R. v. Khan, 2012 ONCJ 130

Citation: R. v. Khan , 2012 ONCJ 130 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- DEEN KHAN REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with possession of marijuana and possession of oxycodone, offence date March 13 2011. With respect to the marijuana, the defendant relies solely on Charter arguments. With respect to the oxycodone, the defendant relies on the same Charter arguments but also disputes possession by denying knowledge of the drug’s presence. In brief: 2 .

Two witnesses testified – Officer Roberts of the Peel Police and the defendant. There are many conflicts in their respective versions of events. The police officer said that due to some erratic movements he stopped the vehicle the defendant was driving, smelled burnt marijuana, and asked about it. The defendant acknowledged having earlier smoked some in the car and having some in his possession, at his feet. The officer retrieved it and arrested the defendant. He put the defendant through some sobriety tests and later searched the vehicle more thoroughly and found the oxycodone in the console. 3 .

In contrast, the defendant said there was nothing wrong with his driving and he was told no reason for the stop. He acknowledged in his evidence that there was a smell of marijuana in the car but he denied admitting to the officer that he had been smoking and being still in possession. He said he was taken from the car and put through some sobriety tests, which he passed. The officer then searched the vehicle and located the bag of marijuana under the driver’s seat. He was then arrested. A further search turned up the oxy – which he knew nothing about. In greater detail: 4 . P.C.

Roberts has been a police officer since 1995 with Peel, Guelph and the Canadian military. He has been certified and worked as a breathalyzer technician, though on the day in question, March 13 2011, he was working with the central investigative unit patrolling areas where break-ins were common. At around 1:15a.m., he first noticed the defendant’s vehicle, an SUV, stopped on the eastbound side of Stargazer while facing westbound. The vehicle then moved to the correct side of the street and proceeded in a westerly direction.

It made an improper rolling stop through a stop sign, turning right for northbound Wainscott. It then made another rolling right turn through a red light at Eglinton, turning too widely and into the wrong lane. The car then stopped at a red light at Mavis before turning left to go northbound. The officer followed and stopped the vehicle a short distance up Mavis at around 1:19 am.

5. The reason for the stop was to check the driver’s sobriety. 6. As the officer approached the vehicle, all four windows were lowered and a strong smell of burnt marijuana emerged. It was avery distinct odour. While up to this point the officer was thinking in terms of possible alcohol impairment, he now began to considerdrugs and/or alcohol. The officer asked for driving documents. Once he had them, he asked about the smell of marijuana and whether thedefendant had been smoking.

The defendant admitted having smoked some in the car earlier while at the drive-in with his girlfriend andto having a pipe at his feet. He was going to reach down but the officer, for safety reasons, told him not to. The door was opened and thepipe and bag of marijuana was immediately seen and seized. The defendant was arrested at 1:23. 7. A call was made for a uniform officer to attend to continue the arrest since Roberts did not have a cage in his unmarked car. In themeantime, the defendant was put through some sobriety or drug influence tests.

The defendant explained to the officer that fatigueaccounted for his poor driving. In the result Roberts did not think the defendant was impaired. Officer Church arrived at 1:27 and placedthe defendant in handcuffs. The defendant was read his rights to counsel at that time. Roberts then returned to the defendant’s vehicle tosearch further and found the pills – 38 Oxy tablets - in a torn grocery bag in the centre console between the front seats. 8. The defendant testified that he had been at the drive-in in Oakville with his girlfriend and had smoked marijuana in the car.

Hehad dropped off his girlfriend and was headed home to Guelph when he was stopped. He denied following the route described by theofficer and of driving in any way abnormally, though he did concede that his location in Mississauga was inexplicable for one travellingbetween Oakville and Guelph. He said that as he turned left on Mavis he saw the police officer turn right but then execute a quick Uturn, follow and stop him. 9. The defendant denied that his windows were all down but agreed that two windows were down a bit to clear out the marijuanasmell.

He said the officer gruffly asked him for his documents and when he questioned why he was stopped the demand for documentswas made even more sternly. As he retrieved the documents, the officer leaned in the car and sniffed. He asked why there was a smell ofmarijuana and the defendant answered: “I don’t know what you’re talking about.” He was ordered out of the vehicle. He was patteddown[1]. He was subjected to a number of sobriety tests - which he passed. The officer then directed him to sit on the curb and hecomplied. The officer then searched the vehicle and retrieved the marijuana and pipe.

The defendant acknowledged it was his and that hehad been smoking earlier. He was arrested, handcuffed and directed to sit on the curb again. 10. Roberts then returned to search the vehicle further and came up with the oxy pills. The defendant was asked about them and hedenied any knowledge, offering the explanation then, repeated at trial, that other of his friends and family frequently drove the vehicle(which was registered to his father). The defendant testified that only then did P.C. Church arrive and take him into his custody.

He saidhe was not read his rights to counsel until they had returned to the police station. Charter issues: 11. The defendant makes the following Charter arguments: • He was stopped for no reason. His detention was therefore arbitrary, contrary to

section 9 • He was not informed of the reason for his detention when stopped and investigated: 10(a) • He was not informed of his right to counsel on arrest: 10(b) • He was subjected to unreasonable search and seizure: S 8. Burden of proof and findings of fact: 12. The burden of proof is on the defendant/applicant to satisfy me on a balance of probabilities that his rights were breached and thatevidence should be excluded. He is aided in respect of his claim under

section 8 by a presumption of unreasonableness for warrantlesssearches where the burden shifts to the Crown, again on a balance of probabilities. 13. Counsel for the defendant submits that in resolving credibility issues between the officer and defendant the well known case ofW.D. should be applied. I don’t think so. The WD formula is a corollary of the traditional burden of proof of guilt - beyond a reasonabledoubt. But Charter issues are determined on a balance of probabilities standard.

It would be incompatible with this burden to apply astandard of reasonable doubt to assessment of credibility going to those Charter issues: see by analogy R v Defaria2008 ONCJ 687, [2008] OJ 5427 14. Applying the above burdens of proof, I find the following: • I prefer P.C. Robert’s evidence over the defendant’s respecting the events up to the officer’s arrival at the door of the defendant’scar.

Specifically, I find that the vehicle was driving as described by Roberts, that he stopped it to check the driver’s sobriety and the fourwindows of the car came down as he approached. • I find that the officer did not specifically tell the defendant the reason for the stop. He asked for and received the drivingdocuments and then asked about the smell of marijuana. (this was common ground) • From that point on the two versions diverge. I find both witnesses and their versions equally credible and I am unable to choose oneover the other[2].

It follows from this that neither side has succeeded in discharging its respective burden of proof. Specifically I amunable to find that the search occurred as described by the officer but at the same time I am unable to find that the other alleged breaches

occurred as alleged by the defendant. This stalemate leads to the somewhat odd result that different issues must be determined below ondifferent and opposing factual findings.

Section 9: 15. I am satisfied that the stop of the defendant was carried out to check his sobriety. I accept Robert’s evidence regarding thedefendant’s driving. He was very detailed and precise in his description of that driving. By contrast, the defendant was well off any routebetween Oakville and Guelph and, I infer, was pretty much lost, inattentive and bewildered as to his route and his driving. 16. Even if there was no such suspicious driving, the authority of a police officer to stop and check sobriety is not dependant onobjective grounds suggesting impairment.

Random stops for sobriety check are valid: R v Ladouceur (SCC), [1990] 1SCR 1257. But again, this stop was not random in that there were grounds to suspect possible impairment. 17. Similarly, the detention of the defendant, the questioning and the roadside sobriety assessment were validly grounded in the samelegal authority as the stop. This is so even though the investigation almost immediately shifted focus to marijuana. The two concerns – sobriety and possession of intoxicating substances – are obviously related: R v Findlater (2010) 2010 ONSC 5141 , 5 MVR 6th 239 (Ont Sup Crt MacDonnell J). 18.

There was no breach of

section

Section 10a: 19. The defendant bears the burden on this issue and, as mentioned, he has not satisfied me that events occurred as he described. Inparticular, he has not established that there was an extended period of detention before the search and arrest. I accept the officer’sevidence that he asked for and received the driving documents, asked about the smell of marijuana and received an admission that lead toimmediate search and arrest. But even on this version, some 10a issues arise. 20. The first point concerns the failure to immediately advise as to the reason for the stop.

The officer, who had considerableexperience, said it was his practice to request and receive a driver’s licence and other documents before giving the driver the reason forthe stop and investigation. That way the driver can not take off when informed or if he does, his identity will be known. I think this is areasonable practice and, provided undue delay is not incurred, comes within the meaning of “promptly”. See by analogy recentinterpretation of the “immediacy” requirement in

section 254 also R v Quansah 2012 ONCA 123 21. The second and main point is whether what was said after receipt of the driving documents amounted to sufficient advice in thecircumstances. No particular words are required for 10a compliance. It is the substance of what is conveyed and can reasonably besupposed to have been understood that matters: R v Evans (SCC), [1991] 1 SCR 869.

R v Nguyen 2008 ONCA 49, [2008] OJ No 219 (CA) [3] For example, a police officer who stops a vehicle and inquires of the driver “have you beendrinking tonight?” surely conveys the same message as if he had said “I am detaining you briefly to check your sobriety.” 22. The issue of 10a compliance in this case must take into account the shifting reason for the stop and detention. While the initial stopwas to check sobriety, by the time the officer had received the documents his focus shifted from sobriety of the driver to marijuana,though the former remained a concern.

His question made clear the substance of the reason (or one of the reasons) for detention at thatpoint - marijuana. It is my view that this brief questioning provided sufficient information to the defendant as to the reason for the briefinvestigative detention that preceded his arrest. The requirements of

section 10a were therefore satisfied in the circumstances. 23. If I am wrong in this conclusion and there was a 10a violation, it would not be a case for exclusion. The informational deficiencypersisted for mere moments before arrest (again on the officer’s version). It did not alter the defendant’s predicament or legal status. Itcaused no prejudice. One of the main purposes of 10a is to provide information to assist the detainee in the exercise of his rights under10b in an informed way. But the 10b right was suspended in the circumstances of this case up to the time of arrest in any event. A 10aviolation therefore had minimal if any impact on the Charter protected interest.

Section 10b: 24. In his submissions, counsel for the defendant clarified that his position was that the 10b violation alleged was the failure to read therights on arrest. He was not arguing that they should have been read at an earlier point in time. 25. The relevant factual conflict is whether the 10 b rights were read when the second officer arrived (PC Roberts version) or whetherthey were not read until after arrival at the police station (defendant’s version). The defendant bears the burden. In my view he has notsatisfied it. I prefer the officer’s evidence on this point. 26.

But as with 10a, even the officer’s version raises some issues. He testified that he waited for the second officer to arrive beforereading rights because he didn’t want to take his eyes off the defendant to retrieve his rights card. Does that amount to a 10b violation? Idon’t think so. The obligation is to inform the detainee “without delay” which usually means “immediately”. However, there is somelatitude and the advice can be delayed in some circumstances, particularly where officer safety is concerned: R v Suberu (2009) 2009SCC 33 , 245 CCC3d 112 (SCC); R v Quansah supra.

I think the reason given for the delay in this case was valid. The delaythat resulted was 4 minutes. In my view this was, under the circumstances, compliance with the temporal requirements of 10b.

27. If I am in error in that conclusion, I am satisfied that it would in any event not be a case for exclusion. One of the lessons thatemerges from the Grant trilogy is that exclusion should be reserved for cases in which the breach is material – that it in some waymatters, either in the particular case or to the long term broader interests of the administration of justice. A delay of short duration in thecircumstances of this case is simply immaterial.

The informational component of 10b goes hand in hand with the operational component.In my view there is little purpose in providing the information about right to counsel much in advance of when the detainee can act uponthat information and exercise the right. So viewed, even the defendant’s version does not disclose a breach of any significance. 28. In fact, it seems to me that it might often be confusing for a detainee at the roadside to have the full 10b menu read to him including1-800 phone numbers and inquiries as to whether he wants to call a lawyer “now”.

Beyond confusing, the practice is probably waiver-inducing since the manifest impracticality of calling a lawyer “now” would be apparent to the detainee. To the extent that 10b advicemight provide some immediate comfort to the freshly arrested or detained, I suggest it would be better practice just to tell him succinctlythat he has the right to a lawyer and that the right can be exercised when they get to the station, where the full details of the 10b advicecould be given.

This practice would also automatically insulate the detainee from use of any incriminating statement he may make in theinterim, without the need to address often difficult questions of waiver.

Section 8: 29. I view this as the central issue in the case. 30. On either version, it was a warrantless search and the Crown bears the burden of showing reasonableness, that is, lawful authority.On the officer’s version the authority is clear. The defendant’s admission of marijuana at his feet provided evidence to support the arrestand search incident to it. However, as mentioned, I am not satisfied on a balance of probabilities that the officer’s version should beaccepted. 31.

The defendant’s version gives rise to a more complex question, being whether a vehicle search based mainly but not exclusively onthe smell of burnt marijuana is authorized by law. 32. The leading case in this jurisdiction is R v Polashek (ON CA), [1999] OJ No 968 (CA). In that case the accusedwas stopped for a traffic infraction. The officer testified that he smelled marijuana, though he could not say whether it was fresh or burntmarijuana. When he said that he smelt marijuana, Polashek responded “No you don’t”.

It was argued on the basis of Americanjurisprudence that the smell of marijuana alone cannot support arrest because it only shows that someone sometime smoked marijuana inthe vehicle and not that the present occupant is in present possession of the drug. The Court of Appeal declined to go so far. RosenbergJA said: 12 In short, the appellant argues that the presence in a vehicle of the odour of marijuana alone shows only that at some time someonesmoked marijuana in that vehicle. It does not provide reasonable grounds to believe that the present occupant of the vehicle was inpresent possession of marijuana.

Thus, it is argued, there are no grounds for an arrest or a search based solely on the officer's perceptionof marijuana odour. 13 I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of theodour I would have held that there were not reasonable and probable grounds to make the arrest.

Given Constable Ross' admission thathe could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell ofsmoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing anoffence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in thehands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave notrace. As Doherty J.A. observed in R. v.

Simpson at p. 202 "subjectively based assessments can too easily mask discriminatory conductbased on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation." (italics added) 14 On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can neverprovide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was madewill determine the matter.

It may be that some officers through experience or training can convince the trial judge that they possesssufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidencefrom which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than someother substance. 33. The Court went on to uphold the trial judge’s finding that reasonable grounds to arrest existed based on the circumstances over andabove the smell.

These circumstances were: the statement (“No you don’t”); the area of town (Malton, where marijuana use was said tobe prevalent); and the officer’s experience of being involved in 40 or 50 marijuana seizures (see Polashek para 15). These factorstogether with the italicized passage above make it apparent that the Court’s concern was not the honesty but rather the reliability oraccuracy of the olfactory observation. If reliability can be enhanced, reasonable grounds can be found to exist. [4] 34.

It seems to me that the facts in this case are similar to Polashek and even more supportive of a conclusion that reasonable groundswere present. These include: • The observed driving. While roadside test results pointed in another direction, the driving still had some significance. • The rolled down windows – an affirmation by the defendant’s action that the odour was indeed present. Further it suggests recentsmoking and not stale lingering smell. • That the odour was qualified as “strong”

• The statement – “I don’t know what you’re talking about” – very similar to the statement in Polashek • The ability of the officer to discern and articulate that it was burnt marijuana. • The officer’s experience – while not detailed specifically in relation to marijuana – it is reasonable to infer that 16 years or so ofpolicing experience would necessarily involve frequent dealings with marijuana. 35. I conclude that the officer had reasonable grounds to believe that marijuana had recently been present and smoked in the vehicle. 36.

This conclusion however would not be sufficient to permit an arrest – and search incident thereto - for simple possession of anunknown quantity of marijuana. Unless there is evidence of a quantity exceeding 30 grams, the offence is straight

summary andtherefore the defendant must be “found committing” it: [5] section 495(1)(

b) Criminal Code; see R v Loewen 2011 SCC 21 ,[2011] 2 SCR 167: R v Truong [2011] BCJ No 2078 and authorities cited therein. But this “found committing” issue does not arise in thiscase because, on the defendant’s version, he was not searched incident to arrest but rather a search was conducted before arrest, andprovided the evidence upon which the arrest was based. 37. So it comes back to the question: Was there legal authority for PC Roberts to search the defendant’s vehicle as described in thedefendant’s version of events? The Controlled Drugs and Substances Act provides in

section 11: 11(1) A justice who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance.. in respect of which this Act has been contravened is in a place may, at any time issue a warrant authorizing a peace officer … to search the place for such controlled substance ….and seizeit

(7) A peace officer may exercise any of the powers described in subsections (1), ……without a warrant if the conditions for obtaining awarrant exist but by reason of exigent circumstances it would be impractical to obtain one. 38. To summarize this provision, a justice can issue a warrant to search any place where there are reasonable grounds to believe thatmarijuana (in any amount) is present. Further, a warrantless search is permitted if a warrant could have issued (ie there are reasonablegrounds) and exigent circumstances exist. 39.

The first question: Could a justice have issued a warrant in the circumstances of this case? I have already concluded that there werereasonable grounds to believe that marijuana had recently been consumed in the vehicle. The

section speaks in the present tense – that acontrolled substance is in the place – but that is certainly one reasonable inference that could be drawn from the smell of marijuanasmoke: See R v Webster (2008) 2008 BCCA 458 , 238 CCC 3d 270 (BCCA) at para 31. The circumstances support (at least)two possibilities – that the marijuana that had been there had been totally consumed or that only some of it was consumed and some wasleft over and still in the vehicle. Both are reasonable inferences.

In considering whether reasonable grounds exist, the availability of oneinference does not negate the reasonableness of another alternative inference: R v Bush 2010 ONCA 554 , [2010] OJ No 3453(CA). Accordingly, I conclude that the circumstances in this case provided reasonable grounds to believe that marijuana was present inthe vehicle. A justice could issue a warrant. 40. The next and final question is whether exigent circumstances existed.

In the recent case of R v Kelsy 2011 ONCA 605 ,[2011] OJ No 4159, Rosenberg J.A. summarized the 2 bases for exigent circumstances: Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that haveaddressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destructionof the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern forpublic or police safety. 41.

With respect to the first basis – loss or destruction of evidence or contraband – a series of cases of high authority has established thatsuch exigent circumstances will often, though not invariably, be present by reason of the evidence or contraband being present in a motorvehicle: R v Rao (1984) (ON CA), 12 CCC3d 97 (Ont CA: Rv Debot (1986) (ON CA), 30 CCC 3d207 (Ont CA) R v Grant (SCC), [1993]3 SCR 223.

With respect to the second basis – police and public safety,Rosenberg J.A. in Kelsy noted that the parameters were rather vague and may be largely subsumed by statutory provisions (such as s529.1 dealing with warrantless arrests in dwelling houses) and the common law Waterfield doctrine.

There can be no doubt however, thatconcern for safety of an individual, the police or the public at large can in itself justify a reasonably grounded though warrantlessintrusion into areas of privacy to search or arrest where it is impractical to first obtain judicial authorization: R v Godoy1999 CanLII 709(SCC), [1999] 1 SCR 311 42. While a finding of either basis for exigent circumstances may suffice, in my view both bases were present in this case. Theircombined effect justified the minimally intrusive search of the vehicle that occurred here[6].

The officer was confronted with a situationwhere he had good reason to believe that the lone occupant driver had recently consumed an intoxicant – an illegal one - in the vehicle.Even if not demonstrably impaired at that point in time, there would be nothing to prevent him consuming some more, if he had it, as hecontinued on his way. He had already demonstrated no reluctance to do so that evening.

Obtaining a warrant was clearly not feasible.The only other alternative – that the officer must bid him good evening through a cloud of green smoke and send him on his way backinto traffic – is not attractive or reasonable. 43. It is my conclusion that in this case exigent circumstances existed supporting a warrantless search of the vehicle, as authorized by

section 11(7) of the CDSA. Accordingly, even on the defendant’s version of events, the search was authorized by law. There was nobreach of

section 8 of the Charter. 44. In closing on this topic I would add that I am very much aware of the potential for abuse inherent in permitting a warrantless searchof a vehicle based substantially though not exclusively on alleged smell of marijuana. Such claims by police officers should bescrutinized with care. In this case there is no question of the bona fides of the officer’s evidence about the smell as the defendant in hisevidence acknowledged that it was present and that he was airing out the car to get rid of it.

I would point out as well that the police havelong had the authority to conduct warrantless searches of vehicles and all persons in them on reasonable grounds to believe that liquor isbeing unlawfully kept in the vehicle: Section 32(5) Liquor Licensing Act RSO 1990 C L-19. This authority does not seem to be abused. Itwould not be a significant additional encroachment on civil liberties – and it would be consistent from a public safety standpoint – torecognize a similar power where there are grounds to believe in the presence of a similar potentially intoxicating illegal substance. 45. The evidence is admissible.

There are no other issues. The defendant is found guilty of possession of marijuana. Oxycodone: 46. The issue here is knowledge. There is no evidence that the defendant ever handled the pills or the bag they were in. They were notin a visible location. There is no evidence that he had exclusive use of the vehicle and his evidence was that he did not. 47. There is a reasonable doubt that he had the requisite knowledge of the presence of the pills. He is found not guilty on that count.

March 6, 2012 B Duncan J A Akinyemi for the defendant; C Afonso for the Crown [3] It is of some interest that the pre-Charter law about the duty of an arresting officer to provide the reason for arrest had establishedthat it is not necessary to do so if the surrounding circumstances make the reason obvious: R v Beaudette (1957) (ONCA), 118 CCC 295 (Ont CA); R v Shore (1961) (BC CA), 129 CCC 70 (BCCA) .