R. v. Olsen, 2019 NSSC 209

Supreme Court of Nova Scotia Citation: R. v. Olsen, 2019 NSSC 209 Date: 20190620 Docket: 478649 Registry: Port Hawkesbury Between: Nancy Olsen and Andrew Carver Applicants v. Her Majesty the Queen Respondent Library Heading Judge: The Honourable Justice Patrick J. MurrayHeard: May 17, 2019 in Port Hawkesbury, Nova ScotiaOral Decision: June 20, 2019Written Decision: June 25, 2019 Subject: Criminal law; s. 8, 9, 10 and 24 of Charter, unlawful arrest and exclusion of evidence. Section 495(1)of C.C.C.Summary: Cpl. Kutcha while on duty noticed a car parked in a vacant parking lot.

After a closer inspection of thevehicle he noticed the tires of the vehicle were balding. Officer requested the registration andinsurance papers under the MVA. Upon review of the driver’s licence the name of the driver wasknown to the officer as an individual involved in drug trafficking. An unlabelled prescription pillbottle fell out of the glove compartment containing a white substance. Officer noticed the smell offresh marijuana. Officer placed driver and passenger under arrest.Issues: Was the arrest lawful? Were there reasonable grounds?

Should the evidence be excluded at trial pursuant to s. 24(2) of the Charter?Result: Court found that there was a breach of s. 8, the preconditions of a lawful arrest not having been met. Given the breaches, and the factors in R v. Grant the Court found there should be an exclusion of theevidence at trial.Cases cited: R v. Debot, (SCC), [1989] 2 S.C.R. 1140; R v. Harding, 2010 ABCA 180; R v.Canary, 2018 ONCA 304; R v. S.T.P., 2009 NSCA 86; R v. Palmer, 2018 ONCA 974; R v. Emsley,[2006] O.J. No. 5476; R v. Hussey, 2017 NSPC 59; R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Olsen, 2019 NSSC 209 Date: 20190620 Docket: 478649 Registry: Port Hawkesbury Between: Nancy Olsen and Andrew Carver

Applicants v. Her Majesty the Queen Respondent Judge: The Honourable Justice Patrick J. Murray Heard: May 17, 2019, in Port Hawkesbury, Nova Scotia Oral Decision: June 20, 2019 Counsel: Daniel J. MacIsaac for the Applicant, Nancy Olsen Kevin Patriquin for the Applicant, Andrew Carver Wayne MacMillan for the Respondent, Her Majesty the Queen By the Court: Facts [ 1 ] On the 30 of October, 2019, a vehicle driven by the Accused, Nancy Olsen was parked, facing inward at the Nova Scotia Tourist Information Centre in Port Hastings, near the Canso Causeway. There had been a torrential downpour.

In the vehicle with her was the Accused, Andrew Carver, who occupied the front passenger’s seat. According to her evidence, she was stopped there to phone her daughter, when RCMP officer, Corporal Curtis Kutcha (hereinafter referred to as “Cpl. Kutcha”), approached her vehicle around 3:00 p.m. that day. [ 2 ] Cpl. Kutcha had been patrolling the area in his marked police vehicle and first noticed the vehicle as he was rounding the rotary which is adjacent to the said parking lot. When he returned to the rotary the lone vehicle was still parked there.

The tourist centre was closed. [ 3 ] The officer pulled into the lot and approached the vehicle from the front passengers’ side, where Mr. Carver was sitting. He engaged in general conversation with Ms. Olsen and Mr. Carver though the open window, which had been rolled down when he reached the vehicle. [ 4 ] Cpl. Kutcha noticed the tires had been “turned in”, to the left, and he could see the thread was low. The conversation was of the heavy rain and the water on the roads. According to the officer’s evidence, he asked Ms.

Olsen for her licence, registration and proof of insurance. [ 5 ] It was at about this same time that he noticed a smell of fresh marijuana. He confirmed he asked for the licence because of the tires and not the smell, as it was a MVA violation. [ 6 ] Cpl. Kutcha testified that he never met but had heard of the name Nancy Olsen. When she gave him her driver’s licence, he recognized her name as someone who had been identified previously (from information received from two different people) as being involved with trafficking of controlled drugs and substances.

These independent sources he said, connected her to a man named Justin Goswell, who she had been involved with in trafficking cocaine. [ 7 ] During this time the glove compartment had been opened so as to retrieve the registration and insurance papers. When it opened, a yellow pill bottle fell out. The label was ripped off and it appeared to contain white powder. The bottle was described as opaque, the type used for prescription pills and was a “see thru” bottle. [ 8 ] Cpl. Kutcha described his background in some detail. He had been involved in over 150 drug investigations and expert reports.

It is common he said, in the drug trade for labels to be torn off. If seized by police, the identity of the seller or where they are from would not be known. He was aware of this from many prior investigations, in which no less than 10 or 15 involved prescription pill bottles. [ 9 ] Cpl. Kutcha testified that the pill bottle was the third thing in the series of events that led to his decision to arrest, Ms. Olsen and Mr.

Carver. [ 10 ] He was asked by the Crown about his reaction to seeing the pill bottle: Q: So as a result officer of seeing that prescription bottle in the glove department, what do you do next after making these observations? A: Yes, as soon as I see that prescription pill container with a white substance in culmination with the smell of fresh marijuana that I

had, and also given the information that I had received from the sources and the totality of everything that I have given testimony totoday and just from the experience that I have in drug investigations I, I made an arrest of Mr. Olson, ah, Ms. Olson and Mr. Carver, Iapologize, I arrested them for possession of a controlled drug or substance for the purpose of trafficking. [11] The arrest was made by Cpl. Kutcha at 3:08 p.m. According to his notes he first approached the vehicle at 3:05 p.m. so the totaltime that had elapsed between the first contact and the arrest was three minutes. [12] Both Accused, Ms.

Olsen and Mr. Carver, are each facing 4 counts of possession of a controlled substance for the purpose oftrafficking. The drugs alleged in these charges include marijuana and cocaine, as well as a quantity of OxyContin pills anddexamphetamine pills. [13] Following the arrest, Cst. Layman arrived at the scene to assist in the arrest of Ms. Olsen. According to his evidence, he placedher under arrest for a second time and read to her, her charter rights and police caution. Cst. Layman stated that he arrested Ms. Olson forsimple possession, of a controlled substance pursuant to s. 4(1) of the CDSA.

Analysis [14] The Crown’s position is that this is a typical situation, where an officer encounters a number of indicators which support acharge of possession for the purpose of trafficking. [15] The Crown acknowledges that the source information does not meet the R v. Debot, (SCC), [1989] 2 S.C.R.1140, factors of being credible, compelling and corroborated. By the Crown’s own admission, the facts here do not support thisinformation on its own as justifying an arrest. [16] In terms of smell, Cpl. Kutcha did not detect this right away and the evidence of Cst. Layman does not corroborate Cpl.

Kutchathat there was a smell of fresh marijuana emanating from the vehicle. Cst. Layman’s evidence did not make mention of any odour ofmarijuana coming from the vehicle. [17] In terms of smell, while there are exceptions, the majority of cases indicate that where an odour is being relied upon, there isoften some form of corroborating evidence to support the grounds for arrest, although as was the case in R v. Harding, 2010 ABCA 180,the smell of raw marijuana alone can be sufficient. [18] It is important to recognize, as stated by the Crown in referring to R v.

Canary, 2018 ONCA 304, that these factors are not“individual silos” that either stand up on the evidence or are toppled by the lack of evidence or difficulties with them. [19] The Crown correctly points out that it is the totality of the circumstances that must be considered, in assessing whetherreasonable grounds exist for an arrest by police. [20] In addition, there is both the subjective and objective parts of the test, as seen through the lens of the officer who determinedthat the facts as he/she saw them were sufficient to conclude that a person has committed or is about to commit an indictable offence (asper s. 495(1)(a)). [21] The officer in question, Cpl.

Kutcha, provided evidence of his background. That evidence stands uncontradicted. He wasasked, as an experienced drug officer about the factors present in this case: A: On scene when I saw that container, and again My Lord, speaking from my experience that I’ve articulated to you already aboutdrug investigations it’s not uncommon for people who sell controlled drugs or substances at the street level to do such with multicommodities to increase their profit margins.

So, it’s very… this is just my answer to your question, when I put the fresh marijuanaodour together with the information and with what I believed to be cocaine at the time in that prescription pill container it’s that thosetypes of things are consistent with the like, in my mind, like a multi, like a very low street level multi commodity dealer. [22] In this case, because the search was without a warrant, it is presumed to be unreasonable unless the Crown shows by leadingcredible evidence that reasonable grounds exist, and thus the presumption is displaced or rebutted.

That onus is on the Crown. [23] This brings me back to the evidence of Cpl. Kutcha. To his credit he was candid in that, the first two factors, name recognitionand the smell had not led him to conclude he had sufficient grounds. It was not until he encountered the pill bottle with the whitesubstance in it, that he felt there were sufficient grounds to make an arrest. [24] Cpl. Kutcha believed the pill bottle to contain cocaine. He clearly had a subjective belief that the half full bottle contained acontrolled substance. After further conversation with Mr. Carver, the officer was satisfied it was not cocaine.

At that point the verything that in his mind had solidified the decision to arrest, was in error. The officer was asked, what was the drug that was possessed forthe purpose of trafficking. He answered it was, “marijuana and cocaine”. [25] In forming the grounds it was his understanding that cocaine had been found and that in fact, “crystalized” his belief thatreasonable grounds for arrest on these charges existed. [26] Cpl. Kutcha gave further evidence that baking soda, which is what Mr. Carver said it was, is used as a cutting agent for cocaine. The substance was never analysed.

Decision [27] Of the three components relied upon by the officer, the second and third, smell and a belief the substance was cocaine, weresubjective in nature. The third, which was the first in time, was his recognizing of Ms. Olsen’s name. What then was the objective basisfor the officer’s belief that these persons were involved in the trafficking of these drugs? The officer said it was the existence of the

information on Ms. Olson and the multiproduct substances. [28] If the first two factors were inconclusive, is the consideration of all three factors any more reliable? Reasonable groundsrequires more than mere suspicion. Is the whole any greater than the sum of its parts, in terms of whether the evidence supports anobjective belief that reasonable grounds existed, on a balance of probabilities? The officer clearly held a subjective belief. Ms.

Olsen inher affidavit, denied there was a smell from the vehicle. (Paragraph 8) [29] The pre-condition of a lawful arrest is whether, in the circumstances of the case there were reasonable and probable grounds toarrest the accused.

With the Criminal Code amendments, it is now whether there were “reasonable” grounds. [30] In Canary, paragraphs 21 – 22 are instructive as to the approach to be taken when an officer makes a warrantless arrest andperforms a subsequent search. [21] Where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the officer may make awarrantless arrest: s. 495(1)(

a) of the Criminal Code. There is both a subjective and objective component to the reasonable groundsinquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer“must subjectively believe that there are reasonable grounds to make the arrest”: R. v. Saciragic, 2017 ONCA 91 , leave toappeal refused, [2017] S.C.C.A. No. 106, at para. 16. To fulfill the objective requirement, the officer’s belief must be objectivelyreasonable in the circumstances known to the officer at the time of arrest: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, atpp. 250-51; R. v. Bush, 2010 ONCA 554 , 101 O.R. (3d) 641, at para. 38; Saciragic, at para. 16. The objective inquiry askswhether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable[1] groundsexisted to make the arrest”: Storrey, at pp. 250-51. [22] When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discerniblefacts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v.

Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers isnot a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everydayexperience”: R. v. MacKenzie, 2013 SCC 50 , [2013] 3 S.C.R. 250, at para. 73. [31] In this case, the Crown also refers to paragraph 31. … Facts known to an officer at the time of arrest should not be considered within individual silos.

The question is not whether each fact,standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of areasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable. [32] In Canary, it was found by the trial judge that the officer did not recognize the pills in the bins but continued to have the beliefthat he had witnessed a drug transaction.

He knew the bins themselves containing 220,000 pills to be associated with clandestineactivity, passed in a “trunk to trunk” transaction. As the court said in upholding his decision, the officer’s belief took on an added layerof reasonableness when one considers that a “brick of cash” had been exchanged in a plastic bag. The court concluded the facts knownto the officer well-supported an arrest. [33] The Nova Scotia case of R v. S.T.P., 2009 NSCA 86, involved the search of a young person incident to arrest, resulting in thediscovery of cocaine.

In that case the investigating officers detected the smell of burnt marijuana. While the court acknowledged thatsmell alone may not have justified the arrest, it found, as did the trial judge, there were many more factors that “coalesced” to justify thearrest.

In S.T.P., the fellow officer found the smell to be strong; the car was parked suspiciously in the rear parking lot; the passengerdisplayed nervous behaviour, turning his head; the vehicle turned quickly after seeing police into a McDonald’s parking lot; when theofficer ran the plates it showed bail violations and “trafficking cannabis”. [34] With respect to the “reputation” evidence, Cpl. Kutcha said that the first source did not have a criminal record, and wasemployed locally. He/she had talked to a relative or friend of Ms.

Olsen, and had previously only provided general information, and thedate of the information was 2 or 3 months previous. [35] With respect to the second person, he/she had a criminal record, and was known to use controlled substances, and known toCpl. Kutcha for only a short time. The source was said to have had direct conversations with Ms. Olsen about her involvement with Mr.Goswell in transporting drugs or cash. [36] The Crown once again says, its not a question of knocking down each individual factor. It is a global analysis that is required,as stated in R v. Palmer, 2018 ONCA 974.

It is not a piecemeal analysis to be performed with “microscopic scrutiny of individual items,shorn of their context”. [37] The Crown submits there was no detention and that the first step by the police was the arrests. The Crown submits this case isanalogous to the decision in S.T.P., referring in paragraph 29 to the entire context. In my view, there are fewer factors present here. [38] With respect to the source information, the Crown says it is ancillary to the odour. As in R v.

Shallow, 2018 ONSC 3616, thefactors on their own may be inadequate, but putting them together provides more than reasonable and probable grounds says the Crown,for the arrests made here and the search incidental to them. [39] Cpl. Kutcha said in his testimony that these facts, the source information, the smell and the pill bottle exhibited and showed thesigns of a low-level street dealer.

He gave evidence on his extensive background as an experienced drug officer. [40] On the other hand, there are obvious deficiencies in the three grounds relied upon as the basis for the arrests which cannot beignored, whether they are considered individually or together. [41] Cases such as R v. Emsley, [2006] O.J. No. 5476, and R v. Hussey, 2017 NSPC 59, have suggested that while smell can form

reasonable grounds, courts must be cautious as it is a highly subjective factor. Other than the officer explaining the difference between fresh and burnt marijuana there was no indication here of the smell being strong or weak. It was not detected immediately, but it was said to be coming from the car and not the individuals. [ 42 ] Cst. Layman assisted in the search of the car and was not called to provide confirmation of the smell nor does his evidence (from the preliminary) confirm that a smell existed in the vehicle. Ms.

Olsen denied such a smell existed, her counsel stating it was a windy day. [ 43 ] With respect to the source information the Crown acknowledges it falls short of a credible based conclusion under the caselaw. [ 44 ] The pill bottle was the critical factor for the officer’s subjective and objective belief. The label being scratched off was of some significance to the officer as being common in the drug trade. Still it was his assumption that it contained cocaine.

I concur with the Defence that his experience might have allowed him to conclude it was not upon further inspection, but he had already made his decision at that point, in what had been a quick, short span of time. [ 45 ] The Courts have set out the proper approach as being flexible, practical with the use of common sense.

These matters should not be looked upon or assessed as “individual silos” but rather on the totality of the circumstances. [ 46 ] In my view, and with due respect, whether considered individually or in combination, I am not satisfied that the Crown has discharged its burden of establishing that these arrests were lawful, with cogent evidence so as to displace the presumption of an unlawful search. I find therefore, there was a breach of s. 8 of the Charter , the pre-condition of a lawful arrest not having been met. [ 47 ] It is not as apparent that there was a breach of

section 9 when the officer first approached the vehicle or of

section 10 of the Charter , but I will make brief mention of these in my decision on exclusion under section 24(2). [ 48 ] For all of the above reasons, I find the arrests in this case were unlawful and turn to consider whether the evidence obtained should be excluded. Section 24(2)- Charter [ 49 ] In terms of whether the evidence should be excluded, there are the three lines of inquiry set out in R v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, with the ultimate question being, having regard to all of the circumstances, would admission of the evidence bring the administration of justice into disrepute.

The approach to be taken is in the long term. i. Seriousness of the Breach [ 50 ] There was not egregious behaviour here on the part of the police and indeed the police arguably acted in good faith, out of concern for safety and the well being of the occupants of the car, in regard to the tires and road conditions. [ 51 ] There is little doubt however, that the police were intent on questioning the occupants when Cpl. Kutcha pulled up beside the vehicle, before any inspection of the tires. This was so, even though no apparent motor vehicle offence was being committed.

This shows some disregard for the privacy rights of the accused persons and their right to privacy in their vehicle. Although the expectation of privacy is less than that of a dwelling, there is still a privacy right in the vehicle and its contents, except for items in plain view, in an authorized police check. [ 52 ] Overall the breach does not appear overly serious, but the Accuseds were likely detained or under a form of detention once the officer requested the registration and other documents. No police caution or Charter warning had been given to either Accused at that point. ii.

Impact of the Breach [ 53 ] This factor extends to and is considered in concert with the seriousness, but I will not repeat those points. The extent of the breach in terms of intrusiveness and whether it was merely technical or profound are considered. [ 54 ] There was some evidence available to the officer, even if the Court found it was not sufficient grounds for the arrests. The officers are duty bound to be vigilant and protect society from the harmful effects of drugs in the community. [ 55 ] On the other hand, there was the second arrest of Ms. Olsen by Cst.

Layman during which he arrested her for a lesser offence than the first arrest. She had a right under s. 10(

a) to be informed promptly of the reasons for her arrest, and accurately. It appears on the face of the evidence, she was not. [ 56 ] Also, while it may fall more under the first criteria, Cpl. Kutcha was unsure whether the substance in the pill bottle had been analyzed or whether he simply took Mr. Carver’s word that it was not cocaine. As an aside, the officer also testified, that if it was cocaine, it was a diluted version of it, as it did not have that oily-based appearance. He “pressed on” with the charges. iii.

Society’s Interest in Adjudication of the Case on its Merits [ 57 ] It appears (subject to proof at trial) that controlled substances were found in the vehicle, and for reasons earlier stated, society had an interest in seeing these matters tried on their merits given the serious nature of the charges. Society in general is also interested in due process, and fair treatment of individuals detained or arrested.

It would not, in my view, condone a rush to judgment. [ 58 ] Balancing these considerations, I have decided that exclusion of the evidence would best promote the administration of justice, having regard to all of the circumstances in this case. [ 59 ] This concludes my decision.

Murray, J.