Indexed as:
R. v. Lee

Between
Her Majesty The Queen, and
Yet Wai Daniel Lee

[1993] B.C.J. No. 1220
Vancouver Registry No. CC921383

British Columbia Supreme Court
Vancouver, British Columbia
Hood J.

Heard: May 10, 11 and 14, 1993.
Judgment: May 27, 1993. Filed: May 28, 1993.
(36 pp.)

   Criminal law — Evidence and witnesses — Admissibility — Search and seizure — Search of person — Whether lawful — Possession of narcotics for purpose of trafficking.

   This was a ruling as to the admissibility of evidence obtained during a personal search of the accused on the ground that the search was unlawful.  A clerk in a convenience store called the police since he feared that he was going to be robbed.  The police came and did a pat down search of the accused and L. Another constable came and saw a bag under the accused's coat when she grabbed him, fearing that he was going after his gun. He was then arrested and advised of his rights. He was wrestled to the ground and a second bag was found.  The accused and L were acting suspiciously.

   HELD:  The evidence was admissible.  Its exclusion would render the administration of justice into disrepute.  There were reasonable and probable grounds for the officers to believe that the accused had been about to commit an indictable offence.  The search was legal.  There was no section 10 violation.  There was a real or perceived danger to the officers acting in the discharge of their duties.  The officer's conduct did not constitute a search of the accused whose behaviour led to the discovery of the drug.  The accused's detention was reasonable and not arbitrary.

STATUTES, REGULATIONS AND RULES CITED:

       HOOD J.:—

INTRODUCTION

       The accused is charged with two counts.  First, unlawful possession of heroin for the purpose of trafficking, contrary to the provisions of the Narcotic Control Act.  Second, unlawful possession of cocaine for the purpose of trafficking, contrary to the provisions of the said Act.

       The charges result from events which occurred at approximately 4:30 a.m. on November 5, 1991 at or near a 7-Eleven store situate at 3295 East 22nd Avenue, in the City of Vancouver, in the Province of British Columbia.  The accused challenges the admissibility of evidence which he says was obtained at that place and time as a result of an unlawful search of the accused.  The evidence is 34.46 grams of heroin and 87 grams of cocaine, which were found on his person at the time.

THE EVIDENCE ON VOIR DIRE

       Mr. Lorenz Schwarz, one of two clerks working at the store that night, testified that he had observed a vehicle driving past the front of the store, through the parking area in front of the store, on a number of occasions.  At one point the vehicle stopped right in front of the store and he observed two persons in it.  He said "they stared right at me."  The vehicle left and then came back again.  He felt scared, that something was going on - that they were going to be robbed by the two men.

       He took down the licence plate number of the vehicle.  He then phoned the police, gave them a description of the two Oriental males in the vehicle, of the vehicle itself and the plate number, and told the police of his concerns.  The police arrived approximately ten minutes later but the vehicle and its two occupants had departed.  He was told to call back if the vehicle returned.  It did, ten or fifteen minutes later. On this occasion the vehicle was again stopped in front of the store.  Mr. Schwarz again became worried.  He ran to the back of the store and called the police again.

       After making the call, he returned to the front area of the store and saw one of the men coming into the store.  The man walked around the inside perimeter of the store, then stopped at a magazine rack where he looked at a magazine and kept looking out the front window at the same time.  This took about five minutes or less.  The police then arrived.  At that time the second occupant of the vehicle was approaching the front door of the store.  The man inside was then on his way to the door.

       The witness described the man in the store as wearing a long trenchcoat and running shoes.  He had black hair.  He was a young Oriental male.  He could not describe the second man other than to say that he was a young Oriental male as well. The witness noted on more than one occasion that he could not remember things; that the events described had occurred sometime ago.

       On cross-examination the witness reiterated that when the vehicle stopped in front of the store the two men therein would look into the store, and that he had made eye contact with them.  The extent of his recollection at trial was that the two persons were Oriental males.  Both of them stared at him on the second occasion.  They had driven by and stopped on a number of occasions.

       He did not see the man who came into the store, and who he said was the driver of the vehicle, get out of the vehicle. However, he recognized him as one of the two men in the vehicle.  I am satisfied that the second man, the passenger in the vehicle, was the accused, Mr. Lee.

       The witness described again how the driver, wearing a long trenchcoat, came into the store and stood at the magazine rack.  He could not say how the accused was dressed.  The accused had not gained access to the store by the time the police arrived.  He last saw the two men talking with the police officers in front of the bakery store, which is next to the 7-Eleven store.

       Constable Kevin Steeves testified that he and his partner, Grant Campbell, drove to the store in response to a call from the dispatcher at 3:59 a.m.  They were in full uniform and in a marked police cruiser.

       They had been given a description of the vehicle and of its two occupants.  They were told the plate number and that the clerk believed he was going to be robbed.  They did not see the vehicle or the two men and, after a brief search, they departed.  Twenty minutes later the dispatcher advised them of the second call from Mr. Schwarz; that the vehicle had returned and one of the men was in the store "doing a walk through;" had gone to the staff area and then exited the store and got back into the vehicle.

       In the meantime the officers had checked the licence plate number and had attended at the owner's address.  They learned that the vehicle was a "pointer vehicle" - which means that it was under observation by the police.  They also learned that the owner of the vehicle was known to the police.

       Constable Steeves testified that on arriving at the store they parked behind the vehicle referred to.  He noted that the vehicle's engine was running and that the two front windows were down.  He and Corporal Campbell approached the vehicle from the rear, he on the passenger side, and Campbell on the driver's side.  It was a Code 5 situation to them because of the information they had received and the belief that a robbery was about to occur.  They were prepared for violence to occur and they had their revolvers part way out of their holsters.

       Constable Steeves noted that the back seat was empty, and once he was able to see the front floor of the vehicle, and the hands of the occupants, he directed the accused to exit the vehicle.  As the accused did so, the Constable secured his revolver and then took hold of the accused's upper right arm. He explained to him that he was going to do a quick search of the accused for weapons, what he called a "pat down search." He ran his hands down the accused's arms, sides and legs, chest and back.  He did not search under his coat.  He was looking for a concealed weapon but he did not find one.

       Constable Steeves said that he felt that in the circumstances the accused's behaviour was odd.  He expected some reaction from the accused but there was none.  He described the accused's movements as being slow and calculated.  Constable Lim and her partner then arrived at the scene.  He then left the accused with Constable Lim, "in her control," after telling her that he was going into the store, obviously to question the clerk.  He estimated that approximately 90 seconds had gone by since he and Constable Campbell had first approached the vehicle.

       On entering the store the clerk identified himself. Constable Steeves then heard Constable Lim shout "get him." He ran out of the store to where the accused and the two constables, Campbell and Lim were struggling.  He grabbed the accused's wrists and the motion apparently was sufficient to raise the rear of the accused's jacket and to disclose a clear plastic baggy containing a large quantity of white powder.  He held the accused's wrists and pulled the baggy from under his coat, put it on the ground and then helped handcuff the accused.  He testified that he then rolled the accused over, showed him the baggy, advised him that he believed that it was cocaine, and told him that he was under arrest for possession of a narcotic.  He then warned and Chartered him, advised him that he had the right to legal aid and so on.  He also asked him if he wanted to call a lawyer.  The accused said no.  He also took a pager from the accused's waistband.  The weight of the narcotics seized, and which was analyzed as heroin, was 34.46 grams.  The certificate of analysis discloses the content as 92 percent heroin.

       On cross-examination Constable Steeves recalled that the accused was wearing a dark bomber style jacket.  He was not sure whether the driver of the vehicle, Mr. Leung, was also wearing a dark jacket as well.  He did not think he was wearing a trenchcoat.

       Constable Steeves confirmed that it was a Code 5 situation - a possible robbery about to occur.  His experience was that robberies of corner stores involved weapons.  The evidence is that the particular 7-Eleven store had been robbed on a number of occasions.  He agreed that he did not have reasonable and probable grounds to believe an offence had been committed "yet."  I took him to mean that he did have reasonable and probable grounds that an offence was about to be committed.  He said that he had no reason to disbelieve the voracity of the reportee, Mr. Schwarz; also that he had to rely on his experience as a police officer, and the information that a serious offence was about to be committed. His state of mind was that an armed robbery was about to occur.

       He acknowledged that it was possible that the accused's slow and deliberate movements might have been so that there would be no misunderstanding between them.  However, he still felt that the accused's movements and lack of enquiry were suspicious or unusual.

       He described the pat down search as a preliminary search, an outside search.  He took control of the accused as he left the vehicle.  He agrees that he was detained at this point. He first warned the accused when he was handcuffed.  He believes he asked the accused twice whether he wanted to speak to a lawyer.  He did not see Constable Campbell choke the accused.  According to his testimony, they do not use a choke hold.  The gist of his evidence was that he had reasonable and probable grounds to believe that a robbery was about to be committed - he said that it was "too suspicious to be ignored."

       Constable Grant Campbell testified that the dispatcher had told them that the clerk had said that the two men had entered the store and stood and looked around - that he believed that they were casing the store for a robbery.  When they approached the vehicle, he and Constable Steeves had their hands on their weapons.  They believed that the two occupants were about to commit armed robbery.

       He noted that while it was a cold November morning, the driver of the vehicle, Mr. Leung, was perspiring quite heavily; also that he appeared to be very nervous.  He told Constable Steeves this.  When he patted Mr. Leung down for weapons he found a hard lump in one pocket which turned out to be a roll of Canadian bills in the amount of $4,170.  He told Constable Steeves about this as well.

       He was obtaining identification from Mr. Leung when he heard Constable Lim yell.  He then looked and saw Constable Lim staggering backward, and the accused running toward him, trying to squeeze between him and the front of the store.  He told the accused to stop.  He did not, so he grabbed his jacket at the front of his throat.  The accused punched at his head and missed - and then tried to claw his eyes.  He cut the constable's chin with his nails.

       He and Constable Lim then wrestled the accused to the ground.  He saw Constable Steeves reach in and pick up the plastic baggy.  When the accused was pushed over onto his stomach, his jacket was bunched up at the back.  He found a second baggy, containing a white substance, which later was identified as cocaine, in the accused's left inside jacket pocket.  He then returned to Leung and informed him that he was under arrest for possession of a narcotic, warned him and so on.  He weighed the cocaine at 87 grams.

       On cross-examination Constable Campbell said that the accused was wearing jeans and a jacket, not a trenchcoat.  He did not remember what Leung was wearing but he said possibly a jean jacket, and later, not a trenchcoat.  The vehicle the two men were in was a pointer - meaning that the licence plate was flagged in the police system because the police had an interest in it.  He believes he knew by then, but could not recall at trial.  He said that he would have released Leung in a few seconds, had the incident with Lim not occurred.

       He testified that he thought that Leung was very nervous and suspicious.  He did not ask any questions, i.e., why are you stopping us, etc.  He said that neither the accused nor Leung said anything.  This was not in accordance with his experience.  To him it was unusual, and he had to rely on his experience.  At the time he was concentrating mostly on where Leung's hands were.  He does not think that he told Leung why he was searching him, that is, patting him down.  He assumed at the time that Leung spoke broken English at the least.

       He did not ask the men whether they had any weapons on them.  He believed that they would act accordingly.  He said he would do it differently now, with more experience on the job.  At the time he had been an officer for approximately one year.  He did not grab the accused by the throat or windpipe. His hand was open and situate lower down on the chest/neck area.  It took seconds, possibly a minute, between the time Constable Lim yelled "Get him" and the time that the cuffs were put on the accused.  He had not arrested Leung by the time he patted him down.  He arrested, warned and Chartered Leung after the accused attacked him and was subdued.

       Constable Sylvia Lim testified that she and her partner had responded to the first call when the vehicle had left the area.  On the second occasion when they arrived, Constables Steeves and Campbell were already there, leading the two Oriental males out of the car.  She knew that the store had been robbed several times before.

       She went to the accused and asked him for identification. She did not recall speaking with Constable Steeves before this.  She said that the accused turned his back to her, faced the store window and produced his driver's licence.  He then began to tighten his left arm and bring it close to his chest. She reacted by grabbing his left arm, and a baggy containing white powder was then exposed through the open zipper of his jacket.  She pushed the accused against the wall and he pushed her back and then ran from her as she lost her balance.  She yelled to her partner to grab the accused.  She then ran to and jumped on the accused and helped subdue him.  She observed Constable Steeves remove the bag of heroin and then arrest the accused.

       On cross-examination the witness could not recall seeing the accused get out of the vehicle or Constable Steeves patsearching him.  She just recalled seeing the accused alone beside the vehicle by the door.  She could not recall talking to Constable Steeves before he arrested the accused, or his bringing the accused to her before he went into the store.

       When asked why she grabbed the accused's arm, she said that it was because he moved his left arm to his body.  She feared for her own safety and the safety of her fellow officers.  She became nervous as a result of the accused turning his back to her and the left arm movement earlier described.  She said that he suddenly seemed very nervous; that he clenched his fist and tensed the whole of the left side of his body - as if he had something to hide.  She then became concerned about what the accused might have under his jacket - whether he had a weapon or not.

       I pause here to note that Constable Lim's recollection of some of the events which occurred are not as clear as those of Constable Steeves; that I accept the evidence of all three officers as credible witnesses.  Obviously, if Constable Lim initially was aware that Constable Steeves had already patsearched the accused, she either forgot or was concerned that the search was not thorough enough.  Constable Lim testified to her practice of often searching a suspect after the departure of the first officer to deal with him, whether or not the first officer had search the suspect.  Particularly when she was driving the wagon and would have to be alone with a suspect, she would search the suspect before departing for the station.  This, no doubt, is a wise practice.

       In any event, in the case at bar it is clear that in the circumstances then prevailing, including the nature of the call, Constable Lim became alarmed by the conduct of the accused and, as she said, she did not want the accused to have any opportunity to reach inside his jacket - and that is why she grabbed or shoved him.  I will have more to say about this in a moment.  I will simply say here that in my opinion Constable Lim cannot be faulted for her reaction to what she perceived to be a dangerous situation, involving possible injury or death to her and her fellow officers.

       Returning to her evidence, she said that the accused was not wearing a trenchcoat.  She could not remember whether Mr. Leung was wearing one.  She spoke to the accused in English, not in Cantonese, and he seemed to understand her, although he did not say anything.

       She was asked what right she had to touch the accused at the time.  She said the nature of the call, the action of his arm and her suspicion that he had a weapon on him.  She wanted to search him for a weapon, but there was no time to do so because he ran from her.  She agreed that she did not tell the accused why she was detaining him, or that she was arresting him.  Clearly, she had little time to say or do anything immediately she spoke to the accused.

       Constable Lim confirmed that, as a part of her training, she knew that she needed reasonable and probable grounds for an arrest; that the absence or existence of reasonable and probable grounds was material to the investigation.  She did not record such grounds in her notes.  She said her practice was to do so only in the case of "impaireds."  She was again questioned about communications between her and Constable Steeves before she asked the accused for his identification. She acknowledged that she could not see Constable Steeves simply leaving the accused "to wander around," but she could not recall Constable Steeves telling her to take charge of the accused.  She could not recall him speaking to her.

       She was again questioned about her grabbing the accused's arm or pushing him.  She said again that he seemed to understand English when she asked him for his identification and he produced his driver's licence.  She initiated contact with him when she pushed him.  Her concern was for her safety regardless of whether the accused had been searched by Constable Steeves or not.  She wanted to see what the accused had under his jacket - for example, did he have a shoulder holster on?  She was asked whether she believed that Constable Steeves would leave the accused alone with a holstered gun. She pointed out that there were cases where officers had missed weapons when searching a suspect.  And I note as well, that Constable Steeves' search was an outer or pat search.

       She was again asked why she did not tell the accused why she wanted to search him.  She said again that she had no time to tell him what her intentions were.  When his arm stiffened, she chose to grab him.  She saw no other person or persons in the area that night.

SUBMISSIONS

       Counsel for the accused commenced his submission by noting that the accused had the burden of establishing that his rights under the Charter had been infringed; that the burden is on the Crown to prove on a balance of probabilities that the search of the accused conducted by Constable Lim was a reasonable one since it was a warrantless search.  The accused says that his rights under ss. 8, 9 and 10 of the Charter have been violated.

       When reviewing the evidence, counsel emphasized the disparity therein as to the type of coat worn by the man who entered the store, and the question of identity.  Mr. Schwarz said that the man who entered the store, who he identified as the driver of the vehicle, wore a long trenchcoat.  The gist of the evidence of the police officers is that the driver of the vehicle, Mr. Leung, was not wearing a trenchcoat when they dealt with him.

       There may be any number of explanations for the difference descriptions given.  Mr. Schwarz, who acknowledged, and while giving evidence demonstrated, that he had difficulties remembering details, may be mistaken.  In this regard his evidence as to the location of Mr. Leung and the accused at the time that Constables Steeves and Campbell arrived at the scene, is in conflict with their evidence.  He had Leung in the store and the accused approaching its door. Both officers testified that on their arrival the two men were in the vehicle.  Again, it may be that the coat was discarded between visits to the store by Leung.  In any event, I am satisfied on the evidence that the two men in the vehicle, whose conduct caused Mr. Schwarz so much concern and to report them to the police, were Mr. Leung and the accused.

       Counsel also emphasized that both Constable Steeves and Constable Campbell acknowledged that at all times they were simply operating on suspicion; that they detained the accused on the basis of suspicion.  I am not satisfied that such an acknowledgment was made.  The officers knew that the car was under observation by the police and that its owner was known to the police.  They also knew that the vehicle and its occupants had been acting suspiciously, and that the store clerk believed that he was about to be robbed.  It was a Code 5 situation.  Again, when they approached the vehicle and spoke to the two men, both officers were of the view that the person they spoke to acted or reacted in an unusual and suspicious manner.

       The courts have repeatedly said that police officers cannot reasonably or lawfully act on suspicion of criminal activity.  There must be more.  But suspicion is simply belief.  Its existence, as well as its degree, is based on available information.  And it is often difficult to decide whether the level of suspicion is high enough to become that which the law defines as belief on reasonable grounds, or on reasonable and probable grounds.  In this regard, s. 495(1) of the Code formerly referred to reasonable and probable grounds but now refers only to reasonable grounds.

       It was put to Constable Steeves in cross-examination that he did not have reasonable and probable grounds to believe an offence had been committed as he and Constable Campbell approached the vehicle.  His answer was "yet."  As I have indicated, I did not take him to be saying that he did not have reasonable and probable cause to believe at that time that an offence was about to be committed.  Constable Campbell also said in cross-examination that when he approached the vehicle he considered the two men to be armed and dangerous.

       It is my opinion that on the totality of the circumstances, and information known to constables Steeves and Campbell, they had reasonable grounds to believe, and that they did in fact believe on such grounds, that the accused and Leung were about to commit the indictable offence of robbery; that they could have arrested both men at the time had they chosen to do so.  I base my finding not on their express evidence as to their subjective belief, because the question was not put squarely to them, but upon their evidence which reflects the state of their minds at the time.  I am of the same view as regards Constable Lim.  While she may not have been aware of some of the observations made by constables Steeves and Campbell immediately they arrived on the scene, if there is any shortfall in her belief basis it is overcome by the accused's actions or conduct which caused her to believe that he was armed and, it follows, that he had been about to engage in a robbery.  In my opinion a reasonable person placed in the position of any of the officers would have believed that reasonable grounds existed to make the arrest.  While the subjective or personal belief of each of the officers was not expressly canvassed in evidence, it is in fact in evidence. Again, that arrest was not made and the lack of direct evidence as to the belief of the officers is, therefore, not fatal.

       Counsel for the accused concedes that the officers were entitled to investigate what they found on their arrival.  He says that it is the acts or conduct of Constable Lim which goes beyond what is envisaged by the Charter.  The search of the accused by Constable Steeves is only relevant when s. 24(2) of the Charter is considered.  The focus should not be on what happened, but on the grounds or basis for Constable Lim grabbing or pushing the accused, what he described as a "search."  I will have more to say about this in a moment. Constable Lim, says counsel, had no right to touch or search the accused without arresting him.  She in fact assaulted him. For her conduct to be lawful she would have had to have arrested the accused on reasonable and probable grounds before embarking on it.

       Counsel relies on the decision of the Supreme Court of Canada in the decision, Mellenthin v. Her Majesty the Queen, [1992] 3 S.C.R. 615, judgment rendered November 19, 1992, S.C.C. No. 22505.  There the police made a spot-check of a vehicle, the driver was arbitrarily detained and the vehicle, its contents and the driver searched.  It was found, not surprisingly, that the search was unreasonable, and infringed s. 8 of the Charter, because it was made without a requisite foundation of reasonable and probable grounds.  The Supreme Court of Canada said that such a search went far beyond the purpose and aim of the stops, and constituted a very serious Charter breach.  The case is clearly distinguishable for a number of reasons, including the seriousness of the Charter violation.

       In Mellenthin the vehicle was stopped at approximately 12:30 a.m.  After asking for, and receiving the driver's licence, the police officer shone his flash light around the interior of the vehicle.  He testified that he did this to check whether drugs were present in the vehicle and "for the safety of the officers conducting the checkpoint."  In this regard, Cory J., speaking for the court, said the following at p. 7:

It will be seen that these observations have some bearing on the reason for Constable Lim wanting to search the accused.

       Counsel for the accused then said that Constable Lim conducted a warrantless search which was unreasonable.  Hence the accused's s. 8 rights were violated.  He said that, as in Mellenthin, the evidence taken from Lee has to be treated the same as evidence compelled out of his mouth.  In that sense, but for the Charter violation, the evidence would never have been found.

       It seems to me that Constable Lim never did actually commence her search of the accused.  In my opinion her conduct in grabbing or shoving the accused was a natural reaction brought about by his demeanour and conduct, which gave rise to a perception or fear of violence on the part of the accused, viz., that he was armed and reaching for his weapon.  It contained no element of a search, nor was the evidence compelled evidence as in Mellenthin.  In my opinion, s. 8 of the Charter does not come into play.  However, in light of the apparent position taken by Crown counsel, for the further purposes of this case and on an alternative basis, I will consider that the situation is the same as if Constable Lim was in fact in the process of searching the accused when he bolted.

       In response to the anticipated argument of counsel for the Crown with regard to s. 9 of the Charter, counsel referred to the unreported decision of the Ontario Court of Appeal in Her Majesty The Queen v. Richard Simpson, [1993] O.J. No. 308, 12 O.R. (3d) 182, C10506, February 11, 1993.  In that case the Court recognizes that the police have, in some circumstances, the common law power to detain individuals in the course of the investigative process, even though there are no, or insufficient, grounds to arrest them. Among the authorities cited with approval is the decision of Toy J.A., speaking for the Court, in R. v.  Elshaw (1988), 70 C.R. (3d) 197 (C.A.) reversed on other grounds, [1991] 3 S.C.R. 24.  The foundation cases are R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.) and R. v. Dedman, in the Court of Appeal (1981), 32 O.R. (2d) 641 and the Supreme Court of Canada (1985), 20 C.C.C. (3d) 97.

       In Simpson Mr. Justice Doherty, speaking for the Court, emphasizes that the justifiability of an officer's conduct will depend on the totality of the circumstances.  At p. 29 he states:

He then goes on to discuss the phrase "articulable cause," which forms the basis for the justification of investigative detentions in American jurisprudence.  The whole picture, the totality of the circumstances, must be considered by the court.  The detaining officers must have a particularized and objective basis for suspecting the particular person stopped is engaged in criminal activity.

       His Lordship makes it clear that in his opinion the presence of an articulable cause does not automatically render any detention for investigative purposes a justifiable exercise of a police officer's common law powers.  Rather, it is the first step in the broader inquiry, described in the two cases referred to, Waterfield and Dedman, that is, the determination of whether the detention was justified in the totality of the circumstances and, if so, a lawful exercise of the officers common law powers.  He then went on to find that in the case before him no articulable cause justifying the detention could be found.

       His Lordship also notes at p. 33 that the articulable cause doctrine was approved by the Supreme Court of Canada in R. v. Wilson (1990), 56 C.C.C. (3d) 142, another random stop case.  There a police officer on patrol in a rural community stopped a vehicle with out-of-province plates late at night in the vicinity of a bar.  Evidence obtained during the detention of the driver led to his conviction for impaired driving.  It was found that detention was not arbitrary, and that therefore the stop did not violate s. 9 of the Charter, because there was articulable cause for the stopping and it was therefore statutorily authorized by a section of the Alberta Traffic Act.

       Counsel for the accused submitted that in the case at bar there was no articulable cause and Simpson is therefore distinguishable.  Constable Lim did not suspect that the accused was in possession of a narcotic.  At best the three officers were acting on their suspicion alone that the accused might have been about to attempt a robbery.  The case, he says, is on all fours with Elshaw, referring I believe to the decision of the Supreme Court of Canada.  But it is to be noted that that court stated that the question of detention was not before it; and did not deal with the subject of authority to detain.  In my opinion Elshaw, in the Supreme Court of Canada, is a case about a Charter violation during detainment, not a Charter violation by detainment.  Again, I believe it to be implicit in the decision of Mr. Justice Toy in the Court of Appeal that the investigative delay was reasonable and necessary to the discharge of their duties by the police officers, and was not an unreasonable interference with the freedoms of Mr. Elshaw.  In other words, the Waterfield tests had been met, and the detention was not arbitrary and was in fact authorized.

       In Elshaw the accused was put in the wagon, and detained for a short period of time, while the police officers interviewed four witnesses.  Here Constable Lim detained the accused while Constable Steeves went into the store for the purpose of interviewing the clerk.  The detention of the accused, said counsel, was unlawful.  I do not agree.  In my opinion the officers had a particularized and objective basis for believing that the accused had been about to rob the store.  I have already expressed my opinion that the officers had sufficient grounds to arrest the accused under s. 495(1) of the Code.  The brief detention therefore, was not arbitrary.  Additionally, both Simpson and Elshaw, in the Court of Appeal, support a finding that the detention of the accused was not arbitrary and that s. 9 of the Charter was not violated.  It will be seen that in my opinion Wilson, wherein the authorization was statutory as opposed to common law, does as well.

       Counsel submits that immediately the accused was detained he was entitled to be informed promptly of the reasons therefore and that he had the right to retain and instruct counsel.  He was told neither and s. 10 of the Charter was breached.  The right to search the accused arose only if he was arrested, not during the investigation stage.

       It will be seen that I am not in agreement with counsel's submissions.  I am satisfied on the evidence that at the time that Constable Lim asked the accused for his identification, reasonable grounds for the belief that he had been about to commit an indictable offense existed under s. 495(1)(a) of the Code.  Constable Steeves or Constable Lim could have arrested the accused at that time.  However, the decision to arrest was postponed obviously pending Constable Steeves interview with the clerk.  The fact that a search preceded an arrest does not preclude it from being a search incident to a valid arrest, see Regina v. Debot (1987), 30 C.C.C. (3d) 207 (Ont. C.A.) at pp. 223-225.  Further, in my opinion, the fact that the search disclosed another offense which gave rise to immediate arrest, does not make the search illegal.  Nor would the fact that the accused might not have been arrested on the grounds that he was about to commit an indictable offense if the narcotics had not been found.  The important point is that there were reasonable grounds to believe that the accused was about to commit an indictable offense, and to arrest the accused, prior to the search.  See also Clouthier v. Langlois (1990), 53 C.C.C. (3d) 257 (S.C.C.).

       Turning to provisions of s. 10 of the Charter, immediately Constable Steeves detained the accused he told him that he was going to search him for a weapon.  He did not inform him that he had the right to retain and instruct counsel without delay.  However, s. 10(b) rights are not absolute, and must be set aside in the interests of the protection of the police officers where there is a possible presence of weapons.  See the decision of Sopinka J. in R. v. Debot (1990), 52 C.C.C. (3d) 223.  Thus any violation of s. 10(b) did not occur when the accused was first detained, and once he was arrested seconds later he was in fact advised of his s. 10(b) rights.

       Finally counsel said that the impugned evidence should be excluded under s. 24(2) of the Charter because its admission in the proceedings would bring the administration of justice into disrepute.  I am not in agreement with this submission and will return to it.

       I turn now briefly to the submissions of counsel for the Crown.

       Counsel concedes that the accused was detained when he was asked to step out of the vehicle, but says that the detention was not arbitrary under s. 9 of the Charter.  It was not unlawful.  It was an investigative detention based on an articulable cause, a lawful exercise of a common law police power.  She relies on the principles set out in Simpson.  The articulable cause includes the following information made known to Constables Steeves and Campbell:  The car was a pointer car and its owner was known to the police.  The car and its occupants, two male Orientals, had been acting suspiciously for some time, leaving the area and returning, stopping in front of the store, entering the store without buying anything, staring at the clerk, etc.  The clerk was convinced that they were about to rob him.  It was a Code 5 situation, that is, the men were assumed to be armed and dangerous. The car engine was running and both front windows were down, although it was a cold morning.  Both occupants moved in a slow and deliberate manner and conducted themselves in a suspicious manner according to the officers.  The driver was sweating.  Clearly, says counsel, there was a basis for investigative detention.  I would add, as regards Constable Lim, the "information" she received as a result of the demeanour and the conduct of the accused immediately she approached him, and which would bolster her belief that he had been about to commit an offense.

       Counsel submits that in the circumstances the officers had reasonable and probable grounds to believe that the two men were about the commit the indictable offence of robbery, and accordingly they could have arrested them under s. 495(1) of the Code.  They were also acting pursuant to their common law power to prevent breaches of the peace according to counsel.  R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.) and Hayes v. Thompson (1985), 60 B.C.L.R. 252 (C.A.) are relied upon.  I need not refer to Storrey.  In Hayes Hutcheon J.A., speaking for the Court, states that the common law duty of a police officer to preserve the peace and to prevent offenses necessarily entails the power to arrest for an apprehended threat to the preservation of the peace.  It is a power that is vested in the constable by reason of his common law status as a constable.

       Counsel notes that the constables initially chose the least intrusive measures in dealing with the two men.  Instead of arresting them they chose to detain them for a few minutes while Constable Steeves spoke to the clerk, an "investigative detention."  Had the accused not made the movement which alarmed Constable Lim, and then bolted, the officers may well have allowed the two men to go on their way once Constable Steeves had spoken to the clerk.  Again, Simpson is relied upon.  Reference may also be made to Debot, at p. 225 in the Court of Appeal, with regard to the investigating officer postponing, or even deciding against, an arrest.

       With regard to s. 10(b) of the Charter counsel submitted that section could not take preference over public safety and, in particular, the safety of the police officers.  She referred to the decision of Wilson J. in Debot.  There her Ladyship expresses the opinion that any time spent by the police in legitimate self-protection is not an example of the "delay" which has to be justified within s. 10(b).  See also the decision of Sopinka J. in the same case at p. 223 where his Lordship expresses the view that s.10(b) rights must be set aside in the interest of the protection of police officers where there is a possible presence of weapons.

       I would have thought that no authority would be necessary for the proposition that the rights of any person, suspect or accused under the Charter cannot take precedence over the legitimate concerns of a police officer for his or her safety or the safety of fellow officers; that the Charter rights must stand aside in the face of real or perceived danger to officers acting in the discharge of their duties.  This is particularly so in the common street situation where officers are confronted with various deceptive circumstances and must think and act quickly and often on very little accurate information.  While it is true that some officers may abuse a self-protection right to search, a contrary view could not justify the death of a single police officer.

       In my opinion, the conduct of Constable Lim on the night in question was reasonable and fully justified.  The accused's movements obviously alarmed her and caused her to believe that he was in fact reaching for a weapon, or at the least that he was carrying one.  She therefore was entitled to push or grab him, or take any other reasonable steps including a search, in order to assure her safety and that of her fellow officers.

       With regard to s. 8 of the Charter counsel reiterated that Constable Lim's search of the accused was not unreasonable.  While Constable Steeves had reasonable grounds to believe that the accused had been about to commit robbery, Constable Lim had even further grounds for such belief given his movements which were perceived by Constable Lim to be threatening.  The officers could have arrested him and then searched him.  The search of the accused was an incident to an arrest which could have been made. I am in basic agreement with these submissions. I have already referred to the decision of Martin J. in Debot, speaking for the Ontario Court of Appeal, at pp. 224-225.

       Finally, counsel submits that in the event that an infringement of s. 8, 9 or 10 is found, the evidence should not be excluded under s. 24(2).  Mellenthin is easily distinguishable.  There a random stop search took place while the primary aim was driving offenses.  There was no general inquisition here, the police officers could have lawfully arrested the accused and then searched him.  The discovery of the evidence impugned was only remotely related to the Charter violations asserted.  Hence, the principles enunciated in R. v. Collins, [1987] 1 S.C.R. 265 apply.  The admission of the evidence would not bring the administration of justice into disrepute.

CONCLUSIONS

       I have reached the following conclusions, some of which may be in addition to those I have already expressed.  The conduct of Constable Lim on the night in question did not constitute a search of the accused.  The evidence impugned was identified or discovered as a result of the accused's demeanour or behaviour which alarmed Constable Lim, and led her to conclude that she and her fellow officers were in danger. She grabbed his arm to prevent him from reaching under his jacket.  She acted reasonably and was justified in doing so.  The real reason for the accused's movement, i.e., the package of heroin may have come loose, or he may have thought that she was about to search him and was resiling from that thought, is irrelevant.

       Alternatively, if Constable Lim's conduct constitutes a search of the accused, that search was reasonable within the principles laid down by Chief Justice Lemare in R. v. Collins (1987), 33 C.C.C. (3d) 1.  The search was authorized by a reasonable law, in at least two respects, and was carried out, or about to be carried out, in a reasonable manner.

       First, the power to search in these circumstances is derived from the common law.  There is no question that Constable Lim was acting in the discharge of her statutory and common law duties at the time.  And I am satisfied that in the circumstances the power to search comes within the general scope of those duties. If police officers are to effectively discharge their duties, then it is absolutely necessary that in the performance of them they feel and be as safe as the circumstances will permit.  The duty to investigate, and to prevent, offenses, must of necessity have associated with it a legitimate self-protection power to search.  The safety and lives of officers on the street must be paramount.  Constable Lim was entitled, or empowered, to search the accused in the circumstances, given his movements or conduct which gave rise to her perception that he was reaching for a gun and that she and her fellow officers were in danger.

       Second, the search was also authorized by the common law which has long recognized a power to search incidental to a lawful arrest.  Constable Lim had reasonable grounds on which to believe that the accused had been about to commit an indictable offense, particularly given his response, which alarmed her, after she had simply asked him for identification.  I have already expressed my opinion that the fact that due to the discovery of the narcotics an arrest, based on the fact that the accused was about to commit a robbery, did not immediately follow the search, does not make that search illegal.  This is not the case of the fruits of the search being used to justify an arrest to which the search is, or would have been, incident.  The important point is that prior to the commencement of the search, Constable Lim had reasonable grounds to arrest the accused.  And on detaining him, and prior to his arrest, she was entitled to search him. The accused's s. 8 Charter rights were not violated.

       With regard to s. 9 of the Charter:  The accused was detained very briefly while Constable Steeves went to speak to the clerk before assessing the matter.  The situation was still a Code 5 situation which had not been clarified or stabilized.  The constables had reasonable grounds to believe that the accused had been about to commit an indictable offence and they could have arrested him at that time.  The fact that previous "pat-searches" did not disclose any weapons, of course, does not detract from the situation.  The searches at best were cursory and of course weapons could be hidden in the car.  In my opinion the detention of the accused was reasonable and brief and cannot be said to have been arbitrary.

       Since counsel did not refer me to any cases, I have assumed that Elshaw is the only case in which our Court of Appeal has dealt with the reasonableness of a detaining, although perhaps not expressly with its legality; that our Court of Appeal has not otherwise dealt with the common law powers of a police officer to detain a person during a spontaneous street investigation.  While I have found in the case at bar that there were reasonable grounds to arrest the accused, I agree with the principles propounded in Simpson and apply them to the case at bar to the extent that they are applicable.  It seems to me that during a spontaneous street investigation, the officers should be entitled to briefly detain individuals for investigatory purposes.  Indeed, I am of the opinion that in the special circumstances of a street investigation, which is spontaneous and often confrontational, officers should have the power, associated with their then duty, to "pat down" search individuals in reasonable and necessary circumstances.  However, this position was not taken by the Crown and was not argued.

       In any event, I am satisfied that there was ample articulable cause for the detention of the accused.  I am also satisfied that the detention was reasonably necessary for the officers to discharge their duty of investigating whether the accused had been about to commit the indictable offence.  The power to detain was well within the scope of that duty, what is described in the cases as "a power associated with a police duty."  The search was not an unreasonable interference with the accused's freedoms, and not an unjustifiable use of a power associated with police duties.  The Waterfield tests are met.  Constable Lim had common law authority to detain the accused in the circumstances.

       I have already dealt sufficiently with s. (10)(b).  I do not think that it comes into play at all.  Constable Lim had little time to say anything to the accused.  If there was delay, it was due to the conduct of the accused and the constable's resulting perception that he was reaching for a weapon, and not a delay with which s. (10)(b) is concerned.

       I turn finally to s. 24(2) of the Charter.  In determining whether the impugned evidence should be admitted, I have carefully considered the three sets of factors which the Supreme Court of Canada said must be considered in R. v. Collins (1987), 33 C.C.C. (3d) 1.  In doing so, I did not find it necessary to consider the approach in later decisions of the Supreme Court of Canada and the suggestion that they might be different from that taken in Collins, which I consider to be the founding case.  Nor did I find it necessary to consider the suggestion that the latter cases have modified the approach as regards real evidence.

       I do not propose to deal with s. 24(2) at any length as I am satisfied not only that the impugned evidence should be admitted, but that the failure to admit it would tend to bring the administration of justice into disrepute. In my opinion, an informed reasonable or fair-minded member of society would not conclude that the admission of the evidence would bring the administration of justice into disrepute.

       I do not see that the admission of this real evidence would render the trial unfair.  This is not a Mellenthin or Elshaw situation where serious Charter breaches occurred and self-incriminatory statements came into being as a result of those Charter breaches.  See in this regard the decision of McLachlin J., speaking for the court, in R. v. Evans (1991), 4 C.R. (4th) 144 at p. 166.

       As to the seriousness of the asserted violations, the conduct of the constables does not support a finding that they were serious.  In my opinion the asserted violations were neither deliberate, nor flagrant although, of course, they were intentional.  But it cannot be said that they were shocking or remarkable or lacking good faith within the narrow meaning given to the latter words by the courts.  There was also some urgency or necessity, although that related to selfprotection rather than the preservation of evidence.

       I have already dealt with the third group of factors.  I am fully satisfied that the impugned evidence ought not to be excluded under s. 24(2) since its admission would not bring the administration of justice into disrepute or render the trial unfair.

DISPOSITION

       The evidence is admissible.

HOOD J.

DRS/DRS/DRS

Mr. Justice Hood