R. v. Noel, 2010 NBCA 28

COURT OF APPEAL OF NEW BRUNSWICK 25-09-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - PATRICE JEAN NOEL RESPONDENT PATRICE JEAN NOEL INTIMÉ R. v. Noel, 2010 NBCA 28 R. c.

Noel, 2010 NBCA 28 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Turnbull The Honourable Justice Green CORAM : L'honorable juge en chef Drapeau L'honorable juge Turnbull L'honorable juge Green Appeal from a decision of the Provincial Court: February 10, 2009 Appel d'une décision de la Cour provinciale : Le 10 février 2009 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 19, 2010 Appel entendu : Le 19 janvier 2010 Judgment rendered: April 22, 2010 Jugement rendu : Le 22 avril 2010 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L'honorable juge en chef Drapeau

Concurred in by: The Honourable Justice Turnbull The Honourable Justice Green Souscrivent aux motifs : L'honorable juge Turnbull L’honorable juge Green Counsel at hearing: For the appellant: David Schermbrucker For the respondent: James J. Matheson Avocats à l'audience : Pour l’appelante : David Schermbrucker Pour l’intimé : James J. Matheson THE COURT The error of law attributed to the trial judge does not constitute reversible error in the particular circumstances of the present case. The appeal is, therefore, dismissed.

LA COUR L’erreur de droit imputée à la juge du procès ne constitue pas une erreur justifiant l’infirmation de la décision, eu égard aux circonstances particulières de l’espèce. L’appel est donc rejeté. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] On June 20, 2006, the respondent, Patrice Jean Noel, was pulled over by an RCMP officer for the purpose of verifying the registration certificate of the vehicle he was operating.

Within minutes, this routine highway traffic stop morphed into a full-fledged investigation under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 and a warrantless search incidental to Mr. Noel’s arrest for possession of marihuana culminated in the seizure of a large quantity of that controlled substance from the trunk of his vehicle. In due course, Mr.

Noel stood trial in the Provincial Court on a charge under s. 5(2) of the CDSA (possession, for the purpose of trafficking, of more than 3 kilograms of marihuana). [ 2 ] As might be expected, the outcome in the court below hinged on the admissibility of the marihuana seized from Mr. Noel’s vehicle. At a voir dire on that issue, the defence urged exclusion, arguing the predicate arrest was unlawful because the officer lacked the requisite reasonable grounds to believe Mr. Noel was in possession of marihuana.

The Crown countered with the officer’s sworn testimony that the arrest followed on the heels of his detection of an odor of raw marihuana from the interior of Mr. Noel’s vehicle. In the Crown’s submission, that circumstance, viewed in context, sufficed to provide the reasonable grounds required to clothe the arrest with the mantle of lawfulness and it followed that the incidental search was “reasonable” for constitutional purposes. [ 3 ] In ruling for the defence, the trial judge expressed reservations about the “reliability” of the arresting officer’s testimony that he detected an odor of raw marihuana.

After stating she had “difficulty” with that sworn assertion, the trial judge concluded Mr. Noel’s arrest was “groundless” and that the follow-up search had been undertaken on a mere “hunch”. Since Mr. Noel’s arrest was unlawful, the trial judge found the incidental search was also unlawful. That finding led her to hold the search was “unreasonable” within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms .

[ 4 ] The evidence revealed by the search having been obtained in a manner that infringed Mr. Noel’s s. 8 rights, the trial judge turned to the question of whether its admission would bring the administration of justice into disrepute. She concluded it would and excluded the contested evidence pursuant to s. 24(2) of the Charter . There being no admissible evidence to substantiate the charge, the trial judge acquitted Mr. Noel. [ 5 ] The Attorney General appeals on one ground, which is both specific and narrow.

He submits that “in making her findings of fact and determining the main issue, the trial judge was heavily influenced by the reported facts as set out in other trial judges’ reasons for judgment in other cases involving the same [arresting] officer”. Correlatively, the Attorney General contends “those reported facts were not part of the evidentiary record in [Mr. Noel’s] trial and should have had no part to play in the trial judge’s deliberations”.

The Attorney General submits that “by relying on extraneous evidence in this way, the trial judge erred in law in deciding the case based on important evidence that was not properly before the Court”. The “other cases” referenced by the Attorney General are: R. v. Oldford and Tucker (unreported, December 20, 2007, N.B.P.C.); R. v. Truk Khuu (unreported, December 5, 2007, N.B.P.C.); and R. v. Ambrose (K.) (2008), 332 N.B.R. (2d) 68, [2008] N.B.J. No. 241 (QL), 2008 NBPC 32 . [ 6 ] From Mr. Noel’s perspective, the Achilles’ heel of the Attorney General’s appeal lies in its premise.

In his submission, the facts that undergird the trial judge’s rejection of the officer’s key testimony regarding the grounds for arrest were established during the voir dire , primarily through the arresting officer’s testimony on cross-examination and re-direct. [ 7 ] For the reasons that follow, I would dismiss the appeal.

In brief compass, my reasons for so doing are: while it is true the trial judge’s reasons for decision feature forays outside the evidential record and appear, on the surface, oblivious of the rule against the use of extraneous information, her rejection of the officer’s key testimony – the smell of raw marihuana from the vehicle’s interior – is not umbilically tied to any such information. II. Context [ 8 ] In the Respondent’s Submission, Mr. Noel accepts as substantially correct the statement of facts found in the Appellant’s Submission.

That being so, I draw liberally from the latter document in providing the account that follows. [ 9 ] Two R.C.M.P. officers testified for the Crown on the voir dire , Constable Stéphane Raymond, the arresting and searching officer, and Constable Joseph Jacques Pierre Cloutier, who provided backup at the scene. A. The testimony of Constable Raymond [ 10 ] Cst. Raymond joined the RCMP two decades ago, more precisely in 1990. At that time, he received basic training relative to the enforcement of Canadian drug laws. From 1991 to 1994, Cst. Raymond was assigned to the Montreal Drug

Section where he received additional related training and experience. Subsequently, he spent several years in smaller communities in Quebec and New Brunswick where he was further exposed to controlled drugs and substances, including marihuana. While a member of the Moncton Roving Traffic Unit for the two years previous to Mr. Noel’s arrest, he was involved in some 80 vehicular searches and seizures of controlled drugs and substances, including marihuana. Though Cst.

Raymond was not called to offer expert opinion evidence, the Crown relied on his extensive experience and training to buttress his conclusion that what he smelled coming from Mr. Noel’s vehicle was indeed raw marihuana and, more generally, to inform the reasonableness – subjective and objective – of his grounds to arrest Mr. Noel. [ 11 ] In the late afternoon of June 20, 2006, while parked in a U-Turn area on the Trans-Canada Highway near Salisbury, New Brunswick, and accompanied by Jasper, a specially trained drug-sniffing dog, Cst.

Raymond observed an eastbound vehicle traveling in the passing lane at a speed slightly in excess of the posted limit. He decided to intercept the vehicle and warn its driver “about his speeding”. While in the process of taking chase, Cst. Raymond initiated a license plate query through his vehicle’s computer. The response (“no record found”), which was transmitted in short order, prompted an immediate activation of his vehicle’s emergency lights. The target vehicle’s driver obeyed the stop order in unremarkable fashion. [ 12 ] Cst. Raymond exited his vehicle and approached on the target vehicle’s passenger side.

Mr. Noel was its driver and sole occupant. Cst. Raymond advised him through the open front passenger window that he had been pulled over for the purpose of checking his vehicle’s registration certificate, there being no record for its license plate. After explaining his vehicle was a rental vehicle, Mr. Noel handed over the rental agreement. Cst. Raymond then asked Mr. Noel for his driver’s license, which he produced.

[ 13 ] Significantly, Cst. Raymond did not detect any suspicious odor at this time although he appears to have been in data-gathering mode, making a mental note of two cell phones and some food wrappers in the vehicle, but no luggage. If only for debate- defining purposes, I should immediately point out that the relevance, if any, of the last-mentioned observations remains unclear and, just as importantly, the Crown did not rely upon them to make the case that there were reasonable grounds to arrest Mr. Noel. [ 14 ] After collecting the documents mentioned above, Cst. Raymond returned to his patrol vehicle.

Upon reviewing the rental agreement, he realized the subject vehicle’s return was nine days overdue, a circumstance that caused him to seek clarification from the car rental agency. Following unsuccessful attempts at contacting the agency with his cellular phone, Cst. Raymond asked Cst. Cloutier, who had just arrived at the scene, to try with his own portable phone. Cst. Raymond then walked back to Mr.

Noel’s vehicle to advise him that efforts were ongoing to contact the rental company and that the investigative process would take a little longer. [ 15 ] Once at the window through which he had previously interfaced with Mr. Noel, Cst. Raymond would have been “hit by an odor of raw marihuana”. Not surprisingly, the credibility of that statement would take center stage during Cst. Raymond’s cross-examination once he confirmed that, but for that odor, Mr. Noel would have been released. At any rate, Cst. Raymond did not immediately confront Mr. Noel with the matter of the odor he testified to having detected.

Instead, he retrieved from Mr. Noel a phone number to call for rental details and returned to his colleague’s police vehicle. [ 16 ] Cst. Raymond asked Cst. Cloutier to dial the number in question. He did so and was advised by a representative of the rental agency that everything was in order and that “it was okay to let [Mr. Noel] go”. Cst. Raymond demurred, stating Mr. Noel would be arrested because of the odor of raw marihuana he had detected. [ 17 ] Immediately following Mr. Noel’s arrest for “possession of marihuana” and his removal from the rental vehicle, Cst.

Raymond undertook a search of the passenger compartment. While he did not find any marihuana in that location, the smell of raw marihuana “was getting stronger” during the search of the back seat area. As a result, Cst. Raymond proceeded to the rear of the vehicle where, after opening the trunk, he found a closed duffel bag, a search of which revealed numerous vacuum-sealed plastic bags of what looked like marihuana.

I note parenthetically that it was later determined there were 56 such bags, each weighing slightly more than half a pound, for a total of 30.8 pounds (14 kilograms). [ 18 ] Shortly after the marihuana’s discovery, Cst. Raymond decided (“for training purposes”) to put Jasper through a drug sniffing exercise. According to the officer, the dog’s reaction pointed to the presence of “narcotics” in the trunk. [ 19 ] Finally, and while still at the roadside, Mr. Noel was released from custody after promising to appear in court to be dealt with according to law. [ 20 ] On cross-examination, Cst.

Raymond explained he first approached Mr. Noel’s vehicle from the passenger side for personal safety reasons and so that he would have an unobstructed view of the interior, the point being that he was then in contraband investigation mode. He stated his second approach took place just a few minutes later and that “he was hit with a smell of raw marihuana” while standing at “the same place” as during his first exchange with Mr. Noel. Cst. Raymond also confirmed he did not enlist Cst. Cloutier’s assistance in corroborating his detection of an odor of raw marihuana, the sole basis for Mr. Noel’s arrest.

Additionally, Cst. Raymond acknowledged he did not deploy Jasper with a view to providing, prior to the arrest and search, support for his detection of an odor of marihuana. [ 21 ] Most importantly for our present purposes, Cst. Raymond was also queried on cross-examination and re-direct regarding the circumstances of his arrest of the accused in Khuu and Ambrose and his search of their vehicles, all of which took place within a few months of Mr. Noel’s arrest. In particular, Cst.

Raymond explained that, although “somewhere near […] 40 pounds of marihuana” were seized in each of the Ambrose and Khuu cases, he had not smelled “the marihuana in the vehicle”. He sought to explain his claimed ability to do so in the case at bar by speculating that the prevailing conditions, such as the number of layers of packaging and wind direction, may have been different. As will be seen, I delve more fully into Cst. Raymond’s testimony under “Analysis and Decision”. B. The testimony of Constable Cloutier [22] On June 20, 2006, at approximately 4:45 p.m., Cst.

Cloutier was traveling east on the Trans-Canada highway

when he noticed Cst. Raymond’s police vehicle parked on the roadside behind a grey Chevrolet Impala. He brought his police vehicle to a stop aft of Cst. Raymond’s. [23] At Cst. Raymond’s request, he contacted the rental company identified in the rental agreement provided by Mr. Noel and was advised the latter remained authorized to operate the vehicle. Cst. Cloutier then exited his police vehicle and informed Cst. Raymond of that state of affairs. Cst. Raymond responded: “It doesn’t matter, I smell the odor of marihuana, I’m going to arrest him.” [24] After the arrest, Cst. Cloutier placed Mr.

Noel in his police vehicle where he was informed again of the reason for his arrest, namely possession of marihuana, and advised of his rights under the Charter in both official languages. [25] On cross-examination, Cst. Cloutier acknowledged he had not attended at or near Mr. Noel’s vehicle to corroborate his colleague’s claimed detection of an odor of marihuana. C. The salient parts of the trial judge’s reasons for decision [26] After noting “the parties” had referred her to three other cases involving searches and seizures by Cst. Raymond, namely R . v. Oldford and Tucker ; R. v. Ambrose ; and R . v.

Truk Khuu , the trial judge detailed the facts of each.

She did so, at least insofar as the Ambrose and Khuu were concerned, because, in her view, their “factual underpinnings […] are relevant to the present case with regards to the reliability of the olfactory findings made by Officer Raymond and the circumstances under which these observations were made […] ”. [27] The trial judge recounted the facts of Oldford and Tucker in these terms: Officer Raymond and another officer were conducting patrol on the Trans Canada Highway in March of 2006 when they encountered another vehicle traveling in the opposite direction.

The vehicle was doing 115 kilometres an hour in a 110 zone. What really caught the officer’s attention was the sudden drop in speed to 105 km per hour. The officers decided to turn around and follow the vehicle. As they caught up to it, they noted it had Newfoundland plates which, upon verification, appeared to have been expired since May 2005.

They decided to stop the vehicle and, upon conversing with the occupants of the vehicle, they were told that it was recently purchased and they produced an application for vehicle registration dated February 2006 along with a “Dealer Temp” sticker clearly affixed to the rear license plate of the vehicle. The police officers wanted to verify that the vehicle identification number on the documents actually matched the one affixed to the vehicle to make sure this newly-purchased vehicle was not the product of a fraudulent VIN switch.

To that purpose, Officer Raymond opened the driver’s door to effect this verification so he could refer to the serial number located at the bottom of the door post. It is while doing this verification, with the door opened, and in a crouching position, that he was struck with an overwhelming smell of raw tobacco. Oldford and Tucker were arrested and a subsequent search of their vehicle revealed some 1200 bags of cigarettes hidden mainly inside different hockey equipment bags. The trial judge ended her consideration of Oldford and Tucker by noting Cst.

Raymond’s warrantless search of the vehicle in that case was found to be authorized at law as a search incidental to a lawful arrest. [28] The trial judge followed with an adumbration of the facts in Khuu : In R. v. Truc Khuu , an unreported decision […] dated December 5 th , 2007, Officer Raymond, while on patrol on Highway 2, saw a vehicle in front of him which went over the fog line twice and while travelling at a speed of 98 kilometers per hour in an area where the speed limit is 110 kilometers per hour. Officer Raymond decided to pull this driver over to check the driver for fatigue or impaired driving.

After he pulled the vehicle over, he requested the usual documents from Mr. Khuu who told Officer Raymond that the vehicle had been rented by his wife. He further explained that he had lost his driver’s license during a recent move from Ottawa to Montreal. A computer search failed to reveal a valid driver’s license in either Quebec or Ontario for Khuu. On checking the PIRS system, i.e. the Police Information Report System, it showed that Khuu was listed in a file implicating him with respect to marijuana and ecstasy.

Officer Raymond then contacted Avis, from which the vehicle had been rented, and, after speaking to a person in authority and explaining that Khuu did not have a valid driver’s license and that Khuu’s name was not on the rental agreement, he was further informed that the rental

agreement had expired. The Avis representative told Officer Raymond to keep the vehicle and tow it to the local Avis office in Moncton. Officer Raymond asked the Avis representative if he could search the vehicle as he believed the vehicle to be involved in illegal activity. Having been given this authorization, he searched the vehicle and in the trunk he found two well-taped boxes. He opened one and saw vacuum-sealed bags with marihuana in them.

The trial judge commented that, although the decision in Khuu did not clearly identify the quantity of marihuana seized, it had been “suggested during the cross-examination of Officer Raymond in the voir dire of the present case that the quantity was somewhere near 40 pounds”. [29] Finally, the trial judge turned her mind to the facts of Ambrose , a case that, in her view, bore “remarkable similarity to the instant case”: Officer Raymond stopped Mr. Ambrose, a young black man, because it appeared to him that when he observed the Ambrose vehicle driving past him on Highway 2, he appeared to be daydreaming.

When he queried the license plate, it showed no registered owner found. Mr. Ambrose produced a rental agreement. However, Officer Raymond testified that he was suspicious that the accused was carrying contraband as he had observed an air freshener on the rear view mirror, an energy drink, two cell phones and a duffle bag inside the vehicle. Officer Raymond, hoping for an opportunity to confirm his suspicion, told Kinte that he was free to go but asked him if he would not mind answering a few questions.

A conversation ensued during the course of which the questions became progressively more pointed until finally Officer Raymond asked Ambrose if he was carrying drugs and, by that time, Ambrose was showing overt signs of nervousness. Ambrose would have swallowed a couple of times, looked at the back of his vehicle and answered no. The reported decision […] clearly states at paragraph 48 that there were 44 pounds of marijuana in the Ambrose vehicle. The trial judge observed that, while the packaging of the contraband was not described in the reasons for judgment in Ambrose , Cst.

Raymond had agreed on cross-examination with the suggestion that it was “similar to the case at bar […], i.e. vacuum-sealed bags”. [30] The foundational considerations for the trial judge’s refusal to accept Cst. Raymond’s sworn evidence that he detected an odor of raw marihuana from Mr. Noel’s vehicle appear in the following excerpts from her reasons for decision: Officer Raymond stops a vehicle driven by a young black man ostensibly to enforce the Motor Vehicle Act .

While initially it was, according to his evidence, to give him a warning for speeding, eventually it becomes an issue with regards to his license plate. Noel provides him with a contract agreement and a contact phone number for the rental company. During the course of this conversation, the evidence clearly establishes that nothing is noted concerning any suspicious odours. A second visit to the Noel vehicle made in exactly the same conditions as the first encounter this time produces an odour of raw marijuana.

There is no intervening event, such as opening the vehicle’s doors as in the Oldford and Tucker ( supra ) decision. No reliable explanation is provided either as to why the same set of circumstances can give such a different result. Secondly, there are indeed instances where Officer Raymond’s olfactory abilities failed him, and this is certainly the case in the Ambrose and Khuu decisions. What is particularly troublesome is that it would appear from the cross-examination of Officer Raymond that the drugs were packaged in exactly the same fashion in these two arrests as they were in the present case.

It is also open to speculation why the officer, faced with his own obviously contradictory observations, did not simply verify something as highly subjective as a smell. This did not require much of an effort as he had the specially-trained narcotics dog in his police cruiser. As well, his partner was also at the scene.

The evidence clearly establishes that he did in fact use his search dog, but only after he had searched the vehicle. […] In the present case, Officer Raymond refers to an odour of raw marijuana, […] and this odour is only detected in his second interaction with the accused in circumstances that are highly problematic in terms of evidence reliability as I have discussed earlier. The only officer who smelled the marijuana is Officer Raymond. He had a colleague right at the scene and he had in his police vehicle a dog trained in narcotic detection.

[31] As mentioned, the trial judge ultimately concluded Mr. Noel’s arrest was “groundless” and that Cst. Raymond had undertaken it on a hunch. She came to that conclusion after considering “the circumstances elicited by the evidence” and recording her “considerable difficulty” with the officer’s testimony. While it is true the trial judge did not state she disbelieved Cst. Raymond’s testimony that he had smelled raw marihuana from within Mr. Noel’s vehicle, no other rational explanation for her rejection of his testimony on point emerges from the record.

After all, if she believed his evidence, the trial judge would arguably have had no choice but to find Mr. Noel’s arrest was founded upon reasonable grounds to believe he was in possession of a significant quantity of marihuana. In that regard, I find appealing the views expressed by Jackson J.A. in R. v. Janvier (2007), 302 Sask.R. 190, [2007] S.J. No. 646 (QL), 2007 SKCA 147 : With raw marihuana, in relation to a charge of possession, there is a direct relationship between the smell and the search for the source of the smell.

It will be possible for the police officer, and the court, to verify whether the smell is linked to what is found. This is the point that distinguishes this Court's decision in R. v. Sewell. The smell of raw marihuana is a sensory observation of the presence of raw marihuana, just as the sight of marihuana is. The smell of burned marihuana is a sensory observation of marihuana having recently been smoked. The latter, unlike the former, is not the offence that gives grounds for arrest without a warrant. [para. 44] III. Statutory Provisions [32] The relevant statutory provisions are attached as Appendix A. IV.

Analysis and Decision [33] Appeals from acquittals are relatively rare in Canada. That is the case primarily because of the quality of the adjudicative work performed by trial judges. It may also be, on occasion, a function of the narrow right of appeal conferred upon the Crown by the Criminal Code . Thus, under s. 676(1)( a ), the Attorney General may appeal to the court of appeal against a judgment or verdict of acquittal in proceedings by indictment only on a ground of appeal that involves “a question of law alone”.

Unlike the person convicted in such proceedings, the Attorney General may not seek leave to appeal on a ground that involves a question of fact or a question of mixed fact and law. That said, i n R. v. Biniaris , [2000] 1 S.C.R. 381 , [2000] S.C.J. No. 16 (QL) , 2000 SCC 15 , the Court explained that the word “alone” in s. 676(1)(

a) does not operate to minimize the pool of questions of law capable of triggering the provision’s application: Various arguments have been advanced, based on the implications that should flow from the use of the expression "question of law alone" in s. 676(1)(a), which provides for appeals by the Crown to the court of appeal. These arguments are of little assistance or consequence in determining the scope of access to this Court under ss. 691 or 693.

The use of that expression can be taken to mean either that the Crown has a right of appeal from an acquittal only on a question of law, or that there is such a thing as a "question of law alone", which is distinct from a "question of law". I think it means the former. It is used in contrast to the right of the accused to appeal both on questions of law, questions of fact, and questions of mixed fact and law (see s. 675(1)(a)(

i) and (ii)), and it is of no assistance in further defining the scope of the expression "question of law" in ss. 691 and 693. [para. 30] [34] In his book Criminal Procedure (Toronto: Irwin Law, 2008), Professor Steven Coughlan suggests the following constitute errors that can open the door to appellate intervention at the Attorney General’s behest: Some straightforward examples include the admissibility of evidence, the

interpretation of a statute, and whether evidence is capable of being corroborative. A decision concerning the application of a legal standard, such as investigative necessity, is also a question of law. Whether a correct conclusion has been reached on a Charter question, such as whether there has been a

section 10(

b) violation or whether evidence should be excluded under section 24(2) , is also a question of law. [p. 366, footnotes omitted] The author goes on to add that “matters can still be classed as questions of law even if they involve the consideration of the evidence in some way”. In Criminal Pleadings & Practice in Canada , 2 nd ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987) at para. 23:1010, the Honourable E.G. Ewaschuk provides a helpful inventory of matters that constitute pure questions of law.

The list includes: (1) the admissibility of evidence; (2) evidential relevance; (3) “conjectural possibility (speculation)”; (4) what constitutes corroborative evidence; (5) what is proper rebuttal evidence; (6) the trial judge’s failure to consider the evidence cumulatively, as opposed to separately; and (7) his or her failure to consider the evidence in its totality.

[35] In the present case, the Attorney General contends the trial judge committed a reversible error of law when she determined the pivotal issue of testimonial “reliability” on the basis of information drawn from sources outside the evidential record at her disposal. Mr. Noel’s assessment of the error attributed to the trial judge is, however, markedly different: he characterizes it as one impugning her finding of fact that the arrest was “groundless”.

On that view, it could be argued the Attorney General’s appeal raises a question of fact, and not a question of law alone, which, as I have noted, is the linchpin for this Court’s jurisdiction by virtue of s. 676(1) ( a ). [36] With respect, I understand the Attorney General’s complaint to be that the adjudicative process culminating in Mr. Noel’s acquittal offended the prohibition against the use of extraneous or extrinsic information.

That longstanding rule ordains that matters of fact are established by the introduction of evidence (see Watt's Manual of Criminal Evidence (Thomson Carswell: Toronto, 2009), at p. 111; Lazard Brothers & Co. v. Midland Bank , [1933] A.C. 289, at pp. 297-8 , per Lord Wright; Scarr v. Gower (1956), 1956 CanLII 276 (BC CA) , 2 D.L.R. (2d) 402, 18 W.W.R. 184 (B.C.C.A.); and R. v. Perkins (2007), 228 O.A.C. 120, [2007] O.J. No. 3246 (QL), 2007 ONCA 585 ).

As is well known, enabling legislation, admissions or judicial notice may expand the body of information which a trier of fact may draw upon in making findings of fact and credibility. However, no such legislation or admission is in play here and it is trite law that judicial notice cannot be taken of a fact simply because it was established in other judicial proceedings (see R. v. Skelton , 1967 CanLII 682 (BC SC) , [1968] 3 C.C.C. 35, [1967] B.C.J. No. 99 (S.C.)(QL); R. v. J.S. (1998), 38 W.C.B. (2d) 196, [1998] S.J. No. 247 (Prov. Ct.)(QL), at para. 44 ; and R. v. Kirton (2007), 214 Man.R. (2d) 59, [2007] M.J.

No. 299 (QL), 2007 MBCA 38 ). In my respectful judgment, the issue raised by the present appeal is as much a question of law as the issues inventoried in paragraph 34 above. That being so, there is no impediment to this Court’s assumption of jurisdiction.

I now turn to the merits of the appeal. [37] The Criminal Code provides a potential avenue of relief for RCMP highway patrol officers who believe that an indictable offence has been committed and that it would be impracticable to appear personally before a Provincial Court judge to make application pursuant to s. 487 for a warrant to search a vehicle stopped at roadside.

Section 487.1 is on point and provides that they may apply for a warrant by telephone or other means of telecommunication. That provision applies to indictable offences under the CDSA by virtue of s. 11(2) of that statute. Nothing in the record suggests that both processes under s. 487 and s. 487.1 were unavailable to Cst. Raymond. Had he obtained a search warrant, whether under s. 487 or s. 487.1 by means of his or Cst. Cloutier’s cellular phone, the onus would have been on Mr. Noel to establish the search of his vehicle was “unreasonable” within the meaning of s. 8 of the Charter .

As is well known, meeting that onus is relatively difficult having regard to the deference owed by the reviewing court to the issuing judge’s decision. On that score, suffice it to repeat the

summary of the applicable principles found in R. v. Allain (S.) (1998), 1998 CanLII 12250 (NB CA) , 205 N.B.R. (2d) 201 (C.A.), [1998] N.B.J. No. 436 (QL): The fact that Informations are subject to judicial scrutiny before a search warrant can be validly issued and the fact that the issuing judge's ultimate decision involves an exercise of discretion explain, at least in part, why any subsequent review must be undertaken from the standpoint that the impugned search warrant and Information are presumed valid. See Fontana, Law of Search and Seizure in Canada , 4th ed. (Toronto: Butterworths, 1997) at 72.

Since the Information is presumed valid, it follows that the burden rests on the challenger to satisfy the reviewing judge that it does not comply with the substantive requirements set by law. Moreover, the reviewing court must not assess the substantive quality of the Information by confining itself to the evidence which is explicitly set out in it. The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly stated evidence. This power has been recognized by our Court on several occasions. See R. v.

MacDonald (F.D.) (1992), 1992 CanLII 2806 (NB CA) , 128 N.B.R. (2d) 447 (C.A.), and Valley Equipment Ltd. v. R. (1998), 1998 CanLII 12245 (NB CA) , 198 N.B.R. (2d) 211 (C.A.). It has also been acknowledged by the Ontario Court of Appeal in the oft-quoted case of R. v. Breton (1994), 1994 CanLII 939 (ON CA) , 93 C.C.C. (3d) 171 (Ont. C.A.). In that case, the Court had no hesitation in deciding that the issuing judge had the power to draw the inference from the stated evidence that a particular individual had committed an offence, and that a narcotic was present at a particular location.

It is settled law that the issuing judge is fully empowered to make all reasonable deductions which flow logically from the evidence stated in the Information, and this power must be factored into the review process. Furthermore, the assessment by the reviewing court must take into account the totality of the Information, interpreting its constituent parts in context. See R. v. Arason (1992), 1992 CanLII 1008 (BC CA) , 78 C.C.C. (3d) 1 (B.C.C.A.), at p. 25.

It is therefore inappropriate to subject the Information to a microscopic analysis of its individual parts, each part being then viewed in isolation from its context. Finally, an overly strict

interpretation of the words used in the Information is not warranted by the jurisprudence, or by s. 8 of the Charter . This is particularly so where, as here, the evidence is uncontroverted that the deponent has acted in good faith throughout, and there is no evidence of fraud, reckless disregard for the truth, deliberate non-disclosure or intentional misstatement of the evidence. The reviewing court should be alive to the fact that, in most cases, the deponent is not trained in the niceties and subtleties of legal drafting. In this regard, I fully endorse the views expressed by Gibbs J.A. in R. v. Melenchuk (1993), 1993 CanLII 1011 (BC CA) , 24 B.C.A.C. 97, at para. 15 :

[15] ... It would be impractical to expect of an officer swearing an information in these circumstances the precise prose of an Oxford grammarian, the detailed disclosures of a confessional and the legal knowledge of a Rhodes scholar. That being said, the reviewing court must remain vigilant and not allow its tolerance for drafting errors or deficiencies to extend to material omissions with respect to substantive requirements. It is indeed trite law that a warrant should only be issued where there is a credibly based probability that the items to be searched for are in the place specified in it.

Where the Information does not expressly or by implication disclose the required reasonable grounds, the resulting warrant cannot be said to have been properly issued, and any search conducted under its authority can be challenged on the basis that it was not authorized by law. See R. v. Caslake , 1998 CanLII 838 (SCC) , [1998] 1 S.C.R. 51, at p. 60. [paras. 10-14] Needless to say, those principles may require tweaking to reflect the process contemplated by s. 487.1. [38] By proceeding without prior judicial authorization, Cst.

Raymond shifted to the prosecution the burden of establishing the search’s reasonableness (see Hunter v. Southam Inc. , 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36 (QL)). To discharge that burden, the Crown had to demonstrate Mr. Noel’s arrest was authorized under s. 495 of the Criminal Code . [39] Section 495(1) states that a peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, he or she believes has committed or is about to commit an indictable offence.

It also authorizes a peace officer to arrest without a warrant a person whom he or she finds committing any criminal offence. Section 495(2) provides, inter alia , that those powers of arrest may not be exercised in respect of a hybrid offence (one for which the person may be prosecuted by indictment or for which he or she is punishable on

summary conviction) or an offence punishable on

summary conviction, in any case where the officer believes on reasonable grounds that the public interest may be satisfied without an arrest and the officer “has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law”.

Section 495(3) goes on to prescribe that, notwithstanding s. 495(2), a peace officer acting under s. 495(1) is deemed to be acting lawfully and in the execution of his duty for the purposes of proceedings under any federal statute, “unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements” of s. 495(2). In the case at bar, it was not alleged that Cst. Raymond had failed to comply with the requirements of s. 495(2) when he arrested Mr. Noel. Rather, it was the defence’s contention that Cst.

Raymond had acted without the reasonable grounds required by s. 495(1). [40] Recall that Mr. Noel was arrested for “possession of marihuana”. For a long time possession of marihuana was a hybrid offence: no matter the quantity involved, the Crown had the option of proceeding by indictment or by

summary conviction procedure. That is no longer the case as a result of relatively recent changes to the CDSA . Now, possession of marihuana is a

summary conviction offence where 30 grams or less are involved and it is only a hybrid offence if that quantity is exceeded. Thus, it would appear that, where no more than 30 grams of marihuana are involved, a police officer may only arrest without warrant for possession of marihuana if he or she “finds” the target committing the offence (see the discussion of this more exacting standard in S.T.P. v. Canada (Director of Public Prosecutions Service) (2009), 281 N.S.R. (2d) 1, [2009] N.S.J. No. 378 (QL), 2009 NSCA 86 , MacDonald, C.J.N.S. for the Court).

Reasonable grounds will suffice only if the arrest-provoking offence is an indictable offence covered by s. 495(1). As the Court noted in R. v. Tontarelli (R.) (2009), 348 N.B.R. (2d) 41, [2009] N.B.J. No. 294 (QL), 2009 NBCA 52 , at para. 55 , “unless and until the Crown elects to proceed summarily under s. 4(4)(b) [of the CDSA ], possession of more than 30 g of cannabis (marihuana) is deemed to be an indictable offence” pursuant to s. 34(1)(

a) of the

Interpretation Act , R.S.C. 1985, c. I-1 . Of course, transporting marihuana for the purpose of trafficking and possession of marihuana for that purpose are also indictable offences, the former under s. 5(1) of the CDSA , the latter by virtue of s. 5(2). [41] Cst. Raymond testified he arrested Mr. Noel for “possession of marihuana”. That statement raises the following questions:

(1) In circumstances such as those revealed by the record, are reasonable grounds sufficient or does the arresting officer have to “find” the arrestee in possession of marihuana for the arrest to be lawful?; and

(2) Does a police officer who detects an odor of raw marihuana emanating from a vehicle “find” the driver in possession of marihuana? The first issue was addressed tangentially in R. v. Tontarelli where the Court observed: In assessing lawfulness for s. 495 purposes, courts need to focus on substantive reality, rather than the precise words used by the police, often in stressful and trying circumstances. Despite the particular words employed by Cpl. Looker to inform Mr. Matheson of the reasons for his arrest ("possession"), the reality of the total situation for all concerned was this: Mr.

Matheson was being arrested for trafficking (by transporting) and/or possession for the purposes of trafficking of the controlled drugs and/or substances in the trunk of the G6. Of course, that does not mean the justification offered contemporaneously with an arrest is invariably inconsequential. There are cases where the words actually employed by the arresting officer may prove troublesome for the prosecution (see R. v. LeBlanc (K.R.) (2007), 312 N.B.R. (2d) 321, [2007] N.B.J. No. 101 (QL), 2007 NBCA 24 , at paras. 16-27 , per Richard, J.A. for the Court).

However, the case at hand is far removed from any problematic category. Indeed, it can reasonably be supposed no one was under the impression that a small quantity of cannabis (marihuana) had passed (in the large duffle bag) from the Jimmy to the G6. As well, Cpl. Looker, Mr. Matheson and, for that matter, his fellow traveling companions had to understand the G6 was pulled over (with the involvement of 3

marked units and another unmarked police vehicle, and 5 police officers) for more than "simple" possession of drugs. Bluntly put, no reasonable observer would believe that a for-personal-use-only quantity of illicit drugs was ferried in the large duffle bag that passed between the two vehicles with out-of-province plates in the circumstances painstakingly described above. [para. 59] [42] Notwithstanding the justification for the arrest verbalized by Cst. Raymond at roadside, it is plain Mr. Noel was arrested for an indictable offence under the CDSA that is caught by s. 495(1).

Additionally, and perhaps more importantly, the case was argued both at trial and on appeal on the footing that Mr. Noel was arrested for such an offence. Thus, the issue at trial, as framed by the parties, was whether Cst. Raymond had the requisite reasonable grounds and the sole issue on appeal is whether extraneous information infiltrated and influenced the trial judge’s decision-making process in relation to that issue.

That being so, I am impelled to deal with the appeal as framed and conclude it is unnecessary to determine whether an officer meets the “finds committing” standard in circumstances where the sole ground for arresting the driver and only occupant of a rented vehicle is an odor of raw marihuana emanating from the vehicle’s interior. In that regard, I note that in S.T.P. v.

Canada (Director of Public Prosecutions Service) many factors beyond the smell of burnt marihuana “coalesced to justify the arrest” (para. 25) on the ‘finds committing” standard. [43] For this Court to set aside an acquittal and order a new trial, the Crown must do much more than simply show a mistake of law by the trial judge: it must convince this court that the error had a material bearing on the acquittal. In R. v. Graveline , [2006] 1 S.C.R. 609, [2006] S.C.J.

No. 16 (QL), 2006 SCC 16 , Fish J., writing for the majority, summarized the applicable standard in these terms: In many jurisdictions, as Cory J. observed in R. v. Evans , 1993 CanLII 102 (SCC) , [1993] 2 S.C.R. 629, at p. 645, the state has no right of appeal against the acquittal of an accused at trial. That is not so in Canada. Section 676(1) (

a) of the Criminal Code , R.S.C. 1985, c. C- 46 , provides that the Attorney General may appeal to the Court of Appeal “against a judgment or verdict of acquittal... on any ground of appeal that involves a question of law alone”. It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown.

It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal . The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different. This burden on the Crown, unchanged for more than half a century (see Cullen v. The King , 1949 CanLII 7 (SCC) , [1949] S.C.R. 658), was explained this way by Sopinka J., for the majority, in R. v.

Morin , 1988 CanLII 8 (SCC) , [1988] 2 S.C.R. 345: I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room.

That it cannot do. [p. 374] Speaking more recently for a unanimous court in R. v. Sutton , [2000] 2 S.C.R. 595, 2000 SCC 50 , the Chief Justice stated: The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen , 1976 CanLII 7 (SCC) , [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v.

Morin , 1988 CanLII 8 (SCC) , [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty” (p. 374). [para. 2] Generally, the errors alleged by the Crown in appealing against an acquittal go to the defence or defences upon which the accused relied at trial. For that reason, the impact of the errors on the verdict, if error is shown, will not be a mere matter of speculation. [paras. 13-17] [Emphasis added.] [44] In R. v. Pavlovszky (G.) (2005), 281 N.B.R. (2d) 42, [2005] N.B.J.

No. 24 (QL), 2005 NBCA 9 , Justice Deschênes, writing for the Court, described the test in these terms: For reasons fully explored above, the trial judge made several errors of law and did not apply the correct legal test in excluding Mr. Pavlovszky's statements in the police cruiser. But not every error of law is fatal in the sense of requiring a new trial. As held by the

Supreme Court of Canada in Vézeau v. The Queen , 1976 CanLII 7 (SCC) , [1977] 2 S.C.R. 277, it is the duty of the Crown to satisfy the appeal court that the verdict would not necessarily have been the same if the error in law had not occurred at trial. Acquittals are not to be lightly overturned. The onus is a heavy one which the Crown must satisfy with a reasonable degree of certainty: R. v.

Morin , 1988 CanLII 8 (SCC) , [1988] 2 S.C.R. 345 at 374. [para. 29] [45] It is hornbook law that, as a general rule, findings of fact and credibility stand to be made on the basis of the evidence placed before the trier of fact, whether judge or jury. In R. v. S. (R.D.) , 1997 CanLII 324 (SCC) , [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (QL) [ R.D.S. ] Major J. (dissenting on other grounds with Sopinka J. and Lamer, C.J.C.) commented on this fundamental aspect of principled decision-making: Trial judges have to base their findings on the evidence before them .

It was open to the appellant to introduce evidence that this police officer was racist and that racism motivated his actions or that he lied. This was not done. For the trial judge to infer that based on her general view of the police or society is an error of law. For this reason there should be a new trial. [para. 10] […] In my opinion the comments of the trial judge fall into stereotyping the police officer. She said, among other things, that police officers have been known to mislead the courts, and that police officers overreact when dealing with non-white groups.

She then held, in her evaluation of this particular police officer's evidence, that these factors led her to "a state of mind right there that is questionable". The trial judge erred in law by failing to base her conclusions on evidence. Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court.

The trial judge concluded the impugned part of her reasons with the following: "[a]t any rate, based upon my comments and based upon all the evidence before the court I have no other choice but to acquit." What did she mean by basing her judgment, in part, upon her own comments? Did she mean based on her stereotyping of police officers? Or, did she mean based on her comments analysing the evidence of the parties?

Based on the trial record what is clear is that the trial judge did not reach her conclusion on any facts presented at the trial. [paras. 19-21] [Emphasis added.] [46] In R.D.S ., there were four separate sets of reasons. Although they expressed divergent views over some key issues, the various opinions were unanimous in positing that, except in well-defined exceptional circumstances, the credibility of witnesses stands to be assessed and determined on the basis of the evidential record placed before the decision-maker.

See, as well, the authorities referenced in paragraph 36 of these reasons. [47] In the case at bar, the trial judge fell into error when she stated that the “factual underpinnings” of Ambrose and Khuu , which she identified by reference to the reasons for judgment in those cases, were relevant with regards “to the reliability of the olfactory findings made by Officer Raymond and the circumstances under which these observations were made as established by the evidence to the case at bar”. Only the “factual underpinnings” established by admissible evidence could be considered in determining whether Cst.

Raymond had indeed detected an odor of raw marihuana and, inarguably, some of the “factual underpinnings” referenced by the trial judge had not been so established. That said, consideration of extraneous information can only lead to the setting aside of an acquittal if the latter is shown to be the product of the former. Thus, reference to extraneous information will not constitute reversible error if it is offered as further support for a conclusion safely anchored to the evidential record; it will be otherwise if the information is “operative in [the judge’s] reasoning” (see R. v. Sappier; R. v.

Gray, [2006] 2 S.C.R. 686, [2006] S.C.J. No. 54 (QL), 2006 SCC 54 ). [48] The pivotal question is therefore clear: has the Attorney General discharged the burden of establishing that the trial judge’s error was operative in the reasoning that prompted her to reject Cst. Raymond’s sworn evidence that he detected an odor of raw marihuana? I would answer that question in the negative for the following reasons. [49] First, the trial judge states her view that the Crown’s failure to establish Cst.

Raymond had the requisite reasonable grounds is founded upon “a total assessment of the circumstances as elicited by the evidence ” (emphasis added). In my judgment, one can safely assume on the basis of the quoted statement that only the “factual underpinnings” of Ambrose and Khuu that had been “elicited by the evidence” played an outcome-shaping role. Second, on a fair reading of the reasons provided by the trial judge

for coming to that view, it appears the cumulative effect of the following circumstances was determinative: (1) “Nothing is noted concerning any suspicious odors” during the course of the first conversation between Cst. Raymond and Mr. Noel. However, inexplicably, “a second visit to the Noel vehicle made in exactly the same conditions as the first encounter this time produces an odor of raw marijuana”; (2) the marihuana seized from Mr. Noel’s vehicle was packaged “in exactly the same fashion” as in Ambrose and Khuu , yet Cst.

Raymond did not detect an odor of raw marihuana in those cases but claims to have done so here; (3) “faced with his own obviously contradictory observations”, Cst. Raymond declined to enlist the assistance of either his colleague, Cst. Cloutier, or Jasper, the specially trained drug sniffing dog, in corroborating, in a timely fashion, the sole justification for Mr. Noel’s arrest, the odor of raw marihuana; and (4) “The only officer who smelled the marijuana is Officer Raymond.

He had a colleague right at the scene and he had in his police vehicle a dog trained in narcotic detection”. [50] Each of these foundational circumstances is rooted in the evidential record. In particular, the trial judge could infer that the second visit to Mr. Noel’s vehicle was made “in exactly the same conditions” as the first. After all, Cst. Raymond testified the second visit to Mr. Noel’s vehicle occurred within a few minutes of the first and that, in each instance, he stood in the very same spot next to the open front passenger window.

Moreover, a careful review of the police officers’ testimony, in particular Cst. Raymond’s answers on cross-examination and re-direct, makes plain that the trial judge could reasonably conclude the following features are common to Ambrose , Khuu and the case at bar:

(1) Cst. Raymond was the arresting and searching officer; (2) the arrests and searches of the vehicles took place on the roadside; (3) no judicial authorizations were sought for either the searches or the arrests; (4) the contraband was marihuana; (5) the quantities were comparable (in the 30-44 pound range); (6) the marihuana was being ferried in the closed trunk of a passenger-type vehicle; and (7) the marihuana was packaged in vacuum-sealed bags.

The upshot of these observations is the following: although the trial judge committed an error of law in stating that the “factual underpinnings” in Khuu and Ambrose to which she referred were all relevant “with regards to the reliability of the olfactory findings” made by Cst. Raymond , that error was not operative in the reasoning that ultimately brought her to the conclusion that the Crown had failed to establish he had the requisite reasonable grounds to arrest Mr. Noel.

That conclusion and the reasoning that underlies it are founded upon the evidential record, the “factual underpinnings” of Ambrose and Khuu that actually influenced the outcome having been established by the evidence elicited at trial. V. Conclusion and Disposition [51] Following the respondent's arrest and a search of his vehicle incidental to that arrest, a significant quantity of marihuana was seized from the trunk.

At trial, the respondent was acquitted on a charge of possession for the purpose of trafficking ( s. 5(2) of the Controlled Drugs and Substances Act ) when the trial judge concluded: (1) the arrest was groundless and, therefore, unlawful; (2) the warrantless search that followed was unreasonable and violated the respondent's rights under s. 8 of the Charter ; and (3) the admission of the marihuana seized from the trunk would bring the administration of justice into disrepute. That finding led to the marihuana's exclusion from the record pursuant to s. 24(2) of the Charter .

There being no evidence to substantiate the charge, the respondent's acquittal followed. [52] The present appeal raises only one substantive issue. It is whether the Attorney General has established that information extraneous to the record had a bearing on the acquittal.

The Attorney General's specific and narrow complaint is that the trial judge brought into the mix unproven information distilled from other cases involving the arresting officer. [53] As mentioned in my introductory remarks, the trial judge’s reasons for decision do indeed feature forays outside the evidential record and appear, on the surface, to be oblivious of the rule against the use of extraneous information.

However, the Attorney General has not established that her rejection of the arresting officer’s key testimony in support of the grounds for the respondent’s arrest and, in turn, the legal justification for the incidental search of his vehicle, namely the smell of raw marihuana from its interior, is based upon any such information. It follows that any error on the trial judge’s part regarding the relevance of extraneous information did not have a material bearing on the acquittal and, for that reason, any such error does not constitute reversible error.

In the result, I would dismiss the Attorney General’s appeal against the respondent’s acquittal. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR:

___________________________________ WALLACE S. TURNBULL, J.A. ____________________________________ BRADLEY V. GREEN, J.A. APPENDIX A /

ANNEXE A Sections 487(1) , 487.1 , 495 and 676 of the Criminal Code of Canada , RS.C. 1985, c. C-46, read as follows: Le paragraphe 487(1) et les articles 487.1, 495 et 676 du Code criminel du Canada, L.R.C. 1985, ch. C-46 , sont rédigés comme suit :

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or ( c.1 ) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it, and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with

section 489.1. . . . 487.

(1) Un juge de paix qui est convaincu, à la suite d’une dénonciation faite sous serment selon la formule 1, qu’il existe des motifs raisonnables de croire que, dans un bâtiment, contenant ou lieu, se trouve, selon le cas :

a) une chose à l’égard de laquelle une infraction à la présente loi, ou à toute autre loi fédérale, a été commise ou est présumée avoir été commise;

b) une chose dont on a des motifs raisonnables de croire qu’elle fournira une preuve touchant la commission d’une infraction ou révélera l’endroit où se trouve la personne qui est présumée avoir commis une infraction à la présente loi, ou à toute autre loi fédérale;

c) une chose dont on a des motifs raisonnables de croire qu’elle est destinée à servir aux fins de la perpétration d’une infraction contre la personne, pour laquelle un individu peut être arrêté sans mandat; c.1 ) un bien infractionnel, peut à tout moment décerner un mandat autorisant un agent de la paix ou, dans le cas d’un fonctionnaire public nommé ou désigné pour l’application ou l’exécution d’une loi fédérale ou provinciale et chargé notamment de faire observer la présente loi ou toute autre loi fédérale, celui qui y est nommé :

d) d’une part, à faire une perquisition dans ce bâtiment, contenant ou lieu, pour rechercher cette chose et la saisir;

e) d’autre part, sous réserve de toute autre loi fédérale, dans les plus brefs délais possible, à transporter la chose devant le juge de paix ou un autre juge de paix de la même circonscription territoriale ou en faire rapport, en conformité avec l’article 489.1. [...] 487.1

(1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with

section 256 or 487, the peace officer may 487.1

(1) L’agent de la paix qui croit qu’un acte criminel a été commis et considère qu’il serait peu commode de se présenter en personne devant un juge de paix pour y demander un mandat de perquisition en

submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

(2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.

(2.1) The justice who receives an information submitted by a means of telecommunication that produces a writing shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the information certified by the justice as to time and date of receipt.

(3) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.

(3.1) A peace officer who uses a means of telecommunication referred to in subsection (2.1) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to his or her knowledge and belief and such a statement is deemed to be a statement made under oath.

(4) An information submitted by telephone or other means of telecommunication shall include (

a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; (

b) a statement of the indictable offence conformité avec l’article 256 ou 487 peut faire, à un juge de paix désigné par le juge en chef de la cour provinciale qui a compétence, une dénonciation sous serment par téléphone ou à l’aide d’un autre moyen de télécommunication.

(2) La dénonciation présentée par téléphone ou à l’aide d’un autre moyen de communication qui ne peut rendre la communication sous forme écrite est faite sous serment et consignée mot à mot dans un procès-verbal ou enregistrée mécaniquement par le juge de paix qui, dans les plus brefs délais, fait déposer auprès du greffier du tribunal de la circonscription territoriale où le mandat doit être exécuté le procès-verbal ou une transcription de l’enregistrement de la dénonciation; le juge de paix en certifie le contenu, la date et l’heure.

(2.1) Le juge de paix qui reçoit la dénonciation présentée par un moyen de télécommunication qui rend la communication sous forme écrite la fait déposer dans les plus brefs délais auprès du greffier du tribunal de la circonscription territoriale où le mandat doit être exécuté et il certifie la date et l’heure de sa réception.

(3) Pour l’application du paragraphe (2), un serment peut être prêté par téléphone ou à l’aide d’un autre moyen de télécommunication.

(3.1) L’agent de la paix qui présente une dénonciation de la façon prévue au paragraphe (2.1) peut, au lieu de prêter serment, choisir de faire une déclaration par écrit selon laquelle il croit vrais, au meilleur de sa connaissance, les renseignements contenus dans la dénonciation. Sa déclaration est réputée être faite sous serment.

(4) Une dénonciation faite par téléphone ou à l’aide d’un autre moyen de télécommunication comporte les éléments suivants :

a) un énoncé des circonstances qui rendent peu commode pour l’agent de la paix de se présenter en personne devant le juge de paix;

b) un énoncé de l’acte criminel présumé, des lieux qui doivent faire l’objet de la

alleged, the place or premises to be searched and the items alleged to be liable to seizure; (

c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and (

d) a statement as to any prior application for a warrant under this

section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.

(5) A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means of telecommunication (

a) is in respect of an indictable offence and conforms to the requirements of subsection (4), (

b) discloses reasonable grounds for dispensing with an information presented personally and in writing, and (

c) discloses reasonable grounds, in accordance with subsection 256(1) or paragraph 487(1)( a ), (

b) or ( c ), as the case may be, for the issuance of a warrant in respect of an indictable offence, may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued by a justice before whom the peace officer appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may require that the warrant be executed within such time period as the justice may order.

(6) Where a justice issues a warrant by telephone or other means of telecommunication, other than a means of perquisition et des objets que l’on prétend pouvoir y saisir;

c) un énoncé des motifs sur lesquels l’agent de la paix se fonde pour croire que des objets saisissables liés à l’infraction présumée se trouveront dans les lieux à perquisitionner;

d) un énoncé des autres demandes de mandat en vertu du présent

article ou de tout autre mandat de perquisition qui ont été faites à l’égard de la même affaire et dont l’agent de la paix a connaissance.

(5) Le juge de paix visé au paragraphe (1) peut décerner à un agent de la paix un mandat lui accordant les mêmes pouvoirs en matière de perquisition et de saisie que lui accorderait un mandat décerné en vertu du paragraphe 256(1) ou 487(1) à la condition d’être convaincu que la dénonciation faite par téléphone ou à l’aide d’un autre moyen de télécommunication remplit les conditions suivantes :

a) elle vise un acte criminel et rencontre les exigences du paragraphe (4);

b) elle démontre l’existence de motifs raisonnables pour exempter l’agent de la paix de se présenter en personne et de soumettre sa dénonciation par écrit;

c) elle démontre l’existence de motifs raisonnables pour décerner un mandat de perquisition à l’égard d’un acte criminel en conformité avec le paragraphe 256(1) ou les alinéas 487(1)a),

b) ou c), selon le cas. Il peut exiger que le mandat soit exécuté dans le délai qu’il fixe.

telecommunication that produces a writing, (

a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance; (

b) the peace officer, on the direction of the justice, shall complete, in duplicate, a facsimile of the warrant in Form 5.1, noting on its face the name of the issuing justice and the time, date and place of issuance; and (

c) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.

(6.1) Where a justice issues a warrant by a means of telecommunication that produces a writing, (

a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance; (

b) the justice shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (6)( b ); (

c) the peace officer shall procure another facsimile of the warrant; and (

d) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.

(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, before entering the place or premises to be searched or as soon as practicable thereafter, give a facsimile of the warrant to any person present and ostensibly in control of the place or premises.

(6) Dans le cas d’un mandat décerné par téléphone ou à l’aide d’un autre moyen de télécommunication qui ne peut rendre la communication sous forme écrite :

a) le juge de paix remplit et signe le mandat suivant la formule 5.1; il y indique l’endroit où le mandat est décerné, la date et l’heure;

b) l’agent de la paix, sur l’ordre du juge de paix, complète en double exemplaire un facsimilé du mandat selon la formule 5.1; il y indique le nom du juge de paix qui décerne le mandat, le lieu où le mandat est décerné, la date et l’heure;

c) le juge de paix, dans les plus brefs délais possible après avoir décerné un mandat, fait déposer le mandat auprès du greffier du tribunal de la circonscription territoriale où le mandat doit être exécuté.

(6.1) Dans le cas d’un mandat décerné à l’aide d’un moyen de télécommunication qui rend la communication sous forme écrite :

a) le juge de paix remplit et signe le mandat suivant la formule 5.1; il y indique la date, l’heure et l’endroit de sa délivrance;

b) il transmet le mandat à l’agent de la paix qui a présenté la dénonciation; la copie que reçoit l’agent de la paix est réputée être un fac-similé au sens de l’alinéa (6) b );

c) l’agent de la paix produit un autre fac- similé du mandat;

d) le juge de paix, dans les plus brefs délais possible après avoir décerné un mandat, fait déposer celui-ci auprès du greffier du tribunal de la circonscription territoriale où le mandat doit être exécuté.

(7) L’agent de la paix qui exécute un mandat de perquisition décerné par téléphone ou à l’aide d’un autre moyen de télécommunication, à l’exception d’un mandat décerné en vertu du paragraphe 256(1), doit, avant de pénétrer dans les lieux à perquisitionner ou dans les plus brefs délais possible par la suite, remettre un fac-similé du

(8) A peace officer who, in any unoccupied place or premises, executes a warrant issued by telephone or other means of telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, on entering the place or premises or as soon as practicable thereafter, cause a facsimile of the warrant to be suitably affixed in a prominent place within the place or premises.

(9) A peace officer to whom a warrant is issued by telephone or other means of telecommunication shall file a written report with the clerk of the court for the territorial division in which the warrant was intended for execution as soon as practicable but within a period not exceeding seven days after the warrant has been executed, which report shall include (

a) a statement of the time and date the warrant was executed or, if the warrant was not executed, a statement of the reasons why it was not executed; (

b) a statement of the things, if any, that were seized pursuant to the warrant and the location where they are being held; and (

c) a statement of the things, if any, that were seized in addition to the things mentioned in the warrant and the location where they are being held, together with a statement of the peace officer’s grounds for believing that those additional things had been obtained by, or used in, the commission of an offence.

(10) The clerk of the court shall, as soon as practicable, cause the report, together with the information and the warrant to which it pertains, to be brought before a justice to be dealt with, in respect of the things seized referred to in the report, in the same manner as if the things were seized pursuant to a warrant issued, on an information presented personally by a peace officer, by that justice or another justice for the same territorial division.

(11) In any proceeding in which it is material mandat à toute personne présente et apparemment responsable des lieux.

(8) L’agent de la paix qui exécute dans des lieux inoccupés un mandat de perquisition décerné par téléphone ou à l’aide d’un autre moyen de télécommunication, à l’exception d’un mandat décerné en vertu du paragraphe 256(1), doit, dès qu’il y pénètre ou dans les plus brefs délais possible par la suite, afficher un fac-similé du mandat dans un endroit bien en vue dans le lieu en question.

(9) L’agent de la paix à qui un mandat de perquisition a été décerné par téléphone ou à l’aide d’un autre moyen de télécommunication prépare un rapport dans les plus brefs délais possible mais au plus tard dans les sept jours suivant l’exécution du mandat; il dépose son rapport dans le même délai auprès du greffier du tribunal de la circonscription territoriale où le mandat devait être exécuté; le rapport comporte les éléments suivants :

a) une indication de la date et de l’heure de son exécution ou, si le mandat n’a pas été exécuté, une explication des raisons pour lesquelles il ne l’a pas été;

b) une mention, s’il y a lieu, des choses qui ont été saisies en vertu du mandat et une indication de l’endroit où elles sont gardées;

c) une mention, s’il y a lieu, des choses qui ont été saisies mais qui n’étaient pas mentionnées dans le mandat et une indication de l’endroit où elles sont gardées; dans ce cas, l’agent de la paix donne les motifs sur lesquels il se fondait pour croire que ces objets supplémentaires avaient été obtenus par la perpétration d’une infraction ou utilisés dans le cadre de celle-ci.

(10) Le greffier du tribunal visé au paragraphe (9) fait remettre dans les plus brefs délais à un juge de paix le rapport, la dénonciation et le mandat qui s’y rattache pour qu’il en soit disposé comme s’il s’agissait d’un mandat décerné par ce juge de paix ou un autre juge de paix de la même circonscription territoriale.

(11) Dans des procédures où il importe au

for a court to be satisfied that a search or seizure was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the justice and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the search or seizure was not authorized by a warrant issued by telephone or other means of telecommunication.

(12) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purposes of subsection (11). . . . tribunal d’être convaincu qu’une perquisition ou une saisie a été autorisée par un mandat décerné par téléphone ou à l’aide d’un autre moyen de télécommunication, l’absence du mandat original ou de la dénonciation signée par le juge de paix et comportant une mention des date, heure et endroit de sa délivrance est, en l’absence de toute preuve contraire, une preuve que la perquisition ou la saisie n’ont pas été correctement autorisées.

(12) Les copies ou fac-similés du mandat ou de la dénonciation ont, pour l’application du paragraphe (11), la même force probante que l’original. [...] 495.

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in

Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or 495.

(1) Un agent de la paix peut arrêter sans mandat :

a) une personne qui a commis un acte criminel ou qui, d’après ce qu’il croit pour des motifs raisonnables, a commis ou est sur le point de commettre un acte criminel;

b) une personne qu’il trouve en train de commettre une infraction criminelle;

c) une personne contre laquelle, d’après ce qu’il croit pour des motifs raisonnables, un mandat d’arrestation ou un mandat de dépôt, rédigé selon une formule relative aux mandats et reproduite à la

partie XXVIII, est exécutoire dans les limites de la juridiction territoriale dans laquelle est trouvée cette personne.

(2) Un agent de la paix ne peut arrêter une personne sans mandat :

a) soit pour un acte criminel mentionné à l’article 553;

b) soit pour une infraction pour laquelle la personne peut être poursuivie sur acte d’accusation ou punie sur déclaration de culpabilité par procédure

sommaire;

c) soit pour une infraction punissable sur déclaration de culpabilité par procédure

sommaire,

(

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). dans aucun cas où :

d) d’une part, il a des motifs raisonnables de croire que l’intérêt public, eu égard aux circonstances, y compris la nécessité : (

i) d’identifier la personne,

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