R v Land, 2018 MBCA 132

Citation: R v Land, 2018 MBCA 132 Date: 20181210 Docket: AR18-30-09038 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) H. D. P. Crawley ) for the Appellant ) Appellant ) J. H.

Youn ) for the Respondent - and - ) ) Appeal heard and ANDREW RYAN LAND ) Decision pronounced: ) November 21, 2018 ) (Accused) Respondent ) Written reasons: ) December 10, 2018 PFUETZNER JA (for the Court): [ 1 ] Prior to the accused’s trial, a voir dire was held regarding the admissibility of evidence, specifically the marihuana and cash seized by the police after searches of the accused’s backpack and wallet. The accused was tried on one count of possession of proceeds of crime contrary to section 354(1) (

a) of the Criminal Code (the Code ), one count of possession of marihuana for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19, and one count of possession of a weapon for a purpose dangerous to the public peace contrary to

section 88 of the Code . [ 2 ] In his ruling on the voir dire , the trial judge held that the evidence was obtained as a result of unreasonable searches in breach of

section 8 of the Canadian Charter of Rights and Freedoms (the Charter ). The trial judge determined that the evidence should be excluded under section 24(2) of the Charter . The accused was acquitted of the charges relating to possession of proceeds of crime and possession of marihuana for the purpose of trafficking. The Crown appealed and sought a new trial. [ 3 ] In our view, the trial judge failed to consider the correct legal principles in determining whether the searches violated

section 8 of the Charter . While the Crown conceded that there had been a breach of the accused’s rights under

section 10(

b) of the Charter during his initial interaction with the arresting officers, if the searches did not violate

section 8 of the Charter , this finding would have a material effect on the analysis under section 24(2) . As a result of our conclusion regarding the trial judge’s approach to the

section 8 analysis, there is no need to deal with the Crown’s second argument regarding the trial judge’s analysis under section 24(2) of the Charter . [ 4 ] At the hearing of the appeal, we allowed the appeal and ordered a new trial with reasons to follow. These are those reasons. Background [ 5 ] The facts are not in dispute. On the day of the accused’s arrest, a 911 call was made from a 7-Eleven store in the City of Winnipeg at 8:49 a.m. The clerk said that a male was refusing to leave the store and was in possession of a knife.

Constables Chabluk and Borland arrived at the 7-Eleven store within minutes and spoke with the clerk, who advised that the male had gone to the store next door. The officers attended next door and approached the accused, who matched the description of the male. [ 6 ] The accused said, “you here for me?” to the officers. Constable Chabluk asked the accused if he had a knife. The accused indicated yes and gestured to his pocket. At 9:05 a.m., Cst.

Borland told the accused that he was being detained for a weapons investigation, took hold of the accused and removed the knife from his pocket. [ 7 ] Constable Chabluk asked the accused why he had the knife. The accused said it was because he got “jumped by some guys last week” so he had it for protection.

[8] The officers removed the accused from the store to conduct a more detailed safety search. While walking theaccused toward the police vehicle, both officers noticed a strong smell of fresh marihuana emanating from the accused. Based on thesmell, both officers believed the accused had a quantity of fresh marihuana on him. [9] Constable Chabluk asked the accused if he had any marihuana on him. The accused said “I only have a gram on me,maybe a little more”. At 9:08 a.m., the accused was arrested for the weapons offence and for possession of marihuana. [10] The officers then searched the accused.

No marihuana was found on his person; however, a search of his backpackrevealed approximately 200 grams of marihuana divided into multiple smaller, labeled packages. [11] Between approximately 9:10 a.m. and 9:15 a.m., Csts. Cummer and McClean arrived at the scene to transport theaccused to the police station. At 9:16 a.m., Cst. Cummer gave the accused his full charge (possession of a weapon for a dangerouspurpose and possession of marihuana for the purpose of trafficking), police caution and right to counsel.

At that time, the accuseddeclined to contact counsel. [12] On arrival at the police station at 9:35 a.m., the accused was turned back over to Csts. Chabluk and Borland. As aresult of the amount of drugs found and its packaging, the officers believed he was trafficking drugs, so they searched the accused’swallet. The search revealed cash of $885.35 in small denominations. At 9:50 a.m., Cst. Chabluk rearrested the accused for possession ofproceeds of crime and seized the cash. The accused was again provided with his right to counsel and spoke to duty counsel.

He wasthen released on a promise to appear. [13] At the voir dire, the accused sought exclusion of the marihuana and cash under section 24(2) of the Charter on the basisthat he had a reasonable expectation of privacy with respect to his backpack and the search and seizure by the officers violated his “rightto be secure against unreasonable search or seizure” under

section 8 of the Charter. [14] At the voir dire, the Crown argued that there was no breach of

section 8 of the Charter. It maintained that the accusedwas lawfully arrested for possession of marihuana based on the strong odour and that the subsequent search of his backpack wasincidental to that arrest. The search of the wallet occurred after, and was incidental to, the accused’s arrest for possession of marihuanafor the purposes of trafficking. The Crown conceded that the accused’s right on detention or arrest to retain and instruct counsel withoutdelay and to be informed of that right under

section 10(

b) of the Charter was infringed when the officers questioned the accused prior toadvising him of his

section 10(

b) rights in relation to the weapon charge. However, the Crown stated that it was not seeking admissionof the statements made by the accused prior to being advised of his right to counsel and submitted that there was no nexus between thesection 10(

b) breach and the discovery of the marihuana and cash. [15] In his ruling on the voir dire, the trial judge characterised the legal issue as “whether [the accused] had a reasonableexpectation of privacy as it relates to his backpack.” He found that the accused was cooperative with the police and identified thelocation of the knife immediately. As a result, the trial judge stated, “officer safety was not, in my opinion, a consideration.” The trialjudge stated that “the search was not authorized by law”.

Relying on R v AM, 2008 SCC 19, the trial judge found that “the case law isclear that the accused has a reasonable expectation of privacy as it relates to a closed backpack on his person.” As the accused was“already in custody on another charge,” the trial judge concluded that the officers “should have taken steps to get a legal search warrantto search the bag.” He said that “The search and seizure at the police station of the accused’s wallet is further aggravating as there is noevidence of [a] drug transaction occurring, which could lead to a seizure of cash in a person’s wallet.” [16] The trial judge then analysed whether the evidence should be excluded under section 24(2) of the Charter, ultimatelyconcluding that it should.

Issues [17] The Crown raises two issues on this appeal. The first is whether the trial judge erred in law by failing to state or applythe correct legal principles in assessing the alleged violation of

section 8 of the Charter by failing to consider if the searches of thebackpack and wallet and seizure of the cash were reasonable as a result of being incidental to a lawful arrest. [18] The second issue is whether the trial judge erred in his decision to exclude the evidence under section 24(2) of theCharter by improperly inflating the seriousness of the officers’ conduct and the impact of the breaches of

section 8 and

section 10(

b) onthe Charter-protected interests of the accused. As explained, because of our conclusion on the first issue, we will not address the secondissue. Positions of the Parties [19] The Crown argues that the trial judge failed to consider the police power to search incidental to arrest. It states that theaccused was under lawful arrest for possession of marihuana at the time of the search of the backpack and was under lawful arrest forpossession of marihuana for the purpose of trafficking at the time the accused’s wallet was searched and the cash was seized. TheCrown maintains that each search and the seizure was reasonable under

section 8 of the Charter as incidental to lawful arrest. [20] The accused submits that the trial judge was correct in finding that the search of his backpack, and the subsequentsearch of his wallet and seizure of cash, violated

section 8 of the Charter. Relying on R v Polashek (1999), (ON CA),172 DLR (4th) 350 (Ont CA), he argues that the trial judge must have concluded that the odour of marihuana alone did not providereasonable grounds to search his backpack. Standard of Review

[21] On a Crown appeal, the standard of review that applies to the question of whether the trial judge erred in finding thatthere was a breach of

section 8 of the Charter is set out in R v Koczab (A), 2013 MBCA 43 (at para 16): [T]he appellate court will review the decision to ensure that the correct legal principles were stated and that there was no misdirection intheir application. This raises questions of law and the standard of review is correctness. Analysis and Decision [22] The Supreme Court of Canada, in R v Caslake, (SCC), [1998] 1 SCR 51, discussed the common lawpolice power of search incidental to arrest. The test, set out in R v Collins, (SCC), [1987] 1 SCR 265, for whether asearch is reasonable and therefore in compliance with

section 8 of the Charter, was confirmed in Caslake at para 10. First, the searchmust be authorised by law. Second, the law must be reasonable and, third, the search must be carried out in a reasonable manner. Seealso R v Fearon, 2014 SCC 77 at para 12. [23] Caslake also confirmed the Supreme Court of Canada’s previous ruling in Cloutier v Langlois, (SCC),[1990] 1 SCR 158 that the police power to search incidental to arrest complies with the first branch of the Collins test as it is authorisedby law—in this case a common law doctrine.

No warrant or independent reasonable and probable grounds are required to conduct such asearch. This is because the search must be truly incidental to a lawful arrest and, for an arrest to be lawful, the police must have an arrestwarrant or reasonable grounds for arrest (see Caslake at para 13; and Fearon at paras 16-19, 21-22). [24] The concept of “reasonable grounds” for arrest was discussed in R v Storrey, (SCC), [1990] 1 SCR241 at 250-51. The concept requires that an arresting officer must subjectively believe that he or she has reasonable grounds to arrestand those grounds must be objectively reasonable.

See also R v Janvier, 2007 SKCA 147 at paras 10-16; R v Tontarelli, 2009 NBCA 52at paras 52-53; R v McKay, 2009 MBCA 121 at para 24; R v Harding, 2010 ABCA 180 at paras 15-22; and R v Acosta, 2014 BCCA 218at paras 11-22. [25] Several appellate courts have confirmed that the detection by a police officer of the odour of fresh or vegetativemarihuana can, on its own, satisfy the subjective belief needed to constitute reasonable grounds for arrest and those grounds can beobjectively reasonable (see R v Sewell, 2003 SKCA 52 at para 36; Janvier at para 44; Harding at para 29; and Acosta at paras 16-22). [26] Caslake succinctly summarised the limits and scope of a search incidental to arrest as follows (at para 25): In

summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrineof search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search mustbe truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra(protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds.

However, they must have had some reason related to the arrest for conducting thesearch at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automaticallypreclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inferencemay be rebutted by a proper explanation. [27] In our view, the trial judge erred initially by failing to consider whether the accused’s arrest for possession ofmarihuana based on the odour alone was lawful.

Consequently, the trial judge erred by failing to consider whether the search of thebackpack was a lawful search incidental to that arrest and whether the subsequent search of the accused’s wallet and seizure of cash werelawful as incidental to his arrest for possession of marihuana for the purposes of trafficking. A reading of the trial judge’s ruling as awhole indicates that he did not consider the fact that, at the time of each search and the seizure of the cash, the accused was under arrestfor marihuana offences. [28] While the trial judge accepted that Cst.

Chabluk’s explanation for conducting both searches was “for officer safety andincident to arrest”, he failed to analyse whether the searches were justified as searches incidental to arrest.

His analysis of whether eithersearch was justified on the basis of officer safety can only be described as minimal and consisted of the conclusory statement that“officer safety was not, in my opinion, a consideration.” This is despite the fact that the officers had already removed a knife from theaccused’s possession. [29] As for the search of the wallet and seizure of the cash, it is apparent that the trial judge failed to consider the fact thatthe accused had, by that time, been charged with possession for the purpose of trafficking when he said, “there is no evidence of [a] drugtransaction occurring”. [30] Instead of turning his mind to the doctrine of search incidental to arrest, the trial judge characterised the sole legal issueas being whether the accused “had a reasonable expectation of privacy as it relates to his backpack.” Relying on AM, he found that theaccused did.

There is no dispute that the accused had a reasonable expectation of privacy in his backpack. However, the only relevanceof this is that it gives the accused standing under

section 8 of the Charter to challenge the reasonableness of the search (see R v Edwards, (SCC), [1996] 1 SCR 128 at paras 29-30). Whether an accused has a reasonable expectation of privacy in the place orthing searched is the first step in the analysis, the second step being to determine if the search was reasonable (see Edwards at paras 33,45 at pt 4).

[ 31 ] In conclusion, the trial judge failed to consider the proper legal principles in analysing whether the searches of the accused’s backpack and wallet and the seizure of cash were in breach of

section 8 of the Charter . As previously indicated, the Crown conceded a breach of

section 10(

b) of the Charter and it sought a new trial where all the Charter issues—under sections 8 , 10(

b) and 24(2) —can be freshly considered applying the proper legal framework. [ 32 ] Accordingly, for these reasons, we allowed the appeal and ordered a new trial. JA JA JA