R v Dhaliwal, 2014 ABQB 717

Court of Queen ’ s Bench of Alberta Citation: R v Dhaliwal, 2014 ABQB 717 Date: 20141121 Docket: 130106537Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Harpaul Devan Dhaliwal Accused/Applicant _______________________________________________________ Voir Dire Ruling of the Honourable Madam Justice F.L. Schutz _______________________________________________________ I.

Summary [ 1 ] The Applicant is charged as follows: Count 1: On or about the 26 th day of January, 2013 at or near Edmonton, Alberta, did unlawfully possess a controlled substance, to wit: cocaine for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 2: On or about the 26 th day of January, 2013, at or near Edmonton, Alberta, did unlawfully have in his possession property (or proceeds of property) Canadian currency of a value not exceeding five thousand dollars knowing that all (or part) of the property (or proceeds of the property) was obtained (or derived directly or indirectly) by the commission in Canada of an offence punishable by indictment, contrary to

Section 355(

A) of the Criminal Code of Canada . [ 2 ] The Accused challenges the lawfulness of the Accused’s arrest and the search of the Accused’s vehicle because of alleged Charter breaches, specifically: 1. That there has been a breach of the Accused’s/Applicant’s rights as guaranteed and protected by

Section 9 of the Canadian Charter of Rights and Freedoms . That this breach was caused by the arrest of the Accused/Applicant without reasonable and probable grounds. 2. That there has been a breach of the Accused’s/Applicant’s rights as guaranteed and protected by

Section 8 of the Charter .

That the only just and appropriate remedy in the circumstances is an Order pursuant to Section 24(2) of the Charter of Rights and Freedoms , excluding from the trial of this matter any and all evidence that was obtained through or derived from a breach of the Accused’s/Applicant’s rights as guaranteed and protected under the Charter of Rights and Freedoms, including: − All evidence seized from the search of the Accused/Applicant; − All evidence seized from the search of the Accused/Applicant’s vehicle. [ 3 ] A voir dire was held to decide whether one or more of the Accused’s Charter rights had been breached.

During the course of the police search of the Accused’s vehicle, evidence including cocaine and cash was seized.

The Accused submits that because his ss 8 and 9 Charter rights were violated, he opposes the admission of the seized evidence, including the cocaine and cash, on the basis that its admission would bring the admission of justice into disrepute and seeking exclusion of any and all evidence that was derived from a breach of the Accused’s rights under the Charter . [ 4 ] Counsel for the Defence and Crown elected not to make submissions with respect to s 24(2) of the Charter until I had delivered my decision about whether there had been a Charter breach or breaches. [ 5 ] For the reasons outlined below I find that the accused was lawfully arrested and that the search of his vehicle, which revealed the quantity of cocaine and cash earlier mentioned, plus other items, was also lawful. [ 6 ] Crown and Defence Counsel agreed that all evidence from the voir dire would become evidence at trial, including three voir dire Exhibits: 1.

Exhibit 1: 0.98 ounces of cocaine that was found in a black cloth drawstring bag found in the vehicle; 2. Exhibit 2: another 0.94 ounces of found in the same black cloth drawstring bag; and 3. Exhibit 3: an additional 0.025 ounce sample of cocaine that the police service sent for analysis, and marked collectively with the Certificate of Analysis – which Certificate certifies that the seized material is cocaine – and the Affidavit of personal service upon defence counsel of the Certificate of Analysis. [ 7 ] Defence counsel admitted on the Accused’s behalf jurisdiction, possession and continuity of evidence. II.

Testimony on the Voir Dire [ 8 ] Two City of Edmonton police officers testified on the voir dire . No witnesses were called by the Accused. A. Constable Marek Szmidt [ 9 ] Constable Szmidt testified that he is an eight-year member of the Edmonton Police Service. On 26 January 2013 he was on uniformed patrol in a marked police patrol car with his police partner, Constable Darryl McDonald. Constable Szmidt was driving the patrol car. [ 10 ] At approximately 1:50 to 1:55 a.m. on 26 January 2013, the patrol vehicle was southbound on Riverbend Road approaching 40 th Avenue.

Constable Szmidt observed a vehicle execute a U-turn at 40th Avenue; that is, the vehicle travelling southbound U-turned so that it was travelling northbound. The patrol car was approximately 60 meters away and to the rear of the U-turning vehicle. Constable Szmidt indicated this distance is about one lamppost distance from the vehicle, or very close to the vehicle. [ 11 ] The U-turning vehicle did not signal before it executed the U-turn.

The vehicle pulled over to the east curb and stopped adjacent to a bus stop, doing so before the patrol car’s emergency lights and siren were activated. [ 12 ] The patrol car pulled in behind the stopped vehicle and initiated its emergency lights. Constable Szmidt testified that this pull over was for the purpose of conducting a traffic stop. [ 13 ] The traffic stop’s purpose was that the driver had executed an unsafe U-turn, failing to activate the turn signal indicator.

[ 14 ] Prior to exiting the patrol car, the patrol constables used the Police Information System to query the licence plate and observed an entry – “special interest” – that informed the constables that the motor vehicle with this licence plate registration was known to be operated by the son of the registered owner, and the son of the owner had been driving with an identity card and not an issued vehicle operator’s licence. [ 15 ] Patrol Constable Szmidt observed that the registered owner was not the person driving because it was obvious from observation that the driver was a young male with dark hair and not an older female. [ 16 ] Constable Szmidt approached the vehicle, toward the driver’s window, observing nothing out of the ordinary. [ 17 ] When he leaned down into the open window of the vehicle, Constable Szmidt explained to the driver that the reason for the traffic stop was an unsafe U-turn and asked the driver for documents.

Constable Szmidt told the driver that the driver had not signaled and that there had been a vehicle behind the driver’s vehicle. [ 18 ] Having leaned closer into the driver’s window, Constable Szmidt testified that he smelled burnt marijuana.

The driver looked at Constable Szmidt and Constable Szmidt testified that he observed that the driver’s eyes were very bloodshot and red, and the driver’s eyelids were half closed. [ 19 ] Constable Szmidt confirmed that he has smelled this same burnt marijuana smell previously in numerous investigations and that he can also smell the difference between burnt marijuana and fresh marijuana. [ 20 ] Constable Szmidt confronted the driver by stating that the Constable smelled burnt marijuana and told the driver that the driver was now being investigated for impaired operation of a motor vehicle by drug. [ 21 ] Constable Szmidt testified that he “plainly confronted him” and asked the driver if he had smoked marijuana.

Initially, the driver denied smoking marijuana and then, without further words from Constable Szmidt, the driver said to Constable Szmidt: “yeah, I smoked marijuana two hours before.” [ 22 ] At that point, Constable Szmidt informed the driver that he was under arrest for impaired operation of a motor vehicle by drug and asked the driver to get out of the vehicle. [ 23 ] Constable Szmidt testified that the grounds for making the arrest were: 1. Burnt marijuana smelled by Constable Szmidt; 2. Driver’s eyes were very red and bloodshot as observed by Constable Szmidt; 3.

The driver was observed by Constable Szmidt to have a problem keeping his eyes open which, according to Constable Szmidt, is his common observance of persons when impaired by marijuana, having consumed marijuana; 4. The driver admitted that he had smoked marijuana earlier. [ 24 ] Constable Szmidt testified that he previously had interactions – a monthly occurrence on patrol – where he could tell that someone had been smoking marijuana.

Constable Szmidt indicated that he could tell by a person’s mannerisms, sometimes the smell on them, their eyes, their relaxed and slow-moving body movements, and, often, he can smell burnt marijuana when nearby someone who had smoked marijuana. [ 25 ] After the driver exited the driver’s side of the vehicle, Constable Szmidt placed the Accused in handcuffs beside the Accused’s vehicle and commenced searching the person of the Accused.

Constable Szmidt testified that the Accused was fidgety and “angling towards the driver door.” Constable Szmidt testified that he told the Accused to stop fidgeting so that the search could be conducted. [ 26 ] Constable Szmidt said that the Accused’s conduct raised suspicion that there may be fresh marijuana left in the motor vehicle.

Constable Szmidt asked the Accused if there was fresh marijuana in the motor vehicle and the Accused replied “no,” but told Constable Szmidt that there was a glass bong on the passenger seat. [ 27 ] The purpose of the personal search of the Accused was to determine whether the Accused had on his person any method of escape, for the purpose of officer safety, and for the purposes of finding any drugs, weapons or drug paraphernalia. [ 28 ] Constable Szmidt found nothing as a result of his vehicle-side search of the Accused.

The Accused was taken to the patrol car and seated in the patrol car with Constable Szmidt, who wrote up notes and started conducting more queries. There was nothing that Constable Szmidt made note of from the queries conducted in the patrol car. [ 29 ] During the time Constable Szmidt was with the Accused in the patrol car, Constable McDonald was conducting a search of the Accused’s vehicle.

Constable Szmidt testified that the search was incident to the arrest for being impaired by drug, and because the vehicle was going to be seized regardless of the outcome; the vehicle would be towed away and so the vehicle needed to be searched as well. [ 30 ] When asked what was meant by “outcome”, Constable Szmidt testified that there could have been a number of outcomes: a

warning but not letting the Accused drive again, a 24- hour suspension, or following through on the criminal investigation. Regardless, the vehicle would be towed because, first and foremost, it could not be left on the side of the road and whether there is a 24-hour licence suspension or a criminal charge, at that point, the vehicle must be towed according to police policy.

The vehicle could not be left locked on the side of the road where it was because it was parked at a bus stop, but mainly because where there was going to be a 24-hour licence suspension or criminal charge and so the vehicle needed to be towed. [ 31 ] Shortly after taking the Accused back to the police vehicle, Constable McDonald came back to the patrol vehicle with items he found in the Accused’s vehicle. [ 32 ] The time duration from the constables’ approach to the driver’s vehicle to the arrest of the Accused was approximately two minutes. [ 33 ] Once the Accused had been taken to the patrol vehicle, Constable Szmidt indicated that in the patrol car he wrote his notes and conducted more queries.

Constable Szmidt testified that it was during this time that Constable McDonald was at the driver’s vehicle, conducting a search of the vehicle. [ 34 ] The arrest reason was that the Accused was impaired by drug. [ 35 ] Constable McDonald came to the patrol car with items he had found in the driver’s vehicle, including a glass bong, cash money, and what the constables believed to be “hard” cocaine. [ 36 ] Constable Szmidt was not aware of the amount of the cash or the quantity of the material believed to be cocaine because the money was counted and the material was weighed at the patrol station. [ 37 ] Constable Szmidt informed the Accused that he was now under arrest for possession for the purposes and for proceeds of crime given the fact that the Accused was found with a substance believed to be crack cocaine. [ 38 ] The Accused was then read his Charter rights.

The Accused was transported to the Southwest Police Station where he was given the use of telephone books and the number for Legal Aid. Constable Szmidt cannot recall doing anything else at the station involving the Accused. [ 39 ] When asked by the Crown what became of the impaired by drug charge, Constable Szmidt testified that it is his recollection that the Accused was given a 24-hour licence suspension.

Constable Szmidt made this decision, but he testified that he could not recall at what point this decision was made. [ 40 ] The vehicle was towed, also at the direction of Constable Szmidt. [ 41 ] Constable Szmidt testified that he does not recall seizing anything, although it was possible he seized something, but he could not recall.

Had he seized anything, he would have given the item to Constable McDonald. [ 42 ] When asked what time Constable Szmidt told the Accused that he was being investigated for impaired by drug, it was 1:57 a.m., which was also when the Accused was placed under arrest for impaired by drug. [ 43 ] At 2:05 a.m., the Accused was placed under arrest for possession for the purposes of trafficking and possession of proceeds of crime. [ 44 ] After consulting his notes, Constable Szmidt refreshed his memory and testified that it was at 2:20 a.m. that the constables began transporting the Accused from the scene to the police station. [ 45 ] In the approximately 15 minutes that elapsed between Constable Szmidt’s placing the Accused under arrest for possession for the purposes of trafficking and the commencement of transporting the Accused back to the police station, Constable Szmidt testified that Constable McDonald would have finished his search of the vehicle, they would have called for a tow truck, and they requested another officer to come in to assist with the tow of the vehicle. [ 46 ] In cross-examination, Constable Szmidt indicated that other than the fact that there was no signal activated prior to the U-turn and that there was a car behind the U-turning vehicle, he made no observations of the vehicle weaving or swerving, and there was no risk that the patrol car could impact the vehicle despite the driver’s failure to signal.

Had the U-turn been signalled, Constable Szmidt agreed that it would not have been an unsafe U-turn. [ 47 ] Constable Szmidt also agreed that a failure to signal before commencing a U-turn does not necessarily indicate impairment because plenty of sober drivers fail to signal and drivers are actually quite lazy about signalling. Constable Szmidt agreed that this is “typically the case.” [ 48 ] During cross-examination, Constable Szmidt testified that when he leaned down toward the driver’s side front window, he smelled a burnt marijuana odour, but no hint of fresh marijuana.

Constable Szmidt also confirmed that he observed that the driver’s eyes were bloodshot and his eyelids were partly closed, but there were no other indicia of impairment. [ 49 ] Constable Szmidt confirmed that when challenged, the Accused initially denied consumption of marijuana, but then the Accused admitted his smoking of marijuana two hours before.

When Constable Szmidt was asked whether he believed the Accused when the Accused stated that he had smoked marijuana about two hours before the stop, Constable Szmidt replied that he neither believed nor disbelieved the Accused but stated that people extend the time from their last drink or consumption of drugs and so he could not say whether the driver smoked five minutes ago or two hours ago. [ 50 ] Initially, the Accused was arrested for impairment by drug after admitting to smoking. When asked whether impairment is

different from consumption, Constable Szmidt said that typically when someone consumes a drug, that person is impaired by it – typically, but not always.

When asked if one alcoholic drink will impair a person, Constable Szmidt said it would depend: consumption of one alcoholic drink may impair, but not necessarily. [ 51 ] Constable Szmidt confirmed during cross-examination that he observed no strange bodily movements or odd reaction times by the Accused and no such observations were noted in the roadside notes completed by Constable Szmidt, who agreed that he makes every effort to make accurate notes at all times. [ 52 ] Constable Szmidt confirmed that no assessment of the Accused was made by a drug recognition expert and Constable Szmidt personally did not make any impairment assessment of the Accused.

Constable Szmidt agreed that no efforts were made to locate a drug impairment recognition expert. [ 53 ] Constable Szmidt testified that he could not remember at what time he initially decided not to pursue the criminal charge and only issue a 24-hour suspension. [ 54 ] Constable Szmidt was presented with his notes in which he wrote in his narrative, at para 7: “After placing Dhaliwal into my police vehicle I began to make notes of the traffic stop and subsequent investigation to this point, despite having grounds to pursue a criminal charge of impaired driving by drug, I decided to use my discretion based on Dhaliwal’s honesty about smoking marijuana earlier and issue him a 24-hour suspension and vehicle seizure.” [ 55 ] When confronted with his evidence at the preliminary inquiry, Constable Szmidt confirmed that at that questioning under oath, his answers were honest answers.

At the preliminary inquiry, Constable Szmidt was asked at what time he had placed the Accused under arrest for impaired operation by drug. Constable Szmidt had then answered that this was at 1:57 a.m..

When asked whether it was his intention to issue a 24-hour licence suspension and vehicle seizure, Constable Szmidt agreed that this was his intention, but did not agree that this meant that it was his intention at the time of the arrest to issue only a 24-hour licence suspension. [ 56 ] When asked what his intention was at the time of arrest, Constable Szmidt stated that, at the time of the arrest, it was a dynamic situation with a lot of things happening at once, and he had lawful authority to arrest the Accused for impairment in operation of a motor vehicle by drug and made that arrest.

As to when he decided to issue a suspension instead, whether it was in the patrol car or walking back to the patrol car, he could not recall the exact minute at which he decided to give the Accused a 24-hour suspension. [ 57 ] Constable Szmidt’s testimony is that at the point of arrest, it was his intention to arrest the Accused for impairment by drug, and at the point of arrest he did not have in mind to give the Accused only a 24-hour licence suspension. [ 58 ] Constable Szmidt indicates that his decision to give a 24-hour licence suspension was because it was very difficult to get a hold of a drug assessment expert, the Accused was honest with him, the Accused admitted the prior marijuana smoking without being prodded, the Accused was not belligerent, and, basically, Constable Szmidt thought that the Accused was honest and cooperative.

Constable Szmidt did not agree with the suggestion that it would be highly unusual for the police to let someone off with a suspension instead of pursuing an impaired charge because the person was honest and cooperative. [ 59 ] When asked to speak in the context of alcohol impairment investigations, Constable Szmidt said he could not speak to how many times honesty and cooperation gets an alcohol impairment charge changed to a 24-hour suspension when the person has admitted to consumption.

Constable Szmidt agreed that no effort was made to bring in a drug assessment evaluation expert to assess the Accused. [ 60 ] Constable Szmidt agreed that there is no mention of the inventory purpose of the search made in Constable Szmidt’s notes, but he states that an inventory search is the standard practice of the police service when a vehicle is seized. [ 61 ] Some further questioning on cross-examination was conducted with respect to the “inventory” purpose of the motor vehicle search.

It was clarified after an interjection by the Crown that in fact, Constable Szmidt had never been questioned at the preliminary inquiry about the purpose of an “inventory search.” Nonetheless, Constable Szmidt indicated that, to his understanding, the purpose of an inventory search is to make sure that nothing valuable or dangerous is left in the vehicle so that when the vehicle is towed, the owner or driver cannot claim that an item is missing and that the police or someone took it.

Further, there are often weapons or things of that nature in a vehicle and eventually civilians or the towing operator will be dealing with the vehicle. [ 62 ] Constable Szmidt said that he did not complete a form that listed the inventory of items in the motor vehicle and cannot say whether it is important to make a list.

If there is such a police form to fill out, he has not seen such a form or filled one out it in his eight years of service. [ 63 ] Constable Szmidt indicated that part of the search was an inventory search, but also because of the arrest for impaired operation by drug and because there was a bong in plain sight on the passenger front seat. [ 64 ] Constable Szmidt’s agreed that the primary purpose of the motor vehicle search was for an evidence search and the inventory purpose was secondary.

The evidence search was for drugs or drug paraphernalia and the fact is that, at that time, the Accused was arrested for impaired operation by drug. [ 65 ] Constable Szmidt indicated that an evidence search would have been a search for drugs, and in particular, marijuana, and drug paraphernalia. [ 66 ] Constable Szmidt confirmed that at the outset of the traffic stop at approximately 1:55 a.m., he advised the driver of the reason for the stop, reviewed the documents provided by the Accused, and confirmed that the Accused had a valid driver’s licence. This was not an ID card but a valid driver’s licence.

At 1:57 a.m., the Accused was arrested for impaired driving by drug – a total of two minutes after the initial stop, including all of the advising of the reason for the stop and looking at the driver’s licence. [ 67 ] When challenged that there was approximately a two minute span of time during the initial stop and request for documents

and the decision to arrest the accused for impaired operation of a motor vehicle by drug, Constable Szmidt indicated that this span of approximately two minutes is a long time.

He did not agree that this was an insufficient amount of time to make observations. [ 68 ] Constable Szmidt offered that when an accused is arrested for impairment, the police do not need to provide immediate access to counsel and the Constable agreed that there is a different or reduced “rights scheme.” The Constable agreed that the Accused was not going to be allowed to use his phone from the police vehicle. [ 69 ] Constable Szmidt further stated that the standard practice when he is partnered with Constable McDonald is that the other partner will come out of the vehicle to assist with the traffic stop “almost always.” [ 70 ] Constable Szmidt testified that at the time of the Accused’s arrest, Constable Szmidt believed that if someone has been smoking marijuana, there is always a chance that they have more marijuana on them. [ 71 ] When confronted with testimony from his preliminary inquiry, Constable Szmidt confirmed that he had previously testified that he had no suspicion “at that time” that the Accused had more marijuana in his possession; Constable Szmidt testified that “at that time” meant at the time prior to the search.

That is, he had no suspicion that the Accused was in possession of more marijuana prior to the search.

Constable Szmidt cannot recall whether Constable McDonald searched the vehicle at Constable Szmidt’s suggestion, or if the search of the vehicle was done on Constable McDonald’s own initiative. [ 72 ] Constable Szmidt agreed that he made no effort to get a drug recognition expert to assess the Accused’s state of impairment and agreed that after Constable McDonald showed the results of the vehicle search – the cash and what appeared to be crack cocaine – Constable Szmidt’s mind changed about his initial belief in the honesty and cooperation of the Accused.

After seeing the seized items, Constable Szmidt then thought that the Accused had not been honest and cooperative.

Despite this change in mind, Constable Szmidt agrees that no effort was made to stick to the impaired driving charge; the decision was made to stay with the 24-hour suspension. [ 73 ] Constable Szmidt confirmed there was no warrant for the search of the motor vehicle, nor was there an effort to obtain a warrant. [ 74 ] Constable Szmidt conceded that since the Accused was in custody, the Accused could not get back to his vehicle so there was no fear of destruction by the Accused of evidence in the vehicle.

Also, because another officer had been called to the scene, that officer could have kept an eye on the vehicle, maintained continuity, and ensured that no one tampered with the vehicle during the time period after the Accused, Constable Szmidt, and Constable McDonald left the scene to go to the police station. [ 75 ] When challenged by defence counsel that Constable Szmidt did not pursue the impaired charge because, in fact, there were no grounds to proceed with the impaired arrest, Constable Szmidt adamantly denied the suggestion that he had no grounds to proceed with the impaired arrest.

When challenged by defence counsel that the police constables wanted to search the vehicle because they suspected there might be additional things in the vehicle, despite the fact that the constables had no indication of that, Constable Szmidt stated that this proposition was also incorrect.

When challenged by defence counsel that there was no valid inventory purpose for searching the vehicle, Constable Szmidt replied that this contention by defence counsel was also incorrect. [ 76 ] At the conclusion of cross-examination, defence counsel clarified and confirmed on the record that Constable Szmidt had not been questioned at the preliminary inquiry about the purpose of the search and that no questions at the preliminary inquiry about the search of the vehicle had been directed to Constable Szmidt. B.

Constable Darryl McDonald [ 77 ] Constable McDonald testified that he has 10 ½ years of experience with the Edmonton Police Service and on the 26th of January 2013, was in a police patrol car with Constable Szmidt. On patrol, the constables would go to calls and, if there were no calls, the patrol constables would drive around looking for crime and responding wherever they are needed; they would be involved in traffic enforcement and public safety matters. [ 78 ] Initially, Constable McDonald went through his testimony very quickly, from initial traffic stop to return to the police station.

Constable McDonald testified that he was in the passenger seat of the patrol car when, at approximately 1:55 a.m., he observed a vehicle travelling south on Riverbend Road, one or one and a half blocks away from the patrol vehicle, conducting a U-turn without initiating a signal. A vehicle licence plate query result informed the constables that one of the possible drivers associated with the vehicle plate number did not have a valid licence.

The driver of the U-turning vehicle was observed to be a male, not a female, and this led Constable McDonald to believe that this was the same male who had reportedly not been validly licenced. [ 79 ] Constable McDonald approached the passenger side of the vehicle and the passenger window was up. Constable McDonald testified that he could smell burnt marijuana – a very acrid and smoky odour, a harsh chemical smell, and a smoky smell that was not the fresh, herbal smell of fresh marijuana.

Constable Szmidt interacted with the driver and as he was doing so, Constable McDonald looked in the front passenger side window on the front seat and saw a plastic grocery bag with a glass tube sticking out of the grocery bag. He described the glass tube, which Constable McDonald believed to be a bong, as having Jamaican colours. [ 80 ] After Constable Szmidt arrested the driver, which Constable McDonald believed to be for impaired, Constable McDonald opened the passenger door and seized the bong, observing a burnt residue in the bong. He testified that he believed that there would be more marijuana in the car.

Constable McDonald then searched the front console and found a black cloth bag, opened it, and found $1,300.00 dollars in various denominations. Also in the black bag, Constable McDonald found what he believed to be crack cocaine: two chunks of white material, each wrapped in cellophane. Constable McDonald took these seized items to the patrol car and placed the seized items in the patrol car as Constable Szmidt sat in the police car with the Accused. Constable McDonald then returned to the vehicle and, on the passenger side, saw a McDonalds paper bag and garbage.

In the glove box, Constable McDonald found two air fresheners and on the driver’s door side pocket, Constable McDonald found a Blackberry cellphone. Constable McDonald then returned the patrol car.

[ 81 ] During further Crown questioning, Constable McDonald confirmed that it was Constable Szmidt who arrested the driver and that Constable McDonald was not certain at first what the charge was, but because of the smell and the presence of the bong, Constable McDonald assumed the arrest was for possession of marijuana.

It was only later that Constable McDonald was informed by Constable Szmidt that the charge was for impaired operation of a motor vehicle by drug. [ 82 ] At the time of the search, Constable McDonald testified that he did not know what was going to happen with the driver, so he was searching for further evidence of impaired driving and possibly possession of marijuana due to his discovery of the bong.

Also, because he did not know whether the driver was leaving from the scene or if someone else would be getting the vehicle, they needed to search for weapons and ensure that there was nothing in there to be concerned about. [ 83 ] When asked by the Crown what his authority was for conducting the vehicle search, Constable McDonald said that the Accused had been travelling in the vehicle upon arrest, so they intended to search the immediate area of the arrest.

When searching incident to the arrest, because of the bong, the residue in the bong, and the belief that the Accused was impaired by drug, further evidence of the offence would be more marijuana. Constable McDonald testified that he believed there would be more marijuana in the vehicle, probably of an amount for personal use, but they would still need to secure and dispose of the marijuana whether or not charges were laid. [ 84 ] Constable McDonald located the black cloth bag inside the centre console.

Constable McDonald found $1,300.00 cash inside the black bag: five $100 bills, two $50 bills and thirty-five $20 bills. [ 85 ] Inside the same bag, Constable McDonald observed a sealable plastic Ziploc bag which contained two white chunks of a chalky substance.

Each chunk of chalky white substance was placed in the middle of cellophane which was twisted at the top. [ 86 ] In one cellophane bundle was found 0.97 ounces of material and in the other cellophane bundle was found 0.98 ounces of material; both were weighed when Constable McDonald returned to the police station. [ 87 ] In front of the console, there were two half-filled water bottles. On the floor of the passenger side front, Constable McDonald observed food wrapper garbage on the front passenger side floor.

In the glove box he found two air fresheners and in the driver’s side door pocket he found a Blackberry cellphone. [ 88 ] From the 0.97 chunk of chalky material, Constable McDonald submitted for analysis 0.025 ounces. [ 89 ] Constable McDonald indicated that the purpose of his search was that since he did not know what the Accused was being charged with, he was searching for further evidence of impaired operation of a motor vehicle by drug or, possibly, possession of marijuana. [ 90 ] In addition, Constable McDonald said that it is common practice to “search the immediate area incident on arrest” to determine whether there is in the vehicle any means of escape, weapon or materials that would be contrary to public safety. [ 91 ] Constable McDonald said that upon observing the bong, he was searching for further evidence of an offence of marijuana possession.

There was residue in the bong which appeared to be for personal use but, regardless, Constable McDonald still needed to secure and dispose of that residue whether or not charges were laid. [ 92 ] Throughout this investigation, Constable McDonald was responsible for the exhibits and Constable Szmidt was responsible for the arrest of the Accused. [ 93 ] Constable McDonald testified that Constable Szmidt had also seized another cellphone from the pocket of the Accused’s clothing, and confirmed that there were a total of two cell phones found during the stop. [ 94 ] At the police station, the Accused was strip searched.

The white chunks of chalky material were bagged and the money was counted and bagged. [ 95 ] The reason for the strip search, Constable McDonald testified, was to ensure that no other drugs were on the Accused’s person and that there were no implements of escape on the Accused’s body. This was done because this was a drug arrest and he testified that before an Accused is sent to the Remand Centre, the police wish to ensure that there are no drugs on or in an Accused’s person to make sure that no drugs enter the Remand facility.

No further drugs or anything else was found during the strip search. [ 96 ] Three police exhibits were identified by Constable McDonald and were entered on the voir dire without objection by counsel for the defence in respect of either continuity or the analysis of the material: 1. Exhibit 1: a 0.98 ounce chunk of white chalky material taken from the black cloth bag; 2. Exhibit 2: a 0.94 ounce chunk of white chalky material taken from the black cloth bag; and 3. Exhibit 3, collectively:

a) a 0.025 ounce piece of white chalky material sent to the laboratory for analysis;

b) the Certificate of Analysis matched to the sample envelope;

c) the results of the Certificate of Analysis stating that the sample was cocaine; and

d) the Affidavit of Personal Service of the Certificate of Analysis served upon counsel for the defence. [ 97 ] Other evidence arising from the search and investigation was sent to the Property Exhibit Unit. [ 98 ] On cross-examination, Constable McDonald confirmed that it was the failure to signal prior to the U-turn that caused the traffic stop concern.

Constable McDonald confirmed that it is his normal practice to get out of the vehicle at traffic stops. [ 99 ] Constable McDonald confirmed that the smell he detected outside the vehicle was a burnt marijuana smell which is distinct from a fresh marijuana smell. [ 100 ] Constable McDonald confirmed that he observed a tube on the passenger seat he believed to be a bong; a bong is often used to smoke various products seat and he agreed that it is not illegal to possess a bong. [ 101 ] Constable McDonald agreed that at the time he observed the arrest, he initially assumed that the arrest of the Accused was for possession of drugs but was informed later that it was for impaired driving.

When asked if “later” meant when he was back in the patrol car, Constable McDonald said he was informed the charge was impaired by drug on the way to the patrol car at the time after the frisk search had been completed, but before the motor vehicle search was commenced. [ 102 ] Constable McDonald testified that the vehicle search was purely incident to the impaired charge and, at the time of the search, the decision had been made to seize the vehicle. [ 103 ] When confronted with the fact that he saw only residue in the bong, Constable McDonald agreed that he did not smell fresh marijuana, which is a fairly strong odour.

Constable McDonald testified that given the presence of the bong itself, there was evidence that there may have been more marijuana because the burnt odour is also powerful and can mask the fresh odour; it was possible there was more marijuana, but he did not “expect to find much.” [ 104 ] Constable McDonald said that he did not observe Mr. Dhaliwal’s bodily actions and had no independent knowledge of the Accused’s physical state.

He relied entirely upon his partner, Constable Szmidt, to report the interactions Constable Szmidt had with the Accused. [ 105 ] Constable McDonald said it is common to search the immediate area upon arrest. Constable McDonald testified that even on a charge of driving while disqualified, for example, there would be a vehicle search. Constable McDonald testified that when a vehicle is seized, it is towed to the lot and, if there are drugs in the vehicle or a gun under the seat, the police need to deal with it because they do not know when the driver is getting the vehicle back.

At the point the vehicle search was done, it was an investigation for impaired, so “with the new legislation the vehicle is seized more often than not.” [ 106 ] Constable McDonald confirmed that the vehicle was in fact seized and there was no warrant either obtained or applied for prior to the search of the vehicle. [ 107 ] When questioned about whether the search was for the purposes of “inventory,” Constable McDonald said that if valuables had been found they would have been noted, but he did not fill out any forms; he acknowledged, though, that most likely there was such a form.

Usually, though, damage to the vehicle, such as ripped upholstery for example, would be noted by the tow-truck driver. [ 108 ] Constable McDonald confirmed that what was found in the centre console was a cloth drawstring bag that was closed by being pulled shut and when he picked it up, he was not able to say what was in it. No particular smell was noted by Constable McDonald emanating from the cloth drawstring bag. [ 109 ] On the drive back to the patrol station with the Accused in the patrol vehicle, Constable McDonald testified that he did not observe the Accused because the Accused was in the back seat.

Constable McDonald agreed that he made no note of the Accused’s indicia, stating that since it was his police partner that was handling that side of things, he left it up to Constable Szmidt. [ 110 ] During the strip search conducted on the Accused, Constable McDonald agreed that the Accused was able to respond to Constable McDonald’s directions and he did not make note of anything particular.

Constable McDonald confirmed that the strip search done was a full strip search, which he does in the same manner every time, and his usual instruction is to ask for one item of clothing at a time until the strip search is done. [ 111 ] Constable McDonald agreed that since he made no note of the vehicle weaving or swerving, it was safe to assume there were no observations by Constable McDonald of vehicle weaving or swerving. [ 112 ] Constable McDonald confirmed that the burnt marijuana smell was detectable outside the Accused’s vehicle. [ 113 ] On the Crown’s re-examination, Constable McDonald confirmed his evidence during cross-examination that even on a driving while disqualified charge, the police would conduct a vehicle search to prevent later claims that someone’s diamond ring was missing and a vehicle search was done incident to arrest “to make sure nothing is in there.” Further, Constable McDonald said that his common practice is to search anything in the immediate area of the arrest. [ 114 ] Constable McDonald testified that even on a driving while disqualified, the police would conduct a search incident on arrest to ensure there is nothing in the vehicle that is dangerous.

The police need to know if there are any dangerous items in the vehicle, such as a gun, because eventually the vehicle will go back to the owner. Someone will get the vehicle and the fact is that the vehicle will be released at some point. The incident to arrest purpose is to make sure there is nothing in the vehicle.

Or, for example, if it was a case of uttering threats, the police would search the vehicle for weapons, evidence of the offence, and, more often than not, vehicle documents such as registration and insurance. [ 115 ] In this specific case, Constable McDonald testified that he was searching for evidence of the offence, for weapons, and for

vehicle documents. [ 116 ] No further witnesses were called by the Crown on the voir dire . Defence called no witnesses on the voir dire . III. Breach of Charter Rights: Submissions A.

Submissions of the Accused [ 117 ] The Accused argues that his ss 8 and 9 Charter rights were breached and argues that the purpose of the police search of his vehicle was not an inventory search, but a search for evidence. [ 118 ] The arrest was unlawful because “red eyes and an admission of consumption in the past” cannot amount to reasonable and probable grounds for arrest in the context of this routine traffic stop for failing to signal before commencing a U-turn. [ 119 ] It is contended that consumption is not the same as impairment.

The Accused states that there were no observations of impaired bodily movements or speech impairment or other signs of impairment. The Accused argues that this is an equivalent circumstance to where there is an arrest for impairment by alcohol simply because an officer smells alcohol on a driver’s breath.

Quite simply, consumption does not mean impairment. [ 120 ] And, while arresting Constable Szmidt may have had some subjective belief as to the Accused’s impairment, that is insufficient because there also must be a component of objective belief before the Charter s 9 threshold for arrest on “reasonable and probable grounds” is lawfully met.

In this case, the Accused asserts that there was no objective evidence of any kind that would support Constable Szmidt’s claim that he had reasonable and probable grounds to believe that the Accused was impaired. [ 121 ] At worst, says the Accused, it was a bad driving decision that the Accused failed to signal before he commenced a U-turn.

However, since the period of time between the patrol car stopping and the Accused’s arrest was only two minutes, the Accused says there was insufficient time for Constable Szmidt to investigate the Accused’s impairment by drug. [ 122 ] Given the quick arrest, the Accused submits that one would reasonably expect to have seen indicia of gross impairment.

Such indicia would have objectively, and reasonably, included stumbling, bad reactions, incoherent speech, or something that would have been entirely outside the norm for a sober, coherent and rational driver. [ 123 ] There being no reasonable and probable grounds to meet the Charter threshold for arrest, the Accused contends that the arrest was unlawful and that everything discovered following the unlawful arrest ought to be excluded from admission into evidence. [ 124 ] Moreover, while the Accused’s admission of marijuana smoking previous to the stop may allow detention so as to allow the constables to conduct an assessment of impairment, in this case no effort was made to do an assessment, and there was apparently no interest in taking the steps to ensure that such an assessment was done. [ 125 ] The Accused asserts that arresting Constable Szmidt simply arrested the Accused for “something,” so that the constables had an excuse or pretext to search the Accused’s vehicle. [ 126 ] The Accused says that the testimony of Constable Szmidt to the effect that he had decided to issue only a 24-hour licence suspension to the Accused because the Accused had been “honest and cooperative” simply does not pass the “smell test.” The Accused argued that if Constable Szmidt decided to issue a 24- hour license suspension, then why did Constable Szmidt’s police patrol partner proceed with the search of the driver’s motor vehicle?

The Accused says that there is no coherent explanation for this series of events. The Accused argues that the vehicle search was primarily an evidence search and that, in fact, no inventory search was in fact conducted, and no inventory list was recorded. [ 127 ] Further, for the police to assert that they have a right to do an inventory search before the seizure of the motor vehicle simply does not make logical sense. And, the arrest was not made for possession of a controlled substance but, rather, the arrest was made for impairment by drug.

Mere suspicion does not rise to the requisite level of “reasonable or probable grounds” necessary to satisfy the Accused’s Charter -protected rights. Moreover, says the Accused, the scope of a search incident to arrest must be rationally connected to the charge that the Accused is facing. [ 128 ] The Accused urges that simple possession of marijuana is not rationally connected to the charge of impairment by drug.

Moreover, Constable Szmidt testified that he did not have a suspicion that the Accused possessed any fresh marijuana. [ 129 ] Although arresting Constable Szmidt testified that the search was also to search for weapons and for material dangerous to public safety, the Accused argues that such search objectives are simply not permitted purposes of the vehicle search in these circumstances. [ 130 ] The Accused contends that, at its heart, the police decision to use Alberta’s Traffic Safety Act , RSA 2000, c T-6 to mete out a 24-hour suspension to the Accused, rather than pursue the arrest of the Accused for impairment by drug, was no more than a deliberate pretext to conduct a groundless, warrantless search – in effect, a fishing expedition – of the driver’s vehicle. [ 131 ] As I understood the Accused’s argument, when I consider the statutory scheme under which the 24-hour licence suspension is permitted under the Traffic Safety Act and consider the lower threshold of “reasonably suspects” embedded in the provincial traffic safety legislation, there is a grave danger that, if the court is not vigilant in its protection of the primacy of Charter rights, the Traffic Safety Act can be used, and in this case was used, to justify a warrantless police search without reasonable or probable cause or on any rational basis.

If such warrantless searches are permitted under the Traffic Safety Act , the result will be that Charter -protected rights of the citizens of Canada will be eroded because, during routine traffic stops, the police will simply choose to do an end run around their more

stringent Charter-compelled obligations consequent upon detention and arrest.

These more stringent and onerous Charter-compelledobligations otherwise would have applied had the charge been pursued against the Accused under s 253 of the Criminal Code, RSC1985, c C-46. [132] The Accused offers R v Ruiz, 2012 BCPC 457, [2012] BCJ No 2780, in support of his contention that “smell” is not sufficientto support reasonable and probable grounds for arrest and R v Marusiak, 2002 ABQB 774, 324 AR 159 for the proposition that smelland residue are insufficient to support an arrest for a Criminal Code offence of possession of marijuana.

Moreover, the Criminal Codesets out specific statutory criteria about the quantity of drug that must be found before possession of marijuana becomes anything morethan a

summary conviction offence. [133] Under s 495 of the Criminal Code, there are only very limited circumstances in which a warrantless search is permissible.Otherwise, a warrantless search is prima facie unlawful. Thus, in conclusion, the Accused states that as the arrest is illegal, all evidenceflowing from the illegal arrest has been illegally obtained and ought to be excluded. B. Crown Submissions [134] The Crown submits that the Accused’s ss 8 and 9 Charter rights were not breached. It submits that the search of the Accused’svehicle was consequent upon lawful arrest, and was an incident of arrest.

The search was also an inventory search. The Crown says thatthere is no juridical basis upon which the court ought to refute or reject the proposition that a vehicle search can have a dual purpose:search incident to arrest and search pursuant to an inventory objective. [135] In support of its position, the Crown refers to Cloutier v Langlois, (SCC), [1990] 1 SCR 158 at 186, in whichthe Court discusses the valid objectives that must be met before a warrantless police search will be seen to be reasonable and justified: 1. This power does not impose a duty. The police have some discretion in conducting the search.

Where they are satisfied that the lawcan be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assessthe circumstances of each case so as to determine whether a search meets the underlying objectives. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be athreat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.

Thepurpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for exampleif the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. 3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should beproportionate to the objectives sought and the other circumstances of the situation.

A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law. [136] In R v Caslake, (SCC), [1998] 1 SCR 51, the Supreme Court of Canada addressed the issue of “incidental to arrest” and said [at para 15] that [s]ince search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts’responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals’ right toprivacy.

The scope of search incident to arrest can refer to many different aspects of the search. It can refer to the item seized during thesearch. In Stillman, Cory J. for the majority of this Court held, at para 42, that bodily samples could not be taken as incident to arrest, asa search so invasive is an “affront to human dignity”. It can also refer to the place to be searched. [137] The Supreme Court of Canada goes on to say: The appellant argues that the power of search incident to arrest does not extend to automobiles. I would reject this position.

Automobilesare legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify anexemption from the usual common law principles referred to above. [138] In answering the question as to whether the search in that case was truly incidental to the arrest, the Supreme Court of Canadaoffered the following guidance at paras 22 and 23: 22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, theremust be some reasonable prospect of securing evidence of the offence for which the accused is being arrested.

For example, when thearrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching anyfurther. [139] In this passage, however, I note that the Court refers to R v Belnavis (1996), (ON CA), 29 OR (3d) 321, 107CCC (3d) 195 at 213 (CA), in which Doherty JA held that an arrest for outstanding traffic fines did not authorize the search of the trunkof the vehicle, stating “[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes whichhave no connection to the reason for the arrest.” This decision was affirmed by the Supreme Court of Canada in (SCC),[1997] 3 SCR 341, although Cory J, who wrote for the majority, did not address this issue. [140] Going on to para 23 of Caslake, the Court says:

23 As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident toarrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehiclein relation to the place of the arrest, and other relevant circumstances. [141] Turning back to the Cloutier decision, the Crown cites para 52, which says: As we have seen, the power to search a lawfully arrested person has its roots deep in the common law.

In fact, at common law the policepower of search extended to encompass a search of the surroundings of the arrest location and the seizure of anything they found there.The precedents I have referred to make it unnecessary to consider this aspect at greater length.

What must be determined, rather, is theextent to which the competing interests in the context of a lawful arrest justify a search as an incident of the arrest. [142] In connection with s 8 of the Charter, after conceding the Crown’s obligation to rebut the presumptive prima facieunreasonableness of the warrantless seizure, the Crown took the position that the arrest was lawful. The Accused was observed making aU-turn without signalling. Prior to the police patrol vehicle activating its lights or siren, the U-turned vehicle had pulled over and parkednext to a bus stop.

The police patrol car then pulled up behind the vehicle and the constables turned on their emergency marker lights. [143] Constable Szmidt noted at the open driver’s side window a smell of burnt marijuana, that the driver’s eyes were red and verybloodshot, that the driver’s eyelids were half closed, and that the driver was having trouble keeping his eyes open. Constable Szmidtadvised the driver that the police officer was entering into a drug investigation. The police officer then plainly told the driver that it wasConstable Szmidt’s belief that the driver had consumed marijuana.

After first denying marijuana consumption, the driver admitted thathe had consumed marijuana two hours earlier. At that stage Constable Szmidt arrested the driver for impaired operation of a motorvehicle by drug. [144] In order to assess the reasonableness of the arrest, the Crown argues that it is necessary to place oneself in the position of thearresting officer in terms of that officer’s education and experience. [145] This arresting officer testified that he saw, on a monthly basis, persons who were under the influence of marijuana.

The Crowncontends that this arresting police officer believed subjectively that he had reasonable and probable grounds to arrest the accused forimpairment. In terms of objective reasonableness, the police officer also testified that he observed that the driver had trouble keeping hiseyes open, his eyes were half closed, and his eyes were very bloodshot and red.

The Crown says it is obvious that a person needs to keepone’s eyes open in order to drive a vehicle. [146] In turning to the question as to what standard of proof must be met in order to establish reasonable grounds for a search, theCrown cites R v Debot, (SCC), [1989] 2 SCR 1140, where at 1166 the Supreme Court of Canada states this: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly.

Iagree with Martin J.A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or“prima facie case”.

The phrase “reasonable belief” also approximates the requisite standard. [147] In R v Jir, 2010 BCCA 497 at para 27, 264 CCC (3d) 64, the British Columbia Court of Appeal adopts the same test and says:“[a]s has been stated many times, the ‘reasonable grounds’ standard is not only less than that required for conviction, but is also less thanthe civil standard of proof.” The Court in Jir also cites Debot, as quoted above, and further confirms that the same standard was adoptedmore recently in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 at para 114 whichconfirms that “the ‘reasonable grounds to believe’ standard requires something more than mere suspicion, but less than the standardapplicable in civil matters of proof on the balance of probabilities” [citations omitted].

And, in Jir, the British Columbia Court of Appealstates that “it is well established that a reasonable grounds determination involves consideration of the ‘totality of the circumstances’” (atpara 28). [148] This concluded the Crown’s submissions. I now turn to my Charter analysis. IV. Charter Analysis A.

Section 9 [149] The Accused bears the burden of proving that his s 9 Charter right has been infringed: R v Collins, (SCC),[1987] 1 SCR 265 at 277. [150] The Accused submits that Constable Szmidt did not have reasonable and probable grounds on which to base the arrest, contraryto s 9 of the Charter which says: Everyone has the right not be arbitrarily detained or imprisoned. [151]

Section 9 is important because it serves to delineate state power and is a springboard to other Charter rights, such as s 10 whichis the right to be told promptly the reason for detention and the right to retain and instruct counsel without delay and to be informed ofthat right. [152] When a police officer or other agent of the state assumes control over the movement of a person by a demand or direction whichmay have significant legal consequences and which prevents or impedes access to counsel, this is the gravamen of the definition of“detention”: R v Therens, (SCC), [1985] 1 SCR 613. [153] It is now understood that for a detention to be non-arbitrary, it must be authorized by a law which is itself non-arbitrary.

As withother rights, the s 9 prohibition of arbitrary detention may be limited under s 1 by such measures “prescribed by law as can be

demonstrably justified in a free and democratic society.” [154] I am satisfied that at the point that Constable Szmidt informed the Accused that the Accused was being investigated forimpaired operation by drug, the Accused understood the basis for his detention by the police and understood that this was now more thanjust a traffic stop. It is correct that an individual who is detained must be advised in clear and simple language of the reason for thedetention: R v Mann, 2004 SCC 52 at para 21, [2004] 3 SCR 59. A court must not take a formalistic approach to assessing the adequacyof what an Accused was told in considering a

section 10(

a) breach. It is the substance of what the Accused can reasonable be supposed tohave understood: R v Evans, (SCC), [1991] 1 SCR 869 at 888. [155] On the basis of the uncontroverted evidence that the Constable told the Accused he was being investigated for impairedoperation by drug, I find that the Accused was informed in clear and simple language of the reason for the investigation and I also findthat the Accused reasonably understood the extent of his jeopardy. [156] Turning to the factual circumstances of the Accused’s arrest, the legal test to determine whether a peace officer has reasonablegrounds to arrest a person is stated in R v Storrey, (SCC), [1990] 1 SCR 241 at 250-51: In

summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for thearrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically, they arenot required to establish a prima facie case for conviction before making the arrest. [157] The Accused urges me to consider the situation of an impaired by alcohol arrest. I agree with the Accused’s contention thatconsumption of alcohol does not automatically result in impairment by alcohol.

I also agree that in this case, there were no indicia ofimpairment such as slurred speech, inattention, stumbling or the like. [158] Here, however, there was the objective indicia of very bloodshot, red eyes, half closed eyelids, trouble keeping his eyes openand the Accused’s admission of marijuana use two hours earlier. [159] I find that these observations of the Accused as made by Constable Szmidt were not undermined in cross-examination anddistinguish the case at bar from the facts in Ruiz. [160] Ms. Ruiz was pulled over for a traffic stop for driving her vehicle without fastening her seatbelt.

The Constable had executed alawful traffic stop. At para 5, the facts are set out: Upon approaching the vehicle he found the driver’s side window half way down. Ms. Ruiz was holding a Guess perfume bottle in herlap. Cst. Gordon testified that he could smell a mixture of a strong odour of fresh (or unburnt) marijuana along with perfume. There was no evidence that Ms. Ruiz appeared nervous or anxious in any way. There was no further investigation conducted prior to Ms.Ruiz being asked to exit her vehicle where she was placed under arrest for the possession of marijuana.

A vehicle search revealed a blackgarbage bag containing approximately 4.5 kilograms of fresh cut marijuana. Ms. Ruiz was then arrested for possession for the purposesof trafficking as well as simple possession. [161] The only fact that the Court in Ruiz accepted was that the Constable smelled fresh marijuana. The Court did not accept that theConstable had noticed a perfume odour, as this was not noted in the police officer’s notes. Further, the Constable conceded that “even asmall amount of unburnt marijuana can emit a strong odour and he could not know the quantity of marijuana possessed.

And, he couldnot know whether there was over or less than 30 grams of marijuana present” (at para 14). [162] In Ruiz, the Court emphasized that the Court was not dealing with an arrest under s 495 of the Criminal Code of Canada and,since the arresting constable had no reason to believe that Ms. Ruiz was in possession of an amount of marijuana over 30 grams, thepossession offence with which she was charged was only and strictly a

summary conviction offence, whereas the arrest powers in s 495(1)(

a) only allow an arrest if there are grounds to believe that an indictable offence has been or is about to be committed. [163] The Crown in Ruiz also conceded that, in the circumstances of that case, the arrest could only have been made under s 495(1)(b), which allows for an arrest by a peace officer of a person who is “found to be committing” a criminal offence. That is, s 495 wouldapply only if Ms. Ruiz had been found committing a criminal offence. [164] Similarly, I find in this case that s 495(1)(

b) is the only applicable provision of s 495 that can apply to a consideration ofwhether the Accused’s arrest was lawful. In other words, can I find here that the arresting officer had reasonable and probable grounds tobelieve that the Accused was found to be committing a criminal offence? [165] First, I find in this case, as was found in the Ruiz circumstances, that Constable Szmidt could not know the quantity ofmarijuana consumed by the Accused and could not know the quantity of marijuana in the Accused’s vehicle, so a charge of possession ofmarijuana would have been limited to a

summary conviction offence, to which s 495 does not apply. [166] I also agree that it is clear that s 495(1)(

b) of the Criminal Code provides a very narrow scope for interfering with the liberty ofa citizen. [167] In distinguishing this case from the Ruiz facts, however, I find in this case that the Accused was not arrested on a charge forpossession of marijuana. Rather, the Accused here was arrested for impaired operation or care or control of a vehicle by drug, that is, aCriminal Code charge to which s 495(1)(

b) applies and allows for an arrest, by a peace officer, of a person who is “found to becommitting” a criminal offence. The Crown confirmed, and the Accused did not contest, that an impaired by drug arrest is an arresthaving been made under s 253 of the Criminal Code, the relevant portion of which says:

(1) Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; [ 168 ] Thus, the Accused’s arrest was not for a charge of possession of marijuana based upon the presence of an odour of marijuana, fresh or burnt. Rather, the Accused’s arrest was for a charge of operating a motor vehicle or being in care or control of a motor vehicle, whether it is in motion or not, while the Accused’s ability to operate the vehicle was impaired by alcohol or drug.

This was an arrest charge that I find was based upon reasonable and probable subjective and objective grounds for Constable Szmidt’s belief that the Accused’s ability to operate the vehicle he was driving was impaired by alcohol or drug. [ 169 ] I also find that Constable Szmidt’s explanation of the reasons why he decided not to pursue the criminal charge of impaired by drug (because it was difficult to get a drug assessment expert and because he initially believed the Accused was being honest and cooperative) are credible and I believe that his reasons were bona fides in this particular factual circumstance involving this particular Accused. [ 170 ] I also find that the roadside frisk search of the Accused’s person, although warrantless, was authorized by law as a search incident to arrest for the purposes of officer safety and, as such, did not violate the Accused’s s 8 rights. [ 171 ] Again, although I find that the factual matrix of the case at bar is distinguishable from Ruiz , the latter being a case cited by defence counsel, I do find the case at bar to be more closely analogous to R v Loewen , 2010 ABCA 255 , 490 AR 72, aff’d 2011 SCC 21 , [2011] 2 SCR 167, which is an Alberta Court of Appeal decision.

Loewen is one of the cases referred to by the judge in the Ruiz decision. [ 172 ] In the Loewen case, it seemed clear that the police officer did not have reasonable and probable grounds to arrest the accused under s 495(1)(

a) on the basis of the burnt marijuana smell alone, but the accused had over $5,000.00 in his pocket.

It was the discovery of this quantity of money that persuaded the officer that the Accused was dealing with more than 30 grams of marijuana, so the Court did not have to deal with the issue of whether the arrest would have been justified under s 495(1)(b) – the “finds committing” section. [ 173 ] Similarly in this case, the Accused’s arrest was not made on the basis of the burnt marijuana smell alone, but also on the basis of the earlier described subjective and objective grounds provided by Constable Szmidt, including the Accused’s red and very bloodshot eyes and half-closed eyelids, the Accused’s problem with keeping his eyes open, the admission by the Accused to earlier marijuana consumption, and to having a glass bong on his front passenger car seat. [ 174 ] The case of R v Harding , 2010 ABCA 180 , 482 AR 262 was also considered in Ruiz , where the odour involved was that of unburnt marijuana and not, as here, burnt marijuana.

The Alberta Court of Appeal was of the opinion that the smell of unburnt marijuana alone, given the officer’s experience, constituted the observation that a crime was presently being committed. Because of that conclusion, the Court found that an arrest under s 495(1)(

b) was warranted. [ 175 ] Although it seems clear to me that the Alberta Court of Appeal in Harding has decided that the detection of a smell of unburnt marijuana during a vehicle stop is direct evidence that the person in control of that vehicle possesses marijuana and is therefore “found committing” a criminal offence, I certainly recognize that the detection of burnt marijuana smell does not invite the same characterization given the fact that burnt marijuana means that at least the cause of the odour has been consumed already. [ 176 ] This conclusion is in keeping with R v Janvier , 2007 SKCA 147 , 302 Sask R 190, which is also cited in the Ruiz case, wherein it was held that for a police officer to arrest someone under s 495(1)(

b) of the Criminal Code , the officer had to actually observe or smell the offence being committed for which the person was arrested. The police officer in Janvier did not see, hear or smell the accused committing the offence of possession of marijuana and, therefore, did not find him committing that offence; s 495(1)(

b) did not permit an arrest to be made on inference derived from the smell of burnt marijuana alone because such a fact is capable of alternative inferences. [ 177 ] In the case at bar, once again, I am not dealing with an arrest on a charge for possession of marijuana but, rather, an arrest for the offence of impaired operation or care or control of a motor vehicle by drug. This factual distinction as to the actual charge made against the Accused upon arrest is pivotal to my findings and conclusion. [ 178 ] In

summary, I find that a reasonable person placed in the position of Constable Szmidt, considering the constable’s previous personal experience and his dealings with persons impaired by or under the influence of marijuana, must conclude that there were indeed reasonable and probable grounds for the Accused’s arrest under a charge for impaired operation of a vehicle by drug. [ 179 ] I find that Constable Szmidt’s subjective past experience in observing persons who have consumed marijuana is extensive and, from an objective point of view, Constable Szmidt also observed the Accused’s very bloodshot, red eyes, half closed eyelids and noted the Accused seemed to be experiencing difficulty keeping his eyes open – observations the constable commonly made of persons impaired by drug. [ 180 ] These subjective and objective observations were also informed by the Accused’s own voluntary admission, when asked, of consumption of marijuana two hours earlier and the Accused’s acknowledgement that there was a glass bong on the driver’s front passenger seat.

Therefore, the Constable’s observations of the Accused’s very bloodshot, red eyes and half closed eyelids, and the admission of consumption of marijuana by the Accused, plus the Accused’s admission of possession of a bong, were also tempered by the Constable’s subjective knowledge and experience that people often overestimate the time period from last consumption of drugs to the time of the police stop.

The Constable’s observations were further informed by Constable Szmidt’s knowledge that bongs, while not illegal, are commonly used to ingest illegal drugs. [ 181 ] I find that the Accused’s arrest under a charge for impairment by drugs, contrary to s 253 of the Criminal Code , was lawful. [ 182 ] The Accused also asserts that the vehicle search was not lawful and that his s 8 Charter right was breached. The Crown is

burdened with rebutting the presumption that a warrantless search is prima facie unlawful. B.

Section 8 [183]

Section 8 of the Charter says: Everyone has the right to be secure against unreasonable search or seizure. [184] People have a reasonable expectation of privacy. Intrusions must be reasonable. In the criminal context, there is usually arequirement for prior authorization from an independent person acting judicially based on reasonable and probable grounds.

Absent awarrant, search or seizure is prima facie unreasonable, subject to rebuttal by the Crown. [185] In Collins at 278, the SCC said: “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if themanner in which it was carried out is reasonable.” [186] Any state conduct that interferes with a reasonably held expectation of privacy is a “search” or “seizure” for constitutionalpurposes.

The search may be tangible or intangible. [187] It is often said that privacy interests are a constellation of interests that reflect fundamental normative values in our society andare a precursor to other freedoms.

The expectation of privacy is part of the social contract between citizens and government and theCharter is the primary document which sets the boundaries of that relationship. [188] There are exceptions to the warrant requirement, including, generally, the giving of consent which must be voluntary, the giverof consent aware of the nature of the police conduct for which consent is sought, the giver of consent aware of the right to refuse, andaware of the potential consequences of giving consent.

There is no evidence to suggest that the Accused gave his consent to the search ofthe vehicle. [189] Another exception to the requirement for a warrant, is a search incident to arrest. There must be a valid arrest and the searchmust be conducted for a valid purpose, carried out in reasonable and proportionate fashion, and to have an articulable nexus between thesearch and the offence. [190] The search can precede arrest, timing can vary, and there are no hard and fast rules.

It is this aspect of s 8 that is the crux of thepresent case. [191] In this case, I find that except for the glass bong, none of the incriminating seized materials were in plain view. However, that isnot the end of the matter in answering the question of whether the warrantless vehicle search was lawful. I reviewed the cases to which Iwas referred. [192] In R v Kaman (22 February 2013), Calgary 111203683Q1 (Alta QB), after the police officer arrested Mr. Kaman for anoutstanding warrant, Mr.

Kaman exited the vehicle and the arresting constable made certain observations that led him to arresting Mr.Kaman for two Criminal Code offences. After this, the arresting officer searched Mr. Kaman’s vehicle and searched the driver’s area ofthe vehicle for evidence of the source of Mr. Kaman’s impairment, and also for Mr. Kaman’s driver’s licence.

The searching constablesearched the center console beside the driver’s seat, the ashtray to the front of the driver’s seat, and the pocket on the driver side door.During the search, the police officer located pill bottles with pills, the majority of which were OxyContin, three phones in the console,two packages of pills that were identified as OxyContin in the ashtray, and a knife was found in the door pocket. Mr.

Kaman submittedthat the arresting office did not have reasonable grounds to arrest him on the Criminal Code offences, including impaired driving and,therefore, the search of his vehicle was an unlawful search and a breach of his rights under s 8 of the Charter. [193] The issue in Kaman was whether the vehicle search was a search incident to arrest. The Crown correctly concedes in the caseat bar that the Crown bears the onus to prove that the warrantless search of the Accused’s vehicle was reasonable. [194] Mr. Kaman was stopped for speeding. The arresting constable described Mr.

Kaman as “looking a bit off – he seemed a littledifferent.” Upon cuffing Mr. Kaman the constable observed that Mr. Kaman was unsteady on his feet, his eyes were glassy, and he hada pasty mouth. In the constable’s opinion, Mr. Kaman was not impaired by alcohol, but by a drug or some outside substance. [195] The Crown contends that in this case, as was the case in Kaman, Constable Szmidt arrested the Accused because the constablebelieved that the Accused driver had consumed marijuana and was impaired by that consumption. The arresting constable described theAccused’s red, bloodshot, half-closed eyes.

The Accused was arrested and Constable Szmidt testified that, during his frisk search, theAccused was fidgeting and angling toward his driver’s door and was told to stop fidgeting. A trained drug recognition evaluation expertwas difficult to obtain. Constable Szmidt testified to the symptoms of impairment he observed with respect to the Accused, as well as thebasis for his experience.

As in Kaman, I have made the finding that the Accused’s arrest for the Criminal Code offence under s 253 wasobjectively justifiable as set out earlier in this decision. [196] After citing the Cloutier v Langlois decision of the SCC (as cited earlier) as discussed in R v Stillman, (SCC),[1997] 1 SCR 607, and after referring to the clarifications made in the SCC Caslake decision, Kaman refers to paras 17- 19 of Caslakewhere Chief Justice Lamer (as he then was), writing for the majority, says this: 17 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself:searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question.

The authority for thesearch does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the lawenforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy. . . . This means,simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.

18 This position has been taken by a number of lower courts, and particularly well articulated by Doherty J.A. In Lim (No. 2), supra, at p. 146, he stated: I begin with a determination of whether the search was truly an incident of the arrest. If it is not, the common law power to search as an incident of arrest cannot be relied upon. . . .

In considering whether a search is in fact an incident of arrest, one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search. [...] 19 As L'Heureux-Dubé J. stated in Cloutier , the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial.

The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose wi

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