R. v. Stewart Date:, 2012 BCPC 311

Citation: R. v. Stewart Date: 20120905 2012 BCPC 0311 File No: 26342 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KRISTOPHER DORIAN STEWART RULING ON VOIR DIRE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Agent for the Director of Public Prosecutions: A. Penner Advocate for the Defendant: G. Jackson Place of Hearing: Prince Rupert , B.C. Date of Hearing: May 7, 2012 Date of Defendant's Written Submissions: June 8, 2012 Date of Director of Public Prosecutions Written Submissions: July 13, 2012

Date of Defendant's Reply: July 18, 2012 Date of Judgment: September 5, 2012 INTRODUCTION [ 1 ] The Accused, Kristopher Dorian Stewart (Mr. Stewart), is charged on Information 26342 that on April 23, 2010 in Prince Rupert, British Columbia, he was in possession of Cannabis (marijuana) contrary section 4(1) of the Controlled Drugs and Substances Act . [ 2 ] Mr. Stewart was arrested by Cst. Edward Wells of the Royal Canadian Mounted Police (RCMP). Mr. Stewart contends the Cst. Wells breached his rights under

Section 8 (the right to be secure against unreasonable search or seizure) and

Section 9 (the right not to be arbitrarily detained or imprisoned) of the Charter of Rights and Freedoms ( the Charter ). [ 3 ] At the request of Defence counsel a Voir Dire was conducted to determine whether or not Mr. Stewart's Charter rights had been breached and what remedy, if any, should be granted if a breach occurred. VOIR DIRE EVIDENCE [ 4 ] In the Voir Dire the Court heard evidence from Cst. Wells and Mr. Stewart's father, Blair Stewart. [ 5 ] A

summary of Cst. Wells’ evidence in direct and cross-examination follows. [ 6 ] At the time of these events Cst. Wells had been a RCMP member for approximately 6 months. Prior to joining the RCMP he had worked for Environment Canada, Canada Customs and Revenue Agency and as a security officer in an Ontario casino. In all of those previous employments he had both training and extensive experience in identifying and dealing with people who were impaired by alcohol or drugs. [ 7 ] Cst.

Wells said that on April 23, 2010, he was on general duty, dressed in a RCMP uniform, and patrolling Prince Rupert in a fully marked RCMP vehicle. At approximately 0400 hours he observed a male, later identified as Mr. Stewart, perambulating along McBride Street, also known as Highway 16, in a manner that attracted his attention. [ 8 ] Mr. Stewart was swaying, staggering and stumbling along the sidewalk in an unbalanced fashion. It appeared to Cst. Wells that Mr. Stewart observed the RCMP vehicle and then moved into the shadows away from the street. Cst.

Wells perceived those actions as an attempt to avoid detection. [ 9 ] Cst. Wells stopped his RCMP vehicle for a traffic light and observed Mr. Stewart for up to a minute as Mr. Stewart moved down the street for less than a block. During that period of time he observed Mr. Stewart continued to sway, stagger and stumble as he walked and, at one point, Mr. Stewart almost stepped into the street. [ 10 ] McBride Avenue is the main four-lane road leading from downtown Prince Rupert east towards Terrace. In the area where Mr.

Stewart was McBride Avenue consists of a series of small undulating hills with limited visibility in some areas. Cst. Wells could not recall the amount of traffic on that road that night [ 11 ] Soon after Mr. Stewart almost stepped into the street, Cst. Wells who by now had done a U-turn and pulled up behind Mr. Stewart, drove his RCMP vehicle up next to Mr. Stewart, activated the emergency lights and got out to speak to him. Cst. Wells said that he activated his emergency lights for his own safety and that of other vehicles. That was at 0405 hrs. [ 12 ] Cst.

Wells described the lighting in the area as good with street lighting providing enough ambient light for him to observe Mr. Stewart's face and to make some notes at the scene. [ 13 ] Almost immediately upon engaging Mr. Stewart, Cst. Wells noted the following indicia of impairment:

a) a strong odour of liquor coming from his breath;

b) bloodshot eyes;

c) extremely slurred speech; and

d) inability to maintain balance. [ 14 ] Cst. Wells acknowledged that Mr. Stewart's intoxication was not a criminal act but rather might have been a breach of the Liquor Control and Licensing Act but that he had not determined that was the case initially. [ 15 ] Based on those indicia, Cst. Wells developed a concern for Mr. Stewart's safety concluding that Mr. Stewart was extremely impaired and could step into the road and be struck by a vehicle. Cst. Wells had no recollection of how he initially engaged Mr. Stewart in conversation but not long into it he asked Mr. Stewart for his identification. Cst.

Wells said he requested identification from Mr. Stewart rather than asking his name because in his experience some people provide false names. [ 16 ] Cst. Wells wanted to establish Mr. Stewart's identification and where he lived because at that point in time he said he was intending to take Mr. Stewart home and leave him with a sober person if possible and if not he would consider arresting him for public

intoxication. Cst. Wells could not recall whether he specifically asked Mr. Stewart where he resided and had no recollection of Mr. Stewart giving an address. [ 17 ] Mr. Stewart began to check the pockets of his “hoodie” by unzipping them and at that time Cst. Wells smelled the odour of fresh marijuana and then noticed protruding out from one of Mr. Stewart's pockets a baggie with a green leafy substance. Mr.

Stewart tried to push the baggie back into and re-zip the pocket. [ 18 ] Upon observing the green leafy substance in the baggie and based on his past experience concerning the smell of fresh and burnt marijuana, Cst. Wells concluded the baggie contained marijuana. He arrested Mr. Stewart for possession of a controlled substance. He did not ask Mr. Stewart if he had a medical marijuana exemption. [ 19 ] Mr. Stewart never did provide identification to Cst. Wells. He was identified by Cst. Wells later at the detachment. [ 20 ] Upon arresting Mr. Stewart, Cst.

Wells handcuffed and then searched him incidental to arrest where he found the baggie of green leafy substance which he was able to almost immediately identify as marijuana. That was at 0410 hours. [ 21 ] Cst. Wells put Mr. Stewart into the RCMP vehicle and read to him from the RCMP card the various Charter and police warnings. At that point, Mr. Stewart simply stared and made no response. Cst. Wells then took him to the detachment, which was close by, and prior to placing him into a holding cell, conducted a further search which revealed an electronic scale and some personal items. [ 22 ] At the detachment, Cst.

Wells was able to confirm that the person he was dealing with was Mr. Stewart. He then inquired as to whether Mr. Stewart wish to contact a lawyer to which Mr. Stewart confirmed he did. After two aborted attempts to contact a lawyer at 0423 hrs with Cst. Wells dialling the phone and handing it to Mr. Stewart, only to have him hang it up Mr. Stewart was eventually able to speak to a lawyer by phone between 0427 and 0431 hrs. After speaking to the lawyer, Mr. Stewart indicated to Cst. Wells that he was satisfied with the call. [ 23 ] After Mr. Stewart had spoken to the lawyer, Cst.

Wells rearrested him; but this time for possession for the purpose of trafficking. He again provided Mr. Stewart with the required Charter and police warnings by reading from the RCMP card. In response to what is often described as the

Section 10 (

a) warning, Mr. Stewart replied "I do not understand". In response to the

Section 10(

b) warning, Mr. Stewart responded "If I want to can I call someone in private that maybe a lawyer at any time?" [ 24 ] In response to Mr. Stewart's comments, Cst. Wells asked again if he wish to: lawyer to which Mr. Stewart replied "I want to call a lawyer but I'm pretty drunk right now." In response to the police warning, Mr. Stewart nodded his head. Cst. Wells made no notes of his re-arrest of Mr. Stewart. [ 25 ] Based on his observations Cst. Wells concluded that Mr. Stewart was becoming more intoxicated as he dealt with him at the detachment. Mr. Stewart was eventually lodged in cells and Cst.

Wells made his notes of the events. [ 26 ] Cst. Wells then put the baggie into an exhibit locker after weighing it and noting that it weighed 49 g. He collected a sample from the baggie, placed it in an “H Envelope” and forwarded it to Health Canada. Some time later he received the Certificate of Analyst with regard to the sample which noted the substance to be Cannabis (marijuana). [ 27 ] Cst. Wells had further dealings with Mr. Stewart, possibly at his residence. He noted that Mr. Stewart's residence was more than five blocks from where he was arrested near the Charles Hayes High School. [ 28 ] Cst.

Wells’ recollection of the events of the evening was aided by certain notes he made contemporaneously with the events, other notes he made later and typewritten notes made as much as several weeks after the events. He acknowledged that he did not make notes of every part of his interaction with Mr. Stewart. [ 29 ] Mr. Blair Stewart gave evidence that Cst. Wells had further dealings with his son Mr. Stewart at their residence the day following the arrest. [ 30 ] Mr. Blair Stewart estimated distance from where his son was arrested to their residence to be between 5 to 6 blocks.

ISSUES TO BE DECIDED [ 31 ] The issues to be decided on this Voir Dire include:

a) Was there a detention of Mr. Stewart prior to his arrest?

b) If yes, when did that detention occur?

c) If there was a detention, was it arbitrary?

d) Was the search and seizure unreasonable?

e) If the answer to either or both of

c) or

d) is “Yes” should the evidence of the possession of the marijuana be excluded under Section 24(2) of the Charter ? THE LAW The Charter

[32] Sections 8 and 9 of the Charter state: a. 8. Everyone has the right to be secure against unreasonable search or seizure. b. 9. Everyone has the right not to be arbitrarily detained or imprisoned. The Case Law [33] Defence counsel relied on the following cases in submissions:

a) R. v. Sheck 2012 BCPC 39 , 2012 BCPC 0039

b) R. v. Troung 2011 BCSC 1452

c) R. v. Harrison 2009 SCC 34

d) R. v. Suberu 2009 SCC 33

e) R. v. Grant 2009 SCC 32

f) R. v. Orr 2008 BCPC 367 , 2008 BCPC 0367

g) R. v. Mann 2004 SCC 52

h) R. v. Lagrandeur 2004 BCPC 489 , 2004 BCPC 0489

i) R. v. Buhay 2003 SCC 30 [34] Crown counsel relied on the following cases in submissions:

a) R. v. Affleck 2010 NSPC 51

b) R. v. Legrandeur 2006 BCSC 277 and 2004 BCPC 489 , 2004 BCPC 0489

c) R. v. Caslake (SCC), [1998] 1 S.C.R. 51

d) R. v. Wallace (BCSC)

e) Cloutier v. Langlois (SCC), [1990] 1 S.C.R. 158

f) Besse v. Thom (BCCA)

g) R. v. Tisdale [1970] AJ No. 65 SUBMISSIONS [35] The Court thanks counsel for their helpful written submissions. However, those submissions would have been of even moreassistance if counsel had provided casebooks which included the full texts of the cases they relied on in the submissions. Defence [36] Defence counsel’s submissions on the issue of detention can be summarized as follows:

a) Mr. Stewart was not engaged in any criminal activity but was simply walking home and, as such, Cst. Wells had no authority todetain him;

b) Cst. Wells provided no credible evidence suggesting Mr. Stewart was in danger and that he intended to drive Mr. Stewart home;

c) Cst. Wells’ request for Mr. Stewart’s identification constituted a detention;

d) Cst. Wells’ asking Mr. Stewart for his identification did not pose a legal obligation on Mr. Stewart to provide same;

e) The detention was neither necessary or reasonable and was not related to ongoing criminal activity,

f) There was not articulable cause for the detention on either a subjective or objective basis;

g) When considering the balance between police duties and liberty interests and the tests of the duty performed, the importance to thepublic good, the nature of the liberty restriction and the nature and extent of the interference of Mr. Stewart, Cst. Wells’ detention of Mr.Stewart was arbitrary;

h) Cst. Wells did not meet the minimum requirement of advising Mr. Stewart of the reason for his detention;

i) Cst. Wells provided no evidence that he asked Mr. Stewart if he had a license for medical marijuana. [ 37 ] Defence counsel’s submissions on the issue of wrongful search and seizure can be summarized as follows:

a) The onus lies with the Crown to prove a search was reasonable and they have not done so in this case;

b) The onus lies with the Crown to prove the search was lawful, the law authorizing the search is reasonable and the manner of the search was reasonable;

c) Cst. Wells’ search of Mr. Stewart was unreasonable because his detention of Mr. Stewart was arbitrary;

d) Cst. Wells’ searched Mr. Stewart before he was arrested but after he was detained. [ 38 ] Defence counsel’s submissions on the issue of the exclusion of the evidence obtained can be summarized as follows:

a) Cst. Wells’ evidence showed a pattern of conduct that established a clear disregard for Mr. Stewart’s Charter rights by virtue of the arbitrary detention and unreasonable search and evidence of the items seized should be excluded to maintain the repute of the administration of justice. Crown [ 39 ] Crown counsel’s submissions on the issue of detention can be summarized as follows:

a) Cst. Wells’ initial intention in dealing with Mr. Stewart was to determine his level of intoxication and whether that would jeopardize his safety. Cst. Wells’ concern for Mr. Stewart’s safety became more acute when he determined how intoxicated he was;

b) Mr. Stewart’s level of intoxication could be described in terms of the previous case law as “very drunk” or “stupefied or drunk from the consumption of alcohol or drug to such a marked degree that the person is a danger to himself or others”;

c) After speaking to Mr. Stewart, Cst. Wells concluded that Mr. Stewart was unable to make a sound decision and was a danger to himself or others. He formed the opinion that Mr. Stewart was intoxicated and was arrestable, but was considering the option of taking Mr. Stewart home if a sober person was at the residence to take care of him,

d) Cst. Wells’ reason for asking for Mr. Stewart’s identification was to ascertain his address for the purpose of considering taking him home. [ 40 ] Crown counsel’s submissions on the issue of the search can be summarized as follows:

a) Cst. Wells’ search of Mr. Stewart occurred only after he had arrested him subsequent to observing the plastic bag with the green leafy substance which he believed to be marijuana;

b) A search of the nature conducted by Cst. Wells was reasonable and justifiable because the purpose of the search was related to Mr. Stewart’s arrest and to obtain the evidence in relation to that arrest. [ 41 ] Crown counsel’s submissions on the issue of the exclusion of the evidence obtained can be summarized as follows:

a) Cst. Wells’ initial stopping of Mr. Stewart was not a detention;

b) When Cst. Wells noted that Mr. Stewart was committing an offence of being in possession of a controlled substance he was immediately arrested;

c) Cst. Wells had reasonable and probable grounds to arrest Mr. Stewart and any detention from that point forward was not arbitrary;

d) The search of Mr. Stewart subsequent to his arrest was to obtain evidence in relation to the offence committed and was reasonable;

e) There was no breach of Mr. Stewart’s Charter rights and as such the evidence obtained by Cst. Wells should not be excluded. DISCUSSION AND DECISION [ 42 ] It is necessary in all cases to first ascertain from the evidence what the facts are before applying either the statute or case law. Each case is unique and determined first on the facts before the law is applied. Based on the facts found from the evidence a breach of the Charter may or may not be made out and from that the case law may or may not apply.

[ 43 ] For hundreds of years before the Charter was enacted several of the primary duties of a “peace officer” at common law included the preservation of the peace, the prevention of crime and the protection of life and property. [ 44 ] What first must be determined is whether or not Cst. Wells’ initial decision to stop and have dealings with Mr. Stewart can be considered reasonable in the circumstances on both subjective and objective basis and whether and when the stop became a “detention” as the term is known at law. [ 45 ] Cst. Wells engaged in a relatively lengthy period of observation of Mr.

Stewart and noted his extremely unbalanced and uncontrolled progression down the sidewalk before making any determination to intervene. [ 46 ] Based on the evidence presented it is clear that Cst. Wells initial reason for stopping Mr. Stewart was to determine whether or not he was capable of caring for himself and whether or not he posed a danger to himself or others given his stumbling behaviour near a major thoroughfare. [ 47 ] The submission of Defence counsel that Cst. Wells had any improper motive when he first determined that he needed to deal with Mr. Stewart is not sustainable.

Similarly, Defence counsel’s suggestion that Mr. Stewart was merely “walking home” does not accord with the evidence presented. He was impaired to the point of being unable to care for his own safety. [ 48 ] The initial discussion between Cst. Wells and Mr. Stewart momentarily impeded Mr. Stewart from his intended path but was not a “detention” as contemplated by

Section 9 of the Charter or the case law. There was no significant physical or psychological restraint on Mr Stewart until he was asked for his identification. [ 49 ] Once Cst. Wells asked Mr. Stewart for his identification there was a detention at law. Although Cst. Wells may have subjectively felt he was only seeking information from and not detaining Mr.

Stewart on an objective basis a reasonable person, when asked by a peace officer to provide their identification could reasonable (but erroneously) conclude they would not be permitted to leave until they had done so. [ 50 ] Up to that point the detention was not arbitrary because it was a momentary imposition on Mr. Stewart with Cst. Wells attempting to ascertain whether or not Mr. Stewart could be returned to a residence or had to be arrested for public intoxication. Those inquiries fell within Cst. Wells’ common law duties and were not an unjustifiable use of his powers once the detention occurred.

The detention was momentary before the subsequent arrest occurred. [ 51 ] Based on the indicia described by Cst. Wells there is little doubt that Mr. Stewart was intoxicated within the definition described in the Liquor Control and Licensing Act and that Mr. Stewart was arrestable under that statute. [ 52 ] Mr. Stewart’s attempt to comply with Cst. Wells’ request for identification was impaired by his own intoxication to the point that he did not realize that he was pulling into plain view the bag of marijuana he had in his pocket. Upon observing what he believed to be marijuana Cst.

Wells had reasonable and probable grounds to arrest Mr. Stewart for that possession. [ 53 ] A review Cst. Wells’ evidence as to what occurred first; the arrest or the search does not accord with the submissions of Defence counsel. Cst. Wells only searched Mr. Stewart after he had been arrested and that search was an effort to locate the very evidence of Mr. Stewart’s illegal behaviour, the marijuana Mr. Stewart had brought into plain sight. [ 54 ] In those circumstances the search was both related to the purpose for the arrest and justifiable in the circumstances. [ 55 ] Mr.

Stewart’s detention prior to arrest was momentary and not arbitrary. Cst. Wells’ search of Mr. Stewart occurred only after the arrest and was directly related to that arrest and hence reasonable. [ 56 ] Mr. Stewart’s claim for relief pursuant to Sections 8 and 9 of the Charter has not been made out on the balance of probabilities and on that basis it must be dismissed. [ 57 ] However, in the event I have misdirected myself in the analysis that results in that conclusion, then I would conclude that the Charter infringements were not the result of any bad faith on the part of Cst.

Wells but rather inadvertent and not as serious a breach as many described in the cases. The impact on Mr. Stewart’s Charter rights would be at the low end of the scale. [ 58 ] The manner in which the marijuana came to the attention of Cst. Wells requires that it be admitted in this case. It is in the interest of the community to have this matter adjudicated on the merits and as such to exclude the evidence would bring the administration of justice into disrepute. ___________________________ M. J. Brecknell Associate Chief Judge Provincial Court of British Columbia