COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. Ingle, |
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2007 BCCA 445 |
Date: 20070918
Docket: CA034094
Between:
Regina
Respondent
And
Clayton Frank Ingle
Appellant
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Before: |
The Honourable Madam Justice Rowles |
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The Honourable Madam Justice Newbury |
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The Honourable Mr. Justice Mackenzie |
| J.W. Conroy, Q.C. |
Counsel for the Appellant |
| V.L. Hartney |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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23 April 2007 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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18 September 2007 |
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Written Reasons by: |
| The Honourable Madam Justice Rowles |
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Concurred in by: |
| The Honourable Madam Justice Newbury The Honourable Mr. Justice Mackenzie |
Reasons for Judgment of the Honourable Madam Justice Rowles:
I. Overview
[1] This is an appeal from conviction on a charge of possession of marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] The charge arose as a result of a roadside stop of the appellant’s van by a police officer who was engaged in an investigation of a theft of a tool box from a vehicle located at a residence in a mainly rural area of Abbotsford, British Columbia.
[3] As the officer approached the appellant’s van, he noticed a strong odour of marihuana coming from the vehicle and then observed a number of large, orange garbage bags in the cargo area. An initial search of the vehicle revealed that the garbage bags contained freshly cut marihuana. The appellant was arrested and informed of his s. 10 Charter rights. Approximately 37.5 kilograms of marihuana were later seized from the vehicle.
[4] At the commencement of the trial, a voir dire was held to determine whether there had been a violation of the appellant’s rights under sections 7, 8, 9, and 10(a) of the Canadian Charter of Rights and Freedoms and, if so, whether the incriminating evidence ought to be excluded. Constable Vinet, the investigating officer, and Constable Shantz, an expert witness knowledgeable about the use, cultivation, and distribution of marihuana, gave evidence. The appellant also testified on the voir dire. The trial judge concluded that the appellant’s Charter rights had not been violated and admitted the incriminating evidence.
[5] The grounds of appeal, as set out in the appellant’s factum, are that the trial judge erred in law:
(i) . . . in finding that the initial detention of the Appellant by Constable Vinet was lawful because the detention was not reasonably necessary, on either an objective or subjective view of the facts, as the totality of the circumstances did not demonstrate a clear nexus between Mr. Ingle, the individual to be detained, and a recent criminal offence.
(ii) . . . in relying exclusively and erroneously on one factually and legally distinguishable case in coming to her decision on whether the initial detention of the Appellant by Constable Vinet was lawful.
(iii) . . . in concluding that the smell of marihuana and the presence of garbage bags in the cargo van constituted reasonable and probable grounds to arrest the Appellant and, therefore, to search the vehicle and its contents incident to arrest.
(iv) in concluding that Appellant’s rights pursuant to section 10(a) and (b) of the Charter were not violated by the police for failure to timely advise Appellant of the reasons for his arrest and right to consult counsel.
[6] The appellant’s oral argument was directed almost exclusively to the question of whether the initial detention of the appellant through the police stop of his vehicle infringed his right under s. 9 of the Charter not to be arbitrarily detained.
[7] Determination of whether an investigative detention infringes s. 9 of the Charter is generally dependent on the specific facts found by the trial judge. This case is no exception. In the course of the reasons she gave for concluding that there was no breach of the appellant’s right not to be arbitrarily detained, the trial judge made a number of findings of fact that are crucial to her analysis and conclusion. In arguing that “the circumstances did not demonstrate a clear nexus between Mr. Ingle, the individual to be detained, and a recent criminal offence”, appellant’s counsel takes issue with the reasonableness of some of the judge’s findings and her application of the law to the facts.
[8] For the reasons which follow, I am not persuaded that the trial judge, in determining that the appellant’s s. 9 Charter right had not been infringed, misdirected herself on the applicable law, misapplied the law when assessing the evidence, or made any palpable and overriding errors in her findings of fact.
II. Background
[9] On 9 July 2004, at 12:14 a.m., a woman called the police to report an attempted theft from the back yard of her Sunvalley Crescent home in Abbotsford, British Columbia. The incident had been observed by the woman’s husband and she phoned to report it to the police about ten minutes later. The report was that two white males, 16 to17 years of age, one of whom was wearing a white T-shirt, had taken a large tool box from a pick-up truck, dropped it, and had then fled south in the direction of the nearby elementary school.
[10] The residence from which the report came is located in a mainly rural part of Abbotsford. Constable Vinet and other R.C.M.P. officers responded to the report by setting up containment of the area in the hope of intercepting the two suspects. At about 12:50 a.m., which was about 35 minutes after the report had been received, Constable Vinet parked his patrol car at the intersection of Bradner Road and Fraser Highway. Constable Vinet’s primary responsibility was to monitor the intersection, which is to the northwest of the residence from which the theft report had come, in an effort to locate the two suspects. Another officer was monitoring the next intersection to the east on the Fraser Highway, a distance of about 1.8 kilometres.
[11] Constable Vinet did not stop any of the vehicles which passed him on the Fraser Highway which is a through road running in an east-west direction.
[12] At about 1:00 a.m., Constable Vinet saw a van, northbound on Bradner Road, approaching the intersection. The van was the first vehicle he had observed traveling northbound on Bradner Road after taking up his position. When the vehicle passed him, Constable Vinet saw two occupants who appeared to him to be males. He made a U-turn, followed the van for about 1.5 kilometres, and then activated his emergency lights. Before doing so he had checked the van’s licence on his police computer and determined that the vehicle had not been reported stolen. The van was stopped at 1:03 a.m., which was just short of one hour after the attempted theft had been observed at the Sunvalley residence.
[13] As Constable Vinet approached the van to speak with the driver, he noticed a strong odour of marihuana and as he got up to the van, he observed a number of large orange garbage bags in the cargo area. He spoke to the driver but said nothing about the crime being invested or the odour of marihuana coming from the van. He asked the driver for the vehicle registration and his driver’s licence and then returned to his patrol car to await the arrival of the “backup” he had already summoned. When the backup police vehicle arrived, Constable Vinet asked the occupants of the van to get out. At that point the occupants were told of the odour of marihuana coming from the vehicle. They were frisk-searched for weapons, handcuffed and placed in separate patrol vehicles.
[14] Constable Vinet testified that his decision to arrest the appellant was based on his belief that there was fresh marihuana in the vehicle. He said he was very familiar with the odour of marihuana, having investigated over 150 marihuana grow operations during his eleven years as a police officer.
[15] During an initial search of the van, Constable Vinet opened some of the plastic bags and found they contained freshly cut marihuana. Constable Vinet then formally arrested the appellant for possession of marihuana and possession for the purpose of trafficking and informed him of his s. 10 Charter rights.
[16] The appellant testified that when he was pulled over, the police officer approached his window and asked him if he had seen any suspicious vehicles in the area. He said that he had not. The officer asked for his driver’s licence and registration, which he provided, and the officer took the documents back to his police car. A second police car then arrived. The appellant said he was asked to step out of his vehicle and the officer told him that he smelled marihuana. He was placed in handcuffs, frisk-searched and placed in the back of the police vehicle. He testified that he was placed under arrest and read his rights after the police officer had looked in the back of the van. The appellant did not reply to further questioning by police officers because he had been placed under arrest and was advised that anything he said could be used against him.
[17] The appellant said that he gave Constable Vinet the business card of the lawyer he wanted to talk to, and a message was left for the lawyer. Later, Constable Vinet offered to contact a legal aid lawyer for the appellant but that offer was refused.
[18] The trial judge concluded that no violation of the appellant’s Charter rights had been shown and admitted the incriminating evidence.
III. Discussion: Investigative detention and s. 9 of the Charter
[19] The guiding authority on investigative detentions is R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, 185 C.C.C. (3d) 308. In that case, the Supreme Court of Canada recognized the existence of a common law power of police officers to briefly detain a person for investigative purposes in the context of the constitutionally protected right not to be arbitrarily detained.
[20] In Mann, the Supreme Court declined to recognize a general power of detention for investigative purposes but found support in the jurisprudence for a limited power of police officers to detain for investigative purposes (at para. 18):
[18] Where, as in this case, the relevant common law rule has evolved gradually through jurisprudential treatment, the judiciary is the proper forum for the recognition and ordering of further legal developments, absent legislative intervention. Over time, the common law has moved cautiously to carve out a limited sphere for state intrusions on individual liberties in the context of policing. The recognition of a limited police power of investigative detention marks another step in that measured development. . . .
[21] On the effect of s. 9 of the Charter on a detention for investigative purposes, Iacobucci J., giving the reasons for the majority, stated:
[20] A detention for investigative purposes is, like any other detention, subject to Charter scrutiny. Section 9 of the Charter, for example, provides that everyone has the right “not to be arbitrarily detained”. It is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision. Consequently, an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter.
[22] Mr. Justice Iacobucci summarized the development of the common law concerning investigative detention, beginning with the decision of the English Court of Criminal Appeal in R. v. Waterfield, [1963] 3 All E.R. 659. In that case, Ashworth J. said, at 661:
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. . . .
[23] Mr. Justice Iacobucci referred to what had been said in Waterfield as a “two-pronged analysis where the officer’s conduct is prima facie an unlawful interference with an individual’s liberty or property”, at para. 12:
. . . courts must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law. If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
[24] Mr. Justice Iacobucci went on to observe that the Waterfield test had been adopted, refined and incrementally applied in several contexts in Canada, including the pre-Charter lawfulness of random automobile stops to combat drinking and driving, the scope of police power to conduct a search incidental to arrest, and the scope of police authority to investigate 911 calls. In that regard, he said the following about the application of the Waterfield two-stage analysis:
[26] At the first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties, including, at common law, “the preservantion of the peace, the prevention of crime, and the protection of life and property” [R. v. Dedman, [1985] 2 S.C.R. 2 at p. 32]. The second stage of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake. This aspect of the test requires a consideration of
whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. (Cloutier, supra, at pp. 181-82)
The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage. Specifically, in Dedman, supra, at p. 35, Le Dain J. provided that the necessity and reasonableness for the interference with liberty was to be assessed with regard to the nature of the liberty interfered with and the importance of the public purpose served.
[25] In Mann, Iacobucci J. identified a further refinement of the Waterfield test as having emerged from the Ontario Court of Appeal’s decision in R. v. Simpson (1993), 79 C.C.C. (3d) 482, that investigative detentions are only justified at common law if the detaining officer has some “articulable cause” for the detention. In Simpson, the appellant was convicted of possession of cocaine for the purposes of trafficking. The police officer who had arrested the appellant testified that shortly before the evening in question he had read an internal police memorandum authored by another officer describing a particular residence as a suspected "crack house". The author of the memorandum had apparently received his information from an unidentified "street contact". The officer knew nothing about this source. He had been given similar information by a member of the police morality squad but it was unclear whether that officer's source was from the same memorandum. Apart from this information, the officer knew nothing about the residence. One evening, the constable decided to patrol the area around the suspect residence. He observed a car in the driveway of the residence. The sole occupant, a woman, got out of the vehicle, leaving the motor running, entered the residence and stood inside the doorway. After a short time, she left the residence accompanied by the appellant, returned to her vehicle and drove away with the appellant seated in the front passenger seat. The constable did not know either the woman or the appellant, and had no information pertaining to either of them. The constable followed the vehicle. He testified that he did so with the intention of pulling them over for “investigative purposes” to see whether any information they could provide would substantiate the information he had received about the residence. He hoped they would give him grounds for an arrest. After following the vehicle for a short distance, the constable pulled the vehicle over. He asked the woman to sit in the back of the police cruiser and he proceeded to question the appellant outside of the vehicle. While talking to the appellant, the constable noticed a bulge in the appellant's front pant pocket. He reached out and touched the appellant's pocket and felt a "hard lump", which upon removal was found to be cocaine. At trial, the judge found that the information provided to the officer from the police sources provided a legitimate reason "to embark on the investigative course he undertook". He further held that as the officer was engaged in a lawful investigation "he had a right to stop the vehicle as he did" and that his actions were not arbitrary.
[26] In addressing the issue of whether the appellant had been arbitrarily detained contrary to s. 9 of the Charter, Doherty J.A. observed that the words “arbitrary” and “unlawful” are not synonymous, and made reference to some earlier Supreme Court decisions to illustrate that point. He then explained why it is appropriate to begin by considering the lawfulness of the detention (at 488):
Section 9 of the Charter limits the power of the police to detain individuals. It draws the line, subject to s. 1 of the Charter, at detentions which are arbitrary. The words “arbitrary” and “unlawful” are not synonymous. A lawful detention may be arbitrary [R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Hufsky, [1988] 1 S.C.R. 621], and an unlawful detention is not necessarily arbitrary: [R. v. Duguay (1985), 18 C.C.C. (3d) 289 at p. 296; R. v. Cayer (1988), 66 C.R. (3d) 30 at p. 43] Although an assessment of the lawfulness of a detention is not dispositive of the s. 9 claim, it is appropriate to begin by addressing the lawfulness of the detention. If the detention is lawful, it is not arbitrary unless the law authorizing the detention is arbitrary. If the detention is found to be unlawful, that finding will play a central role in determining whether the detention is also arbitrary.
[27] In Simpson, the detention was a direct result of the stopping of a motor vehicle and the lawfulness of the detention therefore depended on the authority of the police officer to stop the vehicle. The officer’s purpose in effecting the stop was, in turn, relevant to the lawfulness of the stop. The officer acknowledged that his decision to stop the vehicle was unrelated to the enforcement of laws relating to the operation of motor vehicles or to any statutory authority such as ss. 10 and 11 of the then-in-force Narcotic Control Act, R.S.C. 1985, c. N-1. Instead, the officer’s stated reason for stopping the vehicle was to seek confirmation of the report concerning the activities at the alleged “crack house” and to have an opportunity, by questioning the occupants of the vehicle and looking into the vehicle, to develop grounds to arrest either or both occupants on drug-related offences.
[28] As to the interaction between police duties and the authority of the police to act in the performance of these duties, Doherty J.A. stated, at 493:
The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties. Police duties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law. That law may be a specific statutory power or it may be the common law….
[29] Mr. Justice Doherty concluded that the wide duties placed on police officers in relation to the prevention of crime and the enforcement of criminal laws included investigations such as the one used by the police officer in that case. While the police officer was engaged in the execution of his duty when he stopped and detained the appellant, the lawfulness of the officer’s conduct depended on whether the stop and detention involved an unjustifiable use of the powers associated with the officer’s duty. Drawing on American jurisprudence, Doherty J.A. looked at the “totality of the circumstances” to assess the officer’s conduct, including the following factors: the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference (at 499). Doherty J.A. then considered how the validity of the stop and detention could be assessed and referred to the concept of “articulable cause”, at 500-502:
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.
The phrase "articulable cause" appears in American jurisprudence concerned with the constitutionality of investigative detentions. In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), the court considered whether a police officer could "stop and frisk" a suspect whom he did not have reasonable cause to arrest. In an analysis that bears a similarity to the Waterfield description of the common law ancillary police power doctrine, the court held at pp. 20-21 U.S., p. 1880 S. Ct., that no interference with the individual's right to move about could be justified absent articulable cause for that interference. Chief Justice Warren for the majority said:
And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion….
U.S. v. Cortez, supra, at pp. 417-18 U.S., 695 S. Ct. provides a further articulation of the concept of articulable cause:
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity….
These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 251, 53 C.C.C. (3d) 316 at p. 324, and serves to avoid indiscriminate and discriminatory exercises of the police power. A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a "hunch". …
[Emphasis added.]
[30] In Simpson, Doherty J.A. made clear that the existence of an articulable cause does not mean that a detention will necessarily be a justifiable exercise of a police officer’s common law powers. Rather, the inquiry into the existence of an articulable cause is only the first step in the determination of whether the detention was justified in the totality of the circumstances and consequently a lawful exercise of the officer's common law powers as described in Waterfield. If there is no articulable cause, the detention to investigate the detainee for possible criminal activity cannot be viewed as a proper exercise of the common law power. However, if articulable cause exists, the detention may or may not be justified. Doherty J.A. provided the following examples to illustrate that point, at 503:
. . . For example, a reasonably based suspicion that a person committed some property related offence at a distant point in the past while an articulable cause, would not, standing alone, justify the detention of that person on a public street to question him or her about that offence. On the other hand, a reasonable suspicion that a person had just committed a violent crime and was in flight from the scene of that crime could well justify some detention of that individual in an effort to quickly confirm or refute the suspicion. Similarly, the existence of an articulable cause that justified a brief detention, perhaps to ask the person detained for identification, would not necessarily justify a more intrusive detention complete with physical restraint and a more extensive interrogation.
[31] On the facts in Simpson, Doherty J.A. could find no articulable cause to justify the detention. The information the officer had regarding the “crack house” was of an unknown age, the primary source of the information was unknown and he had no reason to believe the source or information was reliable. Therefore, the information did not provide a reasonable suspicion that the residence was the scene of criminal activity. As there was no articulable cause for the detention, the common law police power did not authorize the officer’s conduct.
[32] As previously noted, in Mann, Iacobucci J. observed that Simpson added a further gloss to the second stage of the Waterfield test: “investigative detentions are only justified at common law if the detaining officer has some ‘articulable cause’ for the detention” and “articulable cause” is, as defined per Simpson, “‘… a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.’” (Mann at para. 27). Further, Iacobucci J. stated that “[a]rticulable cause, while clearly a threshold somewhat lower than the reasonable and probable grounds required for lawful arrest … is likewise both an objective and subjective standard” (at para. 27).
[33] After stating his preference for the term “reasonable grounds to detain” rather than “articulable cause”, Iacobucci J. then summarized the guiding principles based on the case law:
[34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
[35] Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.
[Emphasis added.]
IV. The reasons of the trial judge for concluding that the appellant was not arbitrarily detained
[34] The judge found the evidence of Constables Vinet and Shantz to be reliable and credible and accepted their evidence relevant to the issues on the voir dire. The judge also found the evidence of the appellant, as it related to his dealings with the police, to be generally reliable and credible and accepted his testimony in so far as it was relevant to and probative of the Charter issues.
[35] In the paragraphs of the judge’s reasons set out below, the judge summarized the evidence of Constable Vinet going to the issue of whether the appellant had been arbitrarily detained as a result of the roadside stop of his vehicle.
[16] Cst. Vinet had located his marked police vehicle on the north side of Fraser Highway, facing west, just slightly west of the intersection with Bradner Road which runs north/south. He testified that he had a view of the traffic travelling in both directions on both roadways. Cst. Vinet said the traffic was very light, which was normal at that time of night, and that while three or four or maybe five vehicles travelling on Fraser Highway had passed his location in the approximately ten minutes he had been stopped there, the vehicle driven by Mr. Ingle was the first vehicle he saw travelling northbound on Bradner Road. He said that although the call referred to individuals fleeing southward on foot, in his experience, people often resorted to vehicles to leave the scene. He said he would have stopped anyone travelling away from the location of the theft complaint at that time of night.
[17] As the van driven by the accused stopped at the red light at the intersection of Bradner Road and Fraser Highway, Cst. Vinet viewed the van over his shoulder and saw that it contained one driver and one passenger who he thought were male. As the only two people who emerged from the area at that time of night, he was of the view given the report of theft, the area, and the minimal traffic at the time, that he was obliged to stop the vehicle. He did a U-turn, fell in behind the vehicle, ran its plates on his police computer and followed it for about 1.5 kilometres. As he did so, he determined that the van was not registered as stolen. He activated his emergency equipment and pulled it over. It stopped without incident.
. . .
[23] . . . When he initially stopped the van, Cst. Vinet may have asked Mr. Ingle if he had seen any suspicious vehicles in the area. Other than that, he did not, upon the initial stopping of the van, provide Mr. Ingle with an explanation for his original detention. …
. . .
[28] In the course of cross-examination, Cst. Vinet confirmed that the whole purpose of the police presence in the area was to set up containment for the theft-of-tools call from Sunvalley Crescent. He admitted that there might have been a better spot for him to view the intersection of Bradner and Fraser Highway, but pointed out there was another officer to his east and he was focused more towards the west. He candidly admitted that he was going to stop any vehicle going north (away from Sunvalley Crescent) on Bradner Road and the Ingle vehicle was the only one he saw come up the road. He further advised that he did not observe the driver of the van commit any violations of the Motor Vehicle Act.
[29] . . . He admitted that part of his suspicion consisted of the fact that the occupants of the van appeared to be male and not to be looking at him, but he candidly said that he planned to pull them over in any event, as possible suspects in relation to theft.
[30] Cst. Vinet agreed that he had taken up his location at about 0030 hours and in court he reviewed a Police Occurrence Report, Exhibit 8, that indicated the call initially came in at 0014 hours on July 9, 2004, with the observations of the male suspects occurring about ten minutes prior to that. Therefore the alleged theft had taken place within approximately 45 minutes of when he took up his location.
[36] The rural nature of the area surrounding the reported theft and the roads in the vicinity are important facts leading to the judge’s ultimate conclusion on the lawfulness of the detention. The judge described the area and the roads as follows:
[31] The rural nature of this area of Abbotsford is shown by both the pictures, Exhibit 7, and the map, Exhibit 6, which shows blocks of land of approximately two kilometres by two kilometres, intersected by roads, based on the scale of the map. The area where Sunvalley Crescent is located shows a block two kilometres by one kilometre bounded by three roads, two of which are Bradner Road and Fraser Highway.
[37] After referring to the argument defence counsel had made, the trial judge made these important findings:
[33] I find that the area is more rural than urban in nature and that the position of Cst. Vinet was a logical place to set up surveillance in the event that the suspects had resorted to a vehicle, which is also not improbable given the nature of the area and the assumed need of the suspects to promptly leave the area. Therefore, I am not able to infer that the stop of the van was not based on a reasonable suspicion that its occupants might have been linked to the reported theft incident, given the area, time of night, location in comparison to the site of the theft complaint, and the fact that two males were allegedly involved.
[34] I note that he did not stop all the traffic at that intersection in terms of east/west traffic on Fraser Highway, but just this vehicle coming on one of the several roads away from the address of the theft complaint. Therefore, I find it is not reasonable to expect Cst. Vinet to have been able to determine the approximate age of the occupants of the van or more details as to clothing with any accuracy, prior to making the decision to stop the van. He agreed that the accused, at age 31, is not close in age to a 16 or 17-year-old-male, and that he did not recall seeing either the accused or the passenger wearing a white T‑shirt at the time he made the decision to stop the vehicle. In fact, he confirmed that he observed after the arrest that the accused was wearing a light-coloured crewneck shirt and the passenger a dark T‑shirt.
[Emphasis added.]
[38] In her analysis of whether the appellant’s s. 9 Charter rights had been violated by the initial stop of his van, the judge said:
[60] I now turn to a relatively brief analysis of the issues in view of the facts of this case as previously set out. First, did the initial stopping of the van and the detention of the accused constitute a violation of his s. 9 Charter rights?
[61] In Mann, the Supreme Court of Canada considered whether there existed at common law a police power to detain individuals for investigative purposes, and whether there existed a concomitant common-law power to search incident to such investigative detentions. After reviewing what is known as the Waterfield test in light of the test of articulable cause for detention as defined by Doherty J.A. in R. v. Simpson . . . Iacobucci J., writing for the majority in Mann, sets out the current test ….
[39] After quoting paragraphs 34 and 35 of Mann, (set out in paragraph 33 of these reasons) the trial judge continued:
[64] In the circumstances of this case, I find the decision of Cst. Vinet to stop the only vehicle he saw coming up Bradner Road at 1:00 a.m. in a semi-rural area in the general vicinity of where an offence had been reported, in which he saw two persons he believed to be male, must be viewed as reasonably necessary on an objective view of the totality of the circumstances. Although he did not have much information about the alleged suspects, he stopped the van for the purpose of determining whether its occupants were the theft suspects the police were looking for. He was not stopping all vehicles proceeding east/west, but decided to stop the van proceeding away from the area of the reported theft, based on his observations. His decision to do so was strengthened by the fact that the van contained two individuals who he believed to be white males, who he regarded as engaging in what he called the “thousand-yard stare,” and therefore not wanting interaction with the police. Although I appreciate that this stop was based on little actual information about those alleged theft suspects, I cannot ignore all the circumstances that I consider to be relevant, including the layout of the roads in the immediate area of the reported theft and the fact that Bradner Road was a thoroughfare that bounded the semi-rural area of the alleged theft to the west, the time of night, and the fact that the officer had not seen any other vehicles coming up the road since assuming his surveillance. These circumstances strengthened his decision to stop the vehicle. The rural nature of the area increased the likelihood that the theft suspects would resort to using a vehicle to leave the area. It was a logical place to “set up containment of the area,” to use the words of the officer, and his views were shared by other police officers as there was another officer stationed nearby to the east.
[65] I also note that had the officer not immediately noted the overpowering smell of fresh marihuana coming from the van, he would have queried the presence of the individuals in the area, and upon concluding they were not involved in the reported theft, sent them on their way. His initial investigative detention of the accused’s van was extremely fleeting, to say the least, given that he was, upon approaching it, assailed by the overpowering odour of marihuana as he described.
[66] For these reasons, I do not find his initial stop of the accused’s van to constitute an arbitrary detention. I am further of the view that once Cst. Vinet made his observations of the odour of fresh marihuana and saw the large orange garbage bags in the cargo area of the van immediately behind the driver, he formed reasonable and probable grounds to arrest the accused and detained the accused and the passenger initially in their vehicle at the roadside until another officer arrive to assist him.
V. Did the trial judge err in concluding that the appellant was not arbitrarily detained by the roadside stop of his vehicle?
[40] When the trial judge considered whether the investigative detention occasioned by the stop of the appellant’s van was a violation of s. 9 of the Charter, she referred to Mann, and referred to those paragraphs from the judgment of Iacobucci J. which distilled the applicable principles drawn from Waterfield and Simpson. The appellant asserts in his second ground of appeal that the trial judge “erred in law in relying exclusively and erroneously on one factually and legally distinguishable case in coming to her decision on whether the initial detention of the Appellant by Constable Vinet was lawful.” The decision referred to is R. v. Hyatt, 2003 BCCA 27, a decision of this Court which pre-dated Mann. In view of the trial judge’s references to Mann, it is obviously inaccurate to say that the trial judge relied “exclusively” on Hyatt. Moreover, the appellant has not pointed to any error in the judge’s articulation of the principles she was to apply in determining whether the appellant had been unlawfully or arbitrarily detained by the stop of his vehicle. In my view, there is no foundation for the suggestion in the second ground of appeal that the judge misdirected herself on the law she was to apply in determining whether the appellant had been unlawfully or arbitrarily detained.
[41] Whether an investigative detention infringes s. 9 of the Charter generally turns on the specific facts found by the trial judge about the circumstances surrounding the detention: R. v. Von Meyenfeldt, 2006 BCSC 1142; R. v. Mollazedeh, 2006 BCCA 35; and R. v. Aslam, 2006 BCCA 551. Counsel referred us to a number of cases decided after Mann, including R. v. Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 522 (QL); R. v. Clayton and Farmer (2005), 194 C.C.C. (3d) 289 (Ont. C.A.), (which, following the hearing of this appeal was reversed by the Supreme Court of Canada, 2007 SCC 32) and R. v. Arkinstall, 2005 BCPC 357. Those cases were said to confirm, or not, the correctness of the trial judge’s analysis or conclusion in this case, based on certain factual similarities. With deference to counsel, such arguments have limited utility. As Waterfield, Simpson and Mann all make clear, it is the whole of the circumstances that must be considered when determining whether an investigative detention is unlawful or arbitrary.
[42] While not expressed this way either in his grounds or in argument, what the appellant appears to take issue with is the judge’s assessment of the evidence and the inferences the judge drew from the evidence when considered in light of the applicable law. As I understand his argument, the appellant’s contention is that, viewed objectively, the evidence could not support a finding of “articulable cause” or, as expressed in Mann, “reasonable grounds to detain”.
[43] The thrust of the appellant’s argument is captured in the following question he posed in his factum:
1. Is it objectively and subjectively reasonable for police to believe that a clear nexus exists between the two adult occupants of a van and an attempted theft when the information police had was that the attempted theft had been committed by two teenagers 40 minutes earlier and more than 3 kilometres away from the location of the stop, and when the teenagers were reported to have fled the scene on foot in the opposition direction?
[44] The essence of the appellant’s argument is that the judge’s conclusion that Constable Vinet had reasonable grounds to detain is unreasonable because the evidence does not support it. The appellant submits that the reported incident was of two teenage males involved in an attempted theft, and that the description of the perpetrators, including their ages and the clothing of one, did not match the occupants of the van. The appellant further points out that the report from the householder was that the perpetrators were on foot and headed in the direction of a school. Finally the appellant points out that when his van was stopped, close to an hour had elapsed from when the report was received.
[45] To support his submission that Constable Vinet had neither a subjective nor objective basis to believe that a clear nexus existed between the appellant and the reported offence, the appellant has listed what he termed the “objective facts”, as follows:
· The Appellant was traveling by van northbound from the Scene whereas the suspects were reported to be on foot and fleeing southbound from the Scene;
· The Appellant’s age did not match that of the suspects;
· The Appellant was detained 40 minutes after the reported attempted theft;
· The Appellant was detained 3 kilometres away from the scene of the reported theft;
· The Appellant was driving on a major road in Abbotsford and was first noticed stopped at a red light at a major intersection and the arresting officer testified that at least 3 to 5 cars had already gone through the intersection reflecting normal traffic for that time;
· Abbotsford, while rural, has a population of 122,000 with more than 250,000 in the immediate area;
· The only information matching both the Appellant and the suspects was that there were two white male suspects and that occupants of the van were “felt” to be white males.
[46] The appellant’s list does not accord in important respects with the trial judge’s findings or with the inferences the judge drew from those findings. The appellant’s list ignores the judge’s description of area from which the reported theft emanated. The judge described “blocks of land of approximately two kilometres by two kilometres”. That corresponds to the area bounded by two roads and the Fraser Highway, and little housing. Regardless of the population of Abbotsford (of which I could find no evidence in the transcript), the area from which the theft was reported was, as the trial judge described it, “more rural than urban in nature”. It appears from the map to which the judge referred that the appellant was stopped about three kilometres from the location of the reported theft. However, an examination of the map simply confirms the judge’s finding about the size of the blocks of land and the obviously rural nature of the area. The map also confirms that only two roads join Fraser Highway in the area of the reported theft, one of which is Bradner Road.
[47] No mention is made in the appellant’s “objective facts” of the time of night the containment was set up, nor the fact that the appellant’s van was the only vehicle that had appeared on Bradner Road in the time Constable Vinet had been at the intersection of Fraser Highway and Bradner Road. Several vehicles had passed Constable Vinet on Fraser Highway but none of those vehicles was stopped since they were not coming from the containment area.
[48] The appellant’s list also makes no reference to the judge’s summary of Constable Vinet’s evidence that although “the call referred to individuals fleeing south on foot, in his experience, people often resorted to vehicles to leave the scene.”
[49] In summarizing Constable Vinet’s testimony, the judge said: “As the van driven by the accused stopped at the red light at the intersection of Bradner Road and Fraser Highway, Constable Vinet viewed the van over his shoulder and saw that it contained one driver and one passenger who he thought were male. As the only two people who emerged from the area at that time of night, he was of the view given the report of theft, the area, and the minimal traffic at the time, that he was obliged to stop the vehicle.” It is in the context of this evidence, and the time of night the containment of the area was set up, that the trial judge considered Constable Vinet’s evidence that “he would have stopped anyone travelling away from the location of the theft complaint….” The judge concluded that Constable Vinet had a “reasonable suspicion” that the occupants of the van might have been linked to the reported theft incident, “given the area, time of night, the location in comparison to the site of the theft complaint, and the fact that two males were allegedly involved.”
[50] The respondent Crown argues that, given the specifics of the timing, location, and context of the reported crime, the anticipated brief stop of the vehicle in relation to the reported theft in this case could not be said to be arbitrary or based on a mere whim or hunch. Rather, the roadside stop was made for investigative purposes in circumstances which on a whole gave rise to a reasonable suspicion thus satisfying the first requirement of the Mann test. Respondent’s counsel further submits that the second aspect of the Mann test is not an issue in this case because, unlike cases such as Mann and Greaves, the investigative detention of the appellant did not encompass either a “pat down search” for safety reasons or other personal search. As the trial judge found, Constable Vinet intended only to query the presence of the appellant in the area and, assuming he concluded the appellant was not involved in the reported theft, would have sent him on his way.
[51] The facts found by the trial judge were not shown to be in error and based on those facts, I am of the view that the stop of the appellant’s vehicle cannot be said to be unreasonable.
[52] I would not give effect to either the first or second ground of appeal.
VI. Did the trial judge err in concluding that the smell of marihuana and the presence of garbage bags in the cargo van constituted reasonable and probable grounds to arrest the Appellant and, therefore, to search the vehicle and its contents incident to arrest?
[53] In my view there is no merit in this ground of appeal. Constable Vinet’s evidence about the significance of the smell of fresh marihuana coming from the van and the presence of garbage bags in the cargo area was based on his extensive experience in investigating marihuana cases. The odour he detected and the bags he observed provided the necessary reasonable and grounds to ground the appellant’s arrest and to search the vehicle the appellant was driving.
VII. Did the trial judge err in concluding that appellant’s rights pursuant to section 10(a) and (b) of the Charter were not violated by the police for failure to timely advise appellant of the reasons for his arrest and right to consult counsel.
[54] The evidence does not support a finding that the appellant’s rights under s. 10 of the Charter were infringed. I would not accede to this ground.
VIII. Conclusion
[55] For the reasons stated, I would dismiss the appeal.
“The Honourable Madam Justice Rowles”
I Agree:
“The Honourable Madam Justice Newbury”
I Agree:
“The Honourable Mr. Justice Mackenzie”