Her Majesty the Queen - v. -, 2017 SKPC 028

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 028 Date: March 23, 2017 Information: 24517208 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dakota Isbister Appearing: Dan Heffernan For the Crown Tumi Odele For the Accused DECISION ON VOIR DIRE F.M.

D AUNT , J [ 1 ] Dakota Isbister stands charged that she did, on or about the 12th day of February, 2015, near Montreal Lake: Unlawfully have in her possession a controlled substance to wit: Cannabis Marihuana in an amount not exceeding 3 kg for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act .

Wilfully obstruct Kennedy Gallant a peace officer to wit: a police constable for the Royal Canadian Mounted Police engaged in the execution of her duty to investigate a criminal offence by providing a false name and piece of identification, contrary to Section 129(2) of the Criminal Code .

[ 2 ] The trial commenced with a voir dire to determine whether the police infringed Ms. Isbister’s sections 8, 9, and 10(

b) Charter rights and, if so, whether the evidence should be excluded pursuant to section 24(2) of the Charter of Rights and Freedoms . FACTS [ 3 ] The Crown called two witnesses on the voir dire , Constable Kennedy Gallant and Constable Manuel Borges. Their evidence is mostly consistent, so I summarize below. The defence called one witness, Vincent Thompson. 1. Crown Evidence [ 4 ] On February 15, 2015, around 2:00 in the morning, Constables Gallant and Borges were returning an arrestee from Waskesiu to Montreal Lake.

About halfway there, they spotted a vehicle parked on the approach to the (now closed) Highway 969, its engine running. It was late at night on a snowy winter’s night on a relatively remote stretch of road. Fearing for the occupants’ safety, the officers decided to perform a licence, registration, and sobriety check. They stopped behind the vehicle, activating their emergency equipment. [ 5 ] Constable Borges stayed in the police vehicle, performing a licence plate check, while Constable Gallant approached the driver’s side of the vehicle.

She was immediately overcome with the smell of raw marijuana, which she described as “overwhelming.” She almost immediately embarked upon an investigation of a possible violation of the Controlled Drugs and Substances Act . [ 6 ] She told Vincent Thompson, the driver of the vehicle, that she smelled marijuana. He said she did not.

The passenger, Dakota Isbister, said “Can’t a pregnant lady take a piss on the side of the road?” Constable Gallant shone her flashlight into the back passenger area of the vehicle, where she saw flecks of suspected marijuana on top of a blanket. [ 7 ] Constable Gallant motioned to Constable Borges to join her at the vehicle. Constable Borges complied. On the way, he smelled burnt marijuana. At the vehicle, he smelled raw marijuana. He, too, described the odour as “overwhelming.” He says he saw “flecks” of marijuana through the back window of the vehicle.

He says the interior light was on, giving him a good view to the back seat area of the vehicle. [ 8 ] The officers had a brief discussion and agreed they had grounds to arrest both occupants for possession of marijuana. Constable Borges dealt with the driver and Constable Gallant dealt with Ms. Isbister. She asked the accused to step out of the vehicle, handcuffed her, and did a brief pat down search before placing Ms. Isbister in the back of the police vehicle. At 1:56 a.m. she formally arrested Ms. Isbister for possession of marijuana and read her right to counsel and police warning.

The accused gave the name of Jeannie Amanda Roberts. The accused said she did not want to contact a lawyer. [ 9 ] The officers then conducted a search of the vehicle incident to arrest. In the back passenger area, they discovered two shopping bags, each containing two vacuum-sealed bags of what appeared to be marijuana. One of the vacuum bags had been torn open. They decided, given the cold and the lighting conditions, to tow the vehicle to the detachment for a more thorough search. At 2:05 a.m. they re-arrested both occupants for possession for the purpose of trafficking and again read them their rights.

At that point, Ms. Isbister said she did want to contact a lawyer. Because she could not ensure privacy, Constable Gallant decided to wait until they arrived at the Waskesiu detachment before allowing access to counsel. The police then took steps to secure the vehicle and to have it towed to the Waskesiu detachment. [ 10 ] At the Waskesiu detachment, Constable Gallant placed Ms. Isbister in the interview room to allow her to contact a lawyer. Before allowing a phone call, however, Constable Gallant discussed the name Ms. Isbister had given upon her arrest. Ms. Isbister admitted to lying about her name.

Constable Gallant explained the charge of obstruction to her. Constable Gallant could still smell marijuana on the accused, so she asked Ms. Isbister if she had any more in her possession. Ms. Isbister took a small burnt roach out of her bra and handed it to the officer. Constable Gallant then decided to strip search Ms. Isbister, “... just because I thought if she’s hiding it in her bra, where else could she be hiding it?” The strip search revealed no further evidence. [ 11 ] Only then did Constable Gallant contact duty counsel. Ms.

Isbister was put in contact with Legal Aid at 2:55 a.m., 50 minutes after she requested it, and about an hour after her initial detention. The phone call ended at 2:58 a.m. There was no evidence that the police attempted to get a warned statement from the accused.

2. Defence Evidence [ 12 ] Vincent Thompson, the driver of the vehicle, testified for the defence. He says he and Ms. Isbister were parked for a bathroom break when the police pulled up behind him. He says the windows were frosted, and the police could not have seen marijuana in the back seat. He gave his licence and registration to the female officer.

She said “You smell like marijuana.” He said “I don’t even – I didn’t even smoke no marijuana.” The female officer handed the licence and registration to the male officer. [ 13 ] The male officer asked him to step outside the vehicle, while the female officer started shoving Ms. Isbister toward the police truck, saying “I want to talk to you.” Ms. Isbister said, “Don’t push me. I can do it myself. I can get there myself.” Mr. Thompson asked Constable Borges to tell his partner to settle down, which he did. Both Mr. Thompson and Ms. Isbister were placed under arrest, and the police started searching the vehicle.

Mr. Thompson says Ms. Isbister was arrested for “not cooperating” with the police. He says the officer asked Ms. Isbister for ID, and she produced it, but it wasn’t hers. He says that they weren’t given their rights until after the police searched the car and found the marijuana. He says they were arrested for “trafficking or possession or whatever.” [ 14 ] Mr. Thompson acknowledges the kilogram of marijuana in the vehicle, but says that the vehicle did not smell like marijuana because nobody smoked marijuana in the vehicle.

In cross-examination, he acknowledged that when Constable Borges brought the evidence bag containing marijuana into the courtroom, “That was a really powerful, potent smell.” In his car, however, Mr. Thompson had “food and everything in there,” so he believes the officers could not have smelled the marijuana. [ 15 ] He also says that the marijuana was not vacuum-sealed, but was in Ziploc bags, none of which were torn open.

He says the police must have put the marijuana in vacuum-sealed bags after it was seized, and then torn one of them. (I note that Constable Borges testified that he owns a Food Saver vacuum sealer, which he uses proudly. I’m not sure quite what to make of this evidence. I can see no reason for the police to do such a thing.) [ 16 ] Mr. Thompson says the marijuana belonged to him; he put the marijuana in the vehicle. 3. Findings of Fact [ 17 ] With respect, I find Mr. Thompson’s evidence unreliable. His testimony was erratic, and it is difficult to ascertain a chronology of events.

His opinion that the officers could not smell marijuana is just that: an opinion. He has no personal knowledge of what they could or could not smell. Raw marijuana has a strong and distinct odour, as we in the courtroom experienced when Constable Borges produced it. [ 18 ] Mr. Thompson says the windows were frosty and so Constable Borges could not have seen marijuana in the back seat. However, he acknowledged in cross-examination that the windshield was clear, as were the driver and passenger windows. Mr.

Thompson was not asked, and so did not deny, that flecks of marijuana were plainly visible with the use of a flashlight. Furthermore, he was unclear on the order of events, whereas the officers’ evidence was clear and consistent. I find that the couple were arrested for possession of marijuana before the officers undertook a search of the car. [ 19 ] In short, I accept the evidence of Constable Gallant and Constable Borges. I reject the evidence of Mr. Thompson where it differs from that of the officers. ISSUES 1. Was the accused arbitrarily detained (Section 9)? 2. Was the search reasonable (Section 8)? 3.

Was the accused’s right to counsel violated (Section 10(b))? 4. If so, should the evidence be excluded (Section 24(2))?

ANALYSIS 1. Arbitrary Detention [ 20 ]

Section 9 of the Charter of Rights and Freedoms states: “Everyone has the right not to be arbitrarily detained or imprisoned.”

Section 9 protects individual liberty against unlawful state interference. A lawful detention is not arbitrary, unless the law authorizing the detention is itself arbitrary. That was not argued here. However, a detention not authorized by law is arbitrary and violates the

section 9 guarantee. [1] [ 21 ] In Saskatchewan, s. 209.1 of The Traffic Safety Act , ss 2004, cT-18.1, s. 209.1 ( TSA ) authorizes police to stop a motor vehicle to check whether the driver is duly licensed, whether the motor vehicle is properly registered, and to check on the sobriety of the driver. Furthermore, police officers have a common-law duty to protect life and property. [2] I accept that the officers were concerned; the occupants of this motor vehicle might be stranded on an isolated stretch of road in the middle of winter. The officers had a duty to ascertain their wellbeing.

Furthermore, the police were authorized under the TSA to detain the vehicle briefly to check on licence, registration and sobriety. This initial contact with the accused was perfectly lawful. [ 22 ]

Section 495 of the Criminal Code allows a peace officer, without a warrant, to arrest a person who she believes, on reasonable grounds, has committed an indictable offence, or to arrest a person whom she finds committing a criminal offence. For indictable offences, the officer need only have reasonable grounds to believe an offence has been committed. For

summary conviction offences, the officer must find the accused committing the offence to acquire the power of arrest. Reasonable grounds are not enough. Possession of more than 30 grams of marijuana is a hybrid offence, deemed indictable by s. 34(1)(

a) of The

Interpretation Act , 1995. Possession of less than 30 grams of marijuana is a

summary conviction offence, contrary to s. 4(5) of the Controlled Drugs and Substances Act . [ 23 ] In the case at bar, the overwhelming smell of marijuana, combined with the sight of what appeared to be marijuana flecks, gave the officers reasonable grounds to believe the occupants jointly possessed a not insubstantial quantity of marijuana. [3] Even if the officers had no grounds to believe the quantity exceeded 30 grams, the smell alone was enough of a “smoking gun” that the officers “found” the accused committing a criminal offence, empowering them to arrest her without warrant.

Under s. 495(2) of the Criminal Code , the arrest was necessary to secure or preserve evidence of the offence, and also to establish the accused’s identity. [ 24 ] The detention was authorized by law, so it was not arbitrary. I find no violation of s. 9. 2. Unreasonable Search or Seizure [ 25 ]

Section 8 of the Charter states that “Everyone has the right to be secure against unreasonable search or seizure.” A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner of the search was reasonable. [4] Where there is a warrantless search, the burden shifts to the Crown to prove on a balance of probabilities that the search was reasonable. [5] a. The flashlight “search” [ 26 ] Counsel for Ms. Isbister submits that, by using her flashlight to look into the back seat, Constable Gallant conducted an unlawful search of the vehicle.

However, the Supreme Court of Canada held in R v Mellenthin [6] that: [19] There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops.

[ 27 ] The law is summarized in Salhany as follows: 3.1138.5 As already noted, the Supreme Court has recognized that a motorist has a right to privacy in a private vehicle. At the same time, there has been jurisprudence affirming that a police officer may use a flashlight at night to observe activities or objects inside vehicles without his actions constituting a search.

As Rosenberg J.A. observed in Lotozky, “merely peering into a car window at night with the aid of a flashlight on a public highway is not a search.” The visual inspection of a motor vehicle by police officers at night with the aid of a flashlight has been justified as essential for the protection of those on duty in conducting check stops or stopping vehicles in breach of provincial motor vehicle legislation.

In Diamond, at issue was whether an officer had gone beyond a simple visual inspection and performed a search when he physically placed part of his head and hand while holding a flashlight inside the interior of the vehicle.

In a majority decision, it was held that since the officer had minimally inserted his head and a hand holding a flashlight inside the vehicle only briefly due to the height of the truck, to assess his immediate surroundings for his own safety, his intrusion did not constitute a search. [7] [ 28 ] Here, Constable Gallant used her flashlight to check the rear passenger area of the vehicle both for officer safety reasons and to check if anyone was in distress. She saw flecks of what she believed to be marijuana in plain view.

Although she described it as a “plain view search,” at law, the plain view doctrine is a power of seizure, not of search. An officer may seize what is obviously contraband if she is lawfully in a place and the contraband is in plain view. The plain view doctrine permits the seizure of incriminating evidence inadvertently discovered. It does not authorize a search for further evidence not in plain view. [8] Nevertheless, although Constable Gallant mischaracterized her action as a “plain view search,” it was not, in law, a search at all, and so did not violate s. 8 of the Charter . b.

Search Incident to Arrest [ 29 ] As decided above, Constable Gallant lawfully arrested the accused. Incidental to that arrest, therefore, she had the power to search the accused and the vehicle she occupied. Although Constable Gallant clearly had grounds to believe evidence of the offence would be found, this is not a pre-requisite to a search incidental to arrest.

Police officers have the power to search an accused as an incident to a lawful arrest and to seize anything in her possession or immediate surroundings to guarantee the safety of the police and the accused, to prevent her escape, or to provide evidence against her. [9] The search must be for a valid purpose connected to the arrest.

The three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence. [10] [ 30 ] Having placed both occupants of the vehicle under arrest for possession of marijuana, Constables Gallant and Borges had the power to search the vehicle for evidence of that offence. The search of the vehicle was, therefore, “authorized by law.” The law itself was not challenged as unreasonable. There was nothing unreasonable about the manner in which the officers searched the vehicle.

I therefore find that the search of the vehicle did not violate Ms. Isbister’s rights under s. 8 of the Charter . The marijuana seized from the vehicle is admissible in these proceedings. c. The Strip Search [ 31 ] There is no automatic power to conduct a strip search as an incident to a lawful arrest. There must be reasonable and probable grounds to justify such an intrusion on personal autonomy. Such searches are inherently humiliating and degrading.

They will be found reasonable only where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons, in order to ensure the safety of the police, detainee and other persons, for the purpose of discovering evidence related to the reason for the arrest, or in order to preserve or prevent the disposal of the evidence by the detainee. [11] [ 32 ] Here, the police had already discovered a kilogram of marijuana in the vehicle, and Ms. Isbister had already surrendered the roach from her bra when Constable Gallant decided, almost on a whim, to conduct a strip search. Ms.

Isbister no longer smelled of marijuana at this point, according to Constable Gallant’s evidence. Ms. Isbister, pregnant, was taken by surprise when the police came upon her on the side of the road. She had already been patted down. Marijuana is bulky. It was unlikely, in these circumstances, that she had any great quantity of marijuana secreted on her person. I find that this search does not meet the Golden standard and was unreasonable. No evidence was obtained as a result of this search. 3. Right to Counsel

[ 33 ]

Section 10(

b) of the Charter states that, “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

Section 10(

b) imposes three duties on police officers. First, they must inform the detainee of the right. Second, they must give the detainee a reasonable opportunity to exercise that right. Third, they must refrain from attempting to elicit evidence from the detainee until she has had a reasonable opportunity to exercise her right to counsel. [12] “Without delay” means immediately, subject only to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter . [13] [ 34 ] Here, the police informed Ms.

Isbister of her right to counsel while she was in the back of the police vehicle at the side of the road. At 2:05 a.m., she said she wanted to contact a lawyer. She was not given the opportunity to contact counsel at that point because she could not have had a private conversation in those circumstances. Some time passed as the police secured the vehicle and arranged for a tow truck. It also took some time to transport the accused to Waskesiu. She was not given her phone call until 2:55 a.m. Some of that delay is understandable.

However, when Constable Gallant did put her in the interview room, she did not allow the call immediately. Instead, Constable Gallant had a conversation with the accused. During this conversation, the accused admitted lying about her identity. She also produced the roach mentioned above. Then Constable Gallant decided to strip search the accused. Thus, Constable Gallant prevented Ms. Isbister from contacting counsel “without delay,” and proceeded to elicit incriminating evidence from the accused.

Only after admitting giving a false name, only after producing the marijuana, and only after the ensuing strip search, was Ms. Isbister connected with counsel. Even then, Constable Gallant dialed for her. [ 35 ] Thus Constable Gallant violated the duty to postpone questioning and further delayed the implementation component of the right to counsel. As a result, Ms. Isbister made an admission of guilt on the obstruction charge. That would not be admissible in any event, as it could not be proven voluntary in these circumstances. However, Constable Gallant also obtained the roach that was in Ms.

Isbister’s bra, in a manner which violated her s. 10(

b) rights. 4. Section 24(2): Exclusion of Evidence [ 36 ]

Section 24 of the Charter of Rights and Freedoms states:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 37 ] Having found that the roach was obtained in a manner that violated Ms. Isbister’s s. 10(

b) right, the question becomes whether its admission would bring the administration of justice into disrepute. To determine this, the court must consider and balance the seriousness of the breach, the impact of the breach on the Charter -protected interests of the accused, and society’s interest in the adjudication of the case on the merits. [14] [ 38 ] Although no evidence was obtained as a result of the strip search, it is relevant to the seriousness of the s. 10(

b) breach and the impact of that breach on the accused’s Charter interests. The delay in implementing her right to counsel was due to an unreasonable strip search, which is an affront to her dignity as a human being. This makes the violation of the right to counsel more serious. On the other hand, in this case, the accused was able to contact counsel and to obtain legal advice. Afterwards, she did not further incriminate herself. However, admission of the evidence may send the message that her Charter rights account for little.

As for society’s interest in the adjudication on the merits, exclusion of this small piece of evidence is not fatal to the Crown’s case, which rests largely on the large quantity of marijuana which has been admitted into evidence. [ 39 ] On balance, I find that admitting the roach would bring the administration of justice into disrepute, and it shall be excluded.

CONCLUSION [ 40 ] In

summary, Ms. Isbister was not arbitrarily detained, and I find no violation of s. 9. The search of the vehicle was authorized by law, being incidental to a lawful arrest. Furthermore, the search was conducted in a reasonable manner, and I find no violation of s. 8 in the search of the vehicle. The marijuana seized from the vehicle is admitted into evidence. [ 41 ] I do find a violation of s. 8 in the strip search. However, no evidence was obtained as a result of this breach. I also find a violation of s. 10(

b) in that Ms. Isbister was not allowed to retain and instruct counsel “without delay.” The evidence that Ms. Isbister admitted giving a false name, as well as evidence she produced a small amount of marijuana from her bra shall be excluded, along with the marijuana itself. Dated this 23 rd day of March, A.D. 2017, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ F.M. Daunt, J