R. v. DP 2022 MBPC 16, 2022 MBPC 16

CITATION : R. v. DP 2022 MBPC 16 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Sarah McNamara, Mitchell Enright ) for the Crown - and – ) ) DP (YP) ) Hillarie Tasche ) ) for the Accused ) Judgment delivered: ) April 5 th , 2022 S. 8 Charter voir dire decision NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)). L. Martin, P.J. Introduction [ 1 ] DP stands charged with possession of a Scheduled 1 drug contrary to s. 4(1) of the Controlled Drugs and Substances Act.

The charges stem from a traffic stop on December 15, 2020 when Constables Leveille (Leveille) and Dreger (Dreger) pulled DP over to verify his driver’s licence. There is no dispute that this traffic stop was legal. It was what happened during the traffic stop that DP says was illegal, namely that his vehicle was searched without warrant. While he admits that he did have drugs in the vehicle, he says that they were in a jewelry box in the driver’s side door, not in his hand as alleged by the police, and could only have been found as a result of an illegal search.

He asks the Court to find a s. 8 Charter breach and exclude the drugs from evidence pursuant to s. 24(2) of the Charter . [ 2 ] The Crown submits that there was no Charter breach, saying that the drugs were in plain view in DP’s hand when the officers conducted the traffic stop, and that they had grounds to arrest and search him and the vehicle. The Law [ 3 ] The onus is on the party who asserts a Charter breach to establish on a balance of probabilities that the breach occurred. In assessing the evidence on the voir dire, the Court is to apply the persuasive burden, not the evidentiary burden.

It follows that if DP’s evidence gives rise to the alleged Charter violation, I must determine the probability that he, and not the police, is being truthful. As such, the onus is on DP to establish on a balance of probabilities that his drugs were probably in a jewelry box. (R. v.

Kicovic, 2004 ABPC 190 ) In determining whether DP has discharged his factual onus on a balance of probabilities, I must consider the evidence as a whole and I may believe all, some or none of the evidence of each witness. [ 4 ] If I do not find that DP has established on a balance of probabilities that his drugs were probably in a jewellery box I must determine whether the drugs were in “plain view” to justify the search. R. v.

Gill, 2019 BCCA 260 para 33 provides that the plain view doctrine requires: • the police to have lawful prior justification to be at the place where the evidence was found; • have discovered the evidence inadvertently while exercising a lawful police power or performing a lawful police duty; • that the evidence was in plain view in the sense that it was not detected through the unaided use of the officer’s senses; and • that it was immediately apparent to the officer that the evidence was probably connected to criminal activity. [ 5 ] Gill notes that a partial view of an item may not be sufficient to establish grounds for arrest.

An officer is not to move obstructions from their view to ascertain a clearer picture of what the item may be. It must be immediately apparent to the officer that there are reasonable and probable grounds to believe the item is evidence of criminal conduct without further investigation. ( Gill , paras 25-27, 37, 59, 61 )

The Evidence [ 6 ] DP testified that on December 15, 2020 he took his mother’s vehicle to drive to a party. He secreted the drugs ultimately seized by police into a jewelry box which he placed in his front sweater pocket. While driving to the party, he saw the police car Leveille and Dreger were in and immediately transferred the box from his sweater pocket to the driver’s side door. When he was pulled over, he kept his hands on the bottom of the steering wheel. Leveille came to his door and told him to get out of the vehicle and then proceeded to search his car and found the jewelry box.

He asked DP what was in it. DP replied cocaine and Leveille next asked where he got it. DP did not reply. Instead, he asked if he could call his mom but Leveille told him no, took his phone and threw it into the back of the vehicle. [ 7 ] Leveille and Dreger deny searching DP’s vehicle prior to his arrest. They both also deny finding a jewelry box, Leveille clarifying that he had no recollection of even seeing one. [ 8 ] Leveille and Dreger both testified that when they stopped DP, Leveille went to the driver’s side door and Dreger to the passenger side door.

The two officers interacted with DP and the passenger respectively. The cruiser’s takedown lights were on, as were the streetlights and they had their handheld flashlights. Both testified to having relatively good visibility inside the vehicle and both testified to being able to see the thigh area of each occupant, including the thigh closest to the car door. [ 9 ] Leveille testified that he positioned himself a few feet away from the car. The window was down. He did not notice any movement from DP.

While he was speaking to DP about his driver’s licence, he noticed DP attempting to conceal what he believed to be a baggie of crack cocaine in foil wrapped balls in his left hand. Leveille testified that he could see a plastic bag, blue elastic and foil wrapped rocks inside the plastic baggie inside DP’s left palm that was partially clenched but facing upwards. The hand was on top of DP’s left thigh near the driver’s door. [ 10 ] Leveille testified that he looked over top of the vehicle and alerted Dreger. He could not recall his exact words but it was to the effect that there were drugs.

Dreger came around the car to his side and once there, Leveille told DP to get out of the car. When he did, Leveille took the drugs out of DP’s hand, finding another smaller baggie of drugs. Dreger took custody of DP, handcuffed and searched him and placed him in the cruiser. [ 11 ] Dreger testified that when he was at the passenger side of the vehicle, Leveille alerted him that the driver was holding a plastic bag which contained something wrapped in foil. Dreger went to the driver’s door.

He testified that after a quick briefing by Leveille, he told DP to get out of the vehicle and placed DP under arrest for possession of crack cocaine or some similar offence. He was clear that he personally did not see any drugs. The first time he did was at the police station. Analysis [ 12 ] It is agreed that the amount of drugs and the manner in which they were packaged were small enough to fit inside a jewelry box or the palm of a hand. It is therefore important to examine the evidence to determine whether DP has discharged his factual onus. [ 13 ] I found DP’s evidence internally consistent and logical.

However, it is not externally consistent when I consider the evidence as a whole, as it would mean that the officers colluded or came up with a plan to illegally search a youth, and the evidence does not suggest this. I also considered whether Leveille alone searched the vehicle after Dreger took DP to the cruiser. Once again, this possibility does not make sense for several reasons. First, Leveille alerted Dreger to the presence of foil and a baggie. How could he possibly have appropriately described the drugs if he had not already seen them?

Further, Dreger arrested DP for possession of crack cocaine or some similar offence. How would Dreger know to arrest DP for crack cocaine if the drugs had only been discovered after DP was arrested? [ 14 ] As a result, logical and consistent as DP’s evidence might seem, when considered in the context of the evidence as a whole, I do not accept it.

Rather, I accept the drugs were in DP’s left hand when he was stopped by the police. [ 15 ] This brings us to the next step, that is, whether the drugs were in plain view. [ 16 ] Although it was dark outside when Leveille and Dreger stopped DP’s vehicle, the takedown lights, streetlights and flashlights allowed them to see inside the vehicle including the thigh area of their respective occupants.

As such, although the cross-examination of Leveille as to whether he would have been able to see very small tin foil balls was very effective, given the evidence as a whole, I accept that Leveille was able to see them. [ 17 ] Although Dreger did not see the drugs until he was at the station, Leveille testified to having grabbed the drugs out of DP’s hand when he got out of the car, before Dreger handcuffed and searched him.

Given the size of the drugs and the movement of DP and the officers, it is possible that Dreger simply did not see the drugs at that time. [ 18 ] I have turned my mind to whether it was possible Leveille got a better look at the drugs when he seized them. Although this was not canvassed in examination, given my previous findings, including the verbal interaction between Leveille and Dreger and the circumstances of DP’s arrest outside the car, I find that this was not the case.

I accept his evidence that he was able to see individually tin foil wrapped balls in a plastic baggie. [ 19 ] As a result of the foregoing, I find that DP’s s. 8 Charter rights were not breached. His application is therefore dismissed. “Original signed by” Martin, P.J.