COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacDonald, 2012 ONCA 495

DATE: 20120712

DOCKET: C52174

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew MacDonald

Appellant

Saman Wickramasinghe, for the appellant

Xenia Proestos, for the respondent

Hazel Jones, for the intervener Her Majesty the Queen in right of Ontario

Heard: June 11, 2012

On appeal from the conviction entered on February 19, 2009 by Justice John D. Keast of the Ontario Court of Justice, sitting without a jury, with reasons reported at 2009 ONCJ 304.

MacPherson J.A.:

A. introduction

[1] Following a four day trial, Justice Keast of the Ontario Court of Justice convicted the appellant Andrew MacDonald of one count of possession of marijuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CSDA”) and one count of possession of excess unmarked cigarettes contrary to s. 29(1)(a) (as it then was) of the Tobacco Tax Act, R.S.O. 1990, c. T.10 (“TTA”). The trial judge imposed a sentence of four months of imprisonment followed by 12 months of probation on the CDSA conviction and a $4,205 fine on the TTA conviction.

[2] On this appeal, the appellant appeals the CDSA conviction.[^1]^,[^2] He contends that his rights under ss. 8 and 10 of the Canadian Charter of Rights and Freedoms were violated by the investigating police officers and that the evidence relating to the trafficking charge found in his vehicle should have been excluded under s. 24(2) of the Charter. He seeks an acquittal on the CDSA charge or, in the alternative, an order for a new trial.

B. Facts

(1) The parties and events

[3] The appellant and his friend Joshua Beaucage were driving in the appellant’s Dodge Caravan en route to Christian Island where they were to perform in an aboriginal drum ceremony. At approximately 12:30 a.m. on July 7, 2007, Ontario Provincial Police officers Constable Joe McCallion and Sergeant Kevin Webb, who were on radar patrol on Highway 17 in the Sudbury area, clocked the van travelling at 121 km/h in a 90 km/h zone. They stopped and detained the appellant for speeding contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).

[4] At first, Constable McCallion took the lead on the HTA stop; he approached the appellant on the driver’s side. Sergeant Webb approached the passenger side where Mr. Beaucage sat for officer safety reasons. Sergeant Webb peered through the passenger-side window. He observed a brown cardboard box in the large open area at the back of the van. He estimated its dimensions as about 20” x 10” x 14”. He also noticed some lettering on the top left and right corners of the box, SM and FF respectively. Based on his experience, Sergeant Webb became suspicious that the box contained contraband cigarettes.

[5] Sergeant Webb came around to the driver’s side. He asked the appellant what was in the box. The appellant replied that he did not know. Sergeant Webb repeated the question and the appellant responded that the box contained cigarettes for his mother-in-law and for the pow-wow he was heading to.

[6] Sergeant Webb went back to the police cruiser and called Jack Anthopoulos, the on-call senior investigator at the provincial Ministry of Revenue, to obtain authorization to detain and search the vehicle pursuant to s. 24(1) of the Tobacco Tax Act. Mr. Anthopoulos concluded that there were reasonable and probable grounds to believe that the vehicle contained evidence of a contravention of the TTA. He granted authorization to detain and search the appellant’s vehicle and seize any products or paperwork relating to the purchase, sale, and transportation of cigarettes.

[7] The search revealed, among other items, a bag containing 310 grams of marijuana and a fanny pack containing $4,872.75 in cash. The cardboard box contained 50 plastic bags, each containing 200 unmarked cigarettes.

[8] There are other facts relevant to the disposition of this appeal. They are better dealt with in the context of the legal issues to which they relate.

(2) The trial judgment

[9] At trial, the appellant applied to have the evidence against him, including the marijuana, cigarettes, and his oral utterances to Sergeant Webb, excluded under s. 24(2) of the Charter on the basis that his rights under ss. 8, 9 and 10 of the Charter had been violated. The trial judge dismissed the Charter motions, admitted the evidence, and convicted the appellant.

[10] The appellant appeals from the s. 8 and s. 10 rulings.

C. Issues

[11] In his factum and his oral argument, the appellant addresses five issues, albeit in different order. I propose to consider the issues in the chronological order presented by the Charter.

(1) Did the trial judge err by concluding that Sergeant Webb’s opening of the van’s sliding door did not constitute an unreasonable search pursuant to s. 8 of the Charter?

(2) Did the trial judge err by concluding that Sergeant Webb’s questions to the appellant about the cardboard box did not constitute an unreasonable search pursuant to s. 8 of the Charter?

(3) Did the trial judge err by concluding that the search pursuant to the TTA was properly authorized?

(4) Did the trial judge err by concluding that Sergeant Webb’s questions about the cardboard box did not trigger a requirement that the police inform the appellant about his rights under s. 10 of the Charter?

(5) Did the trial judge err by not excluding the appellant’s utterances, the marijuana, and the cigarettes pursuant to s. 24(2) of the Charter?

D. analysis

(1) Opening the van door and Charter s. 8

[12] At trial, one of the contested areas of testimony was whether Sergeant Webb opened the van’s sliding door on the driver’s side and peered inside prior to receiving authorization under s. 24(1) of the TTA.

[13] The trial judge found that Sergeant Webb only opened the van’s door after obtaining the TTA authorization. In making this finding, the trial judge accepted Sergeant Webb’s testimony about the timing of the door opening, rejected the appellant’s and Mr. Beaucage’s testimony to the contrary, and said that Constable McCallion’s testimony on the point was inconclusive.

[14] The appellant challenges the finding of fact relating to Constable McCallion’s testimony. The appellant contends that, read properly, Constable McCallion’s testimony was consistent with the testimony of the appellant and Mr. Beaucage and should have led the trial judge to find that Sergeant Webb’s opening of the van door constituted an unreasonable search.

[15] The trial judge discussed Constable McCallion’s testimony in this fashion:

The observation of MacDonald and Beaucage as to the initial opening of the sliding door does have some support in the evidence of Officer McCallion. Officer McCallion’s evidence on this point was contradictory and inconsistent, but he did say at one point the sliding door was opened before the section 24(1) authorization.

That one answer – indicating an early opening up of the door – must be assessed together with all of his answers on this point. Considering the totality of his answers, he does not know when the sliding door was opened.

[16] I agree that this passage – 1½ paragraphs in a 209 paragraph judgment –mischaracterizes Constable McCallion’s evidence. On at least three occasions, Constable McCallion indicated that Sergeant Webb opened the van door and looked inside before the TTA authorization had been obtained. Typical of his testimony on this point was this exchange during his cross-examination:

Q. Do you have any independent recollection of Sergeant Webb opening up the back door of the Caravan?

A. Yes.

Q. And he opened the back door before there was any conversation with the – before the tobacco police, let’s call them, were contacted by yourself or by Constable (sic) Webb, a lot later in the investigation.

A. It was after a conversation with Mr. MacDonald but prior to the conversation with the tobacco officer.

Q. And prior to the authorization to search the vehicle that was given by the tobacco officer.

A. That’s correct.

[17] However, although I accept the appellant’s submission on this factual point, I do not think it makes a practical difference in the result. For officer safety reasons, Sergeant Webb had already looked through the van’s open window and seen the cardboard box. The appellant does not challenge the validity of that search. Similarly, when Sergeant Webb opened the van door – whenever that occurred – what he saw was the same cardboard box. The appellant does not contend, and there is no evidence, that Sergeant Webb engaged in any activity other than looking at the interior of the van when he opened the door. Accordingly, just as the search relating to Sergeant Webb’s observation through the open window was reasonable, so too the search relating to his observation through the open door was also reasonable.

(2) Sergeant Webb’s questions and Charter s. 8

[18] The appellant contends that the trial judge erred by concluding that Sergeant Webb’s questions to the appellant about the contents of the cardboard box did not amount to an unreasonable search. In support of this position, the appellant relies on a passage from Cory J.’s judgment in R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at p. 625:

The police questions pertaining to the appellant’s gym bag, the search of the bag and of the appellant’s vehicle were all elements of a search. Furthermore, the search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. 8 of the Charter.

[19] In my view, there is an overlap between this issue and the fourth issue. Since the trigger for the analysis in Mellenthin was the detention of Mellenthin, and since the appellant advances the legal argument that Sergeant Webb’s questioning of the appellant raises a Charter s. 10 issue that flowed from his detention, I will address it in that context.

(3) Was the search properly authorized?

[20] The appellant advances two arguments on this issue.

[21] First, the appellant submits that the information provided by Sergeant Webb to Mr. Anthopoulos was insufficient to furnish the requisite reasonable and probable grounds to believe that a search of the van would produce evidence of a contravention of the TTA.

[22] I do not accept this submission. The trial judge reviewed the information available to both Sergeant Webb and Mr. Anthopoulos and concluded that it was “sufficient, on the subjective and objective standard, to support reasonable and probable grounds of an infraction under the Tobacco Tax Act.” Although I am not persuaded that all of the factors listed by the trial judge were relevant – for example, the identity of the driver and his residence – I do agree with his ultimate conclusion on this issue.

[23] Second, the appellant submits that the trial judge erred in finding that Sergeant Webb was properly authorized in law to receive sub-delegated power from Mr. Anthopoulos.[^3]

[24] I disagree. I endorse the trial judge’s reasoning on this issue:

In analyzing this, the starting point is section 7(1) of the Ministry of Revenue Act, which provides the Minister of Revenue may delegate the Minister’s statutory powers and/or “duties to the Deputy Minister or to a public servant… who works in or provides services to the Ministry”. The Minister made a Delegation Order dated June 13th, 2007 that provides, in part, the Minister’s power under section 24(1) of the Tobacco Tax Act (to authorize a search and seizure) is delegated to specified persons in the Special Investigations Branch, including senior investigators.

The power to conduct the search comes from section 24(1) of the Tobacco Tax Act, which provides that “any person authorized for the purpose by the Minister [or delegate] who has reasonable and probable grounds to believe” that a vehicle, trailer, etc. contains evidence of a contravention of the Act, may exercise various investigatory search powers set out in paragraphs (a) through (d) of that section. This provision directly empowered Sergeant Webb (“any person”) to conduct the search and seizure once he had the two prerequisites required by the section:

(i) authorization from the Minister (or in this case, his delegate Mr. Anthopoulos); and

(ii) reasonable and probable grounds to believe he would discover evidence of a contravention of the Act.

Mr. Anthopoulos, acting as the Minister’s delegate, authorized Sergeant Webb to search Mr. MacDonald’s vehicle, as he was empowered to by virtue of section 24(1) of the Tobacco Tax Act and section 7(1) of the Ministry of Revenue Act. Once so authorized, and with reasonable and probable grounds, Sergeant Webb exercised the investigatory powers provided directly to him (“any person”) under paragraphs 24(1)(a) through (d) of the Tobacco Tax Act.

(4) Detention and s. 10 of the Charter

[25] The trial judge found that the appellant was detained under the TTA at the point in time when Sergeant Webb walked back to the police cruiser with the intent of seeking authorization to search the van pursuant to s. 24(1) of the TTA. The trial judge commented that before walking back to the cruiser Sergeant Webb should have advised the appellant that he was being detained under the TTA. The trial judge reasoned that this was the same point when the appellant’s s. 10 rights crystallized:

The philosophy behind section 10(a) and (b) is a person is placed in jeopardy. When such happens, the person should know about it and be advised of the right to counsel. In this case, jeopardy occurred when Sergeant Webb felt he had reasonable and probable grounds and was going to seek authorization for a search. [Emphasis in original.]

[26] The trial judge therefore held that the appellant’s s. 10(b) rights were breached but that it was of no consequence because no evidence was collected pursuant to that breach.

[27] The appellant contends that the trial judge erred in one of two ways. Either the trial judge should have found that the exemption on s. 10 rights occasioned by an HTA detention reached an end as soon as the questioning moved beyond the subject matter of the HTA or the trial judge should have found that the questioning triggered a parallel investigative detention to which s. 10 rights accrued. If either of the appellant’s arguments is accepted, it follows that Sergeant Webb’s question about the contents of the box, which had nothing to do with the speeding offence, should not have been asked, absent Sergeant Webb providing the appellant with the information about his rights under s. 10 of the Charter.

[28] While I do not agree that the appellant was detained under the TTA when the impugned questioning began, I do agree with the submission that the appellant’s s. 10 Charter rights crystallized when the nature of the questioning shifted towards a TTA investigation.

[29] The case law makes it clear that a roadside stop of a vehicle for possible violations of the Criminal Code (e.g. impaired driving) or provincial regulatory offences under statutes like the HTA (e.g. speeding) is a detention: see e.g. R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257; Mellenthin; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3; and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. Furthermore, the Supreme Court of Canada held in Orbanski, at para. 60, that the implicit limitation on the s. 10(b) right to counsel that is inherent to roadside stops was justifiable under s. 1 of the Charter.

[30] In the present case, the appellant remained detained throughout the time that the police officers processed his speeding infraction. The appellant was not free to leave the scene until this process was completed. In this context, Sergeant Webb’s question about the contents of the box, flowing from his suspicion that the box contained illegal cigarettes, placed the appellant in jeopardy pursuant to the TTA. This new jeopardy triggered the appellant’s s. 10 rights, especially his right to consult counsel. The reason for this was cogently explained by Doherty J.A. in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 40:

A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.).

[31] It is true that when Sergeant Webb asked the question about the contents of the box, the appellant was not yet detained under the TTA. However, he was detained under the HTA and he could not leave the scene. In such a circumstance, at a common sense level and as a matter of law, Cory J.’s statement in Mellenthin, at p. 622, is apposite:

There can be no question that the appellant was detained and, as a result, could reasonably be expected to feel compelled to respond to questions from the police.

It is true that a person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights. This was certainly not the situation which was present in this case.

[32] For these reasons, I conclude that the trial judge erred in not finding that the appellant’s s. 10 rights crystallized when Sergeant Webb asked him the question about the contents of the box. Before answering the question, which had nothing to do with his speeding offence, he should have been advised of his right to consult counsel. His s. 10(b) Charter right was violated.

(5) Charter s. 24(2)

[33] The appellant submits that the his response to the question about the contents of the box and the marijuana and cigarettes found in the van should be excluded under s. 24(2) of the Charter, which provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, this evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[34] The test relating to s. 24(2) of the Charter was set out by McLachlin C.J. and Charron J. in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[35] I do not think that Sergeant Webb’s failure to inform the appellant about his Charter s. 10(b) rights was a particularly serious breach. Sergeant Webb was not engaged in a Mellenthin-like fishing expedition conducted at a random highway check. It was an inquiry into a potential regulatory offence during a valid highway stop for speeding. Moreover, the single question was minimally intrusive.

[36] The second Grant factor tells in favour of the appellant. In Grant, after a comprehensive analysis of the principle of self-incrimination and the sections of the Charter grounded in this principle, including s. 10(b), McLachlin C.J. and Charron J. stated, at para. 96, that “the analysis under this line of inquiry supports the general exclusion of statements taken in breach of the Charter.” I see nothing in the facts of this case to remove it from this general rule. Since the police officers would not have had reasonable and probable grounds to search the van without the appellant’s answer to the question about the contents of the box, it follows that the marijuana and cigarettes would not have been found by the police had the appellant not made the self-incriminating response.

[37] The third Grant factor favours the respondent. The marijuana and cigarettes are reliable evidence and so their admission supports the societal interest that criminal and regulatory offences be prosecuted on their merits.

[38] In striking the appropriate balance among these three factors, I return to McLachlin C.J.’s and Charron J.’s discussion of the category of evidence they labelled Statements of the Accused, at paras. 89-98. After reviewing the relevant legal principles and policy considerations in this domain, they concluded their analysis in this fashion, at para. 98:

In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).

[39] Allowing that in this case there is no reliability concern about the appellant’s answer to the question, it seems to me that the content and spirit of this summary point to a balancing of the Grant factors in favour of excluding the appellant’s answer, the marijuana, and the cigarettes.

E. DISPOSITION

[40] I would allow the appeal and enter an acquittal on the charge of possession of marijuana for the purpose of trafficking contrary to the CDSA.

Released: July 12, 2012 (“J.C.M.”)

“J.C. MacPherson J.A.”

“I agree. Robert P. Armstrong J.A.”

“I agree. S.E. Pepall J.A.”

[^1]: The appellant’s appeal of the TTA conviction is proceeding in the Superior Court of Justice.

[^2]: The appellant had appealed his sentence. At the appeal hearing, he abandoned this component of his appeal.

[^3]: The appellant addressed this issue in his factum, but not in his oral argument.