R. v Barclay, 2016 ONSC 2811

Court File and Parties

COURT FILE NO.: CR-15-016 DATE: 20160427 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Devyn Barclay Defendant

Counsel: David Holmes, for the Crown Kingsley D. Graham and Robert Goertz, for the Defendant

HEARD: March 1, 2, 3, 2016 BEFORE: E.J. Koke J.

JUDGMENT

INTRODUCTION

1Acting on a tip from a confidential informant, the OPP detained the accused, Devyn Barclay as he disembarked from a passenger train at the Parry Sound train station. Mr. Barclay had travelled to Parry Sound from Vancouver, bringing with him two large black suitcases.

2Mr. Barclay was taken to the OPP detachment in Parry Sound, where the police called for a sniffer dog to be brought in from the Town of Bracebridge. The dog arrived almost two hours later and indicated positively on the two suitcases. Mr. Barclay was then arrested and when the police opened the suitcases they discovered 33 pounds of marijuana in the luggage.

3Mr. Barclay has been charged with possession of marijuana for the purpose of trafficking.

THE ISSUES

4Mr. Barclay argues that his investigative detention, the search of his suitcases without warrant and his arrest were all unlawful and violated his section 7, 8 and 9 rights under the Charter of Rights and Freedoms.

5The trial proceeded as a blended voir dire/trial.

BACKGROUND FACTS

6There are very few facts in dispute.

7The first witness called by the Crown was Police Constable Ryan Kristalovich. Officer Kristalovich is a member of the RCMP and is stationed in Winnipeg, Manitoba. He works in the Jetway unit of the RCMP which is a unit specializing in the detection of criminal activity in transportation hubs such as bus, train stations and airports.

8Officer Kristalovich explained that he is the primary handler of a confidential informant who he believes is past proven and reliable. Officer Kristalovich testified that at 7:33 a.m. on the morning of April 1, 2014 he received information from his informant that he had firsthand knowledge that a passenger was travelling by VIA train from Vancouver, B.C. to Washago, Ontario. This passenger was in the possession of two large black roller suitcases which had an odour of marijuana. The passenger’s name was Pax (ph.) Devyn Barclay and he was described as being 35 years old, about five ft. ten inches tall, weighing 175 pounds, with a beard and wearing a beige coloured baseball cap with a red logo and “duck dynasty” printed on it. The passenger would be disembarking from the train in Parry Sound, Ontario that morning.

9Officer Kristalovich testified that based on his previous dealings with this informant he believed that this information was reliable.

10Upon receiving this information Officer Kristalovich called the Parry Sound VIA rail station to determine what time the train was expected to arrive that morning. He then contacted the Parry Sound detachment of the OPP and at 7:40 a.m. he spoke to Sergeant Dawn Connor, the officer in charge, and relayed to her the information he had received, and he informed her that the train was expected to arrive in Parry Sound at 8:50 a.m.

11Officer Connor testified that upon receiving this information from Officer Kristalovich she dispatched Constables Joseph Scali and Jim Lewis to the train station to meet Mr. Barclay on his arrival. She provided them with the following information about the suspect:

a) travelling by VIA train from Vancouver, B.C. to Washago, ON; b) in the possession of two large black roller suitcases; c) an odour of marijuana emanating from the suitcases; d) name was Pax (ph.) Devyn Barclay; e) thirty five years old, about five ft. ten inches tall, weighing 175 pounds, with a beard; f) wearing a beige coloured baseball cap with duck dynasty on it and a red logo; g) disembarking from the train in Parry Sound, ON.

12The train from Vancouver arrived at the Parry Sound train station at 9:14 a.m. Officers Scali and Lewis observed a passenger disembark who matched Officer Connor’s description. The passenger was observed pulling two large black suitcases and carrying a black and red duffel bag. Officer Scali approached the individual and addressed him as Mr. Barclay, to which the individual responded affirmatively. After a brief conversation the officers informed Mr. Barclay that they were placing him in investigative detention. They read him his rights and situated him in the back seat of their cruiser where he made several phone calls.

13The officers agreed that they could not detect an odour of marijuana coming from the suitcases.

14Officer Connor enlisted Detective Constable Ronald Marshall from the Parry Sound OPP drug enforcement unit to assist with the investigation and travel with her to the train station. Officers Connor and Marshall arrived at the train station at 9:32 a.m. and observed that Mr. Barclay was seated in the rear seat of the constables’ police cruiser and that the suitcases had been placed in the trunk of the vehicle.

15Officers Connor and Marshall testified that they too were unable to detect an odour of marijuana coming from the two black suitcases. Officer Marshall placed a call to Officer Kristalovich who confirmed that in his opinion his confidential informant was “past proven and reliable” and he suggested that they conduct a “dog sniff” with a police drug detector dog.

16The Parry Sound OPP detachment does not have a drug sniffing dog available and Officers Marshall and Connor decided to inquire whether one could be made available from another jurisdiction. They also decided to determine whether a Justice of the Peace was available in the event they required a search warrant. At the preliminary hearing Officer Marshall testified that:

“I thought if the canine was not going to be available that day, that we may proceed with a search warrant. I found that there was no J.P. working, or working in Parry Sound that day and, approximately at the same time, learned the canine was going to be available, so there was no need to involve a Justice of the Peace at that time.”

17Officers Connor and Marshall testified that they believed that they had sufficient information to form a reasonable suspicion that the bags contained marijuana and on this basis they could hold Mr. Barclay in investigative detention until they could complete the dog sniff.

18Mr. Barclay advised the police officers that he needed to use a washroom and that he required access to a telephone because his telephone was low on battery power. The train station in Parry Sound is little more than a pick up and drop off depot and has very few facilities so Constables Lewis and Scali decided to return to the Parry Sound detachment where Mr. Barclay was provided with the opportunity to use a telephone and washroom facilities. The two suitcases were placed in a secure room until a canine officer could arrive.

19Constable Ezra Zugehoer is a canine handler with the OPP. He is based in the Town of Bracebridge, ON. He testified that at 9:48 am that morning he received a call that a canine unit was required in Parry Sound, ON. He made contact with Officer Marshall who provided some details of the investigation and informed him that Mr. Barclay was being kept in investigative detention pending a dog sniff test. Officer Zugehoer arrived at the Parry Sound detachment with his dog “Racket” shortly before 11 a.m. He noted that Mr. Barclay was seated in an office area in the police station.

20After Officer Zugehoer’s arrival the two suitcases and Mr. Barclay’s duffel bag were placed in the police garage. Officer Zugehoer deployed his dog at 11:02 and the dog made a “positive hit” on the two suitcases.

21After the police dog indicated positively for the odour of drugs on the travel bags Mr. Barclay was placed under arrest and the bags were searched. A search of the two suitcases revealed 33 vacuum sealed bags containing one pound of marijuana each.

POSITION OF MR. BARCLAY ON THE CHARTER ISSUES

22Mr. Barclay argues that the drug evidence found and seized in this case should be excluded from the evidence admitted at the trial, on the basis that his s. 7, 8 and 9 Charter rights have been violated. He submits that the admission of this evidence would bring the administration of justice into disrepute within the meaning of Section 24(2) of the Charter.

23Specifically, he argues that the following police actions were unlawful:

a) His continued investigative detention after the officers were unable to detect an odour of marijuana emanating from the suitcases. b) The subsequent searches, without warrant; c) The actions of the police pursuant to a tip received from an informant; and d) His arrest prior to opening his suitcases.

REVIEW OF THE LAW ON THE USE OF INVESTIGATIVE DETENTION AND SNIFFER DOGS

24The positions put forth by Counsel for the respective parties reveal some fundamental differences in their understanding and interpretation of when police are lawfully entitled to use investigative detention and sniffer dogs in their investigation of criminal activity. As a preliminary matter, I will undertake a review of the law and the Charter principles underlying these investigative techniques.

Investigative Detention…The “Reasonable Grounds to Suspect” Test

25The principles governing the detention of an accused person for investigative purposes were affirmed by the Supreme Court in R v. Mann, 2004 SCC 52 where Iacobucci J. stated at par. 45:

To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

26The decision in R. v. Mann is referred to by Moldaver J. in the subsequent Supreme Court decision in R. v. MacKenzie, 2013 SCC 50 where he distinguishes between grounds to detain and grounds to arrest. At paragraph 38 of the decision Moldaver J. states:

Parenthetically, I note that the reference in Mann to "reasonable grounds to detain" has led to some confusion for the bench and bar alike. In the context of detention"reasonable grounds" means reasonable grounds to suspect that an individual is involved in particular criminal activity, which is synonymous with reasonable suspicion. However, in other contexts, such as an arrest"reasonable grounds" means reasonable grounds to believe that an individual is or has been involved in a particular offence, which is synonymous with reasonable and probable grounds. The former concept is a matter of possibilities, while the latter is one of probabilities. See Chehil, at para. 27; Kang-Brown, at para. 164.

27In conclusion, the Supreme Court has affirmed that what legitimizes the investigative detention of an individual is the “reasonable ground to suspect” or “reasonable suspicion” test, as contrasted with the “reasonable and probable grounds to believe” test which is the test required for an arrest.

28As noted in Mann, for a detention to be authorized by law, the length of the detention too must be reasonable.

“Sniffer dog” Search …The “Reasonable Grounds to Suspect” Test

29“Reasonable suspicion” is also the test used in determining whether a sniffer dog can lawfully be deployed by the police. In R. v. Kang-Brown, 2008 SCC 18, 2008 SCJ No. 18 Binnie J. described the test as follows at paragraphs 24 and 25:

24 It has been recognized since Hunter v. Southam Inc., [1984] 2 S.C.R. 145, that while generally speaking the s. 8 standard is reasonable and probable cause, warrantless searches may be acceptable by careful application of the s. 8 balance between the legitimate needs of law enforcement and the legitimate interest of "everyone" in privacy. The balance is calibrated according to the circumstances. The guarantee of s. 8 is not against search and seizure but against unreasonable search and seizure. The police rest their case on the minimal intrusiveness, narrowly targeted objective and high accuracy of specifically trained dogs (in this case Chevy), not on some s. 1 argument about a pandemic of drug trafficking or terrorist activity.

25 In my view, for reasons developed in A.M., the police are entitled to call in aid sniffer dogs where they have reasonable grounds to suspect the presence of contraband. This Charter standard of "reasonable suspicion" is based, as stated, on the minimal intrusiveness, narrowly targeted objective and high accuracy of "sniffs" by specifically trained dogs like Chevy.

The Test: when applied to both Detention and the use of a Sniffer Dog

30In MacKenzie Moldaver J. observed that investigative detention and the deployment of a drug detector dog must respect different constitutional rights. Therefore they must be analyzed separately. At paragraph 36 in MacKenzie he stated:

36 It is important that the detention and search issues in this case be kept analytically distinct because they stem from different police powers and must respect different Charter rights (R. v. Yeh, 2009 SKCA 112, 337 Sask. R. 1, at paras. 48-49; R. v. Schrenk, 2010 MBCA 38, 255 Man. R. (2d) 12, at para. 105). We have never suggested that a sniffer-dog search is authorized as a search incidental to a detention. On the contrary, the detention and the sniff must be independently justified, even if both are based on the same underlying facts that led police to reasonably suspect that the appellant was involved in a drug-related offence.

31Although analyzed separately, the issues of detention and search both apply the “reasonable suspicion” test. At paragraph 37 of MacKenzie Moldaver J. states:

37 In this case, the basis for the detention and the basis for the search are one and the same -- reasonable grounds to suspect that the appellant was involved in an offence under the CDSA. Accordingly, the grounds for both the detention and the sniff must sink or swim together. My conclusion that the police had reasonable suspicion sufficient to justify the sniffer-dog search (which I set out in full below) thus leads equally to the conclusion that the police had "reasonable grounds to detain" the appellant under the authority recognized in Mann (para. 33).

32In conclusion, if the police had reasonable grounds to suspect that Mr. Barclay was in the possession of marijuana, such grounds for suspicion can form the basis for both detaining Mr. Barclay and conducting a dog sniff test.

The Application of the Reasonable Suspicion Test…Assessing the “Entire Circumstances”

33In R. v. Chehil, 2013 SCC 49 the Supreme Court held that police should assess the entirety of the circumstances in determining whether the reasonable suspicion standard has been met. At par. 6 of the decision Karakatsanis J., speaking for the entire court described the application of the test as follows:

6 The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. It does not require the police to investigate to rule out exculpatory circumstances. The Court of Appeal correctly concluded that the trial judge erred in assessing the factors individually rather than in their entirety and in finding the sniffer dog to be unreliable.

Reliability of Police Drug Detector Dogs

34The reasonable suspicion standard may be applied to the deployment of sniffer dogs because of their reliability. This reliability also plays a role at the stage of determining the reasonableness of a search given the potentially severe consequences of a false positive indication, which could lead to unnecessary arrest. See Chehil para. 49.

35Validations of the dogs’ reliability must take place in controlled settings because this is the only context where a false positive can be identified. The dogs recognize the smell of drugs, not the drugs themselves. An odour may linger even after a drug has been removed. This should not affect the assessment of the dog’s reliability.

36Dog handlers are responsible for keeping records of their animal’s performance, both in controlled settings and in the field, in order to demonstrate the dog’s reliability to the court. The Court rejected the request to establish national reliability standards as this task falls within Parliament’s jurisdiction. See Chehil at paras. 50-52.

37It is up to the judge to examine all of the evidence to determine whether the search was reasonable, as with any warrantless search. There is no mechanical test to apply in determining the animal’s reliability. The dog is not required to be infallible. See Chehil at para. 53.

Nature of Judicial Scrutiny – The Test on Judicial Review

38According to the Supreme Court of Canada, “the requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action”. The onus is on the prosecution to prove the objective facts that underlie the reasonable suspicion such that a reasonable person in the same circumstances would have suspected criminal activity (emphasis added). See Chehil at para. 45.

39Police experience and training may be established so that the court may assess the probative link between the constellation of factors and the suspected criminality. Also, although relevant, an officer’s experience is not entitled to deference on the part of the reviewing judge. See Chehil at para. 47 and MacKenzie at para. 64.

APPLICATION OF THE REASONABLE SUSPICION TEST TO THE FACTS OF THIS CASE…ASSESSING THE ENTIRE CIRCUMSTANCES

40The information which formed the basis for the decision to detain Mr. Barclay came from Officer Kristalovich who received it from a confidential informant.

41Where information from a confidential informant or anonymous tipster figures prominently in the grounds relied upon and presented by the police to a reviewing court, the reviewing Court Justice must consider the three factors enumerated by the SCC in R. v. Debot, [1989] 2 S.C.R. 1140, 53 C.C.C. (3d) 193 These factors are:

a) First, was the information predicting the commission of a criminal offence compelling? b) Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? c) Third, was the information corroborated by police investigation prior to making the decision to place a suspect under investigative detention or conducting a search, including a police drug detector dog search?

42In my view, the information provided by the informant in this case was compelling. The informant provided considerable detail, including the name of the suspect, his height, weight, type of clothing, the type and colour of baggage and the fact that his baggage emitted an odour of marijuana. The informant also knew that the suspect commenced his trip in the City of Vancouver and although he had purchased a ticket to Washago, Ontario he intended to disembark in the Town of Parry Sound, Ontario. The amount of detail reveals that the informant had considerable personal information about the suspect and the circumstances surrounding his trip, which makes the information compelling.

43What also serves to make the information compelling is the fact that Officer Kristalovich was in a position to bring to bear his experience as an RCMP Investigator who deals with consent searches, reasonable suspicion and straight arrest situations on a regular basis, as well as his past familiarity and experience with the informant, and his experience with drug couriers and other travelling criminals using public transportation, including railway trains, in his assessment of the information which he received.

44The second factor to be considered is the reliability of the person providing the information. In this case, the informant was individually known to RCMP Officer Kristalovich. He/she was described by Officer Kristalovich as “past, proven and reliable”. In August, 2013 Officer Kristalovich received information from this informant which led to the arrest of a suspect who was later convicted of the possession of 28 ½ pounds of marijuana for the purpose of trafficking. Subsequent to that arrest, the informant provided him with other information which led to the apprehension and arrest of an individual who was charged with possession of 10 pounds of marijuana for the purpose of trafficking. I note that RCMP Officer Ryan Kristalovich also dealt personally with the informant on the alleged offence date.

45In my view, it was reasonable for RCMP Officer Kristalovich and OPP Officers in the present case to rely upon the known confidential informant and to expect that the informant was telling the truth, based upon his or her past performance.

46The third factor is corroboration of the information provided by the informant.

47Prior to placing Mr. Barclay in investigative detention Officers Scali and Lewis confirmed the following information which had been provided by the informant:

a) The suspect’s name was Devyn Barclay; b) The suspect had embarked on his trip in Vancouver, BC, had purchased a ticket to Washago, ON, but had decided to disembark in the Town of Parry Sound; c) The suspect was carrying with him 2 large black suitcases, was 35 years old, bearded and wearing a Duck Dynasty hat with a red logo.

48In summary, Officers Scali and Lewis were able to confirm all of the details provided by the informant to Officer Kristalovich, with one exception, namely that the suitcases emitted a smell of marijuana.

49The defence argues that although the initial detention may have been lawful, once it was determined by the officers at the scene that they could not detect an odour of marijuana on the suitcases, there no longer existed reasonable grounds on which to suspect that an offence had been committed, and as a result there was no basis for the continued detention of Mr. Barclay and the deployment of a sniffer dog.

50In my view, in order for police to satisfy themselves that they have reasonable grounds for the detention of a suspect, it is not necessary that police corroborate the criminal aspects of the tip; in fact I suspect that it is only on rare occasions that they are able to do so.

51The issue of whether it is necessary to corroborate the criminal aspects of a tip arose in R v. Lewis, 38 O.R. (3d) 540, a 1998 decision of the Ontario Court of Appeal. At paragraph 22 of that decision Doherty J. states:

In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.

52The Ontario Court of Appeal followed this reasoning in 2012 in its decision in R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 where it stated at par. 21 - 25:

21 I disagree with the trial judge about the independent confirmation of the information in the informer's tip. The error in the trial judge's approach is found in this statement:

• As I noted earlier, Officer Naidoo conceded at the preliminary inquiry that he had not corroborated the information provided in paragraph 19 about the layout of the restaurant or about drug use and drug transactions at the restaurant. Nor is there evidence any other officer corroborated the information about drug transactions at the restaurant, although the ITO states the restaurant was under surveillance before the warrant was executed.

22 The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required. In a very short judgment in R. v. Caissey, 2008 SCC 45 the Supreme Court of Canada said the following:

• The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.

23 In the Alberta Court of Appeal, the majority described the independent confirmation as: "the police independently confirmed a number of details, including the identity of the respondent and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle": R. v. Caissey, 2007 ABCA 380 at para. 22. In that case, the informer claimed to have seen a large quantity of drugs in the appellant's apartment. Thus, the details confirmed by the police tended to show that the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession of drugs.

24 In this case, the police had confirmed the address and layout of the interior of the restaurant and the involvement of the respondent and his brother in the restaurant. While not as compelling as the independent confirmation in Caissey, this information could not be disregarded.

25 Considering the totality of circumstances and particularly the compelling nature of the informer's tip, the ITO concerning the restaurant was sufficient.

53Notwithstanding the fact the police officers were unable to detect an odour of marijuana coming from the suitcases, in my view the information provided by the informant remained compelling, credible and sufficiently corroborated. Clearly, the informant, who was past proven and reliable, possessed a significant amount of information about Mr. Barclay and the circumstances of his trip, and almost all of this information had been corroborated upon Mr. Barclay’s arrival in Parry Sound.

54The fact that the odour of marijuana could not be detected by the police officers did not necessarily diminish the credibility of the informant. There are a number of reasonable explanations why the odour of marijuana could not be detected by the police officers in Parry Sound. For example, if the suitcases had been placed in an enclosed compartment in the train the lack of ventilation may have caused the odour to be more noticeable while the suitcases were in transit. Also, odours do not linger forever. The bags had been in transit for 3 days and the marijuana, which was stored in sealed plastic vacuum bags, may no longer have been detectible after this period of time.

55In conclusion, I find that a consideration of a totality of the circumstances provided the police with a reasonable basis to suspect that Mr. Barclay’s suitcases contained marijuana. As such, they were justified in detaining Mr. Barclay and deploying a sniffer dog.

56With respect to Mr. Barclay’s subsequent arrest, in my view the police had reasonable and probable grounds to arrest Mr. Barclay following the positive sniff test, and after doing so they could lawfully conduct a search of the suitcases incidental to that arrest.

57With respect to the length of time that Mr. Barclay was detained pending the deployment of the dog, I am of the view that it was reasonable in the circumstances. Canada is a large country comprised of many small towns which are spread out over great distances. It is not feasible for each of the detachments in these small towns to maintain their own sniffer dogs, and in the circumstances a delay of a little less than 2 hours was not unreasonable.

58Finally, on the basis of Officer Zugehoer’s evidence and a consideration of the canine records he provided to the court, I find that “Racket” is a highly trained and reliable dog and was properly deployed by Officer Zugehoer in this investigation.

Conclusion and Decision

59Upon considering all of the evidence, I am satisfied that the police had reasonable grounds to suspect that Mr. Barclay was in possession of marijuana. As such, his detention and the canine search were lawful.

60Mr. Barclay is charged with possession of more than 3 kg. of Cannabis Marihuana for the purpose of trafficking, contrary to section 5(1) of the Controlled Drugs and Substances Act, and I find him guilty of this count. He is also charged with breaching a prior probation order which was in effect at the time he committed this offence, and I find him guilty of an offence under section 733.1 of the Criminal Code of Canada.