2019 MBPC 4, 2019 MBPC 4

Citation 2019 MBPC 4 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Elizabeth Atkin ) ) for the Crown - and – ) ) ) ANDRADE, Joshua James ) ) Chris Gamby for the Accused Accused ) ) ) Decision on the Voir Dire delivered: ) January 14, 2019 M.K. Harvie, P.J. INTRODUCTION [ 1 ] On October 11, 2017, the accused was stopped by a Winnipeg Police Service (WPS) officer for a Highway Traffic Act (“ HTA” ) infraction.

After a roadside investigation and search, the accused was charged with possession for the purpose of trafficking cocaine. [ 2 ] At the trial of this matter, defence counsel asserted multiple breaches of the accused’s rights under the Charter , necessitating a voir dire. He argues that the WPS officer did not have reasonable and probable grounds to arrest the accused, and as such the accused’s rights under Charter sections 8 and 9 were violated. He further asserts breaches of Charter sections 7 and sections 10(

a) and (b). Crown counsel contests the asserted breaches and argues that the arresting officer had grounds to arrest the accused. [ 3 ] The following is my decision on the voir dire. THE FACTS [ 4 ] On October 11, 2017, at approximately 3:34 p.m., WPS Cst. Leveille was operating a marked cruiser car on Plessis Road when he observed the accused talking on a cellphone while operating a motor vehicle. Cst. Leveille activated his lights and initiated a traffic stop. He approached the vehicle at which time the accused, the lone occupant, acknowledged talking on his cellphone. [ 5 ] Cst.

Leveille is a 19 year veteran of the WPS with extensive experience dealing with drugs including raw and burnt marijuana during his three years in the Vice Division Drug Unit and two years as a handler of a drug dog. Cst. Leveille testified that when he spoke to the accused through the passenger side window he detected an odor of “raw” marijuana. There is some discrepancy between witnesses as to what occurred next. Cst. Leveille testified that he asked the accused to exit the vehicle at which time the accused produced his driver’s licence.

Both the accused and the officers who attended testified that the accused had remained in his vehicle. [ 6 ] Cst. Leveille testified that the accused made comments about having marijuana at his residence, although there is some inconsistency in his evidence as to the exact words used by the accused. The comments recorded by the officer in his notes suggest that the accused acknowledged a smell on his person, admitting to having recently had some marijuana in his jacket.

In his arrest report, the officer suggests that the accused acknowledged having some marijuana at his residence. [ 7 ] Because he was working alone, Cst. Leveille voiced for assistance on his portable radio, advising that the matter was “not urgent”. A second cruiser car arrived within minutes. Cst. Leveille advised the accused that he was under arrest for possession of marijuana, testifying that he formed his opinion based on the strong smell of marijuana within the vehicle and on his experience. Cst. Leveille turned the accused over to Csts. Weekes and Hudon. While Cst.

Weekes was dealing with the accused, Csts. Leveille and Hudon searched the accused’s vehicle. No marijuana or related paraphilia was located, but an orange “Tic Tac” container with what appeared to Cst. Leveille to contain cocaine residue was located in the glove box. Cst. Hudon testified that while searching the vehicle, he did not note any smell of marijuana. [ 8 ] Cst. Weekes took the accused to the cruiser car and advised him that he would be searched incidental to arrest. The accused immediately put his left hand into his left pant pocket, and was instructed by Cst. Weekes to remove his hand.

When the accused did so

he was holding a “Tic Tac” container containing multiple small plastic bags containing white powder and a plastic bag containing smallbags of white powder. [9] Cst. Weekes consulted with Cst. Leveille, after which he arrested the accused for possession of cocaine for the purpose oftrafficking at approximately 3:35 p.m. while the accused was in the back of the cruiser car. Cst. Weekes provided the accused his rightto counsel and the formal police caution. Cst.

Weekes did not note any odor of marijuana while the accused was in the rear of the cruisercar. [10] The accused was transported to the East District Station where he was the subject to a pat down and a subsequent strip search.During the strip search, when Cst. Hudon was in close contact with the accused, he noted an odor of marijuana on the accused. Nofurther seizures were made as a result of these searches. THE ARGUMENTS The Highway Traffic Act stop [11] It is conceded that the accused was committing an infraction under HTA

section 215.1 and that the initial stop was properlyauthorized under HTA

section 76.1. It is also conceded that, pursuant to HTA

section 76.1(6) “a peace officer is not required to inform adriver or passenger of his or her right to counsel or to give the driver or passenger the opportunity to consult counsel, before doinganything subsection (4) or (5) authorizes”. [12] It is well recognized that routine interactions with a motorist during a traffic stop are demonstrably justified but have typicalcharacteristics. They should be short in duration, focus on the production of driving related documents and ultimately represent aminimum amount of inconvenience for the motorist.

They usually do not include an intrusive search for the driver or the vehicle: see R.v. Orbanski; R. v. Elias, 2005 SCC 37; R. v. Schrenk, 2010 MBCA 38. When a Highway Traffic Act Detention becomes a Criminal Investigation [13] It is not uncommon for police, during the course of a routine HTA stop, to make observations or to otherwise suspect that theaccused is involved in criminal activity. These investigations are often fluid and it is neither necessary nor desirable for police to ignoreevidence of criminal activity.

At the same time, an officer conducting a roadside investigation must be mindful of the limits placed onthat investigation, as it is the limited and defined parameters which make a random roadside detention lawful. As noted by the Court ofAppeal in Schrenk at para. 35 “The court must be alert to the danger of allowing these traffic stops to be turned into a means ofconducting either an unfounded general inquisition or an unreasonable search. See R. v. Thomsen, (SCC), [1988] 1S.C.R. 640, R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257, and R. v.

Mellenthin, (SCC), [1992] 3S.C.R. 615.” [14] It is clear that the investigation in this matter quickly changed from being one authorized under the HTA to a criminalinvestigation. The Court must assess the interaction between the officer and the accused bearing this in mind Did Police have reasonable grounds to arrest the accused? [15] It is accepted that Crown counsel must establish on a balance of probabilities that an arresting officer must subjectively believethat he has reasonable grounds to arrest an accused, and those grounds must be objectively justifiable: See R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241. [16] The jurisprudence recognizes that evidence about “odors” is highly subjective and that a trial judge must exercise cautionwhen the presence of smell provides grounds for an arrest. In R. v.

Polashek, , 134 CCC (3d) 187 (ONCA) RosenbergJ.A. noted that when the “presence of odor” is offered as the sole ground of arrest, something which is “highly subjective” and is“largely incapable of objective verification” can result in an “unreviewable discretion” being placed “in the hands of the officer”. [17] Courts have also discussed the distinction between the smell of unsmoked or raw marijuana versus recently burned marijuana: See R. v. Huebschwerlen, 1997 10 CR (5th) 121 (Whitehorse Territorial Court); R. v. Janvier (2008), 2007 SKCA 147 , 227C.C.C. (3d) 294 (Sask C.A.).

Generally speaking, courts have been somewhat reluctant to conclude that the smell of burned marijuanaalone can provide reasonable grounds for arrest. This is not an absolute, however, and in R. v. Guberman, [1985] M.J.181 (Man. C.A)the Court accepting that the “strong odor of marijuana smoke” provided the officer with requisite grounds to arrest. [18] An officer’s level of experience has been a significant factor in assessing whether his observations are sufficient to form a basisfor an arrest: See R. v. Burgess, 2009 BCJ 449 (BC Provincial Court); R. v. Costai, 2010 BCJ 128 (BC Provincial Court); R. v.

Ashburry,2011 BCSC 513 ; R. v. Yaremus, 2008 ABPC . [19] Defence counsel concedes that Cst. Leveille subjectively believed that he had reasonable grounds to arrest the accused, and didnot seriously challenge Cst. Leveille’s experience with drug investigations. Defence counsel argues that the officer would have hadgrounds to detain the accused and to conduct a further investigation based on the smell of marijuana, but considered objectively, thesmell alone did not provide the officer reasonable grounds to arrest the accused. Specifically, he points to the fact that Cst.

Hudon did notsmell any marijuana while searching the vehicle. No drugs, including marijuana, or drug paraphernalia was in plain view in the vehicle.Nor did Cst. Weekes note any smell emanating from the accused when the accused was in the rear of the cruiser car. [20] Cst. Leveille was clear that he based his grounds for arrest on his experience and on the “smell of raw marijuana” he detectedfrom the vehicle. I am not satisfied that the olfactory observations purportedly made by the officer, when assessed objectively weresufficient to provide reasonable grounds to arrest the accused.

I am concerned about the officer’s evidence that there is little distinctionto be drawn between a weak versus a strong odor of marijuana. I am concerned the decision to arrest the accused so quickly after theofficer apparently detected the smell, without any further investigation or corroborative evidence. I am also concerned about the lack ofcorroborative evidence from either Csts. Weekes or Hudon. I recognize that Cst. Leveille testified that the window of the vehicle had

been left open after the accused exited the vehicle, and that this might account for the dissipation of the smell prior to the search of thevehicle. However, Cst. Leveille’s evidence that the accused had exited the vehicle prior to the back up officers arriving is not supportedby either Csts. Weekes or Hudon, or for that matter by the accused, all of whom testified that the accused was in the vehicle until theirarrival. I am not satisfied that this suggestion provides an explanation for the discrepancies in the evidence.

While less experienced, Cst.Hudon clearly was familiar with the smell of marijuana, having detected what he believed to be the odor of marijuana when he was inclose contact with the accused during the strip search conducted later at the station. [21] I am not satisfied that the totality of the circumstances, considered objectively, provided the officer grounds to arrest theaccused. Arrest versus Detention- The Power to Search [22] I agree with defence counsel that having detected what he believed to be the smell of raw marijuana, Cst. Leveille would havehad grounds to detain the accused for further investigation.

Crown counsel argues that the evidence would likely have been located, evenas part of a search incidental to detention rather than arrest. [23] The power to search incidental to arrest was discussed in R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, and has sincebeen the subject of judicial comment. The assessment of police conduct is very much a fact-based exercise, and the conduct of theofficers at the time of the search cannot be considered in isolation. Having said that, it is also important to bear in mind the actual courseof action undertaken by the officers. In R. v.

Whitaker, 2008 BCCA 174 the court made the following observations: 65 The Crown argued, in brief, that even if the police did not have reasonable grounds to arrest Mr. Whitaker, his detention was notarbitrary because he could have been detained under the common law power of investigative detention recognized in R. v. Mann, [2004]3 S.C.R. 59, 2004 SCC 52 .

The difficulty with this argument is that the police did not invoke the common law power ofinvestigative detention; they invoked the statutory power of arrest, with its more extensive power of incidental search of the person.When the police have wrongfully arrested someone, their actions cannot be defended on the basis that they could have detained thisperson on some other basis. In deciding whether the police infringed Charter rights, they are to be judged on what they did, not whatthey could have done: R. v. Charley (1993), (ON CA), 22 C.R. (4th) 297 (Ont. C.A.) at para. 5. [24] Similarly, in R. v.

Albert, 2019 MBQB 147, Greenberg J. considered actual police conduct, that being the decision to arrest theaccused rather than to conduct an investigative detention, concluding that the evidence fell short of establishing that the items seizedwould have been discovered in any event. She concluded (at para. 36) “The fact that no evidence was led explaining the circumstances of a detention reinforces my earlier comments that the policeactions must be judged by the evidence of what they did, not by argument of Crown counsel as to what they could have done.” [25] Much like in Albert, no evidence was adduced from Cst.

Weekes as to his practice when an accused is detained, either in termsof the nature of any search that might have been conducted, or whether the accused would even have been placed in the cruiser car. Thismeans that the Court is left to assess the circumstances based only on the evidence of the officers as to how they conducted the searchpursuant to what has now been determined to be an arrest executed without reasonable grounds. Based on the evidence before the Court,I cannot conclude that it was inevitable that the items seized from the accused would have been located by the officer.

Further Alleged Charter Breaches- Sec, 7 and Sec 10(

a) and (b) [26] Following his arrest, the accused was detained, was eventually provided his rights, and was taken to the station where he wasthe subject of a strip search. Counsel made lengthy submissions respecting these alleged breaches, with the onus resting with the defence. [27] Although I have some concerns about the conduct of the arresting officers, given my findings with respect to the arrest and thesection 8 Charter breach, it is not necessary for me to consider these arguments.

Charter Sec. 24(2) Inquiry [28] Defence counsel argues that the evidence should be excluded pursuant to the three part analysis under R. v. Grant, 2009 SCC32 .

As is well recognized, the Court must determine whether the administration of justice would be brought into disrepute byassessing (1) the seriousness of the Charter-infringing state conduct which led to the discovery of the evidence; (2) the impact of theCharter-protected interests of the accused; and (3) society’s interest in an adjudication on the merits of the case. [29] I consider the breach in the case to be serious and the impact on the Charter protected rights of the accused to be significant.There is no suggestion that there was any exigent circumstances preventing the officers from detaining and investigating further.

By allaccounts, the accused was cooperative throughout his dealing with the officers. He pulled over immediately when signalled to do so.Indeed, when Cst. Leveille radioed for back up, he advised that the matter was not urgent. [30] The lack of corroboration of both the presence of the smell and its strength by the other officers is an obvious factual concern,but goes as well to an evaluation of the seriousness of the breach. Further, Cst. Leveille’s evidence suggesting that there is little to beattached to the strength of the smell is somewhat surprising.

The impact on the accused was certainly signficiant, and included beingsubjected to a strip search at the police station. [31] I would agree that, like in most cases involving real evidence necessary for the Crown’s case that the third prong of the Granttest favors the admissibility of the evidence. However, I am also mindful of the comment by the Supreme Court in R. v. Cote, 2011 SCC47 , 2011SCC 47 that the proper application of Grant requires a balancing of all of the circumstances and that “No oneconsideration should be permitted to consistently trump other considerations”. Conclusion

[ 32 ] Taking into account all of the foregoing, I am satisfied that the accused was arrested without objectively reasonable grounds and that the incidental search represents a breach of his

section 8 Charter rights. I am also satisfied, taking into account the Grant test, that the evidence should be excluded pursuant to Charter section 24(2). “Original signed by” Harvie, P.J .