R. v. Campanella

R. v. Campanella Collection Decisions of the Court of Appeal Date 2005-04-13 Docket numbers C39402 Judges Rosenberg, Marc; Simmons, Janet M.; Lang, Susan Elizabeth Subject Criminal Decision Content DATE: 20050413 DOCKET: C39402 COURT OF APPEAL FOR ONTARIO ROSENBERG, SIMMONS and LANG JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Respondent John Abrams for the appellant - and - JULIE CAMPANELLA Appellant Nick Devlin for the respondent Sean Hanley For the intervenor, Attorney General of Ontario Heard: February 10, 2005 On appeal from the decision of Justice John Cavarzan of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated December 18, 2002, reported at [2002] O.J. No. 5104, dismissing the appeal from conviction by Justice D. Cooper of the Ontario Court of Justice dated August 10, 2001. ROSENBERG J.A.: [1] This appeal from a conviction for simple possession of marihuana raises an important issue concerning the legality of the security screening performed at many of the courthouses in this province. In September 1999, the appellant attempted to enter the John Sopinka Courthouse in Hamilton for a court appearance on a drug charge. To enter the courthouse the appellant was required to pass through a metal detector. The appellant voluntarily produced her purse for manual inspection, a purse which she acknowledged would have set off the metal detector. As the Hamilton Police Service Special Constable conducting the screening opened the purse, he saw a baggie that he removed from the purse and which contained a small quantity of marihuana. The appellant was arrested and charged with possession of a controlled drug contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. [2] The appellant submitted that the inspection of her purse constituted an unreasonable search and seizure in violation of s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge, Cooper J., and the summary conviction appeal court judge, Cavarzan J., rejected this submission and the appellant was convicted. The appellant now appeals to this court. For the following reasons, I would dismiss the appeal. THE FACTS [3] I have already outlined the facts of the offence. To meet the Charter challenge the Crown adduced evidence concerning the operation of the screening at the Hamilton courthouse. The screening programme was initiated in May 1999 when the John Sopinka Courthouse opened. Anyone without a security clearance must pass through metal detectors. The person seeking entrance is asked whether they have any metal in their pockets. Bags and purses that contain metal are searched manually. Police officers, lawyers, court officials and court staff have security clearances. The purpose of the security check is to ensure that no one entering the courthouse has any offensive, restricted or prohibited weapon or anything that could be used as a weapon. A person in possession of an illegal weapon will be arrested. A person in possession of an object that could be used as a weapon, such as a pen knife, is given the option of leaving the building or surrendering the item for later destruction. If a person refuses to allow a search, he or she is asked to leave the building. A person in the security line can turn back at any time and return without items he or she does not wish to be examined. The person can even pause to transfer non-metallic objects from hand baggage to a pocket that will not be searched. [4] There are signs at all the public entrances to the courthouse that read as follows: NOTICE TO THE PUBLIC ALL PERSONS WISHING TO ENTER THIS COURT FACILITY WILL BE SUBJECT TO A SECURITY SEARCH. NO PERSON IN POSSESSION OF A WEAPON OR AN ARTICLE THAT COULD BE DANGEROUS TO THE PUBLIC PEACE WILL BE ALLOWED ENTRY INTO THIS COURT FACILITY. PERSONS IN POSSESSION OF ILLEGAL ARTICLES WILL BE SUBJECT TO ARREST AND MAY BE CHARGED CRIMINALLY. [5] The security check has a number of “levels”. First, all persons must pass through a metal detector. Prior to going through the metal detector, the person is instructed to empty his or her pockets of any metal objects and the contents are visually inspected. Second, all personal belongings that would set off the metal detector must be presented for manual inspection by special constables. If the person still sets off the metal detector, a hand scanner is used. A secondary search of the person can be done if the hand scanner is activated and there is a need to visually verify the cause of the activation. A person of the same gender will perform the search in private. At the time of the trial, no secondary search had been necessary. Any person can refuse to enter the metal detector, present their belongings for inspection or submit to a secondary search and leave the building. Any person may retain non-metal objects in their pockets, in which case they would not be subject to inspection. [6] About 1,000 people enter the courthouse daily. Most of them do not have security clearance and are therefore searched. In the first six months of 2000, there were thirty-one arrests of persons entering the courthouse with prohibited weapons and sixteen arrests for drug offences. Thousands of items that could have been used as weapons have been seized. The special constables have seized switch blades, concealed knives, a taser gun, and various knives. [7] This particular appellant was very familiar with the procedure. She had undergone the screening four or five times when she attended court on other occasions. On this particular occasion she had to stand in line for several minutes and would have seen many other people go through the screening process. [8] There was no evidence led to suggest a history of violence, or use or threatened use of weapons within Canadian courthouses. However, the summary conviction appeal judge took judicial notice of notorious incidents of killings in courthouses in Toronto and instances of violence in other courthouses in Canada. THE LEGISLATIVE SCHEME [9] The security screenings that take place at the Hamilton courthouse are authorized by two pieces of legislation. Section 3(b) of the Public Works Protection Act, R.S.O. 1990, c. P.55 provides that a guard or peace officer “may search, without warrant, any person entering or attempting to enter a public work”. “Public work” is defined in s. 1 of the Public Works Protection Act to include “any provincial and any municipal public building” and obviously includes a courthouse. Section 137 of the Police Services Act, R.S.O. 1990, c. P.15 provides that the police services board is responsible for ensuring the security of judges and of persons taking part in or attending court proceedings, ensuring the security of the premises, and ensuring the secure custody of persons in custody who are on or about the premises. [10] A deputy chief of the Hamilton Police Service provided an affidavit indicating that, as required by this legislation, the police service has developed a security plan for the John Sopinka Courthouse and the Unified Family Court. He provided his opinion that the screening procedures were necessary to ensure the appropriate level of security in the courthouses. At the time of the appellant’s trial, the police service had five police officers and forty-one full-time special constables providing security at the courthouses. REASONS OF THE TRIAL JUDGE AND THE SUMMARY CONVICTION APPEAL COURT [11] At trial, the appellant submitted that the warrantless search violated her rights under s. 8 of the Charter and that the legislation authorizing such searches is unconstitutional. The trial judge held that the search was reasonable and that the legislation authorizing the search was reasonable. On appeal, the summary conviction appeal judge held that the security screening procedures did not infringe any reasonable expectation of privacy and therefore there was no search within the meaning of s. 8. Alternatively, he held that given the context, the search that took place was akin to a regulatory search and no warrant was required. The search was authorized by law, the legislation itself was reasonable and the searches were carried out in a reasonable manner. POSITIONS OF THE PARTIES [12] In this court, the appellant repeats the arguments made in the trial court and the summary conviction appeal court. She submits that this was a preventative search similar to the search considered by this court in R. v. Hurrell (2002), 166 C.C.C. (3d) 343 and could only be authorized by a warrant based on reasonable and probable grounds. Further, she submits that the legislation authorizing these warrantless searches is unconstitutional. [13] The federal Crown/respondent supports the decision of the summary conviction appeal judge that the security screening procedure did not violate the appellant’s reasonable expectation of privacy and therefore s. 8 of the Charter was not engaged. The provincial Crown/intervenor submits that, assuming s. 8 is engaged, given the particular context of the courthouse searches, a warrantless search is reasonable. The federal Crown adopted this alternative position. ANALYSIS [14] I do not find it necessary to decide whether the appellant had a reasonable expectation of privacy so that s. 8 was engaged. I am prepared to assume that she did. In my view, the warrantless search of the purse complied with s. 8 and the appellant’s rights were therefore not violated. [15] As is well known, the Supreme Court of Canada has held that a search will be reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”: R. v. Collins (1987), 33 C.C.C. (3d) 1 at 14. There is no dispute that the first and third of these requirements are met in this case. This search was authorized by the statutory provisions set out above and there was no suggestion that the search was carried out in an unreasonable manner. The only issue is whether the legislation authorizing the warrantless search complies with s. 8. [16] The starting point in assessing the constitutionality of a statutory search provision is the holding in Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) at 106 that “an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on its ‘reasonable’ or ‘unreasonable’ impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective”. To that end, Dickson J. held that prior authorization by a judicial official by demonstration of reasonable grounds is ordinarily a pre-requisite for a reasonable search. However, Dickson J. also made it clear that prior authorization will not always be required. As he said at p. 109: I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals' expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a pre-condition for a valid search and seizure. [17] The purpose of courthouse searches is to protect members of the public including litigants, witnesses, counsel, court officials and judges. It is not reasonable to insist on prior judicial authorization to validate this governmental objective. Over 1,000 people enter the Hamilton courthouse every day. The security officials could not possibly obtain prior authorization from a judicial official to search even a small number of these people. In my view, given the importance of the government objective and the context in which these searches take place it is reasonable to authorize warrantless searches of those entering courthouse facilities. [18] I start with the importance of the government objective. It is notorious that, unfortunately, there have been serious incidents of violence in the courthouses of this province by the use of weapons that have been brought into the courthouse. Court proceedings are emotionally intense. Family, criminal and civil and litigation involves matters of great consequence to the parties and those associated with them. The proceedings can provoke strong emotions. Everyone with business in the courthouse and ordinary members of the public have the right to expect that a courthouse will be a place of safety. The public generally expects the government to ensure the safety of people who are either required or wish to attend court. We pride ourselves on having an open and transparent justice system. A necessary incident of that system is that people who attend the courthouse to participate in or merely observe the proceedings will feel safe when they do so. Most members of the public would expect the government to take reasonable measures to ensure the safety of the courtroom environment. [19] The means chosen by the Legislature are reasonable. I agree with the federal and provincial Crown that the only effective way to diminish the risk in a large courthouse is to subject everyone without prior security clearance to some kind of inspection. I can see no other feasible means of achieving the aim. Indeed any other measure, such as random checks, would likely lead to concern that the law was being administered in a discriminatory manner. [20] The scope of the constitutional guarantee under s. 8 must vary with the context: See Comité paritaire de l’industrie de la chemise v. Potash; Comité paritaire de l’industrie de la chemise v. Sélection Milton, [1994] 2 S.C.R. 406 at 420. As Sopinka and Iacobucci JJ. said in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 at para. 52: The greater the departure from the realm of criminal law, the more flexible will be the approach to the standard of reasonableness. The application of a less strenuous approach to regulatory or administrative searches and seizures is consistent with a purposive approach to the elaboration of s. 8: [Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425] [Emphasis added]. [21] Sopinka and Iacobucci JJ. also pointed out in the same paragraph that the standard of reasonableness “which prevails in the case of a search and seizure made in the course of enforcement in the criminal context will not usually be the appropriate standard for a determination made in an administrative or regulatory context”. There are a number of contextual factors that suggest that prior authorization on the basis of reasonable grounds is not appropriate in the case of courthouse searches. [22] First, courthouse searches like the one carried out in this case are not conducted for the purpose of criminal investigation. The state and the individual are not antagonists in the same way that they are in a criminal investigation. The search is not conducted for the purpose of enforcing the criminal law or investigating a criminal offence. [23] Second, even if the person has a reasonable expectation of privacy in their personal belongings when entering a courthouse, that expectation is considerably diminished. Prominent signs warn everyone that they will be subjected to a security search and that they are not permitted to bring weapons or dangerous items into the courthouse. Regrettably, in this day and age, people expect that they will be subject to some kind of security screening when entering prominent public buildings such as courthouses or the Legislature. These buildings, which are symbols of authority, are believed to be potential targets by some individuals and groups. People reasonably expect that everyone without prior clearance will be searched on a non-discriminatory basis in a reasonable manner to ensure the safety of all persons in attendance at the building. [24] Third, as the Crown points out, the persons being searched are also the beneficiaries of the process. Like the security clearance at airports, the search provides reassurance to all members of the public that they will be safe from attack by persons with weapons within the confines of the courthouse despite the sometimes volatile nature of the proceedings. [25] I am sensitive to the concern that we should not erode the benefits and protections of s. 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears. We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them. However, the record in this case establishes the justification for the kinds of searches carried out in this case. [26] I agree with the reasons of Jewers J. in R. v. Lindsay (2001), 158 Man. R. (2d) 176 (Q.B.) at para. 58 (approved in R. v. Lindsay (2004), 187 Man. R. (2d) 236 (C.A.) at para. 18), considering a similar statutory scheme in Manitoba: In summary I find the law to be reasonable. The legislation addresses a legitimate concern - the safety of all those in the court complex; experience both here and in other jurisdictions has shown that weapons are being brought into the courthouses and it is desirable that they be detected and prohibited. The Manitoba authorities could have chosen to rely upon the pre-existing security regime but that was not sufficient to discover all of the many varied types of weapons or potential weapons that were being brought into the court complex. The current system makes for a safer and more reassuring environment. The means chosen are non-intrusive and bear no stigma. A requirement for prior authorization based on reasonable and probable grounds would not be feasible. The law is neither vague nor over-reaching. It is constitutional. [27] Finally, I wish to address the appellant’s submission based on R. v. Hurrell. The appellant relies upon Hurrell as authority for the proposition that so-called “preventative” searches must meet the minimum conditions set down in Hunter v. Southam Inc. This states the holding in Hurrell too broadly. That case concerned the former s. 117.04 of the Criminal Code. In summary, that section permitted the issuance of a warrant to search for and seize any weapon, prohibited device, ammunition, or explosive substance if the justice was satisfied that there were reasonable grounds to believe that “it is not desirable in the interests of the safety of the person, or of any other person” for the person to possess such items. Speaking for the court, at para. 3 Moldaver J.A. summarized his reasons for finding the provision unconstitutional: I believe that s. 117.04(1) violates s. 8 of the Charter because it contains no requirement that the peace officer seeking the warrant have reasonable grounds to believe that weapons or the other dangerous items mentioned in the provision are likely to be found on the person or premises to be searched and no requirement that such grounds be presented to and accepted by the issuing justice. These gaps, in my view, are serious because in its present form, s. 117.04(1) allows for sweeping searches of persons and private premises in circumstances where the police may have no reason to suspect, let alone believe, that the person of concern has any weapons or other dangerous items in his or her possession [Emphasis added, footnotes omitted]. [28] Thus, it was the breadth of the legislation, not its preventative nature that rendered it unconstitutional. By contrast, the impugned legislation in this case is narrowly focused and, for example, does not permit the search of private premises. It only authorizes a search of persons entering or attempting to enter a public work as defined in the legislation. As Moldaver J.A. pointed out in Hurrell at para. 37, the application of s. 8 depends on context. Thus, Moldaver J.A. rejected the proposition that s. 117.04 was unconstitutional because it allowed for an intrusion into privacy although the state had not demonstrated reasonable grounds to believe that an offence has been or is being committed. He said the following at para. 37: This argument, with respect, is misguided. It is premised on the mistaken belief that the court in Hunter v. Southam intended to lay down a universal minimum standard against which every search and seizure must be measured, regardless of context. [29] In my view, given the particular context to which the legislation in this case is directed, that legislation is valid. As indicated, there is no suggestion in this case that the search itself was conducted in an unreasonable manner or for an ulterior purpose unrelated to courthouse security. DISPOSITION [30] Accordingly, I would dismiss the appeal. Signed: “Marc Rosenberg J.A.” “I agree J. Simmons J.A.” “I agree S.E. Lang J.A. RELEASED: “MR” April 13, 2005