Court Information

Ontario Court of Justice

Date: November 13, 2020

Court File No.: London 8790467B

Parties

Between:

Her Majesty The Queen

— AND —

Ryan Burke

Judicial Officer and Counsel

Before: Justice of the Peace Frank Leddy

Heard on: March 13, 2020

Reasons for Judgment released on: November 10, 2020

Counsel:

• A. Oakey — Counsel for the prosecution
• A. Jay — Agent for the defendant Ryan Burke

Judgment

JUSTICE OF THE PEACE LEDDY:

Introduction

[1] Ryan Burke was charged with one count of transporting cannabis contrary to s. 12(1) of the Cannabis Control Act. A plea of not guilty was entered and a trial was held on March 13, 2020. I reserved my decision expecting to return in a couple of weeks to render it. The pandemic suspended provincial offences courts shortly thereafter.

[2] Counsel for the defendant and the prosecutor were asked, if they wished, to submit any case law that they considered relevant to the issue on which this trial turned. Both the prosecutor and defence counsel provided fulsome submissions.

[3] At issue in this trial is the meaning of section 12(2)(b) of the Cannabis Control Act, specifically, the meaning of "packed in baggage that is fastened closed".

The Facts

[4] On June 28, 2019 at approximately 11:10 p.m. Ryan Burke was observed by a police officer on traffic enforcement duty. Mr. Burke's car was pulled off on the right shoulder, with right hand signal light activated, north bound on Putnam Road in the municipality of Thames Centre.

[5] Officer Marcus Salisbury, given the time and the remoteness of the location, stopped to do a wellness check on the driver. He found a lone male occupant in the driver's seat and identified him with a valid Ontario digital photo driver's licence.

[6] Officer Salisbury testified that there was a strong odour of burnt cannabis in the vehicle and an odour of alcohol on the defendant's breath. A field sobriety demand was made and the defendant complied and performed well. A screening device test was also passed. Consequently, no charges were laid regarding impaired operation.

[7] A search of the vehicle led to the following being found:

• A black container, about 4 to 5 inches in height and 2.5 inches in diameter, with no seal, containing 7 to 8 grams of cannabis in bud form (unground), located in the centre console (between the driver and front passenger seats)
• A smaller yellow, pill-like container, with no seal, containing 2 g of cannabis in bud form (unground), also located in the centre console
• A backpack, which contained a pipe in which the bowl of the pipe had burnt residue, found on the front passenger seat

[8] Defence counsel submitted that the cannabis found in both containers was wrapped or bundled in plastic. The officer disputed this indicating that if this was the case, he would have included it in his notes, and in any event, that is not his recollection of events.

[9] Defence counsel also submitted that for the black container, it requires depressing the top and twisting it. It was likened to "a child-proof locking mechanism". The officer disagreed with this and testified that it could be opened with one hand, not two as the defence argued.

[10] Both defence counsel and the officer agreed that the smaller pill-like container would require depressing and twisting it; however, the officer testified that it could be done with one hand while the defence argued it required both hands.

[11] In the defendant's testimony, he stated that there was cannabis in the car and he had a medical prescription for it; the black container was the container that the cannabis comes in when purchased, although the seal was broken. Further, he testified there was a backpack with a pipe and remnants of cannabis contained in the pipe.

[12] The defendant testified that the amount in the black container was 2 to 3 grams in bud form. This differs from the officer's testimony (7 to 8 grams).

[13] There is no dispute about the identity of the driver, time or place of the incident. Although the amount of cannabis is in dispute, this is not relevant to the decision that I must make.

[14] The issue before me is whether the exception under s. 12(2)(b) applies to the particulars of this matter. Specifically, can the closed containers be considered as "packed in baggage that is fastened closed" according to the intent of the section?

[15] It is clear that the other part of 12(2)(b), that is, "is not otherwise readily available" does not apply, as the cannabis was located in the centre console proximate to the driver's seat.

Legislative Intent of the Cannabis Control Act

[16] The federal government legalized the use of cannabis according to the Cannabis Act, 2018. Subsequently, provincial legislatures passed their own statutes. Ontario's Cannabis Control Act came into effect on October 17, 2018. The relevant sections to the case at bar are as follows:

Cannabis Control Act

Transporting Cannabis

12(1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception

(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.

[17] During legislative debate leading up to the passage into law of the Cannabis Control Act, in response to a question about what the government is doing to ensure road safety, then Ontario Minister of Transportation John Yakabuski said:

We also launched a very comprehensive public education campaign so that we can educate the public on the dangers of driving while under the influence of cannabis. One thing we want to make absolutely clear to the people out there – there are misconceptions, but we want to make one think absolutely clear: Impaired is impaired, whether it's alcohol or drugs. Our ministry is making sure that we have educated the people with a two pronged approach because we want our highways to be safe. It's our number one priority.

[18] The Minister's comments that it does not matter how you became impaired is reinforced by the legislation's mimicry of the language found in the Liquor Licence Act:

Liquor Licence Act s. 32

Conveying liquor in vehicle, boat

32(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

Exception

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

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

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.

[19] Disregarding the semantical differences of how motor vehicle, boat and motorized snow vehicle are defined, with respect to (2)(b), substituting "cannabis" for "liquor" in the Liquor Licence Act, would generate the exact wording of the Cannabis Control Act.

[20] This reflects a legislative intent that the restrictions with respect to cannabis are the same as those for alcohol, while operating or having care or control of a motor vehicle. It is also consistent with the Minister's comments regarding impaired driving.

[21] In Toronto (City) v. McIntosh, 2019 ONCJ 787, Justice of the Peace Cushnie considered the legislative intent of the Liquor Licence Act, distinguishing it from criminal code provisions. The criminal code provisions (see R. v. Toews, [1985] 2 S.C.R. 119), seek to prohibit "an intoxicated person who is in the immediate presence of a motor vehicle with the means of controlling it or setting it in motion" as this may be a danger to the public.

There is no such legislative intent expressed under the Liquor Licence Act. The mischief the legislation sought to prohibit is having ready access to alcohol while driving or having care or control of a motor vehicle. The legislative intent was not to prevent an intoxicated person from controlling or setting the vehicle in motion or interacting with the motor vehicle in a way that causes a danger to the public. Intoxication and danger are not the subject or focus of section 32(1) of the Liquor Licence Act unlike section 237(1) of the Criminal Code.

Toronto (City) v. McIntosh, para. 54

[22] In proving the charge under the Liquor Licence Act, the prosecutor needed to show that the person operating or having care or control of the motor vehicle had ready access to alcohol. For the purposes of the Liquor Licence Act, it is not necessary to show that the driver was impaired.

[23] R. v. F., 2015 ONSC 3068 is an appeal decision of a case involving the search of a backpack for liquor. The appeal court concurred with the trial judge that the Liquor Licence Act has a public welfare intention to prevent impaired driving:

The purpose of the legislation is, as the trial judge noted, to impede access by drivers, or persons in care and control, to liquor, and, in so doing, protect the public. This purpose would be frustrated if a driver or passenger intent on consuming liquor in a vehicle could simply keep a backpack nearby with enough of an opening to slip an open alcoholic beverage into it if necessary to conceal that beverage from the police.

R. v. F., para. 68

[24] Both the Superior Court decision in R. v. F. and my colleague's decision in Toronto (City) v. McIntosh, speak to the public welfare intent of preventing easy access to alcohol while driving. Given the Minister's remarks as well as the parallel language of the two Acts, I am convinced that the Legislature's intent is the same for the Cannabis Control Act as it is for the Liquor Licence Act. The legislation seeks to prohibit ready access to cannabis while operating or having care or control of a motor vehicle.

[25] Similar to the Liquor Licence Act, it is not necessary for the prosecutor to show that the driver was impaired. Even though, in this case, Mr. Burke passed the sobriety demands made of him, that is not material to the charge under the Cannabis Control Act.

Analysis of the Exception under s. 12(2)(b)

[26] I now turn my mind to the language of the exception under s. 12(2)(b), to determine the meaning of "packed in baggage that is fastened closed".

[27] Counsel for the defendant raised the following legal issue for determination: Was the cannabis in the centre console "packed in baggage that is fastened closed" as defined by the Cannabis Control Act? The section does not provide a definition of "packed in baggage that is fastened closed".

[28] The Supreme Court of Canada has held that statutes ought to be interpreted using an approach articulated by Elmer Driedger in Construction of Statutes, 2nd Edition, 1983, page 87:

Today there is only one principle or approach namely the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the Act.

[29] The prosecutor submits that there is no case law specific to the exception with respect to cannabis. Further she submits that the exception has been addressed in R. v. F., 2015 ONSC 3068, regarding alcohol and is instructive to this court. Defence counsel rejects this argument stating the case is only tangentially related to the Liquor Licence Act and does not address cannabis specifically.

[30] I agree with the defence counsel that R. v. F. addresses some issues which are beyond those before this court. As stated previously, R. v. F. is an appeal decision of a case involving the search of a backpack for liquor. Although the judgement is ultimately about the constitutionality of the search, and involves a partially open backpack, the case is helpful as it sheds some light on the meaning of "baggage that is fastened closed".

In my view, liquor placed inside a backpack that is unzipped by 4 to 6 inches does not meet the conditions set out in s. 32(2)(b) which requires that liquor "is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.

R. v. F., para. 66

[31] In providing reasons for the above interpretation the appeal court referenced the dictionary meaning of the word "fastened" along with the legislative intention of preventing liquor from being readily available to persons in a motor vehicle.

According to the Oxford English Dictionary, the word "fasten" means: "close or do up securely, be closed or done up in a particular manner, fix or hold in place." Including the word "fastened" indicates a legislative intention that something more than simply "closed" is required. Liquor in a partially unzipped backpack would be readily available to anyone in the car.

R. v. F., para. 67

[32] It is important to note the limitations of R. v. F. with respect to this matter. As this was a case with a partially opened backpack, it answered the question of what was not fastened closed, rather than the question of what is fastened closed. On the particulars of that case, the appeal court found that the backpack was not fastened closed. R. v. F. stated that something more than simply closed was required, but it did not delineate what that might be. Further, the backpack was accepted as baggage. The question before that court was whether the baggage was fastened closed.

[33] Counsel for the defendant submits that I should consider the containers of cannabis, as baggage that is fastened closed. Evidence provided regarding the containers was that they were closed. The defendant testified that the larger black container is the container in which the cannabis is sold. Defence and prosecution agreed that the smaller container required a twisting and pressing motion.

[34] In order to meet the exception, the containers would first have to meet the test of whether they constitute baggage and if so, are they baggage that is fastened closed. Do the containers themselves qualify as baggage?

[35] According to the Oxford English Dictionary, pertinent terms are:

Baggage, noun 1. Suitcases, bags, etc. packed for travelling; luggage.

Bag, noun 1. a receptacle of flexible material with an opening at the top. 2 a (usu. in pl.) a piece of luggage (put the bags in the trunk). b a woman's handbag

Luggage noun suitcases, bags, etc. to hold a traveller's belongings.

[36] From the ordinary meaning of the word, relatively small containers, do not constitute "baggage". Baggage, in its ordinary meaning, is something that you use to contain your possessions while traveling. Further, the phrasing "packed in", indicates something larger that would contain smaller items. For instance, small containers and items would be packed in baggage. A significantly large container could constitute baggage in its ordinary meaning (like a trunk), but that is not the situation in this case.

[37] According to the Liquor Licence Act, a liquor bottle that was closed (with its cap secure) would not suffice to meet the requirement of 32(2)(b). It would also need to be packed in baggage that was fastened closed. The bottle is the container that the product comes in and it must be also in baggage that is fastened closed. A partially used bottle, that was packed in baggage that was fastened closed, would therefore meet the exception.

[38] To access the alcohol, in addition to opening the container (in this case, a bottle) to consume it, you would also need to open a bag that was fastened closed. This would be a two-step process and would represent the legislative intent that there not be easy access to the alcohol while having care and control of a motor vehicle. Further, it should be clear that a partially opened alcohol bottle stored in the centre console would not meet the exception.

[39] Given the identical intent of the Liquor Licence Act and the Cannabis Control Act, there is no reason to believe that the legislature intended to make accessing cannabis easier than accessing liquor. The exact phrase of "packed in baggage that is fastened closed", indicates the legislature intended, for cannabis as it did for alcohol, to prevent easy access, while having care or control of a motor vehicle.

[40] The containers for the cannabis are akin to the containers (i.e. bottle or can) that the alcohol comes in. Whether the cannabis is wrapped in plastic inside the container does not obviate the requirement that the cannabis containers must also be packed in baggage that is fastened closed. Cannabis containers stored in the centre console, like alcohol, would also not meet the exception. The cannabis containers' "locking mechanisms" are immaterial, as the sections in both the Cannabis Control Act and the Liquor Licence Act do not speak to how the respective containers are closed. It would be assumed that the containers are closed in such a way as to preserve their contents, whether those contents are cannabis or alcohol.

[41] The phrase "packed in baggage" connotes a legislative intent that the product container, whether for cannabis or alcohol, would be packed in baggage. The cannabis containers do not meet the ordinary definition of baggage and although the containers are closed, even securely closed, it is clear they are not packed in baggage that is fastened closed.

Conclusion

[42] Hence, the defendant has not met his burden of proving that the exception under 12(2)(b) operates in his favour. The prosecution has proven all of the essential elements of the offence beyond a reasonable doubt. There will be a finding of guilt and conviction shall register for the offence of transporting cannabis contrary to section 12(1) of the Cannabis Control Act.

[43] The prosecutor is seeking the set fine of $175.00. I will hear submissions from defence counsel on the penalty as well as the time needed to pay.

Released: November 10, 2020

Signed: Justice of the Peace Frank Leddy