R. v. Oliynyk et al.

2005 BCSC 1894 R. v. Oliynyk et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Oliynyk et al., 2005 BCSC 1894 Date: 20050210 Docket: X065537-2 Registry: New Westminster Regina v. DAVID JAMES OLIYNYK, JOSEPH ELWOOD ROGER LEPAGE,

LLOYD ALLAN FERRIS BAN ON PUBLICATION - s. 539(1) CCC Before: The Honourable Madam Justice MacKenzie Oral Ruling on Voir Dire February 10, 2005 Counsel for the Crown: M. Krotter; L. Leclair; M. Petrie; J. Hayes Counsel for the Accused, Oliynyk: J. Conroy, Q.C. Counsel for the Accused, Lepage: P. Benning Counsel for the Accused, Ferris: D. Silverman Place of Trial/Hearing: New Westminster, B.C. [1] THE COURT: This is the ruling, then, on the admissibility of the cocaine seized in Oregon by the American authorities on February 16, 2001.

OVERVIEW [2] Defence counsel argue that the 32 kilograms of cocaine seized after a search of the truck driven by the accused, Ferris, on Interstate 5 in the State of Oregon, United States of America, on February 16, 2001, is inadmissible in evidence at this trial. I decided, and it appeared that all counsel agreed, that if no remedy was available, even on the view of the facts most favourable to the defence, it would not be necessary to call the witnesses involved in the search: R. v. Vukelich (1996), 108 CCC (3d) 193 (B.C.C.A.); [1996] B.C.J. No. 1535. [3] The law relied upon by the Crown disclosed that the search was lawful in the United States. It did not violate Mr. Ferris' Fourth Amendment rights: (Whren v. United States, 517 U.S. 806 (1996); Arkansas v. Sullivan, 532 U.S. 769 (2001). [4] Defence counsel were unable to find any law that cast doubt on the principles established in Whren and Sullivan. Accordingly, the authorities found the cocaine in the truck driven by Ferris on February 16, 2001 pursuant to a lawful search. [5] It is clear, therefore, that the cocaine was not obtained as a result of a Charter breach. However, the defence argues that a court may exclude evidence if its admission would result in an "unfair trial" under ss. 7 or 11(d) of the Charter. They rely upon R. v. Harrer, [1995] 3 S.C.R. 562; 101 C.C.C. (3d) 193; R. v. Terry, [1996] 2 S.C.R. 207; 106 C.C.C. (3d) 508; and Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 124 C.C.C. (3d) 129, as authority for the proposition that evidence obtained on the strength of foreign law may be excluded to protect trial fairness.

CIRCUMSTANCES OF THE SEIZURE [6] The circumstances of the seizure come from the evidence at the preliminary inquiry that all counsel agreed would become evidence on this voir dire. On February 16, 2001 at 5:10 p.m. on Interstate 5 outside Roseburg, Oregon, Oregon State Police Trooper Freeman stopped the vehicle Mr. Ferris was driving for minor traffic violations. [7] At approximately 5:15 p.m., while Mr. Ferris was detained on the traffic violations, Oregon State Police Detective Beck arrived with police service dog, "Beeper". Beeper was a drug dog trained to detect narcotics by sniffing. Beeper "alerted" at the passenger side front of the truck and undercarriage beginning at the tailgate. The officers then searched the truck. In its covered rear bed, they found some 32 individual packages of cocaine totalling about 32 kilograms. The officers arrested Mr. Ferris at 5:45 p.m. for this offence. [8] It is common ground the minor traffic violations were only a pretext to stop ("pretextual" in the language of American law) the vehicle; the real purpose was to expose the truck to the police service dog and to search for drugs if the dog "alerted". [9] State Trooper Freeman, who stopped the Ferris vehicle, had been directed by the D.E.A. to find "probable cause" to stop it for a traffic violation. The D.E.A. had received certain information from the R.C.M.P. and, by pre-arrangement,

Detective Beck and his service dog, "Beeper," were in the vicinity of the stop. The state trooper had followed the Ferris vehicle for 31 miles, some 30 to 40 minutes, to gather the probable cause to stop for the traffic violations. Detective Beck and the dog arrived very shortly after the stop. State Trooper Freeman testified at the preliminary inquiry that he would not have let Ferris go without first having the truck sniffed by the police service dog. [10] On these facts, the defence argues it would be unfair to admit the evidence of the cocaine. The defence submits a pretextual stop of this nature would not be countenanced under Canadian law; the ulterior motive of having a narcotics dog sniff for drugs to gather grounds for a search would make the search unconstitutional in Canada. In support of this argument, defence counsel relies on Harrer, where the Supreme Court of Canada said (at paras. 50-55) that travellers to foreign countries must be taken to know that law officers in different countries cooperate with each other, that extradition treaties exist and that evidence taken in one state may be used in another. The court held that when those circumstances were taken into account, the alleged unfairness of admitting a statement given by Harrer to the U.S. authorities disappeared. The court said, (at para. 50): Where the evidence has been obtained in conformity with the

law of another country, concerns about unfairness are attenuated by the fact that the accused has submitted to the foreign jurisdiction and must be taken to have accepted the law of that jurisdiction. In Canada, every person has the right to expect that the authorities will comply with the Charter, outside Canada, their right is to be treated in accordance with laws of the foreign country in question [11] Defence counsel particularly rely upon the following where the court said (at para. 51): It may be that the procedures accepted in the foreign country fall so short of Canadian standards that the judge concludes that notwithstanding the suspect's submission to the law of the foreign jurisdiction, to admit the evidence would be so grossly unfair as to repudiate the values underlying our trial system and condone procedures which are anathema to the Canadian conscience. Or it may be that the law of the foreign jurisdiction has been abused by the authorities, again rendering it unfair to receive the evidence. But in most cases of evidence taken abroad in conformity to laws generally recognized as just, mere dissimilarity between the foreign legal rules and those required by the Charter does not establish that admission of the evidence would render the trial unfair. [12] The court continued (at para. 55): While certain basic standards are common to free and democratic societies,

particular procedural requirements may vary. It is reasonable to expect of police forces abroad that they meet basic standards of fairness. It is not reasonable to expect them to comply with details of Canadian law [13] It is clear the stop or detention described above for traffic violations is constitutionally permissible according to the Supreme Court of the United States. In Whren, at p. 813, that court noted their unwillingness to entertain Fourth Amendment challenges based on actual motivations of individual officers and held unanimously that "subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis". The court in Whren, at pp. 812-813, said, "a traffic violation arrest ... [will] not be rendered invalid by the fact that it was a mere pretext for a narcotics search." Thus, the ulterior motives of officers to stop a vehicle for a traffic violation are irrelevant so long as there is probable cause for the traffic stop. The standard to be applied is whether a police officer, acting reasonably, would have made the automobile stop for the reasons given. Therefore, Whren does not allow suppression of evidence obtained by a search on the ground that the traffic violation stop was pretextual and made for the purpose of searching the vehicle for evidence of crime. [14] The rationale for the foregoing principle is described in Illinois v. Caballes,

125 S. Ct. 834 (2005), a very recent decision of the United States Supreme Court, where the court held that a canine sniff by a well-trained narcotics detection dog is "sui generis" because it discloses only the presence or absence of narcotics, a contraband item, and does not in and of itself reveal any legitimate private information. Specifically, the court in Caballes made the following comments, (at p. 847): Accordingly, the use of a well-trained narcotics-detection dog - one that "does not expose non-contraband items that otherwise would remain hidden from public view," Place, 462 U.S. at 7078 - during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of the respondent's car while he was lawfully seized for a traffic violation in the intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement. [15] Of interest, the United States Supreme Court in Caballes said the foregoing conclusion is entirely consistent with their recent decision that the use of a thermal imaging device to detect the growth of marihuana in a home constituted an unlawful search: Kyllo v. United States, 533 U.S. 27 (2001). The court said that critical to the decision in Kyllo was the fact the device was capable of detecting lawful activity - in that case

intimate details in a home - and found the legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from the respondent's hopes or expectations concerning the non-detection of contraband in the trunk of his car. The court found that a dog sniff, conducted during a concededly lawful traffic stop, that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. [16] In summary, the officer's motives for an otherwise justifiable traffic stop are not relevant to the question of its validity. In Oregon v. Allen, 112 Oreg. App. 70 (1992), the court further decided that under normal circumstances, a policeman who wants to get a closer look at a car or its occupant may follow it and stop it if the driver commits a traffic violation while the officer is following. [17] In Terry, the court found the Charter did not apply to the California police when they detained the accused because they were subject only to American law. The conduct of the California police there could not amount to a breach of the Charter, so the statement obtained in that case could not be ruled inadmissible under s. 24(2) of the Charter. Nor did questions of fairness and policy demand a remedy under s. 24(2). The court said the first answer to the argument that the

evidence should have been excluded under s. 24(2) on grounds of fairness was that s. 24(2) was not an independent source of Charter rights, but merely a remedy for their breach. The second answer was that it was not in fact unfair to treat evidence gathered abroad differently from evidence gathered on Canadian soil. Specifically, the court said (at para. 24): The second answer to this argument is that it is not in fact unfair to treat evidence gathered abroad differently from evidence gathered on Canadian soil. People should reasonably expect to be governed by the law of the state in which they currently abide, not those of the state in which they formerly resided or continue to maintain a principal residence: Harrer, supra, at paragraph 50; Tolofson, supra. The appellant's arguments amount to asserting that a Canadian traveller takes Canadian law with him or her, a proposition that is belied by the principle that within its territory, a state is exclusively competent to exercise an enforcement jurisdiction. Thus, the general principle is that the law of the land in which one finds oneself governs the conduct of the enforcement process. This principle can be supplemented, as fairness requires, with the right to provide relief at trial pursuant to s. 11(d) of the Charter (see Terry, at para. 25). This approach best supports the remedy for abuse. [18] In addition, the court in Terry said the Charter provides that an accused's liberty cannot be limited except in accordance with the principles of fundamental justice under s.

7. The court said to admit evidence gathered in an abusive fashion may well violate the principles of fundamental justice and therefore, s. 7 may apply to justify excluding evidence obtained abroad through foreign officials where it is necessary to preserve the fairness of the trial (see also Schreiber). The defence seeks to employ these and other principles of fundamental justice to obtain redress for abuses they say were suffered by Mr. Ferris abroad in the gathering of evidence which will be tendered against him. [19] I have concluded there was no abuse in the search conducted abroad sufficient to require the exclusion of the impugned evidence at trial. While defence counsel argued that the pretextual stop and the dog sniff to gather grounds for the search would shock the conscience of a Canadian citizen, and indeed some American citizens, that argument is difficult to accept when the search was justified by the law of the United States, a country everyone takes to be free and democratic. The "sui generis" argument in the American case law is persuasive. The dog only alerts to drug contraband. The dog sniff did not reveal anything beyond that contraband material, so s. 11(d) and s. 7 of the Charter do not justify excluding the evidence. Nor would I exclude the evidence under the residual discretion at common law to exclude evidence where its admission would render the trial unfair. The trial would simply not be made unfair by the admission into evidence of the cocaine seized in this case. [20] The defence argument that the admission of the evidence would affect the fairness of the trial is, I think, further weakened by the recent decision of the Supreme Court of Canada in R. v. Tessling, [2004] S.C.J. No.

63. There, the court held that police use of a forward-looking infrared aerial camera to detect thermal energy or heat emanating from a private home was not unconstitutional since it did not constitute a search under s. 8 of the Charter. By analogy, the U.S. Supreme Court in Kyllo held that the use of such a thermal imaging device did so constitute an unlawful search. Therefore, it cannot be said, in my view, that to admit the evidence seized during a lawful but admittedly pretextual traffic stop would be unfair in light of the Supreme Court of Canada's decision to find an arguably more intrusive procedure constitutionally permissible. [21] In conclusion, the application to exclude the evidence is dismissed. (EXCERPT CONCLUDED) "A.W. MacKenzie, J." The Honourable Madam Justice A.W. MacKenzie