R. v. Russell Date:, 2017 BCPC 60

Citation: R. v. Russell Date: 20170301 2017 BCPC 60 File No: 45500-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DENNIS JAMES RUSSELL DECISION OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: Ashleigh Baylis Counsel for the Defendant: Robert Maxwell Place of Hearing: Penticton , B.C. Date of Hearing: March 1, 2017 Date of Judgment: March 1, 2017

Introduction [ 1 ] Mr. Russell is charged with possessing a variety of illicit drugs some for the purposes of trafficking and others for personal consumption. He does not challenge the fact that he possessed the drugs for the purposes alleged; he challenges the lawfulness of the search of his computer bag and seeks to exclude the evidence found in it. The Crown argues that the search of the bag was pursuant to a lawful inventory search and the fruits of the search are admissible. Issue 1. Was the discovery of drugs in Mr. Russell’s computer bag the result of a lawful inventory search by police?

Background [ 2 ] Shortly after midnight on August 5, 2015, police stopped Mr. Russell’s vehicle in Summerland. Mr. Russell was on an undertaking not to be within the city limits of Summerland and arrested for breaching its terms. [ 3 ] The officer who arrested Mr. Russell decided to hold him in custody and take him to the Penticton police station. [ 4 ] Mr. Russell’s vehicle was straddling the fog line.

The officer determined the vehicle was in an unsafe location and arranged to have it towed. [ 5 ] While waiting for the tow, the officer seized a wallet from the passenger floor and a computer bag from the passenger seat. According to the officer, the items were in plain view. [ 6 ] The officer testified that he seized the wallet and computer bag pursuant to an RCMP policy to do an inventory search of vehicles when they are towed.

He explained that the purpose of the policy is to ensure the safekeeping of the accused’s personal possessions and avoid civil liability for the police. [ 7 ] When the officer returned to the police vehicle with the wallet and computer bag, he asked Mr. Russell whether there were any other items that he wanted removed from the vehicle. Mr. Russell told the officer that he did not want anything else removed and asked that he leave his bag and wallet in the car because he trusted tow truck operators more than he trusted police. [ 8 ] The officer did not return the two items to Mr. Russell’s vehicle.

Instead he took them back to the police station. At the police station, he opened the bag to do an inventory of its contents. In it, he found a laptop, large amount of cash, bear spray, and various quantities of individually bagged drugs. [ 9 ] According to Mr. Russell, when he was released on the original undertaking, he was told by the police officer (the same police officer who stopped him) that he could drive through Summerland without stopping.

However, for reasons unknown, he said he chose not to remind the officer about what he said previously. [ 10 ] In cross-examination, the officer denied giving the accused permission to travel through Summerland. [ 11 ] Mr. Russell’s counsel argued that that this was in contradiction to what the officer said in the examination-in-chief. What he did say in the examination-in-chief was that he could not recall if he discussed with Mr. Russell driving through Summerland. Having a discussion and actually granting permission are different and do not contradict each other. [ 12 ] Mr.

Russell testified that before the officer removed the computer bag from his vehicle he saw him leaning into it with only his feet sticking out the driver’s door. He opined the officer was inside the vehicle for a couple of minutes. The accused argues that the only inference to be drawn is that the officer looked through the bag before removing it. He also testified that he saw the officer open the trunk of the vehicle and look through it. [ 13 ] The officer denied both searching the bag’s contents before reaching the police station and opening Mr.

Russell’s trunk. [ 14 ] I accept the officer’s evidence that the purpose of retrieving the bag and the wallet from the vehicle was pursuant to his belief that he was conducting a lawful inventory search. [ 15 ] I also accept his evidence that he did not look through the bag prior to removing it from the vehicle. If he had located the drugs, the most logical inference would be that he would have then proceeded to arrest Mr. Russell for possessing them. He did not.

Instead, the bag was taken back to the police station, and only before it is secured, is it searched. [ 16 ] Furthermore, since the purpose of taking the bag and wallet were for inventory reasons, the officer would have been entitled to

search the bag at the scene, therefore there is no reason for the officer to be untruthful about where and when the bag was searched. Analysis 1. Governing Principles [17] The governing principles in assessing the lawfulness of a vehicle search are concisely summarized by Mr. Justice Watt of theOntario Court of Appeal in R v Harflett, 2016 ONCA 248, where he writes at paragraphs 11-14: As Binnie J. observed, roadside stops "sometimes develop in unpredictable ways": R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, atpara. 4.

In such situations the court's task is to "proceed step-by-step through the interactions of the police and the appellants from theinitial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to theinformation lawfully obtained at each stage of their inquiry." In this case, the officer's search of the appellant's vehicle was warrantless, and was therefore presumptively unreasonable. To justify awarrantless search, the Crown must establish, on the balance of probabilities, that (

i) the search was authorized by law; (ii) the law isreasonable; and (iii) the search was carried out in a reasonable manner: see R. v. Collins, (SCC), [1987] 1 S.C.R. 265, atp. 278, [1987] S.C.J. No. 15, at para. 23. The focus in this appeal is on the first and second branches of the Collins test since theappellant concedes the third branch. Under the first branch of the Collins test, "the state authority conducting the search must be able to point to a specific statute or commonlaw rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law": R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 12. Under the second branch of the Collins test, "the search must be carried out in accordance with the procedural and substantiverequirements the law provides": Caslake, at para 12. The second branch is not reached unless the first is met. [18] In the case at hand the first and third branches of the test are the focus of the analysis. 2. Was the search authorized by law? [19] When a vehicle is parked in an unsafe location,

section 188 of the Motor Vehicle Act authorizes police to either move thevehicle to a safe location or have it towed and stored in a safe place. The courts in this province and others have held that from theauthority to tow a vehicle carries the responsibility to take care of the vehicle and its contents, and when appropriate, conduct aninventory of the vehicle’s contents. This type of search is known as an “inventory search”.

R v Nicolosi, (ONCA); R v Strilec, 2010 BCCA 198 [20] In R v Cooper, 2016 BCPC 259, Judge Cutler describes the rationale behind the inventory search when he writes at paragraph16: In my review of the law it is clear that the rationale for permitting an officer to conduct an inventory search of the vehicle taken intopolice custody pursuant to statutory authority is not founded on the nature of the matter being attended to or investigated by the officer.The rationales are manifold including: serving the interests of any person who has an interest in the property and who looks to the policeto safeguard the property while it is in police custody; public safety concerns of contraband being held in police controlled or authorizedstorage facilities; and permitting police to engage in protective measures against potential civil liability for loss of or damage to propertyin a vehicle which has been taken into police possession. (R. v.

Wint, (2009) 2009 ONCA 52 , 93 O.R. 514 (Ont.C.A.), R. v.Nicolosi (1998) (ON CA), 127 C.C.C. (3d) 176 (Ont.C.A.), and R. v. Ellis, 2013 ONSC 1494 ). All three ofthese rationales were operative in this case once the officer decided the vehicle needed to be towed to a safe and suitable location. [21] In the case at hand, the officer had authority to tow Mr. Russell’s vehicle because it was parked where it could interfere withthe normal flow of traffic. He also had the authority to conduct an inventory search. 3.

Was the search conducted in a reasonable manner? [22] Under the third branch of the Collins test, the search must be carried out in accordance with procedural and substantiverequirements the law provides. [23] Simply because the Motor Vehicle Act provides police with the power to impound vehicles does not mean the way they exercisetheir discretion is above reproach. The reasonableness of the police conduct must be judged against the totality of the circumstances. The court must guard against abuses of police authority, even when that authority derives from statute.

[24] In R v Nicolosi, (ON CA), [1998] OJ No 2554 (CA), the court held that although the power to impoundvehicles exist, the power can be abused. The court states at paragraphs 15-17: Section 221(1) of the H.T.A. does not demand the impounding of all such vehicles regardless of the circumstances of an individual case.It merely gives the police the power to impound all improperly licensed vehicles. That power, like any power, can be abused. Thepossibility of abuse does not render the statute unreasonable.

Potential abuse is addressed by a consideration of the specific exercise ofthe impounding power in the circumstances of each case. That inquiry is directed to the constitutionality of the conduct of the police andnot the constitutionality of the statute. The findings of the trial judge doom to failure the appellant's contention that the police acted unreasonably in impounding the appellant'scar. The trial judge said: ...

I conclude that the combination of the accused's aggressive driving, hostile manner, failure to keep his car turned off, statement that hewanted to leave, statement that friends were arriving, and resistance to arrest, coupled with the hour of the day and the accused'snumerous breaches of licensing, registration, insurance and driving laws, all made it reasonable for the police to impound the Nicolosivehicle and tow it to a police station for the purpose of completing the impound report in a secure environment. This conclusion is sound.

I would add that I cannot accept the proposition that the impounding of a vehicle where it would be reasonableto allow the owner to see to the removal of the vehicle from the roadway would always constitute an unreasonable exercise of the powergranted by s. 221(1). The reasonableness of police conduct must be judged against the totality of the circumstances revealed in each case. [25] In R v Harflett, 2016 ONCA 248, the court held the decision by police to call a tow truck does not always justify a decision toconduct an inventory search. In that case, the accused was a suspended driver.

The officer decided to have his vehicle towed. His planwas to have it towed to a nearby hotel with the accused riding with the tow truck operator. The accused would then be in a position topay his fines the next day and drive. [26] Before the vehicle was to leave, the officer performed an inventory search and found a large quantity of drugs. [27] The officer testified that he searches “every vehicle” for which he calls a tow truck. He said the purpose of the search is toprotect both he and the tow truck operator from liability.

Despite his intention to allow the accused to accompany the tow operator withhis vehicle, he conducted an inventory search. [28] The court concluded that although the officer was obliged to get the vehicle off the road, he was not exercising the power toimpound it, and there was no reasonable basis for the officer to undertake an inventory search of the vehicle. [29] In R v Martin, 2012 ONSC 2298, a case cited by the Ontario Court of Appeal in Harflett, the court held that before towing avehicle, the officer should explore and allow the accused to exercise other reasonable options if they exist.

In that case, the accused wasstopped in a fire lane. The officer decided to have the vehicle towed. Before releasing the vehicle to the tow truck operator, the officersearched the vehicle and found a handgun. The court found the search to be unlawful. Justice Corbett held that not only did the policenot find themselves with the parameters of the

section of the Act that they relied upon to tow the vehicle, the accused was not given theopportunity to personally move the vehicle off the fire lane, find a friend to move it, or arrange for his own private tow. [30] Mr. Russell’s counsel argues Mr. Russell should have been given the same range of options Mr. Martin was such as: movingthe vehicle himself, calling a friend to move it, or arranging his own tow. [31] A similar argument was raised in R v Ellis, 2016 ONCA 598. In that case, the accused was seen walking away from a vehiclethat police had observed street racing.

The vehicle was parked in a private driveway. Despite having the keys to the vehicle the accusedclaimed he was not driving. The police decided to impound the vehicle because it was abandoned. They conducted a search and found ahandgun. [32] The accused argued that the search of the vehicle was unreasonable because the accused or his passenger should been given anopportunity to arrange for the car’s removal. The court did not agree.

The court pointed out the accused was under arrest, and allowinghim to move the vehicle was not an option, nor were police obligated to permit the accused to make other arrangements for moving thecar.

The court said that not only was the failure to allow the accused to make other arrangements not sufficient to establish anunreasonable search, there was no evidence that the accused even requested to do so. [33] Like the case at hand, the failure on the part of the police to allow the accused to make other arrangements for the tow of hisvehicle is not sufficient to establish that the subsequent search was unreasonable. The stop occurred late at night, there were no otheroccupants in Mr. Russell’s vehicle, and the vehicle was parked in an unsafe location.

It would not have been prudent for the officer to sitat the side of the highway allowing the accused to potentially make multiple calls on the off chance that someone could come and pickup his vehicle. [34] Nor, like Mr. Ellis, did the accused ask to make other arrangements for his vehicle. [35] The accused also argues that the officer’s real motivation to tow the vehicle was to justify a search of it.

He argued that officerwas familiar with his background in drug trafficking and was searching for further evidence. [36] I do not agree. [37] The officer denied that it was his intention to search for drugs and if it had been, one would have expected a much morethorough search of the vehicle and a search of the bag at the scene. However, even if the officer did have a dual purpose, the law is clearthat there is nothing improper with that as long as the search does not go beyond its proper scope.

[ 38 ] The rationale for needing to conduct an inventory search of the contents of a computer bag at the police station are the same as those for conducting an inventory search of the car’s contents in the first place. [ 39 ] Finally, the accused argues that the officer had a duty to place the items back inside Mr. Russell’s vehicle, when Mr. Russell told him to do so. In order for the officer to comply with Mr. Russell’s request, he would have had to be satisfied by doing so he would be absolved of any legal responsibility for the items.

I would not expect an officer to know the answer to that without getting some type of legal advice. Imposing such a burden on the police is not realistic. Conclusion [ 40 ] In

summary, the search of Mr. Russell’s computer bag was authorized by law as an inventory search condu cted pursuant to the police power to impound under

section 188 of the Motor Vehicle Act . The search did not violate Mr. Russell’s rights and I dismiss his application. _________________________________ The Honourable Judge G.W. Koturbash