/jmj Q.B.J. A.D. 1996 No. 991 J.C. Y. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: HER MAJESTY THE QUEEN and LORRY RICHARD SMITH D.A. Halvorsen for Her Majesty the Queen T.J. Brown for Lorry Richard Smith JUDGMENT McINTYRE J. May 26, 1999 [1] The accused, Lorry Richard Smith ("Smith"), is charged: 1. on or about the 22nd day of November, A.D. 1995 at Moosomin District, in the Province of Saskatchewan, did unlawfully traffic in narcotic, to wit: cannabis marihuana contrary to Section 4(1) of the Narcotic Control Act; 2. on or about the 22nd day of November, A.D. 1995, at Moosomin District, in the Province of Saskatchewan, did unlawfully have in his possession narcotic to wit: Cannabis (Marihuana) for the purpose of trafficking, contrary to Section 4(2) of the Narcotic Control Act; 3. on or about the 22nd day of November, A.D. 1995, at Moosomin District, in the Province of Saskatchewan, did unlawfully cultivate Cannabis (Marihuana) without authority contrary to Section 6(1) of the Narcotic Control Act. [2] A voir dire was conducted to determine the admissibility of marihuana plants seized by a police officer as a result of a warrantless search. [3] On November 22, 1995, Cst. Ken McLaughlin of the RCMP was on highway patrol travelling east on the number highway approaching the Manitoba border when he noticed Ryder rental van with Ontario licence plates stopped on grid road leading to Saskatchewan tourist information booth just off the highway. As he was approaching the Manitoba border and had to turn around, Cst. McLaughlin testified he turned on to the grid road and drove up to the van. He noticed Smith standing at the rear of the van. [4] At this point Cst. McLaughlin said he had no reason to believe an offence had been committed and he approached Smith to see if he required any assistance. Cst. McLaughlin says he will stop couple of times month to offer assistance to motorists. Cst. McLaughlin says he was seated in an unmarked police cruiser wearing an RCMP uniform, being parka with crests on each shoulder. It was approximately 1:20 p.m. in the afternoon. [5] Cst. McLaughlin testified he was the first to speak. It is to be noted that as result of voir dire conducted within this voir dire it was determined that the conversation between the accused and Cst. McLaughlin is admissible under common law principles as part of the Crown's case that there was reasonable and probable cause for warrantless search. Cst. McLaughlin said hello, or words to that effect. He could not recall the response of the accused. [6] Cst. McLaughlin asked if there were any problems with the vehicle and as he recalls it the accused responded he was looking for place to relieve himself. Cst. McLaughlin asked Smith where he was going and was told British Columbia. Cst. McLaughlin then asked Smith what he had in the back of the van. Cst. McLaughlin says that at this point he had no reason to believe an offence had been committed. [7] Cst. McLaughlin says that Smith's answer was two cases of wine. In cross-examination counsel suggested the answer may have been "A case of wine". The notation in Cst. McLaughlin's notebook was "case of wine". While counsel suggested there were prior inconsistent statements, none were established. Counsel called John Williams, who had been Smith's counsel at the time. Mr. Williams testified that two days after the incident Cst. McLaughlin told him the accused's answer was two cases of wine. am satisfied the response was two cases of wine. In the end result, whether the answer was two cases of wine or case of wine is not determinative of this case. [8] At this point Cst. McLaughlin testified that Smith was no longer free to go as he now had reason to believe Smith had committed an offence under The Alcohol and Gaming Regulation Act, S.S. 1988-89, c. A-18.01, although this was not communicated to Smith at this point in the events as they unfolded. [9] The Alcohol and Gaming Regulation Act, provides: 108(2) person who is not minor may: ... (e) bring into Saskatchewan beverage alcohol legally purchased or acquired in any part of Canada other than Saskatchewan not exceeding the kind and quantity prescribed in the regulations. Section 50 of The Alcohol Control Regulations, 1994, R.R.S., c. A-18.01, Reg. provides: 50 For the purposes of clause 108(2)(e) of the Act, the maximum quantity of beverage alcohol purchased or acquired in any part of Canada other than Saskatchewan that person may bring into Saskatchewan is, in the case of: (a) spirits, 1.14 litres; (b) wine, 1.14 litres; and (c) either beer, coolers or any combination of beer and coolers, nine litres. [10] Cst. McLaughlin testified that he then asked Smith to open the back of the van. note that the van in question is one in which the cargo portion of the van is separate from the passenger compartment. Smith opened the back of the van and Cst. McLaughlin entered. He testified that the back of the van was divided in half by blue tarp suspended from the roof. Cst. McLaughlin proceeded to examine that portion in the van behind the blue tarp. He observed black box about the size of trunk. There were some items on top of the box and temperature and humidity gauge on top of these items. There was propane tank and propane tree. There was carton containing eight 750 ml. bottles of wine. There was another carton containing other miscellaneous items such as duct tape and can of black spray paint. [11] It was Cst. McLaughlin's recollection it had been about minus 10 degrees centigrade that morning. He believed the propane heater was operating. The wine was situated between the black box and the propane tank. Cst. McLaughlin testified he wanted to examine the black box for the second case of wine. He was not able to open the box, as it was padlocked. [12] Cst. McLaughlin and Smith then exited the van. The accused was allowed to relieve himself. Cst. McLaughlin searched the accused for the key to the black box and to ensure his own safety. Smith was arrested and placed in the back of the patrol car. The accused was arrested for bringing into Saskatchewan quantity of alcohol in excess of that permitted. Cst. McLaughlin testified that when he arrested Smith he read to him from card he carries for that purpose and advised Smith of his right to call lawyer. [13] Cst. McLaughlin testified he then told Smith it was his practice to ask persons suspected of bringing in an over quantity of alcohol to relinquish the same in which event the person would not be charged. [14] Cst. McLaughlin contacted Cst. Ross, then of the Moosomin detachment of the RCMP, for assistance and asked Cst. Ross to contact the highway traffic board and have two officers dispatched to Cst. McLaughlin's location. The highway traffic board officers arrived and one of them proceeded to drive the Ryder van to the highway traffic board weigh scale some two or three kilometres from the tourist information booth. Cst. McLaughlin transported the accused to the weigh scales in his patrol vehicle where Cst. McLaughlin and the highway traffic board officers were met by Cst. Ross. [15] Cst. McLaughlin testified that Smith was then given an opportunity to call lawyer and to afford him privacy for that purpose Smith was put in room by himself. After placing call Smith then received call on the highway traffic board office phone. After concluding his call Smith was placed in the back of the patrol car. [16] Cst. Ross testified he was to be the exhibit person. He went to get camera and then proceeded to try and open the black box. Cst. Ross acknowledged there were two justices of the peace in the Moosomin area but he did not know if justice of the peace was available at that time. Cst. Ross testified obtaining warrant never crossed his mind. He said he had done many searches of vehicle for liquor. [17] Cst. Ross removed two padlocks which were on the black box but found this did not provide entry to the box. It was determined the lid of the box had been screwed to the body of the box by 16 to 20 screws. Cst. McLaughlin instructed Cst. Ross to remove the screws, which he did. Inside the box Cst. Ross found what appeared to be 524 marihuana plants ranging from three to nine inches in height. [18] After opening the box, Cst. Ross then searched the cab of the van where he found brief case. He opened the brief case in which he found note book and numerous receipts. He also seized screw gun and the can of spray paint. [19] The accused was then arrested for offences under the Narcotic Control Act, R.S.C. 1985, c. N-1. [20] Cst. McLaughlin testified that search warrant did not cross his mind as they were searching pursuant to The Alcohol and Gaming Regulation Act which provides: 143 Any officer may arrest, without warrant, any person who he finds committing an offence against this Act. 145.1(1) In this section and in section 147, "conveyance" includes vehicle, aircraft, boat or other means of transport. (2) justice may issue warrant to search conveyance named in the warrant and seize anything that may be evidence of an offence against this Act or the regulations on the oath of an officer that there are reasonable and probable grounds to believe that: (a) an offence against this Act or the regulations has occurred; and (b) evidence of an offence is likely to be found in the conveyance. (3) An officer with warrant issued pursuant to subsection (2) may: (a) enter and search any conveyance named in the warrant; (b) open and examine any trunk, box, bag, parcel, closet, cupboard or receptacle that he or she finds in the conveyance named in the warrant; (c) seize anything that may be evidence of an offence against this Act or the regulations; (d) seize and remove any beverage alcohol and the containers in which it is found. 146(1) In this section and in section 147, "exigent circumstances" means circumstances in which an officer has reasonable and probable grounds to believe that the delay necessary to obtain warrant pursuant to section 145 or 145.1 would result in danger to human life or safety or the loss, removal or destruction of evidence. (2) Subject to subsection (3), an officer may exercise any of the powers mentioned in subsection 145(2) or 145.1(3) without warrant issued pursuant to that section if the conditions for obtaining the warrant exist and there are exigent circumstances. (3) No officer shall enter private place within the meaning of clause 107(1)(a) without warrant issued pursuant to section 145 or 145.1 unless the occupant of the private place consents to the entry. 147(2) An officer: (a) with warrant issued pursuant to section 145 or 145.1; or (b) where conditions for obtaining warrant exist but there are exigent circumstances; may seize any conveyance in which he finds beverage alcohol that he believes, on reasonable and probable grounds, is intended for sale or has been purchased or obtained in violation of this Act. [21] Cst. McLaughlin testified he did not require warrant as he felt that exigent circumstances existed. He felt that if he left the accused and the van on the grid road while he went to get warrant neither the accused nor the van would be there when he got back. Cst. McLaughlin indicated that there were no officers working in the Moosomin detachment that day. Cst. Ross was on call. There were officers in the Broadview detachment. [22] In cross-examination Cst. McLaughlin testified it was his understanding that if you had grounds to obtain warrant you could conduct warrantless search. He acknowledged that Cst. Ross could have gotten search warrant and brought it out to the location where he had encountered Smith by the tourist information booth. He also acknowledged that once the accused had been arrested there were no longer exigent circumstances. He says at that point there would be an issue of the continuity of the evidence. [23] In re-examination, Cst. McLaughlin offered the further observation that once he had arrested someone he could perform search incidental to the arrest. [24] Counsel for the accused sought to exclude the evidence of the marihuana plants. The Crown stipulated it was not arguing that the accused had consented to the search. Counsel raises the following issues arising from the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter"): 1. Was there an arbitrary detention contrary to s. of the Charter; 2. Was there violation of Mr. Smith's rights to counsel contrary to s. 10(b) of the Charter; 3. The residual right to silence pursuant to s. of the Charter; or 4. Was the search unreasonable contrary to s. of the Charter. [25] begin by summarizing counsel's argument with respect to these issues: 1. Was there an arbitrary detention contrary to s. of the Charter. [26] Counsel acknowledges that any detention in this instance did not arise as result of the exercise of physical control over an individual's movements or demand made where non-compliance carries with it criminal consequence. It is argued that detention arises out of "psychological compulsion". Counsel relies upon the following comments of LeDain J. in R. v. Therens (1985), 18 C.C.C. (3d) 480 (S.C.C.) at p. 505: Although it is not strictly necessary for purposes of this case, would go further. In my opinion, it is not realistic, as general rule, to regard compliance with demand or direction by police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. [27] Counsel argues the accused was asked two pointed investigative questions, "Where are you going?" and "What is in the back of the van?". It is argued that in context where the peace officer has approached an individual to speak to him, asking these questions, the average motorist would perceive they were compelled to co-operate. [28] Cst. McLaughlin acknowledged that smuggling of cigarettes into Saskatchewan is an issue for the RCMP. Counsel argues the officer was not simply engaged in innocuous social conversation but had pulled up to question the accused in an investigative mode. [29] Counsel also argued on the basis of R. v. Young (1997), 1997 CanLII 1455 (ON CA), 116 C.C.C. (3d) 350 (Ont. C.A.) that search presupposes detention and suggests that like Young the search began with the questioning of the accused. On the basis of Young and R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615 counsel takes the position that in the context of warrantless search detention arises the moment the questioning that leads to the search begins. [30] The Crown did not suggest that prior to the information provided by the accused there was either reasonable or probable grounds nor any articuable cause for detention as discussed in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.). 2. Was there violation of Mr. Smith's rights to counsel contrary to s. 10(b) of the Charter. [31] Counsel argues once it has been established there has been detention the police officer must provide the accused with an opportunity to retain and instruct counsel without delay. They must further refrain from attempting to elicit any evidence from the accused until he has had reasonable opportunity to retain and instruct counsel. It is argued the accused had been detained and asked to participate in the seizure of evidence and as result should have been advised of his right to retain and instruct counsel. 3. The residual right to silence pursuant to s. of the Charter. [32] It is argued the court has also recognized the right to silence as right protected as principle of fundamental justice pursuant to s. 7. It is said to be broader than the common law confession rule and the rule against self-incrimination. The concept is rooted in the notion that once an individual has been placed in jeopardy by the criminal justice system, he should have the right to choose whether to speak or remain silent. The issue to be decided is whether the conduct of the authorities, considered on an objective basis effectively and unfairly deprived the accused of the right to make this choice: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) (S.C.C.). 4. Was the search unreasonable contrary to s. of the Charter. [33] Counsel suggests the present case is on all fours with Mellenthin, supra. The Supreme Court of Canada recognized that the random stop of motor vehicle amounts to an arbitrary detention. It is further argued the court recognized there is an atmosphere of police authority and compulsion when motorist is stopped by police officer. The present situation did not involve roadside check stop. The Crown acknowledged there was no argument advanced that Cst. McLaughlin was exercising authority under The Highway Traffic Act. Counsel's position is that there is no difference between police officer stopping motorist on the highway to ask questions and police officer who pulls up to stopped vehicle to ask questions. [34] In Mellenthin, supra, the police directed the accused to check stop set up as part of program to check vehicles. The officer approached the vehicle, shone his flashlight into the window of the vehicle and noticed gym bag on the seat beside the driver. The officer asked what was inside the gym bag. The driver told him that the bag contained food and held up paper bag, which contained plastic bag containing glass vials, which are commonly used in connection with the trafficking of cannabis resin. On the belief he had reasonable and probable grounds to search the vehicle under The Narcotic Control Act, the officer asked the accused to step outside the vehicle so he could perform search. During the search, the officer found small amount of cannabis resin and charged the accused with possession of narcotic. [35] In that context counsel relies upon the following comments of Cory J. at p. 624: ... At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into means of conducting either an unfounded general inquisition or an unreasonable search. Further, at p. 625: The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. of the Charter. [36] Counsel relies upon R. v. Acciavatti (1993), 1993 CanLII 14704 (ON CA), 80 C.C.C. (3d) 109 (Ont. C.A.), Simpson, supra, and Young, supra, as examples of the application of Mellenthin. [37] Counsel argues the search was unreasonable as it was not authorized by law. It is said the search itself began when Cst. McLaughlin without any legal authority turned the roadside encounter into general inquisition to satisfy his curiosity as to what was in the back of the van. [38] In my view the issue is to be determined by examining two questions. Was the accused "detained" at some point in the exchange, prior to the question "what is in the back of the van"? When did the initial search of the back of the van commence? If the accused was not detained, nor any search begun, until after the accused had said he had two cases of wine in the van, then Cst. McLaughlin had reasonable and probable grounds for conducting at least the initial warrantless search on the roadside as he had reasonable and probable grounds to believe the accused had committed the offence of bringing more than 1.14 litres of wine into the province and exigent circumstances existed in that it was necessary to conduct search before the accused drove away with the evidence. [39] In reviewing the authorities there is an element of overlap between the two questions. There are observations which are not necessarily exclusive to the issue under which may review various authorities. [40] On the issue of detention, as identified in the quotation from LeDain J. in Therens, supra, the question is whether person would have "reasonable perception of suspension of freedom of choice". The issue was put into perspective by Doherty J.A. in Simpson, supra. series of decisions culminating in Mellenthin, supra, established that the stopping of vehicle as part of random check stop constitutes detention of the operator of the vehicle. As noted at p. 492: Once, as in this case, road safety concerns are removed as basis for the stop, then powers associated with and predicated upon those particular concerns cannot be relied on to legitimize the stop. Where the stop and the detention are unrelated to the operation of the vehicle or other road safety matters, the fact that the target of the detention is in an automobile cannot enhance the police power to detain that individual. [41] Doherty J.A. goes on to quote with approval at p. 494 from R. v. Dedman, 1985 CanLII 41 (SCC), [1985] S.C.R. as follows: .. Although police officer is entitled to question any person in order to obtain information with respect to suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, police officer has no right to detain person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. [42] He goes on to identify the limitations of the common law power of police officer to detain an individual for investigatory purposes. That issue does not arise in this instance. What is of interest is his comments with respect to the nature of the encounter between police officer and citizen which was before him, at p. 500: In addressing this requirement, it is also essential to keep in mind the context of the particular police-citizen confrontation. Constable Wilkin was investigating the appellant and the driver of the car. They were his targets. Constable Wilkin interfered with the appellant's liberty in the hope that he would acquire grounds to arrest him. He was not performing any service-related police function and the detention was not aimed at protecting or assisting the detainee. It was an adversarial and confrontational process intended to bring the force of the criminal justice process into operation against the appellant. The validity of the stop and the detention must be addressed with that purpose in mind. Different criteria may well govern detentions which occur in non-adversarial setting not involving the exercise of the police crime prevention function. In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some "articulable cause" for the detention. [Emphasis added] [43] He went on to note at p. 501 that an investigative detention cannot be based upon "hunch" even if based on intuition garnered by experience. [44] Whether an individual reasonably believes he has no choice but to answer the questions of police officer will depend on all of the circumstances. Counsel for the accused would describe the circumstances as follows. Cst. McLaughlin, knowing that smuggling of cigarettes into Saskatchewan is concern, sees an out-of-province rental van just inside the Saskatchewan border. He decides to ask questions and, in particular, questions of an investigative nature to see whether he might discover anything of suspicious nature. [45] The Crown would suggest Cst. McLaughlin, coming upon vehicle stopped on the side of the road offers assistance and engages in innocuous conversation as result of which the accused makes comment which gives the police officer reasonable and probable grounds to believe an offence has been committed under The Alcohol and Gaming Regulation Act. [46] find that Cst. McLaughlin was aware that the smuggling of cigarettes into Saskatchewan was concern for Saskatchewan police officers. However, do not accept that Cst. McLaughlin pulled up to the rental van in an investigative mode. Cst. McLaughlin pulled up to see if he could offer assistance. However, once Cst. McLaughlin had asked if there was problem and had been told in effect, there was no problem; that the accused has stopped to relieve himself, am satisfied that even if the question "where are you going" was innocuous social conversation, that by asking the question "what is in back of the van" Cst. McLaughlin was fishing to see what answer he got. There can be no other explanation for the question. The question has nothing to do with determining whether the accused required any assistance. [47] Where in the spectrum does this encounter between police officer and citizen fall? In Simpson, stopping vehicle observed at suspected "crack house" was an arbitrary detention from the moment the vehicle was pulled over. In Young, supra, the police officer observed the accused about block from business premises which had been broken into. The accused appeared to be intoxicated. The police officer questioned the accused "asking him for his name, address and where he had been". The police officer became suspicious because the accused was not taking the most direct route to his home. The police officer noted that one of the pockets of the accused's jeans appeared to be bulging and asked the accused if he would empty his pockets. The court held the accused had been detained arbitrarily whether the detention commenced when the constable stopped him on the street, when he requested him to empty his pockets, or when he put him in the rear of the cruiser. [48] R. v. Lawrence (1990), 1990 CanLII 11016 (ON CA), 59 C.C.C. (3d) 55 (Ont. C.A.) would appear to be on the other end of the spectrum. police officer, having received report of break and enter was patrolling in the area when he spotted the accused. He stopped the accused by maneuvering his police cruiser across the path of the sidewalk where the accused was riding her bicycle. The accused did not match the description of the person believed to have committed the offence. The police officer asked if he could speak to the accused and asked where she lived. When he received answers which he believed to be false he asked what was in her knapsack, which she offered to him. Inside he found items which could have come from the break and enter. It was found there was no detention until she was placed in the police cruiser. Prior to this the search and questioning had lasted for approximately 25 minutes. The court found that the accused could have ridden around the cruiser and left at any time prior to being placed in the cruiser. [49] Tarnopalsky J.A. relied upon his judgment in R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.). At pp. 258-9 the court observed: ... [L]anguage used by police officer, although phrased in the form of request, may, depending on the circumstances, be reasonably construed by the person to whom the request is made to be direction or command. All the circumstances must be considered. See R. v. Soares (a judgment of this court, released March 27, 1987). In determining whether person, who subsequently becomes an accused, was detained at the time he was interviewed by the police, it is important to bear in mind that police officer when endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks useful information can be obtained. Although police officer is entitled to question any person in order to obtain information with respect to suspected offence, as general rule, he has no power to compel the person questioned to answer. Moreover, he has no power to detain person for questioning and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds: see R. v. Esposito (1986), 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88 at 94 (Ont. C.A.); (leave to appeal to the Supreme Court of Canada refused February 24, 1986). venture to suggest that in determining whether person who subsequently is an accused was detained at the time he or she was questioned at police station by the police, the following factors are relevant. do not mean to imply, however, that they are an exhaustive list of the relevant factors nor that any one factor or combination of factors or their absence is necessarily determinative in particular case. These factors are as follows: 1. The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given choice or expressed preference that the interview be conducted at the police station, rather than at his or her home; 2. Whether the accused was escorted to the police station by police officer or came himself or herself in response to police request; 3. Whether the accused left at the conclusion of the interview or whether he or she was arrested; 4. The stage of the investigation, that is, whether the questioning was part of the general investigation of crime or possible crime or whether the police had already decided that crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused; 5. Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated; 6. The nature of the questions: whether they were questions of general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt; 7. The subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had subjective belief that he was detained. [50] In Lawrence, supra, the principles he enunciated in Moran, supra, led Tarnopolsky J.A. to conclude at pp. 61-62: .. The questions of the police officers were still "part of the general investigation"; he could not yet have decided that the appellant "was the perpetrator"; it could not yet be said that his "questioning was conducted for the purpose of obtaining incriminating statements from the accused"; he did not yet have "reasonable and probable grounds to believe that the accused had committed the crime being investigated"; the nature of his questions were of general nature designed to obtain information" rather than nature where "the accused was confronted with evidence pointing to...her guilt". It is true that in all the circumstances Constable Dankert would probably have been considered at least naive, if not negligent, if he had not tried to ask her some questions. That was his duty: to investigate reported offence and, to this end, to try to ask questions of anyone who might seem to be possible source of such information. However, if police officer who questions person who might appear suspicious must always provide s. 10(b) warnings, there would be far more detentions and arrests than our society would tolerate. ... Considering the interference with the appellant's bicycle passage by the cruiser, one might have concluded that there was psychological detention. There was, however, no evidence that the appellant felt compelled to remain at the police officer's cruiser. The seventh Martin test in Moran is not met in this case. The absence of psychological compulsion at that point in time is one of the factors that distinguishes this case from R. v. Voss [(1989), 1989 CanLII 7167 (ON CA), 50 C.C.C. (3d) 58 (Ont. C.A.)]. In Voss there was evidence by the accused himself and there was observable external evidence supporting the contention that the accused felt psychologically detained from the moment the interrogating officer received forensic information about possible causes of death. Moreover, in Voss, from the moment that information was received which, considering the alternatives, led to the conclusion that the death was homicide, there was only one major suspect the accused. In fact, he was the only suspect. Here, the investigation was at much earlier stage and the focus could not yet reasonably have been on the appellant, at least until her answers indicated prevarication and search of her knapsack revealed suspicious articles. At that time the suspicion focused on her, at that time she was invited into the police cruiser and, as the learned trial judge found, only at that time was she detained within the meaning of the Charter. ... Similarly, there is no basis for concluding that s. of the Charter was violated. In fact, the appellant did not urge this ground very strenuously. Just as there was no demand or direction to remain to answer questions so as to indicate detention, so too there was no demand or direction to offer up her knapsack for search. She was asked what was in it; in response she offered it to him to look in. Although that may be an impolite question for complete stranger to ask woman, and poor manners to look in, it cannot be characterized as demand or direction. She gave him her knapsack for "look-see" voluntarily, even if without any great joy. There cannot have been s. contravention. [51] It is to be noted that in Young, supra, at 357 the Ontario Court of Appeal observed that Lawrence, supra, must be considered as superseded by Mellenthin, supra, in the context of what constitutes an illegal search. In this context the court at 358 quoted from Cory J. in Mellenthin, supra, The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. of the Charter. The court went on to say: [15] In Simpson, supra, similar point arose and Doherty J.A. concluded as follows at p. 506: The appellant's reliance on s. 101 of the Criminal Code also assumes that the search of the appellant began when Constable Wilkin felt the appellant's front pant pocket. The reasons in Mellenthin, supra, indicate that the search cannot be so limited but must be taken as having commenced when the appellant was initially questioned by the police officer. The search proceeded from that point until the cocaine was recovered. Once the questioning of the appellant is taken as part of the search, then s. 101 of the Criminal Code cannot provide any authority for the search. [16] Once it is concluded that the search begins with the questioning and that there was no reasonable basis for search then, on the facts of this case, the officer put into motion what became an illegal search by simply inviting the appellant to permit an intrusion on his person in the form of emptying his pockets. It is the same as if the officer had reached out and physically emptied the pockets. [17] As to the specific moment when there was detention, the Crown conceded in its factum that it commenced with the questioning, and in oral argument switched to reliance on Lawrence, supra, as pointing to the time when the appellant was in the cruiser. The appellant did not press illegal detention in his argument, relying rather on unreasonable search and seizure, and to the extent detention may have any bearing on this analysis it seems sensible to conclude that search presupposes detention. [52] Not every encounter between police officer and citizen in which the police officer asks questions will by that fact alone constitute detention. Whether or not there is detention must depend on all of the circumstances. The list of factors as identified in Moran, supra, are relevant, although not exhaustive. [53] Does every conversation with police officer in which an accused makes an incriminating statement constitute, in retrospect, detention of the accused that commenced with the questions being asked. There is no such blanket proposition. It all depends on the circumstances. [54] In the circumstances at hand when the encounter between Cst. McLaughlin and the accused commenced the constable was not investigating crime and had no reason to suspect the accused was involved in any crime. Cst. McLaughlin stopped to render assistance if required. There was no detention of the accused prior to the question "What's in the back of the van?" However, as noted earlier am satisfied that when Cst. McLaughlin asked what was in the van he was fishing for an incriminating answer. base this conclusion not only on the fact there is no other reasonable explanation for the quesiton in the context in which it was asked but also the demeanour of the witness as he answered questions throughout the voir dire. [55] will now consider the initial warrantless search conducted by Cst. McLaughlin on the roadside. As noted in R. v. Caslake (1998), 131 C.C.C. (3rd) 97 (S.C.C.) warrantless search is prima facie unreasonable and violation of an individuals Charter rights. The Crown has the burden of showing that the search was, on the balance of probabilities, reasonable. In order to be reasonable the search must be authorized by law. Lamer C.J.C. had the following to say at p. 105: [12] ...First, the state authority conducting the search must be able to point to specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. For example, s. 487 of the Criminal Code, R.S.C. 1985, C. C-46, authorizes searches, but only with warrant issued by justice on the basis of sworn information setting out reasonable and probable grounds. failure to meet one of these requirements will result in search which has not been authorized by law. Third, and in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that search exceeds these limits, it is not authorized by law. [56] As noted by Lamer C.J.C. s. of the Charter which guarantees the right to be secure against unreasonable search or seizure is intended to protect an individuals reasonable expectation of privacy, and that such expectation is to be evaluated by balancing this privacy interest against the state's interest in law enforcement. [57] The question is whether the initial search conducted by Cst. McLaughlin can be said to have begun with the question "what's in the back of the van?" If the search did not commence with this question then the answer provided reasonable and probable grounds for at least the initial search and the question would become the status of the subsequent search conducted at the weigh scales. [58] As observed earlier, when the encounter between Cst. McLaughlin and the accused commenced Cst. McLaughlin was not investigating crime, he was not on the lookout for suspect with respect to any reported crime and he had no reason to believe the accused was involved in any crime. He stopped to see if the accused required any assistance. [59] It could be described as chance encounter between citizen and police officer. There can be no detention in stopping to see if the citizen requires assistance. There can be no detention in asking the question whether assistance is required and even asking motorist where he is headed, in the absence of other circumstances, whether it be in what an officer might say or do, which might cause the citizen to reasonably believe he has no choice but to answer. No such circumstances existed in this instance. [60] The question in whether Cst. McLaughlin can ask the accused what is in the back of the van? On the one hand it could be suggested that the circumstances can be distinguished from cases such as Mellenthin, supra, Simpson, supra, and Young, supra. They involved either random check stop (Mellenthin) or the officer had stopped the citizen in circumstances where crime had been committed (Young) or the officer had some suspicion an offence may have been committed (Simpson). In the aforementioned circumstances the police officer was not entitled to ask; what is in the gym bag (Mellenthin); the accused to empty his pockets (Young); or what was in the accused's pocket (Simpson). [61] It could be said that these cases involved detention of the accused from the outset. As noted in Mellenthin random check stop involves an atmosphere of police authority and compulsion. [62] On the other hand, in Lawrence, supra, there was no detention of the accused. While in Lawrence the Ontario Court of Appeal found there had been no search begun when the accused was asked what was in her knapsack, the court subsequently observed in Young, supra, that Lawrence must be considered to have been superseded on the search issue by the Supreme Court of Canada in Mellenthin. take this to mean that even though there may be no initial detention of citizen, police officer is not entitled (in the absence of reasonable and probable grounds) to ask what is in knapsack. [63] am satisfied Mellenthin, Young and Simpson cannot be distinguished. If person who has been detained cannot be asked what is in their gym bag or their pocket how can citizen who is not detained be asked similar question. As observed in Caslake, supra, s. guarantee against unreasonable search and seizure involves balancing the citizen's reasonable expectation of privacy against the states interest in law enforcement. [64] citizen may well make statements to police officer in the context of chance encounter, or otherwise innocuous conversation, which are incriminating in nature and where no Charter rights may be violated. However, can police officer ask questions, albeit in context which starts off rather innocuous, which are intended to see whether an incriminatory response might be elicited. [65] As noted, Cst. McLaughlin's question as to what was in the back of the van was unrelated to the purpose for which he had engaged the accused in conversation. The fact is Cst. McLaughlin was attempting to determine what was in the back of the van. He was searching to see what answer he would get. [66] am satisfied that the warrantless search began when Cst. McLaughlin asked the accused what was in the back of the van. As a warrantless search the onus is on the Crown. The Crown has not established that the search was authorized by law. The accused\'s right under s. 8 of the Charter to be secure against unreasonable search and seizure was violated. [67] Insofar as the issue of detention is concerned, adopt the observation in Young, supra, at p. 358 that once it has been found that search has begun it is sensible to conclude that search presupposes detention. Cst. McLaughlin acknowledged that at the point in time when he asked what was in the back of the van he had no reasonable and probable grounds to believe an offence had been committed. The Crown did not suggest it was circumstance involving an investigative detention. [68] Having found violation of the accused's rights under s. of the Charter it is unnecessary to deal with the issue of right to counsel. SHOULD THE EVIDENCE BE EXCLUDED PURSUANT TO S. 24(2) OF THE CHARTER [69] Section 24 of the Charter provides: 24(2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in 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. [70] As result of R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 there are three factors to be considered in determining whether the admission of constitutionally tainted evidence would bring the administration of justice into disrepute: (1) Fairness of the trial in admitting the evidence; (2) The seriousness of the violation; and (3) The effect of excluding the evidence on the administration of justice. It must also be noted that the focus on trial fairness has shifted from question of whether or not the evidence was real evidence to question of whether the evidence was conscripted from the accused. [71] From the analysis in Stillman evidence is conscriptive if the accused is compelled to participate in the creation or discovery of the evidence. Otherwise, the evidence is non-conscriptive and its admissibility would not render the trial unfair, although the seriousness of the violation and the effect of its admission must then be considered. Even if evidence is conscriptive, its admission will not render the trial unfair if the Crown establishes that the evidence would likely have been discovered in any event. [72] Mellenthin, supra, was decided prior to Stillman, supra. Mellenthin involved narcotics found in the gym bag because of road stop check. On the question of whether or not the evidence obtained as the result of an unreasonable search should be admitted into evidence and, in particular, on the issue of trial fairness Cory J. said at p. 626: Collins, supra, made it apparent that the admission of real evidence which was obtained in manner that violated the Charter will rarely operate unfairly in the conduct of the trial. There can be no doubt that in this case the cannabis which was discovered constituted real evidence. However, it must also be remembered that in R. v. Ross, [1989] S.C.R. 4, it was said at p. 16 that: ...the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair. The trial judge recognized these competing principles. She found that the evidence, although real, could never have been discovered but for the illegal search... He further observed at p. 629: It would surely affect the fairness of the trial should check stops be accepted as basis for warrantless searches and the evidence derived from them was to be automatically admitted. To admit evidence obtained in an unreasonable and unjustified search carried out while motorist was detained in check stop would adversely and unfairly affect the trial process and most surely bring the administration of justice into disrepute. [73] In Young, supra, the search of the accused's pocket was found to be unreasonable. However, at p. 360 the Ontario Court of Appeal concluded that the discovery of the cash as result of the illegal search did not affect fairness of the trial as it had been found that the accused was legitimately arrested for intoxication and the inevitability of search to assure that what was in the pocket was not weapon would have lead to discovery of the cash. [74] In the circumstances I am satisfied the evidence was conscriptive in that the accused was compelled to participate in the discovery of the evidence as a result of the unreasonable search which began with Cst. McLaughlin asking the accused what was in the back of the van. As a result, admission of the marihuana into evidence would render the trial unfair and bring the administration of justice into disrepute unless the Crown establishes that the evidence would likely have been discovered in any event. The Crown suggested no basis upon which the evidence would likely have been discovered in any event. The situation is not analogous to Young where it was reasonable to conclude that the evidence would likely have been discovered by other means. If the question had not been asked there would have been no search of the back of the van. Mr. Smith would have driven on and there is no basis to conclude the evidence would likely have been discovered by other means. [75] Having concluded that the evidence ought to be excluded on the basis that its admission would render the trial unfair, it is unnecessary to consider the other two factors.
The accused was charged with three offences under the Narcotic Control Act. The accused contests the admissibility of marijuana plants seized by the police. A police officer on highway patrol approaching the Manitoba border noticed a rental van with Ontario license plates stopped on the road. The police officer stated he had no reason to believe an offence had been committed and he approached the accused to see if he required any assistance. The officer stated it was his practice to offer assistance to motorists. The officer asked the accused if there were any problems with the vehicle and the accused answered he was looking for a place to relieve himself. The officer asked him where he was going and was told BC. He then asked the accused what he had in the back of the van and was told two cases of wine. The officer testified the accused was no longer free to go as he had believed the accused committed an offence under the Alcohol and Gaming Regulation Act. The officer searched the vehicle without a warrant and discovered 524 marijuana plants ranging in size from three to nine inches. HELD: The evidence is excluded. The police officer when he pulled up to the van was not in investigative mode but pulled up to see if he could offer assistance. The officer had no reason to suspect the accused was involved in a crime. When he asked what was in the back of the van the officer was fishing to see what answer he got. The Court is satisfied by the cases of Mellenthin, Young and Simpson, that if a person who has been detained cannot be asked what is in their gym bag or their pocket, how can a citizen who is not detained be asked a similar question. The s.8 right against unreasonable search and seizure involves balancing the citizen's reasonable expectation of privacy against the states interest in law enforcement. The police officer's question as to what was in the back of the van was unrelated to the purpose for which he had engaged the accused in conversation. The fact is the officer was attempting to determine what was in the back of the van and searching to see what answer he would get. The Court is satisfied the warrantless search began when the police officer asked the accused what was in the back of the van. The onus of a warrantless search is on the crown which has not established the search was authorized by law. The accused's right to unreasonable search and seizure was violated. The evidence was conscriptive in that the accused was compelled to participate in the discovery of the evidence as a result of the unreasonable search which began when the officer asked what was in the back of the van. The result is the admission of the marijuana into evidence would render the trial unfair and bring the administration of justice into disrepute unless the crown establishes that the evidence would likely have been discovered in any event. The crown suggested no basis upon which the evidence would likely have been discovered in any event.