R. v. Fletcher Date:, 2011 BCPC 232

Citation: R. v. Fletcher Date: 20110912 2011 BCPC 0232 File No: 68991C2 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID JOHN FLETCHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: Nick Lerfold & Clarke Burnett Counsel for the Accused: Sid M. Tarrabain, Q.C. Place of Hearing: Kelowna , B.C. Date of Hearing: 22 July 2011 Date of Judgment: 12 Sept 2011 I. INTRODUCTION [ 1 ] The accused is charged with covertly transporting $72,000.00 in proceeds of crime and with being in possession of money obtained by crime, contrary to sections 462.31(1) (

a) and 355(1) of the Criminal Code . This is the court’s ruling on a voir dire to determine whether the Charter rights of the accused under sections 7, 8, 9 and 10(

b) have been violated. [ 2 ]

Section 7 gives everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 8 gives everyone the right to be secure against unreasonable search or seizure.

Section 9 gives everyone the right not to be arbitrarily detained or imprisoned.

Section 10(

b) gives everyone the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. II. THE FACTS [ 3 ] On March 11, 2009 at 2:10 pm the accused was the sole occupant and driver of a SUV that was speeding 50km/hr in a 30km/hr school zone, going southbound on Gordon Drive just past Springfield Road. Cst. Stanviloff was on duty in a marked police vehicle, parked at the school and doing traffic enforcement in the school zone. He immediately activated his emergency equipment and the accused pulled over without incident. Before stepping from the police vehicle, Cst.

Stanviloff called in the Alberta licence plate number and learned the registered owner was Joanne Park. [ 4 ] When approaching the driver’s window, which was partly unrolled, Cst. Stanviloff saw a car seat in the back seat which was

partly covered by blankets. Cst. Stanviloff testifies that when he approached the window to speak with the accused, he smelled a very, very strong smell of vegetative marihuana that was overpowering. Cst. Stanviloff testifies to having been involved in investigating multiple marihuana grow operations, and he was certain the overpowering smell was of vegetative marihuana and not the smell of burnt marihuana. [ 5 ] The officer told the accused that he was stopped for speeding in the school zone.

The officer requested and received the pictured driver’s licence of the accused and was satisfied he was dealing with the accused. Constable Stanviloff believed the smell of the marihuana was sufficiently strong that he had grounds to arrest the accused for possession of marihuana, but the officer was hesitant because he did not want to scare any small child that might be under the blanket in the car seat in the back.

He asked the accused if he had a baby in the car and the accused answered that he did not. [ 6 ] The officer then asked the accused, “Where is your Bud?” The accused reached into the ash tray and pulled out the remains of a burnt roach. The officer said he still would have arrested the accused even if the accused had not produced the roach, because he 100% believed there was vegetative marihuana in the vehicle given the overpowering smell. The officer said, “That is not where the smell is coming from.

Step out of the car.” After the accused stepped out of the car (at 2:15pm), the officer said, “You are under arrest for possession of a controlled substance. You are not obliged to say anything, but anything you do say may be given in evidence. You have the right to retain and instruct counsel in private without delay.” [ 7 ] The officer then did a pat down search of the accused and looked closely into the eyes of the accused as part of a sobriety test, but the officer was satisfied the eyes showed no signs of marihuana impairment. The accused was then placed in the back of the police vehicle.

The officer then searched the SUV incidental to arrest. The officer did not consider first obtaining a search warrant, given the search was incidental to arrest. In the open back area of the SUV the attention of the officer was immediately drawn to a hockey bag that had the zipper open. That hockey bag was inside a second hockey bag that also had an open zipper. The officer smelled a very strong odour of fresh, raw, green marihuana coming from the empty hockey bags, and he believed he could see small flakes of marihuana residue inside one of the hockey bags.

There was no hockey gear in the vehicle. [ 8 ] The officer then lifted the flooring latch in the trunk where one might keep a spare tire or tools and the officer saw two boxes— one was a yellow Oshkosh shoe box and the other a white TELUS box. Both of these boxes were completely filled with Canadian currency. The officer stopped his search, leaving the boxes in the SUV, and he called for backup police to arrive. [ 9 ] At 2:25pm Cst.

Stanviloff arrested the accused for possession of a controlled substance for the purpose of trafficking and for possession of proceeds of crime, but no further Charter warnings were given to the accused at that time. A few minutes later, Cst. Goldebeck and Cst Chellie arrived. [ 10 ] At 2:35pm, while the accused was still seated in the back of the police vehicle, Cst. Stanviloff more formerly arrested the accused for a third time, reading this time from his standard police card.

The conversation was as follows: Cst: I am arresting you for possession of a controlled substance for the purpose of trafficking, trafficking in a controlled substance, and possession of proceeds of crime. Do you understand? Accused: Yes. Cst: It is my duty to inform you that you have the right to retain and instruct counsel in private without delay. You may call any lawyer you want. There is a 24 hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the legal aid plan to you.

If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand? Accused: Yah. Cst: Do you want to call a lawyer? Accused: Oh yah. Cst: You are not obliged to say anything, but anything you do say may be given in evidence. [ 11 ] Cst. Stanviloff possessed his own private cell phone, but he believed the only way the accused could have a private call with his lawyer was back at the detachment. The police then seized the items from the SUV, including the hockey bags and the two boxes with money (which was later counted to be $72,000.00 cash).

No other vegetative marihuana was found in the vehicle. The other members stayed until the tow truck arrived, but at 3:06pm Cst. Stanviloff left the scene with the accused and at 3:14pm they arrived at the Kelowna detachment. [ 12 ] The accused was asked what lawyer he wanted to call and the accused provided from memory the name and phone number of his lawyer, Mr. Tarrabain of Alberta. At 3:36pm the accused was placed in the phone room and after an initial call had been made to the lawyer, at 4:00pm a reply call from Mr.

Tarrabain connected with the accused. [ 13 ] The accused was kept in custody over night, primarily because there was some outstanding Alberta charge showing up on the police computer system. By the next day, that was all cleared up and the accused was released at 1:52pm that afternoon. Before being released, police did unsuccessfully attempt to get a warned statement from the accused, but Cst.

Stanviloff was adamant that the reason the accused was kept in custody overnight was not because of police wanting to keep the accused in jail until he gave a confession. [ 14 ] The only evidence heard on the voir dire was the evidence of Cst. Stanviloff. III. ANALYSIS AND DECISION

Grounds for Arrest [15] Counsel for the accused submits that the s.9 Charter right of the accused not to be arbitrarily detained was breached. There is nodenying the officer acted properly in pulling the vehicle over when it sped through the school zone. The uncontroverted evidence in thevoir dire is that Cst. Stanviloff then smelled a very strong and overpowering smell of fresh, green, vegetative marihuana.

While it is truethat his notes only referred to the smell of marihuana, the report to Crown that he prepared shortly thereafter did refer to his smelling “fresh, raw marihuana” and he testified that he still has an independent recall of the smell. At issue is whether the smell of vegetativemarihuana alone, without any other factors, is sufficient to arrest someone for possession of marihuana. [16] Defence counsel refers to R. v. Brownridge 1999 BCCA 27 , [1999] B.C.J. No 170 where our court of appeal dealt withan appeal from a conviction for possession of marihuana for the purpose of trafficking.

That accused was similarly pulled over forspeeding and from the driver’s side window of the van, the officer detected a strong odour that he believed to be raw marihuana comingfrom the vehicle. The officer told the accused that he could smell marihuana and the accused replied that it could be leftover marihuanafrom a previous user of the van. The van was registered in the name of a third party. The accused gave the officer permission to searchthe interior of the van. In the process, the accused then withdrew his consent to the search. The officer then detained the accused andplaced him in the police vehicle.

The officer then went back to the van and searched and found a large quantity of marihuana. Inconvicting, the trial judge wrongly found that the withdrawal of consent was admissible evidence that added to the grounds for arrest. On appeal, it was held that the accused, in withdrawing his consent, was exercising a constitutional right and his exercise of that rightcould not be used as evidence against him. The appeal was allowed and a new trial was ordered. This case is not authority for holdingthat smell alone is an insufficient ground for detention. [17] In R. v.

Ashby (2011 BCSC 513) Justice Powers dealt with an accused who was caught driving a vehicle in Clearwater, B.C. thatpossessed 21 kilograms of marihuana and $17,000.00 in Canadian currency. Ms. Ashby had been pulled over for speeding in snowyconditions, and the officer detected an overpowering odour of vegetative, green marihuana. Justice Powers exhaustively reviewedmultiple cases involving arrest grounds based on the smell of marihuana. In paragraph 94, Justice Powers writes: In the circumstances of this case, did the officer have reasonable grounds to believe that Ms.

Ashby had committed an indictable offenceor was committing an offence? A number of the indicators are neutral and by themselves may simply raise a suspicion. However, thestrong odour of vegetative marihuana gives added significance to those factors as well. The strong odour of vegetative marihuana inthis case, however, was sufficient on its own to support a reasonable belief that Ms. Ashby was in possession of marihuana, orhad committed the indictable offence of being in possession of marihuana.

It is not necessary that all other explanations beeliminated. [18] Counsel for the accused refers to the decision of Justice Lynn Smith in R. v. Carlson 2003 BCSC 593 , [2003] B.C.J.No 1278 (BCSC) where an officer was doing surveillance of a residential area where drug activity was suspected and where threevehicles were seen driving from a suspect residence. The officer stopped one of those vehicles under the false pretence of investigating aloose screw securing the licence plate. The real purpose of the stop was to further the criminal drug investigation.

When theinvestigating officer approached the van, she noted a strong smell of marihuana. She asked the driver to exit the vehicle and the officerthen looked in the back of the van and saw about 100 marihuana plants. Justice Smith found that the stop to further the criminalinvestigation was both arbitrary and unlawful in breach of sections 8 and 9 of the Charter. Justice Smith found that the officer hadexercised bad faith in trying to use a Motor Vehicle Act reason for stopping the vehicle, and under s.24(2) of the Charter the evidencewas excluded and an acquittal was entered.

The fact pattern in this Carlson case is significantly different in one aspect—in the case atbar there is no questioning the fact that Cst. Stanviloff had grounds for stopping the vehicle that was speeding through the school zone. [19] Defence counsel refers to the decision of Judge Klinger in the case of R. v. Craig [2003] B.C.J. No. 896 where the accused wasstopped at a counter-attack road check in Vernon. The driver’s licence of the accused was expired and no vehicle insurance papers wereproduced. The vehicle was impounded and as Mr. Craig stepped from the vehicle, the officer smelled marihuana.

While waiting for thetow truck, the officer investigated his suspicion of marihuana being in the vehicle and he questioned the accused about the marihuanasmell without giving any Charter warnings to the accused. When the tow truck arrived, the accused opened the passenger door toawaken the sleeping person who was still in the passenger seat. In the process, the officer again smelled marihuana, looked behind thepassenger seat and saw four bottles of unopened liquor in a box.

The two officers then decided to search the vehicle under the authorityof the Liquor Control and Licensing Act, as a pretext to conduct a search for marihuana. With that search, 7.2 pounds of marihuana wasfound. At trial the Crown did not assert that the officers had reasonable and probable grounds to arrest the accused prior to themarihuana being discovered. Judge Klinger found that at most, the officers only had a suspicion of marihuana being in the vehicle andthe officers did not have reasonable and probable grounds for believing there was marihuana in the vehicle.

Judge Klinger found that thesearch of the vehicle under the Liquor Control and Licensing Act was done in bad faith. This case was not a search incidental to arrestsuch as the case at bar. [20] Similarly, with the case of R. v. Do [2006] B.C.J. No. 1077 (BCSC per Johnston J.), police had a suspicion that a home in Surreymight have a marihuana grow operation, but police had no reasonable and probable grounds for elevating that suspicion into a reasonablebelief which would be required to obtain a search warrant.

When a Mercedes SUV with three occupants drove from the residence, policefollowed and pulled the SUV over. An officer approached the SUV and told the driver that he was stopped because he looked young. The officer then asked the driver for a driver’s licence and the driver complied. The officer testified he smelled a faint odour of growingmarihuana and formed the belief that those in the vehicle were trafficking in marihuana. Police asked the driver to consent to a search ofthe vehicle, but the driver declined.

The officer then told the driver that he was going to search the vehicle anyway, and all threeoccupants were detained for trafficking in a controlled substance and removed from the vehicle. The search of the vehicle revealed ablack plastic bag filled with marihuana clones which had no smell. Justice Johnston found this to be an unreasonable search of thevehicle based on the officer only detecting a faint smell of marihuana.

It was found to be a serious breach that was not conducted in goodfaith and was done in circumstances where police had insufficient subjective and objective grounds for arrest prior to the search beingconducted. The initial stop for traffic enforcement purposes did not constitute arbitrary detention, but insufficient grounds existed for thepolice to go beyond those Motor Vehicle Act purposes into more intrusive criminal investigative measures without additional reasonablegrounds for doing so.

This case is yet another example of a situation where if police do not act in good faith, their actions will often leadto Charter breaches resulting in exclusion of evidence.

[21] Defence counsel next referred to the case heard by Judge Chen, called R. v. Fuller [2004 B.C.J. No. 1877 where the vehicledriven by the accused was pulled over because the vehicle’s running lights contravened the Motor Vehicle Act. The officer noticed astrong smell of fresh marihuana and formed the suspicion that the accused was in possession of marihuana. The accused was notarrested, but was detained for investigation. The vehicle was searched and in it was found 9 kg of marihuana in .5 kg zip lock bags.

Judge Chen made a finding of fact that the officer only detained the accused but did not arrest the accused because the officer did notsubjectively believe he had reasonable grounds to arrest the accused. The search was found to be unreasonable and the evidence wasexcluded. This case turned on the limited pat-down search for officer safety allowed for an investigative detention as opposed to a fullersearch allowed incidental to arrest. [22] Similarly the case of R. v. Hoang 2003 BCPC 240 , [2003] B.C.J.

No. 1658 heard by Judge Warren turns on the factthat it did not involve a search incidental to arrest, but rather a pat-down search for officer safety reasons as part of an investigativedetention. The investigating officer did not believe he had sufficient grounds for an arrest. That officer had smelled marihuana comingfrom the vehicle and the search went far beyond a pat-down search for officer safety. The search eventually revealed 25 pounds ofmarihuana in the trunk. The case of R. v.

Peardon [2005] B.C.J.No. 807, heard by Judge Overend is yet again a case where theinvestigating officer was found not to have reasonable grounds for arrest, yet the officer searched a vehicle when the officer had no morethan a hunch that the accused may possess illegal drugs. Defence counsel also refers to the case of Judge Rideout reported as R. v.Pruesmann [2009] B.C.J. No 169 where yet again police had no grounds to arrest and search incidental to arrest. The accused wasdetained and not arrested. The investigative detention search went beyond what was reasonable.

Defence counsel also referred to theProvincial Court case of R. v. Soroka [2004] B.C.J. No. 2835, where Judge Pothecary found that the smell of marihuana in that particularfact pattern only gave grounds to do a pat-down search for officer safety as part of an investigative detention and grounds to arrest didnot exist. [23] In R. v. Thomas [2003] B.C.J. No 393, Judge Bruce found that the investigating officer was not believable when he claimed thathe smelled marihuana, thus on the facts, there were no reasonable grounds to arrest and search incidental to arrest.

The subsequentsearch of the vehicle went beyond a pat-down search allowable with an investigative detention. This case involved the smell of burntmarihuana, as opposed to raw, vegetative marihuana. The former is often seen as just being proof of past possession of marihuana anddoes not always lead to grounds for arrest for current possession of marihuana. In R. v. Boyd [2011] B.C.J. No 1175 Judge Wood dealtwith such a case where the smell of burnt marihuana ended up being insufficient grounds to prove current possession. [24] Defence counsel referred to the case of R. v. Yan [2002] B.C.J.

No 2993 where Judge Dossa of our provincial court, in a threepage ruling, found that an officer noted a strong smell of dry, skunky marihuana when he stopped a vehicle to ask to see the driver’slicence. Judge Dossa referred to the Ontario Court of Appeal case of R. v. Polashek (1977), (ON CA), 134 C.C.C.(3d) 187 which held that whether the smell of marihuana can provide the requisite and probable grounds for an arrest will depend on thecircumstances under which the olfactory observations were made.

In the Yan case, Judge Dossa found, “the smell of the marihuana,while suspicious, was not sufficient alone to provide the reasonable and probable grounds for the search.” The search was held to beunreasonable, contrary to s. 8 of the Charter. [25] Crown submits that reasonable grounds existed for the arrest and that the search of the vehicle incidental to the arrest was not inbreach of the Charter rights of the accused. The case of R. v. Smellie (1994) (BC CA), 95 C.C.C.(3d) 9 (BCCA) isauthority for the searching of the vehicle incidental to arrest. Mr.

Smellie had been properly arrested for possession of cocaine, and thesearch incidental to that arrest involved searching not only the interior of the vehicle, but also the trunk and a door panel where 180grams of cocaine was discovered. [26] In

summary, s. 495 of the Criminal Code requires the officer to have reasonable grounds in believing an accused has committedan indictable offence such as possession of marihuana contrary to s.4 of the Controlled Drugs and Substances Act before the officer canlawfully arrest that accused. It the officer only has suspicion, no lawful arrest can happen. With sufficient reasonable suspicion, a briefinvestigative detention can happen, but the scope of search allowable for investigation is limited to a pat down search for officer safety.

Reasonable suspicion will not be grounds for a lawful search of the vehicle. [27] Reasonable grounds for arrest must be more than just a hunch and must also be more than just a suspicion. However, the law isreplete with examples where reasonable grounds for arrest exist without having proof beyond a reasonable doubt, or even proof on thebalance of probabilities. Proof and belief are two separate things. The officer must have a reasonable belief that it is more likely thannot that the accused is committing the indictable offence.

If such a belief is reasonably held, both from a subjective and objective pointof view, then grounds exist to arrest and in most situations a search of the vehicle incidental to arrest would be lawful. [28] The law in Canada is somewhat inconsistent regarding whether the smell of marihuana alone can create reasonable grounds forarrest. The inconsistency is from province to province and sometime even within the same province. In recent years, the cases havealso made a distinction between the smell of burnt marihuana and raw vegetative marihuana. The cases are also divided in this regard.

In the case at bar, I am dealing with what was described as a “very, very strong smell of vegetative marihuana that was overpowering.” Ibelieve the decision of Justice Powers in R. v. Ashby (supra) best summarizes the current law in our province in this regard. The strongodour of vegetative marihuana can be sufficient on its own to support a reasonable belief that an accused has committed the indictableoffence of possession of marihuana. However, each case must be decided on its own merits. Was the officer experienced in smellingraw marihuana? Was it the smell of vegetative or burnt marihuana?

Was the source and direction of the smell sufficiently identified? [29] In the case at bar I am satisfied that the officer subjectively believed the overpowering marihuana smell gave him grounds toarrest the accused for possession of marihuana. The officer was experienced with the smell of vegetative marihuana. He testified thatthe overpowering smell led him to reasonably believe that he would find vegetative marihuana in the vehicle. In those circumstances,his subjective belief was objectively based in reason. [30] I find that the accused was not arbitrarily detained contrary to

section 9 of the Charter. The officer was justified in pulling thevehicle over for speeding through a school zone. He immediately detected the overpowering smell of marihuana and this justified thearrest of the accused and the subsequent search of the vehicle incidental to arrest. The bags and money seized were not taken contrary tothe

section 8 Charter right to be secure against unreasonable search or seizure.

Right to Counsel [31] I now turn to the claim that the

section 10(

b) Charter right of the accused to retain and instruct counsel without delay and to beinformed of that right was infringed. The officer immediately formed the opinion that he had grounds to arrest, even before he asked theaccused any questions about the marihuana. The officer was obliged to first tell the accused of his right to counsel and to then give theaccused a reasonable opportunity to speak with counsel.

The officer was required to refrain from asking any questions of the accuseduntil those Charter rights had been given. [32] The officer testified that he was hesitant to immediately arrest the accused because he thought there might be a small child underthe blanket that was in the car seat in the back and he did not want to upset any child. Once the officer was satisfied there was no childin the seat, he should have then immediately arrested and chartered the accused and refrained from asking questions about the marihuanasmell until the accused had an opportunity to speak with a lawyer.

The one inappropriate question he asked (Where is your Bud?) shouldnot have been asked before first giving the accused a reasonable opportunity to speak with counsel. That question prompted the accusedto produce a burnt marihuana roach. That response was clearly obtained contrary to the s.10(

b) Charter right of the accused. [33] I do not accept that the police are required to allow an accused to make a cell phone call to counsel before arriving at thedetachment, provided there is no excessive delay in returning to the police station and provided the police refrain from questioning theaccused about the offence until the accused has had opportunity to speak with counsel. When someone is arrested and in the custody ofthe police, it becomes difficult to arrange for speaking with counsel in private at the scene. Police should just get such an accused to thedetachment as soon as is reasonably possible.

Such a plan is also more safe for everyone involved. [34] Fairness requires that the inappropriate question (Where is your Bud?) and the response of the accused, not be used as evidencein this trial. That was conscripted evidence. However, this was not such a significant breach as to lead, under s.24(2), to exclusion of theother exhibits seized. The officer did immediately thereafter correct his mistake by arresting the accused and reciting the 10(

b) Charterrights to the accused. He initially did that verbally even before the accused was placed in the police vehicle. The officer then moreformally recited those rights to the accused a second time once the accused was in the police vehicle. This was not a case of the officerexercising “bad faith.” The officer was in no way relying on the response of the accused as a ground for arrest. There was no connectionbetween the response of the accused to the inappropriate question and the subsequent evidence seized by the police.

The evidence seizedwas not conscripted evidence from the accused. [35] Even before the recent trilogy of Supreme Court of Canada cases dealing with s.24 of the Charter, the highest court of the landhad pointed out in R. v. Simmons (SCC), [1988] 2 S.C.R. 495 that in some cases such as this, the harm to the integrity ofthe judicial system resulting from the excluding of evidence could bring the administration of justice into disrepute if the evidencenecessary to substantiate a charge were excluded on the basis of a trivial Charter violation.

Such is the case here where this trivialbreach will not affect the fairness of the trial. [36] I find there was a

section 10(

b) Charter breach, but under s.24(2) the only evidence to be excluded is the question, “Where isyour Bud?” and the response of the accused in producing the burnt marihuana roach. It would bring the administration of justice intodisrepute to exclude the non-conscripted, real evidence subsequently seized from the vehicle. Service of Certificate on Counsel [37] Counsel were seeking one final ruling in this voir dire that involved an evidentiary issue and not a Charter issue. As stated at theoutset, the accused is not charged with any Controlled Drugs and Substances Act offence.

The two charges are, covertly transportingproceeds of crime and being in possession of money obtained by crime, contrary to sections 462.31(1)(

a) and 355(1) of the CriminalCode. However, police did obtain two certificates of analysis on some of the loose flakes of substance in the hockey bags. [38] By way of a letter dated August 27, 2010, Crown Counsel sent to Mr. Tarrabain as counsel for the accused, those certificates andthe Notice of Intention to use the certificates at trial. The trial date was set for September 14, 2010. [39] Mr. Tarrabain did not send back to Crown the acknowledgment copy of that letter. On September 3, 2010 Mr.

Tarrabain wrote aletter to the Crown advising that he was unable to accept service of the Certificates and he took the position that Crown needed topersonally serve them upon the accused. Counsel claimed that no reasonable notice of the intention to tender the documents had beengiven. [40] The trial ended up not proceeding on September 14, 2010. The trial started before me on July 22, 2011 and was adjourned toSeptember 12, 2011 for my written decision on the voir dire. I do accept that notice can be sufficiently served on counsel of record,provided adequate timing of that notice is given.

These documents have now been in the possession of counsel for the accused for over ayear. In these circumstances, there is no merit to any claim that the documents have not been timely served. [41] The matter is now adjourned to the Judicial Case Manager for Wednesday the 14th day of September at 10:30 a.m. for thepurpose of fixing the continuation date. ____________________ R.R. SMITH, P.C.J.