Court File and Parties

Ontario Court of Justice

Date: 2016-03-14

Court File No.: Brampton 15-5757

Between:

Her Majesty the Queen

— and —

Anthony Benimadhu

Before: Justice Louise A. Botham

Heard: February 12, 2016

Reasons for Judgment Released: March 14, 2016

Counsel:

• Jonathan Geiger, for the Crown
• William Caven, for the accused Anthony Benimadhu

Judgment

BOTHAM J.:

[1] Mr. Benimadhu is charged with possession of marijuana arising from a search of his car on April 12, 2015 pursuant to the Ontario Liquor Licence Act, R.S.O. 1990, Chapter L.19.

[2] Mr. Benimadhu was driving his car that day on Steeles Avenue in Brampton, Ontario. Although he first came to the attention of Cst. Mackin as a result of what the officer described as an aggressive lane-change, he was actually pulled over by the officer for the offence of littering when he was seen to discard a cigarette from the driver's window.

[3] In speaking to Mr. Benimadhu, the officer smelt an odour of burnt marijuana and alcohol inside the vehicle. Upon asking Mr. Benimadhu about the smell, he was told that they had just smoked and that the alcohol in the cup holder was his passenger's. Cst. Mackin then told Mr. Benimadhu and the passengers that the car would be searched for alcohol.

[4] The front and rear seats of the car were searched. No alcohol was found. However, when Cst. Mackin opened the trunk of the car, he saw a shopping bag from Bed, Bath & Beyond. He opened the bag and located marijuana inside a clear zip-locked bag. It weighed approximately 100 grams.

[5] He held up the clear bag and advised all of the occupants that they were under arrest for possession of drugs. Mr. Benimadhu volunteered that the drugs were his. He was arrested and placed in Mackin's car. A further search was conducted but nothing else was located. The defendant was released from the scene on a promise to appear.

[6] The applicant seeks an order under s. 24(2) of the Charter excluding the marijuana from evidence at this trial on the grounds that it was obtained in breach of his s. 8 rights.

[7] It is conceded that the search of his car was a warrantless search. The Crown bears the onus of establishing that the search was nonetheless Charter compliant.

The Liquor Licence Act Search Power

[8] Although Cst. Mackin testified that he smelt what he believed to be burnt marijuana in the defendant's car, he was clear that he did not believe then or now that he had the ability to search the car based on that odour. Crown counsel similarly does not rely on the suspected odour of marijuana to justify the search; rather, the lawfulness of the seizure is founded on the search power set out in s. 32 of the Liquor Licence Act.

[9] Section 32 of the Liquor Licence Act (LLA) states that:

(1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32 (1).

(2) Subsection (1) does not apply if the liquor in the vehicle,

(a) is in a container that is unopened and the seal unbroken; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. R.S.O. 1990, c. L.19, s. 32 (2).

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. R.S.O. 1990, c. L.19, s. 32 (5).

[10] Both parties agree that the officer had authority to search the front and rear passenger area of Mr. Benimadhu's vehicle under s. 32(5) of the LLA. The issue is whether the further search of the defendant's trunk was lawful. The defence submits that since the contents of the trunk would not have been reasonably available to the occupants, the presence of alcohol in the trunk would not have been unlawful and therefore there existed no lawful power to search.

Scope of the LLA Search Power

[11] There is surprisingly little direct appellate authority on this issue. The Crown relies on the summary conviction appeal decision of R. v. J.F. where McKinnon, J. held that the search authorized by s. 32(5) is not restricted to a search for 'unlawfully kept' liquor, rather, it permits a search for liquor generally. In that case he was reviewing and rejecting the trial judge's finding that the LLA did not authorize the search of a closed backpack found inside a vehicle since it could not reasonably be thought to contain 'unlawfully kept liquor', given the exception set out in 32(2), relating to alcohol kept in a closed container.

[12] I see merit in the applicant's position; however, as I am not aware of any contradictory appellate authority, I am bound by the reasoning of McKinnon J. in J.F.

[13] The applicant had referenced the cases of R. v. Mpamugo and R. v. Dreyer in support of his argument that the search of the trunk itself was unlawful. In Mpamugo, the trial judge found that the statutory authority to search a vehicle pursuant to the LLA did not include the authority to search areas where alcohol could not conceivably be stored, namely under the floor mat. Similarly in Dreyer, the British Columbia Court of Appeal (BCCA) held that the authority to search a vehicle containing unlawfully stored alcohol did not extend to the search of items for which the officer had no basis for believing might contain liquor.

[14] In my view neither of these cases supports the restrictions on the LLA search powers asserted by the applicant. However, they do assist on the issue of the lawfulness of this particular search.

[15] Accepting that the LLA search powers are not limited to areas where unlawfully stored alcohol could reasonably be found and that therefore the officers were entitled to search the trunk, it is still my view that the search of the Bed, Bath & Beyond bag was not authorized by law.

[16] Cst. Mackin testified that a portion of the rear seat could fold down, allowing access to the trunk. The seat was not folded down at the time; however, the officer testified that he had observed the rear passenger look behind after they had driven past the officer's unmarked cruiser. He speculated that the passenger, realizing that there was an unmarked car on the road, might have secreted alcohol in the trunk. It was on that basis that he justified his search of the bag in the trunk.

[17] As I indicated during submissions, I am skeptical of his evidence on that point. Given that the officer was some 75 metres behind the car I am hard pressed to accept that he could make any meaningful observations of the occupants in the car. Nor do I accept that at the time he was searching the car, he had such belief.

[18] The officer testified that he looked in the shopping bag to see if it contained alcohol. The officer was asked in cross-examination if he felt the outside of the bag to see if there appeared to be bottles or cans inside; he said he did not. He simply picked it up, felt the weight and looked inside.

[19] The bag of marijuana is an exhibit at this trial. I had an opportunity to examine it. I am told it weighs approximately 100 grams. Having lifted the bag, I can say that it is very light. The bag is square in shape and when touched, it is clear that the bag contains a dried substance, not unlike dried leaves.

[20] There would be no reason in my view for anyone to think that it was likely that there would have been alcohol in that bag. The weight would have been inconsistent with the presence of bottles or cans of liquid. The shape of the package in the bag was equally inconsistent with the presence of a bottle or can.

[21] There is no issue at this trial that the search of the defendant's vehicle was initially lawful by virtue of the authority of 32(5) of the Liquor Licence Act. However, the power to search under that statute is not unlimited. At the point that the officer searched a bag where there was no reason to believe it contained alcohol and in fact where it would have been clear by virtue of the shape and weight of the items in the bag that it was not alcohol, the officer had exceeded the lawful scope of the search.

Application of the R. v. Grant Test

[22] In considering the impact of these breaches on the admissibility of the evidence proffered by the prosecution, I have applied the three factors set out by the Supreme Court of Canada (SCC) in R. v. Grant.

First Factor: Seriousness of Charter-Infringing State Conduct

[23] The first factor to consider is the seriousness of the Charter-infringing state conduct. In this case the initial detention was lawful, as the driver had thrown a cigarette out of his car, thereby giving the officer grounds to stop his car under the Highway Traffic Act and ticket him. Upon observing the open alcohol, the officer was entitled to search the car for alcohol. However, the officer was well aware of the scope of his search powers under the LLA and he deliberately went beyond it. He justified his search of the trunk on his belief that the rear passenger might have secreted alcohol in the trunk, something which I have found to be self-serving and unlikely to be true.

Second Factor: Impact on Charter-Protected Interests

[24] The second inquiry requires the court to evaluate the extent to which the Charter-offending conduct actually undermined the interests which the Charter right seeks to protect. Accepting that there is a lower expectation of privacy in a motor vehicle than in a dwelling house, a driver still has a privacy interest in his vehicle and I think a somewhat heightened interest in the trunk of the vehicle which is hidden from view. I am satisfied that there was a significant impact on the accused's Charter-protected interests which supports an order for exclusion.

Third Factor: Society's Interest in Adjudication on the Merits

[25] The third line of inquiry, namely society's interest in having cases adjudicated on their merits, favours the admission of the narcotics which is real evidence and essential to the prosecution's case.

Balancing the Factors

[26] Ultimately the determination of whether or not the long-term reputation of the administration of justice is better served by the admission or exclusion of evidence requires a balancing of all three factors in the context of each particular case.

[27] Although the officer's actions in detaining the driver and then searching the car were initially lawful, one has to wonder about the decision to exercise the powers as he did. He pulled over the defendant not because he was concerned about a highway traffic infraction such as speeding but because he saw him throw a cigarette out the window, so he determined he would charge him for littering.

[28] Although he was entitled to search the vehicle once the open glass of alcohol was located, he did so without even asking if there was any other alcohol in the car. Additional officers were brought in to assist with the search. The driver and passengers were removed from the car and detained at the side of Steeles Avenue until the search was completed. When no alcohol was found in any location where it could reasonably be assumed to be accessible to the occupants of the car, he proceeded to search the contents of a bag found inside the trunk.

[29] I found aspects of Cst. Mackin's evidence to be self-serving and less than credible, especially regarding his reason for believing there might be alcohol in the trunk of the car. In my view, that further moves the state conduct in this case towards the spectrum of misconduct favouring exclusion.

[30] The applicant faces a charge of possession of marijuana. Exclusion of the drugs will end that prosecution. However when I balance that against the police conduct in this case and the significant impact of their actions on the accused's protected interests, I am persuaded that inclusion of this evidence when viewed from a long-term perspective would have a more negative effect on the reputation of the administration of justice than its exclusion. There will be an order excluding evidence of the drugs seized during the search of the car.

Released: March 14, 2016

Justice Louise A. Botham