2004 BCCA 589 R. v. Dubois

Before:	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Donald
	The Honourable Madam Justice Huddart

Oral Reasons for Judgment

K.T. Christiansen	Counsel for the Appellant
P. Eccles	Counsel for the Respondent
Place and Date:	Vancouver, British Columbia
12 November 2004

[1] HUDDART J.A.: This appeal from conviction for possession of cocaine is founded on an alleged breach of the appellant’s right to be free from unreasonable search and seizure guaranteed by section 8 of the Charter. The refusal of the trial judge to find a breach of section 8 and exclude the evidence of cocaine obtained in a search of the appellant’s person at the Kelowna detachment of the R.C.M.P. was upheld by Goepel J. on appeal under the summary conviction provisions of the Criminal Code. It comes to this Court by leave on a question of law.

[2] It is common ground that an acquittal would result if the evidence of cocaine were excluded. The appellant makes no complaint about the search of his person as he was being booked and placed in the cells of the detachment. He complains of a prior search of his vehicle by Police Dog Sam after his car was stopped and he and a passenger were asked to step out and told they were being detained for investigative purposes. The relevant facts are few and not in dispute.

[3] Around 10:15 p.m. on 20 May 2001, two female officers on bicycle patrol in Kelowna smelled the distinct odour of burning marihuana as they passed the appellant’s car heading in the opposite direction to them. When the appellant turned into a nearby parking lot, they rode their bicycles up to his vehicle. As one of the officers approached the vehicle, she observed the appellant raising a Budweiser beer can to his mouth and taking a sip from it. As one officer approached the passenger’s side and the other the driver’s side, both smelled a strong odour of marihuana emanating from the vehicle, and both saw an open can of Budweiser beer on the console area between the driver and passenger seats. As the female passenger got out of the car at the request of one of the officers, Constable Pineo saw her brushing something off her white pants, that she suspected were marihuana leaves or remnants. Constable Byrne observed what she believed to be residual marihuana leaf throughout the interior of the vehicle.

[4] Constable Pineo told both the passenger and the appellant that they were being detained for investigation of possession of a controlled substance and that the vehicle would be searched. She called for a police dog search for marihuana. Constable Moreau arrived with Police Dog Sam. Sam located a baggie of marihuana between the front passenger seat and door, some roaches in the ashtray, and a sum of money in the console. Constable Pineo then told the appellant he was being detained and read the usual police warning and advice regarding counsel to him. She did not tell him he was under arrest, but the trial judge reasonably found that would have been obvious to him, and no issue is taken with what happened subsequently.

[5] The Crown accepts the dog search was lawful only if the police officers had reasonable and probable grounds to arrest the appellant. Constable Pineo testified she did not consider an application for a search warrant to be necessary because the vehicle search was incidental to arrest and detention. She stated that her reasonable and probable grounds to conduct the search were the smell emanating from the vehicle and the leafy material on the pants of the passenger. That led her to believe there was cannabis marihuana in the vehicle although there was nothing in plain view. Constable Byrne added that she had some concern for her safety. Constable Pineo had none.

[6] Defence counsel says the evidence of smell emanating from the vehicle and the observation of the leafy substance on the female passenger’s pants were insufficient to provide grounds for the arrest of the appellant for possession of marihuana, although she acknowledges it was sufficient to justify the officers’ “primary search,” looking around the car, during which the officers observed some leafy substance and a box of beer.

[7] Ultimately, the appellant was acquitted of the charge of possession of marihuana, the trial judge not being satisfied that he had control over it. It was not suggested that outcome is relevant to the issue the trial judge was called upon to determine.

[8] The trial judge explained why he considered the search to have been reasonable and not an arbitrary breach of the appellant’s rights:

[17] The Criminal Code requires that an officer must subjectively have reasonable grounds on which to base an arrest or detention. Those ground must be justifiable from an objective point of view, that is a reasonable person placed in the position of the officer must be able to conclude that there were reasonable and probable grounds. I have concluded that a reasonable person would readily conclude that given the aroma emanating from the vehicle it was reasonable to conclude that one or both of the occupants had recently used marihuana within it and might do so again.

[18] In addition, there was apparently open liquor in the vehicle. The accused was seen to drink from a beer can. It was reasonable to conclude that the accused might continue to drink and that his ability to operate the vehicle, if not then impaired by alcohol or a drug, might become so later.

[19] Thus the police had the right and, indeed, the duty to investigate further. The situation cried out for them to search the vehicle. They had reasonable and probable grounds to believe that an offence had just been committed or was being committed. Thus they had the right and duty to detain the accused and to conduct a search of the vehicle incidental to detaining him. They could hardly have walked away.

[9] Like the Summary conviction appeal court, I can find no error in principle in this reasoning. It cannot be said that the evidence of odour alone is insufficient in all circumstances to found an objective belief that a crime has been or is about to be committed. As this Court noted in R. v. Schulz, 2001 BCCA 601, at para. 5, each case turns on its own facts and whether the odour of marihuana will suffice to justify an arrest will depend on the surrounding circumstances. The testimony of Constable Pineo supports the trial judge’s finding she had a subjective belief that she had reasonable and probable grounds for an arrest. Her inference that there would probably be marihuana in the car was reasonable.

[10] Defence counsel did not dispute the police power to search a lawfully arrested person and to seize anything in his possession or immediate surroundings to provide evidence against him, provided the search was conducted in a reasonable manner. Rather, she submitted, there had been no lawful arrest when the dog search began, such as to justify that search. I am not persuaded an actual arrest is a prerequisite to a search, as long as there are both objective and subjective grounds for an arrest. In R. v. Debot, (1989), 52 C.C.C. (3d) 193 at 207, Wilson J. wrote:

... - As long as the officer has probable cause to arrest the suspect, the fact that he or she postpones the decision until after the search is not fatal. This is so because the reasonable belief that the suspect has committed the offence of being in possession of a prohibited drug may turn out to be erroneous. Alternatively, the officer may still have reasonable grounds for making the arrest but conclude that there would be no chance of obtaining a conviction without the evidence. In these circumstances an arrest would be pointless.

[11] In my view, the only issue on this appeal is whether the police officers had reasonable and probable cause to arrest the appellant when the dog search began. The trial judge found they did and I am not persuaded he erred in that finding.

[12] In these circumstances I would dismiss the appeal.

[13] PROWSE J.A.: I agree.

[14] DONALD J.A.: I agree.

“The Honourable Madam Justice Huddart”