R. v. Mellenthin, [1992] 3 S.C.R. 615

Theodore Mellenthin Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Mellenthin

File No.: 22508.

1992: May 29; 1992: November 19.

Present: Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for alberta

Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Motorist stopped in highway spot check program ‑‑ No cause for detention other than spot check program ‑‑ Motorist questioned and vehicle searched ‑‑ Whether motorist detained in the check stop ‑‑ Whether unreasonable search by the police ‑‑ If so, whether the admission of the evidence would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2) ‑‑ Highway Traffic Act, R.S.A. 1980, c. H‑7, s. 119.

The police directed appellant's vehicle into a check stop set up as part of a program to check vehicles. One of the officers shone a flashlight in the interior of the appellant's vehicle. This was an appropriate action to ensure the safety of the officers conducting the check point. The flashlight inspection revealed an open gym bag on the front seat. The officer asked what was inside the bag, was told food and shown a paper bag with a plastic sandwich bag in it. When the officer noticed empty glass vials, of the type commonly used to store cannabis resin, he asked the appellant to get out of the car, searched the car and found vials of hash oil and some cannabis resin cigarettes. The appellant later gave an incriminating statement at the police detachment.

The trial judge on a voir dire excluded both the physical evidence of the drugs and the statement and acquitted the accused. The Court of Appeal overturned the acquittal and ordered a new trial. At issue here was (1) whether appellant was detained in the check stop, (2) whether there was an unreasonable search by the police, and (3) if so, whether the admission of the evidence would bring the administration of justice into disrepute.

Held: The appeal should be allowed.

Appellant was detained and accordingly could reasonably be expected to feel compelled to respond to questions from the police. A person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights. This was not the situation here. Appellant did not consent either to the questions pertaining to the gym bag or to the physical search.

A visual inspection of the interior of the vehicle would not in itself constitute a search. At night the inspection can only be carried out with the aid of a flashlight and is necessarily incidental to a check stop program carried out after dark.

The subsequent questions pertaining to the gym bag were improper. The officer had no suspicion that drugs or alcohol were in the vehicle or in appellant's possession when the questions were asked. Appellant's words, actions or manner of driving showed no sign of impairment. The primary aim of check stop programs, which result in the arbitrary detention of motorists, is to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of either conducting an unfounded general inquisition or an unreasonable search.

The production of the gym bag and its contents did not come with appellant's consent. An arbitrary detention occurred as soon as appellant was pulled over. It can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. In those circumstances the Crown must adduce evidence that the person detained had indeed made an informed consent to the search based upon an awareness of his or her rights to refuse to respond to the questions or to consent to the search. There is no such evidence here. The appellant felt compelled to respond to the police questions and as a result the search was not consensual.

The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of a search. That search, because it was made without the requisite foundation of reasonable and probable grounds, was unreasonable and infringed s. 8 of the Canadian Charter of Rights and Freedoms.

The trial judge acted reasonably in concluding that the evidence (the marijuana) would not have been discovered without the compelled testimony (the search) of the appellant. To search a person who is stopped at a check stop, without any reasonable or probable cause, goes far beyond the purpose and aim of those stops and constitutes a very serious Charter breach. The rights granted to police to conduct check stop programs or random stops of motorists should not be extended.

The unreasonable search carried out here is the very kind which the Court wished to make clear is unacceptable. A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted.

The fairness of the trial would be affected if check stops were accepted as a basis for warrantless searches and the evidence derived from them were automatically admitted. To admit evidence obtained in an unreasonable and unjustified search carried out while a motorist was detained in a check stop would adversely and unfairly affect the trial process and most surely bring the administration of justice into disrepute.

Even absent bad faith on the part of the police, the breach was serious. The search, conducted as an adjunct to the check stop, was not grounded on any suspicion, let alone a reasonable and probable cause. It is the attempt to extend the random stop programs to include a right to search without warrant or without reasonable grounds that constitutes the serious Charter violation.

Cases Cited

Considered: R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425; referred to: Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2; R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621; R. v. Greffe, 1990 143 (SCC), [1990] 1 S.C.R. 755; R. v. Wise, 1992 125 (SCC), [1992] 1 S.C.R. 527; R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

Highway Traffic Act, R.S.A. 1980, c. H‑7, s. 119.

Highway Traffic Act, R.S.O. 1980, c. 198.

APPEAL from a judgment of the Alberta Court of Appeal (1991), 1991 ABCA 155, 80 Alta. L.R. (2d) 193, 117 A.R. 165, [1991] 5 W.W.R. 519, 2 W.A.C. 165, setting aside acquittal by Conrad J. and ordering a new trial. Appeal allowed.

Harry M. Van Harten, for the appellant.

M. David Gates and Wesley W. Smart, for the respondent.

//Cory J.//

The judgment of the Court was delivered by

Cory J. -- Can the police, conducting a random roadside check stop, in the absence of any reasonable grounds for doing so, interrogate a driver about matters other than those related to the vehicle and its operation and search the driver and the vehicle? That is the question to be resolved in this appeal.

I. Factual Background

On September 4, 1988, Constable Watkins and two other members of the Royal Canadian Mounted Police were operating an "Alberta Check Stop" as part of a program to check vehicles. At about 12:30 a.m. the appellant's vehicle was directed into the check stop. At this time, there was nothing unusual observed either with regard to the manner in which the appellant was driving the vehicle or the appellant himself. Constable Watkins observed that the appellant was not wearing his seat belt and asked him for his driver's licence, vehicle registration and insurance papers. The appellant complied with the request without any difficulty. At this point, the officer shone his flashlight around the interior of the vehicle. He did this to check whether drugs were present in the vehicle and "for the safety of the officers conducting the check point". He saw neither liquor nor drugs but did see an open gym bag on the front seat beside the appellant. Inside the gym bag was a small brown bag with a plastic sandwich bag inside it.

Constable Watkins asked what was inside the bag and in response the appellant pulled the bag open and said there was food inside. The officer saw a reflection of what he thought was glass from inside the plastic bag. For the first time he became suspicious and "felt that there could have been narcotics inside". The officer asked the appellant what was in the brown bag and the appellant pulled the baggie out. It contained empty glass vials. The constable testified that because these types of vials were commonly used to store cannabis resin he considered that he had reasonable and probable grounds to believe that narcotics were present.

Constable Watkins asked the appellant to get out of the car. He searched the brown bag and found it contained some cannabis resin. He arrested the appellant for possession of a narcotic and properly instructed him as to his rights. The officer searched the car and found it contained vials of hash oil and some cannabis resin cigarettes. The appellant gave an incriminating statement a little later at the R.C.M.P. detachment.

II. Courts Below

A. Alberta Court of Queen's Bench

The trial judge after a voir dire excluded both the physical evidence of the drugs and the statement. She noted that there was nothing in either the manner of driving nor the actions of the appellant which could give rise to any suspicion of impairment by drugs or alcohol. Nor was there any evidence of the commission of any offence except that the appellant was not wearing a seat belt. In her opinion the search began when the flashlight was shone in the car and if not then, certainly when the police asked the appellant questions. She concluded that no reasonable and probable grounds existed for conducting the search and as a result it infringed s. 8 of the Canadian Charter of Rights and Freedoms. She found that the unreasonable search constituted a deliberate breach of the appellant's Charter rights by the police.

She determined that to admit the evidence obtained as a result of a deliberate Charter breach would bring the administration of justice into disrepute. The trial judge recognized that the narcotics found in the search were real evidence. However, she concluded that the cannabis together with all the evidence which was obtained as a result of such an unreasonable and illegal search should be excluded and acquitted the appellant.

B. Alberta Court of Appeal (1991), [1991 ABCA 155](https://www.canlii.org/en/ab/abca/doc/1991/1991abca155/1991abca155.html), 80 Alta. L.R. (2d) 193

(1) The majority

The majority was of the view that if the shining of the flashlight in the interior of the car constituted a search it was not intrusive and was certainly justifiable for the protection and safety of the police officers. However, they were of the opinion that the questions posed by the officer with regard to the gym bag resulting in its production did constitute an unreasonable search and thereby infringed s. 8 of the Charter. The majority decided that there was no evidence to support the finding that the officer had deliberately, knowingly or flagrantly violated the rights of the appellant. Further, they were of the view that the real evidence of the narcotics existed prior to the search and that it was not created as a result of the breach of s. 8 of the Charter. In these circumstances, they held that the trial judge had erred in excluding the evidence. They concluded that its admission would not have brought the administration of justice into disrepute.

(2) The minority

Kerans J.A. found that the first question regarding the contents of the bag need not necessarily be classified as a search. Nonetheless, he concluded that the line of questions concerning the contents of the bag, the appellant's response offering the bag to the officer, and the officer's looking in it amounted to an unreasonable search unless it was undertaken with the consent of the appellant. However, he agreed with the trial judge that the accused did not consent to the search but rather felt compelled to respond to the officer's questions. He concluded that the search was unreasonable since the examination of the gym bag was neither authorized by statute nor reasonably incidental to the detention of the vehicle in the check stop. With regard to the admissibility of the evidence he emphasized that an appellate court should not substitute its view of the facts for that of the trial judge unless the trial judge was clearly in error. He was of the opinion that it could not be said that there was clear error in this case, and would have dismissed the appeal.

III. Issues

There are in my view three questions that must be resolved in order to determine the result of this appeal.

(1) Was the appellant detained in the check stop?

(2) Was there an unreasonable search conducted by the police?

(3) If the search conducted was unreasonable, would the admission of the evidence bring the administration of justice into disrepute?

IV. Analysis

A. Was the Appellant Detained in the Check Stop?

It was decided in Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2, that stopping a vehicle as a part of a R.I.D.E. Program constituted detention. The case arose prior to the passage of the Charter, however the reasoning was relied upon in cases that did take into account Charter rights. In R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, and R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, it was determined that the detention of the motorist in a random check stop constituted an arbitrary detention which infringed s. 9 of the Charter. However, these decisions held that the random stops were justified pursuant to s. 1 as a means of combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation of vehicles on our highways. In those cases, it was deemed appropriate for the officers conducting a check stop program to pose questions as to the mechanical condition of the vehicle and to require the production of a driver's licence, certificate of ownership and proof of insurance. This does not make a check stop any less a manifestation of police authority. For even the most experienced and sophisticated driver it will create an atmosphere of some oppression. This follows not simply from a consideration of the reasons in Deadman, Hofsky and Ladouceur but is a matter of common sense. There can be no question that the appellant was detained and, as a result, could reasonably be expected to feel compelled to respond to questions from the police.

It is true that a person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights. This was certainly not the situation which was present in this case. Here it cannot be said that the appellant consented to either the questions pertaining to the gym bag or to the physical search. These are factors that will be of significance in the subsequent analysis.

B. Was There a Search and Was it Unreasonable?

The Crown (the respondent) contends that what occurred in this case did not constitute a search. First, it was said that a visual inspection of the interior of the vehicle would not in itself constitute a search. Further it was submitted that the questions posed by the police officers pertaining to the gym bag were authorized by the provisions of s. 119 of Alberta's Highway Traffic Act, R.S.A. 1980, c. H-7. That section provides:

119 A driver shall, immediately upon being signalled or requested to stop by a peace officer in uniform, bring his vehicle to a stop and furnish any information respecting the driver or the vehicle that the peace officer requires and shall not start his vehicle until he is permitted to do so by the peace officer.

It was argued that the questions came within the ambit of the words "any information respecting the driver or the vehicle that the peace officer requires". These words, it was said, indicate that the objectives of the check stop program in Alberta are wider than those referred to in Ontario's Highway Traffic Act, R.S.O. 1980, c. 198, considered in Ladouceur, supra. I cannot agree with this submission.

There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can I place any particular significance upon the fact stressed by the appellant that the police only made use of a flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as a necessary incident to the check stop routine.

However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.

The respondent next argued that the production of the gym bag and its contents came about as a result of the consent of the appellant. Once again, I cannot accept this submission.

It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he was pulled over. As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. In those circumstances it is incumbent upon the Crown to adduce evidence that the person detained had indeed made an informed consent to the search based upon an awareness of his rights to refuse to respond to the questions or to consent to the search. There is no such evidence in this case. In my view the trial judge was correct in her conclusion that the appellant felt compelled to respond to the police questions. In the circumstances it cannot be said that the search was consensual.

The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of a search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. 8 of the Charter.

C. Should the Evidence Obtained as a Result of the Unreasonable Search Be Admitted?

A decision to exclude evidence on the grounds that it would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter raises a question of law (see R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at p. 275). It has also been held that generally a deferential approach will be adopted when reviewing a decision of a provincial appellate court dealing with the exclusion of evidence pursuant to s. 24(2) of the Charter. In R. v. Greffe, 1990 143 (SCC), [1990] 1 S.C.R. 755, Lamer J., as he then was, wrote at p. 783:

I note that it is not the proper function of this Court, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of courts below in respect of s. 24(2) of the Charter and substitute its opinion for that arrived at by the Court of Appeal: see R. v. Duguay, 1989 110 (SCC), [1989] 1 S.C.R. 93, at p. 98.

See also R. v. Wise, 1992 125 (SCC), [1992] 1 S.C.R. 527.

However it is significant that in R. v. Collins, supra, Lamer J., also cautioned the provincial courts of appeal that they should not too readily interfere with the decision of trial judges on s. 24(2) issues. On p. 283 of that decision the following appears:

In effect, the judge will have met this test if the judges of the Court of Appeal will decline to interfere with his decision, even though they might have decided the matter differently, using the well-known statement that they are of the view that the decision was not unreasonable.

Here it does not appear that the trial judge made either an unreasonable finding of fact or an error in law. Nevertheless, the majority of the Court of Appeal overruled her decision. With respect I am of the view that the majority erred in this regard and too readily interfered with the findings of the trial judge.

R. v. Collins, supra, indicates that three sets of factors must be taken into account in determining whether evidence should be admitted pursuant to s. 24(2). First, there are those factors which go to determining whether the admission of the evidence will affect the fairness of the trial. This is undoubtedly the most important issue and should be given the greatest weight. Second are those factors which demonstrate either the seriousness or the insignificance of the violation. Third are those factors which are concerned with the effect of the exclusion of the evidence on the reputation of the administration of justice. It is appropriate to now consider some of those factors.

(1) Factors Affecting the Fairness of the Trial

Collins, supra, made it apparent that the admission of real evidence which was obtained in a manner that violated the Charter will rarely operate unfairly in the conduct of the trial. There can be no doubt that in this case the cannabis which was discovered constituted real evidence. However, it must also be remembered that in R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3, it was said at p. 16 that:

. . . the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair.

The trial judge recognized these competing principles. She found that the evidence, although real, could never have been discovered but for the illegal search. The majority of the Court of Appeal disagreed with this finding. It was their view that since the appellant transported the drugs in an open gym bag on the front seat of his car, he could not have been concerned about his own privacy nor was he anxious to avoid detection. They concluded that so long as a person remains in possession of a prohibited substance it is not unlikely that the substance will be discovered. Be that as it may, it cannot be denied that the conclusion of the trial judge was a reasonable one. Had it not been for the illegal search, the drugs could not have been found.

In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425, at pp. 552, 553 and 555, Justice La Forest pointed out that in the case of real evidence, there was a distinction to be drawn between evidence which the accused had been forced to create, and evidence which the accused had been forced to merely locate or to identify. He carefully distinguished between independently existing evidence that could have been found without compelled testimony and independently existing evidence that would have been found without compelled testimony. He put his position this way:

I would first of all note that I do not believe that in drawing this distinction, Lamer J. intended to draw a hard and fast line between real evidence obtained in breach of the Charter and all other types of evidence that could be so obtained. . . . I think this clearly indicates that what Lamer J. had in mind was the much broader distinction between evidence which the accused has been forced to create, and evidence which he or she has been forced to merely locate or identify.

. . . where the effect of a breach of the Charter is merely to locate or identify already existing evidence, the case of the ultimate strength of the Crown's case is not necessarily strengthened in this way. The fact that the evidence already existed means that it could have been discovered anyway.

The one qualification that must be made to the above has to do with the difference between independently existing evidence that could have been found without compelled testimony, and independently existing evidence that would have been found without compelled testimony. As I have acknowledged at several points in these reasons, there will be situations where derivative evidence is so concealed or inaccessible as to be virtually undiscoverable without the assistance of the wrongdoer. For practical purposes, the subsequent use of such evidence would be indistinguishable from the subsequent use of the pre-trial compelled testimony. [Emphasis in original.]

In the case at bar, the trial judge could certainly not be said to have acted unreasonably in concluding that the evidence (the marijuana) would not have been discovered without the compelled testimony (the search) of the appellant. To search a person who is stopped at a check stop, without any reasonable or probable cause, goes far beyond the purpose and aim of those stops and constitutes a very serious Charter breach. As noted earlier, check stops infringe the Charter rights against arbitrary detention. They are permitted as means designed to meet the pressing need to prevent the needless death and injury resulting from the dangerous operation of motor vehicles. The rights granted to police to conduct check stop programs or random stops of motorists should not be extended. This indeed was emphasized in R. v. Ladouceur, supra, where the following appears in the reasons of the majority at p. 1287:

Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter. [Emphasis added.]

The unreasonable search carried out in this case is the very kind which the Court wished to make clear is unacceptable. A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted.

It would surely affect the fairness of the trial should check stops be accepted as a basis for warrantless searches and the evidence derived from them was to be automatically admitted. To admit evidence obtained in an unreasonable and unjustified search carried out while a motorist was detained in a check stop would adversely and unfairly affect the trial process and most surely bring the administration of justice into disrepute.

It follows that the conclusions of the trial judge in this regard are neither unreasonable nor an error in law. It is clear that the admission of the evidence would render the trial unfair and there is no need to consider the other factors referred to in Collins, supra. See R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at pp. 207-8. That is really a sufficient basis for dealing with the issue.

Yet in light of the extent of the argument that was submitted with regard to the seriousness of the Charter violation some brief comments on that subject might be appropriate.

(2) Seriousness of the Violation

The trial judge was not unreasonable in her conclusion that the breach was a serious one. It is true that there was not, in this case, any bad faith on the part of the police. They conducted the search, before the reasons of this Court in Ladouceur had been released. Nonetheless, the violation must be considered a serious one. It was conducted as an adjunct to the check stop and was not grounded on any suspicion, let alone a reasonable and probable cause. It is the attempt to extend the random stop programs to include a right to search without warrant or without reasonable grounds that constitutes the serious Charter violation.

V. Conclusion

The appellant was detained at a check stop. While he was so detained, he was subjected to an unreasonable search. To admit the evidence obtained as a result of an unreasonable search of a motorist in a check stop would render the trial of the appellant unfair. Admitting such evidence would thus bring the administration of justice into disrepute. The evidence derived from the unreasonable search cannot be admitted.

VI. Disposition

In the result, the appeal will be allowed, the order of the Court of Appeal directing a new trial set aside, and the acquittal of the appellant restored.

Appeal allowed.

Solicitors for the appellant: McCormick, Van Harten, Calgary.

Solicitor for the respondent: The Department of Justice, Edmonton.