Her Majesty the Queen - v. -, 2016 SKPC 142

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 142 Date: October 25, 2016 Information: 36657524 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Taylor Andrew Garvie Appearing: J. A. Khan For the Crown B. S. Mitchel l For the Accused JUDGMENT Q. D.

AGNEW , J [ 1 ] Taylor Andrew Garvie is charged that on or about January 11, 2016, at Saskatoon, he unlawfully had in his possession less than three kilograms of cannabis marihuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The issues at trial revolved around alleged breaches of the Canadian Charter of Rights and Freedoms , and remedies for breaches, if any are found. If there are no breaches, or if the remedies do not include exclusion of evidence or a stay of proceedings, the accused will be found guilty.

[ 3 ] The accused argues three different Charter breaches: 1. his right to freedom from arbitrary detention under s. 9 was violated, as there was no lawful ground for his vehicle to be stopped.

He also argues that this makes the subsequent search of his vehicle a breach of his right under s. 8 to be free from unreasonable search, as the search was incident to his unlawful detention; 2. his s. 8 right to be free from unreasonable search was separately violated when the police searched his vehicle without reasonable grounds; 3. his right to make full answer and defence (subsumed in the rights under s. 7) was violated when the police interviewed him extensively after his arrest, having deliberately chosen not to make an audio or written record of that interview. [ 4 ] With respect to the s. 7 issue, the accused seeks a stay of proceedings.

If a breach is found regarding sections 8 or 9, the accused seeks an exclusion of all evidence found after the police stopped his vehicle. The exclusionary remedy would result, the Crown agrees, in an acquittal as there would then be insufficient evidence to ground a conviction. [ 5 ] The Crown’s entire case was put in on the voir dire , to be applied to the trial as I find it admissible. Defence led evidence on the voir dire , and not on the trial. I indicated that I would give one combined decision on the voir dire issues and the trial itself.

Facts [ 6 ] The accused’s vehicle was stopped on January 11, 2016 in Saskatoon, by members of the Saskatoon Police Service. The evidence is clear that, immediately upon the driver’s window being rolled down, a strong smell of marijuana billowed forth from the car: the evidence shows that the driver and one of the occupants either were in the midst of smoking marijuana or had just finished doing so.

There was also a considerable amount of raw marijuana in the vehicle. [ 7 ] There was some dispute as to whether the odour should have been characterized as raw or burnt marijuana, but the officer who smelled it (Constable Kirchgessner) was very strongly of the view that he smelled raw marijuana, and in my opinion none of the occupants were in a condition to persuasively disagree as to which should be more prevalent, having just been in very close confines with very strong smells of both. [ 8 ] In any event, Cst.

Kirchgessner also immediately saw raw, unsmoked marijuana buds littered on virtually every flat surface of the interior that he could see. [ 9 ] As a result of his observations, Cst. Kirchgessner advised the occupants that they were being detained for a drug investigation. I do not propose to discuss the details of warnings, rights to counsel, etc., as none of those are in dispute. [ 10 ] The vehicle was subsequently searched, and nine different bags were found, with a total weight (bags and contents) of 936 grams. The contents all appeared to be similar.

A sample was taken from one of the bags, and was found to be marijuana. Defence did not dispute that all of the content of all bags was marijuana. There were other items found as well. Those items, as well as the amount of marijuana and its packaging, were strongly indicative of possession for the purpose of trafficking. Defence does not dispute that, if the evidence admitted and no stay is granted, a conviction for possession for the purpose of trafficking must follow. [ 11 ] The accused was not only the driver, but also the registered owner of the vehicle.

He was charged as indicated, and transported to Saskatoon Police Service headquarters.

[ 12 ] After the accused spoke with a lawyer and all other processing having to do with his arrest was finished, Cst. Kirchgessner and his partner, Cst. Morton, spoke with the accused. All three participants to this conversation testified. It is clear that no attempt was being made to obtain evidence with respect to the current charges. Rather, the police officers were attempting to persuade the accused to become an informant. There was apparently also some attempt to persuade the accused to change his ways, but I am satisfied that the main purpose of this conversation was to recruit the accused.

Because of this purpose, the officers stated, they deliberately chose not to have an audio recording of the discussion or to take notes (because those could compromise confidentiality if the accused decided to become an informant). [ 13 ] It turned out that the discussion was recorded on video, but without any audio. The officers testified that they had not understood that this was occurring, and I accept that. It also makes eminent sense that there would be video throughout the detention area, not subject to being turned off.

In such a way, supervision could occur to ensure, inter alia , that there was no violence by or against prisoners and officers. There would be no need for audio for such a purpose, so the silent video is consistent with the above and with the officers` understanding - they were not recording the interview, but unknown to them it was on camera and being video-recorded.

Indeed, it makes perfect sense that police officers not be able to take suspects from their cells and “interview” them away from cameras and supervision: such a situation would at best raise the possibility of allegations of police abuse, and at worst would encourage the actuality. [ 14 ] All parties to the conversation agree that the accused chose not to become an informant. Charter issues [ 15 ] The accused argues that his s. 7 rights were violated by the failure to make an audio recording of the interview discussed above.

He urges that I grant a judicial stay as a remedy. [ 16 ] He also argues that there was no basis for the police to pull over his vehicle in the first place, and that he was accordingly unlawfully detained, contrary to s. 9. He seeks an exclusion of all evidence obtained by the police thereafter. [ 17 ] He finally argues that there were two breaches of his s. 8 right to be free from unreasonable search and seizure. First, he argues, any search is tainted by the unlawful detention as aforesaid; second, there were no grounds for a search of the vehicle even if the detention was lawful.

Again, he seeks an exclusion of evidence. Analysis S. 8 - unreasonable search and seizure [ 18 ] I will deal first with these arguments, as they are the simplest to decide. [ 19 ] First, with respect to the suggestion that there was no basis to search the vehicle once it was pulled over, there were two observations which led to the search. The first was the odour of fresh marijuana which Cst. Kirchgessner testified came from the vehicle. Defence attempted to get him to admit that what he smelled was burnt marijuana, such a smell being perhaps evidence of past as opposed to current possession.

The officer was adamant that he smelled the “unmistakable smell of raw cannabis marijuana”, that it was “strong, pungent”, “definitely raw”, and in cross-examination, that it was the “overwhelming stench of raw marijuana”. He was unshaken in his testimony in this regard. [ 20 ] I noted, when the bags of marijuana were put into evidence, that the smell was quite prominent even in the more expansive confines of the courtroom, and even after spending eight months in a police evidence locker. Defence counsel himself, in his argument, quite fairly noted the smell the exhibits had produced in the courtroom.

[21] The second observation which led to the search was Cst. Kirchgessner’s observation of marijuana buds or pieces scattered allover the visible interior surfaces of the car. He testified that he saw this virtually immediately upon looking into the vehicle. I accept hisevidence in this regard. [22] In my view, either of these two observations might well be sufficient to answer the suggestion that there was no basis to searchthe vehicle.

The two of them together satisfy me that this aspect of the s. 8 challenge has not been made out. [23] The second suggestion, that the s. 8 search must stand or fall with the s. 9 question of arbitrary detention, is based on thepremise that a search incidental to an unlawful detention is thereby also unlawful. Accordingly, I will address this argument if necessaryafter determining the s. 9 question.

S. 7 - liberty and security of the person [24] The accused argues that his right to make full answer and defence was impaired by the failure of the police to make an audiorecording of his discussion with the two constables at the police station.

The right to make full answer and defence is recognized as a part of s. 7 rights - see R v Stinchcombe, (SCC), [1991] 3 SCR 326.[1] [25] In support of his position that this failure to record is a violation, the accused relies on R v La, (SCC),[1997] 2 SCR 680, and R v Burke, 2010 ONSC 6530. [26] In La, the Supreme Court of Canada refers to the Crown’s disclosure obligations as including an obligation to preventevidence from becoming lost.

The Court’s comments are as follows: Even where the Crown has discharged its duty by disclosing all the relevant information in its possession and explaining thecircumstances of the loss of any missing evidence, an accused may still rely on his or her s. 7 right to make full answer and defence. Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that itimpairs the right of an accused to receive a fair trial.

In such circumstances, a stay may be the appropriate remedy . . . . . . in order to make out a breach of s. 7 on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence.[2] [27] It is clear that the Court was addressing situations in which evidence (specifically, documents) which had previously been inexistence had become lost or missing.

In the case before me, of course, the accused’s complaint is that the police did not cause evidenceto come into being, by choosing not to make an audio recording. [28] In Burke, the police failed to record evidence, which superficially is similar to the situation before me. There are significantdifferences, however. In Burke, the statement was a confession by the accused, which is not the case here.

Furthermore, since it was aconfession, it was directly relevant to the case before that court; in the present case, all parties agree the unrecorded conversation was nota confession, was not an interrogation and in fact was not a discussion of the case or the evidence at all. [29] Finally, it is clear from La that the accused must show that the lack of the evidence has caused actual prejudice to his abilityto make full answer and defence.

This is obviously related to the question of relevance: presumably, if the evidence is related to thecase, there is a higher likelihood of prejudice to the accused from the absence of the evidence.

[ 30 ] Here, all three participants testified as to the contents of the conversation, and were subject to cross-examination. None of the evidence, from any of them, suggested that the content of that conversation had any probative value in the case before me.

Between the ability of the accused to testify as to the unrecorded content, and the lack of any suggestion of probative value from any of the participants, I am unable to find any prejudice at all to the accused’s ability to make full answer and defence. [ 31 ] In argument, the best that defence counsel could suggest in terms of prejudice was that an audio recording might have produced a statement at odds with the testimony of one of the officers, which might then have been used to attack their credibility. There are two responses to this suggestion.

First, if this is a valid reason to require such recording, then every statement uttered by any Crown witness, even on matters unrelated to the prosecution, must be recorded, against the possibility that such witness says something contradictory at trial.

Second, we have a partial “record” of the conversation, which does not disclose anything of the sort: the accused himself testified as to the contents of the conversation, and did not so much as suggest that there was any such contradictory statement made. [ 32 ] It is also clear, from the quoted excerpt from La , that the Crown is required to explain the circumstances of the loss of the evidence.

In the present case, the constables testified without contradiction that they made a deliberate choice not to record, in order to protect the accused in the event that he chose to become a confidential source for the police.

As it turns out, that did not happen, so the precaution was unnecessary; but had it been otherwise, and had the conversation been recorded, then presumably the police might have had to attempt to delete or edit the recording, an outcome which would have been fraught with at least as much potential for problems as the course they chose. [ 33 ] The question of the police making an audio recording in the present situation is somewhat similar to their making notes. What, then, is the obligation of the police to make notes?

The Supreme Court of Canada, in Wood v Schaeffer , 2013 SCC 71 at paragraph 67 , [2013] 3 SCR 1053, said: I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer's duty to assist in the laying of charges and in prosecutions . . . [ 34 ] The Court’s comments were in the context of Ontario police, who are of course governed by their provincial legislation.

The Ontario legislation as cited by the Court seems to be somewhat different from the similar Saskatchewan legislation. Notwithstanding that distinction, I take the Court’s comments to be of more general applicability. [ 35 ] A previous Ontario case, R v Eagle , [1996] OJ No 2867 [ Eagle ] , delves into the obligation of police officers to make adequate notes, and quotes extensively from Report of the Attorney General ’s Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) [3] [the Report] on the subject. This is the same report referred to by the Supreme Court as “the remarks of Mr.

Martin”. The Report: [recommended that it be emphasized to police officers] the importance of taking careful, accurate, and contemporaneous notes during their investigations. The statement should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by making less accurate or less comprehensive notes . . . The importance of proper note-taking, or otherwise recording the course of an investigation, can scarcely be overstated . . . the Supreme Court has mandated that nothing relevant that is discovered during the course of the investigation is to be withheld.

This important principle of fairness cannot be undermined by putting less in a notebook than would properly be entered were it not subject to disclosure . . . inadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution.

In short, inadequate note-taking does a disservice to both an accused and the community, who is entitled to expect that innocent people will be acquitted and guilty people properly convicted. [4] [ 36 ] While the Report’s statements do not have the force of law, and Eagle is not binding on me, it is my view that taken with the Supreme Court of Canada’s guidance (albeit in the specific context of Ontario police legislation), it provides a very helpful indication not only of the obligation of police officers to make notes, but also and perhaps more importantly the reasons why that obligation exists. [ 37 ] More germane to the present circumstances, it also provides guidance as to when notes will not be required. [ 38 ] Notable in the material quoted above are references to the “investigation”.

The Supreme Court refers to making notes “as

[ 38 ] Notable in the material quoted above are references to the “investigation”. The Supreme Court refers to making notes “as soon as practicable after an investigation”; the Report speaks of officers making “contemporaneous notes during their investigations”; indeed, the brief excerpt quoted from the Report refers to the “investigation” or “investigations” no less than four times. It is, therefore, the investigation which determines whether or not notes need to be taken. Matters related, even tangentially, should be recorded; matters unrelated to the investigation do not have to be recorded.

Undoubtedly, there will be times when it is not clear whether something is directly related to an investigation; equally, however, there will be times when it is clear that something is not at all relevant. [ 39 ] Referring to the conversation between the two officers and the accused, as to whether or not the accused would become an informant, all three participants testified. There was nothing in the testimony of any of them which would suggest that anything was discussed that related to the investigation of the charges before me.

That being the case, I am unable to find that the officers had an obligation to make any notes or other record, including audio recording, with respect to that conversation. [ 40 ] I must emphasize, however, that this question of “relevance” is an ex post facto issue: there may well be circumstances in which the relevance of an occurrence or conversation is not clear until much later.

I would expect, therefore, that the police would err on the side of caution and make proper notes even when it is not clear that such notes are required; none the less where, as in the present case, it turns out that they have properly exercised this discretion and the conversation is of no relevance to the investigation, their choice not to make notes or some other record cannot be faulted by the accused. [ 41 ] I accordingly find that the accused has not made out this allegation of Charter breach.

That being the case, I am not required to determine whether or not this case would be one of those rare situations which would justify a stay of proceedings, and I decline to do so. S. 9 - arbitrary detention [ 42 ] The allegation of arbitrary detention arises from the initial stop of the accused’s vehicle. Cst. Kirchgessner testified that when the two vehicles passed, he thought that the rear of the accused’s vehicle was riding noticeably lower than the front, and thought that perhaps there was a rear suspension problem.

He therefore performed a U-turn, followed the accused and pulled him over. [ 43 ] The accused invites me to find that this supposed reason for the stop is not in fact the actual reason. While the accused does not deny that The Traffic Safety Act gives police the power to stop vehicles for the reason specified, his position is that he was not actually stopped because of any suspected problem with his suspension.

Accordingly, he argues, the stop was not authorized by the Act and was therefore arbitrary: R v Nolet , 2010 SCC 24 , [2010] 1 SCR 851. [ 44 ] The evidence which the accused points to in support of this contention is not direct evidence: neither officer testified that their claimed reason for the stop was in fact nothing but a pretense; in fact, both testified to the contrary. Instead, the accused points to a number of problems in the evidence which, he says, should constitute sufficient proof to convince me on a balance of probabilities. I will mention a number of them: (

a) Cst. Kirchgessner never advised the accused that he had been pulled over because of a possible suspension problem. The constable’s written report, dictated after the entire incident was over (as opposed to his written notes, made more contemporaneously) state that he advised the accused of that fact at a specific point in the incident; however, the video and audio of the stop are clear that this is not correct. The suspension issue does not appear in his written notes at all. (

b) no traffic ticket regarding the vehicle was given, nor was there any followup regarding the suspension issue after the stop. (

c) all three occupants of the vehicle testified that there was nothing wrong with the suspension, nor had it ever been modified (presumably to clarify that it had not been dropped lower than stock). (

d) the video evidence of the accused’s vehicle prior to the stop does not bear out the suggestion that there was a visible problem with the suspension.

(

e) Cst. Morton’s notes, although mentioning the suspension problem, were made in such a fashion (deliberately or otherwise) that they would accommodate an after-the-fact insertion of that mention. (

f) the audio from the police car, prior to the stop, makes no mention of any suspension problem. [ 45 ] There were other points as well, which I do not consider to be significant enough, singly or in aggregate, to mention in detail. For example, the accused suggests that the failure of the police to record the audio of their conversation with him at the police station plays into this same sequence of events.

Despite the very able argument of defence counsel, however, I am utterly unable to find any connection, however tenuous, which could even suggest that this assists the accused’s claim that the police lied about the reason for their stop of his vehicle.

The fact that the accused was present during that conversation, and testified as to what was said, only confirmed that there was nothing in the conversation which establishes any connection to the reason for the initial stop. [ 46 ] The difficulty with the conclusion which the accused would have me draw from the evidence is that it rests on a selective view of the testimony - that is, if one is predisposed to come to the accused’s conclusion, the evidence can be read as supporting it. If one does not have that predisposition, however, the following observations seem apropos: (a’) it is true that Cst.

Kirchgessner’s written report claims that he advised the accused of the reason for the vehicle stop, when the recording is clear that he is incorrect. When this was pointed out to the constable, he agreed immediately that he was in error. He did not attempt to cover up his error, he did not waffle or prevaricate: he acknowledged that his report, dictated some hours after the event, was wrong in this respect. This error certainly goes to his credibility, as does his reaction to it being pointed out, but it is not conclusive; (b’) it is true that no ticket was given regarding the suspension.

However, given that the investigation ultimately became one involving almost a kilogram of illegal drugs, it would not be unreasonable for the officers’ focus to have shifted from a traffic issue. From the recording of the stop, it is obvious that instantly upon arriving at the accused’s car, Cst. Kirchgessner smelled a strong odour of marijuana. It would be unsurprising for his focus to shift from a traffic issue to a criminal one. Further, Cst.

Kirchgessner testified that once he saw that the vehicle contained three (relatively large) men, he considered the question of why the car was riding low to have been answered. I note that this does not explain why he believed that the vehicle was riding low in the back, since two of the men were sitting in the front seats. However, I also note that a valid investigation may begin from a reasonable but incorrect observation.

This issue, like all of the others here, is a matter of credibility and the accumulated weight of the evidence; (c’) the fact that the occupants of the vehicle testified that the suspension had not been deliberately dropped simply removes one possible explanation for what Cst. Kirchgessner claims to have observed; it goes no further than that; (d’) the video is certainly not clear that a suspension problem exists. The quality of the video is obviously imperfect, and I am hardly an expert on vehicle suspensions.

I agree that I am not able to see a suspension problem from the video; the more important question is whether or not I should be able to, if it was enough of an issue existed to justify stopping the vehicle because of it; (e’) Cst. Morton, in his testimony regarding his note-taking, gave lucid and reasonable reasons for his notes being made in the manner he makes them. He testified that this is his usual practice, and specified why he takes notes in this particular manner.

As was clear from defence’s cross-examination of the constable, the manner of his note taking leaves him open to attack, but he was unshaken as to their reliability; (f’) neither officer could give any useful information about the operation of the recording system in the car. It appears that the saving of audio and video recording is triggered by the lights or siren being turned on; the video commencing 30 seconds before that time is saved, as is the audio from the time of the lights or siren. There is accordingly no audio for the first 30 seconds of the video.

This means that there is no audio recording of any discussion which may have taken place in the police vehicle about the reasons for stopping the accused’s car. Defence attempted to suggest a nefarious motive to this absence, that perhaps one or both officers had deleted (or turned off) the audio in order to hide the fact that they had a reason for stopping the vehicle unrelated to any suspension issue. There is, however, absolutely no evidence to support this suggestion. Both officers denied having done anything to the audio, nor did either seem

to have any knowledge as to how they could have done anything. [ 47 ] Ultimately, the accused wishes to use all of the above issues to argue that he was pulled over on a pretext, that the officers made up the story of the suspension in order to justify a stop for some other reason. He then would argue that he was arbitrarily detained. [ 48 ] The fundamental difficulty with his argument is, quite simply, “why?” Why was he pulled over, if not for the stated reason? If he is correct, the police had some other motive for pulling him over: not for some nonexistent suspension problem. What is that motive?

There is no suggestion that the officers had been instructed by anyone else to do so, for example. There is no evidence, for instance, that drug officers had radioed the constables and told them that the accused had drugs in his car, and to manufacture a pretext to pull the accused over and come up with an excuse to search his car. There is no indication that the officers knew and disliked the accused and were trying to cause problems for him. There is no apparent animosity, whether racial, religious or other.

In sort, there does not appear to be any motive whatsoever, other than the one claimed by the officers. [ 49 ] It is not incumbent on the accused to prove a motive for the officers to lie. However, the credibility of the accused’s allegations would be improved if some motive could be shown; or if a credible motive could even be suggested. There is none here. There is no reason, on the evidence or otherwise, implied or overt, why the officers would manufacture a reason to pull over the accused. [ 50 ] The burden is on the accused to show, on a balance of probabilities, that he was arbitrarily detained.

He has not met that burden. Conclusion [ 51 ] The accused not having made out any of his Charter challenges, all of the Crown’s evidence is admitted. I find the accused guilty as charged. ______________________ Q. D. Agnew, J [1] Paragraph 17. [2] Paragraphs 24 and 25. [3] Ontario, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Decisions ,(Toronto: The Committee, 1993)(Chair: The Honourable G. Arthur Martin). [4] Eagle , paras. 15 and 16, citing the Martin Report at pp. 150 and 152.