This week’s top three summaries: R v Myers, 2022 NSCA 69: #inventory searches, R v DD, 2022 ONCA 786: #historical sex assault, and R v Fisher, 2022 ABPC 232: waiver of in default #jail

This week's top case deals with a drug prosecution issue. For great general reference on drug prosecutions, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

Prosecuting and Defending Drug Cases: A Practitioner's Handbook

By Jeremy Streeter, Nathan Gorham, & Breana Vandebeek

A practical guide to the different types of drug offences, including possession, trafficking, importing, exporting, and production offences, as well as conspiracy and criminal organization offences in the context of drug distribution offences.

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R v Myers, 2022 NSCA 69

[November 16, 2022] Charter s.8: Inventory Search -  [Reasons by Bourgeois J.A. with Bryson and Beaton JJ.A. concurring]

AUTHOR’S NOTE: This case deals with the tricky issue of inventory searches of vehicles being towed from a scene. Helpfully for the defence, the case sets out a bright line rule for what police should do if there are moveable personal items left in the vehicle before they start searching them. A reasonable inventory search does not extent to personal property of occupants that will not remain in the vehicle when taken into police custody. Occupants should be given the opportunity to remove their personal belongings from the vehicle prior to it being placed under police control. Police have to explain why such items which could have been taken, were rained or searched. For example in this case, a backpack could not  reasonably be searched pursuant to an inventory search. 

Reasons For Judgment:

[1] The appellant, Luke Jacob Daniel Myers, was a passenger in a truck stopped for various infractions under the Motor Vehicle Act, R.S.N.S. 1989, c. 293, as amended (“the MVA”). The investigating police officer determined that summary offence tickets would be issued to the driver, Mr. Fraser, for driving with no insurance (contrary to s. 230(1)) and driving an unregistered vehicle (contrary to s. 13).

[2] Given the truck was not insured, the officer called for it to be towed to a third-party lot and commenced “an inventory search” of the contents of the vehicle. While detaining both the driver and the appellant, the officer began the inventory search by opening a backpack located on the floor on the passenger side of the truck. Various prohibited drugs and drug paraphernalia were located in the backpack. The appellant was arrested, provided a statement to the police, and was subsequently charged with two counts of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”).

[3] At trial, the appellant argued the inventory search was not reasonable in the circumstances and constituted a violation of his rights under s. 8 of the Canadian Charter of Rights and Freedoms. He submitted the evidence resulting therefrom, namely the drugs and a statement given to police following his arrest, ought to be excluded as evidence, and an acquittal entered.

[5] On appeal to this Court, the appellant says that although the trial judge cited the correct law in relation to inventory searches, he did not apply it correctly. He asks this Court to find the search was conducted unreasonably, and gave rise to a Charter infringement. The appellant further requests that we give consideration to whether his s. 9 rights protecting against arbitrary detention were infringed and undertake a fresh s. 24(2) analysis. He says this Court should exclude the evidence arising from the Charter breaches and enter acquittals in relation to the CDSA charges.

[6] For the reasons to follow, I would allow the appeal. I am satisfied the trial judge erred in law when he concluded the search of the appellant’s backpack was a reasonable inventory search. I would exclude the tainted evidence, and enter an acquittal.

Decision Under Appeal:

[7] The proceeding was conducted as a blended voir dire. In his decision, the trial judge set out the facts most relevant to the appeal as follows:

[8] Sgt. Rose testified that he was on patrol in Truro in a marked cruiser on Dec. 23, 2018. He testified that:

-  The purpose of the inventory search is for officer liability reasons as the police do not want to be blamed, or held liable, for items that allegedly disappear from a vehicle once it has been towed away. The inventory search is also to conduct a cursory search to ensure that there are no weapons or other hazards in the vehicle before it is towed away

[10] The trial judge reviewed the two case authorities relied upon by the Crown, R. v. Cooper, 2016 BCPC 259 and R. v. Wint, 2009 ONCA 52. With respect to Cooper, he noted:

[21] I accept that the law as noted in Cooper applies equally to Nova Scotia, and in particular that where authority is granted to the police pursuant to the Motor Vehicle Act, or other authorizing legislation, to take possession of a vehicle and store it in a safe place, it is implicit in the legislation that the police have the duty and responsibility when exercising that authority to ensure the safety of the vehicle and its contents and conduct an inventory search to that end, and, in order to properly fulfil their lawful duty and responsibility to secure the property, entitled to conduct an inventory of the vehicle’s contents. The police must be able to take reasonable steps to meet their duty to safeguard the property, including entering the vehicle and itemizing any property of apparent value therein.

(Bold and underline in original)

[12] The trial judge ultimately concluded:

[34] I find that the search of the backpack belonging to Mr. Myers was as a result of a legal inventory search and that it is admissible as evidence in this trial. There was no breach of Mr. Myers’ s. 8 Charter rights.

[35] Consequently, the voluntary statement by Mr. Myers to the police acknowledging that he was possessing the drugs for the purpose of trafficking is also admissible. As is the expert report, and testimony, of Cpl. Lane that are as a result of the discovery of the backpack contents by Sgt. Rose.

[20] The Crown justifies the search of the appellant’s backpack as being an authorized and reasonable inventory search. Neither at trial, nor on appeal, did the Crown justify the opening of the backpack as being an investigatory search, or incidental to arrest. I will confine my analysis accordingly.

[21] The appellant acknowledges that the search of the vehicle was authorized by s. 273 of the MVA which provides:

Seizure of vehicle involved in offence

273 (1) The Registrar, any official of the Department or any peace officer may seize a motor vehicle with which an offence has been committed under this Act or under any section of the Criminal Code (Canada) having particular relation to motor vehicles and may detain the same until the final disposition of any prosecution instituted for such offence but such motor vehicle may be released on such security for its production being furnished as the Registrar may require.

[22] Courts have recognized that the right to impound a vehicle under provincial legislation includes the ability to inventory the contents thereof. In R. v. Nicolosi, [1998] O.J. No. 2554, Justice Doherty wrote:

28 Under s. 221(1) of the H.T.A., the police are authorized to do the following:

-- take the vehicle into the custody of the law; -- cause it to be taken to a place of storage; and -- store the vehicle in a suitable place.

29 Custody is defined in the Shorter Oxford Dictionary as "safekeeping, protection, charge, care, guardianship." Taking a vehicle into "the custody of the law" entails more than simply assuming possession and control of the vehicle. It involves the preservation and safekeeping of the vehicle while in the care and control of the police. Nor do I draw any distinction between the vehicle and its contents when the vehicle is impounded. Both are equally in the "custody of the law."

30 With the responsibility to keep the impounded property safe, must come the ability to take reasonable steps to achieve that end. Entering the vehicle for the purpose of itemizing visible property of apparent value is entirely in keeping with the responsibility to safeguard the vehicle and its contents while they are in the custody of the law. . .

(Emphasis added)

[23] More recently, the British Columbia Court of Appeal in R. v. Strilec, 2010 BCCA 198, recognized the authority of police to impound a vehicle under that province’s motor vehicle legislation, “...carries with it the duty and responsibility to take care of the vehicle and its contents, and to do that the police must be able to conduct an inventory of the vehicle’s contents”. (at para. 62)

[24] The appellant concedes that the law (permitting an inventory search of a vehicle detained by police) is reasonable. The issue on which the parties disagree is whether the trial judge erred in finding the inventory search was carried out in a reasonable manner.

[25] The appellant says the search exceeded the parameters of an inventory search, and was therefore unreasonable. In short, the appellant should have been given his backpack and sent on his way, before the inventory of the truck contents began. There was no justifiable reason for the backpack to be part of an inventory search of the vehicle contents. The Crown says the trial judge was correct in concluding a search of the backpack was reasonable.

[26] I return to Cooper, where the reasonableness of an inventory search was also one of the key issues for determination....

[28] The inventory search in the context of that case was found to be reasonable. In reaching that conclusion, Cutler, J. set out a number of legal principles. He wrote:

And further:

[36] The purpose of the inventory search is to allow the officer an opportunity to identify and record property which the police are retaining control of as a result of taking control of the vehicle. Once the police decide to take control of a vehicle, the driver or owner is not immediately foreclosed from taking possession of property contained in the vehicle which he or she wishes to retain. It is reasonable that a driver or owner will be given an opportunity to retain items in the vehicle at the time of the impoundment assuming that in doing so they do not interfere in the execution of the officer's duties. The objective of most if not all vehicle impoundment legislation, and s. 188(1)(d) of the Motor Vehicle Act is no exception, is to remove the vehicle from public roadways. The objective is not to impound the contents of the vehicle.

[37] ...I do not believe it would be wise or appropriate to expect the officer to perform a complete search of an individual's wallet in such cases.

(Emphasis added)

[29] The following principles apply in assessing whether an inventory search triggered by the detention of a vehicle pursuant to the MVA, was conducted reasonably:

  • Courts must exercise vigilance in assessing whether an inventory search was conducted reasonably. The power of police to search the contents of a vehicle under the detention power contained in the MVA is one fraught with the risk of purposeful or inadvertent misapplication. Police must be vigilant that the manner in which an inventory search is conducted does not go beyond its purpose;
  • Given its purpose, a reasonable inventory search does not extend to personal property of occupants that will not remain in the vehicle when taken into police custody;
  • Occupants should be given the opportunity to remove their personal belongings from the vehicle prior to it being placed under police control, unless doing so would interfere with the investigation being conducted; [PJM Emphasis]
  • As the Crown has the burden of establishing the inventory search was conducted reasonably, police should explain why personal belongings which could have been taken by occupants were retained and/or searched; and
  • As per Wint, if personal belongings such as a purse, backpack or bag remain in the vehicle after it is placed in police control, it is reasonable, as part of an inventory search, to document the contents thereof. It is important to recognize the opening of a purse (or bag) in one situation may be found to be part of a reasonable inventory search, whereas the context in another case may lead to the conclusion such action is unreasonable.
[30] The above principles are entirely consistent with Cooper, which was adopted by the trial judge as the law applicable in this Province. I am satisfied, however, that the trial judge failed to properly apply them. Specifically, the trial judge failed to undertake a full contextual analysis of the reasonableness of the inventory search.

[31] The trial judge concluded that an inventory search was appropriate in the circumstances. I agree with his conclusion. However, in assessing whether the search was conducted in a reasonable manner, he failed to consider if all of the contents needed to be inventoried.

[33] As the principles stated earlier establish, an inventory search only applies to the contents which will be remaining with the vehicle after it is taken into police control. This does not give the police carte blanche to search personal belongings, unrelated to the particular investigation, which the occupants may wish to remove from the vehicle. The trial record does not support there being any necessity to search the appellant’s backpack as part of the MVA investigation, indeed, such a justification was never advanced either at trial, or on appeal.

[34] Before commencing the inventory search, the appellant ought to have been invited to remove his personal belongings from the vehicle. There was no justification to search his backpack as part of an inventory search. Sgt. Rose’s search of the appellant’s backpack exceeded what was required to effect an inventory search in these circumstances. As such, I am satisfied the appellant’s rights under s. 8 of the Charter were infringed, and the trial judge erred in concluding otherwise.

Issue 3: Should this Court undertake a fresh s. 24(2) analysis, and if so, what is the result?

[51] I would place the improper search of the appellant’s backpack at the moderately high end of the culpability spectrum for the following reasons:

  • Although courts have determined there is a decreased expectation of privacy in the contents of vehicles; here, the inculpatory evidence was found in a closed backpack located on the floor by the passenger seat. The appellant had been sitting in that seat when the truck was stopped by Sgt. Rose. In his cross-examination, he acknowledged he did not ask either the driver or the appellant permission before opening the bag and starting a search. Unlike visible contents of the vehicle, a passenger would have an expectation of privacy in regard to a closed backpack. In my view, although Sgt. Rose was justified in undertaking an inventory search, his search of the backpack showed a unwarranted disregard to his obligation to undertake the search in a reasonable fashion and in accordance with the law;

  • Unjustified searches of the personal belongings of the travelling public should not be condoned by this Court. In viewing the search of the appellant’s backpack as behaviour this Court should disassociate itself from, I call to mind the words of Justice Binnie in R. v. A.M., 2008 SCC 19:

    [62] The backpacks from which the odour emanated here belonged to various members of the student body including the accused. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. No doubt ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could randomly be inspected by the police without "reasonable suspicion" of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.

[52] This line of inquiry supports an exclusion of the evidence flowing from the breach.

The impact on the Charter-protected interests of the appellant

[54] Here, the infringement did not involve the bodily integrity of the appellant. However, as noted above, as a member of the travelling public, the appellant would have a distinct expectation of privacy in his closed backpack. The breach here had a direct impact on the appellant’s right not be subjected to unreasonable search and the result thereof lead directly to the charges that followed. This line of inquiry also supports an exclusion of the impugned evidence, and falls on the moderately high end of the spectrum given the circumstances of this case.

[57] I acknowledge the nature of the evidence flowing from the search creates a strong pull towards admissibility. However, the other two factors, although falling slightly lower on the seriousness spectrum, lead me to conclude the drugs and the appellant’s police statement ought to be excluded. In the circumstances of this case, the admission of the evidence garnered from a passenger who had no involvement with the MVA investigation, would risk bringing the administration of justice into disrepute, and set a poor precedent for the future use of inventory searches by police in this Province.

Disposition

[58] For the reasons above, I find that the manner in which the inventory search was conducted infringed upon the appellant’s right to be free from unreasonable search and seizure. I further find that the admission of the evidence flowing from the breach, namely the contents of the backpack and the appellant’s subsequent statement to police, would bring the administration of justice into disrepute.

[59] Without the impugned evidence, there was no reasonable prospect of conviction. As such, I would set aside the two convictions under s. 5(2) of the CDSA, and enter acquittals on both charges.

R v DD, 2022 ONCA 786

[November 17, 2022] Historical Sexual Assault: Evaluation of the Evidence of an Adult (Age 18) Giving Evidence about Events Alleged from Ages 5-11. [Doherty, Alexandra Hoy, David M. Paciocco JJ.A.]

AUTHOR’S NOTE: The temptation to ease the credibility testing of complainants of historical sexual assault can sometimes be overwhelming to triers of fact. One thing they cannot do is treat the testimony of adults about events that occurred when they were children a break on the basis that a child would not have the intelligence or experience to concoct the details of such an event. The person testifying is an adult - the are not to be treated as a child witness. 

Reasons For Decision

[1] D.D. was convicted of sexual interference committed against the complainant when she was a child between 5 and 11 years of age. The complainant, who was 18 years of age when she testified at trial, is the daughter of a woman (the “complainant’s mother”) with whom D.D. was in an intimate relationship at the time of the alleged events.

[2] D.D. testified and denied the allegations. He also said he was never left alone with the complainant. This claim was supported by the testimony of the complainant’s mother.

[3] D.D. appeals this conviction and the accompanying finding that he was guilty of sexual assault, an overlapping charge that was stayed to avoid double jeopardy. We allow his appeal. The trial judge erred by assessing the complainant’s credibility as if she were a child at the time that she testified.

[4] In R. v. W. (R.), [1992] 2 S.C.R. 122, it was affirmed that the evidence of children must be approached on a common sense basis bearing in mind their mental development, understanding and ability to communicate. “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R)., at para. 25. By way of illustration, the inability of the child complainant in R. v. W. (R.) to accurately describe the location of bedrooms in a house, a peripheral matter, was not significant to her credibility or reliability, since a child may not attend to such details: R. v. W. (R.), at para. 30.

[5] Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant. This is logical. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later while testifying as an adult cannot meaningfully unsettle the credibility or reliability of their evidence. Therefore, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying” (emphasis added): R. v. W. (R.), at para. 27.

[6] However, “[in] general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness”: R. v. W. (R.), at para. 27. The trial judge cited this principle correctly but misapplied it.

[7]  The trial judge summarized his reasoning as follows:

No doubt, from this court’s review of the evidence, it is obvious that the court is touched by the logic of [the complainant’s] evidence. Her evidence has the quality of a child bearing witness to a progressive sexual abuse by herself [sic]. There are plenty of childlike details such as taste, the sound of photographs; [sic] the sound of the zipper, the yellow couch, and the concrete floor and the puddles of semen on the floor, which are so compelling, there is no reasonable doubt as to what she attests to. [Emphasis added.]

[8]  Appellate courts should not “finely parse trial judge’s reasons in a search for error”: R v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20, at paras. 69-82. Reading this passage alone, we might have concluded that the trial judge was struggling to convey that these vivid details recounted by the now adult witness were compelling and were ones he believed would have registered in a child’s memory. If that were the case, we would not interfere. However, other portions of his reasons lead us to conclude that he erred in his approach and evaluated the credibility of the complainant as if she were a child at the time that she testified. To be clear, there can be no issue taken with a trial judge finding that details provided by an adult witness about a childhood experience are the kinds of things a child would remember, or that details recounted by the adult witness provide plausibility or coherence to the account. But what a trial judge cannot do is infer that such details, being provided by an adult witness, must be true because a child would not have the intelligence or experience to concoct those details. That is what the trial judge did in this case. The following examples from the decision illustrate the problem: [PJM Emphasis]

(1) The complainant testified that D.D. asked her to slowly undress. The trial judge found this compelling because “these assertions do not present as a fantasy in a child’s world, but as child relating a memory of a strange thing of an adult doing”. The problem of course is that the complainant was not a child when relating these assertions. She was a mature witness.

(2)The complainant testified that she was blind-folded and sat on a toilet during sexual assaults. The trial judge said, “[t]his is a scene so far removed from the natural events of a child it has a certain stand out quality.” Once again, this event was not being related by a child who may have difficulty conjuring such a scenario. It was related by a mature witness.

(3)The complainant testified that D.D. would take photographs. The trial judge said, “it just seems so out of sync with a child’s story unless it was a detail that the child remembered.” With respect, the judge was not hearing a child’s story.

[9] There are other examples, but the point has been made. The trial judge did not simply rely on the witness’s immaturity at the time of the event to put flaws in the witness’s evidence into perspective, an entirely appropriate mode of reasoning. He went further and evaluated the credibility of the adult complainant as if she were a child at the time she testified. This was not a secondary feature of the decision. Reading the credibility analysis undertaken by the trial judge, one would be hard pressed to appreciate that the complainant was 18 years of age when she testified, and not a young child. This was a serious error that was central to the trial judge’s decision to accept the testimony of the complainant.

[10] We would therefore allow the appeal on this ground alone. It is unnecessary to address the remaining grounds of appeal that were argued.

R v Fisher, 2022 ABPC 232

[November 17, 2022] Time in Default on Provincial Offence [Judge R.C. Shaigee]

AUTHOR’S NOTE: Debtors prison has been a very real thing in Alberta for far longer than in other jurisdictions. As debtors prisons have been known to do, they tend to punish those most unable to meet their financial obligations due to overwhelming life circumstances. Here, Judge Shaigee took time to write some reasons after disposing of such a case in a busy docket courtroom. The decision is a breath of fresh air. People should not be imprisoned because simply because they cannot pay due to drug addiction or homelessness. 

Introduction

[1] Robert Fisher is impecunious. His employment is sporadic, and he has earned only a few thousand dollars all year.

[2] One morning last spring police found Mr. Fisher asleep in the back of his uninsured van, parked on a rural road outside of Entwistle. He has now pleaded guilty to having an uninsured vehicle on a highway, contrary to s. 54(1) of the Traffic Safety Act, RSA 2000, c T-6 (TSA).

Victim Surcharge

[4]  A $500 provincial victim surcharge is mandatory.

Days in Default - "Public Interest"

[10] Section 54 TSA sets a minimum penalty of a fine of $2500 “... and in default of payment to imprisonment for a term of not less than 45 days.” However, s. 7(2.1) POPA provides:

In proceedings commenced ... under Part 2, a justice sentencing a defendant ... shall consider the ability of the defendant to pay a fine ... and notwithstanding any provision to the contrary in any other enactment, may refuse to impose a period of imprisonment in default of payment of the fine ... where imprisonment would not serve the public interest.

[11] “Public interest” is synonymous with a judge’s duty to maintain public confidence in the administration of justice: R v Anthony-Cook, 2016 SCC 43 at para 29. The public consists of “... reasonable members of the community ... properly informed about ... the legislative provisions, Charter values and the ... circumstances of the case”: R v Hall, 2002 SCC 64 at para 41.

[12] Adopting the public’s perspective, I am mindful of the following. Individuals like Robert Fisher who live in “serious poverty ... appear with staggering regularity in our provincial courts”: Boudreault at paras 54-55. Further, jail is a last resort sentence in our law. And our law has long held that jail is not the default position in relation to the non-payment of provincial offence fines. To the opposite, s. 13(1) POPA (which provides for civil recovery) ought to be the government’s primary means of enforcing payment: R v Goebel, 2003 ABQB 422 at paras 72-78 per Slatter J (as he then was). Finally, reasonable members of our community would not endorse an interpretation of law that results in the disproportionate imprisonment of indigent Albertans. [PJM Emphasis]

Conclusion

[13] Robert Fisher’s sentence is a $2500 fine and $500 victim surcharge. Time to pay is extended to December 11, 2023. There are no days in jail in default of payment.

Prosecuting and Defending Drug Cases: A Practitioner's Handbook

By Jeremy Streeter, Nathan Gorham, & Breana Vandebeek

A practical guide to the different types of drug offences, including possession, trafficking, importing, exporting, and production offences, as well as conspiracy and criminal organization offences in the context of drug distribution offences.

Use code EMP10 for 10% off