On April 21 last year, the family of Dave Lind, including wife, two children, mother and father, set out in a bus to move from Ontario to Alberta. Due to a breakdown in Indian Head Saskatchewan. The trip was delayed a few hours.
They spotted a police car and stopped to ask them directions to a gas station. "We had no reason to fear asking the police for directions as we had never had a bad encounter with them before. I've never committed a crime in my past and have no criminal record". Then the nightmare started.
The police finding out Dave's name immediately roughly seized his wallet, put him in handcuffs and pushed him into their patrol car. When his wife came out to find out what was going on, they fired all sorts of questions at her, searched her and put her in the police car. Next they removed the parents and children, searched the mother's purse and the young girl. The rational given was that the police saw on the police CPIC file that they probably had firearms and ammunition in the bus.
Both Dave and his wife told them many times they had all necessary papers and permits in the bus and would show them to the police. The police refused to allow this and called in backup. They searched Mrs. Lind. They lifted her shirt up quite high to search. Her whole upper body was exposed until she pulled it down. The police then proceeded to search the bus. The police seized all firearms, loaded the Linds into police cars and drove them and their bus to the police station.
All the time they refused to tell them why they were being arrested. Dave and his wife were placed in cells. They finally had to be shown where the firearms were by the Linds. Eventually they demanded a special permit to drive through Saskatchewan, found a J.P. to set bail, laid some minor charges and released them pending trial.
This was only done after they were finally persuaded to telephone the OPP, who verified they were perfectly legal. There was a lot of other nonsense but you get the idea. Throughout the whole process the police involved were very abusive, both verbally and physically. At the trial on 27 November, the Linds were represented by the NFA lawyer Richard Fritze.
The Linds were not only found completely innocent but the judge ruled that the whole police procedure was totally unfounded and illegal. This case provides the NFA with a very valuable precedent in law to protect the rights of all firearms owners. To drive the point home, the Linds would like to sue the police for damages in civil court. This type of case is outside the NFA area of expertise so they will have to use other council. However, with the cost of moving and starting a new job and life, they do not have the financial ability to do so. A law firm has given the opinion that four charges are involved. Two are considered very winnable with damages the other two possible. The Linds are asking help from the firearms community for either legal assistance or financial support to take this to court. They are not looking for financial gain and are quite prepared to repay any assistance out of their judgement. What they want is to drive home the fact that this kind of police abuse is going to cost the police. Certainly in the case of a win, it will provide a very strong deterrent to such actions on the part of the police in the future. This would provide a definite advantage in retaining some of all our rights as responsible firearms owners. Combine this with the dealer challenge and it will be a real education to abusive police action. If there is any way you can help, please contact Dave Lind at (403) 949-5604 or write him at General Delivery, Bragg Creek, AB T0L 0K0.
Thank you very much. Major R.A.Laycock, retd
R. v. Lind
Her Majesty the Queen, and
David Albert Lind
 S.J. No. 757
Saskatchewan Provincial Court
Swift Current, Saskatchewan
Shaner Prov. Ct. J.
Judgment: November 27, 2000.
G. Herman, for the Crown.
R. Fritze, for the accused.
SHANER PROV. CT. J.:
DECISION ON VOIR DIRE
¶ 1 In the early morning hours of April 22, 2000 at a location in the countryside west of Swift Current, Saskatchewan the police came upon a yellow school bus. The police upon stopping their vehicle were approached by the defendant on foot, he having exited the school bus. He was immediately arrested and placed in the back of the police car under protest demanding to know what he had been arrested for. The police ignored his demands and protests and seized the bus and calls were made for backup police officers to attend the scene.
¶ 2 All of this action was taken on the basis of a C.P.I.C. message the two officers were aware of. The body of the C.P.I.C. message gave the following message and had been forwarded by the Ontario Provincial Police:
"Information has been received by Canora OPP that David Lind, DOB 1964-10-20 left Canora at 0100 hours 00.04.21 heading west with a possible destination of Calgary, Alberta. David Lind may be carrying five 50 calibre rifles with tripods and scopes 6000 rounds of 50 calibre ammunition as well as 10 - 12 hand guns. These 50 calibre weapons may be single shot and legal. He is operating an old school bus with Ontario licence plate which is not registered to the vehicle, but is in the name of Albert Lind. The firearms may be hidden in the panels of the bus.
Lind has had previous contact with outlaw motorcycle guns in Manitoba. He is a registered firearm collector. He has three firearms legally registered to him.
If stopped please advise detective Harty or detective Hill of particulars at (807) 468-335
¶ 3 The defendant, Mr. Lind, continued to protest his arrest all the while demanding the reason for it and what he was being charged with. The police response was that once they had searched the vehicle they would lay the charges that would be appropriate if any law had been broken.
¶ 4 One of the officers attending, as a result of the call for backup, was a corporal and took charge of the situation. He arranged for the removal from the bus of the defendant's wife, mother and father, his children, a parrot and some other animals. Arrangements were made for the housing of the family of Mr. Lind and the welfare of the animals.
¶ 5 One of the officers attending the scene as backup claimed expertise in the transportation of dangerous goods and advised that, in light of the 6000 rounds of ammunition contained on the bus (a circumstance that had not been proven at this point and in fact was only suspected by the Ontario police officers and which, in the end, was not the case), the situation was extremely dangerous in case of explosion or detonation. A decision was made to transport the bus to the centre of the city and lodge it behind the police detachment to be searched.
¶ 6 On arrival at the detachment the defendant was lodged in cells all the while protesting the procedures and advising the police officers that he had documentation to legally possess and transport the weapons described in the C.P.I.C. on his trip from Canora to Calgary, Alberta, that he was moving there, that he had been and was a properly recognized gun dealer, that he had a permit to operate the bus from Canora to Calgary and that he had done nothing wrong. He continued to advise the police that there were documents to substantiate his claims and he would be willing to produce them for their scrutiny but the police continued to ignore the protestations of the defendant and began to search the bus,
¶ 7 The corporal in charge, apparently having had second thoughts, decided to telephone police in Ontario since he began to believe the defendant.
¶ 8 The corporal finally contacted a staff sergeant in Ontario, whom ran a check on Mr. Lind and advised the corporal that Mr. Lind was legally transporting whatever weapons he had. This convinced the corporal to stop the search after discussing the legality of the search with the staff sergeant. Half of the bus still had not been searched.
¶ 9 The corporal advised the court that consideration had been given to calling a justice of the peace to get a warrant to search the bus but it had been decided that, since it was the Easter weekend, a justice of the peace would not be available but now having decided to stop the search and release Mr. Lind called a justice of the peace whom attended without delay and released Mr, Lind.
¶ 10 The results of the search also satisfied the police officers that there were not 6000 rounds of ammunition as suggested in the C.P.I.C..
¶ 11 It is also to be noted that even though the police, under the advise of the police officer who claimed to be an expert in the transportation of dangerous goods and had stated the situation was extremely volatile, transported that dangerous vehicle directly into the centre of the city behind the city police detachment and took no precautions to safe guard this much worse situation by calling in emergency personnel and vehicles, such as fire trucks and ambulances.
¶ 12 It is also to be noted that the defendant had not been charged with any offence even though he was under arrest for several hours and placed in cells until the present charges were framed after the search when he was released. It was also determined the license plate on the bus was within the law since it was akin to a permit to transport the bus from Ontario to Calgary.
¶ 13 The testimony of the Crown witnesses during the voir dire at bar more than directly imply that had they sought a warrant to search the bus one would have been issued. However, since they acted on the basis of the C.P.I.C. and the telephone conversation the corporal had with Detective Harty, it is doubtful a warrant would have been issued with regard to any of the firearms in question.
¶ 14 The court is mindful that the corporal, upon being asked to attend as backup, took the precaution to phone the Ontario Provincial police detachment and call Constable Harty (one of the contacts mentioned in the C.P.I.C.) to confirm the message. According to the corporal, Constable Harty did verbally confirm the C.P.I.C..
¶ 15 As a result of the search the following charges were laid;
on or about the 22nd day of April, A.D. 2000 in Swift Current, in the Province of Saskatchewan did without lawful excuse have in his possession an explosive substance, to wit: Thunderbird Cartridge Company Incorporated smokeless powder, contrary to Section 82(l) of the Criminal Code.
on or about the 22nd day of April, A.D. 2000 at Swift Current, in the Province of Saskatchewan did contravene a regulation made under paragraph 117(h) of The Firearms Act respecting the Storage, Display, Transportation, and Handling of firearms by Individuals Regulations by failing to store restricted firearms in accordance with section 6(b) of the regulations and did thereby commit an offence contrary to Section 86(2) of the Criminal Code.
on or about the 22nd day of April, A.D. 2000 at Swift Current, in the Province of Saskatchewan did contravene a regulation made under paragraph 117(h) of The Firearms Act respecting the Storage, Display, Transportation, and Handling of Firearms by Individuals Regulations by failing to store prohibited firearms in accordance with Section 7(b) of the regulations and did thereby commit an offence contrary to Section 86(2) of the Criminal Code,
on or about the 22nd day of April, A.D. 2000 at Swift Current, in the Province of Saskatchewan did contravene a regulation made under paragraph 117(h) of The Firearms Act respecting the Storage, Display, Transportation, and Handling of Firearms by Individuals Regulations by failing to transport restricted firearms in accordance with Section 11(b) of the regulations and did thereby commit an offence contrary to Section 86(2) of the Criminal Code.
on or about the 22nd day of April, A.D. 2000 at Swift Current, in the Province of Saskatchewan did contravene a regulation made under paragraph 117(h) of The Firearms Act, respecting the Storage, Display, Transportation, and Handling of Firearms by Individuals Regulations by failing to transport prohibited firearms in accordance with Section 12(b) of the regulations and did thereby commit an offence contrary to Section 86(2) of the Criminal Code.
¶ 16 The defendant raises the following arguments based on the Canadian Charter of Rights and Freedoms,
"Everyone has the right to be secure against unreasonable search or seizure."
"Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."
"Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
¶ 17 It is common ground that the onus of proof of a charter application such as the defendants is on the defendant on the balance of probabilities however, it is common ground also that what happened in the case at bar was a warrantless seizure of a motor vehicle placing the onus upon the crown to justify the search pursuant to statute or the common law.
¶ 18 The Crown in a brief of law raise several arguments to justify the seizure and search of the motor vehicle and I shall deal with these arguments as presented.
¶ 19 (2) The Crown relies on Section 105(l) of The Highway Traffic Act of the Province of Saskatchewan for power to seize the vehicle. Section 105(l) states as follows:
"A Peace Officer, without warrant, may seize any vehicle that the Peace Officer has reasonable and probable grounds to believe:
is being driven in violation of this act or the regulations; . . . and may retain it in his or her possession or store it in a suitable place.
¶ 20 The source of the violation in this case, the Crown allege, is an unregistered vehicle and that the police had reasonable and probable grounds to believe it was an unregistered vehicle. All of which was based on the C.P.I.C. message received by the police. That message stating
"he is operating an old school bus with Ontario licence plate which is not registered to the vehicle, but is in the name of Albert Lind."
¶ 21 This would seem to be a reasonable and supportable argument. The defendant, Lind, had throughout the evening continued to press upon the police officers that he had committed no offence in the operation of the motor vehicle and had legal authority to drive on what I will refer to as a permit. In fact upon the corporal in charge finally inquiring into the situation with regard to registration of the bus determined that the defendant had the authority to operate the bus as it was plated, I therefore find that the police officers had reasonable and probable grounds to seize the vehicle. However, section 105 does not afford the police officers the right to search. Section 105(2) goes on to state:
The holder of the certificate of registration of a vehicle that has been seized under subsection (1), his agent or any person having an interest in the vehicle may obtain the release of the vehicle if he:
¶ 22 This latter subsection 105(2) therefore only allows the storage of the vehicle and later provides for release to the holder of the registration documents for the vehicle. Common sense, of course, however, dictates that if a police officer seizes a vehicle under these circumstances he should take precaution to store it in an safe environment and ensure its integrity as well as to ensure his safety. In fact case law dictates this but, of course, evidence shows that the police officers entered the vehicle, removed its occupants and transported it quite some distance to the police detachment in the city thereby satisfying the requirements after seizure. This particular aspect of the incident will be elaborated on further.
¶ 23 (3)(a) The Crown having assumed the seizure of the vehicle was legal and justified went on to provide the reasons for the power to search, part (a) being based on section 117.03 of the Criminal Code. This section requires a person in possession of a firearm to produce, for inspection by a peace officer, any authorization or licence to possess firearms. The Crown's argument, in this incident, puts the "cart before the horse". Section 117.03 nowhere gives police the power to search. The section only dictates what happens if a peace officer finds a defendant in possession of a firearm. Had the police taken the trouble to listen to the accused's protestations in the first instant, which was finally done by the corporal, and if they had inquired further they would have been satisfied, as the corporal was, that the defendant was in fact legally in possession of all the firearms they found in the bus. In fact, section 117.03 requires that the police officer demand the defendant produce for inspection by the police officer authorization or a licence under which the person may lawfully possess the firearm and, at the case at bar, the police did not make this demand and therefore had no right to seize the firearms in question. At any rate, the defendant had continued to offer to produce the documents in question but was ignored by the police. I therefore find the police acted unreasonably and without the power to search and therefore had no right to retain the items seized under this section,
¶ 24 3(b) Argument 3(b) is based on the power to search for a motor vehicle registration. The Crown relies on R. vs. Belnavis (1997) 118 C.C.C. 3rd 405. With respect I do not believe this case to be authority for the police in the case at bar to supposedly search the bus for a motor vehicle registration. The defendant had a reasonable explanation as to his right to operate the vehicle and this explanation was verified at a later time by the corporal in charge. In the Belnavis case, the operator of the vehicle had advised the police she did not have ownership information on the vehicle since she had borrowed the vehicle. In this case, the defendant had a reasonable explanation with a registration which was later verified. Furthermore, it is clear to me and I find as a fact that the police did not intend to search for registration documentation on the bus, but had the sole intent to search the vehicle for what has been referred to as contraband or illegal weapons. As for a right to search for contraband the evidence at trial makes no mention of contraband or of any reason for the police to think that indeed any form of contraband was located on the bus. Neither do I think there was any authority to search the bus for safety reasons nor to speak with the passengers. The argument goes on further to state that police were searching for authorization documents which allegedly allowed the accused to possess the firearms when, in fact, the accused had consistently advised the police officers the documents existed and he would show them to them if they gave him a chance. The case of R. v. Mellenthin (1992) 16 C.R. 4th 273 (S.C.C.) was cited by the Crown as authority to inspect the interior of a vehicle for security purposes and that the police have a right to open the back door and took into the rear of a vehicle for safety reasons and to speak with passengers. The fact that the corporal had attended the bus and removed the passengers and animals and a police officer had driven the bus to the detachment within the city seems to satisfy the Mellenthin, (supra) case with regard to any safety, security or precautions the police may have had in mind.
¶ 25 3(c) The Crown allege power to search this bus pursuant to The Dangerous Goods Transportation Act, however, neither the C.P.I.C. in question nor the evidence of the on scene dangerous goods officer gives any valid reason for search pursuant to this Act. Advice by one police officer to another that someone may be doing something is not sufficient grounds for either arrest or search. I therefore discount the argument based on the search pursuant to The Dangerous Goods and Transportation Act.
¶ 26 3(d) The Crown allege the power to search incident to an arrest, however, it is clear the arrest of the defendant was illegal in the first instance and throughout and no power to search incident to arrest is, therefore, available to the police.
¶ 27 3(e) The Crown allege power to search the motor vehicle at common law and acknowledge that the following circumstances must exist:
Exigent circumstances make it impracticable to obtain a warrant,
The vehicle is lawfully detained, and
There are reasonable grounds to believe it contains evidence of an offence
¶ 28 With regard to (1) above, arguments based on the impracticability of obtaining a warrant do not hold especially since the corporal in charge advised that because of the Easter weekend, they felt a Justice of the Peace would not be available, yet when they were ready to release the defendant some hours later they had no difficulty in obtaining a Justice for that very purpose. (2) the vehicle was not lawfully detained as previously described. (3) there are no reasonable grounds to believe that the vehicle contained evidence of any offence. Not even the C.P.I.C. suggested an offence had occurred therefore the scope of the search can bear no reasonable relationship to the suspected offence since there is no suspected offence. In fact, one will recall that the police officers stated that once they searched the vehicle and found an offence to have occurred, they would then advise the defendant what he was charged with. One should keep in mind the offences charged all describe, weapons that were not plainly visible but encased in either closed gun cases or boxes and therefore could not, without further intrusive search, be described as contraband or plainly visible and clearly points out that the search bore no reasonable relationship to any suspected offence.
¶ 29 With regard to above, a further explanation may be warranted and I therefore point out that the vehicle was not lawfully detained at the site of the search for the reasons previously outlined. That is, there was no danger to the police officers or their security and the police had had the opportunity to look into the vehicle when they removed the passengers and transported the bus to the city detachment.
¶ 30 I therefore find there was no common-law power to search this vehicle.
¶ 31 3(f) The Crown allege the power to search under section 117.02 and rightly advised that their argument is similar, if not identical, to the argument they made under the common law power to search a motor vehicle. I therefore advise that their arguments, under this section, have been covered in that the C.P.I.C., to my mind, does not provide reasonable and probable grounds to believe offences were being committed or that they could have obtained a warrant to search under the C.P.I.C. print out simply on the basis of the fact that the bus had a licence plate which was not registered to the vehicle. I do not believe that the police officers were concerned about the potential danger of the bus nor the occupants and there is no suggestion in the C.P.I.C. that they should be concerned as to who was on the bus or how heavily armed they might be. I therefore find that the police officers had no reason to be concerned for their own safety or the safety of the public and therefore were required to search the vehicle without warrant, especially when one recalls that they took the bus from a location of comparative safety to one of extreme danger if they believed, in fact, that there was danger.
¶ 32 The reference in the Crown's argument that the defendant had apparently lied to the police originally by claiming there were no handguns in the vehicle cannot give the power to search since, if this in fact happened, they would not have known that he lied until after the search was completed.
¶ 33 Section 117.02 in the Criminal Code requires exigent circumstances to be prevailing and, of course, when the search in this case was done, any argument based on exigent circumstances is hollow since the police had already seized the vehicle and transported it to the detachment and had the defendant and his family in a position where the vehicle could not be removed therefore exigent circumstances did not exist.
¶ 34 In summary, I find that a very serious violation of the accused's Charter of Rights under section 8 has occurred and that section 24(2) of the Charter must come into play to ensure the good repute of the administration of justice and the evidence must be and is hereby excluded pursuant to section 24(2). I cannot and do not find that the police acted in good faith in this particular case nor that they truly felt a potentially dangerous situation existed. Neither do I find the police acted reasonably in this case by searching for registration documents on the motor vehicle but, instead, used that particular concept to perform an illegal search. The defendant, throughout, had protested the ongoing seizure and search and offered authorization papers for possession of the firearms and the operation of the bus.
¶ 35 Evidence provided by the police clearly show the police seized the bus because of the C.P.I.C. message they had received and were intent on looking for guns and ammunition only. The registration of the bus was a secondary concern, according to the corporal. They also wanted to ensure, on the advise of the dangerous goods officer, that the guns were packed properly and not unsafe. I fail to see the desire to ensure proper and safe packing of guns gives the police the right to seize and search a motor vehicle. The corporal advised that the main reason they stopped the bus was to determine whether the guns and ammunition were, in fact, on the bus (which was not an offence).
SHANER PROV. CT. J.