Court of Appeal for Ontario

Date: February 8, 2018 Docket: C63097

Judges: Hoy A.C.J.O., Doherty and Feldman JJ.A.

Between

Her Majesty the Queen Respondent

and

Devyn Barclay Appellant

Counsel:

• Jonathan Dawe, for the appellant
• Jeanette Gevikoglu, for the respondent

Heard: December 6, 2017

On appeal from: The conviction entered on April 27, 2016 and the sentence imposed on December 21, 2016 by Justice Edward J. Koke of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Hoy A.C.J.O.:

A. OVERVIEW

[1] At issue on this appeal is whether the police were entitled to detain a person and his luggage, based only on a suspicion, for one and three-quarters hours until the arrival of a drug sniffer dog.

[2] The RCMP received a call from a confidential informant. The confidential informant advised the police that a passenger on a VIA train bound for Washago, ON, from Vancouver, BC, ticketed under the appellant's name, had two large black suitcases from which the confidential informant could smell an odour of marijuana. The informant described the passenger as a bearded man around 35 years old, 5'10" and 175 pounds, wearing a beige "Duck Dynasty" cap, and added that he "was supposed to be getting off at Washago but is now getting off at Parry Sound, Ontario."

[3] Acting on that tip, the Ontario Provincial Police placed the appellant (who closely matched the description provided by the confidential informant) under investigative detention as he disembarked from the train in Parry Sound with two large black suitcases. They suspected, based on the tip, that the suitcases contained marijuana, but they smelled nothing. The police did not believe they had grounds to arrest the appellant.

[4] After reading the appellant his rights and allowing him to make telephone calls from the police cruiser, police called for a drug-sniffer dog. The nearest dog was 90 km away. While they waited for the dog to arrive, the police took the appellant and his luggage to the police detachment to use a washroom and access a landline telephone.

[5] The dog arrived approximately one and three-quarters hours after the police first detained the appellant. The dog made a "positive hit" on one of the suitcases and the appellant's duffle bag. The police arrested the appellant and found 33 pounds of marijuana in his luggage.

[6] The trial judge concluded that the length of time that the appellant was detained pending the deployment of the dog was reasonable in the circumstances. He wrote, at para. 57:

Canada is a large country comprised of many small towns which are spread out over great distances. It is not feasible for each of the detachments in these small towns to maintain their own sniffer dogs, and in the circumstances a delay of a little less than 2 hours was not unreasonable.

[7] The trial judge convicted the appellant of possession of marijuana for the purpose of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and breach of probation. He sentenced the appellant to 12 months' incarceration.

[8] The appellant appeals his conviction, arguing that the trial judge erred in concluding that the lengthy investigative detention of himself and his luggage did not fall outside the permissible scope of the police power of investigative detention. The appellant also seeks leave to appeal sentence.

[9] For the reasons that follow, I agree with the appellant that the detention of him and his luggage violated his s. 9 Charter rights. However, I would not exclude the evidence of the seized marijuana under s. 24(2) of the Charter. I would dismiss the appellant's appeal of his conviction. I would grant leave to appeal sentence but dismiss the appeal from sentence.

B. THE CHRONOLOGY

[10] At 8:40 a.m.[1] on April 1, 2014, the confidential informant's tip was relayed to the police in Parry Sound.

[11] At 9:14 a.m., the appellant disembarked from the train. After verifying the appellant's name, the police detained him, cautioned him, and advised him of his right to counsel.

[12] At 9:27 a.m., the appellant was in the police vehicle, sheltered from the light rain and wind, making an initial telephone call on his cell phone. The police performed a frisk search of the appellant "for police safety" before putting him in the police vehicle. The police put the appellant's luggage in the trunk of their vehicle and left the trunk lid open. Two more police officers arrived. None of the officers detected an odour of marijuana coming from the bags, even when one of the officers placed his face close to the bags.

[13] At 9:37 a.m., the appellant concluded his initial call.

[14] At 9:40 a.m., the police requested the closest drug-sniffer dog. They expected that it would take 30-45 minutes for the dog to arrive.

[15] At 9:57 a.m., the police took him to the detachment so that he could use the washroom and call his counsel from the detachment's landline. (The appellant had made several phone calls from the police vehicle and the battery on his cell phone was dying. Further, Officer Lewis did not think that the washroom at the VIA station was open.)

[16] At 10:00 a.m., they arrived at the detachment and police placed the appellant's luggage in a small room.

[17] At 10:06 a.m., the appellant was on the phone with counsel. The appellant was not "locked up" at the detachment, but he was not free to leave. He waited in an interview room.

[18] At 10:58 a.m., the sniffer dog, "Racket", arrived and the police moved the appellant's luggage to the larger garage area.

[19] At 11:02 a.m., Racket sniffed the appellant's luggage and indicated that one suitcase and the appellant's duffle bag had an odour of drugs. The appellant was arrested and the police searched the contents of the appellant's luggage.

(1) The Prolonged Detention of the Appellant and His Luggage Was Unlawful and Violated the Appellant's Rights Under Section 9 of the Charter

[20] I agree with the appellant that the investigative detention of him and his luggage fell outside the scope of the common law police power of investigative detention and infringed s. 9 of the Charter. As the appellant concedes, the police were entitled to initially detain the appellant and his luggage for investigative detention, based on the tip. But the approximately one and three quarters hours the police detained them was simply too long.

[21] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. A detention will not be arbitrary if it is lawful. One type of lawful detention is a common law investigative detention as defined in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. This power allows the police to detain people for investigation "if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary." However, the investigative detention must be "brief in duration" and conducted in a reasonable manner: Mann, at para. 45.

[22] If the police conduct in detaining the appellant amounted to a lawful exercise of their common law powers, then the investigative detention was not arbitrary, and did not violate the suspect's right under s. 9 of the Charter. On the other hand, if the police conduct fell outside the scope of these powers, it constituted an infringement of the appellant's right under s. 9 not to be arbitrarily detained. R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 19.

[23] The Crown submits that there is no constitutionally defined time limit to a common law investigative detention. It argues that "brevity" must be delineated by the totality of the circumstances and the officers' diligence in conducting the investigation. It submits that, in this case, the police were spotless in their observance of the appellant's rights during his detention, acted diligently, and called for the closest drug-sniffer dog. As the trial judge adverted to in his reasons, the fact that the dog was some 90 kilometres away reflects policing reality in the region and frames the reasonableness of the duration of the detention. The Crown argues that the common law empowers police to detain an individual for as long as reasonably necessary to further the investigation of the particular crime to which the individual is suspected of being connected.

[24] The Crown further argues that the "totality of the circumstances" in this case includes that, viewed objectively, based on the confidential informant's tip, the police had reasonable and probable grounds to arrest the appellant and search his luggage when he disembarked from the train with the two suitcases. Effectively, the Crown says that because, objectively, the police were in fact entitled to arrest the appellant, "brief" can be interpreted liberally.

[25] I cannot accept the Crown's submissions.

[26] I agree that there is no bright line temporal rule in determining whether an investigative detention involved an unjustifiable use of police powers and, as a result, is arbitrary. However, the requirement that an investigative detention be "brief" nonetheless connotes a temporal limitation and not a period that can be extended for as long as necessary to further an otherwise appropriate, diligent, and legitimate investigation of the particular crime to which the individual is suspected of being connected. It follows that the permitted duration of an investigative detention is not defined by the time reasonably required to deploy a sniffer dog, even if the police treatment of the suspect is otherwise exemplary during the period of detention.

[27] The permitted duration of an investigative detention is determined by considering whether the interference with the suspect's liberty interest by his continuing detention was more intrusive than was reasonably necessary to perform the officer's duty, having particular regard to the seriousness of the risk to public or individual safety. R. v. Clayton, at para. 31; R. v. Mann, at p. 324; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 36.

[28] But all investigative detentions must be "brief" because the state interference with the individual's liberty rests on a reasonable suspicion of criminal activity, a much lower standard than the reasonable and probable grounds needed for an arrest. The relatively low "reasonable suspicion" standard cannot constitutionally sustain a detention that is not "brief".

[29] The purpose of the brief detention contemplated under the investigative detention power is to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect.

[30] The word "brief" is descriptive and not quantitative. It describes a range of time and not a precise time limit. The range, however, has temporal limits and cannot expand indefinitely to accommodate any length of time required by the police to reasonably and expeditiously carry out a police investigation.

[31] The permitted duration of an investigative detention is case-specific. Some of the relevant factors include:

• The intrusiveness of the detention. For example, handcuffing the suspect behind his or her back and placing the suspect in a police cruiser, or diverting the suspect from his intended path by taking him to the police detachment to continue the investigation, will generally be more intrusive of the suspect's liberty interest than asking him questions at the point of initial detention. The more intrusive the detention is to the suspect's liberty interest, the more closely its duration will be scrutinized.

• The nature of the suspected criminal offence. If the suspected offense is not serious, the permitted duration will probably be at the shorter end of "brief".

• The complexity of the investigation. If the investigation is not complex, one would expect that police questioning of the suspect would not reasonably need to be lengthy, and the permitted duration will probably be at the shorter end of "brief". However, if the investigation of the suspected criminal offence is complex, its complexity will only justify a longer permitted duration within the range of "brief" to the extent it is causally linked to the duration of the detention.

• Any immediate public or individual safety concerns. Immediate public or individual safety concerns may justify a permitted duration at the longer end of "brief".

• The ability of the police to effectively carry out the investigation without continuing the detention of the suspect. If there are other reasonable means of continuing the investigation without detaining the suspect, the continued detention of the suspect would likely render continued detention unconstitutional.

• The lack of police diligence. For example, if a sniffer dog were immediately available, and yet the police detained the suspect for 20 minutes before employing the dog to confirm or refute their suspicion, then, depending on all of the other relevant factors, the interference with the suspect's liberty interest as a result of the lack of police diligence might render the delay unconstitutional.

• The lack of immediate availability of the required investigative tools. On the other hand, depending on all of the other relevant factors, if a sniffer dog were made available as soon as practicable and employed as soon as available, the same 20-minute detention might fall within the range of time that can be characterized as a "brief" detention.

[32] The relative importance of these and other relevant factors, and thus the permissible length of an investigative detention, will vary from case to case. But it is crucial to remember that such factors merely situate the permitted duration of the detention within the range of what is "brief", and that all investigative detentions must be "brief".

[33] In my view, the lawful investigative detention of the appellant and his luggage had ended by no later than 9:40 a.m. By that time, the police had completed their investigation at the VIA station. Their investigation had yielded nothing: four police officers had been unable to detect any odour of marijuana emanating from the appellant's luggage and they believed that it would take 35-40 minutes for a sniffer dog to arrive.

[34] The further interference with the appellant's liberty interest by his continued detention while police awaited the arrival of the drug-sniffer dog was more intrusive than was reasonably necessary to address the seriousness of the risk to public or individual safety and to perform the police duty, given the nature of the offence. The police suspected that the appellant had marijuana in his luggage. The investigation was not complex and, in this situation, the risk to public or individual safety was low. If the police had wanted to continue investigating the appellant, they knew where he lived and, in the circumstances, had numerous avenues they could have pursued without interfering with his liberty.

[35] Finally, police require reasonable and probable grounds, both subjectively and objectively, to arrest a suspect without a warrant. Subjectively, the police did not think they had reasonable and probable grounds to arrest the appellant, based solely on the confidential informant's tip. Therefore, they were not entitled to arrest him, and there is no basis to interpret "brief" in the broad manner that the Crown proposes.

[36] Moreover, I do not agree that, objectively, the police had reasonable and probable grounds to arrest the appellant when he disembarked from the train with the two suitcases, based on the confidential informant's tip. Although the confidential informant suspected criminal activity, the confidential informant had no inside information. The appellant's tip was not that the suitcases contained marijuana. The confidential informant gave only one reason for suspecting the appellant of criminal activity, namely that the appellant's suitcases had the odour of marijuana. The sense of smell is highly subjective: R. v. Polashek (1999), 45 O.R. (3d) 434 (C.A.). There was no indication that the confidential informant had special, or even reliable, olfactory powers or special training or experience in detecting the odour of marijuana. While information from this confidential informant had led to the arrest and subsequent conviction of another individual for possession of marijuana, there was is no evidence that this information was based on the confidential informant's ability to smell marijuana. In all of the circumstances, the tip was not sufficiently compelling to provide reasonable and probable grounds to arrest the appellant. Although the police had reasonable grounds to suspect that the appellant had marijuana in his luggage when they detained him, objectively, they did not have reasonable and probable grounds to believe that he had committed an offence.

(2) The Evidence Should Not Be Excluded Under Section 24(2) of the Charter

[37] Having found no violation of the appellant's Charter rights, the trial judge did not address the admissibility of the seized evidence under s. 24(2) of the Charter. My assessment of the three lines of inquiry mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 leads me to conclude that, in all the circumstances, the admission of the seized marijuana would not bring the administration of justice into disrepute and should not be excluded under s. 24(2) of the Charter.

[38] The first line of inquiry considers the seriousness of the state conduct that led to the breach of the appellant's Charter rights. I agree with the Crown that the state conduct that led to the breach is at the low end of the spectrum. The Crown's disregard of the appellant's Charter rights was not wilful or reckless.[2] Moreover, as the Crown submits, but for exceeding the permissible duration of the detention, the police were spotless in their observance of the appellant's rights during his detention.

[39] The second line of inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the appellant. The length of his detention had a reasonably serious impact on the appellant's Charter-protected rights. The appellant and his belongings were detained for approximately 1 hour and 20 minutes longer than was permissible. However, he was not "locked up" at the detachment and, in and of itself, the dog sniff search was minimally invasive: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 24 and 28.

[40] The final inquiry concerns society's interest in an adjudication on the merits. The evidence sought to be excluded is both reliable and critical to the prosecution's 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. Moreover, the offence is moderately serious. The appellant acted as a courier to bring 33 pounds of marijuana – drugs with a street value of between $174,000 and $350,000 – from British Columbia to Ontario.

C. APPEAL AGAINST SENTENCE

[41] The appellant argues that the trial judge's sentencing reasons disclose two related errors of principle.

[42] First, he submits that the trial judge treated the appellant's previous conditional discharge on a charge of simple possession of marijuana as if it were a prior criminal record that disentitled the appellant from being sentenced as a first offender.

[43] Second, he submits that the trial judge failed to consider the principle that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused, particularly when the accused is a youthful first offender: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.). The appellant was 25 years of age at the time of this offence.

[44] I agree with the appellant that the trial judge erred by describing the appellant as "not a first time offender". At the time the appellant committed this offence, he had received a conditional discharge in respect of his prior conviction for possession of marijuana, and, as the appellant submits, was accordingly deemed pursuant to s. 730(3) of the Criminal Code not to have been convicted of the offence. While s. 730(4) of the Criminal Code provides that the court may revoke the discharge if the offender is convicted of an offence while bound by the conditions of his probation order, counsel advised that the appellant's discharge had not been revoked. Therefore, technically, the appellant was a first-time offender at the time he was sentenced.

[45] However, I am not persuaded that this error justifies appellate intervention.

[46] The police seized 33 pounds of marijuana, with a street value of between $174,000 and $350,000. The Crown sought a sentence of two to three years' custody, while the defence requested a suspended sentence and probation or, in the alternative, a 90-day intermittent custodial sentence (in addition to the 65 days, or 98 days calculated at 1.5 to 1, the appellant had spent in pre-trial custody) that would allow the appellant to continue to operate the renovation contracting business he had started while on bail pending trial.

[47] The trial judge noted that those convicted of possession for the purpose of trafficking of a significant quantity of "soft drugs" face incarceration absent exceptional circumstances. Among the trial judge's reasons for concluding that this was not a situation which constituted exceptional circumstances and a suspended sentence was not appropriate was that, unlike almost all the cases referred to by trial counsel for the appellant where a suspended sentence was imposed, the appellant "[was] not a first time offender" and "was serving a period of probation at the time he committed this offence." Moreover, the cases cited by the appellant's trial counsel were decided before the amendment to the Criminal Code to eliminate conditional sentences for serious drug offences. The trial judge reasoned that, "[t]o issue a suspended sentence in the circumstances of this case is to do indirectly what the legislature has taken steps to prohibit."

[48] The trial judge summarized as follows:

…the actions of [the appellant] were planned and deliberate. He was transporting a large quantity of drugs. The transportation of these drugs required careful planning and a degree of sophistication. He was on probation at the time for a drug related offence. These facts take him out of the exceptional circumstances category and justifies a period of incarceration.

[49] While the reference to the appellant as "not a first time offender" was inaccurate, the trial judge did not err in considering that the appellant was on probation for a drug-related offence at the time that he committed this offence. He referred to this fact three times in his reasons. Given his emphasis on this fact, and all of his other reasons for concluding that a suspended sentence was not appropriate, I am not persuaded from his reasons that his error in referring to the appellant as "not a first time offender" impacted on his conclusion that a period of incarceration was appropriate.

[50] Nor am I persuaded that the trial judge failed to give effect to the principle articulated by Rosenberg J.A. in R. v. Priest. In Priest, Rosenberg J.A. stated, at p. 545, that where a custodial sentence is appropriate, "a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence." (Emphasis added.)

[51] The trial judge concluded that a 12-month sentence was appropriate. He imposed a lesser sentence than the two to three years' custody sought by the Crown because of the positive steps the appellant had taken towards changing the direction of his life. He wrote "…I do not wish to impose a sentence which would prove detrimental to [the appellant's] prospects for rehabilitation." The trial judge did not impose a sentence focused on general deterrence. Rather, he considered the particular circumstances of the accused, including the positive steps that he had taken, and imposed a shorter sentence than sought by the Crown in order not to detrimentally impact the appellant's prospects for rehabilitation.

D. DISPOSITION

[52] For these reasons, I would dismiss the appeal against conviction and I would grant leave to appeal sentence, but dismiss the appeal against sentence.

Released: February 8, 2018

"Alexandra Hoy A.C.J.O."

"I agree Doherty J.A."

"I agree K. Feldman J.A."

Footnotes

[1] All times noted are in Eastern Standard Time.

[2] I note that the case of R. v. Schmitz, 2014 NWTTC 28, provides some judicial support for the police officers' view in this case that detaining suspects for an hour or two pending the arrival of a police dog is constitutionally compliant. While I do not agree with the reasoning in Schmitz, the fact that a court elsewhere in Canada has taken a different approach reinforces my view that the officers did not act with reckless disregard for the appellant's constitutional rights in this case.