R v Molnar, 2018 MBCA 61

Citation: R v Molnar, 2018 MBCA 61 Date: 20180522 Docket: AR17-30-08838 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) Z. M. Jones ) for the Appellant ) Respondent ) R. L. Rankin ) for the Respondent - and - ) ) Appeal heard: Andrea molnar ) December 13, 2017 ) ) Judgment delivered: (Accused) Appellant ) May 22, 2018 On appeal from 2017 MBQB 5 HAMILTON JA [ 1 ] The accused appeals her conviction for possession of marijuana for the purpose of trafficking (see 2017 MBQB 5 ).

At issue is the trial judge’s voir dire ruling admitting evidence discovered incidental to her arrest (see 2016 MBQB 198 ). [ 2 ] After a positive hit by a sniffer dog on a suitcase in the baggage car of a train, the RCMP arrested the accused and searched the suitcase, her purse and duffel bag. The suitcase had no identification of ownership. The trial judge held that the RCMP had reasonable grounds to arrest the accused and that the searches were incidental to her arrest. [ 3 ] The accused concedes that the RCMP had the reasonable suspicion necessary to detain her and to deploy the sniffer dog.

The key question on this appeal is whether the reasonable suspicion that the accused was travelling with a suitcase containing marijuana was elevated to reasonable grounds to arrest immediately after the sniffer dog’s positive hit on the suitcase. In other words, was there a sufficient connection between the suitcase and the accused at the time of her arrest? [ 4 ] I am of the view that there was not a sufficient connection and therefore, the trial judge erred in law when she concluded that the accused’s rights under

section 8 of the Canadian Charter of Rights and Freedoms (the Charter ) were not breached. However, I would not exclude the evidence under section 24(2) of the Charter . Accordingly, I would dismiss the accused’s appeal. Background [ 5 ] Constable Kristalovich of the RCMP received a tip from a reliable confidential informant that a person named Andrea Molnar was travelling by train from Agassiz, British Columbia to Washago, Ontario (two known ports in the drug trade) on a one-way ticket, paid for by cash, with a locked grey suitcase smelling of marijuana.

The RCMP did not have time to act on that tip. [ 6 ] A month later, Constable Kristalovich, through his usual checks with VIA Rail Canada (VIA Rail), learned that an Andrea Molnar had purchased, with cash, a one-way ticket for the same trip. When the train stopped in Winnipeg, the RCMP sought out the passenger named Andrea Molnar (the accused) and detained her for a drug investigation.

She was appropriately cautioned by Constable McGill, who was partnered with Constable Kristalovich, and remained in a police vehicle while the investigation proceeded. [ 7 ] Based on his experience, Constable Kristalovich determined that he had a reasonable suspicion to have a reliable sniffer dog, Bernie, check out the baggage compartment of the train. Bernie arrived at the train station with his handler of six years,

Constable Safiniuk. Bernie is trained to identify six different types of scheduled drugs under the Controlled Drugs and Substances Act , SC 1996, c 19 and had never made a false indication of the presence of drugs during his training and deployment in police investigations. [ 8 ] Bernie smelled drugs in a grey suitcase. The only tag on it indicated the destination of Washago. The suitcase had no ownership information.

Unlike airlines, VIA Rail does not link suitcases to their owners with easily traceable exterior labels. [ 9 ] Once Bernie indicated the presence of drugs in the grey suitcase, Constable Kristalovich, who was in the baggage car, advised Constable McGill to arrest the accused for possession of drugs for the purpose of trafficking. Constable McGill cautioned the accused again. After her arrest, the RCMP searched the accused, her purse and duffel bag.

These searches provided the luggage ticket that matched the tag number on the grey suitcase and a key to the suitcase. [ 10 ] Shortly after the accused’s arrest and before the key to the suitcase was found, the RCMP pried open the suitcase. As described by the trial judge, “the suitcase was opened by ‘breaching’ the zipper and was found to contain a large garbage bag and coffee grounds (a substance commonly used to mask the odour of marihuana) as well as 20 half-pound vacuumed packed bags of marihuana” (at para 20).

Voir Dire Reasons of the Trial Judge [ 11 ] The accused, who was not represented by counsel at the trial, challenged the admissibility of the seized evidence on the basis that the RCMP breached her rights under

section 8 of the Charter , as well as sections 7 , 9 and 10 . After reviewing the evidence of the three RCMP constables, the trial judge found that the accused’s rights were not breached by the detention, the arrest or the searches incidental to it. [ 12 ] With respect to the evidence about the search in the baggage car after the accused’s detention and the positive hit by Bernie on the grey suitcase, she stated (at paras 16-19): In the meantime, Constable Kristalovich had gone to the baggage car to wait for Constable Safiniuk.

He said he looked around and described the manner in which the bags in the baggage car were usually sorted. He noticed a grey suitcase sitting off by itself with a luggage tag on it indicating it was destined for Washago, Ontario. He did nothing further.

When Constable Safiniuk arrived, Constable Kristalovich waited at the door of the baggage car so Constable Safiniuk could “run the dog.” Constable Safiniuk gave detailed evidence as to the manner in which “Bernie” was deployed and the safeguards put in place to ensure the police dog would not be subject to any interference and would not pick up any inadvertent queues from him or anyone else. At 2:04 a.m. Bernie made a “hit” on the grey hard shell suitcase destined for Washago, Ontario. . . . Constable Kristalovich took the suitcase he had seized.

When the accused’s duffle bag and purse had been searched, a ticket from inside was discovered which matched the baggage tag on the suitcase. [ 13 ] The trial judge described the RCMP officers as “experienced” (at para 23), stating ( ibid ): [They] conducted many drug investigations and are clearly familiar with the law and their obligations to ensure the integrity of an accused person’s rights under the Charter .

This investigation was carefully conducted and “went by the book.” [ 14 ] She stated that the applicable case law was “in the main . . . not in dispute” and that the issue “was the application of the law to the facts” (at para 23). She referred to the common law power of search incidental to arrest that permits searches for officer safety and the discovery and preservation of evidence and stated that the Crown has the onus of establishing that a warrantless search was incidental to an arrest. In this regard, she noted that the Crown must establish on a balance of probabilities that (at para 25): (

a) the police had reasonable grounds to arrest the accused; (

b) the searches were conducted for a valid objective; and

(

c) the search was conducted in a reasonable manner. [15] She concluded that the information considered by the RCMP “easily meets the ‘reasonable suspicion’ test necessary tojustify the accused’s detention and later deployment of the police drug dog by Constable Safiniuk” (at para 27). [16] As for the RCMP officers’ reasonable grounds to arrest the accused and the searches incidental to arrest, the trial judgestated (at paras 33-34): Once Bernie made a “hit” on the bag as described by Constable Safiniuk, whose evidence was unshaken on cross-examination, the policeofficers had reasonable and probable grounds to believe that the accused was in possession of marihuana for the purposes of traffickingand were justified in arresting her on any objective basis to continue with their investigation.

The evidence was uncontradicted that the warrantless search of the accused incidental to arrest which followed was for the legitimatepurpose of officer safety and obtaining and preserving evidence of marihuana trafficking. At each step of the way, as her jeopardyincreased, the accused was cautioned and “Chartered” three times in all.

I am satisfied based on all of the evidence that the policeofficers took great care to proceed step by step so as not to offend against the accused’s rights. [emphasis added] [17] Because the trial judge did not find any breach under the Charter, she concluded that it was unnecessary to engage in asection 24(2) analysis. Grounds of Appeal and Standard of Review [18] The accused asserts three grounds of appeal. Her position is that the trial judge erred in not finding that her

section 8Charter rights were breached because: 1. the sniffer-dog search was conducted in an unreasonable manner; and 2. the arrest was made without reasonable grounds and therefore, the evidence was inadmissible. [19] She also asserts that the trial judge failed to provide sufficient reasons. [20] The Crown’s position is that: 1. the sniffer-dog search was carried out in a minimally intrusive way; 2. the positive hit by Bernie, along with other factors, led to reasonable grounds to arrest; and 3. the trial judge’s reasons provide sufficient information for appellate review in the context of the record and the issues. [21] I would dismiss two of the accused’s grounds of appeal summarily. [22] I see no error in how the trial judge applied the law to the facts in this case with respect to the sniffer-dog search of thebaggage car.

Bernie was a reliable and experienced sniffer dog. I agree with the Crown that the RCMP officers took care to carry outthe search in a fashion as minimally intrusive as possible. [23] I also agree with the Crown that the trial judge’s reasons are adequate when read in the context of the record. Theypermit the parties to understand the reasons for her decision and allow for meaningful appellate review (see R v REM, 2008 SCC 51; andR v Oddleifson (JN), 2010 MBCA 78). [24] The sole issue is whether there were objective reasonable grounds to believe that the accused had committed theoffence.

For this question, the trial judge’s findings of fact are entitled to deference unless she made a palpable and overriding error. This is not an appeal about whether the trial judge applied the correct legal principles. It is a question of how she applied the applicablelegal principles to the facts. That is a question of law and the standard of review is correctness (see R v Farrah (D), 2011 MBCA 49).

Were There Objective Reasonable Grounds to Arrest the Accused? [25] The difference between reasonable suspicion and reasonable grounds to believe has been described as the “degree ofcertainty” (Steve Coughlan & Glen Luther, Detention and Arrest, 2nd ed (Toronto: Irwin Law Inc.) at 89) that is required. Theydescribed reasonable grounds to believe as “more likely than not” and “probable” (at 91). In R v Debot, (SCC), [1989] 2SCR 1140, the Supreme Court of Canada described it as “reasonable probability” (at 1142, 1156).

Reasonable grounds to believe is lessthan a prima facie case (see Debot; and R v Storrey, (SCC), [1990] 1 SCR 241). [26] Reasonable suspicion is a lower standard. As explained by leMaistre JA in R v Seymour, 2016 MBCA 118, reasonable

suspicion is a “low standard to meet and requires proof that the individual targeted is possibly engaged in criminal activity” (at para 18)(emphasis added). [27] In R v Chehil, 2013 SCC 49, a sniffer-dog case, the Supreme Court cautioned reviewing judges about the difference (atpara 27): Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be groundedin objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

Asa result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard. [emphasis added] [28] In other words, as stated by Doherty JA in R v McGuffie, 2016 ONCA 365, “Investigative detention does not require thesame strong connection between the detained individual and the offence being investigated” (at para 37) as is required to arrest thedetained individual. [29] In my view, the “strong connection” (ibid) between the accused and the offence to establish objective justification forthe accused’s arrest was missing. [30] To recap, the evidence linking the accused to the grey suitcase was as follows: 1.

A month before the arrest, Constable Kristalovich received a tip from a reliable confidential informant that a person namedAndrea Molnar was travelling from Agassiz to Washago (two known ports in the drug trade) on a one-way train ticket, paid for by cash,with a locked grey suitcase smelling of marijuana; 2. The accused is named Andrea Molnar and was travelling via train from Agassiz to Washago; 3. The suitcase in question was locked and grey, but did not smell of marijuana; and 4.

The suitcase in question was tagged for the destination of Washago. [31] The hit on the grey suitcase by Bernie was compelling information that elevated Constable Kristalovich’s reasonablesuspicion that the grey suitcase contained marijuana to reasonable grounds to believe (subjectively and objectively) that it did. However,Bernie’s hit did not provide any more information to connect the accused to the grey suitcase.

While the objective facts were strong(both subjectively and objectively) for the reasonable suspicion that the accused was travelling with the grey suitcase, it was not strongenough to meet the higher threshold of reasonable grounds to believe required to arrest the accused. [32] The grey suitcase was “sitting off by itself” (at para 16) in the baggage car. However, none of the witnesses testifiedthat this was the only bag destined for Washago. In his direct examination, Constable Kristalovich recalled that there was a fair amountof baggage in the baggage car, but not enough to fill it.

He agreed in cross-examination that there may have been other bags destined forWashago on the train. Both Constables Kristalovich and Safiniuk agreed that there was limited lighting in the baggage car, as the searchtook place in the middle of the night. [33] I know of no sniffer-dog case factually similar to the circumstances here, where the police received a tip regarding theaccused person travelling with a bag, but no other information tying the accused person to the bag containing contraband.

In other cases,the police either knew that the bag containing the contraband belonged to the accused person or had seen the accused person inpossession of the bag. [34] In R v Kang-Brown, 2008 SCC 18, the accused person had possession of the bag. In R v AM, 2008 SCC 19, the accusedperson’s wallet was in the bag. In Chehil, the police knew that the bag belonged to the accused person because of information obtainedfrom the airline.

In other cases, the accused person disembarked with the luggage (see R v Barclay, 2018 ONCA 114), was observedwith the luggage (see R v Lam, 2003 ABCA 201; and R v Truong, 2002 BCCA 315) or picked up the luggage from the bus (see R vNavales, 2014 ABCA 70). In other situations, the sniffer dog alerted to the accused person or their clothing (see R v Jackman, 2016ONCA 121; R v Sargent, 2016 ABCA 104, leave to appeal to SCC refused, 37060 (27 October 2016); and Grenier c R, 2012 QCCA166).

In R v Hayes (1996), (MB CA), 105 CCC (3d) 425 (Man CA), leave to appeal to SCC refused,1996WL1787921, the luggage had the accused person’s name on it. Police have also intercepted packages with drugs in them, removedthe drugs and waited for the accused person to pick it up (see R v Taylor, 2006 NLCA 41; and R v Choli, 2016 SKCA 64) or obtained asearch warrant to search the accused person’s sleeper car on a train (see R v Deol, 2006 MBCA 39). [35] To conclude, the difference between reasonable suspicion to detain and reasonable and probable grounds to arrest is amatter of degree.

Reasonable suspicion is generally framed in terms of possibility, while reasonable grounds for arrest is linked toprobability. Reasonable suspicion is a lower threshold than reasonable grounds to believe. There was no evidence that the grey suitcasein question was the only grey suitcase in the baggage car bound for Washago.

While the evidence was strong to establish a reasonablesuspicion, particularly after Bernie’s positive hit on the grey suitcase, in contrast to the cases cited above, the required strong connectionbetween the grey suitcase and the accused for the RCMP to have objective reasonable grounds to arrest her did not exist. [36] Therefore, the trial judge erred in law when she concluded that the RCMP officers had reasonable grounds to believethat the accused was travelling with the grey suitcase. Therefore, they did not have reasonable grounds to arrest her.

As a result, thearrest was unlawful, as were the searches and seizures incidental to her arrest.

[ 37 ] Given this conclusion, the issue is whether the seized evidence should be excluded pursuant to section 24(2) of the Charter . Should the Evidence be Excluded Pursuant to Section 24(2) of the Charter ? [ 38 ] The trial judge did not make an alternate ruling under section 24(2). Rather than sending the matter back to the trial judge, the panel chose to rule on the motion, based on the record and findings of fact of the trial judge that are relevant to the required analysis and which are entitled to deference ( see R v Vu , 2013 SCC 60 at para 67 ; and R v Spencer , 2014 SCC 43 at para 75 ).

At the appeal hearing, the panel asked counsel to submit supplementary factums on this issue. [ 39 ] Under section 24(2), evidence shall be excluded if, having regard to all of the circumstances, its admission will bring the administration of justice into disrepute. This inquiry requires the courts to balance individual and societal rights and requires a consideration of “all the circumstances” ( R v Grant , 2009 SCC 32 at para 85 ), as “[n]o overarching rule governs how the balance is to be struck” ( Grant at para 86 ). [ 40 ] The well-known considerations are: 1.

The seriousness of the Charter -infringing state conduct; 2. The impact of the breach on the Charter -protected interests of the accused; and 3. Society’s interest in an adjudication of the case on the merits.

See Grant ; R v Harrison , 2009 SCC 34 ; and R v Paterson , 2017 SCC 15 . [ 41 ] The accused argues that the infringement of her rights was serious, the Charter breaches were serious and the administration of justice would be brought into disrepute by admitting the evidence. [ 42 ] I conclude that in all of the circumstances, the admission of the seized evidence would not bring the administration of justice into disrepute and should not be excluded under section 24(2) of the Charter . [ 43 ] I agree with the Crown that the seriousness of the state conduct that led to the breach is at the lower end of the spectrum.

The RCMP officers’ judgment call to arrest the accused was not an egregious breach, given the strength of the information to support their reasonable suspicion to detain the accused. I think it is fair to call this a borderline case. Importantly, the trial judge found that the RCMP officers acted in good faith and proceeded “by the book” (at para 23) in a carefully conducted investigation. In all other respects, the RCMP officers proceeded carefully and respectfully of the accused’s rights.

In particular, Constable Kristalovich believed that reasonable grounds to arrest existed and he did not proceed with reckless ignorance about the scope of his power or blatant disregard for the accused’s Charter rights.

The search of the grey suitcase, the accused’s duffel bag and purse were conducted incident to what the officer believed was a lawful arrest. [ 44 ] As for the impact of the breach on the accused’s right to be secure from unreasonable search and seizure, the search took only minutes and did not demean the accused’s dignity or bodily integrity nor was she asked to provide any inculpatory evidence. [ 45 ] Finally, as for society’s interest in the adjudication of the case on its merits, the evidence sought to be excluded is both reliable and critical to the prosecution of the case.

Its exclusion “may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective” ( Grant at para 81 ). See also Barclay at para 40 . The offence is moderately serious. The accused acted as a courier to transport ten pounds of marijuana from Agassiz to Washago. She attempted to conceal her activities by including coffee grounds in the grey suitcase to mask the scent of marijuana.

In my view, this consideration favours admission of the evidence. [ 46 ] To conclude, the breach was at the low end of the spectrum of seriousness with minimal impact on the privacy rights of the accused. The long-term repute of the administration of justice would be impacted negatively by excluding the evidence seized incidental to the arrest of the accused in these circumstances. Conclusion [ 47 ] The RCMP had strong evidence to support their reasonable suspicion to believe that the accused was travelling with marijuana in a grey suitcase.

The hit on the grey suitcase by the sniffer dog did not elevate the reasonable suspicion to the higher threshold of reasonable grounds to arrest without any link between the accused and that grey suitcase. As a result, the accused’s

section 8 rights under the Charter were breached when the grey suitcase, her duffel bag and purse were searched incidental to arrest. However, I would dismiss the accused’s motion to exclude the evidence under section 24(2) of the Charter . [ 48 ] Accordingly, I would dismiss the accused’s appeal. JA

I agree: JA I agree: JA