Court File and Parties

Court of Appeal for Ontario Date: 2024-05-23 Docket: COA-23-CR-0598

Before: van Rensburg, Thorburn and Dawe JJ.A.

Between: His Majesty the King, Respondent and Kensky Dautruche, Appellant

Counsel: Mark Ertel, for the appellant Christa Reccord and Jonathan Thompson, for the respondent

Heard: April 23, 2024

On appeal from the convictions entered on December 14, 2021 by Justice Christine Pirraglia of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant, Kensky Dautruche, appeals his two convictions for possession of cocaine and crack cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He does not appeal his convictions or his sentence on two counts of flight from a peace officer, contrary to s. 320.17 of the Criminal Code.

[2] The appellant was a suspended driver. He fled from police in the course of a traffic stop. The appellant’s vehicle skidded off the road and the driver’s side of the vehicle ended up tightly lodged against a hedge and snowbank. He emerged from the passenger side of the vehicle and was arrested for flight from police. He was the vehicle’s only occupant. During a search of the appellant’s vehicle after his arrest, police found a bag of crack cocaine on the driver’s side floor. After the appellant’s vehicle was towed away, a bag of cocaine was found on top of the snow where the driver’s side window would have been.

[3] At trial, the appellant did not dispute that if the crack cocaine found in the vehicle was admitted into evidence, and he was also found to have been in possession of the bag of cocaine found outside the vehicle, it could be inferred that he had possessed both bags of drugs for the purpose of trafficking.

[4] The appellant makes two arguments on appeal. First, he argues that the search of his vehicle during which the police found the crack cocaine was not a valid search incident to his arrest, which was for fleeing from the police, and that the trial judge accordingly erred in holding that there was no breach of his rights under s. 8 of the Canadian Charter of Rights and Freedoms. He seeks to have the bag of crack cocaine excluded under s. 24(2) of the Charter. Second, he argues that trial judge erred by inferring that the appellant must have thrown the bag of cocaine that the police found in the snowbank out the driver’s side window of his vehicle, without properly considering alternative possibilities.

A. The Vehicle Search

[5] The common law “permits the police to search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person’s escape, or provide evidence against them”: R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, at para. 34. The “surrounding area” can include an automobile: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 15.

[6] The common law power of search incident to arrest requires that the individual searched (1) has been lawfully arrested, (2) the search be incident to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest, and (3) the search be conducted reasonably: Stairs, at para. 35. The law enforcement purposes for the search must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable: Stairs, at para. 37; Caslake, at para. 19. To meet this standard, the police require “some reasonable basis” to do what they did: Caslake, at para. 20. This is a much lower standard than reasonable and probable grounds: Stairs, at para. 37.

[7] Because searches incident to arrest are warrantless, the Crown bears the burden of proving on a balance of probabilities that a search incident to arrest was conducted lawfully and reasonably: Caslake, at paras. 11-12. To establish that the search was lawful at common law, the Crown must establish that the search conducted was “truly incidental to arrest”. As Lamer C.J. explained in Caslake, at para. 27:

[T]he police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the rule of law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search incident to arrest before the search is carried out.

A search that “was not, in the mind of the searching party, consistent with the proper purposes of search incident to arrest … falls outside the scope of this power”: Caslake, at para. 29.

[8] In this case, the appellant argues that the Crown had not met its burden of establishing that the officer who searched his vehicle, PC Craig, subjectively turned his mind to the permissible scope of the search incident to arrest power. Specifically, he contends that PC Craig did not have a subjective belief that searching the appellant’s vehicle might reasonably uncover evidence related to the offence of flight from police for which the appellant had been arrested.

[9] PC Craig initially testified during cross-examination that his search of the appellant’s vehicle “was almost a search incident to arrest.” When asked in cross-examination to articulate his basis for searching the vehicle incident to an arrest for the offence of fleeing from the police, PC Craig explained that he believed he was entitled to “search in and around where the accused was.” Later in cross-examination, PC Craig explained further:

[T]o me for someone to tear away from police like that maybe … there’s some reason so in searching that area where he was, maybe it would shed light as to give some reason as to why he would have done that.

[10] The trial judge noted that the vehicle search was both temporally and spatially connected to the arrest. She accepted that the officer had a subjective belief that a search of the vehicle might shed some light on why the appellant had fled from police, and found this belief was objectively reasonable. As such, she held that there was no unreasonable search or seizure in breach of s. 8 of the Charter.

[11] Although the question of whether the search of the appellant’s vehicle violated his s. 8 Charter rights is a question of law that is reviewable on a correctness standard, to the extent that it depends on findings of fact the trial judge’s assessment of the evidence is entitled to appellate deference: see e.g., R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para 20.

[12] We disagree that the trial judge erred by finding that the appellant’s s. 8 Charter rights were not breached. He was lawfully arrested for the offence of flight from police. While the police knew that he had a suspended licence, PC Craig was evidently alive to the possibility that the appellant might have also had another motive to flee from the police.

[13] PC Craig and another officer both testified that they believed that the driver might be impaired. It was also a reasonable possibility in the circumstances that he might have fled because he was in possession of contraband. This gave PC Craig a reasonable basis to search the vehicle for evidence that might better explain why the appellant had fled.

[14] While this evidence might have shown that the appellant had committed a different offence, this evidence might nonetheless also have had probative value in relation to the flight from police charge, which required the Crown to prove, among other things, that the appellant had no reasonable excuse for his failure to stop: see R. v. Kulchisky, 2007 ABCA 110, at para. 4; R. v. McLean, 2016 ONCA 38, at para. 6.

[15] Although PC Craig’s initial testimony that his search of the vehicle was “almost a search incident to arrest” might on its own have been taken as indicating that he had not subjectively conducted the search “consistent with the proper purposes of search incident to arrest”, he went on to explain that he believed that a search of the vehicle might “shed light as to... why [the appellant] would have done that”: that is, flee from the police after he was pulled over.

[16] Deference is owed to the trial judge’s finding of fact that the officer subjectively believed “that a search of the vehicle would assist the investigation of flight from police”, and that this belief was objectively reasonable.

[17] On the totality of these circumstances, we see no error in the trial judge’s conclusion that PC Craig’s search of the vehicle was a valid search incident to arrest that did not infringe the appellant’s s. 8 Charter rights.

[18] In any event, even if we had found a s. 8 Charter breach, we would not have excluded the crack cocaine under s. 24(2) of the Charter. All three branches of the Grant inquiry favour inclusion: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[19] First, even if there were a s. 8 breach, it was not a serious breach: there was no evidence of wilful or reckless disregard for the appellant’s Charter rights, bad faith, or pattern of misconduct on the part of the officers. Assuming we had found a breach, the most that could have been said was that PC Craig failed to properly turn his mind to the scope of his common law search incident to arrest powers, in circumstances where a better-informed officer would have recognized that he or she could properly search the vehicle for evidence of the appellant’s possible motive for fleeing from the police.

[20] Second, the impact of the breach on the appellant’s Charter protected interests was minor. Not only was his privacy interest in his vehicle reduced, but he had been lawfully arrested for fleeing police in circumstances where the police could have properly searched the area of the vehicle where he had been seated incidental to the arrest. Moreover, the bag of crack cocaine was found in plain view on the floor of the driver’s side of a vehicle in which the appellant had been the only occupant. Since the vehicle was going to be towed away, it was likely that the bag of cocaine would have been found even if PC Craig had not searched the vehicle at the time that he did.

[21] Third, we agree with the submission made by both parties that the evidence is reliable, and that society’s interest in having a trial on the merits favours the admission of the crack cocaine.

[22] In summary, the admission of the crack cocaine would enhance the truth-seeking function of the court and would not bring the administration of justice into disrepute.

B. The Bag of Cocaine Found on the Snowbank

[23] The police found the bag of cocaine on the snowbank in the area where the driver’s side window would have been before the vehicle was moved. The appellant submits that the trial judge erred in failing to consider other reasonable inferences that could be drawn from the circumstantial evidence and absence of evidence. Specifically, the appellant submits that the evidence as a whole raised a doubt about whether he had the opportunity to surreptitiously throw the cocaine out the window, and failed to eliminate other reasonably possible explanations for how the cocaine might have been left on the snow, such that the Crown had not proven his guilt beyond a reasonable doubt: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[24] The trial judge held that the only rational inference from the totality of the evidence was that the appellant threw the bag of cocaine out of the driver’s side window. The driver’s side of the vehicle was against an eight foot tall hedge and a snowdrift of freshly fallen snow; the driver's side window was open four to six inches; and it was after 2:00 a.m. and there were no other pedestrians or civilians in the area of the vehicle. The snow around the vehicle remained undisturbed, except for the ripples on the surface where it was disturbed by the vehicle; the bag of cocaine was lying on top of the snow in the area where the driver’s side window would have been; the vehicle had tinted windows; and it would have taken the appellant mere seconds to eject the cocaine from the vehicle unobserved by any of the police officers.

[25] We see no merit to the appellant’s argument that the trial judge failed to properly consider other reasonable possibilities that were inconsistent with the appellant’s guilt. On the police evidence, there was a window of approximately five seconds during which he was out of sight of the pursuing officers. The trial judge’s finding that it would have taken the appellant “mere seconds” to throw the bag of cocaine out of the vehicle unobserved fell within this window of opportunity. The trial judge also considered the evidence that the driver's side window was found rolled down four to six inches; that once the first officer arrived on the scene the police maintained observation of the vehicle until the tow truck removed it; that the vehicle was extracted from the snowbank along the same track that it went in; that the snow surrounding the vehicle remained undisturbed other than where it was displaced by the vehicle; that the bag of cocaine was lying on top of the snow; and that there was no snow on the bag.

[26] Considering the evidence as a whole, we disagree with the appellant’s submission that there was a reasonable alternative inference that the bag of cocaine could have already been under or on the snow prior to the appellant’s vehicle sliding off the road and into the snowbank. Having due regard to the trial judge’s advantages as the trier of fact, we are satisfied that she did not err in concluding that the only reasonable inference on the evidence as a whole was that the appellant threw the cocaine bag from the driver’s side window of the vehicle. She was accordingly entitled to find as she did that the appellant’s possession of the bag of cocaine had been proved beyond a reasonable doubt.

C. Disposition

[27] For these reasons, the conviction appeal is dismissed. Although the appellant stated in his Notice of Appeal that he was also seeking leave to appeal sentence, the sentence appeal was not raised in his factum or addressed by his counsel at the hearing, from which we infer that he did not intend to pursue it. Leave to appeal sentence is accordingly denied.

“K. van Rensburg J.A.” “Thorburn J.A.” “J. Dawe J.A.”