R. v. Inwood Date:, 2016 BCPC 418

Citation: R. v. Inwood Date: 20161003 2016 BCPC 418 File No: 32445-1 Registry: Fraser Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAUN BRYSON INWOOD REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE R.W. CALLAN Counsel for the Crown: J. Swale, Q.C. Counsel for the Defendant: J. Duncan Places of Hearing: Fraser Lake and Prince George , B.C. Dates of Hearing: September 8, November 2, 2015; March 7, 18; June 14, 17, and July 19, 2016 Date of Judgment: October 3, 2016

BACKGROUND [ 1 ] In the early morning of March 10, 2013, Mr. Shaun Bryson Inwood, the accused, was stopped by Cst. Gallop of the RCMP as he was speeding through the community of Fraser Lake on Highway 16, west of Prince George. This traffic stop subsequently led to the arrest of Mr. Inwood and the search of his vehicle. [ 2 ] Due to the discovery of six half pound bags of marijuana in a suitcase on the backseat in the cab of his truck, Mr. Inwood is charged with possession of marijuana, possession of marijuana for the purpose of trafficking, and trafficking in marijuana.

In each charge it is stipulated the quantity of marijuana involved is "an amount not exceeding 3 kilograms". [ 3 ] Mr. Inwood pled not guilty to the charges. The trial began in Fraser Lake on September 8, 2015. Further evidence was heard on November 2, 2015 and March 7, 2016. THE ISSUE [ 4 ] At the beginning of the trial, the Court entered into a Voir Dire . This is a decision on the Voir Dire conducted to determine whether if certain evidence led by the Crown would be admissible at the trial.

While the original Charter application, filed by the Defence, outlined a number of issues, the focus of the Voir Dire is as follows: 1. Mr. Inwood's arrest was unlawful pursuant to

section 9 of the Charter ; 2. The subsequent search of Mr. Inwood's vehicle was therefore unreasonable search and seizure contrary to

section 8 of the Charter ; 3. Mr. Inwood’s rights under

section 7 of the Charter were infringed: "As a result of a search by Cst. Gallop, the applicant has been deprived of liberty and security of the person and the deprivation is not in accordance with the principles of fundamental justice." 4. Mr. Inwood did not receive his 10(

a) and 10(

b) rights and police caution in a timely fashion. STANDARDS OF PROOF [ 5 ] The Crown must prove beyond a reasonable doubt that the statements made by Mr. Inwood to Cst. Gallop were voluntary, that is, they were made of his own free will, he was aware of his legal rights at the time and that he had an operating mind to make the statements. [ 6 ] The Defence must prove the alleged breaches of Charter rights on a balance of probabilities. [ 7 ] There is no issue with the time, location of the alleged offences, or identity of Mr. Inwood as the accused.

The Defence concedes that the traffic stop was done in accordance with the law. In fact, Mr. Inwood, in his evidence on the Voir Dire, testified he did not dispute the speeding ticket. In addition, the Court also heard evidence on the Voir Dire from Cst. Gallop and Cst. Cundy. All timings used in this matter are based on the 24 hour clock as per the testimony of Cst. Gallop. SEQUENCE OF EVENTS [ 8 ] Cst. Gallop was on patrol in Fraser Lake, British Columbia, on the night of March 9 - 10, 2013. At approximately 0049 hours, she drove past an eastbound pickup truck traveling on Highway 16 through Fraser Lake.

The immediate issue is that the speed limit on Highway 16 going through Fraser Lake is 50 km/hour. This pickup truck being driven by Mr. Inwood was traveling at 65 to 70 km/hour. [ 9 ] Cst. Gallop did a U-turn on Highway 16, activated the emergency lights on her vehicle and pursued Mr. Inwood’s truck. Mr. Inwood pulled his truck over into the parking lot of Field’s Department Store on Highway 16. Cst. Gallop parked beside the pickup truck and went over to the driver’s door. The events of the evening unfolded as follows: 1. As Mr. Inwood rolled down his door window, Cst.

Gallop says she smelled the overpowering odour of vegetative marijuana (during the testimony, this marijuana was referred to as being fresh, raw, and vegetative. These terms all apply to harvested marijuana). 2. Cst. Gallop says she told Mr. Inwood he was under arrest for possession of a controlled substance. Mr. Inwood then said “no, no, no, it’s in my pants” and he reaches down his trousers. Cst. Gallop couldn’t see his hands for a moment. 3. Cst. Gallop is very aware that she is alone conducting a traffic stop at 0100 hours on the side of Highway 16 in the middle of Fraser Lake.

When she cannot see his hands, Cst. Gallop puts her hand on the butt of her pistol. 4. Mr. Inwood immediately pulls his hands out of his pants and he follows Cst. Gallop's instructions to get out of the vehicle. She handcuffs his hands behind his back. Eventually Mr. Inwood shakes loose from his trousers, a metal mint container which falls on the ground. Cst. Gallop seizes the tin which contains a marijuana cigarette. 5. Mr. Inwood only had half a driver’s license (literally) and the only name visible was Shaun Bryson. Cst.

Gallop had to search the glove compartment of the truck and found papers that confirmed the name of the vehicle owner was Shaun Bryson Inwood. Mr. Inwood admitted it was his vehicle. 6. In her search of the glove compartment Cst. Gallop found a baggie of marijuana. She asked Mr. Inwood if there were more drugs and he said there were drugs in the suitcase on the backseat of the cab.

7. Cst. Gallop told Mr. Inwood he was under arrest for possession of a controlled substance but she cannot recall if she gave Mr. Inwood his rights under

section 10(b), that is, his right to counsel. This arrest took place around 0107hours. 8. By 0119 hours, Mr. Inwood had been placed in the back of the police vehicle. The suitcase containing the marijuana had been locked in the trunk of the police car. Cst. Gallop then read Mr. Inwood his 10(

a) and 10(

b) rights and police caution. She did this from the card she carried in her police notebook. Mr. Inwood said he understood his rights and he understood he had a right to call a lawyer. 9. He was asked by Cst. Gallop “do you wish to call a lawyer?” He answered “I guess so in my best interest, yes”. 10. It was not practical to have Mr. Inwood call a lawyer from the police car for considerations of security for Cst. Gallop and of privacy for Mr. Inwood. The detachment was right across the highway. Cst. Gallop testified Mr. Inwood was at the detachment by 0132 hours. 11. Mr.

Inwood spoke to Legal Aid at 0135 hours on the Bridges line, the 1-800 phone line. Mr. Inwood is alone in a room in the detachment and had his conversation in complete privacy. Mr. Inwood tells Cst. Gallop he is satisfied with the advice he received and declined the opportunity to make a statement. 12. Later that morning, Cst. Gallop speaks with Cst. Cundy from Quesnel. Cst. Gallop is advised by Cst. Cundy that he is a member of the drug enforcement unit in Quesnel and that given the information she has provided to him, Cst.

Gallop is in fact investigating an offense concerning possession for the purpose of trafficking as opposed to simple possession. 13. At 0252 hours in the morning (which is really 0352 hours due to daylight savings coming into effect that morning), Mr. Inwood is arrested on the new charges of possession for the purpose of trafficking. Mr. Inwood declined the opportunity to make a statement. 14. At 0416 hours Mr. Inwood is released on a promise to appear and an undertaking. He is also given a speeding ticket which he does not dispute. The keys for his truck and his suitcase were returned to him.

The six bags of marijuana were seized and placed in the evidence locker. THE ISSUES 1. Whether Mr. Inwood’s arrest was an arbitrarily detention? 2. Whether Cst. Gallop's search of the cab of Mr. Inwood's pickup truck was an unreasonable search and seizure? 3. Whether Mr. Inwood was deprived of his right to silence? [ 10 ] The Court concludes from the evidence that there were a series of ongoing transactions between Cst. Gallop and the accused, Shaun Bryson Inwood. As a first step, I will consider these transactions separately. My final conclusion in this Voir Dire will be on the facts as a whole.

The traffic stop and subsequent events [ 11 ] The Defence does not dispute that Cst. Gallop was acting in accordance with the law when she pulled Mr. Inwood's truck over for speeding at 0049 hours on March 10, 2013. [ 12 ] The Defence argues that in affecting the arrest of Mr. Inwood, Cst. Gallop’s limited experience as a police officer is a factor. She testified that at the time of Mr. Inwood's arrest she had been in the RCMP for one year.

The Defence says this lack of experience did not provide her with sufficient ability to distinguish the smell of burnt marijuana smoke and the odour of freshly harvested marijuana. In other words, this lack of experience prevents her from concluding Mr. Inwood was committing a criminal offense as set out in the Canadian Criminal Code section 495(1)(b). The Defence refers to the experience of the investigating police officers in the cases of R. v. Harding, 2010 ABCA 180 , and R. v. Ashby , 2013 BCCA 334 . [ 13 ] In the former case, Sgt.

Topham, a veteran of 14 years’ service in the RCMP and in the latter case, Cst. Thompson who had two years’ service in the RCMP, were found by the courts to have experience in drug enforcement matters. The court accepted that they could believe a drug offense was being committed based on their detection of the odour of fresh marijuana coming from the vehicles subject of their respective investigations. ( R. v. Ashby, 2011 BCSC 513 ) [ 14 ] The Crown refers the Court to the evidence of Cst. Gallop in establishing sufficient experience that she could reach a similar conclusion as Sgt. Topham or Cst.

Thompson in similar circumstances. The evidence provided by Cst. Gallop: 1. She testified that she had grown up in Victoria and was familiar with the smell of burnt marijuana from her high school days. 2. Before joining the RCMP, she had worked as a member of the Canadian Border Security Agency and had been exposed in the course of her duties to the odour of vegetative marijuana. She had worked at Victoria International Airport, Vancouver International Airport, and downtown Victoria at the marine port. 3. She testified she noted on one occasion the odour of marijuana coming from an individual's luggage.

The bag was later searched and a small amount of marijuana was located inside a vest pocket in one of the clothing items. She also stated that her locker at CBSA was right outside of the exhibit locker in Victoria and "you could smell marijuana coming from the exhibit locker. Every time you would go by, it was quite pungent. There's quite a bit in there." 4. In her first year as a RCMP constable, she had participated in the execution of a warrant on a "grow op" during which she had been the exhibit officer and, here again, this involved her dealing with vegetative marijuana. 5. Cst.

Gallop testified she was confident in her ability to identify vegetative marijuana which has a strong odour and smells like

skunk cabbage. This odour is different from that of smoked or burnt marijuana. [ 15 ] The Defence argues this experience is not sufficient to allow Cst. Gallop to arrest Mr. Inwood. The arrest outside of Mr. Inwood's truck [ 16 ] For the purposes of discussing this transaction, I will use the word arrest. In my conclusion, I will determine whether this transaction was an arrest or detention. [ 17 ] Mr. Inwood testified in the Voir Dire that he was told by Cst. Gallop “you are going to be arrested for possession of marijuana.” The Defence argues that even though he was being handcuffed by Cst.

Gallop, he was only detained and not arrested. [ 18 ] Cst. Gallop testified she not only told Mr. Inwood he was under arrest, but she also told Mr. Inwood he was under arrest for possession of a controlled substance. [ 19 ] There is some question as to whether Mr. Inwood was provided his

section 10(

b) rights upon being handcuffed. Cst. Gallop is not sure whether she provided this information. She testified she may not have done so at that moment. What she explained was:

a) she was by herself at 0100 hours doing an investigation on the side of Highway 16;

b) she had just found a suitcase on the backseat in the cab of the truck that contains six large baggies of fresh marijuana;

c) her immediate concern was her safety, as she was concerned that if Mr. Inwood was in possession of that much marijuana, he might also have a weapon to use against her. [ 20 ] I accept Cst. Gallop's evidence she was concerned about her personal safety beginning when Mr. Inwood put his hands in his pants. Although he explains this is to retrieve the tin with a marijuana cigarette, I accept Cst. Gallop has concerns he may have a concealed weapon. [ 21 ] She told Mr. Inwood to get out of his truck. The evidence is that after handcuffing Mr.

Inwood, she asked him about other drugs in the truck and, as a result, she found the marijuana in the suitcase on the backseat of the truck's cab. If the Court finds that Mr. Inwood was merely detained, the authority to search Mr. Inwood or his vehicle would be limited as opposed to more fulsome searches that can be done ancillary to arrest. The arrest in Cst. Gallop’s police car [ 22 ] Moving on from the conversation between Cst. Gallop and the accused outside Mr. Inwood's pickup truck, Cst. Gallop testified about a further conversation with Mr. Inwood in her examination in chief a t page 26, line 4: Q.

All right. My friend may want to ask you about them, I think I will just leave them at that point. There are photographs if somebody wants to see them. All right. So I think we are at the point where Mr. Inwood, I will call him that, was in the rear of the police vehicle. You had conducted your search of the vehicle and found the suitcase with some things in it, yes? A. That's correct, your Honour. Q. And secured that in the trunk of your police vehicle? A. That's correct your Honour. Q. What happened then? A. Got into the front seat of my police car.

And at this point, I arrested in my notebook -- or written arrested Mr. Bryson [sic] for possession of a controlled substance. Q. Mr. Bryson means Mr. Inwood, I take it? A. Oh, sorry. Pardon me, yeah, Mr. -- Inwood. Pardon me, Mr. Inwood for -- and I read him his Charter rights and official warning so I arrested him, told him he has a right to a lawyer, advised him of his official warning. Q. All right. I should perhaps have told you right at the very outset, of you giving your evidence -- we are hearing all your evidence on the Voir Dire , you understand what I mean? A. Yes Your Honor. Q.

And so we need to delve a little more deeply into what it is that you said and did at this point in time. Can you first, this will help us; what time was this that you did this that you arrested him or rearrested him whatever it was? A. At 0119 hours. Q. Right. And what did you say to him? A. May I pull out my Charter card? I -- I read it verbatim from my Charter card. Q. Is that the card that you had with you at the time?

A. No. It has changed but I know for a fact that the wording for the arrest hasn't changed since I came to British Columbia 2012. The only part that has changed is I believe with regard to one of the impaired driving demands that we give. I believe it was the breath demand.… but the arresting words did not change. [ 23 ] And at page 28, line 24: The Court: All right. And what is that wording? A. It's, "I'm arresting you for" blank, so I would say, "I'm arresting you for possession of" The Court: Wait a minute. I'd ask you to slow down.… Please proceed. A. And then the 10(

b) is “It is my duty to inform you that you have the right to retain instruct counsel without delay. This advice is given without charge and I can explain “no”, I can provide you advice given without charge and a lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand?” and then, "Do you want to call a lawyer?" And then I officially warned him which is the next sentence I could read it off if you would like, “You are not obliged to say anything but anything you say may be given in evidence." Q.

So you read those things then you said, "do you understand?"? A. That's correct. Even now that I can say it off by heart. I read it off the card. [ 24 ] Cst. Gallop testified that Mr. Inwood said he understood his rights and that he wanted to call a lawyer. [ 25 ] Cst. Gallop testifies that at 0132hrs, she and Mr. Inwood arrive at the Fraser Lake RCMP Detachment.

She testified that she placed him in cell number two and she observed that: "his hands were sticky and green, and his clothing was sticky and green.… And there is an odor of raw marijuana coming off his person.” The arrest at 0352 in the morning [ 26 ] The last transaction between Cst. Gallop and Mr. Inwood occurred at 0352 on the morning of March 10. Cst. Gallop spoke with Cst. Cundy from the Quesnel Detachment. After receiving advice from Cst. Cundy, Cst. Gallop re-arrests Mr. Inwood at 0352 hours for possession of marijuana for the purpose of trafficking. Cst. Gallop testified that she gave Mr.

Inwood his Charter rights under 10(

a) and 10(

b) and the official police warning. She asked if he understood and Mr. Inwood said that he did. Mr. Inwood did not wish to speak with Legal Aid duty counsel again. [ 27 ] In addition to the Defence argument that the Court should reject Cst. Gallop’s evidence about her experience detecting vegetative marijuana, the Defence also argues her recollection of the events that night are not reliable and the Court should prefer the evidence of Mr. Inwood. [ 28 ] As to the first instance, Cst. Gallop testified that when Mr. Inwood rolled down his window after being stopped, Cst.

Gallop stated: At this point I detected an overwhelming odour of raw marijuana, coming from out of the vehicle. I advised the driver he was under arrest for possession of a controlled substance. Q. Are you able to say anything more about your use of the term "overwhelming odour"? A. Your Honor, it was incredibly powerful and incredibly strong. In my opinion, anybody could have detected. It was – – it was incredibly strong. [ 29 ] Mr. Inwood, in his evidence on the Voir Dire, testified that he had left Terrace, B.C. approximately 8 p.m. that evening.

He testified that he smoked marijuana as he drove along the highway towards Fraser Lake. He had finished smoking a joint just a few minutes before reaching Fraser Lake. [ 30 ] No issue has been raised as to Mr. Inwood's capacity during his interactions with Cst. Gallop. In fact, Mr. Inwood testified that after being arrested and taken to the detachment, he was finally released about two hours later and had the keys to his pickup truck returned to him. [ 31 ] He testified he did not notice any odour of vegetative marijuana from the back seat of his vehicle.

LEGAL CONSIDERATIONS The arrest [ 32 ] On examining the legal arguments concerning Cst. Gallop's authority to arrest Mr. Inwood, I note the Court of Appeal wrote in Ashby : [58] In the end to paraphrase, Mr. Justice Cory in Storrey at 251, the question is whether a reasonable person standing in the shoes of Cst. Thompson would believe that Ms. Ashby was apparently committing the offense of possession of marijuana. In my view the answer is yes. [ 33 ] In R. v. Harding , 2010 ABCA 180 , the following paragraphs concern this issue:

[26] After reviewing the few lower court authorities considering section 495(1)(b), the Saskatchewan Court of Appeal in Janviersummarized the test at para. 27: For a police officer to arrest someone under s. 495(1)(

b) of the Criminal Code, the officer must find the person to be “committing” the offence. According to Martland J. in Biron, s. 495(1)(b) “deals with the situation in which the peace officer himself finds an offencebeing committed. His power to arrest is based upon his own observation.” [footnote omitted].

While the reference to “observation”may be qualified by adding “smell,” this does not change the principle in Biron that in order for the officer to arrest a person, the officermust actually observe or smell the offence – for which the person is arrested – being committed. [27] In Janvier, the arresting officer had stopped the accused because of a broken front headlight on the truck he was driving. Whenhe approached the truck, the officer could smell burnt marijuana of such a strength that he concluded someone had been smokingmarijuana in the truck within the past 20 minutes.

The officer searched the truck and found a total of eight grams of unsmokedmarijuana. [28] The trial judge held the odour of burnt marijuana was not sufficient to arrest someone. On appeal, the appellate court clarifiedthat the authority for arrest could only be found in section 495(1)(

b) because the accused had less than 30 grams in his possession. Thecourt further held that the smell of recently smoked marijuana was not an observation of current possession of additional unsmokedmarijuana. While the officer might infer the presence of more marijuana, he did not observe or smell it and therefore did not find theperson committing the offence of possession of additional, unsmoked, marijuana within the meaning of section 495(1)(b).

In thealternative, the court held that if an inference is permitted under section 495(1)(b), the smell of burnt marijuana alone was not sufficientto infer the person would have more marijuana in his or her possession. [29] This present case is clearly distinguishable from Janvier. Here, Sgt. Topham smelled the very strong odour of raw marijuana, notburnt marijuana. The smell of raw marijuana, given Sgt. Topham’s experience with marijuana, constituted the observation that a crime,namely, possession of marijuana, was being committed. No inference was necessary.

The possession of marijuana was not a past eventand the officer did not need to infer that he could find more marijuana by searching the appellant or his vehicle. The smell of rawmarijuana alone was sufficient to conclude that the appellant was at that time in possession of marijuana. [30] The appellant was lawfully arrested under section 495(1)(b). [34] And in R. v. MacCannell, 2014 BCCA 254 at para 33: Thus, Ashby and Boyd establish that an arrest for possession of marijuana in the circumstances of Ashby and this case is based on ss.(b)not ss.(a). As the Crown argues in this case ss.(

b) provides for the arrest of an individual whom the arresting officer "finds committingany offense", whether

summary or indictable. The significance of the arrest under ss.(

b) is that the proof of the offense of possessiondoes not depend on the amount of marijuana being greater than 30 grams. Mr. MacCannell's argument that the officer could not haveknown or have reasonable grounds to believe he was in possession of more than 30 grams is irrelevant. [35] And at para 38 on the issue of odour alone: I return to Ashby were Frankel J.A. commented on the “odor alone” issue. As earlier noted, there was other evidence besides odor onwhich the arresting officer in Ashby relied. However, Frankel J.A., implicitly approved R. v.

Harding in which the Alberta Court ofAppeal held that an arrest could be based on smell alone. At paragraph 56 and 59 Mr. Justice Frankel said: On this appeal the question is not whether the odor of vegetative marijuana standing alone was sufficient. Rather, the question iswhether the factual matrix that existed at the time the arrest decision was made satisfies the objective criteria: R. v. Jir 2010 BCCA 497 at para 29, 264 C.C.C. (3d) 64. As in my opinion that criterion was satisfied, it is not necessary to decide whether Ms.

Ashbycould of been lawfully arrested based solely on the odor, although I note that support for such a conclusion can be found in R. v Harding2010 ABCA 180 at para 29, 256 C.C.C. (3d) 284, in which the circumstances were similar to those in the case at bar. … In addition to detecting the strong odor of vegetative marijuana emanating from the Hyundai, Cst. Thompson observed a number ofthings which, based on his experience were consistent with Ms. Ashby being a drug courier.

It was a cumulative effect of what his senses perceived -- the totality of the circumstances -- that gave rise to his belief that shewas in possession of marijuana were consistent with Ms. Ashby being a drug courier. It was a cumulative effect of what his sensesperceived -- the totality of the circumstances -- that gave rise to his belief that she was in possession of marijuana. When all of Cst.Thompson’s olfactory and visual observations are assessed on a practical non-technical and common sense basis (Jir at para 27), hisdecision to arrest is objectively justified.

I also note paragraph 42 that His Lordship quotes the case of R. v. Taylor

(2012) BCPC112 : Mr. Taylor wants this court to isolate a dominant fact and turn it into a proposition of law. I do not think it is any more a viableproposition of law to state that marijuana odor alone cannot form the basis for a lawful arrest and search than it would be to state that theodor alone must always be found to be the basis for a lawful arrest and search. And at paragraph 43: I agree with Low J.A., all that can be said on this "odor alone" question is that depending on the facts of the case, order alone may besufficient to support an arrest under ss.(b). Findings on the Voir Dire concerning arrest and search

[36] Cst. Gallop initiated a lawful traffic stop of Mr. Inwood’s Ford pick-up truck on Highway 16, at Fraser Lake, B.C. atapproximately 0051 hours on March 10, 2013. Mr. Inwood had been traveling approximately 65 km/hour in breach of the 50 km/hourspeed limit on Highway 16 as it goes through Fraser Lake. Mr. Inwood pulled his truck over in the parking lot of a department storelocated across the highway from the RCMP detachment. [37] When Mr. Inwood saw the emergency lights on Cst. Gallop’s car, he hid a mint tin with one marijuana cigarette down his pants. [38] Cst.

Gallop smelled an overpowering odour of raw marijuana coming from the cab of Mr. Inwood's truck. At one point, Mr.Inwood reached in his pants to retrieve the mint tin. Concerned for her safety, Cst. Gallop put her hand on the butt of her pistol. Mr.Inwood then showed his hands. Cst. Gallop ordered Mr. Inwood to get out of his truck and he was arrested at 0107 hours for possessionof a controlled substance. Cst. Gallop placed him in handcuffs. Although there is some dispute as to the actual words of arrest, Cst.Gallop's actions were unequivocal that an arrest took place. [39] I note R. v.

Whitfield, (SCC), [1970] SCR 46 on page 3 midway: It is a matter of positive law whether a mere touch is to constitute an arrest or not. It might have been reasonably prescribed either that itshould or should not be necessary to an arrest that there should be a possession of the person. But probably the reason which led to thelaying down of the law as it stands was it was thought desirable to avoid unnecessary violence; and therefore is determined that, if theofficer was near enough to the debtor to touch him it was the duty of the debtor to submit; This was approved in R. v.

Latimer, (SCC), [1997] 1 SCR 217, at para 24: the substance of what the accused can reasonably supposed to of understood, rather than the formalism of the precise words used… Thatquestion is… what the accused viewed reasonably in all the circumstances of the case…. [40] Mr. Inwood, upon being stopped, presented half a driver’s license showing the names Shaun Bryson. Cst. Gallop was obligedto search the glove compartment in order to determine the identity of the registered owner of the vehicle. During this search she found asmall baggie of marijuana in the glove compartment. [41] While Cst.

Gallop testified she told Mr. Inwood he was under arrest, she is unsure if she provided Mr. Inwood with his 10(b)rights at the time of his arrest. [42] At 0119 hours while Mr. Inwood sat in the back of the police car, Cst. Gallop read to Mr. Inwood from the Charter of Rightscard in her notebook, his 10(

a) reason for arrest, and his 10(

b) right to counsel followed by the police warning that anything he saidwould be used in evidence. [43] The search conducted of Mr. Inwood’s truck was lawful. The limits of the power of search are neatly laid out in R. v. Caslake,

(1998) SCR 51. The search must be for one of these three possible purposes: a. Ensuring the safety of the police and the public; b. The protection of evidence from destruction at the hands of the arrestee or others; and c. The discovery of evidence which can be used at the arrestee's trial. [44] This has been quoted with authority in R. v. Douglas Lee, 2012 BCSC 1548, a decision of Mr. Justice Romilly: (

c) Search incidental to arrest [37] Lamer C.J., writing in R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, set out the requirements necessary to establisha lawful search that is incidental to arrest: [19] As L’Heureux-Dube J, stated in Cloutier, the three main purposes of search incidental to arrest are ensuring the safety of thepolice and the public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidencewhich can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police mustbe attempting to achieve some valid purpose connected to the arrest. [25] In

summary, some searches must be authorized by law. If the law on which the Crown is relying for authorization is a commonlaw doctrine of search incidental to arrest, then the limits of this doctrine must be respected. The most important of these limits is thatthe search must be ‘truly incidental” to the arrest. This means that the police must be able to explain within the purposes articulated inCloutier supra (protecting the police, protecting the evidence, discovering evidence"), or by reference to some other valid purpose whythey searched. They do not need reasonable and probable grounds.

However they must have had some reason related to the arrest forconducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do notautomatically preclude a search from being incidental to arrest, but they may cause the court to draw negative inference. However thatinference may be rebutted by proper explanation. CONCLUSIONS I. The arrest [45] Mr. Inwood was lawfully arrested pursuant to section 495(1)(

b) of the Criminal Code. The arrest took place when he wasordered by Cst. Gallop to get out of his pickup truck and she handcuffed him. Regardless of what words of arrest were used by Cst.Gallop, I am satisfied from her actions that she intended to affect an arrest of Mr. Inwood. [46] From her experience, Cst. Gallop had the ability to determine that Mr. Inwood was committing an offense when she arrested

him. I am satisfied that Cst. Gallop was capable of identifying the smell of vegetative marijuana and forming the subjective opinion thatan offence was being committed. [47] The odour that Cst. Gallop smelled was the vegetative marijuana in the suitcase in the back seat of Mr. Inwood's truck. Cst.Cundy, the drug expert called by the Crown, testified that a Ziploc bag will keep vegetative marijuana fresh for a period of time but willnot prevent the odour of the marijuana from escaping the bag. Applying the law as stated above to the facts found in this Voir Dire, thereis no doubt in my mind that Cst.

Gallop subjective belief that she had reasonable grounds for the arrest of the accused is objectivelyreasonable. II. The search [48] The search of the cab of Mr. Inwood's truck was a lawful search ancillary to arrest and it complied with the three criteria set outin the decision of R. v. Caslake (supra) and the other cases cited. As Mr. Justice Romilly noted in Lee ( supra): The approach was cited with approval by the Court in R. v.

Nolet 2010 SCC 24 at para 49. [38] The legal framework for the inquiry into the legality of the search incident to an arrest without a warrant was described in R. v.Bracchi, 2005 BCCA 461 at para 4: [4] A search incidental to arrest will be valid if the arrest out of which it arose was valid … the warrantless arrest in this case asauthorized by

section 494 of the criminal code so long as the arresting officer believed on reasonable grounds the respondent was in thecourse of committing an indictable offense. III. The Voir Dire on voluntariness of a statement to a person in authority [49] The Crown seeks to introduce a statement made by Mr. Inwood to Cst. Gallop. This evidence on the Voir Dire is that duringhis arrest, Mr. Inwood said to Cst. Gallop, words to the effect “no, no it is in my pants”. 1. The Crown argument is that this is a spontaneous utterance and that the Court should find the statement is voluntary. 2.

The Defence argues that the statement should be excluded as the Court should find that in the context the statement was made,there was some coercion involved. [50] The question on this Voir Dire is whether the Crown has proved the voluntariness of the statement. The case of R. v.Nakamura, 2011 BCSC 1443, a decision of Mr. Justice Romilly discusses this at paragraph 20: Onus on the Voluntariness Issue [20] Where the Crown seeks to introduce evidence of an inculpatory statement made by an accused to a person in authority, theappropriate standard is proof beyond a reasonable doubt: R. v.

B. (K.G.) (1993), (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at297. The same onus applies where the Crown on a Voir Dire seeks to establish any "facts which trigger a presumption with respect to avital issue relating to guilt or innocence": R. v. Egger (1993), (SCC), 21 C.R. (4th) 186 at 202, (S.C.C.). F. Voluntariness Rule - The Conventional Admissibility Rule [24] The conventional rule for admitting a confession is that no statement by an accused person to someone in authority is admissibleagainst that person unless it is shown by the prosecution to have been made voluntarily: Ibrahim v.

The King, [1914] A.C. 599 (P.C.). The rule was applied by the B.C. Court of Appeal in Nguyen (para. 7) and more recently in R v. Choi, 2008 BCCA 212. [25] The rule was initially concerned with reliability. As a result, the courts focussed on whether there were inducements, threats, orcoercive action by persons in authority that caused the statement to be made. The focus of the court's inquiry was whether the statementhad been made to a person in authority in an atmosphere free from "fear of prejudice or hope of advantage": Ibrahim at 609; Boudreau v.The King (1949), (SCC), 94 C.C.C. 1 (S.C.C.); . . . .

In addition, the courts were concerned with fairness towards the accused, which included notions of oppressiveness and whetherthe accused had an operating mind when making the statement. [51] What then is voluntary? Essentially, the Crown has a responsibility to show that there were no threats made to the accused toget him to give the statement, or any promises or hope of advantage, oppressive conduct, trickery, and that the accused had an operatingmind to talk to the authorities.” [52] In this case, the Court heard evidence from Cst. Gallop and Mr.

Inwood concerning the circumstances in which the statementwas made. I therefore have to consider whether this is a spontaneous utterance and if so, was it voluntary. [53] As authority, the Defence presented an excerpt from the Working Manual of Criminal Law, Volume 1 at page 2 - 79. Thediscussion of Res Gestae commences on page 2 - 80 as part of an overall

section of exceptions to the hearsay rule. At sub paragraph (a)at the bottom of page 2 - 80 the

section reads: (

a) spontaneous statements [54] The authors of McWilliams’ Canadian Criminal evidence 4th ed. provide this definition of spontaneous statements orexclamations: a statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by acontemporaneous event that the possibility of concoction or distortion can be disregarded. (vol.1, 7:120.20)

the rationale for the exception lies in the special reliability that is provided when excitement suspends the declarant’s powers ofreflection and fabrication. [55] In Watt’s Manual of Criminal Evidence 2012 edition,

article 27.09 on page 364 states: The degree of proximity that is required between the event and the statement is problematic. In general the possibility of error in thefacts narrated relates to the weight of the evidence, not its admissibility. The occurrence of the event may be proven by the statement orother evidence. What is required is a realistic, not metaphysical approach to the transaction. The principle is whether the circumstancesare such that the possibility of concoction or distortion may be safely disregarded.

The circumstances of the statement should be so unusual, startling or dramatic that they dominate the declarant’s thoughts, hence reducethe risk of concoction or distortion. [56] Mr. Inwood testified he had finished smoking a marijuana cigarette about five to ten minutes before he reached Fraser Lake. Seeing the lights of Cst. Gallop’s police car, he put a tin with the remaining marijuana cigarette down his pants. Upon being confrontedby Cst. Gallop he put his hands down his pants, his intent to retrieve the tin. Cst. Gallop put her hand on her pistol butt. Mr. Inwoodpulled his hands from his pants.

He was told to get out of the vehicle. His evidence is that as he was being handcuffed he said “No, no itis in my pants”. He shook his leg and the tin fell to the ground. [57] Mr. Inwood testified he was shaken by Cst. Gallop’s action of placing her hand on the pistol butt and that is why he said “no, noit is in my pants.” He had testified he had never been in trouble with the law before, hence his reaction. [58] Cst. Gallop’s evidence is that Mr. Inwood is still in the truck when she smells the marijuana. Her evidence is that Mr.

Inwoodputs his hands down his trousers and says “no, no it is in my pants”. [59] Not being able to see his hands and being concerned about her safety, she places her hand on her pistol butt. I have notedbefore that she was concerned that a person transporting drugs would have a weapon. [60] Mr. Inwood testified he had smoked five or six joints between the time he left Terrace at nine that evening and arrived at FraserLake at one in the morning. Cst. Gallop was on duty that evening and, in absence of any evidence to the contrary, was sober.

Herrecollection of the sequence of events is unimpeded. [61] I note from the Working Manual of Criminal Law at para ix on page 2 - 166 The Accused’s Fear of the Police The fact that the accused is afraid of the police is a factor to be considered. However the fear will not amount to compulsion if the policehave done nothing to prompt this fear; that is if the compulsion emanates from the accused himself or herself rather than from the police. Hobbins v. R., [1982] SCC 553, Carswell70, (SCC), 27 CR 3rd 290, 66 CCC 2nd 289 [62] Mr. Inwood, for his part, testified he was somewhat overwhelmed by the situation.

He had never been arrested before. He hadnot even received a speeding ticket. He argues he became defensive because Cst. Gallop put her hand on the pistol butt, which is why hesaid “no, no it's in my pants” [63] Cst. Gallop’s evidence provides a more logical sequence. I accept that while she is talking to Mr. Inwood while he is sitting inhis truck, there is a discussion about the smell of marijuana. It is at that point he says “no, no it’s in my pants” and he puts his hands inhis trousers. [64] Cst. Gallop puts her hand on her pistol butt and tells Mr. Inwood to get out of the vehicle.

It is at this point he is arrested,handcuffed, and placed in the back of the police car. [65] I find the fact that Mr. Inwood's exclamation was not a reaction to conduct by Cst. Gallop. [66] I find therefore, that the statement "no, no it's in my pants" is a spontaneous utterance. It is made voluntarily without time forconcoction or distortion. This statement is admissible [67] This concludes the issues on the Voir Dire. We are now back in the main trial. R. W. Callan Provincial Court Judge Province of British Columbia