R. v. Sheck

2015 BCCA 471 R. v. Sheck

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Sheck, 2015 BCCA 471 Date: 20151120 Docket: CA42151 Between: Regina Respondent And Glenn Harley Tetsuji Sheck Appellant Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Chiasson The Honourable Madam Justice Stromberg-Stein On appeal from: An order of the Provincial Court of British Columbia, dated February 2, 2012 (R. v. Sheck, 2012 BCPC 39, Surrey Registry No. 185633-2-C). Counsel for the Appellant: N.L. Cobb E. Lewis Counsel for the Respondent: L. Ruzicka Place and Date of Hearing: Vancouver, British Columbia September 10, 2015 Place and Date of Judgment: Vancouver, British Columbia November 20, 2015 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Madam Justice Stromberg-Stein Summary: Mr. Sheck appeals his conviction for possession of a loaded prohibited firearm on the basis that the handgun should not have been admitted into evidence. A man living with Mr. Sheck's ex-wife was shot six times outside his residence. Police received information that Mr. Sheck was actively pursuing a plot to murder that man, and that Mr. Sheck was regularly carrying a handgun in his man purse. Police followed Mr. Sheck to a crowded restaurant where they pretended to carry out a "bar watch" check for patrons' identification. They asked Mr. Sheck

for identification, asked him to leave the restaurant, and proceeded to search his man purse where they found the handgun. At trial, Mr. Sheck applied to exclude the handgun from evidence on the basis of Charter violations: the search violated s. 8, his detention violated s. 9, and the police failed to comply with ss. 10(a) and (b) after detaining/arresting him. The trial judge found that ss. 8 and 9 were not violated, but that s. 10 was. At the s. 24(2) stage, the judge found that society's interest in the adjudication of the case on its merits outweighed the seriousness of the infringement and the impact of the breach on Mr. Sheck's Charter rights. Held: appeal dismissed. The police had an objectively reasonable, subjectively-held belief in the presence of a firearm that put the safety of police or the public at stake. That belief justified a safety search of Mr. Sheck's man purse. The totality of the circumstances founded a legitimate investigative detention. The judge's s. 24(2) analysis of the s.10 breaches deserves deference and reveals no reviewable error. Reasons for Judgment of the Honourable Chief Justice Bauman: I. [1] On 8 June 2010, Chris Wasilewicz was living with Amber Sheck, the appellant's ex-wife, and her children. That same day he was shot six times outside his residence in Surrey, B.C. He survived. [2] On three occasions between 12 October 2010 and 3

November 2010, police received information from a confidential source that Glenn Harley Tetsuji Sheck was actively pursuing a plot to murder Mr. Wasilewicz and that he was regularly carrying a 9mm Glock handgun in a Louis Vuitton shoulder satchel or man purse. [3] So strong was the police concern of a vendetta violently erupting between Wasilewicz and Sheck that they felt compelled to warn both of the threat of harm each faced from the other; Sheck in late July 2010 and Wasilewicz on 3 November 2010. [4] On 4 November 2010, police had Mr. Sheck under surveillance. He was seen carrying a man purse. He was followed to an Earl's Restaurant, which he entered around 7:00 p.m. The police reacted, in circumstances that I will detail below, and detained Mr. Sheck for investigation. They searched the man purse, purportedly pursuant to that investigative detention, for police and public safety purposes. They found the handgun and arrested Mr. Sheck for possession of a firearm. [5] Mr. Sheck alleged at his trial that the search and his arrest gave rise to various breaches of his rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11(the "Charterˮ). He sought exclusion of the fruits of the search of his man purse. The trial judge admitted the evidence and convicted Mr. Sheck. [6] This appeal

primarily concerns the proper legal basis for an investigative detention and a search incidental thereto. Whether the Supreme Court of Canada's decision in R. v. MacDonald, 2014 SCC 3 has changed the law in this regard is mooted in this Court. II. [7] I turn to outline the facts surrounding the arrest of Mr. Sheck in more detail. [8] On 4 November 2010, Mr. Sheck was under surveillance by a team of police officers. According to the police evidence at trial, the objective of the surveillance was to corroborate or refute the source information and to obtain lifestyle surveillance concerning Mr. Sheck; the goal was not to take Mr. Sheck into custody but rather to detain him and "do a check of himˮ. [9] At about 7:10 p.m., Corporal Wells received information that Mr. Sheck had arrived at the Earl's Restaurant. Members of the Gang Task Force in attendance then met for 20 minutes in the parking lot to formulate a plan. [10] Corporal Wells testified that the team discussed the "belief that Mr. Sheck may be in possession of a firearm in that black satchel that had been described. We talked about busy restaurant, public safety, the safest manner in which we could do a licensed premise check of Mr. Sheck while inside the restaurant.ˮ The plan was to make it look like a random check of the whole restaurant to detain Mr. Sheck. [11] Corporal Wells confirmed that he directed the

officers: to do a licenced-premise check, as though they would normally do, which was to ask for the person's ID and ask for him to step outside, without being Chartered and warned [inside the restaurant]. [12] Corporal Wells testified that the purpose in doing a premises check was: [for] the safety of the people inside the restaurant, as well as the police officers. I suspected that Mr. Sheck had a gun in his man bag, and in my experience as a police officer, engaging a male inside a restaurant who may be in possession of a firearm is a dangerous risk to take and - and one that we didn't feel was in - in the best interests of - of the other people in the restaurant. [13] At approximately 7:48 p.m., the officers entered the restaurant, obtained management's approval for a licensed premises check walkthrough and began engaging patrons. The practice was to review a patron's identification and run the name through police data bases via a portable computer. If the patron was deemed to pose a risk to public safety, they would then be asked to leave or would be removed by police. [14] On entering the restaurant, the police testimony at trial related that Mr. Sheck was noted sitting alone in a booth on the lounge side of the restaurant. Constable Krempeaux observed the appellant's "eyes open really wide I described it as being shocked or panickedˮ and he put "something, which turns

out to be a man purse, and put it partly under his right butt cheekˮ. Mr. Sheck also took something, which turned out to be his driver's license, out of the man purse. As the officers entered the lounge area where Mr. Sheck was seated, Constable Krempeaux observed Mr. Sheck try to turn away from the officers. [15] Constable Aitchison dealt with Mr. Sheck. He asked Mr. Sheck for identification; it was on the seat beside him. Constable Aitchison testified that he has done many licensed premises checks and patrons do not normally have their identification out and ready for officers. This raised Constable Aitchison's suspicion even more "[be]cause typically people will have their ID ready for me when I'll do a traffic stop, for example, not typically when you walk into a restaurant. People just aren't readily going to hand you their IDˮ. [16] Constable Krempeaux stood by Mr. Sheck's table while his ID was being checked. There was no conversation and Mr. Sheck continued to eat his chicken wings. Constable Krempeaux observed that Mr. Sheck's hands continued to shake while he ate. [17] Constable Aitchison returned to the table and asked Mr. Sheck to accompany him outside; Mr. Sheck complied and put the man purse over his shoulder and left with the officer. [18] Constable Aitchison testified that he believed he detained Mr. Sheck when he made contact with him in the booth, but he did

not advise Mr. Sheck that he was detained due to officer safety concerns. [19] Once outside the restaurant, Constable Aitchison advised Mr. Sheck that he was going to search him for officer safety reasons. Constable Tarchuk took the man purse from Mr. Sheck. It was searched and the gun was found. According to Constable Krempeaux, he knew there was a firearm in the purse even before he looked inside: When I grabbed it [the man purse], I could feel a weight, like a heavy weight. And I could smell - and it's - - I don't know how you describe this the easiest way, but to me it's like - I don't know if it was the gun cleaner, the gun oil or something. It's what I know to be the smell of a gun. It's like of you smell the scent of a rose, you know a rose. When you smell - you smell the scent. It's just what - particularly like having a gun for the years I've been a cop, it's just the scent I know. And then at that point I told him he's under arrest, put his hands behind his back, handed the man purse to Cpl. Wells, dealt with cuffing him with Cst. Tarchuk, and I told him he was under arrest for possession of firearm. T. 89[31-45] Like I said, he gave it to me, I felt the weight, I could smell that I can't say if it's gun oil, if it's gun cleaner, but it's a scent that I take for a gun. Looked, gun, I tell him he's under arrest, put his hands behind his back. Cpl. Wells is - Tarchuk

and Wells is over here. Hand it to him, then handcuff. T.92[15-22] [20] After seeing the firearm, Constable Krempeaux advised Mr. Sheck that he was under arrest for possession of a firearm. It took approximately five minutes from when the police first entered the restaurant until Mr. Sheck was arrested. [21] At 7:53 p.m., Constable Aitchison gave the Charter and police cautions from memory to Mr. Sheck. Two minutes later, he "Charteredˮ Mr. Sheck from his official police card. Mr. Sheck indicated that he wished to speak to counsel of his choice. On cross-examination, Constable Aitchison agreed that he had a cell phone at the scene, and that there was no impediment to having Mr. Sheck call his lawyer from the back of a police car. However, he said that he does not "typically give people that opportunity until I get back to cells.ˮ [22] Constable Aitchison testified that he did not immediately "Charter" Mr. Sheck while inside the restaurant because "it was believed he - there was a possible handgun. I didn't want to delay the process. We needed to get him outside as soon as possible for the safety of the public.ˮ [23] Constable Krempeaux handed the man purse with the firearm still inside to Corporal Wells. There were four phones in the man purse. Two of the phones were off, and Corporal Wells manipulated another phone to ensure that it did not go into standby mode. Sometime later

that day, another individual took photographs of "pages on the phoneˮ. In addition, Corporal Wells directed that the appellant's rental vehicle be searched. He testified that he conducted these searches incidental to the lawful arrest of Mr. Sheck. [24] Mr. Sheck was able to contact his counsel, Mr. Cobb, after he was processed at the police detachment. The total delay in providing access to counsel was slightly over 80 minutes from the time of initial detention. Police began trying to contact Mr. Cobb at approximately 8:49 p.m. III. [25] At trial, Mr. Sheck applied to exclude the evidence of the Glock 9 mm handgun saying that it was obtained in violation of ss. 8, 9, and 10 of the Charter. [26] The Charter violations were said to include: · a search of the accused in violation of s. 8; · an arbitrary detention of the accused in violation of s. 9; · a failure by police to comply with ss. 10(a) and (b) after detaining/arresting the accused; · searches of the accused's cell phone and motor vehicle in violation of s. 8. [27] The trial judge heard Mr. Sheck's application in a voir dire over two days. The judge reserved his decision for several weeks and delivered lengthy written reasons for his ruling indexed as 2012 BCPC 39. [28] After reviewing the evidence on the voir dire, the judge discussed the context of the police investigation. He noted that the Integrated Gang Task Force

was investigating a conspiracy to commit murder after the shooting of Mr. Wasilewicz in June 2010. [29] The judge turned to 3 November 2010, when (at para. 18) "a known police informant provided relatively specific information that Glenn Sheck was regularly carrying a Glock firearm inside a Louis Vuitton man purse bag.ˮ The judge related the events at the Earl's Restaurant on 4 November 2010, and then concluded on the s. 8 issue involving the search of the man purse (at para 19): [19] These contextual frames are the basis for an assertion by the Crown that there were genuine concerns for public safety on November 3rd and 4th. These safety concerns were real factors influencing the decisions of the police investigators. There was a possibility that a firearm was in a bag carried by Glenn Sheck. The police had the subjective belief in the presence of a firearm. The genuine character of their subjective beliefs was amply demonstrated by their investigatory techniques and implementation of the duty to warn procedure with Wasilewicz. The safety of the public, the police officers and Chris Wasilewicz were all factors that were significant during this two day period. The police actions, the rapid tempo of their activity and the manpower assigned to tasks in the short time frame, all confirm the legitimate subjective beliefs of the police investigators that they were confronting near

exigent circumstances. The fact that police did not immediately move to seize the bag and search it when the accused was seen carrying it at the bank and travel agency earlier in the afternoon of November 4th does not detract from the assertion of exigent circumstances in my view. On the evidence available at this voir dire, a court should not embark on a partially informed review of police decisions regarding the best tactics for direct interventions by police officers with a person suspected of possession of a loaded firearm, nor speculate on the safest methods of reducing the perceived threat. When the surveillance team saw Glenn Sheck enter the busy Earl's restaurant on the evening of November 4th, the perceived level of risk to public safety increased. The public safety risk factor "went through the roof" at that point, in the view of one of the police task force members. The search of the Louis Vuitton bag was warrantless and therefore presumed to be unreasonable. However, the police actions inside the Earl's restaurant were a deliberate and planned form of deception, set in place following a hastily conceived strategy to reduce the risk of harm to the public and the police. I find this strategy created an investigatory detention of the accused for a period of about two minutes or less to accomplish the goal of the investigators, seize the suspected firearm and disrupt a

conspiracy to commit murder. The search went beyond a pat down of the accused to include the seizure and opening of the bag hanging from a strap on his shoulder. These actions were done without exercising physical force on the accused. Glenn Sheck had not given his informed consent to any form of search. The police did not engage in publicly humiliating or degrading actions in their dealing with the accused while under detention or subsequent arrest. The manner of the search of his person and the bag did not involve any gratuitous intrusions into areas of bodily integrity. They were deliberately low key and calm in their contact with the accused during this investigatory detention phase. There were limited objective bases for the reasonable suspicion regarding possession of the firearm in the bag. I do not place much reliance on the observations of the officers who saw signs of nervousness and attempts at concealment of the bag by Glenn Sheck. The evidence of their observations has the character of reasoning after the fact, following the gun seizure. I would not characterize the police evidence as misleading in this area, however, their observations are not objectively compelling. Features of the evidence that were noted and observed became more significant to the officers, perhaps due to the retrieval of a gun a few minutes later. The informant's disclosure to police provided

some specifics but this source information had notable gaps in terms of the source of the informant's knowledge, the recency of any observations and the limited verification of reliability. These are factors that reduce the objective strength of the police suspicion. However, given the heightened scale of the risk to the public, the genuine subjective views of the police, the investigative context and their measured and restrained tactics in effecting a physical detention of the accused, I find that the search of the bag fits within the ambit of the permissible range of intrusion for searches to ensure public and officer safety during investigative detention. [30] The judge turned to the searches of Mr. Sheck's cell phone and car and held that they violated Mr. Sheck's s. 8 rights. No issue was taken on appeal in respect of this conclusion. [31] Next, the judge dealt with the alleged breach of s. 9 - the arbitrary detention submission. It was conceded that Mr. Sheck was detained from the moment police asked for his identification in the restaurant until his actual arrest minutes later. [32] The judge concluded that this was a valid investigative detention, not a de facto arrest and reasoned so (at para. 22): [22] In this voir dire I find the evidence of the informant is not objectively conclusive. The informant's disclosure was not corroborated in a comprehensive manner.

However, I must assess the quality of the information available to the police with regard to the assertion of near exigent circumstances. I accept that the police investigators had two objectives, to disrupt a conspiracy to commit murder and to seize a loaded handgun. The police acted quickly and applied considerable resources. There was nothing arbitrary about the police decision to detain Glenn Sheck; it was a deliberate planned police action involving a planned ruse to conceal their purpose while inside the restaurant. I have heard an explanation for the police tactics based on public safety concerns and the heightened risk once the accused entered the restaurant. I accept that there was a genuine subjective belief in the minds of the investigators that the accused was currently in possession of a firearm. I also find that the subjective belief in the risk posed by a firearm was a reasonably held belief. Corporal Wells had met the informant once in October 2010. There were already police officers assigned to act as handlers for this informant. The police surveillance operation on November 4th had confirmed the accused was carrying a Louis Vuitton man purse. The dimensions of the bag were sufficiently large to permit a handgun to be hidden inside. At the restaurant there were some police observations of the accused, although subjective in nature, that supported inferences

that he was nervous and engaged to efforts to conceal some object from the police. He had placed his identification document so that he could provide it to the police directly without waiting for their request. This was noted as unusual and suspicious in the view of a police team member with experience conducting license premises checks. I find that the subjective beliefs of the police when weighed collectively are the basis for a reasonable suspicion supporting an investigative detention. The detention was brief in duration and was imposed without any oppressive or abusive physical or psychological tactics against the accused during the period of detention. There was a valid basis for this planned and deliberate form of investigative detention, to reduce the risk to public and officer safety while inside the restaurant. [33] The judge next analyzed the s. 10(a) and (b) issues. On s. 10(a), the Crown conceded that a violation occurred when Mr. Sheck was detained in the restaurant and not advised of that until minutes later outside the restaurant. At para. 24 of his reasons, the judge said: [24] I conclude that the police violated section 10(a) in this instance. I also conclude it was a wilful and deliberate violation. But I note that it was a violation that was purposeful, in that the omission of the section 10(a) information was made in furtherance of the strategy adopted by

the police in an effort to reduce the risk of harm to the public and the officers present inside the restaurant. It was an omission intended to manage the perceived level of risk inside the restaurant. I do not find there was any effort by the police to utilize the omission of the s. 10(a) component to obtain some other hidden investigative advantage or to create a psychologically oppressive effect upon the accused. [34] The Crown, at trial, also conceded the breach of s. 10(b). The judge agreed noting that access to counsel was not provided at the scene of the arrest notwithstanding that there were then no continuing concerns for public or officer safety after the gun was seized. He continued (at para. 25): [25] The delay in providing access to counsel was a total of about 83 minutes from the initial detention or about 80 minutes from the time of the arrest. About 24 minutes of that total time period was attributable to waiting for a return call from counsel in response to the message left by the police. The police were engaged in fingerprinting and photographing the accused prior to the formal completion of any Information charging him with an offence. There were no efforts to obtain statements from the accused while in police custody before he had an opportunity to speak to his counsel. [35] The judge proceeded to consider whether notwithstanding the noted Charter breaches,

the Glock 9 mm handgun should nevertheless be admitted in evidence. [36] The judge's s. 24(2) analysis in this regard covers paras. 26-36 of his reasons. [37] The judge instructed himself on the law, in particular, the balancing of the factors set out in R. v. Grant, 2009 SCC 32 . He noted that there must be a causal, temporal or contextual connection between breaches of Charter protected rights and the evidence sought to be excluded. The judge concluded (at para. 26) that none of the breaches here were "a contributing factor to the seizure of the gun.ˮ [38] The judge considered the seriousness of the violations. He concluded that the s. 10(a) breach was not serious in the circumstances but the s. 10(b) breach was and that it was not "adequately explained in the evidence presentedˮ (at para. 28); "the police seemed to have followed a general practice, without regard for requirements to facilitate prompt access [to counsel]ˮ. [39] As to the alleged pattern of wilful disregard of Mr. Sheck's constitutional rights, the judge reasoned (at para. 29): [29] I have been asked by the applicant to find a pattern of wilful disregard for the constitutional rights of Glenn Sheck. However, I do not conclude that such a pattern has been established on the evidence presented. There was a breach of s. 10(a) that was not serious in my view. There was a serious breach of s. 10(b). There was a

temporal connection between the seized gun and the breach but not causal or contextual links. I have concluded that sections 8 and 9 were not breached during the investigative detention phase leading to the seizure of the gun. Section 8 was breached twice after the gun seizure, by the search of the digital device and the motor vehicle. I accept the evidence of the Corporal Wells that the digital device was searched without any advanced plan or strategy, but this is not the equivalent of good faith on the part of the police. It is not clear what was obtained from the electronic contents of the device, and nothing was presented in evidence from either of these two searches. Temporal links between these two searches and the gun seizure are clear, but causal or contextual links are not apparent. The police found the gun they suspected to be inside the bag. The investigation of the conspiracy to commit murder was continuing before and after the gun seizure. If there had been a pattern of wilful disregard in these investigations that finding would bolster the assessment of the seriousness of the subsequent s. 8 and s. 10(b) violations. In the absence of such a pattern, I have concluded that the seriousness of the violations is not enhanced beyond the range I have already noted when assessing the s. 10(b) and s. 8 breaches. [40] The judge advanced to consider the impact on the

protected interest of Mr. Sheck. While Mr. Sheck could not speak to counsel for about one hour after his arrest, attributable to police conduct, no statement was sought from him during this period. The judge concluded (at para. 30) that while the impact on the protected interest was "significantˮ it was "moderated to some degree by the eventual and still valuable exercise of the right to access counsel.ˮ [41] Turning to the impact of the s. 8 breaches, the judge said of the search of the cell phone (at para. 31): [31] The impact of the search of the device is probably significant, but is clouded by some uncertainty, since there was nothing produced as evidence from this search. In these circumstances, where the onus of proof is on the applicant regarding the provision of a remedy, there is not a specific level of impact that can be accurately assessed. The inherently important personal privacy interest that I place on the digital device means there is an assumed serious impact on the rights of the accused from this unreasonable search. But it is impossible to say where the impact should be ranked when the contents may have been personal information that consisted of social and business contacts such as telephone numbers and addresses, or more personal information, images or other material that engages a more profound and fundamental personal privacy interest. I place the impact

of the unlawful search of the digital device in the range of a serious impact on the privacy interests protected by s. 8, although somewhat uncertain as to the degree of privacy interest and the severity of the intrusion in this specific instance. [42] The judge noted that the motor vehicle searched was a "rentalˮ (at para. 31) and that although items were seized nothing was introduced into evidence. He concluded that the impact was in the "middle range, placing it lower than the digital device search and higher than the impact of the s. 10 violations.ˮ [43] The judge turned to consider society's interest in the adjudication of the case. He proceeded to consider the jurisprudence examining the role of guns and gun related violence in society. The judge noted various Provincial Court decisions from British Columbia and Ontario. He distinguished this Court's decision in R. v. Caron, 2011 BCCA 56. The judge concluded (at para. 35): [35] In balancing the factors to determine the appropriate remedy, the Court must consider if there is a need to dissociate the criminal justice process from the actions taken by the police. In the circumstances of this case, the actions of the police were undertaken in response to a reasonably held subjective belief that a firearm was possessed by the accused. The possession was believed to pose an intense risk of harm. The police response was a

strategy involving deception and deliberate overriding of Charter protections for a brief period. This strategy led to recovery of the firearm and reduction of the risk to the public. This was directly followed by subsequent further breaches of Charter rights. The later breaches were not planned or functionally connected to the seizure of the gun. In this case there was a valid investigative purpose justifying detention and ensuring public safety. Guns are not a unique or distinct category of evidence for s. 24(2) analysis. As noted above, there is not any specific category of evidence that should be subject to automatic exclusion or admission following a s. 24(2) analysis. A consideration of the interest of society in the full adjudication of firearms offences favours inclusion of the evidence in this case, in recognition of the effects of violence related to firearms in our community. IV. [44] I proceed to consider the grounds of appeal advanced by Mr. Sheck. The oral submissions on his behalf slightly modified the approach taken in his factum so I will endeavour to summarize the position advanced at the hearing of the appeal. As I take those submissions, the position of Mr. Sheck is to this effect: the test for a proper search pursuant to an investigative detention has been changed by the Supreme Court of Canada's decision in MacDonald; there must be reasonable grounds to

believe (not the lesser "reasonable suspicionˮ) that there is an imminent threat to safety and that the search is necessary to address that threat. The case here was decided two years before MacDonald. The trial judge (stressing paras. 19 and 22 of his reasons) only referred to the "reasonable suspicion thresholdˮ and made no finding of "reasonable grounds to believeˮ. Regardless of which standard applies, Mr. Sheck goes on to submit that the conclusion must be supported on an objectively verifiable basis, that is, by objectively discernable facts. As to this, there is no such basis in the evidence and, more importantly, the trial judge made no such finding. Mr. Sheck continues his submission by saying that the search of the man purse was not pursuant to a valid investigative detention for which there was objectively verifiable support ‒ it was simply a search for evidence and the licensed premises check was but a ruse to put police in the position to carry it out. [45] Mr. Sheck submits that the Crown in its factum, and in oral submissions, was attempting to resile from its concessions at trial that the police breached Mr. Sheck's ss. 10(a) and (b) rights (indeed this is so), that these breaches were egregious and together with the other Charter breaches they represent a pattern of wilful disregard of Charter values such that the evidence of the handgun ought to be excluded

under s. 24 of the Charter. This Court's decision in R. v. Bohn, 2000 BCCA 239 is cited in support. [46] Mr. Sheck concludes with his submission on the third Grant factor, society's interest in adjudication on the merits, by quoting Mr. Justice Frankel's remarks in R. v. Reddy, 2010 BCCA 11: [107] This brings me to the final factor: society's interest in adjudication on the merits. What is in issue here is highly reliable evidence, critical to the prosecution of serious offences. There can be no question that the public has an interest in the successful prosecution of persons who unlawfully carry loaded handguns. The dangers that such conduct creates cannot be overstated. However, the public also expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their lawful authority. [108] Balancing all the factors, I have concluded that, in the long-term, the repute of the administration of justice would be adversely affected by admitting the handguns. Unlike Grant, there was no "legal uncertainty" when Mr. Reddy was directed out of a vehicle and his jacket searched only because he was subject to the conditions of a probation order. To the contrary, by reason of Mann, the law relating to investigative detentions was clear, and no reason has been offered that would excuse non-compliance with that law in this case. It is this failure to act in accordance with the limits set by the highest court in the land that tips the s. 24(2) scales towards exclusion. As in Harrison, "the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards": para.

42. V. [47] It is necessary to consider the impact of MacDonald on the proper test for searches incidental to an investigative detention. But I begin by discussing investigative detentions themselves and the Supreme Court of Canada's decision in R. v. Mann, 2004 SCC 52. [48] In Mann, the majority (per Iacobucci J.) recognized a limited police power of investigative detention (at para. 18). After reviewing the jurisprudence, Mr. Justice Iacobucci said in summary (at para. 34): [34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the

interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. [49] I note that what must be supported by way of reasonable grounds (objectively viewed) is "the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offenceˮ. [50] The majority went on to consider whether a search incidental to an investigative detention is authorized by law. On the Waterfield test, Mr. Justice Iacobucci concluded that it does exist at common law and summarized his conclusions (at para. 45): [45] To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, 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. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained

individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [51] It is to be noted that the incidental search must be premised on reasonable grounds to believe that one's safety or that of others is "at riskˮ. [52] The Supreme Court of Canada considered the issue again in R. v. Clayton, 2007 SCC 32. In R. v. Peterkin, 2015 ONCA 8, Mr. Justice Watt summarized the Mann/Clayton principles at para. 49: [49] Citing Mann, the Supreme Court unanimously held a safety search incident to an investigative detention is justified if the officer believes on reasonable grounds that his or her safety, or that of others, is at risk: at paras. 29, 104. Applying this test to the facts of Clayton, the court held that the same safety concerns that justified the investigation detention justified the incidental safety search: paras. 48-49. [53] The test for a valid investigative detention and a search incident thereto is to be based on the same safety concerns. In the case of the detention, it is to be based on a reasonable suspicion and in the case of the search, it is to be based on a reasonable belief that safety is at risk. [54] Before turning to MacDonald, I note that the scope of the permissible search has been modestly expanded

from pat-downs of the person to include a search of fanny packs: R. v. Thibodeau, 2007 BCCA 489, leave to appeal dismissed, [2007] S.C.C.A. No. 592; R. v. Lai, [1998] B.C.J. No. 2446 (B.C.C.A.), leave to appeal dismissed, [1999] S.C.C.A. No. 28; R. v. Ferris, [1998] B.C.J. No. 1415 (B.C.C.A.) (QL), leave to appeal dismissed, [1998] S.C.C.A: No. 424. [55] Present the necessary grounds, this would amply authorize the search of the man purse here. [56] This brings us to MacDonald. Importantly, it did not deal with a search incidental to an investigative detention, it involved a so-called "free-standingˮ safety search. The majority and minority decisions in MacDonald have been concisely summarized by Mr. Justice Watt in Peterkin (at paras. 53 and 54): [53] Citing Mann at paragraphs 40 and 45, a majority of the court 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: MacDonald, at para. 41. [54] A minority of the court concurred in the result (that the safety search was justified), but held the majority had been unfaithful to the teachings of Mann and the subsequent case law by positing a new standard of reasonable grounds to believe a person was armed and dangerous rather than reasonable grounds to suspect such was the case: MacDonald, at paras. 66, 77. The minority maintained that although Mann employed the language of "reasonable grounds to believe", pairing this language with the concept of safety being "at risk" inherently built in the standard of a possibility: MacDonald, at para.

69. By using the language of reasonable grounds to believe a person is armed or dangerous (at paras. 39, 42), and reasonable belief in an imminent threat to safety (at paras. 40, 43-44), the majority replaced what was in essence a reasonable suspicion standard with one of reasonable belief: MacDonald, at paras. 66-71. [57] In the result in Peterkin, the Court did not find it necessary to decide whether the majority in MacDonald recalibrated the standard to be applied in determining the lawfulness of a safety search, because on the higher standard the test was met. [58] Before us, counsel for Mr. Sheck maintains the minority's view of the effect of the majority's decision in MacDonald. He cites this Court's decision in R. v. Ahmed-Kadir, 2015 BCCA 346. [59] Ahmed-Kadir was, as well, a search consequent to police answering a 9-1-1 domestic dispute call. It was a stand-alone safety search. At paras. 64-68, Mr. Justice Frankel discussed MacDonald and he identified the views of the majority and the minority in that case. He does appear to implicitly accept that the majority recalibrated the "reasonable grounds to suspectˮ standard to the higher "reasonable grounds to believe that a threat existsˮ marker. And this is made clearer by my colleague at para. 93 when in considering the seriousness of the police conduct at issue, Mr. Justice Frankel said: [93] Turning to the searches, I

begin by noting this matter arose some four and one-half years before the majority in MacDonald decided that before a police officer can conduct a safety search he or she must have reasonable grounds to believe there is an imminent threat to safety and that the search is necessary to address that threat. Prior to that decision, as reflected in the minority concurring reasons, it was generally understood the police could conduct safety searches based on reasonable suspicion. In light of this, I will consider the actions of Constable Hirst and Constable Rossiter having regard to the reasonable suspicion standard. [60] But the question remains, if the standard has been re-set as suggested in the case of a stand-alone safety search, is it to be applied to a case of a safety search incidental to an investigative detention such that the test for the former is more stringent than that for the latter? Indeed, Mr. Sheck goes further, he conflates the MacDonald majority's test for a stand-alone safety search to one that applies to not only the safety search incidental to an investigative detention but, as well, to the detention itself. [61] In my view, we need not decide whether MacDonald has had such a dramatic impact on the jurisprudence touching this subject. Even if it were so, the evidence here amply satisfies the higher standard. [62] First, the trial judge found that the police

had a subjective belief (more than just a suspicion): "These safety concerns were real factors influencing the decisions of the police investigators The police had the subjective belief in the presence of a firearm" (para. 19). [63] Second, I do not accept the submission on the s. 9 argument to the effect that the trial judge did not advert to, and make a finding of, an objectively verifiable basis for the subjective beliefs of the police officers in attendance. At para. 19 of his reasons, the judge clearly identified the limits on the "objective bases for the reasonable suspicion regarding possession of the firearm in the bagˮ, suggesting, of course, that the judge was very much directing his mind to the objectively discernible facts. And this is made quite clear again in para. 22 when the judge says: " I find the subjective beliefs of the officers when weighed collectively are the basis for a reasonable suspicion supporting an investigative detention.ˮ [64] Third, as the Crown helpfully summarizes, here is what the police had before them based on the evidence at trial: 65. In the present case, the detention was reasonably necessary on an objective view of the totality of the circumstances: · in June 2010, someone had attempted to murder Chris Wasilewicz by shooting him six times: Reasons, at para. 5; · Mr. Wasilewicz was in a relationship with the appellant's former spouse:

Reasons, at paras. 5, 18; · in July 2010, police concluded that they had a duty to warn, and did warn, the appellant that the potential actions of Mr. Wasilewicz posed a threat to the appellant: Reasons, at paras. 9, 18; T. 26[16] to 27[16]; · on three occasions, including on November 3, 2010, a confidential informant told police that the appellant was involved in an active plot to murder Mr. Wasilewicz and frequently carried a firearm in a black or beige Louis Vuitton man purse: Reasons, at para. 5; · CpI. Wells had met the informant once in October 2010: Reasons, at para. 22; · CpI. Wells spoke to the informant's handler and asked for confirmation of the source's reliability. CpI. Wells ultimately came to the conclusion that the information was true, reliable and credible: T. 42[32-43]; · based on the confidential source information, police concluded that there was currently an active plot to murder Chris Wasilewicz. Police took this information so seriously that they concluded that they had a duty to warn, and did warn, Mr. Wasilewicz on November 3, 2010: Reasons, at paras. 8-9, 18; · after receiving the source information, police did not seek to immediately arrest the appellant. Rather, a surveillance operation was set up to confirm the accuracy and reliability of the information (i.e. whether the appellant carried a man purse); · on November 4, 2010, officers observed the

appellant carry the man purse throughout the day, including into the Earls restaurant; · Constables Aitchison and Krempeaux both observed the appellant make attempts to conceal something, later determined to be the man purse, under his buttocks; · the appellant had his identification ready and waiting for police, which was noted as unusual: Reasons, at para. 22; and · Cst. Krempeaux observed that the appellant appeared nervous while dealing with police: Reasons, at para. 22. [65] Add to this these circumstances: · Cst. Krempeaux's observations that the man purse looked "thickˮ and that the appellant was attempting to carry it under his arm; and · when Cst. Tarchuk handed the man purse to Cst. Krempeaux, he noted smells that he associated with a firearm and observed that the man purse was heavy. and we clearly have a totality of circumstances which meets the test, if it is the law, that calls for reasonable grounds to believe (beyond reasonable suspicion) that the particular individual to be detained is implicated in the criminal activity under investigation and reasonable grounds to believe that the safety of police or the public is "at stakeˮ (again beyond "at riskˮ). [66] This also meets Mr. Sheck's over-arching submission that this was a sham investigative detention sparked by the ruse of licensed premises check and masking a bald search for evidence. The "ruseˮ simply

allowed the police to escort Mr. Sheck safely out of the Earl's Restaurant; it was not the basis for the detention. Rather, as I have said above, the totality of the circumstances founded a legitimate investigative detention. I would not give effect to the submission attacking the trial judge's conclusion that ss. 8 and 9 were not breached by police conduct in the detention and safety search of Mr. Sheck. [67] This conclusion, in my view, takes all of the force out of Mr. Sheck's submission on the judge's s. 24(2) analysis. In that regard, it is not necessary to consider the Crown's submission that it is now free to argue that ss. 10(a) and (b) were not breached notwithstanding its concessions at trial. [68] Assuming, without deciding, that those breaches have been made out, nothing in the judge's careful and thorough analysis under s. 24(2) discloses reviewable error. As McLachlin C.J.C. and Charron J. wrote in Grant at para. 86: [86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this

way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [69] In conclusion, on this issue, as I have stated, Mr. Sheck relies on this Court's decision in R. v. Reddy, 2010 BCCA 11. In my view, absent any breach of s. 8 in respect of the search of the man purse and s. 9 in respect of the detention, this is simply not a case like Reddy where the Court found that the ss. 8 and 9 breaches were patent and egregious. [70] In the result, I would not accede to any of the grounds of appeal and I would dismiss the appeal from conviction. "The Honourable Chief Justice Baumanˮ I AGREE: "The Honourable Mr. Justice Chiassonˮ I AGREE: "The Honourable Madam Justice Stromberg-Steinˮ