R. v. Stansfeld

2003 BCSC 1457 R. v. Stansfeld IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Stansfeld, 2003 BCSC 1457 Date: 20030924 Docket: 22064 Registry: Vancouver Regina v. Aron Peace Stansfeld Before: The Honourable Madam Justice Allan Ruling on a Voir Dire Counsel for the Crown: Johannes Van Iperen, Q.C. & John Neal Counsel for the Accused: John Conroy, Q.C. Place and Date of Hearing: Vancouver, B.C. September 15 and 16, 2003 Place and Date of Judgment: Vancouver, B.C. September 24, 2003 The Offence: [1] Mr. Stansfeld is charged with possession of cannabis (marihuana) for the purpose of trafficking on January 12, 2002, contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "Act"). The issues on the voir dire: [2] The issues for determination on the voir dire are: (1) whether Corporal Baptista's warrantless search of the truck driven by the accused violated the latter's right under section 8 of the Charter to be secure against unreasonable search and seizure and, (2) if so, whether the evidence obtained as a result of the search ought to be excluded under section 24(2) of the Charter. [3] Where evidence is obtained pursuant to a warrantless search, the onus is on the Crown to demonstrate, on a balance of probabilities, that the search was reasonable. The evidence on the voir dire: [4] Corporal Baptista, the Crown's sole witness, testified on the voir dire. At about 9:40 a.m., on January 12, 2002, he observed a truck with a single occupant travelling in the High Occupancy Vehicle ("HOV") Lane in contravention of section 125 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He pulled the truck over and spoke to the accused through the driver's side window, which was open. For reasons of officer safety, he leaned in slightly to observe the area of the driver's door and footwell. He noted a strong smell of air freshener in the car. He also considered Mr. Stansfeld to be more nervous than he thought was warranted. [5] Corporal Baptista told Mr. Stansfeld why he had stopped him and asked for his driver's licence and registration. Mr. Stansfeld produced a valid driver's licence and registration papers in the name of another person. Corporal Baptista returned to his police car to do a computer check of the accused and the registered owner and to write a traffic ticket. He observed the accused fidgeting in the truck, leaning over the passenger seat and checking in the rear view mirror. Corporal Baptista considered that behaviour unusual and developed an uneasy feeling about the accused's state of mind. [6] After about three minutes, Corporal Baptista returned and when he got within a foot of the driver's window, he noted an overwhelming smell of marihuana emanating from the vehicle. The smell was of freshly cut bud marihuana. He told the accused he could smell marihuana and intended to search his vehicle. He did not ask for the accused's permission to do so. If Corporal Baptista had further conversation with the accused, he did not recall it. He removed the accused and told him he was being detained for investigation of possession of a narcotic. He advised the accused from memory of his right to retain and instruct counsel and his right to remain silent. [7] Corporal Baptista secured the accused in the back of the locked police car and searched the truck. He immediately found eight bags of marihuana totalling more than three kilos inside two duffel bags on the floor behind the driver's seat. After he found the marihuana, he returned and read the accused his Charter rights from his card and told him he was under arrest for possession of marihuana for the purpose of trafficking. [8] Corporal Baptista then continued his search. He seized a binder with instructions on setting up and maintaining a "grow operation" from the passenger seat, and number of documents from the accused's wallet which was in a jacket on the passenger seat. He observed some small amounts of marihuana in a tin and in a baggie and some rolling papers. [9] Corporal Baptista said he believed he had reasonable and probable grounds to arrest the accused for possession of a narcotic when he smelled the marihuana after returning to the truck to give him the ticket. However, he did not arrest the accused when he first put him in the police car. He continued his investigation in order to determine if there should be a more serious charge than simple possession. [10] Corporal Baptista made no attempt to obtain a search warrant although he agreed that he could have applied for a telephone warrant. He had the accused's truck towed to the trucking compound instead of electing to secure it and have it towed to a police compound. When he was asked if he knew the Act (in place since 1996) required a search warrant in the absence of exigent circumstances, he replied that the earlier Narcotic Control Act, R.S.C. 1985, c. N-1, as rep. by Controlled Drugs and Substances Act, supra, s.94, did not. Discussion: [11] There is no question that the initial detention of the accused for a motor vehicle infraction was lawful. Further, it is clear that Corporal Baptista's initial approach of the vehicle did not constitute a search. [12] A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265, S.C.J. No. 15 at para. 23. [13] Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure. [14] Section 11 (7) of the Act provides: A peace officer may exercise [powers of search and seizure] without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. [15] Section 495 (1) of the Criminal Code provides: 495. (1) A peace officer may arrest without warrant (a) 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) a person whom he finds committing a criminal offence; . [16] The Crown's submission is that when Corporal Baptista approached the truck the second time and detected the smell of fresh bulk marihuana, he had reasonable and probable grounds to arrest Mr. Stansfeld based on the fact that he was either committing an offence or had committed an offence, and that the subsequent search was a valid search incident to the arrest. [17] In Mr. Conroy's opinion, Corporal Baptista, who never considered obtaining a search warrant, relied on the provisions of the repealed Narcotics Control Act, supra, and considered himself entitled to search vehicles when he detected the smell of marihuana. [18] Mr. Conroy submits that Corporal Baptista did not have reasonable and probable grounds to arrest the accused for simple possession of marihuana; at most, he had a strong suspicion. He submits that the act of continuing with the investigation was inconsistent with having reasonable and probable grounds to arrest the accused. The search was not an incident of arrest for the purpose of ensuring officer safety or preserving evidence. Mr. Conroy further submits that Corporal Baptista was not acting in good faith and the evidence of the marihuana should be excluded under section 24(2) of the Charter. [19] Corporal Baptista conceded, in cross-examination, that people who worked in grow ops often smelled of marihuana. Mr. Conroy suggested to Corporal Baptista that when he returned to the truck the second time and noticed the smell of freshly cut marihuana, he was faced with three possibilities: (1) there was some marihuana in the truck - to which Corporal Baptista answered, "Yes"; (2) there had been some marihuana in the truck - to which Corporal Baptista answered, "Possible"; and (3) the smell was from the accused's person or clothing if he had been in a grow op - to which Corporal Baptista again answered, "Possible." In reply, the officer was asked whether one possibility seemed more likely than the others and he responded that "the first was first and foremost. The smell was overwhelming." [20] In my opinion, that exchange does not bear the interpretation Mr. Conroy seeks to give it, namely that Corporal Baptista acknowledged there were three "possibilities" to account for the smell of freshly cut marihuana and no "probable" reason. Mr. Conroy's question was "loaded" in the sense that it required the witness to respond to the question that he framed in terms of the "possibilities". Corporal Baptista's answers clearly indicate that he considered the first alternative to be paramount. [21] Counsel cited some 53 cases in submissions. It is clear that in some cases, the smell of marihuana may constitute reasonable and probable grounds to arrest the suspect; in others, it may not. [22] Corporal Baptista, who has been a police officer since 1985, has extensive experience with marihuana and grow operations. He can easily distinguish between the smell of burnt marihuana and freshly cut vegetative marihuana. [23] In my opinion, at the time Corporal Baptista detained the accused, the overpowering smell of freshly cut marihuana which the accused had evidently attempted to mask with air freshener constituted reasonable and probable grounds for the accused's arrest for simple possession of marihuana. That conclusion was buttressed by the accused's inappropriately nervous demeanour. [24] A further issue arises from the fact that Corporal Baptista did not arrest Mr. Stansfeld prior to the search. Instead he detained him for further investigation. In response, the Crown suggests that the accused was de facto under arrest as soon as he was removed from the vehicle and thus the search of the truck was incidental to that de facto arrest. [25] It is settled law that when there are reasonable and probable grounds to arrest a person for an offence (possession), a peace officer may arrest the accused for that offence and perform a warrantless search, incident to that lawful arrest. Further, where there is articulable cause, a peace officer may place an accused under investigative detention with respect to a second offence (possession for the purpose of trafficking), perform a search without a warrant, and then arrest the accused for that second offence. [26] In this case, Corporal Baptista detained the accused for simple possession of marihuana, performed the search and then arrested him for possession for the purpose of trafficking. [27] In R. v. DeBot (1986), 30 C.C.C. (3d) 207, [1986] O.J. No. 994 (Ont. C.A.) at 223, the Court held that a search may occur before or after a formal arrest as long as the grounds for the arrest exist prior to the search: It is axiomatic that a search may not precede an arrest and serve as part of its justification, for example, where prohibited drugs are found on the suspect's person in the course of the antecedent search and constitute the probable cause for the subsequent arrest. On the other hand, it is well established that where probable grounds exist for arresting a person, apart altogether from evidence discovered by a search, the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows on the search. [28] In R. v. Caslake, [1998] 1 S.C.R. 51, S.C.J. No. 3 at para. 25, the Court described the limits on the common law doctrine of search incident to lawful arrest: In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. [emphasis added] [29] At para. 22, the Court stated: Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. [emphasis added] [30] While each case is dependent on its facts, the recent discussion in R. v. Omelusik, [2003] B.C.J. No. 1237, 2003 BCCA 319, is useful. There, a police officer pulled over the accused's vehicle for speeding. When he approached the vehicle, he smelled a strong odour of marihuana emanating from the vehicle and noticed a number of $20 bills in the accused's hand. He asked the accused to step out of the car and informed him that he was "under investigation for possession of a narcotic." In the course of patting the accused down for weapons, he found a bag of marihuana in the accused's pocket. The police officer arrested the accused for possession of a narcotic. He then continued to search the accused's person, and found three bundles of cocaine. Having concluded that the small amount of marihuana found on the accused's person was not enough to account for the strength of the odour he had smelled when he stopped the vehicle, the police officer searched the vehicle. Under the driver's seat, he found a clear plastic bag containing marihuana and cocaine packaged in a manner consistent with distribution of those substances. The accused was charged with possession of a narcotic for the purpose of trafficking. [31] On a voir dire into the admissibility of the evidence, the trial judge found that no violation of section 8 of the Charter had occurred. At para. 11, the Court of Appeal affirmed her reasoning based, in part, on the following factors: 1. Constable Kodak was aware of the distinction between smoked and fresh-cut marihuana. 2. The smell of marihuana, which he detected inside the appellant's vehicle, was of fresh marihuana as opposed to smoked marihuana, which can linger long after the presence of the substance. 3. The smell of freshly cut marihuana indicated to him that there was a significant amount of marihuana present in the vehicle. [32] At para. 20, Court of Appeal summarized its conclusion: Whether the smell of marihuana is enough for a lawful arrest, or in this case detention, depends on the circumstances: R. v. Schulz (2001), 159 B.C.A.C. 146, 2001 BCCA 601, and R. v. Duong (2002), 162 C.C.C. (3d) 242, 2002 BCCA 43 (leave to appeal dismissed [2002] S.C.C.A. No. 112. In the present case, the trial judge accepted Constable Kodak's evidence that the odour was of cut marihuana, not marihuana smoke, and that, together with the other circumstances, was sufficient, in my view, to justify detention. It followed that, for the officer's safety, he needed to search the appellant for weapons and, in the course of that, he came upon the drugs in the pouch which gave ample grounds for his arrest. [emphasis added] Conclusion: [33] I conclude that the search conducted by Corporal Baptista is properly characterized as a search incident to a lawful arrest, and does not violate Mr. Stansfeld's section 8 Charter rights. "ALLAN J."