 12.

[28]

In this case it was not really contested on appeal that police have a duty
    to respond to a 911 call. Thus, the real issue is the second branch of the
Waterfield
test, namely, whether the search conducted by the police is a justifiable
    exercise of police powers.

[29]

One line of jurisprudence concerning when a search is justifiable arises
    from searches conducted pursuant to an investigative detention. In
R. v.
    Mann
, 2004 SCC 52,

[2004]
    3 S.C.R. 59, the Supreme Court established the following four requirements.

[30]

First, a police officer must have reasonable grounds to suspect in all
    the circumstances that the individual is connected to a particular crime and
    that such a detention is necessary:
Mann
, at para. 45.

[31]

Second, the police officer is entitled to search the individual detained
    for a weapon where the officer has a reasonable belief that his safety or the
    safety of othersis at risk:
Mann
, at paras. 40, 43, 45. The Supreme
    Court cited with approval the decision in
Minnesota v. Dickerson
(1993),

508 U.S. 366, at p. 373-74, which describes the objective of a valid
    protective search as extending to bystanders. The decision to search cannot
    be premised on hunches, mere intuition, or a vague or non-existent concern for
    safety, rather, the officer, is required to act on reasonable and specific
    inferences drawn from the known facts of the situation. The search must also
    be confined in scope to an intrusion reasonably designed to locate weapons:
Mann
,
    at paras. 40-41.

[32]

Third, the search must be conducted in a reasonable manner:
Mann
,
    at paras. 45.

[33]

Fourth, the investigative detention should be brief and the individual
    detained is not obliged to answer questions:
Mann
, at para. 45. Questions
    during the detention may, depending on the circumstances, amount to a search
    and seizure of information.

[34]

The scope of a search incidental to an investigative
    detention was further considered in
Plummer
. In
Plummer
,
the
    police questioned the occupants of a car parked outside of a residence with
    known drug associations after seeing the passenger slouch forward and bend down
    in a manner which they thought was consistent with concealing drugs. After
    asking the occupants their names, one officer recalled an officer safety alert
    that had been issued the week before warning that the passenger was possibly
    armed with a handgun. A pat-down search revealed the passenger was wearing a
    bulletproof vest, but he did not have a gun on his person. The officer subsequently
    found a gun in a bag belonging to the appellants girlfriend under the
    passenger seat.

[35]

At issue was whether the
    officer had the authority to search the car incidental to the investigative
    detention. In concurring reasons,
Sharpe J.A. emphasized the
    limited power to search incidental to an investigative detention, at para. 76:

A search incidental to an
    investigative detention is defined and limited by the immediate concerns of officer
    safety. This reflects an important difference between the narrowly focussed and
    strictly limited protective search that may accompany an investigative
    detention, and the broader power to search consequent to a lawful arrest. It is
    necessary to maintain that distinction and to confine the scope of a search
    incidental to an investigative detention within strict limits. Here, the police
    did not arrest the appellant, presumably because they did not think they had
    grounds for an arrest. As the appellant points out, there is an understandable
    tendency to expand a narrow rule to endorse the police conduct being
    challenged, since the case before the court will always be one where the search
    actually yielded a weapon or some other valuable evidence. This is a tendency
    that the courts should resist.

[36]

On the facts of
Plummer
, however, MacPherson J.A. held, and Laskin
    and Sharpe JJ.A. concurred, that the officers were entitled to search the bag
    in the car to ensure their own immediate safety:
Plummer
, at paras.
    65, 77-78.

[37]

The other line of jurisprudence relevant to this case concerns the
    justifiability of searches conducted pursuant to a 911 call. In
Godoy
,
    the police received a 911 call that was disconnected before the caller spoke.
    The police traced the call and attended the apartment from where the call had
    emanated. The person who opened the door assured them that everything was
    alright; he subsequently attempted to close the door. The police prevented the
    door from closing, entered the dwelling, and searched the apartment. They found
    the injured victim in the bedroom. Even though the initial observations of the
    police in responding to the 911 call did not raise any significant safety
    concerns, and the police searched a home, in which the reasonable expectation
    of privacy is high based on the underlying values of the dignity, integrity and
    autonomy of the individual, the Supreme Court held the search was justifiable. In
    coming to its conclusion, at para. 18, the court

adopted the following
    description of justifiable, which Doherty J.A. articulated in
R. v. Simpson
(1993), 79 C.C.C. (3d) 482
, at p. 499:

[T]he justifiability of an officer's conduct depends on a
    number of factors including the duty being performed, the extent to which some
    interference with individual liberty is necessitated in order to perform that
    duty, the importance of the performance of that duty to the public good, the
    liberty interfered with, and the nature and extent of the interference.

[38]

The Court concluded at para. 18, it was necessary for the police to
    enter the appellant's apartment in order to determine the nature of the
    distress call. There was no other reasonable alternative to ensure that the
    disconnected caller received the necessary assistance in a timely manner.
    Entry into the home and a search of the home was necessary in order to assure
    the safety of the 911 caller.

[39]

In addition to providing helpful guidance on when a search is
    justifiable,
Godoy
also contains some useful comments on the nature of
    a 911 call. The Supreme Court held that a 911 call is a distress call, that
    criminal activity is not a prerequisite, and that, [t]he point of the 911
    emergency response system is to provide whatever assistance is required under
    the circumstances of the call:
Godoy
, at para. 16.

[40]

More recently, in
R. v. Peterkin
, 2015 ONCA 8, 319 C.C.C. (3d)
    191, at paras. 37-54, Watt J.A. thoroughly summarized the general principles
    governing the authority for police to conduct a safety search incidental to an
    investigative detention pursuant to a 911 call. As in this case, the main issue
    in
Peterkin
was the extent to which a safety search incidental to an
    investigative detention was justifiable.

[41]

In
Peterkin
,

Watt J.A. pointed out that the Supreme
    Court considered the extent to which a safety search is authorized in
R. v.
    MacDonald
,

2014 SCC 3, [2014]
    1 S.C.R. 37. Although
MacDonald
involved a police response to a 911
    call about a noise complaint instead of a safety search incidental to an
    investigative detention, the majority of the Supreme Court, citing
Mann
,
    concluded safety searches are authorized by law, only if the officer
believes
on reasonable grounds his or her safety is
at stake
and that, as
    a result, it was necessary to conduct a search:
Peterkin
,

at para. 53 (citations omitted; emphasis
    in
original
).

[42]

I read Watt J.A. to be saying that, arguably,
MacDonald
stands
    for the proposition that it is appropriate to take a subjectiveobjective
    approach to whether a safety search incidental to investigative detention is
    lawful. The police must believe the search is necessary for their own safety,
    or that of the public, and that belief must be objectively reasonable. I note,
    however,
MacDonald
was not argued before us.

[43]

Ultimately, regardless of any subtle differences in the evolution of the
    law, for the reasons that follow, I am of the opinion that in all the circumstances
    the search carried out in this case was reasonably necessary to ensure the
    safety of the police and the public.

(b)

Application

[44]

I begin with the observation that the trial judge found the search was
    analogous to the situation in
Plummer.
She stated:

In my view there is an equally compelling safety concern here.
    This was a fluid situation initiated by a 911 call and
where every other detail checked out positive. It was
    a reasonable belief on the part of the officers that if the 911 caller was
    right about all the other details, he would be right about the gun also.
[Emphasis added.]

[45]

The trial judges assessment of the evidence and findings
    of fact are entitled to substantial deference by a reviewing court: see
R.
    v. Cornell
,
2010 SCC 31
,
[2010] 2 S.C.R.
    142
, at paras. 22-25
.

[46]

The appellant agrees the trial judge appropriately observed the police
    should be entitled to proceed on the basis that the information derived from a
    911 call is given
bona fides
unless and until shown otherwise. On
    appeal, the appellant also concedes the police had authority to conduct an
    investigative detention and common law authority to search his person and the
    cabin of his car. He submits, however, the trial judge erred by resolving the
    matter based on the sincerity of the officers subjective belief and not the
    objective reasonableness of their actions.

[47]

As I understand the appellants position, he does not take issue that three
    of the four
Mann
criteria were met in this case. I agree that three
    can be readily disposed of.

[48]

First, the investigative detention was necessary. Based on the 911 call,
    [the officers] were discharging their common law duty to preserve the peace,
    prevent crime, and protect life and property:
Peterkin
,

at
    para. 61. As a result of confirmation of the specific information in the call,
    description of the car, licence plate, and description of the individual
    driving it, the police had reasonable grounds to suspect that the appellant was
    connected to a particular crime, possession of an illegal weapon, a gun, and
    his investigative detention was necessary.

[49]

Second, the police had reasonable grounds to believe that their safety
    and the safety of the public was engaged and they were entitled to conduct a
    protective pat-down search of the appellant. In the particular circumstances,
    and in accordance with
Plummer,
they were also entitled to search the
    cabin of the car. That, says the appellant, is the extent of the search
    authorized by the jurisprudence and it is to this submission I will return.

[50]

Third, the appellant does not submit that the manner in which the search
    was conducted was unreasonable.

[51]

Fourth, there is also no issue that the investigative detention was
    brief. Here, after receiving the 911 call from dispatch at 8:23:10 p.m., the
    police were at the liquor store parking lot by 8:24:53 p.m., and they located
    the appellant only a few minutes later. The appellant was under arrest within
    sixteen minutes from the time of the 911 call.

[52]

The appellant reads
Mann
as authorizing a pat-down search
    during an investigative detention for police safety,
Plummer
as an
    extension to the cabin of the car in very particular circumstances, and this
    case as attempting to extend a safety search to the entire car without the
    required confirmatory basis that existed in
Plummer
to extend such a
    search.

[53]

In particular, the appellant submits the trial judges reliance on
Plummer
is misplaced in three respects: (1) there was no confirmatory evidence
    from the pat-down search or the search of the cars cabin that a weapon
    existed; (2) once these searches were completed, no reasonable basis remained
    for a belief that the appellant had immediate access to a firearm; and (3)
    unlike in
Plummer
, where there had
    been a police safety alert and the car was in a high-crime area, here

there
    were no specific articulated safety concerns. The appellant submits the search
    in this case did not involve a careful step-by-step approach, as was the case
    in
Plummer
. Rather, the police were focused on searching for a gun.

[54]

I agree that this case has significant factual differences from
Plummer.
But these differences do not assist
    the appellant in his submissions.
In
Plummer
,

the police had no specific information
    that the accused was engaged in illegal activity (other than being parked
    illegally) at the time they approached his car. The officers primary concern
    at the time of the investigative detention was for their own safety and thus it
    was only as each step they took confirmed their suspicions that the ultimate search
    of the bag in the vehicle pursuant to the investigative detention could be
    considered reasonable.

[55]

Here, by contrast, the caller specifically asserted he believed he saw a
    gun in the possession of the person sitting in the drivers seat of the car, he
    saw a large bag in the open trunk, and he suspected the person in the car was
    dealing drugs in a public area. The officers were responding to a 911 call and Officer
Cassidy testified that, as a police officer, he was concerned for
    public safety after reading the computer printout of the 911 call.
The
    urgency and importance associated with a 911 gun call and its implications for
    public safety, cannot be ignored. In responding to the 911 call, the officers
    concern was for the safety of the public as well as their own safety.

[56]

The appellants assertion that, in
    the absence of further confirmatory evidence, the jurisprudence precludes the
    police from searching the trunk of the car is really a narrow compartmentalized
    approach to the jurisprudence that does not accord with
Mann
.

[57]

Mann
holds that the officer is required to act
    on reasonable and specific inferences drawn from the known facts of the
    situation. At the time of the 911 call, the caller specifically stated the
    trunk of the car was open and there was a large bag inside. Although the caller
    indicated he thought the person in the drivers seat had a gun in his pocket, he
    also indicated he could not explain or clarify exactly where the gun might be.
    When the officers approached the vehicle, the trunk was closed. The trial judge
    found the officers reasonably believed the person driving the car was probably
    the person who had closed the trunk. At para. 28 of her reasons she held:

I find that the officers reasonably believed that the person
    driving the car was probably the person who closed the trunk as there was no
    other individual involved. I find that they reasonably inferred that there
    could have been one or more guns in the car and that the gun that the caller
    believed he saw could have been moved to the pocket of the Asian male from the
    trunk or from the pocket to the trunk.

[58]

In holding that the officers belief was reasonable and
    that the inference they drew was a reasonable one, the trial judge was
    assessing their evidence objectively; she did not base her decision solely on
    the sincerity of the police officers subjective belief as asserted by the
    appellant. Once the police had searched the appellants person and the cars cabin,
    it was not an unreasonable inference that the gun might be in the trunk.

[59]

Officer Cassidy testified that while the appellant was
    detained, he posed no threat to the officers or to public safety. He further testified,
    however, if the appellant had been allowed to drive away without his trunk
    having been searched, and if a gun was in the trunk, then a member of the
    public was probably going to be  affected by it down the road. Although read
    on its own, the first part of P.C. Cassidys testimony supports the appellants
    submission that the police believed the immediate threat to public and police
    safety was over once the driver and body of the car had been searched, when the
    evidence is read in context and as a whole, it is apparent that while there was
    no immediate threat to the officers safety, an immediate concern for the
    safety of the public remained. This concern was reasonable because had the
    police not searched the trunk of the car, and had the appellant been allowed to
    leave, he would still have had access to any firearm in the trunk simply by
    pressing a lever and re-opening the trunk. Although
actual
harm might only occur in the future, a present
danger
of harm existed that had not been dispelled. The only way the police
    could complete their duty to protect the public from the risk of harm was to
    search the trunk.

[60]

The justifiability of police conduct in conducting a search also factors
    in the nature and extent of the interference with individual liberty:
Simpson,
at p. 499
.
In this case, the nature of the search, a search of
    the trunk of the appellants car, was not demeaning to his dignity, integrity
    or individual autonomy.

[61]

The appellant makes two final complaints about the trial judges s. 8
Charter
analysis.

[62]

First, the appellant submits the trial judge failed to take into account
    the appellants exculpatory statements in response to being informed he was
    under investigation because of a 911 call.
However, the trial
    judge did note the appellants exculpatory statements in describing the facts;
    she was alive to the appellants statement as part of the circumstances. It is
    trite law that a trial judge need not refer to all of the evidence in giving
    reasons for a decision or ruling: see
R. v. Newton
(2006), 29 M.V.R. (5th) 11 (Ont. C.A.), at para. 3. I also note that
    in
Godoy
, the police were not obliged to act on
    the assurances of the person who answered the door.

[63]

Second, the appellant is critical of the fact that the
    police did not question him further before engaging in their search. However,
    given the circumstances and the fact the detainee is under no obligation to
    respond to questions, the police were under no duty to question him.

[64]

In summary, the appellant has not shown any error in the
    trial judges findings and her conclusion accords with the existing
    jurisprudence. T
he officers conduct meets the justifiability criteria.

The officers acted in the course of their duty in responding to the 911
    call, the extent to which there was an interference with the appellants
    liberty  both in time and in scope  was limited and necessary in order to dispel
    the possible threat of serious injury or death to others. The importance of
    preventing serious injury or death to members of the public in not allowing the
    appellant to drive away until that threat was dispelled clearly outweighs the additional
    interference with the appellants liberty and privacy interests.

[65]

Importantly, this decision must not be read as condoning an unlimited
    search of a car for police or public safety purposes whenever there is an
    investigative detention. The jurisprudence makes it clear that it is the
    totality of the circumstances that must be considered in every case. It is a
    very factually-driven analysis.

(3)

The cocaine was properly admitted as evidence under s. 24(2)

[66]

In
Grant,
the Supreme Court held that a trial court must review
    and balance three lines of inquiry under s. 24(2): (1) the seriousness of the
Charter
-
infringing state conduct; (2) the impact
    of the breach on the
Charter
-
protected
    interests of the accused; and (3) societys interest in the adjudication of the
    case on its merits.

[67]

The trial judge held that given the totality of the circumstances, the
    officers were acting
bona fide
in the discharge of their duties. The
    officers had an honest and reasonable belief they had the authority to search
    the car, including the trunk. The impact of the search on the
Charter
-
protected interests of the appellant was
    diminished by his disclaimer that it was not his car and the relative emptiness
    of the car as judged by the officers view of the passenger cabin. Further, the
    appellant had acquired physical possession of the car only a short time prior
    to the search. With respect to the third inquiry under
Grant
, the 23
    kilograms of cocaine is physical and reliable evidence. Admitting it did not
    affect trial fairness; it was the crux of the Crowns case. On balance, the
    trial judge was not satisfied the administration of justice would be brought
    into disrepute if the cocaine was admitted as evidence.

[68]

The appellant submits the cocaine found in his trunk should be excluded from
    evidence under s. 24(2). First, the breaches were serious. The police simply
    charged ahead to search for evidence suggested by the 911 caller without
    turning their minds to their authority to do so. Second, the impact of the
    illegal search on the appellants privacy was serious. This court has held that
    individuals have a high expectation of privacy in a rental car: see
R. v.
    Calderon
(2004), 188 C.C.C. (3d) 481 (Ont. C.A.), at para. 98. The s. 8
    breach was aggravated by the s. 10(b) breach. Third, even if the evidence found
    in this case was reliable, this third inquiry under
Grant
cannot tip
    the balance in favour of admissibility: see
R. v. McGuffie
, 2016 ONCA
    365, 336 C.C.C. (3d) 486, at para. 63.

[69]

I would not give effect to these submissions for three reasons. First, the
    contention that the police charged ahead without considering their authority to
    act is simply not supported by the record. The trial judges finding that the
    police acted in good faith is entitled to deference. Second, in terms of the
    privacy interest in a car, I note that in
R. v. Harrison
, 2009 SCC 34,
    [2009] 2 S.C.R. 494, at para. 30, the Supreme Court of Canada commented that
    motorists have a lower expectation of privacy in their vehicles than they do
    in their homes because driving is a regulated activity and drivers are subject
    to stops for reasons pertaining to highway safety. As a result. [t]he
    intrusion on liberty and privacy is less severe than it would be in the case of
    a pedestrian, however, it is much more than trivial and must be weighed
    against the absence of
any
reasonable basis for justification:
Harrison
,
    at para. 31, citation omitted, emphasis in original. In this case, unlike
Calderon
in which the majority held there was no justification for any search,
    there was justification for an investigative detention and the search of the
    appellants person and cabin of the car. Third, the trial judges conclusion
    was sound and reasonable. It too is entitled to deference: see
R. v. Côté,
2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.

[70]

Therefore, if there was a
Charter
breach, I would nonetheless
    uphold the trial judges decision to admit the evidence.

F.

Disposition

[71]

For the reasons above, I would dismiss the appeal.

K.M. Weiler J.A.

I agree C.W.
    Hourigan J.A.

Pardu J.A.
    (Concurring):

[72]

I agree with the
    majority that this appeal should be dismissed but for different reasons than
    those given by my colleagues.

[73]

The police power of
    search incidental to investigative detention ought to be carefully
    circumscribed so that it does not undermine the protection afforded by s. 8
    of the
Canadian Charter of Rights and Freedoms
. In my view, the search
    in this case was not authorized by law and therefore infringed the appellants
    right to be free from unreasonable search and seizure. However, I agree with
    the majority that the evidence obtained from the search should be admitted
    under s. 24(2) of the
Charter
.

A.       BACKGROUND

[74]

I adopt the majoritys
    statement of the facts of this case. However, I wish to highlight the nature of
    the 911 call to which Officers Warman and Cassidy were responding in this case.

[75]

The call in this case,
    as relayed to Warman and Cassidy, stated that there was a person possibly armed
    with a gun in the parking lot near the liquor store at the Agincourt Mall, near
    Kennedy Road and Sheppard Avenue in Toronto. Dispatch sent a text message to
    the computer in the officers car indicating the following:

·

The complainant said he
    saw a large bag in the open trunk of the suspects vehicle.

·

The complainant said he
    believed he saw a gun while driving by in the occupants pocket.

·

The complainant could
    not explain or clarify exactly where in the car the gun may have been.

[76]

The 911 complaint in
    this case was inherently frail. At trial, Cassidy testified that, in his
    experience, more than 50 per cent of 911 gun calls turn out to be unfounded.
    He was aware that a caller could mistake an object in a persons hand  such as
    a cell phone  for a gun. As the majority points out, in oral argument before
    this court the Crown conceded that the 911 call did not give Warman and Cassidy
    reasonable grounds to believe that the appellant was committing a
    firearms-related offence. At trial, the officers testified that they did not
    have such grounds. The call therefore did not establish the conditions for
    obtaining a warrant for the appellants arrest for such an offence. That is why
    the search of the trunk of the appellants rental car could not have been
    authorized by s. 117.02(1) of the
Code
.

[77]

That said, the
    appellant was found in the same vehicle identified by the 911 complainant and
    matched the description of the suspect given by the complainant conceded. He
    conceded that the 911 call gave Warman and Cassidy reasonable grounds to
    suspect that the appellant was connected to a firearms-related offence and
    that, on the basis of those grounds, his detention was necessary in the
    totality of circumstances. His detention was therefore a valid investigative
    detention authorized at common law under the principles established in
R. v.
    Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34 and 45. What is in
    issue here is the extent of the search incident to investigative detention,
    that is to say whether the search that extended beyond a pat down search of the
    appellants person, and beyond the cabin of the car, and into luggage in the
    trunk of the car was lawful.

[78]

Against this
    background, I address the question whether the search of the appellants car
    trunk by either Sgt. Gouthro or Warman infringed s. 8 of the
Charter

    namely, whether the search was authorized incident to the appellants
    investigative detention.

B.      ANALYSIS

(1)

The Authorization for the Search Incident to Investigative Detention

(a)

Legal Principles

(i)

The Constitutional Framework

[79]

Section 8 of the
Charter
provides: Everyone has the right to be secure against unreasonable
    search and seizure.

[80]

It is not contested
    that the search of the trunk of the appellants car interfered with a
    reasonable expectation of privacy. In
R. v. Calderon
, (2004) 188 C.C.C.
    (3d) 481 (Ont. C.A.), this court held that a person has a reasonable
    expectation of privacy in the trunk of a rental car, although the expectation
    is less than in a persons home or office. See also
R. v. Belnavis
,
    [1997] 3 S.C.R. 341, at paras. 19 and 38-39. Importantly, Laskin J.A. wrote in
Calderon
,
    at para 98, that the expectation of privacy in a cars trunk, which is under
    lock and key, is greater than in the interior of a car, where items are
    ordinarily in plain view or easily accessible. The implication is that items
    in the trunk of a vehicle, including a rental car, are not in plain view or
    easily accessible by the occupants of the vehicle, unlike items in the
    passenger cabin of the vehicle.

[81]

As a general rule,
    reasonable and probable grounds, established upon oath, to believe that an
    offence has been committed, and that there is evidence to be found at the place
    of the search, is the minimum standard consistent with s. 8 of the
Charter
where there has been an invasion of privacy. The need to balance the
    invasion of privacy against the government objective in conducting the search
    means that prior judicial authorization is required for a search. The goal is
    to prevent unjustified searches before they happen. Section 8 of the
Charter
gives priority to the right of the individual to be free from state
    interference. See generally
Hunter v.
    Southam
, [1984] 2 S.C.R.
    145.

[82]

A warrantless search,
    like that which occurred in this case, is presumptively unreasonable. The Crown
    has the burden of establishing that it was reasonable because it was authorized
    by law, the law itself was reasonable and the manner in which the search was
    carried out was reasonable:
R. v.
    Collins
, [1987] 1 S.C.R.
    265, at para. 23.

[83]

In the present case,
    the Crown relies on common law authorization to search the appellants trunk
    incident to the appellants investigative detention under
Mann
. The
    trunk search did not violate s. 8 if it fell within the parameters established
    in
Mann
for a search incident to investigative detention.

(ii)

Search Incident to Investigative Detention: The Decision in
Mann

[84]

In
Mann
, Iacobucci J. invoked the test for
    determining whether a police officer has acted within his or her common law
    powers developed in
R. v. Waterfield
, [1963] 3 All E.R. 659 (C.C.A.),
    and
Dedman v. The Queen
, [1985] 2 S.C.R. 2, in order to define for the
    first time the circumstances in which a police officer may search a detainee
    incident to investigative detention. He held that the general duty of police
    officers to protect public safety gives rise to the power to conduct a
    pat-down search incident to an investigative detention, stating that the
    officer must believe on reasonable grounds that his or her own safety, or the
    safety of others, is at risk: para. 40. This power cannot, however, be justified
    on the basis of a vague or non-existent concern for safety, nor can the search
    be premised upon hunches or mere intuition: para. 40. Iacobucci J. made the
    protective, safety-based rationale of the search power clear at para. 45,
    writing that where a police officer has reasonable grounds to believe that his
    or her safety or that of others is at risk, the officer may engage in a
    protective pat-down search of the detained individual. Both the detention and
    the pat-down search must be conducted in a reasonable manner.

(iii)

The Scope of the Power to Search Incident to Investigative
    Detention

[85]

This appeal raises the
    question whether the scope of a
Mann
-type search incident to
    investigative detention may extend beyond a protective pat-down of the detainee
    to other locations. The case law from this court, and from British Columbia,
    answers this question in the affirmative. I will discuss these jurisdictions
    before turning to American jurisprudence, which has explicitly addressed
    whether the police may search the trunk of an individuals vehicle incidentally
    to detaining him for investigative purposes.

Ontario
    Jurisprudence

[86]

In
Ellis
, this
    court stated that, in
Mann
the Supreme Court did not pronounce a general
    rule that a protective pat-down search incident to an investigative detention
    can never extend to a search of the contents of the detainees pockets.
    Hourigan J.A. wrote at para: 28:

Implicit in the courts holding was
    that, had the pat down search revealed a safety concern, the officers would
    have been justified in extending the search to the accused's pockets. Indeed,
    there would be no point in conducting the pat down search if, as suggested by
    the appellant, an officer cannot take further steps to protect his or her
    safety on having a reasonable basis for believing that there is a safety
    concern. [Citation omitted.]

See also
R. v. Batzer
(2005), 2000 C.C.C. (3d)
    330 (Ont. C.A.), at para. 16.

[87]

In
Plummer
, a
    police officer pulled over the accused, who was parked illegally and sitting in
    his vehicle with his girlfriend. A few weeks earlier, Peel Regional Police had
    issued an Officer Safety Alert in relation to the accused. The officer saw the
    accused attempt to hide something in the passenger side of his vehicle where
    his girlfriend was sitting. Based on this observation and the alert, he asked
    the accused to exit the vehicle and conducted a pat-down search on him. He felt
    that the accused was wearing a bulletproof vest. He then proceeded to search
    the passenger side of the vehicle and found a gun in plain view on top of an
    open bag on the floor of the passenger side. The accused was convicted of
    firearms-related offences.

[88]

MacPherson J.A. wrote a
    minority concurring judgment concluding that the search of the bag in the
    accuseds car incident to investigative detention did not infringe s. 8 of the
Charter
.
    He rejected the submission that such a search should be confined to the person
    of the detainee and should not extend to other locations. In his view, the
    animating principles behind the power to search incident to investigative
    detention are the detaining officers safety concerns and the protective
    purpose of the search, not the location of the search. He stated, at para. 58:

If, as the appellant concedes, a
    pat-down search for safety reasons is permissible, why should a broader search
    (for example of a bag in a car) not be available if the result of the pat-down
    search (for example, discovery of a bulletproof vest) continues to present a
    reasonable safety concern? In my view,

Mann

answers
    this question at the level of principle.

Mann

circumscribes
    police conduct by reference to a valid protective purpose, not by whether the
    search is of the person, or of a particular place or object in the vicinity.

[89]

MacPherson J.A.
    concluded that the officers pat-down of the accused and the revelation of a
    bulletproof vest added to his safety concerns. This gave the subsequent search
    of the interior of the vehicle, where the appellant could have had a gun in his
    immediate reach, a further protective purpose consistent with the principles
    animating the power to search incident to investigative detention: see paras.
    65-66.

[90]

Sharpe J.A. wrote a
    majority concurrence in
Plummer
in which he endorsed the conclusion of
    MacPherson J.A. with respect to the validity of the search of the accuseds
    vehicle interior, albeit with some trepidation. He held that the proposed
    extension of the power to search incident to investigative detention was narrow
    and modest enough to be justified on the facts of the case by immediate
    concerns of officer safety (para. 76), while still cautioning against an
    overly-broad expansion of common law police powers. He stated at para. 79 that
    the decision should not be read as giving the police
carte blanche
power to permit searches of bags or vehicles incident to investigative
    detention. Such a search demands satisfactory proof of a serious concern for
    officer safety that requires something more than the initial pat-down.

British Columbia
    Jurisprudence

[91]

A line of jurisprudence
    from the British Columbia Court of Appeal also establishes that a search
    incident to investigative detention may extend beyond a pat-down of the
    detainees person if the more extensive search is objectively justified by
    compelling safety reasons. For example, in
Sheck
, at para. 54, the court
    wrote that
the scope of the permissible
    search has been modestly expanded from pat-downs of the person to include a
    search of fanny packs. It upheld a police search of the contents of an
    accuseds satchel where the officer could see that the satchel looked thick
    and was emitting a smell associated with a firearm.
See also
R. v. Lal
(1998), 130 C.C.C. (3d) 413
    (B.C. C.A.), at para. 39, leave to appeal refused, [1999] S.C.C.A. No. 28;
R.
    v. Thibodeau
, 2007 BCCA 489, 247 B.C.A.C. 103, at para. 9; and
Patrick
,
    at para. 94.

[92]

In
Patrick
, the
    court approved of the discussion of Ryan J.A. in the pre-
Mann
case of
R.
    v. Ferris
(1998), 126 C.C.C. (3d) 298 (B.C. C.A.), about how the factual
    context influences the assessment of the permissible scope of a search incident
    to investigative detention. Ryan J.A. wrote at paras. 54-55:

If the police have the duty to
    determine whether a person is engaged in crime or is about to be engaged in
    crime they should not be obliged to risk bodily harm to do so. It is my
    view that the police are entitled, if they are justified in believing that the
    person stopped is carrying a weapon, to search for weapons as an incident to
    detention.
The question for the court must be whether the search was
    reasonably related in scope to the circumstances which justified the
    interference in the first place.

I have concluded that in proper
    circumstances the police are entitled to search for weapons as an incident to
    an investigative stop.
The seriousness of the circumstances which led to the
    stop will govern the decision whether to search at all, and if so, the scope of
    the search that is undertaken.
As Chief Justice Warren put it in
Terry
(at
    p. 905), the search must be reasonably related in scope to the circumstances
    which justified the interference in the first place. Questioning an elderly
    shopper about a suspected shoplifting would not ordinarily require a search for
    weapons; questioning someone after a bank robbery might require a search of the
    detainee and his or her immediate surroundings. In other words, such a search
    can meet the reasonable necessity test depending on the circumstances.

[93]

I take the suggestion
    of Ryan J.A. in
Ferris
to be that the objective reasonableness of the
    grounds relied on to justify a police search incident to investigative
    detention that goes beyond a pat-down of the detainees person will be informed
    by the nature of the grounds invoked to justify the detention in the first
    place. The safety concern supporting the more extensive search may be founded
    on the reasons for the initial detention, in addition to facts uncovered during
    the course of an incidental pat-down search, as discussed by this court in
Plummer
and
Ellis
.

American
    Jurisprudence

[94]

Canadian developments
    in the common law investigative detention police power, and the related power
    of incidental search, were influenced by the American jurisprudence on the
    Fourth Amendment of the U.S. Constitution, specifically, the stop and frisk
    doctrine established in
Terry v. Ohio
, 392 U.S. 1 (1968). Garland J.
    summarizes the law on
Terry
stops in
United States v. Christian
, 187 F.3d 663 (U.S. App. D.C. 1999), at p. 668:

In
Terry
, the Court held
    that police do not need probable cause to conduct a brief, investigatory stop
    of an individual if they are able to point to specific and articulable facts
    which, taken together with rational inferences from these facts, give rise to
    a reasonable suspicion of criminal activity. The Court further upheld an
    officers authority to search the individual for weapons where he has a
    reasonable fear for his own and others safety based on an articulable
    suspicion that the suspect is armed and dangerous.

In
Michigan v. Long
, the
    Court  held that the scope of a
Terry
search may extend beyond the
    person of the suspect. The police, the Court said, may search the [suspects]
    person and the area within his immediate control  mean[ing] the area from
    within which he might gain possession of a weapon. In
Long
, the Court
    found that area to include the passenger compartment of a car outside of which
    the defendant was standing, after he had driven the vehicle into a ditch and
    gotten out to meet the investigating officers. The search of the compartment
    was limited to those areas in which a weapon may be placed or hidden.
    [Citations omitted.]

As Garland J. mentions, in
Michigan v.

Long
, 464 U.S. 1032 (1983) the Supreme Court of the United States court
    established that, incidentally to a valid
Terry
stop, the
    police may conduct a safety-based search that extends beyond the person of the
    suspect and into areas of his car within the suspects immediate control where
    the suspect could gain possession of a weapon.

[95]

Two decisions of the
    United States Court of Appeals for the Seventh Circuit deal with the extension
    of the reasoning in
Long
to searches of car trunks.
Valance v. Wisel
, 110 F.3d 1269 (7th Cir. 1997), concerned a traffic
    stop for suspected impaired driving. The police officer saw a pellet gun in
    plain sight on the floor of the drivers side of the suspects car. Thinking
    that additional weapons may be in the vehicle, the officer searched it, finding
    ammunition in the trunk. Rovner J. stated, at p. 1278: The trunk search cannot
    be justified under
Michigan v. Long
because Valance would not have been able
    to gain immediate control of a weapon located there.

[96]

In
United States v. Arnold
, 338 F.3d 237 (7th Cir. 2004), a police officer
    stopped the suspect for erratic driving and having a burnt out tail light. The
    officer saw him turn around, manoeuvre between the passenger and drivers seats
    into the back seat, either retrieve something from or place it in the back seat
    and return to the drivers seat. The officer asked him to step out of the
    vehicle and performed a pat-down search, which produced nothing. The officer
    then searched the entire vehicle. He pulled down an armrest in the backseat,
    which exposed a channel into the trunk of the car. There, he found a loaded
    handgun.

[97]

The court stated at p.
    240 that the limited rationale for permitting a search under
Long
safety concerns  constrains an officer to search only the locations that
    may contain a weapon and to which the motorist may have access. It noted that
    under American Fourth Amendment jurisprudence this accessibility criterion also
    restricts where an officer may search in a car incident to arresting a suspect:
    see
New York v. Belton
, 453 U.S. 454 (1981). According to the court,
    although the rationales for a search incident to arrest and
Terry
protective searches are distinct, their physical boundaries are not,
    extending to whatever the suspect has access to.

[98]

The court went on to
    write at p. 240: Although no court seems to have addressed
the specific problem of a trunk that is readily
    accessible from inside the passenger compartment
, we see no reason to distinguish this accessible area
    from any other. It noted that courts have held that the police can search
    incident to arrest secret compartments in the back seats of vehicles, locked
    glove compartments and cargo spaces of SUVs: In analyzing whether these
    searches were permissible, these courts considered whether an item located in
    the area in question was
generally, even
    if not inevitably, within reach
. The court held that the officers search in the case at bar was a
    lawful one incident to a
Terry
stop. The court stated at pp. 240-241:

That the officer reached into the
    trunk while he was inside the car, by pulling down the armrest in the back
    seat, does not mean that his search automatically exceeded the boundaries
    delineated in
Long
. An officer armed solely with reasonable suspicion
    may not search the trunk of a vehicle when the motorist would not have been
    able to reach a weapon located there. Here, however, the area behind the
    armrest that opened into the trunk was generally accessible from the passenger
    compartment. Just as if the gun had been behind the back seat in a hatchback or
    in the covered cargo area of an SUV, Arnold could have gained immediate access
    to it through the armrest, even though the weapon was technically located in
    the usually protected realm of the trunk. Taking into account the purpose of
    the officers search, it seems likely that in no more time than it would take a
    motorist to retrieve a weapon from a locked glove compartment, Arnold could
    have reached the handgun. Officer Fords search of the trunk area behind the
    armrest did not exceed the permissible scope of a search under
Long
.

[99]

There are of course
    significant differences in the American and Canadian jurisprudential cultures
    regarding firearms, but this line of cases illustrates how U.S. courts have
    limited the scope of search incident to investigative detention. The conclusion
    flowing from the cases appears to be that a car trunk is not a searchable area
    incident to a
Terry
stop. Generally speaking, nothing in the
    trunk of a car can be within the immediate control of the suspect. Therefore,
    there will generally be no immediate concern for safety on the part of the
    investigating officer if the suspect might later access the weapon in the trunk
    where his possession of the gun could in general, like possession of any gun,
    amount to a safety risk.

(b)

Application to the Facts

[100]

In concluding that in
    this case the police officers search of the trunk of the appellants rental
    car was authorized incident to investigative detention, the trial judge wrote
    as follows:

In my view, there is an equally
    compelling safety concern here. This was a fluid situation initiated by a 911
    call where every other detail checked out as positive. It was a reasonable
    belief on the part of the officers that if the 911 caller was right about all
    the other details, he would be right about the gun also. It was a reasonable
    inference that if there was a gun, and if it was not on the defendants person
    it was likely in the trunk. In the absence of either seizing the gun or
    verifying that there was no gun, there remained a reasonably held concern for
    officer and public safety.

The majority substantially agrees with this reasoning.
    It urges deference to the trial judges findings of fact regarding the police
    officers grounds for suspecting that the appellants purported possession of a
    weapon posed a safety risk to them or the public: see
R. v. Cornell
,
    2010 SCC 31, [2010] 1 S.C.R. 142, at paras. 22-25; and
Plummer
, at para.
    21.

[101]

The 911 caller in this
    case stated that the trunk of the suspects vehicle was open. He indicated that
    he thought the occupant had a gun in his pocket but that he could not explain
    or clarify exactly where the gun might be. When the officers subsequently
    approached the appellants vehicle, the trunk was closed. According to the
    majority, it was reasonable for the officers to believe that the appellant had
    been the one to close the trunk. It was not an unreasonable inference for the
    officers to make that once they searched appellants person and found no gun,
    the gun might be in the trunk. They reasonably suspected that there was an
    immediate risk of danger to the safety of themselves or the public that
    justified searching the trunk for the gun. Had they not searched the trunk and
    confiscated the gun they suspected was there, and the appellant was allowed to
    leave the scene, the appellant would later be able to access any firearm in the
    trunk.

[102]

I disagree with both
    the majority and the trial judge.

[103]

Once no weapon was
    found on the appellants person or inside the cabin of his vehicle within his
    accessible reach, no further immediate safety hazard existed; the appellant had
    no immediate access to his trunk and had no means to immediately retrieve anything
    from the trunk or from the luggage in the trunk that could pose such as hazard.
    Indeed, the central rationale for this courts statement in
Calderon
that a motorist has a higher expectation of privacy in the contents of the
    trunk of his or her vehicle than in the contents of passenger cabin was
    precisely that the latter but not the former are easily accessible.

[104]

By contrast, the
    majoritys position that the immediate and present safety risk in this case was
    the potential for the appellant to drive away after the detention ceased and
    retrieve the gun from the inside of the luggage in the trunk strikes me as
    extending the scope of a warrantless search incident to investigative detention
    too far. A reasonable suspicion of an immediate safety concern capable of
    justifying a search incident to investigative detention must be grounded on the
    apprehension of a risk that is more physically or temporally imminent or
    impending than what is posited by the majority.

[105]

For example, the
    imminence of the safety risk in
Plummer
that justified a protective
    search beyond the accuseds person was that the accused may have had a gun in
    his immediate vicinity that could be used to endanger the detaining officer,
    and this only extended the search to the interior of the accuseds vehicle.
    Sharpe J.A. stated at para. 77 that the circumstances gave the detaining
    officer authority to conduct search because they
gave rise to a legitimate serious concern that he had
immediate access to a weapon
that he could use if the officers were to simply
    release him and return to their own vehicle (emphasis added).

[106]

The majoritys position
    also runs contrary to the American jurisprudence post-
Terry
. The
    American cases recognize that a search incident to a
Terry
stop does not
    extend to the trunk of a car because a suspect cannot gain immediate possession
    of an item in the trunk that could be used to pose an immediate risk to the
    safety of the detaining officer or the public.

[107]

For these reasons, I
    conclude that the search of the appellants trunk in this case incident to his
    investigative detention infringed s. 8 of the
Charter
because it was not
    authorized at common law under the parameters established in
Mann
.

(c)

The Need for Judicial Minimalism in Developing the Power to
    Search Incident to Investigative Detention

[108]

Before addressing s.
    24(2) of the
Charter
, I stress that protective searches incident to an
    investigative detention must be narrowly confined. The need for judicial
    minimalism in this area is made clear by Sharpe J.A. in
Plummer
, at
    paras. 74-76:

R. v. Mann
, [2004] 3 S.C.R.
    59 (S.C.C.) establishes a limited power of protective search, defined,
    at para. 45, to be a protective pat-down search of the detained
    individual.
Mann
represented a modest but significant
    expansion of police powers. No Canadian case extends that power to cover
    additional searches of vehicles or items in vehicles.
Mann
states,
    at para. 17, that the courts must tread softly when asked to expand police
    powers, and that the creation of new police powers is better accomplished
    through legislative deliberation than by judicial decree. It was for that
    very reason that the Court refused to recognize a general power of detention
    for investigative purposes referring, at para. 18, to the need for the court
    to exercise its custodial role to control and constrain the unregulated use
    of investigative detentions in policing  and the potential for abuse inherent
    in such low-visibility exercises of discretionary power.

The cautionary note sounded
    in
Mann
is rooted in the historic role of the courts, standing
    between the individual and the state, and reluctant to grant or recognize new
    police powers that encroach on individual liberty: see James Stribopolous, The
    Limits of Judicially Created Police Powers: Investigative Detention After
Mann

    (2007) 52 Crim. L.Q. 299. In my view, we should follow
Mann
s
    caution in a case like the present, when we are asked to expand the scope of a
    search incidental to an investigative detention.

A search incidental to an
    investigative detention is defined and limited by the immediate concerns of
    officer safety. This reflects an important difference between the narrowly
    focussed and strictly limited protective search that may accompany an
    investigative detention, and the broader power to search consequent to a lawful
    arrest. It is necessary to maintain that distinction and to confine the scope
    of a search incidental to an investigative detention within strict limits.
    Here, the police did not arrest the appellant, presumably because they did not
    think they had grounds for an arrest. As the appellant points out, there is an
    understandable tendency to expand a narrow rule to endorse the police conduct
    being challenged, since the case before the court will always be one where the
    search actually yielded a weapon or some other valuable evidence. This is a
    tendency that the courts should resist.

[109]

In particular, the
    court should resist any impetus towards invoking the
Waterfield
/
Dedman
test to create common law police powers incident to investigative detention
    that tend to erode the protections afforded to detainees by s. 8 of the
Charter
.
    That test involves a cost-benefit analysis that weighs individual liberties
    against the states law enforcement interests in a manner that threatens to
    eclipse the very judicial balancing of privacy and state interests underlying
    s. 8 of the
Charter
. As Lebel J. noted in a dissenting opinion in
R. v. Orbanski; R. v. Elias
, 2005 SCC 37, [2005] 2 S.C.R. 3, at para.
    81:

The adoption of a rule limiting
Charter
rights on the basis of what amounts to a utilitarian argument in favour of
    meeting the needs of police investigations through the development of common
    law police powers would tend to give a potentially uncontrollable scope to the
    doctrine developed in the
Waterfield-Dedman
line of cases, which  and
    we sometimes forget such details  the court that created it took care not to
    apply on the facts before it (
R. v. Waterfield
, [1963] 3 All E.R. 659
    (C.C.A.)). The doctrine would now be encapsulated in the principle that what
    the police need, the police get, by judicial fiat if all else fails or if the
    legislature finds the adoption of legislation to be unnecessary or unwarranted.
    The courts would limit
Charter
rights to the full extent necessary to
    achieve the purpose of meeting the needs of the police. The creation of and
    justification for the limit would arise out of an initiative of the courts. In
    the context of cases such as those we are considering here, this kind of
    judicial intervention would pre-empt any serious
Charter
review of the
    limits, as the limits would arise out of initiatives of the courts themselves.

[110]

Furthermore, the rule
    of law, and its edict that all state-citizen interaction must be regulated by
    law, suggests that the requirement that interferences with individual privacy
    must be authorized by law, that is, by fixed, preordained and ascertainable
    rules: see
British Columbia v. Imperial

Tobacco Canada Ltd
., 2005
    SCC 49, [2005] 2 S.C.R. 473, at para. 58; and
R. v. Levkovic
, 2013 SCC
    25, [2013] 2 S.C.R. 204, at paras. 1-3 and 32-35. A case-by-case,
    after-the-fact cost-benefit analysis using the
Waterfield
/
Dedman
test of whether a search was authorized by law leaves the limits of police
    offers powers to intrude on privacy interests overly vague and provides little
    advance guidance for police or citizens as to those limits. This may well have
    negative consequences for Canadians commitment to eradicating discrimination,
    according to sociological studies of police behaviour. Professor James
    Stribopoulos (now a Justice of the Ontario Court of Justice) pointed this out
    in The Limits of Judicially Created Police Powers: Investigative detention
    after
Mann
 (2007) 52 Crim. L.Q. 299, at p. 313:

As James Skolnick warns,
    whenever rules of constraint are ambiguous, they strengthen the very conduct
    they are intended to restrain. Thus, the police officer already committed to a
    conception of law as an instrument of order rather than as an end in itself is
    likely to utilize the ambiguity of the rules of restraint as a justification
    for testing or even violating them. And, as a mounting body of empirical
    evidence would now seem to suggest, when these powers are abused, the effect is
    felt disproportionately by visible minorities, in particular African and
    Aboriginal Canadians. [Footnotes omitted.]

[111]

Under the separation of
    powers, courts are not the best-situated institution for creating broad-ranging
    police powers, either in theory or in practice. Richard Jochelson takes note of
    the theoretical problem in Ancillary Issues with Oakes: The Development of the
    Waterfield Test and the Problem of Fundamental Constitutional Theory (2013) 43
    Ottawa L. Rev. 355, at p. 376:

[The
Waterfield
/
Dedman
test] reserves a legislative function for the Court when the seat of police
    powers properly belongs in Parliament. [It] also situates the constitutional
    adjudication of those powers with the
de facto
legislative body (in this
    case, a court). The result is problematic for the principle of legality,
    embedded in the rule of law, but also creates problems with the human rights
    era approach to judicial decision making  an approach that situates the Court
    as a steward of thin constitutional principles.

LeBel J. also states in
R. v. Kang-Brown
, 2008
    SCC 18, [2008] 1 S.C.R. 456, at para. 12:

The common law has long been
    viewed as a law of liberty. Should we move away from that tradition, which is
    still part of the ethos of our legal system and of our democracy? This
    case is about the freedom of individuals and the proper function of the courts
    as guardians of the Constitution. I doubt that it should lead us to depart from
    the common law tradition of freedom by changing the common law itself to
    restrict the freedoms protected by the Constitution under s. 8

of the

Charter
.

From a practical perspective, it is difficult for
    courts to weigh the competing interests in permitting searches incident to
    investigative detention based only on reasonable suspicion because courts will
    generally only see the cases in which a search revealed evidence of a crime.
    They thereby become subject to the distorting effects hindsight bias,
    inclining towards concluding that a police officers interference with liberty
    to obtain incriminating evidence is justified: Steven Penney, Police Questioning
    in the
Charter
Era: Adjudicative versus Regulatory Rule-making and
    the Problem of False Confessions (2012) 57 Sup. Ct. L. Rev. (3d) 263, at p.
    270.

[112]

Thus, balancing the
    level of intrusion in the cases where no evidence is located against the
    furtherance of police objectives where evidence is found is a matter best
    suited to the legislature. Here the legislature has specifically spoken as to
    when police may search for firearms without a warrant in exigent circumstances,
    in s. 117.02 of the
Criminal Code
.  The police here did not meet the
    requirements of that provision.  Police powers of search incident to
    investigative detention should not be expanded beyond what is necessary to deal
    with immediate safety concerns.

(2)

Section 24(2) of the
Charter

[113]

As stated at the
    outset, I agree with the majority in affirming the trial judges alternative
    conclusion that the evidence of cocaine obtained from the trunk of the
    appellants rental car should be admitted under s. 24(2) of the
Charter
.

[114]

The trial judge found
    that the police delayed in advising the appellant of his right to counsel, but
    that this was a technical delay of about 90 seconds.

[115]

Here the appellant
    concedes that the police had grounds for an investigative detention, a pat-down
    search and a search of the interior of the cabin of the car. The search here
    went further, but not by much. The officers did not understand that s.
    117.02(1) of the
Code
did not grant authority to search the luggage in
    the trunk of the car. There has been little jurisprudence on the extent of a
    search incident to investigative detention, and, as the difference of opinion
    in this court demonstrates, perhaps that confusion is understandable. While
    there were frailties with the 911 call, and its inconclusive location of the
    gun possessed by the appellant, the appellant matched the physical description
    of the individual recounted and his vehicle and licence plate description
    matched the information given by the complainant. Police here were concerned
    that there might be a gun in the car. There is no indication of any racial
    stereotyping or ulterior purpose. All of the events unfolded in a time period
    of about three minutes in the context of a fluid and dynamic response on the
    street to a 911 call.

[116]

The appellants vehicle
    was a rental car. He had a reasonable expectation of privacy in the trunk, but,
    as the trial judge noted:

The absence of ownership interest
    in the car, the recent acquisition of possession and the relative emptiness of
    the car as judged by the passenger cabin would tend to diminish any impact on
    the defendants privacy interests, and given the defendants disclaimer of
    ownership of the car, I am of the view that the search of it did not impact on
    his dignity.

I agree with this assessment.

[117]

Finally, the trial
    judge considered societys interest in an adjudication on the merits,

I turn finally to societys
    interest in an adjudication on the merits. I am not persuaded that the
    admission of the 23 kilos of cocaine in evidence would likely bring the
    administration of justice into disrepute. The evidence is real, or physical
    evidence and is completely reliable. I do not believe it will affect trial
    fairness. The evidence is the crux of the Crowns case and without it the
    prosecution will fall.

In the balancing the interests of
    truth seeking and an adjudication of the case on its merits against vindication
    of the
Charter
breach if there was one here, I am not satisfied that the
    long term repute of the justice system would be harmed if the cocaine were
    admitted into evidence.

I agree with the trial judges conclusions that the
    long-term repute of the administration of justice would not be undermined by
    the admission of the evidence in this case. That may not be the case in the
    future as the jurisprudence develops as to the permissible extent of a
Mann
safety search.

C.      DISPOSITION

[118]

Accordingly, I would
    dismiss the appeal.

G.
    Pardu J.A.

Released: August 17, 2017