Court File and Parties

Court File No.: 11-10008685

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

David John Longstaff

Before: Justice P. H. Reinhardt

Heard on: 27 August 2012, 30 & 31 May 2013

Reasons for Charter Ruling released on: 16 August 2013

Counsel:

Peter Campbell for the Crown

Laura Liscio for the accused

REINHARDT J.:

Charges

[1] David Longstaff is charged that on or about 9 August 2011 in the City of Toronto in the Province of Ontario he did unlawfully possess, contrary to the Controlled Drugs and Substances Act ("CDSA"):

(1) A controlled substance, to wit: Cocaine, for the purposes of trafficking, contrary of section 5(2) of the CDSA; and further,

(2) A controlled substance, to wit: Cocaine, contrary to section 4(3) of the CDSA; and further,

(3) A controlled substance for the purposes of trafficking, to wit: Cannabis Sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis Marihuana, contrary to section 5(2) of the CDSA, thereby committing an offence under section 5(3)(a) of the said Act; and further,

(4) A controlled substance, to wit: Cannabis Marihuana, in an amount exceeding 30 grams, contrary to section 4(1) of the CDSA; and further,

(5) Proceeds of property, to wit: three hundred and seventy eight dollars and fifty-three cents more or less, in Canadian currency, knowing that all or part of the proceeds was obtained or derived directly or indirectly as a result of the commission in Canada of an offence under Part 1 of the CDSA, to wit: traffic in a controlled substance, to wit: Marihuana, contrary to section 5(1) of the CDSA, and did thereby commit an offence contrary to section 8(1) of the CDSA.

[2] On 27 August 2012 the accused was put to his election and elected trial before a provincial court judge in the Ontario Court of Justice. The matter was then adjourned on consent for two days of trial to 30 & 31 May 2013.

[3] Served and filed on 18 January 2013 is a Notice of Application, dated 5 January 2013 alleging breaches of the applicant's Canadian Charter of Rights & Freedoms ("Charter") protected rights guaranteed by sections 8 (Unreasonable Search & Seizure at roadside and at station – cell phone), 9 (Arbitrary Detention) and 10(b) (Right to Counsel) and seeking the remedy of exclusion of evidence.

[4] By way of Response, dated 23 May 2013, the Crown resists the allegations of breach.

[5] On 30 May 2013, the parties agreed that I hear the Charter application to exclude evidence first, on the understanding that if the application failed, the evidence called on the application could be applied to the trial proper. A further date was obtained from the trial co-ordinators in the event that the trial continued beyond the application.

[6] Commencing on 30 May 2013, I heard from four Crown witnesses:

(1) Constable Jason Keegan, Badge #9645, 11 Division;

(2) Constable Brian Doyle, Badge # 9013, 11 Division;

(3) Constable Yevgen Kravchenko, #9779, 11 Division; and

(4) Arosan Kirupanithy.

Summary of Evidence

Constable Jason Keegan

[7] Constable Keegan testified that on 9 August 2011 he was a passenger in a scout car on routine patrol in the High Park – Parkdale area of downtown Toronto, served by Toronto Police Services 11 Division, working with a companion officer, Constable Brian Doyle, who was driving and they observed a vehicle travelling west bound on Queen and north bound on Roncesvalles that was, in his opinion, travelling at a noticeable rate of speed, although he could not say that it was speeding, bearing licence plate BMAR 761, being driven by a lone male driver.

[8] Constable Keegan testified that when he did a routine police Highway Traffic Act ("HTA") data check of the licence plate he received back a notification that the plate was owned by Yogambikai Kirupanithy of 4 Gordon Weedan Road in Markham, but that the licence plate was not attached or registered to any vehicle at that time.

[9] Constable Keegan testified that they then decided to pull over the vehicle at did so at 1:08 AM.

[10] Constable Keegan testified that he observed and could hear Constable Doyle spoke to the driver, who identified himself as "David Longstaff".

[11] Constable Keegan testified that, initially he did not smell anything emanating from the car.

[12] Constable Keegan testified that while Doyle was continuing to speak to the driver, he moved closer to them and placed himself right next to Doyle, at the driver's side windshield in order to record the VIN number of the car.

[13] Constable Keegan also testified that he then determined by the VIN number and a further police HTA data search that the car was owned by Scarborough Car & Truck Rental and had a listed licence plate of BMAR853.

[14] Constable Keegan testified that while he was standing next to Doyle, recording the VIN number, he noticed a "faint" smell of marihuana, emanating from the open driver side window.

[15] Constable Keegan testified that he then overheard Constable Doyle ask Mr. Longstaff "Where is the marihuana" and direct Mr. Longstaff to get out of the vehicle.

[16] Constable Keegan testified that Mr. Longstaff was now nervous and shaking, and he was subjected to a "pat-down search" which revealed no narcotics.

[17] Constable Keegan testified that they then began a cursory search of the inside of the vehicle, looking for marihuana, which lasted several minutes.

[18] Constable Keegan testified that he moved around to the passenger side door and entered the car, and began to search for the source of the marihuana smell in the passenger side, front and back seats.

[19] Constable Keegan testified that as he entered the car from the passenger side door, the odour of marihuana was "quite a bit stronger" once he was inside the car.

[20] Constable Keegan testified that at this stage in the investigation he had formed the belief that, in his words "there was some marihuana in the car" but he was unable to find anything.

[21] Constable Keegan testified that shortly thereafter, Constable Kravchenko also began to search, on Constable Doyle's instructions, the inside driver's side of the car, to see if he could find marihuana on that side of the car.

[22] Constable Keegan testified that while he was searching the inside of the car, his escort, Constable Doyle advised him that he had located a large bag of what appeared to be marihuana and an additional vacuum-packed package of cocaine in the trunk of the vehicle, and instructed him to arrest Mr. Longstaff.

[23] Constable Keegan testified that it was only after Constable Doyle advised him that he had located a quantity of drugs in the trunk and instructed him to arrest Mr. Longstaff that he placed Mr. Longstaff under arrest for possession of controlled substances for the purposes of trafficking and cautioned him, at 11:18 AM.

[24] Constable Keegan testified that he then told Mr. Longstaff that he didn't have to say anything in answer to the charge and Mr. Longstaff said that he understood.

[25] Constable Keegan testified that Mr. Longstaff was subjected to another cursory pat-down search, handcuffed, placed in the back seat of his police vehicle, and advised of his right to consult counsel without delay.

[26] Constable Keegan testified that at 1:21 AM, while he was cautioning Longstaff, and placing him in the scout car, the other officers, Doyle and Kravchenko were continuing to "look through" Longstaff's vehicle.

[27] Constable Keegan testified that after Mr. Longstaff was placed in the scout car, cautioned and told about his right to call a lawyer Mr. Longstaff stated to him that he wished to speak to a lawyer.

[28] Constable Keegan also testified that "at some point" in this process, Mr. Longstaff's cell phone was seized, and at some later point in the investigation it began to ring.

[29] Constable Keegan stated to the Crown that he believed that it was sometime after 2:00 AM, at 11 Division, when the phone was already in a property bag, that the phone began to ring.

[30] Constable Keegan was cross-examined at some length about how he could possibly have smelled marihuana that was concealed in the trunk when, according to the Crown disclosure it was packaged in multiple layers of plastic bags, under the floor carpet of the trunk.

[31] Constable Keegan conceded that from his experience many factors come into play when marihuana is packaged in containers, bags, and concealed in car compartments.

[32] Constable Keegan also testified in cross that once one is exposed to even the faintest smell of marihuana, that it has a unique, pervasive, "skunky" odour that is very recognizable.

[33] Constable Keegan also testified in cross that he and Constable Kravchenko continued to search the inside of the car, front and back, after the initial quantity of drugs were found in the trunk, and after the arrest, looking for more drugs.

[34] Constable Keegan also testified in cross that the search of the vehicle was done without a search warrant and without Mr. Longstaff's consent.

[35] Constable Keegan testified in cross that he did not know how Doyle gained access to the trunk or where the narcotics were found or if they were hidden in a trunk compartment.

[36] Constable Keegan also testified in cross that from the moment that Mr. Longstaff was stopped, prior to his arrest, while Keegan and his partner were doing their HTA searches on the car, Mr. Longstaff was under detention and not free to leave the scene.

[37] Constable Keegan testified in cross that from the point he and Doyle smelled marihuana, the primary purpose of the investigation and the search of the vehicle was to locate the source of the marihuana odour.

[38] In further cross-examination, Constable Keegan confirmed that his notes at page fifty-four and fifty-five state that he and Kravchenko were initially searching the car to locate the source of the marihuana odor, and make no reference to impounding the vehicle or making an "inventory" of the contents of the vehicle.

Constable Brian Doyle

[39] In his direct examination, Constable Doyle confirmed that he was driving the scout car that evening and that he and his partner "ran" the car plates, BMAR 761, through the police computer and received the information that the plates were "unattached".

[40] Constable Doyle testified that because the plates were "unattached", he began to follow the vehicle on Queen Street West and northbound on Roncesvalles, and then pulled the car over to investigate.

[41] Constable Doyle testified that the driver was the accused, David Longstaff, and he described him as a white male, unshaven, in a shirt and shorts, looking straight ahead.

[42] Constable Doyle testified that when he asked Mr. Longstaff to retrieve his driver's licence and identification, Mr. Longstaff fumbled with his brown wallet.

[43] Constable Doyle testified that Mr. Longstaff, when asked to show proof of ownership of the vehicle, told him that his girlfriend had rented the vehicle and asked permission to call her in order to better answer the question.

[44] Constable Doyle testified that after Mr. Longstaff spoke by phone to his girlfriend, Mr. Longstaff told him that his girlfriend had rented the vehicle from a company in Scarborough but she would not be coming to collect the car and he could give no explanation about why the plates "didn't match" the registration.

[45] Constable Doyle testified that at this point he leaned his head into the window area and noticed the smell of "unburnt" marihuana coming from the interior of the car.

[46] Constable Doyle testified that he was familiar with this smell from a "controlled" burn that he had taken part in while undergoing his police training.

[47] He testified that he asked Mr. Longstaff a series of questions regarding his suspicion that there was marihuana in the vehicle and Mr. Longstaff was unresponsive.

[48] Constable Doyle testified that at this point in his investigation, although he was continuing to investigate the "unattached" plates, on the basis of his police training he believed that marihuana had been in the car at some point, and that an additional purpose of his investigation was now to discover the source of the marihuana smells.

[49] Constable Doyle testified that he therefore took the keys to the car from the driver and placed the keys on the roof of the car, and at 1:10 AM he radioed for a traffic officer to attend the scene.

[50] Constable Doyle testified that he called for a traffic officer to attend because he had never done an HTA or traffic "spot check" and was unfamiliar as to how to proceed when the licence plates of a vehicle "didn't match".

[51] Constable Doyle testified that he observed at this time that Mr. Longstaff's hands were shaking, he was sweating and he was fidgeting in his seat.

[52] Constable Doyle testified that at 1:14 Constable Kravchenko arrived, and explained to him the procedures to "impound" the vehicle.

[53] Constable Doyle told the Crown that, at this point in the investigation, he asked Mr. Longstaff to get out of the vehicle and submit to a search because he had two distinct investigative purposes:

(1) Because Mr. Longstaff' s name was not on the rental agreement and he therefore "assumed" he was not permitted to drive the vehicle, despite what he had been told by Longstaff, he believed the vehicle might be stolen; and

(2) Because he had detected a "strong" odour of marihuana inside the car.

[54] Constable Doyle testified that after consulting with the traffic officer, Constable Kravchenko, he decided to impound the vehicle.

[55] Constable Doyle testified that as a result of this decision he and his companion officers did the following:

(a) An inventory search, because they are responsible for the car until it arrives at the pound;

(b) He further spoke to Mr. Longstaff at the rear of the his vehicle and had him empty his pockets;

(c) Kravchenko & Keegan searched the interior of the car;

(d) He searched the trunk, and initially observed nothing at all in the trunk;

(e) He lifted the trunk carpet and next to the tire, in the tire well he found a green plastic bag concealed under the trunk carpet flap where emergency tools and tire are kept.

(f) He took the bag back to his car and opened it;

(g) Inside he discovered and placed on the driver's seat of his car:

(1) A large, closed zip lock bag of marihuana;

(2) A vacuum sealed bag of cocaine;

(3) A second closed plastic bag of marihuana.

[56] Constable Doyle testified in cross-examination that he asked Mr. Longstaff if the drugs he had found were his, and again, Longstaff was unresponsive.

[57] Constable Doyle testified that while searching the trunk of the car, he wore gloves to preserve the evidence and any possible prints on the exterior of the various bags.

[58] Doyle testified that the bulk amount of marihuana was 157.67 grams, and the bulk amount of cocaine was 370.59 grams.

[59] In cross-examination Constable Doyle testified that he has conducted more than one hundred vehicle stops, some by himself, without other officers present, but didn't feel qualified to proceed without a traffic officer present.

[60] In cross he also conceded that although he wrote in his notes that the car was travelling at a "high" speed, he did not pull it over for speeding and when he called for the traffic officer to attend he was not intending to issue any HTA traffic tickets as the car was not speeding and there were no traffic offences being committed.

[61] In cross-examination Doyle also stated that during his search of the trunk, discovery of the garbage bag, removal and opening of the various bags, he never cautioned Mr. Longstaff or read him his right to counsel, until after his discovery, when he asked Keegan to arrest and caution Longstaff.

[62] Doyle testified that his initial concern was that the car did not belong to Mr. Longstaff and the plates didn't match.

[63] Doyle further stated that once he smelled marihuana, his primary concern was to do a drug investigation, and when they found no drugs on Mr. Longstaff or in plain view in the interior of the vehicle, he concluded that the marihuana was most probably in the trunk.

[64] Doyle also stated in cross-examination that, at this point, he now was searching for the source of the marihuana, but that his investigation was still not primarily a drug investigation.

[65] Doyle testified in cross that because of the lack of evidence, when he initially started searching the trunk, the investigation was "still not there", and there was therefore not a sufficient basis to arrest Mr. Longstaff for possession of controlled substances.

[66] Doyle testified that he did not inform Longstaff why he was being asked to step out of the vehicle, or that he intended to search the trunk.

[67] Doyle also testified that Longstaff did not consent to his search of either the inside of the car, or the trunk.

[68] Doyle testified that although he wrote in his notebook that he detected a "strong" odour of marihuana, it actually was, in his opinion, "unburnt" and not as strong as the smell would be if the marihuana was being smoked in the car at the time of the stop.

[69] Doyle also testified that marihuana has a distinct aroma which you do not soon forget, once you have been exposed to it.

[70] Constable Doyle also testified in cross that packaging might have an impact on how much the marihuana could be detected by the smell alone.

[71] In cross-examination Doyle also testified that when he began searching the trunk, all he could see was and empty trunk and the flat, opaque trunk carpet.

[72] In cross he also testified that when he lifted the trunk carpet, he was able to do so by hand, as the tire-well area was "not secure".

[73] In further cross-examination on the 31 st of May 2013, Constable Doyle also testified that he agreed with defence counsel that the "smell" of marihuana that he detected did not provide the basis for an arrest of Mr. Longstaff.

[74] Doyle further testified that he also felt that the HTA investigation justified the impounding of the vehicle and doing an "inventory" search, based upon the "uncertainty" he had after speaking with Longstaff regarding the ownership of the vehicle.

[75] Doyle further testified in cross, however, that he did not, in fact, compile a list of the contents of the trunk, when he searched it, and there is nothing in his notes about the contents of the vehicle, or the results of an inventory search.

[76] Constable Doyle also conceded in cross-examination that the reference in his notes to "full search" and "nothing else located" referred to the drug investigation, and was not referring to an "inventory" search of the contents of the car.

Constable Yevgen Kravchenko

[77] Constable Kravchenko testified that when he arrived at 1:14 AM Constables Doyle and Keegan were standing beside Mr. Longstaff's vehicle, and Constable Doyle was pulling Mr. Longstaff out of the vehicle at the driver's side door.

[78] Constable Kravchenko testified that as he approached the three men he noted the "overpowering" strong odour of fresh marihuana emanating from the open driver's door of the vehicle.

[79] Constable Kravchenko testified that initially he was told by Constable Doyle that they were just conducting a traffic stop because they discovered the vehicle was being driven with "unattached" plates.

[80] Constable Kravchenko testified that, where officers discover an apparently abandoned vehicle or improperly plated vehicle it can be impounded and towed under section 221 of the HTA.

[81] Constable Kravchenko further testified that once the decision was made by Doyle to "tow" the vehicle, they had to conduct an inventory search and all property had to be accounted for before the vehicle could be moved.

[82] Constable Kravchenko testified that the inventory search of the vehicle concluded with no other property of any kind being located, and only the licence plates were seized at the scene.

[83] Constable Kravchenko testified that because of the odour of "just smoked" marihuana and because of Doyle's statement to him that Longstaff had made certain admissions about the presence of marihuana in the vehicle, he and Keegan were directed by Doyle to search the inside of the vehicle for marihuana while Doyle dealt with Mr. Longstaff.

[84] Constable Kravchenko testified in cross-examination that he searched the driver's side of the car, front and back, back seat pockets, under the seat and mat, the dashboard, but can't recall if he searched the front console.

[85] Constable Kravchenko testified that his search of the driver's side of the vehicle and under the driver's seat resulted in nothing being found.

[86] Constable Kravchenko testified that as he and Keegan searched the inside of the vehicle their search became a "fluid" investigation and they also had to search the vehicle to ascertain if there were other ownership documents in relation to the car or the plates.

[87] Constable Kravchenko testified that while he and Keegan were searching the inside of the driver's and passenger sides of the vehicle, Constable Doyle searched the trunk and recovered a green bag which he removed and placed on the hood of the scout car.

[88] Constable Kravchenko testified that inside the green bag Doyle found and removed a large quantity of marihuana and a very large vacuum sealed brick of cocaine, the largest he, Kravchenko, had ever seen.

[89] Constable Kravchenko testified that as a result of Constable Doyle's discovery, Mr. Longstaff was arrested for possession of controlled substances for the purposes of trafficking.

[90] Constable Kravchenko testified that at the station Constable Keegan also located Mr. Longstaff' s black LG cell phone, inside a property bag, handed it to Kravchenko, and directed him to search it, to seek evidence of possible drug offences.

[91] In cross-examination, Constable Kravchenko testified that at approximately 5:00 AM, as a result of Keegan's directions he then took the phone out of a property bag and searched it for recent text messages and phone calls.

[92] Constable Kravchenko testified that at this time at the station he reviewed saved text messages and over forty missed calls, and discovered that the saved text messages included requests for drugs.

[93] Constable Kravchenko testified that as soon as he found the text messages requesting drugs he stopped searching the phone and advised Detective Foster, at the station, of what he had discovered in his search of the phone.

[94] Constable Kravchenko testified that the text message requesting drugs was photographed at the station. (Exhibit 3 in the proceeding is the photograph of the text message)

[95] Constable Kravchenko, in cross-examination, testified that Mr. Longstaff did not give him permission, nor did he ask for his consent or permission to search the phone.

Arosan Kirupanithy

[96] Mr. Kirupanithy testified that his family runs a car rental business, Scarborough Car & Truck Rental.

[97] Mr. Kirupanithy testified that on 9 August 2011 he rented the vehicle in question, with a license plate BMAR761 to a female customer, who signed a rental agreement, which was produced and marked as Exhibit 4 in the proceeding.

[98] Mr. Kirupanithy testified that he believed there was no request for an additional driver for the rental car, and that the box that provided for additional driver's name was crossed out.

[99] Mr. Kirupanithy testified that the license plate BMAR761 was on the vehicle at the time of the rental.

[100] Mr. Kirupanithy testified that the car was registered in the name of his mother, but that the Rental company, Scarborough Car & Truck Rental, was in the process of buying the car from the East Side Chevrolet Dealership and would be placing new plates on the car, but that these plates were not yet attached on 9 August 2011, when the car was rented out.

[101] Mr. Kirupanithy testified that he personally delivered the car downtown, and at the time of the rental it was in perfect condition, did not smell of drugs and there were no drugs in the car, to the best of his knowledge.

[102] In cross-examination Mr. Kirupanithy testified that he did not know the licence plate number of the new plates that were going to be placed on the car.

[103] In cross-examination Mr. Kirupanithy testified that he now recalls that he actually delivered the car downtown to the female renter on the evening of 8 August 2011, not 9 August 2011, as shown on the Rental Agreement, Exhibit 4, which shows the rental time as 9:45 on 9 August 2011.

[104] In cross-examination, Mr. Kirupanithy conceded that what he turned over a document that purports to be a handwritten "original" or "first page" of the rental agreement to Detective Foster at 11 Division, despite the fact that it is his practice to provide the first page to the customer, and keep the carbon copy for his own records.

[105] In cross-examination, Mr. Kirupanithy conceded that he couldn't remember why he had the original copy of the rental agreement, or what he had given to the customer on the 8 th of August 2011.

Position of the Parties

The Applicant's Submissions

[106] In this Application, the applicant/defendant submits that the continuing search of the applicant's vehicle, a clean and uncluttered rental vehicle, after the applicant had submitted to a pat down search outside his vehicle, and no drugs were found either on his person or in the interior of the vehicle, was purely investigative, to discover if there were drugs hidden in the vehicle, and as such cannot be characterized or justified as either a search for the purposes of officer safety, or a simple "inventory" search prior to towing.

[107] The applicant also submits that Mr. Longstaff was questioned about the smell of marihuana and where marihuana might be located without being cautioned, advised of his right to consult counsel or arrested for any offence.

[108] The applicant also submits that the search of the contents of Mr. Longstaff's cell phone, later at the station was also an "overreach" by the police, and an unlawful search in this case.

[109] The applicant further asserts that there were no exigent circumstances that precluded the police from obtaining a search warrant for both their search of the rental vehicle and the cell phone.

[110] Accordingly, the applicant submits, the search of the rental vehicle was warrantless, as was the later search of the applicant's cell phone at 11 Division, and both searches unreasonable, and the fruits of the two searches, including utterances by the applicant, should be excluded.

The Crown's Submissions

[111] The respondent Crown primarily resists the application on the factual basis that the stop of the car was not arbitrary given that the licence plates were not properly registered to any vehicle, and the applicant's demeanor and nervousness provided grounds for the search and finally, after the discovery of the drugs, an arrest shortly thereafter.

[112] The respondent Crown thus submits that the search of the car was a reasonable exercise of the police common-law power to search incident to arrest, even though it proceeded in time the actual arrest.

[113] The Crown also asserts, in the alternative, that where evidence of criminality is discovered during a valid "inventory search" that evidence may justify a more extensive search and arrest. The Crown submits that the validity of this investigative approach may be gleaned from the appellate authority of R. v. Wint 2009 ONCA 52 and R. v. Nolet 2010 SCC 24.

[114] It is the Crown's submission that this line of authority permits a "secondary" interest or purpose of searching a vehicle, in the case at bar, the officers' stated intention to find the source of the smell of marihuana, so long as there is an existing valid HTA purpose for searching the car, in the case at bar, an "inventory" search that was permissible due to the "unattached" licence plates.

[115] It is the Crown's further submission that the "secondary" investigation and interest in uncovering criminality, is neither a "taint" on the provincial regulatory investigation or an unlawful exercise of the police investigative power.

[116] The respondent Crown further submits, in the alternative, that the large quantity of cocaine seized, 378.53 grams and marihuana, 299 grams is real evidence that should not be excluded, on fair trial principles, even if the court were to find that there was an unlawful search.

[117] I have concluded that the continuing search for marihuana in the concealed tire-well compartment in the trunk of Mr. Longstaff's rental car was, in fact, an unreasonable and unlawful search for the following reasons:

(1) The officers, both subjectively and objectively, did not have reasonable grounds or probable cause, to extend their search beyond an inventory search;

(2) The officers, prior to the discovery of the garbage bag in the concealed compartment in the trunk, had no reasonable grounds to arrest Mr. Longstaff;

(3) The officers, once they decided to impound the vehicle, had no exigent circumstances to justify the more invasive search of the car and the trunk, without a warrant.

[118] These are my reasons.

Legal Framework

The Canadian Charter of Rights and Freedoms

Legal Rights

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Primacy of Constitution of Canada

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Impounding under Section 221 of the Ontario Highway Traffic Act

Abandoned or unplated vehicles

221. (1) A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place. R.S.O. 1990, c. H.8, s. 221 (1).

Costs for storage

(2) All costs and charges for removal, care or storage of a vehicle taken or stored under subsection (1) are a lien upon the vehicle that may be enforced in the manner provided by Part III of the Repair and Storage Liens Act. R.S.O. 1990, c. H.8, s. 221 (2).

Section 495 of the Criminal Code

Arrest without warrant by peace officer

495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Limitation

(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553,

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

Consequences of arrest without warrant

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.

Section 11 of the Controlled Drugs and Substances Act

11. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

Application of section 487.1 of the Criminal Code

(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.

Execution in another province

(3) A justice may, where a place referred to in subsection (1) is in a province other than that in which the justice has jurisdiction, issue the warrant referred to in that subsection and the warrant may be executed in the other province after it has been endorsed by a justice having jurisdiction in that other province.

Effect of endorsement

(4) An endorsement that is made on a warrant as provided for in subsection (3) is sufficient authority to any peace officer to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with the law.

Search of person and seizure

(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.

Seizure of things not specified

(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,

(a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened;

(b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a);

(c) any thing that the peace officer believes on reasonable grounds is offence-related property; or

(d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.

Where warrant not necessary

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. (Emphasis added)

Seizure of additional things

(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence.

1996, c. 19, s. 11; 2005, c. 44, s. 13.

The Underlying Principles of The Common Law Right to Search Incident to Arrest

R. v. Debot

[119] In Debot, a reliable informer, who had provided reliable information about Debot in the past that had resulted in search warrants obtained and executed, advised the police that Mr. Debot was going to meet with other named individuals that day and complete a drug transaction at 1124 Elizabeth Street, Wallaceburg, Ontario, in which Debot would be driving a Ford Bronco, licence plate KP7409 and receive approximately four ounces of speed.

[120] Debot was observed arriving in his car at the address, getting out of his car and entering the house, then returning to his car and driving away. As Debot drove away, surveillance officers notified the arresting officers that Debot had left the building and was driving eastbound. Four or five minutes later his car was stopped and outside his vehicle Debot was questioned. Although Debot denied having any drugs on his person, the arresting officer advised Debot that he had reason to believe he did, and proceeded to search Debot. Inside his right front pants pocket the officer found a sun glasses case, inside of which was a plastic bag with approximately one ounce of speed. At this time Debot was arrested on the charge of possession of speed for the purposes of trafficking.

[121] At the trial, the arresting officer, Constable Birs, averted to all the background information he had on Debot, including his record, and including the information about the details of the transaction-to-be, obtained from the informer.

[122] The trial judge concluded that Mr. Debot's s. 8 Charter right had been breached, and excluded the evidence. The trial judge made two findings that were specifically addressed on appeal:

(1) He found that the search was not "incident to an arrest" as the arresting officer had been ordered by his superiors to search Mr. Debot first, and only arrest if the drugs were found; and

(2) He found that the arresting officer had no "reasonable or probable" (sic) grounds to arrest "aside from pure speculation and pure hope".

[123] In setting aside the trial judge's rulings and ordering a new trial, Justice Arthur Martin stated:

I am, with deference to the learned trial judge, of the view that Constable Birs, on the totality of the circumstances, had reasonable grounds to believe that the respondent was in possession of a prohibited drug. The information supplied by the informer to Constable Gutteridge was not a mere conclusory statement that the respondent was engaging in criminal activity with respect to drugs. Rather, the informer disclosed the underlying circumstances of the expected drug transaction, including the location where it was to take place. The informer told Gutteridge that the respondent was going to Carpenter's house to complete his part in the drug transaction. The police investigation confirmed that the respondent's car arrived at Carpenter's house and that one of the occupants, at least, entered the house. Two men and two women came out of the house shortly thereafter, got into the respondent's car and drove away. Furthermore, the informer had proved to be reliable, with respect to information that he had given the police on previous occasions.

Counsel for the appellant also contended that the search of the respondent was also authorized as incident to a valid arrest, even though the respondent was not arrested until after the search. It is axiomatic that a search may not precede an arrest and serve as part of its justification, for example, where prohibited drugs are found on the suspect's person in the course of the antecedent search and constitute the probable cause for the subsequent arrest. On the other hand, it is well established in the United States that where probable grounds exist for arresting a person, apart altogether from evidence discovered by a search, the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows on the search: see People v. Simon, 290 P. 2d 531 (1955); United States v. Rogers, 453 F. 2d 860 (1971); State of Maine v. LeBlanc, Me., 347 A. 2d 590 (1975); In The Matter of John Doe, a Child, 547 P. 2d 566 (1976); Rawlings v. Kentucky, 100 S. Ct. 2556 at 2564 (1980).

The trial judge appears to have based his finding that the search was not incident to arrest on two facts: one that the search preceded the arrest and, secondly, that Constable L'Heureux testified that there was to be no arrest unless drugs were found. The judge's holding that the search was not incident to arrest did not depend on findings of credibility. On the contrary, his holding that the search was not incident to arrest was based on the testimony of Constable L'Heureux. What constitutes a search incident to arrest is a question of law. Under the reasoning of Traynor J., I do not think that the fact that the respondent would not have been arrested if drugs had not been found in his possession, precludes the prior search from being incident to the arrest that followed the finding of the drug. This is provided, always, that the officer had reasonable grounds, prior to the search, for arresting the respondent under s. 450 of the Code. (Emphasis added)

The reasoning of Traynor J. contemplates the situation where an officer has probable cause to arrest the suspect but postpones his or her decision to arrest the suspect. The officer, thus, avoids making an actual arrest, if the search proves that his or her belief that there was probable cause was erroneous. In my view, it may also very well be that a police officer, notwithstanding that he or she has reasonable and probable grounds upon which to make an arrest, may decide that, if the search does not disclose evidence of the offence, there would be no chance of obtaining a conviction. Hence, the officer may decide not to proceed further by making an arrest. I am of the view that Constable Birs, prior to searching the respondent, had reasonable and probable grounds to believe that DeBot had committed an indictable offence: namely, possession of a controlled drug, methamphetamine, for the purpose of trafficking. Constable Birs was justified, pursuant to s. 450 of the Code, in arresting DeBot without warrant. Holding that the search in the present case was incident to a valid arrest is consistent with the policy underlying the justification for a search incident to a valid arrest and is not precluded by authority.

In my view, in addition to being authorized under s. 37 of the Food and Drugs Act, the search of the respondent, in the circumstances, was properly incident to a lawful arrest. The search of the respondent did not contravene s. 8 of the Charter. (Emphasis added)

[124] Justice Martin makes clear in Debot, that the Crown must establish two distinct prerequisites before the fruits of a common-law search may be admissible in evidence:

(1) The search must be "incident" to the arrest, but need not necessarily occur after the arrest – Where the search occurs prior to the arrest there must be clear factual nexus, usually including proximity in time, to the ultimate arrest for the criminality;

(2) The arrest itself must be "lawful" under the Code s. 450 (now s. 495) - "reasonable grounds" as set out in the code to arrest must exist independently and prior to the search for contraband or drugs that results in the discovery of further evidence of criminality which the Crown wishes to place before the court.

[125] Justice Martin reasoning is that, to be lawful, the arrest cannot be justified by the fruits of the common law search.

[126] Where sufficient grounds for the eventual arrest are not present prior to the search that discovers the tendered evidence, the search itself is not lawful, and the evidence is not admissible at trial.

[127] The legal history of a common law power to search, generally, incident to a lawful arrest is reviewed by Madame Justice Clare L'Heureux-Dubé in the Supreme Court of Canada, in her judgement in R. v. Cloutier & Langlois, starting at paragraph 49:

49 In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him...

Analysis

50 In determining the exact scope of a police power derived from the common law, this Court often had recourse to considerations of principle, and the weighing of the competing interests involved. Competing interests are important factors in determining the limits of a common law power. When the power in question comes into conflict with individual freedoms, it is first necessary to decide whether the power falls within the general scope of the duty of peace officers. This duty, clearly identified, must historically have been recognized by the courts as tending to promote the effective application of the law. Secondly, the Court must determine whether an invasion of individual rights is justified. In this regard, Le Dain J. in Dedman defined what he meant by "justifiable use of the power" in question (at p. 35):

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added.]

It is therefore necessary in this second stage to determine whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals.

51 Having stated these premises, I now turn to considering the power of search at the time of a lawful arrest.

58 In this regard a "frisk" search is a relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force is applied. The duration of the search is only a few seconds. Though the search, if conducted, is in addition to the arrest, which generally entails a considerably longer and more sustained loss of freedom and dignity, a brief search does not constitute, in view of the objectives sought, a disproportionate interference with the freedom of persons lawfully arrested. There exists no less intrusive means of attaining these objectives.

[128] The requirement that common law search incident to arrest must be Charter-compliant is further considered in the judgment of Chief Justice Antonio Lamer, in R. v. Caslake [1998] S.C.J., in which Chief Justice Lamer explains the importance of the requirement that the search be "incident" to valid legal purpose, in that case, a lawful arrest after a traffic stop:

17 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual's interest in privacy. See the Law Reform Commission of Canada, Report 24, Search and Seizure (1984), at p. 36. (For a more in-depth discussion, also see Working Paper 30, Police Powers -- Search and Seizure in Criminal Law Enforcement (1983), at p. 160.) This means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.

18 This position has been taken by a number of lower courts, and particularly well articulated by Doherty J.A. In Lim (No. 2), supra, at p. 146, he stated:

I begin with a determination of whether the search was truly an incident of the arrest. If it is not, the common law power to search as an incident of arrest cannot be relied upon. . . .

In considering whether a search is in fact an incident of arrest, one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search.

Similarly, in R. v. Belnavis (1996), Doherty J.A. held that an arrest for outstanding traffic fines did not authorize the search of the trunk of a vehicle, stating:

The authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest.

This decision was affirmed by this Court (), although Cory J., who wrote for the majority, did not address this issue.

22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).

Was the Search in this Case Truly Incidental to the Arrest?

27 Naturally, the 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. This accords with the ultimate purpose of s. 8, which, as Dickson J. stated in Hunter, supra, is to prevent unreasonable searches before they occur.

[129] In R. v. Nicolosi [1998] O.J. No. Justice David Doherty describes how s. 221 of the Ontario HTA, which authorizes the impounding of vehicles, also permits inventory searches as an appropriate adjunct to that process, so long as the search is done in a manner that respects the limited purpose of such a search and the privacy interest of the person whose vehicle is being searched.

[130] In Nicolosi, within five seconds of commencing an inventory of the car, Constable Bishop discovered a handgun lying in the space beside the gear shift between the two front seats.

[131] Justice Doherty explains how, in the specific circumstances of that case, a warrantless inventory search properly resulted in the discovery of significant evidence of criminality, unrelated to the reasons for the impounding of the vehicle, where the evidence was in plain view.

The impounding of the vehicle

The police, as state agents, took possession and control of the appellant's vehicle over his strenuous objections. This would appear to be a seizure within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms: R. v. Colarusso, at pp. 40-41. In a submission, unsupported by reference to any authority, Crown counsel argues that the car was not seized because the appellant had no reasonable expectation of privacy in respect of his vehicle. Those operating motor vehicles on public thoroughfares have a significantly reduced expectation of privacy: R. v. Hufsky, at pp. 637-38; R. v. Mellenthin, at pp. 623-24; R. v. Belnavis, at p. 359. It cannot be said, however, that a motorist has no expectation of privacy in respect of his or her motor vehicle: R. v. Wise; R. v. Mellenthin, supra. Whatever the perimeters of that reduced expectation of privacy, they surely extend to a reasonable expectation by the motorist that he or she will maintain possession and custody of the vehicle. Police conduct which assumes possession and custody of the vehicle is, absent a valid consent, a seizure.

The seizure was not authorized by warrant. Under the authority of R. v. Collins, at p. 278, it was incumbent upon the Crown to show that the seizure was authorized by law, the law was reasonable and the seizure was reasonable in the circumstances.

The Crown relies on s. 221 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (H.T.A.) which reads in part:

221(1) A police officer . . . who discovers a vehicle . . . without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place.

(2) All costs and charges for removal, care or storage of a vehicle taken or stored under subsection (1) are a lien upon the vehicle . . .

(Emphasis added)

Section 221(1) of the H.T.A. empowers the police to remove, transport for storage, and store any vehicle which is on a public roadway without a proper licence plate. The appellant's vehicle met that criteria. The purpose of s. 221(1) is obvious. Proper licensing of motor vehicles is fundamental to the effective operation of the detailed regulatory scheme governing the use of motor vehicles. Motor vehicles that are not properly licensed cannot be effectively regulated. A vehicle that is improperly licensed does not belong on a public roadway. Statutory authorization to remove such vehicles is a fundamental component of any scheme which purports to regulate the use of motor vehicles.

Constable Bishop's visual inspection of the interior of the vehicle

In R. v. Edwards, at p. 140, Cory J., for the majority, said:

There are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy . . . Usually, the conduct of the police will only be relevant when consideration is given to this second stage.

The determination of whether an accused had a reasonable expectation of privacy is made by reference to the totality of the circumstances: R. v. Edwards, supra, at p. 140 S.C.R., p. 146 C.C.C.; R. v. Belnavis, supra, at pp. 354-57 S.C.R., pp. 417-19 C.C.C. In this case, two circumstances are particularly significant. The appellant was under arrest and the police had assumed lawful custody of his vehicle for the purpose of removing it from the road, taking it to a storage area, and storing it in a suitable place. Both factors significantly reduced the already relatively modest reasonable expectation of privacy that the appellant had with respect to his motor vehicle.

[132] Thus, the law in Ontario is now that an inventory search can take place pursuant to section 221 of the Ontario HTA, and result in other evidence of criminality independent of the purpose of the inventory search, so long as it is Charter-compliant. Both counsel submit, and I agree, that a similar result occurs with other provincial statutes that authorize traffic stops and searches for provincial regulatory traffic enforcement.

The Crown's Cases on Regulatory Searches: Wint & Nolet

R. v. Wint 2009 ONCA 52

[133] In R. v. Wint the Ontario Court of Appeal found that an inventory search that resulted in the discovery of marihuana and cocaine was not a breach of S. 8:

THE COURT: -- The appellant appeals from his convictions for simple possession of marijuana and possession of cocaine for the purpose of trafficking. The sole issue on appeal is whether the trial judge erred in admitting the drugs into evidence.

2 The appellant was stopped for "stunt driving" after he nearly sideswiped an unmarked OPP vehicle and then drove for eight kilometres along Highway 401 at a speed of 170 km per hour. After stopping the vehicle, Sergeant Dziepak, the driver of the unmarked OPP vehicle, radioed for assistance and Constables Upton and Dekker arrived momentarily. In the meantime, Sergeant Dziepak saw the appellant place a number of music CDs into a small black drawstring bag on the back seat of his vehicle.

3 Given the offence for which the appellant had been apprehended - "stunt driving" under s. 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 "the Act" - a decision was made to impound his vehicle under s. 172(5) of the Act.

4 After the appellant had been placed in Constable Upton's cruiser, Constable Upton and his partner commenced an inventory search of his vehicle before impounding it. In doing so, Constable Dekker observed a black bag on the floor behind the passenger seat and he gave it to Constable Upton. Constable Upton opened the bag and observed a small black nylon CD case inside it. The case felt heavy and based on information he had received from the dispatcher, Constable Upton was concerned that it might contain a gun. As it turned out, it did not. Rather, it contained an ounce of crack cocaine. Elsewhere, in the black bag, he found nearly two ounces of marijuana, three cell phones, a blackberry and a digital weigh scale. Accordingly, in addition to being charged with "stunt driving", the appellant was also charged with possession of cocaine and possession of marijuana for the purpose of trafficking.

5 The sole issue before us is whether the police were entitled, under s. 8 of the Charter, to search the black bag and CD case and if not, whether the fruits of their search should be excluded from evidence under s. 24(2) of the Charter.

8 The trial judge then found that the black bag was plainly visible in the search of the interior of the car and he concluded that the police were conducting an inventory search under lawful authority.

By documenting the contents of the vehicle that had any apparent value, the police serve the interests of any person who has an interest in the property and who looks to the police to safeguard that property while it is in police custody. It is quite wrong to suggest that the only interest is the police interest in avoiding civil liability.

16 It follows that the search of the black bag and its contents, as well as the search of the CD case and its contents was entirely reasonable and justified. Indeed, the police would have been derelict in their duties had they not carried out the searches.

17 Accordingly, we affirm the trial judge's conclusion that the search of the black bag and the CD case was lawful and that it did not constitute a breach of the appellant's s. 8 Charter rights.

18 In view of that conclusion, while it is technically unnecessary to address s. 24(2), for the sake of completeness, we would simply add that we see no error in the trial judge's analysis or conclusion. Hence, even if there was a s. 8 breach here, the evidence was properly admitted.

R. v. Nolet 2010 SCC 24

[134] In R. v. Nolet, Justice Ian Binnie, speaking for the Supreme Court of Canada, concluded that a vehicle stop and search, after the police established initially a number of contraventions of the driving regulations for commercial trucks under Highway and Transportation Act of Saskatchewan ("H&TA") was reasonable, and not a breach of s. 8 of the Charter.

[135] In that case regulatory contraventions of the truck were initially observed by police, who stopped the vehicle and inspected the vehicle. That "inspection" included a search of the sleeping compartment in the cab of the truck and resulted in the discovery of a large quantity of cash and drugs.

[136] In concluding that no s. 8 Charter breach had occurred, Justice Binnie stated:

16 In the trial judge's view, the warrantless searches were unreasonable and the evidence of the money and the marijuana was excluded. The appellants were acquitted.

Analysis

21 At the heart of this appeal lies the thorny issue of warrantless searches conducted in conjunction with random roadside stops. A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter, which guarantees to everyone "the right to be secure against unreasonable search or seizure". In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable: R. v. Collins, at p. 278, and R. v. Caslake, at para. 10.

22 The appeal also engages s. 9 of the Charter ("the right not to be arbitrarily detained or imprisoned"). A random vehicle stop on the highway is, by definition, an arbitrary detention: Dedman v. The Queen; R. v. Hufsky; R. v. Ladouceur (hereinafter "Ladouceur (Ont.)"); Mellenthin, and R. v. Harris, 2007 ONCA 574. The detention will only be justified under s. 1 of the Charter (Hufsky, at p. 637), if the police act within the limited highway related purposes for which the powers were conferred (Ladouceur (Ont.), per Cory J., at p. 1287).

A. The Initial Stop

23 Random roadside stops must be limited to their intended purposes. "A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over", per Cory J., in Mellenthin, at p. 629. It thus becomes necessary to examine the authority claimed by the police at each step from the original demand to the appellants to pull their truck over on the Trans-Canada Highway to the discovery of the cash and subsequently the marijuana a couple of hours later as well as the follow-up "inventory search" the next morning, to determine at what point, if at all, the police infringed the rights of the appellants under s. 8 or s. 9 of the Charter. A roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey.

26 In the present case, by contrast, the random stop program was directly related to legitimate highway purposes. Commercial trucking is regulated in every aspect from loads and load safety under The Motor Carrier Act to potentially dangerous cargo under The Dangerous Goods Transportation Act, S.S. 1984-85-86, c. D-1.2. As such, the initial stop, in this case under s. 40 of The Highway Traffic Act, did not violate the s. 9 rights of the appellants: Ladouceur (Ont.), at p. 1287; Orbanski, at para. 41.

E. Did the Regulatory Search Authority Cease Because of Taint by an Impermissible Criminal Law Purpose?

32 As stated, this is not a case where the random stop was constitutionally flawed from the outset. The argument of the appellants is that an investigation lawful at the outset became unlawful when the police officer, based on information lawfully obtained from the appellants and the appearance of their vehicle, began to suspect criminal activity. The trial judge found, and the appellants contend, that the policeman's search of the duffle bag should be attributed predominantly to his interest in illegal criminal activity, and as such, they say it fell outside any valid regulatory purpose.

36 Wilkinson J.A., for the majority in the court below, found the dual purpose debate unhelpful and succinctly expressed the view that

the lawful aim cannot be used as a pretext, ruse, or subterfuge to perpetuate the unlawful aim. That, ultimately, is the focal point of the inquiry. It is not a question of degree, or determining which purpose is predominate or subordinate. Rather, it is a question whether a lawful purpose is being exploited to achieve an impermissible aim. [para. 85]

44 The trial judge did not express any doubt about the officer's evidence that relevant papers were frequently dispersed around a cab, often collected in a bag similar to the one at issue here, and that when he "pushed down on the duffel bag, [he] felt and heard paper products inside" (A.R., vol. 2, at p. 181). In other words, the officer did not proceed immediately to open the bag without some preliminary evaluation of its likely relevance to the regulatory search. The paper contents felt more like items connected to the H&TA inquiry than if the contents had felt solid in a way that might have indicated personal clothing (or drugs). In the circumstances, it was not unreasonable, given the appellants' very limited privacy interest, for the officer to open the bag. At that point, the cash was in plain view. (Emphasis added)

46 In summary, the Crown established on a balance of probabilities that the warrantless search was authorized by s. 63(5) of the H&TA, the reasonableness of the law itself is not challenged, and the manner in which the search was carried out was reasonable. The Collins test is therefore satisfied.

[137] In support of his reasoning, Justice Binnie, in part, relied on the reasons of Justice J.A. Martin for the Ontario Court of Appeal in R. v. Annett.

[138] In Annett Martin ties the lawfulness of searches of this kind to four essential pre-requisites:

(1) The reasonable exercise of a lawful regulatory purpose; and

(2) The reasonable suspicion that the lawful regulatory search might also provide evidence of other criminality; and

(3) The evidence of the "other criminality" is discoverable within the parameters of the lawful regulatory search, and

(4) The regulatory search is Charter-compliant.

[139] Martin's analysis is found below, where he states that the investigating officer, based upon his knowledge of the car owner's antecedent record had a reasonable suspicion that their "reasonable" and therefore lawful liquor licence search might also provide evidence of drug offences:

Constable Twigg was aware that Moran had an outstanding charge of possession of a narcotic for the purpose of trafficking and an outstanding committal warrant. Constable Twigg was also aware of considerable theft of miniature liquor bottles at the airport by airport employees. Accordingly, he suspected that it was possible that in the course of a search of the motor vehicle, drugs or stolen property might also be located. (Emphasis added)

At 10:37 p.m. the appellant and Moran were observed to enter the vehicle. Constable Twigg immediately identified himself to Moran and advised him that he wished to search the vehicle under the authority of the "Liquor Control Act." He asked Moran to open the trunk of the vehicle and Moran complied. He asked Moran if he had any liquor "splits" from C.P. Air. Constable Twigg testified that when he opened the trunk he was looking for liquor. However, narcotics were also in the back of his mind.

In the trunk of the motor vehicle, Constable Twigg located a brown vinyl bag. Inside the bag he found a plastic bag containing 195 grams of cocaine and identification in the name of the appellant. Constable Twigg testified that when he opened the bag he was searching for liquor.

Constable Richardson assisted Constable Twigg in the search and inside the pocket of the blue parka in the back of the vehicle he found 60 grams of cocaine. The appellant's name was written on the label in the parka which he admitted was his.

The cocaine seized had a wholesale value of $30,000 and a street value of $183,000.

I find the officers were not acting on suspicion alone but on the authority of the Liquor Control Act [sic] in good faith, but with the multiple purpose in mind of searching for liquor, stolen liquor, and narcotics.

The search and seizure therefore was not unreasonable in the circumstances.

In our view, the finding of the trial judge that the search was made pursuant to the provisions of s. 48 and was reasonable is a finding which he was entitled to make and it is supported by the evidence. The lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs. The evidence obtained pursuant to the search, in our view, was, therefore, properly admitted. (Emphasis added)

Accordingly, the appeal must be dismissed.

MARTIN J.A.

The Common Law Power To Search Incident to an Arrest Without a Warrant

R. v. Polashek

[140] Finally, the Crown cites the decision of the Ontario Court of Appeal in R. v. Polashek, specifically, paragraphs 12 through 16 and 19 through 26, in support of the proposition that the search of the trunk of the vehicle was justified as a search incident to Mr. Longstaff's lawful arrest for possession of controlled substances for the purposes of trafficking.

[141] The Crown points to two principle findings of the appellate ruling in Polashek, and submits that they apply to the case at bar:

(1) A "trunk search" can be reasonable on the basis of limited initial observations of the driver and the odour of marihuana; and

(2) The fact that an initial search of the driver preceded the arrest, where the arrest quickly follows on the search, does not preclude the initial search from being a "search incident to a valid arrest".

[142] The reasoning in Polashek, above, at paragraph 26, citing Chief Justice Lamer in Caslake is that to be "truly incidental to the arrest" "there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested".

[143] The facts in Polashek were that Constable Ross of the Peel Region Police stopped the accused ("P") in Malton, for a lawful HTA purpose. In the resulting 20 to 30 second conversation, Ross detected a strong odour of marihuana emanating from the car. Ross saw no smoke and could not say whether the odour was burnt or unburnt. He told P that he smelled marihuana and P looked over his shoulders to the rear of the car and said "No, you don't". Ross testified that based on the smell, the appellants words and glance to the rear of the car, the area of Mississauga where the car was stopped and the time of night, he believed he had grounds to arrest P for possession of a narcotic. He asked P to leave the vehicle and subjected him to a cursory search. In the right front pocket of P's shorts Ross found a black leather key purse in which he found three individually wrapped pieces of what he believed to be cannabis resin. He placed P under arrest and continued to search his person and found over $4000 in cash in P's pockets. With another officer, Ross then searched the trunk, where they found shoeboxes containing wrapped bags of marihuana, a scale, rolling tobacco and a small film container that contained a small amount of L.S.D.

[144] In concluding that the trial judge had made factual findings that supported his ruling and were not vulnerable to appellate review, at least, in part on the basis of the "standard of review", Justice Rosenberg, at paragraph 12 of his ruling, agreed with the Crown that the trial judge had a valid basis for finding the officer had "reasonable and probable grounds" ("RPG") to arrest, but also had this to say in regards to the argument by P's counsel on the appeal, that the "odour of marihuana, alone" was an insufficient basis to arrest P for possession of marihuana:

12 In short, the appellant argues that the presence in a vehicle of the odour of marijuana alone shows only that at some time someone smoked marijuana in that vehicle. It does not provide reasonable grounds to believe that the present occupant of the vehicle was in present possession of marijuana. Thus, it is argued, there are no grounds for an arrest or a search based solely on the officer's perception of marijuana odour.

13 I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross' admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson at p. 202 "subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation."

14 On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.

15 However, Constable Ross did not make his arrest solely on the basis of the odour of marijuana. He testified that a combination of circumstances gave him the grounds to make the arrest.

[145] After reviewing the testimony of Ross at the trial, Justice Rosenberg states at paragraph 21:

In the circumstances, I would not interfere with the trial judge's conclusion that the officer had the requisite grounds for an arrest. The officer was, therefore, entitled to search the appellant as an incident of a lawful arrest. In R. v. Debot (1986), Martin J.A. held that where an officer has grounds for a lawful arrest, "the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows on the search." Accordingly, the initial search of the appellant, which led to the finding of the cannabis resin, was lawful and reasonable.

[146] Justice Rosenberg concludes:

26 In Caslake at p. 65, Lamer C.J.C. also held that for search to be "truly incidental to the arrest", where the justification for the search is to find evidence, "there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested." In my view, the search of the trunk of the vehicle fell within the scope of the common law power. The appellant was arrested shortly after being removed from the vehicle that he was driving. A lawful search of his person disclosed a quantity of cannabis resin and a large amount of money. He had been stopped in an area known to the officer for drug trafficking. In those circumstances, there was a reasonable prospect that the officer would find more drugs or narcotics in the vehicle.

Analysis & Findings

Was the Initial Vehicle Stop Arbitrary?

[147] I find from the testimony of Arosan Kirupanithy, who testified that he was and employee of a family-owned business, Scarborough Car and Truck Rental, that there was some arrangement by which he rented the car Mr. Longstaff was driving to a person other than Mr. Longstaff, probably on 8 August 2011, although he is uncertain on his dates.

[148] Mr. Kirupanithy testified, although again he was not clear on this, in my view, that the licence plate on the car, and the car itself, were both owned by his mother, and that she or perhaps Scarborough Car and Truck Rental had purchased the car from East Side Chevrolet but that the paper work was not completed at the time of the rental, so the plates on the car did not belong to the car.

[149] Although I agree with the defence submission that the Crown evidence, through Mr. Kirupanithy, leaves much to be desired, I find this does not undermine the initial lawfulness of the traffic stop in this case.

[150] I therefore find as a fact that the initial vehicle stop by officers Keegan & Doyle was justified as a HTA-stop, on the basis of what would appear to be the lack of diligence by Scarborough Car and Truck Rental, which, to the degree that I can discern from Mr. Kirupanithy's testimony, had rented a car that did not have proper plates attached.

[151] I therefore also find as a fact that, on the basis of the uncertainty regarding the "unattached" plates and the clear "impounding" provisions of s. 221 of the Ontario HTA, the case law in Ontario permitted officers Keegan, Doyle and Kravchenko to impound and to conduct a limited "inventory" search of the vehicle.

[152] I also find, and agree with the defence submission on this point, that this uncertainty had nothing to do with Mr. Longstaff.

[153] I also agree with the defence submission that the Crown's evidence and the tendering of what purports to be the original first page of a rental agreement, Exhibit 4, dated after Mr. Longstaff was stopped and arrested does not establish with any clarity the terms of the rental agreement or whether Mr. Longstaff' did or didn't have a right to drive the rental car when he was stopped by the officers.

[154] I am not satisfied, on Mr. Kirpanithy's evidence, that the document tendered even was the rental agreement entered into for the rental car.

[155] I therefore find, as submitted by the defence, that Mr. Longstaff's status, as the driver of the rental vehicle at the time of the stop can in no way be impugned by what I find to be the sloppy practices and unacceptable paper work surrounding the purchase, rental and plating of the of car Mr. Longstaff was driving at the time of the traffic stop on 9 August 2011.

[156] I therefore further find, as submitted by the defence, that in the consideration and weighing of the evidence in the balance of this case, all of the Charter protections that would, in the normal course, accrue to a citizen driving a lawfully rented vehicle, apply to Mr. Longstaff when he was stopped on 9 August 2011.

[157] Having reviewed the evidence, I do not conclude that the stop of the vehicle was arbitrary, and therefore I find that the defence has not established that Mr. Longstaff's s. 9 right was breached at this juncture in the narrative.

Was the continuing search of the vehicle for marihuana lawful?

[158] In my view, the officers did have a limited right to search and inspect the vehicle for the presence of marihuana that might be in plain view, in the process of conducting a valid inventory search under s. 221 of the Ontario HTA.

[159] The evidence of the three officers does not, in my view, provide a legal basis for the more invasive search of the concealed tire-well compartment in the trunk that was carried out by Constable Doyle, and resulted in the discovery of the narcotics.

[160] The officers concede and I find as a fact, that Mr. Longstaff was not cautioned, or informed of why he was being detained, when he was initially questioned regarding the smell of the marihuana and then asked to step out of his vehicle.

[161] In my view, at this juncture, Constable Doyle had decided to do a drug investigation and the failure to caution, both during the questioning regarding the smell of marihuana, and prior to commencing the further search of the car, was a breach of Mr. Longstaff's s. 10 rights to be informed of the basis for his detention and of his right to retain and instruct counsel without delay.

[162] There is a constitutional right to remain silent in Canada when questioned by the police.

[163] It is settled law that an accused or witness can decide not to answer police questions and that such a decision cannot result in an adverse inference regarding the person being questioned.

[164] It also goes without saying that a display of nervousness by a citizen in a routine traffic stop is a common and unremarkable response and cannot be construed, where the questioning turns to marihuana, as happened here, as an admission of drug possession.

[165] In my view, what Constable Doyle described as Mr. Longstaff's "non-responsiveness" to the questions he was asked cannot enhance the prerequisite reasonable grounds to do a common law search incident to a lawful arrest.

[166] The first Crown witness, Constable Jason Keegan testified that he did not initially smell marihuana when he approached from the passenger side of the vehicle.

[167] He then testified that when he moved next to Constable Doyle, at the driver's side, to record the VIN number, he detected a "faint" smell of "unburnt" marihuana. When asked to elaborate by the Crown he testified that even a very faint smell of marihuana was distinctive very recognizable "skunky" odour, from his experience.

[168] He testified that this background knowledge came from a "very brief" introduction to the smell of marihuana at police-college.

[169] He never explained why he considered the smell to be that of "unburnt" marihuana, other than to say it was "different" which I found unconvincing.

[170] The next Crown witness, Constable Brian Doyle testified that while questioning Mr. Longstaff he put his head in the car window and smelled the odour, again of "unburnt" marihuana.

[171] He told the Crown that at police-college he had witnessed a "controlled burn" and that he had also, as a police officer, been involved in more than one investigation involving "grow-ops".

[172] He testified that he observed a distinctive smell, and that he had, from the outset, after sticking his head slightly in the window, concluded that there were multiple possibilities, either that:

(1) Marihuana "had" been in Mr. Longstaff's car; that

(2) It was in the car; or

(3) Someone with marihuana had been in the car at some earlier point.

[173] Constable Doyle testified that he asked Mr. Longstaff a series of questions about his suspicions regarding marihuana but that Mr. Longstaff was "unresponsive."

[174] Constable Doyle testified that when he took the keys from Mr. Longstaff and asked him to get out of the car; he first asked him where the smell of marihuana was coming from and whether he had any marihuana in the car or trunk.

[175] Constable Doyle testified that Mr. Longstaff, as he exited the vehicle, did not directly answer, but he was nervous, his hands were shaking, and he was sweating and fidgety.

[176] In cross-examination he agreed that if he had received an affirmative answer to his questions from Longstaff regarding marihuana, those answers might have tended to incriminate Mr. Longstaff.

[177] However, he maintained that although he had suspicions about the possibility of their having been marihuana in the vehicle at some point, the purpose of having Mr. Longstaff get out of the car was really not about marihuana, but about the licence plates and his concern that the vehicle might be stolen.

[178] In examination in chief, he told the Crown that he believed he was conducting a "drug investigation" but that, prior to finding the garbage bag full of controlled substances in the tire-well, the investigation, in his words "was not yet there".

[179] When cross-examined by defence counsel as to what he meant by this, he agreed with defence counsel that he did not believe he had more than a suspicion about marihuana possession when he had Mr. Longstaff get out of the car, and he did not believe he had the grounds to arrest Mr. Longstaff for possession of marihuana at that time, and he did not believe he had grounds for a search warrant.

[180] In cross-examination he told the defence counsel that he cannot "recall" what he told the other officers about the possession of drugs or drugs in the vehicle, when he first asked Mr. Longstaff to step out of the car.

[181] I accept that, of the three officers at the scene, Constable Doyle was clearly the most experienced in marihuana detection and investigation, and I accept his conclusions, and concessions, as to his lack of a sufficient basis to arrest Mr. Longstaff when he initially detained Mr. Longstaff and required him to get out of the car.

[182] The third officer at the scene, and the third to testify at trial, Constable Kravchenko, testified that when he arrived, he stood behind the other two officers, as they were speaking to Mr. Longstaff and doing a cursory search of Mr. Longstaff's person.

[183] He initially told the Crown he smelled a "strong odour" of a just-smoked "marihuana joint" when he arrived, and this was why he searched the driver's side of the car.

[184] Shortly thereafter in his testimony, Constable Kravchenko was asked by the Crown when he first smelled marihuana.

[185] Constable Kravchenko then told the Crown that "as soon as the driver's side door was opened"; he detected "an overpowering odour of fresh, unburnt marihuana".

[186] Constable Kravchenko testified in cross that he was initially just directed to search for "ownership documents" but once the drugs were discovered in the trunk, his search of the inside car quickly became "fluid", including a search for drugs.

[187] At the conclusion of his cross-examination, Constable Kravchenko was asked by defence counsel to tell us who had made the decision to search the car for marihuana.

[188] Constable Kravchenko told defence counsel that as he and Constable Keegan stood by and observed Constable Doyle pulled Mr. Longstaff out of the vehicle and advised them that Longstaff had admitted having a "joint" in the car.

[189] Constable Kravchenko testified that Constable Doyle then directed Kravchenko and Keegan to search the car for evidence of drugs.

[190] In my view, Constable Kravchenko is not a credible witness generally, but his testimony raises specific concerns for me about what all three officers' testified were their initial grounds for suspicion that there was marihuana present in the vehicle at the time of Mr. Longstaff's removal from the vehicle.

[191] Constable Doyle's testified that his observation initially was simply a smell of "unburnt" marihuana. He later, in summarising his grounds to search, described it as "strong odour".

[192] Constable Keegan testified that initially, from the passenger side of the vehicle he smelled nothing, then later, when he came beside Doyle, he detected a "faint" smell, which when he entered the car to search was "quite a bit stronger".

[193] On the specific issue of the magnitude of the initial smell of marihuana on his arrival at the scene, I prefer the evidence of the other two officers who were closer and had a better opportunity to observe and detect the initial odour of marihuana, both outside and inside the vehicle.

[194] I reject the testimony of Constable Kravchenko as pure exaggeration.

[195] Further, on the essential question of the implications that could reasonably be drawn from what they observed outside the car and what they detected while inside the car with regard to the marihuana, I prefer the testimony of the other two officers, Keegan and Doyle and their willingness to concede in cross-examination the limitations suggested by the defence as to their certainty regarding the presence of marihuana in the car, and their view that they did not have grounds to arrest until the marihuana was discovered in the trunk.

[196] As a result I find that the two officers' testimony that I find credible clearly distinguishes the facts in this case from those cited by the Crown, Wint and Nolet in which the investigating officers, in those cases, as they searched, found a sufficient factual basis to continue their search.

[197] In my view, the facts at bar, despite the smell of marihuana, disclose that nothing was discovered on Mr. Longstaff's person, or in the interior of the vehicle, or in the initial search of the trunk, to justify Mr. Longstaff's arrest, or a more intrusive invasion of his privacy interest for a drug investigation and a search of the tire-well.

[198] Further, in my view, Mr. Longstaff's "non-responsiveness" to questioning cannot be used to justify the more invasive search.

[199] The Crown has advanced two distinct foundations for the lawfulness of the search that resulted in the discovery of the controlled substances, in the tire-well below the carpet:

(1) The search was a lawful exercise of the common-law power to search incident to a lawful arrest; or

(2) The search was a lawful HTA inventory search or a lawful search that incidentally resulted in the discovery of other evidence of criminality.

[200] In my view, on the first argument advanced by the Crown, prior to the discovery of the green garbage bag, the observations by the officers at the scene, including Mr. Longstaff's "non-responsiveness" and "nervousness" do not elevate their grounds to the extent necessary to justify a common law power to search incident to a lawful drug arrest.

[201] In my view, their evidence does not provide sufficient grounds to satisfy the test of "reasonable grounds" to arrest, as set out in the line of cases of Annett, Debot, McComber, Caslake and Polashek.

[202] Justice Martin makes very clear in Debot, that the Crown must establish two distinct conditions before the fruits of a common-law search may be admissible in evidence:

(3) The search was "incidental" to the arrest - There must be clear nexus, usually including proximity in time, to the ultimate arrest for the criminality;

(4) The arrest itself was "lawful" under the Code s. 450 (now s. 495) - "reasonable grounds" as set out in the code to arrest must exist independently and prior of the part of the search for contraband or drugs that results in the discovery of further evidence of criminality.

[203] Justice Martin makes clear that the common law arrest cannot be triggered or the search itself justified by the fruits of an unlawful search.

[204] Where sufficient grounds for the eventual arrest are not present prior to the search that discovers the tendered evidence, the search is not lawful, and the evidence is not admissible at trial.

[205] In my view, and based upon the evidence I accept from the officers, although the tire-well search may properly be described as "incident" because of proximity in time and place to the arrest, the arrest itself was not lawful.

[206] I find that the initial basis that Constable Doyle could rely upon to justify his search of the tire-well portion under the floor rug in the trunk of the car, prior to the discovery of the drugs was only a "smell" of marihuana, which Constable Doyle conceded was, on its own, grounds for suspicion but not sufficient to justify a lawful arrest, and Mr. Longstaff's nervous demeanour.

[207] As I have stated above, the addition is demeanour evidence does not in my view, provide a sufficient basis to arrest.

[208] On the admissible evidence presented in this trial, and on the findings of fact that I have made, I have concluded that there was no other evidence that Constable Doyle had at his disposal to justify the search of the tire-well, other than the odour of marihuana and therefore the search of the tire-well was not a lawful search.

[209] I therefore find that the search of the tire-well was a breach of Mr. Longstaff's s. 8 right not to be subject to an unreasonable search.

Can the Search for Drugs in the Tire Well inside the Trunk of the Car become Lawful pursuant to an inventory search after the commencment of the impounding?

[210] This is the second argument by the Crown in this case and can itself be broken down into two parts:

(1) Were the drugs discovered in the course of, and within the constraints of, the permissible and lawful regulatory search?

(2) Was there a valid "distinct" set of facts that could permit the "distinct" pursuit of the "other" and "distinct" criminality (On our facts, possession of controlled substances), while carrying out the regulatory investigation?

[211] In Wint, the contraband was found in a black bag on the floor behind the passenger seat and it was found by the trial judge to be in plainly visible in the search of the interior of the car, therefore, discoverable pursuant to a lawful inventory search.

[212] In Nolet Justice Binnie concluded that a warrantless search of a small duffle bag located in the sleeping compartment of the tractor unit was authorized by s. 63(5) of the Highway and Transportation Act ("H&TA") of Saskatchewan.

[213] S. 63(5) provides:

The Highways and Transportation Act, 1997, S.S. 1997, c. H-3.01

63 ... (5)

Where the peace officer or the person appointed by the minister has reasonable grounds to believe that a vehicle is being operated in contravention of ... a regulation made pursuant to clauses 69(1)(v) to (oo), the peace officer or person appointed by the minister may:

(a) request or signal to the person in charge of or operating the vehicle to stop the vehicle;

(b) search the vehicle for evidence of an offence; and

(c) seize anything that may be evidence of an offence.

(6) The person in charge of or operating a vehicle, when requested or signalled to stop pursuant to subsection (5), shall:

(a) immediately bring the vehicle to a safe stop;

(b) permit the peace officer or the person appointed by the minister to search the vehicle; and

(c) provide any information that the peace officer or person appointed by the minister requires in the fulfilment of his or her duties pursuant to this Act or the regulations.

66 (1) A peace officer, without a warrant, may seize any vehicle that the peace officer has reasonable grounds to believe is being driven in contravention of ... regulations made pursuant to clauses 69(1)(v) to (oo) and may retain it in his or her possession or store it in a suitable place.

[214] These provisions provide that if a police officer has reasonable grounds to believe that a transport truck is being operated in contravention of regulatory requirements, he may conduct a warrantless search of the entire truck for evidence of the offence and seize anything that may be evidence of an offence.

[215] In my view, these guidelines for a transport trucks in Saskatchewan are far broader than the regulatory right to "impound" vehicles for unattached plates that is found in the Ontario HTA, s. 221 and thus the Saskatchewan legislation permits a far more detailed search of transport trucks than a simple inventory search.

[216] As the Ontario Court of Appeal did in Wint, in Nolet, Justice Binnie also referred to the trial judge's finding of the inspecting officers' reasonable adherence to their provincial statutory powers, in that case, the trial judge's finding that the search of a small duffle bag in the cab for truck registration papers and logs, where drugs were found, was a reasonable exercise of the regulatory powers to search, in that case the broad powers to search for truck documents permitted by the Saskatchewan H&T Act.

[217] In Nicolosi, a case cited by the defence, on this point, the police took possession and control of a vehicle over the strong objections of the driver, after he had been arrested for multiple traffic violations, including driving without insurance, driving without a driver's licence and driving without a proper vehicle registration.

[218] While conducting a lawful inventory search, a constable discovered a handgun lodged between the gear shift and the two front seats.

[219] The trial judge in Nicolosi found as follows:

... I find this was not a ruse but a genuine and reasonable effort by the police to comply with what they understood was required of them by administrative procedure no. 14(b).

[220] In the Ontario Court of Appeal in Nicolosi, Justice Doherty concluded that the trial judge's findings of fact in that case resulted in a proper conclusion by the trial judge that the search had been administrative, that there had been no s. 8 breach, and dismissed the appeal.

[221] As a result of this case law, it is clear that a valid inventory search during the impounding of a vehicle that is respectful of the regulatory purpose and without an ulterior motive does not result in a s. 8 breach, where evidence of criminality is in plain view or readily ascertainable while investigating a traffic offence.

[222] However, in my view, this is not what happened in the case at bar.

[223] The Crown essentially concedes this factual ground and my findings at trial when it relegated the investigating officer's claim that they were primarily conducting an "inventory" search to an alternative argument to the main Crown submission that the search of the car, including the tire well, by the officers was a reasonable exercise of the common law power to search incident to arrest, even though the search preceded the arrest.

[224] In this case, above, I have rejected the argument that Doyle's search of the tire-well was justified as an exercise of the common law power to search incident to a lawful arrest.

[225] I have also concluded that I must reject the "inventory search" argument, as well.

[226] I find on the facts before me that the search of the tire-well in the trunk of Mr. Longstaff's rental car was not a bona fide "inventory search" but just a pretext for a more invasive and unlawful warrantless search for marihuana.

[227] Constable Doyle's notes refer to the smell of marihuana. They do not refer to the fact that the vehicle was to be impounded or towed.

[228] Constable Doyle testified that he was the only officer to search the trunk, and initially he testified that he saw nothing in the trunk.

[229] It is clear to me that the green garbage bag that contained the contraband drugs was not in "plain view" as was the black bag in Wint the small duffle bag in Nolet for the hand gun in Nicolosi.

[230] Although Constable Doyle maintained in cross that his only purpose to look into the concealed tire-well area was an inventory search, he admitted that he did find a safety kit next to the tire, but did not record this in his notes, nor did he record an inventory of what was found in the car.

[231] I therefore find on all the facts before me that the search of the tire-well in the trunk of the car was not for purposes of preparing an inventory, but rather on the suspicion that there might be drugs hidden in that location.

[232] I find that the Constable Doyle's search for drugs was neither justified nor protected by the assertion that he had a right to do an inventory search.

[233] I also find that the seizure of Mr. Longstaff's cell phone cannot be justified on either the first or second Crown arguments for the lawfulness of the search of the tire-well.

[234] Since I have found that there was no sufficient basis to lawfully arrest and search Mr. Longstaff for possession for the purposes of controlled substances, it is also my finding that the argument for the seizure of the cell phone to investigate that allegation must also fail.

[235] In my view, the cell phone could also not be seized as part of an inventory search of the vehicle.

[236] I therefore find that Mr. Longstaff's s. 8 rights to be secure against unreasonable search and seizure were breached at the roadside.

[237] Having made this finding with respect to the search and seizure of the drugs, and the phone, what should be the result under s. 24(2) of the Charter?

Application of the Exclusionary Principles Under 24(2) to the case at bar

[238] The drugs seized, as stated by the Crown are significant in quantity and also non-conscripted real evidence, as is the phone, which would provide the Crown with evidence at in this trial against Mr. Longstaff.

[239] The quantity of drugs seized, and the societal interest in trial fairness all suggest the admission of the seized items.

[240] However, in my view, the prospective considerations, as articulated by the Supreme Court of Canada in Grant and Harrison, tip the scales in favour of exclusion.

[241] In R. v. Grant 2009 SCC 32, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. 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. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[242] In the first example of the Supreme Court of Canada applying these principles to exclude, in R. v. Harrison 2009 SCC 34, released at the same time as R. v. Grant, supra, Chief Justice Beverley McLachlin was applying the principles in a case where the accused and his friend were driving a rented vehicle in Ontario, and were stopped by a police officer. The officer testified that he noticed that the vehicle had no front licence plate but it was only after activating his roof lights to pull it over, he realized that, because it was registered in Alberta, the vehicle did not require a front licence plate. Even though he had no grounds to believe that any offence was being committed, the officer testified that abandoning the detention might have affected the integrity of the police in the eyes of observers. He arrested the accused after discovering that his driver's licence had been suspended. The officer then proceeded to search the vehicle. He found two cardboard boxes containing 35 kilograms of cocaine.

[243] The Chief Justice excluded the evidence. She stated at paragraph 3 of her decision:

3 Applying the framework in Grant to these facts, I am satisfied that the balance mandated by s. 24(2) favours exclusion of the evidence. It is true that the public interest in having the case adjudicated on its merits favours the admission of the evidence, particularly in light of its reliability. On the other hand, the impact on the accused's rights, while not egregious, was significant. Bulking even larger, however, was the police misconduct involved in obtaining the evidence. This was far from a technical or trivial breach. Rather, it involved a "brazen and flagrant" disregard, to quote the trial judge, of the appellant's Charter rights against arbitrary detention and unreasonable search and seizure. These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them even where the beneficiaries are involved in unlawful activity. In the circumstances of this case, it is my view that the admission of the evidence would bring the administration of justice into disrepute. I conclude that the evidence should have been excluded pursuant to s. 24(2) of the Charter. I would therefore allow the appeal and enter an acquittal.

[244] In her reasons, the Chief Justice stated that the Charter breaches were a significant, if not egregious intrusion on the accused Charter-protected interests. She stated that the trial judge's reasoning transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence. She stated that he placed undue emphasis on the third line of inquiry while neglecting the importance of the other two, particularly the need to dissociate the justice system from flagrant breaches of Charter rights.

[245] In Harrison, the arresting officer testified at trial that he know he had no grounds to stop the vehicle under the provincial HTA legislation, but did so anyway.

[246] In her s. 24(2) Charter reasons for excluding the evidence, Chief Justice McLachlan emphasised the need for the justice system to disassociate itself from flagrant abuses such as occurred in Harrison, as admitted by the arresting officer.

[247] In the case at bar, I have an admission by Constable Doyle, to defence counsel that although he had suspicion, he did not have grounds to arrest, when he searched the concealed tire-well area in the trunk area of the car.

[248] In my findings, despite Constable Doyle's equivocal answers in cross-examination, at the trial, regarding his pursuit of an "inventory search" as his primary initial purpose in removing Mr. Longstaff from the car, I have also concluded that, both he and Keegan were both aware of the "smell" of marihuana, and pursuing a drug investigation, although they were experienced officers, and did not believe they had sufficient grounds to arrest Mr. Longstaff without more.

[249] Constable Doyle in his cross-examination by the defence, continued to maintain that he was conducting a summary "inventory" search, despite the fact that his notes suggested otherwise.

[250] Constable Doyle asked Mr. Longstaff as to where the marihuana smell came from, and seems to have interpreted Mr. Longstaff's nervousness as a tacit admission that he, Mr. Longstaff was in possession of marihuana that evening.

[251] Constables Doyle and Keegan both conceded that Mr. Longstaff was detained as soon as he was taken out of the car, and his cell phone seized, despite their assertion that they were only conducting an "inventory search".

[252] They also conceded that as they began to search the vehicle, Mr. Longstaff was not cautioned or advised of his right to speak to counsel.

[253] In my view, this makes the breach of Mr. Longstaff's Charter-protected rights more serious.

[254] In my findings I have concluded that Doyle's search of tire-well of the car, was not a bona fide "inventory search" but a ruse to seek sufficient evidence to arrest Longstaff, not justified either as a search incident to a lawful arrest, or as an inventory search.

[255] In my view, this makes the breach of Mr. Longstaff's rights more egregious.

[256] In my findings I have also concluded that the third officer, who testified, Kravchenko, was not credible on the magnitude of the smell or odour that he was able to detect outside the car.

[257] In my view this was an example, in this case, of an officer misleading the court regarding his observations at the roadside, prior to the discovery of the drugs, a crucial stage in the narrative, and an important portion of the evidence for which I was required to make findings that would impact the outcome of the case.

[258] In my view, this raises concerns about officer training and professionalism when testifying in a court of law.

[259] I have therefore concluded that this totality of factors taken as a whole, and seen through the prism of the reasoning found in Grant and Harrison requires exclusion of the evidence.

[260] As a result, in my view, the admission of the seized evidence in this case would bring the administration of justice into disrepute, and therefore must be excluded.

Released: 16 August 2013

Signed: "Justice Paul H. Reinhardt"