ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-90000529-0000
DATE: 20121012

BETWEEN:

HER MAJESTY THE QUEEN – and – RICH ROCHWELL

Andrew Nisker, for the Crown
Leonard Hochberg, for the Defence

HEARD: October 1-3 and 5, 2012

M.A. Code J.

REASONS FOR JUDGMENT

A. OVERVIEW

[ 1 ] The accused Rich Rochwell (hereinafter, Rochwell) is charged in a three count Indictment with possession of three separate drugs for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. There is no dispute that Rochwell was in possession of the drugs in question at the time of his arrest. The drugs and their quantities were as follows: 306.5 grams of marijuana; 47.12 grams of crack cocaine; and 5.58 grams of MDMA (more commonly known as “Ecstacy”). If the drugs are ruled to be admissible, it will be agreed at trial that they were possessed for the purpose of trafficking.

[ 2 ] The only issue in the case is the admissibility of the seized drugs. If they are excluded, Rochwell will be found not guilty. If they are admitted, Rochwell will be found guilty on all three counts. In other words, there is no defence on the merits. The lawfulness of the seizure is the only point in dispute.

[ 3 ] Rochwell seeks the exclusion of the seized drugs by way of a properly particularized Notice of Application, pursuant to ss. 8 and 24(2) of the Charter of Rights, supported by his own detailed Affidavit. The parties sensibly agreed, given the one narrow issue in dispute, to elect trial by judge alone and to have the Crown call most of its case on the Charter Motion. The accused Rochwell then testified on the Charter Motion, but not on the trial. If the seized drugs are admitted, then the parties are agreed that the Crown’s evidence on the Charter Motion will be applied to the trial, without the necessity of repeating it.

[ 4 ] The drugs were all found by the police inside a locked briefcase that was located in the back seat of the car that Rochwell was driving on the night of November 11, 2010. The s. 8 Charter issue is whether the police lawfully opened the briefcase, exercising common law powers of search incident to arrest. I reserved judgment after hearing evidence and submissions for two days. These are my reasons.

B. FACTS

[ 5 ] Most of the facts are not in dispute. In particular, the three police witnesses and the accused Rochwell all agreed on the following:

• Rochwell was driving a silver Ford SUV on the night in question. He had rented the car and he was the sole occupant of the car;

• The police stopped the car at 10:10 p.m. in a residential neighbourhood in Toronto. They activated their emergency equipment, Rochwell pulled over and the police parked behind him;

• The sole reason for the motor vehicle stop was that Rochwell had not come to a stop at an intersection marked with a stop sign. Rochwell agreed, in his testimony, that he “rolled through the stop sign”. He also agreed that the police immediately told him the reason that he was stopped, that is, because “I did not come to a full stop at a stop sign”. As a result of these agreed facts, there is no dispute that the police complied with s. 9 and s. 10(a) of the Charter at the time of the traffic stop;

• The two officers who stopped the car were P.C. Gribbon and P.C. Selby. It is agreed that P.C. Gribbon went to the driver’s side of the vehicle, that the driver’s window was partly rolled down, and that Rochwell and P.C. Gribbon had a brief conversation. Most importantly, it is agreed that P.C. Gribbon told Rochwell “that marijuana could be smelled from inside the vehicle”, that he told Rochwell to produce the marijuana, and that Rochwell then handed over a marijuana cigarette that was located in the area of the centre console. It is agreed that the cigarette was not lit or burning when it was handed over;

• At this point, P.C. Gribbon told Rochwell to exit the vehicle, walked him back to the police cruiser, placed him under arrest for simple possession of marijuana, conducted a pat search, advised Rochwell of his right to counsel, handcuffed him, and placed him in the rear seat of the police cruiser. Nothing was found during the pat search. It was now 10:13 p.m. Rochwell advised P.C. Gribbon that he would like to call his lawyer. This request was later facilitated at the police station. In light of these agreed facts, there is no question that Rochwell was lawfully under arrest for a criminal offence, at the time of the subsequent search of his briefcase, and that the police were entitled to exercise common law powers of search incident to the arrest. It is agreed that these powers, at a minimum, allowed the police to search the interior of Rochwell’s car;

• The only personal property belonging to Rochwell, seized by the police from his car, was a locked briefcase and two cell phones. It is agreed that the briefcase was on the floor of the back seat area, behind the front passenger seat. It is also agreed that the briefcase contained nothing but illegal drugs. Rochwell testified that he used the briefcase solely for the purpose of transporting various drugs;

• The police had noticed the briefcase in the backseat area at the time of the traffic stop. Once Rochwell was arrested and placed in the police cruiser, P.C. Selby returned to Rochwell’s car and searched it. She seized the briefcase and eventually opened it. She used a knife to pry open the lock as Rochwell would not provide the number code for the lock. Inside the briefcase, P.C. Selby found the drugs in various packages, as follows: two large plastic ziplock bags of marijuana on top; two small boxes, one of which contained packages of crack cocaine and one of which contained capsules of some brown granular substance; and two zippered bank deposit bags containing several smaller plastic bags of marijuana;

• At 11:04 p.m., the police left the scene of the arrest and drove to the station with Rochwell, that is, some fifty-one minutes after his arrest at 10:13 p.m.

[ 6 ] Given the significant areas of agreement in the evidence, as set out above, the points of disagreement are relatively few. In summary, there are three main areas where the evidence diverges. First, there is disagreement as to the cause of the smell of marijuana admittedly coming from the car, that is, whether it was “fresh” or “burnt” marijuana. Second, there is disagreement as to whether there was also a smell of marijuana coming from the briefcase. Finally, there is disagreement concerning the predominant purpose for the search, that is, whether the officers were searching for a gun or for marijuana. I will summarize the evidence of the four witnesses in relation to these three points.

[ 7 ] P.C. Gribbon testified that the odour of marijuana coming from inside the car was “very strong”, such that it “poured out” of the driver’s door window. He believed that the quantity needed to produce this strong odour would be “more than a joint”. When Rochwell handed over the one marijuana cigarette, P.C. Gribbon did not believe that this was the source of the odour. P.C. Gribbon also believed that the odour came from “fresh” marijuana, as opposed to “burnt” marijuana. He based the above conclusions on his experience and on his training. He was a young officer, with only four years experience at the time, but he had been involved in about ten drug investigations, had handled marijuana about eight times, and had received training at the Ontario Police College where the difference between “fresh” and “burnt” marijuana was demonstrated. He could differentiate between the two odours because “burnt” marijuana has a smoke-like smell.

[ 8 ] After he had arrested Rochwell and placed him in the police cruiser, P.C. Gribbon noticed that Rochwell became very nervous and was sweating a lot from his forehead. The officer believed that Rochwell was hiding something in the briefcase. He asked Rochwell what was in the briefcase and he asked Rochwell for the number code to open the briefcase lock. Rochwell stated that the briefcase contained “his personal property” and he refused to provide the number code for the lock. P.C. Gribbon’s main concern was that there might be a gun in the briefcase although he also believed that there could be marijuana in it. He agreed that his concern about a gun being in the briefcase was based only on the fact that there were drugs involved. He also agreed that Rochwell was in custody in the police cruiser and that P.C. Selby had the briefcase in her possession. He nevertheless had safety concerns as he did not know how a gun would be stored inside the briefcase and he did not know a lot about firearms. P.C. Gribbon’s testimony at the preliminary inquiry, as to the purpose for searching the briefcase, focused exclusively on his concern that there might be a gun in the briefcase and he made no express mention of a belief that there was marijuana in the briefcase. He agreed that he never smelled the briefcase himself. His role was to watch the accused, who was in his custody, while P.C. Selby seized the briefcase and searched it.

[ 9 ] P.C. Selby, as noted above, went to the front passenger side of Rochwell’s car after the police stopped it. The passenger side window was open a few inches and P.C. Selby confirmed that there was a strong smell of fresh marijuana coming from the car. She watched as Rochwell handed the marijuana cigarette to P.C. Gribbon at the driver’s side window. She told P.C. Gribbon that she could smell marijuana in the car. She was unsure whether the single marijuana cigarette was the source of the smell although she conceded, very fairly, that it could have been the source.

[ 10 ] As P.C. Gribbon began to remove Rochwell from the car, P.C. Selby saw Rochwell appear to reach back behind the passenger seat for his briefcase. She told P.C. Gribbon to get Rochwell out of the car. Rochwell then grabbed a bottle of water from behind the console. P.C. Gribbon’s evidence on this point was that he saw Rochwell reach back in towards the console area of the car and grab a bottle of water. The slight inconsistency between the two officers’ accounts on this point is understandable, given that P.C. Selby had a much better unobstructed vantage point from her position on the passenger side of the car.

[ 11 ] P.C. Selby observed the arrest procedures back at the police cruiser. Once Rochwell was in custody in the back seat of the cruiser, she left him with P.C. Gribbon and returned to the Ford SUV in order to search it. She regarded it as a drug investigation and she believed that she might find more drugs or drug paraphernalia. Unlike P.C. Gribbon, she did not have any officer safety concerns. She carefully searched the front compartment of the car, checking the glove box, the console, the door pockets, the visors, the floor, and under the seats. She found two cell phones and commented in her testimony that possessing multiple cell phones is a common practice for drug traffickers. She then searched the rear compartment of the car and seized the locked briefcase. The car was otherwise clean and she found nothing else of interest.

[ 12 ] P.C. Selby testified that once she was inside the car, conducting the search, the odour of marijuana was much stronger than when she first detected it, while standing outside the front passenger door. She testified that it was “fresh” marijuana, and not “burnt” marijuana, as there was no smell of smoke. She determined that the strong odour was definitely coming from the locked briefcase, once she seized it, as a result of raising it up to her nose and smelling it. She smelled the briefcase both inside and outside the car. Once she removed the briefcase from the car, it no longer smelled of marijuana inside the car. It was obvious to her that the briefcase was the source of the odour.

[ 13 ] P.C. Selby based these conclusions on her experience and on her training. Like P.C. Gribbon, she was a young officer with only four years experience. However, she had worked in 42 Division, where there are a lot of marijuana “grow-ops”. She had been involved in about ten drug investigations, had been inside marijuana “grow-ops” on four or five occasions, and had handled marijuana numerous times. She knew the distinctly sweet and pungent smell of “fresh” marijuana and she could distinguish it from “burnt” marijuana, which is similar except that it has “smokey overtones”. She had dealt with “burnt” marijuana many times and had received training at the Ontario Police College in the difference between “fresh” and “burnt” marijuana.

[ 14 ] Once P.C. Selby had seized the briefcase, and had come to believe that it contained marijuana, she tried to open it. It was locked with a three digit number code and she could not unlock it. She went back to the police cruiser, cautioned Rochwell about the right to remain silent, and asked him for the number code. She told him that she smelled marijuana coming from the briefcase and that she intended to open it. Rochwell replied that the briefcase contained “his personal possessions” and he refused to provide the number code. P.C. Selby noticed that Rochwell was now nervous, sweating, and pale. She asked him for the number code because she did not want to damage his briefcase when opening it.

[ 15 ] At some point, her supervisor Sgt. Van Schubert arrived at the scene. P.C. Selby had not yet opened the briefcase. She advised Sgt. Van Schubert of the circumstances and that she intended to open and search the briefcase. He agreed with her and she proceeded to use her knife to pry open the lock. She agreed that the briefcase was made of a hard metal and that it appeared to have an inside lining.

[ 16 ] P.C. Selby estimated that her search of the car, which was thorough, took about ten minutes after the 10:13 p.m. arrest at the police cruiser. It would therefore have been around 10:23 p.m. when she began focusing on the task of getting the briefcase open. She had no note of when Sgt. Van Schubert arrived but his note was that he arrived at 10:15 p.m. P.C. Selby was uncertain as to whether Sgt. Van Schubert was talking to Rochwell at the police cruiser and trying to get the number code to the briefcase from Rochwell. She was not present for any such conversation and she did not believe it delayed her search of the briefcase. She did not know whether Sgt. Van Schubert also smelled the briefcase but she did not recall giving anyone else the opportunity to smell the briefcase, once she had seized it.

[ 17 ] Once P.C. Selby succeeded in opening the briefcase and in discovering the drugs, she had to secure the drugs as evidence in the police cruiser. They waited for other officers to arrive in order to arrange for Rochwell’s car to be towed. This all took time. At 11:04 p.m., she and P.C. Gribbon left the scene with Rochwell and drove to the station.

[ 18 ] Sgt. Van Schubert arrived at the scene at 10:15 p.m. He had been an officer for almost twenty years, had previously worked with the Drug Squad, and had done hundreds of drug investigations. He knew the smell of “fresh” and “burnt” marijuana and could differentiate between the two. He was initially briefed by P.C. Gribbon about the arrest and then by P.C. Selby about the seizure of the locked briefcase. She advised Sgt. Van Schubert that she smelled marijuana coming from the briefcase. He put his nose to the briefcase and agreed that there was a definite smell of marijuana. Sgt. Van Schubert could not provide much detail about how he did this or about the briefcase. He agreed with P.C. Selby that the briefcase could properly be searched, in the circumstances, on the basis of search incident to arrest powers. She told Sgt. Van Schubert that she had already asked Rochwell for the number code to the lock and that he had refused to provide it.

[ 19 ] Sgt. Van Schubert proceeded to speak to Rochwell, who was seated in the back of the cruiser. He opened the rear door and either bent down or kneeled down while he spoke to Rochwell. He asked for the number code a few times, telling Rochwell that they could smell marijuana. Rochwell refused to provide the number code. Sgt. Van Schubert agreed that he not only believed there were drugs in the briefcase but he was also concerned about the possibility of a gun. This is always a concern in drug cases but he had no real grounds to believe that there was a gun in the briefcase. He may have told Rochwell, “you have one last chance” to provide the number code, before they forced open the briefcase. Sgt. Van Schubert agreed that he asked Rochwell for the number code numerous time. Their conversation did not last for fifteen minutes. He estimated that it was less than ten minutes. He denied becoming agitated, indeed, it was Rochwell who became agitated as he did not want the briefcase to be opened. The reason why Sgt. Van Schubert asked Rochwell for the number code was because it was the easiest way to open the briefcase and it would avoid causing any damage to the briefcase.

[ 20 ] After Rochwell’s repeated refusals to provide the number code, the officers proceeded to open the briefcase in some manner on the sidewalk beside the Ford SUV. Sgt. Van Schubert had poor recollection of the details on this point but he believed that it was P.C. Selby who opened the briefcase with a knife.

[ 21 ] Sgt. Van Schubert knew of no authority holding that a locked briefcase cannot be opened in a search incident to arrest. He regarded it as no different than finding a wallet in a car during an arrest. He made the decision to proceed with the search. The search was carried out immediately, at the roadside, partly because Sgt. Van Schubert would have released Rochwell at the scene on a promise to appear if there was nothing found in the briefcase. Rochwell had no outstanding charges, was not in breach of any bail or probation order, and there would be no need to continue with his arrest and detention if nothing more than a single marijuana cigarette had been seized.

[ 22 ] As previously noted, the accused Rochwell filed a detailed Affidavit with his Notice of Application, a month prior to the start of the trial. He was then cross-examined at trial. Aside from the agreed facts, already summarized above, his evidence focused on three main points. First, he testified that he had smoked half of a marijuana cigarette, while driving in his car shortly before it was stopped. It was the last half of this marijuana cigarette that he gave to the police after the traffic stop. He agreed that his car “stinked of marijuana”, as he put it, but he insisted that it was only the smell of “burnt” marijuana as he had just smoked half a “joint”.

[ 23 ] Second, and closely related to the first point, he was adamant that there was no smell of “fresh” marijuana coming from the locked briefcase. It was an expensive briefcase, with a strong watertight seal, and he took great care to wipe it clean and to wash his hands after he had loaded it with packages of drugs. He had tested it, by opening and closing it, and there was no smell when it was closed.

[ 24 ] Third, and last, Rochwell testified that no police officer ever mentioned a smell of marijuana coming from the briefcase in the various discussions that they had at the scene. He agreed that P.C. Gribbon advised him, during the traffic stop, that he [Gribbon] could smell marijuana “from inside the vehicle” but, when it came to searching the briefcase after the arrest, P.C. Gribbon only “expressed concern that there might be a gun inside it”. Rochwell agreed that he was “repeatedly asked what was in the briefcase and I explained that it was my personal belongings”. He also agreed that he was “repeatedly asked for the combination to the briefcase but I declined to provide it”. However, he had no recollection of P.C. Selby being the officer who cautioned him and questioned him about the briefcase and the number code for the lock, even though it was P.C. Selby who had seized the briefcase and who wanted to search it. Sgt. Van Schubert, on the other hand, had a fifteen minute conversation with Rochwell about the number code, while P.C. Selby stood some ten to fifteen feet away, with some other officers standing between her and the sergeant. Sgt. Van Schubert bent down beside the open rear door to the police cruiser, took off his hat, and was initially polite and friendly to Rochwell. He told Rochwell that “he had been on the Drug Squad and that he didn’t care if drugs were inside the briefcase but [he] was concerned about a firearm being inside it”. He told Rochwell that if there was no gun inside the briefcase he [Rochwell] “would be going home that night”. He asked for the number code and Rochwell refused to provide it. Sgt. Van Schubert became increasingly agitated and offered Rochwell “one last chance” to provide the number code but Rochwell just looked away.

[ 25 ] At this point, Sgt. Van Schubert “began to yell and swear at me [Rochwell]” and said, “open the fucking case or we’re going to fucking open it”. Numerous officers and police cruisers had arrived at the scene with their lights flashing. Civilians were watching from their houses and some had come out of their houses in order to watch. The police then proceeded to open the locked briefcase after Rochwell had refused “well over a dozen times” to provide the number code. Rochwell agreed that he was nervous and afraid, once the police seized the briefcase, as he knew there were a lot of drugs in it and that he was in serious jeopardy. However, he testified that “I know my rights” and he believed, based on what he had seen on television and read on the internet, that the police had to get a warrant to search the briefcase. It was the lengthy and unsuccessful efforts to obtain the number code from him that led to the delay in completing the search, prior to taking him to the police station.

[ 26 ] Rochwell admitted that he had a criminal record under the name Shameer Jumnadass. He had legally changed his name in 2009. His criminal record was as follows:

• August 2000; public mischief and fail to comply with a recognizance; fourteen days imprisonment on each count, concurrent, after credit for nine days pre-sentence custody;

• November 2000; mischief over $5,000 and assault; thirty days conditional sentence on each count, concurrent, and one year probation, after credit for six days pre-sentence custody;

• November 2004; extortion and two counts of possession of a scheduled substance; nine months conditional sentence and two years probation on the extortion count; $1,000 fine on the two drug counts;

• October 2007; fail to comply with a recognizance and threatening bodily harm; ten days intermittent imprisonment on each count, concurrent, after credit for nine days pre-sentence custody and two years probation with various conditions, and a s. 110 weapons prohibition order for five years.

[ 27 ] Rochwell was thirty-one years old at the time of his arrest in November 2010. He was living at home with his two elderly parents in a three bedroom townhouse. He did not want his parents to know about his drug trafficking activities. He had only been doing it for a couple of months, prior to his arrest. He had rented the car but could not remember how long he had been renting it. He could not remember when or where he had packaged and loaded the drugs into the briefcase that was seized on his arrest. He had done it about twenty times before. He either did it at his parents’ house, in his bedroom, or he did it in the car. He would have done it either on the day of his arrest or the day before his arrest. He would have handled the marijuana numerous times, in order to package it, and he would then have loaded the packages into the briefcase. His bedroom or his car would smell of marijuana, as a result of this packaging and loading of the drugs, depending on whether he did it at home or in the car.

[ 28 ] Rochwell also testified that he had drug-related meetings with other persons in his car. He would open the briefcase at these meetings, to show the drugs, and he could then smell the marijuana in the car. But after closing the briefcase there would no longer be any smell of the “fresh” marijuana.

[ 29 ] Rochwell agreed that “fresh” marijuana and “burnt” marijuana have different smells and that they are both distinctive. He agreed that the smell of smoked marijuana remains on your clothes and that the smell of “fresh” marijuana lingers in a room. However, the smell of “fresh” marijuana does not linger for as long as “burnt” marijuana and it does not linger on your clothes.

C. LAW

(i) Introduction

[ 30 ] The Applicant’s first submission is that the three police officers are not credible and that Rochwell ought to be believed. Based on Rochwell’s account, the police smelled only “burnt” marijuana in the car and that odour was explained by the marijuana cigarette they had already seized. There was no smell of “fresh” marijuana coming from the briefcase and the police had no objective basis to search it for drugs. The search was simply a “fishing expedition”, in the faint hope of finding either a gun or more drugs.

[ 31 ] In the alternative, even if the police had some objective basis to search the locked briefcase for drugs, Mr. Hochberg submits that it was insufficient in law and that, in any event, a warrant is now required for this kind of search. He submits that a locked briefcase is akin to a computer or to a cell phone and that these kinds of items, potentially containing large stores of personal information, can be seized at common law as an incident to arrest but they cannot be examined until a freestanding search warrant is obtained. He relies on obiter dicta found in two decisions of this Court, both of which deal with searches of cell phones but which suggest that a warrant is required to search a “sealed box of files” or a “locked briefcase”, incident to a lawful arrest. See: R. v. Burchell (2011), 246 C.R.R. (2d) 74 at para. 55 (Ont. S.C.J.); R. v. Polius (2009), 196 C.R.R. (2d) 288 at paras. 46-7 (Ont. S.C.J.).

(ii) Findings of Credibility

[ 32 ] In relation to the first submission, I agree that there are some difficulties with the evidence of all three officers. However, none of these difficulties are determinative of their credibility on the central issue, namely, whether there was a strong smell of “fresh” marijuana coming from inside the car and from the briefcase. On that issue, I am satisfied that their account is credible and that Rochwell’s account is not credible.

[ 33 ] In relation to the officers’ credibility concerning the strong smell of marijuana, I rely mainly on the following three points:

• First, the officers’ evidence was consistent that they all detected a strong smell of “fresh” marijuana. In P.C. Gribbon’s case, he immediately detected the smell in the car. In P.C. Selby’s case, she immediately detected it in the car and then isolated its source as the briefcase. In Sgt. Van Schubert’s case, he detected the smell on the briefcase when he arrived at the scene. They all noted these observations in their notebooks. Not only do they corroborate each other but their testimony has been internally consistent on this point;

• Second, there is no suggestion of collusion between the officers or that they collaborated on their notes. On the contrary, there are telling points where their accounts differ, suggesting that they are all testifying independently;

• Third, and perhaps most importantly, their evidence on this point is substantially supported by Rochwell’s own evidence. Not only did Rochwell confirm much of the officers’ accounts about the traffic stop, the arrest, and the search of the briefcase but he provided circumstantial evidence which infers that there was likely a smell of “fresh” marijuana in the car and on the briefcase at the time of his arrest. In this regard, Rochwell testified that he had packaged and loaded the briefcase with marijuana on twenty prior occasions, that he had held meetings with drugs purchasers in the car where he would open the briefcase, that these packaging and loading exercises involved repeated touching of the marijuana and they were sometimes done in the car and may, indeed, have been done in the car that very day, that there would be a smell in the car afterwards, that “fresh” marijuana has a distinctive odour that lingers, and that the briefcase was used exclusively for transporting drugs. In all these circumstances, it is probable that the car and the briefcase smelled of “fresh” marijuana at the time of Rochwell’s arrest, as the three officers testified.

[ 34 ] In relation to Rochwell’s credibility, I do not accept his evidence on the critical points where he challenges the three officers’ accounts. In this regard, I rely mainly on the following five considerations:

• First, his criminal record is cause for concern. It is a relatively serious record and it includes crimes of dishonesty;

• Second, his manner of testifying often involved arguing his case. Instead of answering the question asked in a factual manner, he would lapse into lengthy argumentative responses;

• Third, he claimed to be a meticulous and precise person, who paid close attention to details, and yet he could not remember important points such as how long he had rented the car and when or where he had packaged and loaded the drugs found in the briefcase on the day of his arrest;

• Fourth, he relied heavily on hearsay that he had read on the internet, concerning the qualities and specifications for his briefcase, and yet he never produced this material;

• Fifth, there are inherent improbabilities in his story. Most importantly, his adamant insistence that there was no possible smell of “fresh” marijuana in the car or on the briefcase is contradicted by the numerous circumstances outlined above concerning his use of the car and the briefcase to package, load, transport, show, and sell marijuana. In addition, it is unlikely that Sgt. Van Schubert would say that “he didn’t care if drugs were inside the briefcase” and it is equally unlikely that he would “yell and swear” at Rochwell on a public street with a number of civilians from the local neighbourhood standing nearby and watching. Finally, it is unlikely that P.C. Selby would be the one officer who did not discuss gaining access to the locked briefcase with Rochwell when she was the officer who seized it and searched it.

[ 35 ] For all these reasons, I do not accept the Applicant’s first submission. Rochwell’s account concerning the absence of any smell of “fresh” marijuana is not credible and the officers’ accounts on this point are credible. I am satisfied that there was a strong odour of “fresh” marijuana in the car and on the briefcase and that the officers’ desire to search the briefcase was not a “fishing expedition”.

(iii) Search Incident to Arrest

[ 36 ] There are two parts to Mr. Hochberg’s alternate submission concerning the lawfulness of the search. First, he submits that there was no sufficient basis to search the briefcase for drug-related evidence as the police investigation was complete, once they had seized the single marijuana cigarette. Thereafter, the police were searching for new evidence relating to some new offence and not for evidence relating to the offence for which Rochwell had already been arrested. Second, he submits that even if the police had a sufficient basis at common law to search an unlocked briefcase, incident to a lawful arrest, this particular briefcase was locked and the police required a warrant before they could forcibly open it.

[ 37 ] The first submission is misconceived, both factually and legally. In terms of the facts, it was P.C. Selby who decided to search the briefcase with the agreement of her supervisor, Sgt. Van Schubert. P.C. Selby was in possession of the following information:

• She had seen Rochwell hand P.C. Gribbon what appeared to be a single marijuana cigarette from inside the car and she believed that he was lawfully arrested for possession of marijuana;

• She had detected a strong smell of “fresh” marijuana coming from inside the car, at the time of the traffic stop, and she noticed Rochwell reach for his briefcase in the back seat, as P.C. Gribbon began to remove Rochwell from the car;

• She searched the car and found two cell phones. She believed that possession of multiple cell phones is a phenomenon that can be associated with drug trafficking;

• She detected a much stronger smell of “fresh” marijuana, once she was inside the car, and she believed that she had isolated its source as the briefcase. She tested and confirmed her belief, by smelling the briefcase both inside and outside the car, and by smelling inside the car after she had removed the briefcase;

• When she returned to the police cruiser and asked Rochwell for the number code to unlock the briefcase, she noticed that he was now pale, nervous, and sweating.

[ 38 ] Given the above five circumstances, I am satisfied that P.C. Selby had a strong factual basis for exercising common law powers to search the briefcase for drugs, as an incident to the lawful arrest. Indeed, it is arguable that the above five circumstances amounted to “reasonable and probable grounds” and could have formed the basis for issuance of a search warrant.

[ 39 ] The leading authority on the common law power of search incident to arrest, without a warrant, is R. v. Caslake (1998), 1998 838 (SCC), 121 C.C.C. (3d) 97 at paras. 13-25 (S.C.C.). Lamer C.J.C. gave the majority judgment and held that the power was not limited or controlled by any particular “place to be searched” nor by any particular “temporal limits”. Furthermore, the Court held that a search of an automobile, long after the accused had been removed from it and placed in custody, could be lawful at common law. The only limits on the power “arise out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy”.

[ 40 ] In order to give precision to this potentially broad definition of the power to search incident to arrest, Lamer C.J.C. referred with approval to the Court’s earlier decision in Cloutier v. Langlois (1990), 1990 122 (SCC), 53 C.C.C. (3d) 257 at 278 (S.C.C.) where L’Heureux-Dubé J., on behalf of a unanimous Court, exhaustively reviewed the common law authorities and then described the power in the following terms:

The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. [Emphasis added.]

[ 41 ] In Caslake, supra at paras 19-20, Lamer C.J.C. elaborated on the above passage from Cloutier in the following terms:

As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial. The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.

To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did …

The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.

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. [Italics of Lamer C.J.C. in the original; under-lining added.]

[ 42 ] Applying these principles to the case at bar, P.C. Selby’s purpose in searching the locked briefcase was to find drugs or drug-related paraphernalia. This falls squarely within the third Caslake purpose, namely, “the discovery of evidence which can be used at the arrestee’s trial”. Furthermore, the five circumstances outlined above (at para. 37) provided P.C. Selby with, at the very least, “some reasonable basis” for her subjective belief that she might find drugs or drug paraphernalia in the briefcase. I am inclined to the view that she had “reasonable and probable grounds” and, as emphasized in Caslake, supra, this higher standard required for a search warrant is not required for searches incident to arrest.

[ 43 ] Mr. Hochberg’s submission that the search did not relate to finding evidence of the offence for which Rochwell had been arrested, namely, possession of one “joint” of marijuana for which the investigation was already complete, is foreclosed by two decisions of the Court of Appeal. See: R. v. Polashek (1999), 1999 3714 (ON CA), 134 C.C.C. (3d) 187 (Ont. C.A.); R. v. Alkins (2007), 2007 ONCA 264 (), 218 C.C.C. (3d) 97 (Ont. C.A.). In the latter case, the police had seized concealed weapons from the accused. He was the driver of a car and he had been arrested for these possessory offences. The police then proceeded to search a backpack in the trunk of the car, looking for more weapons, and they found a sawed-off shotgun in the backpack. The trial judge held that the search of the backpack exceeded the scope of a lawful search incident to arrest for reasons that are essentially the same as Mr. Hochberg’s argument. The trial judge held that “all of the relevant evidence to support [the arrest offences] had already been found” and the search of the backpack was an “attempt to uncover evidence of additional crimes”. Similarly, in Polashek, supra, the police had seized cannabis resin from the accused, who was the driver of a car. They arrested the accused for possession of the cannabis resin that they found on his person and then proceeded to search the glove compartment and trunk of the car, where they found more drugs.

[ 44 ] In both cases, the Court of Appeal held that the searches for “more drugs” in Polashek and for “more weapons” in Alkins were properly within the scope of search incident to arrest. As I read these two cases, there was some basis in Polashek to believe that the simple possession amount seized from the accused might be part of a larger trafficking amount and so “there was a reasonable prospect that the officer would find more drugs or narcotics in the vehicle”, as Rosenberg J.A. put it, speaking on behalf of the Court in Polashek. Similarly, in Alkins there was some basis to believe that the accused’s possession of concealed weapons on his person might be part of some larger unlawful purpose and so the search of the backpack in the trunk “might shed light on the intended use to be made of the weapons already located”, as MacPherson J.A. put it, speaking on behalf of the Court in Alkins.

[ 45 ] Applying these principles to the case at bar, the police had some basis to believe that the single marijuana cigarette seized from Rochwell was part of a larger amount, given the strong smell of marijuana detected in the car and on the briefcase. Accordingly, “it was reasonable in the circumstances for the police to search his car to find more drugs”. See: R. v. Alkins, supra at para. 38.

[ 46 ] Aside from the broad limits to the power of search incident to arrest articulated in Cloutier and Caslake, the common law has developed additional restrictions or exemptions in the case of certain “highly intrusive” forms of search. In Caslake, supra at para. 15, Lamer C.J.C. held that motor vehicles “attract no heightened expectation of privacy that would justify an exemption from the usual common law principles”. However, searches and seizures of bodily samples, strip searches, and extensive examinations of the informational contents of cell phones and computers, have all become the subject of further requirements including, in some cases, a separate warrant requirement. See: R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 at 340-343 (S.C.C.); R. v. Golden (2001), 2001 SCC 83 (), 159 C.C.C. (3d) 449 at 486-495 (S.C.C.); R. v. Manley (2011), 2011 ONCA 128 (), 269 C.C.C. (3d) 40 at 52-5 (Ont. C.A.). Mr. Hochberg’s final submission seeks to bring the locked briefcase within this small class of highly intrusive searches that are the subject of additional restrictions. He concedes that there is binding authority holding that an unlocked briefcase can be searched without warrant, pursuant to common law powers of search incident to arrest. See: R. v. Mohamad (2004), 2004 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.). Nevertheless, once the briefcase is locked, Mr. Hochberg submits, the police can seize it but must then obtain a freestanding warrant before it can be searched. He concedes there is not yet any binding authority to this effect but submits that it is a developing area of law and he relies on obiter dicta, as previously noted, in two cell phone cases decided in this Court. See: R. v. Burchell, supra; R. v. Polius, supra.

[ 47 ] There are a number of reasons, in my view, why Mr. Hochberg’s submission cannot be accepted. The first, and simplest reason, is that there is binding authority from the Court of Appeal on this point. In R. v. Zucatti (1996) 32 W.C.B. (2d) 317 (Ont. C.A.), the accused was under arrest for theft of “a tin or container of some sort of nutritional beverage”. He had exited from the store, with a security guard in pursuit, but the police appeared and arrested him. He was “carrying a locked briefcase” at the time of his arrest. The police told the accused “to open the briefcase and told him if he declined to do so that the briefcase would be broken open”. Faced with this ultimatum, the accused “opened the briefcase and disclosed a small quantity of heroin”. He was prosecuted for simple possession of the heroin and was acquitted at trial by Bernhard J. The summary conviction appeal judge, Hawkins J., dismissed a Crown appeal. He held that a search warrant was required to search the locked briefcase, stating the following:

The essence of the problem … seems here to be whether there was any justification for conducting an involuntary search of the accused’s briefcase without obtaining a warrant for such search.

It was a search … of a location [in] which material of a particularly personal or confidential nature might well be stored. A briefcase is in fact a person’s travelling office and is frequently full of material of a confidential nature. This briefcase was not going anywhere and there was absolutely no reason whatever why it couldn’t have been seized by the police and held until a search warrant could be obtained.

See: R. v. Zucatti, [1995] O.J. No. 2994 (S.C.J.).

[ 48 ] The Crown appealed further to the Court of Appeal. In a brief endorsement, Brooke J.A., speaking on behalf of the Court, reversed the judgments below. He stated the following:

We are of the view that this appeal must succeed. We think the arrest was lawful. The issue as to whether the search of the briefcase the respondent was carrying was lawful, as incidental to the arrest, is governed by the principles in Cloutier v. Langlois.

In our view, the search was carried on for the purposes stated by the court in that case as proper for search incidental to arrest and was not beyond the limits prescribed in that case.

[ 49 ] Although Zucatti is a brief endorsement, it squarely decides the issue raised in the present case. Indeed, the reasoning of Hawkins J. in the court below is precisely the argument that Mr. Hochberg advances in the case at bar. Zucatti does not appear to be a well known decision, as it is rarely cited. However, I note that two experienced trial judges have reached the same result as in Zucatti, holding that it is lawful for the police to seize car keys from an arrested person, incident to arrest, in order to open and search a locked glove box in one case and a locked trunk in the other case. See: R. v. Findlater (2010), 2010 ONSC 5141 (), 5 M.V.R. (6th) 239 at paras. 25-6 (Ont. S.C.J.) per. MacDonnell J., aff’d. 2012 ONCA 685 without reference to this issue; R. v. St. Louis et al (2007), 73 W.C.B. (2d) 749 at paras. 10, 33 and 76 (Ont. S.C.J.) per. Dawson J. As MacDonnell J. put it in Findlater, “The fact that the glove box was locked did not vitiate the officer’s reasonable basis for searching it”.

[ 50 ] In my view, there are sound reasons of principle that support the result in Zucatti. First, the analogy between a briefcase and a computer or cell phone, relied on by Mr. Hochberg, is not sound. Computers and cell phones are known to carry much more significant amounts of highly personal information, most of which is irrelevant to the police, compared to what is normally found in a briefcase. Indeed, computers and cell phones are used exclusively to store information. Contraband, such as guns and drugs, cannot be concealed in a cell phone or a computer but can be secreted and carried to a crime scene in a briefcase. In Mohamad, supra at paras. 25 and 43, Cronk J.A. (Laskin and Moldaver JJ.A. concurring) acknowledged that briefcases often carry confidential documents but distinguished them from “the almost unlimited universe of information” that is found in computers:

In the contemporary context, briefcases often house highly confidential personal and business information. They can serve, in a practical sense, as portable offices for their owners. In my view, owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases.

Second, in my view, there is a significant distinction between the warrantless search of a laptop computer locked in a stolen car’s trunk, as referenced in the quoted passage from Law, and the warrantless search of an unlocked briefcase in an unlocked stolen vehicle. A computer can be a repository for an almost unlimited universe of information. As Crown counsel points out, Parliament has treated computers as stand-alone search locations, warranting specific rules. See Criminal Code, R.S.C. 1985, c.C-46, s. 487(2.1) and (2.2). [Emphasis added].

In R. v. Morelli (2010), 2010 SCC 8 (), 252 C.C.C. (3d) 273 at paras. 2 and 105 (S.C.C.), Fish J., speaking for the majority, similarly emphasized the exceptional nature of computer searches. He stated that “It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer”.

[ 51 ] The practical reality, that briefcases can be used to secrete fruits and instrumentalities of crime and not just confidential information, is reflected in the fact that the law of search incident to arrest has always allowed the police to search these kinds of enclosed receptacles without a warrant. A few examples will suffice to illustrate the point:

• R. v. Alkins, supra was a case where the police searched a backpack in the trunk of a car, incident to arrest, and found a sawed-off shotgun. Backpacks are what younger people use as briefcases nowadays. If the briefcase is to acquire special constitutional protection, it will be hard to arrive at a principled and non-discriminatory basis for denying similar protection to backpacks. Indeed, the Court of Appeal has held that “a student’s backpack should be afforded at least the same degree of respect as an adult’s briefcase”. See: R. v. A.M. (2006), 2006 13550 (ON CA), 208 C.C.C. (3d) 438 at paras. 49-50 (Ont. C.A.); aff’d (2008), 2008 SCC 19 (), 230 C.C.C. (3d) 377 at paras. 62-3 (S.C.C.);

• R. v. Mohamad, supra was a case where the police searched a briefcase in a stolen car and found a number of “sealed envelopes”. Within the envelopes were “counterfeit VIN plates for five vehicles and counterfeit stickers and parts and certification labels used to renumber and ‘legitimize’ stolen vehicles.” In other words, the briefcase contained all the necessary instrumentalities for what was described as “a sophisticated and organized joint enterprise designed to effect the theft, and the exportation from Canada for profit, of valuable motor vehicles”. The fact that the envelopes were “sealed” did not immunize them from this warrantless search, contrary to the obiter dicta in Burchell;

• R. v. Drapeau (1993), 1993 370 (BC CA), 19 C.R.R. (2d) 361 (B.C.C.A.) was a case where the accused was arrested in his car. The police searched the car incident to arrest and found what was “variously described as a briefcase, a small duffel bag, or an equipment bag”. It contained cocaine. If briefcases are to be accorded special constitutional protection, requiring a search warrant, it will become important to develop guidelines for distinguishing them from mere duffel bags or equipment bags which, presumably, would not attract the same protection;

• R. v. Belnavis (1996), 1996 4007 (ON CA), 107 C.C.C. (3d) 195 at 203-4 (Ont. C.A.), aff’d (1997), 1997 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.) was a case where the police searched a purse in a car, incident to arrest, and found a significant amount of stolen clothing secreted in the purse. Nowadays, purses can be quite large and they are often used to carry confidential personal and business documents, like a briefcase. No special constitutional protection has been accorded to the purse, in the law of search incident to arrest. Once again, if the briefcase is to be granted special protection, it will be necessary to either extend the same protection to at least some purses or to develop a principled and non-discriminatory basis for distinguishing purses from briefcases.

[ 52 ] The simple point that the above cases illustrate is that briefcases, backpacks, duffel bags, equipment bags, and purses all can be used to secrete the fruits and instrumentalities of crime. The sawed-off shotgun, counterfeit licenses and plates, drugs, and stolen goods seized from these kinds of receptacles, in the above four cases, could never have been secreted inside a computer or a cell phone. The common law has always allowed the police to search inside such a receptacle, incident to a lawful arrest. There is simply no persuasive analogy between a briefcase and a computer or cell phone that would justify changing or qualifying these well established authorities.

[ 53 ] There is a further principled reason for rejecting the Applicant’s argument about the need for a search warrant and that is the undue significance that it attaches to the act of locking the briefcase. The act of locking a receptacle is relevant to the threshold inquiry into whether the accused has any reasonable expectation of privacy in the receptacle and, therefore, whether he/she enjoys any s. 8 Charter protections in relation to that receptacle. For example, locking a rented bus depot storage locker or locking a safe that is reported stolen to the police are relevant considerations in determining whether the police must respect s. 8 rights in relation to the person who locked the rented bus depot locker or who locked the lost safe, assuming the police wish to search that receptacle. See: R. v. Buhay (2003), 2003 SCC 30 (), 174 C.C.C. (3d) 97 at paras. 18-24 (S.C.C.); R. v. Law (2002), 2002 SCC 10 (), 160 C.C.C. (3d) 449 at paras. 15-19 (S.C.C.); R. v. Cunsolo (2008), 180 C.R.R. (2d) 225 at paras. 64-5 (Ont. S.C.J.).

[ 54 ] However, in the case at bar, there is no question that Rochwell had a reasonable expectation of privacy in the locked briefcase in his car and there is no question that the police were obliged to respect his s. 8 Charter rights in relation to the briefcase. The only issue is whether the act of locking the briefcase gave Rochwell greater Charter rights than if he had not locked it. In my view, it did not. Some people lock their briefcases and some people do not. Indeed, some briefcases do not even have locks. Similarly, some people lock the doors to their houses and some people do not. Some people lock their cars and some people do not. The law of search and seizure has never granted stronger constitutional protection to those who lock a receptacle, as opposed to those who do not. The act of locking a receptacle makes it more difficult for an unauthorized intruder to enter but it does not change the fundamental character of the receptacle. A home remains a home, whether it is locked or not. Furthermore, a failure to lock a house, a car, or a briefcase is often due to carelessness or to some urgent circumstance. It would be unprincipled to give stronger constitutional protection to those who are unhurried and careful and who invariably lock their homes, their cars, and their briefcases and to deny similar protection to those who are in a rush or who are merely forgetful. None of the s. 8 jurisprudence has ever drawn such a distinction, to my knowledge. Indeed, the act of locking, barricading, or reinforcing a door to premises is common amongst certain organized and sophisticated criminals. It has never prevented forced entry by the police, provided they are exercising lawful powers of search or arrest, and provided they make proper announcement at the locked door. See: Eccles v. Bourque (1974), 1974 191 (SCC), 19 C.C.C. (2d) 129 (S.C.C.); R. v. Genest (1989), 1989 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.); R. v. Gimson (1991), 1991 24 (SCC), 69 C.C.C. (3d) 552 (S.C.C.); R. v. Feeney (1997), 1997 342 (SCC), 115 C.C.C. (3d) 129 at 144-5 (S.C.C.); R. v. Thompson (2010), 2010 ONSC 2862 (), 255 C.C.C. (3d) 236 (Ont. S.C.J.).

[ 55 ] For all these reasons, there was no s. 8 violation in the case at bar. The police were entitled to forcibly open the briefcase, when Rochwell denied them access, just as the door to premises can be forcibly opened when access is denied, given that the search and arrest were otherwise lawful and given that proper and repeated announcements were made.

[ 56 ] Having found no s. 8 violation, it is not strictly necessary to address s. 24(2). However, I note that the s. 24(2) argument in this case could not possibly succeed. If this Court was to announce a new rule, requiring the police to obtain a search warrant whenever they lawfully seized a locked briefcase incident to arrest, its retrospective impact on the police conduct in this case, prior to the announcement of the new rule, would situate the Charter violation at the least serious end of the spectrum. A minor good faith violation of the Charter, in failing to comply with an interpretation of s. 8 that had not yet been enunciated in any binding decision, could not lead to the exclusion of essential and reliable evidence, such as in the case at bar. See: R. v. Grant (2009), 2009 SCC 32 (), 245 C.C.C. (3d) 1 at paras. 74-5, 81-3, 115 and 133 (S.C.C.); R. v. Blake (2010), 2010 ONCA 1 (), 251 C.C.C. (3d) 4 at paras. 25-27 (Ont. C.A.); R. v. Duarte (1990), 1990 150 (SCC), 53 C.C.C. (3d) 1 (S.C.C.); R. v. Wijesinha (1995), 1995 67 (SCC), 100 C.C.C. (3d) 410 at para. 56 (S.C.C.).

D. CONCLUSION

[ 57 ] In the result, the s. 8 Charter Motion is dismissed and the evidence of the seized drugs is admitted. The effect of this evidence, together with the admissions made at trial, is that Rochwell is guilty on all three counts.

M.A. Code J.

Released: October 12, 2012

COURT FILE NO.: 11-90000529-0000
DATE: 20121012

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – RICH ROCHWELL

REASONS FOR JUDGMENT
M.A. Code J.

Released: October 12, 2012