J. 2003 SKQB 459 Q.B.C.N.J. A.D. 2003 No. J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and ELAINE LAUREL SOURA D.G. Curliss for the Crown T.E. Forsyth for the accused JUDGMENT HRABINSKY J. October 31, 2003 [1] The Crown proceeded against the accused on the following five counts in the indictment:1. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did unlawfully have in her possession a controlled substance, to wit, cannabis marihuana in an amount exceeding three kilograms, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. 2. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did in committing an assault on Constable Darcy Wilson use weapon to wit Buick car bearing Saskatchewan Licence Plate 640 CGC, contrary to Section 267(a) of the Criminal Code. 3. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, operating motor vehicle on highway to wit, Highway and Highway 21 in manner dangerous to the public contrary to Section 249(1)(a) of the Criminal Code. 4. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, while operating motor vehicle being pursued by police, did in order to evade the peace officer fail without lawful excuse to stop her vehicle as soon as was reasonable in the circumstances contrary to Section 249.1(1) of the Criminal Code. 5. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did being at large on her undertaking entered in before Justice and being bound to comply with condition thereof, to wit, keep the peace and be of good behaviour did fail without lawful excuse to comply with that condition contrary to Section 145(3) of the Criminal Code. [2] At the outset of the trial counsel for the accused took the position that the accused’s rights pursuant to ss. 8, 9 and 10 of Canadian Charter of Rights and Freedoms were infringed and that all evidence obtained after the initial stop should be excluded pursuant to s. 24(2) of the Charter. These sections read as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (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. [3] The trial commenced by way of voire dire. [4] Constable Darcy Wilson graduated as an Royal Canadian Mounted Police officer on July 10, 2000. He had taken four-hour course on narcotics which included the smell of burning cannabis marihuana and the smell of raw cannabis. According to him there is drug problem in the Kindersley area where he was stationed and accordingly he had handled some 20 to 30 possession cases and some 10 to 15 trafficking cases. [5] At approximately 4:30 a.m. on February 24, 2002, near Kindersley, Saskatchewan, Constable Wilson stopped the accused’s vehicle because it had cracked rear tail light on the passenger side. The cracked tail light emitted white light approximately two inches by two inches square. No issue is taken with Constable Wilson’s authority to stop the accused’s vehicle since such stop is authorized pursuant to s. 40(8) of The Highway Traffic Act, 1996, S.S. 1996, c. H-3.2. See also R. v. Duncanson (1991), 1991 CanLII 2760 (SK CA), 93 Sask. R. 193 (C.A.) (appeal dismissed), [1992] S.C.R. 836. [6] After Constable Wilson pulled the accused’s vehicle over to the shoulder of the highway he exited his patrol car and approached the accused’s vehicle. The driver’s window on the accused’s vehicle was down or at least partially down and Constable Wilson noticed that the rear of this vehicle was cluttered with blankets and there was red bag which extended about three-quarters of the way up the back seat of the vehicle. Duct tape sealed the lip of the bag and Constable Wilson stated that duct tape is commonly used to seal bags with contraband and narcotics. The cluttered interior of the vehicle gave Constable Wilson some cause for concern that there could possibly be hidden weapon. On cross-examination he acknowledged that the red bag which was actually dog food bag with duct tape could have had dog food in it. [7] When Constable Wilson stopped the accused on the highway she immediately confronted him with the question, “Why are you stopping me?” Constable Wilson said he advised her about the cracked tail light and asked her where she was coming from and where she was going. Constable Wilson said that she was extremely nervous and agitated. [8] Constable Wilson testified that he approached the accused’s vehicle and requested her driver’s licence and vehicle registration. As the accused reached for her purse and put it on her lap to retrieve these documents, Constable Wilson shone his flashlight into the car and into the accused’s purse. At this time the interior light of the accused’s vehicle was illuminated as she was searching for these documents. Constable Wilson testified that as she was reaching into her purse he observed some pill bottles, Zigzag rolling papers and what appeared to be green leafy substance which was loose on the bottom of her purse. He also observed some cash. Constable Wilson could smell very strong odour of raw cannabis coming from the interior of the vehicle and as the accused provided her driver’s licence he noticed dark green stain on it which he said looked like cannabis resin. At this point in time Constable Wilson said he formed the opinion that there was cannabis marihuana in the vehicle and he advised the accused that he could smell cannabis marihuana in the vehicle and that it appeared that there was hash oil on her driver’s licence. She denied this and stated, “If give it to you, will you let me go?” [9] Constable Wilson said that at this point in time the accused was hysterical and he advised her that she was under arrest for possession of marihuana. As he did so, she grabbed the driver’s licence and Constable Wilson reached into her car to prevent her from driving away. In his words, he “wanted to maintain control”. The accused put the car into drive and pulled away. As the car moved forward the door handle brushed Constable Wilson’s side. He said that this was very minor and that red mark appeared few days later. Constable Wilson did not notice any other person or persons in the vehicle. Constable Wilson observed that the licence plate on the accused’s vehicle was 640 CGC. [10] The accused sped east on highway no. going toward Kindersley, Saskatchewan. Constable Wilson was in hot pursuit travelling up to 190 kilometres per hour in an effort to catch up to the accused’s vehicle. After catching up to her vehicle the speed was approximately 170 kilometres per hour. Constable Jason Michael Pshyk, member of the RCMP, followed Constable Wilson in the pursuit of the accused. [11] Constable Jennifer Barnes, another member of the RCMP then stationed at Kindersley, Saskatchewan, blocked the intersection of highways no. and 21 by putting her vehicle diagonally across that intersection which is the first major intersection in that area. [12] All three RCMP vehicles had activated all of the emergency equipment on their vehicles. [13] As the accused approached Kindersley where there is 70 kilometre per hour speed zone, she applied her brakes and turned south on highway no. 21. As she turned south she accelerated and Constable Wilson observed that she reached speeds of 160 kilometres per hour and at this point he noticed some movement in the back seat of the accused’s vehicle. As Constable Wilson pursued the accused’s vehicle he said that large red bag was thrown from the accused’s vehicle and this bag struck the right corner of his vehicle. The accused continued at speed of approximately 150 kilometres per hour for about five kilometres and gradually slowed to 140 kilometres per hour then to 120 kilometres per hour. Approximately 13 kilometres south of Kindersley the accused pulled her vehicle over to the side and Constable Wilson pulled his vehicle up beside her vehicle on the driving lane. Constable Wilson testified that the accused had her hand out of the window and was screaming hysterically. Constable Wilson exited his vehicle as did Constable Pshyk. Both officers had drawn their firearms. [14] Constable Wilson handcuffed the accused and advised her that she was under arrest for dangerous driving, assaulting police officer, possession of cannabis marihuana and flight. The arrest was made at 5:06 a.m. Constable Wilson testified that he read the police warning to the accused and gave her her Charter rights to counsel. According to him, as he did so, the accused stated, “I’m not fucking listening to you. Do fucking what you fucking want.” Constable Wilson asked her if she wished to contact counsel and she replied, “Yes”. Constable Wilson stated that he again read her the police warning from his Charter card and she replied, “I’m fucking scared of you guys.” [15] Constable Barnes conducted pat search on the accused. [16] When the accused was arrested Constable Wilson noticed that there was small girl approximately 10 years of age, wearing only panties, covered with blanket in the back seat of the accused’s vehicle. She was screaming and crying. [17] On the way back to the RCMP detachment the accused was in the back seat of the patrol vehicle. She was screaming and her little girl was crying. While they were travelling northbound toward Kindersley they came across Constable Barnes approximately one kilometre south of the railway track and observed that she was retrieving the red bag that had been tossed out of the accused’s vehicle. [18] The evidence establishes that the weight of marihuana seized was 3.0575 kilograms which at the gram level would be valued at $45,862.50. At the one-eighth ounce level, it would be valued at $34,942.80. At the one-quarter ounce level, it would be valued at $34,942.86. At the one ounce level, it would be valued at $27,300.00. At the one-quarter pound level, it would be valued at $24,570.00, and at the pound level it would be valued at $18,844.00. [19] Detective Constable Vincent Ashmeade, drug investigator with the Saskatoon Integrated Drug Unit, expressed the opinion that the marihuana seized in this investigation was for the purpose of trafficking and not for personal usage. According to him the user usually buys his/her supply in small amounts such as grams, one-eighth ounce lots or one-quarter ounce lots and then rolls joints as required. The marihuana seized in this investigation could not be consumed by an individual before it deteriorated to worthless value. user would not transport large quantities of marihuana around in his/her vehicle. Users would carry their daily supply of marihuana on their person and keep the remaining marihuana in safe location. [20] In this case the accused was in possession of 2,446-day supply or 6.7-year supply. Since the shelf life of cannabis marihuana is six months, under ideal conditions this amount far exceeds what could normally be considered “personal usage”. [21] They arrived back at the detachment office at 6:01 a.m. and at 6:05 a.m. Constable Wilson asked the accused if she wished to contact lawyer. Her response was, “No, just fucking shoot me. am dead already. They’re going to kill me.” [22] Constable Wilson searched the accused’s purse and found one gram of cannabis marihuana, Zigzag rolling papers, $250 Canadian in cash, piece of paper with some writing on it. [23] Social Services was contacted. [24] The accused told Constable Wilson that her common law husband lived in Melfort and so he contacted him for her. [25] Defence counsel admits that the contents of the ziplock bags and the dog food bag is cannabis marihuana with total weight of 3.0575 kilograms. Constable Wilson testified that the most common packaging for cannabis marihuana is to place the cannabis marihuana in ziplock bag and then to place that bag in another ziplock bag and then those two bags with the cannabis marihuana are normally put in vacuum bag. These had not been put in vacuum bag. [26] In the trunk of the accused’s vehicle, Constable Wilson found receipt for recent purchase of dog food. [27] During the initial stop of the accused’s vehicle and after Constable Wilson found the spot on the driver’s licence which he believed to be hash oil, he asked the accused how long she had been in B.C. and noted that she had no luggage. [28] On cross-examination Constable Wilson was asked whether he noticed the smell of cannabis marihuana after the conversation with respect to the luggage and how long the accused was in British Columbia. He answered, “No” “Incorrect”. He was then referred to question 310 on p. 72 of the transcript of the preliminary inquiry and he replied that that answer was incorrect. [29] On cross-examination, Constable Wilson admitted that when the accused drove off she did not manoeuvre her vehicle in such manner as to hit him. He also acknowledged that there was nothing to indicate that she was not in control of the vehicle. [30] The continuity of all exhibits was admitted by defence counsel. [31] Constable Jason Pshyk, an RCMP officer, testified that on February 24, 2002, at approximately 4:35 a.m. he was on the north side of highway no. 7, approximately 10 kilometres west of Kindersley. Constable Wilson was next to him. After he, Constable Pshyk had pulled over vehicle and when he was through with that vehicle he then parked behind Constable Wilson’s vehicle at the place where Constable Wilson had pulled over the accused’s vehicle. Constable Pshyk said that Constable Wilson was on the driver’s side of the accused’s vehicle and he noted that the accused was quite emotional and was crying. He also noticed smaller child in the back seat covered with blanket. He shone his flashlight into the accused’s vehicle and walked ahead beside the driver’s mirror which put him approximately one foot away from Constable Wilson. He said the accused’s driver’s window was down and Constable Wilson was dealing with the accused. He said that Constable Wilson had the accused’s driver’s licence in his hand and he heard Constable Wilson say to the accused that there was hash oil on her driver’s licence. Constable Pshyk said that the accused was crying and saying that it was not hash oil at which time the accused put her vehicle into drive and accelerated. [32] Constable Pshyk substantially corroborated Constable Wilson’s testimony with respect to the pursuit of the accused. [33] On cross-examination Constable Pshyk testified that he was looking for violations under The Highway Traffic Act and that he was on general duty. On further cross-examination Constable Pshyk stated that when he was near the mirror of the accused’s vehicle standing approximately one foot to Constable Wilson’s left, Constable Wilson was in bent position talking to the accused. He could not recall if Constable Wilson’s body was touching the accused’s vehicle but he did note that Constable Wilson had the accused’s driver’s licence in his hand. He heard Constable Wilson ask the accused if that was hash oil on her driver’s licence but he did not recall if there was mention of cannabis marihuana odour in the vehicle. He heard Constable Wilson arrest the accused but stated that he never heard the accused say, “If give it to you, will you let me go?” [34] On further cross-examination Constable Pshyk said that his notes do not indicate that Constable Wilson asked the accused about the odour of cannabis marihuana in her vehicle. He stated, “It may have been asked. just didn’t put it in my notes.” He did not see Constable Wilson being struck by the accused’s vehicle. [35] It is admitted by both counsel that Constable Pshyk did not smell cannabis marihuana when Constable Wilson first stopped the accused. [36] At the commencement of argument, defence counsel admitted that the Charter arguments refer only to count in the indictment. [37] Counsel for the accused submits that Constable Wilson did not see green material in the accused’s purse as he shone his flashlight into it and he submits further that Constable Wilson did not smell the odour of raw cannabis marihuana emanating from the accused’s vehicle. do not accept either of these submissions. The submission that should not believe Constable Wilson when he stated that he saw green material in the accused’s purse because he did not enter that in any one of the four documents which he prepared in connection with this investigation is without merit. [38] Defence counsel’s submission that this Court should not believe Constable Wilson’s testimony that he was able to smell strong odour of raw cannabis marihuana emanating from the accused’s vehicle because Constable Pshyk said he did not smell any such odour and because Constable Pshyk was not able to say that he heard Constable Wilson ask the accused about the smell of odour of raw cannabis marihuana is also without merit. [39] find that Constable Wilson was candid and straightforward in his testimony. Section Search or Seizure [40] Section of the Charter provides that, “Everyone has the right to be secure against unreasonable search or seizure.” [41] Section 495 of the Criminal Code of Canada provides: 495.(1) peace officer may arrest without warrant (a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, (b) person whom he finds committing criminal offence, or [42] find that Constable Wilson observed what he reasonably believed to be marihuana leaves in the bottom of the accused’s purse. He also observed what he believed could have been hash oil stain on the accused’s driver’s licence. find that Constable Wilson smelled strong odour of raw marihuana in the accused’s vehicle. The strong odour of raw marihuana emanating from the interior of the accused’s vehicle would in itself amount to reasonable grounds not only for lawful detention but also for arrest. [43] In The Queen v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.), at 324, the court stated that although grounds for arrest must be reasonable from both an objective and subjective point of view: the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish prima facie case for conviction before making the arrest. [44] In The Queen v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), at 219, affirmed 1989 CanLII 78 (SCC), [1989] S.C.R. 225, the court stated: The standard of “reasonable grounds to believe” is not to be equated with proof beyond reasonable doubt or prima facie case. The standard to be met is one of reasonable probability. [45] In The Queen v. Sewell, 2003 SKCA 52 (CanLII), (2003) 175 C.C.C. (3d) 242, the Saskatchewan Court of Appeal recognized that the smell of raw marihuana alone can amount to reasonable grounds. At para. 39, there is the following: [39] As for the second basis, namely, that the officer, upon smelling the marijuana, then had reasonable and probable grounds to conduct warrantless search, echo and rely on the comments of Tallis J.A. in R. v. Ladouceur, 2002 SKCA 73 (CanLII), [2002] W.W.R. 209, 165 C.C.C. (3d) 321 (Sask. C.A), and his later reference at para. 141 to R. v. (D.)I.D. (1987), 1987 CanLII 206 (SK CA), 60 Sask. R. 72; [1988] W.W.R. 673, 38 C.C.C. (3d) 289 (C.A.), approved by the Supreme Court of Canada in R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.R. 223, 84 C.C.C. (3d) 173. In paras. 125-128 he said: [125] Before turning to the s. question–whether the warrantless search of the vehicle was based on reasonable and probable grounds–I observe that Mellenthin and R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341 (S.C.C.) recognized that police officers need not ignore other legitimate aspects of their general duties and powers when manning checkpoint. In the circumstances of the case before us, either officer had every right to open the car door and speak to the passenger: See Belnavis, supra, p. 358, para. 28. When so engaged, officers do not leave their perceptory senses–whether visual, olfactory or auditory–at some other location. Stolen property or illegal firearms are but two examples [Note 20: See for example Part III of the Criminal Code: Firearms and Other Weapons and regulations thereunder.] [126] Although there is an expectation of privacy in automobile travel, it is markedly decreased relative to one’s home or office: See for example R. v. Wise, 1992 CanLII 125 (SCC), [1992] S.C.R. 527 (S.C.C.). Even the sanctity of the home does not preclude warrantless visual surveillance of its exterior. In such circumstances “the eye cannot by the law of England be guilty of trespass”: Entick v. Carrington (1765), 95 E.R. 807, 19 State Tr. 1029 (Eng. K.B.). [127] The same can be said with respect to auditory and olfactory senses. Aromas that are generated in private home, “distillation” plant, laboratory or opium den enter the public domain if and when they leave the building. Indeed the ordinary use of senses might enable member or passing member of the public to pick up the aroma emanating from home, particularly if it is vented. In my opinion the doctrine of “plain smell” is doctrine of common sense–similar to the “plain view” doctrine: See for example R. v. Smith (1998), 1998 ABCA 418 (CanLII), 126 C.C.C. (3d) 62, 161 D.L.R. (4th) 331 (Alta. C.A.). [128] Given the lessened expectation of privacy in an automobile, police officers are entitled and expected to utilize their senses during the course of their duties. If the aroma of liquor or drug is evident, the question then becomes one of the proper test to determine whether reasonable and probable grounds exist for search. Police officers cannot reasonably be expected to avert their eyes from evidence of activity, whether criminal or otherwise, that could be observed by any vigilant member of the public. So too, police officers do not have to avert their senses from detecting emissions or aromas in the public domain such as traces of smoke and suspicious odours. Such sensing of emissions, aromas or odours and drawing sensible conclusions from their detection is entirely reasonable when considering whether reasonable and probable grounds exist for search. [46] find that the strong odour of raw cannabis marihuana smelled by Constable Wilson combined with the other indicators observed by him provide more than sufficient basis for reasonable grounds either for search or for arrest or for both. [47] The s. Charter argument fails. Detention or Imprisonment [48] Section of the Charter provides that, “Everyone has the right not to be arbitrarily detained or imprisoned.” [49] The authorities are clear that during the course of highway traffic stop the police are authorized to make certain inquiries and need not turn blind eye to matters which legitimately raise their suspicions. [50] In The Queen v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at 623-24, there is the following: There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of flashlight and it is necessarily incidental to check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can place any particular significance upon the fact stressed by the appellant that the police only made use of flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as necessary incident to the check stop routine. However, the subsequent questions pertaining to the gym bag were improper. 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. [51] In later decision, The Queen v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341, La Forest J. (dissenting on another issue), at p. 371, stated: the police, since Ladouceur, supra, have the power to stop cars at their whim for purposes of traffic regulations and the like and to make enquiries relevant thereto from the occupants. also agree that the police in performing that duty need not turn blind eye to things in plain view that evidence, or raise suspicions of illegality, and that he or she may also ask questions about this, subject, of course, to the occupants’ right to silence. [52] In The Queen v. Sewell, supra, the Saskatchewan Court of Appeal recognized that police have legitimate general duties and powers when dealing with stopped motorists including looking, smelling and listening. Paragraphs 38 to 41 of that decision read as follows: [38] Even if were to find that the officer’s presence at the back of the vehicle was unlawful for the reasons contended by the appellant, would be hard pressed to find that the officer lacked authority to arrest the appellant for an offence he found him committing. By way of analogy, offer this set of circumstances. police officer unlawfully enters dwelling house. That unlawfulness is rooted in breach of one of the occupant’s Charter rights. He finds the occupant pointing gun at another person who is strapped to chair in distraught state. Is the officer precluded from arresting that occupant for committing the offence of forcible confinement on the ground that he, the officer, unlawfully entered the dwelling house? would find it very odd, indeed, if breach of the occupant’s Charter right brought about such result. [40] Tallis J.A. wrote in dissent, but the majority found it unnecessary to deal with the issues reflected in these comments. find that in the present case, the officer, after experiencing “a very strong smell of marihuana, raw marihuana, in the back of the vehicle” (trial transcript, p. 26, lines 23-24), had reasonable and probable grounds to continue the search in question, that the evidence satisfies the D.(I.D.) test and that the search was not unlawful. [41] In the result, I find no breach of the appellant’s s. 8 Charter rights. [53] In The Queen v. Brown, 2001 SKQB 382 (CanLII), (2001) 210 Sask. R. 295 (Q.B.) (appeal dismissed without reasons), Saskatchewan Court of Appeal file 362, the court held that police may ask questions of detained motorist concerning observation or involvement in possible break and enter. [54] In the case before me I find that Constable Wilson was not in breach of the accused’s Charter rights by asking her where she had been and how long she had been there. [55] I find that the accused was not arbitrarily detained and there was no breach of her s. 9 Charter rights. Arrest or Detention [56] Section 10 of the Charter provides in part: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; [57] In the case before me, I find that on the arrest or detention of the accused she was promptly informed of the reasons therefor and she was informed of her right to retain and instruct counsel without delay. There was no breach of the accused’s s. 10 Charter rights. [58] In summary I find that there has been no breach of the appellant’s ss. 8, 9 or 10 Charter rights. However, even if had concluded that evidence was obtained against the accused in manner that infringed or denied any of her rights or freedoms as guaranteed by the Charter, would not find that, having regard to all the circumstances, the admission of such evidence would bring the administration of justice into disrepute. [59] The test for the exclusion or non-exclusion of evidence was first articulated in The Queen v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265. This was later clarified in The Queen v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607. [60] The factors to be considered in an analysis of s. 24(2) of the Charter were recently stated by Arbour J. in R. v. Buhay (2003), 2003 SCC 30 (CanLII), 174 C.C.C. (3d) 97 (S.C.C.). At p. 116, Arbour J. stated: D. Should the Evidence be Excluded Under Section 24(2) of the Charter? [41] Since this Court’s landmark decision in Collins, supra, the various factors to be considered in making this determination have been organized under three-step inquiry which has been generally adopted and applied in subsequent decisions of this Court. In the recent decision of Law [2002 SCC 10 (CanLII), [2002] S.C.R. 227], the Court summarized at para. 33 the process for determining whether the admission of evidence would bring the administration of justice into disrepute: In Collins, supra, this Court grouped the circumstances to be considered under s. 24(2) into three categories: (1) the effect of admitting the evidence on the fairness of the subsequent trial, (2) the seriousness of the police’s conduct, and (3) the effects of excluding the evidence on the administration of justice. Trial judges are under an obligation to consider these three factors. (1) Trial Fairness [50] The evidence obtained in violation of the Charter which does not emanate from the accused but rather existed independently of the violation is classified as non-conscriptive evidence. Its admission will not affect adjudicative fairness, but the second and third sets of factors may militate towards its exclusion: Stillman, supra; R. v. Evans, 1996 CanLII 248 (SCC), [1996] S.C.R. 8, 104 C.C.C. (3d) 23, 131 D.L.R. (4th) 654. [61] find that the cannabis marihuana discovered at the side of the road near the railway crossing after being thrown from the accused’s vehicle was non-conscriptive evidence. [62] At pp. 119-20 under the heading “Seriousness of the Breach”, there is the following: [52] The second set of factors relates to the seriousness of the Charter violation. The seriousness of the police’s conduct depends on “whether it was committed in good faith, or was inadvertent or of merely technical nature, or whether it was deliberate, wilful or flagrant” Therens [1985 CanLII 29 (SCC), [1985] S.C.R. 613], at p. 652. It is also relevant to consider whether the violation was motivated by situation of urgency or necessity: Therens, at p. 652; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297 at p. 367, 97 C.C.C. (3d) 450, 124 D.L.R. (4th) 193; Law, supra, at para. 37. Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant: Collins, supra, at p. 285; Law, supra, at para. 37. The court may also look at some or all of the following factors: the obtrusiveness of the search, the individual’s expectation of privacy in the area searched and the existence of reasonable and probable grounds (R. v. Caslake, 1998 CanLII 838 (SCC), [1998] S.C.R. 51, 121 C.C.C. (3d) 97, 155 D.L.R. (4th) 19, at para. 34). As we have seen, the trial judge is entitled to considerable deference on this point: Law, supra, at para. [63] In the case before me, Constable Wilson conducted legal vehicle stop after observing the broken tail light on the accused’s vehicle. find that Constable Wilson’s conduct was committed in good faith. It was not deliberate, wilful or flagrant. It is apparent that at 4:30 in the morning on dark night on highway there was some urgency or necessity to deal with this matter. Further, in the end result the police officers were able to obtain the evidence of the cannabis marihuana in the accused’s vehicle when it was thrown out of that vehicle. Thus, if there had been any disregard for the Charter rights, such disregard would be rendered gratuitous and blatant. [64] Counsel for the accused submits that the search if any began when Constable Wilson inquired of the accused where she had been and how long she had been there and the statement of fact that she had no luggage. Counsel for the accused also submits that when Constable Wilson shone his flashlight into the accused’s purse, this was search. In the case before me find that the search was not obtrusive. The accused’s expectation of privacy in her vehicle would be minimal and most important of all find that there was an existence of reasonable and probable grounds. [65] At p. 125 in R. v. Buhay, supra, Arbour J., under the heading “The Effect of Exclusion on the Reputation of the Administration of Justice”, states: [67] The third question from Collins is whether excluding the evidence would have more serious impact on the repute of the administration of justice than admitting it. This factor is generally related to the seriousness of the offence and the importance of the evidence to the case for the Crown. In Law, supra, at para. 39, the Court summarized this inquiry as follows: “In general, this turns on whether the unconstitutionally obtained evidence forms crucial part of the Crown’s case and, where trial fairness is not affected, the seriousness of the underlying charge.” [66] In the case before me, the admissibility of the evidence is essential to the Crown’s case in count in the indictment. [67] Count in the indictment is serious offence. [68] At pp. 126-27, Arbour J. stated: [71] Admittedly, there are various precedents where non-conscriptive evidence such as drugs was admitted on the basis that exclusion would bring the administration of justice into further disrepute than admission would, especially where the evidence was essential to the Crown (see, e.g., Mercer [(1992), 1992 CanLII 7729 (ON CA), 70 C.C.C. (3d) 180 (Ont. C.A.)]; Kokesch [1990 CanLII 55 (SCC), [1990] S.C.R. 3]; Evans, supra). Section 24(2) is not an automatic exclusionary rule (see, inter alia, Dyment, supra); in my view, neither should it become an automatic inclusionary rule when the evidence is non-conscriptive and essential to the Crown’s case. [72] The question under s. 24(2) is whether the system’s repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence: Collins, supra, at pp. 285-86. At the end of the day, though, the constitutional question is whether the admission of the evidence would bring the administration of justice into dispute (Collins, supra, at p. 281). [emphasis in original text] [73] The decision to exclude evidence always represents balance between the interests of truth on one side and the integrity of the judicial system on the other: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] S.C.R. 495 at p. 534, 45 C.C.C. (3d) 296, 55 D.L.R. (4th) 673. This was well put by Doherty J.A. in recent decision of the Court of Appeal for Ontario, R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 O.A.C. 169, 166 C.C.C. (3d) 14, at para. 47: “The last stage of the R. v. Collins, supra, inquiry asks whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great toll on the truth seeking goal of the criminal trial.” [69] Although have found that there has been no breach of the accused’s Charter rights, had found that there was breach on the facts before me, would find that having regard to all the circumstances the exclusion of the evidence in these proceedings would bring the administration of justice into disrepute.
The accused was charged with possession of marijuana for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and four other charges related to her attempts to evade arrest. At the onset of her trial, the accused took the position that her s. 8, s. 9 and s. 10 Canadian Charter of Rights and Freedoms were infringed and that all the evidence obtained after the stop should be excluded. HELD: The accused's Charter rights were not breached. 1) The strong odour of raw cannabis marijuana emanating from the interior of the accused's vehicle in itself amounted to reasonable grounds not only for lawful detention but also for arrest. 2) The officer was not in breach of the accused's Charter rights by asking her where she had been and how long she had been there. 3) On the arrest or detention of the accused, she was promptly informed of the reasons therefore and she was informed of her right to retain and instruct counsel without delay.