London (City) v. Burke, 2022 ONCJ 369

ONTARIO COURT OF JUSTICE CITATION: London (City) v.

Burke , 2022 ONCJ 369 DATE: August 15, 2022 COURT FILE No.: 2311-999-00-8790467B-00 BETWEEN: THE CORPORATION OF THE CITY OF LONDON — AND — RYAN BURKE Before Justice Glen Donald Heard on April 4, 2022 Reasons for Judgment released on August 15, 2022 A Oakey................................................................................. for the Prosecutor/respondent R Lafleur.............................................................................. student-at-law for the appellant DONALD J.: [ 1 ] After a trial before Justice of the Peace Leddy, Ryan Burke (the appellant) was convicted of “transporting cannabis in a motor vehicle” an offence contrary to s. 12(1) of the Cannabis Control Act (the ‘ CCA’ ). [ 2 ] He appeals his conviction on this basis that the Justice of the Peace made up to four legal errors, each in some way related to statutory

interpretation, which he says renders the conviction unsustainable. According to the appellant, those errors are:

(1) Relying on the intent of the legislature to the exclusion of other, equally important, statutory principles to define “baggage”;

(2) Defining “baggage”, as set out in s. 12(2)(

b) of the CCA too narrowly;

(3) Concluding, without sufficient reasons, that a closed center console is not “baggage”;

(4) Failing to consider, and make findings on, disputed facts related to the locking mechanisms of the containers in question. More specifically, failing to find that the containers were “fastened closed”. The Relevant Law [ 3 ] Section 12(1) of the CCA provides: No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

[ 4 ] Section 12(2) of the CCA provides two exceptions to this prohibition: (

a) If in its original packaging and has not been opened; (

b) If packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat . [ 5 ] Only the first clause of s. 12(2)(

b) of the CCA bears directly on this appeal; the appellant does not suggest that the cannabis was not readily available to him. The Undisputed Facts [ 6 ] The facts of the case are uncomplicated. The appellant was driving his vehicle and was stopped by the police. A lawful search of the vehicle’s unlocked center console revealed two smaller plastic containers each about the size of a small prescription pill bottle. When located, both of the containers was closed with a lid. Inside each of the containers was a small quantity (less than 7 grams) of cannabis.

The Disputed Facts [ 7 ] One lid only opened if depressed at the same time as being twisted. The other opened by depressing a button while simultaneously applying pressure to the lid.

While there was diverging viva voce evidence on the point, for the purposes of this appeal, I will conclude that two hands were necessary to either of these containers. [1] Regardless, the evidentiary record is clear, the lids in question are of the sort that most adults would readily open without a great degree of exertion, agility or training; simply put, each container was “childproofed”. [ 8 ] While there was a dispute about this at trial, for the purposes of disposing of this appeal I accept that, both lids required a nominal amount of manual dexterity to open. [2] [ 9 ] Furter on, I will independently deal with the appellant’s complaint that the learned Justice of the Peace did not determine whether the lids in question were “fastened closed”.

The Argument at Trial [ 10 ] At trial, the appellant argued that the way he transported his cannabis allowed him access to the “is packed in baggage that is fastened closed” portion of the exception provided in s. 12(2)(

b) of the CCA . [3] The learned Justice of the Peace concluded that it did not and convicted him. [ 11 ] The Appellant says that the reasons for conviction were polluted by legal errors. As a result, he asks me to overturn the conviction and enter an acquittal. The Arguments on Appeal 1.

Did the Justice of the Peace err by relying on the intent of the legislature to the exclusion of other, equally important statutory principles in defining “baggage”? [ 12 ] The written reasons provided by the Justice of the Peace demonstrate the steps he took to define the word “baggage”. [ 13 ] First, he considered the legislative intent of the CCA . In so doing he quite properly noted that the timing of the passing of the CCA closely coincided with the federal government’s legalization of the use and possession of small quantities of cannabis.

He also considered the legislative debate leading to the passage of the CCA during which the Minister of Transportation noted the importance of insuring road safety resulting from the shift to legalized cannabis use. This led the trier of fact to conclude, at paragraph 25, that the legislative intent the CCA was, like its counterpart the Liquor Licence Act , public welfare legislation designed with the intention to prevent impaired driving.

About this there can be no serious debate and the appellant does not suggest otherwise. [ 14 ] Then, the learned Justice of the Peace turned to the Oxford English dictionary which offered him the following

definitions. Baggage: Suitcases, bags, etc. packed for travelling; luggage. Bag: 1. a receptacle of flexible material with an opening at the top. 2 a (usu. in pl. ) a piece of luggage ( put the bags in the trunk). b a woman’s handbag Luggage: Suitcases, bags, etc. to hold a traveller’s belongings [ 15 ] The Justice of the Peace’s reasons make plain the fact that he was aware that the Supreme Court of Canada has often endorsed Elmer Driedger’s modern approach to approach to statutory

interpretation: "Today there is only one principle or approach, namely, the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament ."

(Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed (Markham: LexisNexis, 2014) at para 2.1.) [ 16 ] Then, the Justice of the Peace amalgamated the dictionary definition of the word “baggage” in light of the context of intent of the legislature in order to draw the conclusions he did as it relates to the “containers” in question. [ 17 ] Therefore, I see no merit in the appellant’s submission that the Justice of the Peace erred by relying on the intent of the legislature to the exclusion of other, equally important, statutory principles in concluding that the “containers” in question did not constitute baggage.

Instead, his reasons reveal a near textbook approach to the issue. Consequently, this ground of appeal fails. 2. Did the Justice of the Peace err by too narrowly defining the term “baggage”? [ 18 ] The Appellant complains that learned Justice of the Peace restricted “relatively small containers” from the class of objects that constitute “baggage” under the CCA .

To demonstrate the point the Appellant raises the hypothetical of a motorist using a “smaller securely closed steel safe” used to transport cannabis in a motor vehicle and suggests as a result that size must therefore be irrelevant to the determination of what constitutes “baggage” because ignoring it would lead to absurd results. [ 19 ] In raising this hypothetical, the appellant seems to ignore s. 12(2)(

b) of the CCA, which provides an exception for open cannabis that is “not otherwise readily available to any person in the vehicle”. The hypothetical, in my view, does not demonstrate an error in the logic of the presiding Justice of the Peace. [ 20 ] Indeed, the CCA makes no reference to the size, shape or material that could constitute “baggage”. However, this does not mean that those factors are irrelevant to the determination of what constitutes “baggage” in any case.

For example, any person who has ever boarded an aircraft would know that size is often the very starting point for a determination as to what constitutes “baggage”. [ 21 ] Having properly positioned himself to define what is captured by the definition of “baggage” the Justice of the Peace concluded that the containers, pill bottles, within the center console were not baggage. [4] [ 22 ] This was his decision to make and there is no error to be found with this conclusion. This ground of appeal also fails. 3.

Did the Justice of the Peace err by excluding the center console from his definition of “baggage”? [ 23 ] The appellant asserts that the Justice of the Peace failed to consider whether the center console of a motor vehicle fits the definition of “baggage”.

The appellant contends that this failure is a reversable error requiring a new trial. [ 24 ] A review of the submissions at trial reveals that that this proposition was not put to His Worship [5] , and I would dismiss this ground of appeal on that basis. [ 25 ] The center console of a motor vehicle is an immovable storage compartment whose very purpose is to make its contents readily accessible to the driver.

A finding that the center console constitutes “baggage” would defeat the very purpose of the legislation. [ 26 ] In oral submissions on the appeal the appellant suggested that containers (pill bottles) that were in the center console, when considered together, could be viewed as being inside “baggage”. [ 27 ] I disagree with this proposition – which also was not put to his Worship at trial. [ 28 ] “Baggage” needs to be defined following a process of statutory

interpretation completed by his Worship. The act of putting cannabis in a container within a container, neither container meeting the definition of baggage on its own, will generally not cause the series of containers, when viewed collectively, to be considered baggage. [ 29 ] However, it may well be that, at some stage, transporting cannabis inside some sort of makeshift matryoshka/babushka, could allow a motorist access to the “not otherwise readily available exception” provided in s. 12(2)(

b) of the CCA. 4. Did the Justice of the Peace err by failing to consider, and make findings on, disputed facts related to the locking mechanisms of the containers in question? More specifically, did the Justice of the Peace err by failing to find that the containers were “fastened closed”? [ 30 ] The wording of s. 12(2)(

b) of the CCA makes plain that a finding that the cannabis is within “baggage” is a condition precedent to the relevance of the phrase “fastened closed”. Having found that the containers were not “baggage” it became unnecessary for the Justice of the Peace to consider whether the “baggage” was “fastened closed”. [ 31 ] A trier of fact is not obliged to resolve factual disputes that are not germane to the outcome of the case. [ 32 ] Moreover, the appellant was not in any way prejudiced by his Worship’s non-determination of this issue. Therefore, this ground of appeal also fails. [ 33 ] The result is that the appeal is dismissed and the conviction upheld.

[ 34 ] During submissions, counsel advised that they would benefit from guidance surrounding these exceptions. Given the backlog resulting from pandemic shutdowns I am I inclined to oblige the request. [ 35 ] A determination concerning the application of s. 12(2)(

b) requires a contextual assessment informed by the underlying purpose of the legislation: enhancing road safety by reducing the risks that a driver might be tempted to consume cannabis while driving [6] . [ 36 ] Therefore, I also accept that “packed in baggage fastened closed” must be read together with “ or is not otherwise readily available to any person in the vehicle or boat” [7] . [ 37 ] Given the intent of the legislation and wording of the exception that there exists a close direct relationship between the proximity of the cannabis container to the occupants in the vehicle and the level of judicial scrutiny one ought to expect over the terms -“baggage”, “fastened closed” and “packed in”.

Released: August 15, 2022 Signed: Justice Glen Donald