IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. J.J.W., 2008 NSPC 16
Date: April 16, 2008
Docket: 1825930 and 1825933
Registry: Halifax
Her Majesty the Queen
v.
J.J.W.
DECISION ON CHARTER ISSUES
Restriction on publication: S. 110(1) YCJA - Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
Judge: The Honourable Judge Anne S. Derrick
Heard: March 14, 2008 in Halifax Youth Court
Oral decision: April 16, 2008
Charges: Controlled Drugs and Substances Act, section 4(1)
Breach of an Undertaking, section 145(3) Criminal Code
Counsel: Crown - Timothy A. McLaughlin
Defence - Emad Al-Sharief
By the Court:
[1] J.J.W., a young person, is charged with possession of cannabis marijuana contrary to section 4(1) of the Controlled Drugs and Substances Act (CDSA) and a breach of his undertaking contrary to section 145(3) of the Criminal Code. The trial that proceeded on March 14, 2008 included a voir dire on alleged Charter violations.
Introduction
[2] The fundamental issues in this trial are whether J.J.W.’s constitutional rights under sections 9, 10(b) and 8 of the Charter were violated by police and if so, whether the drugs seized from him when he was searched should be excluded from evidence pursuant to section 24(2) of the Charter. The onus lies on J.J.W. to prove on a balance of probabilities that he was subject to a violation of his Charter rights.
[3] It was agreed by Crown and Defence that evidence heard on the voir dire would also be evidence on the trial. J.J.W. and his friend, R.C., testified on the voir dire. In addition, the Defence called the arresting officer, Cst. Dalphy. Cst. Dalphy also testified in the trial proper as did J.J.W.’s father, R.W.
Facts
[4] On September 25, 2007, J.J.W. was a sixteen year old Grade 11 student at L. High School. At lunchtime that day, J.J.W. and two friends, R.C. and P.O., left the school to get something to eat. J.J.W. was driving his car*. ( editorial note- model removed to protect identity) Just down the road from the school, the boys were stopped by police at a checkpoint. J.J.W. had gone through the checkpoint previously on one or two occasions as part of traffic that used the road to get to the school. People going to work also travelled on the road. J.J.W. testified that a car ahead of him went through the checkpoint and that he noticed the police officer was stopping cars on the opposite side of the road as well.
[5] J.J.W. testified that when the police officer, Cst. Dalphy, came up to his driver’s side window, he said the car smelled of “CDSA” which to J.J.W. meant it smelled of an illegal substance, marijuana. Cst. Dalphy directed the boys to put everything on the dash at which point R.C., seated in the back passenger seat, handed up a gram of marijuana. Cst. Dalphy had J.J.W. get out of the car and proceeded to search J.J.W. It was J.J.W.’s evidence that at this time, Cst. Dalphy did not tell him he was under arrest nor did he advise him of his rights. He just told J.J.W. that he was going to search him. There was pedestrian and vehicle traffic on the road as people were going to lunch, which was not unusual. J.J.W. started to scream as Cst. Dalphy searched him, protesting that he was being searched in a sensitive, private area. He testified that he screamed: “He’s grabbing my nuts, he’s grabbing my fucking nuts!” J.J.W. said everyone was watching him get searched and it was “kind of embarrassing.”
[6] It was J.J.W.’s evidence that he had 8 grams of marijuana hidden in his underwear which was discovered by Cst. Dalphy’s search. He had purchased the marijuana at school for sixteen dollars.
[7] In J.J.W.’s view, the purpose of the police checkpoint was to search for drugs. He said he was not violating any motor vehicle laws: he was wearing a seatbelt, which was readily discernible from outside of the car, he had his license plate on, his registration was current with the proper tags on his licence plate, and his safety inspection was up-to-date. Cst. Dalphy did not make any inquires about any of these Motor Vehicle Act requirements.
[8] J.J.W. testified that he was pulled over for about a minute before he was searched, the search taking a minute or two. After the search, when he had been placed in the police cruiser, Cst. Dalphy informed him that his car was going to be impounded and told him his rights for the first time.
[9] R.C., J.J.W.’s passenger who handed over the gram of marijuana, testified that on September 25, 2007 he was no longer a student at L. and had gone there at lunchtime to meet up with J.J.W. They left the school together in J.J.W.’s car and were pulled over at the checkpoint. R.C. testified that he saw vehicles ahead of them being stopped for 10 - 15 seconds while the police officer spoke to the occupants before permitting them to drive on.
[10] R.C. testified that when J.J.W. was pulled over, Cst. Dalphy approached them as he had the other vehicles. He told them that he “smelled something in the vehicle.” R.C. testified: “I think he said something about marijuana.” Nothing was said about registration or insurance. Cst. Dalphy advised them that they were going to be searched and said they should put on the dashboard whatever it was that was producing the smell. R.C. handed forward the gram of loose marijuana from where he was sitting in the back seat. Cst. Dalphy put the marijuana in a bag and said he was going to use it as evidence. He did not tell any of the boys that they were under arrest. R.C. testified: “I don’t think I was told any rights.”
[11] Cst. Dalphy told J.J.W. to get out but directed the two passengers to remain in the car. R.C. testified that other officers arrived and were told to search him and P.O. Nothing was found on R.C. because he had handed over everything he had. The police then let R.C. and P.O. leave and they walked back to the school. R.C. did not observe Cst. Dalphy’s search of J.J.W. He was never arrested or charged with any offence arising out of the events at the checkpoint.
[12] The Defence called Cst. Dalphy to testify on the voir dire about the operation
of the checkpoint. The Defence wanted to establish that the checkpoint was being conducted only ostensibly for traffic safety purposes and that its real objective was drug investigation. It was Cst. Dalphy’s evidence that the police were operating the checkpoint to monitor Motor Vehicle Act compliance with respect to such things as seat belt use and registrations. Cst. Dalphy noted that the police had received complaints about speeding so the checkpoint also served to reduce speed on the heavily travelled road. Cst. Dalphy said while he does keep a look out for drugs at a checkpoint, drugs were not the target of the operation. The warnings and tickets he issued at the checkpoint from September 17, when it was set up, to September 25 included speeding, seat belt violations, stop sign and helmet violations. There were two other drug seizures: one from students who were walking on the road and another from a driver who rolled through a stop sign.
[13] Following the evidence called by Defence on the voir dire, the Crown put Cst. Dalphy in the witness box to testify about his experience with cannabis seizures and what occurred at the checkpoint.
[14] Cst. Dalphy’s evidence established his familiarity with controlled substances,
including marijuana, having been involved in a number of “grow op” investigations and seizures of cannabis marijuana. By September 25, 2007, Cst. Dalphy had seized in 2007 a total of 250 grams of marijuana, the seizures ranging from one gram to 90 grams. He was asked to describe the smell of cannabis marijuana which he said was a “unique” smell with differences between burnt marijuana and fresh marijuana. He described the burnt marijuana as “tickling” the throat. He said the fresh marijuana has a “mustier” smell. When he was asked to comment on the strength of the smell, Cst. Dalphy testified that it depended on whether the marijuana was wrapped in something or whether it was loose, whether it had been dried properly or contained moisture and how fresh it was. Cst. Dalphy’s evidence was that the “home-dried” marijuana was mustier and that “ the moister stuff has a stronger smell.”
[15] Cst. Dalphy then described his dealings with J.J.W. at the checkpoint. He said that when J.J.W. pulled up at the checkpoint, he was at the driver’s door, less than a meter from the car. The car window was open. Cst. Dalphy acknowledged on cross-examination that he did not inquire about registration or insurance. He said he smelled drugs in the car and asked whether there were drugs in the car. J.J.W. replied that he did not do drugs. Cst. Dalphy testified he told J.J.W. that he still smelled drugs and asked him to pull the car over more. On cross-examination he said that J.J.W. was not acting suspiciously, “everything was normal.” Cst. Dalphy went up to the car again, “I could still smell unburnt drugs, marijuana...it was strong, a little stronger than at first but I had more time to notice it.” It was, he said in cross-examination, “A strong, fresh smell of marijuana.” He said it was not “an overnight smell.” Believing there to be marijuana in the car, Cst. Dalphy told the three occupants to put the drugs on the dash. He testified that when they did nothing, he put them all under arrest. At that point, R.C. handed up the loose marijuana which Cst. Dalphy put in his evidence bag. Cst. Dalphy testified that the sequence of events were that he had told the boys he was going to search the vehicle and to pass up the drugs. He then put them under arrest before R.C. handed over the marijuana he had.
[16] After R.C. handed over the marijuana, Cst. Dalphy was still detecting a strong smell of marijuana. He asked J.J.W. to step out of the car. He took J.J.W. around to the back of the car and had him empty out the contents of his pockets on the trunk. Cst. Dalphy testified that the search he then conducted was incidental to the arrest he had made of J.J.W. when he was in the car. J.J.W. was handcuffed during the search. Cst. Dalphy said he patted down J.J.W.’s legs, touched the front of his waistband at which point J.J.W. started yelling, “You’re touching my nuts; you’re touching my fucking nuts.” Cst. Dalphy reached around J.J.W. and pulled eight tin-foil wrapped grams of marijuana from the area above his belt line by his belly button. Analysis, which was not disputed by the Defence, determined these to be cannabis marijuana.
[17] Cst. Dalphy testified that after the seizure of the marijuana, he placed J.J.W. in the patrol car and advised him of his section 10(b) Charter rights. He explained that he had not done this at the side of the road because J.J.W. had been yelling and screaming and it was not safe to do so as there were people around. Cst. Dalphy said only two to three minutes had elapsed between when J.J.W. got out of his car (* editorial note- model removed to protect identity) and when he was placed in the patrol car.
[18] It was Cst. Dalphy’s evidence that he did not recall any marijuana smell coming off J.J.W. after the search. The smell had been coming from the car and he could not pinpoint where in the car. Other than advising J.J.W.’s passengers that they were under arrest before J.J.W. got out of the car, Cst. Dalphy had no further dealings with them. He confirmed that R.C. was never charged for possession of marijuana.
[19] Cst. Dalphy testified in cross-examination that he had not known who in the car had the drugs so he arrested everyone. He was asked about the length of time the smell of marijuana would linger in a car and said it would depend, for example, on whether the windows were left open. The smell could remain behind even if there was no longer any marijuana in the car. Cst. Dalphy’s evidence was that he had a reasonable belief there was marijuana in the car, not merely a suspicion of this. He confirmed that he had no other grounds for believing that J.J.W. had drugs on him other than the smell of marijuana.
[20] Cst. Dalphy made no notes at the time of the checkpoint involving J.J.W. He later prepared two reports of the J.J.W. incident; one was typed up on September 25 at the police station and the other was done on September 27. When it was pointed out to him on cross-examination that his 5 p.m. September 25 report made no mention of an arrest before J.J.W. was searched, Cst. Dalphy said this was an omission by him and that he had arrested everyone while they were in the car and then repeated to J.J.W. that he was under arrest on finding the marijuana in his waistband area. Cst. Dalphy acknowledged that the September 27 report was different from his September 25 report and different from his evidence at trial. At trial Cst. Dalphy said the arrest came before R.C. handed over the gram of marijuana; in the September 27 report Cst. Dalphy indicated that he had arrested J.J.W. and his passengers after R.C. handed over the marijuana but before J.J.W. got out of the car; in the September 25 report Cst. Dalphy stated it was when he had told J.J.W. and his passengers that he was “going to arrest everyone and do a search” that R.C. handed over the single gram. Although he agreed that his reports would have been more accurate as his memory was fresher closer to the events, Cst. Dalphy’s evidence was that the correct version of what happened at the checkpoint was the one he gave in his testimony, that of having arrested J.J.W. at the checkpoint, before R.C. produced the one gram of marijuana and J.J.W. got out of the car and was searched.
[21] Cst. Dalphy was asked on cross-examination about his interaction with J.J.W.’s father but did not recall their conversation. He said he would have summarized everything quickly and explained the circumstances of what happened.
[22] J.J.W’s father, R.W., testified in his son’s defence. On September 25, after a call from his daughter, he went to the R.C.M.P detachment and met with Cst. Dalphy. He asked Cst. Dalphy what was going on and testified that Cst. Dalphy told him he had pulled J.J.W. over at a checkpoint. He smelled marijuana in his car. He asked the boys to produce the marijuana and the passenger in the back seat handed over what R.W. recalled being described as “a bud” (which he said Cst. Dalphy pulled out of his jacket) and then he searched J.J.W. and found more drugs. (R.W. described Cst. Dalphy pulling from his jacket another packet, a baggie with tinfoil.) R.W. testified that Cst. Dalphy told him that after he found the drugs on J.J.W. he arrested him and brought him to the detachment. R.W. described the conversation with Cst. Dalphy as “very pointed” and Cst. Dalphy as a “very animated speaker...he had the props.” According to R.W., the conversation took about ten minutes.
[23] According to R.W.’s evidence, on September 25, 2007, Cst. Dalphy told him
that J.J.W. was arrested following the discovery of the marijuana during the search. Cst. Dalphy did not describe an arrest of J.J.W. occurring before then, while J.J.W. was still seated in the car. (*editorial note- model removed to protect identity)
Issues:
[24] J.J.W. raised a number of issues with respect to the checkpoint and what happened at it. These issues were:
Was the Police Check Stop Beyond Its Constitutional Limits?
[25] J.J.W. attempted to suggest in his evidence and through argument that the checkpoint was operated for an ulterior motive: that its real purpose was to search for and seize drugs while it masqueraded as a traffic stop. I was not satisfied on the evidence adduced that this “wolf in sheep’s clothing” argument was made out and I dismissed it. The onus was on J.J.W. to prove that the checkpoint was being conducted for a purpose outside its stated one but the evidence before me did not persuade me that the checkpoint’s purpose was drug investigation under the guise of monitoring Motor Vehicle Act compliance. This determination did away with the issue of the checkpoint being operated outside of its constitutional limits.
Were J.J.W.’s Section 10(b) Charter Rights Violated?
[26] Cst. Dalphy’s evidence was that he arrested J.J.W. at the checkpoint before he searched him. He acknowledged in his evidence that he did not read J.J.W. his Charter right to counsel until he had placed J.J.W. in the patrol car because of J.J.W.’s yelling and screaming. He concluded it was not safe to “Charter” him at that time as there were people around. On Cst. Dalphy’s evidence he did not give J.J.W. his rights to counsel at the time he says he arrested him. The Crown submits however that only a very short time, two or three minutes, elapsed between J.J.W. stepping out of his car to be searched and receiving his Charter rights. The Crown has argued that J.J.W.’s section 10(b) rights were not violated in these circumstances and that even if there was a “technical” violation, no incriminating evidence was obtained as a consequence. J.J.W. made no inculpatory statements and no conscripted evidence was obtained from him once he was in the police cruiser and his rights read to him.
[27] There does not appear to be any disagreement as to when J.J.W. was given his right to counsel. Both Cst. Dalphy and J.J.W. say this happened when J.J.W. was in the patrol car. According to Cst. Dalphy’s evidence at trial, the arrest of J.J.W. was effected while he was seated in his car. (* editorial note- model removed to protect identity) This was before any screaming or people gathered in the area became an issue with respect to providing right to counsel. Cst. Dalphy’s explanation as to why he did not Charter J.J.W. until he had him in the patrol car is somewhat mystifying: if Cst. Dalphy arrested J.J.W. when he says he did, then, by not advising him at that time of his right to counsel, he did not act in accordance with the requirements under section 10(b) of the Charter. If Cst. Dalphy arrested J.J.W. only after discovering the marijuana on him, the reading of his rights in the patrol car would, in my opinion, have satisfied the Charter imperative. As I have found that the checkpoint was a detention for Motor Vehicle Act compliance purposes, I do not find that J.J.W. should have been given his right to counsel when he was first pulled over by Cst. Dalphy.
Was Cst. Dalphy’s search of J.J.W. a Violation of J.J.W.’s Section 8 Charter Rights?
[28] Cst. Dalphy has testified that the search of J.J.W. followed his arrest, an arrest that was effected before he seized any marijuana. According to the Crown, on Cst. Dalphy’s evidence, the search of J.J.W. was incidental to his lawful arrest in the car (* editorial note- model removed to protect identity) and produced the eight grams of marijuana that anchor the charge before the court. A failure to have given J.J.W. his right to counsel in this case at the time Cst. Dalphy says he arrested him does not make any real difference. As the Crown has argued, it was a technical violation of J.J.W.’s rights. The marijuana would have been discovered in any event, with or without J.J.W. having been given his section 10(b) rights at the first and earliest opportunity. I do not find that anything much turns on the fact that J.J.W. was not afforded his right to counsel until he was placed by Cst. Dalphy in the patrol car although the evidence as to when J.J.W. was given his rights has significance for reasons I will now discuss.
[29] Cst. Dalphy’s evidence is of having arrested J.J.W. and his passengers while they sat in the car (* editorial note- model removed to protect identity) at the checkpoint before R.C. handed over the single gram of marijuana, an arrest that was not followed by advice about right to counsel. I do not accept this evidence. I find that Cst. Dalphy did not arrest J.J.W. until after he discovered the marijuana on him. I have arrived at this conclusion based on the evidence about what happened at the checkpoint, the timing of when J.J.W. was given his right to counsel, and Cst. Dalphy’s inconsistent reporting on the issue of the arrest, including to R.W., in his written reports and at trial.
[30] Prior to testifying at trial, Cst. Dalphy used three opportunities to confirm what
he had done at the checkpoint: two opportunities on September 25 and one on September 27. In his September 25 report, Cst. Dalphy recorded that he told J.J.W. and his passengers he was “going to arrest everyone and do a search.” He did not record that he actually arrested anyone at that time. When he described to R.W. what had transpired at the checkpoint, he described arresting J.J.W. only once he had discovered the marijuana in the course of the search. On September 27, in his second report on the events, Cst. Dalphy apparently recorded that he arrested J.J.W. and his passengers after R.C. handed over the gram of marijuana. At trial, Cst. Dalphy testified that the arrest was effected before R.C. handed over the drugs. He now has no recollection at all of his discussion with R.W. on September 25 but is confident in his current recollection about the checkpoint encounter and asserts it should be relied on over his two reports.
[31] I do not accept Cst. Dalphy’s trial evidence as the most reliable version of when J.J.W. was arrested on September 25. The inconsistencies between his reports and with his trial testimony and his conversation with R.W. seriously undermine the reliability of Cst. Dalphy’s evidence. R.W., whose evidence I accept, remembers Cst. Dalphy’s discussion with him at the detachment in which Cst. Dalphy described what happened at the checkpoint as a series of sequential events which I have already reviewed. R.W. testified that Cst. Dalphy related that he arrested J.J.W. after the marijuana was discovered in the search. This is consistent with J.J.W.’s evidence that Cst. Dalphy did not tell him he was under arrest “until he found the weed on me.” I further note that R.C. testified that Cst. Dalphy did not tell him or the other boys they were under arrest. I accept the evidence of J.J.W. and R.C. that they were not arrested in the car and find it to be consistent with the other evidence I have accepted about what happened at the checkpoint.
[32] In accepting R.W.’s evidence about his discussion with Cst. Dalphy on September 25, I am mindful that he is J.J.W.’s father and could be biased in his evidence. However I saw no indication of this. R.W. impressed me as a parent who was concerned about what he regarded as a violation of his son’s rights but not one that was willing to say anything for his son’s benefit. R.W. is a N.S. A. with the C. A. F. (* editorial note- model removed to protect identity) , and although not a lawyer, he showed some familiarity with legal and constitutional principles. He expressed what I accept was a genuine concern about the exercise of police powers and his son’s rights. R.W. also had a clear recollection of the conversation with Cst. Dalphy whereas Cst. Dalphy could remember nothing about it at all. I found R.W.’s description of the discussion to be credible and convincing.
[33] Also relevant to my analysis about J.J.W.’s arrest is the undisputed fact that Cst. Dalphy did not give J.J.W. his section 10(b) rights until J.J.W. was in the patrol car. The evidence from Cst. Dalphy and J.J.W. establishes that J.J.W. was only advised of his section 10(b) rights when he was placed in Cst. Dalphy’s police vehicle. If Cst. Dalphy had arrested J.J.W. in the car (* editorial note- model removed to protect identity) , there would have been no reason for him not to give him his Charter rights at that time. There was nothing preventing him from advising J.J.W. of his right to counsel. His investigation could have continued as he would not have been obliged to suspend a search of J.J.W. until he had the opportunity to retain a lawyer. (R. v. Debot, [1989] 2 S.C.R. 1140) Cst. Dalphy’s evidence on the section 10(b) issue, that he waited to “Charter” J.J.W. until he was secured in the patrol car because J.J.W. was yelling and there were people around at the time the search was being conducted, is consistent with the arrest being effected when the marijuana was found, as J.J.W. has said, not before. As I have indicated, I do not accept Cst. Dalphy’s trial testimony about the arrest, including his evidence that the arrest after the drugs were found was a re-arrest.
[34] Cst. Dalphy indicated in his September 25 report of the traffic stop that he told
J.J.W. and his passengers he was going to arrest everyone and do a search. J.J.W. and R.C. did not describe that threat in their narrative of events but it may have been said. The possible presence of drugs was certainly mentioned: both boys and Cst. Dalphy agree on that. J.J.W. recalls Cst. Dalphy referring to “C.D.S.A.” Cst. Dalphy may well have employed the threat of arrest and search, including a reference to the Controlled Drugs and Substances Act, as a tactical ploy to gain better cooperation from the boys. Cst. Dalphy’s report indicates some success: he reported on September 25 that after he told the boys he was going to arrest them, R.C. handed over the marijuana he had on him. But what is missing from both of Cst. Dalphy’s reports and his conversation with R.W. is any confirmation that he actually arrested J.J.W. and his passengers while they were in the car. R.C. says he was never arrested at all, even after producing the gram of marijuana.
[35] Considering all the evidence, I find that J.J.W. was only arrested after Cst. Dalphy located the marijuana on him as a consequence of searching him. Based on the evidence I have referred to, including that of J.J.W. and R.C., I do not have confidence in the reliability of Cst. Dalphy’s trial testimony about when he arrested J.J.W. In the circumstances, the search of J.J.W. could only have been lawful if it had been effected incidental to his arrest. As it was not, it violated his rights under section 8 of the Charter.
[36] My factual finding that the arrest occurred when Cst. Dalphy found the drugs,
not at the time he says he noticed the smell, means I do not have to decide if Cst. Dalphy had reasonable and probable grounds to effect an arrest of J.J.W. based solely on the smell of fresh marijuana that he claims was emanating from the interior of the car (* editorial note- model removed to protect identity) . Counsel put considerable effort into presenting case law on the issue of “olfactory evidence” and I will make some comment on it in the context of this case. I note that Rosenberg, J. of the Ontario Court of Appeal in deciding R. v. Polashek, [1999] O.J. No. 968 found that: “The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer.” (paragraph 13) The factors in Polashek that led the trial judge to find that the police officer had reasonable and probable grounds to arrest were, in addition to the smell, a remark by the sole occupant of the car, the fact of the area being one in which drug use was predominant, and the time - 1 a.m. As Mr. MacLauglin observed in this case, courts have indicated that olfactory evidence alone may be enough to ground a lawful arrest. However, given Cst. Dalphy’s evidence that he could not pinpoint who the marijuana smell was coming from and his acknowledgment that the smell could have been caused by J.J.W. having marijuana in the car recently although not at the time of the traffic stop, I likely would have found in this case that the smell alone did not provide reasonable and probable grounds for an arrest of J.J.W. even had I accepted Cst. Dalphy’s testimony as to when that happened.
[37] Cst. Dalphy’s search of J.J.W. also cannot be justified as a search incidental to an investigative detention. J.J.W. was detained at what I have found was a legitimate traffic stop. Investigative detention was not raised by Cst. Dalphy as part of the scenario. Cst. Dalphy had no reasonable grounds to detain J.J.W. for investigative purposes to do with drug possession. He testified that he brought the issue of drugs up because of the smell of fresh marijuana in the car and that, very soon after commenting on that to J.J.W. and his passengers, he arrested them all. Cst. Dalphy testified that J.J.W. was not behaving in a suspicious manner. He cooperated with Cst. Dalphy and emptied his pockets which produced no drugs. There is no evidence that Cst. Dalphy had any reason to fear for his safety and Cst. Dalphy did not suggest safety concerns had any bearing on his decision to search J.J.W. Cst. Dalphy’s evidence was that the search followed J.J.W.’s arrest. As I have indicated, I do not accept that any arrest had occurred prior to the search.
[38] And while I have been provided with authorities that have upheld the lawfulness of searches prior to arrest where the arrest follows quickly (R. v. Sinclair, [2005] M.J. No. 96 paragraphs 20 - 23 (Man. C.A.); R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.)), such a factual situation has not been advanced before me by the Crown. The Crown relies on Cst. Dalphy’s evidence that he effected a lawful arrest of J.J.W. in the car and searched him afterwards, a search that Cst. Dalphy testified was incidental to having already arrested J.J.W. Furthermore, although Cst. Dalphy testified to having a subjective belief that someone in the car still possessed marijuana even after R.C. handed his single gram forward, it was not objectively reasonable for him to believe that it was J.J.W. Cst. Dalphy’s grounds for an arrest of J.J.W. in the Car would have had to satisfy the subjective and objective components required. Even if I had accepted that Cst. Dalphy arrested J.J.W. while he was pulled over at the checkpoint, I would not have found that the objective basis for the arrest was made out on the evidence. (R. v. Storrey, [1990] S.C.J. No. 12)
[39] Cst. Dalphy had no reasonable basis for searching J.J.W. and would have had no reasonable basis for arresting him but for the discovery of the marijuana in the course of the unlawful search. Even somewhat suspicious activity observed by a police officer could not justify an arbitrary detention and unlawful search where no arrest was effected prior to drugs being found. (R. v. Chaisson, [2006] 1 S.C.R. 415)
Cst. Dalphy had even less to go on than the police officer in Chaisson.
[40] Finally, the Crown adduced no evidence that J.J.W. consented to the search. The evidence relied upon by the Crown was that J.J.W. was lawfully searched following a lawful arrest. I have found this not to be the case.
Should the Evidence Be Excluded Under section 24(2) of the Charter?
[41] The Charter breach that requires the section 24(2) analysis is the breach of J.J.W.’s right to be protected from unreasonable search or seizure. As for the section 10(b) issue, I have found on the facts that Cst. Dalphy arrested J.J.W. after he searched him. The evidence establishes that Cst. Dalphy advised him of his section 10(b) rights immediately following his arrest. This was in accordance with Charter requirements and there was, therefore, no violation of J.J.W.’s right to counsel.
[42] The burden rests on J.J.W. to establish, on a balance of probabilities, that the admission of the evidence would bring the administration of justice into disrepute. (R. v. Collins, [1987] 1 S.C.R. 265 at paragraph 30) In Collins, the majority of the Supreme Court of Canada concluded that section 24(2) should be read as providing that “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings could bring the administration of justice into disrepute.” (Collins, supra at paragraph 43) (emphasis added)
[43] There are three categories of factors that are relevant to determining whether the admission of evidence will bring the administration of justice into disrepute under section 24(2) of the Charter:
(i) factors relating to the fairness of the trial;
(ii) factors relating to the seriousness of the Charter breach;
(iii) factors relating to the effect of excluding the evidence.
(R. v. Collins, supra at paragraphs 35 - 39; R. v. Fliss, [2002] 1 S.C.R. 535 at paragraph 75)
[44] The evidence in this case which J.J.W. is seeking to exclude is the eight individually wrapped grams of marijuana. This evidence “existed independently of the Charter breach in a form useable by the state. (R. v. Stillman, [1997] 1 S.C.R. 607 at paragraphs 75 - 77; R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 52) The admission of non-conscriptive evidence like the marijuana discovered in this case, will rarely operate to make a trial unfair as it existed irrespective of the Charter violation and its use will not deprive the accused of a fair hearing. However, while this may represent a general statement on the relationship between real evidence and trial fairness, the facts of J.J.W.’s case bring it into the analysis found in R. v. Mellenthin, [1992] 3 S.C.R. 615 where drug evidence was also secured through the operation of a traffic checkpoint.
[45] In R. v. Mellenthin, [1992] 3 S.C.R. 615, the Supreme Court of Canada used strong language to condemn the admission of evidence obtained through unreasonable searches at traffic stops:
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 following from such a search should not be 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.
[46] In addition to finding on the basis of the Mellenthin principles that the admission of the marijuana seized from J.J.W. would compromise trial fairness, I am satisfied that the breach was a serious one. J.J.W. was subjected to a search that was not incidental to a lawful arrest. It was premised on Cst. Dalphy’s stated belief that he smelled fresh marijuana. This highly subjective assessment was Cst. Dalphy’s only basis for suspecting that J.J.W. or his passengers had drugs in the car. Cst. Dalphy testified that he did not know who might be harbouring the drugs, yet he selected J.J.W. and conducted a pat down search of him. The search was conducted in view of other students and people on the road and was experienced by J.J.W. as embarrassing. Although I do not accept that Cst. Dalphy was grabbing J.J.W.’s testicles in the course of conducting the search, it was a search that involved an intrusion into an area of J.J.W.’s clothing in which he had a high expectation of privacy. Cst. Dalphy testified that he had been trained to search the area of a suspect’s waistband. There is a parallel here with the private nature of a person’s pockets: J.J.W. was using the waistband area of his underwear for out-of-sight storage just as pockets are used.
[47] The Supreme Court of Canada in R. v. Mann, supra recognized that individuals, not subject to arrest, have a reasonable expectation of privacy in their pockets. The search of Mr. Mann, a pat-down search that included reaching into his pocket, was found to have gone beyond what was required to mitigate concerns about officer safety and to reflect a serious breach of Mr. Mann’s protection against unreasonable search and seizure. (paragraph 56) In my view, the Mann principles are relevant to my assessment of the seriousness of the breach of J.J.W.’s rights: a search that unreasonably intruded upon an area akin to a pocket is a serious breach of rights.
[48] Cst. Dalphy’s good faith does not save the illegal search and secure the admission of the evidence. The Supreme Court of Canada has held in R. v. Buhay, [2003] 1 S.C.R. 631 at paragraph 59 that “ good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the scope of his or her authority.” By not arresting J.J.W. before searching him, Cst. Dalphy committed an unreasonable error. The fact that Cst. Dalphy undertook the search of J.J.W. in apparent good faith and not to humiliate J.J.W. or for other malicious or ulterior purposes, does not dilute the seriousness of the breach of J.J.W.’s section 8 rights.
[49] The final consideration in the section 24(2) analysis is whether the exclusion of the evidence could adversely affect the administration of justice. The purpose of section 24(2) is to prevent the administration of justice from being brought into “further disrepute” by the admission of evidence in the proceedings. In Collins, supra at page 281, Lamer J. explained that: “This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies.” Collins established that it is not only the instant prosecution but also “the long term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered.” (Collins, supra at paragraph 31)
[50] J.J.W. is charged with possession of a small amount of cannabis marijuana. The seized evidence is required for a conviction. As found in R. v. Kokesh, [1990] 3 S.C.R. 3 at paragraph 57, it cannot be denied that the administration of justice could suffer some degree of disrepute from the exclusion of this evidence.
[51] However in Mann, where the charge was one of possession for the purpose of trafficking, a more serious charge than the one before me, the Supreme Court of Canada upheld the trial judge’s decision to exclude the drug evidence notwithstanding that it represented the Crown’s case against Mr. Mann. Citing Buhay, supra at paragraph 71, the Court held at paragraph 15:
“...evidence which is non-conscriptive and essential to the Crown’s case need not necessarily be admitted. Just as there is no automatic exclusionary rule, there can be no automatic inclusion of evidence either. The focus of the inquiry under this head of analysis is to balance the interests of truth with the integrity of the justice system. The nature of the fundamental rights at issue, and the lack of reasonable foundation for the search suggest that the inclusion of the evidence would adversely affect the administration of justice.”
[52] The Court went on to note: “The vibrancy of a democracy is apparent by how wisely it navigates through these critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.” (Mann, supra, paragraph 15)
[53] The seriousness of the breach mandates against the inclusion of the evidence notwithstanding the significance of the evidence to the charge. I find that the admission of evidence obtained by way of an intrusive and invalid search of J.J.W.’s person could adversely affect the administration of justice. This was not a trivial or technical breach of rights (Buhay, supra at paragraphs 52 - 53). It was a serious intrusion of J.J.W.’s right not to be subjected to an unlawful search. I find that the exclusion of the evidence obtained from J.J.W. unlawfully through a serious breach of his constitutionally protected rights is appropriate in this case to protect the integrity of the administration of justice. It is the Charter’s purpose to protect individuals from the arbitrary exercise of state power. I find that J.J.W. has satisfied me that his Charter rights were violated and that the drugs seized from him in the course of the unlawful search should not be admitted into evidence.
Judge Anne S. Derrick
Judge of the Provincial Court