COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sebben, 2015 ONCA 270

DATE: 20150421

DOCKET: C59397

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Sebben

Appellant

David E. Harris, for the appellant

Kevin Wilson, for the respondent

Heard: April 13, 2015

On appeal from convictions entered by Justice Gregory P. Rodgers of the Ontario Court of Justice on July 24, 2014.

Doherty J.A.:

[1] The appellant was convicted of possession of marihuana and possession of marihuana for the purpose of trafficking. He appeals his convictions only.

[2] An off duty police officer saw the appellant driving his vehicle in an erratic manner. A different officer stopped the appellant and administered a roadside breath test. The appellant registered a "pass". In the course of checking the appellant on CPIC and related data bases, the police officer received information about a possible connection the appellant had to drugs. The officer decided to ask the appellant if he would consent to a search of his vehicle. The officer readily acknowledged that he did not have reasonable grounds to conduct a search.

[3] The officer left his vehicle and returned to the appellant's vehicle where the appellant was seated in the driver's seat. In the course of a very brief discussion that ensued, the appellant produced a bag of marihuana. The officer arrested him for possession of that marihuana and proceeded to conduct a search of the vehicle as an incident of that arrest. He found more marihuana.

[4] At trial, the appellant argued that he was arbitrarily detained, denied his right to counsel when he was asked to consent to a search, and subjected to an unreasonable search that led to both the production of the bag of marihuana and the subsequent discovery of more marihuana in the vehicle.

[5] The trial judge found that although the appellant was detained at the roadside, both before and after the roadside test was administered, he was not arbitrarily detained at either time. The trial judge found that there was no violation of s. 8. He did find a s. 10(b) violation in that the appellant was not advised of his right to counsel when his detention continued after the roadside test had been administered. The trial judge further held that the evidence should not be excluded under s. 24(2) of the Charter.

[6] On appeal, the appellant accepts the trial judge's finding on the s. 9 issue. He submits, however, that there was a violation of s. 8 as well as a violation of s. 10(b). Counsel submits that the two violations, considered in combination, merit the exclusion of the evidence under s. 24(2).

[7] The appeal turns on whether the appellant's rights under s. 8 were violated. Counsel submits that when the police officer asked the appellant to consent to a search that request marked the start of a search and anything produced by the appellant subsequent to that request constitutes a seizure by the police for the purposes of s. 8 of the Charter. On this approach, the officer's request for permission to search the appellant, followed immediately by the production of the marihuana by the appellant and the subsequent search of the vehicle, constituted a single, ongoing, warrantless and non-consensual search. Counsel referred to various authorities that have held that questioning of a detained person can be regarded as the initiation of or part of a search for the purposes of s. 8: e.g. R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615.

[8] The trial judge concluded that the officer's request to search the appellant was not a search. On the trial judge's findings, the appellant chose to voluntarily turn over the marihuana in the bag to the police officer in the hope of curtailing a more thorough search of the vehicle which would, as it eventually did, reveal the other drugs.

[9] The facts are important. The trial judge accepted the police officer's version of the relevant events. He testified:

I basically just spoke to Mr. Sebben and asked if he would consent to me searching his vehicle, and Mr. Sebben replied quickly that he didn't think he needed to. He began to roll his rear window down and he said all he had were – he's – he said you can look in the back if you want "cause all I had were tools and Christmas presents". And I then indicated to Mr. Sebben that a – a consent search wouldn't be for Christmas presents and such it would be for things like drugs or marihuana. And immediately, as soon as I said the word marihuana, he reached the centre console area and – and indicated he had marihuana and showed me a bag of – like – a clear Ziploc bag of what appeared to be marihuana and turned it over to me.

[10] In cross-examination, the officer was specifically asked whether he understood the appellant to have consented to a search. The officer replied:

He didn't – I wouldn't say he consented to the search. I would say prior to even getting to the stage of the form when I – when I was able to explain what the consent search would have been for, he immediately said, I have marihuana and produced the bag.

[11] It is clear from the officer's evidence that he did not act upon the belief that the appellant had consented to any search. To the contrary, the officer did not accept the appellant's invitation to look into the back seat of the vehicle, but instead made it clear to the appellant the nature of the proposed search (i.e. for drugs). The officer explained that before conducting any consent search, he would have gone into the details necessary to obtain a valid consent and reviewed the standard police consent form with the appellant. The officer did not get an opportunity to go into those details because the appellant short-circuited the consent process by producing the bag of marihuana.

[12] Not every request by an officer that a person consent to a search is automatically a search. Sometimes questions, including a request to conduct a consent search, will be part of a subsequent search. In other fact situations, the questions will not form any part of a search. A fact-specific inquiry is necessary: R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (C.A.) at para. 34; R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 209 C.C.C. (3d) 250 (Ont. C.A.) at paras. 34-36, aff'd, but not on this point, 2009 SCC 32, [2009] 2 S.C.R. 353.

[13] Any request by a police officer that a detained person consent to a search must be closely scrutinized. The power imbalance in that situation is obvious. That does not, however, mean that any request to search should be deemed to be the commencement of a search. That approach ignores the fact-sensitive nature of the inquiry.

[14] In this case, there was no evidence that:

• the appellant felt compelled to cooperate with the police officer;
• the appellant believed that a search of his vehicle was inevitable regardless of whether he consented;
• the appellant was subject to any demand or direction by the police officer;
• the police officer said anything to the appellant that invited or induced the appellant to produce the narcotics; and
• the officer intended to search of the vehicle regardless of whether the appellant consented.

[15] On the facts as found by the trial judge, the police officer had commenced the process by which he hoped to obtain the appellant's informed consent to a search of the vehicle. Before he could complete that process, the appellant voluntarily and unilaterally produced a bag of marihuana in the hope of avoiding more serious problems. The appellant's production of the marihuana effectively ended the officer's need to make any further inquiries requesting the appellant's consent to a search. The officer was entitled to search the vehicle as an incident of the appellant's arrest for possession of the bag of marihuana. On the officer's evidence, there was no search, but rather a production of the marihuana in the bag by the appellant followed by a search incident to an arrest.

[16] The appellant does not suggest that if we agree with the trial judge on the s. 8 issue, we should reconsider the decision on the admissibility of the evidence based on the s. 10(b) breach. There is no reason to interfere with the trial judge's s. 24(2) analysis.

Disposition

[17] I would dismiss the appeal.

RELEASED: "G.R.S." "APR 21 2015"

"Doherty J.A."

"I agree G.R. Strathy C.J.O."

"I agree E.E. Gillese J.A."