Supreme Court

Supreme Court of Nova Scotia

Citation: R v. Mills, 2021 NSSC 358

Date: 20211004

Docket: Pt. H. No. 505736

Registry: Port Hawkesbury

 

Between:

 

Her Majesty the Queen

 

v.

Bruce Richard Mills

Respondent

 

 

 

Judge:	The Honourable Justice Patrick J. Murray
Heard:	September 3, 2021, in Port Hawkesbury, Nova Scotia
Decision:	October 4, 2021
Subject:	Cannabis Control Act of Nova Scotia. Seizure of machete type knife, seizure of controlled substances. Charter of Rights and Freedoms.
Summary:	Experienced RCMP officer performing vehicle traffic stop.  Accused driver exhibiting nervous behaviour, unable to produce rental agreement for vehicle.  Officer detecting odour of cannabis. Police check information showing driver had record for previous weapon and drug offences.   Officer performing inspection of cabin area, pursuant to provisions of Cannabis Control Act. Knife in leather sheath located between the driver’s seat and console.    Accused arrested.  Officer performing further search of vehicle resulting in quantity of cocaine, cash and other items located in vehicle.
Issues:	Were there reasonable grounds for the search and was the search reasonable? Was the Accused right to be protected from unreasonable search and seizure pursuant to s. 8 of Charter breached?
Result:	Cannabis Control Act provisions authorizing initial inspection of vehicle, which resulted in evidence that permitted officer to arrest and perform further search incident to arrest. Court found there were reasonable grounds for the search and the search was reasonable. No breach of section 8 of Charter found, but if there had been, the Court would not have excluded the evidence pursuant to s. 24(2).
Caselaw Considered:	Hunter et al v. Southam Inc., [1984] 2 S.C.R. 145; R v. Collins, [1987] 1 SCR 265; R v. Grant, 2021 ONJC 90; R v. Morris, 2020 CarswellOnt 19645; R v. Storrey, 1990 1 SCR 241; R v. Grant, 2009 SCC 32; R v. Caslake 1998 1 SCR 51(SCC);

 

SUPREME COURT OF Nova Scotia

Citation: R v. Mills, 2021 NSSC 358

Date: 20211004

Docket: Pt. H. No. 505736

Registry: Port Hawkesbury

 

Between:

 

Her Majesty the Queen

 

v.

Bruce Richard Mills

Respondent

 

Judge:	The Honourable Justice Patrick J. Murray
Heard:	September 3, 2021, in Port Hawkesbury, Nova Scotia
Written Decision:	October 4, 2021
Counsel:	Wayne MacMillan for the Crown Justin Cashin for Mr. Mills

By the Court:

Introduction

[1]             This is a Charter decision on an application filed by the Accused, Bruce Mills, claiming that his right to be protected from unreasonable search and seizure has been infringed.  Mr. Mills has been charged with numerous offences in an indictment, which include drug, weapon, and other Criminal Code offences as a result of a highway traffic stop on May 24, 2020.

[2]             At the time of the alleged offence, the investigating officer, Corporal Travis MacDonald, was patrolling the area of highway 104, near the village of St. Peter’s, Province of Nova Scotia.  Corporal MacDonald conducted a highway traffic stop of Mr. Mills’ vehicle after registering his vehicle travelling at a rate of speed higher than the posted speed limit.

[3]             During the stop, Mr. Mills was asked to present his identification which he complied with by providing a valid Nova Scotia Driver’s Licence.  The vehicle driven by him was rented from Enterprise Car Rental.  The Accused, at the time of the stop, could not produce the rental agreement, as requested by Corporal MacDonald.

[4]             The officer returned to his police vehicle and performed the usual roadside checks with respect to Mr. Mills.  He obtained information that accused had a record which included criminal convictions related to drugs, assault, and weapons offences.

[5]             Corporal MacDonald had also advised the Accused that he could smell marijuana, to which the Accused replied that he was unaware if any marijuana was present in the vehicle.  Corporal MacDonald asked the Accused to step out of the vehicle to allow Corporal MacDonald to inspect the cabin.  Before doing so he conducted a “pat down” search of Mr. Mills’ person.

[6]             Corporal MacDonald searched the cabin area of the vehicle and found what appeared to be a large knife/machete within a leather sheath.

[7]             Corporal MacDonald subsequently placed the Accused under arrest for possession of a weapon dangerous to the public.

[8]             Corporal MacDonald then proceeded to perform an incidental and warrantless search of the vehicle.  As a result of the search, further evidence was found, which led to a further arrest and the charges currently before the Court.

Issues

(1)             Were there reasonable grounds for the search of Mr. Mills’ vehicle?

(2)             Was the search of Mr. Mills’ vehicle reasonable?

(3)             If the search of Mr. Mills’ vehicle was unreasonable, what is the appropriate remedy for this infringement?

Burden of Proof

[9]             It is common ground that the search of Mr. Mills vehicle was conducted without a warrant and thus is prima face unreasonable.  (Hunter et al v. Southam Inc., [1984] 2 S.C.R. 145).  The burden therefore, is on the Crown to prove on a balance of probabilities that the search was, in fact, not unreasonable.

[10]         The Crown accepts it has the burden to establish the validity of the search where there was no search warrant.  However, the Applicant has the burden of convincing the Court, on a balance of probabilities, that excluding the evidence from the proceedings against him under s. 24(2) of the Charter is the appropriate remedy for any breach of his Charter rights: R v. Collins, [1987] 1 SCR 265 at paragraph 30.

Analysis

[11]         In giving his evidence, RCMP Corporal MacDonald, described in sequence each step in the process of investigating and arresting Mr. Mills.

[12]         First, there was the stop for exceeding the posted speed limit, with the Accused being somewhat nervous and unable to provide the rental agreement.  During this time the officer detected an odour of marijuana which he described as raw or “skunky”.  While Mr. Mills was searching for the rental agreement the officer completed his checks on the licence and Mr. Mills.  On returning to the Accused’s vehicle the officer pointed out to the Accused that he could smell marijuana.  Mr.  Mills indicated he has smoked it in the car, but assured the officer he was not impaired.  When asked if he had any cannabis in the vehicle, the Accused was unsure.

[13]         Secondly, there was the officer’s decision to inspect the vehicle.  His evidence was this was not intended to be a “deep search”.  He gave evidence as to his authority under the Cannabis Control Act, 2018, c. 3, s.1, and that it was limited, and extended only to the driver’s seat area, and an area within arm’s length.

[14]         Under s. 24 of the Cannabis Control Act, the officer is given the power at any reasonable time to “enter and inspect any place or vehicle in respect of which the Act applies” and with the exception of a private dwelling, “make any examination, inquiry or conduct any test that the police officer considers necessary or advisable”.

[15]         On their plain wording, these are broad powers.  As there is little judicial consideration of these powers in this province, they must be read in context of and together with the purpose of the Act, so as to arrive at a proper interpretation of these powers, as they apply to any given case.

[16]         The purpose of the  Cannabis Control Act, is stated in Section 2.  It is clear the Act is intended to control the “purchase, possession, sale, and distribution” of cannabis (s. 2(a)) and among other things, “protect public health and safety (s. 2(b)(i)).

Purpose of Act

2. The purpose of this Act is to

(a) regulate and control the purchase, possession, sale and distribution of cannabis;

(b) establish prohibitions relating to the purchase, possession,

sale, distribution, consumption, cultivation, propagation and harvesting of

cannabis to

(i) protect public health and safety,

(ii) protect youth and restrict their access to cannabis, and

(iii) ensure that recreational-use cannabis is only sold in accordance with this Act; and

(c) deter unlawful activities in relation to cannabis through appropriate enforcement and sanctions.

[17]         Section 5 of the Act, lists in s. 5(1)(a) to (e) the activities to which the Act does not apply.  Section 5(2) for example provides that section 22 of the Act applies to the “consumption of medical cannabis”.

[18]         It is clear the authority given to police under s. 24 to ensure compliance with the Act or Regulations is predicated upon “the activities” being those “in respect of which the Act applies”, as contained in each of s. 24(1)(a) to (d).

[19]         There are further police powers, which include, the right to “exercise any other powers and perform any other duties as prescribed by the Regulations. (s. 24(1)(e)); and to exercise any powers and perform any duties that are incidental to the powers set out in clauses 24(1)(a) to (e). (s. 24(1)(f)).

[20]         Turning to the evidence given at the Charter hearing, Cpl. MacDonald formed the belief that it was necessary and advisable to conduct an inspection of the cabin area of the vehicle. 

[21]         Cpl. MacDonald testified as to his belief in circumstances he was facing:  

A:  … At that point with everything that I learned leading up to that, you know with the convictions, and the odour and my own experiences in dealing with it, and with the CCA knowing the inspection authority attached to it, I had explained to him that under the CCA I would be conducting an inspection of the cabin.  So I asked him to exit the vehicle.

Q:  When you refer to that term cabin, what is, what do you mean by that term?

A:  It’d just be where he is seated, it wouldn’t be like an intensive search of you know ripping the car apart, going into where he could reach and like, it was from the Act myself the spirit of the law seemed to be to have people almost as if it’s liquor you don’t want people driving with a beer bottle between their legs and the same style of spirit.  You know, if there is some there, lets get it and put it in the trunk or a safe space away from the driver.  So that inspection authority is not like a search, a deep intensive search, just kinda to make sure it’s not there and then you know… so I asked him to exit from the vehicle, he did, he was cooperative, no issues, when he exited I explained to him that he wasn’t that because of the inspection he was detained, he wasn’t free to go, he wasn’t under arrest, but he wasn’t free to go.  I asked him, or I explained to him that I would be giving him ah, because he was detained, I would be giving him a pat search own, or a search, just a pat search down just to see if he had any weapons.  And I asked him if he had any weapons and he said “no”.  And I gave him that pat search, just a pat down and then I had him stand you know, in front of my police vehicle and that’s…(Emphasis added)

[22]         During the initial cabin inspection, Cpl. MacDonald found a machete type knife, which was located between the console and the driver’s seat area.  The officer subsequently arrested the Applicant for possession of a dangerous weapon.

[23]         From there the officer performed a search of the vehicle, incidental to the arrest and discovered cocaine, which then led to a further arrest of the Applicant for possession of cocaine for the purpose of trafficking, and possession of a prohibited firearm.

[24]         According to the officer’s evidence, the search of the vehicle led to the discovery of 16 grams of cocaine, 16 grams of crack cocaine, a firearm, as well a large sum of cash, among other items seized.

[25]         In order for the Court to entertain the remedy sought by this Application under s. 24(2), exclusion of the evidence, it must first determine whether the Applicant’s Charter Rights, have been infringed or denied.  Sections 24(1)and (2) of the Charter, read:

Enforcement

Enforcement of guaranteed rights and freedoms

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[26]         The Applicant submits that his Charter rights pursuant to s. 8 have been violated in this case.  Section 8 of the Charter reads:

Search or seizure

8 Everyone has the right to be secure against unreasonable search or seizure.

 

Applicant’s Position

[27]         The Applicant argues that due to the lack of physical cannabis present, coupled with only the odour of cannabis, and no physical signs of impairment of Mr. Mills, that the search conducted by Corporal MacDonald was unconstitutional and infringed Mr. Mills’ right under s. 8 of the Charter.  The Applicant, therefore, submits that there was no lawful authority to authorize the search of Mr. Mills’ vehicle.

Crown’s Position

[28]         That Cpl. MacDonald had full legislative powers to inspect the Applicant’s vehicle for compliance with Cannabis Control Act.  He acted reasonably at all times.  He was dealing with an individual who had a history for drug convictions and who was operating a vehicle from which the smell of marijuana was emanating; and this was in conjunction with the Applicant’s nervous behaviour and evasive answers to the Officer’s questions.  The Officer was at all times acting in good faith.  The fact that no marijuana was found does not in any way retroactively affect the actions taken by the Officer.

[29]         For the search to be lawful, the Crown must establish on the balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable.  (R v. Collins, [1987] 1 S.C.R. 265)

Vehicle Stop

[30]         Cpl. MacDonald gave evidence that the suspect vehicle, was “clocked” as exceeding the posted speed limit.  Using the activated radar equipment, the measured speed was 128 km/h in  100 km/h zone.  Under the Motor Vehicle Act such a stop is authorized to allow police officers to ensure public safety on roads and enforce the provisions of that Act.

Inspection

[31]         Under the provisions of the Cannabis Control Act, earlier cited in this decision, the police have the power to inspect a vehicle, at any reasonable time, if they deem it necessary or advisable, for among other things, public safety. 

[32]         I find that such an inspection in this case occurred at a reasonable time, in that Cpl. MacDonald was conducting routine patrols.  It did occur late at night, but the responsibility of the police to ensure public safety does not stop at any certain hour, it continues.

[33]         Cpl. MacDonald, an RCMP officer with 13 years experience, including experience in drug matters, testified that there were a number of factors that lead to his decision to perform an inspection.  I earlier referred to some of his evidence.  In addition, Mr. Mills was unable to locate the rental agreement for the vehicle which was registered to Enterprise Car Rental.  

[34]         Underlying this, is Cpl. MacDonald’s evidence that Mr. Mills seemed quite nervous during his interactions with him.  Corporal MacDonald was the only witness who testified at the Charter hearing.

[35]         The Applicant has argued that the cabin inspection by RCMP officer MacDonald, was improper and not authorized by the Cannabis Control Act of Nova Scotia.

[36]         In support of this submission, the Applicant has submitted and relied upon two cases, which dealt with the Cannabis Control Act of Ontario.  In each of those cases, the Court ruled that the police were justified in exercising the powers given to them under similar legislation.

[37]         In R v. Grant, 2021 ONCJ 90, the officer discovered cannabis on the Accused’s person, which occurred when the Accused produced cannabis from within his pocket.  The Court ruled that pursuant to section 12 of the Ontario Cannabis Control Act, the investigating officer had reasonable grounds to search the occupants of the car, the intent and aim of that section, being road safety and public welfare.

[38]         In R v. Morris, 2020 CarswellOnt 19645, it was similarly held that an unsealed bag of cannabis being visible in the centre console, gave rise to the valid exercise of police powers under section 12 of the Ontario Cannabis Control Act.

[39]         The Defence here respectfully submits that this Court should look to the Ontario caselaw for guidance in relation to the interpretation of the Nova Scotia legislation.

[40]         In so doing, however, the Court must also be cognizant of similarities and differences in the wording of the provisions in interpreting the respective legislative provisions.

[41]         As submitted by the Crown in the present case, the Ontario legislation is distinguishable from the Nova Scotia legislation. Section 12(3) of Ontario’s Cannabis Control Act reads:

      Search of vehicle or boat

3.  A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.  [Emphasis added]

[42]         By comparison of s. 24(1)(a) of the Cannabis Control Act of Nova Scotia reads:

24(1)  For the purpose of ensuring compliance with the Act and the regulations, a police officer may, at any reasonable time,

(a)   enter and inspect any place or vehicle in respect of which this Act applies, except a private dwelling, and make any examination or inquiry or conduct any test that the police officer considers necessary or advisable; [Emphasis added]

[43]         I concur with the Crown’s submission.  It must be recognized there are key differences between the two Acts.  I am satisfied the Nova Scotia legislation provides much broader authority.  Still, I find that which a police officer “considers necessary and advisable”, should be approached from both a subjective and objective stand point.

[44]         Given its broad wording, the Nova Scotia Cannabis Control Act should not be interpreted to simply give wide open or “carte blanche” authority in all cases to search, under the guise of an “entry or inspection of any place or vehicle”.  The extent of the authority will depend on the facts in each case.

Decision

[45]         A fundamental question here is whether a search purportedly carried out under the Cannabis Control Act, (following a Motor Vehicle Act traffic stop) can provide a basis in law for a constitutionally valid search.

[46]         In this case, I find that each of the steps taken had to be lawful.  Although this Court is not dealing with charges under the Cannabis Control Act, I find that Cpl. MacDonald was authorized to perform the inspection he did, at that point during the stop.  As he himself testified, there were a number of factors that led him to conclude that an inspection was warranted.  That was the narrow scope of his authority which he acknowledged in giving his evidence.

[47]         In his evidence, the officer was mindful of the limited scope of examining the cabin area.  He was asked about his training and education with respect to these new provisions. 

[48]         Under the Motor Vehicle Act, evidence obtained while a police officer is exercising lawful authority under that Act, will commonly lead to charges under the Criminal Code and drug related matters.

[49]         Road safety and public welfare were found to be the intent and aim of the Cannabis Control Act of Ontario.  (See Grant at paragraph 107) Similarly the Nova Scotia Cannabis Control Act is aimed at protecting “public health and safety.”

[50]         In my view, section 5(1)(c) of the Act, does not impact on that authority.  As such authority could lead to further charges under other legislation, including the Criminal Code and CDSA, as here, the Court must be guarded in its interpretation.

[51]         There are other provisions of the Cannabis Control Act of Nova Scotia which could be interpreted to limit the scope and/or application of the “search powers” under the Act.  Included in these are Section 5(1)(a), 22, 23, and the penalty section 32.

[52]         On the whole of the evidence I am satisfied that the steps taken by Cpl. MacDonald, in sequence were authorized by either, statute or common law.

[53]         At each of these steps Cpl. MacDonald had a sound basis for the steps taken.   He gave his evidence in a straightforward manner, without embellishment.

[54]         The traffic stop for excessive speeding led to the initial inspection under the Cannabis Act, which lead to finding the knife which led to the arrest, which in turn led to the search incidental to the arrest. 

[55]         There is authority at common law for a search incidental to an arrest. (Cloutier v Langlois, 1990 1 S.C.R. 158)   The main ground of contention is not whether the weapon found provided sufficient grounds for the search incidental to the arrest.  Pursuant to s. 495 of the Criminal Code, once the officer found the weapon, which had not been disclosed, he had formed the grounds subjectively and objectively that the Accused was in possession of a weapon for a dangerous purpose. (R v. Storrey, 1990 1 SCR 241)

[56]         He subsequently provided the Accused with the verbatim police caution and Charter caution pursuant to section 10(a) and (b).

[57]         In Collins, supra, the Court found that for a search to be reasonable, it must be 1) authorized by law; 2) the law itself must be reasonable; and 3) the search itself must be conducted in a reasonable manner.  I am satisfied on the evidence presented that these requirements have been met in this case.  The Crown’s brief contains the following at para.17:

The Motor Vehicle Act, RSNS 1989, c. 293, authorizes police officers to stop vehicles for highway regulation and safety purposes, even where the stops are random: R v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 SCR 1257, at p. 1288.  However, this detention must be brief, unless other grounds are established that permit a further detention.  An officer may require a driver to produce the documents drivers are legally required to have with them.  To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham (1988), 116 OAC, at paragraph 24.

[58]         The inspection and further search here was conducted in furtherance of public safety, safety of the Accused and police, and to facilitate further evidence.  There was no evidence the search was performed in an abusive fashion.

[59]         The suggestion by the Defence that the officer had a misleading sense of smell, because no cannabis was found, is not a basis for finding the search was unreasonable.  It does not obviate the actions taken by the officer.

[60]         It is my view that Act applied to the activity in question.  The Accused, Mr. Mills, informed the officer he had smoked it in his vehicle, and was also unsure whether there was any cannabis present in the vehicle.  Had cannabis been found, the officer was authorized to seize same under section 25 as possession of it would have provided reasonable grounds to seize same.

[61]         In the result, I find that there were reasonable grounds for the search and that the search was reasonable.  There being no violation of section 8, the Charter application is dismissed.

[62]         While it is unnecessary to do so I will address s. 24(2) and whether the remedy of exclusion of the evidence would have been granted if there had been a Charter breach.

Section 24(2)- Exclusion of the Evidence

[63]         I shall briefly address the relevant considerations in the leading case of R v. Grant, 2009 SCC 32)

1.                 Seriousness Breach

[64]         It is clear from the evidence that the police were acting in good faith.  Cpl MacDonald was applying new legislation.  He initially considered issuing a warning for the excessive speed until he made further inquiries and based on the information he learned, he carried out an inspection.  A motor vehicle carries a reasonable expectation of privacy, although not as high for example, as a private dwelling.  The officer was required to consider protection of the public and road safety.  The measures taken were minimally intrusive and evolved during the incident. (see R v. Caslake 1998 1 SCR 51(SCC))

2.                 Impact of Breach

[65]          A violation in these circumstances would have a significant impact on the Accused’s Charter rights.  If the officer had not located the knife, the steps that followed, such as the arrest and the search incidental to it, the seizure and the re- arrest may not have been justified.  There did exist however, other grounds for the search of vehicle, including the history, the lack of a rental agreement, and the nervous demeanour observed by the officer.  The officer also made mention of a white powdery substance that he observed on the bottom interior of the passenger door.  The officer felt it was important to establish that Mr. Mills was in lawful possession of the vehicle.  The officer also explained the legal process to the Applicant at each relevant stage.

3.                 Society’s Interest in a Trial on its Merits.

[66]         The evidence sought to be excluded is real evidence.  A strong argument exists for the Crown’s position that the administration of justice would be negatively impacted without a trial on its merits.  As is often the case this factor weighs heavily against exclusion.

[67]         Overall, balancing these inquiries and the entire circumstances, I am not satisfied that admission of the evidence would bring the administration of justice into disrepute.

[68]         I therefore, have decided that even if there had been a breach the Charter, that the evidence obtained should not be excluded.

Conclusion

[69]         The Charter Application of Mr. Mills pursuant to section 8 and 24(2) is dismissed. 

Murray, J.