2010 QCCA 2229, 2010 QCCA 2229

Unofficial English Translation Hallé c. R. 2010 QCCA 2229 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-003892-070 (705-01-041034-051) DATE: DECEMBER 6, 2010 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. GUY GAGNON, J.A. PATRICK HALLÉ APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT ; - On the appeal from a judgment rendered on May 31, 2007, by the Court of Quebec, District of Joliette (the Honourable Judge François Landry), which convicted the appellant of the offence of producing cannabis (marihuana); [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Gagnon J.A., with which Chamberland and Léger JJ.A. agree; [ 4 ] DISMISSES the appeal. JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. GUY GAGNON, J.A.

Mtre Marco Labrie For the appellant Mtre Louis-Christian Boisvert Criminal and Penal Prosecuting Attorney For the respondent Hearing date: September 16, 2010 REASONS OF GAGNON J.A.

[ 5 ] On January 17, 2007, the appellant’s motion to exclude evidence, under sections 7 , 8 , and 9 and subsection 24(2) of the Canadian Charter of Rights and Freedoms (hereinafter the Charter ), [1] was dismissed by François Landry J. of the Court of Quebec. On May 31, 2007, the judge convicted the appellant of the offence of producing a substance identified as cannabis (marihuana). [2] The appellant appeals. [ 6 ] On September 3, 2004, at 4:05 a.m., Officer Hamelin, accompanied by Officer Heine, caught a burnt orange Nissan Murano vehicle on radar.

The vehicle was travelling at a speed of 178 km/h in a 100 km/h zone. [ 7 ] According to the officers, they tried to catch up to the vehicle without turning on their flashing lights in order to avoid creating a dangerous situation. As their vehicle was stationary during the radar operation, they were unable to get close enough to the Nissan Murano to intercept it. Nevertheless, before they lost sight of the vehicle near the village of Sainte-Julienne, they saw it running a red light. They informed Officers Arcand and Villeneuve of the situation.

Officers Arcand and Villeneuve then began searching for the suspect vehicle. [ 8 ] In the moments that followed, near a house located at..., Officers Arcand and Villeneuve saw a cloud of dust and noticed fresh tire tracks on the pavement, on the shoulder and on the grass, and they smelled burnt rubber. They informed Officers Hamelin and Haine of their observations. Officers Hamelin and Heine, who were patrolling nearby, arrived shortly thereafter.

They too saw recent skid marks and brake marks on the shoulder. [ 9 ] The officers saw, in the driveway of the neighbouring yard, a burnt orange Nissan Murano vehicle parked near a residence, with the front of the vehicle facing the road. [ 10 ] As the lights in the house were on, Officer Arcand knocked on the door. The occupant (the appellant) answered the door and the officer informed him that she and her fellow police officers were investigating Highway Safety Code infractions. The appellant immediately admitted to being the driver of the vehicle.

During this brief exchange, Officers Arcand and Villeneuve smelled an odour that they associated with cannabis cultivation. The appellant was arrested on the spot and a search warrant was then executed leading to the seizure of a significant number of cannabis plants that were being grown inside the house. He subsequently made an incriminating statement whose free and voluntary nature is not at issue.

Judgment of the Court of Quebec [ 11 ] At trial, the appellant argued that the intrusion of police officers upon his property to inspect the vehicle and identify its driver led to an arbitrary arrest followed by an unreasonable search. [ 12 ] Seized of a motion to exclude evidence under subsection 24(2) of the Charter , the trial judge deemed that the police officers, at the time of their operation, had the owner’s implicit authorization to enter upon the premises. The judge expressed that he was of the opinion that sections 48 and 50 of the Police Act [3] and

section 72 of the Code of Penal Procedure [4] authorized the police officers to conduct an investigation to ascertain the identity of the driver of the vehicle. In the judge’s words: [TRANSLATION] The police officers were attempting to intercept the vehicle and lost sight of it… and the sweep and the clues they discovered led them to the place where a vehicle of the same make and colour was found.

On these grounds, the police officers had the right to enter upon the property, check if the vehicle was still hot and continue their investigation in order to ascertain the identity of the driver of the vehicle. [5] [ 13 ] The judge added that, even if the appellant’s constitutional rights had been infringed, the grounds to admit the evidence would override those to exclude it. [ 14 ] The guilty verdict was rendered after consent to various elements of evidence [6] was filed and after counsel for the appellant made the following statement: [TRANSLATION] All these facts, there’s an admission, your Honour, from reading the evidence adduced, you will conclude that the Crown has discharged its burden, in this regard.

Grounds of appeal [ 15 ] The appellant raises the following issues: 1. Did the trial judge err in law by not finding that the search conducted by the police officers was unlawful and contrary to sections 7 , 8 , and 9 of the Charter ? 2. Did the trial judge err in law by not ordering that the evidence obtained from the searches be excluded, pursuant to subsection 24(2) of the Charter ? Analysis

[ 16 ] The appellant asserts that he did not flee from the police officers, as they never signalled their intention to intercept him. He contends that

section 85 of the Code of Penal Procedure , [7] which allows police officers to pursue a person fleeing from arrest and to arrest him in the place where he is taking refuge, does not apply here. In short, the appellant argues that, without this provision to rely on, the peace officers had no right to enter upon the property where the suspect vehicle was parked.

Section 85 provides that: 85. A peace officer who has reasonable grounds to believe that a person is fleeing from arrest may pursue him into the place where he is taking refuge. [ 17 ] Although the appellant was not the subject of an actual hot pursuit, [8] nothing prevented the officers from investigating the offences they had just witnessed. [ 18 ] The Police Act provides that: 48.

The mission of police forces and of each police force member is to maintain peace, order and public security, to prevent and repress crime and, according to their respective jurisdiction as set out in sections 50 and 69, offences under the law and municipal by- laws, and to apprehend offenders . [9] [Emphasis added.] [ 19 ] It can be inferred from this provision that apprehending perpetrators of criminal and penal offences is part of the general mandate of peace officers.

The law also provides that the Sûreté du Québec has jurisdiction to enforce law throughout Quebec. [10] In addition to these statutory powers, there are the common law powers vested in police officers to carry out their duties. Author Maurice Gabias writes: [TRANSLATION] The general mandate entrusted to peace officers under

section 48 of the Police Act described earlier covers certain obligations imposed on police officers by common law.

Although these obligations have not yet been specifically defined by the courts, the Supreme Court, in Dedman , held that they include the preservation of peace, the prevention of crime, and the protection of life and property. [11] [ 20 ] In Ladouceur , our Court identified the sources of the various powers conferred on peace officers, including the power to investigate: [TRANSLATION] [28] The powers conferred on police officers to perform their duties effectively, including their power to investigate, come from many sources: from the Criminal Code , which sets out the powers vested in peace officers and the rules to follow; from the various statutes creating police forces (e.g., the Police Act , R.S.Q., c.

P-13, sections 37, 38 , and 39 ), or from certain special provincial statutes (e.g. the Highway Safety Code , R.S.Q. c. C-24.2); and lastly, from common law, which confers on police officers powers ancillary to the performance of their statutory duties, e.g., the possible continuation of an investigation, the power to arrest and the search incidental to the arrest. [12] [ 21 ] I conclude from the foregoing that the power to investigate is closely linked to the duties conferred by statute and by common law on peace officers.

The performance of these duties, however, is subject to respect for the rights protected under the Charter . [ 22 ] The provisions of the Code of Penal Procedure and of the Highway Safety Code do not specify how peace officers may exercise their power to investigate. In such cases, we must refer to common law principles to determine the scope of permissible police action: [45] . . .

The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute . . . . [13] [ 23 ] To assess the reasonableness of a peace officer’s actions, the Supreme Court, in Dedman v. R. , [14] cites with approval the following passage from the English Court of Appeal in the famous R. v. Waterfield [15] case.

In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (

a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (

b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. [16] [ 24 ] In light of the circumstances of the present case, I agree with the trial judge’s conclusions. There is no unlawful interference here with the appellant’s property rights, let alone interference with his liberty.

The peace officers’ investigation came about as they were performing a duty conferred on them by statute [17] and by common law. Their conduct does not suggest any “ unjustifiable use of powers associated with the duty ”. [18] [ 25 ] It should be noted that the events that led to the police action concern only the application of the Highway Safety Code [19] – speeding caught on radar and running a red light. [ 26 ] After failing to catch up to the Nissan Murano, the police officers made the following observations in the moments that followed: (

i) a cloud of dust caused by a passing vehicle;

(ii) recent tire tracks on the shoulder and on the grass opposite the place where the wanted vehicle was parked; (iii) the smell of burnt rubber. [ 27 ] Near the area where these observations were made, the officers recognized the vehicle in a driveway adjacent to a residence, which had lights on inside. The vehicle was dirtied with mud, and grass was jammed into the rear bumper and into the exhaust pipe.

It was a burnt orange Nissan Murano whose engine hood was still hot. [20] [ 28 ] There were enough serious clues there to conclude that the Nissan Murano vehicle that was travelling at 178km/h at 4:05 a.m. was the one found by the police officers, 15 minutes later, in the driveway adjacent to a residence.

These facts authorized the police officers to enter upon the appellant’s property to conduct their investigation in a reasonable manner. [ 29 ] In the circumstances, the officers could presume that they had the right to enter onto the property, knock on the door of the residence, and request information to identify the driver of the vehicle. Their obligation to enforce laws and by-laws [21] allowed them to do so.

Moreover, the evidence shows that the officers did not abuse their power and that their actions did not go any “ further than is required to permit convenient communication with the occupant of the dwelling ” . [22] [ 30 ] Pidgeon J.A., as he was then, wrote in R. v. Cotnoir : [TRANSLATION] If the conduct of police officers who enter onto a private property is an implicitly authorized type of activity, no violation of privacy rights can be alleged.

Conversely, if police conduct goes beyond what is implicitly authorized, the police officers become intruders violating the privacy rights of the occupant. [23] [References omitted.] [ 31 ] The following passage from Officer Arcand’s testimony clearly shows the real reason for the police action: [TRANSLATION] I knocked on the door, someone opened, a man opened the door, and at that moment, I informed him that we were conducting an investigation here because we saw his vehicle, or at any rate, at least, a similar vehicle, speeding at one hundred seventy-eight (178) and also for the red light, and that we wanted to know if he knew the occupant of the vehicle, the owner of the vehicle . [Emphasis added.] [ 32 ] When they addressed the appellant, the officers did not know the identity of the person they were addressing or whether he had any connection to the suspect vehicle.

They were simply trying to identify the driver of the vehicle and were not in any way searching for evidence related to cannabis production. [ 33 ] The appellant claims that he was detained as soon he opened the door for Officer Arcand. She, however, clearly explained to him why she was there. The appellant did not have to comply with a restrictive request, nor was he subjected to a psychological or physical restraint.

The words used by Officer Arcand during her brief conversation with the appellant were not such as to make a reasonable person, who is not particularly vulnerable, feel psychologically restrained so that they believe their right to liberty has been suspended within the meaning of sections 9 and 10 of the Charter . [24] In short, at this stage in the chronology of events, the appellant was not detained and certainly not under arrest. [ 34 ] Officers Arcand and Villeneuve smelled a strong odour coming from inside the house and concluded that a criminal activity was ongoing at the time when the appellant consented, without any form of coercion, to open the door of his residence.

It was therefore while legitimately carrying out their police duties, permitted by statute and by common law, that they discovered the commission of a crime unrelated to their investigation. [ 35 ] The odours detected by Officers Arcand and Villeneuve were not the result of a search for incriminating evidence of narcotics cultivation. [25] Rather, they were the result of fortuitous circumstances that led the officers to have reasonable grounds to believe that a criminal offence was being committed [26] that justified the appellant’s arrest. [27] [ 36 ] That said, I find, as did the trial judge, that even had the appellant’s constitutional rights been infringed, the circumstances of the matter militated in favour of including the evidence.

On the issue, the judge stated: [TRANSLATION] …the Court concludes, on

section 24, that considering the good faith of the police officers, they had reasonable cause to go to that address, given that the infringement, their entering upon the property, touching the vehicle, was minimal... [28] [ 37 ] Drawing upon the Supreme Court’s teachings in R. v. Grant , [29] I do not find fault with the officers’ conduct.

Their good faith is not at issue and their attitude towards the appellant was in no way vindictive or oppressive. [ 38 ] Concerning the effect of the infringement, to the extent that it was proven, clearly the cannabis plants being grown were evidence likely to have been discovered as soon as the appellant opened the door. If the appellant’s rights were infringed, the seriousness of this infringement, if not inexistent, must be regarded as minimal. [ 39 ] As for society’s interest in seeing a decision rendered on the merits, the seized drugs are reliable evidence and essential to the Crown’s case.

In addition, the appellant was not conscripted against himself. The interest of society thus militates in favour of including the evidence. Cannabis production is a serious offence requiring a massive police effort to fight its spread. Is it necessary to underline that the criminal activity in question concerns the production of 1419 cannabis plants. I therefore believe that the circumstances surrounding the obtaining of the evidence were not such as to bring the administration of justice into disrepute, but rather that excluding

the evidence would have likely done so. [ 40 ] One final point should be made. R. v. Grant [30] reminds us that in such a case “appellate courts should accord considerable deference to [the trial judge’s] ultimate determination”. [31] The Supreme Court recently reiterated this principle in R. v. Beaulieu . [32] [ 41 ] For these reasons, I would dismiss the appeal. GUY GAGNON, J.A.