R. v. Caribou and Olenick, 2022 MBPC 44

CITATION: R. v. Caribou and Olenick , 2022 MBPC 44 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Armstrong, ) for the Crown ) and ) ) ) Flora Caribou, ) Accused ) Z. Jones, ) for the Accused ) Anthony Olenick, ) Accused ) C. Sutherland, ) for the Accused ) Reasons for Decision delivered ) on 28 th day of February, 2022 ) A.D., at the City of Winnipeg, ) in the Province of Manitoba. ) Tracey Lord, A.C.P.J. Decision on Voir Dire [ 1 ] Just before 5:00 a.m. on September 20, 2020, Cst. Ian Lobban and Cst.

Kelsey Walkof of the Winnipeg Police Service observed Anthony Olenick and Flora Caribou driving on a scooter in the area of Robinson Street and Dufferin Avenue, a residential area of Winnipeg. [ 2 ] The scooter had been spray painted and did not have a licence plate. Mr. Olenick, the driver was not wearing a helmet. As a result of these observations the officers conducted a traffic stop pursuant to the Highway Traffic Act ( HTA ). Cst. Lobban testified that because the scooter had been spray painted he also wondered if it was stolen. [ 3 ] Neither officer was able to say whether Ms.

Caribou, the passenger was wearing a helmet or not, but did note she was wearing a black purse across her body and a grey backpack on her back. It is the search of these two items that is the focus of the voir dire . [ 4 ] As Cst. Lobban approached the scooter he recognized the driver Mr. Olenick and had a conversation with him about the

scooter. In that conversation Mr. Olenick said he had already been pulled over twice that night and that the VIN was checked. He saidthe scooter was not stolen and that he got it from a friend. [5] This conversation was tendered on the voir dire only for the purpose of establishing what information Cst. Lobban had whenforming grounds for arrest. [6] Despite Mr. Olenick’s information, Cst. Lobban, who is knowledgeable about vehicles and vehicle identification numbers(VIN) examined the scooter’s VIN and noted it to be altered, in that the first two characters had been removed.

Computer checksrevealed it to indeed be stolen. [7] Based on the appearance of the scooter (being spray painted and lacking a licence plate) and the fact that it was stolen, Cst.Lobban arrested Mr. Olenick and Ms. Caribou for possession of stolen property. [8] Mr. Olenick was arrested first, was searched and then placed in the cruiser car. During this time Ms. Caribou was seated onthe curb nearby with the purse and backpack at her side. Neither officer was able to say whether Ms.

Caribou sat there of her own accordor whether she was directed to, but both said they did not handle either of the bags she had with her. [9] After completing the arrest of Mr. Olenick, Cst. Lobban arrested Ms. Caribou. A second unit, Cst. Lumsden and Cst. Simchukarrived on scene to assist with transporting Ms. Caribou. [10] Cst. Lobban moved the purse and backpack from Ms. Caribou’s vicinity for safety reasons and placed them on the trunk of thecruiser car. He opened the purse and immediately saw a firearm.

He testified the firearm was approximately the same size as the purseand took up most of the interior space. He later ascertained it was a stolen Cooey 20 gauge shotgun with both the butt and barrel sawedoff. [11] The purse also contained an RBC bank card in the name of Flora Caribou and two inhalers with Ms.

Caribou’s name on theprescription labels. [12] He also searched the backpack and located a sawed off rifle, a Glock style BB gun, which at the time he believed to be agenuine handgun, what appeared to be an improvised explosive device (IED) and a men’s shirt and tracksuit. [13] As a result of locating the IED, Cst. Lobban notified his superiors, placed the backpack in an open field area and secured theneighbouring area to ensure public safety. It was later learned that IED was not operational. [14] When questioned about his grounds for arresting Ms. Caribou, Cst.

Lobban testified that based on the way the scooter looked,having been spray painted, and the fact that it did not have a licence plate, he believed Ms. Caribou would have been aware the scooterwas stolen. He further said that based on the information he had he did not consider detaining Ms. Caribou as opposed to arresting her. [15] Counsel for Ms.

Caribou argues that her detention was a violation of s. 9 of the Canadian Charter of Rights and Freedoms (theCharter) and that the police were not entitled to search the purse and backpack in her possession as there were no reasonable andprobable grounds to arrest her for possession of stolen property. The search was therefore in violation of Charter s. 8 and the evidenceobtained as a result should be excluded from her trial pursuant to s. 24(2). [16] The Crown submits that reasonable and probable grounds to arrest Ms.

Caribou existed, the search of the bags was lawful,being incidental to a lawful arrest and the evidence obtained is therefore admissible. [17] This was a warrantless search. The onus, therefore is on the Crown on balance of probabilities to show that the search wasreasonable. To be reasonable the search must be authorized by law, the law itself must be reasonable and the search must be carried outin a reasonable fashion. (R. v. Collins, (SCC), [1987] 1 S.C.R. 265.) [18] Section 495(1) of the Code provides that a peace officer may arrest without warrant (

a) a person who has committed anindictable offence or who, on reasonable grounds he believes has committed or is about to commit an indictable offence; or (

b) a personwhom he finds committing a criminal offence. [19] The law with respect to what constitutes reasonable grounds to arrest is well established. The requirement of reasonablegrounds involves a subjective belief in the grounds by the arresting officer. The subjective belief must also be objectively grounded. (R v.Storrey, (SCC), [1990] 1 SCR 241) In this case it is not argued that Cst. Lobban did not subjectively believe thatreasonable grounds to arrest existed.

The issue is whether that belief was an objectively reasonable one. [20] When examining whether an officer’s subjective belief was objectively reasonable, the totality of the circumstances known tothe officer must be considered.

Individual factors should not be evaluated in isolation. [21] Reasonable grounds may be based on direct and/or circumstantial evidence, partial information and reasonable inferences. [22] In assessing whether the grounds for arrest are objectively reasonable the Court should consider the officer’s observationsthrough the lens of someone with the same experience, training, knowledge and skills as the officer. [23] “Police officers are trained to detect criminal activity. That is their job. They do it every day.

And because of that, ‘a fact orconsideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police’” (R. v.MacKenzie, 2013 SCC 50 at para 62, quoting from R. v. Yeh, 2009 SKCA 112.) [24] Reasonable grounds to believe is not a high or overly onerous standard to meet. It is more than a suspicion but less than a primafacie case or proof beyond a reasonable doubt. (R. v. Jacob, 2013 MBCA 29 para 34.) [25] Reasonable grounds is often described as credibly based probability. In other words, is there a reasonable probability that an

offence has been committed? [26] In R. v. Harms, 2020 BCCA 242 the court considered a similar scenario to that of Ms. Caribou, in which a passenger in a stolenvehicle was arrested for possession of stolen goods. His backpack was searched incidental to arrest and evidence of other criminalactivity was discovered. [27] The vehicle in question was not damaged and was being driven with keys. There was however, an anti-theft device present.

Inexamining the objective reasonableness of the officer’s belief the court discussed the elements of the offence of possession of stolenproperty, including personal and joint possession and the requirements of knowledge and control. The court noted that individualphysical control of the stolen item is not required and knowledge of the stolen nature of the property can be established by drawinginferences from facts. [28] Ms. Caribou was a passenger on a stolen scooter. She was travelling on it as a means to arriving at some destination. Only oneperson can operate a scooter at any given time.

In circumstances where two people are on the scooter together it is akin to a joint venture. [29] While the altered VIN was not visible, it was readily apparent to Cst. Lobban that there was no licence plate on the scooter andthat its appearance had been altered by spray paint. By virtue of his training and experience as a police officer this alerted him to theprospect that the scooter was stolen. [30] It was a reasonable inference for Cst. Lobban to draw that the driver and passenger actually travelling on the scooter wouldhave the same knowledge about its condition and appearance.

I find his grounds for arrest objectively reasonable taking into account thetotality of the circumstances known to him. The next issue to be determined is whether the search of the purse and the backpack wereproperly incident to that arrest. [31] The police are permitted to conduct warrantless searches incident to a lawful arrest if the search is for a purpose related to thearrest and is conducted in a reasonable manner. (Cloutier v.

Langlois, (SCC), [1990] 1 SCR 158) There is nosuggestion in this case that the search was not reasonably conducted. [32] The three generally recognized valid purposes for search incident to arrest are 1. To ensure the safety of the police and thepublic, 2. To protect evidence from being lost or destroyed and 3. To discover evidence of the offence. [33] In this case the purpose was to ensure the safety of the police and the public, as Cst. Lobban testified the purse and backpackwould be transported in a WPS cruiser car to the station along with officers and Ms. Caribou.

The search of the bags was therefore for avalid purpose incident to arrest. [34] In light of my findings that Ms. Caribou was lawfully arrested and the purse and backpack properly searched incident to arrest Ihave concluded there was no breach of Charter s. 8 or 9. The evidence obtained as a result of the searches of the purse and backpack willbe admitted into evidence in the trial. The motion is dismissed. “Original signed by:” Tracey Lord, A.C.P.J.