2016 QCCQ 18840, 2016 QCCQ 18840

Peker c. R. JP2080 Arrestation. Motifs 2016 QCCQ 18840 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-084087-136 DATE: April 5, 2016 ______________________________________________________________________ BY THE HONOURABLE YVES PARADIS, J.C.Q. ______________________________________________________________________ Valera PEKER Applicant-Accused v.

Her Majesty The Queen Respondant-Prosecutor ______________________________________________________________________ JUDGMENT ON MOTION TO EXCLUDE EVIDENCE ( Sections 8 , 9 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ INTRODUCTION [ 1 ] Mr Valera Peker is on trial, charged with two counts of possession of substances for the purposes of trafficking. [ 2 ] Mr Peker asks this Court to exclude evidence concerning the search of a vehicle and the seizure of substances, alleging that the interception of the vehicle, his arrest and the following searches of his person and the car were illegal and contrary to his constitutional rights.

FACTS [ 3 ] On January 16, 2013, at 10:30 pm, Officers Leclerc and Leduc of the Montreal police, SPVM, patrol in a police cruiser, wearing their uniform. Officer Leclerc is the driver. [ 4 ] Officer Leclerc has twelve years of experience, in the course of which she has often had to intervene in cases of people under the influence of marihuana, considering that she had worked in the drug squad and had patrolled public parks. Officer Leduc has seven years of experience. [ 5 ] While the officers are waiting at a red light, another vehicle comes to a stop at the same intersection, immediately to their right.

Three persons occupy this car, two in the front seat and one in the back seat. Mr Peker is the driver. [ 6 ] Officers Leclerc and Leduc look at Mr Peker who turns his head slowly in their direction. His eyes are half-closed, expressionless. Officer Leclerc notices also that his eyes are a bit red and that Mr Peker, while looking towards the officers, seems to stifle a laugh. After ten seconds, Mr Peker turns his head slowly to look ahead.

Officer Leclerc believes that he is then trying not to look at her. [ 7 ] At this moment, Officer Leclerc gets the impression that Mr Peker is intoxicated by drugs, not by alcohol. Considering her experience, she suspects marihuana. She decides to check Mr Peker’s sobriety and his ability to operate a vehicle. This decision is not a

reaction to him stifling a smile. [ 8 ] Officer Leclerc is unable to describe the behaviour of the two other occupants of this vehicle. She does not notice any interaction between them and Mr Peker. [ 9 ] The vehicles stay side by side for a period of thirty seconds. [ 10 ] The light turns green. There are not many vehicles on the street. [ 11 ] Mr Peker drives his vehicle normally. His vehicle is stopped some 400 meters further. He stops normally. [ 12 ] Using a flashlight, Officer Leclerc sheds light on the interior of the vehicle and comes near the window on the driver’s side.

At this point, she does not see anything unusual. Mr Peker rolls down the window. Officer Leclerc informs Mr Peker that she suspects that he had consumed marihuana and that she wants to check his sobriety. She asks if he had consumed alcohol or drugs. His answer is not clear. She asks for the usual documents: driver’s licence, registration and insurance certificate. [ 13 ] Officer Leclerc notices that Mr Peker has red and glazed eyes, expressionless. His movements are slow. [ 14 ] At this moment, Officer Leclerc smells a strong odour of burnt marihuana emanating from the vehicle.

Officer Leduc goes to the passenger side and smells this same odour. [ 15 ] Considering the odour, Officer Leclerc examines the interior of the vehicle. Being very close to the driver’s door, Officer Leclerc, without putting her arm or head into the vehicle, can see on the armrest of the driver’s door panel the remainder of a joint and a substance resembling marihuana. [ 16 ] Officer Leduc does not see those substances before the arrest. She cannot see the panel on the driver’s side but she is able to see the armrest on the front passenger side.

She cannot remember if she actually saw it. [ 17 ] Officer Leclerc asks Mr Peker to exit his car and to go to the back of his car. [ 18 ] Officer Leclerc proceeds to Mr Peker’s arrest for possession of marihuana. She informs him of his rights. [ 19 ] Considering that drugs were seen in the vehicle, it is searched. On the back seat, the officers find two bags containing 100 grams of marihuana each. On the central console of the vehicle, they find a cellular phone.

Near this console, on the floor of the car, near the driver’s seat, they find four rocks of crack cocaine. [ 20 ] A scale and $ 15 are found in the left pocket of Mr Peker’s coat. [ 21 ] Mr Peker is arrested for possession of substances for the purposes of trafficking. [ 22 ] Although Officers Leclerc and Leduc say that the windows of the car are not tinted, it is admitted by the parties that the windows of the car are tinted, but it is not possible to determine the intensity of this tinting.

THE LAW [ 23 ] Under subsection 24(2) of the Charter , where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it would bring the administration of justice into disrepute. [ 24 ] The burden of proving a Charter violation rests with the accused on a balance of probabilities [1] . [ 25 ] It is settled law that the police have the authority to check the sobriety of drivers.

More pertinently, checking the sobriety of drivers is one of the purposes underlying the general statutory vehicle stop powers. Police officers can stop persons under such statutory power only for legal reasons, for reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle [2] . [ 26 ] In the province of Quebec, under the authority of

section 636 of the Quebec Highway Safety Code [3] , a peace officer may, in the performance of his duties under this Code, require the driver of a road vehicle to stop his vehicle. [ 27 ] The Quebec Court of Appeal, in R. v. Soucisse [4] , concluded that

section 636 constitutes legislative authority for the roving random stop of a motorist to verify sobriety. One purpose of the Highway Safety Code is to assure safe and orderly use of the roads by vehicles operated by persons who are legally authorized and in a proper condition to do so. The sobriety of the driver is directly linked to this purpose. [ 28 ] The "plain view" doctrine is a common law doctrine.

To engage this doctrine requires the satisfaction of three conditions: the officer must be lawfully in the place, the evidentiary nature of the item must be immediately apparent to the officer through the unaided use of his or her senses and the evidence must be discovered inadvertently [5] . [ 29 ] A peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence or a person whom he finds committing a criminal offence [6] . [ 30 ] The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest.

Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to

establish a prima facie case for conviction before making the arrest [7] . [ 31 ] In common law, a police officer has a power to search incidental to a lawful arrest [8] .

This power can include the power to search a car [9] . [ 32 ] Since the legality of such a search is derived from the legality of the arrest, if the arrest is later found to be invalid, the search will be also [10] . [ 33 ] When faced with an application for exclusion under subsection 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [11] ANALYSIS [ 34 ] Mr Peker is driving a motor vehicle on a public road when two police officers observe him. [ 35 ] Under the authority of the Quebec Highway Safety Code , the officers can require Mr Peker to stop his vehicle to check his sobriety. [ 36 ] Before asking Mr Peker to stop the vehicle, Officer Leclerc noticed that he turned his head slowly, that his eyes were a bit red, half-closed and expressionless.

Except for the red eyes, Officer Leduc noticed the same physical signs. [ 37 ] On this issue, Mr Peker argues that the testimonies of the officers are not credible or reliable. He argues that the officers could not have observed the physical signs described because it was not possible for them to see those signs through tinted windows. Although there is evidence that the vehicle windows were tinted, there is no evidence as to the intensity of the tinting. In the absence of such evidence, the Court is unable to state that it was impossible for the two officers to see the interior of the car.

The testimony of the two officers cannot be set aside. [ 38 ] It is true that the testimony of Officer Leclerc is not precisely the same at trial as it was at the preliminary inquiry. At the preliminary inquiry she hesitated concerning the tinting of the windows, while at trial she affirms that they were not tinted. At the preliminary inquiry, she said that the period of time when Mr Peker and she were looking at each other was five seconds while, at trial, she says ten seconds.

She said at the preliminary inquiry that one of the other passengers looked at her and, at trial, she is unable to give details concerning such a fact. At trial, Officer Leclerc says that she suspected that Mr Peker was intoxicated by drugs, while she said at the preliminary inquiry that she suspected drugs or alcohol. These differences do not directly concern the signs she described. Except for the red eyes, Officer Leduc confirms those signs. [ 39 ] From the physical signs she observed and considering her experience, Officer Leclerc had the impression that Mr Peker was intoxicated by marihuana.

Officer Leclerc decided then to investigate further to check the sobriety of the driver. Considering that the experience of a police officer is an element to consider when assessing his grounds for arrest [12] , we can hardly exclude this experience at the stage of deciding to go further in the investigation of an impaired driver. [ 40 ] Under

section 636 of the Quebec Highway Safety Code , Officer Leclerc had the authority to stop the vehicle to verify the sobriety of Mr Peker. [ 41 ] She was performing her duties and was legally on the premises when she stood beside the car driven by Mr Peker. [ 42 ] Officer Leclerc smelled the odour of burnt marihuana when Mr Peker rolled down the window on the driver’s side. Officer Leclerc, due to her experience, is familiar with this odour.

Officer Leduc also smelled the same odour. [ 43 ] As she stood beside the driver’s door, Officer Leclerc bent towards the driver and noticed the remains of a joint and some marihuana on the armrest. She did not put her head or her hands in to search the inside of the car. These objects were in plain sight from where she stood. [ 44 ] Common sense tells us that the police, working at night, will have occasion to use flashlights in the ordinary course of their duties. It is not objectively reasonable to expect that they would not.

When the police are lawfully where they are permitted to be, the use of artificial illumination should not automatically constitute a search. Plain view is not limited to daytime hours. If a flashlight is used to see what would be visible in daylight hours, such as objects in the interior of a motor vehicle, the item does not cease to be in plain sight when the sun goes down [13] . [ 45 ] The applicant suggests that it was not possible for Officer Leclerc to see the armrest on the inside door panel from the place where she stood.

Officer Leduc testified to the effect that it was possible for her, when standing outside the car, to see the armrest on the passenger side. There is no other evidence that describes or shows the place occupied by such armrest in this type of car. The only evidence is the testimony of the two police officers. There is nothing in the evidence indicating that they are mistaken or misleading on

this issue. [ 46 ] The decision to arrest was not taken after Officer Leclerc smelled the burnt marihuana but after she saw the substances on the armrest. The arrest was legally made. [ 47 ] Considering that the arrest was legal, the search of the car was legal and, consequently, the seizure of the substances was legal. THEREFORE For these reasons, the Court: DISMISSES the motion. __________________________________ Yves Paradis, J.C.Q. Me Alexandre Gautier For Her Majesty The Queen Me Eric Sutton For Mr Valera Peker Hearing : June 1, 2015 and January 11, 2016.